Regular EULA + Readable EULA: Seemed like a good idea at the time?

My friend abby directed me to Aviary.com, a site that provides web based tools for creating art.  Its mission is apparently to make it easy to create derivative works from the works of others that have also been created on or submitted to Aviary.com.  The Terms of Use are particularly interesting.

First, in comparison to the Facebook Terms of Use, Aviary.com at least appears to be somewhat more limited in the rights that it claims to submitted works:

You acknowledge and agree that if you use any of the Services to contribute User Content to the Site in such manner as to make it available to all users or to permit third parties to contribute Content through your User account, Aviary will have a non-exclusive, worldwide, royalty-free, transferable, sublicensable (including, without limitation, by means of a Creative Commons License) right, under all of your intellectual property rights, to copy, cache, publish, display, perform, distribute, translate and store such User Content, and to allow third parties to do so in connection with the marketing or promotion of Aviary, the Site or the Services by such third parties.

Aviary.com is still claiming the right to publish, distribute, and sublicense.  However, they don’t reserve the right to create derivative works, so it is arguable that they’re only trying to claim the rights necessary to operate the service.  Further, while they do state that the right is sublicensable, they seem to be limiting third-party licensing to situations promoting Aviary.

More interesting, though, is the fact that the Terms of Use are actually two sets of terms of use: a “Legalese” version and a “Summary” version.  Given Aviary.com’s stated goal of bringing easy reuse and licensing of works to the masses, this seems like a great idea for the users.

However, what if they don’t match?  Which one controls?  Isn’t it defeating the purpose of the legalese contract language if you have summary language printed right next to it that could be used to modify the scope of the legalese?

Examples and analysis after the jump…

Here’s an example:

7. INDEMNITY. You will indemnify and hold Aviary, its directors, officers and employees (the “Aviary Indemnified Parties”), harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, your violation of this Agreement, or the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity.

OK… you’re indemnifying Aviary.com in the case of any suit brought by a third party relating to your use of the site.  Fine.  Doesn’t seem like it’s too overreaching.  I’d have to look it up, but I imagine clauses like this are acceptable.

Here’s the plain English translation:

You agree to hold Aviary and its personnel blameless in any lawsuit.

That is ridiculously broad.  Could a third party use this explanation to broaden the indemnification clause and thereby get it stricken from the contract as unconscionable?  Could be.  A lot more easily than if it wasn’t there, at any rate.

Aviary.com could probably improve their position by placing a clause in the legalese stating that the summary is not meant to aid in interpretation.  They could also add a clause stating that users should not rely on the summary as an analysis of the legalese without consulting their own attorney.

The moral of the story, however, is that having a summary like this seems helpful to your users, but it could come back to bite you if the terms don’t match.

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