So Your Company Wants a Website?
Consider Some Hidden Risks
Having a company website is like opening another office—but without
a building. You must decide where your new office should be housed and
what your new office should look like. You also need to decide who has
access to this office, what products or services you will sell out of
this particular office, as well as how and to whom. You also need to
advertise that your new office is open for business.
Does this process sound familiar?
It should, because the same planning and controls you put in place
to open a physical office or plant should be used for your website.
Do not make the mistake of thinking that, because your new office exists
only in cyberspace, it is not subject to the same rules or careful consideration
used in your other ventures.
Finding a location and design for your website. When it comes
to making agreements to have your website designed and hosted, make
sure you own everything for which you pay. Review all website-related
service agreements to make sure you are the registered owner of your
domain name(s). Make sure you own all artwork/graphics created for you,
software used on your site, etc. So if you ever decide to leave your
designer and/or host, you can take your site with you—intact—and
move it somewhere else, yet located at the same address. Make sure you
know your options if any promises made are not satisfied by your web
designer and/or host.
If any graphics, artwork or photographs on your site are not original
works, ensure that you or your designer has acquired the necessary releases
or approvals to protect against copyright infringement. Copyrights are
enforceable in cyberspace, and websites are widely visible. If your
website has links to other business websites, it might help to avoid
potential problems by getting consent to link from the owner of those
websites.
Determining who has access to your website. This includes both
employees and customers, whether your customers are other businesses
or the consuming public. It is essential to make sure you, your customers
and your employees feel comfortable when using your website to place
and accept orders or store information. This can be done by selecting
and using a security system. Having security for the transfer and storage
of information is essential, but so is making sure this secure system
is user friendly.
Controlling links to your site is another way to limit access. For
example, if you limit sales to distributors, retain control over the
links back to your site unless you want the general public to be able
to have the same access to your site as your distributors.
Controlling access to your new office includes more than a security
system and control over links. Too often, e-mail is considered an informal
means of communication when in fact it can easily bind your company
to a contract. Make sure you have a company policy about how e-mail
can be used and who has the authority to make commitments on behalf
of the company.
Additionally, accepting orders by e-mail alone is risky. Make sure
you have a policy in place to prevent orders from falling through the
cracks should your technology fail, or should the message not get to
the correct person. For example, you may require a confirmation sent
to the customer within one business day to be considered accepted. If
no confirmation is received, then the customer knows that the order
was not received and he/she needs to order again or follow up.
Advertising your website. Copyrights and trademarks must be
used properly on the Web just as they are in other marketing and print
materials. Keeping this in mind, do not use your competitors' names
or trademarks in keywords or metatags as a way to attract customers
to your website. Just as you probably keep on top of what your competition
is doing on the web, so do they. And while we are on the subject of
trademarks: obtaining a domain name does not equate to obtaining a trademark.
Obtaining a domain name does not guarantee branding rights or property
rights; it is simply a street address.
Contracting with customers. Follow rules of disclosure for your
website just as you would in printed form. Make sure you include warranties,
disclaimers, return policies, jurisdictional statements (requiring that
any litigation related to the contract take place in a particular state,
which is not valid in all states) and any other disclosures of company
policies in a place on your website that is easily seen and accessible.
It is wise to include a privacy policy as well so your customers know
what, if anything, you plan to do with their information. If you use
forms or applications on your website, make sure you include the boilerplate
disclosure that usually appears with it.
Simply having click-through agreements on your website is not necessarily
equal to agreement to the contract terms. If you need acceptance of
the contract terms, make the customer work to give the agreement. For
example, make the buyer scroll down to the bottom of the page and/or
make the page sit in front of them as long as it would take to read
the document. Even though the information is in cyberspace, it is still
a contract transaction, and the same concepts and rules of contract
apply. If your company requires a "signature" for a contract
to be effective, there are online methods available, such as digital
signatures, but it is best to check with your attorney or a technology
law attorney for more detailed information.
Opening an office on the Web does not have to be all that risky if
you follow the same legal rules and common sense that generally apply
to your "real world" office.
Disclaimer: This information is provided for educational
purposes only and should not be used as a substitute for obtaining legal
advice.
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Authored by: Suzanne Zemelman, M.S., J.D., University of Missouri Extension, with assistance from John W. Kepler III, J.D.,
Suelthaus & Walsh, P.C. , St. Louis
Source: Creating Quality Newsletter, Volume 11,
Number 2, February 2002
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