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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.
1 answer
This is already being discussed in a comment thread, but I'm bumping it up to an answer for visibility and so it can be voted on.
"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."
As a user, I would be very suspicious of a TOS document that includes that. It invites abuse, especially if the community has no way to validate when a TOS change was made. It opens us up to suspicion that we could sneak unfavorable changes into the TOS, something that other companies have done. We want to be open, transparent, and accountable to our communities here; it's one of the things that sets us apart.
I agree that we need to be able to modify the TOS; any service that exists for long enough will run into situations that require changes. However, I think we must notify users, in advance, as a matter of principle and possibly a matter of law. (I don't know the legal requirements of every jurisdiction in which we have users.)
We don't have code for this now, but I think we'd need to add a way for an administrator to send an inbox notification to every user on the network. I don't know if we need email notifications if we have on-site notifications, and I don't know how hard it would be to send them, but we at least need the on-site notification, in my opinion.
I agree with the other points you raised: severability, linking the privacy policy, and enabling changes (I'm just disagreeing on implementation of this last).
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