By accepting this you agree to...

A client of mine asked today if she accepted free hardware from her credit card processor if she would or could be roped back into a contract that had already lapsed. I told her I didn’t think so, but couldn’t be sure.

I’ve seen checks in the mail that contract you to something if you cash them, and have seen software that has a start/begin/install button that has fine print below it saying that by clicking it you have agreed to the TOS.

I’m sure all of this varies by state, but what is and isn’t typically binding, and is there anything people should look out for?

Sorry for the generality, but I could see my clients situation going either way since she already had signed a contract with them, and extending one is cake. On the other hand them giving her free hardware and thus getting her on the hook for another 5 years seems criminal without her having to explicitly signing up for another contract.

The defenses of unconscionability, duress, or undue influence would be available, but their success would be very fact specific (e.g. sophistication of the parties, how fine was the print, was was the prior relationship of the parties, how much benefit did she receive, etc.)

What is “The defenses of unconscionability”? A nonsense contract?

Unconscionability
What it means in practice is going to vary depending on where you are – the U.S., the U.K., Canada, Australia, etc.

Sorry. It should read

The defenses of:

  1. unconscionability
  2. duress
  3. undue influence.