Over the last two blogs in this series, we have looked at why Terms & Conditions (T&Cs) matter and the Common Provisions of Commercial T&Cs
Now, it’s time to focus on how T&Cs of sale work in practice, and the difference between having T&Cs and using them effectively.
Having vs Using T&Cs
It’s easy to think that once you have T&Cs in place, they apply automatically to all your contracts- job done – but this isn’t the case.
These are the situations we regularly see:
- T&Cs are provided for the first time on the invoice (too late- the contract is already formed).
- T&Cs exist on a website but are never referenced when the deal is made (there has been no positive acceptance of the T&Cs).
On paper, the business believes it has the legal protection of T&Cs, but in practice, none of the T&Cs are enforceable.
This becomes an even bigger issue when considering how most business is conducted today. Handing a client or customer a hard copy of your T&Cs for signature is becoming a thing of the past, being overtaken by dealings through email and online platforms.
Why is that a problem?
A simple “Yes, please go ahead” in an email could form a binding contract before any terms are sent.
So, for example, if you take orders by email or through an online portal, but you only give customers a hard copy of your T&Cs to sign later (or only have them available on paper in-store), those terms may not be properly incorporated into the contract, because the customer hasn’t been given them in advance of placing the order.
So, what’s the solution?
T&Cs need to be made available to, and agreed to, by customers or clients before a contract is created, they can’t just be added in retrospectively or if something goes wrong. Once you have a set of T&Cs that meet the needs of your business, you need to start to incorporate them into your processes by updating documents such as:
- order forms
- quotes and proposals
- website checkouts
The solution is not to slow the business down- it is to embed T&Cs into every point of the customer journey, so they attach automatically and consistently.
T&Cs are not a one-size-fits-all document, they should be tailored to address the needs and capabilities of your business. Once you have a set of T&Cs that are right for you, it shouldn’t be a burden to incorporate them, the T&Cs will slot into your business processes, not the other way around.
T&Cs in practice
If you are wondering whether it is time to update the T&Cs for your company, it is important to consider whether your current T&Cs are really protecting your business (if you have any T&Cs at all!)
- Out-of-date terms
If your T&Cs were written years ago and no longer reflect what you actually do, important protections for your company, such as limits on liability, may not apply at all. - Terms that don’t stand up
Clauses that look tough on paper can fall apart in reality. Overly harsh or poorly drafted provisions may be unenforceable, giving you far less protection than you expect when a dispute arises. It is important to balance the needs of the company against a measure of fairness and reasonableness. - Terms that were never properly incorporated into the contract
If your T&Cs are sent after work has already been agreed, or hidden in an email footer or invoice, they likely won’t form part of the contract. That means that, when things go wrong, you could be left without the protections you thought you had.
How can Bhayani Law help?
Having Terms & Conditions is only part of the picture. They need to be tailored to your business, legally robust, and properly incorporated into your contracts if they’re going to protect you when it matters most.
Whether you need a review of your existing T&Cs or want bespoke terms drafted from scratch, our Commercial & Corporate team can help ensure your contracts work in practice, not just on paper.
Protect your business with confidence. Contact Bhayani Law today to arrange a Terms & Conditions review. Call us on 0333 888 1360, email [email protected] or complete our enquiry form.
Frequently Asked Questions
The most important step is making sure customers see your T&Cs before the contract is formed. If a customer accepts a quote, places an order, or otherwise agrees to proceed after being given your terms, there is a much stronger argument that those terms form part of the contract. By contrast, sending T&Cs after the deal has already been agreed is often too late. A physical signature is not always necessary, but you should be able to demonstrate that the customer had the opportunity to review the terms before committing and then chose to proceed. The best way to achieve this will depend on how your business operates and the processes you have in place.
Usually not. The issue is not whether the T&Cs exist, but whether they have been brought to the customer’s attention at the right time. If a customer can place an order or agree to a deal without ever being directed to the terms, it’s likely going to be difficult to argue that they accepted them. The strongest approach is to build references to your T&Cs into your ordering, quotation and onboarding processes so they are part of the customer journey from the outset.
It’s worth looking beyond the wording of the document itself and considering how it is used in practice. Even well-drafted T&Cs may offer limited protection if they no longer reflect how your business operates or if they are only shared after work has been agreed. Regular reviews can help ensure both the content of the terms and the process for presenting them to customers remain fit for purpose.
