To use the ticket is to accept the terms, even terms that in retrospect are disadvantageous. Similarly, the Court explained, when one buys a concert ticket, the back of the ticket states that recording the show is prohibited. To attend the concert is to agree to that restriction. If every patron had to sign an agreement with specific terms before paying for the ticket, this cumbersome way of doing business would result not only in long lines but would nix the sale of tickets by phone or electronic data service. In describing the software industry, the Appeals Court noted that only a minority of sales take place over the counter, where there are boxes to peruse.
Much software is ordered by phone, or by Internet users who download the software electronically.
The result would be that the vendor has made a broad warranty and must pay consequential damages for any shortfalls in performance. The Court noted that the vendor, ProCD, as maker of the offer to sell, may invite acceptance by conduct, and may propose limitations on the kind of conduct that constitutes acceptance. A buyer may accept that offer by performing the acts the vendor proposes to treat as acceptance. And that, concluded the Court, is what happened. ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure, the Court said.