Got to catch them all, got to read them all!

By Su-Ann Loh

Pokemon GO has only been released in the US, New Zealand and Australia since July and it has already exceeded Twitter’s 65 million US users since its launch. It’s not a bad outcome for Nintendo who rely on the Google Map platform to provide a computerised 3D method for catching pocket monsters.

Even with a free download however, the quest to become the greatest world trainer for Pokemon will have terms and conditions attached to it, as with anything you download as an App (mobile device application) through the App Store.

The chances are that at the time of downloading an App, especially in the excitement of competing for the capture and battle of the tiny titular creatures, no one has read the terms and conditions before hitting the “Agree” button.

Indeed, it is not uncommon for individuals and businesses to trade in the online market without reading any applicable terms and conditions of trade.

Conversely, many of our entrepreneurial clients have successfully broadened their client-base through use of website and online markets downloadable through an App without giving their users access to any terms and conditions for those Apps.

This poses difficulties when business owners and/or users want to enforce a right in a transaction brought about through the download of an App and the use of the services contained within the App.

In this article we highlight some of terms that users should be aware of when downloading any App on a device for use, even if it is just a game. This is because you may actually be agreeing to conditions and releasing others from obligations without being fully aware of it.

What you may be agreeing to

If the terms of service for Pokemon GO is any indication, in downloading the game through the App users have agreed to:

• the full terms of service just by continued use of the services, which includes a unilateral right by Niantic, Inc the game provider to change or discontinue all or any part of the terms of service at any time without notice;
• be bound by the law of the State of California;
• give Pokemon GO access to other pre-existing accounts which is a pre-requisite for creating of an account with them, such as Facebook or pre-existing Google accounts. Pokemon Go then extracts certain personal information on the user from the accounts (to the extent that the privacy settings allow) to create an account for the game.This alone should alert users to what device they download the Apps to because if the privacy settings are not turned on, users may unknowingly be granting access to information contained in pre-existing business accounts.
  
• settle of any dispute with Niantic, Inc by binding individual arbitration with two exceptions and only have the right to litigate any other dispute after an Arbitration Opt-Out Notice is served on Niantic, Inc in San Francisco or by email within 30 days of accepting the terms of service.In effect, the binding arbitration is applicable unless within a month of downloading the App and using it, the user provides Ninatic, Inc with the Arbitration Opt-Out Notice. This is a clever way for the provider to diffuse arguments that the user was not given the chance to opt-out of a specified dispute resolution method, even if the window for opting-out is short and it is unreasonable that any dispute will have arisen in that time.
• the administration of the American Arbitration Association for arbitration according to the Commercial Arbitration Rules.

What you agree to release the provider from

The terms of use for Pokemon GO are not dissimilar to other terms and conditions of Apps providers in the releases sought. In the instance of Pokemon GO, the releases include:

• full legal release from all legal damages flowing from any losses including such things as, loss of data, or goodwill, computer damage, or the cost of substituted service.The breadth of this limitation to liability against Niantic, Inc will make it very difficult for any user to accuse them of breach of privacy for the (mis)use of personal information obtained through the creation of an account.
• the waiver of user rights to a trial by jury in the event of a dispute, and participation as plaintiff or member in any class action.This means if a user have a grievance, they must proceed to litigate on their own as it is not an option for them to pool their funds to issue a claim as a class action against Niantic, Inc. It also means that the adjudication of dispute will not be trialled by the community through a selected jury, but by a single arbitrator.

None of the terms of service for Pokemon GO are uncommon despite how broad ranging the releases are and how absolute the rights of parties are, particularly in favour of the provider. Most terms of service can be self-serving in this way.

The main matter for small time users is the issues surrounding collection of personal information and use of that information. For the sake of one free download (for a game), we completely appreciate how the terms of service bear little relevance to an individual.

Caution however, should be exercised by larger users of downloaded Apps. The terms of service should be read especially if the Apps has been downloaded with the intent of supporting or marketing a business. Users should also be cognisant of what device the App is being downloaded onto and the level of privacy in the settings.

The method by which terms and conditions are accepted through the download of an App is different to the physical signing a contract. As a business owner, if the use of Apps and transactions through websites form an important part of the client-base to your business, it is important your terms and conditions are customised for this kind of transaction and that it is express in the terms that it is binding on the user.

If you need assistance with interpreting any terms and conditions that may affect your business, or if you want terms and conditions drafted for your business please contact Peter North (Senior Associate, Business Law Practice Group) on 03 9629 9629  for assistance on all business law related matters.