You shouldn’t undervalue a good set of T&Cs – .the way you contract and deal with your customers is through your T&Cs. In Australia, your T&Cs do need to comply with various legislation. For example, your terms must not be classified as an unfair contract term and must consider the consumer guarantees that are mandatory under the Australian Consumer Law.
So, what do your T&Cs really do? They primarily protect a business in the event of a dispute with a customer, whether it is minor or involves lawyers. Any court of law will look to review your terms to assess what the roles and responsibilities were for each party regarding the contract and this will inform if the customer’s claim is valid. If you don’t have a set of T&Cs, then it may mean you don’t have a ‘leg to stand on’ and could be liable to the customer.
A typical set of T&Cs will set out:
- Purchasing Policies: How and when a customer is required to pay for the goods or services
- Delivery Information: This can include the available methods and areas of delivery, the procedures if goods are lost, and who is required to pay for insurance while the goods are being delivered
- Return Policies: Whether your business offers any refunds/exchange of goods – FYI, some consumer laws are mandatory regarding defective goods, and
- Minimise Liability: how you can position your terms to help provide clarity for your customer about what liability you are accepting and what you are not.
- Use of the business’ IP on the website
- a disclaimer of liability if the information displayed on the website is inaccurate or wrong or if you provide links to third party websites (which could include viruses or bugs)
- details of how visitors may use the site, which may include prohibiting spam, malicious or illegal content being published and will limit the distribution of the content of the website.
Most importantly, your T&Cs should be tailored to your business, its location, the markets it operates within and your target audience. If your business sells products overseas, then you need to think about custom taxes and duties, delays with importing and exporting, and should list your state or territory in Australia as your governing jurisdiction for any disputes. Additionally, if you are diving into foreign markets, it would be appropriate to consider your brand and the protection of your trademark and IP in those markets. As much as you protect yourself in your T&Cs, it won’t stop other businesses stealing your brand.
While it may seem tempting to ‘borrow’ another business’s T&Cs or using a template from a quick google search, this could be detrimental to your business. If the T&Cs that you ‘borrow’ aren’t tailored to the way you transact with your customers, you might run into trouble if you have to try and rely on the terms or if the T&Cs say one thing and you want to do the complete opposite. Often the ‘borrowed’ T&Cs include mistakes such as a reference to a different business, incorrect dispute resolution locations or even another country’s consumer law. This means that it can become difficult or impossible to enforce the terms. Furthermore, copying another business’s document could lead to a copyright claim by its owner, landing you in hot water.
T&Cs can be provided and agreed by customers in various ways, including through a physical ‘read and sign here’ agreement, or online or by using an electronic device through what is called a clickwrap style agreement.
A clickwrap agreement is one where a person indicates their agreement and acceptance to be bound by the T&Cs of the online contract where the T&Cs are displayed on the website or where the person has to manually scroll through them to reveal the acceptance button. You would have definitely come across a clickwrap agreement if you have purchased something online – it is that checkbox style tool where you have to click the “I agree” or “I accept” button. This is the most common style of electronic contract acceptance seen in the online marketplace. Tailoring your T&Cs to your business is crucial when you are starting out in business. Think of them as an investment, which will cement your relationship with clients. We can help you with this process and ensure that your T&Cs are personalised and account for all facets of your business. Get in touch if you want a quote for a tailored set of T&Cs.