>The answer is to enter into as few service contracts as possible.
Any contract where the other party performs so little seeking of my agreement (none at all really) that no representative talks to me in person or even electronically in an individual capacity, where no one witnesses me put my mark on the paper or hears by verbal assent, is in fact no contract at all. Despite what the courts may say. Should they say otherwise, they're wholly illegitimate.
That any of you have let something else stand as the norm is bizarre and alarming. Contracts require explicit, sought agreement, by their very definition. Nothing can be implied. If their business model relies on implicit agreement because anything else would be too difficult, then they simply shouldn't be allowed to remain in business.
1. By reading the message that referred you to this page ("randomstring.org/~dsr/eula.html") you agree, on behalf of yourself and your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that you believe I have entered into with you or your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges.
2. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
I wonder if appending something like this to the user agent string could work in court as a justification.
"Your Honour, the plaintiff's webserver engine thoroughly accepted my client's cookie which expressly stated the waiver of terms brought forward, and continued to serve requested content instead of stopping or refusing further interactions."
Isn't that a bit extreme? As a counterpoint, I find it useful to be able to pay for a train journey by tapping my card on an electronic reader - no representative of the company is there or otherwise witnesses me doing so - but I have entered into a contract whereby I am entitled to travel to a distant location. And I do want it to be a contract, because the transport company agrees to get me to my destination somehow even if the trains are cancelled. Perhaps the conditions of carriage may be somehow unsatisfactory to me, but the way in which I enter into the contract is almost entirely unrelated.
There is well established case law on the contract that forms when you buy something from a store (say with cash). There is a contract, on implied terms . I think what we’re talking about here is entering into a contract (or not) on explicit terms dictated by one party where the other party has not explicitly considered them and barely given the opportunity to do so if at all. I don’t think anybody is denying the ability of contracts coming into existence on implied terms.
>but I have entered into a contract whereby I am entitled to travel to a distant location.
I'm not sure why you drape this in the clothing of "legal contract". If the train fails to take you to your destination, they certainly aren't in breach. It seems really one-sided. Why do they need it to be a contract? Will you come and claw back the fare from them with them having no legal recourse?
In the UK, where I live, it's completely usual to treat this as a contractual obligation. If there's a problem which means the train can't take you there, the operating company will do everything reasonable to achieve the offered service, exactly because otherwise they'd be in breach.
Example: there are a series of scheduled trains from London (St Pancras) to Nottingham. One day maintenance works meant the line would partly close overnight and the last train would run very slow. Since tickets were already sold the company intended to get passengers to Nottingham by Taxi, reasoning that few would take this already slow train and so a coach hire or other arrangement weren't cost effective.
Unfortunately an unavoidable incident elsewhere meant instead of a half dozen sleepy passengers arriving at the blocked line and being allocated a few taxis, hundreds of us turned up on that last train. The employee paid to order taxis made a few calls and was told too bad, the company will just have to eat the cost of hundreds of taxi fares, call all the city's taxi firms.
Not the whole London to Nottingham, just the last maybe 20-30 minutes from where the line was blocked overnight for works. And they obviously do often charter buses, in fact my local train operator was a bus company as well so their buses got used for this type of event because it's just internal accounting. However in the example I gave above that operating company had chosen not to hire a larger vehicle because they anticipated low volume. Six taxis is probably cheaper than a coach. A hundred not so much.
They had bad luck, a different train hit a person (almost certainly a suicide, it is possible to get struck by accident but it's not common) and delayed a large amount of passengers like me who were going to London to get that Nottingham train, people delayed by that incident from their last-but-one train [which ran normally all the way to Nottingham] filled this slow, train that couldn't get all the way instead. A really smart organized team in St Pancras could have realised way too many people are boarding that last train and warned their colleagues, but realistically it was probably already too late to organise a better response even if somehow an incredibly joined-up organisation had reacted to the problem.
This is my feeling exactly - there's a lot wrong with predatory contracts, but the problem is with the predatory part, not the mere fact they're contracts!
This is somewhat fair, but only as long as you agree that you then have no right to use these services.
I think there is a big difference between the EULA that comes attached to a product you've already paid for, that represents additional terms to what you had already agreed to when paying, and the T&C of a free service or a subscription, presented before payment.
You can't seriously claim that you have a right to use, say, YouTube without any restriction whatsoever. It is a private service, and you can either use it under the terms and conditions that its private owner establishes, or you can avoid using it at all.
Absolutely, but that's a completely different claim than what GP was saying. They were saying that there is no binding agreement that you enter to just by using a product that has T&Cs shown on the screen.
The reason for that phrase is that no, Mother Nature's laws are all that matters, unlike our puny laws, hers are inherent properties of the universe, no need for enforcement because you literally can't break them. A court can insist that up is down, but it ain't.
They come into relevance about the time the phrase "despite what the courts may say" was uttered. The intent behind the phrase "you can pry it from my cold dead hands" is roughly the same.
Of course I think that armed revolution over ToS is utterly laughable. But I'm merely answering your question.
For an example of a situation the phase actually applies to, consider "despite what the courts may say we are removing the flock cameras".
Any contract where the other party performs so little seeking of my agreement (none at all really) that no representative talks to me in person or even electronically in an individual capacity, where no one witnesses me put my mark on the paper or hears by verbal assent, is in fact no contract at all. Despite what the courts may say. Should they say otherwise, they're wholly illegitimate.
That any of you have let something else stand as the norm is bizarre and alarming. Contracts require explicit, sought agreement, by their very definition. Nothing can be implied. If their business model relies on implicit agreement because anything else would be too difficult, then they simply shouldn't be allowed to remain in business.