Is it possible to mount a challenge to ginormous, incomprehensible, take-it-or-leave-it online contracts and EULAs? Maybe, maybe not. But the issue is getting more publicity as people continue to move their lives online.
Wells Fargo recently confronted its online banking customers with an 11,000 word contract that a customer must accept if he wishes to continue banking online. David Lazarus of the SF Chronicle details some of the more unreasonable terms in this article, which include the usual "Wells Fargo is not responsible for any damages that result from this service" and the "We'll use your personal information however we see fit" provisions.
But what stood out most to me was this unreasonable and seemingly unenforceable provision:
The contract says Wells Fargo can in their "sole discretion from time to time change this agreement by adding new provisions or by modifying or deleting existing provisions. Your continued use of the service following the effective date of any modification of this agreement or revocation of any waiver will show your consent to that modification or revocation of waiver."
Basically, the only way you could know the terms of use is if, before every online transaction, you re-read the 11,000 word contract to see if it had been updated. And if you don't, well, too bad. You've agreed to the terms anyway.
Is this unconscionable? Does continued use of the service constitute legitimate acceptance of any changed terms? I think these types of terms are clearly not enforceable, but as they become the accepted practice of established and otherwise respectable companies, I worry they will be very difficult to challenge.