They offered, I countered, they accepted
March 12, 2009 3:50 PM Subscribe
Is an user-editable EULA/TOS binding on the company that issued it, after I've changed it?
In another askme, it seems like the consensus on webform based EULA/TOS's was that they might be enforceable.
So what happens when the company accidentally leaves their text editable? During the sign-up process for the Norton forums, I noticed that their TOS field was editable, so I replaced their 3 pages of legallese with my own 2 sentences. I said I could post anything I like. And I said they agreed to pay me $1000.00 per word that they publish on the website.
I have no intention of filing a claim; I assume any court that got such a suit would laugh it out. But I am curious, is that true?
In another askme, it seems like the consensus on webform based EULA/TOS's was that they might be enforceable.
So what happens when the company accidentally leaves their text editable? During the sign-up process for the Norton forums, I noticed that their TOS field was editable, so I replaced their 3 pages of legallese with my own 2 sentences. I said I could post anything I like. And I said they agreed to pay me $1000.00 per word that they publish on the website.
I have no intention of filing a claim; I assume any court that got such a suit would laugh it out. But I am curious, is that true?
Response by poster: So, if they didn't have such language, they can be held to the modified terms?
Your assumption of competence appears to be overly optimistic, since I don't see similar language in their TOS, only a section stating that if they make a change to the terms, my continued use of the site constitutes acceptance of the modified terms.
I'll give you that it seems less than fully competent to leave out such a clause.
That is very interesting to learn about the UCC. I will be checking the EULAs on the products we ship at work, to see if they have similar provisions.
posted by nomisxid at 5:21 PM on March 12, 2009
Your assumption of competence appears to be overly optimistic, since I don't see similar language in their TOS, only a section stating that if they make a change to the terms, my continued use of the site constitutes acceptance of the modified terms.
I'll give you that it seems less than fully competent to leave out such a clause.
That is very interesting to learn about the UCC. I will be checking the EULAs on the products we ship at work, to see if they have similar provisions.
posted by nomisxid at 5:21 PM on March 12, 2009
Perhaps I'm oversimplifying things, but by that logic couldn't you edit a paper contract with a ball point pen and sign it and then expect that to be binding on the other party?
posted by JaredSeth at 7:23 PM on March 12, 2009
posted by JaredSeth at 7:23 PM on March 12, 2009
I suppose my analogy might be more accurate if the original contract was written in pencil. That's still a binding contract even though it's "user editable", right?
posted by JaredSeth at 7:25 PM on March 12, 2009
posted by JaredSeth at 7:25 PM on March 12, 2009
No. See offer and acceptance. Regardless of the contractual process a "meeting of the minds" is an essential element. The terms of the contract have to be available to you and your consent has to be an affirmative act, and the same is true for your counterparty.
Your credit card company can send you a bunch of fine print and change your terms with them as long as you keep using their cards - but you can always just pay off your balance on the old rate on the old terms and wind down your relationship under the old contract. You can reject that new fine print they send you. You can agree to a clickwrap contract but there has to be notice and the click-through to consent, and with shrinkwrap you have to tear it open and can review the agreement. That's why plaintiffs have had success in rejecting shrinkwrap agreements and getting their money back - there's no real notice until you get inside and you have to be able to back out once you have a chance to review the terms. That's also the reason you sometimes see a shrinkwrap sticker notifying you that you can go to the website to see the terms and you are accepting those terms by opening the shrinkwrap.
A shrinkwrap or clickwrap agreement, until you accept it, is an offer. Once you accept it (by taking the affirmative action), it's a contract. If you change the terms and submit it to the other party, you have made a counteroffer to them. You could try to get crafty and claim that that the fact that their set-up allowed you to clickthrough even after you changed the terms means that they accepted your counteroffer, but I don't think that's a strong argument, because there was no real notice and consent, just crappy progeramming.
posted by iknowizbirfmark at 10:50 PM on March 12, 2009
Your credit card company can send you a bunch of fine print and change your terms with them as long as you keep using their cards - but you can always just pay off your balance on the old rate on the old terms and wind down your relationship under the old contract. You can reject that new fine print they send you. You can agree to a clickwrap contract but there has to be notice and the click-through to consent, and with shrinkwrap you have to tear it open and can review the agreement. That's why plaintiffs have had success in rejecting shrinkwrap agreements and getting their money back - there's no real notice until you get inside and you have to be able to back out once you have a chance to review the terms. That's also the reason you sometimes see a shrinkwrap sticker notifying you that you can go to the website to see the terms and you are accepting those terms by opening the shrinkwrap.
A shrinkwrap or clickwrap agreement, until you accept it, is an offer. Once you accept it (by taking the affirmative action), it's a contract. If you change the terms and submit it to the other party, you have made a counteroffer to them. You could try to get crafty and claim that that the fact that their set-up allowed you to clickthrough even after you changed the terms means that they accepted your counteroffer, but I don't think that's a strong argument, because there was no real notice and consent, just crappy progeramming.
posted by iknowizbirfmark at 10:50 PM on March 12, 2009
"Obviously" the Norton Forums accepted nomisxid's counter-offer -- if they didn't, why did they go ahead and activate his membership?
posted by jepler at 5:47 AM on March 13, 2009
posted by jepler at 5:47 AM on March 13, 2009
This thread is closed to new comments.
I'd bet you $100 that any EULA which is even halfway competently drafted will contain exactly such a provision.
Short answer: don't be silly.
posted by valkyryn at 4:53 PM on March 12, 2009