What Happens when you Don’t Have a Terms & Conditions Form

Sparks Law | March 4th, 2016

We’ve all been desensitized by the, almost daily, contracts that we have to “Accept” via mobile phones and websites in order to use their apps or programs. There are so many of them that we’ve almost stopped reading them entirely. In my mind, this is a sound strategy for terms and conditions or waiver forms that are created by multinational mega-companies such as Apple and Microsoft. However, personally,  I wouldn’t dream of signing such a form for a small company without reading through it. Mega-corporations and the contracts they send out are screened by millions of customers who have the time to review the agreements; recall that Facebook’s new T&Cs form forced users to allow access to their phone’s microphone and video camera even when the phone was turned off. There were so many Facebook users that just about everyone “Accepting” their terms and conditions form knew about these provisions. This is not the case with smaller companies, however, where the only potential readers of the agreement are the few customers / business owners themselves.

What are Terms and Conditions or Waiver Forms?

Every business transaction, even free ones, are based on certain contractual terms. A terms and conditions form (T&Cs) simply lay out these provisions so that everyone involved in the deal understands what they can expect and what should be expected of them.

What do T&Cs Forms Include?

This depends on the type of business you have, but in general, a good contract should include the scope of the services offered and/or a specific list of what is, and more importantly what is not, warrantied.

Does My Business Need a Terms & Conditions Form?

Having waiver forms in place protects your business from future litigation, because the court case would all depend on what’s written in that form. Judges love a good contract case. If you have an attorney draft the terms and conditions form, it will probably include what’s called a merger clause that protects everyone litigating from having to go through lengthy (read: expensive) discovery (collecting everyone’s testimony, hiring attorneys to read through hundreds, or even thousands of emails, and so on ad nauseum). A good contract voids out all other oral or written agreements and allows the court to simply use the contract itself.

If you are performing services, the scope of those services needs to be laid out plainly so that everyone’s expectations are realistic. If you are a therapist, for example, you need to explain that you are there for those specific services. While you may touch on physical health issues, you are not a medical doctor and should not be expected to analyze your patient’s physical health.

If you offer a product, your T&Cs form will probably include waivers for improper use of your product. If your product can be opened and parts on the inside are small, you need to warn that these parts can be harmful to infants if eaten. If your product is dangerous if used in certain ways, you need to specify exactly how your product is intended to be used and let your customers know that any misuse of your product is their responsibility. 

Won’t a Terms & Conditions form Turn Customers Away?

On the contrary,  when I see that a business has taken the time to lay out their policies, warranties, and terms of the deal, I feel much more comfortable doing business with them. The business is experienced enough to have seen various issues come up, and has policies in place to protect customers and  the business itself from confusion, and unpredictable negotiations.

Contracts can be a Selling Point

A good terms and conditions form includes the business’s selling points: If you have an HVAC business, for example, do you warrant the parts and labor? If so, for how long? Does your company warranty go beyond the manufacturer’s warranty? What if the customer opens up the furnace and starts tinkering with it? Does this void the warranty? Putting all of your policies and selling points into your contracts makes it clear to everyone that you mean what you say. You would prefer that, if the furnace has issues, the customer not open it to fix it themselves. Rather, they should be contractually bound to call you so that your expert team can fix it and keep them safe from dangerous misuse.

Do you have a terms and conditions form in place for your business? If your answer is no, feel free to give us a call, we’d be happy to get you a quote for drafting you one. If you do have such a form, was it written by an attorney? Our attorney team would be happy to review your current agreement, if you would like.

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