What Are We Agreeing To?

Jared Spool

February 13th, 2006

As the IT Department of my father’s personal computer, I had the opportunity to sit next to him as he installed a new piece of software. As part of the installation, a checkbox appeared with the label “I’ve read and agree to the Terms and Conditions.”

As is common, he checked it off without even reading the terms and conditions. He’s been corporate counsel to some of the world’s largest corporations and spends his days reviewing legal documents. If anyone was going to read these things, I would’ve figured it would be him.

Practically everyone checks the little box without reading what they are agreeing to. Is that because we’re convinced there’s nothing in them that will disagree with us? Or is it because of the way they are designed?

In preparing for an upcoming class, I was exploring whether I could distribute an article I purchased from the Time Magazine site to my students. To find out what permission Time will grant me, I found my way to the terms and conditions box:

The box that contains the terms and conditions for Time.com's article archive.

Now, I want to read this agreement. I want to study it and see if it’s going to work for me.

But the design of the form makes that extremely difficult. It’s a 4 line by 28 character scrolling text box. At best, it can display 112 characters or approximately 22 words. Yet, the document is 1,276 words long. The form can only display 2% of the available text at a time.

How am I supposed to see the scope of this document through the pinhole of the 4 x 28 text element? I don’t think I am. I think that the designers are intentionally trying to obscure their language.

I can see why. Here’s the agreement that I’m trying to read:

PLEASE READ THE SUBSCRIBER AGREEMENT BELOW AND INDICATE YOUR ACCEPTANCE BY CHECKING THE “I AGREE” CHECKBOX AND CLICKING ON THE “SUBMIT” BUTTON AT THE END OF THE AGREEMENT. BY USING THIS SERVICE, YOU ARE AGREEING TO BE BOUND BY THIS SUBSCRIBER AGREEMENT, INCLUDING ALL AMENDMENTS.

The TIME Archive and TIME.com, both divisions of Time Inc. (collectively or individually referred to as “TIME”), provide electronic news and information. By completing the registration process, checking the “I Agree” checkbox and clicking on the “SUBMIT” button, and using the TIME Archive, you agree to be bound by all of the terms in this Subscriber Agreement. You may print and keep a copy of this Agreement. TIME may change the terms in this Subscriber Agreement. When the terms are changed, the changes will appear in this document, which you can access at any time by selecting Help, followed by Subscription Information, followed by Subscriber Agreement. If you agree to be bound by the changes, you should check the “I Agree” checkbox and click on the “SUBMIT” button at the end of the Agreement. If you do not agree to be bound by the changes, you should not use the TIME Archive again and you should cancel your subscription to the TIME Archive. Even if you do not check the “I Agree” checkbox and click on the “SUBMIT” button, if you use the TIME Archive after TIME has notified subscribers of a change in the Subscriber Agreement, you are agreeing now to be bound by all of the changes.

PRIVACY OF INFORMATION
Please review our Privacy Policy, which also governs your visit to the TIME Archive, to understand how we collect and use information about you.

FEES AND PAYMENTS
You can always find the current Subscription Fees and charges posted on TIME.com under Pricing Info. If you are purchasing a subscription, it will continue and renew automatically, unless terminated by TIME by e-mail or telephone of your decision to terminate your subscription. If there are any annual, monthly, or similar periodic fees for your subscription, these fees will be billed automatically to the credit card designated during the registration process for the TIME Archive, at the start of the annual, monthly or similar period, and at the start of each renewal period, unless you terminate your subscription before the relevant period begins. You agree to pay or have paid all fees and charges incurred in connection with your user name and password for the TIME Archive (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are nonrefundable. TIME may change the fees and charges then in effect, or add new fees or charges. All fees and charges incurred in connection with your user name and password will be billed to the credit card designated during the registration process for the TIME Archive. If you want to designate a different credit card or if there is a change in credit card validity or expiration date, or if you believe someone has accessed the TIME Archive using your user name and password without your authorization, contact Customer Service at time-support@yaga.com. You also are responsible for any fees or charges incurred to access the TIME Archive through an Internet access provider or other third party service. YOU, AND NOT TIME, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.

COPYRIGHT AND LIMITATIONS ON USE
Only one individual may access the TIME Archive at the same time using the same user name or password, unless agreed otherwise by TIME. The content available through the TIME Archive is the property of TIME and is protected by copyright and other intellectual property laws. Content received through the TIME Archive may be displayed, reformatted, and printed for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate the content received through the TIME Archive to anyone, including but not limited to others in the same company or organization, without the express prior written consent of TIME, with this one exception:

You may, on an occasional and irregular basis, disseminate an insubstantial portion of content from the TIME Archive, for a noncommercial purpose, without charge, and transmitted in non-electronic form, to a limited number of individuals, provided you include all copyright and other proprietary rights notices with such portion of the content in the same form in which the notices appear in the TIME Archive, original source attribution, and the phrase “Used with permission from TIME Magazine”. You may not post any content from the TIME Archive to newsgroups, mail lists or electronic bulletin boards, without the prior written consent of TIME. To request consent for other matters, please contact TIME Reprints and Permissions at 212-522-1779 or by e-mailing TimeReprints_US@timeinc.com.

The TIME Archive includes facts, views, opinions and recommendations of individuals and organizations deemed of interest. TIME does not guarantee the accuracy, completeness or timeliness of, or otherwise endorse, these views, opinions or recommendations.

DISCLAIMER OR WARRANTIES AND LIABILITY
Due to the number of sources from which content in the TIME Archive is obtained, and the inherent hazards of electronic distribution, there may be delays, omissions or inaccuracies in such content and the TIME Archive. TIME CANNOT AND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT AVAILABLE THROUGH THE TIME ARCHIVE. TIME SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR PART BY ITS NEGLIGENCE OR CONTINGENCIES BEYOND ITS CONTROL IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING THE TIME ARCHIVE AND ANY CONTENT THROUGH TIME.COM. IN NO EVENT WILL TIME, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH CONTENT OR THE TIME ARCHIVE. TIME SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIABILITY OF TIME, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH THE TIME ARCHIVE OR THE CONTENT IN THE TIME ARCHIVE SHALL NOT EXCEED THE AMOUNT YOU PAID TO TIME FOR THE USE OF THE TIME ARCHIVE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

You are responsible for all statements made and acts or omissions that occur while your password is being used. You may not use the TIME Archive for any unlawful purpose. TIME may refuse to grant you a user name that impersonates someone else, is protected by trademark or other proprietary right law, or is vulgar or otherwise offensive, as determined by TIME. TIME may discontinue or change the TIME Archive, or its availability to you, at any time, and you may always terminate your subscription at any time. This Agreement is personal to you, and you may not assign your rights or obligations to anyone. If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect. This Agreement, your rights and obligations, and all actions contemplated by this agreement shall be governed by the laws of the United States of America and New York State, as if the Agreement was a contract wholly entered into and wholly performed within New York State. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

I don’t know about you, but I find it to be basically impenetrable. Even the section I want (in bold-italics above — the sixth paragraph) is practically inscrutable. I grew up in a house filled with lawyers (we used to discuss the subtleties of contract law over dinner) and I review contracts regularly, but I can’t tell if I’m allowed to hand an article to my students or not. Is this an occasional and irregular basis? (I only teach this class once a year.) Or is this posting to a bulletin board? (I communicate with my students through a forum called Blackboard.)

Looking through this, I think Time Warner doesn’t want people to read it. I think they want to just bully them into signing it. Why else would the make it so hard to read and then go so far as to bury it in a 4 by 28 text box?

Time Warner isn’t alone. Practically every site with Terms and Conditions makes it impossible to read them. Print them out for your records? Not a chance. We may want to change them later and we wouldn’t want a paper trail indicating you were grandfathered into something we’re not comfortable with.

There are a few exceptions. Southwest Airlines, for example, has taken the high road with their fare rules. Here are the rules for one of their refundable fares:

Southwest takes the high road by writing their t&c's in plain English.

I can read this. I can tell what it says. I can see if it meets my needs.

That means I can complete my goal. And when I can complete my goal, I’m happier about doing further business with Southwest. I don’t walk away from the site with the suspicion they are trying to pull something over on me. On the contrary, I’m thinking they want my business so much that they’ll explain things in a way I can understand.

How have you designed your terms and conditions? Are you sending the message that you’re trying to pull something over on the user? Or are you being up front and putting it on the table in clear, concise language?

Experience design touches all parts of the experience and that includes your legal disclaimers.

3 Responses to “What Are We Agreeing To?”

  1. ntschutta.com Says:

    Be Careful What you Click on

    I don’t think Jared Spool had Netflix in mind when he wrote about end user licenses but his point fits none the less. Apparently, Netflix throttles down their service if you’re a frequent user. People who rent more than a set number (kno…

  2. Content Matters » Legalese does not please! Says:

    [...] Jared Spool, What are we agreeing to? [...]

  3. User Centered Says:

    DoToS: Denial of (Terms of) Service

    I was checking out Fog Creek’s copilot because I was interested in the documentary about the interns that built it (in 10 weeks), and I noti …

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