Terms and conditions – win the battle

13 May 2019

We invest our time and money perfecting terms and conditions to suit our business needs, but many then unknowingly accept their counterpart’s terms through a “battle of forms”. So how can you win the battle?

Business contracts are rarely as neat as we would like, so exactly what is needed in each case will vary. The key points are that you should bring your terms to your counterpart’s attention during negotiations, not with an after-delivery invoice. If their order purports to rely on their terms instead, don’t be bashful – have the conversation about whose terms will apply or risk accepting theirs by your silence.

It is safest practice to send the actual T & C document to your counterpart. There have been cases where simply saying “Based on our general terms of sale” without including them has not been enough. Most importantly, remember the golden rule to always copy double-sided to avoid losing the terms and conditions you thought were overleaf.

It’s tempting to ignore the pesky small print when faced with the excitement of a new order, but the extra detail could avoid months of arguments on technical contractual interpretation – a certain headache saver.

Maxine Nutting is specialist Commercial Litigation solicitor, with particular expertise when it comes to commercial contracts. For expert legal advice, don’t hesitate to get in touch with her on 02380 820 531.