In Arizona Retail Systems, Inc. v.
Software Link, Inc., the United States District Court for the District
of Arizona found a shrinkwrap license to be both enforceable and non-enforceable.
In the initial transaction, the plaintiff telephoned Software Link, Inc
to inquire about a specific software program. Software Link then
sent two copies of the software, an "evaluative" copy and a "live" copy.
The live copy, which Arizona Retail Systems used after first testing the
evaluative copy, had a shrinkwrap license attached to it which purported
to come into effect upon the opening of the package. The court held
that in these circumstances the shrinkwrap license was enforceable.
Subsequently, Arizona Retail Systems ordered several copies of the software
over the telephone, much in the same manner as occured in Step-Saver
Data Systems, Inc. v. Wyse Technology and Software Link, Inc. 939 F.2d
91 (3d Cir. 1991). In this situation the court found, following
the Step-Saver decision, that the shrinkwrap license did not form part
of the contract. Specifically, the court relied on section 2-209
of the Uniform
Commercial Code, which requires there to be assent to any proposed
modifications of a sufficiently concluded contract. In finding that
there was no assent the court held that: 'assent must be express and cannot
be inferred merely from a party's conduct in continuing with the agreement.
ARS, like Step-Saver, did not expressly assent to the modification and
the Step-Saver court made clear that merely continuing with a contract
does not constitute assent'.
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