Terms of Use: Meaning of "If these terms ... are considered an offer, acceptance is expressly limited ..."?

I'm copy editing WordPress' Terms of Service to my own web hosting service, and I wonder what does this mean:

If these terms and conditions are considered an offer by Automattic,
acceptance is expressly limited to these terms.

(By the way, is it okay to ask such questions here? There might be other parts of WordPress' TOS that I don't understand, and would like to ask about. If this is the wrong place, perhaps you know somewhere else where I could ask?)

Google hasn't been helpful — instead I find 100 000 other copies of WordPress' TOS.

Legal Terms And Conditions

asked Aug 14 '12 at 16:29

Kaj Magnus Lindberg
110 points

Get up to $750K in working capital to finance your business: Clarify Capital Business Loans

Perhaps it'd be interesting to know, that I live in Sweden (in northern Europe), not in the US. – Kaj Magnus Lindberg 12 years ago

3 Answers

Please please please don't just bulk copy (and presumably) edit somebody else's TOS and apply it to your own company. You've already demonstrated that you don't understand at least one very important clause, and there's a good chance that you don't understand other clauses (even if you think you do) - the result of this could be disastrous.

Get a lawyer to do this, or better yet, write a plain language TOS instead of something full lof pseudo legal mumbo jumbo which does nothing to actually help the provider or the user, except win by obfuscation/obscurity.

You could also check out services such as SnapTerms.com to make this easier.

answered Aug 15 '12 at 06:27

Nick Stevens
4,436 points

Thanks, that's good advice — as of right now. However, there are 3 things I haven't told you: 1) I have 0 users, and I don't know if anyone will ever use the serice I'm building. So it feels a bit early to spend money on lawyers right now — it's more like a hobby project right now. And, 2) initially, I'm not going to charge people any money for using the service, which makes me feel a bit safer. And 3) I live in Sweden, not in the US, and the Swedish justice systems seems ... more just :-) than the one in the US with software patents and weird stuff. – Kaj Magnus Lindberg 12 years ago
If the service does take off, then yes, I'll consult with a laywer. SnapTerms.com seems interesting — but I live in Sweden; I suppose it might be preferable that I consult with Swedish lawyers. – Kaj Magnus Lindberg 12 years ago
(Concerning plain language TOS — are there any companies that actually use "home made" simple (and short?) plain language TOS? As far as I've read, sometimes people recommend against *not* using weird legal mumbo-jumbo, and say that "normal language" has virtually no effect in courts) – Kaj Magnus Lindberg 12 years ago

<IANAL>

It is referring to the formation of a Contract, which generally requires five things including Offer and Acceptance. I assume they don't want to be bound in Contract, except under circumstances that they stipulate.

</IANAL>

answered Aug 14 '12 at 18:25

Steve Jones
3,239 points

Okay, I hope I understand now. Actually, at first, I didn't know what a contract is. But this Wikipedia section: [Offer_and_acceptance](http://en.wikipedia.org/wiki/Contract#Offer_and_acceptance), and this: [Intention_to_be_legally_bound](http://en.wikipedia.org/wiki/Contract#Intention_to_be_legally_bound), were useful. – Kaj Magnus Lindberg 12 years ago
Anyway, the phrase is good for me, so I'll include it in my terms, even if I might not understand it or its implications to 100%. – Kaj Magnus Lindberg 12 years ago

It's actually a hard question, even for someone with a legal background like myself. Offer and acceptance follow the "mirror rule" as the wikipedia page you've found reports, so it's not like you can send an email to Wordpress and add stuff. That language seems to imply the possibility of an exception to this rule, although the only exception I know regards physical goods (http://www.utsa.edu/purchasing/contracts/definition.cfm ) so it doesn't make sense for a service provider like Wordpress. I might be missing some recent case law that made the counsels of Automattic worry about this possibility.

Another peculiar part of the Wordpress ToS is that conditional at the beginning: nowadays terms of service are considered contractually binding most of the times.

Feel free to post this question and any other question you might have on that document on Docracy as maybe there are some Internet-Law focused attorneys who have a better idea.

answered Aug 15 '12 at 06:05

Veronica
829 points

Concerning the conditional at the beginning (i.e. *"If these terms and conditions are considered an offer"*): On the page you linked, http://www.utsa.edu/purchasing/contracts/definition.cfm, I read that *"Both parties must give something of value and receive something of value. If only one party receives value from an arrangement, the arrangement is generally defined as a gift rather than an enforceable contract."* ... – Kaj Magnus Lindberg 12 years ago
... but WordPress.com does offer free blog hosting (well, they do show some adds, sometimes). Perhaps the ToS would in some cases not be considered a contract, if a blogger pays Automattic nothing, and Automattic has shown no adds – Kaj Magnus Lindberg 12 years ago
yes, good point, it might be that... Still, it's pretty bad language. Why would you put a conditional in something that covers 99% of your use cases? It just adds confusion. – Veronica 12 years ago