Contracts are the foundation of any legal relationship.  Whether you are a Web site owner, an advertiser, a developer or a consumer, you need to have a valid and enforceable contract in place to govern your interactions and obligations with your business partners.  We have experience in negotiating and drafting all types of digital media and intellectual property agreements to ensure that your rights and duties are clearly delineated and appropriately managed.

Terms of Use Agreements

Almost every Web site has a terms of use agreement that describes the purpose and nature of the site, how you can become a registered user of the site, how updates are provided to users, what policies and procedures the site employs, what users are permitted to do while using the site and what practices and behavior they are forbidden from engaging in.  Terms of use agreements also protect the Web site by informing users of the intellectual property rights of the site and its users.  They also contain a host of waivers, disclaimers and other legal language to protect the site from potential lawsuits and position the site to prosecute lawsuits effectively where necessary.

Privacy Policies

Companies should have an online privacy policy to explain to users their online data collection and data retention policies.  Lately, privacy concerns have become a hot topic in the digital media field.  Users want to know their personal and private information will not be freely distributed or sold to marketers without their knowledge.  If you are a California business, or you collect information from California residents, you are required by law to have a privacy policy that complies with certain and specific legal requirements.

Notification of Changes

What happens when you are a Web site owner and you want to change an element of the terms of use of your site?  Do you have to notify each individual registered user?  Do you have to post the change at the top of your home page?  Is a new “effective date” containing a revised version available on the site sufficient notice?  Courts in different jurisdictions have competing views on what constitutes effective notice of a change and under what circumstances your users will be bound by the new terms.

Browse Wrap Agreements

A browse wrap agreement refers to online terms of use agreements that a user can read but need not affirmatively accept in order to use the site.  Courts in different jurisdictions have competing views on whether this forms a binding contract between a Web site and its users, as no affirmative acceptance must be made by the user to gain access to the site.

Click Wrap Agreements

A click wrap agreement is an agreement in which an online user must click a box or button to indicate their acceptance of a terms of use agreement before he or she may proceed through to the site’s features.  These agreements are more likely to be considered legally binding, since the user is affirmatively accepting the terms of use as a pre-condition to use of the site.

Shrink Wrap Agreements

A shrink wrap agreement is an agreement that is printed on the back of, or inside, a product.  When you break the product’s shrink wrap, you agree to be bound by the terms of the agreement.  These agreements may form part of your media-based product if made commercially available, and they form the foundation for the concept of browse wrap and click wrap agreements.

Electronic Signatures

The Uniform Electronic Transactions Act (UETA) provides that a signature may not be denied legal effect or enforceability just because it was made in electronic form.  The Electronic Signatures in Global and National Commerce Act (E-SIGN) gives legal validity to electronic contracts.  This act applies to emails and digital signatures with encryption, but contains numerous important exceptions depending on the subject matter of the contract.  It is advisable to confer with counsel to ensure electronic signatures will be enforceable.

Online Advertising & Marketing Contracts

Online affiliate marketing involves a “publisher” (an individual or organization with a Web site or other source or method of generating online traffic) acting like an advertising team for a business (or “advertiser”) by promoting its products in exchange for a commission.  A publisher’s Web site, for example, would typically feature promotional advertisements containing links to an advertiser’s site.  Depending on the agreement reached between the publisher and the advertiser (or with an agent or broker for the advertiser such as an “affiliate network”), the publisher will receive a commission when users either click on the advertiser’s advertisement, or when they register with the advertisers’ site, or when they make a purchase from the advertiser.

If you plan on entering into an affiliate marketing agreement as a publisher or an advertising business, it is important that you establish the terms of the relationship from the outset, including when payments will be made, how payouts will be structured, whether there will be specified minimums to be earned before a payout is made, as well as a wide-range of other important provisions.

There are numerous types of affiliate marketing agreements including those between advertisers and publishers, between advertisers and networks or brokers, and between networks or brokers and publishers such as e-mailers, web marketers and search marketers.

Whether you are a publisher, advertiser, network or agency, you need to have well-drafted and enforceable agreements in place to ensure your rights are adequately protected.

Attorney Kavon Adli discusses the California Consumer Privacy Act of 2018, signed into law on June 28 and scheduled to take effect on Jan. 1, 2020.