Link to AWS TOS. The version I read is dated June 30 2020.
Disclaimer: I’m not a lawyer and you aren’t either, none of us are, it’s like Julia Roberts in the bookstore movie, I’m just a boy who reads a lot of TOS.
Other disclaimer: I was happy when I started reading this because normally these are long and this one was only 7200 words. The other shoe drops circa ‘incorporates the Policies by reference’.
Final disclaimer: This is part of a series where I read TOS and write them up inexpertly. The word ‘series’ at left is in blue because it’s a link.
- Terms I’ve already broken as of this writing
- Privacy + security
- IP stuff
- Indemnity + arbitration
- Probably wrong statements
- My customers are my agents?
Terms I’ve already broken as of this writing
you will only create one account per email address.
I’m creating this nth AWS account because my last one expired and I can’t recreate with the same email address.
You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings.
This blog post is breaking this clause.
Privacy + security
The Privacy Notice does not apply to Your Content
This comes at the end of a pretty strongly-worded ‘data privacy’ section (3.2), and probably just means ‘external privacy doc doesn’t apply, this paragaph rules’, but still is a creepy one liner.
To provide you with support services initiated by you and investigate fraud, abuse or violations of this Agreement, we may process Service Attributes where we maintain our support and investigation personnel
Note, Service Attributes is ‘Service usage data related to your account’. I would drop an ‘alleged’ in here. If you’re ‘investigating fraud or abuse’ and there was no fraud or abuse you could not have been investigating it.
You will ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content
You are responsible for properly configuring and using the Service Offerings and otherwise taking appropriate action to secure, protect and backup your accounts
Hmm; they offer backup services. Hmm. Does this mean external backups? Or confirming that backups are turned on? What if they turn them off?
we obtain no rights under this Agreement from you (or your licensors) to Your Content
Breath of fresh air. Social media sites find creepy ways to rephrase this. You get treated better when you pay for things in a competitive marketplace.
We or our licensors own all right, title, and interest in and to the Service Offerings, and all related technology and intellectual property rights
Probably not. I know they’re careful about GPL but I doubt they’re this careful. Also ‘all related technology’ sounds pretty broad. This is sort of amended here:
Some AWS Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail
… but not amended enough. ‘AWS Content and Third-Party Content’ is a narrower set of things than the ‘Service Offerings’ I think.
Indemnity + arbitration
You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims
Hmm. Bad PR but reasonable. I’m not familiar with the case law on indemnity in contracts of adhesion. FWIW twitter clone Parler has something similar to this and got panned for it.
AWS will, at its election, either: … or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
Hard to parse – does ‘allegedly infringing’ apply to ‘this Agreement’? Probably not but that would be a funny sentence.
only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim
Makes indemnity slightly less nuts.
Disputes will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify
There it is.
Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location
Never follow a hippie to a second location
We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action
Wonder how these clauses will evolve now that fairshake exists (form of class action that pummels vendors with tiny individual arbitrations).
you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
I wonder if this is about copyright or technology / trade secrets? I wonder if this is a toss-in or motivated by a (past or future) case.
Both parties reserve the right … to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
If netflix ever leaves aws they’ll lose so much trust.
Probably wrong statements
We may provide any notice to you under this Agreement by: (i) posting a notice on the AWS Site
Except to the extent caused by our breach of this Agreement … we and our affiliates are not responsible for unauthorized access to your account
Doubt it; guessing a court would at minimum interpret negligence according to the facts of the case.
Neither you nor any End User will … access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas
- this isn’t just restricting End Users doing this in connection with their use of the service; thus it’s overbroad
- they have a free tier, ‘avoiding incurring fees’ is something they just advertised to me one or two screens ago
- Not clear whether ‘avoiding’ applies to ‘exceeding usage limits’ or not. If it does, that’s wrong: AWS often advises you to stay under a limit / quota. If it doesn’t, that’s wrong too: AWS has a button that lets you increase your quota. Badly worded.
If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
This is funny but also wrong. They took language from IP assignment in an employment contract and applied it to a clause that’s about protecting them from being accused of plagiarism. I’ve seen fiction authors do this on their ‘letters to the author’ page (‘don’t send me ideas! I may steal them by accident’).
But the second half is probably too broad to enforce. I doubt any court would view this as a legitimate part of the contract, which is an exchange of money for hosting services; the customer isn’t being ‘hired to invent’, or hired at all. Also, for PR reasons, amzn can’t compel a customer to ‘perfect’ (= build!!) a suggestion.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the AWS Site … By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms
Tricky. They have some notice requirements, but I don’t understand how it can be a contract if there’s a unilateral right to amend. ‘Agree by using’ doesn’t, or in my opinion shouldn’t, meet the threshold of intent to contract. I know I’m a broken record on this.
We last modified this Agreement on the date listed at the end of this Agreement
Wrong! There’s a ‘last updated’ date at the top.
My customers are my agents?
You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement
Yikes; this is saying that your customers are your agent. There’s a literal interpretation here that says someone who launches a DDOS attack against you is your agent (in that your software is working to an extent with theirs). That’s nuts.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account.
This definition includes a hacker. The ‘indirect’ piece means that if someone steals a printout of my website in a mugging, they are an ‘End User’.
Overbroad = overturn.
You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email
Sounds bad but probably fine, but also e-sign companies should create email version of certified mail now that the PO is going OOB.
To Us. To give us notice under this Agreement, you must contact AWS by facsimile transmission or personal delivery, overnight courier or registered or certified mail to the facsimile number or mailing address, as applicable, listed for the applicable AWS Contracting Party in Section 14 below
Giving AWS notice is harder than them giving you notice.
We may change or discontinue any of the Services from time to time. We will provide you at least 12 months’ prior notice if we discontinue material functionality of a Service that you are using
I’m in love. Typical clickwrap is lets the author amend the contract according to the phases of the moon. This is how serious people sell a service.
You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism
Account closing mechanism! This is a breath of fresh air compared to subscription services which just want you to not shut it off. This is the law in california but nobody does it well.
If we suspend your right to access or use any portion or all of the Service Offerings: (a) you remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service
This is more okay than it sounds: ‘suspension’ here is triggered by malfeasance or financial trouble. But as a one-liner still sounds bad.
‘We will charge you AND not give you anything’ is like an anti-contract. From what I know of real-life AWS collections operations (which is more than I would like), they’ll bend + negotiate once it’s clear you can’t pay the full amount, just like you can usually shrink your AWS bill with a phone call.
This Agreement incorporates the Policies by reference … “Policies” means the Acceptable Use Policy, Privacy Notice, the Site Terms, the Service Terms, the Trademark Use Guidelines, all restrictions described in the AWS Content and on the AWS Site, and any other policy or terms referenced in or incorporated into this Agreement, but does not include whitepapers or other marketing materials referenced on the AWS Site.
I knew this couldn’t be the whole thing.
We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document …
This happened to a Russian bank I think – a guy amended the credit card or something and then mailed in a signed copy and then sued them to abide by his terms.
There’s a changelog! https://aws.amazon.com/agreement/recent-changes/
DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT
I haven’t seen ‘QUIET ENJOYMENT’ before (with or without caps). This is my favorite thing in here so far.
acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Not sure why there’s a timeline of 2020 in here but there you go.
If I had 6 months on my hands I’d lobby for a state-level bill requiring contracts to distinguish between acts of god vs those of evil supernatural entities.