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The Importance of Terms & Conditions

Your Terms & Conditions, particularly when you are operating online are vitally important. It cannot be emphasised enough that you require legal protection.

What are Terms & Conditions then?

The word term comes from the Old French terme meaning limit which came from the Latin terminus or end. A simple definition from the Oxford English Dictionary is: stipulations made; conditions offered or accepted.

The word condition originates from the Latin com - together and dicere - say. A simple definition from the same Dictionary is: something required as part of an agreement.

So one could say that terms & conditions:

Are perimeters or boundaries and requirements agreed upon and within which all transactions between two or more parties must take place for an agreed upon result to occur and without which no transactions take place.

In short it is your armour to ensure you are not taken by surprise in the rear!

A proper and legal agreement is required that sets out the terms & conditions of any proposed transaction or sale and the consequences of it. Therefore this is an area where you would do well to consult with your legal representative in order to draw up a set of terms and conditions for your particular circumstances. I have seen many web sites with no or skimpy terms and conditions that leave the merchant wide open to legal action which may be quite unwarranted but can cripple the merchants business. Ask yourself, why do all the larger companies have such an extensive and involved terms and conditions? Take a look at Microsoft or Procter & Gamble or any of the larger corporations. You will not find lip service paid to terms and conditions. You will see a page maybe two or more of legal terms and conditions. If you study the larger corporations well you will see they are protected with legal iron clad armour surrounding them on all sides including their backside.

Your terms and conditions should reflect your policy as relates to fraud as well as privacy and complaints and the client or customer should be acknowledging and agreeing to the terms and conditions prior to any sale taking place. These should be couched so that they include the following:

Force Majeur. (Force Majeur. Law. An irresistible force; act of God that permits a party to refuse to perform on a contract)

From the French. This is a term used in terms and conditions to protect the vendor from legal redress in the event that some cataclysmic event occurs, such as an earthquake or storm. This is a great favourite of insurance companies some of whom have been known to quote it when flooding has resulted in too many claims A Force Majeur, although not sufficient as protection by itself, should always be included.

You have the right to refuse any transaction without cause or explanation.

There may be certain people you do not wish to do business with. You have the right to refuse them. It is your business after all. There may be ethical, religious or legal issues and it is not always a good idea to have to explain your reasons in light of the emphasis on being 'politically correct'. Would you be happy to do business with a known arms or drug dealer? Apart from the moral questions involved would you be keen on the potential investigations on arms and drug dealers encroaching into your business?

You also have the right to seek information regarding any client, even from themselves.

The matter of anonymity arises here, as some clients may wish to give as little information about themselves as possible insisting on their right to secrecy in their transactions. This is where a balance between the rights of the individual and the right to verify a clients bona fide credentials is required. This problem can be alleviated by having a heavily promoted privacy policy that clearly states the clients information and details are private and not given out unless forced to by the law of the country in which the merchant is resident or the company is registered. This is an area that generates much discussion relating to privacy and government intervention. However you should not lose sight of your prime purpose here which is your right to be able to defend yourself against fraud. Here is an example of the Privacy Policy posted on one of my web sites:

It is our policy that all clients and prospects privacy is to be highly respected.

Therefore no information is given out about or concerning any of our customers, clients or prospects except by due process of law.

This means we do not give out names, addresses, contact numbers or e-mails or comments about or concerning any of our clients without their express permission in writing. You will not be held responsible for any actions outside of your control.

This is the Force Majeur we touched on earlier. There can be other particular terms added also which may pertain to your particular business. This is an essential part of your terms and conditions and you will find almost all terms and conditions have a form of Force Majeur contained therein. Make sure you include yours. You do not want to be sued for none delivery if there is a postal strike!

You have the right to protect yourself against fraud.

This may seem obvious but it is amazing how often terms are omitted which would protect you from fraud. Not being responsible for the use of the products you sell for example. Or responsible if some hacker gets into your site and removes all the credit card details you have in your database and uses them to make thousands of dollars worth of purchases online elsewhere.

You have also the right to be able to address complaints in a fair and equitable manner without prejudice You do not want someone complaining and not giving you the opportunity to verify the authenticity of that complaint prior to them seeking compensation. How do you know the complaint is valid? It is not unknown for some people to take advantage of a guarantee or warranty offered without a valid reason purely to get a better deal, or some unwarranted compensation. This can border on the fraud in some cases and you require some form of protection therefore. Also to be able to resolve or offer a resolution to a complaint without prejudice or the admission of liability.

Technical Author Services specialises in making up custom terms and conditions for websites but it is always a good idea to ask your legal representative when drawing up a set of terms and conditions to suit your business, to include the above.


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