Monthly Archives: February 2013

Five Essentials for Your Website’s Terms of Use Agreement

In a previous post, I talked about the importance of website Terms of Use or Terms of Service (TOU) Agreements and ways to help make yours more enforceable.  This article will cover five key sections that should be in every TOU.  The list is not exhaustive, and depending on your business you may require many, more specific provisions.  Also, interpretation of these issues varies by state.  Nonetheless, these will give you a good start.  You should consult an attorney to review the TOU that you have in place or to draft a new one for you including the precise language needed to give your business maximum protection.

1.     Disclaimer/Limitation of Liability

You will want your agreement to limit your liability for the user’s use of your online product or service.  Of course, you cannot simply put a provision in your TOU that limits all liability, but there are certain categories of damages that you may be able to limit by contract.  Consult an attorney for more detailed information.

2.     Warranty

You make certain promises about your product or service to your customers.  That is good and sensible business practice.  There are also certain warranties provided for by law.  However, there are certain limitations you may want to place on those warranties through your TOU and you should do so to the extent permitted by law.  These must be clear and conspicuous to your customers, so consult an attorney to draft them for you.

3.     Privacy Policy

The importance of this provision cannot be underscored.   This section should disclose the way you gather, manage, use, and disclose a customer’s data.  There are state and Federal laws that mandate the way you use (or don’t use) this data, and disclosing details about that information in your TOU is essential.   It also gives your users a sense of security that is important to maintaining your client base.  Sometimes, the privacy policy is even separate from the TOU.

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Beginning April 1, 2013, U.S. Companies may file H-1B applications for Fiscal Year 2014 on behalf of prospective foreign workers

– By Guest Author E. Adriana Kostencki, Esq. 
Licensed to practice law in Venezuela and Florida, U.S.A.
eak@fowler-white.com

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U.S. employers may require the services of a foreign national to work at their company or business. Immigration laws, however, require that an individual whom the U.S. employer plans to employ or continue to employ in the United States is authorized to accept employment in the United States. If the individual is already a permanent resident (green card holder), the U.S. employer may hire that individual, but must comply with the employment verification requirements. If the foreign national is not already a permanent resident, the U.S. employer will need to file a petition so that the individual may obtain the appropriate immigrant or nonimmigrant classification.

One of the most common non-immigrant visa classifications available to foreign professionals is the H-1B visa category, which enables U.S. companies to hire foreign skilled professionals to perform services in a specialty occupation. The law defines “profession” as including, but not limited, to architects, engineers, lawyers, physicians, surgeons, and teachers. The specialty occupation requires the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent through a combination of education, training, and work experience) as a minimum for entry into the occupation in the United States.

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Free Legal Friday: Tenant Rights in Foreclosure

Every Friday, I ask my followers on Twitter to send me their legal questions anonymously.  I choose one question to answer on the blog the following week.  Here is last week’s question:

I was leasing a property from my uncle, but he lost it at foreclosure and now the new owner is threatening that he can kick me out.  Is that true?

The short answer is:  It depends.  In 2009, the Federal government passed the Protecting Tenants at Foreclosure Act.   It is designed to protect existing tenants from eviction that have a valid lease.  In most cases, tenants will have a minimum of 90 days from the date title is transferred to the new owner before they can be evicted.  However, that new owner must comply with very specific notice requirements advising the tenant of the eviction.  If your new owner has not done that, you may have a valid defense to any eviction.images

Further, if you have a valid lease, you will generally be permitted to stay in the residence until the end of the lease unless the purchaser is going to move in to the property as their primary residence.  So, if a bank has purchased the property it is more likely that you will be able to stay to the end of your lease.  Either way, you must still receive the 90 days proper notice before you can be evicted.

This law only applies if you are a “bona fide” tenant — leases between children, spouses, or parents of the mortgager are not protected.  You may need to prove that the lease with your uncle was an “arm-length’s transaction” — meaning that both parties were acting as they would in any normal marketplace and there was no “special deal” just because you were his niece.  Your rent must also be fair market value for the lease to be considered “bona fide.”  You should speak with an attorney who can advise you about the specifics of the law in this rapidly changing area.

The foregoing is to be used as a guideline only and is not intended to establish an attorney client relationship.  You should consult with an attorney regarding the specific facts of your case.

© Junilla Sledziewski, 2012

Website “Terms of Use” Agreements — Are They Enforceable?

If you operate a web-based business, chances are you have a “Terms of Use” or “Terms of Service” (TOU) document posted somewhere on your website – if you do not, you should get one right away. Depending on the nature of your business, you might even require users to “sign” the document electronically. The enforceability of these of “contracts” is rapidly changing in the digital age, but there are a few important considerations that will help ensure your agreement is enforceable.

Generally, the main thing that courts consider when determining whether a TOU is valid and enforceable is evidence that the user actually “assented” to abide by the terms of the agreement.   That is, you must show that the user read and understood the terms and voluntarily agreed to abide by them.  Additionally, “conspicuous” or obvious notice of the agreement’s existence prior to the user accessing your product or service is very important.

Here are a few guidelines to ensure that your agreement is enforceable if ever called in to question in court.

  1. The more steps a user must go through to “assent,” the more likely the TOU will be considered enforceable. However, it is important to balance business concerns with the need to protect the interests of the business. So, asking for the user to “initial” agreement to terms is completely reasonable, whereas insisting on an initial at every page followed by requiring the user to provide a written statement accepting the terms might be excessive. Terms of Use that are available only through a tiny link at the bottom of a page are unlikely to be enforceable without other evidence of “reasonable manifestation of assent.”
  2. Match your agreement to your business. The value of each sale or service should be considered in light of how big of an effect a breach of the agreement would have on your business. For example, a simple “I agree” may be sufficient assent by a consumer, but if you are dealing with another business, it might be worthwhile to require more evidence of “assent,” such as an initial on each page or requiring the user to write out the full name of the business after reviewing the document. Continue reading →