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| { | |
| "section_header": "12. Export Restrictions", | |
| "analysis": [ | |
| { | |
| "clause": "This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the export of software from the United States of America, and may be subject to export and import regulations of other countries. You acknowledge and agree not to import, export, re-export, transfer or use, directly or indirectly, the Software without compliance with such laws, regulations, orders or other restrictions.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "50 U.S.C. § 4801 et seq.", | |
| "relevance_of_federal_law": "The Export Control Reform Act (ECRA) of 2018, codified at 50 U.S.C. § 4801 et seq., governs the export, re-export, and transfer of controlled items, including software, from the United States. This law aligns with the clause by imposing legal requirements on the export of software, ensuring compliance with U.S. export control laws.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter58&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [], | |
| "recommendation": [ | |
| { | |
| "change": "Clarify the scope of 'other restrictions' to ensure it encompasses all relevant U.S. export control laws, including the Export Control Reform Act (ECRA) of 2018.", | |
| "explanation": "The clause should explicitly reference the ECRA to ensure that users are aware of the specific legal framework governing export controls. This will enhance compliance and reduce ambiguity." | |
| }, | |
| { | |
| "change": "Include a statement that the EULA is subject to amendments in U.S. export control laws.", | |
| "explanation": "Export control laws can change, and the EULA should reflect that it will be updated to remain compliant with any new regulations or amendments to existing laws. This ensures ongoing compliance and legal accuracy." | |
| }, | |
| { | |
| "change": "Add a provision for compliance with state laws that may impose additional export control requirements.", | |
| "explanation": "While federal law primarily governs export controls, some states may have additional regulations. Including a provision for compliance with state laws ensures that the EULA is comprehensive and legally sound across different jurisdictions." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "5. Personal Information and Privacy", | |
| "analysis": [ | |
| { | |
| "clause": "Our handling of personal information we collect through the LinkedIn Services or the Software is governed by the LinkedIn Privacy Policy.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "15 U.S.C. § 6801", | |
| "relevance_of_federal_law": "The Gramm-Leach-Bliley Act (GLBA) requires financial institutions to explain their information-sharing practices to their customers and to safeguard sensitive data. This aligns with the clause's emphasis on handling personal information and privacy.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter94&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Code § 1798.100", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1798.100&lawCode=CIV", | |
| "relevance": "The California Consumer Privacy Act (CCPA) provides California residents with rights regarding their personal information, including the right to know what personal information is being collected and how it is used. This is relevant to the clause as it governs the handling of personal information." | |
| }, | |
| { | |
| "state": "New York", | |
| "citation": "N.Y. Gen. Bus. Law § 899-aa", | |
| "url": "https://www.nysenate.gov/legislation/laws/GBS/899-AA", | |
| "relevance": "New York's SHIELD Act requires businesses to implement safeguards for the private information of New York residents. This law is relevant to the clause as it pertains to the protection and handling of personal information." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "change": "Include a reference to the Gramm-Leach-Bliley Act (GLBA) in the clause.", | |
| "explanation": "The GLBA requires financial institutions to explain their information-sharing practices and safeguard sensitive data. Including a reference to this federal law would ensure compliance and provide clarity on the legal framework governing the handling of personal information." | |
| }, | |
| { | |
| "change": "Explicitly mention compliance with the California Consumer Privacy Act (CCPA) and New York's SHIELD Act.", | |
| "explanation": "Given the relevance of these state laws to the handling of personal information, explicitly mentioning compliance with the CCPA and SHIELD Act would ensure that the clause aligns with state-specific requirements. This would help avoid potential conflicts with state laws and provide transparency to users in those jurisdictions." | |
| }, | |
| { | |
| "change": "Detail the specific types of personal information collected and how it is used.", | |
| "explanation": "To align with the CCPA, which grants California residents the right to know what personal information is being collected and how it is used, the clause should provide more detailed information on the types of personal information collected and its usage. This would enhance transparency and compliance with state law." | |
| }, | |
| { | |
| "change": "Include a statement on the implementation of safeguards for personal information.", | |
| "explanation": "To comply with New York's SHIELD Act, which requires businesses to implement safeguards for the private information of New York residents, the clause should include a statement on the measures taken to protect personal information. This would ensure compliance with state law and reassure users about the security of their data." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "3. Title", | |
| "analysis": [ | |
| { | |
| "clause": "Title, ownership and all rights (including without limitation intellectual property rights) in and to the Software shall remain with LinkedIn. Except for those rights expressly granted in this EULA, no other rights are granted, whether express or implied.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "17 U.S.C. § 101 et seq.", | |
| "relevance_of_federal_law": "The clause pertains to intellectual property rights, which are governed by U.S. copyright law. Title 17 of the United States Code outlines the scope of copyright protection, ownership, and the rights granted to copyright holders.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title17&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Code § 980 et seq.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=1.&part=4.&chapter=2.&article=1.", | |
| "relevance": "California's Civil Code includes provisions related to intellectual property rights, which can impact the ownership and rights clauses in software agreements." | |
| }, | |
| { | |
| "state": "New York", | |
| "citation": "N.Y. Arts & Cult. Aff. Law § 11.01 et seq.", | |
| "url": "https://www.nysenate.gov/legislation/laws/ACA", | |
| "relevance": "New York's Arts and Cultural Affairs Law addresses intellectual property rights, including those related to software and digital media, which are relevant to the clause." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "change": "Clarify the scope of intellectual property rights", | |
| "explanation": "To ensure compliance with 17 U.S.C. § 101 et seq., the clause should explicitly define the scope of intellectual property rights being granted. This includes specifying whether the rights pertain to copyrights, trademarks, patents, or trade secrets. This will help avoid ambiguity and ensure that the clause aligns with federal copyright law." | |
| }, | |
| { | |
| "change": "Include a reference to state laws", | |
| "explanation": "Given the relevance of state laws such as California's Civil Code § 980 et seq. and New York's Arts & Cultural Affairs Law § 11.01 et seq., the clause should include a statement acknowledging that the agreement is subject to applicable state laws. This will help mitigate potential conflicts with state-specific intellectual property regulations." | |
| }, | |
| { | |
| "change": "Specify the jurisdiction for legal disputes", | |
| "explanation": "To address potential conflicts with state laws or local jurisdictions, the clause should specify the jurisdiction and venue for any legal disputes arising from the agreement. This will provide clarity on which state's laws will govern the interpretation and enforcement of the clause." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "1. Description of Software", | |
| "analysis": [ | |
| { | |
| "clause": "The Software is a downloadable software application that enables you to access LinkedIn functionality directly from your Android, iPhone, iPad or other mobile device supported by LinkedIn (âDeviceâ). You may download the Software whether or not you use the LinkedIn Service, but you must associate it with your LinkedIn account to enable its full functionality.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "17 U.S.C. § 101", | |
| "relevance_of_federal_law": "This section of the U.S. Code defines 'computer program' and 'software,' which is relevant to the clause as it pertains to the distribution and usage of LinkedIn's software application.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [], | |
| "recommendation": [ | |
| { | |
| "change": "Clarify the definition of 'Software' to ensure it aligns with the definition of 'computer program' as per 17 U.S.C. § 101.", | |
| "explanation": "To ensure compliance with federal law, it is important that the term 'Software' used in the clause is clearly defined in a manner consistent with the legal definition provided in 17 U.S.C. § 101. This will help avoid any ambiguity regarding what constitutes the 'Software' and ensure that the clause is legally sound." | |
| }, | |
| { | |
| "change": "Include a disclaimer regarding compliance with state laws.", | |
| "explanation": "While the clause appears to comply with federal law, it is prudent to include a disclaimer that the use of the Software must also comply with applicable state laws. This will help address any potential conflicts with state laws or local jurisdictions that may have additional requirements or restrictions on software usage and distribution." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "7. Right to Terminate or Modify Software", | |
| "analysis": [ | |
| { | |
| "clause": "LinkedIn may modify the Software and this EULA without notice. You may cease use of the Software at any time. Either party may terminate this EULA at any time, with or without notice.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "17 U.S.C. § 101 et seq.", | |
| "relevance_of_federal_law": "The U.S. Copyright Act (17 U.S.C. § 101 et seq.) is relevant as it governs the rights to modify software, which is considered a copyrighted work. This law supports LinkedIn's right to modify the software as stipulated in the EULA.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim", | |
| "potentially_conflicting_federal_law": "15 U.S.C. § 45", | |
| "relevance_of_potentially_conflicting_federal_law": "The Federal Trade Commission Act (15 U.S.C. § 45) prohibits unfair or deceptive acts or practices in commerce. The clause allowing LinkedIn to modify the EULA without notice could be seen as potentially unfair or deceptive to users.", | |
| "url_of_potentially_conflicting_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter2&edition=prelim", | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Code § 1750 et seq.", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=1.5.&part=4.&chapter=1.&article=1.", | |
| "relevance": "The California Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.) protects consumers against unfair or deceptive business practices. The clause allowing LinkedIn to modify the EULA without notice could be challenged under this law as potentially unfair or deceptive." | |
| }, | |
| { | |
| "state": "New York", | |
| "citation": "N.Y. Gen. Bus. Law § 349", | |
| "url": "https://www.nysenate.gov/legislation/laws/GBS/349", | |
| "relevance": "New York's General Business Law § 349 prohibits deceptive acts or practices in the conduct of any business. The clause allowing LinkedIn to modify the EULA without notice could be seen as deceptive under this statute." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "change": "Include a notice requirement for modifications to the EULA.", | |
| "explanation": "To comply with the Federal Trade Commission Act (15 U.S.C. § 45) and similar state laws such as California's Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.) and New York's General Business Law § 349, LinkedIn should include a notice requirement for any modifications to the EULA. This change would help avoid potential claims of unfair or deceptive practices." | |
| }, | |
| { | |
| "change": "Clarify the conditions under which LinkedIn can modify the Software.", | |
| "explanation": "While the U.S. Copyright Act (17 U.S.C. § 101 et seq.) supports LinkedIn's right to modify the software, it would be prudent to clarify the conditions under which such modifications can occur. This can help mitigate potential conflicts with state laws that protect consumers from unfair or deceptive practices." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "9. Open Source", | |
| "analysis": [ | |
| { | |
| "clause": "The Software may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found at https://www.linkedin.com/legal/l/open-source-mobile-apps and/or in the Software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "17 U.S.C. § 101 et seq.", | |
| "relevance_of_federal_law": "The clause aligns with the U.S. Copyright Act, which governs the use and distribution of copyrighted works, including software. The Act ensures that the rights of copyright holders are protected, which is consistent with the clause's emphasis on adhering to the license terms of open source software and recognizing the respective copyright holders.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [], | |
| "recommendation": { | |
| "description": "The clause as written appears to be in compliance with the relevant U.S. federal law, specifically the U.S. Copyright Act (17 U.S.C. § 101 et seq.). The clause appropriately acknowledges the presence of open source software, the necessity to adhere to its respective license terms, and the recognition of the respective copyright holders. However, to ensure comprehensive legal compliance and clarity, the following recommendations are made:", | |
| "recommendations": [ | |
| { | |
| "change": "Include a statement that explicitly mentions the obligation to comply with all applicable open source licenses.", | |
| "reason": "While the clause mentions that each item of open source software is subject to its own license terms, an explicit statement about the obligation to comply with these terms can reinforce the importance of adherence and reduce potential legal risks." | |
| }, | |
| { | |
| "change": "Add a disclaimer that the provided URL and documentation locations are subject to change.", | |
| "reason": "URLs and documentation locations can change over time. Including a disclaimer can help manage user expectations and reduce potential confusion or legal disputes if the provided links become outdated." | |
| }, | |
| { | |
| "change": "Consider adding a reference to any specific state laws that may impose additional requirements or restrictions on the use of open source software.", | |
| "reason": "While the clause aligns with federal law, state laws can vary and may impose additional requirements. Including a reference to state laws can help ensure comprehensive legal compliance and inform users of any additional obligations." | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "6. No Warranty", | |
| "analysis": [ | |
| { | |
| "clause": "LINKEDIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FULLY COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE SOFTWARE IS OFFERED ON AN \"AS-IS\" BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. LINKEDIN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "15 U.S.C. § 2301 et seq.", | |
| "relevance_of_federal_law": "The Magnuson-Moss Warranty Act governs warranties on consumer products and allows sellers to disclaim implied warranties if the product is sold 'as-is'. This aligns with the clause's disclaimer of all warranties and the 'as-is' basis.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter50&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Code § 1792", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1792.&lawCode=CIV", | |
| "relevance": "California law implies warranties of merchantability and fitness for a particular purpose unless properly disclaimed. This may limit the effectiveness of the warranty disclaimer in the clause." | |
| }, | |
| { | |
| "state": "New York", | |
| "citation": "N.Y. U.C.C. Law § 2-316", | |
| "url": "https://www.nysenate.gov/legislation/laws/UCC/2-316", | |
| "relevance": "New York law requires that disclaimers of implied warranties be conspicuous and specific. This affects how the warranty disclaimer must be presented to be enforceable." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "change": "Add a conspicuous and specific disclaimer for implied warranties.", | |
| "reason": "To comply with New York law (N.Y. U.C.C. Law § 2-316), which requires that disclaimers of implied warranties be conspicuous and specific. This ensures the disclaimer is enforceable in New York." | |
| }, | |
| { | |
| "change": "Include a statement that the disclaimer of implied warranties may not apply in jurisdictions where such disclaimers are not permitted.", | |
| "reason": "To address the jurisdictional exceptions noted in the clause, particularly in states like California (Cal. Civ. Code § 1792), where implied warranties of merchantability and fitness for a particular purpose cannot be waived unless properly disclaimed." | |
| }, | |
| { | |
| "change": "Ensure the 'as-is' basis is clearly stated and prominently displayed.", | |
| "reason": "To align with the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.), which allows sellers to disclaim implied warranties if the product is sold 'as-is'. This helps in making the disclaimer legally effective." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "2. License", | |
| "analysis": [ | |
| { | |
| "clause": "LinkedIn hereby grants you, subject to the terms and conditions of this EULA, a non-exclusive, non-transferable personal license to:Use the Software for your own personal use; | |
| Install the Software on only one Device; and | |
| Make one copy of the Software in any machine readable form solely for back-up purposes, provided you reproduce the Software in its original form and with all proprietary notices on the back-up copy. | |
| For clarity, the foregoing is not intended to prohibit you from installing and backing-up the Software for another Device on which you also agreed to the EULA. Each instance of this EULA that you agree to grants you the aforementioned rights in connection with the installation, use and back-up of one copy of the Software on one Device.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "17 U.S.C. § 117", | |
| "relevance_of_federal_law": "17 U.S.C. § 117 allows the owner of a copy of a computer program to make another copy or adaptation of that program provided it is for archival purposes or as an essential step in the utilization of the program in conjunction with a machine.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section117&num=0&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [], | |
| "recommendation": [ | |
| { | |
| "change": "Clarify the scope of 'personal use' to ensure it aligns with the limitations set forth in 17 U.S.C. § 117.", | |
| "explanation": "While the clause allows for personal use, it should explicitly state that the use must be in conjunction with a machine as an essential step in the utilization of the program, as required by 17 U.S.C. § 117." | |
| }, | |
| { | |
| "change": "Include a statement that the back-up copy must be destroyed if the original copy is no longer in use or if the license is terminated.", | |
| "explanation": "17 U.S.C. § 117 allows for the creation of a back-up copy for archival purposes, but it implies that the back-up should not be retained if the original is no longer in use. This ensures compliance with the law." | |
| }, | |
| { | |
| "change": "Specify that the license does not permit the creation of additional copies beyond the one back-up copy allowed.", | |
| "explanation": "To avoid any ambiguity, the clause should explicitly state that no additional copies beyond the one back-up copy are permitted, aligning with the limitations of 17 U.S.C. § 117." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "8. U.S. Government Restricted Rights", | |
| "analysis": [ | |
| { | |
| "clause": "By accepting delivery, the government agrees that the Software and accompanying documentation qualifies as âcommercialâ computer software within the meaning of the applicable acquisition regulations. The terms and conditions of this EULA govern the government's use and disclosure of the Software and supersede any conflicting terms and conditions. If this EULA fails to meet the government's needs or is inconsistent in any way with federal law, the government must return the Software, unused, to LinkedIn.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "48 C.F.R. § 12.212", | |
| "relevance_of_federal_law": "48 C.F.R. § 12.212 pertains to the acquisition of commercial items, including computer software, by the federal government. It aligns with the clause by recognizing software as a commercial item and stipulating that the terms of the commercial license govern the use of the software.", | |
| "url_of_relevant_federal_law": "https://www.law.cornell.edu/cfr/text/48/12.212", | |
| "potentially_conflicting_federal_law": "41 U.S.C. § 7103", | |
| "relevance_of_potentially_conflicting_federal_law": "41 U.S.C. § 7103 outlines the rights of the federal government in contract disputes, which may conflict with the clause's stipulation that the EULA terms supersede any conflicting federal law. This statute ensures that federal law takes precedence in contract disputes involving the government.", | |
| "url_of_potentially_conflicting_federal_law": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section7103&num=0&edition=prelim", | |
| "state_laws": [], | |
| "recommendation": [ | |
| { | |
| "change": "Modify the clause to acknowledge the supremacy of federal law in case of conflicts.", | |
| "explanation": "The clause currently states that the terms and conditions of the EULA supersede any conflicting terms and conditions. However, 41 U.S.C. § 7103 ensures that federal law takes precedence in contract disputes involving the government. To comply with this statute, the clause should be revised to explicitly state that federal law will prevail in the event of any conflict between the EULA and federal law." | |
| }, | |
| { | |
| "change": "Include a disclaimer that the EULA is subject to applicable federal acquisition regulations.", | |
| "explanation": "While the clause references the applicable acquisition regulations, it should explicitly state that the EULA is subject to these regulations. This will ensure compliance with 48 C.F.R. § 12.212, which governs the acquisition of commercial items, including computer software, by the federal government." | |
| }, | |
| { | |
| "change": "Clarify the return policy to ensure it aligns with federal procurement regulations.", | |
| "explanation": "The clause states that the government must return the Software, unused, to LinkedIn if the EULA fails to meet the government's needs or is inconsistent with federal law. This return policy should be clarified to ensure it aligns with federal procurement regulations, which may have specific requirements for the return of goods." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "10. Indemnification", | |
| "analysis": [ | |
| { | |
| "clause": "To the fullest extent permitted by law, you agree to indemnify and otherwise hold harmless LinkedIn Corporation, its officers, employees, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "15 U.S.C. § 45", | |
| "relevance_of_federal_law": "15 U.S.C. § 45, which pertains to unfair or deceptive acts or practices, is relevant as it underscores the importance of fair business practices and consumer protection. The indemnification clause aims to protect LinkedIn from liabilities arising from user actions, aligning with the principles of mitigating unfair practices.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim", | |
| "potentially_conflicting_federal_law": "null", | |
| "relevance_of_potentially_conflicting_federal_law": "null", | |
| "url_of_potentially_conflicting_federal_law": "null", | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Code § 2772", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2772.&lawCode=CIV", | |
| "relevance": "California Civil Code § 2772 defines indemnity and outlines the obligations and limitations of indemnification agreements. This is relevant as it provides a legal framework for understanding the extent and enforceability of indemnification clauses within the state of California." | |
| }, | |
| { | |
| "state": "New York", | |
| "citation": "N.Y. Gen. Oblig. Law § 5-322.1", | |
| "url": "https://www.nysenate.gov/legislation/laws/GOB/5-322.1", | |
| "relevance": "New York General Obligations Law § 5-322.1 addresses the enforceability of indemnification clauses in contracts. This is relevant as it impacts how indemnification clauses are interpreted and enforced in New York, particularly in relation to construction contracts but also providing general principles applicable to other contracts." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "change": "Clarify the scope of indemnification to ensure compliance with California Civil Code § 2772.", | |
| "explanation": "California Civil Code § 2772 defines indemnity and outlines the obligations and limitations of indemnification agreements. To ensure compliance, the clause should explicitly state the scope and limitations of indemnification, particularly in terms of what actions or omissions by the user would trigger indemnification." | |
| }, | |
| { | |
| "change": "Include a provision that limits indemnification to the extent permitted by New York General Obligations Law § 5-322.1.", | |
| "explanation": "New York General Obligations Law § 5-322.1 addresses the enforceability of indemnification clauses, particularly in construction contracts but also providing general principles applicable to other contracts. The clause should include language that limits indemnification to the extent permitted by New York law to ensure it is enforceable in that jurisdiction." | |
| }, | |
| { | |
| "change": "Specify that indemnification does not cover acts of gross negligence or willful misconduct.", | |
| "explanation": "Both California and New York laws generally do not allow indemnification for acts of gross negligence or willful misconduct. Including this limitation will help ensure the clause is enforceable and compliant with state laws." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "11. Limitation of Liability", | |
| "analysis": [ | |
| { | |
| "clause": "YOU EXPRESSLY UNDERSTAND AND AGREE THAT LINKEDIN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF LINKEDIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL LINKEDIN'S AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF LICENSING FEES PAID BY YOU TO LINKEDIN. THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "15 U.S.C. § 45", | |
| "relevance_of_federal_law": "15 U.S.C. § 45, which addresses unfair or deceptive acts or practices, is relevant as it provides a framework for understanding the limitations of liability in consumer contracts. This law ensures that companies cannot completely absolve themselves of liability in ways that would be considered unfair or deceptive to consumers.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section45&num=0&edition=prelim", | |
| "potentially_conflicting_federal_law": "15 U.S.C. § 2301 et seq.", | |
| "relevance_of_potentially_conflicting_federal_law": "The Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.) is negatively aligned with the clause as it imposes certain requirements on warranties and may limit the extent to which a company can disclaim liability for consequential damages, especially in consumer transactions.", | |
| "url_of_potentially_conflicting_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title15/chapter50&edition=prelim", | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Code § 1793.2", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=1793.2", | |
| "relevance": "California's Song-Beverly Consumer Warranty Act imposes obligations on manufacturers and sellers regarding warranties and may limit the extent to which they can disclaim liability for consequential damages." | |
| }, | |
| { | |
| "state": "New York", | |
| "citation": "N.Y. Gen. Bus. Law § 349", | |
| "url": "https://www.nysenate.gov/legislation/laws/GBS/349", | |
| "relevance": "New York's General Business Law § 349 prohibits deceptive acts and practices in the conduct of any business, trade, or commerce, which may impact the enforceability of certain liability limitations in consumer contracts." | |
| }, | |
| { | |
| "state": "Texas", | |
| "citation": "Tex. Bus. & Com. Code § 17.50", | |
| "url": "https://statutes.capitol.texas.gov/Docs/BC/htm/BC.17.htm", | |
| "relevance": "Texas's Deceptive Trade Practices-Consumer Protection Act provides consumers with remedies for deceptive business practices, which may affect the enforceability of liability limitations in consumer agreements." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "reason": "To comply with the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.), which may limit the extent to which a company can disclaim liability for consequential damages, especially in consumer transactions.", | |
| "change": "Add a clause stating that the limitations of liability do not apply to warranties covered under the Magnuson-Moss Warranty Act." | |
| }, | |
| { | |
| "reason": "To address potential conflicts with California's Song-Beverly Consumer Warranty Act (Cal. Civ. Code § 1793.2), which imposes obligations on manufacturers and sellers regarding warranties and may limit the extent to which they can disclaim liability for consequential damages.", | |
| "change": "Include a provision that acknowledges the applicability of California's Song-Beverly Consumer Warranty Act and states that the limitations of liability will not apply where prohibited by this Act." | |
| }, | |
| { | |
| "reason": "To ensure compliance with New York's General Business Law § 349, which prohibits deceptive acts and practices in the conduct of any business, trade, or commerce, and may impact the enforceability of certain liability limitations in consumer contracts.", | |
| "change": "Add a clause indicating that the limitations of liability are subject to New York's General Business Law § 349 and will not apply in cases where they would be considered deceptive or unfair." | |
| }, | |
| { | |
| "reason": "To align with Texas's Deceptive Trade Practices-Consumer Protection Act (Tex. Bus. & Com. Code § 17.50), which provides consumers with remedies for deceptive business practices and may affect the enforceability of liability limitations in consumer agreements.", | |
| "change": "Include a statement that the limitations of liability are subject to the Texas Deceptive Trade Practices-Consumer Protection Act and will not apply in cases where they would violate this Act." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "13. General", | |
| "analysis": [ | |
| { | |
| "clause": "If you live in the Designated Countries: a) you and LinkedIn Ireland agree that the laws of Ireland, excluding conflict of laws rules, shall exclusively govern any dispute relating to this EULA, the Software and/or LinkedIn Service; and b) you and LinkedIn Ireland agree that claims and disputes can be litigated only in Dublin, Ireland, and we each agree to personal jurisdiction of the courts located in Dublin, Ireland. For others outside of Designated Countries, including those who live outside of the United States: a) you and LinkedIn agree that the laws of the State of California, U.S.A., excluding its conflict of laws rules, shall exclusively govern any dispute relating to this EULA, the Software and/or LinkedIn Service; and b) you and LinkedIn both agree that all claims and disputes can be litigated only in the federal or state courts in Santa Clara County, California, USA, and you and LinkedIn each agree to personal jurisdiction in those courts. This EULA constitutes the entire agreement between you and LinkedIn regarding the Software. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this EULA will remain in full force and effect. You may not assign this EULA, and any assignment of this EULA by you will be null and void. LinkedIn, LinkedIn (stylized), the \"in\" logos, and other LinkedIn-owned logos and names are trademarks of LinkedIn and its affiliates. You agree not to display or use these trademarks in any manner without LinkedIn's prior, written permission. The section titles and numbering of this EULA are displayed for convenience and have no legal effect.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "28 U.S.C. § 1332", | |
| "relevance_of_federal_law": "28 U.S.C. § 1332 governs diversity jurisdiction, which is relevant to the clause as it outlines the jurisdictional rules for disputes involving parties from different states or countries.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title28/part4/chapter85&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Proc. Code § 410.10", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=410.10&lawCode=CCP", | |
| "relevance": "California's long-arm statute, Cal. Civ. Proc. Code § 410.10, allows California courts to exercise jurisdiction on any basis not inconsistent with the Constitution of the state or of the United States, which is relevant for disputes involving parties outside of California." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "change": "Clarify the scope of jurisdiction for 'Others Outside Designated Countries' to ensure compliance with 28 U.S.C. § 1332.", | |
| "explanation": "The clause should explicitly state that the jurisdictional rules apply to disputes involving parties from different states or countries, aligning with the diversity jurisdiction governed by 28 U.S.C. § 1332. This will help avoid any ambiguity regarding the applicability of federal jurisdiction in such cases." | |
| }, | |
| { | |
| "change": "Include a reference to California's long-arm statute, Cal. Civ. Proc. Code § 410.10, in the section governing 'Others Outside Designated Countries'.", | |
| "explanation": "To ensure that the clause is fully compliant with California's jurisdictional rules, it should mention that California courts can exercise jurisdiction on any basis not inconsistent with the Constitution of the state or of the United States. This will help clarify the legal basis for jurisdiction in disputes involving parties outside of California." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| { | |
| "section_header": "4. Restrictions", | |
| "analysis": [ | |
| { | |
| "clause": "You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "18 U.S.C. § 1030", | |
| "relevance_of_federal_law": "18 U.S.C. § 1030, also known as the Computer Fraud and Abuse Act (CFAA), is highly relevant as it governs the use of computers and software, making it illegal to access computers without authorization or exceed authorized access, which aligns with the clause's requirement to comply with applicable laws.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter47&edition=prelim", | |
| "potentially_conflicting_federal_law": null, | |
| "relevance_of_potentially_conflicting_federal_law": null, | |
| "url_of_potentially_conflicting_federal_law": null, | |
| "state_laws": [], | |
| "recommendation": [ | |
| { | |
| "change": "Include a specific reference to 18 U.S.C. § 1030 (Computer Fraud and Abuse Act) within the clause.", | |
| "explanation": "Explicitly mentioning 18 U.S.C. § 1030 will provide clarity and ensure users are aware of the specific federal law they must comply with, thereby reducing the risk of unauthorized access or misuse of the Software." | |
| }, | |
| { | |
| "change": "Add a statement addressing compliance with state and local laws.", | |
| "explanation": "While the clause already requires compliance with applicable laws in the jurisdictions where the Software is used, explicitly mentioning state and local laws will reinforce the necessity for users to be aware of and adhere to all relevant legal requirements, which may vary by location." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| }, | |
| { | |
| "clause": "You may not:Create derivative works based on the Software; | |
| Use the Software for any purpose other than as described herein; | |
| Copy or reproduce the Software except as described in this EULA; | |
| Sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to any third parties; | |
| Alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, except to the extent this prohibition is not permitted under an applicable law; or | |
| Remove or alter any proprietary notices or marks on the Software.", | |
| "reasoning": { | |
| "US_code_and_contract_law": [ | |
| { | |
| "relevant_federal_law": "17 U.S.C. § 106", | |
| "relevance_of_federal_law": "17 U.S.C. § 106 grants the copyright owner exclusive rights to reproduce, prepare derivative works, distribute copies, and perform or display the work publicly. The restrictions in the clause align with these exclusive rights by prohibiting unauthorized actions that would infringe on the copyright owner's rights.", | |
| "url_of_relevant_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim", | |
| "potentially_conflicting_federal_law": "17 U.S.C. § 117", | |
| "relevance_of_potentially_conflicting_federal_law": "17 U.S.C. § 117 provides exceptions to the exclusive rights of the copyright owner, allowing the owner of a copy of a computer program to make an adaptation of that program if it is created as an essential step in the utilization of the program or for archival purposes. This may conflict with the clause's blanket prohibition on creating derivative works and reverse engineering.", | |
| "url_of_potentially_conflicting_federal_law": "https://uscode.house.gov/view.xhtml?path=/prelim@title17/chapter1&edition=prelim", | |
| "state_laws": [ | |
| { | |
| "state": "California", | |
| "citation": "Cal. Civ. Code § 980", | |
| "url": "https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=980.", | |
| "relevance": "California Civil Code § 980 provides similar protections to copyright owners as 17 U.S.C. § 106, granting exclusive rights to reproduce, distribute, and create derivative works. This state law supports the restrictions outlined in the clause." | |
| }, | |
| { | |
| "state": "New York", | |
| "citation": "N.Y. Arts & Cult. Aff. Law § 14.03", | |
| "url": "https://www.nysenate.gov/legislation/laws/ACA/14.03", | |
| "relevance": "New York Arts and Cultural Affairs Law § 14.03 aligns with federal copyright law by protecting the rights of copyright owners, including the right to control the reproduction and distribution of their works. This state law reinforces the restrictions in the clause." | |
| } | |
| ], | |
| "recommendation": [ | |
| { | |
| "change": "Add an exception clause for reverse engineering and creating derivative works.", | |
| "explanation": "17 U.S.C. § 117 allows the owner of a copy of a computer program to make an adaptation of that program if it is created as an essential step in the utilization of the program or for archival purposes. To comply with this federal law, the clause should include an exception for these specific scenarios." | |
| }, | |
| { | |
| "change": "Clarify the scope of 'use' restrictions.", | |
| "explanation": "The restriction on using the Software 'for any purpose other than as described herein' could be overly broad and potentially unenforceable. It should be clarified to ensure it does not conflict with lawful uses permitted under 17 U.S.C. § 117 and relevant state laws." | |
| }, | |
| { | |
| "change": "Include a reference to applicable state laws.", | |
| "explanation": "State laws such as California Civil Code § 980 and New York Arts and Cultural Affairs Law § 14.03 provide additional protections and rights to copyright owners. The clause should acknowledge these state laws to ensure comprehensive compliance and avoid potential conflicts." | |
| } | |
| ] | |
| } | |
| ] | |
| } | |
| } | |
| ] | |
| } | |
| marcfawzi |
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