After the fact, they told me it would have been faster and cheaper to
use their in-house boiler-plate as it would have needed less review.
That’s horrible really. In particular, the part about them first saying they’d stop and notify you when they hit $2000 - I’m pretty sure that would be illegal over here (or at least I’d hope so). I do understand that there’s a huge difference between the legal situation and actually winning one’s case in practice.
At least the lawyers I contacted say that creating terms from scratch is likely cheaper. I can understand hat reusing something they trust will take them less time.
Your questions help a lot. Considering the possible consequences is definitely better than getting trapped in reading lots of lawyers’ copywriting (that is most likely at least a tiny bit biased) on the issue - incidentally, you find a lot of these sales pages when you search for information on the law, SEO is big in lawyer-land.
Regarding 1), I think that simply reverting to German law isn’t the bad part, usually. (Except for some really weird cases where courts decided that, when you don’t have a SLA you guarantee 100% uptime - and similar such nonsense that opens the doors for legal trolls).
What can happen when TOS clash with the law is that competition laws give my competitors the right to send an adhortatory letter (that would be the answer to 2)). The consequence of that would be that I need to pay their lawyer fees (those they incurred through sending that adhortatory letter) and that I’m forced to sign a declaration to cease and desist that is enforced by penalty (which is no big deal as long as I make no mistake in setting up the document). The interpretation of law in court does evolve over time and so it can happen that a phrase that was fine a few years back is now a perfectly fine reason for sending such a letter. According to the copywriting of the lawyers, there’s a huge horde of rampant legal trolls that do nothing but sending such letters. How big the grain of truth in that claim is is unclear - I couldn’t find useful data on that.
I don’t really expect there to be any kind of legal action between me and my customers. The overwhelming majority of my customers won’t even have legal departments (and many would likely be very hard-pressed to pony up the money for a lawyer themselves, so they’d be more interested in resolving conflicts in an unbureaucratic way). I’m going to have generous money-back policies anyways and will be open to hearing and resolving complaints and problems - the goal is to make people happy so they stick around.
The time factor involved in litigation would be very annoying and troublesome - the publicity, however, might be useful. Whether I’ll be in the position to hire lawyers if someone or some unlikely event came along to sink my project largely depends on whether I have enough of a fan-base to support the project. While I could spend our family savings to hire lawyers, this would really be a last resort kind of thing.
Essentially, hiring lawyers raises the stakes by having another legal bill on the table. Over here, the loser pays it all. Since I currently do not have a limited liability legal structure thingy under which to operate, that means I’d be paying someone’s legal bill with my family savings anyways if I am ruled guilty. Maybe that’s really what I need: Some kind of limited liability corporation.
I read the other thread and that’s why I find it even more interesting to hear how things played out.
Hmm… I can think of another way how to get lawyers to comment on TOS: I could pick apart my TOS and submit the parts I’m insecure about as questions to QA-sites - the ones where you place a bounty on the answer. The worst thing that can happen is probably that no one answers (at least I know I won’t be spending more than expected).