Making your terms and conditions stick
Your terms and conditions ("T&C") document sets out the agreement between you and your customer or client. Without a set, or if your customer or client has not agreed to them, you have a weak or no contract. If a customer sues you for some loss or wants his money back, you have little chance of defending successfully.
On the other hand, a well drawn set of T&C, on a website or elsewhere, is an ambassador to your efficiency and attitude to other parts of your business. It is not only likely to protect your business but is likely to reassure your customers that they should trade with you.
There are two basic ways to make certain that you have created a binding contract between you and your customer: on your website or in some other way.
If you operate an e-commerce website (i.e. you take money online) then the best way to create a binding contract is to set into your payment point a check box for the customer to tick once he has read the terms, and to set up your coding so that a buyer cannot proceed until he has ticked the box. At the same point it is essential to provide a clear link to your T&C document.
Note that you must seek positive confirmation. You can't pre-check the tick box for the customer - he must do it himself.
It is not enough to provide your T&C in a plain text box where you can read only 40 words at a time. They should be given their own web page, formatted in a way and in a font suitable for easy reading. The text should be comprehensible and the subject matter clear. Clear presentation is very important.
Many international sites (particularly US sites) display T&C in a small box several lines high and of a limited width. In the UK, and in many other countries, these would be deemed to be void, as such a presentation does not allow easy reading.
Another problem with some terms and conditions is that they use longs lists of synonyms, acronyms and legal jargon. T&C must be written in language that can be understood by the lay person. Using technical terms to the industry you operate in is fine, provided that you are confident your customers will understand them. If in doubt, simplify your language. Legal jargon doesn't make a contract any more legally binding.
The clearer and simpler and fairer you make your T&C, the more likely they are to be accepted worldwide.
It is very difficult to control site visitors who use your website in some way but who do not buy. Assuming that your terms and conditions actually “speak” to such visitors, you should ask for confirmation of acceptance of the T&C at any point where a visitor provides registration or needs your approval to take some action.
Even then, there is no actual contract without what the law calls “consideration”. Consideration means some act or value given and received both ways.
Nevertheless, it is a good idea to make whatever provision you can, even if there is no consideration (such as on information only websites). We are firmly of the view that if you look as if your protecting your interest then a visitor will assume that you will catch him if he steps over the line.
If you want terms and conditions for a business that does not take money via a website, then you are in a completely different situation. But the main principle is the same: both sides must be in agreement to the contract terms - otherwise there is no contract.
The most common mistake people make offline is to print their T&C on the back of some document, like a price quotation, in tiny font. It is certain that if such a “document” becomes known to the customer only after the contract has been made, then those terms are void. Even if they are drawn to the buyer’s attention before the contract is made, any failure to make them clear and legible will invalidate them against a consumer.
To put it another way, you must be sure that your customer cannot place his order until the terms and conditions have been brought to his attention in a form in which he can understand them and make a positive decision to accept. So how can you do that?
First, present your T&C clearly and obviously, for example by reference when you send out an estimate or quotation.
Second, ensure that you do not agree to the transaction until you know your buyer has had the opportunity to see and read your terms and conditions. Just as on a website, you can require the customer to acknowledge that he has read and understood them by checking a box on the order form.
Be careful to avoid setting out comprehensive and detailed terms and conditions but then reducing or qualifying certain provisions in other pages of your website or in other documents you provide to customers. If you sell to consumers, any judge will be on their side.
Keep your T&C together in one place and refer to them.
In trade between businesses, it is often the case that each side has his own T&C. There is no automatic priority but the advantage clearly goes to the party whose terms form the basis of the deal. That is because each side will have drawn his T&Cs to his own best advantage.
Your best policy is to insist that the deal must be based on your own terms. Whether or not you succeed depends on comparative trade power. If the other party is not willing to use yours, it is still worth trying to amend their standard ones to suit you. Few traders have the time and legal expertise to bother to argue.
In some industries, such as travel, the contract terms are usually mixed up with a whole lot of other, non-contractual information.
If this is how you gave to present your terms and conditions, do be careful that you do not state something with certainty, only to qualify or alleviate it on the next page.
We have a further article which terms to include within your T&C document that might be useful to read.
We also have a wide selection of T&C templates, both for businesses that sell online and those that sell offline. You may be interested in looking at templates for T&C documents for businesses that trade offline and terms and conditions for online businesses.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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