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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON WEST CONSULTANTS, INC., Appellant,

CAROLYN E. DAVIS, an individual, dba ADVANCED ENTERPRISE SYSTEMS and "A&E" SYSTEMS, a Washington sole proprietorship; DELTEK SERVICES, INC., a Delaware corporation; DELTEK SYSTEMS, INC., a Delaware corporation; DELTEK CORP., a Delaware corporation; DELTEK, INC., a Delaware corporation; and DELTEK PARTNERS, a purported Washington partnership, Respondents. NO. 68309-8-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: August 19, 2013 

### Leach, C.J. — West Consultants Inc. (West) appeals the trial court's enforcement of a forum selection clause. This decision resulted in the dismissal 

### of itsclaims againstDeltek Inc., DeltekServicesInc., DeltekSystems Inc., Deltek Corp., and DeltekPartners (collectively Deltek) for impropervenue and an award 

### ofreasonable attorney feesand costs toDeltek.1 West alleges thattheDeltek
1Deltekdenies, and no evidence shows, thatthe entities "DeltekServices 

### Inc.," "Deltek Systems Inc.," "Deltek Corp.," or "Deltek Partners"exist. In April 2007, Deltek Systems Inc. converted to a Delaware corporation and changed its namefrom "Deltek Systems Inc." to "Deltek Inc."NO. 68309-8-1 / 2


### software it purchased from A&E Systems (A&E) did not work properly. West claims that a purchase agreement with A&E for the software, requiring suit in Washington, governs this case. The trial court concluded that Deltek's clickthrough license agreement West accepted when it installed the software, requiring suit in Virginia, governs. BecauseWest's claims arise underthe license agreement, the purchase agreement was not an integrated contract, and the applicable statutes entitle Deltekto attorneyfees and costs, we affirm.
FACTS West is an environmental engineering firm. Deltek Inc. is a Delaware corporation with corporate offices located in Virginia. Itmanufactures software. A&E Systems sells and maintains Deltek software. On March 28, 2008, West purchased a Deltek Vision Software license and quarterly maintenance from 

### A&E. Deltekwas not a party to and did not sign the purchase agreement, which stated,No express warranties are given by A&E Systems regarding the Deltek, Inc. software that is being utilized in the performance of these services. Any implied warranties of fitness for a particular purpose, merchantability, or any other implied warranties as a matter of law, are specifically disclaimed. Any warranties for the Deltek, Inc. software will be given directly by Deltek, Inc. to the client and the client will look solely to Deltek, Inc. in regard to such warranties.NO. 68309-8-1 / 3


### This agreement also included a choice oflaw provision: "This agreement shall be governed by the laws of the State of Washington and venue of any suitwill be in KingCounty, WA." 

### West purchased installation, training, and support services from Deltek. 

### West employee Hans Hadley signed a work order on May 13, 2008, requiring Deltek to assist Hadley with installing the software. The work orderstated that it
was subject to the terms of a separate license agreement between West and 

### Deltek. This license agreement required bringing any claim "relating in whole or 

### in part to this Agreement"in either a state courtwithin Fairfax County, Virginia, or in the United States DistrictCourt for the Eastern DistrictofVirginia. On May16, 2008, a Deltekrepresentative spoke on the phone with Hadley to assist himwith installing the software. To complete the installation, Hadley accepted Deltek's license agreement by clicking on a series of buttons on his computer screen. This click-through agreement stated, "YOUAGREE TO BE BOUND BY THE ALL [sic] TERMS OF THIS AGREEMENT BY INSTALLING, COPYING OR USING THE SOFTWARE. IF YOU DO NOT INSTALL, COPY OR USE THE SOFTWARE!,] YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE." The license agreement also included certain express warranties for the software's operation and disclaimed all implied
warranties.NO. 68309-8-1/4

On March 22, 2010, afterWest determined that the software did not meet 

### its needs, West sued Deltek and A&E in King County Superior Court, alleging violations of the Consumer Protection Act (CPA), chapter 19.86 RCW, breach of 

### implied warranties of merchantability and fitness for a particular purpose, and unjust enrichment. On May 25, the court granted Deltek's motion to dismiss for 

### improper venue under CR 12(b)(3), dismissing West's claims against Deltek 

### without prejudice. On June 14, 2010, the court entered an order granting Deltek's requestforattorney fees and costs. OnAugust 5, 2011, afterWest and A&E settled, the courtdismissedWest's claims againstA&E. 

### On December 27, 2011, Deltekfiled a notice ofpresentation of judgment under CR 54 for both the dismissal orderand the fee award. West responded to 

### the motion and attached a declaration from its attorney, Richard Seward, stating, "Virginia law barred Plaintiff'sConsumer Protection Act claim and that pursuing the balance ofthe claims in Virginiawas cost prohibitive." Deltek moved to strike 

### a portion of the declaration, arguing that West was improperly attempting to introduce new evidence. The courtdenied Deltek's motion on January 17, 2012, and entered a final judgment on January 25. West appeals, and Deltek cross appeals.NO. 68309-8-1 / 5

STANDARD OF REVIEW We review a trial court's decision on the enforceability of a forum selection 

### clauseusing an abuse ofdiscretion standard.2 Atrial courtabuses its discretion 

### when its decision is manifestly unreasonable or based on untenable grounds.3 "[T]he abuse ofdiscretion standard gives deference to a trial court's fact-specific determination on enforceability of a forum selection clause, while permitting 

### reversal where an incorrectlegal standard isapplied."4 But, ifthe case presents
a pure question of law, "such as whether public policy precludes giving effectto a forum selection clause inparticular circumstances," we apply a de novo standard 

### ofreviewas to thatquestion.5 We review the legal basis for an attorney fee award de novo, but we review the reasonableness ofthe award amountforabuse ofdiscretion.6 ANALYSIS West's primary contention is that the forum selection clause in the A&E purchase agreement controls its claims against Deltek, even though these claims arise out ofthe Deltek license agreement. West reaches this conclusion through 

### 2Dixv.ICTGrp., Inc., 160Wn.2d 826, 833, 161 P.3d 1016(2007). 

### 3Dix, 160Wn.2d at 833 (citing Wash. State PhysiciansIns. Exch. &Ass'n v. Fisons Corp., 122Wn.2d 299, 339, 858 P.2d 1054 (1993)). 

### 4Dix, 160Wn.2dat833. 

### 5Dix, 160 Wn.2d at 833-34. 6Hulbertv. Port of Everett, 159 Wn.App. 389, 407, 245 P.3d 779, review denied. 171 Wn.2d 1024 (2011) (citing Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 147, 859 P.2d 1210 (1993)). -5-NO. 68309-8-1 / 6


### the following analysis. A&E and Deltek are partners. The A&E purchase agreement provision establishing venue inKing County binds its partner, Deltek. 

### Theforum selection clause in Deltek's license agreement modifies the purchase agreement provision without consideration. This lack ofconsideration makes the 

### modification unenforceable. We reject West's analysis because it fails to 

### recognize the "layered contract" nature of this transaction. We also rejectWest's policyarguments and its challengeto a fee award inDeltek's favor. 

### In M.A. Mortenson Co., Inc. v. Timberline Software Corp..7 our Supreme Court approved the formation of "layered contracts" between a merchant and an 

### end user.8 Mortenson, a contractor, issued a purchase ordertoTimberline for 

### the purchase ofsoftware.9 Timberline shipped the software with ashrink-wrap license, which included a limitation of remedies provision.10 When Mortenson experienced problems with the software, Timberline invoked the limitation 

### provisions. Mortenson contended that the parties' contract consisted only of its purchase order because itnever saw or agreed to the provisions of the license


### 7140Wn.2d 568, 998 P.2d 305 (2000). 

### 8ThecourtstatedthatArticle2ofthe Uniform Commercial Code, chapter 62A RCW, which applies to transactions ingoods, applies to software licensing. Based upon facts similar to this case, the court concluded in Mortenson that RCW 62A.2-207 did not apply because the case concerned contract formation, not contract alteration. Additionally, RCW 62A.2-207 applies only to contracts between merchants. 140 Wn.2d at 582 & n.9. 9Mortenson. 140 Wn.2d at 571. 10 Mortenson. 140Wn.2d at574-75. -6-NO. 68309-8-1 / 7 

### agreement at the time the parties made their contract.11 It also argued that delivery ofthe license was a request to add terms to the contract, to which the 

### parties never agreed.12 OurSupreme Courtdisagreed, holding thatthelicense provisions were part of the parties' contract and use of the software constituted 

### assent to thelicenseterms.13 Thecourtconcluded, "[B]ecause RCW62.A2-204 allows a contract to be formed 'in any manner sufficient to show agreement . . . even though the momentof its making is undetermined,' itallows the formation of 

### layered contracts.'"14 West's complaint asserts that Deltek breached implied warranties of 

### merchantability and fitness for a particular purpose. Italso alleges that Deltek violated the CPA "by selling a poorquality productto PlaintiffWEST and failed to provide adequate installation, training and maintenance services to render the product useful for any purposes, let alone the special and particular purposes of the Plaintiff." West does not dispute that its claims relate in whole or in part to the license agreement, particularly the agreement's warranties and disclaimers, and itdoes not seekto rescind the license agreement. West does not allege any breach ofthe purchase agreement's provisions.

11 Mortenson, 140Wn.2d at577. 12Mortenson. 140 Wn.2d at 578. 13 Mortenson. 140 Wn.2d at 584. 

### 14Mortenson, 140Wn.2d at 584(alteration in original). -7-NO. 68309-8-1 / 8

As West appropriately acknowledged at oral argument, here, as in Mortenson, the purchase order is not an integrated contract. West's claims cannot arise under the purchase agreement, which provides no express warranties regarding the software and disclaims any implied warranties. West 

### had previously purchased software from A&E, although it had not previously used Deltek's products. West does not dispute that the license and purchase contract terms were clear. When West purchased Deltek's software, it had notice that it would be subject to a license. The purchase agreement between West and A&E recited that West was purchasing a license to use the software and noted that Deltek would provide any warranties forthe software. The record indicates that a scroll box would have appeared on the computer screen during the software installation process, setting forth the terms ofthe license agreement, and thatthe installerwould have been required to affirmatively selectthe option "I 

### accept the terms of the license agreement" to proceed. The work order that 

### Hadleysigned stated explicitlythat those sameterms governed the work order. West contends that itagreed to this contractwithout reading it. We follow 

### the court's reasoning in Mortenson that "itwas notnecessary ... to actually read 

### the agreement in order to be bound byit" and that West assented to the license 

### agreement's terms by using the software.15 Westcould have declinedtheterms
15 Mortenson, 140Wn.2d at 584.-8-NO. 68309-8-1 / 9

of the license agreement, chosen not to install the software, and returned the 

### software for a full refund. Because the purchase order and license agreement constituted a layered contractand West's claims "relate in whole or in part" to the license agreement, the license agreement's terms govern this dispute. Therefore, the license agreement's forum selection clause applies if it is valid. "A forum selection clause is presumptively valid unless it violates 

### fundamental public policy of the State ofWashington and Washington's interest in the determination of the issue materially outweighs the chosen state's 

### interest."16 We generally enforce a forum selection clause "even if it is in a standard form consumer contract not subject to negotiation."17 The party resisting the forum selection clause has the burden of demonstrating that it is unreasonable, even where the clause establishes a remote forum for resolving 

### disputes.18 Absent evidence of fraud, undue influence, or unfair bargaining power, courts in Washington are reluctant to invalidate forum selection clauses because they increase contractual predictability and may reduce costs of doing business.19



### 16 Saleemi v. Doctor'sAssocs.. Inc.. 176 Wn.2d 368, 384, 292 P.3d 108 (2013) (citing McKee v. AT&TCorp., 164Wn.2d 372, 384, 191 P.3d 845 (2008)). 

### 17 Dix, 160Wn.2dat834. 

### 18 Dix, 160 Wn.2d at 834-35;Voicelink DataServs., Inc. v. Datapulse, Inc., 86 Wn. App. 613, 617, 937 P.2d 1158 (1997). 19 Dix. 160 Wn.2d at 834-35.NO. 68309-8-1/10

West asserts that the license agreement's forum selection clause is invalid because "Deltekcannotforce a new agreement upon PlaintiffWEST without new consideration." But, under Mortenson, the purchase order and license agreement constituted a single "layered contract," not separate agreements. West also contends thatenforcing the license agreement's forum selection clause would violate the CPA's public policy goals and "deny PlaintiffWEST and any other injured Washington 'persons' a forum for its claims against Deltek." In 

### supportofthis argument, Westcites Dixv. ICT Group, Inc.20 But, in Dix, a class action, the plaintiffs claimed that the forum selection clause requiring venue in Virginia violated the CPA's public policy goals because class action suits were 

### notavailable in Virginia.21 The court held that "aforum selection clause that seriously impairs the plaintiff's ability to go forward on a claim of small value by eliminating class suits incircumstances where there is no feasible alternative for 

### seeking reliefviolates public policy and is unenforceable."22 Here, West seeks $119,544 indamages, itdoes not seek to bring a class action, and itpresented
no evidence to the trial court that ithas no feasible alternative for seeking relief. Therefore, we reject its argument.



### 20 160 Wn.2d 826, 161 P.3d 1016 (2007). 21 Dix, 160Wn.2dat835. 

### 22 Djx, 160Wn.2dat837. -10-NO. 68309-8-1/11


### On appeal, West argues that its claims against Deltek are time barred in 

### Virginia and "that pursuing such claims in either state or federal court inVirginia would be cost prohibitive." It first presented a similar argument to the trial court inresponse to Deltek's notice ofpresentation. Butthe trial courtdid not consider this contention timely and entered a finaljudgment "as set forth in the Court's May 25, 2010 Order Granting Certain Defendants' Motion to Dismiss for 

### Improper Venue," and "as setforth in the Court's June 14, 2010 Order Granting 

### Attorneys'Fees and Costs." Therefore, we also decline toaddress it.23 Because West's claims arise under the license agreement and it fails to demonstrate that the license agreement's forum selection clause is unreasonable, we hold thatthe trialcourtproperly required Westto litigate itsclaims against Deltek in Virginia. West also claims that the trial court's order awarding attorney fees and costs to Deltek "was only authorized by [RCW 4.28.185(5)] ifthe error had not occurred on the ruling granting Deltek's motion to dismiss." RCW 4.28.185(5) allows a prevailing defendant to recover reasonable attorney fees and costs "[i]n the event the defendant is personally served outside the state on causes of action enumerated in this section." West does not dispute that itcaused Deltek to be served personally in Delaware under Washington's long-arm statute.


### 23 See RAP 2.5(a) ("The appellatecourtmay refuse toreview anyclaimof errorwhich was not raised inthe trial court."). -11-NO. 68309-8-1 /12

Because the trial court properly granted Deltek's motion under RCW4.28.185(5),

we affirm the fee award. Deltek requests attorney fees and costs on appeal under RAP 18.1 and RCW 4.28.185(5). "Such an award is discretionary and is limited to the amount necessary to compensate a foreign defendant for the added costs of litigating in 

### Washington."24 Because Deltek prevails in this action, we award attorney fees and costs to Deltek, limited to the amount necessary to compensate it for any 

### additional costs ofdefending inWashington.25 In a cross appeal, Deltek asserts that the trial court erred in denying its motion to strike Seward's declaration, which West offered in response to Deltek's notice of presentation. Because West does not prevail, we need not consider
this issue. CONCLUSION Because West's claims against Deltek arise under the license agreement,
we affirm the trial court's order dismissing its claims for improper venue and awarding attorney fees and costs to Deltek. Because Deltek prevails in this appeal, we also award costs and reasonable attorney fees to Deltek incurred on



### 24 Pavne v. Saberhaqen Holdings, Inc.. 147 Wn. App. 17, 36, 190 P.3d 102 (2008) (citing Scott Fetzer Co.. Kirbv Co. Div. v. Weeks, 114 Wn.2d 109, 120-21, 786 P.2d 265 (1990)). 

### 25 See Pavne. 147Wn. App. at 36. -12-NO. 68309-8-1/13


### this appeal, limited to the amount necessary to compensate it for any additional costs ofdefending inWashington, upon its compliance with RAP 18.1. 

# /-£^c^A_ (T
. WE CONCUR:



### r

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