Mini Law Lesson

How to Create Binding Terms/Rules

Brian Heidelberger bheidelb@winston.com

Twitter @briheidelbergerInfo @ www.winston.com/bheidelberger

IMPORTANT DISCLAIMER

• I am not your attorney.

• This is not legal advice.

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New Appellate Court Decision

• Retailer failed to provide notice even though “Terms of Use” link near “Submit” button

Providing a hyperlink to the Terms of Use alone is insufficient

No matter how conspicuously the hyperlink is placed

Companies must also provide other form of notice or prompt users to take an affirmative action to agree.

• Unless you can prove actual knowledge of terms

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Applies to …

• Terms of Use /Sale

Internet Websites

Mobile Sites

Apps

• Promotions

Sweepstakes, Contests, Free Offers, Rewards Programs, etc.

• Any Time You Need to Bind Someone

• NOT: Material terms disclosure requirements

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Submit Button With Terms Below Fold

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Submit Button With Terms Below Fold

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Rules/Terms Link Which Doesn’t Reference

Assent

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What It Should Look Like

• ACCOUNT CREATION

By checking the box, you are agreeing to our Terms; or

By clicking the “Create Account” button below, you are agreeing to our Terms

• CHECKOUT

By checking the box, you are agreeing to our Terms; or

By clicking the “complete order” button below, you are agreeing to our Terms

• IMPORTANT NOTE

Advise to include a link to the Privacy Policy as well

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Check Box to Agree to Terms/Rules

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Statement Showing Agreement to Terms Directly Above Submit Button

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Statement Below Fold Showing Assent

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@BriHeidelberger

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