SodaHead is a social media and polling site that recently disabled all user accounts.  Apparently they want to do polling, but only anonymously.  Users are livid, because SodaHead users are anonymous and it is difficult to track down friends.

Is the "Terms of Use" agreement a contract?  As you probably know, a contract requires an offer, acceptance, and consideration (an exchange of value -- not necessarily money).  SodaHead offers the Terms of Use by publishing the text. Users accept the Terms of Use when they create accounts. So far, we have an offer and we have acceptance.

What follows is my commentary on the Terms of Use, not the actual document.  See http://www.sodahead.com/about-us/terms for more information.

The Terms of Use describes an ongoing exchange of value.  Users interact with the site, contributing content that the site uses to attract more users, with banner ads and clicks generating revenue for the site owner.  Users agree to grant indemnification, permission to publish, and to use the site in compliance with the Code of Conduct, which basically identifies standards of behavior that are necessary to preserve the value of the site.

All of this is reasonable IF SodaHead is an ongoing concern, and lives up to its end of the bargain.  When users leave, they are either terminated "for cause" by violating the Code of Conduct, or they voluntarily quit.  In either case, it is reasonable for SodaHead to expect indeminification and permission to continue in perpetuity.  You never know when someone is going to file a lawsuit, armed with an old printout from SodaHead.

But what happens when SodaHead does NOT live up to it's end of the bargain?  At this very moment, even with all accounts disabled, SodaHead's Terms of Use STILL offers a service that the site no longer provides!

Except from SodaHead Terms of Use, 6/8/2015 22:00 CST

"SodaHead hereby grants you permission to use the Website provided: (i) you not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; and (ii) you will otherwise comply with the terms and conditions of these Terms of Use.

When does the contract end?  There is no expiration date, so in theory it ends whenever either party says it does.  SodaHead tries some fancy dancing by linking user rights to the transient concept of "Membership".  Of course, SodaHead's rights remain absolute and permanent.  If the user's "Membership" ends for whatever reason, the indemnification/permission obligations continue forever.  At least in theory.  All of this makes sense if SodaHead lives up to its end of the bargain, and users either breach the agreement or opt out.

There are all sorts of disclaimers, that would seemingly prevent a user from demanding all of their contributions be removed from the site.  And in the context for which the agreement was written, those are reasonable.  BUT WHAT HAPPENS WHEN SODAHEAD UNILATERALLY STOPS PROVIDING ANYTHING OF VALUE TO THE USER? 

I am not a lawyer.  But I know that a contract can be terminated for non-performance.  To me, it seems that users might reasonably cancel not just their "Membership", but the ENTIRE "Terms of Use" contract -- indemnification, permission, waivers, and all.  At this point, SodaHead is NOT allowing users to use the site for it's intended purpose.  There is no longer an "exchange of value", and the user is not receiving what he bargained for.

My personal opinion is that SodaHead's actions make it possible to cancel their contract. This particular division of Prodege seems to be dying, and the loss of SodaHead.com was probably inevitable.  The company had the right to cancel the contract at will, and there was no notice period required.  However, the failure to provide ANY notification is sleazy, even if it proves to be legal. 

Remember: I am not a lawyer.  This is not legal advice.