Skip to main content

This is a semi-serious response strategy to combat one-sided "terms and conditions" that are imposed by website operators.  

The humorous part to me is that the site operator could have to make an argument that "we didn't read that...how could we possibly be expected to keep track of emails, etc."  The opposite of what they generally argue when seeking to enforce their ridiculous terms.

1. The first element is to have an use an email address such as "i.do.not.agree,see.counteroffer@xyz"rong

2.  When a confirmation email is sent to that address, you respond with either an email or a link to the terms of your counteroffer.

For our lawyer readers, does such a gambit create 'offer and acceptance?' Does the email utilized at least cast doubt on one's agreement to a site's terms?  What if the confirmation email is "do.not.respond@abc?"  

As for the terms:
====================

Counteroffer:

All terms of service proposed by you are rejected.  By allowing access to your site, you acknowledge that you accept these terms and conditions.

AS USED HEREIN, THE TERMS “YOU” AND “SITE” SHALL MEAN ANY PERSON OR ENTITY MAINTAINING OR CONTROLLING ANY INTERNET WEBSITE TO WHICH NOTICE OF THIS COUNTEROFFER HAS BEEN TRANSMITTED.  THE TERMS "USER," "ME" AND "I"...etc.

BY PERMITTING ACCESS (OR CONTINUED ACCESS) TO SITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE, FROM TIME TO TIME IN OUR SOLE DISCRETION. WE WILL NOTIFY YOU OF AMENDMENTS TO THESE TERMS AND CONDITIONS BY POSTING THEM TO THIS WEBSITE. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT PERMIT ACCESS TO WEBSITE.

You will not

    Use any of the data to which I give you access or transmit to you for anything other than giving me access to it and publishing my comments, if any;
    store logs of any information about me, except my comments and login information, if any.
    cache my data
    Place cookies on my computer
    give away, transfer, or sell any of my information.
    Send me email advertisements or permit others to do so.
The terms of this contract are subject to the laws of the State of _____, and shall be adjudicated in _____ County ______.  

You agree to pay liquidated damages in the amount of $100 for each breach hereof...etc.

The party in breach of this agreement shall pay reasonable costs and attorney fees for enforcement hereof...etc

If any part of this agreement is ruled invalid, the remainder shall continue in full force and effect.

You agree that my failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

This agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof...etc.

Copyright notices...etc.

Any thoughts?  

What should be added?

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Really fun and clever idea- let's see what Scalia (1+ / 0-)
    Recommended by:
    crose

    thinks of it!

  •  The clause (1+ / 0-)
    Recommended by:
    FG
    This agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof...etc.
    is included specifically from you editing or attempting to edit any term or condition they initially sent you.  By "accepting" it you agree that no other agreement supersedes it.

    Also the flaw is that they are sending the terms to YOU, the responsible party for making legal decisions about YOU.

    You are sending an email to an address utterly unrelated to their any decision making authority.

    It would be like if I got the helpdesk technician at Dell to agree that if he couldn't fix my PC in under 30 minutes I would become the new owner of Dell Inc. and then using this "agreement", accepting before the fact and in good faith, as some kind of leverage against Michael Dell when I call him and ask him to sign over his share of the ownership.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Thu Mar 20, 2014 at 01:10:42 PM PDT

    •  very hard to reply in this website... (0+ / 0-)

      for the 4th time, I'll try to post a reply.

      Would an ordinary reasonable person who saw "I.don't.agree.see.counteroffer@xyz.com" feel that there had been a "meeting of the minds?"

      Doesn't the person who sends "confirmation" email have apparent authority to bind a website?  (or the person who sets up the system)

      If a company mails you a contract, which says "responding by mail means you agree" and you mail back a letter stating  "I don't agree, here is my counteroffer" do you think a court would enforce the original contract?

      •  asdf (0+ / 0-)

        Email address cleverness is not going to weigh in on this.

        The person who administers the email system that sends the confirmation is completing a delegated task and has no bearing or authority over the content therein; ie, the woman in the mail-room of a law firm is not the one determining what is or is not client-confidential communication.

        To your last question it would be based on whether or not you used their services.  If you utilized their product or services, yes the court would enforce the original contract.

        If you are sincere in your attempt, however futile, of negotiating separate terms you would need to do so prior to using their product or service.  Any use will be seen as use "on their terms".

        Example:  You access a website that has all kinds of cool political charts and graphics.  Really nicely done animations related to current topics.  At the bottom is a note, "All information is property of CoolGraphix, Inc.  Use of this site acknowledges recognition of copyright."

        You send an email to their ContactUs@CoolGraphix.com email telling them that you love their stuff and you need to use this to post some public service announcements on your favorite orange blog.  You assure them you aren't doing this to profit and this is an educational effort so you are sure they will agree.

        You copy their stuff and post it.

        They sue you.  They win.  

        Moral of the Story:  Usage equals acceptance and you can not unilaterally counter-offer individual terms with any presumption of acceptance.

        Красота спасет мир --F. Dostoevsky

        by Wisper on Fri Mar 21, 2014 at 08:33:51 AM PDT

        [ Parent ]

  •  Initially I enojoyed (0+ / 0-)

    the concept, yet on further thought, I realize it is way above my pay grade, so to speak.

    I will enjoy though, reading and considering the comments.

    The idea itself is creative thinking and that I am all for!

    Good start, lets see where it take us?

    Keep the active thinking coming, in my opinion :)  Tipped and rec'd for this reason!

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site