In the Explanatory Note to Contract 1 it was stated that ideally the end-user of software should receive, sign and return the Software Licence prior to receipt of the software.
However, for decades now we have been in the era of high volume, low cost off-the-shelf marketing of software programs (as well as games, videos and the like) which has necessitated more economically practicable and physically possible ways of obtaining the user/licensee’s “constructive” acceptance of the terms of the software license.
The industry thus devised the “shrink wrap” license, so named because originally the full licence terms were visable through a clear plastic sealed package surrounding the software CDs, DVDs or other multi-media discs packaging. Now it is more commonplace for a prominent notice to be placed on the package (instead of the full licence terms) advising that “breaking the seal” (usually breaking through the actual notice) to open the package will be deemed acceptance of the full terms of the software license to be found elsewhere (usually contained outside the software package or on the software supplier’s website).
In either case, it is essential that all the terms and conditions of the licence are somewhere accessible and can be read by the proposed user before the sealed package is opened, as the user cannot be bound by any term which cannot be read before opening. However, establishing constructive acceptance of any unilateral contract is never easy, particularly where liability is excluded or unreasonably limited, to say nothing of the difficulties of proving that the actual end-user did indeed break the sealed package. Thus weighing commercial practicability on the one hand against the necessity for licensing on the other, the shrink wrap licence offers some degree of comfort to the Licensor.
In an attempt to increase the likelihood of establishing that a proper, enforceable contract has been made upon the terms of a shrink wrap licence, as well as establishing direct contact with end-users, some licensors enclose “registration”, warranty or support cards with the software, which cards require signing and returning by the user/Licensee in order to receive, in the case of “registration” cards, certain additional information and/or benefits; and in the case of warranty or support cards, to receive that service from the Licensor.
The requirement for the user/licensee to sign and return such cards to the Licensor, re-affirms the user/Licensee’s acceptance of the terms of the shrink-wrap licence.
Contract 2 also contains an example of a typical Notice as well as the full software license terms.