Kaseya, an IT management service, has unilaterally changed its EULA to auto-renew customers for longer subscriptions without providing adequate notice to affected users. 

Kaseya users report the service’s new EULA containing misleading, unfair terms to which they never gave assent. Kaseya’s new EULA provides that subscriptions will automatically be renewed for 3 years if not canceled in time, regardless of the length of the initial subscription (as little as 1 year). A copy of the EULA from 6 years ago (authenticity not confirmed) indicates that subscriptions will auto-renew for the same duration that they were purchased for, at the same rate (so a 1-year subscription would auto-renew for 1 year). Furthermore, Kaseya users report that they were not adequately notified of this change, only receiving notice of the changes by email, without any request for users’ assent to the changes. When customers try to cancel or pause their subscription to Kaseya’s products, Kaseya does not let them, pointing to the three year auto renewal terms. 

Kaseya’s current EULA does not include a mandatory binding arbitration provision, but it does include a class action waiver, and a choice of law provision indicating that the contract shall be governed by the laws of Florida. A copy of Kaseya’s EULA from 2016 (not confirmed to be authentic) does not show any provisions with language to the effect of “we reserve the right to modify these contract terms at any time.” Kaseya’s current EULA does not contain such terms either. Kaseya’s clients are primarily businesses and organizations.

In a relevant 2007 case in the 9th Circuit Court of Appeals (Douglas v. Talk America, Inc., 622 F. Supp. 3d 1062), the 9th Circuit held that vendors may not enforce contract revisions where the sole notice given to a customer was an online posting of the change. Relatedly, in 2021, the 6th Circuit Court of Appeals rejected a bank’s attempt to dismiss a lawsuit based on an arbitration agreement. The court in that case found that the bank’s unilateral change of the terms and conditions were not sufficient to create an enforceable arbitration agreement.

Kaseya may generally be liable under a theory similar to that under which Trustpilot was sued in 2021, where it was alleged that Trustpilot subjected its subscribers to deceptive business practices by sending auto-enroll emails that went to subscribers’ spam boxes, such that they would not be read until subscribers were charged.

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