Introduction

Services are frequently abusive, as online platforms too often contain in their Terms of Service (ToS) potentially abusive terms for the consumer. Despite the approval of regulations and laws aimed at preventing such situations —like 93/13/EEC Unfair Contract Terms Directive (UCTD) and the Consumer Rights Protection Act in Europe— these problematic terms continue to appear frequently in online ToS.

Unfair terms

According to the UCTD, a contractual term is deemed unfair and consequently non-binding on consumers if it meets two criteria:
  1. It has not been individually negotiated.
  2. It creates a significant imbalance in the parties' rights and obligations, contrary to the requirements of good faith.
This imbalance is often to the detriment of the consumer, leaving them vulnerable to exploitation.

Limitations of Liability

Limitation of liability clauses restrict the provider's responsibility for damages or losses incurred by the user. These terms may be unfair if they exempt the provider from liability for serious harm, such as physical injuries, intentional damage, or gross negligence.

We shall have no liability for delays or failures in delivery or performance of our obligations to you resulting from any act, events, omissions, failures or accidents that are outside of our control including: late, defective performance or non-performance by suppliers and private or public telecommunication, computer network failures or breakdown of equipment.

Unilateral termination

Termination clauses give providers the right to end the contract or restrict service access. These can be unfair if they allow termination without notice or clear justification, as users may lose access to a service unexpectedly and with no opportunity to remedy any issues.

We may stop, suspend, or modify the Services at any time without prior notice to you.

Unilateral change

Unilateral change clauses allow providers to alter the terms of service without the consumer’s consent. This type of provision can be unfair because it binds users to changes they did not agree to, creating an unpredictable and shifting agreement that primarily serves the provider’s interests.

GitHub may change or discontinue Previews at any time without notice.

Content removal

Content removal clauses give providers the right to delete user-generated content. They are potentially unfair if they allow removal without prior notice, clear reasons, or an option for users to retrieve their content.

We may delete or disable content that we believe violates these terms or is alleged to be infringing and will terminate accounts of repeat infringers where appropriate.

Contract by using

These clauses state that users accept the terms of service simply by using the platform. This is potentially unfair as it assumes consent without explicit agreement, leaving users bound by terms they may not be fully aware of.

By using our Services, you agree to these terms. If you reside in the European Economic Area, Switzerland, or the UK, your use of the Services is governed by these terms⁠.

Choice of law

Choice of law clauses specify which jurisdiction’s laws will govern any disputes. They may be unfair if they mandate laws from a region favorable to the provider, often the provider’s own country, rather than the user’s location.

This Agreement will be governed by and construed in accordance with the laws of the State of California and federal laws of the United States.

Jurisdiction

Jurisdiction clauses determine where disputes must be resolved, which can be unfair if they require users to travel to a distant or inconvenient location.

Any legal action or proceeding will be brought exclusively in the federal or state courts located in the Northern District of California.

Arbitration

Arbitration clauses require users to resolve disputes outside of court, often through a private arbitrator. These terms can be unfair if arbitration is mandatory and structured to favor the provider, or if it takes place in a distant or unfamiliar location.

The arbitrator will have exclusive authority to resolve any Dispute, except the state or federal courts of San Francisco, California have the authority to determine any Dispute about enforceability, validity of the class action waiver, or requests for public injunctive relief, as set out below.

Analyser

The Analyser is a fine-tuned version of BERT, sourced from the LexGLUE project.

This model tackles a multi-label classification problem, where each clause in the ToS can be classified into one or more categories of potentially unfair terms. Instead of generating a single output, the model produces an output per class, each representing a type of potentially unfair clause (e.g., unilateral changes, limitation of liability). Here’s a closer look at how the model works:

  • Class-Specific Output: Each class has its own output node, meaning the model independently evaluates the likelihood of each type of unfair term in any given clause.
  • Sigmoid Transformation: Each output is passed through a sigmoid function, transforming the raw model output into a value between 0 and 1.
  • Threshold Filtering: This value is then compared to a set threshold. If it exceeds the threshold, the clause is flagged as likely containing that type of unfair term.

These values are also displayed on our interface to indicate how likely it is that a clause fits a specific category, but it’s important to note: this is not an exact percentage or probability and shouldn’t be interpreted as such. Instead, think of it as a relative indicator of how strongly the model believes the clause matches a particular type of unfair term.

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