What about the T’s & C’s?

Whether you’re a start-up company or an established business, the chances are that putting together Terms and Conditions isn’t the highest priority on your to-do list.  But taking the time to put these in place could prove essential in preventing misunderstandings or future disputes.

Key Considerations & Potential Pitfalls

Terms and Conditions should be reflective of the commercial arrangement between the parties involved and clearly set out the reality of their relationship.  When putting Terms and Conditions together you should consider:

  • What does your business want to happen in this relationship?
  • How is it envisaged that the relationship will work?
  • What’s the intended duration of the agreement?
  • How will the relationship be governed?
  • Are there any Intellectual Property provisions to be considered?
  • What are the payment terms?
  • How will any disputes be dealt with if they arise?
  • Termination rights in the event of any breaches, insolvency or non-payment
  • Limitations on liability

It’s vital for Terms and Conditions to be as accurate and as detailed as possible. If there is any ambiguity, or if your Terms and Conditions do not reflect the true nature of the relationship, it’s far more likely to result in problems for your business further down the road.

It can, in some cases, be tempting to buy Standard Terms and Conditions off the shelf.  Yes, this would save the time and possibly the expense, of getting a tailored document drawn up.  However, such documents are often incomplete, or do not provide terms that are specific to your business. 

If your business is using Standard Terms and Conditions purchased off the shelf, it is advisable to get these checked by a legal professional to make sure they’re not missing any fundamental provisions and that they are protecting your business as far as possible.

Incorporating Terms & Conditions into a Contract

It’s all well and good having a set of Terms and Conditions, but unless they’re properly incorporated into your contract, they will be pointless!

There are a number of ways you can incorporate Terms and Conditions into a contract.  The best way to do this would be to get a signed copy at the outset of any agreement but this isn’t always practical. Alternatively, you can provide these to customers or suppliers in hard copy or by email.  In some cases you will be able to send a link to your Terms and Conditions online (but make sure the link works first!)

Battle of the Forms

“Battle of the Forms” is the term used when two contracting parties both seek to rely on their own Terms and Conditions. Generally, whoever provides their terms last (the last shot) is the person who will have the terms included as part of the contract.  In these scenarios, the Court will look at the point at which the contract is formed, and it will be the last set of Terms and Conditions provided at the time the contract is formed that will be relied upon.

Get Your Terms & Conditions in Early!

Terms and Conditions provided with an invoice are usually too late, it is best to get Terms and Conditions across to the contracting party as early as possible, if you are intending to update them, make sure the other party is provided with any changes frequently to provide your business with the best chance of protection.

Takeaway

Remember these key points to ensure you can rely on your Terms and Conditions:

  1. Provide them to the customer/seller as early as possible;
  2. Make sure they’re as detailed as possible and reflective of the commercial relationship;
  3. Make sure they are the correct version; and
  4. Make sure any links work.

If you need any assistance in putting together Terms and Conditions for your business, or if you have an existing set of Terms and Conditions that you’d like us to review, you can contact us on info@tend.legal or click the button below.