Frankly there are some clauses in contracts which are little more than plastering over the cracks in poor relationships or in the pre-contract process.
Here’s a few of my ‘favourites’ (I use that term loosely):
- cancellation ‘we can terminate your contract if you don’t have the skills we need or that you claimed to have‘ – this papers over the cracks of your pre-qualification processes; you should check competence before entering into the contract, rather than have a ‘get us out of jail’ clause when it turns out you appointed the wrong provider!
- a statement in your T&C that ‘nothing in our website constitutes an offer capable of acceptance‘ – this papers over a poor contract process; if there is a meeting of minds and the contract essentials (read more) then there is a contract between you; it is up to the parties to reduce that to writing.
- a statement in your T&C sent with goods ordered online that ‘an order placed constitutes an offer to purchase...’ – this papers over the cracks of poor process; any term only sent with delivery is too late to form part of the contract which has already been discharged by performance (delivery and payment).
- a provision that ‘the parties will use their best endeavours to agree X after the date of this contract‘ – this is papering over the cracks of uncertainty; contracts need certain terms to be binding; in English law this is type of provision is an agreeement to agree and unenforceable (read more).
- inserting a provision that ‘You confirm by signing this document/clicking this button that you have read and agreed to the terms and conditions‘ – this papers over the crack of bad contracts which no-one wants to read and back contracting when we assume a client has read rather than discuss it with them; back in 2010 the UK Financial Services Authority said “companies should not even ask consumers to assert that they had read and understood a contract or a set of terms and conditions because they are not likely to have done so.“
- a right for the provider to ‘change the goods, works or services contracted for at our option and without notice‘ – this papers over the cracks of not scoping the works, goods or services properly; the contract should state the items that will meet the client’s needs and have a provision for mutually agreed changes (read more).
Has anyone come across a corker?