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Practice Overview

Web Agreements/Terms & Conditions

New York Web Agreement and Marketing Campaign Terms and Conditions Attorneys

Definition and Disclosure of Terms and Conditions

The Advertising, Marketing & Promotions group at Olshan drafts Web agreements and online terms and conditions for websites and online transactions. These documents are important because they set forth the legal relationship between the website and those that visit or transact with the website. They can also help a business minimize their exposure to adverse events.

We work with clients to understand their business in order to ensure the online agreements we craft will protect the business. Online terms and conditions address many issues, including: permitted uses on the site, user conduct, limitation of liability, representations and warrants, indemnification, privacy, the Digital Millennium Copyright Act, intellectual property and downloading of content.

Sound Legal Advice, Practical Business Advice

At Olshan, our online marketing attorneys assist clients in developing "Terms of Use" and "Terms and Conditions" statements that both protect and benefit the company. If your business uses the Web for lead generation or sales, it is critically important that the terms and conditions be clear and enforceable for both your company and any partner companies that are part of the online process.

Our online marketing attorneys can conduct a legal analysis of your online activities: Web agreements, terms and conditions, consent language, data collection practices, and data pass-through to third-party billing for e-commerce activities.

The Importance of Terms and Conditions

Properly crafted Web agreements and terms and conditions disclosures help ensure online marketers are in compliance with statutes governing online marketing, and provide protection should they face legal challenges under the provisions of the:

  • Restore Online Shopper's Confidence Act,
  • Computer Fraud and Abuse Act,
  • Children's Online Privacy Protection Act (COPPA),
  • CAN-SPAM Act, and
  • Digital Millennium Copyright Act.

For example, the new Restore Online Shoppers' Confidence Act requires retailers and marketers to more fully and clearly disclose the terms and conditions and requires that consumers affirmatively agree the terms and conditions associated with their purchase decisions. Consumers must be allowed to withdraw from purchase contracts within a period of time and must be informed of how to withdraw.

Terms and Conditions also:
  • Define rights and ownership, particularly with respect to user-generated content (UGC),
  • Establish immunity for copyright infringement based upon provision defined under the Digital Millennium Copyright Act,
  • Limit the liability of the website for damages or losses incurred by the company or by the customer, website user, or participant,
  • Set expectations through a disclaimer of warranties, and
  • Provide for enforcement strategies should a customer or website user violate the terms and conditions. This can include defining what and how legal action may be pursued--in what state and in what form.
Preventing Problems Before They Arise

Olshan works with Internet marketing and social media companies, retailers and service providers, Web publishers and marketing affiliate programs. We can help you protect your business from regulatory investigations, legal challenges and advertising litigation in Internet marketing campaigns and mobile/cell phone marketing campaigns by providing:

  • Drafting of Web agreements and disclosures of terms and conditions to ensure compliance with Restore Online Shoppers' Confidence Act,
  • Legal counsel regarding state and federal laws regarding post-transaction marketing, free-to-pay conversions, negative option marketing, automatic renewals and continuity offers, and
  • Legal advice regarding the proper structuring of affiliate relationships and data collection so sufficient permission is obtained for valid lead generation.

Contact these Internet marketing lawyers at Olshan for legal advice and trial court representation.

Andrew Lustigman Email


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