Information Technology Reference
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mechanism for assent to those terms such as a click-here-to-agree mechanism. In
cloud space environments the TOS are readily available for review by prospective and
current users. However, cloud services like many other web sites adopt a strategy
expressed in its TOS that use of the web site or in this case, use of the cloud space,
equates to assent with the TOS. With the exception of iCloud the TOS reviewed
equate use of the service with assent. This raises obvious problems not only regarding
initial contract formation but in change of terms, notice, etc. The reason that use-
equals-assent provisions are problematic is that it becomes difficult to know when use
indeed means assent or use is just that, regular use of the cloud service. Divining
assent from conduct that one would expect with a web service is not wise from the
perspective of a user as mere use could represent assent to terms that have changed,
acceptance of additional charges or increased pricing schemes, etc. How is use of the
service (an expected course of conduct) to be distinguished from assent? As discussed
below the mechanism for changing the TOS exacerbates this problem. After terms
have been changed by the cloud provider a user might log into their cloud service
without realizing the terms have changed. However since use equates to assent, the
user has unknowingly just agreed to those changes in the terms.
Table 1.
Change in terms provisions in cloud computing TOS
TOS
Provision
Amazon
Cloud
iCloud
OpenDrive
Dropbox
Drive
Change in
Terms
Provisions in
Cloud
Computing
“Apple reserves the
right to modify or
terminate the Service
(or any part thereof),
either temporarily or
permanently. Apple
may
post
on our
website and/or will
send an
email
to the
primary address
associated with your
Account to
provide
notice of any material
changes
to the Service.
It is
your responsibility
to check
your iCloud
email address and/or
primary email address
registered with Apple
for any such notices…
Your
continued use
of
the Service will be
deemed acceptance
of
such modifications and
additional terms and
conditions.”
“OpenDrive reserves
the right to modify
the terms and
conditions of this
Agreement or its
policies relating to
the Service at any
time,
effective upon
posting of an
updated version of
this Agreement on
the Service
.
You are
responsible for
regularly reviewing
this Agreement.
Continued
use
of
the Service after any
such changes shall
constitute
your
consent
to such
changes.”
“We may revise these
Terms from time to
time and
the most
current version will
always be posted on
our website
. If a
revision
, in
our sole
discretion
, is
material
we will
notify you
(for
example via email to
the
email
address
associated with your
account). Other
changes may be
posted to our blog
or
terms page, so
please
check those pages
regularly
. By
continuing to
access or
use
the Services after
revisions become
effective,
you agree to
be bound
by the
revised Terms.”
“We may amend
the Agreement at
our
sole discretion
by posting
the
revised terms in the
Service or on
Amazon.com
, but
any increase in
fees will not affect
the cost of your
Service Plan during
its term. Your
continued use
of
the Service or the
Software after any
amendment
evidences your
agreement to be
bound
by it.”
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