Opting out of license agreements/ terms of use

[fletchmon]

What is the name of your state (only U.S. law)? NH

An off-the-wall question. Say a company's Terms of Use document contains a clause that a consumer finds particularly objectionable. The consumer writes the company's corporate counsel stating that he rejects the clause and does not intend to abide by it. The consumer also states that failure of the company to respond in writing or to cancel his membership will constitute tacit approval of his intentions.

Does this make the consumer's behavior legal? Does the company's lack of response create a de facto amendment to the Terms? (The Terms do not say that they are non-negotiable, provide a formal means of amendment, or require express written consent for any changes.)

Corporations use opt-out policies all the time. Can consumers turn the table on them in the way described above?

Grateful for any thoughts, & particularly for any case law or other legal references that may be relevant.

This should be fun ... Thank you in advance!

[OHRoadwarrior]

Nope. You would need an amended TOS to be sent or a supplement.

[sandyclaus]

This sounds like homework to me, or at the very least, the subject of a classroom discussion or debate.

[fletchmon]

This sounds like homework to me, or at the very least, the subject of a classroom discussion or debate.

Nope. Neither. I'm genuinely interested in the answer(s).

Happy to wait a week, or until whenever, for responses if that's what it takes to prove that this has nothing to do w/ school.

[OHRoadwarrior]

This is similar to the opt out provisions cc companies tried to institute several years ago. They sent you a change in terms and required you call/write to opt out. After it was ruled illegal, they started amending them and would send you a new card to activate, when they wanted the change. You agree to the terms at activation.

[fletchmon]

This is similar to the opt out provisions cc companies tried to institute several years ago. They sent you a change in terms and required you call/write to opt out. After it was ruled illegal, they started amending them and would send you a new card to activate, when they wanted the change. You agree to the terms at activation.

I believe this applies only to cc companies' ability to charge overdraft or other fees on consumers' accounts. Please correct me if I'm wrong.

Although references, etc. would be very interesting, what I'd really like to know is whether I'm right to think that the issue raised in my first post is not considered black letter law?

[P.S. If my questions perhaps seem more artfully posed than some, it's not because I'm in school. I'm just a pretty experienced web searcher who's no longer a spring chicken. Thank you, Google & Nolo.com!]

[fletchmon]

Just came across a reference to estoppel by acquiescence.

Any chance this applies here? Are there critical elements that must be present for this to apply?

[Zigner]

Again, what you propose will NOT get you out of the terms.

Just as an exercise, pick the terms of some company/website/whatever and we'll use it as a hypothetical case. Post a link here and we'll show you why it won't work.

[fletchmon]

OK, but would love to know why this won't fly.

The Terms of Use in question belong to Netflix:

[url=http://www.netflix.com/termsofuse]Netflix[/url]

The relevant section is "Personal Computer Requirements and Device Limitations." Say someone wants to waive the cap of 6 registered devices for the streaming service.

From the Acceptance of Terms of Use:

By using, visiting, or browsing the Netflix service, you accept and agree to be bound by these Terms of Use. If you do not agree to these Terms of Use, you should not use the Netflix service, including our website and user interfaces.

Seems clear enough. I guess my question is why similar language sent to the company would not be equally binding. Something along the lines of:

By acknowledging receipt of this letter and failing to respond, you accept and agree to be bound by these amended Terms of Use. If you do not agree to these amended Terms of Use, you should inform me immediately and cancel my subscription.

No doubt, this must seem very naive, but I'd love to know why acquiescence would not apply. The only listing of required elements I've found is as follows:

Estoppel by acquiescence applies when (1) a party has full knowledge of his rights and the material facts; (2) remains inactive for a considerable time; and (3) acts in a manner that leads the other party to believe the act has been approved.

Thanks to those willing to help me understand.