Whether you're a consumer, an IT manager, or both, you should know how to defend yourself against evergreen clauses that automatically renew services you want to cancel. And some good ideas in that regard came from readers responding to my recent story about a homeowner who fell victim to a Brinks Home Security evergreen clause.
Auto-renewing clauses have been around a while, noted readers, the real problem is how much more aggressively some vendors are trying to enforce them. "Our company has a contract with a vending machine service," one wrote. "The contract was originally for three years and had a auto-renewal clause 60 days prior to the end which renewed for another three years! We were not aware of the evergreen clause and we by pure chance tried to cancel 45 days prior to the end of the original term. The owner of the vending service company, who just happens to be a lawyer -- what does that say about the company? -- said that he would be more than happy to take us to court if we tried to cancel. He even threatened to sue if we so much as told our employees not to use the machines. Needless to say, he got a registered cancellation letter the next day. Thankfully, our second three-year term will be up at the end of next month. This kind of contract should be totally illegal."
If businesses can fall prey to such practices, what can a lone consumer do? "Just draw a line through that sentence in the contract, initial it, and demand that your salesman initial it, too," another reader e-mailed me. "If he doesn't agree, he doesn't get your money. Nine times out of ten, he'll be happy to do it ... It's no skin off their nose, and they probably think those clauses are stupid, too."
IT managers have another weapon at their disposal when they spot an evergreen clause. "In my last job I was involved with many agreements that contained evergreen clauses, and I was burned by them a few times," posted one reader. "Finally I learned, if you can't avoid signing one, then you simply must send a registered letter of cancellation -- effective the ending date of the contract -- as soon as the contract is formally executed. You need to include a letter stating that you intend to renew but the cancellation is merely a legal formality. Then put your copy of the letter and the return receipt into the contract folder and give it all to Legal Affairs. This might not work for a consumer, but it always worked for me in the business world."
Or perhaps we should all consider trying to turn the tables in a bigger way. "Suppose we all had personal web pages where our ECPA -- End Customer Purchase Agreement -- was posted, stating that by offering goods for purchase, any seller is obligated by its willful commission of the sale to abide by our terms," wrote one reader. "And then we take them to the cleaners: ECPA to take precedence over EULAs, we get rights to enter their premises electronically and correct what we unilaterally perceive an injustice, unilateral changes to the agreement can be made without notice by posting them, etc. Clearly, such an 'agreement' would be laughable, but in what way would it differ from what happens to us? I think such a frivolous example might make a good way to get the point across to lawmakers, etc. How about an End Citizen Voter Agreement, an ECVA, where in turn for soliciting our votes, politicians were to be held accountable for their promises, and the truth of their statements about their opponents?"
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