What Every Business Owner Should Know About Terms and Conditions

Your business is probably one of around 80% of UK’s enterprises whose customers expect goods or services to be offered on credit. By this I mean your customers are likely to pay for your products following delivery, say, 30 days after invoice date.

Unless you are in the retail sector, one of the risks you face is the possibility of of late or non-payment by clients. Our Late Payment Tracker confirms that late payment continues to be a significant business problem even after some recent slight improvements.

Data from the UK Government’s Annual Small Business Surveys (ASBS) since 2003 and Small & Medium Enterprise (SME) Business Monitors from December 2008 to September 2009 was analyzed to form our Late Payment Tracker. It shows that some 26% of SME employers still regard late payment as a ‘Big Problem’.

There’s a broad correlation between the incidence of late payment and the rapid rise in company liquidations seen since Q1 08 as reported by the UK Government’s Insolvency Service.

This link is directly confirmed by the EU Commission for Enterprise & Industry which states that one in four of all insolvencies is due to late or non-payment. Furthermore, 56% of all SME’s with employees regard late payment as one of the top two causes of cash flow difficulties (Sep 09 SME Business Monitor).

It’s clear that late & non payment of your invoices by both commercial and individual debtors could have a major detrimental effect on the financial health and survivability of your business. Anecdotally, owners of several mature businesses tell me that the days of doing business on a handshake are fast disappearing.

Thankfully an important business problem has an equally effective and relatively low-cost solution. It starts with creating terms and conditions for your business written from a credit management perspective. Properly drafted, your business terms and associated client documentation can help to ensure that your invoices get treated with priority by your customers.

Costly solutions such as credit insurance and credit factoring have their place, for sure. But our advice is to sort out the basics first.

Sound business terms and conditions can make a huge difference to your cash flow because:

– They help prevent late payment by your customers or debtors

– They can give you real options in case of non-payment by your customers

How can terms and conditions prevent late payment?

– Essentially, they help to swing the pendulum towards favoring your business rules i.e. strengthen your statutory rights which have been eroded by a succession of changes to The Sales of Goods Act, Supply of Goods & Services Act and the Data Protection Act in the recent past.

– They help to better define the business relationship with your customer leaving fewer opportunities for ambiguities and less wriggle-room for delinquent debtors.

– If used with relevant client documentation such as a Credit Account Application, they can tie your new clients to your business rules (i.e your terms) terms and simultaneously identify your new customers more thoroughly. One of my clients recently lost more than £20k by missing out this simple step of identification; we couldn’t recover the debt because the debtor company had gone into liquidation. Verifiable information is vital to perform a simple credit check, particularly on new clients.

– Accurate credit information about your client then enables your business to adopt different payment and delivery terms for those clients who are not fortunate to have a good credit history.

– Well-worded terms and conditions can reduce the incidence of misunderstandings with your clients. They can also place a time limit on defects thereby reducing spurious client disputes raised to avoid or delay payment.

– But better than this, if fully employed and leveraged in your businesses’ day-to-day credit management procedures, your terms will enable you to massively improve your business’ cash flow.

How can terms and conditions reduce non-payment?

– Title and Retention of Title clauses, again if professionally worded, can help your business reclaim goods if your client goes into liquidation.

– If you have peppered your terms with appropriate Consequences of Default type clauses, then you or your collection agency can chase your delinquent debtors harder. Because what you can say to your clients when chasing them for payment is governed by what is written in your terms.

– If a debt does require attention by a professional collector, there’s a greater chance of collecting that debt due to the strength and clarity of your legal position afforded by the strength of your terms and conditions.

So why not provide your business with a legally-enforceable shield that not only protects your cash flow but has the potential to boost it too; preferably a shield that works and one that is custom-made for your business.

Home Warranty Insurance – Read and Comprehend the Stated Terms and Conditions

A home warranty is a deal that is frequently provided by major real estate agents to make sure that you will obtain your money’s worth behind one of your most major purchases – your home. Here, an agreement is signed between you and the agent or party where you purchased your home.

Any breakdown in the major systems in your home during the time specified in the warranty contract will be replaced or fixed by the warranty insurance provider. Therefore, the home warranty is one of the best methods to make sure that your real estate will be an investment worth the time and effort you have exerted to obtaining it.

By the name of it, a lot of people misunderstand home warranty as some warranty that covers everything (including interior, house structure and even paint). In actual fact, it is only an insurance for your home appliances. The home appliances consist of fans, air conditions, heaters, oven, washing machines and other domestic devices.

Home warranty generally comes into the consideration at the time of sale, although it has no real implications, a home warranty from the seller or real estate agent can enhance your peace of mind as a home purchaser. Only because the name is heard mostly at the time of sale, it doesn’t indicate you can’t have one for the homes you are living in for years.

For a lot of people it is simply comforting to know that no matter what takes place, from a heater going bad to an air conditioner breaking down, everything in the home is always covered and will be replaced at a very nominal charge if anything should go wrong.

If you make a decision to get a home warranty, be extra vigilant in reading and understanding the stated terms and conditions on the contract deal. You will be unable to challenge or dispute the policy once you have signed the contract and made imbursement.

The term of a home warranty is typically one year, thus you will have coverage for that period of time. Hence if you should make a decision to sell your home, you should allow the buyer know when it will need to be renewed, and leave it up to them to make a decision whether or not they want to extend it.

Contract Terms and Conditions: And the Many Misconceptions!

How often have you signed documents, acceptances, quotations and not looked at the small print? Many of us do not look at small print. We only begin to look when a problem arises and hope that the agreement protects us from a liability or gives us rights. More often than not, it is a bit late.

Common complaints we encounter from businesses about Ts & Cs are as follows:

We have a gentleman’s agreement and so we really don’t need any Ts & Cs, do we?”

Sounds familiar? And what happens when things go wrong? When clients are not paid, the first question we ask for is a copy of their Ts & Cs. Why? Because a written agreement provides evidence of what was agreed. For example, what the payment terms are and what the clients’ rights are. Proving a verbal communication and customary business practice is more difficult than a written agreement. Oral evidence and extraneous evidence of that “gentleman’s agreement” can only be admitted as evidence in very limited and specific circumstances.

“Clients complain about them or refuse to sign, so we don’t bother.”

Clients who expect high standards of service or quality of products will expect a good set of Ts & Cs. We have had clients who were told by their clients that their Ts & Cs were inadequate and lost the business. To address complaints such as these, the client ought to be told that the Ts & Cs are there to define their rights and provide them the protection they need. In the case of products, customers are usually concerned to know what the guarantee periods are or the after sales service is. In the case of consultancy services, they would want to know what the deliverables are, what their rights are to vary the terms of the services and consequences of an extension of time.

“We can simply download Ts & Cs from the internet or draft it ourselves. Why do we need lawyers to draft them? They are all the same.”

Very common! And, common errors include the wrong terms for the wrong business: for example terms for a business selling products will be different from those offering services. Even within a particular industry, different types of businesses exist and the scope of service may vary. For instance, 2 designers may offer different services. One may offer design only services. The other may offer design, sourcing and installation services. You can see that the terms will differ. Another problem is the inadequacy of protection as in the liabilities to be covered or excluded (incorrect use of warranties and indemnities), or the clarity of the terms themselves.

“Ts & Cs are too complicated. Don’t understand them. Can’t they be in plain English?”

If your Ts & Cs are complex, then have them simplified. If you don’t understand them, we will educate you. We believe in knowledge empowerment. Drafting agreements in plain English is possible to an extent. Some phrases, definitions and words have been heavily litigated on and are technically necessary to retain certain rights. For that reason, it is best to leave the lawyers to decide when plain English is or is not possible. You do not wish to be in litigation because of the lack of legal clarity either!

A final but cautionary note… If your business provides services and deals with individuals as well as other businesses, then it is necessary for you to comply with the Provision of Services Regulations 2009. This applies to large numbers of service providers including franchise consultants, franchisors, estate agents, insurance agents, IFAs etc.

Conclusion:

Your Ts & Cs set out the rights you have and give you the protection your business needs. In the event of a claim, the written agreement evidences your rights. Without it, you will incur large legal costs just to prove the terms that you contracted on.

Action Plan:

• If you have no Ts & Cs, get them.
• If you have them and they are complicated, simplify them. Make them client-friendly and easy for clients to buy into.