Terms and Conditions - Better than Sex?

Writing your own terms and conditions (Ts and Cs) enables you to snooker an enemy long before you even meet.  It is like having an ace up your sleeve or answering a multi choice examination by ticking all the boxes.

However, it is sod's law that whatever ones you choose, the future dispute will centre on something you did not anticipate.  So in the world of Ts and Cs “MORE” is good.  If your Ts and Cs in small print are less than an A4 sheet then you are not even in the game.  Anyone who has sat in a lawyer’s office will know how depressingly good they are at telling you all the things that could go wrong with your business venture.  This makes your lawyer a “big gun” when it comes to Ts and Cs.

You may hesitate before giving your lawyer carte blanche to draft Ts and Cs for fear of a big bill.  Most people steal Ts and Cs from someone else in their industry.  Is this unlawful?  It could be copyright infringement unless they in turn stole the Tc and Cs from someone else and they are not original, which is usually the case.  It is best to locate Ts and Cs that look right for your industry and then take them to your lawyer to sort out.

If you have never bothered to read Ts and Cs as they sit on the back page of an order form you can count yourself as normal.  But here are 20 Ts and Cs that you may have found if you had bothered to look.  You will probably want similar Ts and Cs in your own contracts:

1. The first condition should say that your Ts and Cs beat anyone else’s Ts and Cs.  This should trump your customer’s Ts and Cs unless they have said the same thing then it is difficult to know who has priority.  Sorry.

2. They can only be varied in writing.  This will stop your customer moving the goal posts.

3. Payment is due in say 14 days.  Otherwise, legally, when is payment due?

4. The customer relies on his own judgment and inspection and not on any representations made by your company.  Especially any salespeople presently working for your company.

5. The price is exclusive of tax.

6. You do not bear responsibility for late or non-delivery however much trouble it has caused your customer.

7. You try to get the order right but you can’t get good staff and your customer should check it just to make sure.

8. If there is defective workmanship then your customer must report it within 7 days or you will not make a refund or replace it.

9. Your customer does not own the goods until you are paid.  Will a condition like this work?  Who knows? But it  is worth a try.

10. You say which law and courts apply to any dispute otherwise you could find yourself in the Bulawayo  Magistrates Court.

11. Installation is extra.

12. Cancelling is only allowed with your consent and even then incurs a cancellation fee.

13. Returned goods must be in good condition.

14. If your product causes injury and damage then as far as the law allows, you are not responsible.

15. No assignment of the contract to someone else.  This means that you choose who your customer is.

16. Interest is payable on late payment.

17. Quotations expire after 30 days.

18. Alterations and additions cost extra.

19. Any claim is limited to the price that your customer paid.

20. Copyright and other intellectual property rights relating to your product remains with you.

Some of you may be worried that effectively drafted Ts and Cs could be seen by your customers as:

a) Petty and nasty.

b) A declaration that you do not trust your customer and will sting them when you have the opportunity 

However in reality your customers will not read them and the good customers need never find out how draconian your Ts and Cs really are. If all else fails blame your lawyer, that’s what my clients do.

A small claim, you can put down to experience but a large claim may devastate your business.  In reality, your Ts and Cs will lie dormant and will not be used very often, if at all.  However, they may avoid you being sued.

On the positive and fun side you can literally lay down the law to your customers.  You can say things in Tc and Cs that you would never say to a real customer and what is more you can get away with it.  You can even have the satisfaction of letting your customers off the hook if they fall foul of your Ts and Cs.

One last thing, you must demonstrate that you have taken steps to make your customers aware of your Ts and Cs before they enter the contract.  If not, then they do not form part of the contract.  Therefore, do not put them on the back of the bill.

Are Ts and Cs better than sex?  Well not as far as I recall, but they are certainly up there.

© Paul.Brennan 2014. All rights reserved.  

 

 

 

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Paul Brennan, lawyer

sponsored by Brennans solicitors - a Queensland, Australia law firm - Individual Liability limited by a scheme approved under professional standards legislation.
ABN 60 583 357 067
email: info@brennanlaw.com.au

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