Terms and Conditions Advice Needed

[theatrcymraeglampy]

Hi All,

 

Just wondered if anybody could suggest any good solicitors that you have used in the past in drawing up your companies Terms and Conditions of business; that specialise in this industry?

[Jivemaster]

Draft out what you want to say then refer to a solicitor to check that your terms are fair and reasonable in the sense of the consumer trade legislation or business trade legislation. Get ideas from the back of contracts that you have received.

 

Trouble with T&Cs is that clients will often send you a purchase order with their T&Cs then you have to accept their terms or not do the job. Conflicting T&Cs mean that the solicitors make money sorting out the mess.

[stringman]

I have been told the two following things

one from a company director and one frome a solicitor ( so make of these what you will)

 

The last piece of correspondence to be received before the job (c/w with "terms and conditions apply") has the binding terms.

 

Terms and conditions have to be aggreed by BOTH parties and be signed by BOTH parties for them to be legally binding.

This was stated to me by my solicitor during a court case when the "client" claimed I had breached their terms and conditions and thus refused payment.

 

when it was highlighted that I had not seen said t&C let alone signed them the judge through that part of the case out of court.

[tony g]

Draft out what you want to say then refer to a solicitor to check that your terms are fair and reasonable in the sense of the consumer trade legislation or business trade legislation. Get ideas from the back of contracts that you have received.

 

Trouble with T&Cs is that clients will often send you a purchase order with their T&Cs then you have to accept their terms or not do the job. Conflicting T&Cs mean that the solicitors make money sorting out the mess.

 

Get a copy of a reputable companies T&Cs (ie a firm who will have had them all checked, we used those in the RS catalogue), then cherry pick the ones that apply to you and transcribe them verbatim, take this to your solicitor for him to ratify, the advantage here is what you are using has already been written by lawyers so you don't need to pay your brief pots of money to convert your thoughts to legal speak

[collism]

I have been told the two following things

one from a company director and one frome a solicitor ( so make of these what you will)

 

The last piece of correspondence to be received before the job (c/w with "terms and conditions apply") has the binding terms.

 

Terms and conditions have to be aggreed by BOTH parties and be signed by BOTH parties for them to be legally binding.

This was stated to me by my solicitor during a court case when the "client" claimed I had breached their terms and conditions and thus refused payment.

 

when it was highlighted that I had not seen said t&C let alone signed them the judge through that part of the case out of court.

 

Both of these are slightly misleading.

 

In relation to incorporating (including) standard terms into a contract it is clear that if one party signs the others party's set of standard term then they will be bound by them (L'Estrange v F Graucob Ltd [1934] 2 KB 394 - although there are limitations on enforceability particularly if the other party is a consumer (See Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contract Regulatiions 1999)). Indeed signing contractual terms is best practice.

 

However, standard terms may also be incorporated into a contract by reasonable notice (for example in Bowerman v ABTA [1996] CLC 451 a notice on a travel agents wall constituted terms of a contract), consistent course of dealing (see McCutcheon v MacBrayne [1964] 1 WLR 125) and by common understanding (British Crane Hire Corpn Ltd v Ipswich Plant Hire Ltd [1975] QB 303).

 

Common understanding is potentially quite interesting since it occurs when both parties are operating in the same industry, and allows a party to be bound by a term even if they have never seen the standard terms, provide the term is "in common use within the industry".

 

Where both parties provide a set of standard terms then the last set of terms provided prior to the contract being agreed are the binding set. So the key is establishing at what point a contract is agreed. (see Butler Machine Tool Co Ltd v Ex-Cello-O Corporation (England) Ltd. [1979] 1 WLR 401).

[cfmonk]

Slightly O/T but relevant I think. I never ask a client to sign a set of terms and conditions but I was under the impression that if I send them the T&Cs along with the quote and they then accept the quote then they are implicitly accepting the T&Cs which seems to fit in with the "Reasonable Notice" bit above. Anybody else rely on this?

 

Chris

[tony g]

Slightly O/T but relevant I think. I never ask a client to sign a set of terms and conditions but I was under the impression that if I send them the T&Cs along with the quote and they then accept the quote then they are implicitly accepting the T&Cs which seems to fit in with the "Reasonable Notice" bit above. Anybody else rely on this?

 

Chris

 

After some trouble with a school who dropped out of a full re-wire 2 days before commencement we now send out quotes with the T&Cs on the back, the client has to sign and return the copy to say they accept the quoted or estimated price and also in doing so the T&Cs, have been doing this for 2 years, never had a client moan about it yet

[Hypersound]

OK I am a bit rusty on this stuff and haven't read the whole thread but here is my view.

 

To form a contract you have to have (amongst other things) an offer and an acceptance of that offer. So if you send out a quotation with terms and conditions on the back then that is going to be an offer and, if the client accepts the quotaion then that is acceptance so a contract is formed and your terms and conditions will apply. If, however, the customer sends you a letter (or whatever) "accepting" your quotation but with their own terms and conditions on the back that isn't an acceptance and a contract is not formed. It is a counter offer as in the client is psaying he is repared to accept your offer but only on different terms. If that happens and you continue with the deal then you are bound by their terms and conditions.

 

I hope that helps.

 

Andy

[collism]

OK I am a bit rusty on this stuff and haven't read the whole thread but here is my view.

 

To form a contract you have to have (amongst other things) an offer and an acceptance of that offer. So if you send out a quotation with terms and conditions on the back then that is going to be an offer and, if the client accepts the quotaion then that is acceptance so a contract is formed and your terms and conditions will apply. If, however, the customer sends you a letter (or whatever) "accepting" your quotation but with their own terms and conditions on the back that isn't an acceptance and a contract is not formed. It is a counter offer as in the client is psaying he is repared to accept your offer but only on different terms. If that happens and you continue with the deal then you are bound by their terms and conditions.

 

I hope that helps.

 

Andy

 

You are indeed correct - an acceptance must be unconditional otherwise no contract is deemed to have formed.

 

A concurrent post has been automatically merged from this point on.

 

Slightly O/T but relevant I think. I never ask a client to sign a set of terms and conditions but I was under the impression that if I send them the T&Cs along with the quote and they then accept the quote then they are implicitly accepting the T&Cs which seems to fit in with the "Reasonable Notice" bit above. Anybody else rely on this?

 

Chris

 

Reasonable notice would apply in this situation provided your quote was accepted without reservation. Getting people to sign is better if you think there is any likelyhood of there being a problem or asking for an order number would indicated acceptance on their behalf as well.