What Do Your Terms of Service Say About Your Opinion of...

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What Do Your Terms of Service Say About Your Opinion of Your Customers?

What Do Your Terms of Service Say About Your Opinion of Your Customers?

Note: this article was originally published at Fredo Pareto.
 
I will give one example of what not to do.
 
Supposedly, Athletic Greens are good; Tim Ferriss even endorses them.
 
But holy smokes, Athletic Greens’s terms of service makes we wonder if Athletic Greens thinks all of its customers are criminals.
 
I dissect terms of service for a living, and one thing I’ve learned is that it behooves consumers to pay attention to omens (like bird swarms over Walmart or wildly unfair fine print). If it doesn’t feel right, walk away.
 
Athletic Greens’s terms of service do not feel right.

The messaging on the sales part of the site and the messaging concealed behind the curtain (I mean, who actually looks at terms of service?) are totally different. But don’t worry, Athletic Greens covered that conflict, too:

“Where this disclaimer and claims made in sales and promotional materials describing details pertaining to the Company are in conflict, the Terms of Use and Purchase
Agreement / Purchase Order (if any) shall be controlling except, and unless, the Company deliberately misled you.”

Translation: Even if our sales copy lies to you, you cannot hold us accountable unless we did it on purpose. Deception is OK unless, I don’t know, you prove that we lied to, I don’t know, make the sale.

At minimum, I think we could all agree that the express purpose of sales copy is to get the sale. Yet it's not enough, according to these terms of service, to prove that Athletic Greens was enriched by some deception in the copy. You actually have to prove that the deception itself was intentional. This is hard unless you grant that (1) all sales copy is intentional and, given its function to induce people to part with their money, (2) that, by default, the burden to avoid deception should be on the author of the sales copy. This terms of service eschews that burden to be truthful.

“The sole burden is exclusively upon you to
substantiate any deliberate deception allegedly committed by the Company that, in specified ways, caused you to purchase the Company’s products on one or more occasions.”

That’s not all, though. If you set out to prove this, and we defeat you in court, you have to pay all of our costs, too. Talk about misaligned incentives…

“You accept the obligation to reimburse the Company for all costs, including, without limitation, court costs, investigation costs, attorney fees, and all litigation-related costs in the event you bring suit against the Company (or its affiliates, 
managers, members, officers, agents or representatives) and you do not prevail in court or at arbitration.”

Companies with terms of service like this tend to have checkered pasts: phone companies, cable companies, banks, and potion salesmen like this one.

I love how Athletic Greens meta-describes the purpose of its terms of service page: “This Terms of Use document allows our valued customers to feel comfortable knowing that Athletic Greens (USA), Inc recognizes and supports the rights of its customers.”

Ha!

I don’t know about you, but this does not make me comfortable. I would literally not buy the product on the sole basis of its terms of service seeming like overcompensation for some dark, dirty secret.

My take on terms of service is this: if you’re going to ask your customers to trust you, then you should demonstrate that you’re willing to also trust them, and you do this by not trying to slip wildly unfair fine print into the deal.

Be fair. Be upfront. Be simple. That’s how you earn trust, in any case.