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Following are draft sections from the new proposed Article 2B of the Uniform Commercial Code that will validate shrinkwrap and "I accept" electronic license agreements. These paragraphs are from a February 1996 draft which reportedly has been reorganized, but still contains these sections.
Please visit the Consumer Project on Technology for a consumer point of view on this proposed Article. For a software industry perspective, visit the 2BGuide.
(a) Except as otherwise provided in subsection (b) and in section 2B-309 [Conflicting Standard Terms], a party adopts the terms of a mass market license if, before or within a reasonable time after beginning to use the information pursuant to an agreement, the party signs or otherwise by its behavior manifests assent to a mass market license.
(b) Terms adopted under subsection (a) include all of the terms of the [license] without regard to the knowledge or understanding of individual terms by the party assenting to the form. However, except as otherwise provided in subsection (c), a term does not become part of the contract if:
(1) the term creates an obligation or imposes a limitation that is not consistent with customary industry practices and that a reasonable licensor should know would cause most licensees in transactions of similar type to refuse the contract if the term were brought to the attention of the licensee; or
(2) the term creates an obligation or imposes a limitation which conflicts with the negotiated terms of the prior agreement of the parties relating to the transaction and the party assenting to the form does not manifest assent to that term.
(c) A term excluded under subsection (b) becomes part of the contract if:
(1) the term creates rights for or restrictions on the licensee which give the licensee no fewer rights than would be given to a purchaser at a first sale under federal intellectual property law; or
(2) the licensee manifests assent to the term.
(d) A term of a mass market license that does not comply with a provision of this article which expressly requires conspicuous language or assent to a particular term does not become part of the contract.
(a) If the parties exchange standard forms that purport to contain the terms of the agreement and the forms contain varying standard terms, the varying standard terms do not become part of the contract unless the party claiming inclusion establishes that:
(1) the other party knew of and manifested assent to the particular term; or
(2) the records of both parties agree in substance with respect to the particular term.
(b) In cases governed by subsection (a), the terms of the contract are:
(1) standard terms on which the standard forms do not conflict;
(2) standard terms included under subsection (a);
(3) other terms, whether or not contained in a record, to which the parties have agreed; and
(4) supplementary terms incorporated under any other provision of this article.
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Last updated: November 13, 2001