The following is for informational purposes, and not meant to be legal advice.
With respect to shrink wrap licenses in the United States, the absence of contract terms on the outside of a box containing software is not material if every box containing the software declares that the software comes with restrictions stated in an enclosed license. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1450 (7th Cir. 1996).
In ProCD, the court accepted the argument that placing all contract terms on the outside of a box containing software may be impractical. The court held that a purchase transaction may be valid even though it involves the exchange of money prior to the communication of detailed terms since the software could not be used unless and until the buyer was shown the license and manifested an assent. Id at 1451-52.
The court stated that a vendor may invite acceptance by conduct, and propose limitations on the kind of conduct that constitutes acceptance. A buyer may accept by performing the acts the vendor proposes to treat as acceptance. ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure. The buyer had no choice, but to read the license. The license splashed on the screen, and the buyer could not proceed without indicating acceptance. Id at 1452.
The court concluded that shrink wrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (i.e. if they are unconscionable). Id at 1449.
Comment Preview