WHAT SHOULD YOUR TERMS AND CONDITIONS INCLUDE?

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Grace Fowler
8 years ago
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1 WHAT SHOULD YOUR TERMS AND CONDITIONS INCLUDE? The date of the contract. The names and addresses of the parties. When the contract is to start. Duration? Fixed term or ended by notice? Set out the background to the contract, called recitals. Define any common words/phrases that are regularly going to used in the contract. Set out the main obligations, e.g. to supply the goods/services how, when and where, how much, how payment is to be made and when. Set out the secondary issues, e.g. warranties and liabilities. Set out the miscellaneous clauses, known as boilerplate clauses, e.g. entire agreement, notices, jurisdiction and force majeure. Schedules - these set out what s to be done. Signatures. Make sure your payment provision mentions whether it includes VAT, when and how payments are due, whether interest is payable, if time of payment is of the essence and whether any deductions for set-off are allowed. When it comes to liabilities and indemnities, consider whether risks can be insured against, whether or not the price reflects any risks being taken, whether any inducements are offered, the size and strength of each party to the contract. Specify how any notices are to be given, e.g. in writing, first class post, etc. Your force majeure clause should contain events that excuse you from performing the contract, e.g. Acts of God, strikes, wars, etc. Think about whether you ll allow the contract to be assigned to someone else. If not, say so. Be aware of implied terms affecting the contract, e.g. the Sale of Goods Act, the Supply of Goods and Services Act etc. They will apply automatically unless you try and exclude or modify their provisions. Be aware that if you exclude liability, the contract will be subject to the Unfair Contract Terms Act, so any alterations must pass the reasonableness test. Specify instances where the contract can come to an end, known as conditions. Be careful about using phrases such as best endeavours, reasonable endeavours, all reasonable endeavours etc. without either knowing what they mean or being able to perform the obligation. You re still required to make an effort to meet your contractual obligations. Address what s to happen to your goods if they re not paid for, e.g. a retention of title clause. Make sure that any retention of title clause makes it clear which goods are subject to any retention, that you retain the right to have access to any premises to recover them (it doesn t include entering a third party s premises), that the goods can be identified by batch number, etc. 143

Set out the secondary issues, e.g. warranties and liabilities. Set out the miscellaneous clauses, known as boilerplate clauses, e.g. entire agreement, notices, jurisdiction and force majeure.

2 HOW TO INVOICE Make sure all the company s details, e.g. full name, registered office, registered number and where incorporated, are shown clearly. Look at the contract/correspondence to check whether the amount is inclusive or exclusive of VAT. Ensure it s dated. State whether interest is payable, at what rate and when. Make sure the customer s details are correct, e.g. are they a limited company? Check by looking at the contract/correspondence that payment is due. Particularise what the payment is for. Enclose a covering letter with the invoice and spell out when payment is to be made, e.g. within 30 days from the date of invoice, etc. Make a diary note to remind you when payment is due. 144

Make sure the customer s details are correct, e.g. are they a limited company? Check by looking at the contract/correspondence that payment is due.

3 HOW TO GET PAID ON TIME Make sure you invoice as soon as the contract is completed. Ensure you state clearly when payment is to be received and how. Draw attention to any credit terms and conditions. Flag up the repercussions of late payment, e.g. interest. Consider an incentive for early payment. If complaints or issues arise, don t assume they re spurious and ignore them. Investigate any complaints or issues promptly and respond in writing, keeping copies of all correspondence. If a large amount is involved, consider making a courtesy telephone call to check that everything is in order, e.g. they ve received the invoice and there are no outstanding issues. 145

If complaints or issues arise, don t assume they re spurious and ignore them.

4 MANAGING CASH FLOW Get your customers to pay on time. Ensure all customers are aware of your standard payment terms. Issue invoices promptly and ensure that you regularly chase up late payers. Consider offering a discount for early payment. Consider taking deposits and/or accepting stage payments for large sums. Use factoring/invoice discounting. Look carefully at your ordering policy and don t over order stock. Consider leasing rather than buying equipment. Consider asking for extended credit terms from your suppliers. Keep a regular cash flow forecast. Decide on the period for your forecast, e.g. weekly, monthly. Include in your forecast list: receipts, payments, excess of receipts over payments, opening bank balance and closing bank balance. 146

Consider taking deposits and/or accepting stage payments for large sums. Use factoring/invoice discounting. Look carefully at your ordering policy and don t over order stock.

5 HOW TO FACTOR YOUR DEBTS Decide on the type of debt factoring, e.g. recourse factoring and non-recourse factoring. Approach more than one factoring company before making a decision. Contact the Asset Based Finance Association to obtain a list of factors and compare services and quotes. Ask to contact and speak to some of any potential factoring company s customers. Ask for details of their record in collecting debts. Ask how the factoring company operates and obtain as much detail as possible. Ask how they handle queries and disputes. Ask if they have any experience of your type of business. Find out what happens if a customer exceeds their credit limit. Find out how the agreement can be ended and how much notice is required. Check the factoring contract first before signing it. Check the rate of interest - it will be anything from 1.5% to 3% above the base rate, calculated on a daily basis. Check the credit management fee and administration charges. These will be anything from 0.75% to 2.5% of your turnover. If you opt for non-recourse factoring, check the credit protection charges. These range from 0.5% to 2% of your turnover. 147

Ask for details of their record in collecting debts. Ask how the factoring company operates and obtain as much detail as possible. Ask how they handle queries and disputes.

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