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Depends on your definition of "common". It is becoming more and more prevalent [1]. I've only seen it in print once, but then again, I'm not in a situation to

Depends on your definition of "common". It is becoming more and more prevalent [1]. I've only seen it in print once, but then again, I'm not in a situation to sign contracts like that often. I refused, since I can't imagine a scenario where it benefits me. https://www.wsj.com/articles/SB109269232752592826 https://www.wsj.com/articles/SB109269232752592826

DaiPlusPlus 5y ago
What if you tell them that you’ll sign it provided that you get to pick the judge?
- hedora 5y ago
  What happens if I add a “terms of business relationships addendum” to my facebook account (or homepage) that claims to override various clauses in all terms of service I’ve agreed to? I’m serious. If the expectation is that I can be bothered to check for updates to 1000’s of terms of service every morning, why shouldn’t they be expected to hire someone to check personal homepages and social media accounts for such things? “Last writer wins” in US contract law (roughly speaking, IANAL), and I’m reasonably sure I can establish that my addendum “happens after” company terms of service updates. I’m happy to agree to binding arbitration, or flying to Washington to have a (corrupt?) judge or whatever process my complaint for a meagre $10,000 per hour (plus expenses) for the duration of the dispute. Edit: payable up front, regardless of the outcome of the dispute.
  - Wowfunhappy 5y ago
    I mean, if you're serious, the answer is that Facebook didn't claim to have read your terms of service addendum, but you did say you read theirs, when you signed up. I do agree with the sentiment though. IMO, if one party to a contract cannot have a reasonable expectation (!) that the contract was read by the other party, the contract should be considered invalid.
    - Vespasian 5y ago
      In some jurisdictions it already is. German / European courts have ruled many times that consumer TOS clauses which are "surprising" and/or "unusual" (e.g. "hidden" feed or waivers) are not enforceable.
      - cperciva 5y ago
        Courts around the world have made similar rulings. The technical term is "contact of adhesion" and while exact rules vary from country to country, most courts will at a minimum strike out clauses which are considered to be "unexpected" on the basis that the customer is unlikely to have actually read the contract. (This is why clauses such as exclusions of liability are traditionally in all caps or bold -- on the theory that this draws attention to them and may help to save them.)
        Vespasian 5y ago
        Thanks for going into further and teaching me the correct term for this.
    - BlackFly 5y ago
      Except I didn't make that claim, I edited the DOM to make the button read, "I haven't read this agreement and waive no rights." Even if I did not, how do they expect to be able to prove that I did not? I am well within my rights to modify the copy of a contract supplied to me, so it can hardly be said to be fraudulent to do such a thing. It isn't my fault that they don't want a copy of what I actually agreed to... I really would like to see someone use this tactic in court. I am quite curious what the legal status of it would be and what the follow up arms race would look like if it a court sided with the user in such a case. I can imagine naive counters where they submit hashes of the agreed upon contents and suddenly typoes become legally binding when they refuse to accept such a modification.
      - TeMPOraL 5y ago
        I once registered to an event where the condition of attendance was to agree to have your personal data processed (that was many years before GDPR came and made such bullshit illegal). This was declared through a HTML form, with a bit of client-side JS that disabled the "Submit" button until you checked the "I agree to data processing" checkbox. So of course I edited the page to let the submission through anyway, and the POST request had the appropriate consent boolean parameter to false instead of true. Since the registration completed successfully, they either ignored that parameter, or - what I was hoping would happen - their database had my row with a distinct FALSE on the consent column. I sometimes wonder what would have happened if I decided to follow up on their data processing against my consent. Would I have a successful case? Or would they can me for working around their bit of client-side JS?
  - unishark 5y ago
    Generally they spam you with a letter or email or popup window or something when terms change. You make it sound kind of like keeping your software up to date, which is an interesting way to look at it. Perhaps in the future legal aspects of life will be just another kind of software updating, with the govt rolling out emergency patches and big annual feature packs.
    - fogihujy 5y ago
      The very idea of a feature-complete style of government is both intriguing and outright frightening.
  - bopbeepboop 5y ago
    A more colorable tactic is that you send a notice to their registered agent of addendums to the contract on your website, with possible future updates. Certified mail to their registered agent is considered “received” by the corporation in most contexts.
    - jijji 5y ago
      I prefer to have the sheriff do the civil process to the managers (or managing partner) home address.... that way it freaks them out and gets the best response.
      - hn_go_brrrrr 5y ago
        If you've actually done this, story time?
    - bloody-crow 5y ago
      Received does not imply "accepted". I can also mail you an agreement in which you point your job payroll to my bank account, but you're not obligated to actually do it, right?
      - omgwtfbyobbq 5y ago
        You're not obligated to do that. The difference here may be that there's already a contract between a user and the company, so if they include something like "continuing to provide service to my account constitutes acceptance of these terms." in the updated contract, it might fly. Or not. It could be that all the businesses doing that to their users are just BS'ing something unenforceable.
  - jdavis703 5y ago
    You have to have some plausible means of proving the company agreed to your terms. I don’t think a judge or jury would find that plausible. It’s just like how “silent” TOS changes are unenforceable.
dd36 5y ago
It’s in everything and you rarely sign anything to waive. You check a box, click a button, buy something with a sticker on the box, or even walk past a sign.

DaiPlusPlus 5y ago

What if you tell them that you’ll sign it provided that you get to pick the judge?

hedora 5y ago
What happens if I add a “terms of business relationships addendum” to my facebook account (or homepage) that claims to override various clauses in all terms of service I’ve agreed to? I’m serious. If the expectation is that I can be bothered to check for updates to 1000’s of terms of service every morning, why shouldn’t they be expected to hire someone to check personal homepages and social media accounts for such things? “Last writer wins” in US contract law (roughly speaking, IANAL), and I’m reasonably sure I can establish that my addendum “happens after” company terms of service updates. I’m happy to agree to binding arbitration, or flying to Washington to have a (corrupt?) judge or whatever process my complaint for a meagre $10,000 per hour (plus expenses) for the duration of the dispute. Edit: payable up front, regardless of the outcome of the dispute.
- Wowfunhappy 5y ago
  I mean, if you're serious, the answer is that Facebook didn't claim to have read your terms of service addendum, but you did say you read theirs, when you signed up. I do agree with the sentiment though. IMO, if one party to a contract cannot have a reasonable expectation (!) that the contract was read by the other party, the contract should be considered invalid.
  - Vespasian 5y ago
    In some jurisdictions it already is. German / European courts have ruled many times that consumer TOS clauses which are "surprising" and/or "unusual" (e.g. "hidden" feed or waivers) are not enforceable.
    - cperciva 5y ago
      Courts around the world have made similar rulings. The technical term is "contact of adhesion" and while exact rules vary from country to country, most courts will at a minimum strike out clauses which are considered to be "unexpected" on the basis that the customer is unlikely to have actually read the contract. (This is why clauses such as exclusions of liability are traditionally in all caps or bold -- on the theory that this draws attention to them and may help to save them.)
      - Vespasian 5y ago
        Thanks for going into further and teaching me the correct term for this.
  - BlackFly 5y ago
    Except I didn't make that claim, I edited the DOM to make the button read, "I haven't read this agreement and waive no rights." Even if I did not, how do they expect to be able to prove that I did not? I am well within my rights to modify the copy of a contract supplied to me, so it can hardly be said to be fraudulent to do such a thing. It isn't my fault that they don't want a copy of what I actually agreed to... I really would like to see someone use this tactic in court. I am quite curious what the legal status of it would be and what the follow up arms race would look like if it a court sided with the user in such a case. I can imagine naive counters where they submit hashes of the agreed upon contents and suddenly typoes become legally binding when they refuse to accept such a modification.
    - TeMPOraL 5y ago
      I once registered to an event where the condition of attendance was to agree to have your personal data processed (that was many years before GDPR came and made such bullshit illegal). This was declared through a HTML form, with a bit of client-side JS that disabled the "Submit" button until you checked the "I agree to data processing" checkbox. So of course I edited the page to let the submission through anyway, and the POST request had the appropriate consent boolean parameter to false instead of true. Since the registration completed successfully, they either ignored that parameter, or - what I was hoping would happen - their database had my row with a distinct FALSE on the consent column. I sometimes wonder what would have happened if I decided to follow up on their data processing against my consent. Would I have a successful case? Or would they can me for working around their bit of client-side JS?
- unishark 5y ago
  Generally they spam you with a letter or email or popup window or something when terms change. You make it sound kind of like keeping your software up to date, which is an interesting way to look at it. Perhaps in the future legal aspects of life will be just another kind of software updating, with the govt rolling out emergency patches and big annual feature packs.
  - fogihujy 5y ago
    The very idea of a feature-complete style of government is both intriguing and outright frightening.
- bopbeepboop 5y ago
  A more colorable tactic is that you send a notice to their registered agent of addendums to the contract on your website, with possible future updates. Certified mail to their registered agent is considered “received” by the corporation in most contexts.
  - jijji 5y ago
    I prefer to have the sheriff do the civil process to the managers (or managing partner) home address.... that way it freaks them out and gets the best response.
    - hn_go_brrrrr 5y ago
      If you've actually done this, story time?
  - bloody-crow 5y ago
    Received does not imply "accepted". I can also mail you an agreement in which you point your job payroll to my bank account, but you're not obligated to actually do it, right?
    - omgwtfbyobbq 5y ago
      You're not obligated to do that. The difference here may be that there's already a contract between a user and the company, so if they include something like "continuing to provide service to my account constitutes acceptance of these terms." in the updated contract, it might fly. Or not. It could be that all the businesses doing that to their users are just BS'ing something unenforceable.
- jdavis703 5y ago
  You have to have some plausible means of proving the company agreed to your terms. I don’t think a judge or jury would find that plausible. It’s just like how “silent” TOS changes are unenforceable.

dd36 5y ago

It’s in everything and you rarely sign anything to waive. You check a box, click a button, buy something with a sticker on the box, or even walk past a sign.