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Are your standard business terms and conditions going to land you in trouble?

Consumer rights clauses in B2C contracts.

 

In this terms and conditions article specifically for small business owners, you will learn about:

  • Introduction to terms and conditions
  • Are your T&Cs fair and transparent to your customers?
  • Do they satisfy the quality standards and refunds policy requirements?
  • Do your customers have a right to cancel?
  • Legal compliance for consumer terms and conditions

 

The law surrounding terms and conditions/terms of business  has become increasingly difficult over the past five years and it has become more and more important for businesses  to ensure that regulations are complied with.

It is vital that in business transactions there are terms and conditions or terms of business which oversee the transaction. If a business fails to  incorporate these into a transaction, it can have a negative impact upon the business, and will likely be both being costly and can affect your reputation.

The regulations which govern terms and conditions have grown in complexity on the basis and understanding that consumers cannot be expected to have the same level of business awareness as the company involved in the transaction itself.

Due to this, the law has different expectations for business-to-consumer (B2C) contracts (e.g. website terms and conditions), and  business-to-business (B2B) contracts. The regulations that govern B2C contracts provide additional protection for the consumer.

It would therefore be risky for a consumer-facing business to ignore consumer legislation and it could lead to numerous issues including disputes and possible investigations by consumer regulatory bodies. Failing to comply with consumer legislation could render  B2C contracts unreliable and unenforceable whilst also exposing business owners to civil and criminal liability.

Below is an overview of the key obligations businesses should be aware of when providing goods, services or digital content to consumers.

 

 Are your T&Cs fair and transparent to your customers?

Whether a business or a client, you should be  aware of the well-known Consumer Rights Act 2015 (CRA). It came into force in October 2015 and is an updated account for English consumer law provisions featured in many pieces of legislation. This legislation provides key provisions in which are vital that consumer-facing businesses stay aware of.

One of the main excerpts of the CRA is the necessity for the B2C transactions to be fair. Section 62(4) states that the term is unfair if: ‘contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract the detriment of the consumer.’ This means that if any part of the contract is unfairly bias, and the franchise business is seen to have an advantage over the consumer, creating an imbalance between the parties, then the document will not be deemed as binding to the consumer.

At the point of consideration or payment, the business must go through a ‘test’ to depict whether the business truly does have an unfair advantage within the contract over the consumer. I.e. If the terms and conditions or terms of business relied upon by the business in a consumer facing transaction are unfairly bias towards the business,  then the business will not be able to rely on that clause in the contract. This will of course have its own impact on the reputation of the business and can also lead to negative publicity if the businesses shown to partake in unfair practices which could leave it open to investigations by the CRA enforces.

Within these terms and conditions or terms of business, a degree of ‘transparency’ is needed. There is another test for this requirement, the B2C contract must be ‘expressed in plain and intelligible language’, and if written by hand, legible.

Transparency can be related to the extent of legal jargon used, and although that is accepted in B2B contracts, it needs to be avoided in B2C contracts.

If the contract is shown to include large amounts of less widely known language, the specific clause may be deemed unenforceable, and the court will likely be in favour of the consumer in any dispute or litigation which arises.

 

Do your T&Cs satisfy the quality standards and refunds policy requirements?


There are standards posed by the CRA that businesses need to satisfy when providing goods, services or digital content to consumers.

  • The standards require the businesses to supply goods that are of satisfactory quality, fit for purpose and as described.
  • The business must supply digital content that is of satisfactory quality, fit for purpose, and as described.
  • The businesses must supply their services to its consumers with reasonable care and skill.

If the business does not comply with the regulations, there will be consequences that apply.

There are some advised resolutions for customers in the case of the CRA standards not being met by businesses. There are ‘statutory remedies’ that allow the consumer to return any goods within 30 days, to receive a full refund. Or alternatively, the consumer can require the goods to be repaired or replaced, and upon failing to receive the of standard product, receive a full refund.

In the case of services, the consumer can require a repeat performance, free of charge.

Digital content is more difficult to return when downloaded, so the CRA remedy is to receive a replacement of the unsatisfactory digital content, or have the original content repaired.

For all three remedies, in the instances where the business has failed to provide a resolution, the failure will lead to a full refund, or at least a price reduction to the consumer.

Many consumer-facing businesses have decided to, instead of offering a refunds policy, refer the consumers to their statutory rights. These can act as a special refunds policy, but if the business is found to have misled its consumers then civil and criminal liability can be imposed under Unfair Trading Regulations (2008).

 

Do consumers have a right to cancel?

You may be aware of the consumer’s right to cancel. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 provide a right for consumers that purchase goods, services or digital content, by distance communications (online or telephone), to change their mind and cancel the contract with the business within the cooling-off period.

For goods and services/digital content, the cooling off period is 14 days from purchase/the date the contract is formed.

A refund must be given if the consumer returns the goods at the same quality as received. This is not the case for products that are bespoke to the consumer, however, as the product will be created for that person alone. Or, if the goods have been used, or product partially performed, only a partial refund would be expected.

A business needs to reflect the rights to cancel within their terms and conditions and have a detailed process for when customers exercise their right to cancel.

 

Your legal compliance for consumer terms and conditions

Keeping up to date with all legislation referring to terms and conditions standards is crucial for businesses but is often a neglected practice. You need to have these guidelines in place in case there is ever any action that requires relying on them. If you refrain from including them, you could get fined, or have legal action taken upon your business, as well as suffer by having a damaged, less reliable reputation in the public eye.

If you already have terms and conditions or terms of business in place, how often do you get them checked to ensure they are still protecting your business? Every transaction your business makes is governed by these standard terms and conditions or terms of business, so it is worthwhile getting them reviewed to ensure they are still enforceable should you ever need to rely on them.


Fusion Law can help you

Fusion Law’s team of legal experts have a multi-disciplinary basis that encompasses all aspects of business management and law, to provide you with all the assistance you need to prevent your business from getting into any legal difficulty.

We offer a FREE legal health check for SMEs, to ensure your terms and conditions are compliant, as well as offering free checks on your:

  • Articles of association
  • Employment contract
  • Cookie policy
  • Privacy policy
  • Staff handbook and policies
  • Shareholder agreement

 

Take advantage of our Free Legal Health Check for SMEs >

 

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