1. Mini Law Lesson How to Create Binding Terms/Rules Brian Heidelberger bheidelb@winston.com Twitter @briheidelberger Info @ www.winston.com/bheidelberger

2. IMPORTANT DISCLAIMER I am not your attorney. This is not legal advice. 2

3. New Appellate Court Decision Retailer failed to provide notice even though “Terms of Use” link near “Submit” button  Providing a hyperlink to the Terms of Use alone is insufficient  No matter how conspicuously the hyperlink is placed  Companies must also provide other form of notice or prompt users to take an affirmative action to agree. Unless you can prove actual knowledge of terms 3

4. Applies to … Terms of Use /Sale  Internet Websites  Mobile Sites  Apps Promotions  Sweepstakes, Contests, Free Offers, Rewards Programs, etc. Any Time You Need to Bind Someone NOT: Material terms disclosure requirements 4

5. Submit Button With Terms Below Fold 5

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7. Rules/Terms Link Which Doesn’t Reference Assent 7

8. What It Should Look Like ACCOUNT CREATION  By checking the box, you are agreeing to our Terms; or  By clicking the “Create Account” button below, you are agreeing to our Terms CHECKOUT  By checking the box, you are agreeing to our Terms; or  By clicking the “complete order” button below, you are agreeing to our Terms IMPORTANT NOTE  Advise to include a link to the Privacy Policy as well 8

9. Check Box to Agree to Terms/Rules 9

10. Statement Showing Agreement to Terms Directly Above Submit Button 10

11. Statement Below Fold Showing Assent 11

12. Follow me on Twitter @BriHeidelberger 12

13. More Mini Law Lessons youtube.com/AdAge.com & youtube.com/BrianHeidelberger 13