ToS question

[the-outcasts.livejournal.com]

Hi everyone! I've been wanting to get back into doing commissions and have started writing up a ToS and commission form for myself.

But one thing I'm paranoid about is the sudden influx of chargebacks some artists have been experiencing. I know that there's no sure fire way to protect yourself from this happening, or a way to make Paypal's decision work in your favour, but I did write something in my ToS regarding them:

Please make sure that you are using your own Paypal/Bank/credit card account and funds - if you are using your parents or guardian's Paypal/Bank/credit card account and funds please provide evidence that you have received permission to use it.

If I receive a chargeback from you due to your parents or guardians requesting it despite this you will be blacklisted permanently, a warning will be sent to Artists Beware, and I will request for any uploaded images to be removed by site admins. Images can be reuploaded once payment is received again, and any published warnings will be updated to advise that payment has been received, but blacklisting will not be revoked.

If not stated I will assume that you are using your own accounts for payment - if a chargeback is requested I will be informing Paypal that it was never mentioned that the funds were not your own and that you accepted responsibility to pay for your commission using these funds.

The questions I had in regards to this is:

1. Can I even have something like this in my ToS?
2. If yes, is it worded okay?
3. If no, do I have any other options that might help in the event of a chargeback? (I know people have mentioned sending CDs/USBs to customers, but I'm not sure if that can be an option for me at this stage)

In terms of proof I'm thinking like a screenshot of an email or a photo of a note. I'm not really seeing the need for this, but I know there may be the odd occasion where I may be commissioned by someone younger, or someone that may think they can just buy something without asking to use their guardian's Paypal first and falling into strife later for it.

In the commission form itself I also have a dropdown menu that asks "Are you using your own funds? Yes/No" that has to be filled out before submitting the form, but may revise it to "your own Paypal".

So yeah, any thoughts? I really want to do commissions again but I want to make sure I'm keeping myself covered so it's as headache free as possible.

Comments

[adzuki.livejournal.com]

I know it can be hard to control but working with minors is always tricky because even if you have that in your ToS being underage means you cant hold them to contract.

I dont know how one goes about getting parental permission for commissions.

[the-outcasts.livejournal.com]

One thing I was thinking was that they get like a written note or something to show that someone has given them permission to use their parents/guardian's funds. But thinking about it more, and with the feedback I'm getting from everyone, it does seem like it's going to be more of a pain to enforce more than the chargeback itself.

My main concern as well was, as far as I saw, the recent influx of chargebacks was being done by people that were seemingly people that were of legal age, but were for some reason using their parents' paypal. That could be me misunderstanding the situations I was reading, but I was still boggled that someone that was an adult was using the excuse "My dad did the chargeback, not me!"

In cases like that would I still have a leg to stand on by saying "My customer was an adult" when going to Paypal to plead my case.

[celestinaketzia.livejournal.com]

This is something that will be impossible to enforce. If someone is not legally old enough to enter into a contract, a wording in your ToS is likely not going to stop them. Additionally, because they can't be held to a contract, it's very likely that Paypal will side with the parent anyway regardless if you have proof that they agreed to the commission.

The only protection that anyone has when it comes to chargebacks is to:
1. Call Paypal immediately.
2. Speak to a representative.
3. Light a candle/ say a prayer/ say the chant of light and hope you get the right Paypal rep to help you.
4. Warn the artist community.

[the-outcasts.livejournal.com]

Yeah, with everyone's feedback so far I'm realising more that this would probably cause more headaches than anything else orz.

Even in cases where the customer is of legal age, if they do a chargeback for whatever reason my fear is that somehow Paypal will still side with them. But I guess if I have enough proof that 1. they were of legal age and 2. they received their commission it miigghhttt be okay.

[sableantelope.livejournal.com]

Unfortunately if the commission is explicit or digital only you can't expect to be protected in the event of a chargeback.
You may find a helpful Paypal rep who does review the case despite those things, but if you are doing only digital art even if you do deliver you aren't really protected- because you are using Paypal outside of their TOS/user agreement. So you don't have 'clean hands'.

[the-outcasts.livejournal.com]

Man, that is so frustrating. That was part of why I was hesitant to do commissions for a long time 8C Especially because this can happen so randomly. I know it's odd to be paranoid about this sort of thing but I like being prepared just in case.

[sableantelope.livejournal.com]

Yeah, it's too bad someone in the fandom couldn't set up a 'furry' escrow system, kind of like what's used on the Darknet markets(okay, I know that's a bad example because of what's sold on the DNM, but, seriously their escrow and funds transfer system is top notch).
I think a fandom-specific system that was set up to handle the issues of commission/custom costume work in particular, that'd be awesome.
Plus being an escrow service more so than a funds transfer/business frontend system could negate the adult issue. You wash you hands of what the contract is about, you only handle the funds getting from buyer to seller. (I've always been curious what legally binds Paypal to the transaction, why they are stuck mediating at all. Why they aren't just escrow and didn't set themselves apart from the contracts and only deal with the funds arriving from party A and reaching party B. I guess that would limit the services they provide to business quite a bit though, and that business service side of thing which is really their bread and butter- not small volume sellers and buyers like even the most popular artists and fursuit builders are in comparison)

Actually, I kind of want to try and do this now. The escrow + feedback systems on some of the DNM are pretty top notch. (again, being willfully blind to the types of deals going on there, I'm just talking about the set up here. I'm not trying to take any moral stance on the deals being done, just that the set up of the markets is frickin' great!)

Also I'd set up an adjunct archive with some basic buyer's agreements forms and other contract-y stuff that people would be free to use. (with the NOT LEGAL ADVICE disclaimer. *L* Anyone who was or is involved in legal services knows you can't go giving legal advice without that big ol' disclaimer unless you want to face the wrath of the almighty bar society)
I considered making a post here with some sample contracts/buyers agreements/costume costume agreements(again with NLA disclaimer) but I dunno if that's something that would be useful/accepted here.

[the-outcasts.livejournal.com]

That I would be all over if I knew anything about setting up such a system. Because honestly, I'm surprised that Paypal doesn't already cover this sort of transaction - technically speaking wouldn't games bought through Steam fall under this area as well? Even though you're receiving a product, it's not really "physical" either going by their terms.

And all up I would have thought by now that someone in Paypal is noticing that a lot of people use their services for commission work and would have created a new clause for it. Because it's a really good way to get money without messing with money orders or cheques. The only other alternative I've heard of so far is Stripe/Strype(?), but I know that's fairly new so I haven't heard too much about it or their terms and conditions when it comes to digital art.

I think the contract samples would be awesome though to see - I know when I was making my ToS I was using a lot of samples other people here had linked to, and added in a few things based off past experience (i.e. reference art is required, no text base descriptions, etc). But it's also why I came here in the first place because I know there are some things you can't put into a ToS straight up due to legal reasons, like no refunds ever, so advise posts like that would be great. It's just a matter of is LJ the best spot for it or would a different format be better for keeping it all in one place :Oa

[gatekat.livejournal.com]

As I understand it, Paypal does protect you if it is a physical object and you ship it with a tracking number. Though if it's worth over $250 (I think) you have to have with a signature delivery as well to cover yourself from credit card company rules.

So if your art is digital, include in your TOS that you will always ship a print and do that with the required tracking number and/or signature delivery.

Simply charge the commissioner for the few dollars it takes to print and ship. It's not like it has to be photo quality. Just a physical object. It will reduce your takers, but most of us have see enough people screw artists over that we won't mind.

I don't know if it's to your benefit to state that the price is for the production of the print (which would include producing the art by definition) or not.

As far as I know, there is nothing you can do to protect yourself from folks that claim or do steal other people's accounts. Though the 'art you using your own paypal/credit card' line might get you out of paying paypal's fees over any chargebacks. Just make sure the default answer is 'no'.

As for being commissioned by someone younger, I strongly recommend simply not accepting it. Yes, it's punishing the responsible youth for the crimes of their peers, but there's good reason that most businesses won't directly do work for/take orders from legal minors. An adult can be charge with a crime over this. A minor can not be.

Your final payment option is to take yourself out of the line of fire and accept payment via site currency. Yes, places like DA take 20% out, but you can make that up by charging 20% more. Since DA points are not refundable and it's actually the site accepting payment for them from the card, you can't receive chargeback.

[the-outcasts.livejournal.com]

Hmm, I might need to look into postage costs. I'm from Australia so if my customer is within Australia the postage will be dirt cheap, but overseas that's when it gets dicey from memory. Just shipping a small item to the states can cost up to $15, so it makes me nervous to charge people shipping that much on top of a commission when all they will get is a CD/print.

Printing itself won't be an issue because I have a good printer at home, just... yeah. Living in the middle of an ocean helps no one.

I can change the option on my form so that it asks for a date of birth instead - the site I'm using to store my form is Weebly, but they limit how much you can put on a page if you're using it for free. Google forms I tried to use but it boggled me so badly I didn't know what else to do. But if I at least have a date of birth on record somewhere I can use that to my defence, even if the customer for some reason lies about their age then tries to do a chargeback.

DA (at this stage) I simply refuse to use because of the site itself. DA points plus DA taking a cut of the profit sounds counter productive to me, even if (I think?) I can translate it later to actual money.

[gatekat.livejournal.com]

I wouldn't have mentioned DA specifically if you couldn't turn it to real money. That conversion is the only time they take a cut. Though you might need to be premium for it to work. I'm not sure. The rules change from time to time as with all sites.

I understand that oversees shipping is horrific, though I wouldn't think that a standard letter envelope would be that bad. Fold the piece of paper. State that you will be. Still track it.

[the-outcasts.livejournal.com]

DA as a whole unfortunately I don't like using - I used it for years previously but it always feels like the admins don't know their own policies so after a while I had no desire to use it at all. Sorry, I don't mean to backhand your advice there, just explaining why I'd rather just not deal with DA ^_^; It might be an option later down the track so I will keep it in mind, but for now, no.

I'm going to look into postage prices now to see. I'm hoping that now that it's more common maybe there's something I can do if I maybe send things out in bulk rather than one at a time. I just remember that 10 years ago if I even thought of sending something slightly heavier than a piece of paper overseas, it was nearly $20. And tracking - I know we can track things with just barcodes here so hopefully that's an option, too.

[kattotang.livejournal.com]

Unfortunately, if you want tracking on something being shipped internationally, it can get pretty pricey even if it's a standard letter envelope, because it's the tracking itself that's expensive. This is probably especially true for Australia, because it's pretty much in the middle of nowhere.

And there's a bunch of limits when it comes to international tracking options too. Like here in the US, most standard shipping options (such as first class and priority mail) don't generally have tracking available for international parcels because, according to the post office, they can't be responsible for it once they've handed it over to another country's postal service.

[the-outcasts.livejournal.com]

Yeah that's where it gets dicey. Like I know when my folks went to Italy they sent a package to Australia, and we were able to track it via the barcode on the package itself. But I don't know if they paid extra for that or if it's a standard thing just because it was an international parcel.

Even if the tracking is there just to say "Package is (x)" at least if a customer said they never received it I can see if it's in limbo somewhere, or the post office declared it as delivered and it's just... in a place somewhere.

[mortymaxwell.livejournal.com]

Sending a physical item has its ups and downs. Up: you get more protection as an artist. Downs: some people will be discouraged from buying from you, because they feel uncomfortable paying extra money for a print or CD, especially if there's also international shipping involved.

[sableantelope.livejournal.com]

If you honestly want to keep yourself as "headache free as possible" then do not do business with minors. Period.

Unless you are selling what are legally defined as essentials in your area, which art commission most certainly aren't, you can't enter into a contract with a minor and so you have no legal protection.
For example if a minor bought a $2000 fursuit, burned it the day they received it, then the parents did a chargeback or sued you for the $2000 back you would have to return that money- even though it put you at a great loss.

I realise some young people on FA are trustworthy, it's not about any pesonal judgement. It's about the fact you have no legal protection.

[dinogrrl.livejournal.com]

If you honestly want to keep yourself as "headache free as possible" then do not do business with minors. Period.

Yeah, this. I only ever do business with minors if it's in person, with cash, and with a parent/guardian present. Online, though? Too much that can go wrong and there'd be nothing I could do about it.

[the-outcasts.livejournal.com]

Yeah thinking about it more my main concern was a kid/youngster thinking it'll be A-Okay for them to use their parent's paypal, and my going through the motions assuming that it was fine with their folks until it's too late and I get the chargeback. Plus I don't like the idea of hounding a kid (or anyone) for money afterwards, even if they put themselves in that situation in the first place.

[the-outcasts.livejournal.com]

Yeah I totally understand! I've seen a a few posts on here about the same, even when dealing with an artist that's underage themselves to avoid.

I know different countries have different legal ages, but I'm safe to assume that legal age should be 18+?

[sableantelope.livejournal.com]

Use the legal age of the buyer's country. If you want to be safe and go with 21, which is generally the oldest age of majority around, that's fine.
You may lose a chunk of US business that way, though.

(edit for clarity, sorry, just realised I should explain that better.)
So in terms of your TOS you'll want to use a wording like "All buyers must have attained the age of majority in their country. Due to the risk of loss and lack of legal protection I will not work with minors."

So you state your reasoning clearly, and make sure the underage people know you aren't just picking on them because 'teenages are untrustworthy' or anything personal. It's just that you aren't willing to take the business risk.

[the-outcasts.livejournal.com]

Awesome, thank you for the wording! I'm usually okay with writing things up but sometimes I feel like I'm using a too stern language without actually explaining why I'm doing it. and I could probably put in a field to ask for country of origin so I can look up the legal age, too. I'm expecting most of my sales to come from the States, but you never know!

[acosmicrose.livejournal.com]

I would probably be careful with that "If not stated I will assume that you are using your own accounts for payment" statement. If working with a minor they may not say anything so you can continue with the transaction.

It might be easier to say you only take commissions for those 18 or over. Business with minors can be very risky, especially if something goes wrong. It would be best not to do business with them at all.

I have my ToS drafted and I say that the consumer needs to be 18 or over, have a good standing Paypal or credit card (could probably rework this), and an email address (for the invoice method).

Everyone has given good feedback so far and I hope you find something that will work!

[the-outcasts.livejournal.com]

Yeah, I'm going to be changing this overall to just state that I will only work with people of legal age instead, and maybe keep this as a separate TOS to explain that if I get a chargeback it will be reported for people to know about it. Maybe the warning will scare off people that think they can just do it for a laugh/use it as a backup for buyer's remorse.

And everyone's been giving awesome advise, including you - I watch this community and everyone's always helpful, so I knew I'd get good answers here :D

[gatekat.livejournal.com]

Make sure you use a number, not 'legal age'. 'Legal age' can mean many things and varies wildly from place to place.

'Legal adult' or 'over 18' would serve you better for phrasing.

[sableantelope.livejournal.com]

I'll suggest "age of majority" as the best wording, since it best removes any chance of legal fuzziness internationally.

[greenreaper.livejournal.com]

You may, however, get 8-year-olds commissioning you from Saudi Arabia (//en.wikipedia.org/wiki/Age_of_majority#Countries_and_subdivisions). (OK, so maybe there aren't many furries there . . .)

[sableantelope.livejournal.com]

Well, they are legal in their country so you can hold them to the contract, and that's what really matters. (and yay, finally international small claims cases are starting to allow videophone, like Skype, and telephone testimony more and more. Holy sensible change in legal process, imagine that!)

Now, with adult commissions, then you have to use your own country's age of consent, which might be lower than the age of majority, to cover your own butt legally.

[familliaraver.livejournal.com]

Have them send you an e-mail confirming the payment was sent from the e-mail account attached to said paypal and continue to talk to that paypal. You will have physical proof that the owner of that paypal sent that payment and that they continued the conversation.

And yes, ship something with a tracking number.

And yes, don't do business with minors

[the-outcasts.livejournal.com]

Just a question about this because I'm slightly confused - I personally use a separate email for my Paypal (a hotmail address), and another for communicating (a gmail address) because... I just do orz. In cases like that would it be an idea to ask for a confirmation email from the Paypal address, then continue with their contact address?

I'm planning on using an invoice for Paypal transactions, so would that have some sort of confirmation alert to it as well?

And I'm going to be looking into postage for here and tracking numbers, I'm thinking it's be easier/cheaper to do it in bulk as well.

And definitely will not be thanks to the feedback everyone's given me XD

[familliaraver.livejournal.com]

Looking at the situation from the viewpoint of dealing with giving paypal evidence that the charge wasn't done without the owners permission (I'm going through this right now with a customer) Being able to show continuing contact with the e-mail attached to the customers paypal helped me prove my point.

Doing that also prevents people from actually using paypal for something it wasn't meant to be used for. Or from people getting cold feet and pretending to be an angry parent and their kid used their paypal without permission.

Paypal sends alerts either way and most of the time digital art descriptions are kind of vague. It's really being able to make aware the owner of the paypal absolutely aware to the best of your ability of the thing that was just purchased on their account.

[the-outcasts.livejournal.com]

Ohh I see what you mean now. That makes sense, thank you for explaining. Like I said I've been using a separate email for Paypal and communications for years but this might be a good practise to start.

Thank you again for explaining, and I hope you can resolve your situation.