Software developers

Self-drafted and ‘off the shelf’ contracts versus bespoke contracts – what’s the difference?

 

Self-drafted or general off the shelf contracts are not adequate for those businesses who want to manage their liability, a case from www.lexology.com (legal website that explores business issues and law) shows how self-drafted or off the shelf contracts just don’t manage the risk within a business and can lead to businesses issuing contracts that are simply unenforceable.

The High court found that an exclusion clause contained within the standard terms and conditions of an IT supplier was unenforceable leading to an award of damages of £110k in favour of the Client. The case (Kingsway hall hotel limited V red sky IT limit [2010] EWHC 965 (TCC). Legal firm RPC (www.rpc.co.uk) commented on this case saying, “from this case it was clear that there existed a clear disconnect between red sky’s standard terms and conditions and the manner in which red sky sought to sell their software.  Suppliers should ensure that their standard terms accurately reflect the sales and contract process. Any gap between the process envisaged in the standard terms and the actual process may result in clauses being unenforceable.  Standard terms and contract processes should be reviewed regularly with legal advisers to ensure enforceability and maximise their benefit”.

Click here to view or Bespoke contract versus self-drafted or off the shelf contract chart outlining the pro’s and cons.

 

Please sign here ….however please don’t ask me what’s in the contract.

 

It’s not uncommon for a client to sign a contract where the content is not understood, the origin of the information unknown or is drafted by an unqualified hand?  There are a variety of reasons for this; one of the key reasons is that legal services appear to be an expensive luxury rather than a must-have for your business.  Generally, this type of contract is unenforceable and this can cause a problem for both parties when a dispute arises.

The danger of contracting with an unenforceable contract is expressed in an article posted on Lexology, “Am I being unreasonable”? by legal firm Nabarro LLP, the article comments on the importance of a contract containing clauses that are reasonable and in-line with the Unfair Contract Terms Act 1977 (UCTA), “it is always been in a contracting party’s interests to consider the reasonableness of the contract clauses; take advice on whether the court would be likely to uphold the clause should it be subject to challenge”.   So knowing what’s enforceable and what’s reasonable defines the credibility of the contract.

Its key to remember that this is not just a legal issue but is a business issue, a think tank aimed at creatives/designers called Creative Latitude believe that the contents of the contract is a key client communication, “If we have to take a deep breath and are physically uncomfortable when we present the contract, that uneasiness is bound to be communicated to our client. The last thing you want to do is cause your client to see the worried look on your face and wonder, what the heck is in this contract”?

David Reilly, director at Create Ts and Cs commented, “Our client acquire bespoke contracts ratified by a solicitor so they know that the contract is enforceable (deemed reasonably).  It’s critical that their potential customer knows they have gone to the trouble to invest in a contract that is enforceable and protects both parties”.

Considering the investment of time and money to contact clients, coffees and lunches, sales systems and marketing campaigns, it makes sense to continue the good work and invest in a professionally written, assessable contract relevant to your business ensuring its ‘reasonable’ and ‘enforceable’ throughout. 

 

What our software developer clients are saying

We recently drafted a bespoke set of terms and conditions for PHP Developers, Malt Blue Ltd and they’ve been kind enough to blog about the difference and added value bespoke Ts & Cs have made to their business.

Now maybe it’s just a matter of perception in my own mind here; maybe it is. But ever since going through this process, the tone and quality of the interactions with clients has definitely gone up a number of notches. I see myself taken more seriously and remunerated as such.

But maybe it’s something else. Maybe, it was just coincidental timing – I don’t believe that. Irrespective of what it is, I know two things:

  1. I’ve had a good solid look and think about my intent in running a freelance business
  2. I’m more focused and professional in my conduct

This isn’t to say or infer that I wasn’t before. But going through this process changed me, because of all the topics that I started considering in such depth; which in turn, led me to consider other aspects of how the world sees my freelance business. Topics such as letterhead, email signatures, they way that I write and communicate with clients and so on.

Read the full post.

It’s always great when we receive such positive feedback from our clients.  How can we make a difference with how you perceive your business?  Contact us today.

 

Create Ts and Cs provide a bespoke set of Terms and Conditions for your business at a fixed price, this unique approach to individualising commercial Terms and Conditions allow Start up and SME sized businesses the opportunity to protect themselves, manage risk and guard against future unnecessary disputes at an affordable price. Download: terms & conditions | privacy policy