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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