Calling Doud, Spangler, Nameless and Kanigan and other brave warriors: A TOS Question...

9 replies
Hi Guys

A quick Terms of Service question:

I recently completed a website for a client, however the website was built on a FREE platform in which a Major service provider of my country has partnered with The Big G to offer to small and medium sized business. It's basically under the "sitebuilder" platform.

So it would be www . mybusiness.subdomain . com which could then be converted to www . mybusiness . com

Part of the terms of service says the following:

Restrictions:

You agree not to:

5. Sell your website created on the platform for money or money's worth, except in the context of selling your business as a going concern.


Have I broken the terms and is this illegal to sell what is supposed to be FREE?

Thanks guys, responses are much appreciated.
#brave #calling #doud #kanigan #nameless #question #spangler #tos #warriors
  • Profile picture of the author Aaron Doud
    Technically it appears you have broken the terms which would be civil and not criminal so not "illegal". You would have to ask a lawyer to be 100% sure though based on local law.

    But I see a loophole. If you are selling the design service and maintenance but not the website or hosting. I know that distinction is playing a fine line. But I believe you could ride that line as long as said websites belonged to them and they could fire you at any time. They can not transfer said website to anyone else for money either.

    But if they own it and you are merely the web guy they hired to do the work it would be no different than having an employee do it IMO.

    Consult a lawyer to be sure but I am 99% sure based on my reading of that part of the TOS.

    Of course in the long run it would be better to have your own hosting and learn something like WordPress to use to build the sites. You can't base a long term business model around another service especially when they are a free service. At least with WordPress or some services that offer White Label you should have a long term platform but even then be aware that said platform is not under your control and could be lost.
    {{ DiscussionBoard.errors[8086934].message }}
  • Profile picture of the author iAmNameLess
    You're in the clear. Nothing illegal or against the TOS whatsoever. Now if you were building random sites and selling them through the free platform maybe then it would be against the TOS, but a company hiring you to use the free service and they pay you for your time setting them up, then you're perfectly fine.

    You're not selling the website... you're selling your service.
    {{ DiscussionBoard.errors[8087148].message }}
    • Profile picture of the author Aaron Doud
      Originally Posted by iAmNameLess View Post

      You're not selling the website... you're selling your service.
      You said that much better than I did. Sums it up very well.
      {{ DiscussionBoard.errors[8087194].message }}
  • Profile picture of the author Jason Kanigan
    I'm not a lawyer (yet...maybe someday). So I'll let Aaron and Nathan handle this one.

    What was it about the platform that you liked? I just wouldn't have done it, and would have gone with a hosted Wordpress site. Then I would own the domain and there'd be no issue.
    {{ DiscussionBoard.errors[8087503].message }}
    • Profile picture of the author RyanLester
      Originally Posted by Jason Kanigan View Post

      I'm not a lawyer (yet...maybe someday). So I'll let Aaron and Nathan handle this one.

      What was it about the platform that you liked? I just wouldn't have done it, and would have gone with a hosted Wordpress site. Then I would own the domain and there'd be no issue.
      It was very easy to do a mock-up to show the client. She was pretty impressed with what I had done (that's obviously besides the point) and knew that it was on the sub-domain which we would later convert to www . mybusiness . com
      {{ DiscussionBoard.errors[8087535].message }}
      • Profile picture of the author sandalwood
        Aaron,

        You, in part, wrote:

        Technically it appears you have broken the terms which would be civil and not criminal so not "illegal".

        Not to be a picker of nits but civil can/does carry criminal sanctions. Take the feds for example. They have a whole list of civil violations that carry criminal sanctions. Your state has the same type of list.

        Traffic tickets are an excellent example. In some jurisdictions they are civil and is some they are criminal. But both can carry criminal sanctions. To prove my point all you have to do is not sign your next ticket and watch what the cop does.

        Sounds like a circular discussion but having read numerous cases from Supreme Court on down, once you've been sanctioned you are sanctioned. And, the mantle called illegal is tagged with the offense.

        But, who cares, given the current round of activities emanating around our fearless leader and his AG. Watch those proceedings and you may see illegal civil and illegal criminal at the same time if Congress actually does its job. But, that is a talk for another time.

        Tom
        Signature
        Get 30% or More Retirement Income If you are serious about your retirement, you'll love this product.

        The Money Ferret Finance Article Directory
        {{ DiscussionBoard.errors[8087628].message }}
  • Profile picture of the author Aaron Doud
    Tom if I am understanding you correctly it appears you are mixing up criminal vs civil which is what I was talking about with the classifications of criminal law, ie infractions, misdemeanors, and felonies.

    Criminal Law would be things that are "illegal" and this could be everything from a parking ticket to a murder. Criminal law is normally in the form of the state vs. the defendant. In the UK it would be the crown vs. the defendant as the crown stands in for the state.

    Civil law is best described as citizen vs. citizen (including business/etc) and is in the form of plaintiff vs. defendant.

    An example from popular culture would be OJ Simpson.
    He was found innocent of killing his wife in the criminal case while he was found liable in the civil case. So he was innocent (didn't break the law according to the jury) but was found "guilty" by the civil case jury. Two things came into play here. First the civil attorneys were better. Second in a criminal case you must be found guilty beyond a reasonable doubt while in civil cases you just need a preponderance of evidence (aka just be more likely than not). So it is easier to win a civil case.

    As for traffic tickets I have never in my life heard of a civil traffic ticket. Though red light cameras issue tickets that don't go on your driving record but these are merely different forms of infractions. And if your driving is bad enough you can get a traffic misdemeanor or even felony. But the vast majority of traffic tickets are what would be commonly called infractions. Thus they are normally just simple fines and do not require a court appearance as long as you sign them (and thus plead guilty).

    Now the state can "sue" a business or person and even though the state is bringing the case that would be civil law vs criminal law. And a state can even "sue" itself. So the line in the sand is not always so simple.

    Hopefully we didn't pull this thread too far of topic. And I am sorry if I misunderstood what you meant.
    {{ DiscussionBoard.errors[8087848].message }}
    • Profile picture of the author sandalwood
      Aaron,

      Don't be sorry. Your info is good. Here is an example. If you look at how traffic tickets are classified in the state of my former residence, CA, you will see they have been reclassified as civil. They used to be criminal.

      Now go to my resident state, NV, and you will see they are classified as criminal. It is all in the statutes or codes depending on what the state uses as the title of their laws. BTW, infractions are not civil or criminal, they are infractions.

      OJ is an example of two separate cases being filed. Yes one was criminal and one was civil. The reason they waited to file the civil case was his criminal case had to first be adjudicated per the rules. He could not face two cases at the same time involving the same issue.

      Had he been found guilty in the criminal case no civil case would have been filed because it would have been a done deal. He was guilty and therefore liable. The only case would have been to determine the amount of damages.

      BTW, he is demanding a new trial in NV based on incompetent attorney in the first trial. A little off point but it is still criminal in nature even with the reason given for a new trial request. He can't claim any civil remedy.

      You are correct as to the citation of the pleadings. However if you decide to look into it a little bit you will see civil matters can carry criminal penalties. This fact boggles most people's minds.

      Let me give an example before I close this post: Failure to comply with HIPAA can result in civil and criminal penalties (42 USC § 1320d-5) - this was taken directly off the American Medical Assoc page talking about HIPAA. HIPAA is strictly a civil matter btw.

      Taken from the same page: The DOJ concluded that the criminal penalties for a violation of HIPAA are directly applicable to covered entities. Please note who made the decision. It wasn't a court or the law makers. It was an agency. That my friend is scary.

      OK, one more example - child support. It is decided in Family Court, a court of civil jurisdiction. Failure to pay is punishable by jail. Jail is a criminal penalty. By the way, in child support cases how do you think the pleadings are titled?

      Not tyring to beat you up because I always appreciate your contributions and definitely wish you a ton of success. Hopefully all I've done is clarified my statement.

      Tom



      Originally Posted by Aaron Doud View Post

      Tom if I am understanding you correctly it appears you are mixing up criminal vs civil which is what I was talking about with the classifications of criminal law, ie infractions, misdemeanors, and felonies.

      Criminal Law would be things that are "illegal" and this could be everything from a parking ticket to a murder. Criminal law is normally in the form of the state vs. the defendant. In the UK it would be the crown vs. the defendant as the crown stands in for the state.

      Civil law is best described as citizen vs. citizen (including business/etc) and is in the form of plaintiff vs. defendant.

      An example from popular culture would be OJ Simpson.
      He was found innocent of killing his wife in the criminal case while he was found liable in the civil case. So he was innocent (didn't break the law according to the jury) but was found "guilty" by the civil case jury. Two things came into play here. First the civil attorneys were better. Second in a criminal case you must be found guilty beyond a reasonable doubt while in civil cases you just need a preponderance of evidence (aka just be more likely than not). So it is easier to win a civil case.

      As for traffic tickets I have never in my life heard of a civil traffic ticket. Though red light cameras issue tickets that don't go on your driving record but these are merely different forms of infractions. And if your driving is bad enough you can get a traffic misdemeanor or even felony. But the vast majority of traffic tickets are what would be commonly called infractions. Thus they are normally just simple fines and do not require a court appearance as long as you sign them (and thus plead guilty).

      Now the state can "sue" a business or person and even though the state is bringing the case that would be civil law vs criminal law. And a state can even "sue" itself. So the line in the sand is not always so simple.

      Hopefully we didn't pull this thread too far of topic. And I am sorry if I misunderstood what you meant.
      Signature
      Get 30% or More Retirement Income If you are serious about your retirement, you'll love this product.

      The Money Ferret Finance Article Directory
      {{ DiscussionBoard.errors[8090734].message }}
  • Profile picture of the author Aaron Doud
    They are civil now in CA? I had not heard that. Very weird. I'm surprised no one has used that to sue insurance companies when their rates go up after a ticket. I learn something new here nearly every day. Just normally it is not about traffic tickets lol.

    I learned a lot here. And remembered why I decided against being a lawyer when I was 17 or 18 (originally one of my top profession choices). The hours and having to keep track of so much especially having to practice in two states locally made me decide I could better put my energies elsewhere.
    {{ DiscussionBoard.errors[8090788].message }}

Trending Topics