Klocek v. Gateway, Inc. case brief

 Klocek v. Gateway, Inc.: (D. Kansas, 2000); Supp 136; Notes 54

• Terms: standard terms inside computer box: notice that keeping the system beyond five days meant acceptance of all terms and conditions. An arbitration term included.
• Rule: terms in package additional and different from what D proposed (he made to offer), AND THEY ONLY BECOME OPERATIVE if the D accepted – something beyond mere silence, as P argued
• Holding: Where D not merchant, and P vendor ships computer w/ terms additional or different, such terms not part of K unless D expressly ascended (agreed).
• Commentary: Case really turns on whether K formed before/after seller communicated terms w/ buyer. D made the offer to purchase, and P accepted this offer when it completed sales transaction/shipped the computer. So when P or other merchants accept credit card over the phone (or internet?) they are accepting the offer made by the customers. Sellers should not be able to throw in terms after the offer and acceptance, at time they ship the product, that the customer had never before contemplated. Agin, as we see in other cases, ct says there is no reason to infer that buyer’s silence meant the buyer agreed with the additional terms thrown in by the seller. Contrast this w/ ProCD, where 2-204 was used to hold computer software buyer to the terms of the K, even if such terms not apparent when buyer purchases software.