Even when a business has invested in professionally written terms and conditions, they still bring gripes later on in the business’ life.
A change in the law is the obvious trigger for updating terms and conditions, but it’s rarely the reason for an entire overhaul.
The most common gripes I hear are these:
1.They don’t reflect our business.
As businesses develop, many things change: products, services, delivery methods, administration and contracting processes as well as more strategic changes such as risk profiling and attitudes to risk. If the terms are written professionally, they are likely to “work” legally, but the issue is, ‘are they workable for the business’s current systems and ways of doing things?’ For example, it may be as simple as, the terms do not reflect the terminology of the business anymore. Or, the way in which the services/product mix is delivered may lend itself to a change in the structure of documentation (e.g. a framework arrangement might be appropriate). New products may mean new risks, that need to be considered/ covered.
2.Nobody in the business understands them
f the terms don’t reflect the business, then it will inevitably be harder for non-lawyers handling them who may at least feel some comfort from seeing some familiar commercial terminology. Of course, it may also just be a training point. The terms are more likely to make perfect sense for the person who has benefited from discussions with their lawyer. That process alone delivers discovery and learning benefits. Training the business to aid familiarity with terms can increase contract handling efficiencies and reduce frustration.
3.They are heavily negotiated
Terms that are properly written will protect the business which will conversely mean that this is to the detriment of the Client’s legal position, which will invite negotiation. In all fairness, the extent to which the terms are negotiated are us much to do with the client base as the terms. Clients who have bargaining power, resources and are risk-aware will negotiate terms to mitigate the risks associated from doing business. Some lawyers are pragmatic and will deal with the big points and some will take the tedious approach of re-writing the whole bloomin’ lot!
There are many reasons why negotiations are painful (another blog for another day). Still, it is possible to strategise and create policies for negotiation handling rather than keep reinventing the wheel each painful transaction after each painful transaction!
Key to all of these gripes is mapping the business’ current business requirements to the terms and updating them and reviewing the documentation structure if necessary. It’s often an opportunity to discuss negotiation bugbears and re-align the business’ commercial and legal positions.
The icing on the cake will be to ensure contract handling systems, both internally and with external lawyers facilitate (and don’t frustrate) progress!
If you would like to discuss in more detail, please contact Tracey today: firstname.lastname@example.org or call 01202 729444.