not be modified by any subsequent purchase order. Thus, the Dealer Agreement made clear that its terms must be read together with any subsequent purchase order.
Finally, in Section D of Article II, the parties stated that "the terms and conditions [of the Dealer Agreement] are agreed to apply to any sale by Manufacturer of Products to Dealers." (Emphases added.) The term Products was defined in the Dealer Agreement as those products which appear in Exhibit B.
Although the parties did not raise this issue, the Court has also examined the possibility that Norman was not acting as a Dealer because the products subject to the Order were not of the type found in Exhibit B. However, a review of both versions of Exhibit B indicates that the equipment purchased pursuant to the Order was intended to be governed by the Dealer Agreement. The equipment Norman purchased pursuant to the Order was the type of equipment maintained on the price lists.
For all of these reasons, the Court finds that the products purchased pursuant to the Order were intended by the parties to be governed by the terms of the Dealer Agreement. As a result, the transaction is subject to the forum selection clause found in the Dealer Agreement.
IV. VALIDITY OF THE FORUM SELECTION CLAUSE
In the alternative, Norman argues that even if the forum selection clause is applicable to this dispute, the Court should refuse to enforce it. Norman contends that forcing it to pursue its claim in California would be so manifestly and gravely inconvenient to Norman that it would be effectively deprived of a meaningful day in court.
In M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 1913, 32 L. Ed. 2d 513 (1972), the Supreme Court held that forum selection clauses are prima facie valid and should be enforced unless the resisting party can show that enforcement would be unreasonable under the circumstances. The Court identified certain circumstances where a forum selection clause should be set aside. For example, such a clause should not be enforced where it is procured by fraud, undue influence or overweening bargaining power. 407 U.S. at 12, 92 S. Ct. at 1914. In addition, a forum selection clause should not be enforced where enforcement would contravene a strong public policy of the forum in which the suit is brought or where "the chosen forum is seriously inconvenient for the trial of the action." 407 U.S. at 15, 16, 92 S. Ct. at 1916 (emphasis in original).
Since M/S Bremen, enforcement of forum selection clauses has been the rule rather than the exception. Friedman v. World Transportation, Inc., 636 F. Supp. 685, 689 (N.D.Ill. 1986). Although M/S Bremen was an admiralty case involving international parties, federal courts have consistently applied its analysis to cases involving only domestic parties and causes of action other than admiralty. Friedman, 636 F. Supp. at 689.
Norman does not argue that the forum selection clause was procured through fraud, undue influence or overweening bargaining power, nor does Norman argue that the clause would contravene a strong public policy of the forum state. Rather, Norman argues that the chosen forum for the action, California, is seriously inconvenient. Norman cites three bases for this inconvenience: the necessity of customer witnesses, the necessity for the trier of fact to view the computer system, and the costs involved in transporting the computer equipment and witnesses to California.
First, Norman asserts that, although each party may have an equal number of employee witnesses to present at trial, Norman has the added burden of presenting the testimony of customer witnesses. Norman contends that the "only" effective way of describing the problems experienced by its customers would be to present live testimony. Further, Norman contends that it is "highly unlikely that these witnesses would voluntarily appear in a California court." However, the mere loss of live testimony does not ordinarily constitute such "serious" inconvenience as would warrant setting aside a freely bargained for forum selection clause. See Walker v. Carnival Cruise Lines, Inc., No. 87 C 115 (N.D.Ill. Dec. 12, 1986). Although the testimony may not be as effective, the testimony of customers can be presented through depositions, perhaps even video depositions. Moreover, the Court cannot rely on Norman's conclusory statements that it is "highly unlikely" that these witnesses would refuse to voluntarily appear.
Norman also reasons that the trier of fact must view the computer system and perhaps even visit Norman's offices. In the only case cited by Norman in which a forum selection clause was set aside, General Engineering Corp. v. Martin Marietta Alumina, Inc., Civil No. 1984/227 (D.V.I. Feb. 13, 1986), the court did rely on the necessity of viewing the site in its decision to set aside the clause. Martin Marietta, however, involved space limitations on a construction site. The fact situation which created the specific need to view the site in Martin Marietta does not exist in the present case. It is doubtful that an on-site inspection of computer equipment would substantially assist the trier of fact's decision-making process. Here, Norman has failed to demonstrate why such evidence cannot be effectively presented through the testimony of witnesses and the use of photographs or other exhibits.
Finally, Norman argues that the costs involved in transporting the computer equipment and witnesses to California would be prohibitive. Norman further states that it was not specifically compensated by its Dealer Agreement for any inconvenience suffered as a result of being forced to litigate in California. However, Norman has presented no evidence from which the Court can conclude that the forum selection clause was not an integral part of the Dealer Agreement. The Court fails to understand why there should be any independent consideration for the clause. In agreeing to the forum selection clause, Norman could not have been unaware that some additional costs would be associated with litigating a dispute in California. Furthermore, Article VII, Section B (6) of the Dealer Agreement specifically provided that:
In the event a dispute should arise between the parties hereto which results in litigation, the prevailing party in any such litigation shall be entitled to reasonable attorney's fees and costs as determined by the Courts.
Should Norman prevail in the litigation, it will apparently be entitled to reimbursement for its reasonable attorney's fees and costs.
For these reasons, the Court finds that Norman has not carried the "heavy burden," see M/S Bremen, 407 U.S. at 17, 92 S. Ct. at 1917, of showing that California is a "seriously inconvenient" forum.
Because the Court finds that the Dealer Agreement was intended to govern the purchase of equipment in question and because Norman has failed to show that enforcement of the forum selection clause would be seriously inconvenient, Monitor's motion to dismiss is granted.