terms and conditions dispute

[Oggy]

Hi,

I run a small recruitment company and our terms and conditions state that interviewing a candidate through our service is deemed acceptance of our terms and conditions of business. We always outline the terms verbally with clients and where possible get confirmation they are happy with them via e-mail.

We recently placed a candidate with a client who is now not making payment and claiming the terms are not valid because she never received them. Unfortunately the sent e-mail with terms attached is no longer accessible (the consultants laptop was stolen), however it is noted on our system that the terms were sent.

Should we bother following this up or do we have no legal leg to stand on? Any response appreciated- thanks.

[WalktheWeb]

Your system's record of sending the terms provides some evidence that they were sent, but it is hard to predict the outcome of a dispute if her evidence (and inspection of her system) is that nothing was received. It could come down to your word against hers.

However, you could have a case even if you cannot prove she received your terms and conditions. Does she accept that you introduced the candidate to her, and were acting as a recruitment company when you did so? Did she think she was getting that service free? If she could not reasonably have expected to be receiving the service free, you might have a good argument to be paid the normal market rate for your services even if she did not receive the terms.

David

[Astaroth]

What monies are involved in the dispute?

One of the problems is naturally that proof of sending is not proof of receipt and worse still from your point of view is that you cannot even prove sending only that it was noted as having been sent.

At the end of the day civil law is done on the balance of probability (where as criminal is beyond reasonable doubt) and so ultimately comes down to who the judge believes is most likely telling the truth.

[Antonia @limeone.com]

Your terms should be sent and agreed with the client before work is commenced and in this case a judge is also likely to look at Industry practice and of course the practicality of what has occured. My view is, providing you get a statement from the candidate as to when they registered with you, how the interview was arranged via you etc then a judge is more likely than not to be persuased in your favour.

I am sure you don't need me to labour on this point but you need to get your terms and conditions process in order now and get them to send you back a purchase order email for the service offered to avoid this in the future :)

[Oggy]

thanks to everyone for the feedback, I have been in touch with the client again and am waiting for a response- I would really prefer to come to a fair agreement on this than push it through, so will hopefully come to an arrangement.

[bwglaw]

Unfortunately the sent e-mail with terms attached is no longer accessible (the consultants laptop was stolen)

This does imply they received the terms, regardless of whether they have had read them initially or are able to revisit the terms. How well you advertise your terms and whether the client has used your services in the past will all be persuasive points leading to conclusive evidence of their incorporation of terms.