Hot coffee that comes with terms of service

I love coffee. And I love to explore new high-tech products. Addressing these two loves, the gift of an Ember mug to keep my coffee hot as I am working at my desk really hit the spot. Little did I expect that using this mug would get me enmeshed in complex legal obligations and potentially wide-ranging privacy exposures.

As with many high-tech products, the mug is controlled through an app on my phone. Setting up the app required creating an account. Looking forward to keeping my coffee hot, I just clicked to accept the terms of service and the privacy policy. After charging the mug, I used the app to set the temperature, filled the mug at my coffee machine, and presto, it worked like a charm! Great product!

A little later, though, I became curious why a mug communicating with my phone to set the temperature for my coffee - really a very simple and local operation - would require terms of service and a privacy policy. So I read through the documents. And that’s when I learned that by clicking agreement, I signed up to some rather unexpected contractual conditions.

Just the size of the documents is astounding. The terms of service contain some 6,300 words of dense legalese, about the same as a New York State real estate contract of purchase. The privacy statement, along with the cookie policy and the privacy rights for some jurisdictions, added another almost 7,000 words to a total of more than 13,000 words. An accepted reading speed for technical documents is less than 100 words per minute. Would average readers spend more than two hours, just to determine whether they should use their new coffee mug?

The terms could have distinguished between the app just locally talking to the mug which does not need Internet exposure, and the potential use of the Ember web site and its services. Instead, both the local and the remote interactions are addressed together as “the services” to which all the terms of service and the privacy policy apply.

The terms of service contain many of the usual conditions of Internet services that are totally one-sided, guaranteeing nothing and placing all responsibilities on the users. Here are some examples.

  • The services are provided “as is”, with no warranty of being fit for purpose or for the presented information to be correct. Trust us!

  • If consumers post any content or feedback on the web site, the service providers can use it in any way they want, including publishing it in possibly modified form.

  • Users must indemnify the service providers in case of any legal issues arising from their use of the “services”. I hope drinking coffee does not incur any liabilities for anyone!

  • The service provider disclaims any liability for actions of their unnamed affiliates or vendors. As those parties are unnamed it would be difficult to infer the impact of their actions.

  • They can modify or terminate access to the services unilaterally, without notice. Hmm, would this stop the mug from working, or does this just apply to the web service that I am not using?

  • There is a broad list of prohibited uses, such as posting misleading, libelous, pornographic, or defamatory content. Why would anybody post this type of content on a web site for a coffee mug? Is this a sign of their legal team’s phantasy?

The privacy statement is just as expansive. They’ll collect as much information as they possibly can, such as

  • all detail of web site interactions, including technical details such as browser, operating system and IP address,

  • data from first and third-party cookies,

  • social media data and voice assistant data, and

  • location,

and use it for advertising, and to share it with service providers and affiliates that are not further identified.

Having read terms of service and privacy statements of many Internet services and IoT devices, none of this is exceptional, except that it is applied to a product as simple as a mug keeping coffee hot.

However, looking over their web site and the app, no obvious places are apparent for users to submit “user content”. In practice, these additional “services” - beyond the mug doing a great job - appear to be non-existent! The documents largely address non-existent features! They appear to express hope for yet unknown futures rather than current reality. Some clauses in the terms of service also reflect this forward-looking spirit:

  • Any future services will be subject to these terms. Obviously, one wonders what those services could be, and how we would be notified of our new obligations.

  • Not only the users, but also their heirs agree to be bound by the terms. Do I have to put a statement in my will?

  • All future rights in trade secrets, copyrights, know-how, etc. will remain the property of the service provider.

  • The service provider retains license to user content in any format or medium now known or developed in the future. Are they thinking of the metaverse?

Innovators’ ambition is surely laudable. However, requiring agreement to legal statements that are way ahead of the product and service reality seems putting the cart before the horse. On the contrary, promising not to collect any data might be a great incentive for users to buy mugs! After all, they currently get very little data beyond the original registration. Pointing this out prominently on their web site would create a feature without giving up anything! Alas, this approach may be counter to the ambitious startup spirit.

For now, I am enjoying hot coffee and am staying away from their web site in the hope of avoiding any entanglements and liabilities for myself and my heirs.

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