I noticed many sites include long and lengthy disclaimers in a websites terms of service page. Does this offer any real value in limiting ones liability. I have seen various words used such as hold harmless, indemnification etc... I understand having a policy of limiting liability is a good idea. However if something actually does go wrong on the site which the site says they clearly have no liability in the terms of service does the opposing lawyer ignore this and will file a claim regardless?
Patent Application Attorney
Maybe. But the disclaimers are very helpful in establishing that the person filing will lose.
You see a lot of people on Facebook posting so-called copyright disclaimers, but the simple fact is that Facebook provides terms and conditions that state clearly, "You use our free service, we get a world-wide license to use your postings." Facebook will always win that dispute, even if we didn't take into account their phalanx of attorneys.
Of course, if Facebook had something in the T&Cs that said, "And we have the right to take your second child," things would be different, as no one would expect that to be the case. So the lesson is that you win if you are reasonable. A little lawyering goes a long way in something like this.
I'm not your attorney; my answer to your question includes assumptions. If you want me to be your attorney, I'm easy to find.
Intellectual Property Law Attorney
Do terms of service "offer any real value in limiting ones liability"? It might. For example, the necessary disclosures for the DMCA safe harbor for copyright infringement are often found in a website's terms of service. While these and other attempts at limiting liability may not necessarily prevent a lawsuit, it may help provide or strengthen a defense if there is litigation (and may discourage a lawsuit). So, you are website owner is probably better off with a well-drafted terms of service than not.
This answer is for informational purposes only. It is not intended as specific legal advice regarding your question. The answer could be different if all of the facts were known. This answer does not establish an attorney-client relationship.
Intellectual Property Law Attorney
The value of a EULA or TOS is to give a defense against claims and discourage claims against the website owner. Sometimes, like with DMCA, they are required in order to retain certain rights. Mostly they are used to give the website owner something to quote to you when you ask or demand them to do something they do not want to do. Product liability laws usually require appropriate warning to avoid liability. The UCC requires certain warnings to escape responsibility for various defects.
Just saying a site has no responsibility does not necessarily make it so, but it makes it more likely so. And, that is why all major sites use them.
The TOS or EULA is one consideration to a lawyer, but it will not stop all claims. Opposing lawyers will not usually ignore them but will seldom be controlled by what the other side says or doesn't say.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
WARNING! One of the biggest mistakes made by corporate America today is not following its own published procedures. The TOS is a contract! If you do not adhere to the terms and conditions you will be in breach of contract and the user will have an easy time of defeating you in a legal proceeding. It is imperative that you understand and abide by your own terms and conditions! If you say you are going to do something, you not only need to do it, you need to document in writing that it was done.
Please feel free to contact me (no charge) at 330-666-5026 if you would like to discuss this further.
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