[asterisk-biz] FW: "illusory" terms of service

Drew Gibson aggibson at cogeco.ca
Mon Apr 20 14:18:29 CDT 2009 

The "Terms of Service" are a part of the contract, not separate from it.

I agree that there is a need for flexibility and that changes are 
necessary from time to time.

As broadband adoption and bandwidth has increased, it would be 
reasonable to increase the download cap from 1GB to 5GB per month.

If a new form of spam evolved that was not covered by the ToS it might 
be reasonable to add a prohibition to the "rules".

However, using the Blockbuster example, to change the agreement such as 
to include consent for an activity that would otherwise be illegal, I do 
not think that is reasonable without obtaining a positive acknowledgment 
from the customer.

Customers SHOULD be able to sue every time a rule change (without prior 
notice and consent) affects them in a negative and unreasonable manner 
just as a business will sue a customer if THEY change the rules in a 
negative and unreasonable manner (eg don't pay their bills).

The key concepts here are "reasonable" and "prior notice and consent"

If your minor change has little or no negative impact on customers, go 
ahead. That's reasonable.

If your major change IS reasonable, why not give prior notice and obtain 
consent?


regards,

Drew



SIP wrote:
> But that's just it. It's not a contract. These days, a Terms of Service
> agreement is really just marketing speak for 'Rules'
>
> You agree to abide by the rules, and all is well. The rules can change
> because the nature of the service or the legal system or the economy
> changes rather rapidly. You have to understand that, what we can offer
> today because of the way laws are written or decided, we may not be able
> to offer tomorrow.
>
> Rules change. That is the nature of technology.
>
> Should customers be able to sue every time a rule changes? That's
> essentially what's being decided here.
>
> If there's a formal contract, signed by both parties, then yes... it's
> insane to say "This contract will change on our whim." But Terms of
> Service are rarely formal contracts. They're more often a collection of
> rules by which the user needs to abide, and a bunch of legalese stating
> how many different ways a company is not responsible for things over
> which it has no control and/or bizarre expectations of the uneducated
> consumer.
>
> Which one was this?
>
> N.
>
>
> Drew Gibson wrote:
>   
>> Isn't the whole point of a contract to prevent the terms of an
>> agreement being changed?
>>
>> Sample Contract:
>> 1. Consultant A agrees to configure 1 Asterisk server.
>> 2. Customer B agrees to pay $100.
>> 3. Consultant reserves right to change terms at any time.
>>
>> Later....
>>
>> Consultant A: "Dear Customer, payment of the sum of $100 is past due,
>> please pay immediately.
>> Customer B: "But you haven't configured my phone system!"
>> Consultant A: "There was a slight change to change to the terms of the
>> agreement. I just added "if he/she feels like it" to the end of the
>> first line. You agreed to pay but I don't feel like doing the work.
>> Please send $100 plus interest."
>>
>> In this case I don't have much sympathy for Blockbuster.
>>
>> Perhaps adding a "change terms with 30 days notice and customer has
>> right to cancel contract (with full refund of outstanding services) if
>> not acceptable" might make it stick.
>> I remember seeing something like that in my cell phone agreement.
>>
>> regards,
>>
>> Drew
>>
>>
>>
>> Dean Collins wrote:
>>     
>>> While not restricted to online websites I’m wondering if some of the
>>> people on this list running USA based ITSP’s could be affected by
>>> this court case.
>>>
>>> Regards,
>>>
>>> Dean Collins
>>> Cognation Inc
>>> dean at cognation.net
>>> <mailto:dean at cognation.net>+1-212-203-4357 New York
>>> +61-2-9016-5642 (Sydney in-dial).
>>> +44-20-3129-6001 (London in-dial).
>>>
>>> ------------------------------------------------------------------------
>>>
>>> *From:* Dean Collins
>>> *Sent:* Monday, April 20, 2009 10:45 AM
>>> *Subject:* "illusory" terms of service
>>>
>>> First posted at:
>>> http://deancollinsblog.blogspot.com/2009/04/illusory-terms-of-service.html
>>>
>>>
>>>       * *
>>>
>>>
>>>       * *
>>>
>>>
>>>       *"Illusory" terms of service
>>>       <http://deancollinsblog.blogspot.com/2009/04/illusory-terms-of-service.html>
>>>       *
>>>
>>> Wow I’m not sure how many people caught this or understood the
>>> ramifications of it.
>>>
>>> I’m trying to do some additional research to find out what this means
>>> but this ruling at MediaPost.com
>>> <http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=104357>
>>> this morning caught my eye.
>>>
>>>
>>> //Lynn//// determined that Blockbuster's contract with users was
>>> "illusory" because the agreement said that movie rental store could
>>> change the terms and conditions at any time.///
>>> //A Blockbuster spokesperson declined to comment on the case or state
>>> whether the company will appeal. ///
>>>
>>> //The decision is a blow to Blockbuster because individual consumers
>>> would have had a difficult time bringing cases one-by-one against the
>>> company. But the decision paves the way for attorneys to argue that
>>> all consumers affected by Blockbuster's participation in Beacon
>>> should be able to proceed as a class. //
>>>
>>> //Internet law expert Venkat Balasubramani said Lynn's decision
>>> invalidating Blockbuster's user agreement was potentially
>>> far-reaching because many Web companies reserve the right to make
>>> changes to their terms of service. "It seems broad and could have
>>> impact on the terms of service used by a lot of different companies,"
>>> he said.///
>>> /
>>>
>>> I’m fairly sure this has to be appealed as couldn’t this throw a lot
>>> of User Agreements out the window? (I know it would affect my
>>> agreement at www.LiveBaseballChat.com
>>> <http://www.livebaseballchat.com/> out the window).
>>>
>>> Any thoughts about how this affects your business? Post below.
>>>
>>>
>>> Regards,
>>>
>>> Dean Collins
>>> Cognation Inc
>>> dean at cognation.net
>>> <mailto:dean at cognation.net>+1-212-203-4357 New York
>>> +61-2-9016-5642 (Sydney in-dial).
>>> +44-20-3129-6001 (London in-dial).
>>>
>>> ------------------------------------------------------------------------
>>>
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>> ------------------------------------------------------------------------
>>
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