For example, on inspection of your website, we discovered a few features that add unique functionality and complexity that we have attempted to address in the attached TOU. The Holy City Helicopters website includes without limitation the ability for Visitors and Subscribers to (i) access and view Site Content; (ii) upload content; (iii) post reviews, (iv) book reservations for services; (v) download content (e.g., pictures, videos, etc.); etc. These complexities introduce a few risks and materially affect the design and content of the TOU. Below are highlights of the Draft:
Definitions and Use of the Holy City Helicopters website is Consent to Terms of PP and TOU:
The Holy City Helicopters website is referred to as the “Holy City Helicopters Site” or “Site” and accessing or using the Site or any of the Site Content or services via the Site is synonymous with accessing the “Holy City Helicopters Services”.
The TOU indicates that any user that accesses the Services agrees to be bound by the terms and conditions set forth in the TOU and PP. The user is informed that the TOU and/or PP may be amended from time to time and that the user’s continued use constitutes agreement with such amendments.
Identification of the Parties:
Holy City Helicopter, LLC is identified generally as “Holy City Helicopters”, “us”, or “we”. On particularly important legal points or matters involving risk, we have opted to use the formal Holy City Helicopters, LLC.
As mentioned above, visitors accessing the Services are defined as Visitors when they do not register an account; or as Subscribers when they do register an Account. As indicated by your web-developer, by providing information to the Holy City Helicopters website (e.g., by posting comments, booking reservations, etc.), visitors permit an account/profile to be made on their behalf. However, Subscriber access to such accounts is limited.
This may require additional discussion if you envision that part of your target audience includes children less than 13. For now, we strongly advise that you maintain the 13 year old minimum age until such time that we have opportunity to discuss the technical and legal ramifications of this approach.
The TOU establishes terms and definitions for Visitors and Subscribers of the Site which the Services can be accessed. Actual content displayed via the Site is called “Holy City Helicopters Content.” The TOU grants a limited license to Visitors and Subscribers to use the Site Content while protecting your copyrights in such Content. Additionally, the TOU defines broadly information that is provided by Subscribers as “Subscriber Content”.
Broad License Grant to Holy City Helicopters to use Subscriber Content:
Importantly, the TOU grants a broad irrevocable fully paid-up and royalty free license to Holy City Helicopters to use, copy, display, modify, make derivative works of, commercialize, etc. the Subscriber Content that is uploaded to the Site. The TOU also sets forth a strong warranties regarding the Subscriber Content to protect Holy City Helicopters in the event of defamation or violations of third party intellectual property and other rights, and inappropriate use of the Services.
Narrow License Grant to Users of Site and Site Content:
The TOU sets forth a fairly narrow license grant to the Visitors / Subscribers to use, or display the Holy City Helicopters Content that enables them to access, use and display Holy City Helicopters Content via the webpages but precludes any rights to create modifications, derivative works, transfer, unauthorized reproduction, distribution, etc. of the Site Content. An “As Is” disclaimer is included with respect to the Holy City Helicopters Content.
A fairly robust set of restrictions are set forth that limit what the Visitor / Subscriber is permitted to do when accessing the Services (no illegal acts, no violation of information security and other prohibited uses). Also there is a release whereby the user/subscriber will not hold Holy City Helicopters liable for actions by other users/subscribers offensive posts, inaccurate content, interaction with other users, etc.
Limitation of Liability and Disclaimers of Warranty:
There is a robust limitation of liability and disclaimer of warranties (e.g., non-infringement), and a strong indemnity in the event that any uploaded Subscriber Content (e.g., text, images, video, etc.) infringes a third party’s intellectual property rights.