The odds are you already are using a web site for your business. If not, you will soon. It has become as much of an indispensable business tool as a telephone number and will undoubtedly become even more widespread as the years progress. It is a mistake, however, to assume that its use does not impose upon the creator of the web site unique new business problems that must be confronted. Consider:
1. The web site is international by definition. What you place on your site is immediately available for inspection (and business available for acceptance) worldwide. This includes jurisdictions which may prohibit the very products you are selling or impose remarkably onerous obligations upon you. (Wine sold in Saudi Arabia is illegal. Rifles sold in Canada must be registered, etc, etc.)
2. The United States may prohibit your export of the products you are advertising on your web site. Your “customer” may be buying through an unnamed agent in another nation.
3. The contract terms and warranty terms of the local jurisdiction may impose upon you and your service obligations as a matter of law that you would never accept. Does your law apply? The locale of the buyer? Who decides? Do you know? What is the sales tax or VAT tax requirement?
4. Your various limitations on warranties may be voided by local law. Worse, your site may not have the requisite disclaimers at all and you are at the mercy of whatever law in the local jurisdiction may impose. (One of our clients found itself sued in Uganda for a product it thought it sold to Israel. It took over four months to even locate an attorney in that locale.)
5. Such basic issues as currency conversion, return of goods, correction of services, etc. are of vital import given the possible long distances.
6. Ownership of your information or your proprietary data is at risk the moment you place anything on the net. Certain nations have no effective means to protect your property (e.g. no effective court system) and ICANN can only protect you in nations that enforce the laws. The license wording below is vital to protect your intellectual property, but do not assume the protection will be complete. Essentially, it gives you rights to enforce your property claims in the United States, Europe, and perhaps two dozen other nations-but those are the areas of perhaps 90% of the internet business-thus far.
In short, a web site creates an international business and unless one takes the time and trouble to familiarize oneself with the intricate nature of that particular type of business, one is taking a significant risk.
The reader is advised to read our various web articles on Contracts, Invoice Terms and Conditions, and the Federal Corrupt Practices Act. Further, adequate advice is recommended strongly, both in terms of business documents and limited liability entities.
This article, however, shall concentrate on the limited issue of what disclaimer and license forms should be automatically inserted on a web site offering services in any manner. Of course the actual form to be used will vary depending on the nature of the business and the methods used by the customer to pay for the service. This particular form assumes a license to use a service of some type (access to information or data base) over the internet paid directly from the User. Legal counsel and competent accounting (VAT) tax advice should be obtained before seeking to adapt this form to a particular business: but the form will, if carefully read, indicate the major issues a web user should consider confronting before participating in the lucrative new internet economy.
The following disclaimer should appear and be accepted by the customer by clicking or other means BEFORE access to the information is provided and the accepted form stored both in hard copy and in memory.
THE SAMPLE FORM
XYZ CORPORATION("XYZ") provides a_______________information service (the "Service") from www.xyz.com and associated URLs (the "Site") and which may also be accessed through business Partner websites and/or systems. Your access to the Site or use of the Service constitutes your acceptance of, and is conditional upon your continued acceptance of and compliance with, the following provisions. If you have not already done so, please take some time to familiarize yourself with them. Also note that these terms and conditions may change from time to time and it is your responsibility to check for such updates.
Last Revised: ____________.
Reserved Rights and Grant of Limited License
Copyright © __________ All rights reserved. All text, images, graphics, programs, data, animation, sounds and other materials on the Site or made available through the Service and including maps, routes and information about attractions and business establishments (collectively, the "Information") are subject to the intellectual property rights, including copyright, of ______________ and its licensors. ______________ also owns the copyrights in the selection, organization and arrangement of the Information on the Site.
Users of the Service are granted a non-exclusive, non-transferable limited license to access and immediately use the Information for their own and sole personal purposes (and expressly excluding any commercial exploitation or use). Any other use of the Information, including but not limited to service bureau, time-sharing or similar purposes, is prohibited. Except for personal viewing on the screen of a computer or other device used to access the Service and the printing of a single copy from such computer or device (and provided the Information is not modified and any notices are not removed), none of the Information may be modified, translated, merged with other products or otherwise distributed, reproduced, stored, transferred, sublicensed, assigned, leased, marketed, republished, reverse engineered or used on other sites or for any other purpose, in any manner or form, without the prior written consent of ______________. For further certainty, maps, routes and/or other information provided by the Service may not be made available to other persons, posted on a web site or reproduced in any publication.
While ______________ encourages and appreciates links to its home page, direct links to other pages on the Site (including maps) are prohibited. Links to the Site which are encoded to generate a specific map are prohibited. Framing of any Information is also not permitted. ______________ business partners pay ______________ a fee in order for their users to obtain access to the Information. Any unauthorized attempts to access or use the Information constitutes fraud.
______________ is a registered trademark in the United States of ______________ Corporation. Certain other words, phrases (such as: "_________________"), names, designs or logos used on the Site may constitute trade marks, service marks or trade names of ______________ or other entities. All other marks are the property of their respective owners. The unauthorized use of any trademarks displayed on the Site is strictly prohibited.
Conformance with Law
Any products or services mentioned on the Site are made available in accordance with local law and only where they may be lawfully offered.
The mention of another entity or its product or service on the Site or any Information should not be construed as an endorsement, sponsorship or recommendation of that entity or its product or service.The Site may contain links to other sites. These links are provided as references to help users identify and locate other resources that may be of interest. These other sites are independently maintained by entity other than ______________ and ______________ does not assume responsibility for Information contained at such sites. In providing links to other sites, ______________ is in no way acting as a publisher of the material contained on those other sites and does not seek to control the content of, or maintain any type of editorial control over such sites. A link to another site should not be construed to imply that ______________ is affiliated or associated with, or is legally authorized to use any trade mark, trade name, logo or copyrighted symbol that may be reflected in the link or the description of the link to such other sites.
No Advice or Warranties
Information provided on the Site is believed to be reliable when posted or made available. However, the Information and the systems generating the Information are complex and may contain some nonconformities, defects or errors. ______________ does not guarantee the reliability, accuracy, quality, timeliness, usefulness, adequacy, completeness or suitability of the Information, or the results to be obtained. ______________ assumes no obligation to update the Information. Information and features of the Service may contain typographical or other errors. Information provided may be changed or discontinued without notice. The Information is provided for informational purposes only.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ACCESS TO THE SITE/SERVICE, AND ANY INFORMATION THEREFROM, IS PROVIDED ON AN "AS IS" BASIS. ______________ AND ITS LICENSORS MAKE NO GUARANTEES AND EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING USE OF THE SITE, THE SERVICE OR THE INFORMATION, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PERFORMANCE, TITLE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERAL NATURE OF ABOVE, ______________ MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICE OR INFORMATION COMPLIES WITH LOCAL CONDITIONS OF THE USER.
You should not assume that your use of the Site/Service will be error free or that the Site will operate without interruption. Certain countries or states do not allow certain warranties to be excluded, so the above exclusions may not apply to you in their entirety.
______________ does not guarantee or warrant that any files made available for downloading from the Site will be free of infection by viruses, worms, "Trojan horses", or other code that manifest contaminating or destructive properties.
YOU ASSUME ALL RISK ARISING FROM YOUR USE OF THE SITE, USE OF THE SERVICE AND/OR USE OF ANY INFORMATION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ______________ AND ITS LICENSORS SHALL NOT BE RESPONSIBLE OR OTHERWISE LIABLE FOR ANY CLAIM, EXPENSE, DAMAGE, LOSS, LIABILITY, OBLIGATION, DEMAND OR ACTION ("DAMAGES"), IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ANY OTHER DAMAGES WHATSOEVER AND HOWSOEVER CAUSED, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE, THE SERVICE OR IN RELIANCE ON THE INFORMATION, INCLUDING ANY LOSS OF USE, LOST DATA, LOST BUSINESS PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY, OR ANY OTHER PECUNIARY LOSS, WHETHER IN AN ACTION OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ______________, ITS LICENSORS OR AGENTS HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF.
WITHOUT LIMITING AND NOTWITHSTANDING THE FOREGOING PARAGRAPH, IF FOR ANY REASON WHATSOEVER THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE HELD UNENFORCEABLE OR INAPPLICABLE, THE TOTAL AGGREGATE LIABILITY OF ______________, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS, IF ANY, FOR DAMAGES SHALL NOT EXCEED FIFTY DOLLARS ($50.00).
You agree to indemnify, defend and hold ______________ and its licensors (including each of their respective licensors, suppliers, assignees, subsidiaries, affiliated companies, and their respective officers, directors, employees, shareholders, agents and representatives of each) free and harmless from any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind, including but not limited to legal fees, arising out of or in connection with any use or possession by you of the Information. You are responsible for any tax arising from your use of or access to the Information.
Choice of Law
The laws applicable in ___________shall govern as to the interpretation, validity and effect of this Agreement notwithstanding and without giving effect to any conflict of laws provisions of your domicile, residence or physical location. Your use of the Site or Service, or use of any Information provided to you, shall constitute submission to the non-exclusive jurisdiction of the courts of the ___________in any action or proceeding instituted under or related to this Agreement or the Site. Any action or claim brought against ______________ shall be initiated exclusively in ______________, California, United States of America. The parties expressly disclaim the application of the United Nations Convention for Contracts for the International Sale of Goods and the application of any law which seeks to implement UCITA.
Any and all disputes concerning this License or breach hereof shall be resolved under the auspices and according to the International Rules of the International Centre for Dispute Resolution at San Francisco, California, with the prevailing party in such arbitration receiving reasonable attorneys fees and costs incurred. The decision of the arbitrator may be entered in any court of competent jurisdiction. In those jurisdictions prohibiting such arbitration, the venue and jurisdiction shall be ___________, California.
Should any provision of this license and agreement be held invalid or void, the remaining provisions shall remain in full force and effect. This Agreement may only be altered in a writing executed by an authorized officer of ____________ and supersedes and voids any and all previous understandings concerning the same subject matter.
Many areas of the Site do not require users to identify themselves or reveal any personal information. However, certain usage information which may include a user's IP address the time and length of access, the pages viewed and the name of any site visited immediately prior to coming to the Site may be collected and stored on an anonymous, aggregate basis. ______________ does not consider IP addresses to constitute personally identifiable information since they are commonly utilized by proxy servers and thereby shared among multiple users, or are dynamically assigned to machines, and are not easily associated with a particular user. Any e-mail address configured in a user's Web browser may also be logged as part of the web server's automatic logging process. This information is primarily used to assess usage of, and develop ideas for improving, the Site. ______________ does not currently request or obtain personally identifiable information from its business partners.
The Site may make use of "cookie" technology (which uses an identifier that is stored by web browsers) to manage security on the Site and to customize the presentation of information to you.
______________ may use any personally identifiable information submitted by users or collected from use of the Site or Service, if any, to notify users of additional products and services about which they might be interested. ______________ will not, however, provide such information to other companies for their independent use. ______________ reserves the right to provide information collected from the Site or by the Service to third parties, provided such information does not contain information sufficient to identify a particular user by name, address or other personally identifiable information.
Notwithstanding anything else contained in these provisions, ______________ reserves the right to disclose information collected if it believes in good faith that such disclosure is required by law, to comply with judicial process or to protect ______________'s property or other interests.
You may contact ______________ at any time to review or correct any personally identifiable information which may have been collected by ______________.
To the extent that any area of the Site or component of the Service requires users to register, any information provided in the course of such registrations shall be true and accurate. No attempt may be made to impersonate another person or to gain access to any Site facility or Service by unauthorized or improper means.
Users represent and warrant that they are old enough and possess the legal right and ability to enter into this Agreement.
______________ reserves the right to suspend or terminate access to the Site and Service to any user or group of user for any reason at ______________'s sole and absolute discretion.
These terms and conditions constitute the entire agreement between ______________ (and its licensors, including their respective licensors and suppliers) and you in respect to the subject matter hereof, and supersedes in their entirety any and all previous written or oral agreements between the parties. If any provision contained herein is declared invalid or unenforceable, the remaining provisions shall remain in effect.
U.S. Government Restricted Rights
The Information is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is ______________ Corporation, 35 Corporate Drive, Fourth Floor, Boston, MA, USA 01803. The Information is copyrighted © 2003 by ______________ Corporation and/or its licensors UNPUBLISHED. ALL RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES. For the purpose of any public disclosure provision under any federal, state or local law, the Information shall be deemed to constitute trade secret and proprietary commercial data and not subject to disclosure.
______________ may deliver notice to you under this Agreement by means of electronic mail, a general notice on the Site or by written communication delivered by regular mail to your address on record with the Site. You may give notice to ______________ at any time via electronic mail to ______________ or by letter delivered by first class postage prepaid regular mail or overnight courier to the address listed for ______________ at www.______________.com
Third Party Ad Services
______________ may utilize third-party advertising services to display advertising on the Site for others. These third-party services may upload a cookie for the purposes of ad tracking, presentation and to measure ad effectiveness. ______________ does not share personally identifiable visitor information with its third party providers of advertising services.
Third Party Agreements
Certain data provided to ______________ by its third party licensors and utilized to generate portions of the Information is subject to additional terms and conditions, as follows:
The data ("Data") is provided for your personal, internal use only and not for resale. It is protected by copyright, and is subject to the following additional terms and conditions which are agreed to by you, on the one hand, and ______________ and its licensors (including their licensors and suppliers) on the other hand.
© _______________. All rights reserved.
Terms and Conditions
Personal Use Only.
You agree to use this Data together with ______________'s services for the solely personal, non-commercial purposes for which you were licensed, and not for service bureau, time-sharing or other similar purposes. Accordingly, but subject to the restrictions set forth in the following paragraphs, you may copy this Data only as necessary for your personal use to (i) view it, and (ii) save it, provided that you do not remove any copyright notices that appear and do not modify the Data in any way. You agree not to otherwise reproduce, copy, modify, decompile, disassemble or reverse engineer any portion of this Data, and may not transfer or distribute it in any form, for any purpose, except to the extent permitted by mandatory laws.
Except where you have been specifically licensed to do so by ______________, and without limiting the preceding paragraph, you may not (a) use this Data with any products, systems, or applications installed or otherwise connected to or in communication________________, including without limitation cellular phones, palmtop and handheld computers, pagers, and personal digital assistants or PDAs.
This Data is provided to you "as is," and you agree to use it at your own risk. ______________ and its licensors (and their licensors and suppliers) make no guarantees, representations or warranties of any kind, express or implied, arising by law or otherwise, including but not limited to, content, quality, accuracy, completeness, effectiveness, reliability, fitness for a particular purpose, usefulness, use or results to be obtained from this Data, or that the Data or server will be uninterrupted or error-free.
Disclaimer of Endorsement:
Reference to any products, services, processes, hypertext links to third parties or other Data by trade name, trademark, manufacturer, supplier or otherwise does not necessarily constitute or imply its endorsement, sponsorship or recommendation by ______________ or its licensors. Product and service information are the sole responsibility of each individual vendor. The Navigation Technologies name and logo, the __________ and __________trademarks and logos, and other trademarks and trade names owned by ___________ Corporation may not be used in any commercial manner without the prior written consent of _____________.
You agree not to export from anywhere any part of the Data provided to you or any direct product thereof except in compliance with, and with all licenses and approvals required under, applicable export laws, rules and regulations.
You agree to indemnify, defend and hold ______________ and its licensors (including their respective licensors, suppliers, assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of each of them) free and harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to attorney's fees, arising out of or in connection with any use or possession by you of this Data.
These terms and conditions constitute the entire agreement between ______________ (and its licensors, including their licensors and suppliers) and you pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between us with respect to such subject matter.
The above terms and conditions shall be governed by the laws of the ________________ without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of _________________.
Government End Users.
If the Data is being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, (i) for acquisitions conducted by the Department of Defense, the ___________ Data is licensed with "Limited Rights" in accordance with the rights set forth at DFARS 252.227-7013(b)(3), TECHNICAL DATA-NONCOMMERCIAL ITEMS, and ____________Data delivered or otherwise furnished with "Limited Rights" shall be marked with the following "Limited Rights Notice" set forth at DFARS 252.227-7013(f)(3), and shall be treated in accordance with such Notice:
CONTRACT NO.: ____________________________________________
CONTRACTOR (MANUFACTURER/ SUPPLIER)
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(3) of the Rights in Technical Data-Noncommercial Items clause contained in the above identified contract. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.
and; (ii) for civilian agency acquisitions, the ______________ Data is licensed in accordance with the rights set forth at FAR 52.227-14(g)(1), RIGHTS IN DATA-GENERAL (Protection of limited rights data and computer software). In the event that the Contracting Officer requires the delivery of limited rights ______________ Data that has been withheld or would otherwise be withholdable in accordance with FAR 52.227-14(g)(1), the ______________ Data is licensed with "Limited Rights" as set forth in the following "Limited Rights Notice" at FAR 52.227-14(g)(2) (Alternate II), which shall be affixed to the ______________ Data and the ______________ Data shall be treated in accordance with such Notice (which shall be marked on any reproduction of these data, in whole or in part):
LIMITED RIGHTS NOTICE (date)
These data are submitted with limited rights under Government Contract No. _____ (and subcontract ______, if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any, provided that the Government makes such disclosure subject to prohibition against further use and disclosure: There are no additional purposes permitting disclosure of such Data.
The manufacturer/supplier of the Data is _______________
The form above is possibly more complex than required for a smaller operation which may not be utilized by a governmental agency but certainly should indicate the scope of problems that may be addressed in the correct disclaimer and license. Normally, before access to the site is obtained, the User must click an “I accept” icon and that has been held to be fully enforceable in most jurisdictions.
For informational web sites (ones that do not provide a product or service) many of the above disclaimers may not be required but disclaimers and vesting of jurisdiction is still highly recommended.
The web has changed the world of business. Those businesses who master its requirements…including adding in the type of verbiage as above…are the ones who will most benefit from its power.