Business Contracts &
Terms of Trade

Making effective everyday business contracts will reduce the risk of disputes and bad debtors, improve cash flow and increase the value of your business.

The express terms of a contract make a huge difference when it comes to resolving disputes and dealing with bad debtors.

If you supply a trade or service on credit, having an effective solution for making everyday contracts is simply a must. It’s why banks and large companies always have comprehensive standard form contracts and why the form of contract is the first thing that any Commercial Litigation or Debt Collection Lawyer asks for.

How We Help

Our experienced Business & Commercial Lawyers assist contractors, suppliers and professional services businesses to make effective everyday business contracts by:

  • Drafting standard form Business Contract documents including customised Terms & Conditions of Trade,
  • Advice, training and assistance in relation to the use of standard form Business Contract documents by employees,
  • Drafting bespoke Business Contracts including continuing Construction Contracts, Subcontractor Agreements, Preferred Subcontractor Agreements, Supply Agreements, Distribution Agreements and Agency Agreements,
  • Reviewing and negotiating Business Contract terms and conditions, and
  • Registering securities over personal property on the Personal Property Securities Register (PPSR) and Caveats in respect of charges over real property.

Frequently Asked Questions

When does a Business Contract exist?

A Business Contract will arise when one party accepts another parties’ offer to perform work and/or supply goods or services for an agreed price (or at an agreed rate) and there is an intention to be bound by the agreement. Contract Variations can arise in the same way.

In most cases, a Business Contract (or Contract Variation) will exist regardless of whether the contract is in writing or evidenced in writing.

For any term or condition to form part of a Business Contract it must have been agreed at the time the contract (or variation) was made.

When particular terms have not been considered or agreed, terms can be implied by the Courts or by statute. Additionally, some terms of contracts are void and unenforceable as result of various legislation governing terms in different contracts.

Why use standard form Business Contract documents?

Standard from contracting documents are used by businesses to overcome uncertainty in relation to:

  • Offers including what is being offered, the price offered and the terms of the offer; by the adoption of standard forms of Quotations or Proposal referencing applicable Terms & Conditions of Trade,
  • When an offer is accepted and whether any acceptance is in fact a counter-offer; by the use of standard form Purchase Order or Acceptance Forms,
  • When a contract variation has been agreed and the terms of the variation; by the use of standard form Contract Variations,
  • The terms governing any continuing business relationship including credit limits; by the use of standard form Credit Applications incorporating Terms & Conditions of Trade, and
  • Whether the terms of the agreement are complete and enforceable; by ensuring that the Terms & Conditions of Trade have been prepared by experienced Business Lawyers and customised for your business.

Standard form contracting documents are also used to effectively incorporate business’ Terms & Conditions of Trade, which in turn strengthen business’ legal position and help to:

  • Comply with The Australian Consumer Law which governs aspects of both business and consumer contracts,
  • Comply with industry specific legislation,
  • Avoid disputes and incidental expense; through terms governing contract variations, extensions of time, unforeseeable events, and alternate dispute resolution procedures,
  • Reduce business risk and prospective liability; through exclusion clauses, limitation clauses and suspension clauses,
  • Reduce instances of bad debtors and debt collections costs; through terms creating personal guarantees, security for payment and rights to recover legal and debt collection costs, and
  • Reduce uncertainty in relation to when the contract can be terminated; through express termination clauses.

Simply put, businesses who to want make better every day Business Contracts should adopt and properly utilise customised standard from contacting documents and seek advice from Business Lawyers promptly when in doubt.

How are standard form Terms & Conditions incorporated into a Contract?

For Terms & Conditions of Trade to be enforceable they must be effectively incorporated into the contract by disclosure and acceptance prior to or at the time the contract is made. The earlier and more obvious the disclosure the more likely it is that the Terms & Conditions of Trade are incorporated into the particular contract.

Despite common practice, standard form Terms & Conditions of Trade cannot be incorporated into a contract by their inclusion on a Tax Invoice issued after the contract was made and when typically the goods or services have been supplied or partly supplied.

Therefore, standard form Terms & Conditions of Trade are only incorporated into and form part of a contract if they are disclosed to and accepted by the other party at the time the contract is made.

Effective incorporation of Terms & Conditions of Trade can be achieved by:

  • Providing Terms & Conditions of Trade to customers at the outset of a business relationship,
  • Using Credit Applications incorporating the Term & Conditions of Trade into all future contracts made with a continuing business customer,
  • Using Quotation and Purchase Order forms expressly referencing, acknowledging and accepting the Terms & Conditions of Trade, and
  • Making online Business Contracts with links to Terms & Conditions of Trade and mandatory acknowledge and acceptance check boxes.

Take note; as a general rule, the more onerous the clause, the greater the length the business must go to draw the clause to the attention of the other party.

What Securities can I obtain by using standard form Terms & Conditions?

1. Personal Guarantees

Businesses often extend credit to Customers without any security whatsoever. Your bank would not extend that sort of credit to your business without security in the form of a personal guarantee and/or Mortgage over real property, so why should your business offer credit to your Customers without security.

Personal guarantees should ideally be obtained whenever your business makes a Contract with a company or a sole trader. The Guarantees should be sought from the Directors of the company or the spouse of the sole trader, if any.

2. Real Property Security

Security over real property (land and buildings) owned by the Customer and/or any Guarantor. You will have the right to register a Caveat over the title to any real property owned solely or jointly by the Customer or any Guarantor in the event of a default by the Customer under an Agreement.

3. Retention of Title to Goods

If your business supplies goods, your Terms & Conditions of Trade can include a “Retention of Title” Clause entitling you to reposes goods that have not been paid for in the event of a Default. Following the introduction of the Personal Property Securities Act, a Security Interest must be registered on the Personal Property Securities Register for the retention of title clause to be effective in providing security (see below).

4. Personal Property Security

Security over personal property within the meaning of the Personal Property Securities Act 2009 (Cth), subject to registration of a Security Interest on the Personal Property Securities Register

How can standard Terms & Conditions of Trade assist me make a claim under the Building and Construction Security of Payment Act?

Each State and Territory has specific legislation governing the rights of parties to recover prompt payment for the supply of construction work or related goods and services. In New South Wales these rights are contained in the Building and Construction industry Security of Payment Act 1999 (NSW).

If your business carries out construction work or supplies related goods or services, the Terms & Conditions of Trade contain provisions that will assist your business to more easily serve valid Payment Claims under the Security of Payment Laws. In turn, this will assist you to utilise the security of payment regime to recover payment promptly when necessary.

Avoiding disputes and bad debtors simply makes cents.

Standard Form Business Contract Solutions

Our standard form Business Contract Solution is a tailored suit of easy-to-use legal documents that will help you make effective everyday contracts incorporating customised Terms & Conditions of Trade.

Fixed Price

Business Contract Solutions

Our standard form Business Contract Solution is a tailored suit of easy-to-use legal documents that will help you make effective everyday contracts incorporating customised Terms & Conditions of Trade.

Step 1 of 2

Step 1

Nature of Business
Check the box(es) corresponding to the goods or services the business provides.
eg Electrical services Contractor, Accountant
Describe each essential activity of the business and each means by which the business generates income.

What’s Included in our Business Contract Solutions

Our Business Contract Solutions are customised to suit every business. For most businesses they include:

  • Customised Terms & Conditions of Trade,
  • Quotation/Proposal Template & Purchase Order Form,
  • Credit Application Form,
  • Contract Variation Form, and
  • Personal Guarantee & Indemnity Deed.

For an overview of the documents commonly provided in our Business Contract Solutions, please see the User Guide corresponding to your business.

Guide to Making Effective Business Contracts – Contractors

Making effective everyday contracts is simply a must for contractors and suppliers.

Guide to Making Effective Business Contracts – Professional Services

Standard form contract solutions reduce risks of disputes and bad debtors and empower businesses.

Features & Benefits

You will strengthen your Contract Rights
  • Avoid and manage common disputes regarding scope of works, variations, price/rates, defects and rights to suspend and terminate contracts.
  • Dispute Resolution – avoid costs associated with litigation, where possible.
  • Know when you can validly suspend and terminate a contract.
  • Limit liability and disputes in relation to warranties, implied terms and misrepresentations.
  • Have the ability to obtain personal guarantees and security of payment.
  • Recover legal and collection costs where enforcement is necessary.
You will have essential Credit Management tools
  • Obtain consents required to order Credit Reports before accepting an Order.
  • Have the ability to obtain Personal Guarantees when appropriate.
  • Have the ability to obtain security for payment over real and personal property.
  • Proven Final Notice – Overdue Account Letter Template.
  • Recover interest at a commercial rate on late payments.
  • Legally charge overdue account default fees.
Improved Industry Compliance
  • Confidently serve valid Payment Claims under the Building and Construction Industry Security of Payment Act.
  • Obtain registrable Security Interests under the Personal Property Securities Act.
  • Obtain Privacy Act consents for credit assessment and debt collection.
They are easy to use
  • Look professional in the eyes of potential new clients.
  • Simple to follow User Guide will assist you and your staff to maximise the benefit of your Business Contract Package.
Additional Benefits
  • Make contracts that are assignable to prospective buyers.
  • Increase the value of your business to prospective buyers by reducing the number of bad debts and increasing profitability and cash flow.

I would recommend Sam and the Roberts Crosbie Mortensen team

“We worked with Sam from Roberts Crosbie Mortensen to develop a service level contract for use with our clients. Sam took the time to understand our business and worked closely with us to create a contract that was easy for our clients to read and understand while providing us with the required level of legal protection. I would recommend Sam and the Roberts Crosbie Mortensen team to anyone who is after a solicitor who will take the time to understand their needs and requirements or after a solicitor who can talk to them in plain English.”

Tristan Hough

Would highly recommend.

“Hamish from Roberts Crosbie Mortensen assisted us in updating our Terms & Conditions of Trade and quotation business package. Hamish listened to us and we were able to have everything finalised in a couple of days.”

Stephanie Kiddle

He explained all the jargon and made sure that I was covered in any ‘worst case scenario’.

“I had to get some Terms and Conditions drafted for my new business and was very pleased with the results. Hamish was able to work with me to integrate all of my terms into what is a rather complicated legal document. I definitely recommend them and would happily do business with them again.”

Michael Trent

I can confidently recommend Roberts Crosbie Mortensen before any other.

“Very happy with every contact I have had with Roberts Crosbie Mortensen, having dealt with a few law firms in Newcastle.”

Couldn’t be happier.

“We are a small start up business that found Roberts Crosbie Mortensen Lawyers through Google. We feel very lucky to have Hamish look after us as he has been extremely helpful. We are new to business and having been in small business himself he understands what we need. The fees are very reasonable also.”

James Kilby

I would strongly recommend (and have) for any friends or colleagues to use Roberts Crosbie Mortensen Lawyers.

“Being a business owner we have used Roberts Crosbie Mortensen Lawyers for several issues including setting up our business, Franchise agreements and even commercial leases. On all occasions the information has been prompt, accurate, reliable and understandable. On the back of this we have also used Sam and his team to do our wills and property purchases for all of our personal work. Again always reliable, contactable, professional and above reproach.”

Luke Stevens
Amber Tiles

I really like Sam Roberts’ article on Security of Payments.

“Too many commentators focus on the dispute provisions rather than the excellent process that Sam alludes to in his article. We are delighted to see contract clauses that encourage complying Payment Claims, as opposed to the current trend for “look around the corner” avoidance tactics. I commend Roberts Crosbie Mortensen’s approach to encouraging people to get it right up front, rather than wait until there’s a problem. It’s a breath of fresh air. We strongly encourage all businesses in the building industry to insist on using a complying process as a business-as-usual practice to protect their entitlements. To this end we have developed a unique software solution to facilitate the process.”

John Lowry
The Power Tool Pty Limited

Without you it would have been impossible to confront these multi-national corporate giants.

Toby Player
Bodyboard King

Businesses that proactively
address legal issues are more resilient, better prepared
and more profitable.

Understand your Top 5 Legal Priorities

Complete our 10-Minute Questionnaire and receive a free 40-Minute consultation with an experienced Commercial Lawyer to review your Top 5 Legal Priorities.

More Accredited Specialists in Commercial Litigation than 99% of all law firms in NSW.

Our Business Contracts Lawyers