4 ms·

Go and ask the nearest 10 local-business restaurant owners what the sentence: > “may create, maintain and operate a microsite (“MS”) and obtain the URL for suc

Go and ask the nearest 10 local-business restaurant owners what the sentence: > “may create, maintain and operate a microsite (“MS”) and obtain the URL for such MS on restaurant’s behalf.” means. I can guarantee most of them will have no idea what that means. Even if they knew what a "microsite" was, that could mean so many different things anyways. And before you say "then they should have asked a lawyer," 1) yes, but there may not be many lawyers who'd know what that meant either, and 2) there's no way restaurant owners could get that removed from the contract, so they'd basically have to sign anyways or remove a source of revenue. The point being, there's a wide gulf between "it was in the TOS" and "The owners were aware and happy with what was happening"

Traster 7y ago
Here's a crazy idea - they could literally have just e-mailed grubhub asking "Hey, I'm reading through the contract you sent me, could you elaborate on clause X"
- throwaway2048 7y ago
  Do you think that such obtuse terminology was accidental? I promise you it wasn't.
- whatshisface 7y ago
  Would they have responded? I can't think of a single time when I had any chance to negotiate a TOS. Besides, even if they changed the onboarding process into an old-style contract negotiation, constantly having to deal with the devil, weeding out his sly contractual tricks, is a cost that can add up in terms of stress and man-hours. Most people would rather just choose business partners that aren't trying to trick them.
  - deleted 7y ago
    [deleted]
  - Traster 7y ago
    We're not talking about negotiating, not at all. You can absoluutely ask them what they mean by a clause and then chose not to sign. I find it kind of funny that people in this comment thread seem to think that Grubhub is something unique as if Uber hasn't been pushing their drivers into poverty for years now. Yes, the terms of the contract are likely to be onerous, that's kind of what these rent-seeking business models are all about.
JasonFruit 7y ago
If the business owners didn't understand what they were signing — not misunderstood, but simply couldn't figure it out, as seems most likely here — but they signed it anyway instead of figuring it out or asking an expert, I can't see how they have anyone to blame here but themselves. I'm not even being intentionally contrarian, as I sometimes might; I really can't see why GrubHub is being blamed.
- munk-a 7y ago
  The way of the modern world is that contracts are getting so obscure and hard to parse that I imagine we'll see more cases like this - with courts upholding the objections from the smaller parties because writing a contract that is incomprehensible is a form of negotiating in bad faith.
  - JasonFruit 7y ago
    But this contract isn't incomprehensible, any more than a mortgage contract is - it's just a specialized topic. You can't invalidate every contract whose meaning isn't obvious to a layman; that's why expert advisors are happy to work for your money.
isoskeles 7y ago
Ignorance isn't a real excuse here, definitely not enough to make me take sides between two businesses.
- _jal 7y ago
  If you are unable to see a power disparity between a public company and a mom 'n pop restaurant, I don't know how to help. Power disparity is an element of contract review.
- Bluestrike2 7y ago
  It's not about ignorance. Ambiguous contracts are bad--and risky--for both parties, period. Worse, the relevant section from GrubHub's TOS appears to be written in a manner that purposely maximizes that ambiguity[0] to the company's advantage. That's an issue that people can absolutely take issue with. Subsection (a) combines two distinct provisions in a really messy way. First, GrubHub agrees to enable its users to order food from its "ordering system/advertising service" on its website, associated app(s), and any of its affiliated web or mobile properties. Second, you have the separate provision stating that GH "may create, maintain and operate" a "microsite." These are distinct, but combining them helps give the impression that they're related. The agreement doesn't define what a microsite. You could plausibly argue that the restaurant's page on their website qualifies as a microsite. For that matter, it doesn't define what constitutes a URL in this context, and using the term "URL" instead of "domain" seems like a willful effort at obfuscation. "Registering a domain" is a specific act with a common understanding; "obtaining a URL" can mean literally anything, including "registering a domain." They're purposely using a broader term--that they don't define for the contract--in lieu of a more specific one that's also commonly understood. Finally, GrubHub operates the "microsite...on Restaurant's behalf." Could this create an agency relationship between a principal (the restaurant) and its agent (GrubHub)? What authority is conferred and what duties are owed? Or does the relationship something less? If the relationship is terminated, because GrubHub "[obtained] the URL...on Restaurant's behalf," will the domain name that was registered be transferred to the restaurant? Literally none of this is stated. If you read the original article[1] about the practice, there's an added wrinkle. GrubHub gets to charge a higher commission on orders originating from their marketing services. If the order is referred via the restaurant's website, the commission is lower. Put simply, it's to GrubHub's benefit, and the restaurant's detriment, to try and promote the "microsite" over the restaurant's real website in search listings (whether they do or not, I don't know; that hasn't been reported on). They also list phone numbers on the microsites that aren't for the restaurant, but instead, for GrubHub's own services. GrubHub gets its commission, rather than being cut out of the loop. One could mount a defense for that (legally; ethically, there are...some issues with it) when it's done in the GrubHub apps; it's a bit stickier of an issue when it's done on a "microsite" masquerading as the restaurant's site and operated "on its behalf." As a side note, they've been sued for charging restaurants for calls that didn't result in orders, but that's a separate, albeit related, issue. That would appear to go well beyond even the most expansive definition of operating a microsite. Even if you agree in principle to the idea, the poorly worded agreement means that both parties are likely to have very different understandings of what a microsite is and how it will be instituted. 0. https://www.theverge.com/2019/7/2/20680000/grubhub-seamless-fake-restaurant-website-contract-agreement https://www.theverge.com/2019/7/2/20680000/grubhub-seamless-... 1. https://newfoodeconomy.org/grubhub-domain-purchases-thousands-shadow-sites/ https://newfoodeconomy.org/grubhub-domain-purchases-thousand... 2. https://thetakeout.com/grubhub-lawsuit-restaurants-phone-calls-numbers-1834893308 https://thetakeout.com/grubhub-lawsuit-restaurants-phone-cal...
setr 7y ago
Your second point implies that it doesn’t really matter when this function was explained properly.. the outcome would have been the same

Traster 7y ago

Here's a crazy idea - they could literally have just e-mailed grubhub asking "Hey, I'm reading through the contract you sent me, could you elaborate on clause X"

throwaway2048 7y ago
Do you think that such obtuse terminology was accidental? I promise you it wasn't.
whatshisface 7y ago
Would they have responded? I can't think of a single time when I had any chance to negotiate a TOS. Besides, even if they changed the onboarding process into an old-style contract negotiation, constantly having to deal with the devil, weeding out his sly contractual tricks, is a cost that can add up in terms of stress and man-hours. Most people would rather just choose business partners that aren't trying to trick them.
- deleted 7y ago
  [deleted]
- Traster 7y ago
  We're not talking about negotiating, not at all. You can absoluutely ask them what they mean by a clause and then chose not to sign. I find it kind of funny that people in this comment thread seem to think that Grubhub is something unique as if Uber hasn't been pushing their drivers into poverty for years now. Yes, the terms of the contract are likely to be onerous, that's kind of what these rent-seeking business models are all about.

JasonFruit 7y ago

If the business owners didn't understand what they were signing — not misunderstood, but simply couldn't figure it out, as seems most likely here — but they signed it anyway instead of figuring it out or asking an expert, I can't see how they have anyone to blame here but themselves. I'm not even being intentionally contrarian, as I sometimes might; I really can't see why GrubHub is being blamed.

munk-a 7y ago
The way of the modern world is that contracts are getting so obscure and hard to parse that I imagine we'll see more cases like this - with courts upholding the objections from the smaller parties because writing a contract that is incomprehensible is a form of negotiating in bad faith.
- JasonFruit 7y ago
  But this contract isn't incomprehensible, any more than a mortgage contract is - it's just a specialized topic. You can't invalidate every contract whose meaning isn't obvious to a layman; that's why expert advisors are happy to work for your money.

isoskeles 7y ago

Ignorance isn't a real excuse here, definitely not enough to make me take sides between two businesses.

_jal 7y ago
If you are unable to see a power disparity between a public company and a mom 'n pop restaurant, I don't know how to help. Power disparity is an element of contract review.
Bluestrike2 7y ago
It's not about ignorance. Ambiguous contracts are bad--and risky--for both parties, period. Worse, the relevant section from GrubHub's TOS appears to be written in a manner that purposely maximizes that ambiguity[0] to the company's advantage. That's an issue that people can absolutely take issue with. Subsection (a) combines two distinct provisions in a really messy way. First, GrubHub agrees to enable its users to order food from its "ordering system/advertising service" on its website, associated app(s), and any of its affiliated web or mobile properties. Second, you have the separate provision stating that GH "may create, maintain and operate" a "microsite." These are distinct, but combining them helps give the impression that they're related. The agreement doesn't define what a microsite. You could plausibly argue that the restaurant's page on their website qualifies as a microsite. For that matter, it doesn't define what constitutes a URL in this context, and using the term "URL" instead of "domain" seems like a willful effort at obfuscation. "Registering a domain" is a specific act with a common understanding; "obtaining a URL" can mean literally anything, including "registering a domain." They're purposely using a broader term--that they don't define for the contract--in lieu of a more specific one that's also commonly understood. Finally, GrubHub operates the "microsite...on Restaurant's behalf." Could this create an agency relationship between a principal (the restaurant) and its agent (GrubHub)? What authority is conferred and what duties are owed? Or does the relationship something less? If the relationship is terminated, because GrubHub "[obtained] the URL...on Restaurant's behalf," will the domain name that was registered be transferred to the restaurant? Literally none of this is stated. If you read the original article[1] about the practice, there's an added wrinkle. GrubHub gets to charge a higher commission on orders originating from their marketing services. If the order is referred via the restaurant's website, the commission is lower. Put simply, it's to GrubHub's benefit, and the restaurant's detriment, to try and promote the "microsite" over the restaurant's real website in search listings (whether they do or not, I don't know; that hasn't been reported on). They also list phone numbers on the microsites that aren't for the restaurant, but instead, for GrubHub's own services. GrubHub gets its commission, rather than being cut out of the loop. One could mount a defense for that (legally; ethically, there are...some issues with it) when it's done in the GrubHub apps; it's a bit stickier of an issue when it's done on a "microsite" masquerading as the restaurant's site and operated "on its behalf." As a side note, they've been sued for charging restaurants for calls that didn't result in orders, but that's a separate, albeit related, issue. That would appear to go well beyond even the most expansive definition of operating a microsite. Even if you agree in principle to the idea, the poorly worded agreement means that both parties are likely to have very different understandings of what a microsite is and how it will be instituted. 0. https://www.theverge.com/2019/7/2/20680000/grubhub-seamless-fake-restaurant-website-contract-agreement https://www.theverge.com/2019/7/2/20680000/grubhub-seamless-... 1. https://newfoodeconomy.org/grubhub-domain-purchases-thousands-shadow-sites/ https://newfoodeconomy.org/grubhub-domain-purchases-thousand... 2. https://thetakeout.com/grubhub-lawsuit-restaurants-phone-calls-numbers-1834893308 https://thetakeout.com/grubhub-lawsuit-restaurants-phone-cal...

setr 7y ago

Your second point implies that it doesn’t really matter when this function was explained properly.. the outcome would have been the same