What do you ensure within your terms and conditions? Do you ensure that they are ‘fair’ on all parties? What do you consider fair? Do you think that your online terms should be different? This has been ‘hot’ news lately and the focus is on ‘online’ Terms and Conditions. With Facebook, Apple and Paypal all brought into the limelight for alleged questionable ‘online’ Terms & Conditions, you may wish to give some consideration to your own terms.
When people think of terms and conditions they don’t really think about fairness. When drafting your own terms, the first thoughts are often on ensuring security and covering liability. When it comes to your business terms and conditions they are of course very important. Perhaps they are even more important if they appear on your website especially if the nature of your business produces a lot of online business transactions. However, have you ever thought about ensuring your terms are fair? Do you pass liability onto the customer?
What would you do if the child of a customer, who failed to log out of their account, managed to run up a £50,000 debt over two days? Would you expect to be paid? What would your terms say regarding this?
Well interesting enough the above is similar to the facts of a recent case, which involved a customer of an online gaming company. The case ended up in Court and the customer was found not liable. Why, I hear you ask? It was because the Terms & Conditions of the business were drafted to place full liability on the customer without exception, even if the customer had been subject of a hacked account, and this was considered unfair.
Not least because of the above, the way your terms and conditions are drafted is very important. Of course, as mentioned, it is always preferable your terms offer your business as much security as possible… At the same time however they cannot be read to be overly unfair. The important word, we would suggest, is ‘overly’.
It is fair (sorry forgive the pun but it was to good to miss) to say that a lot of people do not actually read all of the terms and conditions; particularly when they appear on a website.
So what should you do? Well if you are concerned, or think you need to revisit or indeed are drafting your first terms & conditions then it is vital to seek independent legal advice. Make sure you get advice from someone who will take the time to understand your business, your priorities and aims, to ensure your terms are drafted correctly.
Until next time remember know your risks and ensure you gain and retain control.