A client of mine passed along a concern shared among colleagues to get my thoughts regarding the small print in ConvertKit's Terms of Service that state in part:
The keys words here are "perpetual" "irrevocable" "royalty-free" "license" to "SELL".
Yes. By using ConvertKit you are giving them permission to sell or re-use your content for any purpose whatsoever with no payment due to you EVER.
In response to these concerns a member of the ConvertKit marketing team pointed out similar language from other apps....NONE of which include the word "sell".....and stated the Terms of Service only covers content or comments submitted for the blog on www.convertkit.com and nothing regarding apps.convertkit.com where customers actually use the platform.
(this response was done on a post via FB that has now been deleted)
I am not writing this to say ConvertKit is or even will in the future sell your content. BUT as a lawyer that specializes in contracts and drafting language like this IF ConvertKit decided to sell the content you put on the platform they would have a really good case to say you agreed to it based on how the current terms of service are written.
A really good case and here's why...
1. The Terms of Service covers ALL PLATFORMS not just the ConvertKit blog site
Below is a snippet of the very first paragraph of the ConvertKit Terms of Service where it states the agreement covers use of ConvertKit on all platforms.
Contract attorneys specialize in identifying language that tells you what they mean, what they don't mean and what they want to keep unclear. It does not say on all "devices" governing mobile, laptop, tablet, but instead it says all "platforms" The phrase "platforms" means anyway that you can access ConvertKit such as via hardware like your computer or software like an application such as apps.convertkit.com.
If ConvertKit intended for the Terms of Service to only govern www.convertkit.com there would have been no need to include the phrase "all platforms" but it did not. Their lawyers made sure to intentionally include those extra words and tell you what they mean when they use "Website" with a capital "W" just to reiterate they don't just mean the actual website itself but all versions of ConvertKit including the ConvertKit app.
2. The Terms of Service clearly includes ConvertKit products and services
For the sake of argument let's say ConvertKit considers the app a product or service instead of a "platform". ConvertKit products and services are mentioned throughout the Terms of Service in its warranty disclaimer here:
and AGAIN in the limitation of liabilities section here:
3. The ConvertKit definition of content it can sell INCLUDES YOUR content
The team member stated content users are agreeing to give to ConvertKit for free is only meant to cover guest blog posts or quotes for blog posts and the phrase "User Submissions" means content submitted for the blog and comments together.
It is important to take note that in contracts lawyers capitalize words to give them a specific meaning to make sure there is no confusion in what is and is not meant by the use of a generic word.
Take for the example in the beginning where I mentioned ConvertKit makes sure to define "Website" as "ConvertKit on all platforms". If website only meant www.convertkit.com there would have been no need to define or capitalize Website but because they wanted to include all platforms (such as the app) they defined and capitalized the otherwise generic word of website.
So look at the snippet above again and take note that ConvertKit makes sure to define "User Comments" and "User Submissions" but keeps the word "content" in lower case that leaves incredible breadth to what exactly it is they are referring to when they use the word content. . However here is how ConvertKit defines "Content" with a capital "C":
To break down this paragraph from the cloudy sentence structure it states that everything EXCEPT User Submissions is OWNED by ConvertKit. Now this may make you feel good and point out SEE LOOK IT SAYS EXCEPT USER SUBMISSIONS but if you have ever heard me talk about contracts I always tell you to look out for paragraphs that contradict.
So yes ConvertKit does not OWN your User Submission because it does not need to own it when you grant them a PERPETUAL IRREVOCABLE FREE LICENSE just one paragraph down here:
4. App Terms of Service do not exist
Users with concerns were finally pointed deep within the help pages of ConvertKit to article 76 titled The Approval Process and Inappropriate Uses if they wanted to read the terms of use governing the app as opposed to the website.
Here is what is on that page as of February 21 2017 at 1:24EST
If you are searching for an actual Terms of Use document like the first one you read you won't find one. Not even by title. It. Does. Not. Exist. There is a single page with bullet points on account approval and SPAM behavior buried within help pages.
Again, I am not writing this to say ConvertKit is or even will in the future sell your content. But I am putting this information out there to show you that the small print you click past to use products you love really matters and could screw you big time out of the hard work, time, and value you put into the content you create for your audience if repurposed and sold by a big corporation.
In the response the person did also mention that Nathan just recently turned down a buy-out offer and has no intention of selling the company and always wants the best for his customers so while I personally do not use ConvertKit I have advised my client and would advise any faithful user to petition ConvertKit to:
- Modify their terms to be clearer regarding the definition of content
- Make two separate easily accessible policies that are clear over what they govern (website vs app)
- Draft more than a few sentences on approval and inappropriate use relating to the app for the app terms of service
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