July 26, 2013 at 06:52We are preparing a user agreement with our own hands
- Tutorial
The user agreement, or as it is commonly called, the Agreement on the use of the service, is the key document on which the legal protection of the Internet service is based.
In fact, any agreement with the user of the service is aimed at legally reducing the legal risks of the owner of the Internet service in connection with its operation. It doesn’t matter whether the income from using the service or the service (license) is derived, is provided to the user free of charge. Therefore, the User Agreement for the site primarily serves as a disclaimer. Other functions of the agreement should be subordinate to the main role of the document.
The protection of the Internet service is particularly relevant in connection with the adoption of the so-called “anti-piracy law”, which is responsible for the information intermediary for posting or providing access to materials that violate the intellectual rights of third parties. The law comes into force on August 01, 2013, and therefore user agreements and the user interaction scheme must be brought into line with toughened requirements.
As an example, to explain the main mechanisms of legal protection, take a free user agreement template .
By the way, we recently monitored the use of our template. It turned out that they place it on various sites to the place and out of place. No one makes edits, except for one - the removal of a hypertext link to the author. Therefore, below we will explain how to make your own user agreement and avoid claims :)
Currently, there is a fairly wide range of information, the dissemination of which is expressly prohibited by law. First of all, these are extremist materials, information on drugs and methods of their manufacture, pornographic materials, etc. In accordance with the “anti-piracy law”, any information aimed at gaining access to films (including links, a directory of torrent services, etc.) can be classified as prohibited information.
By agreeing to the User Agreement, the user enters into a civil contract with the owner of the Internet service, the subject of which, as a rule, is related to the provision of services (work) or the provision of a license. Therefore, the agreement needs to outperform the possible legal risks. This provision is especially important for services provided on a paid basis.
Service monetization can be performed on an advertising basis. In this case, the aforementioned risks are supplemented with the possibility of bringing to responsibility for the distribution of unfair or unreliable advertising.
A fairly frequent situation, taking into account the love of Russian users to independently solve problems requiring high qualifications. Such services include, for example, various "medical" sites that host doctors' consultations, description of treatment methods, indications for the use of medicines, diets, etc. means and methods of "improving" health.
This reason is primarily associated with the dissemination of false information defaming the honor, dignity or business reputation of a third party. There may also be claims in connection with a violation of the right to an image of a citizen, copyright in the name, etc.
As a rule, this reason is associated with the dissemination of unfair advertising or information that discredits the business reputation of a competitor.
In order to give legal force to the disclaimer included in the text of the agreement with the user, it is necessary to confirm the fact of familiarization and acceptance by the user of its conditions. For this, the mechanism for concluding contracts provided by law is used.
As we indicated above, the placement of the User Agreement on the website of the Internet service is aimed at concluding a contract with the user. Section 1 of the user agreement template is aimed at providing a mechanism for legally binding the relations of the parties on the terms of the User Agreement without any reservations.
This issue is worthy of a separate discussion on the topic of using a service license under a SaaS agreement. Therefore, here we will not particularly delve into its consideration. We only note that the risks of using a licensed scheme exist with paid services and are associated with the possibility of re-qualifying an agreement for a contract for the provision of services for a fee. If the owner of the service applies VAT privileges in connection with the licensing of the software of such a service, the re-qualification of the transaction will entail the imposition of a VAT arrears (18% of the sale amount), penalty interest and tax liability (penalty of 20% of the arrears amount).
This user agreement template is designed for free services, so the owner does not have the above tax risks. At the same time, he gets additional benefits in reducing civil risks, since the results of creativity, which include the law on the sites as a whole and the copyright objects included in their objects, are protected regardless of their merits and can be provided for use “as is”, t. e. without additional guarantees of merchantability and quality (see section 3 of the User Agreement template).
This principle allows you to use the benefits of the licensing scheme specified in paragraph 2. At the same time, the license’s gratuity prevents the application of the Law on the Protection of Consumer Rights when the user is an individual (see clause 6.1. Of the User Agreement template).
If the requirements in clause 3 are a condition for applying the licensed scheme for the provision of the service, then these provisions are its consequence. In the User Agreement, it is necessary to clearly state the conditions for limiting liability for the provision and use of the service, for example, as is done in clause 6.2. User Agreement template.
As a general rule, liability for obligations not related to entrepreneurial activity arises only if the offender is guilty (Articles 400, 401 of the Civil Code of the Russian Federation). In addition, the law allows you to conclude an agreement on limitation of liability in advance (except in cases of intentional violation).
Therefore, the User Agreement for the use of the Internet service may include a condition on holding the service owner liable only if he is guilty.
Force majeure (force majeure circumstances) on the basis of Clause 3, Article 401 of the Civil Code of the Russian Federation also exempts from liability in cases of violation of the obligation in the absence of fault.
Based on Article 400 of the Civil Code of the Russian Federation, the liability of the owner of an Internet service can be limited by the maximum size. The exception is cases when the user acts as a consumer and the law establishes a certain amount of liability for this violation.
Earlier, we indicated that in the case of the gratuitous provision of the service, the user is not considered a consumer within the meaning of civil law. Therefore, this exception does not apply. In the case of the provision of a paid service, the amount of liability is determined, inter alia, depending on the type of contract concluded.
In the case of providing a social service or platform for users to post various materials in the public domain, it is necessary to draw up a license agreement for the use of such content as part of such an Internet service (see section 5 of the User Agreement template).
For example, the owner of the service may want to use custom content on other pages of the site, in presentations, broadcast it to other sites, etc., which is impossible without obtaining the appropriate permission.
Obtaining a license confirms the fact of using the content with the permission of the user, who is responsible for having the authority to issue such a license (see clauses 6.3, 6.5., 6.11 of the User Agreement template).
Obtaining a license for user content does not fully eliminate the owner of the Internet service from liability for violation of the exclusive rights of the actual copyright holder. Among other things, it must be confirmed that the owner was not aware of a possible violation. Therefore, in the User Agreement, it is necessary to clearly indicate that preliminary verification of the content is not performed (see clause 6.4.).
To simplify work with copyright holders, the User Agreement includes conditions on the need to provide a link to a page with counterfeit material and an address for sending a notification of violation of rights (see clause 6.7. User agreement).
In order to confirm the fact of the existence of the user, who, in accordance with the law and the agreement, is responsible for posting counterfeit material, the User Agreement should provide for authorization in case of receipt of a claim (see clause 6.8 of the agreement with the user).
Compliance with the requirements of the Federal Law on Information as amended by the new anti-piracy law involves the removal by the information intermediary of controversial materials on the first appeal of the copyright holder. Therefore, the User Agreement must provide the owner of the Internet service with this opportunity without prior approval and notification to the user (see clauses 6.9 and 6.10).
The provisions of clauses 8-13 are aimed at fulfilling the requirements of the law on the completion by the owner of an Internet resource as an information intermediary of all necessary actions to eliminate possible violations of the intellectual rights of third parties.
This reason reduces the tax risks of gratuitous sales (times) and provides additional arguments in favor of limiting liability (two) and the temporary nature of obligations (three).
Article 450 of the Civil Code of the Russian Federation allows you to reach an agreement in advance on a simplified procedure for amending or terminating an agreement by including such conditions in the text of the agreement (see clause 9.4 of the User Agreement).
If, along with the free use of the general functionality of the service, you offer to pay for some of its features, you need to draw up a separate contract for paid services.
This is required, firstly, to justify the continuation of the provision of basic functionality free of charge, and secondly, to maintain the adopted model of reducing civil risks.
This procedure greatly simplifies the process of proving the fact of the provision of services, reflecting the amounts of sales and workflow, as services are considered to be provided from the moment of opening access for a certain period, and not after the expiration of such a period of time.
Actions performed using the username and password of the user should be clearly considered as actions of the user himself. The user must be held responsible for ensuring the safety of their credentials (see 2.3. Of the template).
If your service is related to advertising, it is necessary to provide requirements for advertising materials placed using your system. Usually this is done by including in the User Agreement a link to a separate regulation, which is binding on the parties and includes the conditions for advertising and the requirements for its design, content and confirmation of compliance with the law when placing it.
In the event of the conclusion of the User Agreement with an individual, it becomes necessary to comply with the legislation on personal data. A written consent must be obtained from the user for the processing of his personal data , indicating a list of such data, acceptable methods of processing, goals and duration of processing, etc. (see section 8 of the template).
This provision of the Agreement is aimed at compliance with the requirements to prevent SPAM (see section 7 of the template).
This concludes the description of the basic principles for compiling the User Agreement. Of course, the proposed provisions should be applied taking into account the specifics of a particular Internet service. Therefore, the terms of the agreement can be significantly expanded or, conversely, reduced and adapted depending on the mechanics and commercial conditions for the provision of the service.
A source
In fact, any agreement with the user of the service is aimed at legally reducing the legal risks of the owner of the Internet service in connection with its operation. It doesn’t matter whether the income from using the service or the service (license) is derived, is provided to the user free of charge. Therefore, the User Agreement for the site primarily serves as a disclaimer. Other functions of the agreement should be subordinate to the main role of the document.
The protection of the Internet service is particularly relevant in connection with the adoption of the so-called “anti-piracy law”, which is responsible for the information intermediary for posting or providing access to materials that violate the intellectual rights of third parties. The law comes into force on August 01, 2013, and therefore user agreements and the user interaction scheme must be brought into line with toughened requirements.
As an example, to explain the main mechanisms of legal protection, take a free user agreement template .
By the way, we recently monitored the use of our template. It turned out that they place it on various sites to the place and out of place. No one makes edits, except for one - the removal of a hypertext link to the author. Therefore, below we will explain how to make your own user agreement and avoid claims :)
Grounds for liability
1. Distribution of prohibited information and materials
Currently, there is a fairly wide range of information, the dissemination of which is expressly prohibited by law. First of all, these are extremist materials, information on drugs and methods of their manufacture, pornographic materials, etc. In accordance with the “anti-piracy law”, any information aimed at gaining access to films (including links, a directory of torrent services, etc.) can be classified as prohibited information.
2. Violation of contractual obligations in terms and / or quality of services
By agreeing to the User Agreement, the user enters into a civil contract with the owner of the Internet service, the subject of which, as a rule, is related to the provision of services (work) or the provision of a license. Therefore, the agreement needs to outperform the possible legal risks. This provision is especially important for services provided on a paid basis.
3. Inappropriate advertising
Service monetization can be performed on an advertising basis. In this case, the aforementioned risks are supplemented with the possibility of bringing to responsibility for the distribution of unfair or unreliable advertising.
4. Non-contractual damage to property, health or life
A fairly frequent situation, taking into account the love of Russian users to independently solve problems requiring high qualifications. Such services include, for example, various "medical" sites that host doctors' consultations, description of treatment methods, indications for the use of medicines, diets, etc. means and methods of "improving" health.
5. Infringement of personal non-property rights
This reason is primarily associated with the dissemination of false information defaming the honor, dignity or business reputation of a third party. There may also be claims in connection with a violation of the right to an image of a citizen, copyright in the name, etc.
6. Unfair competition
As a rule, this reason is associated with the dissemination of unfair advertising or information that discredits the business reputation of a competitor.
Ways to limit liability by determining the type and content of the contract
1. Unconditional accession to the conditions of the public offer
In order to give legal force to the disclaimer included in the text of the agreement with the user, it is necessary to confirm the fact of familiarization and acceptance by the user of its conditions. For this, the mechanism for concluding contracts provided by law is used.
As we indicated above, the placement of the User Agreement on the website of the Internet service is aimed at concluding a contract with the user. Section 1 of the user agreement template is aimed at providing a mechanism for legally binding the relations of the parties on the terms of the User Agreement without any reservations.
2. Replacement of services with a license for the use of software and hardware
This issue is worthy of a separate discussion on the topic of using a service license under a SaaS agreement. Therefore, here we will not particularly delve into its consideration. We only note that the risks of using a licensed scheme exist with paid services and are associated with the possibility of re-qualifying an agreement for a contract for the provision of services for a fee. If the owner of the service applies VAT privileges in connection with the licensing of the software of such a service, the re-qualification of the transaction will entail the imposition of a VAT arrears (18% of the sale amount), penalty interest and tax liability (penalty of 20% of the arrears amount).
This user agreement template is designed for free services, so the owner does not have the above tax risks. At the same time, he gets additional benefits in reducing civil risks, since the results of creativity, which include the law on the sites as a whole and the copyright objects included in their objects, are protected regardless of their merits and can be provided for use “as is”, t. e. without additional guarantees of merchantability and quality (see section 3 of the User Agreement template).
3. License license
This principle allows you to use the benefits of the licensing scheme specified in paragraph 2. At the same time, the license’s gratuity prevents the application of the Law on the Protection of Consumer Rights when the user is an individual (see clause 6.1. Of the User Agreement template).
4. Disclaimer of warranties and the provision of the service "as is"
If the requirements in clause 3 are a condition for applying the licensed scheme for the provision of the service, then these provisions are its consequence. In the User Agreement, it is necessary to clearly state the conditions for limiting liability for the provision and use of the service, for example, as is done in clause 6.2. User Agreement template.
5. Responsibility for fault
As a general rule, liability for obligations not related to entrepreneurial activity arises only if the offender is guilty (Articles 400, 401 of the Civil Code of the Russian Federation). In addition, the law allows you to conclude an agreement on limitation of liability in advance (except in cases of intentional violation).
Therefore, the User Agreement for the use of the Internet service may include a condition on holding the service owner liable only if he is guilty.
6. Force Majeure and Actions of Third Parties
Force majeure (force majeure circumstances) on the basis of Clause 3, Article 401 of the Civil Code of the Russian Federation also exempts from liability in cases of violation of the obligation in the absence of fault.
7. Introduction of the maximum amount of compensation
Based on Article 400 of the Civil Code of the Russian Federation, the liability of the owner of an Internet service can be limited by the maximum size. The exception is cases when the user acts as a consumer and the law establishes a certain amount of liability for this violation.
Earlier, we indicated that in the case of the gratuitous provision of the service, the user is not considered a consumer within the meaning of civil law. Therefore, this exception does not apply. In the case of the provision of a paid service, the amount of liability is determined, inter alia, depending on the type of contract concluded.
8. Obtaining a user content license (UGC) when adding it
In the case of providing a social service or platform for users to post various materials in the public domain, it is necessary to draw up a license agreement for the use of such content as part of such an Internet service (see section 5 of the User Agreement template).
For example, the owner of the service may want to use custom content on other pages of the site, in presentations, broadcast it to other sites, etc., which is impossible without obtaining the appropriate permission.
9. Blaming UGC for Users
Obtaining a license confirms the fact of using the content with the permission of the user, who is responsible for having the authority to issue such a license (see clauses 6.3, 6.5., 6.11 of the User Agreement template).
10. Lack of pre-moderation
Obtaining a license for user content does not fully eliminate the owner of the Internet service from liability for violation of the exclusive rights of the actual copyright holder. Among other things, it must be confirmed that the owner was not aware of a possible violation. Therefore, in the User Agreement, it is necessary to clearly indicate that preliminary verification of the content is not performed (see clause 6.4.).
11. Rules of the copyright holder
To simplify work with copyright holders, the User Agreement includes conditions on the need to provide a link to a page with counterfeit material and an address for sending a notification of violation of rights (see clause 6.7. User agreement).
12. Introduction of the procedure for the user to enter into a dispute (authorization)
In order to confirm the fact of the existence of the user, who, in accordance with the law and the agreement, is responsible for posting counterfeit material, the User Agreement should provide for authorization in case of receipt of a claim (see clause 6.8 of the agreement with the user).
13. Determining the conditions for blocking the account and deleting content
Compliance with the requirements of the Federal Law on Information as amended by the new anti-piracy law involves the removal by the information intermediary of controversial materials on the first appeal of the copyright holder. Therefore, the User Agreement must provide the owner of the Internet service with this opportunity without prior approval and notification to the user (see clauses 6.9 and 6.10).
The provisions of clauses 8-13 are aimed at fulfilling the requirements of the law on the completion by the owner of an Internet resource as an information intermediary of all necessary actions to eliminate possible violations of the intellectual rights of third parties.
14. The test nature of the service
This reason reduces the tax risks of gratuitous sales (times) and provides additional arguments in favor of limiting liability (two) and the temporary nature of obligations (three).
15. The simplified procedure for changing the conditions and withdrawal of the offer, termination of the contract
Article 450 of the Civil Code of the Russian Federation allows you to reach an agreement in advance on a simplified procedure for amending or terminating an agreement by including such conditions in the text of the agreement (see clause 9.4 of the User Agreement).
16. Separation of conditions for the provision of paid services in a separate agreement
If, along with the free use of the general functionality of the service, you offer to pay for some of its features, you need to draw up a separate contract for paid services.
This is required, firstly, to justify the continuation of the provision of basic functionality free of charge, and secondly, to maintain the adopted model of reducing civil risks.
17. Charging for access to functionality, not services based on it
This procedure greatly simplifies the process of proving the fact of the provision of services, reflecting the amounts of sales and workflow, as services are considered to be provided from the moment of opening access for a certain period, and not after the expiration of such a period of time.
18. Disclaimer for the use of credentials
Actions performed using the username and password of the user should be clearly considered as actions of the user himself. The user must be held responsible for ensuring the safety of their credentials (see 2.3. Of the template).
19. Introduction of requirements for the placed advertising materials
If your service is related to advertising, it is necessary to provide requirements for advertising materials placed using your system. Usually this is done by including in the User Agreement a link to a separate regulation, which is binding on the parties and includes the conditions for advertising and the requirements for its design, content and confirmation of compliance with the law when placing it.
20. Obtaining consent to the use of personal data
In the event of the conclusion of the User Agreement with an individual, it becomes necessary to comply with the legislation on personal data. A written consent must be obtained from the user for the processing of his personal data , indicating a list of such data, acceptable methods of processing, goals and duration of processing, etc. (see section 8 of the template).
21. Determining the acceptable order for notifying users
This provision of the Agreement is aimed at compliance with the requirements to prevent SPAM (see section 7 of the template).
This concludes the description of the basic principles for compiling the User Agreement. Of course, the proposed provisions should be applied taking into account the specifics of a particular Internet service. Therefore, the terms of the agreement can be significantly expanded or, conversely, reduced and adapted depending on the mechanics and commercial conditions for the provision of the service.
A source
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Where did you get the agreement for your site?
- 31.1% Developed by myself 19
- 13.1% Composed by lawyer 8
- 55.7% Found on the Internet 34