Mercury Insurance
Mercury General Corporation is a multiple-line insurance organization that offers personal automobiles, homeowners, renters, and business insurance. Mercury's primary focus is automobiles and homeowners' insurance.
It is necessary and appropriate for an insurance business to have knowledge abut the people and property they are insuring.
Cell phone photos should be a convenient way to effect this.
Mercury insurance requires customers to provide these pictures by using an app you must install on your phone. To have the privilege of installing the app you must consent to terms of service that are unconscionable.
Virtual Home Inspection app Flyreel license unconscionable?
Their handy app (called Property Assistant) that helps your insurance seller collect the status and condition info about your home, presumably for insurance purposes, also requires you to consent to them or their parent company Lexus-Nexus to be able to use your data for any reason whatsoever! And share it with anyone anywhere!
Do they really need an "in perpetuity" license to collect my data for home insurance?
Is there some way to read this that limits their use of my data in any way they can think of forever?
"Consent to Use of Data: You agree that Application Provider may collect use, reproduce, distribute, publish, export, transmit, create derivative works from, adapt, modify, make copies and retain, edit and translate, in perpetuity: (i) technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that are gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Product; (ii) any and all information You, directly or indirectly, submit, post, transmit or upload to the Licensed Product ("User Data"), which may include, without limitation, Your address, name, email address, photographs, text, images, graphics, photos, comments, suggestions, and communications with Application Provider; and (iii) location based and geographical information. Application Provider may provide Your User Data and information to third parties including: Application Provider"s parent company and/or group affiliates; the company whose mobile application you utilized to provide the User Data and information, Your insurance carrier, a potential insurance carrier, or insurance carrier you file a claim with; individuals to which You consent or provide access to your information or device; or to other relevant third-party service providers, parent companies and/or group affiliates to those entities listed above or others that are assisting in the provision of this Licensed Product (collectively, "Other Parties"). Additionally, Application Provider and Other Parties may use Your User Data, to improve its products or to provide services or technologies to You and for other products and services to which You consent; for commercial purposes; claims authentication and investigations; underwriting of insurance; risk mitigation; and fraud prevention However, Application Provider will not make any of Your User Data that is personal information public. You understand that by using the Licensed Product, You consent to the Application Provider using Your User Data and information previously provided in the Licensed Product prior to the last modified date of this Agreement in the manner set forth herein. You also understand that Application Provider and Other Parties may be required by law to disclose Your User Data or information regarding Your use of the Licensed Product and if required by law, Application Provider and Other Parties will comply with such requests. "
I asked chatGPT about this:
Would you like me to analyze a specific EULA or Privacy Policy for potential pour-over clauses?
You said:
yes:"Consent to Use of Data: You agree that Application Provider may collect use, reproduce, distribute, publish, export, transmit, create derivative works from, adapt, modify, make copies and retain, edit and translate, in perpetuity: (i) technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that are gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Product; (ii) any and all information You, directly or indirectly, submit, post, transmit or upload to the Licensed Product ("User Data"), which may include, without limitation, Your address, name, email address, photographs, text, images, graphics, photos, comments, suggestions, and communications with Application Provider; and (iii) location based and geographical information. Application Provider may provide Your User Data and information to third parties including: Application Provider"s parent company and/or group affiliates; the company whose mobile application you utilized to provide the User Data and information, Your insurance carrier, a potential insurance carrier, or insurance carrier you file a claim with; individuals to which You consent or provide access to your information or device; or to other relevant third-party service providers, parent companies and/or group affiliates to those entities listed above or others that are assisting in the provision of this Licensed Product (collectively, "Other Parties"). Additionally, Application Provider and Other Parties may use Your User Data, to improve its products or to provide services or technologies to You and for other products and services to which You consent; for commercial purposes; claims authentication and investigations; underwriting of insurance; risk mitigation; and fraud prevention However, Application Provider will not make any of Your User Data that is personal information public. You understand that by using the Licensed Product, You consent to the Application Provider using Your User Data and information previously provided in the Licensed Product prior to the last modified date of this Agreement in the manner set forth herein. You also understand that Application Provider and Other Parties may be required by law to disclose Your User Data or information regarding Your use of the Licensed Product and if required by law, Application Provider and Other Parties will comply with such requests. "
ChatGPT said:
This Consent to Use of Data clause contains broad data collection, usage, and transfer rights, effectively acting as a pour-over provision for user data. Here’s a breakdown of its implications:
Key Takeaways
1. Broad Rights Over User Data
The Application Provider reserves extensive rights to collect, use, modify, and distribute technical data and User Data (including personal information like name, email, and location).
These rights extend in perpetuity (meaning indefinitely, even if you stop using the app).
2. Pour-Over Effect for Data Transfers
The clause explicitly allows the transfer of User Data to third parties, which include:
Parent companies and affiliates
The company whose app you used
Insurance carriers (current or potential)
Other "relevant third-party service providers"
Since the definition of "Other Parties" includes vague categories (e.g., "affiliates" and "relevant service providers"), this can effectively allow data to be passed along without clear user consent beyond this agreement.
3. Potential Data Sale and Commercial Use
The Application Provider and Other Parties may use your data for:
Commercial purposes
Underwriting insurance and risk mitigation
Fraud prevention and claims authentication
This broad language could allow data monetization, even though it states "Application Provider will not make any of Your User Data that is personal information public." This does not prohibit selling or sharing personal data with third parties for profit.
4. Retroactive Consent
The agreement applies retroactively:
"You consent to the Application Provider using Your User Data and information previously provided in the Licensed Product prior to the last modified date of this Agreement."
This means past data you’ve already provided can be used under these updated terms, even if you originally agreed to different ones.
5. Legal Compliance Clause
The clause also states that user data may be disclosed if required by law, ensuring compliance with legal demands.
Potential Concerns & Recommendations
Vague Language & Third-Party Transfers
The definition of "Other Parties" is broad and undefined, allowing data to be shared beyond direct service providers.
If you're concerned about data privacy, check whether the company provides an opt-out mechanism or limits third-party sharing in its Privacy Policy.
Indefinite Data Usage
The "in perpetuity" clause suggests data can be used forever, even after you stop using the service.
Some jurisdictions (e.g., EU under GDPR or California under CCPA) require companies to allow data deletion. Check if this applies to you.
Retroactive Data Usage
Users may not have expected older data to be subject to these terms. If this was a policy change, the provider should have notified users and given an opt-out.
Final Thoughts
This clause acts as a pour-over provision, ensuring user data is continuously collected, stored, and transferred even outside the initial scope of use. It allows potential commercial exploitation and broad third-party sharing, which might include data sales without explicitly calling it that.
Would you like help drafting an opt-out request or understanding privacy rights under laws like GDPR or CCPA?