GUEST BLOG FROM SA LAW SOLICITORS
Disputes can be costly, time-consuming and distract attention away from your business’s needs. Many businesses, therefore, have terms and conditions in place to provide clarity and protection for when a dispute arises. However, lots of businesses do not realise the importance of having the appropriate measures in place to ensure that these terms and conditions are incorporated and therefore apply to the contract (and govern any dispute should it arise).
HOW TO INCORPORATE
To incorporate your terms and conditions, you must provide the other party with a copy of them before the contract is formed. You should also seek to establish the other party’s acceptance of them. This can be done in a number of ways. For example, you could attach your terms and conditions to any pre-contractual documentation, such as quotation forms, and expressly state that your terms and conditions will apply to the contract. Many businesses currently use hyperlinks to their terms and conditions in their email footer in pre-contractual correspondence as a measure of incorporation, however, given the potential for these to be over-looked by the other party, this is not a measure we would recommend.
“BATTLE OF THE FORMS”
By providing your terms and conditions, you may encourage the other party to provide theirs. This can cause problems as to which terms and conditions apply. To strengthen your position in any “battle of the forms”, you should make it clear beyond doubt that you are contracting with the intention your terms and conditions govern the contract and provide a copy of them for ease of reference.
Although you want to ensure that your interests are protected within your terms and conditions, you should ensure that your terms and conditions also balance the interests of any other party. This is particularly important in the supply of agency staff where you have to consider the interests of the agency workers, e.g. the worker’s rights under the Working Time Directive. Even though interests are likely to differ between yourself and the other parties, by ensuring that the interests are balanced, you may encourage long-lasting business relationships.