As a result of recent difficulties, we are making amendments to our standard terms and conditions which are issued to customers. How do we implement the new terms moving forward? Do we have to draw them to the attention of customers or simply send out the new terms with their next order? Is there any way that we can apply the new terms to existing orders?
Terms need to be in place before entry into a contract to govern it. This means that sending out your new standard terms only after the contract (for example upon delivery or invoice) is too late. The contract is made when you accept the customer’s offer to buy. You can do this by confirmation given to the customer or by delivery in accordance with the offer’s terms. If you wish to retain control of the contractual terms, you should only enter into contracts via your order form (and not, for example, over the telephone). Provided your order form properly refers to the new terms and the customer has had an opportunity to see them (often they are attached or printed on the reverse) then they will apply. There is no general obligation to bring the changes to a customer’s attention. However if the new clause is particularly unusual or may be unfair you should do so. Also, in a consumer contract, regulations impose a duty on a seller to ensure that all written terms are expressed in plain and intelligible language. You can only apply the new terms to orders that you have already accepted with the specific agreement of the customer.
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