Step-Saver Data Sys. v. Wyse Tech.

939 F.2d 91 (3d Cir. 1991)



The repeated sending of a writing which contains certain standard terms, without any action with respect to the issues addressed by those terms, cannot constitute a course of dealing which would incorporate a term of the writing otherwise excluded under U.C.C. § 2-207.


Printed on top of the software package bought by the appellant was a Limited Use License Agreement that contained a provision disclaiming all warranties. Appellant argued that this was not intended as expression of agreement with appellees, the software producer.


Can parol evidence be admitted to establish that the license agreement was not a complete expression of the agreement of the parties?




The essential elements of the parties' contract were detailed upfront, orally and by purchase orders, and that the license was only delivered later with software order. The court pointed to U.C.C. § 2-207 as controlling, and viewed the license's terms as a proposed addition to the existing contract, one never accepted by appellant. Notwithstanding this rebuff, the court observed, appellees' software producer demonstrated a willingness to supply additional orders. Consequently, the disclaimer of warranty in the license did not constitute a conditional acceptance by appellant of its terms, irrespective of the repeated mailings of the license. The court held that it was error for appellant's warranty claims to be dismissed. The court also found that no evidence demonstrated any intentional misrepresentation by appellees on issues of software or hardware compatibility.

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