Curious Case of Terms & Conditions
Apr 12, 2021

Curious Case of Terms & Conditions

No matter how careless we are, but we take your privacy seriously. We will never share the data collected from you through our forms or any other means without your consent unless someone offers us a million dollars. Just kidding. We will compromise your data for $100 as well. Who do you think you are, James Bond? One last thing, why are you even concerned about our privacy policy, are you going to share your bank account number or your Wi-Fi password?

The above lines were written for the purpose of humor and so do image, you may relate to it …. as if you did not so far 😉

Reality check: Whenever we start any business or provide any services to our clients, generally we are encountered by our clients that, why we need to know and agree on Terms & Conditions for this business or service? Is it really a game changer?

To keep it simple, our answer should be “YES”, a business needs this terms and condition document or expression because this is where we can put all the fine details about provision of our goods or services, create a legally binding document in the case of any complaint. IN favour of T&C.

  1. Appear as business sensitivity towards customers and seriousness towards services.
  2. It’s a matter of legal compliance; and
  3. T&C is a premise for service level arrangement and privacy commitments.

For establishment of any business, the primary focus is always on generating clients and selling goods or services. Without a terms and conditions of business, it will be difficult for any business to clearly show what they have agreed to provide to their clients and in what conditions. 

Point to ponder: What if ambiguous T&Cs is in-consistent with industry or product & services promised to render?

Why T&C is important: Terms and conditions identifies the rights and responsibilities of both parties. This includes general and special conditions. Conditions which are commonly included in most contracts are general conditions and conditions which are contract specific only are called special conditions. e.g. payment, price variation, penalties, etc.

With a written terms and conditions, a business can avoid any legal disputes. Even though display of T&Cs is not legally mandatory, but it is extremely beneficial for all involved stakeholders. Because it gives various rights to all concerned especially to address grievance in case of breach, delays or dispute including but not limited to terminate the contract if the other party fails to abide by such terms and conditions which was accepted earlier. e.g. when we operate a SaaS application, according to terms and conditions if we abuse or misuse (~misuse of fair-usage) that application, then that particular SaaS application provider has power to suspend the services.

Point to ponder: Does monopolistic service provider really believe in T&C?

Do anyone care: Enforceability to the last T is T&C is always very debatable. Because if there is already appropriately incorporated in the contract then what is the need of T&C. That is why, to make T&C also a valid document and avoid any kind of ambiguity the best practice is to include T&C with the main agreement and make them signed by both the parties. If the standard terms and conditions include an unexpected and onerous condition, it must be drawn to the attention of the other party. Such term should be excluded and exempt other from the liability. It is worth keeping in mind that any ambiguous terms and conditions will always put and disadvantageous situation to other party, which may occur any kind of loss or damage to that party.

Point to ponder: Do you revisit / check T&Cs signed and appearing in public domain (& in case of revision)?

What makes a robust T&C framework: Enforceable terms and conditions have certain characteristics which make them binding and operative are:

  • It is clear in reading and avoid ambiguity and misunderstanding about the product and services.
  • It gives visibility to customer and their expectations.
  • It sets out clear and workable payment procedure.
  • It mentions the consequences about late or default payment; and
  • It duly complies with important legal obligations and bindings for all stakeholders.

Do a business really need a T&C framework: An effective T&C should always protect the owner against liability for any loss or damage arising from not obeying T&C by the client or customer. Without an agreed and confirmed trading terms and conditions it is very difficult for both the parties to indulge into any business or services. In such complicated situation any businesses will have to rely on only legally incorporated contract with the clients and somehow proving this business relation in the eyes of law may be a time consuming & difficult process. And every time it is very hard to enforce any policy if client violates the contract. It also shows that if our business does not have any written T&C, this may appear less professional to prospective customers or clients. For any issues or an initial discussion about business’ T&C every organisation should have a dedicated email id or contact details. It may make sense to require that client must indemnify the owner for claims made by third parties or any other party resulting from misuse of the services. We must realise that not having T&C would leave owners vulnerable in many ways, as described above.

What is a right set T&Cs: T&C varies from business to business, implementing the relevant terms and conditions will entirely depend on the vision, mission, and business framework? That includes what we are selling and the forum we are selling (i.e. online or offline) or what are the services going to be provided etc. 

T&C and NPS nexus: For any business customer satisfaction has paramount importance and to prosper in every business everyone must have a client or customer base, which will signify the success story of the business. If a business has a well-articulated T&C policy, it will surely give a confidence to its clients to do business without fear (or vice-versa) or to avail services alongside protection (liability limitation) to rendering company.

We trust the thoughts in this article fortify your consideration; and we look forward to hearing your thoughts.

Source of information: News & Views available on internet; and Offline views of industry specialists.

This content was sponsored by Enkrypt Council

Enkrypt Council is a think tank on a mission to enable stakeholders to interpret and comply with technology laws. Enkrypt Council is engaged in deep research on global technology laws and policies, their interpretation and activism for social welfare.

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