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TOSAmend Automates Counteroffer Terms For Service Agreements 138

Posted by timothy
from the cross-out-with-a-broad-brush dept.
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."
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TOSAmend Automates Counteroffer Terms For Service Agreements

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  • You can amend any contract with your own terms as long as they are accepted by all parties. The chances of a company accepting the changes are nearly non-existent, though. You also won't be getting any refunds, especially since most of these TOS issues are with sites that provide free services.
    • Depending on how thorough the company is, the SOP with paper is to just go through the document and strike (with a pen) the stuff you don't agree with, then sign it and hand it back to them. Chances are, they won't notice. Sometimes they notice and don't care. Very rarely, they notice and do care.

      When it comes up, however, if they signed it too, then you're in the clear. If they didn't read your modifications, they're no better off than if you didn't read the contract to begin with.

      The problem is whether an

      • by owocki (2469504)
        Sanity, As my post says, I'm unaware of the legal precedent, so I can speak only as a technician: The analogy that I'm working with is that the recipient web server has the obligation of validating the TOS POST parameter and the entire POST form in order to accept (or reject) the users registration on behalf of the owners of their company. 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 wo
        • 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.

          • by bws111 (1216812) on Saturday September 24, 2011 @01:17PM (#37502730)

            And be AUTHORIZED to accept a counteroffer.

          • by AmiMoJo (196126)

            So say you sign up to PayPal online and alter the contract before submitting it, then their web site allows you to create an account and log in. Later it comes up in a legal dispute. Who is in the wrong? You submitted the counter offer via a standard web API in a browser. Is it your fault for not making sure they knew about it or their for not bothering to check for changes?

          • Huh. It doesn't help that there's their signature on the contract with mine?

        • by bws111 (1216812)

          Have you checked out the laws on practicing law without a license? It seems to me you are offering legal advice (use this tool and you can modify a legal agreement), but don't really know even the most basic things about law.

          • So, it should be illegal to bind someone to a contract unless both parties have a lawyer present to review it.
          • by rtb61 (674572)

            More correctly any contractual conditions beyond the point of sale, the full initiation of a contract, need to take into account the cost to the purchaser making that purchase.

            Example buying an operating system at a brick and mortar store;
            Travel to store
            Time spent waiting and making purchase
            Loss of income of monies spent
            Return home
            Install software time and capital cost of equipment used
            Read agreement, disagree, time lost (lawyers charge for reading contracts, hence customers are entitled to

    • 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.

  • by laird (2705) <`lairdp' `at' `gmail.com'> on Saturday September 24, 2011 @11:50AM (#37502064) Journal

    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. :-)

    • by sjames (1099)

      If sending a POST has no legal meaning, then you're in the clear anyway, because the post that would have agreed to their terms meant nothing either.

      The real point here though is that the very idea of contracts of adhesion with page after page of legalese is an absurdity in the first place. Not only does no meeting of minds take place, but the language used in the "contract" is clearly designed to make sure there is none. Supposedly, checking a box and pushing a button (and various other trivial actions) is

    • by AmiMoJo (196126)

      It'll just end up in some web server log, ignored by the app and never notified to a person

      No different to many printed contracts then. Particularly with companies that sign you up online or over the phone and then mail out a contract for you to sign the document itself is rarely checked.

      Even if they do check that you signed it and didn't cross out large sections you can still easily sneak changes past them. Just scan it, modify a few key words here and there, print off and send it. No-one is going to read every word just to check that you didn't alter one. At least with a web page it is easy for

  • by Nivardus (2266896) on Saturday September 24, 2011 @11:52AM (#37502080)
    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.
    • How about doing a WHOIS on the domain and sending email to the Administrative Contact (or any email addresses found)?
      • by tomhudson (43916)

        How about doing a WHOIS on the domain and sending email to the Administrative Contact (or any email addresses found)?

        And how many of those WHOIS email addresses are hidden behind privacy services such as domainsbyproxy or monicker?

        What I want to see is for search engines to lower the rank of any domain that hides their ownership info - and a spam filter that does the same thing.

        • by Compaqt (1758360)

          >And how many of those WHOIS email addresses are hidden behind privacy services such as domainsbyproxy or monicker?

          Those privacy services hide your real email address, but still allo wpeople to send email to you via the email specified in Whois.

          • by tomhudson (43916)
            < Those privacy services hide your real email address, but still allo wpeople to send email to you via the email specified in Whois. A lot of them don't only hide the email address - they also hide the real address and owner, and specify that all complaints are to be sent by registered mail, along with a $10 fee for them to forward the mail by regular post.
    • by QX-Mat (460729)

      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-off

      • by xelah (176252)

        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).

        You aren't allowed to access someone's computer, or use their intellectual property, without their permission. If you haven't accepted the terms of service what gives you that permission? It could be implicit - I presume that putting a public website on a public webserver implies permission for people to fetch pages unless something about them makes it obvious that that's not what's intended. At this stage if you're still accessing the computer knowing that you've bypassed a technical measure designed to en

        • by Surt (22457)

          Why would you have to know that you bypassed an agreement. Most websites do not have TOS. If the computer I'm using never shows me TOS, how would I ever know when I had bypassed an agreement.

      • by mikelieman (35628)

        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.

    • by mikelieman (35628)

      Consider what happens if your first revised term is: "Providing web services constitutes acceptance of our revised TOS"

    • by Surt (22457)

      Doesn't the same argument apply to the contract they sent you via http in the first place?

  • A logical alternative to the false dichotomy: Agree / Disagree.
  • What exactly is the point of this? Your choices are pretty much:

    1) Agree to the TOS, and use the service
    2) Don't agree, don't use the service
    3) Propose modifications, which will either be not seen, ignored, or rejected, and you are right back where you started

    If you don't like the TOS, send an email and say why you aren't using their service.

    • by Khyber (864651)

      The point of this is to amend unenforceable EULAs to make them an enforceable binding two-party contract where the end user has some legal protection.

      Let me guess, you just game and never bother reading those EULAs, eh?

      Thankfully, I'll bet on EA's EULA getting tossed right the fuck out the door once I SUE THEM AGAIN.

      McQuown vs. Electronic Arts, ROUND 2.

      Prepare for yet ANOTHER knockout.

      • by bws111 (1216812)

        And exactly how does an unread, ignored, or rejected counter-proposal achieve any of your lofty goals?

        • by russotto (537200)

          And exactly how does an unread, ignored, or rejected counter-proposal achieve any of your lofty goals?

          If an unread, ignored, or rejected EULA or TOS can be binding, why NOT this?

          Of course it won't stand up in court, but it does underline the basic illegitimacy of EULAs.

          • by bws111 (1216812)

            A EULA or TOS is expected and assumed to be agreed to by a competent person. Said person has the opportunity to read and understand the agreement. If he can't understand it, he can get advice from legal council. If he doesn't want to do that, he can reject the agreement.

            A modified GET or POST is not expected to be seen by a person. A machine can not make a decision if it was not designed to do so.

            If you are legally unable to make a decision, whether you are a person (ie underage, incompetent, etc) or ma

    • by sjames (1099)

      What if one of your amended terms is that by serving web pages to you, they indicate their acceptance of your counter-offered TOS?

      If they don't accept modified TOS, they should just not serve web pages if there is anything unexpected in the POST transaction.

      • by bws111 (1216812)

        Here is an easy way for you to test this bizarre theory. Go to a web site that sells stuff. Purchase a couple thousand dollars worth of stuff. When you get to the page that says you agree to pay, send a modified response that says 'BTW - I am proposing different prices. I will only pay $100 for all these things. If you ship the stuff to me you have accepted these modifications'.

        When you get your credit card bill, contest the charges on the grounds that you proposed a different price and they accepted it

        • by sjames (1099)

          Since I am arguing for legal parity, it shouldn't surprise me if MY unconscionable contract of adhesion isn't worth anything either. The terms revert to the customary terms of a transaction which means I pay for what I buy and they send it to me promptly.

          That's really the point of this IMHO, the whole idea that a contract can exist based on a click where the clicking party isn't positively identified, the record of the click can't be validated and isn't even kept, and the contract can change at any time i

  • by Animats (122034) on Saturday September 24, 2011 @12:31PM (#37502348) Homepage

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

    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 [bna.com] on that one.

    • by owocki (2469504)
      In the yale case, it seems that the customer tried to modify the EULA with their email address. That doesn't seem to be the same method as used in traditional paper forms (ie. you cannot just write 'I dont agree to the TOS' as your first name when signing up for a bank account, you need to strikeout the provisions instead). Whereas, TOSAmend is passing along a new TOS via the POST parameters, which is already where the TOS acceptance is being indicated by the web server. (The analogous pre-web simile is
  • When the TOS is a modifyable textbox, then it is easy to make changes manually. This once was common, but is increasingly rare.

    As for legal standing, IANAL but AFAICS the modification is a counteroffer subject to acceptance. If the pgm installs or service runs, that sure looks like signs of acceptance.

    • by xelah (176252)

      As for legal standing, IANAL but AFAICS the modification is a counteroffer subject to acceptance. If the pgm installs or service runs, that sure looks like signs of acceptance.

      However, you haven't communicated the counteroffer to the other party to the contract and they have not accepted it. The fact that you've nevertheless caused your/their computer to do what you want doesn't mean they've done so. You KNOW that they don't intend to grant permission to you to use their property without you agreeing to their offer, and you KNOW you haven't done that. Ludicrous sophistry designed to disguise this just isn't going to work. (You might, of course, have a better argument if you've pa

      • Ok, so any clause "the software publisher owes the user $1000000 for his valuable system testing services" that the user inserted is void, because no human on the publisher's end agreed to it. Fair enough.

        But so is any clause such as "we may sell the user's private data to any party we want", because the user didn't agree to the contract either. Indeed, he made a counteroffer.

        So, basically, in this situation, there is no contract at all: the user is not bound to any clauses specified in the TOS, and the s

        • by bws111 (1216812)

          You are correct up to a point. However, the catch is that if you don't agree, you don't get to use the service, because it is only offered on acceptance of the agreement.

          Think of it this way: someone offers to sell you something for $50. You do not accept that price, and make a counteroffer of $40. At this point, the seller owes you nothing, and you owe the seller nothing. Until you come to an agreement, you do not get the thing, and the seller gets no money.

          • Seller wants $50.
            You instead hand the seller $40, but the seller still hands you the merchandise without comment. Looks like he accepted your counteroffer...
            • by bws111 (1216812)

              Only if seller is competent and authorized to make such a decision. If the 'seller' is the checker at your local department store, you still owe $50 if you take the merchandise. Failure to pay it, regardless of what the checker says, is still theft. Same with web servers that have not been authorized to accept counteroffers.

              • Is it the customer's business to check who has, and who hasn't authority to make a deal? How am I supposed to know whether my car salesman is authorized to negotiate on the price? The computer assembler? The oriental carpet dealer? The phone salesman?

                In most places, if a peon oversteps his authority to offer too good a deal to a customer, they settle that internally and don't bother the customer. It's not as if he wasn't found out at the end of the day...

                • by xelah (176252)
                  IIRC (and IANAL) in the UK you're mostly right but it depends on who the person is. If the receptionist tries to sell you the building you shouldn't expect to end up owning it. It has to be someone you'd expect to be able to make the offer, based on job title, etc. I don't know where the dividing line is, but I do know to be very careful about the promises I make on behalf of employers...
            • by xelah (176252)

              Seller wants $50. You instead hand the seller $40, but the seller still hands you the merchandise without comment. Looks like he accepted your counteroffer...

              That may be true. But suppose you 'hand' a vending machine asking for $1, say, 20p instead, and through some flaw this triggers the mechanism which gives you some merchandise. You haven't offered the seller 20p and had the seller accept it because the seller isn't present and you're not interacting with the seller. You're interacting with a machine owned by the seller. It's obvious what offer the seller is making because they've set the machine up accordingly. It's obvious that you've removed the goods with

      • by KDR_11k (778916)

        For EULAs it doesn't matter that they don't grant you permission, it's not their property at this point (not their physical property and intellectual property is not enough to stop you from using the software).

        • by xelah (176252)
          But you still need a licence to, for example, copy software from installation media to hard disc, or hard disc to memory. In the UK, anyway. You could argue you got an implied one when you bought the software and don't need a second one - I've heard of that being a theoretical possibility but I have no idea if it has survived a court - but I believe you could still get caught out if you happen to already know the publishers usual terms of business.
          • You're thinking of the "Shrink Wrap" problem.
            e.g.
            The ToS/EULA is inside a shrink wrapped cardboard box that you cant read.
            The first line of the ToS/EULA "Buy opening the box you have agreed to the ToS/EULA"
            As you didn't get a chance to read the ToS/EULA before agreeing so it's invalid due to the fact the consent was not "informed".
            (not having access to the ToS/EULA is not the same as ignoring the ToS/EULA)
            That's why most software now has a summery of the ToS/EULA on the outside of the box.

      • by redelm (54142)
        Certainly I have communicated the counteroffer -- I pressed the "I Accept" button, which I presume indicates the text of the offer which I am accepting. They should adjust the behaviour of their pgm/website accordingly. I'm no Javaskript expert, but I presume they coded their website correctly, or at least that they cannot blame me for any mis-coding. No, I do not modify their JS.

        The modifications I make are minor, generally reasonable and could not be reasonable construed as a frivolous counter-offer me

        • by xelah (176252)

          Certainly I have communicated the counteroffer -- I pressed the "I Accept" button, which I presume indicates the text of the offer which I am accepting.

          To whom have you communicated the counteroffer? Why do you believe this person to be legally entitled to bind the seller? How has this person responded to indicate the seller's acceptance? In the case of a web service you may have put a copy of your counter offer on to their property somewhere (the web server), but I don't see how that's different to writing it down and randomly dropping it on the floor of their office. You haven't brought it to the attention of anyone appropriate, and the seller certainly

  • by Anonymous Coward

    I'm not sure the degree to which a TOS of this nature has been tested in court, but it's my understanding that a contract drawn up by unequal parties in which one sets the terms and the other has the options to agree or disagree is called a "contract of adhesion." In such cases, special scrutiny is paid to the contract, and the end user would often get the benefit of the doubt.

    I'm not a lawyer, but I would guess that there's some kind of doctrine of reasonable expectation that you could apply in this case.

    • by Doc Ruby (173196)

      I don't think there's any TOS that's only clicked, is necessary to get started, and is practically never read by any of the large numbers of people who click through it, that has even been tested in a US court to bind the clicker to its terms. I do remember quite a bit of "shrinkwrap license" and "clickwrap license" cases that were rejected by the court as nonbinding.

  • 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.
    • Do you still provide service to that client? If so, then I guess that would count as agreeing to their modifications.
    • by sjames (1099)

      Since you call them a client, I'm guessing you *DO* in fact, provide the service in spite of the crossed off terms. That is, you indicate your acceptance of the amended contract.

      Your insurance insists that your clients agree to those two clauses or YOU aren't covered. You might wanna consult a lawyer about that!

  • What would be very helpful, and not require any lawyers or negotiations, would be a local TOS database I'd keep. When receiving an offered TOS, my local DB would capture it, and include metadata like whether I signed it, any other info I gave associated with it (address, email, credit card, account# etc). And when revised TOS is sent/offered/published to me (or in general), it would capture the new version, showing me changes. Then I might be able to track what were the TOS was that I actually agreed to, a

  • by Anon-Admin (443764) on Saturday September 24, 2011 @01:36PM (#37502878) Journal

    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!

    • Well, failure to respond in 30 days does not equate to accepting the contract.

      Even a court friendly to consumers would decide that way.

      Otherwise, there would be step 5:
      Receive contracts by random parties where you agree to send them money.

  • Yeah, you can't unilaterally change the terms of service for a site you're using. If you use the site, you're bound by their existing TOS. If you want to have those terms amended, you'll need to discontinue use of the site until / unless they accept your changes. And good luck with that from your bookmarklet.

    • by sjames (1099)

      But by responding to my GET and POST requests, they agree to MY TOS.

    • Yeah, you can't unilaterally change the terms of service for a site you're using.

      Neither can a site unilaterally impose terms on its visitors. They are free to submit a counter offer. It's called negotiation. Tough luck if their computer is programmed to ignore such counter offers. But they win with most other users who are "programmed" to click OK on the TOS without reading it, much less understanding it.

      So, if the company can say: "sorry our computer ignored your counter offer", then users can say "sorry, I was in a hurry, and just blindly clicked OK to make the thing work".

  • 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.

  • by Alain Williams (2972) <addw@phcomp.co.uk> on Saturday September 24, 2011 @05:53PM (#37504588) Homepage

    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).

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