Fitocracy ToS, paragraph 7, Changes to ToS

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Martin Horník

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Mar 17, 2013, 8:08:41 AM3/17/13
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Hey there guys,

 

Fitocracy ToS link: https://www.fitocracy.com/tos/

Google cache link of 7 March 2013: http://webcache.googleusercontent.com/search?q=cache:WleWtckNusMJ:https://www.fitocracy.com/tos/+&cd=1&hl=en&ct=clnk&gl=sk&client=opera

 

In paragraph 7 it is stated that the Terms of Service can be changed without prior notice to users, which I take is a negative point. What do you guys think?

 

7 Changes

 

Fitocracy reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. Fitocracy may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.

Ian McGowan

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Mar 17, 2013, 8:12:17 AM3/17/13
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This is fairly standard practice, based on the services we've already (and continue) to review. It's definitely a negative, especially when the service puts the onus on the user/consumer to periodically check the ToS for changes, without notification to the user.

Ian

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Hannah Poteat

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Mar 18, 2013, 11:34:09 AM3/18/13
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It isn't just a negative, it also potentially invalidates the entire agreement. Courts repeatedly strike down terms of use that contain provisions claiming the right to unilaterally modify the entire contract without notification (see Harris v. Blockbuster Inc.). These days, the standard practice is to allow unilateral modification rights for minor changes to the terms of service (in other words, to say that it's the user's responsibility to check back on the ToS for minor changes), but the burden is on the company to notify users for material changes to the terms of service. 

Hannah

Aaron Kelly

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Mar 18, 2013, 12:02:25 PM3/18/13
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Has there been any case law on what constitutes material vs minor changes?

Aaron Kelly
- Sent from my iPhone 

Hannah Poteat

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Mar 18, 2013, 12:40:49 PM3/18/13
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There's a lot of law on that, yes -- in short, material changes are those that adversely affect the party that didn't make the change. For example, if I run a company and I have terms of service, I can change the terms of service to update my mailing address. That isn't a material change. It doesn't materially alter the agreement (in other words, it doesn't affect you, so you don't really have the right to complain). 

However, I can't go in and add an arbitration clause. I can't go in and change the amount you're charged for services. That adversely affects you, the user. That's a material change; it's a change in the basic agreement. If I assert that I can alter the agreement to that extent, courts may say there is no agreement at all, and the whole contract is void.

Roling v. E* TRADE Securities, LLC, 756 F. Supp. 2d 1179 (N.D. Cal. 2010)
Harris v. Blockbuster Inc., 622 F. Supp. 2d 396 (N.D. Tex. 2009)
Douglas v. US Dist. Court for Cent. Dist. Cal., 495 F. 3d 1062 (9th Cir. 2007)
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