OT: Terms of service

Guys,

Can anyone point me to an online resource that provides boiler plate
terms
of service for web apps?

If not, how can one gain TOS on a poor man’s budget? Is it legal to
copy/modify another company’s terms of service? They don’t seem to be
copyrighted, but somehow this just feels wrong.

Any insight you can provide would be greatly appreciated. Additionally,
if
the only way to get TOS is through a lawyer, any affordable lawyer
recommendations that specialize in this sort of thing would be helpful.

Thanks!
Jake

On 10/16/06, Jake C. [email protected] wrote:

Any insight you can provide would be greatly appreciated. Additionally, if
the only way to get TOS is through a lawyer, any affordable lawyer
recommendations that specialize in this sort of thing would be helpful.

Bump…just to see if anyone’s listening. I know some of you have had
to
deal with this… :wink:

Thanks,
Jake

I copied mine from a major online retailer and tweaked it, but it’s
still way over-the-top for my little store. I have pasted it below.

c.

Conditions of Use

Introduction
Welcome to the SITE Store. This site (referred to throughout this site
as “SITE.COM”) is provided by Site as a service to our customers. Please
review the following basic rules that govern your use of the SITE.COM
site (the “Agreement”). Please note that your use of the SITE.COM site
(the “Site”) constitutes your unconditional agreement to follow and be
bound by these Terms of Use. Although you may “bookmark” a particular
portion of this Site and thereby bypass this Agreement, your use of this
Site still binds you to these Terms of Use. SITE.COM reserves the right
to update or modify these Terms of Use at any time without prior notice
to you. Your use of the Site following any such change constitutes your
unconditional agreement to follow and be bound by these Terms of Use as
changed. For this reason, we encourage you to review these Terms of Use
whenever you use this Site.

Use of this Site
By accepting these Terms of Use through your use of the Site, you
certify that you are 18 years of age or older. If you are under the age
of 18 but at least 13 years of age you may use this Site only under the
supervision of a parent or legal guardian who agrees to be bound by
these Terms of Use. SITE.COM does not intentionally collect personal
information about children under the age of 13. Children under the age
of 13 may not use this Site and parents or legal guardians may not agree
to these Terms of Use on their behalf. If you are a parent or legal
guardian agreeing to these Terms of Use for the benefit of a child
between the ages of 13 and 18, be advised that you are fully responsible
for his or her use of this Site, including all financial charges and
legal liability that he or she may incur. If you do not agree to (or
cannot comply with) any of these terms and conditions, do not use this
Site. All billing and registration information provided must be truthful
and accurate. Providing any untruthful or inaccurate information may
constitute a breach of these Terms of Use. By confirming your purchase
at the end of the checkout process, you agree to accept and pay for the
item(s) requested. All materials, including images, text, illustrations,
designs, icons, photographs, programs, music clips or downloads, video
clips and written and other materials that are part of this Site
(collectively, the “Contents”) are intended solely for personal,
non-commercial use. You may download or copy the Contents and other
downloadable materials displayed on the Site for your personal use only.
No right, title or interest in any downloaded materials or software is
transferred to you as a result of any such downloading or copying. You
may not reproduce (except as noted above), publish, transmit,
distribute, display, modify, create derivative works from, sell or
participate in any sale of or exploit in any way, in whole or in part,
any of the Contents, the Site or any related software. The Contents and
software on this Site may be used only as a shopping resource. Any other
use, including the reproduction, modification, distribution,
transmission, republication, display, or performance, of the Contents on
this Site is strictly prohibited.

Objectionable Material.
You understand that by using this Site or any services provided on the
Site, you may encounter Content that may be deemed by some to be
offensive, indecent, or objectionable, which Content may or may not be
identified as such. You agree to use the Site and any service at your
sole risk and that SITE.COM and its affiliates shall have no liability
to you for Content that may be deemed offensive, indecent, or
objectionable.

Site Security
Users are prohibited from violating or attempting to violate the
security of the Site, including, without limitation, (a) accessing data
not intended for such user or logging onto a server or an account which
the user is not authorized to access; (b) attempting to probe, scan or
test the vulnerability of a system or network or to breach security or
authentication measures without proper authorization; © attempting to
interfere with service to any user, host or network, including, without
limitation, via means of submitting a virus to the Site, overloading,
“flooding,” “spamming,” “mailbombing” or “crashing;” (d) sending
unsolicited email, including promotions and/or advertising of products
or services; or (e) forging any TCP/IP packet header or any part of the
header information in any email or newsgroup posting. Violations of
system or network security may result in civil or criminal liability.
SITE.COM will investigate occurrences that may involve such violations
and may involve, and cooperate with, law enforcement authorities in
prosecuting users who are involved in such violations. You agree not to
use any device, software or routine to interfere or attempt to interfere
with the proper working of this Site or any activity being conducted on
this Site. You agree, further, not to use or attempt to use any engine,
software, tool, agent or other device or mechanism (including without
limitation browsers, spiders, robots, avatars or intelligent agents) to
navigate or search this Site other than the search engine and search
agents available from SITE.COM on this Site and other than generally
available third party web browsers (e.g., Firefox, Netscape Navigator,
Microsoft Explorer).

Order Acceptance
Please note that there may be certain orders that we are unable to
accept and must cancel. We reserve the right, at our sole discretion, to
refuse or cancel any order for any reason. For your convenience, you
will not be charged until your payment method is authorized, the order
information is verified for accuracy and your order is shipped. Some
situations that may result in your order being canceled include
limitations on quantities available for purchase, inaccuracies or errors
in product or pricing information, or problems identified by our credit
and fraud avoidance department. We may also require additional
verifications or information before accepting any order. We will contact
you if all or any portion of your order is canceled or if additional
information is required to accept your order. If your order is canceled
after your credit card has been charged, we will issue a credit to your
credit card in the amount of the charge.

Pricing Information
While SITE.COM strives to provide accurate product and pricing
information, pricing or typographical errors may occur. SITE.COM cannot
confirm the price of an item until after you order. In the event that an
item is listed at an incorrect price or with incorrect information due
to an error in pricing or product information, SITE.COM shall have the
right, at our sole discretion, to refuse or cancel any orders placed for
that item. In the event that an item is mispriced, SITE.COM may, at our
discretion, either contact you for instructions or cancel your order and
notify you of such cancellation.

Quantity Limits & Dealer Sales
SITE.COM reserves the right, at our sole discretion, to limit the
quantity of items purchased per person, per household or per order.
These restrictions may be applicable to orders placed by the same
SITE.COM account, the same credit card, and also to orders that use the
same billing and/or shipping address. We will provide notification to
the customer should such limits be applied. SITE.COM also reserves the
right, at our sole discretion, to prohibit sales to dealers. If you are
interested in purchasing multiple quantities of items for a corporation
or institution, please contact us by email at [email protected]

Copyrights and Trademarks
Access to this Site does not confer and shall not be considered as
conferring upon anyone any license under any of SITE.COM’s or any third
party’s intellectual property rights. The Site names and logos and all
related product and service names, design marks and slogans are the
trademarks or service marks of SITE. All other marks are the property of
their respective companies. No trademark or service mark license is
granted in connection with the materials contained on this Site. Access
to this Site does not authorize anyone to use any name, logo or mark in
any manner. References on this Site to any names, marks, products or
services of third parties or hypertext links to third party sites or
information are provided solely as a convenience to you and do not in
any way constitute or imply SITE.COM’s endorsement, sponsorship or
recommendation of the third party, information, product or service.
SITE.COM is not responsible for the content of any third party sites and
does not make any representations regarding the content or accuracy of
material on such sites. If you decide to link to any such third party
web sites, you do so entirely at your own risk.

Colors
We have made every effort to display the colors of our products that
appear on the Site as accurately as possible. However, as the actual
colors you see will depend on your monitor, we cannot guarantee that
your monitor’s display of any color will be accurate.

Indemnification
You agree to defend, indemnify and hold harmless SITE.COM and its
affiliates from and against any and all claims, damages, costs and
expenses, including attorneys’ fees, arising from or related to your use
of the Site.

Termination
These Terms of Use are effective unless and until terminated by either
you or SITE.COM. You may terminate this Agreement at any time, provided
that you discontinue any further use of this Site. SITE.COM also may
terminate this Agreement at any time and may do so immediately without
notice, and accordingly deny you access to the Site, if in SITE.COM’s
sole discretion you fail to comply with any term or provision of this
Agreement. Upon any termination of the Agreement by either you or
SITE.COM, you must promptly destroy all materials downloaded or
otherwise obtained from this Site, as well as all copies of such
materials, whether made under the Terms of Use or otherwise. SITE.COM’s
right to any Comments shall survive any termination of this Agreement.

Disclaimer
THIS SITE IS PROVIDED BY SITE.COM ON AN “AS IS” AND “AS AVAILABLE”
BASIS. SITE.COM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION,
CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULL
EXTENT PERMISSIBLE BY APPLICABLE LAW, SITE.COM DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING
THE FOREGOING, SITE.COM DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, FOR ANY MERCHANDISE OFFERED ON THIS SITE. YOU ACKNOWLEDGE, BY
YOUR USE OF THE SITE.COM WEB SITE, THAT YOUR USE OF THE SITE IS AT YOUR
SOLE RISK. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY
OFFERED BY THE MANUFACTURER OF THE ITEM. THIS DISCLAIMER CONSTITUTES AN
ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS
ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY
NOT APPLY TO YOU.

Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER
IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL SITE.COM OR ANY
OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR
SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE
ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE
SITE.COM WEB SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST
PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF
RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED
REPRESENTATIVE OF SITE.COM HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SITE.COM BE LIABLE FOR
ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH YOUR
USE OF THE SITE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH
THE CLAIM AROSE.

General
This Agreement represents the complete agreement between the parties and
supersedes all prior agreements and representations between them.
Headings used in these Terms of Use are for reference purposes only and
in no way define or limit the scope of the section. If any provision of
this Agreement is held to be unenforceable for any reason, such
provision shall be reformed only to the extent necessary to make it
enforceable and the other terms of this Agreement shall remain in full
force and effect. The failure of SITE.COM to act with respect to a
breach of this Agreement by you or others does not constitute a waiver
and shall not limit SITE.COM’s rights with respect to such breach or any
subsequent breaches. This Agreement shall be governed by and construed
under California law without regard to conflicts of law provisions. Any
action or proceeding arising out of or related to this Agreement or your
use of this Site must be brought in the state or federal courts of
California and you consent to the exclusive personal jurisdiction of
such courts.

I discussed this very topic with a lawyer that specializes in
copyright/trademark law a couple years ago. I may get the finer details
wrong here, but the gist of his answer was that Terms of Service are
considered legal forms, and are therefore NOT copywritable. However, I
can also tell you from personal experience that if you copy a much
larger competitors TOS nearly verbatim, and the boys in charge there are
ex-Microsoft people with trigger-happy lawsuit habits, you may get end
up paying your lawyer to argue with theirs until one of you gives up or
runs out of money. So, my recommendation is to copy TOS’s from several
similar sites, and a few less similar, meld them together, reword key
sentences and paragraph structures, etc. Spend about two hours and make
it “look” like you’re own work. It may save you a big headache down the
road.

Any insight you can provide would be greatly appreciated. Additionally, if
the only way to get TOS is through a lawyer, any affordable lawyer
recommendations that specialize in this sort of thing would be helpful.

Maybe I’m naive, but rather than first approach our TOS from a legal
standpoint, I thought about it in what I guess I’d call a moral light:
what did we actually want people to use our site for, and what did we
find objectionable? I think this made it a friendlier and more human
document. I then did read a few other TOS’s from around the web to make
sure I didn’t leave any gaping holes (though I well might have – if
anyone checks it out and sees any, please let me know :slight_smile:

This is what I ended up with:
http://squirl.info/tos

On 10/17/06, [email protected] [email protected] wrote:

I like your approach of giving it a more homey feel (and funny to boot).

I guess my biggest concern is exposing myself to risk of litigation from
people who simply have nothing better to do. I’ll be releasing my
application soon…a first for me, so just trying to cross all t’s and
dot
all i’s. While it’s nothing that could cause bodily harm if it feels,
one
could stretch to say that if it presented information improperly due to
a
bug, it could impact your work life and thus cause you harm (a big
stretch).
In this case, I want to make sure I’m covered.

I wonder if
“MyCompany is in no way responsible for anything contained at the web
site
XYZ.com, or for your use of anything contained at the web site XYZ.com
would cover it?

Jake

Guys,

Thanks very much for the useful feedback. It helped tremendously!

Jake

Sorry Jake, I misunderstood what you meant by “TOS” - mine was (of
course obvious by looking at it) a tos for a retail site.

With respect to TOS on an application, just as with any other contract,
you can put whatever conditions on use you feel you need (IANAL, though
I was in a past life a CPA with commercial law familiarity). It is
perfectly acceptable for you to state upon signup that “use of this site
is at your own risk including the potential for loss of data, etc.,
etc.” I would also specifically disclaim:

…all warranties, implied and otherwise, including the warranties of
merchantibility and fitness for a particular use.

This is standard boilerplate contractual language, but is absolutely
necessary in Uniform Commercial Code contracts in terms of limiting your
liability. You would do well also to highlight this specific disclaimer
with bold and/or larger lettering.

So, I guess my point is that yes, it can be as simple as you stated
below, but you would do yourself a favor to put some thought into it and
make it both clear and somewhat comprehensive with respect to the types
of things you can imagine someone trying to use as a claim against you.

c.

Jake C. wrote:

On 10/17/06, [email protected] [email protected] wrote:

I like your approach of giving it a more homey feel (and funny to boot).

I guess my biggest concern is exposing myself to risk of litigation from
people who simply have nothing better to do. I’ll be releasing my
application soon…a first for me, so just trying to cross all t’s and
dot
all i’s. While it’s nothing that could cause bodily harm if it feels,
one
could stretch to say that if it presented information improperly due to
a
bug, it could impact your work life and thus cause you harm (a big
stretch).
In this case, I want to make sure I’m covered.

I wonder if
“MyCompany is in no way responsible for anything contained at the web
site
XYZ.com, or for your use of anything contained at the web site XYZ.com
would cover it?

Jake

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