contractual ping pong

The terms that bind

Does your head feel suddenly heavy when you see a document that contains the following daunting phrase?

‘For terms and conditions see overleaf’

It has to be one of the least inspiring sentences you’re ever likely to read. If you see it on an order form, or a letter, or a draft contract, you just know that if you flip the paper over you’ll see a densely typed page of text which will be at best tedious and at worst incomprehensible. And there’s hardly any room to doodle, let alone scribble your amendments or queries.

Likewise, if you see “Click here for our terms and conditions” on an email, you know just as certainly that you’re going to be dragged to a page so full of words and unpunctuated sentences, that you risk RSI just by scrolling through it.

It’s hardly designed to engage your interest, is it? Well it should.

If you’re ever tempted to ignore it, resist. This stuff matters.

And don’t rail against the other guys for constantly repeating their T&Cs on every piece of correspondence. Don’t secretly accuse them of trying to bore you into submission. Do it right back at them.

We mean that, really: you should be doing it too.

Staying in condition

OK, we are not actually advocating tedium as a negotiating technique. But we are definitely saying that your need to make sure your preferred T&Cs are under the other party’s nose if you want them to stick.

If you want your terms to be the ones that apply, you need to make sure you have drawn the other party’s attention to them, in a manner in which they would reasonably expect to see contractual terms. Which means on an order form, website, or such like. And the other party has to accept them by signing – or clicking – something or somewhere that confirms their acceptance.

Contractual ping-pong

If both parties usually operate on their own standard conditions, the general rule is that it is the last set going between them before the deal is actually finalised which will govern the contract. It might go something like this:

  • they send you a letter with a quotation for the work or goods or whatever, and somewhere it says words to the effect that the order will be subject to their standard terms which you can find in the usual place (i.e. overleaf)
  • you send them back a counter-offer suggesting a lower figure or an amended description of the goods, and your letter says that the contract will be subject to your standard terms, which can be found, well, you know where
  • they send back an order form with the new price and description, saying that the order is subject to… you know where this is going

Now, if you sign the order form at this point, you’re accepting their terms. It doesn’t matter that you previously set your own terms out. You need to reject any terms that are in front of you, or you’ll be bound by them.

In theory, this could go on for ever – contractual ping-pong (or whiff-whaff, as it was once called: and that’s a pub-quiz freebie for you). If you get to that stage, we’d like to suggest that you have better things to do, and it’s about time you got on the phone to the other side and sorted something out.

Get your retaliation in first

If you’re the first to introduce your standard terms into the bargaining, then you have the advantage of setting the agenda for negotiation. The more that the deal is on your terms, the more likely it is to deliver the best for your business.

Create your terms and conditions at Simplify the Law. For a modest charge (really, you’d be surprised at how modest it is) you can get tailored T&Cs all ready to print on the back of your offer letters. And leave the drudgery of wading through them to someone else.

Draft your business terms and conditions on Simplify the Law

Just one thing though – and we would say this, wouldn’t we? –

‘Terms and conditions apply’

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