Writing Terms and Conditions

Unless your business is strictly customer based retail, you probably need some terms and conditions to govern the relationship between you and your client. Although there is a large body of case law around the default state of play, interpreting what is commercially reasonable is left to a court judge to determine after the fact. And judges famously don't "live in the real world", so what be standard or normal to you is not necessarily so to the person sitting on a high bench.

So how do you write up a contract or a set of terms & conditions or even your terms of engagement?

Beating a dead horse

Well, you start the same way I recommend you consider any risk in business - with some no nonsense risk management to work out what might go wrong, and writing that down.

Please don't just copy your competitor's terms and conditions and change the names. Apart from breaching your neighbour's copyright, honestly where do you think your competitor probably got their terms from? PS that's the secret why most transport, freight, and hire contracts all look the same and have the same grammatical and typographical errors too.

What are some risks to consider?

1. Is it clear what services or goods I'm providing?
2. Is it clear what my client has to do (other than pay me) as well?
3. What information am I relying on to give the best service?
4. When would my service or product not be suitable for the client?
5. If I can't meet my end of the obligation, can we part ways?
6. Who will pay if my hired-out property is damaged or lost?
7. If the hirer goes bankrupt, can the liquidator repossess my property?

The answer might surprise you on 7.

You need experienced and pragmatic advice

The next step is just to write all of this down! Written contracts are superior to verbal or handshake contracts any day of the week, since there's no ambiguity over who said what, or what was meant in answer. Write the essential agreement down, then mull in over in your head for a week or two. Ask yourself what could go wrong - how could you be held to a higher standard or to provide a service that you're not actually charging for.

Then just like in the no nonsense risk management process, keep refining the essential agreement until it's fair to both you and your potential client.

There are tricks and traps of course, so it's a good idea to run your agreement past an experienced commercial lawyer. The solicitor might try to push you towards a pre-written boilerplate contract, but don't forget that your terms of engagement have to be suitable for your business, not some hypothetical business at the time the boilerplate was crafted. From our perspective, the main value a solicitor will add is to tell you what you don't know - so you can cover off the unexpected risks like the PPSR for goods and product business.

But think about this stuff before it's too late!

Using decades of experience helping micro, small, and large businesses understand risks and mitigation strategies, I offer obligation-free risk consulting services to put your mind at ease.