Gateway 2000 held that no notice of additional terms within was required since the buyer had the opportunity to discover those terms even though the box didn't warn them they existed
More accurately, there was no notice of terms required because there were no additional terms. A consumer product comes with a warranty; products with software come with license agreements; products that require a separate service (Tivo, cell phones, cable TV, OnStar, etc.) come with a service agreement. These terms are part of the sale of these products based on their nature.
the contract being formed not when payment was rendered but when the box was opened and the additional terms were presented.
Almost. The contract was formed when consideration was exchanged (the moment they paid). The contract was perfected upon delivery of goods. For all legal purposes in accordance with the OTC, your assent ends the question, regardless of whether or not you've been "presented" with terms (unless you are
forced to contract and
denied access to the terms--note these are active verbs and do not apply where the Offeree was simply irresponsible or negligent).
The court did sidestep the issue of whether and how the cost of returning the computer could be recovered - rather dismissively
It wasn't germane to any claim in the case. The vendor's return policy governs, and it was not at issue. When you purchase by mail, you assume the risk involved in dealing with remote sellers. That includes cross-shipping or return shipping costs as required by the seller's policies, something you agreed to by entering into the transaction.
I understand - it would seem that a purchaser of any good under the Gateway 2000 logic has a duty to inquire about additional terms
Again, not additional terms. "Additional or different terms" is a term of art that does not apply here. These are part of the original, bargained-for terms that the offeree simply did not read.
(i.e. you didn't just buy that can opener, you agreed to pay Black & Decker $10/month for 24 months for can-opener technical support.
That would be a different situation entirely, because a sales transaction is settlement in full of all accounts. If you are entering into a service agreement for additional consideration, that's a separate event and a separate contract.
As an aside, the comment that the computer in Gateway 2000 would be "useful only as a boat anchor" without its included software and so limiting ProCD to software wouldn't have helped the Hills is deeply wrong for obvious reasons
Be thankful for that presumption, though. Without it, courts would not hesitate to bring down the hammer on consumers--if you didn't need the software, you wouldn't really be harmed. The idea that the software is necessary is a fundamental component in most attacks on various EULA provisions where hardware was purchased with software attached. It is less important in pure software transactions.
