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YOUR BUSINESS CLIENTS HAVE A WEBSITE…HAVE YOU ADVISED THEM
ON HOW TO LIMIT THEIR LIABILITY EXPOSUREP. Haans Mulder, JD, MST, CFP®
Cunningham Dalman, P.C.
Serving the Lakeshore since 1900
Background• Shareholder at Cunningham Dalman, P.C.
• Specialize in business law (subspecialty in technology law) and estate planning
• Publications-The Michigan Business JournalSocial Networking: Your Business Clients and Their Employees Are Doing It…Are You Advising Your Clients on How to Manage the Legal Risks? (Summer , 2010) Open Source Software: Coming to a Client Near You? (Summer, 2009)Serving the Lakeshore since
1900
Background• Cunningham Dalman, P.C. is located
in Holland and has been serving the Lakeshore since 1900
• Has 14 attorneys specializing in all areas of the law
Serving the Lakeshore since 1900
Serving the Lakeshore since 1900
Flying at 30,000 feet….
Overview• Start with the practical stuff• What is your client going to do with the site
• How is the site being built/maintained and what aspects of the site need to be protected
• What are some miscellaneous issues to be aware of
Serving the Lakeshore since 1900
Start with the Practical Stuff• Set expectations about complexity• Clients still have all of the traditional
business law issues • Take an interest and learn about
technology• Realize you will likely be reviewing
documents from other sites
Serving the Lakeshore since 1900
What’s Being Done with the Site• Terms of use agreement• Advertising• E-contracting
Serving the Lakeshore since 1900
Terms of Use Agreement• Governs the use of the site• Define what is permitted and what
is not allowed on the site• Identify the owner of the content• Disclaim/limit your client’s liability• Addresses liability issues with the
use of hyperlinks
Serving the Lakeshore since 1900
Advertising• May be done on the site or through
affiliate sites • Must be truthful and not misleading• Required to have evidence to
substantiate a client’s claims• Avoid spam by analyzing commercial
email content
Serving the Lakeshore since 1900
E-Contracting• May be accomplished by click-wrap
or browse-wrap agreements• Recommend using click-wrap (unless
it does not involved important legal issues)
• Is there sufficient notice and a valid consent to the terms and conditions
• Use an “I Accept “ box
Serving the Lakeshore since 1900
Building Out/Maintaining the Site• Website development• Domain name registration• Software licensing• Privacy policy• Website hosting
Serving the Lakeshore since 1900
Website Development• Website is composed of many
elements (software, text, photographs, data, video,etc.)
• Client should own the site and/or license the elements above
• Consult an intellectual property attorney if necessary
Serving the Lakeshore since 1900
Domain Name Registration• Help your client chose the domain
name (follow general principles under trademark law)
• Use a dispute resolution policy (UDRP) to resolve issues
• Advise your client to re-new the domain name on time
Serving the Lakeshore since 1900
Software Licensing• Determine what rights your client has
• What is the term of the agreement• Are there any warranties or
indemnification obligations• What remedies does your client have
Serving the Lakeshore since 1900
Privacy Policy• One size doesn’t fit all• Define what information will be
collected and determine where it is coming from
• Is information governed by any particular federal or state laws
• Describe what is going to be done with the information
Serving the Lakeshore since 1900
Website Hosting• Provider keeps all of your client’s
content on its or another company’s server
• Does the host own it or is it a reseller
• What is the level of service• How is security addressed• Provide for continued hosting and
portabilityServing the Lakeshore since 1900
Protect Certain Aspects of the Site• Consider protecting the name,
graphics/design, and any software applications by registering a mark or copyright
• Have work made for hire agreements
• Determine if patent protection is available
Serving the Lakeshore since 1900
Other Issues to be Aware of• Taxation of transactions• Insurance coverage
Serving the Lakeshore since 1900
Taxation of Transactions• Have your client talk with an
accountant if it sells goods or services through its site
• Likely will have implications for reporting and paying sales and/or use tax
Serving the Lakeshore since 1900
Insurance Coverage• Have your client work with agent to
determine what claims are covered• Analyze particular uses of site to
identify areas of liability exposure (breach of privacy, copyright/trademark infringement, etc.)
Serving the Lakeshore since 1900
Serving the Lakeshore since 1900
Questions….
P. Haans Mulder, JD, MST, CFP®
321 Settlers RoadHolland, MI 49423(616) [email protected]://www.linkedin.com/in/phaansmulder
Serving the Lakeshore since 1900
Thank You