(a) A person or electronic agent has an opportunity to review only if the record or term is made available in a manner that:

(1) should would call it to the attention of a reasonable person and permit review:, or

(2) in the case of an electronic agent, would enables a reasonably configured the electronic agent to react.

(b) If a record or term is available for review only after the a person becomes obligated to pay, that the person has an opportunity to review only if the person has a right to a refund if it rejects the record or term.

Committee Action: Reviewed without changes.

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

1. General Concept. "Opportunity to review" is a precondition to manifesting assent. Unless a party had a prior opportunity to review, actions purportedly manifesting assent to a record are ineffective.

What constitutes an opportunity to review may differ depending on whether one deals with a paper record or electronic terms. If access to the record is exceptionally cumbersome and difficult to achieve, there may be no opportunity to review.

On the other hand, the mere fact that a person chooses to forego or ignore the opportunity and proceed with a transaction does not mean that there was no opportunity to review. Thus, for example, contract terms presented to the party during an over the counter transaction or conspicuously made available in a binder as required for some transactions under federal law give an opportunity for review even if the party does not avail itself of that opportunity. This is not changed by the fact that the party may desire to hurry through and complete the transaction unless, of course, the other party uses undue pressure to cause that hurry or to force the party to not review the record.

2. Refund. The opportunity to review can come at or after payment. If it follows payment, there is no opportunity to review for purposes of this Article unless the party can return the product an receive a refund if it declines the terms of the record. This refund right does not exist in current law as a condition to the enforceability of records presented after payment. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); Hill v. Gateway 2000, Inc., 1997 WL 2809 (7^th Cir. 1997). It creates important protection for the licensee and, in effect, requires that the party be placed back into the position it would have been in had the record been presented prior to payment.

Illustration: Sam acquires a copy of a movie from Blockbuster on a three day rental. When Same places the copy on screen, a statement appears that the copy is for home and personal use only, and not for display to an audience for a fee. Sam is bound as a matter of contract by this limitation if he had a right to return the copy for a refund without viewing the movie because he rejected the terms. The restriction may also be effective as a matter of direct copyright law.

While this section does not create an obligation to make a refund, this Article conditions the creation of terms of contract between the licensor and the licensee that arise on the existence of that opportunity. Failure to provide a refund is not a breach of contract, but results in failure of the terms to become part of the bargain. Under Section 2B-617, a retailer is required to refund the price paid if an end user declines the publisher's license. That right to a refund, if and when it occurs, fulfills the refund option stated here.

3. Modifications. Ideas of a refund opportunity associated with the opportunity to review do not alter law relating to the modification of an agreement of the provisions in Section 2B-207 dealing with commercial contracts where parties begin performance in the expectation that a record containing the contract terms will be presented later and adopted. In these cases, general contract law principles protect the party presented with the record.

4. First User. Typically, the refund is present only for the first user of the information, although the rights owner may also seek contractual relationships of this type with subsequent parties. In general, subsequent parties are bound by the terms of the first contract without assent to it in the sense that they are not authorized to exceed the limitations of the first agreement. If they do so, however, unless they assumed the obligations of the first contract, the remedy is a claim for infringement.

Illustration: Producer transfers a copy of a musical work to User, subject to a license that restricts use to home use only. The license terms are presented after delivery of the copy. User can either assent to the license or obtain a refund. It assents. User later transfers the copy to Jones. Jones need not receive a refund right. If Jones uses the music in a commercial context, the license is breached. Producer has contract recourse against User. Producer may also have a copyright claim for use (performance) that was unauthorized.

[B. Electronic Contracts: Generally]