5 frequent mistakes in the preparation of the "User Agreement"

Every lawyer is constantly looking for and, unfortunately, find errors in the contracts of other lawyers. Not all of these errors are really dangerous. For some, it is sometimes just embarrassing, while others are added on purpose or carry real risks for customers. We will evaluate each error according to the degree of risk, prevalence and irritation on the example of one of the most important documents on the site.

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 the agreement (for example: "offer").

The main objective of the section “Terms and concepts” is to eliminate contradictions in the understanding and interpretation of words. In this connection, it is unreasonable to prescribe the terms enshrined in the legislation: “Service”, “Personal data”, etc.

Why is it necessary to avoid unnecessary terms? Answer: Read * the agreement and constantly refer to the definitions difficult.
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* In the previous paragraph, “Read” means reading in the usual sense of the word and, accordingly, for the avoidance of doubt includes: speed reading, listening to audio books, etc.

Risks: 0/10
Prevalence: 7/10
Irritation: 3/10

2. Inaccuracies in the timing

The agreement is necessary to determine the dates: the end of the periods of service, the timing of notification and so on. And this requirement is easy to make a mistake. A properly defined period of time should be interpreted without any doubt, ambiguity or ambiguity.

Example:
a) The site administration undertakes 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 undertakes to deliver the goods to the User within 5 days from the moment of writing off the full value of the goods from the personal account of the User.
c) The site administration undertakes to deliver the goods to the User within 5 days from the date of crediting the full value of the goods to the current account of the Administration.

In the first option, the lawyer did not consider that the payment can be made up to 2 banking days. There is also a risk of technical malfunction in the work of payment systems. As a result, it is likely that the goods will be delivered in violation of the deadlines. Option "b" is applicable for sites with its own payment system. Legally competently - compiled option "in".

Risks: 7/10
Prevalence: 5/10
Irritation: 7/10

3. Invalidity of certain provisions of the contract

Quite often, the Agreements include provisions that may be invalidated. Deliberate inclusion of invalid provisions usually does not entail negative consequences for the company. Such clauses of the agreement are uncertain: their execution is associated with the psychological impact on the user. As a result, such rules can be invoked in dispute settlement in a complaint procedure.

Risks arise when a lawyer draws up such provisions, without being aware of 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 accession on the terms of the offeror. Customers are sure that it is very simple to limit or exclude the liability of the party under the contract. As a result, the provisions of the agreements protect the interests of the site administration to the maximum. The duties of the User are unilaterally prescribed, which are clearly burdensome. Take, for example, the modest clause of the agreement: "The administration of the Site is not responsible for the quality of the services provided . "

However, judicial practice is on the side of consumers, since the acceding party to the contract is in fact deprived of the opportunity to influence conditions that significantly disturb the balance of interests of the parties. The court has the right to apply to such an agreement the provisions of Article 428 of the Civil Code of the Russian Federation and recognize the transaction as invalid.

Risks: 8/10
Prevalence: 6/10
Irritation: 8/10

5. Inappropriate arbitration clauses.

The arbitration clause provides that disputes should be referred to arbitration at the location of the Site Administration. Many agreements contain this article. However, in most agreements, it is inappropriate. The key point is the relationship of the user agreement with intellectual rights - disputes in this area are often subject to consideration by the administrative authorities.

It is also necessary to take into account that the User is almost always a consumer of goods and services. And disputes about consumer protection are subordinated to the courts of general jurisdiction.

Risks: 0/10
Prevalence: 5/10
Irritation: 8/10