One of the fundamental legal protections in your business are legally drafted Terms and Conditions. Nevertheless, many private practice practitioners are reluctant to invest in obtaining these legally robust documents and instead attempt to piece together their own from internet sources, or directly plagiarise legally drafted Terms and Conditions shared by colleagues.
This common practice often leaves practitioners unaware that they are inadvertently exposing themselves and their businesses to significant legal and financial risks. While the DIY route to creating your Terms and Conditions may seem like a shortcut, the potential consequences far outweigh any perceived benefits.
In this blog post, we will delve into the reasons why it is absolutely essential to have legally drafted Terms and Conditions, what key elements should be included to ensure robust legal protection, and how to obtain them lawfully without spending thousands.
What Are Terms and Conditions?
Terms and Conditions establish a legally binding contract between the parties involved. It outlines a variety of expectations and agreements that will govern the business relationship between yourself and your clients. By accepting or agreeing to these terms, individuals or business entities enter into a formal agreement that can be enforced in a court of law.
In private practice we may use Terms and Conditions to formalise an agreement of services provided by us (therapy, assessments, supervision, teaching or products) and to us (web design, virtual assistant services, accounting services or social media marketing).
Why Do I Need Terms and Conditions?
Terms and Conditions are a fundamental aspect of safeguarding your interests in your business, and they should be treated with utmost seriousness. You may find it necessary to enforce your Terms and Conditions in various situations. For instance, if a client fails to pay you for your services because they did not attain a specific outcome, or if you incur liability for damage costs to a building used for therapy sessions caused by a client's actions, having clear Terms and Conditions can be essential.
Similarly, if you've engaged a contractor who has accepted payment for services but failed to deliver as agreed, resulting in a financial loss for your business, your Terms and Conditions may provide you with the means to threaten legal action to seek recourse.
Consequently, having robust Terms and Conditions in place significantly reduces the risk of legal action. In the event that someone does contemplate suing your business, having clear and legally sound Terms and Conditions serves as a strong deterrent, as their legal representative is likely to advise them that your terms are unambiguous, making a successful lawsuit against you highly unlikely.
Therefore, properly legally drafted Terms and Conditions document could save you thousands, and potentially protect you from bankruptcy in the worst case scenario. However, many private practice practitioners hesitate to invest the time and money in adequately protecting their business with legally drafted Terms and Conditions.
Can I Create My Own Terms and Conditions?
While it is possible to create your own Terms and Conditions, doing so effectively requires specific skills and expertise to ensure robust legal protection. This expertise involves a comprehensive understanding of the law, a careful choice of wording for individual clauses within your Terms and Conditions, and an ability to anticipate how these clauses might be defended or challenged in a legal context.
Secondly, these documents are designed with specific legal wording and a cohesive structure to ensure comprehensive protection. Some clauses within the Terms and Conditions may relate to each other or may provide protection if other clauses are challenged or rendered invalid during court proceedings. Legal cases have shaped the wording of these documents, making the expertise and knowledge of legal professionals crucial. Therefore, copying and pasting sections of legally drafted Terms and Conditions is not an adequate substitute for a properly drafted Terms and Conditions document.
Thirdly, copying or using Terms and Conditions, whether from the internet or a colleague, can lead to copyright infringement issues. Properly legally drafted Terms and Conditions are protected by copyright, and unauthorised use can result in legal action. Many lawyers or creators of such documents have software that enables them to detect the unauthorised use of their intellectual property and you could find yourself being sued by them for infringement of their copyright. Not only could this cause you a lot of stress but it could cost you a lot of money.
Fourthly, using AI such as ChatGPT to create your terms and conditions is not advised as Chat GPT is out of date with caselaw, it tends to assume you are in the US and it is unlikely to have the legal expertise to ensure watertight terms.
Therefore, as most individuals lack such legal expertise, attempting to create your own Terms and Conditions can inadvertently expose your business to significant legal and financial threats.
What Should Be Included In Terms and Conditions?
Introduction: A clear and concise introduction that states the purpose of the Terms and Conditions and how they apply to the agreement.
Definitions: Clear definitions for any terms or jargon used throughout the document to eliminate ambiguity.
Parties to the Agreement: All parties involved in the agreement must be clearly identified, including their names, roles, and contact information.
Scope of Services: A description of the services being provided, including their specifications, quality standards, and any limitations or exclusions.
Pricing and Payment: An outline of the pricing structure, payment terms, due dates, and accepted payment methods. Include information about taxes, fees, and any additional costs.
Delivery and Performance: Delivery methods, timeframes, and any conditions related to the provision of services or goods.
Cancellation and Refunds: The conditions under which cancellations are permitted, any applicable fees or penalties, and the process for requesting refunds.
Intellectual Property: If applicable, clarification of ownership rights for intellectual property (e.g., copyrights, trademarks) created during the agreement. This may be key for any materials you are sharing with clients that you have created, and with people working in your business such as a Virtual Assistant or Web Designer.
Data Protection and Privacy: In accordance with data protection laws (e.g., GDPR), detail how your business will collect, store, and use the personal data of relevant parties. You can do this by providing a link to your Privacy Notice in your Terms and Conditions. This will also serve to evidence the version of the Privacy Notice provided.
Liability and Limitation of Liability: The extent of liability for both parties, including limitations and exclusions. These clauses define the extent to which parties are responsible for losses or damages (e.g. liability for client damage to your rented office, or personal injury liability for your client).
Dispute Resolution: Outline the process for resolving disputes, such as mediation, arbitration, or litigation.
Termination: The circumstances under which the agreement can be terminated by either party and the associated notice periods or penalties. A cancellation form for consumer contracts.
Governing Law: The jurisdiction and governing law under which the agreement is to be interpreted and enforced. This ensures that both parties understand the legal framework that applies to their agreement.
Amendments: An explanation of how changes to the Terms and Conditions will be communicated and implemented.
Force Majeure: A clause addressing unforeseen events or circumstances beyond the control of the parties (e.g., natural disasters, strikes, or government actions) prevent them from fulfilling their obligations and the implications for the agreement.
Notices: How official notices and communications between the parties will be conducted.
Severability: A clause stating that if one part of the agreement is deemed unenforceable, the rest of the agreement remains in effect.
Entire Agreement: Confirmation that the Terms and Conditions constitute the entire agreement between the parties and supersede any prior agreements or understandings.
Waiver: A statement that a failure to enforce any part of the agreement does not constitute a waiver of rights to enforce it in the future.
Survival: Clarification of which clauses or obligations will continue to apply even after the termination of the agreement.
Signature and Acceptance: Outline how the parties accept and agree to the Terms and Conditions. In digital agreements, this may involve electronic signatures or clickwrap agreements.
Obtaining Legally Drafted Terms and Conditions
So you recognise the necessity for legally drafted Terms and Conditions for your private practice, but how do you obtain them? Below, are the various options you have for accessing legally drafted Terms and Conditions.
Hire a Lawyer
The most reliable way to get legally sound Terms and Conditions tailored to your specific business is to consult with a solicitor or lawyer who specialises in contract law. They can draft or review your Terms and Conditions to ensure they comply with UK laws and are suited to your business needs.
The Pros: Terms and Conditions that are bespoke to your business without you needing to learn the legalities around them yourself as you would with online templates. The lawyer should have a good understanding of what you need to protect your business.
The Cons: Likely to be the most expensive option for creating Terms and Conditions and not absolutely necessary unless you think you are at high risk of litigation.
Online Pre-Drafted Templates
There are reputable online platforms that offer pre-made legal templates, including Terms and Conditions, for businesses. These templates are often drafted by legal professionals and can be customised to your requirements. Examples of such websites are:
The Pros: These can be free or very low cost, and will provide you with the licence to use such templates. Some versions may walk you through a checklist to tailor the Terms and Conditions in a general sense to your business requirements. Some may offer a drafting service to tailor the documents for a fee.
The Cons: Sites may provide you with little or no guidance as how to tailor these for your business. The templates provided would not constitute formal legal advice and protection for your business.
Lawyer Template Legal Packages
The next level of legal protection is to purchase legally drafted templates from lawyers who specialise in small businesses and may provide some direct guidance on how to tailor these documents for your business as part of the package. This may be a midway point between accessing the pre-drafted templates from online websites and accessing a lawyer to create bespoke Terms and Conditions for your business.
Suzanne Dibble, Lawyer and Data Protection Expert
Total Legal Protection Programme £997 + VAT (£1196.40)
This programme provides the full range of legal protection for your business to include:
Over 120 template documents
Over 120 video guides
8 week mini law school
Special coaches and consultants module
GDPR documents and website compliance
Employment and Contracting
Terms and Conditions
Intellectual Property Protection
Business structures guidance
Finance and getting paid
Updated with the changes to law
Direct access to Suzanne (Savvy Shay Business Club Members only)
The Pros: This programme is a comprehensive programme with numerous training videos so you can learn the legal basis for the documents, and understand what the terminology means, what certain clauses mean and how to combine them. It also involves live consultation sessions with Suzanne to help you to adapt the Terms and Conditions for your business.
The Cons: There is a considerable amount of content to consume to fully understand the process, so it is worth engaging in this when you feel you have the time and headspace to really dedicate to it. The advice given is general legal advice that can be adapted to your personal circumstances but Suzanne holds no liability for this to be considered bespoke legal advice and is clear that she is not acting as your solicitor in such cases, as this would incur an additional fee to fully understand your case.
**Affiliate commissions: I earn affiliate commissions from Suzanne Dibble products and services but this does not affect the price you pay.
Tash - Lawyer at The Orchard
Tash is a lawyer with corporate and commercial legal experience who specialises in helping coaches and consultants establish their legal systems for their businesses.
(Membership) Legal Hub for coaches £890 pa or £89 p/m
Legal Essentials Bundle £297
Individual smaller bundles £97 each
Pros: Easily downloadable legal templates to cover all of the main areas of running a private practice business. This also includes a video to guide you through how to use the templates. She also offers a more in-depth membership which provides templates along with coaching and masterclasses.
Cons: The templates alone will not be tailored to your business and you will need to adapt these to your particular business needs. However, the membership programme will likely help to address this with coaching and masterclasses.
*CONTENT DISCLAIMER
The information contained above is provided for information purposes only. The contents of this article are not intended to amount to financial advice and you should not rely on the contents of this article to make decisions for your business. Professional advice should be obtained to explore your personal circumstances before taking or refraining from taking any action as a result of the contents of this article. Dr Sarah Simmonds, Trading as The Private Practice Suite disclaims all liability and responsibility arising from any reliance placed on any of the contents of this article.
** AFFILIATE DISCLAIMER
I recommend products and services that I have used myself or I have reviewed and believe to be helpful. Links marked with ** earn an affiliate commission for my recommendation of them to you. I ask that if you found this blog post helpful then I would value your appreciation by use of my specific referral link at no extra charge to you. Alternatively, if you do not wish for me to receive affiliate commission on such products then you can search for the links via traditional search engine or via links provided by others.
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