Contract Reviews: a regular recurring diary note

Terms and conditions and contracts can often be viewed by clients as a one off expense, something that is put in place and then left, never to be considered again. As is the case with many other business related matters, it is good practice to undertake a regular review of your standard form contracts and terms and conditions.  

The law changes over time, business practices alter and the size and nature of a business’ dealing will fluctuate. All of these issues mean that it is wise to ensure that what you say in your terms and conditions and contracts reflects reality and will therefore stand up to scrutiny in the event that your documents are tested as a result of a claim.

Staying up to date

I would suggest that having a regular recurring diary note, for say once a year, would be appropriate to act as a reminder to check through the standard form paperwork relating to your business. There will however also be other times when it is appropriate to consider whether alterations are required. For example, most people will remember the introduction of GDPR and the requirement for data protection clauses and privacy policies to be put in place. GDPR was of course well publicised, but not all changes to the law are so well signposted. 

Having terms and conditions in place is of course an important starting point. However, businesses are advised against attempting a one size fits all approach. Depending upon the way in which your business operates, online, from a bricks and mortar shop or other medium, and who it trades with, other businesses or consumers, will make a difference to the matters that need to be taken into account when preparing your terms and conditions. 

One size fits all?

It is not appropriate for a business to have identical terms and conditions for its dealings with both a consumer and another business. Consumers as a general rule are afforded much greater levels of protection, particularly against what might be considered unfair trading practices than businesses.

Whilst you may take the opinion that you will therefore provide all businesses that you deal with the same terms as those provided to consumers, this may not be a commercially astute decision. Likewise, those businesses that offer goods via the Internet generally will have to provide greater returns policies than those that sell goods from bricks and mortar premises.

Being aware of subtle nuances in the differing requirements of law depending upon who you trade with and where you trade from will ensure that there is not an issue with enforcing your terms or running into problems with trading standards or any other regulatory body. Issues with regulatory bodies may result in a loss of a licence that is required to trade which could be catastrophic for your business. Alternatively, the consequences may result in adverse publicity which again may be equally as damaging to your business.

Choosing terms carefully

As already mentioned it is important that your terms and contracts reflect the business you undertake and the way in which you operate. A key point to ensuring this is the case is to make sure that your terms and contracts are bespoke and drafted specifically for your business. 

Whilst it might seem like an easy or cheap option to simply copy terms and conditions from your rival this is a surefire way to potentially wind up with unsuitable and unenforceable terms. In the first instance, how can you be certain that your rival has taken proper legal advice when having their terms drafted? Did they simply download a template from a website or copy it from another competitor? Many of the websites that provide templates to download are suitable for companies based in America and therefore apply the law as it is within different states in America, this could mean the terms are not enforceable under English Law. 

If you are providing goods and services outside of England it is advisable to ensure that your terms and checked in each jurisdiction in which you trade to ensure that they comply with any specific local law or custom.

What we do

In the work we have undertaken with businesses who did not have properly drafted terms and conditions, we have seen businesses that have inadvertently provided unlimited financial warranties to their customers, unknowingly accepted the terms of conditions of a customer to the exclusion of their own terms and conditions and intellectual property has been given to customers free of charge.

If your business does not have its own bespoke terms and conditions, or it does but they have not been reviewed and updated for some time please get in touch with our team of experts. 

You can contact me via tim.field@birkettlong.co.uk or call me on 01206 217366