Make ISPs Read YOUR Fine Print > The original EULA

The original EULA

They do.

From the Comcast agreement section 10. f.:

"General: This Agreement and all exhibits hereto constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supersede and replace any and all prior written or verbal agreements. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. Comcast's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement."

emphasis mine.

So either someones lying or needs to get a new lawyer.
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Beagles really should come in convienent 10 packs.

I dunno. It's still dicey. What you quotes says the EULA supersedes and PRIOR written or verbal agreements. Nothing about agreements made after this one. And the last sentence seems to focus on conduct and trade practices being the catalyst of modifying the agreement. Not sure how putting your own agreement on your own check can apply.

reply to Combat Chuck
Actually, this practice of writing stipulations on checks is fairly common. Its primary use is in credit collections and bed debts. Typically bad debtors will write final payment or some such provision on the check. If endorsed and cashed, it constitutes acceptance and relieves the debtor against any still outstanding debts.

In the above comcast EULA the part you neglected to highlight states, "supersede and replace any and all prior written or verbal agreements." 'Prior' being the significant verbage.

Section 3-311 of the Uniform Commercial Code does state that a debt can be discharged with a check designated as payment in full "if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim." However, it's up to the claimant to prove "that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim." So if you receive a check marked "paid in full" made out for less than the amount you have agreed upon, you'd best not cross out the words "paid in full" or write "disputed" on it and cash it anyway, as you risk having the entire debt discharged. However, this condition does not apply to "transactions conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course [of business]," which means that this scheme will not work at all for most bill or credit card payments, as those payments are typically handled by automated systems and not humans.

reply to vpoko
Here's the clause from Roger's Cable (since that's the user in question's ISP):

Correct ... however, Canadian Courts are *very* reluctant to permit clauses which give up legal rights especially if it is an imposed waiver as in a one sided contract.

reply to Jason Levine
I remember another case, I can't find a link, where an arbitration clause like this one was thrown out because the ISP specified the more-expensive "commercial arbitration" rules instead of the less-expensive personal arbitration ones. I know that's not here nor there, but if it came down to it this could very well end up in front of a judge and not just an arbitrator.

reply to SRFireside
I reiterate:

"This Agreement and all exhibits hereto constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement"

I don't know how you can be any clearer in legalese that this is the entire agreement; IE: you as the "not comcast" part of the agreement are agreeing that there is nothing else that will be added to the agreement, such as your stipulation on a check that they not institute caps.

And before anyone fires back with "well then they can't change it after the fact either"; that's covered earlier.
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Beagles really should come in convienent 10 packs.

reply to kcjames9

reply to kcjames9
You're missing the point.

1. There's a contract for the supply of services.
2. The contract contains a merger clause which states that (a) all prior understandings are superceded; and (b)any amendment to the contract must be in writing and signed by an authorized officer of Rogers.
3. A check purporting to be a modification of the contract is not effective; it is not signed by Rogers (no, a mechanical signature/stamp/whatever is not a signature).
4. The fact that it's a check doesn't matter. It's a financial instrument (and as you correctly state governed by UCC Article 3 if in the US)but it's still a purported modification to the contract. If it doesn't comply with the requirements in the contract, it's no good.

Can't be any clearer than that.
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Sure eagles can fly high. But weasels don't get sucked into jet engines.

This all depends on how much of any party's EULA the courts decide to enforce. The court could deem certain stipulations on Roger's EULA are either too broad or not enforceable. The same goes for Mr. Check EULA, who could be disregarded entirely by the courts. These agreements aren't 100% written in stone and completely free of judicial discretion.

reply to Combat Chuck
But by cashing the check, they're agreeing to an entirely different contract, not simply amending the one already in effect.

When I agreed to that contract, I agreed to pay my ISP (I AM with Comcast) for service.

If they want that payment, they must agree to provide that service.

If, at any time, they do not provide that service, they are in violation of that contract. This does NOT relieve me of my contractual obligation to them straightaway. What it DOES do is provide me a legal avenue to a refund of any amount paid to them during the contract term in which the service was not provided, at the court's and my discretion, not theirs. Failing this, it is quite possible, if not extremely likely that the courts may find me no longer obligated to abide by whatever terms of THEIR contract they see fit as a result of their failure to abide by mine.

That said, it has to be worded right to work. The contract in question is not. I will, however, draft one in the near future that is much more likely to hold some water, for Comcast customers, at least.

And yes, I am (half) a lawyer. The other half is still in the classroom. I spoke to two of my law professors prior to this posting as well.

reply to kcjames9
And as a result of that, most debt collectors now enter information from checks into an ACH system, thereby not cashing that check or agreeing to those terms.