Preparing a user agreement with your own hands
The User Agreement, or as it is also called, the Agreement on the use of the service, is the key document on which the legal protection of the Internet service is built.
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 does not matter if the income from using the service or service (license) is extracted to the user for free. Therefore, the User Agreement for the site primarily acts as a disclaimer. Other functions of the agreement should be subordinate to the main role of the document.
Of particular relevance is the protection of the Internet service acquired 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 user interaction scheme must be brought into line with stricter requirements.
As an example, in order to clarify the basic mechanisms of legal protection, we take a free template for a user agreement .
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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. Nobody introduces the edits, except for one - the removal of the 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 materials of an extremist nature, information about drugs and methods of their production, pornographic materials, etc. In accordance with the “anti-piracy law”, any information aimed at obtaining access to films (including links, a directory of torrent services, etc.) can be classified as prohibited information.
Agreeing with the User Agreement, the user enters into a civil law contract with the owner of the Internet service, the subject of which, as a rule, concerns the provision of services (performance of work) or the granting of a license. Therefore, in the agreement you need to beat the possible legal risks. Especially this provision is important for services provided on a fee basis.
Service monetization can be performed on an advertising basis. In this case, the possibility of bringing to responsibility for the distribution of unfair or inaccurate advertising is added to the above-mentioned risks.
Quite a common situation, taking into account the love of Russian users for the independent solution of tasks requiring high qualification. These services include, for example, various “medical” sites that host consultations of doctors, a description of treatment methods, indications on the use of medicines, diets, and so on. means and ways to "improve" health.
This basis is primarily associated with the dissemination of false information, tarnishing the honor, dignity or business reputation of a third party. It may also be claims in connection with the violation of the right to image of a citizen, copyright in the name, etc.
As a rule, this basis is connected with the dissemination of unfair advertising or information discrediting the business reputation of a competitor.
To validate the disclaimer included in the text of the user agreement, it is necessary to confirm that the user has read and accepted the terms. For this purpose, the mechanism for concluding contracts provided for by the legislation is used.
As we indicated above, the placement of the User Agreement on the website of the Internet service is aimed at concluding an agreement 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 under the theme of using the license for the service under the SaaS agreement. Therefore, here we will not go deep into his consideration. We only note that the risks of using the licensing scheme exist for paid services and are associated with the possibility of retraining an agreement for a paid service agreement. If the owner of the service uses VAT exemptions in connection with the licensing of the software of such a service, the retraining of the transaction will result in imputation of VAT arrears (18% of the sales amount), penalties and tax liability (a penalty of 20% of the arrears).
The considered user agreement template is designed for free services, so the owner does not have the above tax risks. At the same time, it receives additional benefits in reducing civilian risks, since the results of creativity, which the law includes sites in general and included in their copyright objects, are protected regardless of their dignity and can be provided for use "as is", t. e. without additional warranties of merchantability and quality (see section 3 of the User Agreement template).
This principle allows to use the advantages of the licensing scheme indicated in paragraph 2. At the same time, the gratuitousness of the license prevents the application of the Law on the Protection of Consumer Rights when there is an individual on the user's side (see clause 6.1 of the User Agreement template).
If the requirements in clause 3 are a condition for applying the licensed service provision scheme, then these provisions are its consequence. In the User Agreement it is necessary with sufficient clarity to state the conditions on the limitation of liability for the provision and use of the service, for example, as was done in clause 6.2. User Agreement Template
As a general rule, liability for obligations not related to entrepreneurial activity arises only if the violator is guilty (Article 400, 401 of the Civil Code of the Russian Federation). In addition, the law allows for the conclusion of an agreement on limitation of liability (except in cases of intentional violation).
Therefore, the User Agreement for the use of the Internet service may include a condition on making the owner of the service liable only if he is guilty.
Force majeure (force majeure circumstances) on the basis of paragraph 3 of article 401 of the Civil Code of the Russian Federation also exempts from liability in cases of violation of an obligation in the absence of guilt.
On the basis of Article 400 of the Civil Code of the Russian Federation, the responsibility of the owner of the Internet service may be limited to the maximum size. The exceptions are cases when the user acts as a consumer and the law establishes a certain amount of responsibility for this violation.
Previously, we indicated that in the case of gratuitous service, the user is not considered a consumer within the meaning of civil law. Therefore, this exception does not apply. In the case of a paid service, the amount of responsibility is determined, including depending on the type of contract entered into.
If a social service or platform is provided for users to post various materials in public access, 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 use of 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 real copyright holder. Among other things, it is necessary to confirm that the owner did not know about the possible violation. Therefore, in the User Agreement it is necessary to clearly indicate that the preliminary content check is not performed (see section 6.4.).
To simplify work with copyright holders, the User Agreement includes conditions on the need to provide a link to the page with counterfeit material and the address for sending a notice of violation of rights (see clause 6.7. Of the User Agreement).
To confirm the existence of the user, who is responsible for placing counterfeit material in accordance with the law and agreement, the User Agreement should provide for its authorization in the event of a claim (see clause 6.8. Of the user agreement).
Compliance with the requirements of the federal law On Information in the wording of the new anti-piracy law implies the removal by the information intermediary of the disputed materials on the first appeal of the right holder. Therefore, the User Agreement should provide the owner of the Internet service with such an opportunity without prior approval and notification of the user (see clauses 6.9 and 6.10).
The provisions of paragraphs 8-13 are aimed at meeting the requirements of the legislation on the owner of an Internet resource as an information intermediary for all necessary actions to eliminate possible violations of third-party intellectual property rights.
This reason reduces the tax risks of gratuitous realization (once) and serves as an additional argument in favor of limiting liability (two) and the temporary nature of obligations (three).
Article 450 of the Civil Code of the Russian Federation allows an agreement to be reached in advance on a simplified procedure for changing or terminating an agreement by including such conditions in the text of the agreement (see section 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 issue a separate contract for paid services.
This is required, firstly, to justify the continuation of gratuitous provision of basic functionality, and secondly, to preserve the accepted model of reducing civilian risks.
This procedure greatly simplifies the process of proving the fact of the provision of services, the reflection of the amounts of sales and workflow, because services are considered to be rendered from the moment of opening access for a certain period, and not after such a period of time has expired.
Actions performed using the user’s login and password should be uniquely regarded as the actions of the user himself. The user must be responsible for maintaining the security of their credentials (see 2.3. Template).
If your service is related to the placement of advertising, it is necessary to provide requirements for advertising materials placed using your system. This is usually done by including in the User Agreement a link to a separate regulation that is binding on the parties and includes the conditions for the placement of advertisements and the requirements for its design, content and confirmation of compliance with the law when it is posted.
In the case of a User Agreement with an individual, it becomes necessary to comply with the legislation on personal data. The user must have received a written consent to the processing of his personal data with an indication of the list of such data, permissible methods of their processing, goals and processing time, etc. (see section 8 of the template).
This provision of the Agreement is aimed at complying with the requirements for spam non-admission (see section 7 of the template).
This concludes the description of the basic principles of 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 of 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 does not matter if the income from using the service or service (license) is extracted to the user for free. Therefore, the User Agreement for the site primarily acts as a disclaimer. Other functions of the agreement should be subordinate to the main role of the document.
Of particular relevance is the protection of the Internet service acquired 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 user interaction scheme must be brought into line with stricter requirements.
As an example, in order to clarify the basic mechanisms of legal protection, we take a free template for a user agreement .
')
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. Nobody introduces the edits, except for one - the removal of the hypertext link to the author. Therefore, below we will explain how to make your own user agreement and avoid claims :)
Grounds for liability
1. Dissemination 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 materials of an extremist nature, information about drugs and methods of their production, pornographic materials, etc. In accordance with the “anti-piracy law”, any information aimed at obtaining access to films (including links, a directory of torrent services, etc.) can be classified as prohibited information.
2. Breach of contractual obligations on terms and / or quality of services
Agreeing with the User Agreement, the user enters into a civil law contract with the owner of the Internet service, the subject of which, as a rule, concerns the provision of services (performance of work) or the granting of a license. Therefore, in the agreement you need to beat the possible legal risks. Especially this provision is important for services provided on a fee basis.
3. Inappropriate advertising
Service monetization can be performed on an advertising basis. In this case, the possibility of bringing to responsibility for the distribution of unfair or inaccurate advertising is added to the above-mentioned risks.
4. Non-contractual damage to property, health or life
Quite a common situation, taking into account the love of Russian users for the independent solution of tasks requiring high qualification. These services include, for example, various “medical” sites that host consultations of doctors, a description of treatment methods, indications on the use of medicines, diets, and so on. means and ways to "improve" health.
5. Infringement of personal non-property rights
This basis is primarily associated with the dissemination of false information, tarnishing the honor, dignity or business reputation of a third party. It may also be claims in connection with the violation of the right to image of a citizen, copyright in the name, etc.
6. Unfair competition
As a rule, this basis is connected with the dissemination of unfair advertising or information discrediting the business reputation of a competitor.
Ways of limiting liability by determining the type and content of the contract
1. Unconditional adherence to the terms of the public offer
To validate the disclaimer included in the text of the user agreement, it is necessary to confirm that the user has read and accepted the terms. For this purpose, the mechanism for concluding contracts provided for by the legislation is used.
As we indicated above, the placement of the User Agreement on the website of the Internet service is aimed at concluding an agreement 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. Replacing services with a license to use software and hardware
This issue is worthy of a separate discussion under the theme of using the license for the service under the SaaS agreement. Therefore, here we will not go deep into his consideration. We only note that the risks of using the licensing scheme exist for paid services and are associated with the possibility of retraining an agreement for a paid service agreement. If the owner of the service uses VAT exemptions in connection with the licensing of the software of such a service, the retraining of the transaction will result in imputation of VAT arrears (18% of the sales amount), penalties and tax liability (a penalty of 20% of the arrears).
The considered user agreement template is designed for free services, so the owner does not have the above tax risks. At the same time, it receives additional benefits in reducing civilian risks, since the results of creativity, which the law includes sites in general and included in their copyright objects, are protected regardless of their dignity and can be provided for use "as is", t. e. without additional warranties of merchantability and quality (see section 3 of the User Agreement template).
3. Grant of license
This principle allows to use the advantages of the licensing scheme indicated in paragraph 2. At the same time, the gratuitousness of the license prevents the application of the Law on the Protection of Consumer Rights when there is an individual on the user's side (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 service provision scheme, then these provisions are its consequence. In the User Agreement it is necessary with sufficient clarity to state the conditions on the limitation of liability for the provision and use of the service, for example, as was done in clause 6.2. User Agreement Template
5. Responsibility in the presence of guilt
As a general rule, liability for obligations not related to entrepreneurial activity arises only if the violator is guilty (Article 400, 401 of the Civil Code of the Russian Federation). In addition, the law allows for the conclusion of an agreement on limitation of liability (except in cases of intentional violation).
Therefore, the User Agreement for the use of the Internet service may include a condition on making the owner of the service liable only if he is guilty.
6. Force majeure and actions of third parties
Force majeure (force majeure circumstances) on the basis of paragraph 3 of article 401 of the Civil Code of the Russian Federation also exempts from liability in cases of violation of an obligation in the absence of guilt.
7. The introduction of the maximum amount of compensation
On the basis of Article 400 of the Civil Code of the Russian Federation, the responsibility of the owner of the Internet service may be limited to the maximum size. The exceptions are cases when the user acts as a consumer and the law establishes a certain amount of responsibility for this violation.
Previously, we indicated that in the case of gratuitous service, the user is not considered a consumer within the meaning of civil law. Therefore, this exception does not apply. In the case of a paid service, the amount of responsibility is determined, including depending on the type of contract entered into.
8. Obtaining a User Content License (UGC) when it is added
If a social service or platform is provided for users to post various materials in public access, 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. Responsibility for UGC to users
Obtaining a license confirms the use of 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 real copyright holder. Among other things, it is necessary to confirm that the owner did not know about the possible violation. Therefore, in the User Agreement it is necessary to clearly indicate that the preliminary content check is not performed (see section 6.4.).
11. Rules of appeal of the copyright holder
To simplify work with copyright holders, the User Agreement includes conditions on the need to provide a link to the page with counterfeit material and the address for sending a notice of violation of rights (see clause 6.7. Of the User Agreement).
12. Introducing the procedure for entering a user into a dispute (authorization)
To confirm the existence of the user, who is responsible for placing counterfeit material in accordance with the law and agreement, the User Agreement should provide for its authorization in the event of a claim (see clause 6.8. Of the user agreement).
13. Definition of conditions for blocking an account and deleting content
Compliance with the requirements of the federal law On Information in the wording of the new anti-piracy law implies the removal by the information intermediary of the disputed materials on the first appeal of the right holder. Therefore, the User Agreement should provide the owner of the Internet service with such an opportunity without prior approval and notification of the user (see clauses 6.9 and 6.10).
The provisions of paragraphs 8-13 are aimed at meeting the requirements of the legislation on the owner of an Internet resource as an information intermediary for all necessary actions to eliminate possible violations of third-party intellectual property rights.
14. Test service nature
This reason reduces the tax risks of gratuitous realization (once) and serves as an additional argument in favor of limiting liability (two) and the temporary nature of obligations (three).
15. Simplified procedure for changing the conditions and withdrawal of an offer, termination of the contract
Article 450 of the Civil Code of the Russian Federation allows an agreement to be reached in advance on a simplified procedure for changing or terminating an agreement by including such conditions in the text of the agreement (see section 9.4 of the User Agreement).
16. Allocation of the terms of 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 issue a separate contract for paid services.
This is required, firstly, to justify the continuation of gratuitous provision of basic functionality, and secondly, to preserve the accepted model of reducing civilian risks.
17. Charging for access to the functional, not services based on it
This procedure greatly simplifies the process of proving the fact of the provision of services, the reflection of the amounts of sales and workflow, because services are considered to be rendered from the moment of opening access for a certain period, and not after such a period of time has expired.
18. Removal of responsibility for the use of credentials
Actions performed using the user’s login and password should be uniquely regarded as the actions of the user himself. The user must be responsible for maintaining the security of their credentials (see 2.3. Template).
19. Introduction of requirements for advertising materials
If your service is related to the placement of advertising, it is necessary to provide requirements for advertising materials placed using your system. This is usually done by including in the User Agreement a link to a separate regulation that is binding on the parties and includes the conditions for the placement of advertisements and the requirements for its design, content and confirmation of compliance with the law when it is posted.
20. Obtaining consent to the use of personal data
In the case of a User Agreement with an individual, it becomes necessary to comply with the legislation on personal data. The user must have received a written consent to the processing of his personal data with an indication of the list of such data, permissible methods of their processing, goals and processing time, etc. (see section 8 of the template).
21. Determining the acceptable order of user notification
This provision of the Agreement is aimed at complying with the requirements for spam non-admission (see section 7 of the template).
This concludes the description of the basic principles of 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 of service.
A source
Source: https://habr.com/ru/post/284832/
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