ProCD v. Zeidenberg case brief

 ProCD v. Zeidenberg; (7^th Cir, 1996); CB 471; Notes 48

software database; different prices for consumer and commercial use.

• Facts: D bought product as consumer that P sold to commercial users for a higher price. Product in store had license not to use for commercial purposes, which popped up on screen each time it’s used.
• Info presented: 1) on an insert; and 2) once he loaded it up on his computer for the first time. Both said if problems, he could return. He can’t use the software without using the “I accept” button. Outside package said there were licensing agmts that must be agreed to that were inside. D bought 2 more packages. P suing for specific performance.
• Issue: Was the term of the license that talks about no commercial use part of the contract? the license was read after purchase, does that make it a proposal for an amendment?
• Breach: D buys software at consumer price, then sells info over the internet; license restricts use to non-commercial use.
• Holding: the court holds that there was notice of additional terms on the outside of the box, and after purchasing and reading the terms D had the option of rejecting the terms and returning the product.
• Rule: Acceptance is when D reads the terms and decides not to return.