Terms and Conditions – What Companies Must be Aware of, says Colemans-CTTs Solicitors.
Standard Terms and Conditions (“T’s & C’s”) are rarely thought about by companies until a problems arises – in which case is then too little too late. Having these set in place will not only provide protection from potential claims against you, but also give you a foundation on which to establish certainty in relation to key contractual terms in respect of your dealings with customers.
Different Terms and Conditions may be required for different industries according to the requirements of their business. Benefits and limitations also apply to having these set in place which are outlined below.
Standard Terms and Conditions set out a framework for how a company’s transactions will be dealt with and brought to a conclusion without the additional time and expense involved in drawing up specific terms for each individual transaction.
They allow a company to impose terms positive to itself on others without negotiation and in particular to limit its liability (when selling) or to extend the liability of the seller (when buying).
By having standard terms these can be used by the company for every relevant transaction.
They allow company’s to standardise their contracting procedures.
Importantly, having standard terms will include a retention of title clause, which allows the seller of goods to retain priority over the goods should the buyer fail to pay.
Standard terms are only one part of the armoury for business but what they cannot do is to be used by companies in place of companies having set up good credit procedures.
Terms should be reviewed on a regular basis to check that they comply and have taken note of any new legalisation or relevant case law and to reflect any changes in the business activities of the company.
Terms will not be binding unless the seller makes sure that certain procedures are in place. This includes that an offer is made on the understanding that the seller’s terms and conditions apply, and standard terms should be included in all literature between the seller and buyer (such as quotation forms).
A situation that is becoming increasingly common is when sellers are faced with buyers insisting that their terms take precedent, which is especially true when dealing with larger companies. Your options are that you make sure that your forms appear on the last document sent between the parties before the goods are delivered. However, it is often easier to negotiate a variance of the terms. Although this may seem slightly ridiculous after having standard terms drafted, if the customer has the potential to provide you with repeat business it may make commercial sense to agree variations to your terms in consideration for the future.
Richard Drummond is a lawyer at law firm Colemans-ctts Solicitors