Terms and Conditions (Terms of Service) or Disclaimer or both?

[fretfull]

What's the best practice today to protect yourself legally? I see sites that have Terms and Conditions or in other words Terms of Service but no Disclaimer. I see sites that have a Disclaimer but no Terms. I see that in some Terms they include a Disclaimer section. I see some Terms that have no Disclaimer. I see some Disclaimers with Terms inside them. I see some sites with both Terms and a Disclaimer. I see some sites with nothing.

It's my gut feel that years ago calling it a Disclaimer was more common. Today it's more common to see Terms of Service. But regardless of what it's called, they seem to have the same content. Does it matter what it's called? Tomato? Tomatoe? I know some lawyers are of the opinion that Disclaimer is better than Terms since having Terms implies that there is a legal client relationship between your site and any user. Since if there's no contractual relationship then how can there be any Terms? You can't have Terms for nothing. So Disclaimer is a better way to go. There is no relationship implied or otherwise. It's simply an indemnification for any information presented.

What do people think? I'm in the dark on this subject stumbling around.

PS: Sorry about the typo in the title. It doesn't look like there is a way to edit it. I would appreciate it if a mod could remove the word "all" before "both".

[lucy24]

You forgot an important variable. Do you, in fact, have a “service” of any kind? That is, anything to which users log on, get a username and password, access restricted areas or functions, download or upload material, and so on? Or are you purely looking at a “by visiting this site, you agree to hand over your firstborn child on request” type of TOS?

[fretfull]

No log in, no restricted areas, no download, no upload. No personal information of any kind. I would prefer not to know who anyone is since it does nothing for me and allows me to avoid any personal information hassles. It's an informational site. Every site is that as it's baseline. Since before someone can sign up for an account or otherwise use it, they have to read about what the site offers like how to sign up. Just because someone visits a site that offers a service, doesn't mean a service is rendered. Just like by walking into a store, you aren't a customer until you've bought something.

I guess an analogy is what TV commercials do. Those warnings they have about not doing what you see in a commercial like flying by flapping your ears. Those warnings are disclaimers and not terms. Since there is no service provided by someone watching a commerical. Thus terms for what?

I don't think by just visiting a site, there has been a service rendered. Just like by listening to a song on the radio there is no service rendered. The way I understand it, by having a service rendered ups the possible liability since it formalizes the relationship.

[tangor]

If there is nothing but info (and no advertising) then most times neither are required. However, if advertising is involved, a disclaimer "this site has advertising and third parties may track you across the web" might be appropriate. If your content/site has material that might adversely affect a person, such as health, medicine or race car driving, you might include a disclaimer "such content is offered as information only and in no way ..." whatever "no way" conditions to CYA as required.

Anything that involves commerce, collecting PII, or using financial tools to consummate, will need terms AND disclaimer.

[graeme_p]

Some things are required in some jurisdictions: e.g. cookie and personal info warnings. Can mean visitors jurisdiction rather than yours (although they may not be able to enforce their laws on you). Anything that tracks may trigger some personal info requirement - like external analytics.

Depending on here you are and whether or not you have anything that tracks, you might need a disclaimer. If its just an info site with no collection of personal information, even you if you are not properly compliant it will probably never be noticed let alone acted upon.