Until now, the general approach has been that a company cannot claim privilege against its own...
Whether your business sells goods or provides services (or both) you will need Terms and Conditions which regulate the legal relationship between you and your customer.
If you sell primarily to businesses, then there are a number of provisions which it is essential that you include.
First and foremost, you will need to use appropriate wording to ensure that it is your terms and conditions, rather than the customers, which will apply to the contract between you. We can provide appropriate wording to ensure that you win the so called “battle of the forms” and can advise on appropriate contract procedures to ensure that your sales office invariably incorporate your terms.
It is important that the goods or services that you are providing are described accurately and that delivery terms are clear. You will also wish to ensure that an appropriate retention of title clause is included so that you retain title to goods delivered unless and until they are paid for. The law in relation to retention of title clauses is in state of flux and we can ensure that the wording is up to date and does not go further than the law allows (which risks the retention of title clause being struck out as being unenforceable).
There will need to be clauses relating to pricing and payment terms, wording in relation to the protection of any relevant Intellectual Property Rights and, in the case of provision of continuing services, provisions as to termination.
Perhaps the most important clause in any well drafted set of terms and conditions is that limiting the liability of the supplier. We can include a suitable limitation of liability clause and can advise as to the reasonableness of any appropriate limitations in the context of relevant legislation, in particular the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.
Where you are supplying principally to consumers, then any terms and conditions will be regulated by an extensive body of consumer protection laws that aim to provide consumers with rights that cannot be taken away. These are principally found in:
- Consumer Protection from Unfair Trading Regulations 2008;
- Consumer Rights Act 2015;
- Sale of Goods Act 1979;
- Sale and Supply of Goods to Consumer Regulations 2002;
- Unfair Contract Terms Act 1977;
- Unfair Terms and Consumer Contracts Regulations 1999.
As mentioned in our briefing in relation to e-commerce, there are also significant regulations which apply to contracts entered into otherwise than at your place of business. The Consumer Contracts (Information), Cancellation and Additional Charges (Regulations) 2013 provide that all sellers must:
- provide certain pre-contract information (and obtain the consumer’s express consent to any changes to it);
- obtain the consumer’s express consent to additional payments;
- deliver goods within a certain period; and
- not charge more than the basic rate for any consumer telephone helpline.
It should be noted that these Regulations apply only partially to contracts for some goods (including goods sold in “day to day transactions”) and do not apply at all to certain sector specific contracts (including contracts for food and beverages delivered by roundsman).
The law in this area is extremely complex and we can provide appropriate wording and advice in relation both to the operation of your business and to the drafting, review and updating of your terms and conditions.