- Like ill-fitting budgie-smugglers
T&Cs are often crafted with a particular business in mind and the unique challenges it faces. At best, using someone else’s means the terms are likely not effective protection for your particular business and, at worst, they won’t fit and may inadequately cover critical things that are unique to your business.
- Well, that’s embarrassing…
Those terms you’ve cut and pasted may be subject to copyright. Copyright ownership gives the owner the exclusive right to use and copy the work (with some exceptions). Having the owner of those terms confront you with an allegation of copyright infringement is not only embarrassing but could also incur legal costs as you deal with such an allegation or claim.
- Like eating a stranger’s leftovers
You don’t know where they’ve come from. Often T&Cs can be ‘adapted’ from a variety of sources, including from businesses in foreign jurisdictions. It is not uncommon for us to sometimes see references to legislation in overseas jurisdictions which are not only unenforceable but, depending upon how the term is phrased, could also be construed as misleading.
- Ye olden days…
You don’t know how old they are. A businesses’ terms of trade are often an evolving document which are amended from time to time to keep pace with changes in the business, current legislation as well as prevailing commercial practices in your industry.
Old T&C’s may no longer be compliant with current law and industry standards. With the rapid pace of development in the consumer law landscape and small business protections with respect to standard form contracts, it’s not only possible but quite probable that cut and pasted terms are not in line with currently acceptable legal framework or the accepted practice in your industry. Further, particularly old terms can be difficult to read and understand given the legal professions has increasingly moved toward plain English drafting styles.
- Fair go, mate!
They may be unfair. There has been a great deal of progress in terms of Unfair Contract laws in Australia since 2016. These laws have evolved significantly since they were first contemplated as a protection for individual consumers and now include a robust set of protections that extend to small businesses. Further changes are likely to be introduced shortly following a Treasury review of the unfair contracts laws which took place in 2021. A likely outcome will be the introduction of pecuniary penalties (fines) for unfair contract terms and even the availability of disqualification orders for individuals. Therefore, retaining or including potentially unfair provisions in your standard terms without legal guidance can pose significant risk.
If you require assistance with Terms & Conditions (or client engagement agreements) that are fit for purpose and specifically adapted to your business, contact Rankin Business Lawyers for practical, on-point commercial legal guidance.
Joseph Carneli
Senior Associate
