Can a site write whatever it wants in terms of use?

Question

I am reading the following terms of use

https://jane.com/home/termsofuse

Lets say I am a seller on this platform am I allowed to build a script on my local machine That logs in to my account and list products for me instead of my secretary clicking the buttons. Anyways we can do this manually why not do it automatically.

They do write in their terms of sales that “use automated means to access the Site, or gain unauthorized access to the Site or Services or to any account or computer system connected to the Site;”

Are they allowed to dictate to me what software I use on my computer? Where is the line between what they are allowed to request that I do to what I can do? Can a site request that:

1)A user can only access the site if I am using a Microsoft mouse?

2)The user will only use the site from on iPhone and not android?

I am giving this examples to show that a site can’t request whatever they want.

Answer 1

Yes But...

The provider can include anything in the ToS document that s/he chooses to. It may or may not constitute a binding contract, and even if it does, all of its provisions may or may not be enforceable, depending on the laws of the jurisdiction involved.

The ToS linked in the question includes the provision:

BY ACCESSING OR USING THE SITE OR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE,...

That kind of "accept by access" provision does not create a binding contract at all in many jurisdictions. There must be a positive affirmative act, such as signing a name, checking a box, or clinking an "I accept" button in such jurisdictions for the ToS to be a binding agreement.

In a fair number of jurisdictions, there must be consideration for a ToS to act as a valid contract.

Even where there is a binding agreement, a party must usually show damage to sue successfully. The website operator can reasonably argue that its interests are harmed by the use of automated means to access the site, or by bulk downloads. It is hard to see how the operator could argue reasonably that the use of a non-Microsoft mouse harms its interests. This is because use of automated scraping tool potentially consumers significantly more bandwidth than a normal human user, and may increase server costs or hinder access by other users, while a change of mouse model has no such effect.

So, the site can request or purort to require whatever the operator chooses. Whether a suit to enforce such a requirement would be successful is a very different question. A suit to block automated access has, IMO, a fair chance of success, and some precedent in its favor. A suit to block access by a user using a Logitech mouse IMO does not.

Also, some particular provisions may be barred by law, although none of the ones mentioned in the question fall into that category as far as I know.

Answer 2

Broadly, yes

They have the right to choose who they do business with and under what circumstances. Just like you do.

Of course, they can’t dictate what software you use on your computer. Unless you have a contract with them where you agree that they can. Because you have the freedom to contract - if you agree to limit what you can otherwise do, you are free to do so.

When entering a contract each party takes on obligations to do or not do things in return for receiving the benefit of the contract. If a party doesn’t think the obligations are worth the benefit then they can (should) choose not to enter the contract.

Unless it’s illegal. Neither of your examples are illegal, indeed, many business offer iPhone apps and not Android apps or vice-versa.

It’s the exact same principle as “no shirt, no shoes, no service.”

Answer 3

Your argument doesn't hold because they have reasonable reasons for disallowing botting/scraping.

That phrase is boilerplate in almost any TOS.

The reason is to stop automated "attacks" using scripts. (attacks from the company's perspective, since it is bogging down their web servers, or driving their hosting bill over the moon). When novices write a "bot", this can happen all too easily - they don't think about pacing, and maul the server with dozens of requests per second.

Generally when a seller on a marketplace has a need to access a lot of data, the marketplace provides an API expressly for that purpose. This is vastly more efficient, since the server only needs to provide the raw data, not all the features and presentation needed for a proper web page, which is wasted on a bot.

Given their branding, they might not want partners who need to use automated listings

Jane is a curated marketplace with more than 2,000 shops plus big brands and designer names.

That is how Jane holds themselves out in the marketplace. So it would be consistent with their branding to want their "2000 shops" to actually be small artisanal shops - mom and pop operations. They may take the view that shops which depend on automation are probably not a good fit for the site.

Indeed, Etsy, a craftsman artisan marketplace, has had huge problems with their site being flooded with cheap factory/sweatshop items made to look handcrafted. When 100 different sellers all sell the identical item, or when you can find it on Amazon for half the price or Alibaba for 1/10, well, that is destroying their brand.

This a natural "rivalry of interests" between marketplaces who want to stand out as unique, and sellers like you OP, who want to put the same items in every marketplace.

The prohibition on scraping, conspicuous lack of API, and unwillingness to negotiate are evidence of that kind of brand defense.

Do they have a right to make themselves unique and special? Unquestionably. You would get taken to school on that point, if you sued for a "right" to list and a "right" to use automated means owing to your large number of items.