When operating a business there are a number of legal documents you need to have in order to appropriately protect your interests. One of these non-negotiable, absolute requirements is your terms and conditions of trade.
Affectionately coined T’s & C’s, this is the document that will outline how your customers engage your services and/or accept your goods. This is probably the single most important document to have in your business, and it’s important that it’s legally sound and you don’t solely rely on a template you found on the internet.
Terms and conditions will, at a bare minimum, cover vitally important aspects of your client relationships such as the passing of risk, liability, payment terms, quoting, invoicing and warranties.
While there are openly downloadable Terms & Conditions online, many are lacking in specific areas like the following:
Security
Many open-source or free T’s & C’s are based on US or British templates. Accordingly, these documents often fail to appropriately protect the way in which your business can secure payment from its customers as these mechanisms are largely peculiar to Australia, and in some cases, a particular State.
One option that could be included could be rights under the Personal Property Security Register (the “PPSR”). The PPSRR is a national register where you can note your interest in specific personal property. For example, if you leased equipment to a customer, or sold an item for which payment was deferred, you would want to let the world know that you have a claim over that item, to prevent it being on-sold without your knowledge or taken by a liquidator.
Recovery of good/materials
You may have performed work or delivered goods to a customer only to be refused payment. If there is a clearly defined right of re-entry in the T’s & C’s, you can return to the site and lawfully recover the goods or materials.
Intellectual property
An often-overlooked term is the treatment of intellectual property. This is a complex area of law and may require specific agreements, but you can provide yourself a level of protection by including clauses in your T’s & C’s that clearly state how your intellectual property is to be used.
Dispute resolution
It can then save considerable time and money if there is a mechanism under your terms and conditions which directs a dispute through a mediation process before either party can commence litigation which can be costly in both time and money.
Force majeure
COVID-19 has been a reminder to all types of businesses as to how important the commonly ignored force majeure clause can be. Your terms and conditions should consider the circumstances, and the effect on the parties, where an unforeseen event renders certain contractual obligations impossible (or unreasonable) to complete.
All businesses are at least slightly different, some are vastly different from others. Your T’s & C’s should reflect your business and how you want to operate it, not a cardboard cut-out from the internet.
