Wachter Management Co. v. Dexter & Chaney, Inc.

Dexter & Chaney, Inc. (DCI) (defendant) developed, sold, and supported software for the construction industry. Wachter Management Company (Wachter) (plaintiff) was a construction management company based in Kansas. DCI made a written proposal to Wachter for the purchase of an accounting and project management software system. In addition to software, the proposal included a year of maintenance, training, and consulting. The proposal did not contain an integration clause, but it also did not indicate that Wachter might be required to agree to additional terms. Wachter’s agent signed the proposal. DCI shipped the software to Wachter. The packaging of the software included a licensing agreement, sometimes referred to as a shrinkwrap agreement. The shrinkwrap agreement stated that by opening the package containing DCI’s software, Wachter would be bound by the terms of the shrinkwrap agreement. Among other things, the terms of the shrinkwrap agreement included a choice of venue provision that required disputes to be resolved in Washington, where DCI was located. Wachter installed the software. About 18 months later, Wachter sued DCI in Kansas seeking $350,000 in damages arising from problems with the software. DCI moved to dismiss, arguing that the choice of venue clause in its shrinkwrap agreement required Wachter to bring suit in Washington. The trial court denied DCI’s motion, holding that the shrinkwrap agreement constituted an attempt to add terms to the parties’ original contract. DCI appealed.