Essential Elements for Businesses’ Website Terms and

ConditionsPresenters: Karl S. Kronenberger & Ansel Halliburton

June 22, 2016

© 2016 Kronenberger Rosenfeld, LLP

Who Are We?

Karl S. Kronenberger Ansel Halliburton

Full Bio Full Bio

Importance of Website Terms

• Underlying Agreement with Website Users• Provides Control Over Relationship

Forming the Agreement

• Browsewrap Agreements• Clickwrap Agreements

Browsewrap Agreements

Browsewrap Agreements

Clickwrap Agreements

Clickwrap Agreements

Important Provisions

• Dispute Resolution — When, Where, How• Class Action Waivers• Intellectual Property Licensing• DMCA Process• Prohibited Activity• Well-Structured Privacy Policy

Other Important Provisions

• Consent to Receive Email / Phone Calls / SMS Messages

• Anti-Spam Provisions (communications among users)

• Do-Not-Track Provisions• Anti-Competitor Provisions• No-Trespass Provisions

Other Important Provisions

• Industry-specific disclosures and disclaimers (health, etc.)

• Marketplace rules• Shipping and refund terms

What Not to Include

• “Gag Clauses” re: Consumer Reviews• Careful with Liquidated Damages• Terms Absolving Company of ALL Liability

Placement of Key Disclosures

• What disclosures must be on the same page as the “click to agree” button?

• FTC Act, Section 5, 15 U.S.C. § 45• FTC dotCom Disclosures (2000/2013)• TCPA, 47 U.S.C. § 227• ROSCA, 15 U.S.C. § 8403

ROSCA

• 18 U.S.C. § 8403• Negative Option Marketing on the Internet

ROSCA

It shall be unlawful for any person to charge or attempt to charge any consumer for any goods or services sold in a transaction effected on the Internet through a negative option feature (as defined in the Federal Trade Commission's Telemarketing Sales Rule in part 310 of title 16, Code of Federal Regulations), unless the person--(1)provides text that clearly and conspicuously discloses all

material terms of the transaction before obtaining the consumer's billing information;

(2)obtains a consumer's express informed consent before charging the consumer's credit card, debit card, bank account, or other financial account for products or services through such transaction; and

(3)provides simple mechanisms for a consumer to stop recurring charges from being placed on the consumer's credit card, debit card, bank account, or other financial account.

ROSCA Example

Drafting Website Terms

• Copying Competitors’ Terms – BAD IDEA• Online Terms Generators• Interaction with Other Agreements• Choosing a Firm

Implementing Website Terms

• Create a Record• How to Enforce in Court

Best Practices

• Clickwrap agreements are preferable to browsewrap agreements

• Decide on key provisions based on unique circumstances of your business.

• Keep records of changes and when users agreed to website terms.

• Don't overreach on terms that protect your business.

• Comply with FTC guidelines and ROSCA.

Best Practices

• Draw attention to arbitration clauses and provisions that relate to price, privacy, and recurring charges

• Provide the means of assent at the end of the agreement, just prior to the mechanism for proceeding with the transaction

• Provide a clear choice between assenting to and rejecting the agreement

• Use clear words describing the consumer’s assent, for example, “I agree.”

Conclusion, Q&A

Karl S. KronenbergerKarl@KRInternetLaw.com(415) 955-1155 ext. 114

150 Post Street, Suite 520, San Francisco, CA 94108www.KRInternetLaw.com

Ansel HalliburtonAnsel@KRInternetLaw.com(415) 955-1155 ext. 122