When I read David Pogue‘s recent article about Virgin Mobile‘s new MiFi device and BroadBand2Go service, it struck me that this could be the beginning of a sea change in mobile data and internet pricing. To sum up, the MiFi costs $150, and for $40 per month you receive unlimited internet service on Sprint’s 3G network, with no contract or minimum usage period (or you can purchase 100 MB of service usable over the course of 10 days for $10 at a shot). The fact that there is no contract is a serious change from other cell-based data plans, and the cost is less-than or equal to what most home broadband service costs. The difference with the MiFi is that it’s about the size of a credit card, can be taken with you wherever you go, and can be used for up to five devices at once.

Considering this new development, I thought that going through the fine print on Virgin Mobile’s terms of service with regard to their services generally and BroadBand2Go specifically would be important, to make sure that this too-good-to-be-true product isn’t just that. BroadBand2Go has far more limited terms of service.

1. No Guarantee of Service. Much like Comcast, Virgin Mobile specifically disclaims any guarantee that its service will be available at any specific time or in any specific location. At least in this case, however, they are not directly providing the service; they are piggybacking off Sprint’s network, so technically Sprint would be responsible for the availability of the service, and would likely be able to claim force majeure for any claims of insufficient service.

2. Switching Service Plans. You may switch service plans at any time, and since there is no contract for the BroadBand2Go service, you could easily stop paying for the $40 monthly plan for a bit (if you were going to be out of the country for instance), and then buy a $10 chunk to tie you over until you want to restart the monthly plan. There seems to be no consequence for that action.

3. Monthly Charges Are Not Refundable. ‘Nuff said.

4. Data Restrictions. Among other things, you can’t use the MiFi for P2P file transfers or “other systems that drive continuous heavy traffic or data sessions,” or to tether your computer to the data network. Although the P2P restriction is frustrating (and likely a part of most other ISP terms of service), the real problem here is the restriction on tethering. Presumably these terms of service (which are effective as of May 12, 2010) simply haven’t been updated to include the purpose of the MiFi. That said, they are still the current terms of service posted on Virgin Mobile’s website, and therefore are the terms of service to which you are held until they are changed. So if you are considering getting a MiFi for the purpose of using the broadband with your computer, check to see if the terms of service have been updated.

5. No Content Replacement. In the event that you purchase digital content from Virgin Mobile or one of its business affiliates and you lose that content for whatever reason (device failure, device loss, etc.), Virgin Mobile may not replace it. So back it up.

6. Restrictions on Content. You are not allowed to transmit (via upload, download, post, publish, etc.) any content that is, among other things, libelous, defamatory, slanderous, obscene, pornographic, or otherwise objectionable. Now, while some of the prohibited content is actually understandably forbidden (such as potentially harmful or illegal speech, or speech not protected by the First Amendment, such as hate speech), it has been deemed acceptable by the courts to consume pornographic material that does not violate any other laws. Virgin Mobile prohibiting something that is otherwise lawful for a person to consume strikes me as very Apple-like in deciding what you can and cannot use your device for.

7. Restrictions on Content II. If Virgin Mobile does not like content you have downloaded through their service, they have the right to delete it. I don’t know what that implies in terms of their access to your various internet-accessing devices, but that is fairly troubling, and reminds me of the debacle surrounding Amazon’s removal of versions of 1984 from it’s Kindles in 2009.

8. Termination of BroadBand2Go Account. Although there is no contract for BoradBand2Go, if your account is inactive for a year it will expire, the service will be deactivated, and you will be assessed a termination fee of whatever balance you currently have in your account. This is non-refundable. If you want to use the service again after deactivation, you will need to reactivate the service. There is no indication as to whether there is a fee to reactivate an account.

The Virgin Mobile general terms of service also include standard contractual language involving limitations of liability, dispute resolution procedures, procedures for addressing disputed charges, and more. But those are not very surprising given how often they appear in major contracts of this sort. If you are concerned about those items or the privacy policy, you should read over them or talk to an attorney before signing up for the service.

If you need to contact Virgin Mobile, you can do so at:

Virgin Mobile USA, L.P., 10 Independence Blvd., Warren, NJ 07059

1-888-322-1122

Thanks for reading this week’s Fine Print Friday! Please pass it along to your friends or share it using the OnlyWire button below.

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2. Fine Print Friday: Comcast Cable
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I understand that this post’s title may seem strange, given my weekly post examining the fine print for major consumer services or products. That said, a recent post regarding the problems with fine print in software user agreements spurred this reaction from me, which is not at all inconsistent with my goals as an attorney focusing on contracts.

I understand well the frustration with not only the absurd volume or provisions in these things, but also the amazing laundry list of rights each of us gives up every time we agree to one of these contracts.

That said, there has been a small movement starting recently regarding the simplification of contracts, making them clear enough for the consumer to understand without the aid of multiple readings or an attorney. This has the effect of ensuring that the consumer understands what his or her rights and duties are, as well as actually making it more difficult for the consumer to litigate against it. That’s because the consumer no longer has the argument available that s/he did not understand what s/he was agreeing to. And if a consumer doesn’t bother to read a simple, one-page contract, then that is unreasonable neglect that may not be present in 25-page monstrosities.

It is not at all unreasonable that consumers should be able to demand this sort of clarity in their contracts. Nor is it unreasonable for corporations to simplify their contracts to make their customers and the public at large happy.

(Photo by Infrogmation - I particularly like the gorilla.)

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Yesterday, the Washington Post published an editorial regarding the current accusations being flung at incumbent Washington DC mayor Adrian M. Fenty, many of which have to do with allegations of rigged contracts. The contracts at issue mainly involve relatively small amounts of money for work on parks and recreation centers. The author picks up on an interesting contractual concept early in the editorial that is something with which we are all familiar, but very few of us could define: Undue Influence.

In contract law, undue influence is a concept that can be used by the non-influencing parties to void contracts in which they are involved. At its base, undue influence involves the concept of a person on one side of a deal using his or her power to force a person on the other to accept a contract. Typical situations in which undue influence appears include spouse-spouse, parent-child, priest-parishoner, lawyer-client, or doctor-patient, among others. In some cases, these involve fiduciary duties, while in others they may rely solely on the social power inherent in strong relationships. Whatever the situation, the party with less power can choose to void the contract based on undue influence, and undo as much of the transaction that has occurred since the contract was formed.

With regard to the Washington DC mayoral race, the potential for undue influence regards the fact that some of the contracts for parks and recreation centers went to friends of Mayor Fenty who work at firms that would undertake this work. There is no clear reason in articles detailing the controversy, however, that would give one reason to think undue influence is at work in this situation. From what I can tell, the friends of Mayor Fenty are simply friends who do not hold any extra power over him. That may mean that there is cronyism involved, but does not point to undue influence. For undue influence to be at work, those friends would need to hold some sort of actual power over Mayor Fenty, but that does not seem to be the case from the articles detailing the situation.

Undue influence can be a powerful tool for getting out of contracts that have been unfairly constructed, and should be considered in the case of any situation in which a person feels steamrolled by a person in a position of power over him or her. If you or someone you know thinks you may be in this sort of situation, please contact me to explore your options.

(Photo by humbertomoreno)

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Fine Print Friday is a weekly column where I examine and analyze Contracts that affect many of us in our daily lives. Each installment will point out a few interesting provisions the average reader may not have noticed.

Fine Print Friday: Comcast Cable

As by far the largest provider of digital media services in the country (including cable television, internet, and digital phone), Comcast has many Fine Print Friday readers as customers. Since we always just sign off on the agreement so we can watch our favorite shows and surf our favorite web sites, the question is: What did we agree to? This week’s Fine Print Friday will illuminate some of the more interesting provisions of your agreement with Comcast.

1. No Warranty. Comcast specifically does not guarantee that the equipment and services will: (1) Meet your requirements, (2) Provide uninterrupted use, (3) Operate as required, (4) Operate without delay, or (5) Operate without error. Nor do they guarantee that the communications will be transmitted in their proper format. So basically, if you want digital services you can rely on to work how you expected them to work, when you expected them to work, then Comcast can’t provide that to you. According to their limitation of warranties (section 10), what you are paying for each month is the possibility of having service that works as advertised, but they can’t promise anything.

2. Monitored Internet Use. By signing up with Comcast as your internet service provider, you are giving them the right to monitor your internet use, including your “email, newsgroups, chat, IP audio and video, and Web space content.” That’s right–Comcast can read your email. So much for privacy.

3. No Sharing. The use of Comcast’s services can only be by the customer and the members of the customer’s household. Unfortunately, that means that if you have guests who don’t live with you, they can’t watch your cable TV, use your internet, or make phone calls from your digital voice service. Rats.

4. Price Changes: Right off the bat (well, in the third paragraph), Comcast’s Agreement for Residential Services sets out that Comcast can change the price of their services at any point, and you have to agree to it in order to continue receiving your service. They will give you 30 days notice, and if you don’t want to pay the new price, then you need to cancel or they will automatically renew your agreement at the new price. This really isn’t anything new–credit card companies do this all the time. But it still strikes me as odd that in these contracts we are agreeing to let the other party change the fundamental terms of the agreement at any time, giving the consumers no recourse. Comcast’s argument is likely that it’s beneficial to consumers that they can then leave the arrangement at any time, unlike with cell phone contracts (like AT&T’s) that have service-contract lengths.

5. Throttling. Comcast can change the speed of your internet connection, making it faster or slower, at any time and without notice. I’m sure many of us have experienced this phenomenon when trying to download something large, and then watching the speed slow down to a crawl.

6. Access to Customer Equipment. Although most equipment for Comcast services is rented from Comcast by the customer, there may be times at which the customer can buy his or her own equipment to use, perhaps for the purpose of avoiding the monthly rental charge. If you purchase your own equipment, Comcast still has the “unrestricted right” to upgrade or change the firmware in your device whenever it wants to. Essentially, this means that they can alter how your equipment works, without giving you notice, and it can be done via your existing cable connection, so you can’t even stop them from coming in to do it.

7. Tampering with Devices. If you do anything to any of the Comcast equipment (cable box, modem, etc.) that the installation was specifically supposed to do, then Comcast can determine you were tampering, and fine you $500. Their justification for this is that it is “difficult if not impossible to calculate precisely the lost revenue” due to the tampering. To me, this sounds more like Comcast just doesn’t want to do the work to calculate the actual damages, and would rather set a price high enough to make it worth something to them. Clearly, if you tried to just download a recorded program from your cable box, it wouldn’t deprive Comcast of $500 worth of revenue. But they’ll charge you that much anyway, and you agreed to it in their contract.

8. Limited Liability. This is nothing new to large-scale contracts like this, but Comcast’s limitation of liability extends to all “acts, omissions, and negligence,” and only in cases of gross negligence or willful misconduct will they consider paying on damages. And even then, the most they will pay is $500 (which is their default charge for tampering, as noted above). This section also notes that internet customers may need to have their computers opened up by the technicians for installation purposes. Aside from disclaiming the voiding of any warranties for the computer due to opening it up, presumably if the technician breaks your computer while in there, Comcast still only needs to pay you $500…if they admit to any liability at all.

9. Disruption of Service. Much like A2 Hosting’s Uptime Guarantee, Comcast places significant limits on the amount of refunds you can get if your internet goes out and causes you a loss in business. You must report the outage within 60 days, and you are only granted a pro-rated credit for any outage lasting more than 24 consecutive hours, with that credit not exceeding the full monthly charge for the service. No extra damages are credited, and this credit is also limited by a force majeure clause. And, of course, this credit is at Comcast’s discretion–they are not required to give you anything.

The Comcast Subscriber Agreement for Residential Services is too long to continue to write about in a single post. I may come back to it and do a second part if necessary. This list, however, represents what are the most important provisions in the contract for customers to know about.

It’s not a good contract for the customers, and it’s a very good contract for Comcast. But if you want their services (and in many places you don’t have a choice, as they are essentially a monopoly), then you have to play by their rules. At least know you will know what you are getting into.

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Twitter recently added a new policy addressing possibilities for the Twitter accounts of deceased users. Since I recently went through the rest of Twitter’s policies for Fine Print Friday, I thought it would be a good idea to briefly lay out the important points in their new new policy…in case you die.

1. Accounts can be removed or left up, and Twitter can assist with a backup of the account for the family of the deceased.

2. Anyone who wants to either the account removed or backed up will need to contact Twitter with his/her name, address, and relation to the deceased, the account name, and proof of death via an obituary.

3. There is nothing in the policy explaining how Twitter determines that a person is actually a relative, and whether any double-checking is done to ensure there is no unauthorized deletion or copying of the account.

4. Relatives will not be allowed access to the account, or to any other personal (non-public) information associated with or stored in the account.

And that’s it. It’s pretty straightforward for now, although not all that helpful. I expect it will be updated in the near future, especially given the comparison of this policy to that of Facebook for the same situation. See this article from CNN for a brief rundown on the differences between Twitter and Facebook with regard to deceased users, which is worth a look.

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Paris Hilton was in the news again last week–this time because she is being sued by Hairtech International for not fulfilling her endorsement contract. As such a high-profile breach of contract situation, I thought I would use this opportunity to explore contract breaches, whether damages are appropriate, and what the result might be.

Here’s the basic background: Paris Hilton was paid around $3,500,000 (paid as royalties for expected profits over 3 years) to endorse and wear hair extensions by Hairtech. Among other things, they claim that she wore hair extensions by another company, failed to show up at a major industry function due to her being in jail at the time, and violated implied warranties in the contracts not to engage in the use of alcohol, drugs, or illegal activity.

(Download the Hairtech v Paris Hilton Complaint (PDF – 1.8 MB).)

Contract Breaches

As I have noted previously, a breach occurs when one party to a contract does not fulfill one or more material obligations of the agreement. Hairtech’s main claims regarding breach of the contracts involve the allegation that Hilton failed to wear its hair extensions per the agreement, and instead wore hair extensions by one of Hairtech’s competitors. (See pages 7 and 8 of the Complaint.) If the contracts were for exclusive use of Hairtech’s extensions by Hilton for the period of the contract, and that was the main thrust of Hairtech’s deal with Hilton, then that would very likely constitute a material breach. Basic breaches can be determined by deciding whether the spirit of the agreement was followed by a party. If not, then there may be a breach.

In this case, a cursory examination of the contracts shows that the main thrust of the agreement was for Paris Hilton to endorse the extensions through appearances in television commercials, printed advertising materials, and photo shoots, and more generally to associate Paris Hilton with Hairtech’s DreamCatchers line of hair extensions (as noted in the first contract’s Preamble, on page 14 of the Complaint). The contract does state (on page 17 of the Complaint) that Hilton would be unable to endorse products by direct competitors, but that does not seem to be at issue here.

Unfortunately, according to the first contract, Hairtech does not seem to have done anything requiring Paris Hilton to wear the extensions–just to endorse them and allow her face, name, and signature to be associated with them. (Their claims regarding her failure to show up at the launch party does seem substantiated, though, and Hairtech claimed $6.6 million of damages for that breach.)

Appropriateness of Damages

Generally, damages in contract law are thought of as compensation for a party that has been actually injured by another party’s failure to perform their contractual duties. So if you order a book from Amazon.com and send them the money for it and the book never arrives, Amazon has failed to perform its side of the contract, and you have been damaged by not having anything to show for your payment. If Amazon does not return the money, you have been damaged by them for the amount of the book.

The same principles apply in larger contract cases like this, but in this particular case, Hairtech is requesting punitive damages (i.e., punishment) and speculative damages. If we just analyzed it like the Amazon.com example above, then Hairtech could argue that they are owed the $3,500,000 they paid Paris Hilton for the endorsement because she didn’t do her job.  Hairtech’s main argument, however, is that it expected to make $35,000,000 from the Paris Hilton endorsement, and they have not made that money due to the alleged breaches. This is a harder argument to make, though, because Hairtech will need to be able to show (1) why they expected to make $35,000,000 in three years, (2) that $35,000,000 of income in three years was a reasonable expectation, and (3) that their failure to achieve that amount was due directly to Paris Hilton’s failure to perform her duties according to the contract.

Even if we assume that Hairtech can prove the first two items, it will still be extremely difficult to show that the failure to make $35,000,000 was due entirely to the acts or omissions of Paris Hilton, and that as assessment that large is reasonable given what she was actually paid. Since the damages resulting from a breach are meant mostly to ensure that the non-breaching party is made whole, Hairtech can really only expect to retrieve the $3.5 million in addition to any sales they can prove are the actual fault of Hilton’s actions. I believe a request for $35 million in this situation is ludicrous and that if any verdict or settlement is reached, it will be for an amount far less than that.

A Possible Conclusion

Given the facts, the allegations, and the contracts, I do not expect that Hairtech will come out of this situation with much of a damages award. The contracts are very clearly for the use of Paris Hilton’s likeness, not for the demand that she continually wear specific hair extensions for two years. Additionally, the claims that her use of drugs and alcohol damaged Hairtech’s sales is silly. First, if they did any sort of investigation before the agreement was made, they would know that she was already known for that sort of behavior. And second, the claim that there is an implied statement in the contracts banning her from those behaviors is ungrounded; there is no reason to think that a person’s use of alcohol or drugs would impact these contracts, especially when Hairtech knew about Hilton’s tendencies already.

I expect that if Hairtech can show that Hilton breached part of the contract by failing to appear for the launch party, then the most they can expect to recover will be a percentage of the $3.5 million she was paid for those services, along with any money Hairtech can prove was lost due to her absence at that single event. Even if they get everything they ask for on that count, it would be only $6.63 million–far short of the $35 million requested.

(Photo by Alex CD)

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Fine Print Friday is a weekly column where I examine and analyze Contracts that affect many of us in our daily lives. Each installment will point out a few interesting provisions the average reader may not have noticed.

Fine Print Friday: Netflix Watch Instantly

Netflix made headlines this week when it announced that it made a deal with Epix (a pay-TV service that is a joint venture between MGM, Lionsgate and Viacom Inc.’s Paramount) to stream movies from those studios, greatly increasing the size of their Watch Instantly library. This is great news for Netflix subscribers (including me), and likely means that Netflix will have a lot of new subscribers in the coming months. This development makes Netflix’s Watch Instantly policies ripe for Fine Print Friday. (Note: Using Netflix’s Instant Watch requires adhering to the general Terms of Use as well.)

So what have all Netflix users agreed to that they didn’t know about?

1. Software License. Netflix users are allowed to make one backup copy of the software, and can install it on up to six computers in their household.

2. Consent to Use of Data. The software you use to access Netflix may provide Netflix with information about the device with which you access Netflix, including information that identifies your particular device (computer, Playstation 3, Xbox, Wii, etc.), identifies your operating system, amount of available storage space, internet connectivity, and your interaction with the software. This all seems to be for the purposes of allowing the software to efficiently provide you with the Watch Instantly content.

3. Duties Surviving Termination. Even if the agreement with Netflix ends, the user is still bound by the confidentiality, proprietary rights, and nondisclosure provisions in the Terms of Use. Although the provisions that related to intellectual property make sense in this context (because intellectual property law covers those issues anyway), extending other provisions past the termination of a contract seems unfair at best, and potentially unenforceable. But it’s usually good practice to assume that any term in a contract that you willingly sign is going to be enforceable.

4. iPhone, iPod, and iPad Users. If for any reason Netflix’s software does not work, neither Apple nor Netflix is responsible for the lack of functionality, or any other problems the software might cause.

5. Sharing of Personal Information. The Privacy Policy suggests that users’ personal information may be given to parties affiliated with Netflix. Aggregated information may be provided to partners, advertisers, or third parties, and Netflix may provide anonymous information about movie ratings and movies watched to third parties. You can opt out of this information sharing by managing your Email Preferences.

All in all, this is a pretty typical set of end-user agreements, and there is not much to be concerned about. You can control Netflix’s sharing of your information for the most part, and there isn’t much that is shocking in terms of the user’s obligations or assumed permissions, and various terms can be altered simply by changing the level of your subscription level. This is a good set of contracts, and as it currently stands, there is no reason to be concerned about any of it.

If you do find that you are concerned with any of the Privacy Policy, you can contact Netflix Customer Service by emailing privacy@netflix.com. Their street address is 100 Winchester Circle, Los Gatos, CA 95032, Attention: General Counsel.

Thanks for reading this week’s Fine Print Friday. Please let me know if you have requests for future editions.

If you need to contact Netflix regarding these policies or anything else, you can do so in a number of ways here.

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One of the things that makes contracts so fun for practitioners (and so bothersome for users) is that once you’ve gone through all the work of getting a contract set up just the right way, it can still get all messed up!

Although I have already briefly addressed some common ways to get out of a contract, I haven’t touched on any of the more obscure methods for avoiding contractual obligations. So today I will be briefly exploring the concept of force majeure, and its related concept, Acts of God.

Force majeure is an excuse for non-performance of a contract, and generally encompasses circumstances beyond the control of the parties that keep one or more of them from performing their duties. Some typical examples of force majeure circumstances are war, labor union strikes, riots, crimes, or Acts of God. For instance, there is currently a drought in Russia that is causing wheat shortages. Consequently, Russia is canceling its wheat exporting contracts on the basis of force majeure, due to their worst drought in 130 years, which is an Act of God.

Generally, though, force majeure is not premised on Acts of God (although it is fun to think about God interposing himself in our contractual relationships). Recently, Southwest Airlines got itself a bit of press for revising its force majeure clause for its Contract of Carriage. (For more on contracts of carriage, check out a past post on Delta Airlines.) It initially included “mechanical difficulties,” which many people scoffed at, given that the proper functioning of their planes is directly within their control. Since then, Southwest has clarified that they meant mechanical difficulties outside their control, which would be congruent with force majeure. They have also revised their definition in their updated Contract of Carriage, which is a very good example of a force majeure clause:

Force Majeure Event means any event outside of Carrier’s control, including, without limitation, acts of God, meteorological events, such as storms, rain, wind, fire, fog, flooding, earthquakes, haze, or volcanic eruption. It also includes, without limitation, government action, disturbances or potentially volatile international conditions, civil commotions, riots, embargoes, wars, or hostilities, whether actual, threatened, or reported, strikes, work stoppage, slowdown, lockout or any other labor related dispute involving or affecting Carrier’s service, mechanical difficulties by entities other than Carrier, Air Traffic Control, the inability to obtain fuel, airport gates, labor, or landing facilities for the flight in question or any fact not reasonably foreseen, anticipated or predicted by Carrier.

But as is the question with any contract concept explained on this site, the real question is: Why should you care?

Because force majeure clauses allow for nonperformance, you should pay particular attention to what is included. The reason people were so concerned with Southwest’s initial revision is that it made it seem that if Southwest had a mechanical issue of its own, that would excuse it from honoring its contract (i.e., its ticket) with the passenger. That’s a pretty easy way out of a contract once the money has been paid.

So start looking for force majeure or Acts of God clauses in the contracts before you sign them. They are easy methods for getting out of a contract, and you should be sure that you think they are reasonable before signing.

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Fine Print Friday is a weekly column where I examine and analyze Contracts that affect many of us in our daily lives. Each installment will point out a few interesting provisions the average reader may not have noticed.

Fine Print Friday: KinderCare Learning Centers Enrollment Agreement

KinderCare (run by the Knowledge Learning Corporation) is the largest child care provider in the United States, with more than 1,900 early childhood community education centers spread throughout 39 states and the District of Columbia. Since over 200,000 children are enrolled at KinderCare locations throughout the country, I thought it would make sense to look at the agreements made by the parents of those children, which are required for enrollment. Here are some points of interest scattered throughout the KinderCare Enrollment Agreement. (PDF)

1. Medical Policies. If your child becomes ill at a KinderCare center, the staff will let you know and you must pick up the child no later than one hour after being contacted. If the child is infected with a contagious disease, s/he will not be allowed back without a physician’s note indicating that s/he is no longer contagious. If there is a medical emergency and the parent/guardian cannot be reached, KinderCare is authorized to take emergency measures, and requested religious exemptions will only be granted if authorized by state child care licensing authorities.

2. Fees. Tuition and fees are set by each individual center, and are assessed weekly or monthly. KinderCare does not give any tuition breaks or refunds due to holiday closures, closures due to severe weather, or any other scheduled or unscheduled closures. Yikes. Additionally, tuition will not be pro-rated and all tuition is due in advance of service. This is in addition to an annual $100 registration fee that is non-refundable, and which is re-assessed every time a child re-enrolls after dropping out, even if it takes place within the same year. Two weeks’ notice must be given before terminating the service, and if it is not given, KinderCare will assess the full amount for two weeks’ tuition. Finally, if there is a credit (prepay) balance of less than $10 on your account, KinderCare will not send it back to you unless you request it in writing within 90 days after termination of services. Ick.

3. Pick Up. Late fees are assessed for each child left past closing time, and if a child is left at a center for more than 30 minutes, KinderCare’s staff can release the child into the care of child protective services. That said, KinderCare’s policy for ensuring only authorized pick up of children is very strong, and only allows unlisted individuals to pick up children if either (a) there has been prior written notice given by the parent, or (b) the parent calls in to authorize the unlisted individual and answers the security questions listed on the Enrollment Agreement.

4. Safety. No guarantees of safety are made. None. In fact, the safety of the children is not even addressed in the Enrollment Agreement aside from the medical information and emergency care sections. KinderCare’s website addresses safety extensively, but that is not contractually binding and there is no statement guaranteeing the reliability of any of the points laid out on that page. “We are serious about training for earthquakes, fires, and lockdown situations” is nice, but there is no measurable quality and no assurance of safety.

5. Education. The full name of the company is KinderCare Learning Center, although there is no assurance of education in the Enrollment Agreement, nor any reference to any other location where educational standards and expectations can be found. Many of the centers are accredited by various accreditation bodies, but there is no requirement that a KinderCare center be accredited. There is no doubt that children will learn while they are at KinderCare’s centers, and the website provides plenty of information about their education programming, but there is no listing of curricula or standards of education for the children provided in the Enrollment Agreement.

In all, KinderCare seems like a decent child care center, and I have no reason to doubt the quality of their care or programs. But this site is about contractual agreements and the ability to rely on the agreements you make. KinderCare’s Enrollment Agreement guarantees very little, other than that they will make sure they get paid–even on days off. Between the fees, the lack of safety guarantees, and not addressing learning standards, it’s not a great contract. The Enrollment Agreement doesn’t even limit their liability, which makes me think the agreement was not taken seriously when drafting it. As the largest child care provider in the country, I would expect a bit more.

This just means that consumers have to be that much more careful when choosing a day care provider, and parents need to understand that they cannot rely on what it says on the website–only what is written in the documents they sign.

That does it for another Fine Print Friday. If you have ideas for other consumer contracts you would like to see under the microscope, send them my way. Or perhaps you would like to see a competitor’s comparison to this post or a previous Fine Print Friday entry. Let me know and I will try to get to as many of your suggestions as I can.

Thanks for reading.

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Fine Print Friday is a weekly column where I examine and analyze Contracts that affect many of us in our daily lives. Each installment will point out a few interesting provisions the average reader may not have noticed.

Fine Print Friday: Twitter Terms of Service and Privacy Policy

Twitter has quickly become the new standard for quick communication with both friends and strangers. It’s power to aggregate knowledge and affect social change has been shown to be great, as well as its ability to catalog the most mundane details of people’s lives.

This week’s Fine Print Friday addresses what permissions you give every time you tweet, and ends with a couple considerations for those of you who haven’t thought through the consequences of stream-of-consciousness tweeting.

1. You Own Your Content…but Twitter gets a license to “use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods.” Additionally, that content is instantly available throughout the world, and is searchable through Twitter. Some intellectual property attorneys might take issue with the idea that you own your content if it can be sent around the world for anyone else to use and you can’t take it off Twitter’s servers. But that’s the deal: you post it, everyone can see it and do with it what they wish. You can still use it for yourself, but it’s not exclusive anymore.

2. Your Content May Be Altered. Although you own your content, Twitter can “modify or adapt your Content.” Does this mean it is no longer your content? Perhaps. It’s not clear that modified content will still be attributed to you. How comfortable are you with having your tweets modified and then still presented as being yours? There are no answers here, but at least one person (Shirley Sherrod) has been severely wronged lately due to modification of her content.

3. Copyright Law is Followed. This is a good thing. Twitter will, upon proper notice (typically meaning that it complies with the Digital Millennium Copyright Act – PDF), take down tweets that violate copyright law (including impersonations). Of course, if you tweet your own copyrighted material, that probably won’t be subject to this term, and you probably can’t expect it to be taken down.

There is not actually all that much in Twitter’s Terms of Service, Privacy Policy, or Rules that is surprising or concerning. The biggest concern for anyone using Twitter’s service should really be whether you want that information to be available to the entire world for the rest of time. Given that the Library of Congress is now archiving tweets, and that all tweets are searchable on Twitter’s website (unless their authors have changed their privacy settings), anything you tweet will be available forever for everyone to see, and it’s probably a good idea to double-check if you want that statement to be attributed to you for the rest of your life and beyond.

How does this strike you? Should people be more careful with their tweets? Has your content ever been altered? Let us know in the comments below. And as always, if there is a subject you would like to see on Fine Print Friday, let me know and I will add it to the list.

Related posts:

1. Fine Print Friday: Facebook’s Service and Privacy Agreements
2. Fine Print Friday: iPhone’s AT&T Wireless Service Agreement