Someone earlier today was gushing about how neat Evernote is … it’s a OneNote-like application which features add-ins for browsers and email clients to let you clip text and images, or record voice, take notes in handwriting, etc … and it’s cross-platform and has a version for Windows Mobile and iPhone! I thought it sounded interesting, although the key feature of sharing all your notes automatically across all your clients made me a bit suspicious, so I went online to check it out.

By now, those of you who have previously read my rants about software licenses know to avoid Evernote. But let me tell my story anyway. I downloaded the installer and ran through it, noting that the click-through license displayed in the installer is for the software only, and references possible additional terms for a “service” ... So far, so good, the most annoying thing I noticed while scanning was:

9. Monitoring and Removal of information. ... Evernote Corporation and its designees shall have the right to refuse or remove any information that violates this Agreement or is otherwise objectionable, in Evernote Corporation sole judgment…

I didn’t particularly like that in a software license, but it wasn’t enough to get me to stop installing the software. However, I have to say, the license it is ridiculously huge:

• Roughly 3500 words
• On 330 lines of text
• (which you’re expected to read in a 10-line window)
• Making 33 pages of license (about 8 pages printed on letter size paper)

Nobody should be expected to put up with this. Let me say this for the record:

Put your license on the download page.

This will allow people like me to read the license before we download the software and possibly save us the trouble. Pretending you think people will read something like that in the tiny little window is a cruel joke.

The worst joke, however, was yet to come.

When I tried to actually use the software, it became clear that in Evernote 3, you cannot actually use the software without a service account. This, of course, means another click-through on their Terms Of Servitudece and Privacy Policy…

• Approximately 5600 word TOS
• That’s thirteen pages of license!
• Another 1800 words in the Privacy Policy
• For a grand total of:
  • Over 10,000 words
  • Over 25 pages

If you try to actually read the terms of service for the online service, you’ll find the classic evil genius license terms:

If you do access our web site and use our Service, your use shall be deemed to accept the Terms of Service and be a party to a legally binding contract … be sure to regularly check these Terms of Service for any updates or other changes, which shall be legally binding upon you when we post them, whether or not we provide you any other notice of such changes. The then-applicable Terms of Service will be posted at www.evernote.com/about/tos, and we will indicate the date of each update at the end of the Terms of Service. Your continued use of the Service after any update will be deemed to represent your consent to be bound by, and agreement with, the new Terms of Service.

Let’s be honest. Having read that … there’s really just no point in going any further. To paraphrase an earlier rant: I do not agree to review contracts on a regular basis — that’s preposterous. If even half of the applications I use required me to review their contracts every day before I used them, I would be spending hours each day just cutting-and-pasting their licenses into Win-Merge so I could spot the differences. Imagine trying to read ten thousand words of legalese every day before you start taking notes, just in case Evernote decided that now they want you to chant “Evernote rocks” out loud every 15 minutes while using it or pay a $150 monthly user fee retroactively…

It’s bad enough when companies like Microsoft and Paypal do this and send me a notice that they’ve changed their terms and I should review them. I can accept that a business might need to change their service agreement occasionally. But to put the burden on the users to routinely check 25 pages of license terms for changes you have to be barking mad. The worst thing is that this isn’t the end of it:

Of course, you may also be required or elect to enter into a separate written agreement or click “accept” or “agree” to become a party to another contract with Evernote (a “Separate Agreement”), and these Terms of Service shall not be considered to supersede the specific contractual terms of the Separate Agreement. If there is any contradiction between the terms of the Separate Agreement and these Terms of Service, then the terms of the Separate Agreement shall take precedence over the contradictory terms in the Terms of Service with respect to the subject matter of such Separate Agreement.

So basically, as you go on about using the service or application, they may layer on additional provisos, and a few quid-pro-quos, addendums, and modifications, leaving it to you to not just keep up to date on them, but to figure out for yourself what parts of which apply!

And yes, they also beg out of the need protect your data whatsoever:

“Personal information such as name, e-mail address, contact preferences, which Evernote products and services you use, and transactional information such as your credit card number” ... will be stored along with “Demographic infromation such as your occupation and where you use your devices” and they “cannot ensure the security of information you transmit” to them, and “you acknowledge that you do so at your own risk.” Although at least they promise that “once we receive your data transmission, we make all commercially reasonable efforts to ensure its security on our systems” (what they really mean is Amazon’s systems, since they appear to be using S3 for storage but nevermind).

The best thing in this agreement is that they got the copyright portion right:

Evernote acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Service in or to any Content that you submit, post, store, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

Good for you, Evernote. Now, try and condense this all into one agreement, and don’t make me promise to check it every day — you have my email address (and you promised to cancel my account if I provide you with incorrect information) ... so use it for good, and notify your customers before you make changes to your contracts — like every other trustworthy company.

My standard disclaimer applies here:

I am not a lawyer, and these terms are not unique to Evernote — that’s why I’m writing about them — it’s a disgrace that companies are allowed to post licenses like this and users just shrug and click “accept” without even reading them, and we need to raise a ruckus until companies stop treating us like farmland where they grow money, and start treating us like customers.

Call your representatives, tell your friends and warn your boss — don’t let yourself or your company get tied down by agreeing to contracts which are one-sided. If YOU have to agree to whatever THEY say, and they can just change the license whenever they like — then they’re not under contract, only you are. That’s not a contract, that’s a sentence.

P.S. Don’t let your company be the next one I rant about, either.