The terms and conditions (T&Cs) which apply to a contractual agreement between the parties will depend on which party’s T&Cs are deemed to be incorporated into the contract.
The law in England and Wales has traditionally held that where there is conflict between the T&Cs of each party, the ‘battle of the forms’ will be won by the party who put forward their T&Cs last which were not explicitly rejected by the other party. However this has been questioned in recent case law, so it is important for companies to take practical steps to ensure their T&Cs are incorporated.
Some of these practical steps are as follows:
Draw the other party’s attention to the T&Cs during the pre-contract stage of the relationship;
Where you are providing/supplying the goods/services, sending an acknowledgement following reciept of individual orders asserting that your T&Cs govern the contract;
Sending a copy of your T&Cs to existing contractually engaged parties and requesting that they sign and return these as acknowledgement that they will govern future orders;
Links in emails to the T&Cs; a copy of the T&Cs affixed to letters sent to the other party.
It is important to note that silence does not amount to acceptance and that in some situtations, it may instead be worth directly discussing T&Cs with the other party and reaching a mutual position on any sticking points.
