Click Here to Cloud: End User Issues in Cloud Computing Terms of Service Agreements - Challenges of Information Management Beyond the Cloud - page 103

unconscionable but that result is now foreclosed by the United States Supreme Court
decision in AT&T Mobility LLC v. Concepcion [23]. Only Amazon Cloud Drive
contains an arbitration provision (“Any dispute or claim arising from or relating to the
Agreement or the Service is subject to the binding arbitration”). Such provisions must
now be examined in light of the Supreme Court decision and based on that assessment
the Amazon Cloud Drive arbitration provision appears enforceable. Other provisions
have been found to be unconscionable, such as provisions for unreasonably large
liquidated damages, or limitations on a debtor's right to redeem collateral [24], but
these provisions do not appear in the TOS reviewed here . Clauses waiving remedy for
economic loss are also upheld. Recall that all four TOS reviewed have some form of
damage limitation. In general there does not appear to be a provision in the TOS
reviewed that would be unconscionable as far as courts have thus far articulated the
doctrine. However, the doctrine is evolving. It may be that as licensors push the
envelope of obligations, restrictions, etc., upon users, courts will respond and expand
the list of unconscionable terms. It is clear that cloud computing licenses like
consumer software agreements are contracts of adhesion as there is no opportunity to
negotiate. The services are presented in a take-it-or-leave environment establishing
the first element of procedural unconscionability. This alone does not make such
agreements unconscionable as the substantive element is not present in the TOS.

Table 4. Comparison and summary of cloud computing TOS

Amazon
Cloud Drive

iCloud OpenDrive Dropbox

Formation
and
Terminatio
n
Provisions:
Contract
Formation
and Assent

Rather than a use
equals assent, there is
reference to a click-to-
agree mechanism.
Users must be over the
age of 12, an issue of
contractual capacity of
sorts, but this would
exist with users up to
the age of 18. Changes
in the terms can be
made at any time,
without notice, use of
the service after
changes equals assent
to changes in the terms.

Use equal assent.
Use equals authority
to enter contracts on
behalf of
organization. Users
must have the
capacity to contract
(be an adult).
Use after posted
change equals
assent.

Use equals assent.
Use equals
authority to enter
contracts on
behalf of
organization.
Authority to
contract

Use equals

assent.

(“it's

your
responsibility to
ensure that you
have the rights or
permission
needed to comply
with these
Terms”).