Here are some important
sample clauses to consider including in the Terms of Use of an eCommerce
platform to maximize liability protection.
Title
|
Purpose
|
Sample
Language
|
Your
Acceptance
|
To
explain to users that the Terms of Use are legally binding whenever they
access the platform even if the users are simply browsing
|
These Terms of Use (the “Terms”)
are legally binding on you when you visit www.____________.com (the
“Service”) or access ____________ mobile application (the “App”) even if you
do not register an account or make a purchase. The Service and the App are collectively
referred to herein as the “Service.” By accessing the Service, you indicate
your acceptance of these Terms, as well as the Privacy Policy available at
www.___________/_______. If you disagree with any provision of the
aforementioned documents, you must exit the Service.
|
Neutral
Venue
|
The law
shields neutral eCommerce service owners from liability for
materials/transactions of the service users, if:
(1) the
transmission of the material was initiated by or at the direction of a person
other than the service provider;
(2) the
transmission is carried out through an automatic technical process without
selection of the material by the service provider;
(3) the
service provider does not select the recipients of the material;
(4) no
copy of the material made by the service provider is maintained on the system
or network in a manner ordinarily accessible to anyone other than anticipated
recipients; and
(5) the
material is transmitted without modification of its content.
17 U.S.
Code § 512.
In other
words, service owners are legally protected if their role is simply to
provide a neutral platform for users to transact. The Neutral Venue clause
makes it clear that the owner is neutral and is, therefore, entitled to full
liability protection.
|
Our
Service is a neutral venue. We have no control over user conduct and
transactions. We disclaim all liability arising out of users’ activities or
related to information provided to or by the Service users
|
IP
Ownership
|
We own all intellectual property
rights to the Service. Service features, look and feel, design, registered
and unregistered trademarks are protected by [Country] and international
copyright, trademark, trade secret, and other intellectual property or proprietary
rights laws.
|
|
(DMCA)
Takedown Requests
|
DMCA
basically exempts online service providers (OSP’s) from liability for
copyright infringing acts by its users, provided it meets certain conditions
(such as being responsive to copyright holders when given notice of
infringement on the network).
Among
the conditions that an OSP must meet to be exempt from liability are:
(1) No
actual or constructive knowledge of infringing behavior;
(2) No
financial benefit directly attributable to the infringing activity;
(3) When
given a proper notice of infringing material being posted on its network, the
OSP “responds expeditiously to remove, or disable access to, the material
that is claimed to be infringing.”
|
All claims of copyright
infringement committed using our Service will be investigated if reported to
our designated Copyright Agent via email
|
Your
Content
|
To
outline your policy regarding user-submitted materials such as product reviews,
comments, forum posts, emails, and other content
|
You represent and warrant that you
own or otherwise control all of the rights to the content that you submit. By
submitting any content, you grant us a nonexclusive, royalty-free, perpetual,
irrevocable, and fully sublicensable right to use, reproduce, modify,
publish, create derivative works from such co
ntent throughout the world in any media. |
Disclaimer
of Warranty
|
To
explain that the website and its content are provided without any warranties,
“as is,” to be utilized at users’ own risk
|
WE DO
NOT WARRANT THAT THE SITE WILL MEET YOUR EXPECTATIONS OR REQUIRMENTS. WE
HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. WE DO NOT GUARANTEE THAT
ANY CONTENT PROVIDED ON THE SITE IS ACCURATE OR UP-TO-DATE. WE WILL NOT BE
LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY
HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICE, COMPUTER PROGRAMS, DATA OR
OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR TO YOUR DOWNLOADING
OF ANY MATERIAL POSTED ON IT.
|
Limitation
of Liability
|
To
prevent users for suing site owner for “exotic” damages. A variation of this
clause can limit liability to the amounts actually received by the Service
owner from a complaining user.
|
IN NO
EVENT WILL WE, OUR EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR
DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION
WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY SITES LINKED TO IT, ANY
CONTENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DEATH, PERSONAL INJURY,
PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS,
LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS
OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF
CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
|
Product
Descriptions; Mispriced Merchandise
|
We
attempt to be as accurate as possible. However, we do not warrant that
product descriptions or other content of this Service is accurate, complete,
reliable, current, or error-free. If a product offered is not as described,
your sole remedy is to return it in unused condition.
Every
effort has been made to display as accurately as possible the colors of our
products that appear on our Service. However, the actual colors seen on
screen will depend on monitor settings. We cannot guarantee color accuracy.
Product images are for representational purposes only.
Despite
our best efforts, a small number of products offered through our Service may
be mispriced. If the correct price of an item sold is higher than our stated
price, we will, at our discretion, either contact you for instructions before
shipping or cancel your order and notify you of such cancellation.
|
|
Back-Ordered/Discontinued
Items
|
Customer
will be notified of items that are not available. If necessary, items can be
shipped in multiple packages as they become available. Dates are generally
given on backordered items but these are only estimates that do not
necessarily mean the item will arrive on or around that time frame.
Backordered items are shipping immediately when they arrive and they will be
charged when shipped.
|
|
Payment/Taxes/Order
Acceptance/Shipping/Risk of Loss
|
Customer's
receipt of an electronic or other form of order confirmation does not signify
our acceptance of the order, nor does it constitute a confirmation to sell.
We reserve the right at any time after receipt of your order to accept or
decline your order for any reason. Your order will be deemed accepted by us
upon our delivery of products to the shipping carrier.
All
payments must be made by Visa, Mastercard, Discover, American Express or
through PayPal. Customer agrees to pay all fees and charges incurred in
connection with purchases (including any applicable taxes). Unless you notify
us of any discrepancies within sixty (60) days after they first appear on
your credit card statement, you agree that they will be deemed accepted by
you for all purposes. If we do not receive payment from your credit card
issuer, you agree to pay all amounts due upon demand. You are responsible for
paying any governmental taxes imposed on your purchases, including, but not
limited to, sales, use or value-added taxes.
The risk
of loss and title for items pass to you upon our delivery to the carrier.
Shipping times are estimates. Please refer to our Shipping & Returns
policy for more details.
|
|
Refunds/Returns/Chargebacks
|
Outline your Refund Policy. If you don't have one, state that all sales are final and no refunds will be issued. | |
Terms
for Digital Products
|
To list
special provisions that apply to digital products only
|
Any
subscription to software under these Terms is for the time period or term
listed at time of checkout. You may not: (1) re-sell, rent or lease a Digital
Product or any part of it; (2) copy any part of a Digital Product, except
where specifically indicated otherwise or for back-up purposes; (3) reverse
engineer, decompile or disassemble a Digital Product or the software through
which it is delivered, or convert it into any other format or medium;
(4) use more copies of a Digital Product, or deploy a Digital Product on more
devices or at more sites, than are authorized at checkout, or (5) sub-license
the Digital Products.
|
Third
Party Sites
|
To
explain that you are not liable for problems caused by third party services
you use to support your platform (e.g. PayPal). Note that FTC requires “clear
and conspicuous” affiliate disclosures
|
The Service may contain links to
third party websites that are not owned or controlled by this Service. This
Service retains no authority or control over, and assumes no responsibility
for, the content, privacy policies, or practices of any third party websites.
In addition, the Service will not and cannot censor or edit the content of
any third-party site. You acknowledge that we will not be liable for any and
all claims, demands and damages of any kind and nature arising out of or in
any way connected from any and all potential liabilities arising from the use
of any third-party website. Third party networks have their own terms of use,
and you must comply with any terms and conditions provided by any third party
network.
|
User Obligations; Prohibited Conduct
|
To explain what users can and cannot
do on your platform
|
By
accessing the Service, you represent, warrant and agree that:
a. _______________
b. _______________
c. _______________
You
cannot:
a. _______________
b. _______________
c. _______________
|
Electronic Communication
|
To explain that electronic
communications shall be deemed as legally binding as paper ones.
|
You agree that all notices or other
communications regarding your account and/or your use of the Service
("Communications") may be provided to you electronically and
you agree to receive all Communications from us in electronic form. All
electronic Communications will be considered just as legally binding as
Communications in paper form.
|
Indemnification
|
To require users to pay for
damages caused by the breach of the Terms (e.g. users uploading others’
copyrighted materials to your site)
|
You agree to defend, indemnify and
hold harmless us, our affiliates and licensors, officers, directors,
employees, contractors, agents from and against any claims, liabilities,
damages, judgments, awards, losses, costs, expenses or fees (including
reasonable attorneys' fees) resulting from your violation of these Terms or
your use of the Service.
|
Termination
|
To be able to easily get rid of
problematic users
|
We may terminate or suspend your
access to all or part of the Service for any or no reason, including without
limitation, any violation of these Terms
|
Linking
|
You may link to our Service in a way
that is legal, fair and does not damage our reputation or take advantage of
it, but you must not establish a link in such a way as to suggest any form of
association, approval or endorsement on our part where none exists.
|
|
Governing Law
|
To ensure you don’t get sued in a
remote jurisdiction after a customer there buys your product. Consumer laws
of many countries (particularly, in Europe) limit merchants’ ability to
require consumers to litigate or arbitrate in foreign jurisdictions.
|
By accessing the Service, you agree
that any legal matter that may arise between you and us relating to the
Service shall be governed by the laws of [State/Province/Country].
|
(Documents-Only) Arbitration
|
Arbitration is usually quicker,
cheaper, confidential, less complicated and more informal than trial. This
sample clause provides for a confidential “documents only” hearing, so that
it’s not necessary for parties to travel to resolve disputes.
Important note to software companies
and developers:
European pro-consumer countries limit arbitration clauses in consumer
contracts. Exercise caution. Read Software
Licensing Issues for US Businesses in Europe and Japan to
get an idea of potentially problematic software/mobile application licensing
clauses in foreign jurisdictions.
|
Any controversy or claim arising out
of or relating to these Terms, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association in
accordance with its Commercial Arbitration Rules and judgment on the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The arbitration will be based on the submission of documents
and there shall be no in-person or oral hearing. Except as may be required by
law, neither a party nor an arbitrator may disclose the existence, content,
or results of any arbitration hereunder without the prior written consent of
both parties.
|
Severability
|
Should any part of these Terms be
rendered or declared invalid by an appropriate authority, such invalidation
of such part or portion of these Terms should not invalidate the remaining
portions thereof, and they shall remain in full force and effect.
|
|
Modifications
|
To explain that these Terms may be
updated without notice every once in a while, and the updates will be legally
binding
|
We update these Terms every once in a
while as we deem appropriate, without notifying you. We then post the changes
on this page. Please check this page from time to time
to take notice of any changes we made, as they are binding on you. Your
continued use of the Service following the posting of revised Terms of Use
constitutes your acceptance of the changes.
|
General
|
Assignment, Waiver, Relationship of
the Parties, etc.
|
You cannot assign your obligations
under these Terms without our prior consent. Enforcement of
these Terms is solely in our discretion, and failure to enforce the Terms in
some instances does not constitute a waiver of our right to enforce them in
other instances. These Terms do not confer any rights upon any third party.
You and us are independently contracting parties. We reserve the right
to modify the Service and its features at any time without prior notice.
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