This morning I am reviewing and updating some terms and conditions for one of my public access clients. I take the view that T&C are a bit like software in that they have to be maintained.   Like software, you never know for sure whether the T&C will perform adequately until they are in use. Sometimes “bugs” (that is to say, lacunae or ambiguities) come to light through circumstances that neither the draftsperson nor the client had anticipated.  When that happens, the bugs should be fixed at once.   I call that “corrective maintenance”.   I factor in a year’s corrective maintenance when I set my fee just as software houses give a 90 days warranty to their customers.  The other situation is that clients’ needs change from time to time – for instance, when they launch new products or services. I call reviewing and updating T&C to take account of changing circumstances “preventative maintenance.”  I regard preventative maintenance as a new job for which I can charge an additional fee.

I am usually asked to review T&C because a dispute has arisen.  A typical case is where a web designer has done some work for a customer and the customer wants to get someone else to finish the job. The question that arises is who owns copyright in the work that has already been done.  That should have been agreed between the parties before the work was started so the first thing I ask for are the designer’s T&C.  It is surprising how many businesses have no T&C at all or, if they do have some, they have been copied from those on a friend or competitor’s site which were themselves cobbled together from those of the local dry cleaner, airline and credit card company. Quite apart from the fact that T&C are literary works in which copyright can subsist and that knocking off the terms that someone else has paid for is no different from any other piracy, the terms that are designed for one business will not necessarily work for another.

A short drive from my home lies Sandal Castle which is now a ruin but which once had three lines of defence. A moat kept out most wild animals, vagrants and other marauders.   A curtain wall kept out more determined attackers who manage to cross the moat.   An inner bailey was the garrison’s last stronghold.   A well run business should manage risk in layers.   The first line of defence should be best practice.   Like the moat, that should take care of most problems.   It should be enough to make sure that claims rarely if ever arise.  The second line of defence should be insurance which ought to be as comprehensive as possible.  Just as the curtain wall sees off most of the remaining threats, insurance should cover the occasional slip up. T&C should be the last line of defence like the inner bailey of a medieval castle. It should manage the risks that cannot be insured against.   For example, drawing attention to the maximum cover that is available for a particular type of loss and then leaving it to the parties to decide how they are to manage that risk.

When a solicitor or businessperson instructs me to settle T&C I like to spend time with the client to understand how the business works and what will be his or her major risks.   I find out what practices and procedures are in place to deal with those risks.   I then ask to see the insurance cover which I scrutinize for limits and exceptions.  I then settle the first draft to take account of those risks, limitations and exceptions.   After delivering my first draft I have another chat with the client to see whether it meets his or her concerns and make any corrections that may be necessary.   After everything has been done I diarize calls in one month, three months and a year’s time to see how the client has got on and whether he or she needs any corrective maintenance.

Of course, that is a belt and braces job and there is a fee for that service which is rather more than other people might charge.   But then clients can rest assured that they have a job well done with the promise of amendments free of charge for up to a year should any be needed.   That is like a Saville Row suit and there is all the difference in the world between that and a hand me down.