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

Mon Apr 20 15:16:49 CDT 2009

Although one could argue that the previous president changed the terms and
condition by passing a law that the public wasn't aware until too late
called the pat act.

Where the people got screwed in loosing theyr rights, with no input
whatsoever. 

From: asterisk-biz-bounces at lists.digium.com
[mailto:asterisk-biz-bounces at lists.digium.com] On Behalf Of Drew Gibson
Sent: April-20-09 3:18 PM
To: Commercial and Business-Oriented Asterisk Discussion
Subject: Re: [asterisk-biz] FW: "illusory" terms of service

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> <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>
<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=1043
57>
<http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=1043
57>
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/> <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> <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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