Super Helpful Tips for Preparing Online Contracts

Last week our Technology Transactions and Licensing Group drafted a bunch of online contracts (terms of service and privacy policies, etc.) for clients in connection with launching various mobile applications, online games and websites.  Now is a good opportunity to pause and reflect on a few helpful tips to keep in mind when engaging a lawyer to draft up these types of online contracts:

  • Stop, Collaborate and Listen. Okay, you got me, I spent my high school years in South Florida and I listened to Vanilla Ice back in the early 1990s (right before I dropped hip-hop/rap like a bad habit in favor of grunge and classic rock).  But those simple words really capture the essence of the drafting exercise for these online contracts.  Your lawyer needs to understand the user experience for the mobile application, game and/or website so he/she can spot and address the appropriate legal issues in these contracts.  The best way to do that is for you to walk your lawyer through the application or site and have an interactive discussion about it.   
  • No One Size Fits All Privacy Policy. One client recently told me, I drafted our privacy policy based on Company X, Y and Z’s privacy policy.  They have a similar service as us, so that’s okay, right? Wrong! Tweaking what you think is a comparable privacy policy is very far from okay.  A privacy policy must be an accurate description of your current and intended data collection and use practices and thus there is no "one size fits all" policy. Once a privacy policy is posted on your website, it will be extremely important for you to ensure that your data collection, use and sharing practices are and continue to be consistent with the terms of the policy. Many lawsuits and enforcement actions involving privacy violations have been based upon allegations that an entity has failed to act in accordance with its own stated privacy policy. We have a privacy policy worksheet to help our clients start the process of creating an appropriate policy. It is a super helpful tool to get the right folks at the company thinking about how they collect, store and use personally identifiable information. 
  • Get Me the Comps. Terms of service are intended to define the rules of the road and form an agreement between the owner of the site/application and its users.  Unlike my advice above regarding privacy policies, to the extent that your website or application is somewhat similar to another site or app, it is helpful to collect, review and be inspired from terms of service from comparable sites and/or applications.  I am not advising you to copy those terms of service, just to use them as source material to guide the drafting of yours. 
  • Display Drafting Elegance. I hear a lot of talk in the consumer internet/mobile/gaming scene about creating a user experience which is simple, clean and beautiful.  I’m not sure your online contracts can or should keep pace with that standard, but it is a great idea for your lawyer to produce a set of terms and conditions which hits (or gets pretty close to) the following bullseye:  Protect your rights with respect to important legal issues in a simple, straightforward writing style  that your grandma could easily understand.                           

This post was authored by Jeff Klein.

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