The best way to limit your liability, be clear about your procedures and define the contract between you and your client or customer is to have clear, well written business terms and conditions.
But what should be included? And how can you be sure that they are enforceable should something go wrong?
Our Company Commercial lawyers explore why your Ts & Cs are such a key document and how to make them work for you.
What are Business Terms and Conditions?
It is common practice for businesses to have terms and conditions in place. They are usually made available before any goods or services are exchanged and help to set out the contract between you and the customer.
They may be referred to as your terms of business, service agreement, sale terms, Ts & Cs or many other variations. Essentially, they are intended to be non-negotiables that your company has set out prior to any sales or service and govern the provision of the goods and or services. They tend to be published on websites or sent out to prospective clients before entering into any agreements.
Having contacts and agreements in place for your business can help ensure healthy cashflow, smooth processes and clear understanding.
Making Your Own or Recycling Other Business Ts & Cs
Businesses can write their own terms and conditions, however, without a legal knowledge, there could be key aspects that are overlooked, leaving them exposed to risk.
Businesses may be tempted to copy existing terms from another business or download a template from the internet, this is not recommended as this may be a breach of copyright and again, this could leave them open to conflicts and they are running the risk of entering into contracts that don’t adequately reflect the way they operate.
Be aware of online templates – as these are often American sites, where the laws or wording of business agreements will be very different.
For bespoke, tailored terms and conditions that are going to suitable in better protecting your business, it is best to speak to a Solicitor and discuss the ins and outs of how you work with your clients or customers so that they can understand the best ways to protect you and help the business relationship to run smoothly.
What Should be Included in Ts & Cs?
Terms and Conditions can be quite a lengthy document, but it is essential that they are personalised to your business needs and include everything necessary for your customer to be aware of. It is not a case of ‘one size fits all’ when it comes to terms and conditions.
Every business is unique and will operate in different ways, even if they are in the same line of business, so there is no exhaustive list of what should or should not be included, as this may depend on the specifics of your business. Some basic provisions could include:
- A clear description of the goods and or services that you are providing
- Boilerplate clauses
- Details of the costs and any changes / increases
- Notice periods or contract breaks
- Termination details
- Payment terms and expectations
- Liability limitations
- Guarantees, warranties and indemnities
- Confidentiality and Data Protection
- Dispute resolution or complaints process
- Statutory compliance issues such as GDPR, anti Bribery, human trafficking etc
When considering what to include in your business agreements, give some thought as to possible scenarios and things that could go wrong. For example, you could have a customer that does not pay your invoice, think about how you would remedy that fairly but clearly.
Put yourself in the shoes of your customer. They may not understand all the acronyms or technical terms that you use within your industry. Your Ts & Cs should be written in plain English.
What Happens if You Don’t Have any Ts and Cs?
There is no legal obligation for businesses to have terms and conditions or written contracts, however if any issues or disputes arise, the business will have nothing to fall back on or be able to use as evidence to show what was agreed. This could be a very costly oversight. There are a number of statutes that imply terms into contracts for the sale of goods or supply of services but these implied terms tend to favour the buyer – customer and in many cases written specific Terms and conditions will override the statutory implied terms redressing the balance in favour of the business.
It also appears less professional to not have any written agreements in place and your customers or prospective customers are likely to expect something to help protect them too, should you fail to deliver your part of the agreement.
How to Make Your Terms & Conditions Enforceable
It is important to understand that terms and conditions are not automatically legally binding. The process the Business adopts to introduce the terms and conditions is also very important. Terms and conditions are more likely to be upheld if you:
- Make them clear and simple to read – avoid jargon or provide definitions
- Make them accessible for everyone to be able to read in a suitable format prior to the contract being entered into.
- Make them visible on your website, send them to clients, include them in your information packs or provide a link to the Ts & Cs within your email signatures
- Communicate your Ts & Cs regularly – send with every new business if they are a repeat client
- Be fair and reasonable – especially with notice periods, timescales and charges
- Bring attention to certain key parts of the Ts and Cs that will be relevant
- Obtain a signed contract or agreement
- Ask clients or customers to confirm in writing that they have read and understood the terms and conditions and agree to them.
- Seek advice from a Solicitor
It is the customer’s responsibility to read the terms and conditions, and we know that many people will skim over lengthy paperwork, so it is best to try and keep them to the point, but still thorough.
If Ts and Cs contain onerous , unfair or unreasonable terms, then a court may find them unenforceable should you find yourself in a contract dispute.
Bespoke Business Advice
Whether you are a new business or are keen to review your current key documents, then we can help appraise, re-write or create your business agreements, contracts and Ts & Cs to ensure that they are working for you and your business.
Many business practices have changed over the last couple of years due to the pandemic or Brexit, so it is vital to ensure that your suite of documents are still relevant and up-to-date. Are you still mentioning services that you no longer offer? Or have you moved your business online, for example?
To speak to someone about your business needs, please call 01256 844888 or email enquiries@lambbrooks.com. Alternatively, you can complete an online form on our website or speak to our online chat assistant (who is a real person, not a bot) and someone will be in touch to discuss further.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.