ApplyYourself: in order to send a letter of reference to a university admissions committee, you have to sign our crazy EULA

Last night I got an email from a company called "ApplyYourself" informing me that one of my former students was applying to grad school, and could I go to their site and fill in a letter of reference for her? ApplyYourself appears to be a web-based reference-letter-management system that contracts with a number of universities, which seems like a sensible enough idea -- I've been on all three sides of the reference-letter headache (writing them, evaluating them, and soliciting them) and that's definitely a part of the process that could stand to have some automation.

And ApplyYourself did a perfectly fine job of managing this process, except for one gigantic turd in the punchbowl: in order to leave a letter of recommendation for my former student, I had to enter into an end user license agreement in which I waived a bunch of my rights:

Limitation of Liability. In no event will ApplyYourself or other third parties mentioned at this site be liable for any damages whatsoever (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of use of this site, any web sites linked to this site, or the materials or information contained at any or all such sites. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusion may not apply to you.
This is the standard ridiculous EULA junk (we can be as negligent as we want and you can't ever sue us, no matter what), so after I sent in the letter for my student, I immediately fired off an email to the address listed, explaining that I didn't agree to this non-negotiated "agreement" and closing with my standard anti-EULA:
READ CAREFULLY. By reading this email, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
Since then, I've been having an hilarious, robotic exchange with some nameless person(s) at the other end of the email bank, where they keep sending me this:
Thanks for your message. I apologize for the inconvenience you experienced. We are not able to release you from the term and conditions via this email.

The purpose of the Terms is to protect you, the institution and ApplyYourself (as their partner) in the event a user inappropriately uses the Recommendation form. If you are using the form as intended, none of the offending items are relevant. Many websites that collect important information have these types of statements primarily as a protection of their users, such as yourself. Our intent is not to make you uncomfortable and we tried to reflect that in the language that is being used.

And I keep answering back, "No, you don't understand -- you've already released me, just by reading my email! And that's also for your protection as well as mine, OK?"

I know it's tilting at windmills, but this is insanity. It's a matter of principle. You shouldn't have to agree to three screens' worth of legal junk in order to send a letter of reference to a university. Link


  1. EULAs like that deserve a new twist on the old saying: “couldn’t a’, shouldn’t a’, wouldn’t a’, but . . . ”

    They are so silly it is not practical to take them seriously, but if everyone were to, Internet commerce collapse.

  2. It is tilting at windmills, but that makes for a good story I hear. I think some Spanish dude already did that.

    How do you know when you’ve won?

  3. I keep wanting to use that anti-EULA for something, but never quite get around to it. Even if the response is from some boiler-drone, its still worth the chuckle!

  4. Wouldn’t it be more productive to refuse to use the service and tell the perpetrators why? A person who uses the service and then whines about it is just a whiner. Nobody worries much about whiners.

  5. The right way to go about this is to mail-merge off a letter to the presidents of the top-several university’s by enrollment explaining asking that they boycott the system until the offending terms are removed. The most important part is to put a cc of each letter in the mail to ApplyYourself’s president.

    The problem with the “by reading this mail…” sig, as clever as it is, doesn’t leave the reader with the opportunity to un-read. Since you had the opportunity to refrain from clicking “I agree” on the site, there’s a big difference.

  6. Cory, these disclaimers and EULA’s are meaningless until they (or you) try to get the courts to enforce or uphold the terms. No court would accept that your email disclaimer is binding, whereas a court might would accept that you agreed to the terms of the website when you submitted the letter of reference.

  7. C.D. said, “…I’ve been having an hilarious, robotic exchange with some nameless person(s)”

    The “person/s” probably couldn’t pass a Turing test. Loved C.D’s return mail. But as my attorney has said, simply opening an email does not obligate anyone to anything (unless you’ve just opened a nasty little letter from a lawyer, sent via registered mail or served in person. Whereas sending the email in the first place shows that one was aware of the “legal” issues to begin with. My PC needs a software lawyer to advise me on pointless Metaverse legal-speak.

  8. I’m not sure this online EULA is that over-reaching relative to traditional references.

    At my (Canadian) school all references needed to be accompanied by a standard waiver of liability form. Provincial privacy acts prohibit divulging any student performance info without clear authorization. Due to pushback we could usually get away with a clearly worded email authorizing someone to provide an honest reference.

    I imagine they are just protecting themselves against sue-happy Americans (I didn’t get into Harvard because my reference forgot to hit save, I’m suing you for crappy web design). If you read the text of the EULA, it’s surprisingly benign. They are not even taking ownership of your reference.

    Although the reply still is fun.

  9. Reminds me of ridiculous interchange I had with bot/human via flickrmail a while back.

    Didn’t ever hear back from them about that last bit until yesterday when they robotically requested the use of another photo, bleh.

  10. This whole EULA/Anti-EULA bit reminds me of “The Big Hit” from John Woo where they set up phone trace busters, and the trace-buster-buster, trace-buster-buster-buster, ad nauseum.

    Cory what happens if the next email includes a EULA at the bottom which states “Just by receiving this email you agree to all of the original terms set forth in the EULA. In addition you agree to come over and wash my dog.” Are you going to go over and wash the dog?

    I understand that part of the desire of the Anti-EULA is to force the issue of how ridiculous EULAs are, but I don’t necessarily see this as being the best way.

  11. The reason they have such a EULA is for the irrational people, such as someone who would sue McDonald’s because their coffee is too hot.

    If you read the legalese, it says that the site cannot directly incur damages to you, which is roughly equivalent to what the law says but is a clarification that could help protect from a lawsuit.

    I’m more miffed by the tendency of every service-style website to want me to have a specific login for that site, and to send me their “newsletter,” which is usually a bunch of spammy business monologue and a few links to 0.25% off coupons.

  12. Technical Writing Geek, no one has ever sued McDonald’s because their coffee is too hot. The elderly woman in that case suffered severe burns directly caused by McDonald’s negligence.

    The idea that corporations are benign actors who only want what is best for everyone is nuts, but thanks for drinking the Kool-Aide.

  13. What a great read.

    I’m sorry about your troubles, but reading about them is quite entertaining.

    I also would love to use that anti-EULA some time.

  14. Noen is right about the coffee incident. McDonalds was a malicious actor in that case. They just have better PR than a lone, 3rd-degree-burned, hospitalized old lady.

  15. Maurice, although The Big Hit was a damned fun film, it was not directly by John Woo — Kirk Wong (of Organized Crime and Triad Bureau fame) was behind it.

  16. Heh. I’ve exchanged emails with you, Cory, and since your anti-EULA is your sig it provided me with significant amusement.

    I suppose you wouldn’t have an issue with me appending that to some of my email accounts as long as I attribute it to you?

  17. As much as the EULAs can be annoying, I’m not sure your windmill-tinting stunts would be greatly appreciated by your former student – who still needs a reference. I’ve done an application through ApplyYourself a couple of years ago and my application (for an education program that I got accepted to) nearly didn’t make it on time because my referees didn’t get back to the website by the deadline. I had to get someone else to cover for one referee at the last minute. The interface wasn’t the friendliest though – I think some of them filled it halfway thinking it was done but it wasn’t actually sent to my education program group.

  18. While I agree that most EULA’s are ridiculous, theirs looks reasonable to me. All it does is protect the service from web outages, loss of data, content provided by the user and any repercussions from using their service beyond their scope. This includes some simple understandable circumstances such as…

    -“You can’t sue us if you don’t get a job.”

    -“The content you provide doesn’t represent us in any way… those are your words… not ours…”

    -“We obviously want our site to be up at all times to do good business but we’re not liable if our site is down for maintenance, acts of god, problems with our ISP’s equipment, etc. when a prospective employer was trying to access your recommendation.”

    They don’t make any attempt to take ownership of the material you submit and they even say that their conditions don’t supersede governing laws. Although it would be nice if they guaranteed not to sell your info to marketers.

    Unfortunately, companies who provide a legitimate and useful service like this need to protect themselves from being put out of business by fighting frivolous lawsuits. All things considered, I think they could beef it up a little.

    So ya know… you don’t have to go from 0 to Fahk! in 0.4 seconds every time you see the word “EULA”.

  19. Two thoughts. First, I am curious- is it the mere presence of a EULA, or its wording, that is upsetting?

    Second, if a company can say that an EULA takes effect as soon as I break a plastic seal on a product that I have bought, than I don’t see why Cory can’t attach an EULA to his emails, that takes effect as soon as the email is read.

    Someone at some point is going to have to explain the whole EULA thing to me, as IAdefinitelyNAL.

  20. lk hw dhmnzng ppl r bng. f thr wr n “blr drns” r “ml bts” t nwsr yr nspd mls whr wld y b bl t gt nw rcrts fr yr “cpyfght”?

  21. ApplyYourself manages entire college applications, not just the reference letters.

    I recently submitted grad school apps to a half dozen schools, which used a total of five different application website systems.

    ApplyYourself was the most authoritarian and convoluded by a significant margin.

  22. This is a little off-topic, but has anyone else round here received phone messages with similar passive user (listener) agreements? I’ve heard a couple that said, “Please hang up now if you are not John Blahblah. By listening to the rest of this message, you certify that you are John Blahblah. This call is from Whatever Collection agency….”

    Poor John Blahblah doesn’t want the fact of his delinquent payments broadcast to wrong numbers in his community. Our privacy is supposed to depend on the goodwill of strangers to honor the disclaimer and hang up, instead of the company to keep that info private? I’m not John Blahblah, and I listened long enough to hear what it was about. Why would I not listen to a whole message left on my voicemail? Why would a company that valued privacy dump that kind of info with an obviously useless disclaimer?

    Do legit companies give out private embarassing info in phone messages like that, or is this more likely a phone phishing scam? Somebody put Cory on the case!

  23. #28 said, “This is a little off-topic, but has anyone else round here received phone messages ..”

    Not for me it isn’t. JUST today I got a call from the local utility, after I finally sent them an email. This is after two weeks of them calling my cell with that robotic message. We have resolved the issue, I hope.

  24. ADAMDMA, I don’t think anybody’s being particularly dehumanizing, a bot’s a bot, not a person, calling somebody who mails out boilerplate all day a drone might be insulting, might be sympathetic, in a lot of cases this is largely also just an automated system responding with a human maybe sorting the messages to ‘appropriate’ boilerplate responses, given the irrelevance of some of the replies I’ve received, I’d guess in some cases this sorting is also automated.

  25. I think I would have provided your student your highly desirous letter of recommendation by way of a crypto-signed email sent directly to him. I would then send the university and the service a copy of your BB commentary regarding the EULA. I would like to think that I would not have entered into the demesne of the EULA by clicking through that sucker, but, you know, the occasion hasn’t yet come up. This feels a bit like Kobyashi Maru, a lousy situation to find oneself in. Your email amounts to saying “whoops, I changed my mind!” but on the whole I think you handled the situation pretty well.

    There are times when you have to pretend to be a camera for the old Batman television series when aiming at windmills.

    The employment biz has become way too complicated from one end to the other with overbearing web automation.

  26. As a European, I am perhaps even more appalled by the growing number of EULA’s US companies are bombarding us with nowadays, because over here we’re much less accustomed to legal hassle. But I’m not surprised that this is happening. The whole legal system in the US provokes this kind of action.
    #24 is right saying “… companies who provide a […] service like this need to protect themselves from being put out of business by fighting frivolous lawsuits.”
    To me this ever growing legal thing in the US is a clear case of the prisoners dilemma. As in any prisoners dilemma situation, the only way out is to change the system, by no longer rewarding uncooperative behavior. This is of course not an option that is available to an individual prisoner (or to an individual company making EULA’s).

  27. Granted the ‘Apply Yourself’ EULA is an irritation too far. But couldn’t you write a letter (on paper, by post) for your former student? The AY ‘Contact’ page does give a postal address.

    This is a way around the EULA, and it allows you to answer all the points (in your own form, not theirs) whilst at the same time adding your own discreet EULA at the bottom (including the fact that you are regretfully only able to offer references by paper mail).

    If that shafts your former student, sorry but it’s not you that’s shafting them.

  28. Having been on the student end (by proxy — my fiance is in a PhD program) of ApplyYourself’s convoluted applications process, I can’t say that this surprises me in the least. Their site layout is unfriendly, and the actual application process is even more so. Applying to more than one school? Be prepared to fill out the application again for every single one; there is no saved form (or at least there wasn’t one two years ago.) Then, there’s the time issue; as he put it, “…I have now spent as much time on the application process for various PhD programs as I would on the average class over the course of a semester.” Anyone who has been in a Masters-level course knows just how little time grad students actually have for things that aren’t related to academic pursuits, and that is most likely true of both sciences and liberal arts programs. The fees are insane for the amount of work that the students have to put in, and both ApplyYourself and the other application service that he dealt with seem to like sitting on applications until they’ve reached a certain level of ripeness. As I put it in a blog entry, if they received the applications in the form of milk, they would be submitted to the universities in the form of blue cheese.

    After observing the process in action, I’m convinces of two things: one, that the people writing the code for the website haven’t experienced the rigors of academia past the baccalaureate level, else they’d know just how much time they’re sucking away from people who desperately need to eat and sleep. Two, that the people running the company have never been in a post-grad program other than an MBA course. (“Hey, we could do this in three nights a week; what are these kids whining about?”) Couple this with slick salespeople pitching their service to PHBs in administration, who don’t solicit any input from the departments or students, and you have a recipe for frustration all around.

    All that being said, I think that Mr. Doctorow’s response to ApplyYourself’s attempt to EULA-gise him is both hilarious and appropriate. I don’t know if any of the people who wrote letters of reference for my fiance had to go through that little wrinkle, but I know that a couple of them almost missed the deadline because they couldn’t get the site to save the letters.

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