In order to ensure that your terms and conditions apply to contracts with your customers, it is essential that you draw your customer’s attention to the terms and conditions prior to the contract being formed. It is not enough for you to have your terms and conditions displayed on your website or referred to on invoices alone.
How do you form a contract?
For a valid contract to be formed, there must be an offer and acceptance of that offer. A contract will only be formed when there has been such acceptance.
An offer is a promise by one party to enter into a contract on certain terms. Therefore, the offer must contain all of the information intended to form part of the contract like a quote and, of course, your terms and conditions.
It is essential that you adequately bring the customer’s attention to the terms and conditions and/or where they can be found. You must expressly state where the terms and conditions can be found and that they will be binding terms. So, simply attaching your terms and conditions to an email or providing a website link to the terms and conditions will be sufficient to incorporate them into the contract, provided that you have expressly made reference to them in any correspondence with the customer.
Offer and acceptance could occur without you realising that you are forming a legally binding contract, such as over the phone or in email correspondence. Therefore, it is always best to ensure that you draw your customer’s attention to your terms and conditions in the earliest possible correspondence and by multiple means if possible, as a ‘belt and braces’ approach.
Does the customer have to acknowledge your terms and conditions, such as by signature?
There is no requirement in English contract law that customer contracts for the sale of goods or services have to be signed to be binding.
Furthermore, it does not matter whether or not the customer has actually read your terms and conditions. As mentioned above, the only requirement is that you sufficiently draw your customer’s attention to the terms and conditions prior to acceptance of the offer by the customer. Provided that this procedure is followed, the terms and conditions will be enforceable and binding on both you and your customer, so long as they do not include any illegal or unfair terms.
What can you do to ensure that your terms and conditions apply to customer contracts?
- Expressly state in any pre-contractual correspondence, including quotations, that the contract will be subject to your standard terms and conditions and include a copy of your terms and conditions or a link to where they can be found on your website.
- Provide a link to your terms and conditions in your email footer and confirm that all contracts formed with customers will be subject to these terms and conditions.
- Include a copy of your terms and conditions on your website so that they are easily accessible by customers.
It is important to note that including your terms and conditions in documents which are provided to the customer after the contract has been formed will not be effective at incorporating the terms into the existing contract. However, it is still useful to include a copy of the terms and conditions, or reference to them, in your invoices. Where you deal with repeat customers, any such reference will make the customer more aware of your terms and conditions for future purposes.
This blog post was written by Emily Watson.Emily is in the penultimate year of the MLaw degree and is currently working as a Student in one of the Business & Commercial firms in the Student Law Office. Hoping to pursue a career as a solicitor, Emily is actively applying for training contracts. In her spare time, Emily enjoys drawing and painting animal portraits.