4 ms·

These are far from the worst patterns. I've seen so much awfulness out there. My favorite recent one was a renewal if you don't cancel by a deadline that's mon

by CPLX 5y ago

These are far from the worst patterns. I've seen so much awfulness out there. My favorite recent one was a renewal if you don't cancel by a deadline that's months ahead of the actual end of the contract period and it also had a substantial rate increase and all the language that we supposedly agreed to wasn't actually present in the contract we signed. Those terms were in one of those "incorporate by reference" clauses where it says this contract incorporates terms and conditions that are at the following URL and it's 45 pages into the fine print of that URL. I mean supposedly, since it's their URL and could just change the terms whenever they want and lie about it. Which by the way wasn't clickable in the Docusign. Basically it was in an unlit basement behind a sign that said beware of the leopard. It's not ethical. It's just exhausting to deal with some of these companies. I think we all know who they are, they tend to be concentrated in the field of SaaS companies that cater to the sales and marketing functions. Lately I've had what I've found to be a fairly clever solution however. We wrote up a standard document that contains our terms and conditions for SaaS providers. The key clauses basically say "We hereby give formal notice that we do not consent to any automatic term renewals, any automatic price increases, any charges to credit cards made 'on account' without our specific consent as to the date and amount charged. To the extent our agreement requires advance written notice of any of the above this letter serves as that notice." and so on. Then we send it certified mail to the company's corporate HQ address and keep the tracking number. We do this on the same day we sign any software contract, it's basically an automated process at this point. So whenever it comes around, and it has, we just say sorry we've already given formal written notice we don't consent to that. Here's a scan of the document and the USPS receipt maybe work on your internal communications. The fact that we have to do this is apalling but hey it's better than the alternative.

Plasmoid 5y ago
Does it actually work? Have you tested in in court?
- CPLX 5y ago
  Haven't made it to court but it would certainly be legally sound. Courts love certified mail and formal notices it's not even clear what counterargument they could have. They require notice, and we gave notice and can prove it. But in real life what it really does it get them to back off and go back to having a normal negotiation about what we do want to do for renewal instead of the bullshit attempt to mislead and trap us. Needless to say if there's any viable alternatives to companies that do this we take them but in some categories all the options suck.
  - leveraction 5y ago
    I am thinking the argument against would be that the company's contract with you was supported by consideration: they provide the software in exchange for your payment. You are then sending what is intended as an addendum to the original contract, but the company never agreed to the additional terms. In effect, it is an offer of a second contract that is not supported by consideration and likely never accepted by the company. In such a case it would not be enforceable I think.
    - CPLX 5y ago
      It’s not an amendment to the contract it’s notice. If the contract says you must give a non renewal notice by X date or you agree to a renewal then the letter is written notice. The trick is making it the same day you sign the deal and making it all inclusive. It doesn’t change the existing contract it abides by it.
    - leveraction 5y ago
      "The trick is making it the same day you sign the deal and making it all inclusive." I think the original contract is enforceable at the time it was originally agreed to. Coming up with additional terms, even if they were on the same day, wouldn't not change the original contract. Imagine signing up for a credit card offer and then sending a certified letter to the bank informing them that you will only pay a lower interest rate that you designate. I think the stronger argument is the "incorporated by reference" argument, given the fact that those could be changed at a later time. The terms of a contract need to be clear, and any ambiguity would likely be settled in favor of the party to be charged. I have always been suspicious of the "Click to Agree" box at then end of a long contract that no one, including the company offering it, has ever read. The problem is that there are so many (generally unlikely) contingencies that have to be accounted for. What other choice is there when there may be substantial liability in question?
      - CPLX 5y ago
        The enforceability of the original contract is not being challenged in this example. It’s about required notices. Basically the contract has opt-out provisions that they hope you either won’t notice or will forget to opt-out of. The idea is simple, you just reverse this dynamic by immediately and pre-emptively opting out of every optional element of the contract that could cause you to incur additional financial obligation.
indus 5y ago
Interesting idea. But isn't there a risk that if the company that gets your certified mail, reads it, and then cancels your account?
- CPLX 5y ago
  Sure I suppose that's a risk. But then they'd be in breach of the contract since the letter definitely doesn't say to cancel the account, it says that this is notice given to all extant notice clauses that could result in additional billing, renewal, and so on. It's worded well I'm paraphrasing. As a practical matter though I don't think there's much to worry about. These guys don't have a process to field letters like this. The joy comes from the elegance of it all. If they want to play a game of exploiting the fact that people don't read the fine print then they should be prepared for a fair contest.
  - indus 5y ago
    > The joy comes from the elegance of it all. If they want to play a game of exploiting the fact that people don't read the fine print then they should be prepared for a fair contest. :clap:
taylortrusty 5y ago
Ironically, I think you could sell this as a product/service.
pontifk8r 5y ago
We all need a special version of this document we can bring to health care provider visits, something to the effect that they agree to inform of and get consent for any products or services that are Not covered by insurance BEFORE they are provided, since of course they are experts in medical issues and billing.
- CPLX 5y ago
  I have crossed out terms in a standard health care release and given it back without anyone saying anything. So that’s one data point. I’ve also repeatedly been asked to sign one of those electronic signature pads as the signature to a document that I am not actually seeing. Which is a ridiculous thing to even consider as a workflow. When that happens I just sign the words “not shown document” instead of my name and move on.
- dragonwriter 5y ago
  > We all need a special version of this document we can bring to health care provider visits Which they will the decline to sign and require you instead to sign there standard, cleared-by-their-legal consent to treatment form before providing any services. If you could afford the kind of providers that would be willing to even consider a nonstandard agreement, this probably wouldn't be a concern you would have in the first place.

by CPLX 5y ago

Plasmoid 5y ago

Does it actually work? Have you tested in in court?

CPLX 5y ago
Haven't made it to court but it would certainly be legally sound. Courts love certified mail and formal notices it's not even clear what counterargument they could have. They require notice, and we gave notice and can prove it. But in real life what it really does it get them to back off and go back to having a normal negotiation about what we do want to do for renewal instead of the bullshit attempt to mislead and trap us. Needless to say if there's any viable alternatives to companies that do this we take them but in some categories all the options suck.
- leveraction 5y ago
  I am thinking the argument against would be that the company's contract with you was supported by consideration: they provide the software in exchange for your payment. You are then sending what is intended as an addendum to the original contract, but the company never agreed to the additional terms. In effect, it is an offer of a second contract that is not supported by consideration and likely never accepted by the company. In such a case it would not be enforceable I think.
  - CPLX 5y ago
    It’s not an amendment to the contract it’s notice. If the contract says you must give a non renewal notice by X date or you agree to a renewal then the letter is written notice. The trick is making it the same day you sign the deal and making it all inclusive. It doesn’t change the existing contract it abides by it.
  - leveraction 5y ago
    "The trick is making it the same day you sign the deal and making it all inclusive." I think the original contract is enforceable at the time it was originally agreed to. Coming up with additional terms, even if they were on the same day, wouldn't not change the original contract. Imagine signing up for a credit card offer and then sending a certified letter to the bank informing them that you will only pay a lower interest rate that you designate. I think the stronger argument is the "incorporated by reference" argument, given the fact that those could be changed at a later time. The terms of a contract need to be clear, and any ambiguity would likely be settled in favor of the party to be charged. I have always been suspicious of the "Click to Agree" box at then end of a long contract that no one, including the company offering it, has ever read. The problem is that there are so many (generally unlikely) contingencies that have to be accounted for. What other choice is there when there may be substantial liability in question?
    - CPLX 5y ago
      The enforceability of the original contract is not being challenged in this example. It’s about required notices. Basically the contract has opt-out provisions that they hope you either won’t notice or will forget to opt-out of. The idea is simple, you just reverse this dynamic by immediately and pre-emptively opting out of every optional element of the contract that could cause you to incur additional financial obligation.

indus 5y ago

Interesting idea. But isn't there a risk that if the company that gets your certified mail, reads it, and then cancels your account?

CPLX 5y ago
Sure I suppose that's a risk. But then they'd be in breach of the contract since the letter definitely doesn't say to cancel the account, it says that this is notice given to all extant notice clauses that could result in additional billing, renewal, and so on. It's worded well I'm paraphrasing. As a practical matter though I don't think there's much to worry about. These guys don't have a process to field letters like this. The joy comes from the elegance of it all. If they want to play a game of exploiting the fact that people don't read the fine print then they should be prepared for a fair contest.
- indus 5y ago
  > The joy comes from the elegance of it all. If they want to play a game of exploiting the fact that people don't read the fine print then they should be prepared for a fair contest. :clap:

taylortrusty 5y ago

Ironically, I think you could sell this as a product/service.

pontifk8r 5y ago

We all need a special version of this document we can bring to health care provider visits, something to the effect that they agree to inform of and get consent for any products or services that are Not covered by insurance BEFORE they are provided, since of course they are experts in medical issues and billing.

CPLX 5y ago
I have crossed out terms in a standard health care release and given it back without anyone saying anything. So that’s one data point. I’ve also repeatedly been asked to sign one of those electronic signature pads as the signature to a document that I am not actually seeing. Which is a ridiculous thing to even consider as a workflow. When that happens I just sign the words “not shown document” instead of my name and move on.
dragonwriter 5y ago
> We all need a special version of this document we can bring to health care provider visits Which they will the decline to sign and require you instead to sign there standard, cleared-by-their-legal consent to treatment form before providing any services. If you could afford the kind of providers that would be willing to even consider a nonstandard agreement, this probably wouldn't be a concern you would have in the first place.