TOSAmend Automates Counteroffer Terms For Service Agreements

First time accepted submitter BigSlowTarget writes "Are we simply subject to whatever a software provider demands of us in their clickthrough TOS agreement or are they real contracts where we can counteroffer our preferred terms and expect a refund if they are rejected? One blogger has come up with an applet to change TOS agreements and automatically submit the changes for approval (or rejection). Even he is not sure of the legal standing for the offer, but with these contracts so common they have been featured on South Park the issue certainly could be coming to the courts soon."

Comments

Let's run with this idea!

[laird]

I love the idea of this. I have to wonder, though - does sending a POST message to a web server have any legal meaning? It'll just end up in some web server log, ignored by the app and never notified to a person, so I'd think it wouldn't be a very strong argument. Now, if your app could figure out where to email a modified TOS, that would be much stronger, but of course that's a lot more work.

Realistically, though, no consumer web site can afford to negotiate individual contracts for individual users, so the best you can really achieve would be to get them to change their standard TOS to have better terms. To that end, I would suggest that you could extend this widget so that it not only nofied the site owner, but also collected a database of TOS objections. Imagine if you could say "10,000 people objected to site X's standard TOS, and 75% of the objections were to paragraph Y." That might pressure companies to change their TOS.

I'd be happy to build and host the server side, if you'd like. I don't know much about client side JavaScript, but servers are easy. :-)

Obviously No Strong Legal Standing

[Nivardus]

Though this is a fun concept, I'm sure it'd have a stronger legal standing if it sent revised contracts to sites through a reliable and expected route such as email rather than an unknown and nonstandard HTTP argument. You might as well submit a revised physical contract by wadding it up into a ball and throwing it onto the lawn of the agent that gave it to you, continuing merrily as if they accepted it. Whether a script would be able to find reliable routes is another issue.

Re:Obviously No Strong Legal Standing

[QX-Mat]

The OP is right... but it's interesting.

For ordinary agreements you need offer (contractee) and acceptance (contractor), in a ToS acceptance and assent to the terms is implied by some form of conduct. TOSAmend seeks to make a unilateral contract (one to the world) bilateral (between parties) with no real chance or form of agreement. I believe it can be construed as an unaccepted counter offer. In such cases the method of communicating acceptance/rejection is important. Merely the act of making a counter-offer rejects the original offer ('destroying' it).

Website ToS are unilateral agreements. Your acceptance is your participation on a website be it subscribing, visiting or checking a box that signs your soul away. The obvious basis is that you cannot accept an agreement you have not agreed, nor can someone accept an agreement you have not proposed - acceptance requires a positive act on behalf of the contractor. All in all this won't stand up in a real court... in a TOSAmend user's favour.

However, I find the interesting bit is what happens next. If you don't assent to the terms or the original unilateral contract, and it is clear from your conduct that you have not (striking out terms etc), and managed to propose and communicate a counter offer, is the contractee bound by any of the original terms?

In common law you have to assent to terms. Ambiguity and unfairness are often side with the consumer in litigation. Unfair unilateral contracts are the most unreasonable of them all. A website trying to enforce a unilateral contract where acceptance was clear through conduct might find themselves with another burden: proving the contract the end user saw and assented to was their unmodified copy. Post form, text input box, and server-side string match of the accepted contract and original would easily solve the problem. In the mean time... don't let the user interact with the website... at all.

Just thinkin'

Matt

Re:Obviously No Strong Legal Standing

[mikelieman]

The OP is right... but it's interesting.

For ordinary agreements you need offer (contractee) and acceptance (contractor), in a ToS acceptance and assent to the terms is implied by some form of conduct. TOSAmend seeks to make a unilateral contract (one to the world) bilateral (between parties) with no real chance or form of agreement.

I would say that the website's permitting him to log-in is a pretty clear sign of acceptance.

Re:Interesting

[snowgirl]

My entire response to your post: "do not take your legal advise from the internet."

Battle of the forms

[Animats]

This has been tried. See the story of "TakemymoneyandnoEulasapply@aol.com." That seems to have had no effect. For an overview of current law, see this legal commentary on terms of use.

When companies have tried to enforce the provisions of an EULA against consumers, the courts have not been that supportive. This usually comes up involving mandatory arbitration clauses and anti-class-action provisions. PayPal lost in court on that one.

Re:Nothing New

[the_Bionic_lemming]

Also, don't you have to be sober when you agree to a contract for it to be binding?

I can easily demonstrate that fully 9/10's of all TOS's I clicked thru would be invalid if that's so.

Happens to us

[Adam Appel]

We have a service based business and we have a client that every year crosses off parts of our TOS and sends it back. We ignore it. If you don't agree to our TOS or want to change it in any way you just don't get the service. as it is they simply cross the part off their risk management doesn't like (hold harmless and limit of liability) and send it to us. We sign nothing. Our insurance mandates our clients agree to those two clauses or they are not covered, it's that simple.

Stupid, stupid, stupid

[Dogtanian]

This TOSAmend is total BS, which is why I modded it as "stupid" in the firehose.

Quite true. This is merely the automation of the kind of utterly pointless (and worthless) stupid ideas that computer nerds come up with to play or use the legal system, because they think they know how it works. Except that they don't and- as I've said before- the only way to know how legal systems work is to find out.

The "amended" proposal pretty much will never be seen - the recipient's mail program sends it straight to /dev/null

I'm not sure what the logic is supposed to be here anyway. They send it back via POST headers or something and this gives them the opportunity to see it and respond manually? Or they're deemed to have accepted the modified terms because they were passed back via the mechanism normally used to accept them?

Except that would one *really* expect to receive a modified offer in this manner and would that stand up in court? I don't know the answer, and unless this guy does, the tool is pointless. Oh, but...

Full Disclosure: I am an web app builder, not a lawyer, so I am unsure where using TOSAmend to amend terms of services would (or would not) hold up in court as a legally-permissible way of modifying a contract. I intend this as a proof of concept

So, he really doesn't have a clue, and I don't think this guy knows what the "concept" is meant to be anyway. As I said, it's just the automation of the kind of stupid, muddled pseudo-legal idea we see on Slashdot all the time. Nothing to see here.

Re:Don't count on it.

[Wrath0fb0b]

In a pre-web world, I wonder how much obligation is placed on say, a bank teller, who fails to notice a crossed-out term in a bank account obligation, and how that would translate to an online world. Best, Kevin

None. Acceptance of a contract has to be done knowingly. When you make any modification to an offered contract (e.g. by strikeout), that means you've rejected the offer and made a counteroffer. See, Hyde v. Wrench (1840) 3 Beav 334. The bank teller would then have to actually have to affirmatively know about and accept the counteroffer in order to create a binding contract.

Re:Don't count on it.

[bws111]

And be AUTHORIZED to accept a counteroffer.

All contracts are negotiable

[Anon-Admin]

I dont see how this will have any standing. I could be wrong IANAL but I am related to a few. ;)

Here is how it works with software licensing agreements. Should you ever decide you want to change the terms.

#1) Print the licensing agreement out.
#2) Change some wording in the agreement. Especially the section about being able to sell copies.
#3) Write a nice letter stating that you have amended the agreement and have sent them a copy for approval. Make sure you include the statement "Failure to respond in 30 days is acceptance of the amended terms."
#4) Send the letter certified mail return receipt requested.
#5) Wait!!!

In most cases they will send you a letter back stating that they agree with the terms, that the terms are unacceptable, or that they do not allow negations of the contract.

#1) They agree with the terms: WOOO HOOO!!! Start selling under the new license and PROFIT!
#2) The terms are unacceptable: Normally comes with what terms they are willing to budge on and which they are not. If you agree, write them back and use the software.
#3) Negations are not allowed: Demand a refund of all monies paid for the product.
#4) 1 out of 10 do not respond: Provided your change allows for the re-distribution of the product, PROFIT!

Most consumer contracts a Contract of Adhesion

[hwstar]

A consumer contract for a cell phone, or other consumer items is a contract of adhesion and is presented on "take it or leave it" terms with no chance of modification. Strike outs will not be accepted as they typically have to be reviewed by a legal team, and the cost to do so exceeds the value of the new business in most cases. See: http://en.wikipedia.org/wiki/Contract_of_adhesion#Contracts_of_adhesion for more details.

Re:Nothing New

[sjames]

Bad analogy since it's not a transaction. I'll use a real world example:

Power company shoves a legal agreement across the counter to me. Clearly, I am the first person to actually read it since it doesn't even manage to use the pronouns you and us consistently. I strike and initial the screwy parts, and ask the representative to initial as well. They accepted my amendments by opening the account anyway. I did get electricity.

Legally speaking, there were two conscionable possibilities there. Either the modified agreement was in place or there was no agreement in place and customary terms for a transaction apply instead (that is, they provide a fit product or service and I pay the advertised price for it).

Re:Don't count on it.

[aztracker1]

So, it should be illegal to bind someone to a contract unless both parties have a lawyer present to review it.

Re:Nothing New

[bws111]

No, because you have to be competent to make an agreement. A machine that is not designed to recognize, understand, and analyze unexpected counteroffers is not competent to make a decision, therefore any such 'agreements' are probably non-binding.

Of course I read the TOS ...

[Alain Williams]

and a right pain it is too. I did not like the article saying:

Have you ever read any of the terms of service documents you agree to when you sign up to your favorite web apps?
Of course you don’t.

If I don't like them, then I don't click ''I agree'' and go somewhere else or don't use the service. If the TOS are too complicated then I don't accept & don't use them. That is why I don't use Amazon, Pay Pal, Skype, ... I did not like their TOS.

But I do appreciate that most people do not have the time or inclination to understand these things. The problem is bigger than that, the TOS for basic services (eg: electricity, water, ...) can also be one sided, but tend not to be as bad. In the UK consumer legislation has taken out the worst from these and the courts tend to not allow them to get away with some of the other bad clauses; but the service companies still use them to try to bluff the consumer to allow them to over charge them or provide a crap service (which is often what it is all about).