How to write a public offer yourself? And is it necessary at all?

Why is a public offer necessary?

A public offer is a proposal to enter into a contract on certain terms. It contains the rules of interaction between the seller and the buyer and is necessary so that each party clearly understands their rights and obligations and can protect their own interests. A public offer becomes a legally binding contract if the user accepts it on their part. For example, by checking the box next to the statement:

“I have read and agree to the terms of the Public Offer.”

Lawyers can help you write a public offer, but you can also write it yourself. Here’s how to do it:

Step 1. Find examples of offers for similar services.

No, simply copying someone else’s offer to your website is a bad idea. You don’t know how well it is written. But it’s definitely worth looking at a few examples.

Step 2. Decide on a name.

In fact, it doesn’t really matter what you call your document: public offer, user agreement, terms and conditions of use, or just terms and conditions. You can choose whichever option you like best. However, we recommend avoiding the mistake of using the term “public offer agreement.” An offer is only a proposal to enter into an agreement, while an agreement arises when the proposal is accepted. A document cannot be both a proposal and an agreement at the same time.

Step 3. Define the structure and specify the terms and conditions.

The structure of a simple public offer may look like this: Start with a polite greeting. The website owner should introduce themselves and indicate who provides services or sells goods (for example, Sole Proprietor Kosach Larisa Petrivna or Boyarynya LLC). If you work in a field where a license is required, indicate the series, number, validity period, and date of issue. This way, consumers will know they can trust you. To avoid overloading the introduction, include your contact details and other details at the end of the document. Explain how a person should accept the terms of the offer and conclude a contract with you. For example, by checking the “checkbox.” The user can also sign the contract with an electronic signature or a one-time identifier. This is an alphanumeric code sent to the email address or via SMS during registration to confirm that the specified email address (or phone number) belongs to this user. In addition to its verification function, such a tool is also considered a type of signature under the Law on Electronic Commerce. A contract signed in this way is equivalent to a written contract.

1.Preamble

Start with politeness. The website owner should introduce themselves and indicate who provides services or sells goods (for example, FOP Kosach Larysa Petrivna or Boyarynya LLC). If you work in a field where a license is required, indicate the series, number, validity period, and date of issue. This way, consumers will know that you can be trusted. To avoid overloading the introduction, include your contact details and other information at the end of the document.

2.Procedure for concluding a contract

Explain how a person should accept the terms of the offer and conclude a contract with you. For example, by ticking a checkbox. The user can also sign the contract with an electronic signature or a one-time identifier. This is an alphanumeric code sent to the email address or via SMS during registration to confirm that the specified email address (or phone number) belongs to this user. In addition to its verification function, such a tool is also considered a type of signature under the Law on Electronic Commerce. A contract signed in this way is equivalent to a written contract.

Author: Bohdana Kedryk

3.Services (goods) of the seller

Describe the specific services or goods you provide, their main characteristics, types of guarantees for goods or work results, and indicate the minimum duration of the contract (if you provide services or goods periodically). 

4.User rights and obligations

If you want to specify the user’s rights and obligations, you can put them in a separate section.

For example, indicate that the user has the right to post comments on the website, but they must not contain profanity or calls aimed at inciting national, racial, or religious hatred. 

5.Payment and delivery

Indicate where users can find current prices for your services or goods, how payment is made, and whether value-added tax is included in the price.

If you offer delivery, specify the available options, including whether the delivery cost is included in the price of the goods or must be paid separately.

Author: Bohdana Kedryk

6.Return of goods and termination of the contract

Describe the conditions under which the user has the right to return the goods and terminate the contract with you, and under which cases a refund is possible.

Please note that when ordering goods online, the consumer has the right to choose where to return the purchased products. If you delivered the goods by mail, you can require the consumer to return the goods by mail as well. The law allows this, but you must specify it in the offer.

In addition, according to the law, any costs associated with returning the goods are borne by the seller. The seller is obliged to reimburse the consumer for these costs.

Destruction, damage, or spoilage of products through no fault of the consumer, as well as opening the packaging, inspecting, or testing the products, do not deprive the consumer of the right to terminate the contract. However, some products cannot be returned. For example, medicines, underwear, hygiene products, etc. The full list can be found at this link. Additionally, there are separate exceptions in the field of e-commerce. Products cannot be returned if:

• the services or goods have already been fully provided in electronic form with the user’s consent (for example, the user has already downloaded the software or e-book), but only if you have informed the user of such consequences;
• the contract concerns the manufacture or processing of goods to the consumer’s individual order (i.e., they cannot be sold to other persons);
• the consumer has opened an audio or video cassette or computer software medium that is supplied in sealed packaging;
• the contract concerns the delivery of periodicals, lotteries, or other games of chance;
• the price of the goods or services depends on quotations on the financial market, i.e., is beyond the seller’s control.

1. Intellectual property rights (license to use comments)

Include a disclaimer stating that all intellectual property rights to the website and its components (program code, images, texts) belong to you. Specify whether users can republish materials without your permission.

If your site allows comments and you want to use them for your own purposes (e.g., for advertising), state that the user grants you a non-exclusive license to use such materials in any way worldwide for the duration of the copyright on the relevant materials. 

7.Changes and additions

If the offer is valid for an indefinite period, you may reserve the right to make changes to the offer at any time and at your discretion. To do this, you must provide mandatory notification of changes to users. This notification should be sent in advance (e.g., by email), and the user should have the right to terminate the contract if they do not agree to the updated terms.

In other cases, the offer must specify a clear list of circumstances under which you can independently change the terms of the contract. 

8.Applicable law and dispute resolution

If you are a company or individual entrepreneur registered under Ukrainian law and operating only in the Ukrainian market, you cannot choose which law governs your relationship with buyers. You can specify that all issues will be resolved in accordance with Ukrainian law and that any disputes will be resolved by a competent court in Ukraine.

If you operate in foreign markets, you have a choice of law, but it may be limited in the area of consumer protection. In any case, Ukrainian companies and entrepreneurs are advised to choose Ukrainian law and Ukrainian courts, as disputes here will be more convenient and cheaper than abroad. Provide your address, EDRPOU code, email address, and phone number so that users can contact you. It is worth specifying separately how exactly you can be contacted with proposals and claims.

9.Contact information

Provide your address, EDRPOU code, email address, and phone number so that users can contact you. It is worth specifying separately how exactly they can contact you with suggestions and complaints.

Step 4. Make sure that the terms of your document do not violate the law.

If you provide services or sell goods to individuals, you are subject to consumer protection legislation. There is a list of terms that are considered unfair to consumers by default and may therefore be deemed invalid. For example, it is prohibited to include a term in a contract that gives the seller the right to terminate the contract with the consumer at their own discretion if the consumer does not have such a right. A complete list of such terms can be found in Part 2 of Article 18 of the Law of Ukraine “On Consumer Protection”. Ensure that the terms of your public offer do not conflict with the law.

Step 5. Publish the offer on the website.

It is best if it is permanently available at the bottom of the website – in the footer. Indicate the date of publication of the offer. Subsequently, if you make changes to it, we also recommend indicating the date of the latest changes.

Kateryna Nalyvaiko, Associate at Axon Partners