HM Insights

Ensuring Terms and Conditions Are Up-To-Date

By Natalie Wallace & Gemma Sichi

The global economy has been hit hard by the coronavirus pandemic and that is why now more than ever it is vital that you ensure your business is in the best position to cope with the effects of COVID-19.

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Given the current climate, it is important to give thought to your terms and conditions.  It may be easy to forget about these in light of everything that is going on right now but the terms and conditions you have in place were put there to give your business as much protection as possible.  This point is even more prominent now.

Force Majeure

You may have heard the term 'force majeure' being used a lot recently.  This is a clause which can prevent a party to the contract from fulfilling their obligations under the contract.  This clause will only come into force when a certain event or incident arises which is beyond the parties' reasonable control.  These events or incidents tend to be explained as 'acts of God', for example a hurricane or flood.    Have you considered whether your contracts make provision for force majeure clauses and whether the outbreak falls within the protection offered by the relevant clause? Having such a clause in your terms and conditions may well provide some contractual protection if you are unable to fulfil your contract.

In times like these everyone is looking to minimise cash expenditure and so trading on a well drafted set of terms and conditions can ensure that you receive payments that are due to you.  For example, detailed payment terms, retention of title, interest for late payment and other consequences for a failure to pay are all terms which can all be used to assist in recovering overdue payments. Cash flow is of utmost importance during this difficult time.

Consequences of a failure to comply

Have you checked the consequences of a failure to comply, including any rights by either party to terminate?  These are clauses within terms and conditions that could be used, however, it is important to remember that we will come out of this and maintaining good relationships with your customers is key to getting back up and running.  You should therefore consider trying to mitigate your losses.

Examples of mitigating actions could include using alternative goods or services suppliers where the usual one is unable to provide these, working remotely where possible and taking advantage of the various deadline extensions and assistance offered by the government. There may also be other express provisions in your terms and conditions which require parties to mitigate their losses in certain circumstances.

There are a number of things to consider and you should be aware of what is contained within your terms and provisions to ensure that you have robust provisions in place that you can rely on.  No two sets of terms and conditions are the same as each will be structured to meet specific company needs. 

Get in touch – we're here to help

Please get in contact with us at [email protected] and we can provide a free review of your terms and conditions.

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