By Guy Zarins
Wilson Browne Solicitors
HAVING a well-drafted set of terms and conditions is a key part of a successful business relationship. Yet, as commercial lawyers, we find that this task can fall fairly low on a business' list of priorities.
We often find that people will only look at their terms and conditions when something has gone wrong, at which point it is too late to help them. A proper set of terms and conditions are a tool which allows a business to 'set the rules' of the relationship with their customers.
One common pitfall when creating terms and conditions is to try to closely mirror those of a competitor. This leads to a poorly drafted document, which does not protect a business nor properly reflect what is required. In fact, there is no guarantee that the competitor has taken any advice on their terms and conditions. As businesses in the same sector vary so much, what is right for one company will not necessarily be right for another.
Another issue arises from businesses not recognising the importance of keeping terms and conditions up to date to reflect the way in which that business is carried out. This can be particularly important where the relationship is of a long term nature and might require changes to be made throughout the relationship.
With legislation changing all the time, it is important for a business to review their terms and conditions regularly, to ensure they remain legally compliant. Take for instance the introduction of GDPR, which imposes obligations and requirements on business contracts where personal data is obtained or where there is a data controller/processor relationship. This can be a complex area where proper advice can help a business stay on the right side of the law.
Terms and conditions need to reflect not only the main commercial arrangements but also other key terms such as payment, delivery, parties' obligations, limitation of liability, refunds and claims procedure to name but a few. There are some issues which are more legal, such as establishing when the contract was formed and retention of title provisions which are equally important to include.
As an example, a client who supplied clothing had a customer go into administration. As they had a retention of title clause (where essentially legal ownership of the clothing did not transfer until it had been paid for), this meant that the client could physically recover the clothing rather than the administrator being able to sell them.
There are often standard or 'boilerplate' provisions which can be overlooked and which cover matters such as the serving of notices, force majeure or confidentiality. It is important that the purpose and significance of these clauses are understood as, whilst these may seem standard, they should be drafted to suit each individual business' needs.
For all these reasons, it is important to take proper legal advice on a set of terms and conditions, so that a business can not only have a document tailored to its particular needs but also so that it can understand the implications and meaning of the various clauses it should be signing up to.
For a fixed fee initial review of your terms and conditions call the Company and Commercial team at Wilson Browne Solicitors on 0800 088 6004.