Active’s Stealth Auto-Renew
"My friend's cancer was getting worse so we had to act quickly to host a full 5k in 3 short months," wrote Sharon Akaberri (not her real name) to me. "I wanted to allow friends and family the ease of paying online and donating if they were out of town without having to mail anything in."
I found Ms. Akaberri, or she found me, when she went on our Reader Forum to complain about something happening to her as a result of her association with Active. She was a new forum registrant and we're shy about first-time forum users posting trouble with endemic triathlon vendors. So I removed the post from view, and sent her an email explaining our policy. She graciously apologized, but I was interested in her situation.
She was ambivalent about continuing her event into a second year, but wrote, "My friend's family wants to make it a legacy run to remember her by." She described to me her experiences with Active. Not positive, from her point of view. That's when she found out she entered a 3-year contract when she signed her race up with Active last year.
"When you signed up to use ACTIVE… you signed a 3-year exclusive service agreement with ACTIVE," Ms. Akaberri's Active Network account rep told her after Ms. Akaberri informed Active that she was moving her event to another registration company. "This prohibits the use of any other registration provider," the rep continued. "You and your organization are responsible for following the terms of contract… I can provide you with the agreement you signed if you have any questions about it."
Nevertheless, the account rep was, "willing to work with you so that no further legal action will be required," and, "You did sign the contract and legally this action must be done, but I would really love to help you and your cause because I've been affected to similar circumstances."
"I want to be clear about this," I asked Ms. Akaberri. "They didn't pitch you 1- and 3-year deals, with the advantage of a 3-year deal, and you then chose a 3-year deal? The very first time you saw it was a 3-year deal is when it was brought to your attention that this is a 3-year deal?"
She showed me the contract she signed, such signature a mouse click. She felt she, "got tricked into the contract," when initially setting up her race with Active. The contract was forwarded to her by her account rep and, yes, there it was, down there in the tall weeds, still, the term was for 3 years, with an automatic renewal each year.
It didn't seem right that something as impacting as the start and end times of the agreement would be buried in the boilerplate, with no mention or prompt during the process that the term survived and extended past the completion of the event. I decided to see if I could create the experience myself and discover where Ms. Akaberri should and could have known or avoided her predicament.
I went to the Active Network website and navigated the process to begin using Active as a registration vendor. One is invited into a discussion via email with an Active account rep. Within minutes of clicking the link inviting an Active account rep to contact me, an email landed in my in box.
"I am following up on your request for more information regarding online registration and other web based solutions," said the account rep. "I would love to speak with you about your event and the services we offer at Active Network." I was asked about the date of the event and the number of participants.
"First thing, I'm interested in the business terms Active offers," I replied. "I can't find a list of those terms. Rates charged, when payments are tendered, term of agreement. Can you send across?"
He got right back to me, with pricing, and then, "If you would like to move forward with the registration process, just let me know and I will send you the setup link!"
I was also given the link to the Terms of use.
I wrote back, and said that the terms link, "…seemed to me to be more relevant to end-users who come to Active.com, rather than to event directors… What I'm not reading in that document is stuff that is more related to event directors, such as, what will you and won't you do with the email addresses of my customers? This is one of two things I'd like you to address. Second, does "10. Termination," govern the agreement between Active and my race? Is that the only termination clause I have to worry about?"
That was the last email exchange. The account rep and I had traded 3 emails each, started first thing in the morning (I'm an early riser), yet by 7:30am we were apparently done. My last email to him was the last correspondence in either direction with the representative.
But I did find my way to at least one event director's registration set-up, using an old Active account I've had for at least a decade. After filling in a number of online forms about the race I did eventually find what I was looking for. The above image is the agreement that my account rep didn't know about, didn't think of, or omitted to tell me about. The "signature" Ms. Akaberri's account rep referred to are the initials and "I agree" box at the bottom of the scrolling agreement.
As you scroll down in the agreement you'll find Section 7: Term and Termination. It's in between Indemnification and Miscellaneous. You can see this in the screen shot below, and you'll read that Active is the registration company for this race for 3 years and the only thing that can keep Active from enforcing this is if it is in material breach, and the breach isn't cured within 30 days of your notifying Active of said breach. Ms. Akaberri was forwarded her signed contract of last year and it seems close to or identical to the contract Active is using now, at least in the portal I accessed.
Penni Bengston is an RD who uses Active for her races. She's smart. She's been around. She's involved in a leadership role helping other race directors. I asked her what her contractual term was with Active.
"You used to have to do a contract with Active that said they were the exclusive on-line registration company and the agreement was good for a 1-year term," she replied. "With Activeworks there is no 'contract' like that. By creating an account you agree to the basic terms of use." She referred me to the same terms that the Active rep showed me — the terms that I felt were not applicable to RDs.
In the Activeworks terms of use, before entering the portal, we read, "you may use the Materials solely for your personal, non-commercial use." (3. Ownership and Restrictions on Use.) That doesn't sound like an agreement between Active and a race director. These terms of use also allow Active, "to immediately terminate… your access to and use of the Site or any portion thereof, at any time and for any reason, with or without cause." Is this something any RD should agree to? Clearly this is not the agreement meant for RDs contracting for online registration. These appear to me clearly to be terms for non-commercial visitors who come to avail themselves of Active's content.
I pressed Ms. Bengston, and told her I don't think the general website terms of use was the only document RDs are bound by. But she insists: "The way the new endurance system works is event-by-event. There is no annual contract or client services agreement like they used to do under the old registration system. Nothing like that is presented in the new registration tool."
Neither of us would give in. I pressed back: "I promise you that you have SOME sort of agreement. Fees. Information collection. Disclaimer of warranty. Indemnification. Stuff like that."
I asked Sam Renouf, Active Network's General Manager, Sports & Consumer. He confirmed that the agreement above, Section 7, 3-year, auto-renew, is in force for every race, regardless of portal.
"This isn’t new," he said. "It's been the case for at least 4 or 5 years. We rely on our clients to read the contracts," and everyone must sign in addition to click.
I asked Mr. Renouf about the sales agent I spoke to. He told me it was an aberration. "Absolutely we would never expect that to happen and are reviewing why that happened. It's our policy to be up front, provide correct info wherever, whenever asked." This includes, he assured me, the provision of a contract in advance of the transaction if asked for by the prospective client.
Mind, whether Ms. Bengston is right or not, she is still a fan of Active. "I do think that Active is one of the most expensive tools to use, but then they provide a lot more services too."
I hear this a lot. Active is not cheap, but it is also not a stripped down registration engine. There are a lot of services and benefits and a lot of RDs do like them.
I recently asked 40 race directors about their online registration vendors. There were all over the map as to whom they used, and in total there were 15 registration companies in use in total by these 40. The registration company with the largest single number of customers among those I polled was, as you might guess, Active Network, with 12 users. Of these 12 RDs who use Active, only 1 said he's looking for an alternative to Active. Five of the 12 Active users said, "I use Active, always have, and I'm happy." Four more said, "I used Active, I moved away, then I returned to Active."
Active is strong on service and many RDs remain fans of Active. Still, I asked these RDs, "What is the term of your agreement with your registration company for your race(s)?
Of the 12, only a single RD said he's in a 3-year agreement with Active. One said it's a 2-year deal and that's possible — nothing would stop Active from negotiating a 1-off deal with a large race.
But 7 of the 12 said they don't know the term or they don't think there is an agreement. The rest said they are in a 1-year term.
It seems clear many or most smaller event directors are naive to the 3-year term, and the auto-renewal, embedded in the contract when signing up with Active for registration.
