It is important to be clear about the terms and conditions of a contract when you are establishing a relationship with your customers. As no two businesses are the same, you must ensure that you create your own Terms and Conditions (T’s & C’s) and not copy that of another business. This will save you the legal hassle should you run into trouble down the road.
It is important to keep in mind that T’s & C’s are legally binding and when drafted correctly it may help protect your business. Therefore, you should ensure that it is clear, precise and fair for both you and the consumer.
There are different ways that you can form a customer contract. Whether it be online, over the phone or in store (or all of the above), our commercial lawyers are regularly advising on:
- Processes to ensure that your Terms & Conditions of Trade (T’s & C’s) are clearly communicated to the customer before or at the time the contract is formed and agreed to.
- How to manage Purchaser Orders submitted on different T’s & C’s and which set of T’s & C’s applies. It is not enough simply to have a clause in your Ts and Cs to say that they prevail.
- What can and can’t be included in your Terms & Conditions of Trade.
Processes of T’s & C’s
For a contract to be formed you need an offer (usually made by you offering goods or services for a price); acceptance (usually the customer agreeing to purchase) and consideration (usually the promises to supply and buy).
You must remember to include your Terms and Conditions of Trade as part of your offer so that acceptance is on those Terms and Conditions. It is not enough to have the fine print on the back of the tax Invoice after the contract has been formed.
Our commercial lawyers can also assist in recommending how the T’s & C’s can be included in your overall sales contract as well as other legal obligations.
For online terms and conditions to be binding the law is different in Australia to the US. Best practice is that the terms and conditions need to be in a scroll box at the point of order / contact formation (not in a link that may be broken) with the customer forced to scroll to the bottom and positively accept.
It is also important to have your T’s & C’s obvious and easy to find when customers visit your business page online. Avoid putting your business at risk if you are unsure of how to set up your T’s & C’s as this could be costly for you should you face issues regarding compliance.
What can / should be included in your Terms and Conditions of trade
The key is to boil it down to what is essential:
- Payment terms
- What happens if payment is not made on those terms
- Delivery times and terms
- Ability to sub-contract
- Warranty terms (mindful that these are in addition to statutory warranties)
- Limitation of liability under statutory warranties when permitted to re-supply of goods or services or costs or resupply
- If retention of title is apply consent to PPSR registration (and information from the customer needed to support that registration)
What can’t be included in your Terms and Conditions of trade
There is simply no point in having clauses in your T’s and C’s that seek to get you “out of jail” for everything. They will not be enforceable.
- Exclusion of all and any warranties. You can read more on the ACCC site here.
- Exclusion of all liability even for defective goods or services
Fixed fee quote to review your T’s and C’s and advise on process
Our Brisbane based commercial and business lawyers are happy to provide a fixed fee quote to do this work for you. Contact us today and speak with one of our client engagement team to ask for a quote.