The ‘Pokemon Go’ phenomenon has now truly hit the UK and the ‘horror stories’ and doom-mongering has started in earnest.
Among many concerns voiced by experts and the media is the extent of the app’s standard ‘Terms of Service’, which runs to nearly 7,000 words, with additional policies referenced. Like most apps / games, new users are asked to agree and acknowledge that they have reviewed and agree to be bound by these set terms and conditions. In this case Niantic Inc. (who is the company in charge of the mobile device application) requires users to sign up to these terms before their ‘Pokemon experience’ commences.
Although terms of service are important legal documents, which set out the agreements and terms under which the ‘customer’ is able to use the software, alarmingly, 73 per cent of people say they do not take the time to read terms and conditions for similar services.
As such, how protected are users from what might and has gone wrong so far?
‘Terms of Service’
What is notable about the Pokemon Go ‘Terms of Service’? Tom Baker, from Stephensons’ commercial department highlights his top 6 clauses to watch out for:
The ‘Terms of Service’ require you a user to read all three documents. By asking you to read the documents in advance of agreeing to the terms, you are formally bound by all the terms. Should Niantic not include this or similar phrase as part of the wider agreement, then you may be able to argue that you are not bound by them. This is often referred to as “incorporating” the terms and conditions.
2. “We may modify these Terms at any time.”
This does exactly what it says. Niantic can from time to time amend the standard terms that govern the relationship between you and it. Whilst there are arguments as to whether these terms are properly incorporated into the relationship, it is likely that Niantic will ask you (at each occasion that they are amended) to review and agree to the updated terms. Niantic can therefore realistically do this as frequently and as extensively as it chooses.
3. “These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.”
This clearly comes with a health warning. Laws and procedures change drastically from one jurisdiction to another. What might be a common practice in California might be illegal or in breach of a law in this jurisdiction. By agreeing to the terms provided you are agreeing that any relationship between you and Niantic is governed by the laws of the State of California. Whilst the laws of the State of California are likely to be thorough, or even similar in kind, they are not the same laws of England and Wales and are clearly not commonly understood elsewhere.
4. “You will indemnify and hold harmless…”
An ‘indemnity’ is a very specific legal term. In its purest form, an indemnity is an obligation by a person to provide compensation for a particular loss suffered by another person. In this case you as a user will be providing such indemnity to Niantic (and any other that may be effected) for any and all losses. This clause is heavily prejudicial to the users and provides Niantic with significant powers to recovers monies from the users for any loss and / or expense that it incurs as a result of your actions. If we were advising our clients about this clause we would advise them to think very carefully whether the risks of agreeing to it outweighs the benefit of the service being provided.
5. “YOUR USE OF THE APP AND SERVICES ARE AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW”
Stories have already appeared in the media as users succumb to – often embarrassing – physical harm as a result of using the app. From falling into ditches or being out of pocket due to exploitation, an app with such media hype was always likely to bring such issues. In asking you to agree to this clause, Niantic is stating that the use of the app is clearly at your own risk. Whilst the laws of England and Wales limit the extent upon which the use is at your own risk, the laws of California (which we detailed above) might not.
6. Limitation on Liability
It is usual under terms and conditions to limit the liability. In matters governed by the laws of England and Wales the level of the limitability can only be limited to a certain amount. The Consumer Rights Act 2015 and the Unfair Contract Terms Act 1977 set the limits and extent upon which a company / service or good provider can limit its exposure. However, as we have already covered, the laws of the State of California might not provide users with that same level of protection. What is notable from reviewing this clause is that Niantic limits its liability to a set financial value. Niantic will be responsible for a maximum potential liability for any action to a value of $1,000 only.
Reviewing your business' terms and conditions
The use of Terms and Conditions are important in protecting a company’s interest and avoiding unnecessary costly disputes at a later date.
Should your company need new, bespoke terms and conditions or if you think the ones you have need updating then please contact Tom Baker in Stephensons’ commercial department.