27 Feb Disclaimer vs Terms and Conditions: What do I need?
Author: Ian Aldridge, Progressive Legal
Commercial documents are an essential component in building your business. Both Terms and Conditions (‘T’s and C’s’) and Disclaimers play a vital role in the minimisation of risk by protecting your company from legal liability. However, the two appear considerably similar despite their slight differences. This article outlines the differences between Disclaimer vs Terms and Conditions.
Do I need a Disclaimer?…
A disclaimer is something that aims to prevent another party from claiming you are liable to them for a specific reason. In relation to the provision of goods and services, disclaimers outline what you are not responsible for. In other words, it denies responsibility for a certain event, situation, result and so on. Generally, disclaimers are broad statements but can also be more specific based on the products or services you offer.
By pre-emptively denying legal responsibility through a disclaimer, you are protecting yourself from future legal claims being made against you. This is essential to ensure that your business trades smoothly and protects its professional reputation.
…Or do I need Terms and Conditions?
Terms and Conditions are another commercial document which can be placed on your website. Often, we are provided with T’s and C’s on our phones which may pop up when visiting a website. The majority of your customers will press ‘I have read these terms’ without actually doing so, however, the importance of these documents is not to be underestimated.
Put simply, T’s and C’s operate as a legal contract between you and those who engage your services or buy your products. It is a legally binding document which outlines your rules of service. The contractual nature of T’s and C’s means it is far more comprehensive than a disclaimer as it aims to cover a wide range of issues.
Legally drafted T’s and C’s will typically include:
- Acceptance of Terms;
- Variation of Terms;
- Services provided;
- General Disclaimers;
- Services Specific Disclaimers;
- Obligations (Client and Business Owner);
- Copyright and Trademark notices;
- Intellectual Property;
- Payment;
- Fees;
- Limitation of Liability;
- Non-disparagement;
- Force majeure.
- Indemnities; and
- Dispute resolution.
Key takeaways
Disclaimers and Terms and Conditions are key to risk management in business. By ensuring your commercial documents are sound and cover all potential circumstances – you are preventing claims being made against your business.
Are you after experienced lawyers to draft your Terms and Conditions and/ or Disclaimers? Our Commercial team at Progressive Legal are experts in drafting these documents and will work closely with you to minimise the risk in your business,
All you have to do fill out our contact form or call our office to talk to one our Commercial team members.
Disclaimer vs Terms and Conditions FAQs
My business is risky, should I have a Disclaimer?
If you operate in a risk-based industry, you may require more substantial disclaimers in order to protect your business completely.
Industries which are riskier include: medical, health, adventure sports, financial advisors / business advisors or alternative health practitioners. This of course does not mean you should not have comprehensive disclaimers if you are not in one of these industries, as all businesses have a degree of risk. That’s why they call it “risky business”. As such, having specific disclaimers are always the way to go in order to protect your business.
So, disclaimers can be included in Terms and Conditions?
Yes. Standard disclaimers are incorporated into your Terms and Conditions, but can also be a stand-alone document if required.
Why do I need Terms and Conditions?
In an era where business have transitioned into predominately online based services, having terms and conditions are essential to create a legally binding agreement between you and those who buy your goods or engage your services online. As well as outlining the expectations of both parties during the transaction.
In other words, the largest commercial advantage of T’s and C’s is that you have a specifically tailored document ready to limit your liability in a wide range of circumstances.
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01 February, 2024
18 January, 2024
Ian Aldridge is the Founder and Principal Lawyer Director at Progressive Legal. He has over 15 years experience in advising businesses in Australia and the UK. After practising in commercial litigation for 12 years in major Australian and International Law Firms, he decided to set up a NewLaw law firm in Australia and assist growing Australian businesses. Since then, he has advised over 2,500 small businesses over the past 6 years alone in relation to Intellectual Property Law, Commercial, Dispute Resolution, Workplace and Privacy Law. He has strived to build a law firm that takes a different approach to providing legal services. A truly client-focused law firm, Ian has built Progressive Legal that strives to deliver on predictable costs, excellent communication and care for his clients. As a legal pioneer, Ian has truly changed the way legal services are being provided in Australia, by building Legal Shield™, a legal subscription to obtain tailored legal documents and advice in a front-loaded retainer package, a world-first. He has a double degree in Law (Hons) and Economics (with a marketing major). He was admitted to the Supreme Court of NSW in 2005.
