I mistyped the address for Youtube.com (I left off the final letter), and got redirected to videosurveypanel.com, which managed to convince me for a considerable period of time that it was running a survey for YouTube. It wasn’t until I dug into the unbelievably one-sided contract terms that I got suspicious – it didn’t sound like Google could be this evil. And (thanks to searching on Google) I confirmed that it wasn’t.
Not only is the way they reel you in borderline deceptive — I think YouTube would have a good shot at a trademark claim since I was genuinely deceived for some time and YouTube would very likely win a UDRP action — but the contract really is an amazing piece of draftsmanship: so one-sided as to likely not be enforceable (EDIT: against the user; the user could have various claims against the company. So could the FTC.).
Here’s what you see at first:
You’ve been selected from the Miami region to take part in our annual visitor survey.
This will only take 30 seconds of your time and will enhance user experience.
Upon completion you will have the opportunity to get a free Macbook Air, Sony Vaio, or Vizio HDTV.
Even at the outset I think “get” is a bit tacky for what I presume is going to be a minuscule chance to win a drawing sometime in the far future, but hey, it’s marketing. The questions were gender, age group, number of videos watched online a week (4-10), and how much I hate ads in videos (a lot). Then on to to the register for the sweepstakes part of the show. I “chose” the flashy laptop from the option. The next screen invites me to give my email and cellphone number under a headline saying
Thank you for your response.
If you are interested, this is your opportunity to
Get your free gift
There’s that “get” again. Nothing yet about odds. Of course, I’m not going to give my phone number without seeing the Privacy Policy. And it turns out to be dire.
First, they can change it retroactively any time:
[The Company] reserves the right to revise this Privacy Policy at any time simply by posting such revision, so we encourage you to review it periodically.
Second, if I give them a cellphone number (what if I don’t have a cell? presumably I’ve violated the terms of the offer?) they will spam me with ads.
By completing and submitting a registration form you are consenting to receive SMS, wireless or other mobile offering to your cell phone. You understand that your wireless carrier’s standard charges and rates apply to these messages. To unsubscribe or discontinue SMS messages, send “STOP”, “END”, or “QUIT” to the SMS text message you have received and the SMS sender will unsubscribe you from further SMS messages within 10 days of receiving such request.
Since I don’t have a texting plan, I’ll pay for each of them until I tell them to stop. Even though they have computers, it will take the squirrel in the cage in the back room ten days to do the data entry.
Third, they will sell my data to advertisers:
When you answer “yes” or “no” to a survey question, some or all of the information that you submitted during the website registration process will be transferred to advertisers that we believe may be of interest to you without providing you with another opportunity to review the information.
When you select “yes” next to an offer, we will transfer some or all of the information that you submitted during the website registration process to the applicable advertiser without providing you with another opportunity to review the information either with our own technology or a 3rd party proxy.
Surely, by saying I want the laptop, they will say I’ve agreed to the above. And even if not, they’ve still got me:
By completing and submitting a Company registration form, you are consenting to receive marketing communications from the Company and its third party marketing partners. If, after you have shared your information with the Company, you decide that you do not want to receive marketing communications from the Company and its third party marketing partners, you can discontinue the communications and following the opt-out instructions. If you have registered or submitted information under more than one e-mail account, you must submit separate unsubscribe requests for each account.
Fourth, if all that wasn’t enough, there is a separate document called Terms on the first page of the survey, and “Terms and Conditions” at the end of the privacy policy. It turns out this isn’t a lottery at all.
It purports to be one heck of webwrap contract:
This promotion is conducted exclusively by www.videosurveypanel.com, and is subject to participation terms and conditions. Receipt of your item requires compliance with offer terms, including: age and residency requirements; registration with valid e-mail address, shipping address and phone number; completion of user survey and sponsor offers. Upon completion of all requirements, we will ship your incentive gift to your verified shipping address. Fulfillment may be delayed based on availability.
Oh-oh: “completion of user survey and sponsor offers”. Typically that means jumping through a nearly endless series of hoops. If you find a single question too intrusive – no prize. If you miss a single complex detail designed to make you fail on a tight deadline – no prize. If you can’t prove you jumped through all the hoops – no prize.
By now I’m really puzzled: I expected better from Google. (And indeed, this turns out to have nothing to do with Google, so that’s one good thing about this.)
But let’s soldier on through the Terms & Conditions and see what they say.
It doesn’t start well:
PLEASE READ THESE TERMS & CONDITIONS CAREFULLY BEFORE USING THIS WEBSITE. BY USING THIS WEBSITE, YOU AGREE TO BE BOUND BY, AND TO COMPLY WITH, THESE TERMS & CONDITIONS UNLESS YOU OFFER DIFFERENT TERMS THAT ARE ACCEPTED IN WRITING BY www.videosurveypanel.com . IF YOU DO NOT ACCEPT THESE TERMS & CONDITIONS, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THIS WEBSITE FOR ANY PURPOSE.
Leaving aside that webwrap contracts are almost certainly not enforceable if the user isn’t forced to read and acknowledge them, taken literally this language means I can’t even read the Terms & Conditions unless I agree with them. Or that by reading them, I’m agreeing to them. Sloppy and mean. And not founded in law.
The next paragraphs is no better. It seems I’m acknowledging that I love them:
By registering on this website, you are certifying you have read, understand and agree to these Terms & Conditions, as well as our Privacy Policy. Our Privacy Policy can be accessed and reviewed here. You also acknowledge that this website provides valuable rewards to consumers who respond to and complete the specified number of advertiser offers and that you are accessing this website solely for this purpose.
Note the ominous but undefined “specified number of advertiser offers” they intend to try to make customers sign on to.
But don’t worry: if it looks like you might win a valuable prize, videosurveypanel.com reserves the right to give you a single piece of bubblegum instead:
www.videosurveypanel.com reserves the right, in its sole discretion, to revise these Terms & Conditions at any time, for any reason, without notice. www.videosurveypanel.com also reserves the right, in its sole discretion, to change the methods through which future rewards are earned. This may include changing the approval requirements necessary to receive future rewards by increasing or decreasing the number of advertiser offers that must be completed to qualify, and adding or decreasing the amount of steps to confirm that you have a legitimate account. www.videosurveypanel.com may also add or remove any product or service listed as a reward at any time. If www.videosurveypanel.com replaces a reward, the new reward may not be of equal value.
Note that by now we don’t even have a contract, since they haven’t actually promised anything at all. But if you don’t like it, well, you’ve violated the terms of service:
Please check these Terms & Conditions periodically for changes. Your use of this website following any such modification constitutes your agreement to follow and be bound by the Terms & Conditions as modified. The last date these Terms & Conditions were revised is set forth below. IF YOU BREACH ANY OF THESE TERMS & CONDITIONS YOUR RIGHT TO USE THIS WEBSITE WILL TERMINATE AND YOUR ACCOUNT WILL BE DISQUALIFIED.
(Bold in original)
And it gets worse. The “rewards” are not actually rewards.
To qualify for the reward on this particular website, you may be required to complete reward offers from the Silver, Gold, and Platinum Offer Pages. Please refer to the requirements of each reward carefully.
*Please note that available reward offers will vary. Some reward offers require a purchase. Credit card offers may require you to activate the card by making a purchase, transferring a balance or taking a cash advance.
Got that? It’s going to be a very bad deal. But you can’t back out when you want to:
(1.) Your account/reward eligibility will expire 60 days from the date you register on this website. Upon expiration, you will no longer be eligible to receive the reward.
(2.) There is no way to cancel an account. If you no longer wish to remain a part of this website, you should refrain from accessing your account.
Yes a very very bad deal indeed. A couple of pages into the (very long) document, we finally get some hints of what is in store:
B. Completion of Reward Offers
(1.) You must provide valid and truthful information when completing an advertiser’s offer. Accounts in violation of this rule will be placed on hold or disqualified.
(2.) Once you have completed an advertiser’s offer, you will not receive credit for that offer, or any other offer sponsored by that advertiser, for up to six months. For purposes hereof, an “advertiser” generally is the business unit sponsoring the offer, although some advertisers may apply this rule to the entire corporate entity sponsoring the offer.
(3.) In order to receive credit for completing an offer, you must complete the offer by clicking on the offer from this website. You must click the offer link via our web page in order for us to correctly track and credit your account. You may also be required to send us a copy of your offer confirmation if credit for completing the offer is somehow not appearing in your account. Importantly, some applications such as spyware blockers or pop-up blockers may preclude these links from functioning correctly and www.videosurveypanel.com is not liable for such failures.
(4.) You may apply only once to any given credit card offer. Credit card offers may require you to activate the card by making a purchase, transferring a balance or taking a cash advance.
(5.) You may complete only one Discover Card application toward qualification for the reward.
(6.) For high-speed Internet service offers, you must order and install the high-speed Internet service to complete the offer.
(7.) In order to receive proper credit for completing an offer, you must make sure that your browser settings are set to accept all cookies, and that you click on our exact offer link to get to the offer provider’s website.
If somehow you jump through all the hoops in the 60 days, then wait six months for the videosurveypanel.com to admit you are entitled to something, then they have 45 more days to send it to you:
(3.) After verifying your information, we will send your reward within 45 days.
By that time the laptop will doubtlessly be out of date. But, not to worry, the kind folks at videosurveypanel.com have anticipated this eventuality:
(1) www.videosurveypanel.com reserves the right to substitute a check for the reward. The amount of the check shall be determined by www.videosurveypanel.com in its sole discretion. By cashing the check, you agree that you have been made whole and relinquish your rights to pursue any and all claims against this website, www.videosurveypanel.com , its parent, successors, assigns, affiliates, advertisers, and employees.
(2.) www.videosurveypanel.com reserves the right to substitute a gift card for the reward. The amount of the gift card and the merchant shall be determined by www.videosurveypanel.com in its sole discretion. By accepting the gift card, you agree that you have been made whole and relinquish your rights to pursue any and all claims against this website, www.videosurveypanel.com , its parent, successors, assigns, affiliates, advertisers, and employees.
(3.) www.videosurveypanel.com reserves the right to substitute a product of comparable value for the reward. “Comparable value” shall be determined by www.videosurveypanel.com in its sole discretion.
(4.) Rewards that are back ordered will be replaced with another item, a check or a gift card, or they will ship when they are made available. Discontinued products will be replaced with another item, a check or a gift card.
In other words, instead of your prize they can send you money, or a gift card, or another product, and can choose any value they like. It seems one cent would do. And they can pretty much take as long as they want.
But not to worry, because they can also refuse to send you anything at all if they don’t feel like it:
Your account, and associated accounts, may be placed on hold and/or disqualified for:
…
(3.) posting information on a website, forum or auction that has to do with manipulating the website or “canceling the offers,” including but not limited to cancellation phone numbers, cancellation time frames and any encouragement or direction to cancel the offers after signing-up with the applicable advertiser(s);
…
(6.) any other reason or a combination of reasons at the sole discretion of www.videosurveypanel.com
If they decide they don’t want to send you anything, they don’t have to tell you:
www.videosurveypanel.com is not responsible for notifying you about a change in your account status.
Don’t like the terms? Tough.
IF YOU ARE DISSATISFIED WITH THE WEBSITE, THE CONTENT, THE TERMS & CONDITIONS, OR THE PRIVACY POLICY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE.
But if they don’t like you, watch out:
E. Indemnification. You understand and agree that you are personally responsible for your behavior on the website. You agree to indemnify, defend and hold harmless www.videosurveypanel.com , its parent, subsidiaries, affiliates, licensors, officers, directors, employees, and agents from and against all claims, losses, expenses, damages, and costs (including but not limited to direct, indirect, incidental, consequential, and/or exemplary damages), and attorneys’ fees, resulting from or arising out of your use, misuse or inability to use the website or the Content, or any violation by you of these Terms & Conditions.
Amazing.
Why file UDRP when you can sue under ACPA? UDRP is, like the TTAB, for people with weak rights. If you have a slam dunk, take it to federal court.
The UDRP is faster, and usually cheaper. If you just want to take the domain name away from the defendant, and don’t want damages, it can be very attractive from the plaintiff’s perspective. Plus, if the facts are simple it is easier to win.
The problem – the biggest problem – with UDRP is that the cybersquatter can always just file a dec action in federal court after the UDRP proceeding is concluded. Then, you still have to litigate in federal court and have wasted your time and money on arbitration thereby making UDRP actually more expensive than federal litigation.
If on the other hand the cybersquatter doesn’t intend to fight, you get a default in federal court and are done.
If I remember right, UDRP filing fees are also more than Federal Court, but I could be wrong about this last point.
OTOH, if the registration details are fraudulent, or even imperfect, doing a John Doe is a lot easier in the UDRP since the service requirements are so weak. Cf. ICANN’s UDRP: Its Causes and (Partial) Cures.
I agree that … Not only is the way they reel you in borderline deceptive — I think YouTube would have a good shot at a trademark claim since I was genuinely deceived for some time and YouTube would very likely win a UDRP action ….