| From a legal standpoint, the most important page | | | | Limitation of Liability. These provisions permit one |
| of any website may be its Terms of Use page, | | | | or both parties to place certain limitations on their |
| which describes the terms and conditions which | | | | liability for breaching the agreement of the parties. |
| govern the relationship between the user of the | | | | Properly written, Limitation of Liability provisions |
| website and its publisher. Properly drafted Terms | | | | can cap a party's legal exposure for certain |
| of Use can be an invaluable tool in protecting | | | | conduct. |
| e-commerce businesses from frivolous lawsuits | | | | Indemnification. Indemnification provisions permit a |
| and crippling legal exposure. | | | | party to shift the burden associated with an |
| Though the Terms of Use used by many | | | | anticipated loss to the other party. In many |
| websites are similar they are not a "one-size fits | | | | instances, a website's Terms of Use require the |
| all" solution. Each e-commerce business has a | | | | user of a website to indemnify the website's |
| unique relationship with its customers which must | | | | publisher against any losses associated with the |
| be reflected in its Terms of Use. Moreover, | | | | use of the website's content. |
| Internet contract law differs from jurisdiction to | | | | Attorneys' Fees and Costs. In the American |
| jurisdiction and changes over time, as more | | | | judicial system, a party is generally required to |
| courts are called upon to interpret and enforce | | | | pay his or her own legal fees and expenses, win |
| these agreements. | | | | or lose. However, parties to a contract may, with |
| In addition to terms and conditions addressing the | | | | certain limitations, require that a party who loses |
| specific website content at issue, most Terms of | | | | in a legal action brought pursuant to the |
| Use contain clauses addressing one or more of | | | | agreement pay the attorneys' fees and costs |
| the following issues: | | | | incurred by the prevailing party. |
| Choice of Forum. Choice of Forum provisions | | | | As in the drafting of any other written contract, |
| permit the parties to a contract to select, with | | | | businesses should seek competent advice from a |
| certain limitations, the jurisdiction in which any | | | | properly licensed attorney. The failure to do so |
| disputes pertaining to their relationship are | | | | may result in Terms of Use that provide no |
| resolved. In many instances, a website's Terms of | | | | protection to the e-commerce business or, worst |
| Use purports to require any legal action pertaining | | | | yet, may create legal exposure where none |
| to the website to be brought in the jurisdiction in | | | | previously existed. |
| which the publisher is located, which may be quite | | | | This article first appeared in "Common Issues |
| inconvenient for a distant user of the site. | | | | Faced by E-Commerce Businesses," a seven-part |
| Choice of Law. Choice of Law provisions permit | | | | series appearing each Tuesday afternoon on the |
| the parties to a contract to select, with certain | | | | author's E-Commerce Law blog. Readers are |
| limitations, which jurisdiction's laws will be applicable | | | | reminded that all of the information in this article is |
| to their relationship. Generally, a website's Terms | | | | provided for informational purposes only and is |
| of Use will apply the law of: (1) the jurisdiction | | | | not intended to be a substitute for legal counsel. |
| whose laws are most favorable to the publisher; | | | | No one should act or refrain from acting on the |
| (2) the jurisdiction in which the publisher is | | | | basis of any content included on this site but |
| physically located; or (3) the jurisdiction whose | | | | should instead seek the appropriate legal advice |
| laws are most familiar to the attorney who | | | | on the particular facts and circumstances at issue |
| drafted the contract. | | | | from a properly licensed attorney. |