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  • Canadian-ized (Ontario) Form of WordPress.com Terms of Use

    One of my favourite moments at the first mesh conference was sitting with a group of people chatting about blogging. This was 2006, so while blogging was becoming very sophisticated, much of it was still shiny and new. Jason Fried was sitting at the table, as was Paul Kedrosky and my mesh colleague Mathew Ingram. And tucked in a corner of the table, quietly working away on his laptop and hidden behind it, was Matt Mullenweg – on his way, but still just getting started, on his mission to change media.

    Just as the conversation turned to WordPress, and what Matt was doing, we were joined by Elliot Noss, the CEO of the Toronto tech company, Tucows. Elliott jumped in and said he would love someday to meet the guy who started WordPress. Long pause, and then waves of laughter, as Matt emerged from behind his laptop, blinking, slightly embarrassed at the attention. Matt looked like a kid – he was a kid – but here he was changing the world, one blog at a time.

    Recently, WordPress posted a Creative Commons licensed version of their WordPress.com terms. Where appropriate I’ve started recommending them to clients, with some Canadian-izing adjustments, because they’re great, and because they’re written, as far as these things go, in very easy-to-read english. Big props to Matt and team for doing this.

    Along the way I thought it would be fun to post my Canadian-ized version, which I’ve set out below. If you’ve been following the blog, you’ve probably noticed that we’re releasing selected legal forms on an open basis, so working on this just seemed like a perfect fit. (More to come in the weeks ahead – stay tuned!) There aren’t many changes to the WordPress.com terms here. You can see the exact changes here (to the WordPress terms as they were today) if you’re interested.

    Here’s a short description of the main changes:

    1. I prefer the way we in Canada generally address obtaining the user’s consent to the privacy policy, so that approach is in the Canadian-ized document.

    2. Unless a site is really focused on adults, or there is some specific legal requirement, I don’t see much point in telling people under a certain age that they can’t use the site. Kids are going to visit what they visit. If you’re concerned about kids using your site, think about your marketing and messaging, and think especially about integrating that sensibility into your design.

    3. We don’t have a DMCA in Canada, so that section is changed. The operator reviews incoming complaints, and takes the action believed appropriate at the time.

    4. Consumer protection laws in Ontario and likely elsewhere over the coming years make the unilateral amendment approach to terms less viable now. The approach taken here is to require notice to the customer, and to give the customer the right to terminate if they don’t like the revision (here’s an excellent summary by the great firm Tory’s that explains this). I know people are anxious about spamming their customers with emails about changes to terms of use, but I believe it’s the right approach, and a great opportunity to remind your customers of how conscientious you are.

    5. After a famous (for lawyers) case involving Dell a few years ago, Ontario amended its consumer protection laws and mandatory arbitration is no longer the norm in consumer contracts. Here is my friend David Canton‘s article on the Dell case.

    6. A PQ language charter provision is added.

    Other than some other minor revisions, that’s it.

    As always, one size may not fit all. Please keep in mind that website terms are not generic – there are many variables, and every form is not right for every situation. As always, consider consulting a lawyer to talk through your needs and what is appropriate for you. This work is licensed under this Creative Commons license. Finally, this form is provided for educational purposes only. Your use of it does not create a lawyer-client relationship with us, and we assume no responsibility for any consequence of using this document.

    I believe in transparency and simplicity, so I’m just delighted to be able to do this. Reasonable people can disagree on these changes, so if you have comments on them or proposed revisions to them, let me know in the comments.

    ………………….

    Terms of Service

    The following terms and conditions govern all use of the WordPress.com website and all content, services and products available at or through the website, including, but not limited to, the WordPress.com VIP hosting service (“VIP Service”), (taken together, the Website). The Website is owned and operated by Automattic, Inc. (“Automattic”). The Website is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Automattic’s Privacy Policy) and procedures that may be published from time to time on this Site by Automattic (collectively, the “Agreement”).

    Please read this Agreement carefully before accessing or using the Website. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by Automattic, acceptance is expressly limited to these terms. Please refer to our Privacy Policy for information on how we collect, use and disclose personally identifiable information from users of the Site. By using the Website you agree to our use, collection and disclosure of personally identifiable information in accordance with our Privacy Policy. [insert URLs]

    1. Your WordPress.com Account and Site. If you create a blog on the Website, you are responsible for maintaining the security of your account and blog, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the blog. You must not describe or assign keywords to your blog in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Automattic may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Automattic liability. You must immediately notify Automattic of any unauthorized uses of your blog, your account or any other breaches of security. Automattic will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.

    2. Responsibility of Contributors. If you operate a blog, comment on a blog, post material to the Website, post links on the Website, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:

    o the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;

    o if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;

    o you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;

    o the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;

    o the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);

    o the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;

    o your blog is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;

    o your blog is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your blog’s URL or name is not the name of a person other than yourself or company other than your own; and

    o you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Automattic or otherwise.

    By submitting Content to Automattic for inclusion on your Website, you grant Automattic a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your blog. If you delete Content, Automattic will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

    Without limiting any of those representations or warranties, Automattic has the right (though not the obligation) to, in Automattic’s sole discretion (i) refuse or remove any content that, in Automattic’s reasonable opinion, violates any Automattic policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Automattic’s sole discretion. Automattic will have no obligation to provide a refund of any amounts previously paid.

    3. Payment and Renewal.

    o General Terms.

    Optional paid services such as extra storage, domain purchases, or VIP hosting are available on the Website (any such services, an “Upgrade”). By selecting an Upgrade you agree to pay Automattic the monthly or annual subscription fees indicated for that service (additional payment terms specifically for VIP services are described below). Payments will be charged on a pre-pay basis on the day you sign up for an Upgrade and will cover the use of that service for a monthly or annual subscription period as indicated. Upgrade fees are not refundable.

    o Automatic Renewal.

    Unless you notify Automattic before the end of the applicable subscription period that you want to cancel an Upgrade, your Upgrade subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled at any time in the Upgrades section of your site’s dashboard.

    4. VIP Services.

    o Fees; Payment. By signing up for a VIP Services account you agree to pay Automattic the setup fees and monthly hosting fees indicated at http://wordpress.com/vip-hosting/ in exchange for the services listed at http://wordpress.com/vip-hosting/. Applicable fees will be invoiced starting from the day your VIP Services are established and in advance of using such services. Automattic reserves the right to change the payment terms and fees upon thirty (30) days prior written notice to you. VIP Services can be canceled by you at anytime on 30 days written notice to Automattic.

    o Support. VIP Services include access to priority email support. “Email support” means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by Automattic to respond within one business day) concerning the use of the VIP Services. “Priority” means that support for VIP Services customers takes priority over support for users of the standard, free WordPress.com blogging services. All VIP Services support will be provided in accordance with Automattic standard VIP Services practices, procedures and policies.

    5. Responsibility of Website Visitors. Automattic has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website, Automattic does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Automattic disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.

    6. Content Posted on Other Websites. We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which WordPress.com links, and that link to WordPress.com. Automattic does not have any control over those non-WordPress websites and webpages, and is not responsible for their contents or their use. By linking to a non-WordPress website or webpage, Automattic does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Automattic disclaims any responsibility for any harm resulting from your use of non-WordPress websites and webpages.

    7. Copyright Infringement. As Automattic asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by WordPress.com violates your copyright, you are encouraged to notify Automattic at the contact information below. Automattic will terminate a visitor’s access to and use of the Website if, under appropriate circumstances in our sole discretion, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Automattic or others. In the case of such termination, Automattic will have no obligation to provide a refund of any amounts previously paid to Automattic.

    8. Intellectual Property. This Agreement does not transfer from Automattic to you any Automattic or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Automattic. Automattic, WordPress, WordPress.com, the WordPress.com logo, and all other trademarks, service marks, graphics and logos used in connection with WordPress.com, or the Website are trademarks or registered trademarks of Automattic or Automattic’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Automattic or third-party trademarks.

    9. Changes. Automattic reserves the right to change or modify any of the terms and conditions contained in this Agreement, or any policy or guideline of the Website, at any time and in its sole discretion. If we do so, we will notify you at the email address you provide in your registration information, if any. If you do not agree with the changes, you can cancel your account with us without further obligation, and you will be refunded the unused portion of any fees paid by you for use of the Website from the time of your cancellation. Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on the Website, and your continued use of the Website after such time will constitute your acceptance of such changes or modifications. You should from time to time review this Agreement and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Website. The Agreement will always show a change log at the bottom. If you do not agree to any amended Agreement, you must stop using the Website. If you have any questions about the Agreement, please email us at the contact address below. Automattic may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement, as amended from time to time.

    10. Termination. Automattic may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your WordPress.com account (if you have one), you may simply discontinue using the Website. Notwithstanding the foregoing, if you have a VIP Services account, such account can only be terminated by Automattic if you materially breach this Agreement and fail to cure such breach within thirty (30) days from Automattic’s notice to you thereof; provided that, Automattic can terminate the Website immediately as part of a general shut down of our service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

    11. Disclaimer of Warranties. The Website is provided “as is”. Automattic and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Automattic nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. If you’re actually reading this, here’s a treat. You understand that you download from, or otherwise obtain content or services through, the Website at your own discretion and risk.

    12. Limitation of Liability. In no event will Automattic, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any indirect, special, incidental or consequential damages or damages for economic loss or lost revenue or profits; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Automattic under this agreement during the twelve (12) month period prior to the cause of action. Automattic shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

    13. General Representation and Warranty. You represent and warrant that (i) your use of the Website will be in strict accordance with the Automattic Privacy Policy, with this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from Canada or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the intellectual property rights of any third party.

    14. Indemnification. You agree to indemnify and hold harmless Automattic, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.

    15. Miscellaneous. This Agreement constitutes the entire agreement between Automattic and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Automattic, or by the posting by Automattic of a revised version in accordance with this Agreement. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website and all disputes, claims or other matters arising from or relating to your use of the Website will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The proper venue for any disputes arising out of or relating to any of the same will be courts situated in the City of Toronto, Province of Ontario and you submit to the jurisdiction of such courts. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Automattic may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.

    If you have any questions regarding this Agreement or your use of the Website, please contact us here:

    [Insert contact details]

    Change log:

    Current version originally published [insert date]

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  • Form of Confidential Information, Invention Assignment and Non-Competition / Solicitation Agreement

    Here is a simple form of confidential information, invention assignment and non-competition / solicitation agreement. The form of employment agreement it’s used with is here.

    Please keep in mind that these types of agreements are not generic – there are many variables, and every form of agreement is not right for every situation. As always, consider consulting a lawyer to talk through your needs and what is appropriate for you.

    The document is provided in Word format. Any intellectual property that Hyndman | Law has in the form is licensed on an open basis – for any use, by anyone, without attribution.

    This form is provided for educational purposes only. Your use of it does not create a lawyer-client relationship with us, and we assume no responsibility for any consequence of using this document.

    Post a Comment »

  • Form of Employment Agreement

    Here is a simple form of employment agreement for use in a startup context. The confidentiality and invention agreement referred to in it is here.

    Please keep in mind that employment agreements are not generic – there are many variables, and every form of agreement is not right for every situation. As always, consider consulting a lawyer to talk through your needs and what is appropriate for you.

    The document is provided in Word format. Any intellectual property that Hyndman | Law has in the form is licensed on an open basis – for any use, by anyone, without attribution.

    This form is provided for educational purposes only. Your use of it does not create a lawyer-client relationship with us, and we assume no responsibility for any consequence of using this document.

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  • Form of Independent Contractor Agreement

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    Please keep in mind that contractor agreements are not generic – there are many variables, and every form of agreement is not right for every situation. As always, consider consulting a lawyer to talk through your needs and what is appropriate for you.

    The document is provided in Word format. Any intellectual property that Hyndman | Law has in the form is licensed on an open basis – for any use, by anyone, without attribution.

    This form is provided for educational purposes only. Your use of it does not create a lawyer-client relationship with us, and we assume no responsibility for any consequence of using this document.

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  • Form of Restricted Confidentiality Agreement

    Here is a form of restricted two-party confidentiality agreement covering information disclosed by one of the parties. It is “restricted” because it applies only to specific information that is marked as “Confidential”, and because the obligations of confidentiality in this Agreement only apply for a specified period of time.

    Please keep in mind that confidentiality agreements are not generic – there are many variables, and every form of agreement is not right for every situation. As always, consider consulting a lawyer to talk through your needs and what is appropriate for you.

    The document is provided in Word format. Any intellectual property that Hyndman | Law has in the form is licensed on an open basis – for any use, by anyone, without attribution.

    This form is provided for educational purposes only. Your use of it does not create a lawyer-client relationship with us, and we assume no responsibility for any consequence of using this document.

    Post a Comment »