“No!” says director of Commercial Law at Thursfields Solicitors, Stuart Price.
Rarely does a week go by without a potential client asking me to review their terms and conditions to make sure they are “legal”. I’ve even been asked to “underwrite them”. Naturally, being the diligent lawyer I am, I ask who prepared their terms. Almost without exception, the answer is the same – they have copied them from another company that sells similar goods and services and “changed them a bit”.
This is then the point in the conversation where I politely refuse to review or make changes to these terms, and offer to prepare a new set of bespoke terms, tailored for their business. There are very good reasons for this advice.
First of all, copying someone else’s terms and conditions and using them in your business is certainly plagiarism, but more critically, it’s an infringement of copyright. Yes, business terms and conditions might not be the most creative piece of prose, but they still fall under the definition of literary works and as such, are protected in law, in the same way as a book, a painting, a photograph or a piece of music. Try copying a John Grisham book, putting your name to it and selling it, and see how long it is before you get a nasty letter and quite possibly a court order from his publisher’s lawyers demanding you “cease and desist”. The legal position is no different. It might not even be the company from whom you copied the terms who will be on your case too. Copyright is owned by the creator of the work, which is not necessarily the person who is using them. You might therefore be pursued by someone you have never heard of wanting compensation for your infringement of their copyright.
Secondly, what about the reputational issues? I know, even I question sometimes why I have spent a sizeable amount of my legal career writing “small print” that no one reads. The thing is, people do read it, particularly where there is a problem, and axe to grind or a story to tell. I know this situation arises, as clients call me when they find that their terms have been copied, typos and all! Do you still think the risk is small? Who could forget the infamous Brexit story concerning Seaborne Freight. This was a company that was awarded a large contract to provide freight services in the event of a no deal Brexit situation arising. Famously, it was reported that their terms and conditions invited its customers to “thoroughly check the supplied goods before agreeing to pay for any meal/order”. Queue global humiliation.
Thirdly, I always quite fancied a trip to California and maybe one day I’ll have the opportunity to visit for work purposes, I’m sure. Why? Well, you will be surprised at the number of UK based business who, having copied someone else’s terms, will find themselves litigating their disputes in California, having expressly said this in their terms which they had only “copied and changed a bit”. I’m all for getting a tan, but going to court in the United States is not for their fainthearted.
Humour aside, your terms and conditions form the cornerstone of your relationship with your customers, and are the foundation upon which your business is built. Getting them wrong will inevitably lead to disagreements with your customers, non-payment of your invoices, exposure to risk and quite possibly end up in court. Furthermore, all businesses are unique in some respect and you cannot say that the business whose terms you have “been inspired by” is identical to your business in all respects. Your terms must reflect your business, not someone else’s.
It really is worth asking your solicitor (or me!) to prepare a bespoke set of terms and conditions rather than facing the costs and consequences arising from being on the receiving end of a copyright infringement claim, global humiliation or cross jurisdictional litigation.