Drafting of terms of use for internet services and websites

When it comes to  a word – contract, we usually think of a printed paper that determines who the contracting parties are, what is the subject of the contract, as well as what are the rights and obligations of the contracting parties. However, we conclude contracts every day, even without signing any express consent of the will. We buy things in stores, restaurants, pay for parking and take dozens of other small actions on a daily basis without being aware of the fact that we are actually making oral contracts. The subject matter, price and scope of rights and obligations in the mentioned contracts may be stated in form of the price list, by the ordinance or the law itself.

In the absence of verbal or communicative acts that express consent of the will regarding the services website offers and the manner in which it is used by the visitor, consent is given by accepting the terms and conditions of use, prepared by the service provider and explained in advance. In practice, this document is often referred to as a Terms of Use or User Agreement, but it is important to have in mind that it has the effect of an adhesion contract, with all the consequences it produces in terms of the Law on Obligations.

Given that these types of services are conducted as long-distance sales, they also imply compliance with the imperative consumer protection standards of almost every legal system. In this regard, the service provider must meet the minimum standards prescribed by the regulation regarding the users, and prescribed rights and obligations need to be implemented in the user contract as well, in order to preserve as few obligations and rights as possible for the contracting parties.

Determining the competent court and applicable law is a very important part in this kind of contracts, given the fact that the global network knows no boundaries, so leaving this issue to subsidiary norms for resolving conflicts of jurisdiction in private international law can lead to the application of legal norms of the most diverse countries of the world. That would further imply jurisdiction of their courts, which is certainly not in the service provider’s interest, first of all bearing in mind the lack of knowledge on the regulations of those countries and the potentially very high costs that such processes would entail.