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
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….
It is time to start thinking about your firm’s goals for 2013. Consider these 13 tips to help you cut costs and make your business more profitable.
- Outsource your legal research and writing projects to a freelance attorney. There are many freelancers that excel in research and writing, and they provide an efficient solution to your dread of pouring over cases or revising that motion for the 15th time. Allow someone who enjoys research and writing to bear the burden for you. Learn more about freelance legal work here.
- Take advantage of free software. There are a number of options, including OpenOffice for word processing, spreadsheets, and database management. You can get Outlook-like email and calendaring through Mozilla with Lightning. There are free accounting providers too…check out Gnucash and Outright.
- Take your marketing efforts on-line. There is no excuse for not being familiar with at least one free social networking platform like Linked-In, Facebook, Twitter, Google+, Reddit, or blogging. Your branding efforts are complemented by an online presence, and it is very simple to become familiar with these tools.
- Buy IT service in bundles. Rather than paying a monthly fee that may be wasted if you have do not have any technology issues for a few weeks, ask your IT guy to give you a bundle of hours at a time. Even if the hourly rate initially seems high, you know you are using only what you need and not paying for services you do not use. Plus, the “IT guy” market is competitive, and he or she will probably be willing to negotiate to keep your business.
- Go online for telephone and fax service. Verizon, Skype, Vonage, AT&T, and GalaxyVoice are just some of the providers that give you variations of unlimited calling for between $20.00 and $35.00 a month. A great review of the quality of the various providers can be found here. Fax service can be had for between $5.00 and $20.00 a month with services like Nextiva, Myfax, and Metrofax.
- Buy supplies online. Most large office supply retailers now provide free delivery and features that “remember” your favorite items, so save yourself and your employees time by ordering online.
- Go green. It goes without saying that costs for paper, toner, printer maintenance, and the like can easily add up to thousands of dollars per year. Further, storage fees for mountains of paper will quickly leave you buried. Print only what you absolutely must, print double-sided when possible, and teach yourself to review documents on-screen.
- Use free online storage providers. Rather than paying hundreds of dollars for back-up storage devices, consider using free services like JustCloud and Box. However, be cognizant of privacy, privilege and security issues and make sure your provider encrypts the files during transmission using an HTTPS connection. Learn more here and here.
- Outsource time intensive work to a freelance attorney. Review of voluminous contracts or responding to a document-heavy request for production may be better served by hiring temporary outside help. Sending the work to a freelance attorney frees up your time to focus on your case and client, while ensuring the work receives the attention it deserves.
- Familiarize yourself with all possible small business deductions. The IRS offers online workshops to help small businesses learn about their tax rights and responsibilities. Here are twelve deductions that many small businesses might overlook.
- Use “group buying power.” GroupEsq uses the buying power of groups of attorneys to get savings on things like CLEs, process servers, and legal research.
- Cut back on memberships in professional organizations. If you are like me, you signed up for nearly every possible networking group at some point in your career. As your practice narrows and you become more focused on certain areas of the law, cut back on memberships in groups that are not relevant to you anymore. This should cut back on the amount of junk email you receive, too!
- Print your own postage and sign up for business accounts with the major shipping companies. Fed Ex, USPS, and UPS all offer ways for you to print postage and shipping labels directly from your computer. If you are an account holder with these companies, you may be eligible for special discounts and bulk pricing.