'First, Step-Saver would telephone TSL and place an order. (Step-Saver would typically order twenty copies of the program at a time.) TSL would accept the order and promise, while on the telephone, to ship the goods promptly. After the telephone order, Step-Saver would send a purchase order, detailing the items to be purchased, their price, and shipping and payment terms. TSL would ship the order promptly, along with an invoice. The invoice would contain terms essentially identical with those on Step-Saver's purchase order: price, quantity, and shipping and payment terms. No reference was made during the telephone calls, or on either the purchase orders or the invoices with regard to a disclaimer of any warranties.'When the defendant shipped the software to Step-Saver, they included a shrinkwrap license purporting to be effective upon the opening of the package, which disclaimed various warranties. Step-Saver subsequently sought to contest the enforceability of such disclaimers. The Court of Appeals for the Third Circuit held that the shrinkwrap license was not part of the contract established between the parties. In particular, they found that the contract was sufficiently definite without the terms provided by the shrinkwrap license, and moreover that Wyse Technology and Software Link, Inc. had not clearly expressed its unwillingness to proceed with the transactions unless its additional terms were incorporated into the parties's agreement. As such, the shrinkwrap license could not be incorporated into the contract under art. 2.207 of the Uniform Commercial Code as an addition to the original bargain.
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