If this happens to you, you should consult an attorney before making any payment to see if there are any defenses available to you.
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.
- 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.
- Keep track of updates to your TOU. If you update your TOU, make sure you note the date of the change and what changes were made, so that you know what version was in place at any given time. If you are changing key terms, keep in mind that a large prior customer base may not be subject to them, so you should advise them of the update and, of course, require a new consent.
- Consider re-confirmation of assent at various times. It may be wise to consider sending out the TOU to major customers at regular intervals and requiring them to acknowledge ongoing consent of the terms. While this seems burdensome, it can protect your business in the long run.
- Traditional contracts concepts still apply. Even if your TOU follows all of the foregoing guidelines, if it violates traditional rules of contract it may still be unenforceable. Again, the importance of having your attorney draft the TOU is key.
- Users should be given the opportunity to reject the agreement. This seems obvious, but if the users’ only option is to select “I agree,” this will weigh against your argument that the user voluntarily consented to the terms.
- Consider how your Agreement is affected by other third parties contracts that you have — for example, credit card processors may not recognize the validity of TOUs or the agreement may otherwise conflict with yours.
This post does not constitute legal advice and is intended to act only as a guideline on the foregoing topic. You should always consult an attorney regarding any legal issue that might affect your rights, and you should research your attorney’s background and credentials before hiring them.
© Junilla Sledziewski, 2014
As a homeowner and member of a condo association or homeowners’ association in Florida, you have the right to access a wide range of financial, voting, contractual and other records of the Association under Florida Statutes 718 and 720. Typically, you will need to follow the rules for accessing the records as set out by your Association, but those rules must be reasonable.
Here are some of the most important documents you may look at:
- Minutes of board or member meetings for the last seven years.
- Audit records, tax returns, accounting statements, and financial reports depending on whether you own a condo or single family home.
- If your Association has performed work on the building, you are entitled to inspect the bids and any contracts pertaining to the work.
- All applicable insurance policies and any management agreement, lease, or other contract to which the Association is a party (for example, third-party vendors on the property).
- All receipts and expenditures of the Association, which it must keep “accurate, detailed, and itemized” by law.
The Florida Statutes give you these rights. Do not let your Association hide anything. Some Associations are notorious for fraud and corruption. If you suspect your Association is up to no good, are concerned about a special assessment, or simply want to know where your money is going, take charge! If you have questions or are suspect of the board, contact an attorney.
As a result of the disaster and humanitarian crisis in the Philippines following Typhoon Haiyan, Filipino nationals may be eligible for some immigration relief measures through The United States Citizenship and Immigration Services (USCIS). For example, if you are an F-1 visa student and your parents can no longer financially support you due to being affected by Haiyan you may be eligible for off-campus employment. There is also the possibility of leniency if you have not appeared for an interview or submitted evidence required for your immigration status or petition; you may show how the typhoon affected your connection to USCIS and your ability to appear or submit documents as required. Finally, there is the possibility of expedited processing of immigrant petitions for immediate relatives of U.S. Citizens and lawful permanent residents.
If you or a Filipino family member have been affected by Typohoon Haiyan, make sure you are receiving the immigration relief benefits available to you by contacting the USCIS or an attorney. According to the USCIS, available benefits may include:
- Change or extension of nonimmigrant status for a person currently in the United States, even if the request is filed late
- Extension of certain grants of parole or advance parole and expedited processing of advance parole requests
- Expedited approval of requests for off-campus employment authorization for F-1 Visa students experiencing severe economic hardship
- Expedited processing for employment authorization applications
- Assistance to lawful permanent residents that are stranded overseas without travel documents or immigration cards
- Expedited processing of immigrant petitions for immediate relatives of U.S. Citizens and lawful permanent resident
Starting August 2013: U.S. Legal Permanent Residents may petition their spouse and children (unmarried and under 21) with no waiting time
By Guest Author — Adriana Kostencki
According to the upcoming Visa Bulletin for August 2013, released by the Department of State (http://www.travel.state.gov/visa/bulletin/bulletin_6028.html), the family-based 2A category (Spouses and Children of Permanent Residents) will be current in August of 2013 for all nationalities. In the past, spouses and children of U.S. Legal Permanent Residents have faced a wait of typically three to five years for a visa to become available to them due to annual limits on the number allotted in this category.
The great news is that according to the Visa Bulletin for August 2013, this category will be current, meaning that spouses and children of U.S. Legal Permanent Residents will not have to wait for their immigrant visas to become available. It is very important for U.S. Permanent Residents interested in petitioning their spouse and/or children (unmarried and under 21), to begin with the preparation of the necessary paperwork as soon as possible, as the applications must be filed on or after August 01, 2013 before the United States Citizenship and Immigration Service. Also, it is highly advisable that all U.S. Legal Permanent Residents that qualify under this category, file their petitions on behalf of their spouse and/or children (unmarried and under 21) during the month of August 2013, as it is not certain that the F-2A category will remain current in September of 2013.
This is an important concept that many clients are unfamiliar with, but it forms a crucial channel of communication between you and your lawyer. The bottom line is that all communications you have with your lawyer must be kept confidential by the lawyer except in a few, limited circumstances. Also, you cannot be forced to tell other people what you talk about with your lawyer. The purpose of the privilege is to make you comfortable telling your lawyer everything necessary for them to represent you in the best possible way.
Here are a few things to keep in mind during communications with your lawyer to maximize the benefit of the privilege.
- The privilege generally begins right away, often during the initial phone call or consultation. However, if you are casually discussing your problem with an attorney friend in a social setting, be careful, because the privilege might not apply.
- The privilege only applies to communications you have with your lawyer regarding their legal representation of you. So, if you have extended conversations with your lawyer about matters outside the scope of the specific case you have retained them for, those conversations might not be protected.
- The privilege extends to employees of the attorney, such as the legal assistant or paralegal, who also have a duty to protect your confidential information.
- Please, please, please, be candid with your lawyer. Too many times clients “remember” some crucial fact weeks, months, or years after it is too late to make a difference. If you are embarrassed, shy, or convinced that some fact should not be disclosed, chances are that piece of information is critical and you should tell. Trust me, we have seen and heard it all. Please make sure your lawyer has all the information needed to prepare your case.
- Not being truthful with your lawyer may hurt your case. If you think you can keep something a secret — guess what? You can’t. If it is out there, the other side will find it. Wouldn’t you rather your lawyer know and be prepared about the bad aspects of your case than find out during trial? I thought so.
- There are a few exceptions to the attorney-client privilege, where it may be ok for your lawyer to disclose something you told them or where you may be required to disclose something that you told your lawyer in confidence. Stay tuned for the next article in this series for more information….
—- by guest author Melody Cobbe @CobbeLaw
The business communities, including small businesses, are always looking for methods to become more efficient and as result, increase their profitability margins. “Outsourcing” is a creative option available to small business owners. Whether the goal is to remain self-sufficient or position your business for an eventual merger or acquisition, businesses must become smarter about where to cut costs. By “outsourcing” essential needs of your business, such as legal assistance, accounting, secretarial work, and marketing, a business owner is given the flexibility of having a job function fulfilled without the long-term cost of having an employee fill that position.
– By Guest Author E. Adriana Kostencki, Esq.
Licensed to practice law in Venezuela and Florida, U.S.A.
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.
Each Friday, I ask my Twitter followers to send me their legal question via private message or email. I choose one question to respond to anonymously each week. Below is last week’s chosen question:
“I am starting a business with three friends to develop a video game. We are confused about the difference between a limited liability company and a partnership. Can you help us out?”
There are a number of important distinctions between a partnership and a limited liability company (“LLC”). You should discuss the details of your business’s goals with an attorney, but the following will give you an idea of the main advantages and disadvantages of each type of business.
The defining characteristic that distinguishes a partnership from an LLC is the LLC members’ limited liability. A partnership is a business operating under its owners’ names (although a trade name might be used). The partners are personally responsible for the debts of the business. That means they could lose their personal assets, such as a home, car or certain investments to satisfy the partnership’s debts. Also, if the partnership owns assets, such as a building or vehicles, the individual partners also personally own those assets in proportion to each partner’s contribution to the business, or as arranged in a partnership agreement. If no agreement exist, the statutes dealing with partnerships will apply standard rules.
An LLC, however, is an independent legal entity and owns property, enters contracts, and loans or borrows money separately from the individual members. The members will generally not be liable for the LLC’s debts or obligations. It acts as a “corporate person” and all traditional duties of a business are carried out in the name of the LLC only. Members must be careful not to “commingle” their personal assets with that of the LLC, or a court might determine that the LLC is merely a “shell” for the members’ personal use and find the members liable for obligations of the business.
Forming the business
Partnerships are formed as soon as two or more individuals begin doing business. No formal filing is necessary to “start” the business. However, it is always advisable that a partnership agreement is in place to outline the contributions, distributions, and responsibilities as they relate to each partner. Further, a business license or fictitious name registration may be appropriate.
An LLC can be owned by one or more people, known as “members.” An LLC is generally created by registering with the state of formation, as well as any states where it is conducting business. Paying a fee is required, although this fee is generally quite low. An LLC should always have an operating agreement, even if it has only one member, to lend legitimacy to its corporate status. Read more about this HERE
— By guest author Frank Menendez
Since July 2010 municipalities in Florida have been allowed to use red light cameras on state-owned intersections and fine drivers who run red lights with the aim of enforcing “safe driving.” Mmmhmm…sure…and a big money maker for the cities!
Have you received a red light camera ticket? Unlike being pulled-over by an officer and receiving a traffic ticket, you won’t know if you ran a red light at one of these photo enforced intersections until you receive a “Notice of Violation” in the mail.