When you have a business lawyer assist you with drafting your business’ Sales Terms and Conditions, limiting liability should be the primary aim wherever possible (and legal). Information on your website may be out-dated or incorrect. In these cases, the last thing you want is to be accused of making misleading representations to your business’ customers. For this reason, it is so important that your business lawyer limit the liability of the business, its directors, officers and employees wherever you can.

How can this be done?

  • The first provision under this clause should explain that all information found on your website, while believed to be accurate, may in fact be incorrect, out of date, or inaccurate to some degree. Explain that the information is provided ‘in good faith’ on an ‘as is’ basis, meaning it should only be taken at face value and not be relied on to any extent beyond which the law requires. This is because certain information, by law, is required to be accurate. As such, draft into the provision a sentence that excuses the company, its directors, officers and employees of any liability for any representations or possible warranties between the company and the user (or any 3rd parties). Of course, your business lawyer cannot simply excuse your company for any responsibility and must draft according to the Australian Consumer Law (“ACL”).
  • In your second provision, acknowledge the ACL and accept that certain rights and remedies relating to the provision of goods and services will be afforded to customers of your business. This provision is essentially an acknowledgement of the “Rights” of consumers who purchase your business’ products and services.
  • In the third provision, have your business lawyer draft an exclusion clause that limits the applicability of any implied conditions or warranties, apart from the customers Rights as defined above. Of course, limit this exclusion to the extent permitted by the law. It should apply to the following:
      • Expressly disclaim any implied or express guarantees, warranties, representations or conditions of any kind, which are not mentioned in the Sales Terms;
      • Explain that no promise will be made to the user of the Site that accessibility and use of the site will be error free. Your business lawyer might want to also limit your liability insofar as the server transmitting or storing viruses to users of the Site are concerned.
      • If the Site or its products are unavailable, it will not be the business’ responsibility;
      • Finally, your business lawyer should draft this sub-provision so that the business is not responsible for any loss, damage or costs caused by the use of the Site to the users of the Site. This should be broad enough to encompass every possible variation of liability, i.e. direct, indirect, incidental, special, consequential etc.
  • The last provision should frame your business’ liability in terms of the price of the specific product that has been purchased and limit the liability to this extent. Have the business lawyer acknowledge the other areas of law where liability may arise, such as contract, tort (under negligence), in equity, under statute or otherwise, and ensure that liability is limited in these areas of law as well.

Conclusion

Are you looking for a business lawyer to assist with drafting your Sales Terms and Conditions? Are you unsure of how to limit your business’ liability? Instead of guessing, speak with a professional. Our team of business lawyers here at LegalVision have drafted many Sales Terms and Conditions and would be happy to help you with the drafting of your own.

Lachlan McKnight

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