The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Presenting a live 90-minute webinar with interactive Q&A Drafting Website and Mobile App Terms of Use, Privacy Policy and IP Protections Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, OCTOBER 25, 2017 Julia B. Jacobson, Partner, K&L Gates, Boston A. Benjamin Klaber, Morgan Lewis & Bockius, Pittsburgh Richard C. Vershave, Fraser Trebilcock, Lansing, Mich.
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The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
Customize: Understand the business, technology and user experience
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Enforceability
• Click-Wrap Agreements
“I Accept” clicked – Terms generally enforceable
Maintain records; control access (see Kearney v. Okemo LLC)
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Enforceability
• Click-Wrap Example
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Enforceability
• Browse-Wrap Agreements
No “I Accept” – Enforceability issues
User awareness likely?
Terms readily available?
Tompkins v. 23andMe, Inc. (later registration sufficient for terms to be binding)
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Enforceability
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• Browse-Wrap Example (Home Page)
HAS ANYBODY SEEN MY TERMS?!
Enforceability
• Nguyen v. Barnes & Noble
– link one of several at bottom of page
– No actual or constructive notice
– arbitration provision unenforceable
– Discussion regarding design and content
References/directions?
Placement (field of vision)?
Conspicuous?
Reasonably prudent user – inquiry notice?
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Enforceability
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• Hybrid Example (“Sign up”)
See Fteja v. Facebook (discussion of click-wrap, browse wrap, etc.)
• Fteja v. Facebook
Enforceability
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• Hybrid Example (“Download” with scroll)
Enforceability
• Notice-Wrap Agreements
No “I Accept” – Enforceability issues
Like Browse-Wrap, user awareness and access?
Option to close alert – supports awareness argument
Nicosia v. Amazon (arbitration provision added after account opened – should be clear and conspicuous)
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Enforceability
• Click-Wrap Updates
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Enforceability
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• Other Example Structures
E-Warranty (E-Warranty Act)
Email
Enforceability
• Nature and actions of user impact enforceability
Nguyen v. Barnes & Noble (terms unenforceable against consumers but business relationships distinguishable)
Register v. Vario (terms binding where repeated access to site)
• Unconscionability
Comb v. PayPal
Facts and Circumstances
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• Best Practices
View terms before assent (textual notice, placement, size,
color, etc.)
Assent before access to product
Clear disclosure of terms - Notice of consequences of accept/reject
Clear method of assent ( “I Accept”)
If necessary, be creative/persistent (e.g., registration)
Enforceability
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• Best Practices (cont.)
Record of assent (or IT restrictions)
Customary/reasonable agreement terms
Notice and acceptance of updates
Enforceability
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Notable Provisions
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• Changes
We may modify at any time
Changes effective immediately upon posting/disclosure
CONSIDER: notice period for material changes
Access/use following change constitutes acceptance
Then-effective terms apply to disputes (not retroactive)
Notable Provisions
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• Dispute Resolution: NOT Best Practices
Notable Provisions
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• Dispute Resolution: Best Practices
See also Roblox terms
Notable Provisions
• Limitations of Liability
Separate materially different concepts
– Direct Damages (i.e., no liability whatsoever)
– Consequential, incidental, etc. damages
– Liability Cap (FYI: 0 + 0 = 0)
– Disclaimers (e.g., third party software/content)
DETERMINE: Legitimate remedy? Conspicuous?
CONSIDER: interaction with other provisions
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Notable Provisions
• Severability
Limit uneforceability to specific jurisdiction
Enforce provision to maximum extent permissible
All other provisions remain effective
Isolate questionable provisions
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Notable Provisions
• Indemnification
Any activity (account/credentials)
Content
Breach
CONSIDER: specific risks/uses
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Notable Provisions
• Privacy
Expressly incorporate by reference (DISCUSS)
– User agrees to Privacy Policy terms
– Include link to the Privacy Policy
Clear, accurate and transparent
CONSIDER: industry context
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Notable Provisions
• Data Rights
Often key to business strategy
Related to providing, customizing and improving service
Don’t forget de-identified data
User warrants: authorized, complete, accurate and current
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Terms, Policies, etc.
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• Spoke Structure
Supplemental terms may apply to some services/content
Such terms are additional
Access/use constitutes user acceptance
Order of precedence
Terms, Policies, etc.
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• Deemed Acceptance
By: accessing, using, visiting, downloading, registering, attending, etc.
Any: websites, products, services, software, applications, platforms, portals, content, test environments, data feeds, forums, events, etc.
User signifies agreement to these Terms and the following, all of which are incorporated by reference and shall be included within the definition of Terms: [e.g., Privacy Policy, EULA, Trademark Guidelines, etc.].”
Summary
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• Terms of Use/Service
Conspicuous
Accessible
Clear
Reasonable
Expressly accepted (including updates)
Access controlled and documented
Tech&Sourcing@MorganLewis Blog
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About Tech & Sourcing @ Morgan Lewis
• Morgan Lewis’s Tech & Sourcing @ Morgan Lewis blog highlights the latest developments and trends affecting technology, outsourcing, and other commercial transactions.
This material is provided for your convenience and does not constitute legal advice or create an attorney-client relationship. Prior results do not guarantee similar
outcomes. Links provided from outside sources are subject to expiration or change. Attorney Advertising.
A. Benjamin “Ben” Klaber practices on a Morgan Lewis team that counsels clients on technology, outsourcing, and commercial transactions, intellectual property matters, mergers and acquisitions, private equity, venture capital, and general corporate matters. Ben earned his J.D. from the University of Pittsburgh School of Law and his B.S.E. in operations research and financial engineering from Princeton University. He is a member of the Emerging Leadership Board of the Pittsburgh Venture Capital Association.