GPS tracker provider Strava has emailed all its users changing its Terms and Conditions to require them to undertake not to sue the company in connection with claims arising as a result of their "athletic activities."
Yesterday, we reported that the San Francisco-based company is being sued by the family of William ‘Kim’ Flint from nearby Oakland who was killed while trying to regain his ‘record’ logged on the site on a downhill stretch of road.
According to Strava the fact that the changes to its Terms and Conditions, including the new undertaking not to sue, were made public at around the same time as the Flint lawsuit was purely coincidental. In a statement to road.cc exlaining the reasoning behind the changes to its Terms and Condistions Strava said:
"Prior to the June 18, 2012 complaint filed against us, we updated our terms and conditions to reflect our expanded product offering and services. The changes to our terms were posted live on Strava.com on June 13 before we had any information about the lawsuit. Our iPhone and Android apps were updated shortly after that. That is why public notification occurred on June 19, after the lawsuit was filed."
Previously, Strava’s terms and conditions stated (in capitals):
“You expressly agree that your athletic activities, which generate the content you post or seek to post on the site (included but not limited to cycling) carry certain inherent risks of bodily injury or death and that you voluntarily assume all known and unknown risks associated with these activities even if caused in whole or in part by the action, inaction or negligence of Strava. You agree to release Strava from any and all liability connected with your athletic activities.”
The wording in the new terms and conditions now states (again in capitals):
"You expressly agree that your athletic activities, which generate the content you post or seek to post on the site (including but not limited to cycling) carry certain inherent and significant risks of property damage, bodily injury or death and that you voluntarily assume all known and unknown risks associated with these activities even if caused in whole or part by the action, inaction or negligence of Strava or by the action, inaction or negligence of others. You also expressly agree that Strava does not assume responsibility for the inspection, supervision, preparation, or conduct of any race, contest, group ride or event that utilizes Strava’s site."
It goes on to say:
“You expressly agree to release Strava, its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors (the “released parties”) from any and all liability connected with your athletic activities, and promise not to sue the released parties for any claims, actions, injuries, damages, or losses associated with your athletic activities.”
Of course, there can often be differences between the terms a company seeks to impose by way of contract, and what it’s actually allowed to do by law.
In English law, for example, in a contract with a consumer, a business cannot seek to exclude liability for death of injury.
Strava’s terms and conditions expressly state that the user consents and submits “to the exclusive jurisdiction and venue in the state and federal courts located in Santa Clara County, California for any legal proceedings” in connection with their use of the site.
The case does flag up another issue often overlooked nowadays – whereas before the digital age, private individuals were seldom called upon to sign a contract, doing so only in matters related mainly to housing, finance and insurance and their employment, nowadays they are doing so every time they check a box saying that they ‘agree to the terms and conditions’ of a piece of software.
We’d hazard a guess that while most people might read a contract letter from a new employer closely, they won’t do the same when it comes to an app they’ve just downloaded to their mobile phone.
Another aspect of the online world of course is that nowadays we regularly buy goods and services from overseas in a way that simply would not have been possible a few years ago; while in the case of Mr Flint it is questionable whether the courts will find that Strava was responsible for his death, there could be other circumstances where an overseas retailer or manufacturer, for example, could find that a contractual provision seeking to exclude its potential liability for death or injury could find that thrown out by an English court.
Born in Scotland, Simon moved to London aged seven and now lives in the Oxfordshire Cotswolds with his miniature schnauzer, Elodie. He fell in love with cycling one Saturday morning in 1994 while living in Italy when Milan-San Remo went past his front door. A daily cycle commuter in London back before riding to work started to boom, he's been news editor at road.cc since 2009. Handily for work, he speaks French and Italian. He doesn't get to ride his Colnago as often as he'd like, and freely admits he's much more adept at cooking than fettling with bikes.