5 Key Considerations in Drafting Your Terms & Conditions.
Whether your company is a startup or a thriving business, one of the most important documents you have is your Terms & Conditions. Contrary to what most people believe, Terms & Conditions is not a one-size fits all. Each company’s Terms & Conditions should be uniquely created to fit their business. After all, it is the first piece of information that lets the prospective client know how they will interact with your business, how your business operates and the culture of your company.
Since the Terms & Conditions page is sometimes the first and only physical representation a client will have of the company they are thinking of engaging, it is very important to draft it properly and update it regularly to ensure it complies with applicable laws.
The 5 key considerations in drafting your company’s Terms & Conditions (“T&C”) are:
1. Defining your company’s main business: Is your firm an e-commerce business, or an online broker-dealer/investment firm, or does your firm sell services, will the intended customers be using your platform, etc.? Knowing exactly what you are providing (and therefore marketing) is crucial to know what language must be used and what clauses must be included in the T&C.
2. Where do you intend to do business? If your company will conduct business either in your home state only or maybe internationally as well, then the T&C must be written in accordance with those laws. Remember, the T&C is an agreement.
3. Who will own any IP rights? Will it be your business or the client?
4. What disclaimers will be added? There are many which can be incorporated such as limiting liability for negligence or any use of offensive language, discrimination or perhaps use of sexual content. The extent of what you can disclaim and how much liability you can disclaim is something that only an experienced lawyer can advise on.
5. Third Parties: It is important to define the extent of third-party participation in any transaction. If so, this opens another area of law including how your clients’ information is shared. There is an entirely different area of law that will include how you inform clients of such use of their private information and how you store such information. Your business will have to comply with such laws and they differ from country to country.
Since T&C drafting is a skill that employs knowledge of many areas of national law, international law and most importantly terms of art, it is not recommended that a person copies another firm’s T&C and adopts it for their own company. Copying without conducting the proper analysis of the agreement to tailor it to your business can leave you exposed to the risk of being sued and possibly having to pay even millions to clients.
To have your T&C drafted or reviewed, contact our experienced international lawyers at email@example.com