Archive for August, 2010

Website Legal Requirements – Contact and Company Information

Friday, August 27th, 2010 at 10:00  
Comments Off

Does your website comply with the legal requirements for providing contact information and company information in the UK?

Contact Information

The following contact information must be provided in an easily accessible position on your website:

  • an email address
  • telephone number
  • fax number (if you have one)

Increasingly companies do not provide an email address and/or telephone number to avoid receiving unwanted spam emails and telephone calls.

Instead many companies only allow customers to contact them by completing an online contact form. This may breach the Electronic Commerce (EC Directive) Regulations 2002.

Can I use a Contact Form?

The European Court of Justice has ruled that an electronic contact form complies with the E-commerce Directive, where the supplier answers queries sent by customers within a period of 30 to 60 minutes. However, if a customer requests a non-electronic means of communication from the supplier in the contact form i.e. a telephone number, the supplier must provide this.

How to Use a Contact Form Successfully

 

If you decide to use a contact form instead of giving a contact telephone number or email address ensure that you respond to e-mail queries from customers in a timely manner. You do not automatically need to provide a  contact telephone number, but you must be able to do so, should a customer request this.

Please note you must provide a contact email address on your website.

About Us Information

In addition to the above you are required to provide the following information on your website:

  • your legal name i.e. XYZ Ltd. If this is different from your trading name any differences should be explained.
  • your geographical address,  which must be the registered office if you are a company.
  • which country your business is registered in
  • the registration number of your company
  • details of any supervisory body which regulates your business i.e. the FSA. For regulated bodies more detailed information is required.
  • your VAT number
  • where you are registered for VAT
  • clear details of prices and whether or not delivery and/or tax is included

Help

To have your website reviewed for compliance with English law or for  queries about compliance with the contact and information requirements of the E-Commerce Directive please contact:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

______________________________________________________

Other related articles:

SaaS, ASP Agreements – Liability for Website Content

Friday, August 20th, 2010 at 10:07  
Comments Off

SaaS suppliers must protect themselves in their SaaS agreement against a third party claiming compensation for breaches of their rights as a result of customers uploading illegal content onto the supplier hosted website.

Service Providers and ISPs

SaaS suppliers are service providers not internet service providers (ISP)s. SaaS suppliers publish content on the Internet on the websites they are hosting for customers. ISPs simply transmit information on behalf of customers i.e. telecommunications companies like AOL and BT and are acting as “mere conduits“.

SaaS suppliers do not check content prior to it being uploaded by customers onto the hosted websites and once uploaded it is not usually monitored by the SaaS supplier. The following legal problems can arise when a third party claims that the content on the website breaches their rights.

Breaches of Intellectual Property Rights (IPR)

The SaaS supplier will be liable as the publisher of the website if any content on the website breaches the copyright or trademark of a third party. Common examples arise when customers:

  • upload content, pictures, colour schemes and fonts copied from other websites, books, newspapers
  • use third party software applications on the website, without authorisation
  • display trademarks or logos of clients, competitors or third parties on the website, without the owner’s permission

Defamation

Similarly, the SaaS supplier as publisher is liable for any defamatory comments made on the website. Such comments could be via a hyperlink or  information published on the website by the customer, its clients or third parties. For example sales text may include negative and untrue comments about the poor services of a named competitor.

Breaches of Other Laws

Many SaaS agreements cover e-recruitment or HCM (human capital management). The content on such websites must comply with mandatory local employment law and non-discrimination laws.  This is particularly important in the text of a job description for applicants. For example an advertisement for a white, British, female, lawyer between the ages of 25 and 35 would be illegal.

Liability for Illegal Content

The SaaS supplier will be liable for any of the above examples of illegal content being published on a customer website, unless Regulation 19 of the E-Commerce Regulations 2002 applies.  This sates that the SaaS supplier is not liable for illegal content

  • if the SaaS supplier does not have actual knowledge of the illegal information, or
  • upon obtaining knowledge or awareness it acts expeditiously to remove or disable access to the information.

It is therefore essential that the above liabilities are excluded in your SaaS agreement and that the SaaS supplier ensures that it has the contractual right in the SaaS agreement to apply the Regulation 19 exception.

Help

Irene Bodle is an IT lawyer specialising in SaaS agreements with over 10 years experience in the IT sector. If you require assistance with any SaaS, ASP, software on demand contracts or any IT legal issues contact me:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

______________________________________________________

Other related articles:

Google AdWords & Trademark Infringement – Use of Competitor Trademarks in EU

Friday, August 13th, 2010 at 10:00  
Comments Off

Google is now permitting EU advertisers to use the trademarks of competitors as keywords in its AdWords service, however, if you are using a competitor’s trademarks in your advertisement you could still be liable for trademark infringement.

What is Google AdWords?

Google AdWords displays paid for advertisements to the right of the Google search engine results when a specific term is searched for in Google. Many advertisers use competitors’ brand names as keywords in their AdWords advertisements so that when their competitors name is entered as a search term in Google, their own advertisement appears.

Trademark Infringement by Google

There have been a number of European court cases where brand owners, such as LVMH have claimed that Google is breaching trademark law by allowing competitors to use its trademarks as keywords in Google AdWords. It was established in the LVMH case that Google was not infringing the brand owner’s trademarks, but that the advertiser may be liable for trademark infringement.

Trademark Infringement by the Advertiser

In a recent Dutch case the European Court of Justice ruled on the issue of whether or not an advertiser using a competitor’s trademarks as keywords in an AdWords advertisement is liable for trademark infringement. The court ruled that there is a trademark infringement by the advertiser (not Google), if the advertisement creates confusion about which company is behind the advertisement.

New Google Trademark Policy

As a result of the above decisions, Google will from the 14th of September allow companies advertising on Google AdWords in Europe to use trademarked terms as keywords in their AdWords advertisements. However, according to Google’s amended trademark policy competitors will still be able to complain about the use of their trademark by an advertiser if they feel that it leads to a specific advertisement which confuses users about the origin of the advertised goods and services.

Google will conduct a limited investigation and if it finds that the advertisement does confuse users as to the origin of the advertised goods and services, it will remove the advertisement.

Advertisers Beware

Although Google itself will not be infringing trademark law by permitting advertisers to use third party’s trademarks as keywords, the advertiser themselves could still be liable for a trademark infringement. The UK courts will be left to decide whether or not a trademark infringement has taken place in each individual case.

Help

For assistance with trademark issues or any other IT legal issues contact:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

______________________________________________________

Other related articles:

SaaS, ASP Agreements – Distributor or Agent – Is there a Difference?

Monday, August 9th, 2010 at 18:28  
Comments Off

To find prospects, leads and sell SaaS software to customers on a global basis outside of the countries in which the supplier is located, you will need to use a distributor or agent.

Suppliers need to decide whether the local partner acts as an agent or a distributor. There are important differences between agency and distribution and the advantages and/or disadvantages of both need to be carefully considered.

What is an Agent?

An agent is a person or company who acts on behalf of the SaaS supplier to find leads and/or assist with sales of the supplier’s SaaS software to local customers in the agent’s territory.  The agent has no legal relationship with the customer – the agent has no contract with the customer.  The supplier enters into a SaaS agreement, with the customer using the supplier’s terms and conditions and SLA.

Any implementation issues or software errors that the customer encounters during the course of the SaaS agreement will be the supplier’s problem. The supplier will be liable to the customer under the SaaS agreement and will be obliged to resolve all issues directly with the customer.

What is a Distributor?

A distributor is a person or company who enters into a distribution agreement with a supplier to purchase the supplier’s SaaS software and services. The SaaS software will be sold to the distributor pursuant to the supplier’s SaaS terms and conditions and SLA. The distributor then resells the SaaS software and services to its local customers in the territory using the distributor’s own terms and conditions and SLA. A reseller is the same as a distributor.

The supplier has no legal relationship with customers – the supplier has no contract with customers. The distributor sells the SaaS software directly to customers, as if it were his own software. Any implementation issues or software errors that the customer encounters during the course of the SaaS agreement will be the distributor’s problem. The distributor will be  liable to the customer and will be obliged to resolve such issues directly with the customer.

Advantages and Disadvantages of Agency Agreements

Advantages:

  • the local knowledge of the agent
  • established commercial contacts of the agent
  • the agent speaks the language in the territory
  • the agent understands the local selling culture and customer requirements
  • the supplier retains control over the sales process and the choice of customers
  • the supplier uses its own terms and conditions

Disadvantages:

  • the supplier must adapt its terms and conditions to comply with local law
  • terms and conditions must be in the local language
  • if the agent is located in the EU, the supplier must pay commission for up to a year after termination of the agency agreement (regardless of the reason for termination)
  • the supplier can be liable for paying tax in some territories – as he is deemed to be trading there

Advantages and Disadvantages of Distribution Agreements

Advantages:

  • the local knowledge of the distributor
  • established commercial contacts of the distributor
  • the distributor speaks the local language
  • the distributor can provide customer support in the local language and within the customer’s local business hours
  • the distributor understands the local selling culture and customer requirements
  • the distributor uses its own terms and conditions which are already in the local language and compliant with local laws and regulations
  • the supplier does not need to adapt its terms and conditions to comply with local law
  • the supplier does not have to pay any mandatory fees after termination of the distribution agreement
  • the distributor will be responsible for obtaining local licenses and permits

Disadvantages:

  • the distributor has no control over the sales process
  • the distributor has limited control over choice of customers
  • in the EU,  anti-competitive terms in the agreement can result in large fines, for example price fixing, prohibiting passive sales
  • the length of the agreement  cannot be unlimited if exclusive rights are granted
  • local competition law will also apply to agreements involving parties outside of the EU

Help

Irene Bodle is an IT lawyer specialising in SaaS distribution and agency agreements with over 10 years experience in the IT sector. If you require assistance with any agency or distribution agreement, SaaS agreement or any other IT legal issue contact me:

irene.bodle@bodlelaw.com
www.bodlelaw.com

To register for my newsletter click here

______________________________________________________

Other related articles: