Terms of What? The Differences Between Terms of Service & Terms of Use

If we asked you how many websites you’ve visited that has a Terms of Service, Terms of Use, or both, you’d probably guess that practically every site you visit (or use) on a regular basis has one or both. As our digital world continues to embrace solutions such as virtual visits with healthcare professional and subscription models, well drafted Terms of Service and Terms of Use (as well as other legal notices pertaining to the site and its offerings) becomes more crucial. As a business attorney, Larsen Law noticed an increase in curiosity related to the differences between Terms of Service and Terms of Use as well as why Terms of Service agreements are necessary for digitally provided services. In this post, you’ll learn about the differences between Terms of Service and Terms of Use, whether you need a business attorney to create a Terms of Service agreement for your business, and a few other reasons that make this sort of digital legal notice important.

What Is a Terms of Service Agreement?

A Terms of Service agreement is a contract between your company and the end user that outlines the terms and conditions under which the company provides services. In order for someone to use your online services, they must first perform an affirmative action that shows they agree to the Terms of Service. Typically, this is part of the user registration process. It may be as simple as a checkbox that reads: “I agree with the Terms of Service.” The words “Terms of Service” are hyperlinked to a page that provides the registrant with the entire agreement. Depending on how many services or membership types your business has, it may be necessary to have more than one Terms of Service agreement so that users can accept or decline additional offerings.

So, to summarize, a Terms of Service agreement is only used by those who sign up to use services, features, or access certain information found on your website. If someone doesn’t make an account, they won’t see or need to accept the Terms of Service.

Related: User Agreements: What Are They? Do You Need One?

What Is a Terms of Use Agreement?

A Terms of Use agreement is an agreement that must be accepted by anyone who visits your website. You’ve probably noticed pop-up banners at the top or bottom of a page that say something to the effect of, “Our website uses cookies to provide you with a better browsing experience. Acceptance of these cookies is part of our Terms of Use.” Then, there are usually two options: “Okay” and “Cancel.” You may have noticed that at the very bottom of the page that, along with choices such as “Home” or “Blog,” there is a link to the Terms of Use.

Some companies utilize a Terms of Use agreement because it requires users of the site to consent to the terms before they can access information on the site. Terms of Use agreements are often used to disclaim, including liability for, information provided on the site.

Should a Website Have Both Agreements?

Whether a website should have both a Terms of Use and a Terms of Service agreement depends on several factors. Their use, separately or together, as well as the inclusions for each agreement should be thoughtfully considered based upon need. These documents are one way that a company can help manage risk associated with their online division. As such, a business attorney can be a beneficial partner in the long-term risk management and success plan for your business.

Is a Business Attorney Required to Create a Terms of Service Agreement?

Depending on the industry you’re in, you may need certain disclosures included in your company’s Terms of Service agreement. Examples of disclosures that may be required include The Children’s Online Privacy Protection Act which explains what information is collected about children who are under the age of 13 years; the Digital Millennium Copyright Act; and any applicable HIPAA concerns that may apply.

Terms of Service can be a beneficial risk management tool for your business since they explain the conditions users must follow, may contain steps users can take to enhance their experience with the site, and perhaps most importantly, contain applicable disclaimers and indemnifications. A business attorney can be very beneficial as they can choose the proper terms and conditions that best serve the needs of your company as well as to protect it.

Other Important Topics That May Be Addressed by a Terms of Service Agreement

As mentioned, Terms of Service agreements provide rules to users about how they can (and can’t) use your website. They won’t have access to your site or its offerings as a registered member until they agree to the terms. Other important topics that may be addressed by a terms of service agreement includes forum activity. For example, if users can talk with each other, the Terms of Service may state that users may not post or share defamatory content, harass, or spam others.

One type of disclaimer that may be included relates to the information on the site. For example, it may state that the information and tools on the website are for informational or educational purposes only and that they are not to be taken as professional advice. When users accept the agreement, they are stating they understand that everything on the site is for educational use only and shouldn’t be confused with professional advice.

If users can generate content of any sort related to the site, the Terms of Service may explain that you or your business owns all of the generated results within the website, or not, if your company sells those results. It may also explain how to download or otherwise save or export results or creations, depending on site functionality. The agreement normally includes extremely stern language related to applicable intellectual property rights and restrictions, such as prohibitions against reverse engineering, copying, renting, and several other important protective restrictions.

Finally, a Terms of Service agreement may include a termination clause. It explains the reasons when and why user accounts may be terminated. It may state that accounts may be terminated without cause or notice and that information associated with the user account may or may not be destroyed and that the company is not liable for such actions. It may include how others may report an account for violating Terms of Service. This may include, but certainly isn’t limited to, reporting comments for review.

The termination clause also explains how users may terminate their accounts. It often involves using the registered email to contact the website owner to inform them of their desire to terminate the account or that they no longer accept the terms of service. Depending on the company, there may be various ways a user can terminate their account, but the company may have several things they must do to change, delete, alter, or transfer the account.

Larsen Law: Denver, Colorado Business Attorney

If you’re ready to invest in your business to create a Terms of Service agreement, a Terms of Use agreement, or website disclaimers, Larsen Law is here to help! Located in Denver, Colorado, Susan Larsen is a business attorney with more than 30 years of experience handling business law related matters as well as contracts. Thanks to technology, Larsen Law can help you with your agreement and disclaimer needs no matter where you’re located in the United States. To schedule your consultation, call Larsen Law now at 303-520-6030.