CONFIDENTIAL ATTORNEY/CLIENT PRIVILEGED COMMUNICATION
In this memorandum
, the Legal Department discusses common issues regarding the websites of Brown & Brown affiliates. The Legal Department also provides herewith a form click-through agreement (“Form Agreement”), which includes a Privacy Statement. The Form Agreement is to be customized where indicated by each affiliate that uses a website, and it is to be included on all such websites. Please include appropriate disclaimers and require confirmation of user identity, as also discussed below.
COMMON ISSUES
1. Consistency. Because of the vast number of Brown & Brown affiliates, it is important that Brown & Brown websites have a common look and feel to convey the company brand. Consistency is especially critical with respect to legal content so that each affiliate can have, to the extent possible, consistent rights and obligations with respect to Internet transactions. This is why the Legal Department is providing the Form Agreement.
2. Marketing Statements. Avoid making statements such as “Don’t Worry, You’re Covered” on Brown & Brown affiliated websites. It is possible that a user might, however unreasonably, interpret such a statement as a promise and attempt to enforce that “promise” against Brown & Brown. To the extent that your website contains any statement could possibly be interpreted as a promise, it must have an associated disclaimer stating that, “In no way does this statement mean that any particular claim that you have or that you may have in the future will be covered by your specific policy. Each claim must be individually evaluated with the particular facts and circumstances surrounding the claim and the applicable provisions of the particular policy.”
3. User Identity. When users input contact information into a Brown & Brown website, Brown & Brown has no way of knowing if the person entering the information is who he or she claims to be. For this reason, contact forms on the website should also require users to affirmatively state that they are who they say they are. For example, after a contact form is filled in, a separate window should pop up that states:
[ ] I declare under penalty of perjury under the laws of the State of Florida that the information I entered on the Brown & Brown contact form is true and correct.
This way, Brown & Brown is making a good faith effort to ensure that users are who they say they are, and if an impersonator is later identified, he or she will be subject to the penalties for perjury.
REQUIRED PROVISIONS IN YOUR CLICK-THROUGH AGREEMENTS
While not every provision in the Form Agreement applies to each affiliate (for example, not all websites currently allow users to make on-line requests for quotes), each provision should be carefully considered before it is omitted. Many provisions provide Brown & Brown with extensive legal protections, as illustrated below with reference to the Form Agreement.
Provision 2: Protecting Intellectual Property, Granting a License, Prohibiting Undesirable Acts. Brown & Brown invests substantial capital in its intellectual property assets, and must guard against infringement. Also, while Brown & Brown grants users access to use, display and download certain things from the website, it must specifically prohibit certain acts, such as decompiling the website, modifying the content of the website or otherwise interrupting its operation.
Provision 3: The User’s Representations. By requiring users to affirmatively represent that they are knowingly entering into the agreement, users will have difficulty attempting to argue that the agreement does not apply to them. Additionally, users must warrant that they will comply with all laws, rule and regulations.
Provision 4: The Privacy Statement. Confidential information is regularly exchanged in our industry. A user might allege that Brown & Brown is liable for disclosing his or her personal information that he or she sent to Brown & Brown over the Internet. The Privacy Statement mitigates those concerns by disclosing that the user’s information will be disclosed and by permitting Brown & Brown to disclose such information when the law permits.
Provision 5: Modifications. Brown & Brown, Inc. may modify the Form Agreement from time to time, and wants users to be bound by the latest version, whether or not the user received notification. That is what this provision does. As modified versions receive approval, Brown & Brown, Inc. will send them to affiliates to upload on their websites.
Provision 6: Disclaimers. This provision is critical to disclaiming all express and implied warranties. Because of the nature of Internet transactions, this provision expressly disclaims any warranty that the website will be free of viruses or that personal information will not be disclosed.
Provisions 7 & 8: Limiting Liability & Damages. This provision protects Brown & Brown from litigation exposure and in particular, run-away juries. Importantly, there can be no consequential damages or punitive damages in states where that provision is enforceable.
Provision 9: Term & Termination. An important aspect of the termination provision is that certain portions of the Form Agreement survive termination of the agreement, such as the disclaimers and limitations on liability and damages.
Provision 10: Severability. Several of the provisions in the form agreement are favorable to Brown & Brown, and a litigant may try to attack their validity in court. If one of them succeeds, it is important that the remaining provisions remain in full force and effect against that litigant and any potential future litigants.
Provisions 14-17: Choice of Law / Jurisdiction / Waiver of Jury Trial / Attorneys Fees. These provisions protect Brown & Brown against frivolous litigation and exorbitant damage awards. For example, a user will have to pay for the attorneys fees of Brown & Brown if he or she brings suit, regardless of who wins the lawsuit. Additionally, because the user waived the right to a jury trial, the risk of exposure to an extremely high damage award is minimized.
The Effectiveness & Enforceability of Click-through agreements
The current trend in the law is for courts to enforce click-through agreements against users, especially where users have to affirmatively click on a button that represents that the user has read and understood the terms of the Agreement. This trend may not exist forever. Nevertheless, based on the law today, the protections that a click-through agreement provides far outweigh the relatively low cost of implementing them. Please address all questions and concerns to:
Carrie D. Robitaille
Associate General Counsel
Brown & Brown, Inc.
626 Wilshire Blvd., Suite 1100
Los Angeles, CA 90017
213.223.2622
213.327.0729 (fax)
310.486.6512 (cell)
crobitaille@bbinslegal.com