UPS has a label-printing and shipment-tracking software program that is installed on a customer’s computer. So what happens when the UPS technician (rather than the customer’s own employee) installs the software, scrolls past the license agreement, and clicks “I accept”?

This situation was reviewed in the recent case of Via Viente Taiwan, L.P. v. United Parcel Service, Inc., 2009 WL 398729 (E.D. Tex. February 17, 2009).  When UPS was sued in Texas, it tried to deflect the lawsuit to the State of Georgia, the forum selected in the license agreement.  The customer argued that the license agreement was not binding because it was the UPS employee who clicked through, and the customer never actually agreed to the terms. The court upheld the agreement (and the forum-selection clause) because the customer should have been aware that the license agreement was part of the deal when it signed the general UPS Carrier Agreement that required the use of the software. Secondly, the court reasoned that the UPS technician likely would have been supervised by Via Viente employees during the software installation. Lastly, the customer had enjoyed the benefit of the agreement – including the UPS shipping services and the use of the software – so it wouldn’t have been fair to permit it to “pick and choose” and avoid the terms of the license agreement. The lawsuit was transferred to the Northern District of Georgia.

 

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