Consumer Law, Warranties Is a non-cancellable lease considered an adhesive contract in CA?

[gl_rep]

I am a sales representative and lease terminals to businesses, in order for them to process gift/rewards cards.

The contract for the terminal is a 48 month non-cancelable lease. The leasing company is in NY, while my client base is in CA. In the lease agreement it reads as followed:
PURCHASE & ACCEPTANCE, NO CANCELLATION, NO WARRANTIES:You did not select, manufacture, license, supply or inspect the said equipment and have no expertise regarding the equipment. I have selected Vendor and the said equipment based on My own judgement and discretion. You are buying the said equipment at My request only for the purpose of leasing it to Me. I cannot cancel the lease agreement at any time for any reason. My duty to make the monthly lease payments hereunder is unconditional despite equipment failure, damage, loss, non-use of equipment, non-processing of transactions, success or failure of My business, or any claims I may have against the Vendor or Licensor. If I return the equipment prior to the end of my lease term, I am responsible for all Payments as stipulated under Schedule of Payments on reverse side.


A third party provides the service and prints the cards. In the service contract, it specifically states that the card color may vary, once printed on plastic cards. I have a customer who was unhappy with the gift cards printed. Since my customer was unhappy, I reprinted the cards and absorbed the additional cost to re-print. Once she received the second batch of cards, she waited over 1 month to tell me that she still wasn't satisfied and she requested for me to pick up the terminal and cards, because she didn't have time to deal with the situation. Her family also owns a printing company and she said that the printing was not to her standards. I reminded her that it is a 48 month contract for the service and a 48 month non-cancelable lease agreement. Later, I offered to re-print again, but she refused. Corporate even approved to have the company that prints for Starbuck's, print her cards at no additional cost, but she refused.

The customer's attorney stated that an adhesive contract will not hold in CA. Please advise.

 

[seniorjudge]

The term is contract of adhesion and what you are describing sounds like one to me.

 

[gl_rep]

seniorjudge,

Thank you for your quick response. It's interesting that the "attorney" used the incorrect term. In the state of CA, is a contract of adhesion non-enforceable? Is a small claims judge likely to hear my case or would it be dismissed?

 

[rando]

Let me start by saying that I am not a lawyer, though I am in law school. Everything below is "my understanding of the law" and should be double-checked with a "real life" lawyer.

An adhesive contract is a "take it or leave it contract." This is similar to the contract you signed for your cell phone plan or even the one you agreed to when you signed up on this forum. Adhesive contracts are enforceable in California.

Like most rules, there are exceptions. In California, one way a contract is void is if it is "unconscionable". Unconscionable contracts need to be both procedurally unconscionable and substantively unconscionable. In this case, I dont see why the contract is substantively unconscionable. Also, it is most likey not procedurally unconscionable because you didnt have greater bargaining power than the other side. The typical example of a procedurally unconscionable contract is when a prospective employer tells a prospective employee "this is the agreement, take it or leave it". In this case, the employer has much more leverage because they can go find another similar employee. In your case, the client could have walked out of your business and gone to the next gift car processor (or whatever it is your business does).

I don't believe your contract is void. Also, I have heard both "adhesive contract" and "contract of adhesion" terms used.