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I'm planning to provide a little service with which you can control your computer from anywere. It exists out of a server (which I will be providing), and two clients (a controlled one and a controlling one). Now I want to provide that service for a little fee. However, the server is actually a small old Dell laptop with a broken screen at my home with Ubuntu as OS. It's not very reliable, but I want to use it, because it's cheep.

Now, as I said already, the laptop maybe isn't the most reliable machine, along with my Internet connection, which also can go down if there are some unexpected problems. But I don't want to take risks, and let the user, before he pays, know that this can occur. But I also want me to be safe, so I won't need to give any money back.

It is my first application that I will be giving away for a little fee, and I don't know about the legal responsibility I have to take. Basically I don't want to give any money back, even at a 100% downtime (which will be very unlikely), but I also don't want it to be my fault if someone loses data, by using my software, even if it is a bug, or someone intercepted his data.

So, I have put this in the agreement, and this only. Is it enough and is it legally binding?

What should I also know?

  • iControl actually implements a client-server-client protocol, where one client let's the other client execute a shell command. Then the controlled client will return the termination status, the standard output, and the standard error of that command.
  • iControl uses no encryption to send data over the network. It is a potential security risk to use this service, because all data is sent raw over the network. You can compare it with the FTP protocol, the HTTP protocol, which you're using right now, and the telnet protocol.
  • iControl's maker does not in any way stand in for the damage this service can do. Not by misuse by the user, not by a bug in the software. No illegal activities maybe done using this service. The provider of this service may suspend you from his service at any time without an explanation, without a money-back guaranty. The collector of the rent fees does not need, in any circumstances, to return the payed money.
  • The iControl service is maintained by one man and one man only. Any downtime of the used server may occur. In case of any length of downtime, the service provider does not have to give any money back, however he'll do his best to make you as happy as possible by trying to make the service be up all of the time.

I'm planning to let the user check a box that they read this and agreed to it, when they register. Is this enough?

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First piece of advice: asking for legal advice on a programming forum without even stating where you live and work and where your users are probably from will be futile. Most of us aren't lawyers, the ones that are aren't your lawyer unless you pay them, and laws vary from place to place. –  David Thornley May 18 '11 at 20:40
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Oh, and I doubt your terms of service are necessarily even legal in places. In some places, you can't avoid warranties of merchantability and fitness in things you sell, and a statement that you accept money and might do something in exchange may not be legally valid. Get yourself a lawyer. Consider it a cost of doing business, and write it off on your taxes. –  David Thornley May 18 '11 at 20:46
    
See my answer. I think you'll be fine if you drop the "I don't have to refund your money" statement. Of course, you should add liability insurance if you don't have it already. –  rmayer06 Nov 27 at 16:51
    
In addition to the responsive answers you're received, you should seriously reconsider this thing you're doing. You've made bad assumptions at almost every level - hardware, communication, contract, financials, etc. –  Ross Patterson Nov 27 at 18:08

2 Answers 2

up vote 11 down vote accepted

Hire an attorney.

If you want to cover your ass, you need someone who understands the law to help you delineate those boundaries and keep you from getting sued.

But someone will probably try to sue you anyway. I'd also recommend investing in some more reliable hardware.

A dollar spent now is a hundred dollars you won't have to spend next month.

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This really makes no attempt to answer the question. You couldn't carry on business if you had to hire an attorney with every business decision. While an attorney in this case might be a good idea, because the "agreement" is really piss-poor, liability insurance is a better choice if for no other reason than OP may dig himself another hole down the road. –  rmayer06 Nov 27 at 16:41
    
@rmayer06 The question is one about legal matters, for which no one here is qualified to answer. An attorney who is well-versed in user agreements can clarify what issues need to be addressed, and more importantly, how to word the agreement to protect him from litigious users. –  greyfade Nov 27 at 18:30
    
NO agreement will protect you from litigation. That is what insurance is for. –  rmayer06 Nov 27 at 18:33

Disclaimer - I am not an attorney and this is not to be taken as legal advice. These are my opinions only and I accept no liability for them whatsoever.

While hiring an attorney is truly the best option, as a point of legal thought, these "Terms and Conditions" really don't form a contract. In order for there to be a contract, there must be:

  1. A bargained-for exchange (the parties must negotiate to an agreement)
  2. Consideration (each party must give up something of value)
  3. Intention to create a binding arrangement

So, it would be a valid contract if you provide the service in exchange for money, but you have one statement in there that arguably negates the third requirement:

The provider of this service may suspend you from his service at any time without an explanation, without a money-back guaranty [sic]. The collector of the rent fees does not need, in any circumstances, to return the payed money

That statement, in my opinion, makes the agreement an illusory promise made in bad faith. If someone pays you for a service, then you "suspend them" without reason, they really aren't paying you for anything and there is no intention to have an agreement.

A better option is to, in good faith, disclose your limitations and disclaim all liability, and you should also provide for a pro-rated refund should the service be unusable for any reason. You can do all of this without a lawyer, and I think you have a lot of legal precedent on your side should worst come to worst. In any circumstance, you need to have liability insurance, so if a legal action is brought against you, your insurance company will defend.

For further reading, this article by Forbes discusses additional software terms and conditions legal considerations.

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+1 for "made in bad faith", although I disagree with pretty much everything else, including the idea that someone without legal training can write a valid contract. –  Ross Patterson Nov 27 at 18:05
    
@RossPatterson - disagree all you want, people without legal training write and enter into valid contracts all the time. While a competent lawyer may have a better understanding of the legal aspects, it is not a requirement that you consult with an attorney before writing a contract. My point is that this situation really does not constitute a contract, nor would you necessarily want it to. –  rmayer06 Nov 27 at 18:12

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