Terms and Conditions for online profiles. They are long, tedious, and boring to read, especially in the excitement of scheduling a fitness class, a kid’s sporting event, or even a massage. As online profiles become more common, even for local businesses, I began to look at them a bit more closely. Here is some of the language that I ran into, in various forms, as I reviewed the terms and conditions of multiple businesses local to my home.
“On behalf of myself and my child, I further waive and release the promoters of the activity, facility, any insuring entity of the above, and their directors, board members, officers, employees, volunteers, agents, representatives, or assigns, as well as the activity sponsors, from any and all liability, including, but not limited to, liability arising from negligence or fault of the entities or persons for any injury or disability which may occur as a result of my or my child’s participation in the above activity. I am assuming all risks on behalf of myself and my child that may arise from negligence or carelessness on the part of any of the persons or entities being released, as well as from defective equipment, real property or personal property that is owned, maintained or controlled by the above persons.”
Wow, that’s a really long complicated sentence that basically says: the consumer is agreeing not to sue the facility, or any associated people or entities, for any reason; regardless of whether any of those people/entities bear responsibility for causing the signing person or their child’s injury or death.
“All disputes arising out of or in connection with the present contract shall be finally settled under the rules of arbitration by one or more arbitrators appointed by” the business’s arbitrator of choice.
In other words, if there was any dispute between the consumer and the business, the consumer would be prohibited from demanding to enforce their Constitutional right to a jury trial. The plaintiff would be limited to whatever rules are put in place by an unknown arbitrator chosen by the business, whose decision is final, based upon the rules that the arbitrator puts in place. It certainly seems like the business is stacking the deck against its own consumers.
“I hereby grant permission to the rights of mine and my child’s image, likeness and sound of my voice as recorded on audio or video tape without payment or other consideration. I understand that mine and my child’s image may be edited, copied, exhibited, published or distributed and waive the right to inspect or approve the finished product wherein mine and my child’s likeness appears…. There is no limit on the validity of this release nor is there any geographic limitation on where these materials may be distributed.”
In other words, the company can use the person’s (or their child’s) voice, photograph or videoed actions in their advertising without having to pay or recognize either. Additionally, they can edit it and post it to any media outlet they like, without your input. Social media, magazines, newspapers, television, streaming services.. viral video… the list goes on. By granting this permission, the person is giving up their right to privacy, as well as giving up their right to demand payment for modeling on behalf of the business.
These are three of the more common examples of what businesses are attempting to get away with by forcing agreement in online registration forms. Companies rarely agree to make exceptions, edit or allow the signing individual to alter the agreement in any way. Many cite “insurance reasons.” But, I find it is always worth making a phone call to ask whether the agreement can be reasonably altered.
The question of whether the one-sided agreement is enforceable is usually a fact-intensive one, and it is possible that a court could enforce an agreement against the consumer. So next time, before you check the box to go through to the next screen, read the terms and conditions. Perhaps it’s worthwhile to take some time to shop around for more reasonable contract terms and vote with your feet, instead of learning too late that the business forced you to unknowingly waive your right to protect yourself or your child.
If you have been injured by a business or its employee(s), contact Murphy & Landon for a free consultation at 302-472-8100.