Over on Commitment Matters, Tim Cummins recently posted an excellent little number discussing how US courts have been on the offensive against the contracting practices of some businesses. According to Tim, "Recent judgments have struck down key clauses in click-through End User License agreements. And now the courts in California have ordered repayment of millions of dollars in early termination fees for mobile phones. There are moves afoot to impose similar limits across the US." But unfortunately, as Tim aptly points out, these actions have been limited to date. Rather than representing a move to what we might describe as "fair and balanced" and creative contracting that represents the interests of both the buying and selling party -- sorry Tim, for the reference to your favorite news station -- they continue to suggest the status quo is here to stay.
In Tim's words "It is sad that no suppliers seem to understand the competitive advantage that can be gained by differentiation through more imaginative -- and friendly -- terms and conditions. Burdensome terms simply alienate your trading partners and customers." But they do one thing. And that's keeping lawyers in business (not to mention requiring companies to invest large sums in contract management systems to capture all the superfluous and overly engineered T&Cs).
- Jason Busch