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Comments on Deficiencies in the Terms of Service
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Deficiencies in the Terms of Service
I took a look at our Terms of Service, and it seems like we are missing a provision on modifying them, a severability clause and a clause incorporating the Privacy Policy into the Terms.
This can potentially be serious, as it may not be legally justifiable or may be too risky to not explicitly state that we have the right to modify our Terms of Service, or that the terms survive any legal challenge where a provision may be struck down by a court of competent jurisdiction.
Our Privacy Policy is not mentioned in the Terms of Service at all, nor on the signup page. It therefore follows that it may have been possible that our users never agreed to it or to be bound by any of its terms.
In addition, it may be the case that without modification provisions that we must notify our users in app or via email of ALL changes to the terms, which poses an issue. While we say that use of the Service means that a user agrees to the Terms, if we update the Terms and the user visits again or logs into their account again, there isn't any explicit positive statement that the user is bound by the new terms.
The lack of a severability clause means that we run the risk of having the entire Terms declared unenforceable simply because a user challenges us in court and a ruling is made which affects a single provision only. We can't run the risk of operating with no Terms of Service.
I propose we add provisions to our Terms to the following effect: "We may update our terms from time to time without further notice to you, unless notice is required by law. Your use of the Service after the Terms are updated constitutes your acceptance of the updated Terms."; "If any provision of these terms is declared invalid or unenforceable through a legally binding process, the remaining Terms remain in full force and effect" and "You agree to be bound by our Privacy Policy [Privacy Policy is hyperlinked to it], as modified from time to time".
Unless we are prepared to get a legal opinion (whether specific to us or generally applicable) or something of similar effect and have the technologies to notify all of our users of a Terms update, it seems these kinds of issue would be ones that we should aim to fix.
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