PickupPal: just drive, they said, with the following terms and conditions
// April 7th, 2008 // Other news
This post begins a new section of doingwords.com, TOSwatch (Terms Of Service watch). Posts to the TOSwatch category will focus on the shifting sands of Terms Of Service and Privacy Policy documents – that ever-shifting legal no-man’s land where lawyers and web startups try to keep up with the dastardly things we do to each other on the interwebs.
If your TOS is deep, wide and scary enough, site visitors won’t be game to attempt a crossing and become an actual customer. You’ll be legally protected but you won’t have that nice new business you were hoping would pay your lawyer’s bill.
I’m pleased to see PickupPal reviving the lost art of WhackilyCapitalisedBrands. I’m delighted to see them attempt the challenging goal of earning a 7% fee on people’s car-pooling, especially if it means reducing some car-related carbon emissions.
But I’m disappointed to see them interrupt an otherwise OK new user signup process with a large, unfriendly and terribly presented TOS.
Listen to lawyers for too long and soon they’ll have you believing you should have a TOS signed before the kids next-door come around to play, and sometime between here and there they’ll no doubt press upon you a vast, scary legal document meant to hermetically seal your new startup against any form of legal risk, including (but not limited to):
- Attack by alien lifeforms sworn to eliminate the use of the phrase “web 2.0” from the universe by whatever means necessary;
- Any combination of fire, flood, pestilence, act of war or poor hygiene;
- A rain of frogs, fish, and right, sperm, blue and sei whales.
Some of the risks you’ll be notionally guarded against will be likely, some of them unlikely, some of them yet to ever occur in this universe.
“Just because they haven’t happened yet,” your lawyer will argue, “Doesn’t mean we shouldn’t protect you from them happening.”
“Just having the TOS list every possible risk to your business is not enough,” your lawyer will go on. “We must also present it prominently so that we can be confident the user has read the TOS and agreed to every term.”
Well, yes and no. In my not-entirely-humble-without-a-law-qualification-but-educated-on-the-legal-streets-of-experience-opinion, that is. Your mileage may vary.
Lets remain alert-but-relaxed about the alien invasion threat
Poor PickupPal has forgotten – or never realised – that should a new visitor take the trouble to read through the TOS, they are very likely to reconsider the whole carpool idea. Some of the horrible and scary things they may experience while being a PickupPal customer but had never thought about before might include sharing the car with firearms and other weapons, nuclear substances, explosives, gases, corrosives, toxic substances, illicit drugs, live animals, birds, insects or reptiles, even “corpses or cremating remains (animal or human)”.
Note the TOS clearly states that drivers are NOT to transport these things but it’s like your appointment with the surgeon, when the idea of post-operative pain hadn’t occurred to you until the surgeon said, “usually, post-operative pain is minor and quickly passes.” Suddenly, post-operative pain becomes a very big deal, and the more the surgeon talks about how small a deal it is, the more your mind wants to dwell on it.
Focus-group the PickupPal TOS, get people in off the street to skim-read it and then tell you what they remember, and I would bet good money that the mention of corpses, drugs and guns would score most highly of all. When we’re trying to get as many site visitors to sign up as possible, making the service seem like PickupDrugDealers.com is probably a bad idea.
Your TOS is too wide and I cannot cross over
The lawyer will tell you that a court will look to see evidence that users were made aware of the terms and conditions they were agreeing to, and that you required their consent to those terms before allowing them to use your service.
PickupPal has taken the lawyer-approved approach of slapping the TOS front-and-centre early in the new user signup process. Because it’s such a large TOS and the site design is fixed dimension, it’s presented in a small frame the user must scroll through to read, which reduced readability and retention, and is just annoying to do.
Before you do the same, weigh the cost of a hefty TOS against the benefits of signing up new users more quickly.
Are you certain that new visitors will be prepared to undergo the inconvenience and frustration of all that scrolling and squinting before they can even begin using your service? They may have just come from a red-hot techcrunch review, a sketchy Digg mention, or a half-remembered URL a friend mentioned. They may have all day to do this, or they may have allowed only a few minutes to do the signup at the end of their lunch break.
Let’s face it, you don’t know their state of mind, can’t possibly, and shouldn’t assume they’ll be reasonable, patient and cautious people when they arrive on your site for the first time. Always in the top three reasons why site visitors don’t complete a registration is “It was taking too long”. If you dig further into the motivations, you’ll find a visitor perceives a registration process with the TOS included as “taking longer to complete” than a registration process with the TOS available via a link to another page.
Even though both registration processes require the same action from the user (checking checkbox “I have read, understood and agreed to the TOS”) the perception is that a registration process with so much to read takes longer.
There’s also a frequent perception that signing up for a service with a prominent TOS is a more “serious” decision – one that shouldn’t be entered into on an impulse. If an impulse is all that got the visitor to your site, you don’t want to work against that impulse.
In the case of Cast-Iron-TOS versus Getting-New-Customers, your honour, you must balance prominence of your TOS and clearly obtaining consent against the possibility that it may discourage potential new customers from becoming actual new customers.
What’s the worst that could happen?
When drafting your TOS, balance the need for protection against the need to attract new customers, and try to keep your TOS as brief as possible. Will someone sue you one day because they used your service and found they were sharing the passenger seat with a corpse? Possibly. Could a court reasonably decide to hold you liable? Less likely. Would the damages amount to much? Less likely still. Aim to protect yourself against the likely risks, and let the cards fall where they may on the outlandish, incredible and extraordinary risks.
You wouldn’t shout in an email, don’t shout in a TOS
Apparently someone, somehow was able to successfully argue that because an important clause of a contract was written in sentence-case, they hadn’t noticed it, and shouldn’t be held responsible for it. That seems to be the reason why SO MANY IMPORTANT BITS OF TERMS OF SERVICE AGREEMENTS ARE IN ALL-CAPS.
But come on, this is the interwebs! It’s different here! We just don’t treat people like that. Do you really want to shout at visitors to your website before they even decide whether to sign up? No, of course not.
Leave the legalese for the courthouse
We all have an intuitive emotional response to accents and dialects. For instance, depending where you grew up, people with a New Zealand, Irish, Cornwall, New Jersey or Canadian accent will have to work harder to appear intelligent and credible.
Speaking legalese elicits an intuitive emotional response too, invariably a negative one that leaves the reader wary and edgy. Hands up everyone who likes the way lawyers speak? OK, now only the people who aren’t actually lawyers? I thought so.
Legalese is a very strict form of language where every word must have a precisely defined meaning. This is intended to ensure that the meaning of a contract is clear and incontestable. Right, that would be the reason there are so few contracts ever disputed in court? So if legalese puts new site visitors off, and doesn’t contribute significantly to the defence of your contract in court, is most of it really necessary? Much of it may not be. Use a good writer to help you trim your TOS of unnecessary legalese and introduce plain, friendly English wherever possible.
Divide and conquer
PickupPal’s TOS includes all the terms and conditions for both kinds of users (drivers and passengers) and all possible uses of the service in one lengthy document, when in fact, most users will only ever use a third of the site’s features and only ever be either a driver or a passenger, not both.
Instead of one big TOS with one field in your user database (“TOS_agreed = Y/N”) consider splitting your TOS into several agreements, each of which is only shown to the user when necessary, with separate database fields for each of these sub-agreements.
For instance, PickupPal asks you to choose between driver and passenger registration a step prior to the TOS, so it would be great for the user if the TOS reflected only those clauses that pertained to driving or being a passenger. Later on, if the user wants to start doing both, design the website so they agree to the other set of terms too.
In many cases it’s possible to divide agreements up so a particular ‘risky’ activity (such as displaying R- or X-rated content in a search result) has its own small, separate TOS to agree to before you continue. That means most of your users will never have to imagine the horror of being exposed to X-rated content before they even sign up for your service (remember the surgeon and post-op pain example?)
Aliens attacking? Don’t say I didn’t tell you so…
If your TOS is deep, wide and scary enough, site visitors won’t be game to attempt a crossing and become an actual customer. You’ll be legally protected but you won’t have that nice new business you were hoping would pay your lawyer’s bill.
But, remember, I’m not a lawyer. Come the revolution, I will join you in putting all the lawyers up against the wall (along with the CTOs, IAs and marketing managers… I have a lot of work to do come the revolution.) Because I’m not a lawyer, your mileage may vary, but I’m not going to ask you to agree to a lengthy TOS to attempt to limit your ability to sue me for following my advice over a precipice. Don’t take my advice without exercising your own best judgement and doing what’s right for your business.
We’ll just have to see if that holds up in court!
