There is no point having a simple and effective set of terms and conditions (T&C) if you don’t manage to get them included in your contracts. If you haven’t managed to get a contract signed, can T&C printed on the reverse of your invoices count?
Incorporating T&C
There are a number of ways you can get your T&C included in your contracts:
- Signature – whether wet-signed or digital, signing a document acts to include all terms, whether or not the signatory has read them
- Reasonable notice – terms brought to your attention before the contract is concluded, often in a contractual document such as an estimate or purchase order
- Course of dealing – your normal terms which may appear after the first contract is made but are regularly sent to your client or supplier.
The best option is to get a signed or expressly agreed contract and this is easy enough by an exchange of emails. But as the contract process is more or less haphazard, other forms of notice can help which is why I often recommend that terms are included in the contact page of your website (like mine).
Generally, by the time you invoice your client to get paid, you really should have known what your respective responsibilities were. I often state this in my contract training and it gets a nervous laugh.
T&C on the reverse of invoices is the last refuge of a contracting maverick!
Course of dealing
By the time you have to rely on incorporation by a course of dealing, you are facing a battle to confirm your terms were part of the contract. However, all is not lost. Even though that invoice comes after performance, the court can still decide that your terms are part of your deal.
English law says that:
- where the parties have a long-standing relationship (ie have dealt with each other more than once) the terms may not need to be set out in a contractual document; and they may not need to be sent before the contract is made
- an invoice with T&C which follows an offer on different terms may be too late (it doesn’t contradict the offer early enough); but if T&C appear on every invoice when there was no rival terms, may be sufficient.
It goes without saying that if you want to rely on T&C on the reverse of an invoice you have to send the reverse of your invoice (something fax machines didn’t do).
A case which considered whether T&C were incorporated reviewed the cases and said that ‘it must be obvious from the parties’ dealings that they intended the relevant terms and conditions to apply‘.
The court found the T&C were included in the contracts for these reasons:
- there was a 5-year history of dealing between the parties covering nearly 28 transactions
- the supplier’s practice was consistent ie to include T&C on the reverse of their invoices
- the terms included a statement that the supplier intended to exclude all other terms
- there were no other rival terms proposed by the client
- the terms were similar to others used in the same sector.
What should you do?
Adopt a clear simple contract process to get your contracts signed before you start work. But in default, ensure your clients and suppliers notice your T&C early in the contract process. Don’t rely on terms on your invoices.
Case: Provimi France S.A.S. & Ors v Stour Bay Company Ltd [2022] EWHC 218
