Terms and Conditions Lawyers

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’s intellectual property rights and may also 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.

A contract does not need to be in writing. 

The parties should be mindful of the risk of uncertainty if a contractual arrangement gets started on the strength of prior conversations between the parties, without the parties having agreed in writing the detailed terms and conditions that will govern those arrangements.

Adopting a set of terms and conditions, and understanding how terms and conditions can be properly incorporated into your agreements with third parties allows you to reduce the risk of unintentionally contracting on the other side’s preferred terms and conditions, allows you to disapply some of the terms and conditions that would otherwise be implied into the contract by law (including statutory warranties), gives you a chance to include provisions to limit or exclude your liability (which would otherwise be uncapped), and provides both parties with clarity over their respective rights and obligations, reducing the risk of the parties being at cross-purposes. 

Terms and conditions can be incorporated into the contractual arrangements between two parties in a range of ways, depending on how the parties interact with each other. 

They may be set out in full in an agreement signed by both parties, attached by a seller to their quote for relevant goods or services, or accepted when a buyer clicks ‘accept’ on an online sales platform, for example. 

If the terms and conditions have been properly incorporated into the contract, they will be legally binding provided they comply with legal requirements, particularly those that relate to ‘unfair’ contract terms.

Our commercial solicitors have acted for machinecompare.com, one of the largest online marketplace providers specialising in the resale of industrial parts.

Our commercial lawyers prepared marketplace T&Cs to cover the listing of goods on the marketplace, the sale and supply of the goods and other platform services offered by machinecompare.com.

Our terms and conditions lawyers have acted for various lifestyle and wellness test providers preparing E-commerce terms and conditions for the supply of COVID 19 lateral flow tests and PCR tests and services, and other wellness and cancer testing kits and services to consumers and businesses. 

Our commercial experts assisted Rimini Systems in preparing a suite of standard consumer T&Cs for the supply of hardware, maintenance and support services.

Our commercial solicitors acted for a provider of elite vehicles in preparing their standard consumer T&Cs for the hire of high-end vehicles. 

Our terms and conditions lawyers have acted for numerous software providers to implement software subscription terms and conditions and provided detailed corresponding data protection advice.

Our commercial team have drafted standard business T&Cs for various large regional and national marketing and social media management providers.

Our expertise in this sector enables us to draft terms and conditions that cater for the various social media management services provided, including pay-per-click, influencer marketing, and website design and development.

Our commercial lawyers have drafted standard terms and conditions for both providers and clients of consultancy services. We have acted for a large provider of care consultancy services and drafted standard terms and conditions which cater for the combined delivery of their consultancy services with their case management SaaS offering.