(a) A person or electronic agent manifests assent to a record or term thereof if, acting with knowledge of, or after having an opportunity to review, the record or term, it:

(1) authenticates the record or term;, or

(2) engages in affirmative conduct or operations that the record conspicuously provides, or the circumstances, including the terms of the record, clearly indicate, will constitute acceptance, and the person or electronic agent had an opportunity to decline to engage in the conduct or operations.

(b) Mere retention of information or a record without objection is not a manifestation of assent.

(c) If this article requires assent to a particular term in addition to assent to a record, a person or electronic agent does not manifest assent to that term unless there was an opportunity to review the term and the manifestation of assent relates specifically to the term.

(d) A manifestation of assent may be proved in any manner, including by a showing that a procedure existed by which a person orf an electronic agent must have engaged in conduct or operations that manifesteds assent to the record or term in order to proceed further in the use it made of the information or informational property rights.

Uniform Law Source: Restatement (Second) of Contracts § 211.

"Authenticate". Section 2B-102. "Conspicuous". Section 2B-102. "Contract". Section 2B-102. "Electronic agent". Section 2B-102. "Information". Section 2B-102. "Party". Section 1-201. "Record". Section 2B-102. "Term". Section 1-201.

1. Reviewed without substantive changes

1. Indicia of Agreement. Manifesting assent has several distinct functions, depending on the context. One function is as an indicia of agreement to or acceptance of a contractual relationship. Assent to a record frequently indicates not only assent to the record, but also an intent to accept the agreement itself. That is implicit in general contract law. The fact that Article 2B identifies additional functions of the concept of manifest assent, that is the concept of being bound by objective indications of assent through conduct or signature, does not alter this underlying tradition. Manifesting assent is one, but not the only way to indicate acceptance of, or agreement to a contractual relationship.

2. Adopting a Record. Beyond this, in this Article and in general law, manifest assent also has a role in determining whether or when a party adopts the terms of a record as defining the terms of the contractual relationship. The term is used in the Restatement (Second) of Contracts § 211 and in the UNIDROIT Principles of International Commercial Contract Law in this sense. It defines when a party is bound to the terms of a standard form record. In these other bodies of law, the term is used, but not defined. In Article 2B, it is used in the same way, as one method of indicating assent to a record as defining the contract, but this Section and Section 2B-112 provide important procedural and substantive standards indicating when assent can be said to have been given to a record. The effect of assenting to, or otherwise accepting, a record is spelled out in Section 2B-207 and Section 2B-208.

The recognition of objective manifestations of assent is especially important in electronic commerce. In that environment, direct contact between individuals is less common; information providers must rely on actions as confirming the existence or non-existence of a contract, and the acceptance or rejection of contract terms.

3. Enforceability of Some Terms. This Article also uses the concept of manifest assent with respect to the enforceability of some particular terms of a record. Here, by requiring affirmative conduct (or signature) oriented to the particular term, manifesting assent creates an enhanced standard of protection as compared to more traditional standards of conspicuousness. Manifesting assent is the higher standard; it requires both that the term be called out and that there be affirmative conduct referring to the term itself. A conspicuous term binds a party so long as the person ought to have noticed the term. In both cases, the calling it to the attention function focuses on whether the term would or ought to be noticed by a reasonable person.

4. Objective Indicia of Assent. "Manifesting assent" entails objective indicia of assent to, or adoption of an agreement, a record, or a term in a record. Objective manifestations of assent bind a party to the record if there was an opportunity to review the record and an affirmative act indicating assent. In this Article, however, three elements are required before the objective manifestation constitutes assent.

a. Authority to Act. The person manifesting assent must be one that can bind the party being charged with the benefits or restrictions of the agreement or the record. This Article does not generally address questions of agency law. See § 1-103. If a party proposing a record desires to bind the other party, it must establish that the person who acted for the entity to be bound had authority to do so or, at least, that the conduct of that entity accepted the benefits of the contract and, thus, ratified the conduct of the individual. Of course, however, if the person who acted did not have authority to contract and the contract was not ratified or otherwise adopted , there may be no license. Often, if this is the case, use of the information infringes a copyright.

Assent by an unauthorized party is not assent as to the supposed principal unless concepts of apparent authority apply. Additionally, there must be a link between the person who has the opportunity to review the terms and one whose acts constitute assent. Thus, an email sent to the company at large, or to the company's computer, does not trigger assent to the email unless it comes to the attention of one who can and does act to commit the company to a binding assent to terms under rules of attribution or estoppel. Of course, a party with authority to act can delegate that authority to another. Thus, a CEO may implicitly authorize her secretary to agree to a license when she instructs the secretary to sign up for Westlaw online or to install a newly acquired program that is subject to a screen license.

Questions of this sort lie in agency law as augmented in this Article. In appropriate cases, Article 2B rules regarding attribution play a role in resolving the issue of whether the ultimate party is bound to the contract terms. Section 2B-115 spells out questions of when, in an electronic environment, a party is bound to records purporting to have come from that party.

b. Affirmative Conduct. There must be an affirmative act to constitute assent. This requirement flows from the concept that manifestations of assent refer to objective indicia of assent. A signature or other authentication, of course, manifests assent, initials attached to a particular contract term assent to that term. So too, in the electronic world would an affirmative act figuratively pressing (e.g., clicking) a displayed button indicated as indicating assent and acceptance of a particular term or an entire record. Assent does not require a formal event, although notarization or other formalities certainly qualify.

This Article rejects the idea, suggested in some reported decisions, that a mere failure to object constitutes assent to a record. Objective indicia of assent under this Article requires an affirmative act that the circumstances or the record clearly indicate will have that effect. A failure to object is not assent, but affirmative use of the information or access to it can be assent if that act was defined as sufficient in the circumstances.

c. Opportunity to Review. Assent must follow an opportunity to review. Assent requires proof that the party actually read the terms to which it assents. "Opportunity to review" is a defined in Section 2B-112. It requires that the record be called to the party's attention and be available for review. The terms need not all be in a single record, so long as their location enables review if the assenting party so desires. Thus, a hyper-link reference to a license actually contained in a different record would, all other conditions being met, satisfy the concept. However, the concept excludes devices or schemes designed to misled or conceal, rather than to obtain assent

Illustration 1: In its pre-registration information screen, NYT on-line states: "Please read the license. Click here to review the License. If you agree to the license, indicate your agreement by clicking the "I agree" button. If you do not agree to the License, click the "I decline" button." The underlined text is a hypertext link which, if selected, displays the license.

I Agree I Decline

Here, a party who indicates "I agree" manifests assent to the license. Its conduct in going forward to use the information also indicates it accepted the contract and adopted the terms of the license.

5. Assent to Terms or Records. The section distinguishes assent to a record and, if required by other provisions of this article, assent to particular terms. Assent to a record involves procedures generally with respect to the record, while assent to a particular term, if such is needed, occurs only if the actions relate to that particular term. One act, however, may relate both if the record conspicuously so provides:

Illustration 2: A license, which is available and readable on the outside of the envelope containing the diskette, provides:

OPENING THE ENVELOPE CONTAINING THE DISKETTE WILL CONSTITUTE YOUR AGREEMENT TO THE LICENSE WHICH IS CONTAINED ON THE OUTSIDE OF THE ENVELOPE.

WE CALL YOUR ATTENTION SPECIFICALLY TO:

Contract Term No. 5, Precluding use at home, and

Contract Term No. 16, Imposing a $100 annual fee if you choose to use the help line.

In this case, manifesting assent is an enhanced form of conspicuousness in that it requires an affirmative act with respect to a clause or term.

6. Other Means of Assent. Manifestation of assent is not the only way in which parties define the terms of their deal. This Article does not preclude or alter traditional recognition of other methods of assent or agreement.

Clear indications that a product has specific characteristics can become part of an agreement even without a formal manifestation of assent; they define the bargain itself. A party can license a database of names and addresses of intellectual property attorneys and rely on the fact that the product need only contain intellectual property attorneys since this is a basic term of the bargain without its obtaining manifest assent to that part of the deal. The nature of the product defines the deal itself in many cases if the party has notice of the terms, the terms are part of the bargain, or other methods are used to call attention to the term and the party accepts it.

Illustration 3: A copyrighted software package states: "THIS PRODUCT IS LICENSED FOR CONSUMER USE ONLY." It does not specify that opening the product or using it accepts this term. The circumstances here clearly indicate that the product is licensed solely for consumer use. The terms are effective as an inherent part of the agreement, without requiring pro forma language in a record or conduct accepting that record.

Similarly, in many cases, copyright or other intellectual property notices or restrictions may be effective restrictions on the rights to use a product, regardless of whether there is a manifestation of assent as provided for under this Section. For example, common practice in video rental arrangements places a notice on screen of the limitations imposed on the customer's use of the video under applicable copyright and criminal law, such as by precluding commercial public performances. The enforceability of such notices does not depend on compliance with the assent provisions of this Article.

7. Proof of Terms. Of course, it will be necessary for the party, if it relies on the terms of linked text or other electronic records, to prove the content of the text at the time of the licensee's assent. One way of doing so is to retain records of the content at all periods of time or maintaining a changes occurred in particular records.. The issues of proof, while potentially difficult, are matters of evidence law and reflect ordinary problems encountered in dealing with proof of electronic records.