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What's in a ToS.. it may suprise you to know

Thu, 24th February 2011, 20:59

Likely most of us have done it. Contracted for web hosting or some similar online services without reading the Terms of Service (ToS) or the Acceptable Use Policy (AuP). Does the term “contractual agreement” even enter our consciousness before we check the box stating that we “have read and accept the terms of the ToS”.

 

Recently there has been a spat of high profile media stories of web hosts policing the Internet, taking down web sites for nefariously vague violations of the terms of service, or of the web host acceptable use policy. Many believe these actions were likely under the auspices of certain governmental influences.


A ToS violation can result in a myriad of consequences towards those who are guilty depending on the service and the severity of the violation. Most organizations reserve the right to restrict a user's access to the service if they violate the terms in the agreement. In more serious cases, the user will have his or her account terminated. Some would argue that its “their sandbox”, and if you want to play in it, you need to follow their rules.


While many ToS clauses are intended to ensure a orderly environment and provide a measure of legal protection to those offering the service, (no spam, no copyright violations, no criminal activity), not all clauses are created equal


Judge James Ware, presiding over a ToS case involving Facebook recognized this, saying, “in the modern context, in which millions of average internet users access websites every day without ever reading, much less understanding, those websites’ terms of use, this is far from an easy or straightforward question.”


So when Bluehost  Terms of Service cites:

Prohibited Offerings. No Subscriber may utilize the Services to provide, sell or offer to sell the following: controlled substances; illegal drugs and drug contraband; weapons; pirated materials; instructions on making, assembling or obtaining illegal goods or weapons to attack others; information used to violate the copyright(s) of, violate the trademark(s) of or to destroy others' intellectual property or information; information used to illegally harm any people or animals;


Most take no exception to the clause. Yet when it continues and includes:

pornography, nudity, sexual products, programs or services; escort services or other content deemed adult related. Profanity. Profanity or profane subject matter in the site content and in the domain name are prohibited. http://www.bluehost.com/cgi/info/terms.html


Some may begin to feel this is farther reaching. The courts themselves have been fighting over the definition of porn and similar subject matter since the beginning of time. Profanity to one, may not be profanity to another!


What happens when a company gets religion? Does a piece of paper have morals and values? If indeed it does, then many could certainly argue that some companies lost their moral compass as they got bigger! (some others never waited) This screenshot from LogicWeb gives an idea:

 



Note: LogicWeb modified their ToS when contacted by HostJury.

Amazon and HostGator after their recent tax issues with the State of Texas may have wished they had the foresight  to insert the following  clause into their ToS:

8. Taxes: At MessageWire's request, Customer shall remit to MessageWire all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on MessageWire), regardless of whether MessageWire fails to collect the tax at the time the related services are provided. http://www.messagewire.com/tos.php



The following clause is very specific in not only spelling out the nature of the violation, but also providing the remedy a violator could face (yep... collect on this one!)

"There have been precedents where some customers threaten to post libelous feedback on FHA as a means to pressure the seller to meet their unreasonable demands. I understand that libel is illegal in the state where FHA operates. I agree that If I intend to provide negative feedback, the only legitimate one is based solely on verifiable and documented facts, i.e. the email, live chat transcript and all the terms and conditions in the "About Us" section of FHA's web site, referred to as three sources hereafter. These are the only ways of my interactions with FHA as the bases for my feedback, besides the non-interactive facts such as a shipment tracking No. or any other 3rd party objectively documented fact. Phone conversations are excluded. Such negative feedback must be accompanied by the fact that my experience falls below the promises or the standards explicitly and objectively indicated in these three sources. Personal opinions, perceptions, emotions, interpretations, feelings, boilerplate language or any other subjective expressions are not allowed. I understand there are two types of feedback by nature. One is subjective such as a movie review. The other is objective. My negative feedback, if there is any, on FHA must be the latter. If an initial email is not responded to, I will use the "Request A Read Receipt" feature on my follow up email. Only a non-response from FHA after 72 business hours from the time it is read, can be used as a basis of negative feedback in the lack of response category, unless there is a specific time requirement for response in my email due to the time sensitivity. A voicemail accompanied by an email notifying us of such a voice message that is deposited at a specific time, after it is read with proof described above, is also regarded as the same and only evidence aforementioned. An unanswered live chat request is excluded from such a lack of response. I agree any breach of the above constitutes libel. FHA will seek damages against me, which include without limitation $20,000 or the lost profit of 2 orders per day on an annualized basis calculated specifically as the average profit margin of all orders in last 12 months x (times) the average order size in the last 12 months x (times) 2 x (times) 30 x (times) 12, whichever is greater. I also understand the majority of FHA (98.5% by FHA estimation) customers do not have any intent to libel. Usually a simple call/email/live chat is enough or even no follow up inquiry is needed. FHA's well documented reputation in all aspects of order execution has one important premise, i.e. FHA must minimize distractions and stress to their well established system. Libel is the key source of such." (emphasis is mine)


While slightly different, there have been a number of doctors pushing their patients to sign waivers, promising that they wouldn't review the doctors online -- the way the "waivers" from the company "Medical Justice" work is by having the patient “assign all intellectual property rights for anything the patient may write (and publish) about the physician to the physician." Then, the physician can claim copyright infringement on any review, and force it offline. It wouldn't be a specific contractual issue, but a copyright issue.


Feel free to comment and include your own recollections of egregious ToS/ AuP clauses