Is it legal to require user to agree to something outside the scope of the service that terms and conditions are supposed to cover?

Question

Context: I tried to set up auto payments for my first mortgage loan in the US and I was a bit puzzled with terms and conditions (TOS) that were offered to me.

If my interpretation is correct, TOS requires to hold loan provider harmless in the event of data breach that happened on their side and leakage of personal data of the users of the loan portal. Another thing is mandatory binding arbitration and waiver of jury trial. The corresponding clause seems to be worded in such a way that it seems to apply to any possible situation outside the use of loan portal that those terms and conditions are supposed to cover.

Last but not least TOS is asking me to silently accept all the further modifications of the original TOS.

What is the possible impact that this TOS might have on someone who accepts it in the worst case scenario outside the scope of use of service that TOS intends to cover?

In particular, is there any way (legal wording or regulation or the law) that can give me some peace of mind - so that if something about my loan is not right and I am not at fault, I still can legally defend myself without worrying that I am abandoning some legal option otherwise available to me (e.g. that mandatory binding arbitration or waiver of jury trial)?

I know that I can make payments in the old fashioned way, but I am still curious if my fear on giving up too much by accepting that TOS is groundless or not.

Answer 1

I am still curious if my fear on giving up too much by accepting that TOS is groundless or not.

I am not knowledgeable of New Jersey legislation that may render these clauses unenforceable. But your understanding of the contract is accurate. I would never sign a contract that includes clauses of that nature. Posting on your fridge a properly marked payments calendar will keep you safe from the can of worms enclosed in that contract.

What is the possible impact that this TOS might have on someone who accepts it in the worst case scenario outside the scope of use of service that TOS intends to cover?

Short of hypothesizing a worst case scenario, here are some additional remarks that you should bear in mind:

Assuming arguendo that the provider is unable to exert undue influence on the arbitrator (think of bribery, endorsements, career prospects, or other incentives that may go unnoticed by you), wrong arbitration rulings are extremely hard to reverse on appeal even if the evidence and the laws clearly favor you.

Arbitration rulings are appealed in court. But clause 14 explicitly states that "arbitration replaces the right to go to court", whence you might not be even allowed to appeal a wrong arbitration ruling.

The contract repeatedly protects its affiliates, contractors, etc. against any liability to you. With the cheap outsourcing and replaceable staffing intermediaries being so commonplace nowadays, the client is highly vulnerable to any sort of deliberate misconduct/fraud/conspiracy by the provider or any of its affiliates because clause 11 also immunizes them all under tort or any other theory of liability.

Clause 12 (consenting to cover the provider's attorney fees, costs of defense, investigation, damages, and any other expenses may incur) also makes you vulnerable to any third-party's claims against the provider that are "related" or allegedly "traceable" to you. In other words, by signing that contract you would be insuring the provider for free.

Back to clause 14, the prohibition to "disclose the existence, content, or results of the arbitration" puts you at a[nother] serious disadvantage: It extinguishes your essential right to publicly denounce any malfeasance by the provider (in relation to the arbitration proceedings) or the arbitrator. That sole excerpt of clause 14 gives the impression (whether accurate or not) that the risk of provider's misconduct is so imminent that the provider feels an urgency to preempt any chances that its misconduct be brought to the public's attention.

I always discourage people from consenting to arbitration, and this contract goes far beyond that.