939 F.2d 91 (1991)
FACTS
-P phones in order for computer programs; D promises to ship; P sends purchase order; D ships with invoice & box-top license; P pays (agreement said “opening box implies you accept the terms”)
- D argues that (1) D’s acceptance was expressly conditional on the additional terms of the box-top license and (2) P assented to the terms of the box-top license because they repeatedly bought products from them (therefore they had to have seen the box-top agreement even though it’s in the box)
HOLDING
Court says the acceptance was not expressly conditional so K under UCC § 2-207(1)
ANALYSIS
Look to UCC 2-207(2) for terms; the box-top license materially alters the agreement under UCC § 2-207(b), so the box-top license gets knocked out and gap fillers apply
RULE
Stating in an acceptance “opening box implies you accept the terms” is not clear enough to signify that the acceptance is conditional upon the other party’s assent (isn’t clear that you intend not to go forward without assent to the additional terms. The fact that you order product and see the box top license and then continue to order more product knowing about the box top license does not serve as assent to the term under 2-207 (3)
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