C. The placement and design of the browsewrap hyperlink as well as the large magenta font of the language of the disclaimer itself satisfy the element of conspicuousness required for a valid disclaimer of warranties under Cal. Com. Code §2316 WGC’s disclaimer is valid because it is sufficiently conspicuous. The California Uniform Commercial Code § 2316 requires that an exclusion of the implied warranty of merchantability presented in writing must use the word merchantability and be conspicuous. Cal. Com. Code § 2316 (Deering, Lexis Advance through all 2016 legislation and propositions (2016 Regular and 2015-2016 2nd Ex. Sessions)). Conspicuous, as defined by the code, requires that the provision is written so that a reasonable person…show more content… Even so, WGC used all caps as an extra precaution to further ensure that the reader would take note of the disclaimer of warranties expressed in the writing.
WGC’s disclaimer does not suffer from the ambiguity deficiencies of the unenforceable disclaimer in Dorman. The text states “THE MANUFACTURER (“WGC”) MAKES NO WARRANTIES AS TO ANY OF ITS PRODUCTS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY.” Exhibit A. No reasonable person who took the time to read this text could mistakenly believe it means anything other than that there are no warranties on WGC’s products. WGC’s disclaimer is clearly valid since it fulfills the requirements of conspicuousness, contains the word “merchantability,” and is unambiguous.
D. The disclaimer of warranties was not unconscionable and therefore was valid and binding on the plaintiff
WGC’s Disclaimer of warranties was not unconscionable, and since it fulfills the other necessary requirements, it is valid and enforceable against the plaintiffs. The California Court of Appeals held that “the doctrine of unconscionability applies to all provisions of all contracts and has both a ‘procedural’ and a ‘substantive’ element. Appalachian Ins. Co., 214 Cal. App. 3d at 22 (finding no procedural or substantive unconscionability on a disclaimer of warranties on rocket materials). The procedural element focuses on “oppression” and “surprise””