This Wisdom of the Crowd, compiled from responses posted on the IT, Privacy & eCommerce Forum* addresses limiting the right to revise user policies.
*(Permission was received from ACC members quoted below prior to publishing their Forum Comments in this Wisdom of the Crowd Resource)
Question
I'm a generalist working for a relatively small company that has been buying a growing number of Software as a Service (SaaS) services. Of course, I'm seeing a lot of common issues come up with the contracts proposed by the various service providers ("Software Co"). One such issue is that each includes a promise that we (and our end users, when applicable) will comply with the terms of use, privacy policy, and the like that Software Co not only has adopted but also any changes to such policies that Software Co may make during the term of the contract. Sometimes Software Co promises to give advanced notice, but it never offers a way to reject the changes if we find them objectionable. Occasionally, when Software Co is small and really wants our business, I'm able to negotiate for such a rejection option (making the contract and/or any related work order terminable by us), but not typically. I can understand that, but I'm still uncomfortable giving Software Co a blank check to change their policies to anything they wish and agreeing that we will abide by whatever those policies might happen to be in the future. Does anyone have any customer-friendly language addressing this that might be compromise acceptable to Software Co? Perhaps language that says any changes to their policies will be consistent with contemporaneous industry standards and will not require us or our end-users to materially alter their practices or something like that?
Wisdom of the Crowd
Response #1: I often offer as a compromise that we agree to such updates to the extent it doesn't conflict with our policies. Or I insist that the policy be attached as an exhibit rather than referring to it online to avoid that issue.1
Response #2: I do understand your pain, having dealt with Microsoft and others who essentially make most of their agreements subject to such variable provisions. At the same time, those provisions are there at the behest of the business, who needs/wants the ability to be agile in that area.
Generally speaking, it is quite difficult from a supplier perspective to agree to constraints regarding changes, even if we fully understand why you'd want them. As a result, I suspect they will be quite uncomfortable with the kinds of restrictions you referred to. They will likely not know what sort of changes could occur over time, and thus be loathe to constrain the business.
That said, they may be willing to allow you to terminate, if the changes - in the aggregate, taking all things into consideration - truly make matters materially worse. They won't want you to be able to use this clause as an excuse to get out of your agreement early, unless the situation really was worse overall.
Similarly, termination rights are likely more palatable than constraints on changes - better to perhaps lose a single customer rather than have the entire business unable to make a change that it feels it needs to.2
Response #3: I always attach the existing Terms & Conditions as an exhibit and state that changes that materially alter the purpose (xxxx) of this agreement is cause for termination because deemed as a material breach.3
Response #4: I have this issue with customers as I work for a telecommunications company and our agreements state that we can revise our policies. I have made changes, depending on the customer, stating that the policies are the company policies and carve out any pricing or fee structure policies, which will only be changed by mutual agreement. Often the customer doesn't realize that most of the policies that may be changed are internal facing.4
1Response from: Anonymous (June, 2016)
2Response from: Michael Stewart, General Counsel & Corporate Secretary, Halogen Software, Inc. (6/30/2016)
3Response from: Ellen Zavian, GC Services and FCBI, UBA (6/30/2016)
4Response from: Laura Norden, Senior Manager, Legal Contracts, Singapore Telecommunications Limited (7/01/2016)
Region:
United States
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