Via Viente Taiwan, L.P. v. United Parcel Service, Inc., 2009 WL 398729 (E.D. Tex. Feb. 17, 2009) (full-text).
Factual Background Edit
ViaViente Taiwan (“Plaintiff”), a producer and distributor of nutritional beverages, hired United Parcel Service (“UPS”) to ship its products to Taiwan. On November 1, 2004 the parties entered into a “Carrier Agreement” whereby Plaintiff would use UPS’s “Online Shipping Solution” software program to print shipping labels and manage product shipments from Plaintiff’s Plano, Texas location.
In accordance with the Carrier Agreement, a UPS technician installed the software onto Plaintiff’s computer. During installation, a user must agree to a “License Agreement” which contains the terms of the agreement as well as a forum selection clause for any future litigation. For the software to be installed, the user must agree to the License Agreement. The software was successfully installed onto Plaintiff’s computer and Plaintiff began using UPS’s services.
Plaintiff filed a suit against UPS in the Eastern District of Texas. UPS filed a motion for transfer venue to the Northern District of Georgia, Atlanta, in accordance with the forum selection clause in the License Agreement.
Trial Court Proceedings Edit
Plaintiff contends that the UPS technician installed the software absent any supervision from Plaintiff’s personnel. Thus Plaintiff asserts that it is not bound by the terms in the agreement because it was not able to review and agree to the License Agreement. The Plaintiff further asserts that there was not meeting of the minds because it was never able to agree to the terms. UPS contends that, in accordance with its standard policy, the installation technician only installs the software in the presence and after “the customer indicates acceptance of the terms and conditions of using the software.”
The district court granted UPS’s motion to transfer. The court reasoned that the Plaintiff’s actions “belie the argument that they did not agree to the terms of the License Agreement.” The court further reasoned that the Plaintiff should have been aware that a license agreement would be included in the installation process, and found it hard to believe that the Plaintiffs would allow the installation technician unsupervised access to their computers.
Most importantly, the court noted that the Plaintiff used UPS’s services to conduct its business and it would unfair to allow the Plaintiff to benefit “from portions of the contract while allowing it to disavow others.” Thus, the court ruled that “the parties entered into a valid and binding contract, the contract contained a forum selection clause and the forum selection clause was enforceable.”