Formulating the terms of conditions/service on my website

[limboltd]

Do companies exist that I can use that would aid me in developing a robust terms of service and privacy policy section for my website. Would it be best to hire my own legal team to draw this up? Any recommendations.

 

[Merchant UK]

What i did for mine i looked at similar companies websites and saw what they had, then used that as a template to create my own personalised terms and conditions.

As long as you don't copy it word for word and remember to include details about your company and your own terms then this would normally suffice for 99% of companies and save you ££££'s in the long run

 

[lellis]

Copying others' terms and conditions and paraphrasing them can be a risky business from a number of different perspectives. A few are:

1. that your business might not align as much as you think they might with the business(es)' terms of business you are adopting,
2. the terms of business published might be out of date (and the privacy policy), and
3. copyright infringement of the owner's copyright in the terms (despite paraphrasing - it does not necessarily get you off the hook).

__________________
Leigh Ellis
Technology & Intellectual Property Lawyer
Drukker Solicitors, London

 

[GraemeL]

What i did for mine i looked at similar companies websites and saw what they had, then used that as a template to create my own personalised terms and conditions.

As long as you don't copy it word for word and remember to include details about your company and your own terms then this would normally suffice for 99% of companies and save you ££££'s in the long run

Yep, agree.

Also, look at SOGA to make sure you cover all the legal requirements for your particular business.

Definitely do not need and legal advice unless you are doing something like - offering legal advice

G

G

 

[ZipserSir]

Do companies exist that I can use that would aid me in developing a robust terms of service and privacy policy section for my website. Would it be best to hire my own legal team to draw this up? Any recommendations.

Can you say what it is that your website does?

 

[Merchant UK]

Copying others' terms and conditions and paraphrasing them can be a risky business from a number of different perspectives. A few are:

1. that your business might not align as much as you think they might with the business(es)' terms of business you are adopting,
2. the terms of business published might be out of date (and the privacy policy), and
3. copyright infringement of the owner's copyright in the terms (despite paraphrasing - it does not necessarily get you off the hook).

__________________
Leigh Ellis
Technology & Intellectual Property Lawyer
Drukker Solicitors, London

I'm not saying copy it, but simply getting one similar to what your website requires and changing it all about adding to it until you have a completely different set of terms and conditions from the one you used as an example.

As its going to be tailored to your own site and a lot different from the sample i can't see how people will say "You've copied my T & C's"

The idea is to get a template and customise it to your site

 

[limboltd]

Thanks very much for the vital support and excellent advice. My site offer microwork and freelance jobs to users from around the world.

 

[Steve Sellers]

I'm not saying copy it, but simply getting one similar to what your website requires and changing it all about adding to it until you have a completely different set of terms and conditions from the one you used as an example.

And what makes you think the terms and conditions being copied are any good whatsoever? Are people wanting terms and conditions to actually protect them or just for the point of it?


OP I offer a fixed fee t+c's drafting service, please feel free to get in touch if you require a quote.

 

[Vectis]

It really depends on what the OP is trying to cover with their T&C. If it's fairly standard and basic (payment terms etc) then, as has been said, look at others in the same industry and amend and adapt as necessary. If you have special or unusual requirements then get someone suitably qualified/experienced to draft it for you.

 

[THRTaylor]

Your T&Cs have to match how your business works and comply with the law.

To copy someone else's T&C, you need to be able to assess whether the law is right (for example, does the returns policy comply with distance selling law) and adapt that (within the law) to your own business.

Another business might not have very good T&C, that, if copied, leave you with the same defects. Protection of intellectual property (for example, if your business is an online content publisher such as this site) is something most T&Cs lack.

Lastly, the way your business works might not exactly match how another business works. For example, if you sell IT hardware online, you may or or may not hold all your stock (suppliers may ship direct). Your competitor might not have that business model and his terms will only reflect how he does things.

Your T&Cs aren't just there for compliance. They are your contract with your customer and protect your business. You need to get them right.

 

[Merchant UK]

Your T&Cs have to match how your business works and comply with the law.

To copy someone else's T&C, you need to be able to assess whether the law is right (for example, does the returns policy comply with distance selling law) and adapt that (within the law) to your own business.

Another business might not have very good T&C, that, if copied, leave you with the same defects. Protection of intellectual property (for example, if your business is an online content publisher such as this site) is something most T&Cs lack.

Lastly, the way your business works might not exactly match how another business works. For example, if you sell IT hardware online, you may or or may not hold all your stock (suppliers may ship direct). Your competitor might not have that business model and his terms will only reflect how he does things.

Your T&Cs aren't just there for compliance. They are your contract with your customer and protect your business. You need to get them right.

That's why you use theirs as an example and edit it to your own. It's not rocket science

 

[The Resolver]

Apart from the dangers generally of using templates, such as has been referred to by others, there is also the risk that you do not know the source of the original (was it drawn up by lawyers or copied from another template and thus does it perpetuate some unknown legal weakness) and also do not know if it takes into account changes in the law and its interpretation by the courts since it was drawn up. You may think you have covered what they state they cover but what about the Rumsfeld 'unknown unknowns'?

I use templates all the time but then I know the law and use them as a form of checklist and to shorten my time and thus the fee I charge my clients. I include terms that may be appropriate for the particular circumstances of the client. The culture and context of the web is changing so fast that the law cannot keep up (eg in privacy) and so it is vital that creativity is employed to further reduce client risk. I thus include clauses I have not found elsewhere but which further reduce my client's risk, eg extensive and detailed dispute resolution clauses. Reducing legal risk increases business value. Look at how companies like eBay and Amazon have practically built up their own private justice systems that handle 99% of their legal risk outside of any legal jurisdiction. Potential investors and purchasers of web based businesses would be put off by owners who recklessly leave legal risk to a set of weak terms copied from different businesses and certainly lower their assessment of business owners who expose themselves to risk purely to save a few hundred pounds.

MerchantUK, I do not have the time to do a full assessment but a very quick look at your terms show them to be hopelessly inadequate. If a solicitor had produced them he would be liable for professional negligence!

Some pointers:-

YOUR FORUM:-

1. A complete absence of terms to regulate the experience and risk from people who visit but do not register. Although you have terms that you require people who register to agree to (well done for making reading and clicking obligatory) they are not made available to , nor required to be read and agreed to by, those who do not register. These people read and may act on what they read in forum posts. The clauses in your registration terms need also to protect you from non-registered visitors.

2. Although in your terms you reference 'United Kingdom law and United States Federal law', by which you define part (only - eg abusive but not copyright protected) of the material you wish registered users to agree not to post, you do not seek agreement from visitors as to the laws of which country shall apply to any claims that may be raised against you nor seek agreement to restrict the identity of the courts within which such claims may be brought. I should also add that there is, by the way, no such thing as 'United Kingdom law' (you were thinking presumably of the laws of England and Wales) and the majority of laws in the US are not federal but state laws (which often vary state by state). You permit by default content that breaches the laws of any other country.

3. You protect yourself as to breaches of copyright but not of trademark. A big risk given your site covers discussion on many trademark protected items.

4. You say that users who post material indemnify you but do not say as to what they indemnify you against. Splitting hairs but many lawyers have fed well from splitting hairs in court.

5. You say you 'reserve the right' to reveal the identity of any person posting adverse material but you have no such right unless the user has stated agreement to you so revealing their identity,. His is part of privacy. It should be worded that 'you give us your consent to our revealing…'.

6. You ask ('please do not') users not to use a 'copyrighted name' when registering a username. Firstly that is not an obligation on their part nor is there an indemnity against you for any claims should they do so. But also you do not protect yourself against trademarked names. That is how names are protected not by copyright.

7. You refer in one place to 'appropriate sanctions may be applicable' but do not state what they are. If you wish to be free to apply a sanction you need to word it so that the user agrees to specific sanctions being applied in specific circumstances eg to bar them.

8. You make no attempt to limit any liability on you through a claim by users, eg to allowing defamatory content about a user by another user. All you do is attempt to ensure people take responsibility for their own posts. That does not protect you from a claim by another user who is the subject of adverse comment.

9. No part of the content contain a privacy policy protecting you from storing and dealing with any data that could identify a user (not just that posted to the Forum).

YOUR AUCTION SITE

10. The terms seek to protect you from claims resulting from your closure of an auction or removal of a bidder's account, in circumstances that are all limited to actions described in sections all commencing 'your..'. In other words they do not protect you from losses arising from your removal of an auction incurred by someone whose conduct did not cause you to take such action eg the seller.

11. The terms contain no indemnity to protect you against claims eg sellers listing goods without authority or legality (you say they must not do it but do not require them to agree to indemnify you).whatsoever.

12. Total absence of agreement to dispute resolution processes.

13. I am not an expert in criminal law but your terms could possibly put you at risk of prosecution as a hate crime when you say in your terms (where on earth did you get them from??) that "there are risks of dealing with foreign nationals". Given the drive by the European Commission to promote the Single Market , there may well be also, if I researched it, some regulation preventing you from refusing to transact with a buyer just because they were from another EU country.

I have spent too much time on this. Your auction terms are far too short and leave out so much more.