M.A. Mortenson Company v. Timberline Software

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Mortenson v. Timberline Software, 970 P. 2d 803 (Wa. Sup. Ct. 1999)

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This case presents the issue of whether a limitation on consequential damages enclosed in a 'shrinkwrap license' accompanying computer software is enforceable against the purchaser of the licensed software. Petitioner M.A. Mortenson Company, Inc. (Mortenson), a general construction contractor, purchased licensed computer software from Timberline Software Corporation (Timberline) through Softworks Data Systems, Inc. (Softworks), Timberline's local authorized dealer. After Mortenson used the program to prepare a construction bid and discovered the bid was $1.95 million less than it should have been, Mortenson sued Timberline for breach of warranties alleging the software was defective. The trial court granted Timberline's motion for summary judgment. The Court of Appeals affirmed the order of summary judgment, holding (1) the purchase order between the parties was not an integrated contract; (2) the licensing agreement set forth in the software packaging and instruction manuals was part of the contract between Mortenson and Timberline; and (3) the provision limiting Mortenson's damages to recovery of the purchase price was not unconscionable. We granted Mortenson's petition for review and affirm the Court of Appeals.


Petitioner Mortenson is a nationwide construction contractor with its corporate headquarters in Minnesota and numerous regional offices, including a northwest regional office in Bellevue, Washington. Respondent Timberline is a software developer located in Beaverton, Oregon. Respondent Softworks, an authorized dealer for Timberline, is located in Kirkland, Washington and provides computer-related services to contractors such as Mortenson.

Since at least 1990, Mortenson has used Timberline's Bid Analysis software to assist with its preparation of bids.1 Mortenson had used Medallion, an earlier version of Bid Analysis, at its Minnesota headquarters and its regional offices. In early 1993, Mortenson installed a new computer network operating system at its Bellevue office and contacted Mark Reich (Reich), president of Softworks, to reinstall Medallion. Reich discovered, however, that the Medallion software was incompatible with Mortenson's new operating system. Reich informed Mortenson that Precision, a newer version of Bid Analysis, was compatible with its new operating system.

Mortenson wanted multiple copies of the new software for its offices, including copies for its corporate headquarters in Minnesota and its northwest regional office in Bellevue. Reich informed Mortenson he would place an order with Timberline and would deliver eight copies of the Precision software to the Bellevue office, after which Mortenson could distribute the copies among its offices.

After Reich provided Mortenson with a price quote, Mortenson issued a purchase order dated July 12, 1993, confirming the agreed upon purchase price, set up fee, delivery charges, and sales tax for eight copies of the software. 2 The purchase order indicated that Softworks, on behalf of Timberline, would '{f}urnish current versions of Timberline Precision Bid Analysis Program Software and Keys' and '{p}rovide assistance in installation and system configuration for Mortenson's Bellevue Office.' The purchase order also contained the following notations:

Provide software support in converting Mortenson's existing Bid Day Master Files to a format accepted by the newly purchased Bid Day software. This work shall be accomplished on a time and material basis of $85.00 per hour. Format information of conversion of existing D-Base Files to be shared to assist Mortenson Mid-West programmers in file conversion.
-System software support and upgrades to be available from Timberline for newly purchased versions of Bid Day Multi-User.
-At some future date should Timberline upgrade 'Bid Day' to a windows version, M.A. Mortenson would be able to upgrade to this system with Timberline crediting existing software purchase toward that upgrade on a pro-rated basis to be determined later.

Below the signature line the following was stated:


The purchase order did not contain an integration clause.

Reich signed the purchase order and ordered the requested software from Timberline. When Reich received the software, he opened the three large shipping boxes and checked the contents against the packing invoice. Contained inside the shipping boxes were several smaller boxes, containing program diskettes in plastic pouches, installation instructions, and user manuals. One of the larger boxes also contained the sealed protection devices for the software. 4

All Timberline software is distributed to its users under license. Both Medallion and Precision Bid Analysis are licensed Timberline products. In the case of the Mortenson shipment, the full text of Timberline's license agreement was set forth on the outside of each diskette pouch and the inside cover of the instruction manuals. The first screen that appears each time the program is used also references the license and states, "[t]his software is licensed for exclusive use by: Timberline Use Only." Further, a license to use the protection device was wrapped around each of the devices shipped to Mortenson. The following warning preceded the terms of the license agreement:


Under a separate subheading, the license agreement limited Mortenson's remedies and provided:


Reich personally delivered the software to Mortenson's Bellevue office, and was asked to return at a later date for installation. The parties dispute what happened next. According to Neal Ruud (Ruud), Mortenson's chief estimator at its Bellevue office, when Reich arrived to install the software Reich personally opened the smaller product boxes contained within the large shipping boxes and also opened the diskette packaging. Reich inserted the diskettes into the computer, initiated the program, contacted Timberline to receive the activation codes, and wrote down the codes for Mortenson. Reich then started the programs and determined to the best of his knowledge they were operating properly. Ruud states that Mortenson never saw any of the licensing information described above, or any of the manuals that accompanied the software. Ruud adds that copies of the programs purchased for other Mortenson offices were forwarded to those offices.

Reich claims when he arrived at Mortenson's Bellevue office he noticed the software had been opened and had been placed on a desk, along with a manual and a protection device. Reich states he told Mortenson he would install the program at a single workstation and 'then they would do the rest.' Reich proceeded to install the software and a Mortenson employee attached the protection device. Reich claims he initiated and ran the program, and then observed as a Mortenson employee repeated the installation process on a second computer. An employee then told Reich that Mortenson would install the software at the remaining stations.

In December 1993, Mortenson utilized the Precision Bid Analysis software to prepare a bid for a project at Harborview Medical Center in Seattle. On the day of the bid, the software allegedly malfunctioned multiple times and gave the following message: 'Abort: Cannot find alternate.' Mortenson received this message 19 times that day. Nevertheless, Mortenson submitted a bid generated by the software. After Mortenson was awarded the Harborview Medical Center project, it learned its bid was approximately $1.95 million lower than intended.

Mortenson filed an action in King County Superior Court against Timberline and Softworks alleging breach of express and implied warranties. After the suit was filed, a Timberline internal memorandum surfaced, dated May 26, 1993. The memorandum stated, '{a} bug has been found {in the Precision software} . . . that results in two rather obscure problems,' and explained, '{t}hese problems only happen if the following {four} conditions are met.' The memorandum concluded, '{g}iven the unusual criteria for this problem, it does not appear to be a major problem.' Apparently, other Timberline customers had encountered the same problem and a newer version of the software was sent to some of these customers. After an extensive investigation, Timberline's lead programmer for Precision Bid Analysis acknowledged if the four steps identified in the memo were 'reproduced as accurately as possible,' Mortenson's error message could be replicated.

Timberline moved for summary judgment of dismissal in July 1997, arguing the limitation on consequential damages in the licensing agreement barred Mortenson's recovery. Mortenson countered that its entire contract with Timberline consisted of the purchase order and it never saw or agreed to the provisions in the licensing agreement. The trial court granted Timberline's motion for summary judgment. The trial judge stated, 'if this case had arisen in 1985 rather than 1997, I might have a different ruling' but 'the facts in this case are such that even construing them against the moving party, the Court finds as a matter of law that the licensing agreements and limitations pertaining thereto were conspicuous and controlling and, accordingly, the remedies that are available to the plaintiff in this case are the remedies that were set forth in the licensing agreement . . . .'

Mortenson appealed the summary judgment order to the Court of Appeals.5 The Court of Appeals affirmed the trial court and held (1) the purchase order was not an integrated contract; (2) the license terms were part of the contract; and (3) the limitation of remedies clause was not unconscionable and, therefore, enforceable. Mortenson petitioned this court for review, which we granted.


In reviewing an order of summary judgment, this court engages in the same inquiry as the trial court; summary judgment will be affirmed where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The facts and reasonable inferences from the facts are considered in the light most favorable to the nonmoving party. Questions of law are reviewed de novo. Applicable Law

Article 2 of the Uniform Commercial Code (U.C.C.), applies to transactions in goods. The parties agree in their briefing that Article 2 applies to the licensing of software, and we accept this proposition.6

Integration of the Contract

Mortenson contends because the purchase order fulfilled the basic requirements of contracting under the U.C.C., it constituted a fully integrated contract. As a result, Mortenson argues the terms of the license, including the limitation of remedies clause, were not part of the contract and, thus, are not enforceable. Timberline counters that the parties did not intend the purchase order to be an exclusive recitation of the contract terms, and points to the absence from the purchase order of several key details of the agreement. Timberline argues, and the trial court and Court of Appeals agreed, that the purchase order did not prevent the terms of the license from becoming part of the contract or render the limitation of remedies clause unenforceable.

Whether the parties intend a written document to be a final expression of the terms of the agreement is a question of fact. In determining whether an agreement is integrated, 'the court may consider evidence of negotiations and circumstances surrounding the formation of the contract.' RCW 62A.2-204(1) provides, '{a} contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.'

Whether the purchase order qualifies as a contract at all does not resolve the issue of whether it is an integrated contract. Even if we assume the purchase order could, standing alone, constitute a complete contract under the U.C.C., such was not the case here. The language of the purchase order makes this clear. For example, the purchase order sets an hourly rate for Timberline's provision of 'software support,' but does not specify how many hours of support Timberline would provide. The purchase order also states: '{a}t some future date should Timberline upgrade 'Bid Day' to a windows version, M.A. Mortenson would be able to upgrade to this system with Timberline crediting existing software purchase toward that upgrade on a pro-rated basis to be determined later.'

Finally, the purchase order does not contain an integration clause. The presence of an integration clause 'strongly supports a conclusion that the parties' agreement was fully integrated . . . ' Here, the absence of such a clause further supports the conclusion that the purchase order was not the complete agreement between the parties. The trial court and the Court of Appeals correctly determined the purchase order did not constitute an integrated contract.

Terms of the Contract

Mortenson next argues even if the purchase order was not an integrated contract, Timberline's delivery of the license terms merely constituted a request to add additional or different terms, which were never agreed upon by the parties. Mortenson claims under RCW 62A.2-207 7 the additional terms did not become part of the contract because they were material alterations. Timberline responds that the terms of the license were not a request to add additional terms, but part of the contract between the parties. Timberline further argues that so-called 'shrinkwrap' software licenses have been found enforceable by other courts, and that both trade usage and course of dealing support enforcement in the present case. For its section 2-207 analysis, Mortenson relies on Step-Saver. There, Step-Saver, a value added retailer,8 placed telephone orders for software and confirmed with purchase orders. The manufacturer then forwarded an invoice back to Step-Saver. The software later arrived with a license agreement printed on the packaging. Finding the license 'should have been treated as a written confirmation containing additional terms,' the Third Circuit applied U.C.C. section 2-207 and held the warranty disclaimer and limitation of remedies terms were not part of the parties' agreement because they were material alterations. Mortenson claims Step-Saver is controlling, as 'virtually every element of the transaction in the present case is mirrored in Step-Saver.' We disagree.

First, Step-Saver did not involve the enforceability of a standard license agreement against an end user of the software, but instead involved its applicability to a value added retailer who simply included the software in an integrated system sold to the end user. In fact, in Step-Saver the party contesting applicability of the licensing agreement had been assured the license did not apply to it at all. Such is not the case here, as Mortenson was the end user of the Bid Analysis software and was never told the license agreement did not apply.

Further, in Step-Saver the seller of the program twice asked the buyer to sign an agreement comparable to their disputed license agreement. Both times the buyer refused, but the seller continued to make the software available. In contrast, Mortenson and Timberline had utilized a license agreement throughout Mortenson's use of the Medallion and Precision Bid Analysis software. Given these distinctions, we find Step-Saver to be inapplicable to the present case. 9

We conclude this is a case about contract formation, not contract alteration. As such, RCW 62A.2-204, and not RCW 62A.2-207, provides the proper framework for our analysis.

RCW 62A.2-204 states:
(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

Although no Washington case specifically addresses the type of contract formation at issue in this case, a series of recent cases from other jurisdictions have analyzed shrinkwrap licenses under analogous statutes. See Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 250-51, 676 N.Y.S.2d 569 (1998); Hill v. Gateway 2000; ProCD, Inc. v. Zeidenberg.

In ProCD, which involved a retail purchase of software, the Seventh Circuit held software shrinkwrap license agreements are a valid form of contracting under Wisconsin's version of U.C.C. section 2-204, and such agreements are enforceable unless objectionable under general contract law such as the law of unconscionability. The court stated, '{n}otice on the outside, terms on the inside, and a right to return the software for a refund if the terms are unacceptable (a right that the license expressly extends), may be a means of doing business valuable to buyers and sellers alike.'

In Hill, the customer ordered a computer over the telephone and received the computer in the mail, accompanied by a list of terms to govern if the customer did not return the product within 30 days. Relying in part on ProCD, the court held the terms of the 'accept-or-return' agreement were effective, stating, '{c}ompetent adults are bound by such documents, read or unread.' Hill, 105 F.3d at 1149 (emphasis added). Elaborating on its holding in ProCD, the court continued:

The question in ProCD was not whether terms were added to a contract after its formation, but how and when the contract was formed--in particular, whether a vendor may propose that a contract of sale be formed, not in the store (or over the phone) with the payment of money or a general 'send me the product,' but after the customer has had a chance to inspect both the item and the terms. ProCD answers 'yes,' for merchants and consumers alike. Hill, 105 F.3d at 1150 (emphasis added).

Interpreting the same licensing agreement at issue in Hill, the New York Supreme Court, Appellate Division concluded shrinkwrap license terms delivered following a mail order purchase were not proposed additions to the contract, but part of the original agreement between the parties. The court held U.C.C. section 2-207 did not apply because the contract was not formed until after the period to return the merchandise.

We find the approach of the ProCD, Hill, and Brower courts persuasive and adopt it to guide our analysis under RCW 62A.2-204. We conclude because RCW 62A.2-204 allows a contract to be formed 'in any manner sufficient to show agreement . . . even though the moment of its making is undetermined,' it allows the formation of 'layered contracts' similar to those envisioned by ProCD, Hill, and Brower. We, therefore, hold under RCW 62A.2-204 the terms of the license were part of the contract between Mortenson and Timberline, and Mortenson's use of the software constituted its assent to the agreement, including the license terms.

The terms of Timberline's license were either set forth explicitly or referenced in numerous locations. The terms were included within the shrinkwrap packaging of each copy of Precision Bid Analysis; they were present in the manuals accompanying the software; they were included with the protection devices for the software, without which the software could not be used. The fact the software was licensed was also noted on the introductory screen each time the software was used. Even accepting Mortenson's contention it never saw the terms of the license, as we must do on summary judgment, it was not necessary for Mortenson to actually read the agreement in order to be bound by it.11

Furthermore, the U.C.C. defines an 'agreement' as 'the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance . . . .' RCW 62A.1-201(3) (emphasis added). Mortenson and Timberline had a course of dealing; Mortenson had purchased licensed software from Timberline for years prior to its upgrade to Precision Bid Analysis. All Timberline software, including the prior version of Bid Analysis used by Mortenson since at least 1990, is distributed under license. Moreover, extensive testimony and exhibits before the trial court demonstrate an unquestioned use of such license agreements throughout the software industry. Although Mortenson questioned the relevance of this evidence, there is no evidence in the record to contradict it. While trade usage is a question of fact, undisputed evidence of trade usage may be considered on summary judgment.

As the license was part of the contract between Mortenson and Timberline, its terms are enforceable unless 'objectionable on grounds applicable to contracts in general . . . .'

Enforceability of Limitation of Remedies Clause

Mortenson contends even if the limitation of remedies clause is part of its contract with Timberline, the clause is unconscionable and, therefore, unenforceable.

Limitations on consequential damages are generally valid under the U.C.C. unless they are unconscionable. RCW 62A.2-719(3). Whether a limitation on consequential damages is unconscionable is a question of law. RCW 62A.2- 302(1). 'Exclusionary clauses in purely commercial transactions . . . are prima facie conscionable and the burden of establishing unconscionability is on the party attacking it.' American Nursery Prods., 115 Wn.2d at 222. If there is no threshold showing of unconscionability, the issue may be determined on summary judgment.

Washington recognizes two types of unconscionability--substantive and procedural--which we will now address in turn.

1. Substantive Unconscionability.

Mortenson asserts Timberline's failure to inform it of the 'defect' in the software prior to its purchase renders the licensing agreement substantively unconscionable.

Substantive unconscionability involves those cases where a clause or term in the contract is alleged to be one-sided or overly harsh . . . . Shocking to the conscience', 'monstrously harsh', and 'exceedingly calloused' are terms sometimes used to define substantive unconscionability.'

As an initial matter, it is questionable whether clauses excluding consequential damages in a commercial contract can ever be substantively unconscionable. Even if the doctrine is applicable, however, the clause here is conscionable because substantive unconscionability does not address latent defects discovered after the contracting process.

In Tacoma Boatbuilding, the Western District of Washington considered whether a contractual clause limiting consequential damages was substantively unconscionable under Washington law, where mechanical problems developed in several boat engines after the contracting process. Like Mortenson, the purchaser in Tacoma Boatbuilding argued because the product did not work properly, the limitation clause was unconscionable. The court rejected this theory:

Comment 3 to {U.C.C.} sec.2-719 generally approves consequential damage exclusions as 'merely an allocation of unknown or undeterminable risks.' Thus, the presence of latent defects in the goods cannot render these clauses unconscionable. The need for certainty in risk-allocation is especially compelling where, as here, the goods are experimental and their performance by nature less predictable.

We find the result in Tacoma Boatbuilding an accurate analysis of Washington's law of substantive unconscionability and adopt it here. In a purely commercial transaction, especially involving an innovative product such as software, the fact an unfortunate result occurs after the contracting process does not render an otherwise standard limitation of remedies clause substantively unconscionable.

An example of the proper focus of the substantive unconscionability doctrine is found in Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 254, 676 N.Y.S.2d 569 (1998). There, a shrinkwrap software license similar to the license in the present case included a mandatory arbitration clause, which required the use of a French arbitration company, payment of an advance fee of $4,000 (half which was nonrefundable), significant travel fees borne by the consumer, and payment of the loser's attorney fees. The Brower court found this clause substantively unconscionable.

In contrast, Timberline's consequential damages clause, when examined at the time the contract was formed, does not shock the conscience in the manner of the Brower mandatory arbitration clause; it is not substantively unconscionable.

2. Procedural Unconscionability.

Mortenson also contends the licensing agreement is procedurally unconscionable because 'the license terms were never presented to Mortenson in a contractually-meaningful way.' Supplemental Br. of Pet'r at 17. Procedural unconscionability has been described as the lack of a meaningful choice, considering all the circumstances surrounding the transaction including {t}he manner in which the contract was entered,' whether each party had 'a reasonable opportunity to understand the terms of the contract,' and whether 'the important terms {were} hidden in a maze of fine print . . . .

Examining the contracting process between the parties based on the above factors, we hold the clause to be procedurally conscionable. The clause was not hidden in a maze of fine print. The license was set forth in capital letters on each diskette pouch and on the inside cover of the instruction manuals. A license to use the protection device was wrapped around each such device. The license was also referenced in the opening screen of the software program. This gave Mortenson more than ample opportunity to read and understand the terms of the license. Mortenson is also not an inexperienced retail consumer, but a nationwide construction contractor that has purchased licensed software from Timberline in the past. See Northwest Acceptance Corp. v. Hesco Constr., Inc., 26 Wn. App. 823, 830-31, 614 P.2d 1302 (1980) (finding liquidated damages clause conscionable in part because parties were commercially experienced).12

Unconscionability 'was never intended as a vortex for elements of fairness specifically embodied in other Code provisions.' Tacoma Boatbuilding, 28 U.C.C. Rep. Serv. at 33. We find Mortenson's unconscionability claim unpersuasive and, therefore, find the limitation of remedies clause to be enforceable.


Mortenson has failed to set forth any material issues of fact on the issue of contract formation, and has also failed to make a threshold showing of unconscionability sufficient to avoid summary judgment. We affirm the Court of Appeals, upholding the trial court's order of summary judgment of dismissal and denial of the motions to vacate and amend.


1 Bid Analysis is designed for use by general contractors preparing construction bids. The program analyzes project requirements as well as bid information from subcontractors and finds the lowest cost combination of subcontractors to carry out the required work.

2 Mortenson subsequently ordered a ninth copy of the software.

3 Items appearing in upper case in the original documents appear in upper case in this opinion.

4 A protection device is a piece of hardware that must be affixed to a computer in order to operate the Bid Analysis software; the program will not operate without the device. Mortenson received one protection device for each copy of software it ordered.

5 Four months after filing its notice of appeal, Mortenson moved to vacate the trial court judgment and amend its pleadings to include tort claims. The trial court denied these motions and the Court of Appeals affirmed. M.A. Mortenson Co., 93 Wn. App. at 837-39. While Mortenson argues in its supplemental briefing that the Court of Appeals erred in affirming the trial court's denial of these motions, it fails to include this issue in its petition for review. As such, we decline to reach it. RAP 13.7(b).

6 In 1999 the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Computer Information Transactions Act (UCITA) to cover agreements to 'create, modify, transfer, or license computer information or informational rights in computer information.' UCITA sec. 102(a)(12), U.L.A. (2000); see also UCITA sec. 103, U.L.A. (2000). The UCITA, formerly known as proposed U.C.C. Article 2B, was approved and recommended for enactment by the states in July 1999.

7 RCW 62A.2-207 states: '(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.

'(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: '(a) the offer expressly limits acceptance to the terms of the offer; '(b) they materially alter it; or '(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.

'(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Title.'

8 A 'value added retailer' evaluates the needs of a particular group of potential computer users, compares those needs with the available technology, and develops a package of hardware and software to satisfy those needs.

9 We also note the contract here, unlike the contract in Step-Saver, was not 'between merchants' because Mortenson does not deal in software. See RCW 62A.2-104 (merchant is person who deals in or has particular skill with respect to the kind of goods involved in the transaction). RCW 62A.2-207 does not specify when additional terms become part of a contract involving a nonmerchant.

10 The fact the approach utilized by the ProCD, Hill, and Brower courts represents the overwhelming majority view on this issue is further demonstrated by its adoption into the UCITA. See UCITA sec. 208 cmt. 3 (Approved Official Draft), U.L.A. (2000) (noting intent to adopt the rule in these cases). The UCITA embraces the theory of 'layered contracting,' which acknowledges while 'some contracts are formed and their terms fully defined at a single point in time, many transactions involve a rolling or layered process. An agreement exists, but terms are clarified or created over time.' UCITA sec. 208 cmt. 3 (Approved Official Draft).

11 We note even if Mortenson's Bellevue employees never saw a copy of the license terms, Mortenson does not dispute that additional copies of the software were forwarded to its other offices. Even had Reich completed the entire installation process at the Bellevue office, he did not install the software at Mortenson's other offices.

12 Furthermore, we note a party defending a limitation on consequential damages 'may prove the clause is conscionable regardless of the surrounding circumstances if the general commercial setting indicates a prior course of dealing or reasonable usage of trade as to the exclusionary clause.' American Nursery Prods., 115 Wn.2d at 223 (emphasis added); see also Cox v. Lewiston Grain Growers, Inc., 86 Wn. App. 357, 369, 936 P.2d 1191, review denied, 133 Wn.2d 1020 (1997). The same uncontradicted evidence of trade usage and course of dealing noted in our analysis of contract formation supports the conclusion that the clause is procedurally conscionable.

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