“To continue, please confirm that you agree with our terms and conditions by clicking here.”
When signing up for an online platform, downloading an app, installing software, purchasing a new product, or receiving a new service, you have undoubtedly been confronted with the above message - or something like it - alongside a mile of text. If you are like most people, you quickly scroll through the page, locate the box at the bottom of the screen, and click “I agree”.
You might encounter a similar situation when you open an account at a bank, apply for a new credit card, purchase insurance, get a new mobile phone, buy a home or a car. You’re presented with a contract that contains a football field-length stretch of fine print. Instead of reading it, your gaze immediately goes to the bottom and you scribble your name on that line where it says “sign here”.
Just like that, you now get to use that application or you get that new credit card. But wait … what did you “agree” to?
The answer is: a lot of things - most of which are likely not in your favor, however.
Almost any service that we access online, or in person, requires our commitment to contractual provisions known as User Agreements, Terms of Use, Terms of Service, etc. We are so used to being confronted with these agreements, in fact, that we have developed a reflex to quickly scroll through and click accept, rather than read the text. Even if we didn’t read we still accepted - whatever the terms may be.
Later, when things do go south (like when our information is breached or if we’re hurt by the product), we discover that we waived some very important legal protections or agreed to some very unfriendly terms when we clicked “agree.”
The point of this article is to describe some common provisions found in these agreements, what they mean from a general legal standpoint, and how they can affect us.
Common Provisions in User Agreements and What they Mean:
1. Arbitration Agreements
Many User Agreements contain a clause referred to as an “arbitration agreement.” These provisions kick in when you have a dispute with the provider. We all assume that we are entitled to have our case heard in a court of law. But not according to the terms of an arbitration agreement which waives your right to bring a case in court. Instead, you must submit your case to a closed-door process called arbitration.
Arbitration is a process where a neutral person, or panel of people, called arbitrators, will hear and decide your case as opposed to a judge and jury. The arbitrator acts just like a judge in making rulings. The arbitrator also acts like a jury and makes the final decision. Arbitration is usually binding - meaning that the outcome is not appealable as it is in a Court. So if you lose, you’re stuck with the result and you waive the right to appeal.
The price of pursuing arbitration may also be higher than filing a case in court. There are fees for initiating a case and filing documents. The arbitrator is often paid by the hour for the time they spend reviewing documents and hearing your case. This can add up quickly. If you lose, the arbitration agreement may give the company the right to go after you for the costs and attorneys fees it spent defending your case. With these considerations in mind, one may decide that the cost and risk associated with pursuing a claim in arbitration could end up being more than the case is worth.
Arbitration agreements may also have what is known as a “forum selection clause”. This type of provision allows the service provider to decide where you must bring your case. For example, the Terms of Service for Bird, the e-scooter rental company, require your arbitration to take place in Los Angeles, California, unless you and Bird agree otherwise. If you live in New York, the cost and time required to travel across the country to pursue your case in Los Angeles may be a huge obstacle.
You also may have agreed to limitations on what information you can request from the company and even place and on the evidence you are allowed to present in your case. These limitations can prevent you from introducing good evidence on your behalf which ultimately makes it harder to win your case.
Amazon recently did away with the practice of forcing its users into arbitration, but countless other companies still use these backward agreements.
2. Class Action Waivers
Whomever said “there is power in numbers,” could have been talking about class action lawsuits. A class action lawsuit is a court procedure that combines numerous cases (usually when there are too many to be litigated individually) that involve the same type of issues into one large suit against the same defendant. By doing so, the court is able to efficiently handle a large number of cases, make consistent rulings, and ensure that the results are uniform. These actions are tools used to hold large corporations accountable and bring about change in a larger sense.
One main benefit for participants in a class action lawsuit is that they are able to spread the cost of the suit amongst all of the class action members. This is particularly important where bringing a claim individually would be impractical. This is the case when the value of the claim is relatively small. When you have a small claim, often the only meaningful and cost effective way to seek redress is to band together with many other people who have been similarly wronged by the same company as you, and present your claims together in a class action. Together, your claims are worth much more and the company now has to take your cases seriously. Hence, “strength in numbers”.
Many user agreements seek to stop this practice before it can even get started by inserting language that forces you to waive your rights to participate in a class action suit. If you clicked on the “I agree” box, you’ll have to bring your claim on your own (and likely in arbitration as discussed above). If your case is small, say $50, there is little chance that you will decide that the cost is worth it to pursue. You might decide to just forget about it. And that means you get no justice and the service provider gets to escape responsibility.
3. Choice of Law Clauses
Normally, when you are harmed the laws of the state where your harm occurred will govern your case. Likewise, the state where you entered into a contract will likely have its laws apply to a dispute when the contract is breached. However, most user agreements pick the state’s laws that will apply when a dispute arises. As you can imagine, this is likely a very deliberate decision made by the service provider. It may be a state that has no connection to you or the company. The state selected often has laws that are good for the service provider and not so good for you. This is just another example of how the fine print can be used to stack the deck against you.
4. Limitations on the Amount of Recovery
For some user agreements, you may be perfectly able to recover some money from your claim. However, the terms may limit how much you can actually recover. For instance, some agreements say that you can only receive the amount that you initially paid for a product or service - regardless of any additional losses, expenses, or injuries that you may have sustained. Other agreements set an arbitrary amount as a limit. For instance, Verizon Wireless’ Customer Agreement sets a maximum recovery at $5,000.00 - even if you win your case and are awarded more than that amount.
5. Waivers of Liability
These provisions are utilized often and allow companies to try to escape any liability for all wrongdoing. These clauses seek to eliminate any and all liability for things such as injuries that you sustained due to a faulty product, unauthorized releases of your personal or financial information, unauthorized use of your photos and content you create, negligent mistakes made in the work being performed for you, and more. To make matters worse, these provisions often force you to release other people or companies from any liability, such as its service providers, contractors, distributors, parent/subsidiary companies, and others.
So, how can you maneuver user agreements to best protect yourself?
You can read it (yes, read it … the whole thing). Most people may not take the time to read an entire user agreement, and all sub-links, but doing so will fill you in about all of the things that you are giving up, expected to do, agreeing to, etc. At the very least, this will let you make an informed decision about whether the app that you are about to download and start using is actually worth it or if you want to use a different service.
Opt-out - some provisions allow you to notify the company that you are opting-out. Most provisions that force you into arbitration or waive your rights to join a class action contain an opt-out option. Most agreements require that the company receive notice that you are opting-out within a certain time period (i.e., 30 or 60 days), in a manner that they select (such as certified mail), that is received at a certain address. If you fail to notify the company in the precise way set forth will keep you stuck in the bad provisions. Not all provisions can be opted-out unfortunately.
Adjust your privacy settings. If you are concerned with a service provider’s policies for protecting or using you personal data, adjust your cookie settings and change your mobile phone settings to restrict data sharing.
Tell them you don't agree and ask that the provision be removed. This isn't an option with large companies like those apps that you download in Apple’s App Store. With large companies you don't have the bargaining power to get these changes effectuated. But if you are dealing with a company on a more personal level, such as a local credit union they may be willing to cut certain language to keep your business. Some law firms even try to use the language discussed in this article in their contracts with clients. They also may be willing to strike language.
Have an attorney review the agreement. This may not be practical when dealing with downloads of apps or every-day purchases, but if you are making a large purchase - such as a contract to build a house or agreeing to a large service contract for your business - you may want to have an attorney read it before signing. This way, you can gain a better understanding of what you are agreeing to before you sign.
Gurrera Law Can Help
If you have become subject to an unfortunate situation through a User Agreement, contact Gurrera Law in Pittsburgh, PA for a free evaluation of your claim.
Attorney Guido Gurrera is an experienced plaintiff’s attorney and civil litigator who has successfully handled hundreds of cases in his career and recovered millions of dollars for his clients. With him, you won’t find hidden costs, red tape, theatrics, or stuffy black suits, and you won’t be treated like a number.
Contact Gurrera Law today for honest compensation.
Website: https://gurreralaw.com/
Phone: 412-229-7757
LinkedIn: lawrence-gurrera
