|This Contract is used to license high-volume, low cost off-the-shelf software which is now the most common mode of mass-market distribution of software, where it is neither economically practical nor physically possible to obtain the signature of the end-user to a conventional license in order to create a valid contract. In such circumstances ‘constructive acceptance’ of the License terms is necessary.
The original method used to achieve ‘constructive acceptance’ (which is still used) is the placing of the software disk inside a package around which the software license is placed under a clear, sealed wrapping (‘shrink-wrap’) through which all the terms and conditions of the license can be read and a statement that ‘breaking the sealed wrapping’ will be deemed ‘acceptance’ of the license. Another commonly used method is placing the software disks in a sealed envelope and placing a label over the envelope which states that ‘opening the envelope’/’breaking the label’ will be deemed acceptance of the software license accompanying the software which license is usually contained within the same box or package as the envelope containing the software disks. This contract can be used in both the above circumstances.
Establishing “constructive acceptance” of a unilateral contract is never easy. To further increase the evidence that the license conditions have been accepted, some Licensors also place the terms of the software license in the loading screen of the software itself, as well as enclosing “registration”, warranty or support cards for end-users to complete and return to the Licensor. This also serves to identify and establish a known customer base to whom update and marketing information can be sent.