Any business providing goods or services on a credit payment basis should have appropriate Terms of Trade recorded in writing and agreed before goods or services are provided on credit.

At a minimum, Terms of Trade should provide for a personal guarantee when you are trading with a company.

Where goods or services are provided to a business, then there should be an exclusion of rights under the Consumer Guarantees Act 1993.

The Terms of Trade should also provide for penalty interest if moneys remain outstanding and also for the recovery of costs if it is necessary to take enforcement steps, whether engaging a debt collector or the Court process.

Where goods are supplied, there should be a provision for retention of title so that title does not pass in the goods until payment has been made.  However, in order to make retention of title effective, it would be necessary to register a charge on the Personal Property Securities Register (PPSR).  This may sound daunting but it is a straight forward process.

The next issue is how you prove that your Terms of Trade have been incorporated into your contract.  The ideal is to have a written Terms of Trade that is signed by the customer and any guarantor.

The next best might be to have them on your website, but have an acknowledgement that identifies the Terms of Trade and acknowledges them as agreed.

Another option is to have your Terms of Trade printed on your invoices but that may not be effective for the first transaction where the invoice is not handed over until after the contract has been formed.

This advice is general in nature and we would recommend that you seek specific advice so that Terms of Trade may be tailored to your business.

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