(Archived) Evernote limiting your rights

[ClintER 1]

Evernote is changing their terms of service to limit their liability, and limit your rights. How? By using the Supreme Court ruling at&t vs concepcion to change the terms of service, eradicating your right to participate in a class action case, and force mediation; even if Evernote was to commit fraud, leak your information, or any other circumstance.

They have done this on a holiday weekend, showing how gutless they truly are at the core!

If Evernote proceeds with their change in tos, look for another cloud option; their is plenty of competition not looking to ***** their customers!

attconcepcion.pdf

[ToeKnee 0]

Actually, if you follow the link in their email announcing the upcoming changes, the page it takes you to has the "new" policies listed but both of them state that these policies take effect on Jan. 4, 2012. I'm assuming this is just a fat finger typo....

[GrumpyMonkey 4,319]

Evernote is changing their terms of service to limit their liability, and limit your rights. How? By using the Supreme Court ruling at&t vs concepcion to change the terms of service, eradicating your right to participate in a class action case, and force mediation; even if Evernote was to commit fraud, leak your information, or any other circumstance.

They have done this on a holiday weekend, showing how gutless they truly are at the core!

If Evernote proceeds with their change in tos, look for another cloud option; their is plenty of competition not looking to ***** their customers!

Hi. Welcome to the forums and thanks for bringing this up for discussion. I am not pleased with several parts of the current terms of service (TOS), or the new one that Evernote will introduce next month. In my experience with cloud service providers, as far as limiting our right to class action suits, Evernote's TOS does indeed go beyond what seems to be standard in the industry. However, I am not sure I would do any different if I were in their shoes, especially considering the massive scale of hacking incidents that have occurred in recent years on major companies. I wonder how other users feel.

I do think a few points need to be clarified, though:

(1) You are wrong about the timing of the change. Evernote informed users about this coming change at least as early as November 8, approximately one month before the new terms are to go into effect on December 4.

(2) I believe you are referring to the clause about the arbitration agreement. As you can see below (the first quoted passage), there is an opt-out procedure for current members.

(3) Evernote already had protected themselves (in my opinion) rather well against lawsuits from fraud, data loss, etc. See #13 below (the second quoted passage.

Arbitration Agreement.

If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and Evernote agree that any and all disputes or claims that have arisen or may arise between us - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

Our arbitration proceedings would be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Evernote users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.

The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, Evernote will pay all filling, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Evernote will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Evernote for all fees associated with the arbitration paid by Evernote on your behalf, which you otherwise would be obligated to pay under the AAA's rules.

YOU AND EVERNOTE AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER EVERNOTE USERS.

Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply.

Opt-Out Procedure.

Although we feel the arbitration of claims would be mutually beneficial, we understand that certain existing Evernote users might find this change objectionable. Accordingly, we want to enable anyone who is an Evernote user prior to the Effective Date of these terms the opportunity to opt-out of the Arbitration Agreement (including the Prohibition of Class and Representative Actions). In order to do so, you must send a written notice to us at Evernote Corporation’s address provided above that contains the following: (i) the statement “I do not agree to the Arbitration Agreement” and (ii) your username and email address associated with the Evernote account(s) to which the opt-out shall apply. You must sign the opt-out notice and ensure it is delivered to us no later than 30 days after the Effective Date posted at the top of these Terms for it to be effective. This procedure is the only way you can opt-out of the Arbitration Agreement. If you opt-out of the Arbitration Agreement, the rest of these Terms shall continue to apply, including the Alternative Dispute Resolution Process. In addition, opting out of the Arbitration Agreement has no effect on any previous or future arbitration agreement that you may have with us.

---------- ---------- ---------- ---------

13. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVERNOTE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

( EVERNOTE DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ERRORS IN THE SOFTWARE WILL BE CORRECTED.

© ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EVERNOTE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

14. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT EVERNOTE, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF EVERNOTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (v) EVERNOTE’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.

[jefito 5,589]

I think that the new TOS goes into effect on 12/4, but you have 30 days from that date to opt out, putting the effective date at 1/4/2013.

[ClintER 1]

AT&T as just one example used this technique to throttle grandfathered unlimited data subscribers without notifying them until after they were locked into two year agreements (in the USA).

For the vast majority of individuals and corporate users who will not read this, fill out notification to opt out, send it certified mail, one's rights are essentially thrown away.

Undoubtedly, their corporate lawyers have recommended this as a way to limit liability. What it really does is show the nature of the business. IMO, it says Evernote once the new TOS is in affect will do whatever they please. As this has been my experience with 100% of the corporations which have manipulated AT&T vs. Concepcion.

You've been warned.

[GrumpyMonkey 4,319]

AT&T as just one example used this technique to throttle grandfathered unlimited data subscribers without notifying them until after they were locked into two year agreements (in the USA).

For the vast majority of individuals and corporate users who will not read this, fill out notification to opt out, send it certified mail, one's rights are essentially thrown away.

Undoubtedly, their corporate lawyers have recommended this as a way to limit liability. What it really does is show the nature of the business. IMO, it says Evernote once the new TOS is in affect will do whatever they please. As this has been my experience with 100% of the corporations which have manipulated AT&T vs. Concepcion.

You've been warned.

Thanks for the warning. Could you tell us what other companies have adopted these new terms in their TOS and how they have changed their business practices afterwards? I am aware of the ATT case, but not of others.

As for Evernote, the service is free, so I am not sure what they could really do to harm you financially. As for limiting their liability, I don't think they were very exposed before, so I am not sure this will change anything significantly for most customers. Of course, as a consumer / customer / user, I don't enjoy seeing my rights curtailed in this fashion, but as you said, this is the way businesses are headed. I don't see anything malevolent in what Evernote is doing here.

[ClintER 1]

For those that wish to remain a customer of Evernote one should strongly consider doing the following:

Note: Send it certified mail, if you don't it just might get "lost." Thus, you'll be S.O.L., even if you followed proceedure in the limited window of time.

Opt-Out Procedure.

Although we feel the arbitration of claims would be mutually beneficial, we understand that certain existing Evernote users might find this change objectionable. Accordingly, we want to enable anyone who is an Evernote user prior to the Effective Date of these terms the opportunity to opt-out of the Arbitration Agreement (including the Prohibition of Class and Representative Actions). In order to do so, you must send a written notice to us at Evernote Corporation’s address provided above that contains the following: (i) the statement “I do not agree to the Arbitration Agreement” and (ii) your username and email address associated with the Evernote account(s) to which the opt-out shall apply. You must sign the opt-out notice and ensure it is delivered to us no later than 30 days after the Effective Date posted at the top of these Terms for it to be effective. This procedure is the only way you can opt-out of the Arbitration Agreement. If you opt-out of the Arbitration Agreement, the rest of these Terms shall continue to apply, including the Alternative Dispute Resolution Process. In addition, opting out of the Arbitration Agreement has no effect on any previous or future arbitration agreement that you may have with us.

Evernote Corporation

305 Walnut Street

Redwood City, California 94063 USA

Attention: General Counsel

Evernote GmbH

Josefstrasse 59

8005 Zurich, Switzerland

Attention: Legal Notice

[gazumped 11,664]

Thanks for the heads up, but since Evernote has been pretty good to most people here for a number of years I think we feel fairly secure. There are other solutions out there that I could use instead, but as of this moment, Evernote is the closest fit to my needs. I have backup of my data locally in case the Internet (or Evernote) is unreliable for any reason, and not being totally clueless I withhold some data from Evernote that is private or commercially confidential. I don't even plan to opt out because the chance of my needing to pursue any action against the company is low to non-existant. I'm not a company employee or a plant, just a happy (but careful) user. The company will inevitably get further from its customers the bigger it gets - but if I get unhappy I'll just move.

If we were talking banking services now.. but don't even.

[Metrodon 2,184]

Thanks for the warning. Could you tell us what other companies have adopted these new terms in their TOS and how they have changed their business practices afterwards? I am aware of the ATT case, but not of others.

[jefito 5,589]

You have been "yawned".

I'm with gazumped, particularly the last. bit:

Thanks for the heads up, but since Evernote has been pretty good to most people here for a number of years I think we feel fairly secure. There are other solutions out there that I could use instead, but as of this moment, Evernote is the closest fit to my needs. I have backup of my data locally in case the Internet (or Evernote) is unreliable for any reason, and not being totally clueless I withhold some data from Evernote that is private or commercially confidential. I don't even plan to opt out because the chance of my needing to pursue any action against the company is low to non-existant. I'm not a company employee or a plant, just a happy (but careful) user. The company will inevitably get further from its customers the bigger it gets - but if I get unhappy I'll just move.

[spg SCOTT 736]

Actually, GM was right: 8th Nov

http://blog.evernote.com/2012/11/08/important-note-new-legal-page-and-changes-to-our-contracts-coming-soon/

[jbenson2 2,147]

Yawn is good description.

My view of the response to the new TOS

http://www.evernote....89e4573d657b458

[ClintER 1]

Often companies that apply this technique to eliminate class action already know they have violated the law(s), and are attempting to minimize damages by changing their ability to file a class action case.

Cloud technology is a prefect example of a situation where a class case would be appropriate if Evernote hypothetically released your information whether fraudulently, by hacking, or other means.

For Evernote to state that they are doing customers a favor to not have to travel to California to sue is 100% false. One does not have to file in the 9th Circuit for a class action case involving Evernote, or any other California based company for that matter.

Per request for another example: Frontier Communications NYSE symbol: FTR was confronted with illegally charging taxes in violation of The Internet Freedom Act, and other fruadulent charges which they attempted to claim as government mandated; which was not the case.

Upon receiving notice at their corporate headquarters in CT, USA, instead of halting the (alleged) illegal practices, they changed their TOS to eliminate class action and force mediation.

A class action was filed in the window of time before the TOS changed, otherwise millions of customers who have unknowngly been overcharged would have been forced to go to mediation or conciliation court individually. Because this action was filed, Frontier Communications customers upon the pending settlement will be forced by the US Federal Court to contact ALL customers of the settlement.

Thus, when you give away your rights, you also give away the potential of knowledge. As mediation is not public record, and in the vast majority of cases contains language of no wrongdoing and a NDA (Non Disclosure Agreement).

http://www.startribune.com/business/131563168.html?refer=y

[BurgersNFries 2,407]

You have been "yawned".

I'm with gazumped, particularly the last. bit:

Thanks for the heads up, but since Evernote has been pretty good to most people here for a number of years I think we feel fairly secure. There are other solutions out there that I could use instead, but as of this moment, Evernote is the closest fit to my needs. I have backup of my data locally in case the Internet (or Evernote) is unreliable for any reason, and not being totally clueless I withhold some data from Evernote that is private or commercially confidential. I don't even plan to opt out because the chance of my needing to pursue any action against the company is low to non-existant. I'm not a company employee or a plant, just a happy (but careful) user. The company will inevitably get further from its customers the bigger it gets - but if I get unhappy I'll just move.

Yup. Yawning & wondering what all the fuss is about.

Often companies that apply this technique to eliminate class action already know they have violated the law(s), and are attempting to minimize damages by changing their ability to file a class action case.

Cloud technology is a prefect example of a situation where a class case would be appropriate if Evernote hypothetically released your information whether fraudulently, by hacking, or other means.

For Evernote to state that they are doing customers a favor to not have to travel to California to sue is 100% false. One does not have to file in the 9th Circuit for a class action case involving Evernote, or any other California based company for that matter.

Per request for another example: Frontier Communications NYSE symbol: FTR was confronted with illegally charging taxes in violation of The Internet Freedom Act, and other fruadulent charges which they attempted to claim as government mandated; which was not the case.

Upon receiving notice at their corporate headquarters in CT, USA, instead of halting the (alleged) illegal practices, they changed their TOS to eliminate class action and force mediation.

A class action was filed in the window of time before the TOS changed, otherwise millions of customers who have unknowngly been overcharged would have been forced to go to mediation or conciliation court individually. Because this action was filed, Frontier Communications customers upon the pending settlement will be forced by the US Federal Court to contact ALL customers of the settlement.

Thus, when you give away your rights, you also give away the potential of knowledge. As mediation is not public record, and in the vast majority of cases contains language of no wrongdoing and a NDA (Non Disclosure Agreement).

http://www.startribu...68.html?refer=y

If you think your rights aren't already limited IN MANY OTHER WAYS already, just read your dry cleaning ticket or your parking valet ticket or your ticket when you take your car to the car wash or a gazillion other things/places. As Gazumped & Jefito said, I'm fully aware of the dangers of cloud technology as well as encryption. It's called being responsible for your own actions. Stuff like this is a two way street. Just because a company updates their TOS doesn't mean they are bad. Yes, they are covering their butts. But (NPI) that doesn't mean they are automatically bad. Just like that doesn't mean I won't take my clothes to the dry cleaners, take my car to the carwash or valet park my car. It just means I will not leave expensive stuff in my car when I get it washed or valet park it.

[GrumpyMonkey 4,319]

Often companies that apply this technique to eliminate class action already know they have violated the law(s), and are attempting to minimize damages by changing their ability to file a class action case.

Often?

Cloud technology is a prefect example of a situation where a class case would be appropriate if Evernote hypothetically released your information whether fraudulently, by hacking, or other means.

Perhaps. However, I wonder how far we get when the TOS already says that we will not hold Evernote responsible for such things. I am no legal expert, but it seems to me that we don't have much of a leg to stand on.

For Evernote to state that they are doing customers a favor to not have to travel to California to sue is 100% false. One does not have to file in the 9th Circuit for a class action case involving Evernote, or any other California based company for that matter.

I don't know if they said they are doing customers a favor. I think they are saying that if you want to refuse arbitration, then you'll have to accept the jurisdiction of the local California court. I don't see a change here from the previous TOS, and I don't know if there is anything about traveling implied there.

Per request for another example: Frontier Communications NYSE symbol: FTR was confronted with illegally charging taxes in violation of The Internet Freedom Act, and other fruadulent charges which they attempted to claim as government mandated; which was not the case.

Thanks for supplying this example. As Evernote doesn't charge any fees, I think this would be a difficult analogy to draw. I can imagine a situation in which Evernote loses customer data, and users try to sue them over it, but again, it seems that the wording of the TOS protects them pretty well against that already.

I am not saying you don't have a point, and I am not saying that I don't harbor reservations any time I have to sign away my rights, but as far as Evernote goes, this is not something I feel is underhanded, gutless, etc. I am afraid I am unconvinced about the nefarious nature of this clause. I am not saying I am right. I am just saying I don't see it as such a frightening thing. I am more interested in that clause (in the last TOS as well) about not being liable for anything that happens to my data! I think I understand why that is there, and I trust Evernote, but it still seems like something you shouldn't be saying to someone when they hand over their data for you to hold onto

[ClintER 1]

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Benjamin Franklin

I'm not saying Evernote is "evil." Simply providing real life examples of how law really works with first hand experience, and millions of consumers that have been s c r e w e d because took a laissez-faire attitude to their person, and more importantly business/company data. If your company uses Evernote and they get hacked or release data, YOU are on the hook! If you are a CEO, and do not list this as a possible liability YOU are violating The Sarbanes-Oxley Act.

There is a reason they are moving to Switzerland and not an EU member state, it is called CYA, and F.U. customer if they "mess up." Good luck fighting a battle against the Swiss.

[GrumpyMonkey 4,319]

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Benjamin Franklin

I'm not saying Evernote is "evil." Simply providing real life examples of how law really works with first hand experience, and millions of consumers that have been s c r e w e d because took a laissez-faire attitude to their person, and more importantly business/company data. If your company uses Evernote and they get hacked or release data, YOU are on the hook! If you are a CEO, and do not list this as a possible liability YOU are violating The Sarbanes-Oxley Act.

There is a reason they are moving to Switzerland and not an EU member state, it is called CYA, and F.U. customer if they "mess up." Good luck fighting a battle against the Swiss.

I don't know of old Ben is the best person to bring into this. I think he was talking about something a little different than a private company holding some of your information... for free! Evernote doesn't read our stuff, they don't sell it, we have control over it, and we don't ever have to pay a penny. It seems to me this is a pretty good deal that Ben wouldn't be against

As for Switzerland, I have no idea about the rules and regulations in the EU. EN has had an office in Switzerland for quite a while I believe, so I guess it might have something to do with that as well. For the Americans among us, the headquarters in California is still there. Are there any folks in Europe who could shed some light on this? Should we be concerned about EN doing this?

[jbenson2 2,147]

I was a European Sales Manager and lived in England for a few years. Back on USA soil now.

From my experience, I would much prefer dealing with a company in Switzerland than a company in France, Spain, Portugal, Italy or Greece.

[tardis 87]

"Do not anticipate trouble, or worry about what may never happen. Keep in the sunlight."

- Benjamin Franklin

I also have to put this in the pile of things I'm just not going to worry about. For one thing, Evernote has yet to show that it plans to use my data for nefarious purposes. For another, I'm a historian so I have neither company secrets nor documents detailing any great wealth and assets. I've got a lot of academic papers about medieval Europe, pictures of castles, churches, and doublets, a list of books to read, some receipts from Amazon, and a couple of pictures of funny cats. Not to mention three years of incredibly boring journal entries.

On principle, I don't want Evernote touching this stuff but realistically I know they won't because I'm not exactly storing launch codes. If I did have the launch codes, I wouldn't put them in Evernote. If you have data that could wind you up in court over it, maybe it shouldn't be put in the cloud in the first place.

[heather 604]

By the way - I can tell you that you do *not* need to send a certified letter. When you send the email as directed in the ToS, you will get a digital receipt. If you do not get that (relatively soon), then we didn't get it. Try again.

There's your proof that you've opted out.

[ClintER 1]

Please provide the email address, and official language required to "opt out," for your new pending TOS.

In addtion please provide the link stating this method is acceptable as the language reads to opt out requires a letter to be physically mailed.

Thank you.

[GrumpyMonkey 4,319]

Please provide the email address, and official language required to "opt out," for your new pending TOS.

In addtion please provide the link stating this method is acceptable as the language reads to opt out requires a letter to be physically mailed.

Thank you.

Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Evernote must be delivered by email to compliance AT evernote DOT com. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):

----------

In order to do so, you must send a written notice to us at Evernote Corporation’s address provided above that contains the following: (i) the statement “I do not agree to the Arbitration Agreement” and (ii) your username and email address associated with the Evernote account(s) to which the opt-out shall apply.

[MTT 0]

GrumpyMonkey: The notice goes on to say that "You must sign the opt-out notice" - and you can't sign an email.

Heather: You said that once we "send the email as directed in the ToS, you will get a digital receipt" - but since it's not possible to sign an email, your directions still do not make sense. So again, how can users opt out and obtain proof that they have opted out?

[heather 604]

We try to make things clear, and you're obviously trying to obfuscate them and confuse people.

If you want to email it, *like the bolded parts above are clearly telling you to do*, then email it. I'm telling you that you *will* get a receipt and you're done, that's it. That's all you need to do.

If you want to mail it in, then mail it in. It's your choice.

I am not a lawyer, and I can't speak to what constitutes a digital signature or explain our terms to you. If you have any questions about the process or terms, then you can mail the legal team at the same address.

[gazumped 11,664]

By the way - I can tell you that you do *not* need to send a certified letter. When you send the email as directed in the ToS, you will get a digital receipt. If you do not get that (relatively soon), then we didn't get it. Try again.

There's your proof that you've opted out.

[Mike Wood 139]

As for Switzerland, I have no idea about the rules and regulations in the EU. EN has had an office in Switzerland for quite a while I believe, so I guess it might have something to do with that as well. For the Americans among us, the headquarters in California is still there. Are there any folks in Europe who could shed some light on this? Should we be concerned about EN doing this?

Switzerland is more likely to be a TAX efficiency measure... http://www.bbc.co.uk...siness-11618922 (which some people consider 'evil' )

& what could EN possibly do to us, that they haven't already done in the last 3 weeks? LOL

[Metrodon 2,184]

The Swiss also have better chocolate.

[tardis 87]

& what could EN do to us that they haven't in the last 3 weeks already? LOL

Put the back button in 5.0.1 of the Mac release and then take it out again in 5.0.2.

Evil.

[GrumpyMonkey 4,319]

& what could EN do to us that they haven't in the last 3 weeks already? LOL

Put the back button in 5.0.1 of the Mac release and then take it out again in 5.0.2.

Evil.

Not evil if it is covered in the TOS, right?

We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any Evernote Software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us.

[Mike Wood 139]

@Heather why not automatically opt all existing clients out of this........ perhaps with an opt IN option?

Would be the simplest & fairest solution?

[GrumpyMonkey 4,319]

@Heather why not automatically opt all existing clients out of this........ perhaps with an opt IN option?

Would be the simplest & fairest solution?

That would mean that Evernote would have to go forward with 40 million + users not covered by the new TOS clause. I think that Evernote is correctly calculating that only a tiny fraction of these users (a few thousand at most?) will bother to opt out of the new clause. Heck, I bet only a few thousand of the users have ever even seen the TOS.

It seems perfectly fair to me, and pretty simple. In fact, I think it is pretty cool that they gave us a way to opt out, and I wonder if they were legally obligated to do so. I kind of doubt it.

[Mike Wood 139]

It seems perfectly fair to me, and pretty simple. In fact, I think it is pretty cool that they gave us a way to opt out, and I wonder if they were legally obligated to do so. I kind of doubt it.

LOL If it were to our advantage it would likely be an opt IN... Its a bit like a Government consultation process... go through the motions and do what you like.

EN will and have generally done what they like, its not necessarily a bad thing, many dictatorships have thrived.

http://en.wikipedia.org/wiki/Dictatorship

[ClintER 1]

Evernote,

Just be honest and say that you're doing this to limit your liability.

Mediation is ALWAYS the preferred method for corporations over being on the record in a court of law.

Have any of your employees lost a laptop with customer's personal data?

Has Evernote ever had a security breach?

[jefito 5,589]

@Mike: It's not "going through the motions" if the opt-out option is real, and give that they've taken some pains to contact every Evernote user via email. Likening Evernote to a dictatorship isn't particularly credible -- dictatorships generally thrive via force of arms, with no opt-out clause.

[jefito 5,589]

The Swiss also have better chocolate.

They're crankier, though, based on a sample size of two disgruntled Amtrak passengers on a cross-US train ride who were torqued about delays (well, they're Swiss), accommodations, food, etc.

[Mike Wood 139]

@Mike: It's not "going through the motions" if the opt-out option is real, and give that they've taken some pains to contact every Evernote user via email. Likening Evernote to a dictatorship isn't particularly credible -- dictatorships generally thrive via force of arms, with no opt-out clause.

OK put it another way in what way 'generally' is EN a democracy?

Lets face it some of the most successful companies have been so described! http://techcrunch.co...tatorship-mode/

and http://tech.fortune.cnn.com/2011/08/25/how-apple-works-inside-the-worlds-biggest-startup/

[jefito 5,589]

OK put it another way in what way 'generally' is EN a democracy?

There are more modes of government than just democracy and dictatorship. Moreover, analogies being what they are (imperfect), companies are not governments, and customers are not citizens. You can choose to trust Evernote's intentions with respect to TOS, direction, strategies, whatever, and support them with your patronage. Or you can move down the street to another product and use and pay for that. You do not always have that luxury in true dictatorships.

[BurgersNFries 2,407]

OK put it another way in what way 'generally' is EN a democracy?

EN is a business, not a government. Last I knew, it's privately held. As a "small" (privately held) business owner for several decades, it's up to those who know the product intimately and whose livelihoods depend upon the success of the product(s) to make the decisions. It's annoying as hell when a user thinks they know everything about our product/company & that we should do what *they* think we should do. Sometimes they are right. Most of the time they are not b/c they are not privy to how that may affect other users. (Or sometimes they just don't think about it or care about it b/c they want what they want.)

And yes, any responsible company will try to protect/limit their liabilities. (Read my earlier post regarding dry cleaners, car washes & valet parking.) When an existing company has a lot of customers/users/employees, one of their main goals is to stay afloat and profitable in order to continue to provide their product/service to their customers/users and provide jobs for their employees. Anyone who's ever lived this knows it ain't always as glamorous as it may appear to those who simply get a paycheck every week.

[ClintER 1]

Even if one opts-out, Evernote is putting the following (listed below) in force regardless of your local laws. In my jurisdiction it is six years.

Evernote is voiding your rights to pursue action against them for ANY reason!

By doing so, Evernote is shifting the risk to YOU, especially if you are a business customer.

Any financial institution that uses Evernote, now must notify ALL of their customers of these TOS. Or they will be in violation of:

"Gramm-Leach-Bliley Act (1999)

Regulation P -- Privacy of Consumer Financial Information. Describes the conditions under which financial institutions may disclose nonpublic personal information about consumers to nonaffiliated third parties, provides a method for consumers to opt out of information sharing with nonaffiliated third parties, and requires financial institutions to notify consumers about their privacy policies and practices."

Evernote, I will personally see to it that every financial institution I have dealings with this is aware of your TOS.

Evernote, consider this your notice to cease and desist.

Your proposed TOS below is unacceptable. FYI, just because you write it and try to slide it by the masses doesn't make it legal!

"Claims Are Time-Barred.

You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim."

[GrumpyMonkey 4,319]

Actually, as far as I can tell from what you have posted, and from what I know about the Supreme Court case, Evernote's actions are entirely legal. Wouldn't you agree?

The Supreme Court essentially said that under current laws, a company can protect itself from class action suits by including clauses like this in their terms of service, and so that is what Evernote has done. If Congress decides to pass a law on the matter, then something might change, but until then, it is perfectly legal.

I'm not speaking on whether this is "good" or "bad" for users. I am simply pointing out that your objection about it "not being legal" does not sound correct to me. I respect your passion about this, but I do not think it is fair to direct your wrath at Evernote, which is functioning exactly as a business would be expected to under the law. I am sure we will see many more businesses join Evernote, and the best way to address the online privacy / class action suit problem would probably be to put pressure on your local representative in Congress.

[BurgersNFries 2,407]

ClintER...it's very simple. Very, very simple in fact. If you don't agree with the TOS, don't use EN. (shrug)

[ClintER 1]

Few things in law are "simple."

Even if I choose not to use Evernote. Financial institutions who do use Evernote will be violating the law, PERIOD.

If Evernote wants to change their TOS, every financial institution is going to have to scrub every employees computers and phones from this service. Their TOS violates my privacy, regardless of whether I use it or not.

Go ahead and change the TOS Evernote to rewrite the law on statutes of limitation, and find yourself out of ANY financial institutions as a customer; less they will be in court.

[BurgersNFries 2,407]

Few things in law are "simple."

Even if I choose not to use Evernote. Financial institutions who do use Evernote will be violating the law, PERIOD.

If Evernote wants to change their TOS, every financial institution is going to have to scrub every employees computers and phones from this service. Their TOS violates my privacy, regardless of whether I use it or not.

Go ahead and change the TOS Evernote to rewrite the law on statutes of limitation, and find yourself out of ANY financial institutions as a customer; less they will be in court.

You're wrong.

However, you've had your say.

Please take your flag waving elsewhere. Nothing new to see here.

[ClintER 1]

Sorry, I'm not wrong.

The law is very clear.

Best I can see waving the flag is "Ms. Evernote Evangelist."

Do you work in the financial industy?

Have you ever dealt with a legal case regarding TOS?

For myself, the answer is yes, and yes.

[BurgersNFries 2,407]

Sorry, I'm not wrong.

The law is very clear.

Best I can see waving the flag is "Ms. Evernote Evangelist."

Do you work in the financial industy?

Have you ever dealt with a legal case regarding TOS?

For myself, the answer is yes, and yes.

Yes, you are wrong. No, I'm not in the financial industry. (Funny how you think those who disagree with you must be "the enemy". I guess you simply can't deal with the fact that someone may disagree with you.)

Personally, I'm MUCH more concerned about the reelection of Obama & what is going to happen in the U.S. b/c of that than I am about Evernote's TOS.

I'm done here.

[jbenson2 2,147]

Sorry, I'm not wrong.

The law is very clear.

You might want to stop bringing up your "financial institution" broken record.

The Evernote CEO, Phil Libin, has said Evernote does not expect to sell to financial institutions.

"I think companies that are not comfortable using the cloud aren't going to be Evernote customers," Libin said. While he estimated that may eliminate 50 percent of potential corporate business, he expects that more companies are going to get comfortable using cloud products in the future.

Libin isn't expecting to sell to financial institutions

since, he said, that is the industry least likely to purchase cloud products at the moment.

Source

[jefito 5,589]

Let's face it; any financial institution worthy of the name is going to have a legal team that's going to be able to understand the implications far better than the average forum user (and if they're an existing Evernote user, they've already been informed and are probably all over it already). So sure, it's fine to raise the flag; but I don't see the point of waving it too vigorously. On a personal level, it's pretty much a "don't care" about the new TOS, and also about the implied "loss of freedoms" that that entails. So i'm strikin' a blow for freedom (of choice) and stayin' strong with my sheeples. And staying the heck out of the political aspects of it all, as that's not particularly germane to the General Discussion About Evernote forum.

[ClintER 1]

ANY company that uses this product placing any consumer information is going to have to disclose it to their clients, PERIOD.

Per The Privacy Act of 1974, Revised 2010

The "No Disclosure Without Consent" Rule

"No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions]." 5 U.S.C. § 552a (

.

http://www.justice.g.../1974condis.htm

[gazumped 11,664]

Not to disparage Evernote in any way, but banks tend to be fanatical about security and stability - we customers take it so badly when they're not - and no financial institution is going to put their information into a third-party software provider, particularly one that updates its software pretty frequently and wants to store data on its own servers somewhere else in the world.

Financial institutions have their own servers, IT staff and bespoke software and internal security that probably would make it impossible for any member of staff to keep even their own personal data in Evernote - and these days laptops and USB drives tend to be heavily encrypted in case they are stolen or left on a train.

In the event that Evernote is part of any corporate banking software strategy, the company will have had a team of lawyers going over every word of their agreements and contracts, and will already have a corporate disaster plan in place should they need to replace this particular strand at any time. If there are any such existing clients, they will have accepted the existing TOS (or their variation of it) and already have their opt-out in the post.

Large institutions are more than capable of taking care of their legal position, even when they're in the wrong, so I don't think we need to rush around protecting their rights - particularly as we've now built speculation on top of rumour as to exactly what's happening and why.

I'm going to take care of my position by very carefully and thoughtfully doing nothing whatsoever - including taking no more interest in this thread. Other individuals are, of course, completely free to consider the issues and opt out, or not, as they see fit.

Just for the record I have no connection with Evernote other than being a happy user for the past few years. I'm based in the UK which has its own legislation about personal data protection, and while I'm not a legal expert I would imagine that Evernote is behaving quite responsibly within the terms of that regulation. I'm certainly not in a position to start a legal action here or anywhere else - legal disputes, in my usually saddened experience, benefit only the lawyers.

Anyway like BnF, I'm done here.

[CaptainTime 94]

I used to work in the financial services industry and I will tell you that no reputable finance company would put their customer financial information on a third party cloud system. Evernote isn't planning on selling to financial companies, so the whole issue is a red herring.

[GrumpyMonkey 4,319]

ANY company that uses this product placing any consumer information is going to have to disclose it to their clients, PERIOD.

Per The Privacy Act of 1974, Revised 2010

The "No Disclosure Without Consent" Rule

"No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions]." 5 U.S.C. § 552a (

.

http://www.justice.g.../1974condis.htm

I'm no legal expert or anything, but isn't the Privacy Act supposed to pertain to government agencies? I don't think it has anything to do with anything in the public sector...

[ClintER 1]

Wells Fargo N.A. is one of the largest banks in the USA, and they use Citrix. That's a third party system, and extremely secure.

If you own a business, one should never considering using it, per their TOS and they aren't secure.

Evernote is a nice toy, only worth using for the most basic of notes and grocery store lists, that you wouldn't care who sees; anything beyond and you're open for disaster.

[jbenson2 2,147]

Clinter has made 12 repetitive posts on this issue over 2 days.

He doth protest too much, methinks.

[jefito 5,589]

Starting to think that this thread had long since outlived its usefulness. Wouldn't want *someone* to post *that* picture... *again*...

[dlu 628]

Evernote, consider this your notice to cease and desist.

I'm not a lawyer, but I think this is silly...

[Metrodon 2,184]

Wells Fargo N.A. is one of the largest banks in the USA, and they use Citrix. That's a third party system, and extremely secure.

If you own a business, one should never considering using it, per their TOS and they aren't secure.

Evernote is a nice toy, only worth using for the most basic of notes and grocery store lists, that you wouldn't care who sees; anything beyond and you're open for disaster.

Just to clarify here, Citrix is the name of a company who provide software and services. I'm pretty sure that WF are using Citrix somewhere, most large company's do but I'm also sure that this Citrix environment is hosted on WF hardware in a WF data center.

If you want to be taken seriously on a subject, best not be caught out stating as fact something really dumb about something else.

[MTT 0]

Heather: If you were really trying to make things clear you wouldn't have buried this controversial new policy in the next-to-last section in an eight section email, three screenfuls down, requiring users to follow your vague reference to the "methods described in our Terms" in order to opt out, and using internally inconsistent language to boot (according to your statements in this thread).

You can sigh all you want, this is not the way you get your customers to trust you.

[Martin Packer 162]

There is, BTW, such a thing as a private cloud. My customers (most of whom ARE banks worldwide) are interested in those. I doubt they (like the company I work for) are happy with putting data in a public cloud service like Evernote.

But I do think that Evernote will gradually find ways of being acceptable to large enterprises and banks. All sensible public cloud services will.

[jbenson2 2,147]

<snip> controversial new policy <snip>

Come on - get real.Controversial?

This is a non-starter except for a few greedy lawyers who operate by skimming some action off very successful consumer-based products.