April 7, 2015 at 12:495 common mistakes when compiling a “user agreement”
Each lawyer is constantly looking for and, unfortunately, find errors in the contracts of other lawyers. Not all of these errors are truly dangerous. For some it is sometimes just embarrassing, while others are added on purpose or carry real risks for customers. Let us evaluate each error by the degree of risk, prevalence and irritation on the example of one of the most important documents on the site.
The most common variant of this error is the use of “one-time definitions”. Of course, “one-time definitions” can be used, but only for abstract and complex terms. It is also often possible to find unused terms in an agreement (for example: “offer”).
The main task of the “Terms and Concepts” section is to eliminate contradictions in the understanding and interpretation of words. In this connection, it is unreasonable to spell out the terms enshrined in the legislation: “Service”, “Personal Data”, etc.
Why is it necessary to avoid unnecessary terms? Answer: It is difficult to read the * agreement and constantly refer to definitions.
* In the previous paragraph, “Read” means reading in the usual sense of the word and, accordingly, to avoid doubt, includes: high-speed reading, listening to audio books, etc.
Risks: 0/10
Prevalence: 7/10
Irritation: 3/10
In the agreement, it is necessary to determine the dates: the end of the periods for the provision of services, the notification periods and so on. And in this requirement it is easy to make a mistake. A correctly defined period of time should be interpreted without any doubt, ambiguity or ambiguity.
Example:
a) The site administration agrees to deliver the goods to the User within 5 days from the date of payment by the User of the full cost of the goods.
b) The site administration is obliged to deliver the goods to the User within 5 days from the date of writing off the full cost of the goods from the personal account of the User.
c) The site administration is obliged to deliver the goods to the User within 5 days from the date of crediting the full cost of the goods to the account of the Administration.
In the first version, the lawyer did not take into account that the payment can be made up to 2 banking days. There is also a risk of a technical malfunction in the operation of payment systems. As a result, it is likely that the goods will be delivered in violation of the terms. Option "b" is applicable for sites with their own settlement system. Legally competent - compiled option "c".
Risks: 7/10
Prevalence: 5/10
Irritation: 7/10
Quite often, agreements include provisions that may be invalidated. The deliberate inclusion of invalid provisions usually does not entail negative consequences for the company. Such clauses of the agreement are uncertain: their implementation is associated with a psychological impact on the user. As a result, such rules can be invoked when settling a dispute in a claim.
Risks arise when a lawyer draws up such provisions without realizing their legal consequences.
Risks: 6/10
Prevalence: 5/10
Irritation: 5/10
User agreements are mainly designed for mass conclusion by joining on the terms of the provider. Customers are confident that it is very simple to limit or exclude the liability of the parties to the contract. As a result, the provisions of the agreements protect the interests of the site administration as much as possible. The obligations of the User, which are clearly burdensome, are unilaterally prescribed. Take, for example, a modest clause of the agreement: "The Site Administration is not responsible for the quality of the services provided . "
However, judicial practice is on the side of consumers, since the contracting party is virtually deprived of the opportunity to influence conditions that substantially violate the balance of interests of the parties. The court has the right to apply the provisions of Article 428 of the Civil Code of the Russian Federation to such an agreement and declare the transaction invalid.
Risks: 8/10
Prevalence: 6/10
Irritation: 8/10
The arbitration clause provides that disputes must be referred to arbitration at the location of the Site Administration. Many conventions contain this article. However, in most agreements it is inappropriate. The key point is the relationship between the user agreement and intellectual property rights - disputes in this area are often subject to consideration in administrative bodies.
It is also necessary to consider that the User is almost always a consumer of goods and services. And disputes about protecting consumer rights are subordinate to the courts of general jurisdiction.
Risks: 0/10
Prevalence: 5/10
Irritation: 8/10
1. Terms and concepts
The most common variant of this error is the use of “one-time definitions”. Of course, “one-time definitions” can be used, but only for abstract and complex terms. It is also often possible to find unused terms in an agreement (for example: “offer”).
The main task of the “Terms and Concepts” section is to eliminate contradictions in the understanding and interpretation of words. In this connection, it is unreasonable to spell out the terms enshrined in the legislation: “Service”, “Personal Data”, etc.
Why is it necessary to avoid unnecessary terms? Answer: It is difficult to read the * agreement and constantly refer to definitions.
* In the previous paragraph, “Read” means reading in the usual sense of the word and, accordingly, to avoid doubt, includes: high-speed reading, listening to audio books, etc.
Risks: 0/10
Prevalence: 7/10
Irritation: 3/10
2. Inaccuracies in determining the timing
In the agreement, it is necessary to determine the dates: the end of the periods for the provision of services, the notification periods and so on. And in this requirement it is easy to make a mistake. A correctly defined period of time should be interpreted without any doubt, ambiguity or ambiguity.
Example:
a) The site administration agrees to deliver the goods to the User within 5 days from the date of payment by the User of the full cost of the goods.
b) The site administration is obliged to deliver the goods to the User within 5 days from the date of writing off the full cost of the goods from the personal account of the User.
c) The site administration is obliged to deliver the goods to the User within 5 days from the date of crediting the full cost of the goods to the account of the Administration.
In the first version, the lawyer did not take into account that the payment can be made up to 2 banking days. There is also a risk of a technical malfunction in the operation of payment systems. As a result, it is likely that the goods will be delivered in violation of the terms. Option "b" is applicable for sites with their own settlement system. Legally competent - compiled option "c".
Risks: 7/10
Prevalence: 5/10
Irritation: 7/10
3. The invalidity of certain provisions of the contract
Quite often, agreements include provisions that may be invalidated. The deliberate inclusion of invalid provisions usually does not entail negative consequences for the company. Such clauses of the agreement are uncertain: their implementation is associated with a psychological impact on the user. As a result, such rules can be invoked when settling a dispute in a claim.
Risks arise when a lawyer draws up such provisions without realizing their legal consequences.
Risks: 6/10
Prevalence: 5/10
Irritation: 5/10
4. Limitation of consumer rights
User agreements are mainly designed for mass conclusion by joining on the terms of the provider. Customers are confident that it is very simple to limit or exclude the liability of the parties to the contract. As a result, the provisions of the agreements protect the interests of the site administration as much as possible. The obligations of the User, which are clearly burdensome, are unilaterally prescribed. Take, for example, a modest clause of the agreement: "The Site Administration is not responsible for the quality of the services provided . "
However, judicial practice is on the side of consumers, since the contracting party is virtually deprived of the opportunity to influence conditions that substantially violate the balance of interests of the parties. The court has the right to apply the provisions of Article 428 of the Civil Code of the Russian Federation to such an agreement and declare the transaction invalid.
Risks: 8/10
Prevalence: 6/10
Irritation: 8/10
5. Inappropriate arbitration clauses
The arbitration clause provides that disputes must be referred to arbitration at the location of the Site Administration. Many conventions contain this article. However, in most agreements it is inappropriate. The key point is the relationship between the user agreement and intellectual property rights - disputes in this area are often subject to consideration in administrative bodies.
It is also necessary to consider that the User is almost always a consumer of goods and services. And disputes about protecting consumer rights are subordinate to the courts of general jurisdiction.
Risks: 0/10
Prevalence: 5/10
Irritation: 8/10