Terms of Use

Thanks for using Mailchimp.

Please read these Terms carefully. By using Mailchimp or signing up for an account, you’re agreeing to these Terms, which will result in a legal agreement between you and Mailchimp (“Agreement”). We’ll start with the basics, including a few definitions that should help you understand these Terms. Mailchimp (“Mailchimp,” “we,” or “us”) is an online marketing platform (the “App”) that allows you to manage your contacts, and to create, send, and manage certain marketing campaigns, including, without limitation, emails, advertisements, Websites, and mailings (each a “Campaign,” and collectively, “Campaigns”), among other things. The App is offered through our websites, including https://www.mailchimp.com, https://www.tinyletter.com, and https://www.mandrill.com, and any other website or mobile application owned, operated or controlled by us (we’ll collectively refer to these as the “Mailchimp Site,” and together with the App, the “Service”). Mailchimp is a Georgia limited liability company whose legal name is The Rocket Science Group LLC d/b/a Mailchimp. Mailchimp has employees, independent contractors, and representatives (“our Team”). As a customer of the Service or a representative of an entity that’s a customer of the Service, you’re a “Member” according to this Agreement (or “you”).

These Standard Terms of Use (“Terms,” including our Acceptable Use Policy, API Use Policy, Cookie Statement, Copyright and Trademark Policy, Data Processing Addendum, and Brand Guidelines) define the terms and conditions under which you’re allowed to use the Service in accordance with the Agreement, and how we’ll treat your account while you’re a Member. If you don’t agree to these Terms, you must immediately discontinue your use of the Service.

Some features of the Service are offered as add-ons to your Mailchimp account (“Add-ons”). Unless expressly stated otherwise, these Terms apply to the use of Add-ons. Some Add-ons are intended for particular use cases and may also have additional terms or restrictions (“Additional Terms”). Additional Terms for Add-ons can be found on our Mailchimp Site at mailchimp.com/legal/additional-terms, and Members agree to the applicable Additional Terms at the time they choose to add the corresponding Add-on. Also note that a Member’s account may have access to unique features of the Service based on their historic usage or status.

Mailchimp uses Google Maps and YouTube to provide certain features of the Service, and, as a result, we are contractually obligated to make our Members aware of certain terms related to the use of such features. Therefore, you acknowledge and agree that by signing up for an account and using the Service, you are also bound by the Google Maps/Google Earth Additional Terms of Service and the YouTube Terms of Service (including the Google Privacy Policy).

If you download the App through the Apple App Store, Google Play or other app store or distribution platform (“App Provider”), you acknowledge and agree that: (i) these Terms are between us, and not with the App Provider, and that we are responsible for the Service, not the App Provider; (ii) the App Provider has no obligation to furnish maintenance and support services or handle any warranty claims; (iii) the App Provider is not responsible for addressing any claims you or any third party have relating to the App; and (iv) the App Provider is a third party beneficiary of these Terms as related to your use of the App, and the App Provider will have the right to enforce these Terms as related to your use of the App against you.

If you have any questions about our Terms, feel free to contact us.

Account

1. Eligibility

In order to use the Service, you must:

1. be at least eighteen (18) years old and able to enter into contracts;
2. complete the account registration process;
3. agree to these Terms;
4. provide true, complete, and up-to-date contact and billing information;
5. not be based in Cuba, Iran, North Korea, Syria, or any other territory that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country; and
6. not be listed on any U.S. government list of prohibited or restricted persons.

By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.

Mailchimp may refuse service, close accounts of any Members, and change eligibility requirements at any time.

2. Term

When you sign up for an account and agree to these Terms, the Agreement between you and Mailchimp is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a Mailchimp account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. If you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.

3. Closing Your Account

You or Mailchimp may terminate the Agreement at any time and for any reason by terminating your Mailchimp account or giving notice to the other party. We may suspend the Service to you at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we’ll refund a prorated portion of your monthly prepayment for a Monthly Plan or reimburse you for unused Pay as You Go Credits. We won’t refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, such as for a breach or violation of the Agreement. If your account is inactive for 24 or more months, we may terminate your account and you won’t be entitled to a refund for a prepaid month or reimbursement for unused Pay as You Go Credits. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Campaigns. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.

4. Changes

We may change any of the Terms by posting revised Terms on our Mailchimp Site. Unless you terminate your account, the new Terms will be effective immediately upon posting and apply to any continued or new use of the Service. We may change the Service, Add-ons, or any features of the Service at any time, and we may discontinue the Service, Add-ons, or any features of the Service at any time.

5. Account and Password

You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that Mailchimp is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.

6. Account Disputes

We don’t know the inner workings of your organization or the nature of your personal relationships. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on a number of factors, including the content in that account, and the contact and profile information listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we’ll require you to resolve the matter through proper channels outside of Mailchimp.

When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account until the dispute is properly resolved.

Payment

7. Paid Monthly Plans and Audience

If you had a paid Monthly Plan on or before May 15, 2019, the following Section 7 may not apply to you and your account. If it does not apply, an alternate version of Section 7 applicable to you and your account is available in your account (navigate to “Account,” then “Billing,” then “Monthly plans or credits”).

7A. Paid Monthly Plans

When you sign up for a paid monthly plan, you are required to self-select both your projected audience, as described in Section 7B below, and your package (e.g., Essentials, Standard, Premium) (together, your “Monthly Plan”) from those posted on our Mailchimp Site based on your anticipated use of the Service. Each Monthly Plan offers different pricing and feature options. Once you select your Monthly Plan, Mailchimp will never automatically upgrade or downgrade your Monthly Plan. So, give yourself room to grow if you’ll need it! If you exceed your Monthly Plan usage limits (either by exceeding your audience or monthly email limits, or both), you will incur additional charges for the prior billing cycle based on your current Monthly Plan, which will be detailed on your bill and in your account. Before paying for your Monthly Plan for the first time, you will have an opportunity to preview the additional charges which would apply to your Monthly Plan should you incur them by exceeding your self-selected usage limits. If you decide to proceed, and you incur additional charges, you agree to pay them on or before the next Pay Date, as described below. You will always have the option to upgrade to a higher tier at any time. If you upgrade during a billing cycle, you may elect to upgrade your package, your audience limit, or both. If you elect to upgrade both, the upgrade amount for the package upgrade is calculated first, and the upgrade amount for the audience limit upgrade is calculated second. In any event, your monthly charge for that billing cycle will be calculated based on the number of days in that billing cycle during which you were at each of the lower tier and the higher tier (including any applicable additional charges for the higher tier). You will also have the option to downgrade to a lower tier at any time, but if you elect to downgrade during a billing cycle, your downgrade will not be effective until the end of that billing cycle, and you will still be charged for that entire billing cycle at the higher tier (including any applicable additional charges for the higher tier).

When you sign up for a Monthly Plan, you agree to monthly recurring billing, starting on the date you sign up. Billing occurs on the same day each month, based on the date that you started your Monthly Plan. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If any part of a month is included in the Term, then payment is required for the full month. If you exceed your self-selected usage limits for your Monthly Plan, then you’ll have to pay additional charges (as described above) for the prior billing cycle on or before the next Pay Date, even if the Term ends or you downgrade to a Free Plan before that payment is otherwise due. Billing for Monthly Plans may be paused, and you may choose to close your account permanently at any time.

7B. Audience and Archiving

You may have several types of contacts in your Mailchimp account, but only contacts that you can engage through the Service count as contacts in your “audience” for purposes of your Monthly Plan or Free Plan. Subscribed, unsubscribed, and non-subscribed contacts count towards your audience. Cleaned, pending, reconfirmed, deleted, and archived contacts do not count towards your audience. You may elect to archive contacts at any time, but any profile changes for an archived contact (whether initiated by you, the contact, or an integration) will automatically unarchive that contact. You cannot engage in any activity through the Service with archived contacts unless and until they are unarchived. If a contact is unarchived, it will immediately count towards your audience for your current billing cycle and any future billing cycles unless and until archived again.

8. Free Plans

If you use the Service under the free plan (“Free Plan”) and you want to go over the Free Plan limits, you’ll be required to upgrade your account to, and select and pay for, a Monthly Plan. Monthly Plans are described in Section 7A above. If you exceed your Free Plan limits, or otherwise upgrade your account to a paid Monthly Plan, you’ll only be provided one complimentary downgrade to the Free Plan (provided your sending volume and audience numbers drop down to the Free Plan limits again). If you go over the limits for the Free Plan more than once, you’ll no longer qualify for the Free Plan, even if your future sending volume and audience numbers are within the limits of the Free Plan.

9. Pay as You Go Credits

You may also buy email credits to use the Service (“Pay as You Go Credits”), as explained on our Mailchimp Site. You will have an opportunity to review current rates for Pay as You Go Credits in your account prior to purchase. If you choose to buy Pay as You Go Credits, you’ll have access to the features of the Service included in the Essentials package, as described on the pricing page, and other than the monthly payment requirement, all of these Terms will still apply to you. Pay as You Go Credits purchased on or after May 15, 2019 roll over each month, and expire 12 months after purchase. Pay as You Go Credits purchased before May 15, 2019 also roll over each month, and expire on May 15, 2020. Pay as You Go Credits have no cash value, cannot be refunded or redeemed for cash, and represent a limited license to use the Service for the specified volume and type of service.

10. Debit and Credit Cards

As long as you’re a Member with a Monthly Plan or otherwise have an outstanding balance with us, you’ll provide us with valid debit or credit card (“card”) information and authorize us to deduct your charges against that card. You’ll replace the information for any card that expires with information for a valid one. If your card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the new card. Anyone using a card represents and warrants that they are authorized to use that card, and that any and all charges may be billed to that card and won’t be rejected. If we’re unable to process your card order, we’ll try to contact you by email and may suspend your account until your payment can be processed.

11. Refunds

We’ll give you a refund for a prepaid month or reimburse you for unused Pay as You Go Credits if we stop providing the Service and terminate your account without cause. You won’t be entitled to a refund or credit from us under any other circumstances. We may, at our sole discretion, offer a refund, discount or credit.

12. Charges for Add-Ons

If you use an Add-on that has a charge, then you’ll be billed that additional amount with each billing cycle for as long as the Add-on is active. Your billing cycle for an Add-on may differ from your billing cycle for your Monthly Plan or other features of the Service, and certain Add-ons may require upfront payment for their entire billing cycle. If you use Mandrill to send bulk emails in violation of our Acceptable Use Policy, then we may charge you at the comparable Mailchimp plan or terminate your account.

13. Billing Changes

We may change our fees, including our charges for Monthly Plans and Pay as You Go Credits, at any time by posting a new pricing structure to our Mailchimp Site or in your account and/or sending you a notification by email. Quoted fees don’t include sales or other transaction-based taxes of any kind.

Rights

14. Feedback and Proprietary Rights

We own all proprietary rights in the Service, including, but not limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property rights. You will respect our proprietary rights in the Service, and you may only use our brand assets according to our Brand Guidelines.

You represent and warrant that you either own or have permission to use all of the material, content, data, and information (including your personal information and the personal information of others) you submit to Mailchimp in the course of using the Service or which Mailchimp retrieves or accesses at your direction or with your permission (“Content”). You retain ownership of the Content that you upload to the Service. We may use or disclose your Content (including any personal information therein) only as described in these Terms, our Privacy Policy and Cookie Statement, and, if applicable, our Data Processing Addendum.

You may provide or we may ask you to provide suggestions, comments, input or other feedback (“Feedback”) regarding the Service. If you provide us with any Feedback, then you grant us a royalty-free, non-exclusive, worldwide, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as we see fit. Any Feedback you choose to provide is given entirely voluntarily. You understand that you will not receive any compensation for your Feedback, and that we may use any Feedback you provide to improve the Service or to develop new features and services.

15. Privacy Policy

Your privacy is important to us. Please read our Privacy Policy and Cookie Statement for information regarding how we collect, use, and disclose your Content and personal information and protect your privacy when you use the Service.

16. Right to Review Content and Campaigns

We may view, copy, and internally distribute Content from your Campaigns and account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service. We use these Tools to find Members who violate these Terms or laws and to study data internally to make the Service smarter and create better experiences for Members and their contacts.

Rules and Abuse

17. General Rules

By agreeing to these Terms, you promise to follow these rules:

1. You won’t send spam!
2. You won’t use purchased, rented, or third-party lists of email addresses.
3. You’ll comply with our Acceptable Use Policy, which forms part of these Terms.
4. If you use our API, you’ll comply with our API Use Policy, which forms part of these Terms.

Mailchimp doesn’t allow accounts that promote or incite harm toward others or that promote discriminatory, hateful, or harassing Content. To this end, we may suspend or terminate your account if you send a Campaign or otherwise distribute any Content that we determine, in our sole discretion, contains either of the following:

• A Threat of Physical Harm. This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
• Hateful Content. This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.

We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:

• an organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;
• a person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or
• a person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.

If you violate any of these rules, then we may suspend or terminate your account.

18. Reporting Abuse

If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a Mailchimp Member, please report it to our Abuse Team. (Every email Campaign sent through the Service has an embedded campaign tracking ID in the email header, making it easy to report suspected spam.) If you think anyone has posted material that violates any protected marks or copyrights, then you can notify us at the address provided in our Copyright and Trademark Policy.

19. Bandwidth Abuse/Throttling

You may only use our bandwidth for your Content and Campaigns. We provide image and data hosting only for your use of the Service, so you may not host images on our servers for anything else. We may throttle your sending or connection through our API at our discretion.

20. Compliance with Laws

You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, Data Protection Laws (as defined in the Data Processing Addendum), United States export control laws and regulations and economic sanctions laws and regulations (“U.S. Export Control Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we won’t be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children's Online Privacy Protection Act, or any other applicable laws.

If you collect any personal information pertaining to a minor and store such information within your Mailchimp account, you represent and warrant that you have obtained valid consent for such activities according to the applicable laws of the jurisdiction in which the minor lives.

If you or the people you distribute or display Campaigns or other Content to through the Service are subject to Data Protection Laws (as defined in the Data Processing Addendum), you agree, represent and warrant (as applicable) to Mailchimp that:

1. You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that (a) satisfies the requirements of applicable data protection laws, (b) describes your use of the Service, and (c) includes a link to Mailchimp’s Privacy Policy.
2. You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to Mailchimp and to enable such data to be lawfully collected, processed, and shared by Mailchimp for the purposes of providing the Service or as otherwise directed by you.
3. You will comply with all laws and regulations applicable to the Campaigns sent through the Service, including those relating to (a) acquiring consents (where required) to lawfully send Campaigns, (b) the Content of Campaigns, and (c) your Campaign deployment practices.
4. You will provide and obtain all notices and obtain all necessary consents required by applicable data protection laws to enable Mailchimp to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end users in accordance with and as described in the Cookie Statement.
5. You are subject to Mailchimp’s Data Processing Addendum (“DPA”), which will apply when and to the extent Mailchimp processes Customer Data protected by Data Protection Laws (all as defined in the DPA). The DPA sets out our obligations with respect to data protection and security when processing such Customer Data in connection with the Service and forms part of these Terms.

In addition, if you are subject to EU Data Protection Law (as defined in the Data Processing Addendum), you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under EU Data Protection Law, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.

You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section 20.

21. Export Controls

The software that supports the App (the “Software”) is subject to U.S. Export Control Laws and Regulations. Export laws are set up by the U.S. government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of U.S. Export Control Laws and Regulations and any other applicable export laws and regulations (collectively, “Export Control Laws”). Therefore, you agree that you won’t, directly or indirectly through a third party, allow the Software or your Campaigns to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. In addition, you certify that neither you nor any principals, officers, directors, or any person or entity you know to be directly involved with the use of the Service is designated on any U.S. government list of prohibited or restricted persons.

It’s important to note that this Section 21 isn’t meant to provide a comprehensive summary of the Export Control Laws that govern Mailchimp, the Service, or the Software. You’re downloading and using the Software at your own risk, and it’s your responsibility to consult with a legal advisor to make sure your use of the Service and the Software complies with applicable laws.

Liability

22. Limitation of Liability

To the maximum extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of the Service, including any downloads from the Mailchimp Site; (ii) we and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages; and (iii) in any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.

For the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of these Terms, regardless of whether we terminate or suspend your account due to such violation.

23. No Warranties

To the maximum extent permitted by law, we provide the Service as-is. This means that, except as expressly stated in these Terms, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, which are, to the fullest extent permitted by law, excluded from the Agreement. Since Members use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.

24. Indemnity

You agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (i) your Content, (ii) your use of the Service, (iii) your violation of any laws or regulations, (iv) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (v) any misrepresentations made by you, or (vi) a breach of any representations or warranties you’ve made to us.

25. Equitable Relief

Terms of service (also known as terms of use and terms and conditions, commonly abbreviated as TOS or ToS, ToU or T&C) are the legal agreements between a service provider and a person who wants to use that service. The person must agree to abide by the terms of service in order to use the offered service.^[1] Terms of service can also be merely a disclaimer, especially regarding the use of websites.

Usage[edit]

The Terms of Service Agreement is mainly used for legal purposes by companies which provide software or services, such as web browsers, e-commerce, web search engines, social media, and transport services.

A legitimate terms-of-service agreement is legally binding and may be subject to change.^[2] Companies can enforce the terms by refusing service. Customers can enforce by filing a lawsuit or arbitration case if they can show they were actually harmed by a breach of the terms. There is a heightened risk of data going astray during corporate changes, including mergers, divestitures, buyouts, downsizing, etc., when data can be transferred improperly.^[3]

Content[edit]

A terms of service agreement typically contains sections pertaining to one or more of the following topics:

• Disambiguation/definition of key words and phrases
• User rights and responsibilities
  • Proper or expected usage; definition of misuse
  • Accountability for online actions, behavior, and conduct
  • Privacy policy outlining the use of personal data
  • Payment details such as membership or subscription fees, etc.
  • Opt-out policy describing procedure for account termination, if available
  • Arbitration detailing the dispute resolution process and limited rights to take a claim to court
• Disclaimer/Limitation of Liability clarifying the site's legal liability for damages incurred by users
• User notification upon modification of terms, if offered

Among 102 companies marketing genetic testing to consumers in 2014 for health purposes, 71 had publicly available terms and conditions:^[4]

• 57 of the 71 had disclaimer clauses (including 10 disclaiming liability for injury caused by their own negligence),
• 51 let the company change terms (including 17 without notice),
• 34 allow data disclosure in certain circumstances,
• 31 require consumers to indemnify the company,
• 20 promise not to sell data.

Among 260 mass market consumer software license agreements in 2010,^[5]

• 91% disclaimed warranties of merchantability or fitness for purpose or said it was "As is"
• 92% disclaimed consequential, incidental, special or foreseeable damages
• 69% did not warrant the software was free of defects or would work as described in the manual
• 55% capped damages at the purchase price or less
• 36% said they were not warranting whether it infringed others' intellectual property rights
• 32% required arbitration or a specific court
• 17% required the customer to pay legal bills of the maker (indemnify), but not vice versa

Among the terms and conditions of 31 cloud-computing services in January-July 2010, operating in England,^[6]

• 27 specified the law to be used (a US state or other country),
• most specify that consumers can claim against the company only in a particular city in that jurisdiction, though often the company can claim against the consumer anywhere,
• some require claims to be brought within half a year to 2 years,
• 7 impose arbitration, all forbid illegal and objectionable conduct by the consumer,
• 13 can amend terms just by posting changes on their own website,
• a majority disclaim responsibility for confidentiality or backups,
• most promise to preserve data only briefly after terminating service,
• few promise to delete data thoroughly when the customer leaves,
• some monitor the customers' data to enforce their policies on use,
• all disclaim warranties and almost all disclaim liability,
• 24 require the customer to indemnify them, a few indemnify the customer,
• a few give credits for poor service, 15 promise "best efforts" and can suspend or stop any time.

The researchers note that rules on location and time limits may be unenforceable for consumers in many jurisdictions with consumer protections, that acceptable use policies are rarely enforced, that quick deletion is dangerous if a court later rules the termination wrongful, that local laws often require warranties (and UK forced Apple to say so).

Readability[edit]

Among the 500 most-visited websites which use sign-in-wrap agreements in September 2018,^[7]

• 70% of agreements had average sentence lengths over 25 words, (where 25 or less is needed for consumer readability)
• median FRE (Flesch Reading Ease) score was 34 (where over 60 is considered readable by consumers)
• median F-K (Flesch-Kincaid) score was 15 years of school (498 of 500 had scores higher than the recommended 8th grade)

Among 260 mass market consumer software license agreements which existed in both 2003 and 2010,^[5]

• median and mean Flesch scores were 33 in both years, with a range from 14 to 64 in 2003, and from 15 to 55 in 2010 (where over 60 is considered readable by consumers)
• median number of words rose from 1,152 to 1,354, with range of 33 to 8,406 in 2003, and from 106 to 13,416 in 2010

Public awareness[edit]

A 2013 documentary called Terms and Conditions May Apply publicized issues in terms of service. It was reviewed by 54 professional critics^[8] and won for Best Feature Documentary at the Newport Beach Film Festival 2013 and for Best Documentary at the Sonoma Valley Film Festival 2013.^[9]

Clickwrapped.com rates 15 companies on their policies and practices with respect to using users' data, disclosing users' data, amending the terms, closing users' accounts, requiring arbitration, fining users, and clarity.

Terms of Service; Didn't Read is a group effort that rates 67 companies' terms of service and privacy policies, though its site says the ratings are "outdated".^[10] It also has browser add-ons that deliver the ratings while at the website of a rated company. Members of the group score each clause in each terms of service document, but "the same clause can have different scores depending on the context of the services it applies to."^[11] The Services tab lists companies in no apparent order, with brief notes about significant clauses from each company. In particular, competitors are not listed together so that users can compare them. A link gives longer notes. It does not typically link to the exact wording from the company. The Topics tab lists topics (like "Personal Data" or "Guarantee"), with brief notes from some companies about aspects of the topic.

TOSBack.org, supported by the Electronic Frontier Foundation, lists changes in terms and policies sequentially, 10 per page, for 160 pages, or nearly 1,600 changes, for "many online services".^[12] There does not seem to be a way to find all changes for a particular company, or even which companies were tracked in any time period. It links to Terms of Service; Didn't Read, though that typically does not have any evaluation of the most recent changes listed at TOSBack.org.

Terms of service are subject to change and vary from service to service, so several initiatives exist to increase public awareness by clarifying such differences in terms, including:

• Availability of previous terms
• Cancellation or termination of the account and/or service by user
• Copyright licensing on user content
• Data tracking policy and opt-out availability
• Indemnification or compensation for claims against account or content
• Notification and feedback prior to changes in Terms
• Notification of government or third-party requests for personal data
• Notification prior to information transfer in event of merger or acquisition
• Pseudonym allowance
• Readability
• Saved or temporary first and third-party cookies
• Transparency of security practices
• Transparency on government or law enforcement requests for content removal

Criticism and lawsuits[edit]

AOL[edit]

In 1994, the Washington Times reported that America Online (AOL) was selling detailed personal information about its subscribers to direct marketers, without notifying or asking its subscribers; this article led to the revision of AOL's terms of service three years later.

On July 1, 1997, AOL posted revised terms service to take effect July 31, 1997, without formally notifying its users of the changes made, most notably a new policy which would grant third-party business partners, including a marketing firm, access to its members' telephone numbers. Several days before the changes were to take effect, an AOL member informed the media of the changes and the following news coverage incited a large influx of internet traffic on the AOL page which enabled users to opt out of having their names and numbers on marketing lists.^[1]

Sony[edit]

In 2011 George Hotz and others^[who?] were sued by Sony Corporation. Sony claimed that by violating the terms of service of the PlayStation Network, Hotz and others were committing breach of contract.

Instagram[edit]

On December 17, 2012, Instagram announced a change to its terms of use that caused a widespread outcry from its user base. The controversial clause stated: "you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you".

There was no apparent option to opt out of the changed terms of use.^[13] The move garnered severe criticism from privacy advocates as well as consumers. After one day, Instagram apologized saying that it would remove the controversial language from its terms of use.^[14]Kevin Systrom, a co-founder of Instagram, responded to the controversy, stating,

Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.^[15]

Zappos[edit]

Some terms of service are worded to allow unilateral amendment, where one party can change the agreement at any time without the other party's consent. A 2012 court case In re Zappos.com, Inc., Customer Data Security Breach Litigation held that Zappos.com's terms of use, with one such clause, was unenforceable.^[16]

See also[edit]

References[edit]

External links[edit]

• [1] List of changes in terms and policies at "many online services" since June 2013
• Terms on Service; Didn’t Read User rights initiative to rate and label website terms & privacy policies
• Clickwrapped Ratings of the policies and practices of major consumer internet companies

At Open Knowledge Foundation we supply a lot of different services. Some of them will have specific terms tailored for them. If that is the case, Open Knowledge Foundation's contract with you for that service will be on these terms, supplemented by any terms specific to the service. In the case of any conflict, service specific terms will take precedence.

We process personal data in accordance with our privacy policy. As part of this agreement you consent to our doing so. You should read the policy carefully, especially if you have any concerns about your privacy.

Warning: unless we have agreed a particular level of service with you, we make absolutely no promises about the quality or existence of any of our services . Please read the sections below and our general exclusion of liability.

All use of our web services are subject to our terms for web users. There are further terms if you have signed up for an account with one of our services and, if you have agreed to pay us for a service, please see the additional terms for paid-for services. At the end are some general terms and definitions.

If you believe there may be illegal content hosted on our web services please let us know at ip@okfn.org

Terms for use of our web services

Web services include our APIs as well as any of our websites.

Disclaimer

While we are proud of the services we provide to the world for free and try to make them reliable and useful, we make no promises about them. All web services are certain to fail some of the time. We adapt and change our services from time to time, so you may find that something that worked for you may cease to work. We may also stop supplying any service, temporarily or permanently or block access to our services to anyone for any reason.

If you need some guarantee of a particular service level, then please do not hesitate to contact us to discuss whether we could offer you a commercial version of any of our services (assuming one is not already available).

We are not a law firm and nothing we do is intended to be taken as legal advice. In particular:

• We encourage the use of our open data commons licences but we cannot give any warranty that they will work in the way expected or should be used for any specific purpose. If in doubt, you should take your own legal advice.
• The API supplied with our Public Domain Works project is not guaranteed to provide an answer with 100% certainty. Copyright law is complex and there may be obscure cases that are not handled correctly. It is intended to be a starting point, not the word of God.

What you agree

You agree not to use our websites to do any of the following:

• Anything which is illegal either where you are in the world, or where we are.
• Cause nuisance to other users of our services.
• Interfere with the normal running of our services.
• Try to access our systems in a way other than those advertised by us and, in particular, to use a web crawler that does not respect the robots exclusion policy.

Other websites

Some of our activities are carried out on web platforms provided by third parties. For example the source code for AnnotateIt is hosted on github. If you make use of any service where that is the case, you are responsible for complying with any terms of service of the third party platform.

Accounts

Some of our services require you to create an account in order to make certain kinds of, or any, use of the service. All our accounts are subject to the following rules.

You must be at least 13 years old and a human being.

• If asked for any personal details, you must answer truthfully (see our privacy policy for what we do with those details). You must supply us with a valid e-mail address.
• You are responsible for the security of your accounts and making sure that any contact details in the account are kept up to date. If we need to contact you but are unable to do so, for example because your e-mail address is no longer valid, then any consequences of that failure will be your responsibility.
• You must not let anyone else use your account. If pressure is applied to you to do so — for example if an employer demands your username and password — please inform them that their attempt to subvert your agreement with us will mean that they have no permission to use any of our services. We may take action, including criminal prosecution, if they use our services using an account they have obtained in this way.
• You must let us know of any unauthorised use of your account as soon as you are able to after becoming aware of it.
• Unless an account is associated with a paid-for service, we may suspend or terminate it at any time. Equally, you may close your account at any time

Community members

By registering as a community member, you are acknowledging your connection to us. You are subject to any rules for community members we may publish and we may send you email messages we think appropriate for members, for example in order to poll you on some important issue.

Community membership is not membership in the formal sense of membership of a company limited by guarantee.

Content and intellectual property

What we do with your content

If you contribute content to any of our services, for example by commenting on a blog, or uploading data, then as a general rule you agree to licence that content to us under the same licence as prevails for that service or website.

For example: any comment you make on the blog , which is licensed under a CC-BY licence, will be licensed to us under the same licence.

The only exception to this policy is where a service we supply to you expressly allows a different licence, for example a private CKAN instance would contain your data under whatever licence — including no licence — you choose.

Our content

Unless otherwise stated all our services are offered under open content or data licences and you should refer to the provisions of the licence in question to find out what you are allowed to do. Some of our content belongs to third parties. Most third party data is subject to an open licence, but we cannot guarantee it. You should refer to the third party if you are in doubt.

Ownership does not change

As a general rule, this agreement will not change the ownership of any intellectual property belonging to either party. Where your content is used by us or vice versa both you and we would do so under a licence (see above).

Paid-for services

Any payment you have agreed to make to us is subject to any applicable taxation or similar financial imposition. You are responsible for paying any additional sum imposed in this way. For example, many of our services are subject to Value-Added Tax, which you are required to pay to us.
If you have agreed to pay a sum at regular intervals ("payment periods") then:

• We will only terminate the service by giving notice of at least one payment period in length;
• We may increase the price for the service by giving you at least one payment period's notice of the new price.

You may terminate a paid-for service at any time by giving us notice of termination. Any payment you have already made to us will not be repayable, but we will continue to supply the service — unless you ask us otherwise — until the next payment date.

We may suspend a paid for service if we reasonably believe:

• It is necessary for us to do so in order to prevent any unlawful activity;
• You have breached this agreement in a sufficiently serious way to justify suspending the service in order to prevent that breach.
• You have failed to pay us any sum of money you owe.

If we do suspend a service for any of the above reasons we will take all reasonable steps to inform you promptly of what we have done and we will lift the suspension as soon as we are satisfied that the reason for the suspension no longer applies.

Liability

Indemnities — where you may owe us

If you breach any of your obligations under this agreement and, as a result, cause us to be sued by anyone else, you will have to compensate us for any loss we have suffered as a result, which includes any costs, such as paying lawyers, or for our own time, we incur defending a claim as well as any damages awarded.

If your breach causes you to be sued by someone else, you will not sue us for any loss you suffer as a result.

Exclusion — what we do not owe you

We limit our liability in several different ways — all of which we believe to be fair. In case any one of them is found to be unenforceable by a court, each of the following limitations of liability is separate and our liability to you is limited by all of them.

All exclusions of liability are only in so far as we are allowed to do so by whatever law applies to the situation. For example, the law of England and Wales prevents us from excluding our liability for any personal injury or death caused by our negligence. We do not exclude such liability.
We will not be liable for any damage that was not reasonably foreseeable at the time we made this agreement.

• Any liability to you is limited by the amount you have paid us for a service, where:
• Our liability is zero for a free service.

Where you make periodic payments, our liability is limited to the value of the last payment you paid us.

We are not liable for any loss which is indirect or consequential. That includes any loss of business or profit.

We exclude, in so far as we are allowed, any warranties that would be implied by law.

General conditions

This agreement

We may update these terms and conditions at any time. If we do so, we will announce the change on our blog. Any changes will be binding on you from the moment we announce them.
This agreement is made under the laws of England and Wales.

Boilerplate

These final “boilerplate” terms of should go without saying, but we are saying them anyway just to be clear.

If any part of this agreement is ineffective (for example because it is unlawful) then the rest of the agreement should be read without it.

This agreement is between you and us and is not intended to give anyone else any rights.
We may sometimes fail to enforce our rights under this agreement (for example because we decide not to, or we did not realise you were in breach of contract). Just because we have not enforced any of our rights, does not stop us from doing so in the future.

Neither party is liable for anything which is beyond their reasonable control.

If for some reason beyond Open Knowledge Foundation's reasonable control, we are unable to or it would not be commercially viable for us to, continue to supply any of our services, we may cease to supply that service, ending any agreement between us for its supply. If we do so, we will return to you a fair proportion of any sum you have paid us in advance for the supply of that service, taking into account the service we have already supplied to you.