Your Website Legal Agreements Could Be Useless.
Tuesday, April 16, 2013 at 11:15AM
Brian Powers in Browsewrap, Internet Attorney, SaaS Law

Did that title get you attention?

The post below is an excerpt from a post I have up on PactSafe.com - a venture I am launching to help website owners make sure they are implementing website legal agreements properly.  The whole field is really an unbelievable mess.

Website Legal Agreements come in lots of forms –  Terms of Use, Service Agreements, Disclaimers…and many more.  Nearly every website has some form of legal agreement – which means that most site owners, their developers, and their lawyers realize the importance of using the right website legal agreements.

The problem, though, is that most of them are most likely unenforceable.  Not because of what they say (although that certainly could be the case), but rather because the website legal agreements are presented to the site user improperly. For example, burying a “Terms of Use” browsewrap agreement in the footer of a site might not make that type of website legal agreement enforceable.  Additionally, a “User Agreement” that is purported to be accepted by clicking a button or checking a box may not be enforceable of the acceptance process is not constructed properly.  The result of an unenforceable agreement is – well – a completely meaningless website legal agreement that has been reduced to nothing more than words on the internet.

So how do you fix this? Good question.

Generally, for a website legal agreement to be enforceable to a website’s users, the following criteria should be adhered to:
  • The website user must have adequate notice that the proposed website legal agreement exists.
  • The website user must have a meaningful opportunity to review the website legal agreement.
  • The website user must have adequate notice that taking some specified, optional action means that he/she has accepted the terms of the website legal agreement.
  • The website user must actually take that action.

I work with my clients all the time on these issues - and will be launching PactSafe.com to help others fix this problem.  I think most people involved in an internet business - developers, site owners and operators, and even lawyers - simply assume that the only thing that matters when it comes to website legal agreements is making sure they are drafted properly.  Sure that is very important, but a contract only means something if people actually know it exists - let alone actually agreeing to it in an enforceable manner.

Have questions?  Give me a shout or ask you lawyer to give your website legal implementation a quick review. And be sure to check out PactSafe.com when it launches.

 

 

Article originally appeared on BVPLegal - M&A | Startups | Securities (http://bvplegal.com/).
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