Commercial Update 92: Terms & Conditions and How They Can Save You

So, here’s the puzzle – it is recognised by most folk that the legal basis on which you are willing to do business with your customers should be one of the first things you consider when either starting up or running a business and a well-drafted set of Terms and Conditions (T&Cs) can protect your legal position and give you certainty in your relationships with customers.

However many business owners say that:

  • They don’t need anything formal as the magic all happens by email.
  • They’ve found a set on Google that look good enough, after all T&Cs are the same right.
  • Getting our old version checked over is a waste of time (see the proposition in point 2).

Let’s quickly unpack these now and see how they check out.

Formality – yes, you can have a contract that is cobbled together via oral discussions plus some emails back and forths. God luck though trying to enforce it, particularly if records of conversations are sketchy and as has been famously said ‘recollections may vary’. Proper T&Cs set out what the legal position is and that clarity side steps a lot of uncertainty and frustration;

I got it off the internet – Oh dear….perhaps even worse sometimes in our experience than having no T&Cs is having a set that is just wrong, frequent example of these that we see are those where:

They are being used potentially in breach of copyright (the old ‘copy your competitor’ approach);

The wrong county’s laws are set out;

Clauses are mismatched and contradict each other;

The set simply doesn’t work for the business using them (an easy example is where the T&C’s state that the customer will be invoiced on completion but the business asks for payment in advance); and

Important items such as exclusions of liability are not there or are unenforceable because of the way they have been cobbled together

Why bother getting any set checked? – Any T&Cs need to envisage and perform against what the actual business does and how it operates, so as per the example above, the payment terms for example in the T&Cs should reflect what the business actually does. An external perspective can be really helpful with this as well as dealing with any changes in the law (particularly when dealing with consumers) or updates around things like supply chain issues, going online or rising material costs.

You only need to rely on a properly prepared set of T&Cs once and they usually more than justify the cost of having them done, make sure that yours help save you when you need them to, rather than sink you…

Regards to all