Companies typically invest huge amounts of time, effort and resources into getting their brand out into the market.

They fine-tune the design of their logo.  They make sure they choose the right colour and font for their corporate branding. Then, they choose how they’ll get the brand in front of potential customers.  It might be through a website, TV or print advertising, targeted social media marketing or a Google Ad campaign.  It might be PR activity or attending a conference or networking event.  The brand is always there, as the business carefully moves people through the sales process, until the customer is finally ready to go ahead and make their purchase decision. 

At that point, most businesses serve up a draft contract, or their standard terms and conditions.  This is the document that will define the relationship the business wants to have with its customer…

And far too often, the contents of that document are simply treated as an after-thought – a compliance requirement. Instead, they could be a strategic part of the company’s marketing and customer acquisition processes – an opportunity to build further on the company’s brand.

What is wrong with most Terms and Conditions?

Think about most of the T&Cs that you encounter, and you will usually come up with some common criticisms.

Too long

T&Cs often extend to pages and pages of text.  If a customer was determined to try read the whole document, it would take them a long time.  In fact, research by the ACCC found that the T&Cs for some frequent flyer programs would take over 1 hour 45 minutes just to read.

Too difficult to read

The font size and type for T&Cs is often too small, as the author attempts to cram more content into the same space.  They call it the “fine print” or the “small print”. Normally that creates the impression that somebody is trying to sneak something past the other person.

Too difficult to understand

The majority of T&Cs tend to be written by lawyers, in legal language, in a way that only other lawyers can understand.  There is usually a lot of use of legal jargon, and phrases that are only ever used in legal contexts.

Too difficult to navigate

Companies use hyperlinks, icons and menus to guide customers effortlessly around the content on their website.  On the other hand, online T&Cs are usually tucked away (accessible only by a link down on the website footer) and set out as one long page.  The customer often must scroll up and down to work out the meaning.

A company’s T&Cs define the relationship that the company wants to have with its customers.  So, it’s strange that some of the clauses that have the most bearing on that relationship (such as what will happen if things were to go wrong) are hidden away, buried deep among the other clauses.  The result is that your customers are agreeing to do business with you on terms that they have either not read, or that they do not understand (and in many cases, that the supplier would not even itself be able to explain or defend either).

Most businesses want their customers to have a clear idea of how their product or service works, and how that will add value for the customer.  Yet, the actual terms that define the relationship, and which will apply to the products or services to be provided, do nothing to help make it easier for the customer to understand.

Are your Terms and Conditions giving the right message?

In the worst cases, some T&Cs may even directly contradict the message that the business wants to give about its products or services.

Imagine, for example, if a potential customer were to ask one of your salespeople “how good is your product?”  That should trigger a pitch about all the unique features and qualities of the product. You want the customer to be clear about why this product is better than the competition.

Now imagine if the same salesperson instead had to read their response from the company’s terms and conditions of trade (based on this real-world example):

“To the extent permitted by law, the supplier gives no warranty whatsoever, either expressly or impliedly, in relation to any product supplied”.

No warranty whatsoever… Yet the product is positioned as being the best option in the market?

T&Cs often include language that we would never really use in conversation or in any other context (“prior to”, “upon”, “irrevocable”, “pursuant to”, “shall be deemed to be”, “subject to prior approval”).  This can add to the impression that the T&Cs have been written in a way that conceals their overall purpose or makes them unfair.

Are your Terms and Conditions doing what you hope they will?

It is common for businesses to use T&Cs that contain clauses where nobody at the business would be able to explain the meaning or be confident that they will result in the right outcome if something does go wrong.  Sometimes, the T&Cs have been adapted from another source and are being used in a way that doesn’t protect the business. The way that the business operates might have changed, or there might have been a change in the law, but the T&Cs have not kept up. 

For larger businesses dealing with small businesses or consumers using standard form T&Cs, there is also a legal risk that heavy-handed or one-way clauses can be found to be “unfair contract terms” under the Australian Consumer Law.  If so, they will be unenforceable, and it is possible that the ACCC will get involved.  When working out if a contract term is unfair, a judge will specifically look at how transparent the contract is.  This means considering how upfront, easy to read and clearly presented the terms are.  This includes whether they are in plain language, legible, clearly presented and easily available.

Is there a better way?

If all of this sounds familiar, it could be time to revisit your company’s standard T&Cs.  Here are some ideas to get started.

Make your T&Cs reflect your brand personality

What are the core elements of your company’s brand?  Fun and irreverent?  Straight talking and down-to-earth?  Easy to do business with?

Whatever your company’s brand personality, it is possible to design your T&Cs to be consistent.  The T&Cs should also speak to your actual customer demographic.  That might mean use of humour.  Or if the target customer is a busy executive, keeping it short and punchy.

“I would have made them shorter, but I didn’t have the time”

It can be a difficult exercise to work out what to keep, what to change and what to let go.  It therefore says a lot to your customers about your business if you have been willing to invest the time in getting your T&Cs right.

Think about the customer experience

Put yourself in the customer’s shoes and think about how they experience and interact with your T&Cs.  Use basic design principles to identify where improvement can be made, or where the content can be made clearer.  Consider better use of headers, white space and easier navigation.

Think about what people hate about T&Cs – and do the opposite

Use plain English, with short and active sentences.  Cut down on the jargon and write the T&Cs in a way that people speak.  Use a word processor to test the readability score of the final content – and keep refining until the T&Cs can be understood by your target audience.

Make it interesting

We all know that T&Cs usually involve lots of words, but sometimes visual communication can be clearer and more effective.  Consider if visual elements could be used.  Tools like flowcharts, icons and infographics can all help.  Comment boxes can be used to explain difficult concepts.  How about the use of video to provide an introduction or explain key parts?

Think strategically about you use your T&Cs

It is no use having well-drafted T&Cs if they accidentally get left out of the contract (it happens more than you might imagine).  Take a strategic approach to using your T&Cs, including putting in place processes and providing training for the staff who will be using them.

Contracts are legal documents and, as a business, you want to be confident that they will achieve what they are supposed to do.

But the T&Cs also define the sort of relationship you want to have with your customers. 

So, done right, it can be a valuable way to enhance the value of your brand – and deepen customer loyalty.

Please note: The articles published on this blog are for general information purposes only. They are not legal advice! You should always obtain your own legal advice about your specific circumstances.