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By David A. Wheeler, Greenberg Traurig
One of the questions that I often hear from online business
and use it on mine?"
My answer is, why would you want to invite someone else's
liability into your own front yard? It's
just not a good practice. It's not
something I would ever advise doing.
What you really want to do though is go back and analyze the
type of business that you are. And it's
a broad spectrum. Are you an online
business that simply provides information? Are you a passive site that doesn't
collect information and you simply provide a service with regard to the
information? Or are you a fully interactive site where products and services
are actually being bought and sold over your site? Over the length of that spectrum are going to
There has been a trend on certain websites to make the terms
of use more folksy and fun and less "legalese".
contract. They represent an agreement
between you and your users that you want stated in contractual terms. It's nice to be reader-friendly and
user-friendly, but in terms of being specific and clear from a legal
perspective as to what that agreement is, you cannot avoid some of the legal
Trademarks, Logos and
Make sure that your users understand that the trademarks and
logos-either licensed from third parties or your own-belong to you and that
users do not have a license to use them for their own purposes.
The same thing goes for website content and copyright. Make
sure that all of your users know that any content that is on your website is
copyrighted. Because you own it, users
need permission to use it. Your
competitors need to know that they are not entitled to copy and use content
from your website because of this copyright.
address what you do with user-submitted content and what your obligations are
with respect to that content. If you
have the kind of site that allows users to submit content, you need to tell
users that they are giving you the rights to that content and that you can do
what you want with it. Also, you need to
make clear that you don't have to pay for user-submitted content and that it is
should stipulate that you can share user-submitted content with third parties
and that the user is granting you a license to use the content worldwide for
whatever purpose you want to use it for.
Probably the next most important clause that should go on a
responsible for third-party content. If
someone does submit that content, make sure that you shield yourself from any
liability that might exist in case they have infringed on someone else's intellectual
If your site has links to third-party advertisers or product
providers, be sure to disclaim any liability concerned with the products and
services bought from those sites through those links.
It's also important to spell out what the prohibited or
acceptable uses are for your website.
These are pretty standard clauses, but you want to make sure that you
put folks on notice that they cannot use your website for any illegal purposes. Feel free to list those purposes in specific
Due to data breach concerns, it is important that you
maintain control over who has access to personal information on your site. It's important, however, that users be put
on notice that they are responsible for anything that happens under their
password and are obligated to report lost or stolen passwords. Even if it's a simple password for a user to
get on your site, there's probably some clever hacker out there who can find a
way to manipulate it and gain access beyond the point where you want users to
has limitations on the liability and the appropriate carve-outs for
jurisdictions that restrict those limitations with regard to warranty
exclusions. You should include a very
broad indemnification clause that holds users responsible for violations of
In some cases, you might even want to get a release of
liability from all your users. That way
you're not responsible for any liability or damages users may experience as a
result of using the website. Finally,
consider inserting a choice of law provision, which stipulates where certain
issues can be argued.
David A. Wheeler is Of
Counsel at Greenberg Traurig, where
he focuses his practice on eCommerce, information technology, and privacy
matters. His experience includes domain name and trademark disputes and
registrations, trade secrets litigation, information privacy and identity
management, data breach notification compliance, software licensing and
outsourcing agreements. Prior to practicing law, David served as a software
engineer for a Virginia-based defense contractor and later traded spot
currencies as an electronic market maker for the First National Bank of Chicago.
He also served as telecommunications consultant for the Bank of America. David
has also litigated consumer financial services matters including Telephone
Consumer Protection Act and Fair Credit Reporting Act class-action matters.
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