Question

Compare online business “user agreements”, then answer the 10 questions below. It is not sufficient to merely list the name of the user agreement. You must explain and support your answers.  Keep in mind that this assignment is worth 10 extra credit points. Your answer will require more than one full page.   

Pandora

Target

Twitter

a)      Which one best describes the users obligation to avoid trademark and copyright violations?

b)      Which one includes an indemnity clause that would require the user to pay for the website’s legal fees if they are sued for the user’s content?

c)      Which one(s) has an arbitration provision, and where will the arbitration be conducted?

d)     For each agreement that has a “choice of law” provision, identify what state law will apply to any dispute?

e)      Which one has the best privacy agreement, that will protect your personal contact information and not provide it to other marketers?

f)       Find one different clause that is not contained in the other two, describe it purpose and explain why it might cause you to do business with this site or not.

g)      What provisions discuss their policy regarding the sale of items that have been banned or recalled by a government agency? What other types of items are identified as illegal to sell?

h)      Which one will actually help resolve a dispute between buyers and sellers and which one will not?

i)        Which ones disclaim any and all warranties of their service? Is the disclaimer of warranties clear and conspicuous?

j)        Which one(s) has an exculpatory clause which attempts to eliminate any claim for damages against them, or limits damages to a set amount (a liquidated damages clause)?

Answer 1

a) Pandora has a separate intellectual property policy that lists their intention to safeguard all the IP of their content. The user is provided clear statements and steps of what to provide to ensure there are no copyright violations, and what to do if any are found. It also addresses the possibility of false claims that might be made and what action can ensue from it. The agreement mentions a 'copyright agent' which appears to be dedicated role that they maintain to handle these type of issues.

b) Target's agreement requires the user to indemnify it from any liabilities and to pay for any costs and expenses arising from litigation, including 'reasonable attorneys' fees and expenses'. Effectively this means if the user breaches his/her contract terms then he/she will have to pay for the site's legal fees if they are sued for the user's content.

c) Target is the only site with an arbitration clause that specifies that if the claim is below $10,000 then the arbitration can be held in the country of the user's country of residence, however if the claim exceeds that amount the location will be determined as per the rules of the AAA - the American Arbitration Association.

d) The above arbitration will be governed by the laws of the State of Minnesota.

e) Target agreement has stricter rules about sharing personal data with marketeers. Other than with their own partners and service providers, they only share non-identifiable or aggregate information with third parties for lawful purposes.

f) Target has a separate clause for California residents that sets out different consumer rights and where/who to reach out to in case of questions. This would appeal to any california residents and increase their likelihood to do business with this site as their local laws are being considered.

g) Pandora uses its Community and Content policy to set out illegal goods that should not be sold as they are banned by the government. Items that include Spam mail, phishing and malicious content, sweepstakes/contests, pornography, hate speech or misleading content, violent and objectionable content, regulated goods such as alcohol, gambling, pharmaceuticals, fireworks, tobacco, firearms.

h) Pandora asks that dispute resolution be handled between the two parties only. Target includes a clause for final and binding arbitration according to the terms of their arbitration agreement in case of any disputes.

i) Twitter disclaims all warranties in their disclaimers and limitations of liability section. The disclaimer is clear and conspicuous and come with the heading 'the services are available as-is'.

j) Twitter states that to the maximum extent possible it cannot be held liable for its content, service or unauthorised access and limits the aggregate liability to $100 or the amount paid by the user in the last 6 months. This limit applies to all types of liabilities.