Hey just wondering what you guys thought. I do web design for people and wasn't sure what state to put in for the terms of use...where it says "Our website is operated and provided in the State of___" Do I put my state, or the clients state? cheers.
I'm not a lawyer but my guess would be , if you are providing service in JUST Oregon for example - only list Oregon. If your in multiple states list them all. Thats my guess. -C
The best reason for putting the location of the web site is to provide for jurisdiction should a controversy arise. Rather than saying, "Our website is operated and provided in the State of___" I suggest you place the following in your TOS: GOVERNING LAW The parties agree that this Agreement and its terms and conditions shall be subject to and construed in accordance with the laws of the State of XX. The parties consent to exclusive jurisdiction and venue for any claim for enforcement of this Agreement in the state or federal courts of XX County, XX.
Andrew, if you don't mind, I can improve that term: The parties agree that this Agreement and its terms and conditions shall be subject to and construed in accordance with the laws of the State of XX. The parties consent to exclusive jurisdiction and venue for any claim for enforcement of this Agreement, or any dispute arising from or related to this Agreement or use of this website, in the state or federal courts of XX County, XX. I'm sure someone can come along and improve my addition as well. As for what state to include, I used to suggest the client's location. But more recently I have had clients consider using instead their chosen attorney's location. Reasons: (1) Costs. Attorneys continually are in court for a case. Parties are not. Litigation costs can be drastically reduced by making the lawsuit more convenient and less expensive for the attorney. (2) Choice of law issues. There may be reasons to prefer the law of one state over another.
Dear kindsvater, Your addition is very good - You are a word smith! I am assuming you are giving me permission to use these words in future TOS.
At first blush this makes some sense, but I think it raises at least two issues: (1) Clients do change attorneys or use more than one attorney at a time. Selecting a jurisdiction and/or choice of law that is based on a relationship with a particular attorney at a particular point in time may end up being very inconvenient if that attorney is not the one the client wants to handle the matter. Plus, to the extent that there are factual issues that require document discovery or depositions, or the client's presence is required in court, those could all be less convenient if required to be done in the attorney's distant location. (2) Many choice of law cases have turned, in part, on whether there was a reasonable grounds for selecting a particular jurisdiction. I have never looked at the issue where the jurisdiction is based on the location of one party's attorney, where neither party has any contact with the selected jurisdiction, but I would certainly want to be comfortable that the choice would be respected by the courts before I stuck it into a TOS.