ImagesMagUK_July_2021

BUSINESS DEVELOPMENT www.images-magazine.com 22 images JULY 2021 My terms and conditions need a bit of an overhaul – do you have any advice? H aving proper terms and conditions of sale can provide vital legal protection to businesses in the print and embroidery industry. Many of the issues which arise when a business does not have decent terms and conditions that truly reflect how they work, are classic commercial problems that come up time and again in the courts. Getting the timing right The most obvious issue to address is have the terms actually been incorporated into the contract between supplier and customer? The answer comes down to the timing of the terms: if the terms were included in the quote and were agreed before the supply started then they will form the contract terms. If, however, as is common, the terms are printed on the back of an invoice which is not sent until after the supply of goods has started, then these will not form part of the contract. Instead, the terms will be the quote and any ‘custom in the course of trade’ – things that usually happen between traders in this kind of relationship. This classic legal scenario is called ‘the battle of the forms’. Different T&Cs for different folk When providing both bespoke and standard prints, businesses should ensure they have two different sets of terms and conditions: one for supply to businesses such as high street shops, business, sports teams, etc, and one for supply to consumers. Consumers are protected by a high level of rights under the Consumer Rights Act 2015, but there is no need to extend these protections to businesses who are assumed under the law to be able to negotiate and understand their legal position in a more sophisticated way than consumers can. This means businesses have fewer rights under statute, but they can negotiate their own protections. For terms and conditions when supplying businesses, key terms that will help the supplier include what happens if an unexpected event such as a flood or fire prevent the supply of the goods (known as force majeure); whether times agreed are ‘of the essence’, meaning they are legally binding, or are just a guide; and whether the risk in the goods passes on leaving the warehouse, or on arrival at the customer. Both consumer and business terms and conditions should deal with the cancellation or rejection of goods. This is particularly vital for traders that create bespoke pieces of work. There should be a clear agreement about the brief and how much creative licence the supplier has. What happens if the customer doesn’t like the work? Getting this clear at the beginning can avoid any unpleasant disagreements after the time and effort has already been invested by the supplier in creating a bespoke piece of work. Intellectual property rights Traders should also consider how they want to protect the intellectual property rights in the designs they create, and this should be covered in the terms [for more advice on intellectual property rights from Jowanna, turn to the business pages in the June issue of Images ]. For most printed items, copyright protects the designs automatically without any need for further action. Copyright cannot be registered under English law, but it can in other countries, so check the rules in the countries you are exporting to. There may also be design rights in the work which can be registered in the UK and other countries, so again, check this. Usually, a trader would want to keep the intellectual property rights in the design and supply only for the made item, with no rights over the design for the customer. Think of this like the purchase of a book – the author retains the copyright in the text of the book, but you buy the physical copy of the book, which allows you to enjoy the text, but not to copy it. You can, of course, resell your copy of the book, and this is allowed for creative designs as well under what’s called ‘exhaustion of rights’. Covering all these points carefully in your terms will help ensure you have the best intellectual property protections against copycat products. Expert advice on the business of running a garment decoration company Q&A Jowanna Conboye is intellectual property and technology partner at Spencer West, a leading full service international law firm advising businesses and individuals across the UK and globally. www.spencer-west.com