Legal update: Terms and Conditions: the importance of the fine print143月2018
If you are a business owner or operator, underestimating or simply ignoring the importance of the fine print is a common mistake. Irrespective of whether you operate a start-up or a long-established business, you should have in place some terms and conditions that are appropriate to your business model having regard to a multitude of factors such as the place(s) in which you operate, the products and/or services that you sell, your clientele and the overall legal, regulatory and financial landscape of your particular business sector.
Why is it so important to have terms and conditions of business? The answer is quite simply this: it is a legal contract between your company and its clients and/or suppliers. Despite this, some fail to see the need or value of seeking legal advice until after a problem or legal dispute has arisen. A well drafted set of terms and conditions will often assist in minimising such problems and legal disputes in the first place and leave you with more time to actually run your business.
Still not convinced? Below are some additional reasons we would recommend that you seek professional assistance:
- The terms and conditions are essentially contracts and one of the qualities that a contract must possess in order to be legally valid and binding is that its terms must be clear. Poorly drafted terms and conditions can be so unclear as to be completely ineffective.
- The one-size-fits-all approach is ill-advised. Copying the terms and conditions from another business is extremely risky because there are no guarantees that the copied terms even suit your business or are legally correct and enforceable in your jurisdiction. Different industries are subject to different regulations.One of the key benefits of sitting down to plan and draft your company’s terms and conditions is that it forces you to apply your mind to your own business model, so that you can tailor your terms of business accordingly and provide for the scope and limitations of each parties’ rights and obligations and protect your company against any potential risks and liabilities (foreseeable or otherwise). If you sell goods and/or services to customers in-store or online, your terms and conditions will likely be very different; a lawyer can also assist with this.
- If you deal with overseas customers, a lawyer can advise you on the most appropriate governing law of contract and forum for the resolution of any disputes. Where necessary, a lawyer can also assist you in obtaining foreign legal advice to ensure that your interests are protected as far as possible.
- Do you operate a B2B business? If so, you may be able to incorporate more flexible terms and conditions which would simply not be possible had you been dealing with ordinary consumers. A lawyer can provide helpful guidance on your business’ statutory duties and obligations to customers.
- Subject to applicable laws, it is possible for your business to limit its liability to customers and third parties. A lawyer can help you to incorporate provisions into your terms and conditions that protect your business to the fullest extent permitted by law.
- If your company has already been in operation for some time, have you reviewed your existing terms and conditions since they were first drafted? Are you confident that your existing terms conform to current laws and practices? If not, we can assist you in updating your terms and conditions and ensuring that it reflects your present business model.
Tim Drew / Caroline de Souza
If you would like to discuss any of the matters raised in this article or need any assistance in drafting your company’s terms and conditions, please contact:
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication