GoGet, Uber and AirBnB -Summary of new Service Agreements

Like many summer-scarf wearing, coconut water drinking, cold brew brewing 30-something hipsters, I have heartily embraced the use of services such as GoGet for car hire, Uber for when I am being super lazy or when getting a ride into the city (no public transport seats for this man’s bottom), and AirBnB when I wish to go to Byron Bay or Noosa or wherever the cool kids are hanging out these days.

When I subscribed to these services, I was almost immediately emailed a copy of each of their respective Service Agreements or Terms of Service, and did the thing that I am sure most of us do of ticking the box on the screen that said ‘yep, read and agreed to them’, even though I had absolutely no intention of actually reading those contracts.

However, due to my desire to avoid work give back to the community, I have read and summarised the key terms of each of these, and in particular highlighted what I think are the weirdest or unusual clauses in each – the ones you might actually want to take into account in deciding when and how to use these services

1. GoGet

You can access GoGet’s latest Service agreement here.

I always like trying to work out what firm prepared this, based on the formatting and styling. For GoGet, I think it is Clayton Utz, but prove me wrong people.

Pretty straightforward for the most part. Kicks off with the definitions, then moves into the nitty gritty like don’t crash the car, don’t let drunk people drive (or drive drunk yourself), don’t use it to teach your kid without telling us first, and so on.

I always like clauses like this:

You acknowledge and agree that in becoming a Member and/or accessing the GoGet services, you have read and accepted the terms of this Agreement.

I am no litigator, or even much of a lawyer, but surely that sort of clause can’t be used in court if the person has not actually read the agreement. I mean, what if it said ‘You acknowledge and agree that in becoming a Member you agree to pay GoGet $1,000 just for the privilege of reading this fine document’. That wouldn’t be binding, right?

Moving on.

Your main obligations under a GoGet contract are:

  • pay the required fees;
  • not let any other drivers use the car, unless they are approved by GoGet prior to them driving
  • not go over your booking time, or you’ll pay for it
  • make sure there is at least a quarter tank of fuel in the car when you return it (making it a bit like Russian Roulette as to whether you’ll be the unlucky person who has to fill it up or not)
  • try not to crash or do anything illegal – if you do, you’re responsible
  • Return the vehicle from where you collected it, in the same condition.

Oh, hello there, what’s this:

You acknowledge and agree that GoGet may monitor your usage of its Vehicles via its on-board technology monitoring system. The usage information gathered by GoGet will be stored and used in accordance with GoGet’s Privacy Policy

So you’ll be tracked wherever you go, and they can sell that information so long as their Privacy Policy allows them to.

Scary. But not unexpected. Let me know if you use a GoGet car to go somewhere like Ikea, and suddenly your Facebook page is full of Ikea advertisements.

2. Uber

What’s with the re-branding, Uber? It’s all a bit… well… ineffectual if you ask me. I quite liked the previous design and logo.

Let’s move on, though. Uber’s latest Service Agreement is available here.

It is hard to tell which firm might have prepared these. I suspect they were done in-house as they use lots of “…” around defined terms, which I think all law firms have now done away with and replaced with the loud, proud bold for defined words.

Uber comes in swinging in the very first paragraph, with the following:

Uber may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

Summary: Don’t mess with Uber or else.

Now, this is interesting. Turns out Uber itself is not about ordering cars to drive you around. No, no. Instead, they make it very clear that they are a:

…technology platform that enables users of Uber’s mobile applications or websites provided as part of the Services (each, an “Application”) to arrange and schedule transportation and/or logistics services with independent third party providers of such services

And just in case that was not clear enough THEY PUT THE NEXT BIT IN CAPS:

YOU ACKNOWLEDGE THAT UBER DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER AND THAT ALL SUCH TRANSPORTATION OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY UBER OR ANY OF ITS AFFILIATES.

What does that mean for you? Once you order the car, that’s Uber out. The rest of the relationship is between you and the driver, so if something happens to you, you’re suing the driver not Uber – at least, that’s what they are trying to do in their Terms of Service.

Again, I’m not a litigator. Do the use of capitals make things easier for judges to agree with? Uber is betting big on this being the case.

One final weird thing. Your use of Uber is governed by the laws of The Netherlands.

Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of The Netherlands, excluding its rules on conflicts of laws.

Conclusion? A US lawyer drafted these. Only they would have such reckless use of capital letters and governing law.

3. AirBnB

Ah, AirBnB. So controversial, so useful. Thank you for allowing us to stay in a place where maybe 10 to 15 people a year sit on the toilet, rather than several hundred per toilet per room, which happens at your fancy pants hotels.

Terms of Service for AirBnB can be accessed here.

Crap, these are long. And the text gets smaller the further you go. They are really discouraging people from reading this. However, I am going to soldier on, bravely. It’s times like this I wish I drank alcohol.

Don’t drink alcohol to excess. It is not cool. Public service message over, for now.

AirBnB is adopting the Uber approach. They don’t provide accommodation or rental services. They provide an ‘…online platform that connects hosts who have accommodations to rent with guests seeking to rent such accommodations’.

See, phrases like the above is why no-one likes lawyers. Why not just say ‘We make an app, that lets you rent home from people who aren’t home, when you want to use their home.’. How hard is it to say that?! Admittedly, it uses ‘home’ too much, but the point still stands.

What is this? They used the same lawyers as Uber surely, as the next paragraph says:

THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH HOSTS MAY CREATE LISTINGS FOR ACCOMMODATIONS AND GUESTS MAY LEARN ABOUT AND BOOK ACCOMMODATIONS DIRECTLY WITH THE HOSTS. YOU UNDERSTAND AND AGREE THAT AIRBNB IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN HOSTS AND GUESTS, NOR IS AIRBNB A REAL ESTATE BROKER, AGENT OR INSURER. AIRBNB HAS NO CONTROL OVER THE CONDUCT OF HOSTS, GUESTS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY ACCOMMODATIONS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.

TOO MANY CAPITALS. I am sorry, gentle reader, it hurts me just as much as it hurts you.

Blah blah blah we can change fees and stuff… Blah blah you can’t sue us ever… Blah blah … wait, what?! You mean I can’t use AirBnB for purposes that are ‘…defamatory, obscene, pornographic, vulgar or offensive’.

That’s it, never using AirBnB ever again. Forget my petition against face-to-face charity collections, overruling this oppressive AirBnB condition that prevents me from using AirBnB for pornographic purposes (why not just say ‘naughty stuff’??) is my new 2016 mission.

Any other terms and conditions you want me to take a look at?

 

 

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Inside law offices – Mills Oakley

Mills Oakley are one of the faster growing smaller mid-tier firms, which I think may be just about the most confusing and grammatically incorrect sentence I have written in some time.

I got the chance to go pay them a visit earlier this week and took a few photos while I was there, because I am weird.

They are located in the same building as Telstra’s Sydney head office, which is now just about what used to be the old Darryl Lea’s building on the corner of King Street and George Street in the Sydney CBD. Yes, right where all the light rail construction work is going on.

As I am highly covert, and easily intimidated by the large security desk at the main entrance to the building, I took the side entry off King Street.

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It has these revolving doors, and as I was walking into my little section of the door, not one but TWO guys got in the same section as me. I just don’t understand this sort of behaviour. That was MY section, I got it and it was MINE. It is not like it was the last section of the day either. The door would have kept on revolving, and they could have each had their own little section if they had just waited an extra 5 seconds. Apparently they are too busy and important for that, so instead I got the pleasure of being pressed up against the front of the glass of this door while two portly gentlemen leered over me from behind.

Please, dear reader, respect each person’s right to their own space in a revolving door entryway and don’t be like the two fools that I encountered on that fateful day.

This is a photo I took while silently raging about the gentlemen behind me. I hope you can feel the anger in every pixel.

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Once inside though, my mood improved, as they have lovely artworks along the walls that go into the lift area. The lifts themselves are controlled by snazzy touchscreen panels, however confusingly the panels are nowhere near the lifts, meaning that you have to push the button for the floor you would like, then run around trying to find where the relevant lift is. I had to try 3 times, although I am sure most of you are not as hopeless as I am with directions and will get it first or second time.

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In the lifts now. Nothing much to report here, other than this is a slightly meta shot of the lift as reflected in the mirrors in the lift. Yes, I accidentally took this photograph and did not have a better one to use. Sorry.

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Action time. Here is the lobby of Mills Oakley. Pretty nice, in a Spartan, monochrome kind of way. Note the black leather couches and beware – they make a distinct farting noise when you sit on them too quickly. I am sure this is to put opposing lawyers on the defensive immediately upon their arrival at the offices of Mills Oakley. Well played, sirs.

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The reception staff were truly lovely. They were suitably wary of a man purporting to be a lawyer but wearing jeans and a tshirt (and sweating more than he should be) arriving to collect some documents. But once we established some rapport, we got along swimmingly. Note this is not me in the picture. My posture is nowhere near that good, nor my hair so long and shiny.

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My journey done, it is time for me to depart. Thank you Mills Oakey, I give your offices 3.5 out of 5. A fine effort.

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The one thing I believe law firms need to improve. Now.

A few weeks ago, some very kind people who have moved from a law firm to an in-house role shared their thoughts on the differences in the way that a law firm manages their staff, versus the way a company manages their staff.

The differences that came through in these responses were very clear, and the message consistent despite the different industries that these people had moved into after their law firm life.

The overwhelming response was that working in-house was an improvement for the respondents. Many also commented that they took comfort from the more formal management and career structure that applied to them in their in-house role. They also found it refreshing that there were clearer communication lines, even if the cost of that was more meetings and management presentations.

Law firms could learn a lot from these responses. Importantly, law firms need to start focussing more on their own lines of internal communications. In my experience at several different firms, of different sizes and structures, the biggest consistent issue that I have seen, and about which my colleagues have also expressed frustration, is the lack of clear communications between the various management levels at law firms.

Put simply, I believe that law firms do not communicate in any meaningful way with their staff. This lack of communication has serious consequences for the firm and the individuals that work for it. I also believe that failing to communicate with staff is the biggest cause of conflict, inefficiencies and unrealistic expectations in law firms, and unhappiness and dissatisfaction in lawyers and support staff at law firms.

What law firms fail to recognise is that with the ability to recruit, and profit from, the very best and brightest, comes a responsibility and a moral imperative to ensure that lawyers and support staff at law firms are cared for, listened to, and given the opportunity to discuss their concerns and ideas with the most senior members of the firm.

Instead, what we get at law firms are people working their absolute hearts out with no clear idea of how they are performing against expectations, and management decisions made by a small number of managers or partners at a firm, in isolation from the wider staff group. If management decisions are communicated to staff, these are usually done at at quarterly staff meetings, perhaps, or in all-staff emails, and this is always done after the decision has been made. Under this model, the ability for staff to contribute to the decision-making process, or provide their input, is impossible.

Law firms need to find a way to better engage with their unique, amazing employees. Equally, law firm employees need to start communicating their concerns and ideas to their managers, supervising partners and to the most senior people in the law firm structure. This can only happen if law firms make a real effort to improve their internal communication, and create an environment where discussion and debate at all levels is encouraged.

I cannot offer any meaningful solutions on how law firms can better engage with their staff, as each law firm and the staff at each law firm is very different. Again, there is no simple solution. But identifying that there is a problem with lines of communication in law firms, and truly and properly resolving to work together to do something about it, would be a great first step, and not one law firm I know has done this in a truly unified, committed and honest way.

So what can we all do about this issue now?

To all lawyers and support staff at law firms: Tell the most senior people in your organisation what they’re doing wrong. Tell them you want to work with them to fix these problems, and offer real solutions that go beyond simply asking for more pay or a bigger office (even though we all know you deserve it).

Law firm managers and partners: Get rid of the idea of ‘us’ and ‘them’. Step down into the trenches with the junior lawyers and ask them if the way the firm is set up is letting them be the best lawyer they can be. Ask the support staff how they too can be supported, and what are the barriers preventing them from better helping or working with their teams.

To all at law firms: Work together to improve the way the firm communicates, even by a small amount, and I know that there will be financial, emotional and physical benefits for everyone.

If we do not take a first step, small though it might be, to improve the lines of communication and open discussion in law firms, and take it soon, then I fear that more and more lawyers will continue to be unhappy and unmotivated, that they will bounce between law firms (yep, that’s me) in the hope of finding something better, or that they will leave the profession entirely.

We can start to fix this issue now. Law firms just need to start talking more about talking more.

 

Video games and the law

Part 2 of my super exciting series on video games that feature law, or lawyers, or a courtroom or anything at all legal related depending on how desperate I am for source material at the time of writing.

Not today, though. Today we have a real law game. It even has ‘Attorney-at-Law’ in the title, so you know it is going to be a straight-up, unobjectionable, full bench approving legal computer game.

This one is particularly bad though. Just to set expectations, as I find I have to do all too often in my life. ‘Set the bar low, boy’, my father would tell me, ‘and even then, you might be setting it a little too high for yourself. Why can’t you be tall, dark and handsome like your brother here?’. Ahem. Moving on.

Want to play a game where the main character is voiced by Gary Cole, who is that guy from shows no-one in Australia watches like Veep? Apparently he was also in Suits, but I have never seen it so can neither confirm nor deny this.

How could you not want to play a game where this dude tells you what is the what.

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Want to play a game based on a cartoon that 6, maybe 7 people have watched?

Want to play a game on a system that had a brief shining moment of glory, when we all thought that Wii Tennis was the greatest thing ever until we realised it was pretty lame, and then no-one bought the system any more?

Well, your prayers have been answered, as I gave ‘Harvey Birdman, Attorney-at-Law’ a quick (very quick) play on the weekend, and boy oh boy was it amazing.

Quick slightly related side-bar: This was not an easy game to get hold of and review. Not looking for praise, just saying this is probably one of those games that people are going to sell for millions of dollars in 20 years’ time.

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By Source, Fair use, https://en.wikipedia.org/w/index.php?curid=15208993

 

It is almost identical (some would say too identical, but they would be IP lawyers) to Phoenix Wright, which I wrote about last time. Except this one has STREETFIGHTER CHARACTERS.

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I am not sure what to say about this game really. I played it through a… errr… unofficially supported means and the controls were crazy as hell. The videos were pretty good though, in a ‘my eyes they burn’ kind of way. Check it out here, at home, alone, with the lights off:

My rating? 2/5, and that’s only because I am being generous.

 

Law firm bathroom tips

This might just be me, but of the 7 or 8 law firms that I have worked at over my years as a lawyer, not one of them had what I would call a respectable level of bathroom cleanliness.

Maybe it is the stress of being lawyers that contributes to this. Maybe it is that all the reading and book learning, which means that lawyers have bad eyesight or reduced targeting skills.

Regardless of the reasons, it is something that has been perhaps the most consistent issue across all the firms I have worked at. Seriously, is it that hard to keep the bathrooms in a neat and tidy condition? Apparently it is. Have some respect people.

Therefore, I would like to take this Friday afternoon to share some techniques I have implemented to minimise the disgust and unpleasantness of the above issue.

Firstly, learn the cleaning schedules for your favourite bathroom. Many bathrooms in buildings will have a cleaning roster somewhere on the door or wall, where each cleaner marks that they have cleaned the bathrooms and the time at which they did it. Check this out, and work out the average time of day when the bathrooms are cleaned. Then, if you can, get in there 5 minutes after the cleaners have finished, as trust me, that room won’t be any cleaner at any other time of the day.

Secondly, and this is a bit more of a risky manoeuvre, but if you have a preferred stall (I know you all do), then put the seat for the toilet in that stall down at the start of the day, or just after the cleaners have left. Whenever it is cleanest. I know gentlemen, crazy talk! Stick with me on this one.

Most people, when faced with a known known (that is, a toilet with an open seat where there are no hidden surprises) will take that known option rather than risk a nasty surprise by lifting a toilet seat and seeing something in there smiling back at them. So if you close the lid, you’re utilising people’s natural fear of the unknown and hence will minimise the number of people that will use that toilet throughout the course of the day. Less users means (hopefully) a cleaner standard on average for your favourite thinking spot.

Of course, there is always the potential that you yourself will suffer a shock of exposing something that should remain hidden when you lift the seat, but I feel this is the exception to the rule and worth the risk.

Finally, and this is a mean trick and I would never personally implement it, but if you do have a favourite toilet and want to keep it all to yourself, print an ‘Out of Order’ sign out and stick it on the stall door or above the toilet bowl when it is clean. No-one wants to use a broken toilet so it will be yours for the whole day!

Just don’t use the disabled bathroom if you’re not disabled. There is no excuse for that. Ever.

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Draft wording for the chugging petition – suggested changes welcome!

Hi all,

After careful consideration and copying and pasting, I have come up with a first draft of the wording for a petition to the New South Wales Parliament requesting a review into face-to-face or ‘chugging’ laws in our State.

There is a formal style that I have to follow for the introduction section, hence it is a bit bombastic (that word itself is bombastic too). But the rest is for us to consider, review, debate and settle.

You will know by now that I am not a particularly good writer, so if anyone has any suggested changes or comments, please hit me with them or email me at hello@auslawblog.com or write comments below.

Proposed wording is as follows:

The petition of concerned citizens of New South Wales

Brings to the attention of the House the inadequate protection of vulnerable persons in our State as a consequence of the lack of legal regulation of ‘face-to-face’ charity funding solicitation techniques.

Such citizens express their deep concerns that the absence of substantive regulation or rules to govern the standards of behaviour, collection methods and safety standards that apply to the techniques employed by face-to-face charity donation solicitors results in the intimidation of those the target of such techniques, such that vulnerable members of our community are frequently coerced into agreeing to ongoing financial commitments without being provided with appropriate opportunities to fully understand and comprehend the nature, obligations and terms of the commitment they make to such solicitors, and without any repercussions for the face-to-face solicitors that coerce such vulnerable persons.

The undersigned petitioners request that the Legislative Assembly conduct a review into the current laws and regulations governing face-to-face methods of soliciting charitable donations and present to the House recommendations on amendments to applicable State laws and regulations to improve the protections for all citizens of New South Wales from coercive, inappropriate, dangerous, annoying or disruptive face-to-face charity collection techniques.

THANKS EVERYONE!!

 

‘The Big Game’ today – lots of legal issues to justify you watching during work time

Super Bowl Sunday (our Monday) is upon us once again, and while my beloved Miami Dolphins continue to break my heart, I am sure many of us will be watching Super Bowl 50 today between the two most boring teams of the season – the Carolina Panthers and the Denver Broncos.

Bigger than the game itself is the advertising that goes along with it, and even here in Australia we are not immune, with all the big advertisements to be played during the game available online well ahead of the actual kick-off.

So why don’t more companies jump on the bandwagon and use the Super Bowl to advertise their products? Why don’t we see Sanitarium asking if Peyton Manning from the Denver Broncos has had his Weetbix?

Because it costs a crapload to use the phrase ‘Super Bowl’, and the National Football League in America has gone to understandably huge lengths to protect their interest in the use of this phrase and to maximise the revenue they can generate from it.

They have a trade mark over the phrase ‘Super Bowl’, and various forms of that phrase.

[Quick side note for the real intellectual property nerds out there – it is a trade mark interest not a copyright interest, as we are talking about the use of words to represent a product (men in armour running into each other and Beyonce singing at half-time) rather than a creative work about the event itself. You could copyright a song about the Super Bowl I suppose, but first you’d have to pay the NFL for the trade mark use.]

A 30 second advertisement during the game costs around US$4 million, so it is understandable why the NFL is so keen to protect the use of the ‘Super Bowl’ wording to those that have the cash to use it in their advertisements.

So what can you call the Super Bowl if you don’t want to pay for the use of the words ‘Super Bowl’? Well, some examples companies have used in the past include:

  • The Big Game (someone in an advertising firm actually got paid to come up with that)
  • The Championship Game (bit of a stretch)
  • The Big One (lots of innuendo I could make around this one, but I will restrain myself)
  • Superb Owl (winner, from Stephen Colbert, who else?)

So please help out the NFL by watching today’s game and reporting back to me if you see any evidence of trade mark breaches. You are doing God’s work and your employer should respect this.

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Horray – auslawblog.com is alive

Evening all.

I just spent a fun portion of my Saturday night redirecting DNS addresses, forgetting passwords to various domain hosting sites, and generally being a geek.

Result?

You can now access this little blog through www.auslawblog.com.

Now, settle down everyone. I’m a married man. I know this is super sexy but try and keep your hands to yourself.

There is no place like home, right kitty?

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Right.

Working as a consulting lawyer

I wrote an article on what it is like to work as a legal consultant rather than a lawyer at a traditional firm.

It got published.

You can read about it here.

Note I did not select the pictures. I wear a suit maybe once a week, and that’s just at home when everything else is dirty.

EDIT: It looks silly on Facebook without a photo on the blog. So here is one of me.

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Detention in Nauru held to be valid by HCA

Just a short update, and this is all over the news anyway. Today, the High Court of Australia released its decision on the case of a person known only as M68, who bought a case against the Minister for Border Protection (amongst others), claiming that their detention on the island state of Nauru was unlawful and that the Commonwealth did not have the power to detain M68 under the Migration Act.

The bench for this case consisted of French CJ, Kiefel, Bell, Gageler, Keane, Nettle, and Gordon JJ.

The majority of the High Court of Australia held that the relevant sections of the Migration Act were constitutionally valid and hence the actions of the Department in detaining M68 on Nauru was within the power of the Commonwealth to legislate.

Interestingly, the High Court did hold that M68 had standing to bring the action against the Department, but that the Commonwealth has the powers under the Constitution and the Migration Act to:

 

  • enter into a Memorandum of Understanding with Nauru to establish the terms on which Nauru would hold persons while Australia processes their claim for a visa;
  • give effect to that Memorandum of Understanding, by enacting laws to give effect to that Memorandum of Understanding; and
  • secure, participate in and fund the detention of M68 under those laws.

 

This was not a unanimous decision, but I can’t help but feel that the decision of the majority is sufficiently strong to be a very large block on future challenges to the legality of detention on Nauru under the Migration Act.

I’m not going to offer any political commentary on this decision as I simply don’t have the knowledge – social or legal – to offer up anything meaningful.

Perhaps it is best I just end this post by saying that I am incredibly grateful for my life and the opportunities I have, and that I believe in freedom, tolerance and kindness to all.