Terms and Conditions

Drafting standard terms and conditions requires a large amount of input from the business they are created for, as the terms should reflect how it operates. For example, how orders are placed and confirmed, how delivery takes place, payment and credit terms and any warranties or guarantees a business may wish to provide to its customers.

Replicating the business T&Cs of another business carries the risk of infringing that business’ intellectual property rights and may result in a business operating on terms which are inappropriate or inconsistent with its own purposes and, in some cases, terms that do not even reflect the goods or services to be provided.

Standard terms and conditions can help streamline contracting processes by reducing the time and cost spent negotiating contracts. Businesses who operate on standard terms can ensure that they are largely contracting on a harmonised basis, thereby alleviating the administrative burden of monitoring various contracting terms for each transaction.

By implementing thorough internal procedures and mechanisms, businesses can ensure that contracts are concluded on their own terms and conditions, which are more favourable to their position as either suppliers or customers.

When operating on standard terms and conditions, suppliers are subject to greater restrictions on their ability to exclude or limit their own liability. The risk is that unfair terms may be unenforceable in their entirety.

Standard consumer T&Cs may not always be appropriate, particularly where deviations from standard positions are required for example if bespoke services, projects or goods are to be provided or specific commercial terms have been agreed upon, or where both parties have differing intellectual property rights that need providing for in the terms.

Standard terms and conditions can be drafted to be “customer-friendly” or “supplier-friendly”. Therefore a customer can have their own terms and conditions governing how suppliers provide their goods, services, or digital content. “Customer-friendly” terms and conditions will place a greater standard of service delivery or quality of goods on the supplier and include more favourable payment and credit terms for the customer.

Customers can attach to their purchase order form (or reference by hyperlink to their website) their standard terms and conditions when placing an order with a supplier. However, customers seeking to operate on their own terms and conditions should ensure such terms are incorporated into the contract. Many suppliers will wish to operate on their own standard terms. Customers must therefore take steps to ensure that their terms take precedence; our terms and conditions lawyers can help.

Whether a business contracts with its customers online, via the telephone or email, on a doorstep basis, or from a bricks-and-mortar shop, will determine how the contract with that customer comes into effect, and what laws and regulations apply to the contract.

Businesses operating via a website only (e-commerce) should ensure that they have e-commerce terms and conditions in place. E-commerce terms contain terms unique to the online selling of goods, such as how the order is placed and accepted, how payment is made, and how and where the customer is entitled to cancel their order.

Online businesses selling goods to consumers should also consider implementing a privacy policy and cookies policy to aid compliance with data protection law. More information on E-commerce can be found here; contact our terms and conditions lawyers if you need help with your business T&Cs.

For your standard terms and conditions to govern the contractual arrangement between your business and your customers, they must be incorporated into the contract. You, therefore, need to implement processes that bring your terms and conditions to the attention of the other party(s), and that such terms are accepted by the other party(s).

With many businesses now operating by attaching their standard terms and conditions to their purchase order forms or quotations, or by including a hyperlink to their terms on their website, the risk of failing to properly incorporate terms has increased. This should be monitored regularly to address the risk such approach poses.

Further information on operating on standard terms and conditions and mitigating risk can be found here.