Thursday, July 12, 2018

User Agreements

An outdoor activity almost everyone loves is riding a bike. With the new bike-share companies popping up all over the US, your ability to take a quick ride is greater than ever. But do you know what you are signing up for when you take that quick, low-cost ride? Some overly-aggressive lawyers for these seemingly "friendly" companies are pushing extreme liability onto their customers - liability no one in their right mind would thins is reasonable.
Consider Lime, the hip bike-share started with lime-green bikes. Rides are just a buck. But to participate you agree to a multi-page "user agreement." The agreement includes a whole section on indemnification, which means you are agreement to cover any of Lime's liability for these issues. What Lime did here was slip in indemnification for IP infringement. That's right, if Lime's user app, for example, transmits data in some special way that it protected by a competitor's patent, the end user takes on that liability. See Section 8.1 below:
8.1. Indemnification : You agree to defend, indemnify, and hold harmless the Released Persons from and against any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, attorneys’ fees, judgments, suits settlements, and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Released Person, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) Your use or misuse of the Services, Products, and/or related equipment, (ii) Your User Submissions; (iii) Your use of the Services and Your activities in connection with the Services; (iv) Your breach or alleged breach of this Agreement or any Additional Terms; (v) Your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with Your use of the Services (including the Products) or Your activities in connection with the Services; (vi) information or material transmitted through Your Device(s), even if not submitted by You, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vii) any misrepresentation made by You; and (viii) the Released Persons’ use of the information that You submit to Us (including Your User Submissions) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by the Released Persons in the defense of any of the foregoing. Notwithstanding the foregoing, the Released Persons retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Released Persons reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Released Persons.
Could or would Lime enforce such a provision is an open question, but that they are worried enough to put it in their user agreement raises more questions than it answers.


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