Terms and conditions

[Jonathan Parry]

we are a distributor with our own sales terms and conditions, but more and more major contractors we sell to have buying terms and conditions. In the eyes of the law who's take precedence our sellers terms or the buyers terms. FYI we don't have a clause in our terms stating we can't accept buyers terms but if we did would it be lawful, if were not carful we'll end up in a top trumps competition with terms and conditions.

Thanks

Jon

 

[Simon_H]

Essentially, there is no law as to whose Ts & Cs take precedence. The ones that get signed in the end will apply - so if the final contract or correspondence says it's on the buyer's standard terms, those will apply, and vice versa. But if you want yours to apply, you should say so in each bit of correspondence with each buyer, and reject the other party's terms. I could post a link to Simplify the Law just on this point (and I hereby declare in interest), but I haven't hit the requisite number posts yet! So I'll quote it instead:
When the negotiations are moving quickly, there can be a battle as to which sets of terms and conditions should prevail. For example, the seller may send out an order form containing its standard terms and conditions of sale; the buyer may respond saying that it wants to place an order, but subject to their standard terms and conditions of purchase. So it goes on. Whose document will govern the contract? The general rule is that it is the last set of standard terms and conditions forwarded before the contract is acted on.

 

[Jonathan Parry]

Thanks Simon - do the terms and conditions have to be acknowledged.
Does an emailed order with terms and conditions attached count as acceptance in the absence of a rejection on our part and if we in turn had acknowledged the order with our terms and conditions ( which we didn't) would that mean we are last in or does one party or the other make reference to them for them to be counted as implemented. It's a real can of worms this one
Thanks

 

[Simon_H]

Yep - it's sometimes called contractual ping pong for good reason.
If you accept their order, and it includes their terms, then probably you've accepted their terms (even if you had previously rejected them). If you had replied with your Ts & Cs, you would probably have it.
Another way of looking at it is that the last version of the order or contract is presumably the one which is going to be acted on. (Eg if you were negotiating price, the last price named would be the one that counted).
Just drawing the inference from your last, I would say that it is the other party's terms which are likely to prevail in this case.
I know I've said "probably" and "likely" - because there may be specific circumstances which alter the case. If there are complications, you'd be best getting specific professional advice.

 

[Jonathan Parry]

Simon you're 100% right on this, a lesson learned always acknowledge a large value order and include the terms and conditions, you've been incredibly helpful thanks for the reply and your time - never too old to learn