Terms and conditions are usually written by the product or service providers and include all matters that customers need to be aware of. They often cover areas such as the use of products and services, personal privacy, legal liability, etc., depending on the circumstances. For example, a common disclaimer will state that the merchant will not be liable for any damages that may arise from the use of the product or service by the customer.
For merchants, the most important thing is to satisfy all the needs of customers to build a good customer relationship in the long term and maintain business profitability. While it is the responsibility of the merchants to ensure that the products or services provided are of good quality, it is inevitable that some external factors or misunderstandings may lead to customer dissatisfaction or even losses of varying degrees. Under such circumstances, T&C can serve as a basis for mediation between the two parties to clarify any misunderstanding that the customer may have, and to provide reasonable protection for the trader by controlling the scope of liability that the merchants may be subject to.
For example, some outdoor equipment rental merchants will state in their T&C that they will not refund the deposit if the customer is unable to use the equipment due to inclement weather; or that they will not be liable for any loss incurred by the customer if he/she uses the equipment inappropriately. In addition to products or services, many merchants also include terms of use on their websites to ensure that they will not be held liable for any incorrect or outdated information on their websites.
T&C comes in different forms and varies with the industry, nature and location of the business. In general, the content covers:
T&C can be treated as supplementary information and can exempt the merchant from certain legal liabilities. But does it mean that they are a "get-out-of-jail-free card" for the merchant? In fact, whether the terms are valid or not depends on a number of factors; apart from the content, they are also subject to the Control of Exemption Clauses Ordinance (Cap. 71) and the Unconscionable Contracts Ordinance (Cap. 458).
Section 7(1) of the Control of Exemption Clauses Ordinance states that "a person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence", which makes it clear that a disclaimers do not exclude liability for death or personal injury to a customer due to the negligence of a merchant. Section 7(2) states that the clause is not binded in such a way if it is reasonable.
Then what does "reasonable" mean? Section 6(1) of the Unconscionable Contracts Ordinance (Cap. 458) sets out the factors that the court will take into account, such as the bargaining power of the parties, the consumer's understanding and the merchant's marketing practices. If the Court determines that the terms or the circumstances of establishing the contract are unconscionable, section 5 of the Ordinance provides that the Court has the power to refuse to enforce part or all of the terms and to alter the unconscionable parts.
After drafting the T&C, we suggest merchants have it checked by people with legal background to prevent major mistakes that will influence its validity.
These general terms and conditions below (the “Terms”) shall apply to sales of Goods by the Seller to the Buyer.
以下一般條款與條件(「條款」)適用於賣方向買方銷售商品。