The Yodle User Agreement, and Why You Should Run
I had a client who asked me to review the Terms of Service for a prominent online marketing firm (Yodle). I had to strongly advise the client to avoid this company. Forgetting about any legal issues, a few quick Google searches let me know that people are for the most part, furious with this company in terms of results and fees. The frustration dates back to at least 2012, and after reviewing Yelp comments, doesn’t seem to be getting any better. If all the recent feedback would have been glowing, I may have been able to give a half-hearted blessing, something like, “I don’t like what the contracts say, but at the end of the day it’s about who is enforcing them, and these people seem to be fairly reputable.” After all, contracts are put in place to protect a company in a worst case scenario situation, and you can’t really blame a company for trying to protect its interests.
Below are three screenshots I got from Yelp.
In the Yodle contracts (it’s actually presented in several parts that function together) that were presented to my client, I found a number of provisions objectionable, or at least worth considering. Here is a non-inclusive list of a few provisions I found worth note:
- Charges Fluctuate
- Yodle Doesn’t Guarantee its Performance
- No Control Over Online Presence
- Lack of In-house Control
- Third-Party Reliance
- You Effectively Have no Recourse
- Open-ended Permissions
- Yodle Leaves You With Unlimited Liability to Governmental Sanctions
Your Rights and Obligations Can Change Without Notice
Note: all text in block quotes is language taken directly from the "Agreement," as distinguished from "contract," means the bar... I was asked to review. All text highlighted in the quotes was highlighted by me to emphasize specific "Contract," as distinguished from "agreement," means the tot... language. I have not made any effort to obtain or maintain this article/blog posting, and the Yodle Terms of Service or User Agreements may have changed after the date that this blog was published.
Yodle may use up to 110% of the Monthly Yodle Ads Advertising Budget. Any balance of the Monthly Yodle Ads Advertising Budget at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle, and any negative balance of the Monthly Yodle Ads Advertising Budget at the end of the last month of the Yodle Ads Service is due at that time.
On its face, this seems like a fairly reasonable clause but may cause issues with small companies who need to predictably anticipate expenses.
Yodle Doesn’t Guarantee it’s Performance
Customer acknowledges that search results and search engine rankings are influenced by several factors, and Yodle does not guarantee any particular placement, position or rank in any search results.
Many Companies make it seem like they have some sort of special power or ability to “guarantee” results. However, they probably disclaim any implied guarantee in their user agreements. This company is no different, they probably make a lot of great claims in their sales pitches, but at the end of the day, you may not get anything, or worse, you may be left worse off with no recourse. With many professional services, it is hard to quantify results and that’s why there are no guarantees as to the outcome. But it is easy to quantify effort, and that’s why every business should be able to offer a guaranty of some sort. For instance, at the Coonley Law Firm, we can’t guarantee any outcome, but we can guarantee satisfaction.
No Control Over Online Presence
We will place your information on a website owned and operated by us (the “adverSite”) so that it appears that the adverSite is owned and operated by you. The adverSite will be either a template website (the Welcome Email will include the detailed feature list) or, in limited circumstances, a Mirror Site. Yodle hosts and maintains each adverSite and registers and administers the adverSite URL. If Customer desires to use a Vanity Domain, Customer agrees to pay an additional Vanity Domain fee of $199. If Customer has purchased the Marketing Essentials Service or Lighthouse Service, a fee for the Yodle Web Service is included in the monthly recurring fee for such Service. If Customer terminates the applicable Service that includes the Yodle Web Service fee and continues to maintain any other Service, Customer acknowledges that it will be charged, and hereby agrees to pay, the monthly recurring fee for the Yodle Web Service at the then-prevailing rate.
You won’t have the ability to hire a web designer or even make fixes on your own. Instead, you will be relegated to a “canned” solution. There is some credible evidence to suggest that “mirrored sites” are highly frowned upon by Google. Why should you have to pay $199 to use a domain that you likely purchased for somewhere between $10-30 dollars? If you want to “downgrade” your commitment to Yodle, you will have to pay an undisclosed rate to maintain your website.
Lack of in-house control
You acknowledge that the Services may change from time to time and that Yodle relies on various programs, products and services provided by Licensors to provide the Services. Because these Licensors may modify, suspend or cancel their programs, products and services at any time and for other reasons, the Services offered by us may be affected, including the termination of specific features. No modification, suspension or cancellation by any third party that causes us to change or terminate specific features of the Services shall release you from your obligation to pay for the Services or otherwise affect your obligations under this Agreement. To the extent Yodle provides you with any Services or features of Services at no charge on a trial basis or otherwise, Yodle reserves the right to discontinue those Services or features at any time in Yodle’s sole discretion.
Yodle is selling you on its ability to run your online presence, yet they are turning around and outsourcing it to Licensors. You are essentially paying Yodle to be the intermediary or broker of a third party’s work or work product – which is fine, many companies utilize subcontractors. The issue is if Yodle is no longer able to provide you the services agreed to, you still must fulfill all of your obligations to them. An analogous example would be if you paid for an item on Amazon, and then Amazon told you that the supplier doesn’t have the product, but you’re not going to be refunded any "Money" means a medium of exchange currently authorized or a.... In my opinion, this is an underhanded "Business" means a trade, occupation, profession, or other c... practice.
Third Party Reliance
In addition, certain Services may contain features designed to interoperate with Third Party Products (e.g., Practice Management Software, Quickbooks, Gmail contacts). To access such features, Customer may be required to obtain access to such Third Party Product Providers. If the Third Party Product Provider ceases to make the Third Party Products available for interoperation with the corresponding features of the Services on reasonable terms, Yodle may cease providing such features to Customer without entitling the Customer to any refund, credit, or other compensation.
If you utilize a company for its ability to operate with a third-party supplier, and the third party no longer offers the ability to integrate, you must still fulfill your contractual duties. This isn’t entirely unreasonable, after all, Yodle has no control over these third parties. But on the other hand, if you pay for a product or service because certain features are available, and those features are no longer available, you should be able to terminate the contract without penalty. Particularly if the company uses its ability to integrate as part of its sales process.
You Effectively Have No Recourse
If Yodle suspends any Service due to non-payment by Customer, Customer agrees that it owes all amounts that would be due for the Commitment Period of the suspended Service as if such Service had not been suspended. If Yodle does not receive timely payment of any amount due under this Agreement, Customer agrees to pay all amounts due pursuant to this Agreement upon demand and will reimburse Yodle for all charges and fees Yodle incurs in collecting payment.
Imagine an easily anticipated scenario: a customer signs up for Yodle, there is a dispute as to something that Yodle is doing, and the customer stops paying for the service until the dispute is settled. Yodle then charges the customer hundreds of dollars prior to re-engagement (see below).
Customer hereby grants Yodle and its designees a non-exclusive, irrevocable (during the Term), worldwide, transferable, sublicensable right and license, in connection with the Services, to (a) use, reproduce, mirror, distribute, modify, perform and display the Ads and Customer Content (or any portions thereof), (b) use Customer’s name and logo, (c) distribute the Ads and Customer Content to the Yodle Distribution Network, (d) list, represent, register or establish accounts or keywords and (e) manage directory (including Google+ Local) listings. As between Yodle and Customer, (i) Customer owns the Customer Content and (ii) Yodle owns any Content (other than the Customer Content), templates, data or technology, including all related intellectual property rights, in and to the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services. We reserve the sole right and ownership to the adverSite (other than your Customer Content), the URL at which the adverSite may be found (unless you have purchased a Vanity Domain), and the telephone numbers listed on the adverSite. If Customer has purchased a Vanity Domain or pays a fee of $199 and desires to continue to use the adverSite after termination of this Agreement and has paid all amounts due to Yodle, then Yodle will authorize the transfer of the adverSite URL to Customer within five (5) business days of Customer’s request (which request must be made within 30 days of termination of this Agreement) and hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to continue to use the adverSite as its website. Notwithstanding the foregoing, (a) Customer may not (i) use any content of the adverSite other than Customer Content for any purpose, other than on the adverSite, or (ii) modify any of the content of the adverSite, other than Customer Content, (b) Yodle may remove third party content prior to transfer and (c) Customer will remove any third party content promptly after Yodle’s request. Customer is responsible for maintaining the confidentiality of the passwords to its Yodle account, and Customer may not grant access to its Yodle account or share any data generated from the Services with any third party without Yodle’s prior "Writing" or "written" means an expression of words, letters... consent. Yodle may place copyright and/or proprietary notices, including hypertext links, within our website, system and software applications. Customer may not alter or remove such notices without Yodle’s written permission.
According to this provision, Yodle has the right to do the following:
- Sign your company up for a bunch of sites, whether you want to be or not, including directories.
- Retain ownership of the url to your business’s homepage, even if you originally purchased it. If Yodle claims you owe them money, likely because you stopped paying them due to a dispute, you cannot use your business url until you pay them. They essentially own your online presence unless you give in to their demands.
- You cannot change the look or feel of your own site. Yodle can make additions or subtractions to your site at their discretion.
Yodle Leaves you With Unlimited Liability to Governmental Sanctions
Customer acknowledges that Yodle has waived all or a portion of the setup fee of $497 (for the Marketing Essentials Service) or $997 (for the Yodle Ads Service) in consideration for Customer’s agreement to the initial Commitment Period of such Service (the “Setup Fee”). If such Service is terminated prior to the end of the applicable initial Commitment Period, then any Customer that has subscribed to such Service after May 1, 2015 hereby authorizes Yodle to charge the Payment Method upon termination of such Service for any portion of the Setup Fee that was waived and (b) Yodle may refund prepaid amounts for any post-cancellation monthly billing cycles.
Notwithstanding the foregoing, Yodle may terminate this Agreement or cancel any of the Services in its discretion at any time, with a refund only of any prepaid but unused fees. FOLLOWING TERMINATION OF THIS AGREEMENT, YOUR INFORMATION WILL BE REMOVED FROM THE ADVERSITE AND MAY BE REPLACED WITH THE INFORMATION OF ANOTHER CUSTOMER. IN ADDITION, WE WILL SUSPEND ANY BUSINESS LISTINGS/CITATIONS THAT WE HAVE CLAIMED ON YOUR BEHALF AND YOU WILL NEED TO RECLAIM THEM.
THE ULTIMATE LEGAL OR REGULATORY COMPLIANCE OBLIGATION IN ANY MANNER WHATSOEVER FROM CUSTOMER TO YODLE, IT BEING MUTUALLY INTENDED THAT SUCH OBLIGATION IS AND SHALL REMAIN SOLELY WITH CUSTOMER.
YODLE WILL NOT BE LIABLE TO CUSTOMER (NOR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM CUSTOMER’S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING COST OF COVER, LOST REVENUES, GOODWILL OR PROFITS OR LOSS OF BUSINESS OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER YODLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF.
So to be clear, here are Yodle’s business policies as inferred by the contract language outlined above:
- If you cancel, Yodle will automatically charge you, and if you don’t pay, you don’t get to have YOUR website back, even if it’s a “vanity” site that contains your business’s name, and that you paid for.
- The place where your costumes are used to seeing your business’s information (your URL), could be replaced with that of a different business (artificially inflating the traffic for the new business by the way). This is the case regardless of the domain name used.
- All the work that you paid for, ie, creating Google listing, is going to be proactively taken down and/or undone – regardless of the fact it’s going to cost Yodle more money to do so than it would to simply turn the information over.
- Even though Yodle is going to be acting as an agent on your behalf, for the purpose of growing your business, it may take illegal actions that you never authorized, and you are responsible for the consequences of these unilateral, illegal acts.
- Even if you explicitly told Yodle that something was illegal, or that some proposed act could cause a lot of damage to your business, they can do it anyway and not be responsible for any outcome.
These provisions seem like they were constructed so as to intimidate you into continuing to utilize their services because of the sheer amount of work that would be required for you to regain your online presence, and because of the costs that can be unilaterally imposed. The last provision that I explained in the fifth bullet point seems asinine to me. Can you imagine if you told your handyman not to drill into a certain wall because of water pipes and electrical wire, then they did anyway – and stuck you with cleaning up the mess and paying for additional repairs?
Your Rights and Obligations Can Change Without Notice
This Agreement (a) is governed by the laws of the State of New York, excluding its conflict of laws principles, (b) may be amended only in a "Writing" includes printing, typewriting, or any other inten... "Signed" includes using any symbol executed or adopted with ... by both parties or by Yodle e-mailing revised terms and conditions to Customer or posting revised terms and conditions in Customer’s Yodle account.
I’m not even sure how this is legal, but I wouldn’t want to be in the position to try to fight it. First, there are general principals of contract law that don’t vanish simply because a business is based online, some of these concepts are “acceptance,” “meeting of the minds,” and “manifestation of assent.” If Yodle can change the terms at any time, then there must be an additional consideration to modify the terms. Additionally, if Yodle can change the terms at any time, then they can create and/or manipulate arbitration clauses unilaterally (as well as other material provision) – leading to an invalid contract as a result of the illusory term. These clauses have been the subject of a fair amount of litigation, but at the end of the day, for a small business "Owner," for purposes of Title 1, 7, or 8, means: (A) with ..., you probably won’t have the time or the resources to take the terms of a contract all the way to the supreme court.
Lesson in Contract Law
If you are uncomfortable reading or fully understanding contracts, you should consult a contract attorney prior to entering into any major agreement. "Consumer" means an individual who enters into a transaction... protection laws often don’t protect business owners – even small business owners, and you should consider hiring an attorney an investment or a form of insurance, rather an unnecessary expenditure. Many law firms will send you a memo giving you their analysis of the contract, which is helpful. At the Coonley Law Firm, we return contracts with specific provisions highlighted and our notes added to the contract. This allows the clients to see what language, exactly, is cause for concern allowing the client to learn about specific things to be cautious of in the future.