[mindslight]

Opt out clauses are a red herring. I of course do them, but most people are not going to. By the way they're generally set up ("send self-written snail mail to this obscure address and we won't even respond"), it's clear they're meant to be merely a technicality that very few will ever notice or fulfill. If they were an actual part of a negotiated contract, they would be simply struck directly on the document before signing.

Tangentially, I do have to wonder about using web page inspector tools to modify terms presented to you, and then agreeing to the modified terms. Taking screen shots for documentation of course. At the very least, it seems like this should result in no contract being formed (since the counterparty has not signed). Which isn't really meaningful for your standard web service everything-disclaimed terms, but would matter if they tried to bind you with mandatory arbitration.

[salawat]

Actually, that wouldn't work.

Most IT systems associate your acceptance with a particular document tracked in a database. It's really a tracker of "User pushed button in this time period." You making alterations would never manifest or be accommodated in the system; what you'd have to do is mail their legal department with a statement of interest with revisions which they'd have to adapt, which would have to filter back through Sales for adjustments in pricing.

Make no mistake, IT has enabled the most abusive form of contract entering known to Man. Frankly, I'd say it completely undermines the practice of entering into a contract, but as long as people let it skate due to the understanding they took could one day do the same thing; this is what we have.

The court friendly approach would be legislating a law that invalidates certain clauses, but leaves the low barrier to entry mechanism in place I'm fairly certain. Though I still have qualms on the whole astroglide lubricated nature of that medium of contract acceptance.

[mindslight]

I know how the technical side works. But legally, what the company thinks you have signed isn't the final word.

Consider an analogous in-person situation of being presented with a one-signature agreement by a customer service rep. You can cross things out and sometimes the CSR will balk but often they will not. When they don't, it's likely because they're being lazy or succumbing to social pressure, as the customers usually do. So they accept the modified signed document, and pass it on to their back office or file it away.

The company would argue that the CSR is not empowered to make binding contracts on behalf of the company outside of the unilateral boilerplate. But you certainly haven't agreed to the bits you have crossed out before signing. The performance on both sides does show some kind of contract has been formed. But neither written document is straightforward evidence of the exact contract. I would suspect that few courts would find in your favor if you inserted unconscionable terms (eg company pays you $1MM). But when it's the company trying to push unconscionable terms (like making the words of the contract meaningless by removing your ability to take them to court), I could see it going either way.

[salawat]

I'm fairly sure this may fail muster as the only reason the one signature contract by the company to you is generally well tolerated is because it is unequivocally clear what your "consideration", (or what you get out of the arrangement) is in fact, and that by your acceptance, you state you are satisfied. In the case of software, that being access to the software itself in the form intended by the writer of the boilerplate contract.

It is not so clear that when you unilaterally cross things out, screenshot that altered document, then click accept that those terms are then binding on the counterparty since they have not had the opportunity to also stipulate or modify their terms (define their consideration) in light of your changes.

Legally speaking, there is nothing wrong with asking for different terms from the boilerplate, but economically and practically there is. It does single you out as a desirable client to fire.

In the end, it's not the legal construct of a contract that is the problem. It's that the market has widely deemed it acceptable to only automate or implement the first stage of it.

To offer an illustration of what should actually be done software-wise (super-ideal case);

You offer a short demo of the core value add, get passed the courtship phase and down to brass tacks. You are offered the boilerplate agreement with an option to accept as is, decline, or accept with modifications. Upon accepting with modifications, you are given a text entry box, and a helpful DSL to reference clauses you wish to change or strike. You utilize that, and click a confirmation button to send a message to a legally authorized representative of the vendor, who then formulates their consideration, and presents it back to you, repeat until everyone is happy.

Then you open the software and do your thing.

It should be quite evident why no one (given the economic optimization function) has converged on that solution.

It's way easier to just put enough in to defend you as a company in the boilerplate and rely on most people being unconditional to actual challenge your term offerings. That works absurdly well, and until it doesn't, I don't see a great opportunity for migration from the status quo to that. You might get slow adoption of that ideal workflow, but it will have to be paired with a better bottom line for service providers, otherwise they won't even bother to offer the actually legally complete communication channel as a first-class process.