
Ask HN: Why have a "Terms and Conditions" on your site? - zepolen
What sort of legal protection can such a document offer?
Apart from the fact that it is very difficult to prove that a person actually agreed to a TOS when signing up, the TOS itself can't be proven to be the one agreed to.<p>The internet is transient, and there is currently no way to have a 3rd party "endorse" that a /specific/ agreement occured between two parties like with normal paper contracts, what is the point of offering a TOS on your site in the first place?<p>I can think of a myriad of possibilities where both the site and the user can exploit these issues. Like for example a website sending spam despite claiming in their TOS that they wouldn't.
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gojomo
IANAL, but I think the most important aspect is to give you cover for the
kinds of self-protective measures you might need to take -- like
disabling/blocking certain users or IPs, deleting certain user content, etc.

In the absence of any TOS, a litigious disgruntled user might portray your
actions as unfair according to some implied standards of continued service,
etc. By making your scope of actions explicit before the fact, their argument
becomes weaker.

That is: you're unlikely to be able to hold a TOS violation against a user for
any damages, but it will provide cover for your own self-defense actions.

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dkokelley
The TOS isn't meant to protect the users. It's the user's job to protect the
users. The TOS is to protect the site.

Say someone uses your site which provides a free service. For whatever reason,
the service is disabled for a day. Now let's say a user decides that they were
harmed by the service being down and decide to sue. It's a good thing you have
a TOS that states "The services offered through this site are provided as-is
and without warranty. We may discontinue service or cancel accounts at any
time with or without reason."

I understand that there is a potential for fraud from the site, such as when
the site decides to add a line after being sued that retroactively protects
them, but the burden of proof is on the accuser and there are ways of checking
revisions to a site (checking Google's cache or recent edit logs could help to
find the truth).

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zepolen
There is a potential for fraud from the user as well - taking your example:

The user can edit the html, print if off and say that /that/ was the TOS he
agreed to.

I don't know if Google cache or the wayback archive are usable as evidence,
that would be for a court to decide, but there is always the possibility that
they didn't catch it, and the user can always say 'on X date, when I joined
up, it said this and this (with the fake printout)', now the site has to prove
otherwise.

In fact the user can just claim he never agreed to such a TOS, that no 'I have
read and accepted the TOS' checkbox was displayed to him at any time.

~~~
dkokelley
That's why there is another clause that states "We reserve the right to modify
these terms and conditions at any time and for any reason, with or without
explicit notification to you."

This is why you always hear "be sure to get a good lawyer" when discussing
legal issues. It's their job to protect you from liabilities. Sure there will
always be cases where someone could present false evidence, but this is why we
have a court system.

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cvinson
Just because there isn't a paper contract doesn't mean it isn't binding. Make
sure a lawyer looks at your terms page in addition to writing the draft. I
know that I am indemnified completely with my TOS.

Also, IMO just the presence of a clear TOS is a deterrent for all but the
dedicated abusers who don't care about prosecution.

~~~
vaksel
paper contracts don't mean anything either. Even if you have one and win the
case, the other party can just not pay

~~~
dkokelley
I disagree. Some people may be considered judgment-proof, meaning they have no
assets to be sued for (O.J. Simpson, for example). However if you win a
judgment against someone who has assets but refuses to pay, a court could
order wage garnishments and even asset seizure. Basically the courts can make
you pay by taking from you. (At least, this is how it works in the USA.)

Of course cases with citizens of different nationality are different and much
more difficult to work with, even with a paper contract. Both governments must
be willing to hold their citizen up to the agreement in the contract. If I
have a contract (printed, signed, and notarized) between myself and the
deposed king of Nigeria, it would be hard for me to take the ex-king to court.

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johns
I have one for my service in case I need to remove content or close an account
for some legal reason (copyright infringement, illegal activity, etc). As far
as proving someone agreed to it, you can't sign up for my service unless you
check the box saying you agree which should be proof enough. I am not a lawyer
though.

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quizbiz
Protect yourself.... by registering to and continuing to use your site users
agree to x,y,z.

Establish trust... if your terms are reasonable then they show you are
serious. The lack of a privacy statement and terms looks suspicious to me.

