Breach of Contract Claims: GitHub's Violation of Privacy Policy and Terms of Service

VIII. CLAIMS FOR RELIEF

COUNT VIII

BREACH OF CONTRACT

VIOLATION OF GITHUB PRIVACY POLICY and TERMS OF SERVICE

Cal. Bus. & Prof. Code § 22575–22579; Cal. Civ. Code § 1798.150; and Common Law

(Against GitHub)

211. Plaintiffs and the Class hereby repeat and incorporate by reference each preceding and succeeding paragraph as though fully set forth herein.

212. Plaintiffs and the Class are GitHub users who have accepted GitHub’s Terms of Service. As a result, Plaintiffs and the Class have formed a contract, the terms of which are set forth in GitHub’s Terms of Service—including the additional GitHub Copilot Terms from GitHub Terms for Additional Products and Features.

213. Plaintiffs and the Class are GitHub users who have accepted GitHub’s Privacy Statement. As a result, Plaintiffs and the Class have formed a contract.

214. GitHub’s Privacy Statement, Terms of Service, and GitHub Copilot Terms share definitions and refer to each other. As such, they are collectively referred to herein as “GitHub’s Policies” unless a distinction is necessary and are attached as Exhibit 1.

215. Plaintiffs and the Class have performed each of the conditions, covenants, and obligations imposed on them by the terms of GitHub’s Policies.

216. GitHub has substantially and materially breached GitHub’s Policies in the following ways:

a. Sharing Plaintiffs’ and the Class’s personal data with unauthorized third parties in violation of the GitHub Privacy Statement;

b. Selling and distributing Plaintiffs’ and the Class’s personal data in contravention of the GitHub Policies;

c. Use of Plaintiffs’ and the Class’s personal data after the GitHub Privacy Statement explicitly claims it will be deleted;

d. Use and distribution of Plaintiffs’ and the Class’s personal data outside the limitations set forth in the GitHub Privacy Statement.

217. Plaintiffs and the Class have suffered monetary damages as a result of GitHub’s conduct.

218. GitHub’s conduct is causing and, unless enjoined and restrained by this Court, will continue to cause Plaintiffs and the Class great and irreparable injury that cannot fully be compensated or measured in money.

219. As a direct and proximate result of these material breaches by GitHub, Plaintiffs and the Class are entitled to an injunction requiring GitHub to comply with all the terms of the GitHub Policies.

220. Plaintiffs and the Class are further entitled to recover from GitHub the damages Plaintiffs and the Class sustained—including consequential damages—for Plaintiffs’ and the Class’s costs in enforcing GitHub’s Policies. Plaintiffs and the Class are also entitled to recover as restitution from GitHub for any unjust enrichment, including gains, profits, and advantages that it has obtained as a result of its breaches of the GitHub Policies.