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Terms of ensnarement
The language in software agreements is perplexing enough. Vendors shouldn't complicate them further with inexplicable actions or statements. |
By Rik Fairlie
Editor, Computer Shopper
(4/3/02)
But even more hair-raising are phrases like "reserve the right to modify fees without notice." Just ask Samuel A. Solace, president of Century Performance Center, an e-tailer that sells parts and accessories for auto enthusiasts.
| Terms like "aggregate liability" and "exclusive jurisdiction of the courts" sound undeniably menacing, even if you don't understand them. |  |
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Solace, who has used Intuit's QuickBooks Pro accounting program for eight years, was sending a client an invoice via e-mail, a free feature of the service. Before QuickBooks would dispatch his invoice, however, a message popped up asking Solace to fill in a check box for a new terms-of-service (TOS) agreement. He read the glittering 3,134-word document and was startled to learn Intuit wanted carte blanche approval to raise fees. The phrase "Intuit reserves the right to modify its fees with or without notice" seemed peculiar, particularly because he'd already purchased the software.
"They're trying to force you into payable services," he says. "It's almost like getting into a porn site and having to pay to cancel. With this new TOS, you basically cut your own throat because you aren't able to send your free e-mail without first agreeing to the TOS."
Alarmed and annoyed, he phoned Intuit's help desk to ask what the agreement really meant. This time he got a response in language anyone could understand. "They tried to charge me $80 for a service incident, just for calling to complain," Solace says. He eventually persuaded a supervisor to waive the fee, but no one ever explained why he was being asked to sign a new TOS pact.
Intuit says it slipped in the TOS agreement because it needed to update its customer agreements to protect itself from liability as well as to promote upcoming optional services. "We included the alert so that customers understand that what they're using now is free, and if they choose to use additional services, there may be fees associated with that," says Charles Var, senior corporate communications manager for Intuit's small-business division. "We won't charge for services that are now free--none of that's changed."
The TOS agreement went out to all users of QuickBooks' online billing and invoicing services. "The irony here is that we tried to make it totally clear to people that their service will remain the same," Var says. When pressed, however, he admits such words of comfort are completely absent from the TOS. Instead, the company saved them for e-mail sent to users after they'd already signed the TOS. And Var admits that it was confusing to users to present a new TOS agreement without explanation.
Hostage to Office?
Microsoft, which by now should expect that many users will assume the worst of its actions, perturbed at least one Office XP user in a similar fashion.
Gloria B. Scigliano was noodling around the help files in Office XP Professional when she tripped over a clause stipulating that her software is subject to a subscription agreement that limits its functionality. It warns that if she fails to renew her subscription upon expiration, Office will sink into Reduced Functionality mode, hindering her ability to create new documents or save changes to existing documents, among other things.
That's pretty galling, considering she paid $579 for this chunk of code. "I don't know what it all means, but it sure sounds like it will cost me more money at some point," she says. "I haven't seen any reference to it on any of the Microsoft Web site pages relating to Office XP. That's why I was so shocked to see it in the help system."
| It's curious that Microsoft wouldn't try to avoid user confusion and complaints by simply removing references to subscription-based versions. | |
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Still, it's curious that Microsoft wouldn't try to avoid user confusion and complaints by simply removing references to subscription-based versions. According to Marks, the company ships one global code base for Office XP, which contains the subscription language. Only customers who purchased the subscription version will see an expiration date with the subscription information, however.
Of course, a sneakier scheme would be to charge for annual renewals later on. That won't happen, says Marks. "We understand that the wording in the help files is a little unclear, but Microsoft will not charge users later on for annual licensing-fee renewals," he says.
Buyer, beware
You may be tempted to click the I Accept button in software agreements without even reading them. But when your business rides on that program, and especially if your company handles sensitive customer data, be sure to scrutinize the legal language.
Software vendors should ensure the information they ask customers to agree to is straightforward and applicable. It's tricky enough to master the programs; you shouldn't have to enroll in law school to understand your rights as an owner.
Have you uncovered any unfair terms in purchase contracts for hardware or software? TalkBack to me! Rik Fairlie is the editor of Computer Shopper magazine. Questions or comments? Let us know.
