Governed by the law of......

[cyphix]

Ok... I'm making up a TOS & I notice that many TOS's have the part like..

This Agreement shall be governed in all respects by the laws of the State of California for example.

My question is... since I live in Australia... should I put my own state or the state that holds my server?

I will also be putting in a part of something along the lines of..

Any disputes between you & xxx will be held in a Court of Law in Perth, WA, Australia.

Thanks!

 

[Anthony Ng]

You should put your LOCAL jurisdiction for your own interest. I guess you must never have been taken to court in a foreign jurisdiction, and be aware of the extra costs that come with it. That is also the reason why those TOS contain such a clause in the first place.

 

[cyphix]

BUt wouldn't saying their local jurisdiction give them a lot of leeway to use the service for something that would be illegal in the US for example but maybe not illegal in some other country?

 

[theparrot]

You don't say their local jurisidiction, you say YOUR jurisdiction, though it also could be a good idea to put a clause they are responsible to make sure they meet their local laws as well.

BTW, I just had a TOS made up recently, if you want a copy and to compare notes on them I would be happy to.

 

[cyphix]

Thanks parrot!

Ok, how does this sound:

"Governing Laws

You agree that this Agreement & your use of this Site will be governed by the laws of the state of Western Australia, Australia. You may also be subject to other local, state, national, and international laws. You expressly agree that any dispute and/or claim arising out of or in connection with your use of and/or inability to use the Site shall be submitted to individual arbitration without resort to litigation before any state or Federal Court, and that such arbitration shall be heard in the City of Perth, Western Australia, Australia."

BTW, I just had a TOS made up recently, if you want a copy and to compare notes on them I would be happy to.

Sure.... I'd be interested in that.... send me a PM if you like. :-D

 

[jberryhill]

Not knowing what your situation is, I have no comments on your specific agreement.

One thing to bear in mind is that these clauses generally address two separate issues - choice of law and choice of forum. Usually more relevant to US disputes, where we have 50 independent state legal systems plus a federal system, the choice of law clause establishes which state's law is to apply. The choice of forum provision addresses where disputes may be brought. In federal lawsuits based on diversity of citizenship (i.e. disputes between residents of different states in excess of a dollar amount needed for federal jurisdiction), any federal court may apply the law of any particular state to the state issue in question based on rules for choosing the appropriate state's law. The choice of law provision settles that question, but does not limit where a suit might be brought.

 

[Honan]

"This Agreement is governed by the laws of the State of Western Australia, Australia. You submit to the non-exclusive jurisdiction (without prejudice to other potentially applicable jurisdictions) of the Courts of Western Australia, being the jurisdiction that cyphix is located, together with all appellate courts."

BTW You do have an ABN, don't you cyph?

Ok... I'm making up a TOS & I notice that many TOS's have the part like..

This Agreement shall be governed in all respects by the laws of the State of California for example.

My question is... since I live in Australia... should I put my own state or the state that holds my server?

I will also be putting in a part of something along the lines of..

Any disputes between you & xxx will be held in a Court of Law in Perth, WA, Australia.

Thanks!

 

[cyphix]

Thank you John & anyweb!

BTW You do have an ABN, don't you cyph?

Sure do! :-D