It's a pretty common situation: You have standard T&Cs, and you get everyone to sign up to them when doing business. But sometimes the other side insists on using their own terms. So what to do?
Fight! Well, not really here's what you need to know:
- This means war. When two parties squabble over whose standard terms should apply, lawyers call this the battle of the forms. Yes, equating a contract negotiation to battle really does make our day more exciting (as does stretching metaphors to breaking point, so read on).
- The scattergun won't win this battle. Don't agree to both contracts. In this case an "I'll sign yours, and you sign mine" approach won't cut it. The terms won't match up and you'll be seriously confused when it comes to figuring out what was agreed. Instead agree early on whose T&Cs to use as the starting point for negotiation. Bear in mind that it might not make sense to use your own standard terms if you're buying a highly specialised or bespoke product or service.
- Last shot wins, soldier. A common approach is to accept terms by issuing your own document that includes your own standard terms. If you do this you're not actually accepting the other party's terms, you're making a counteroffer. This means that if different terms are pinging between the parties (say, on the back of the quote or order acknowledgment) the last set despatched before acceptance or performance will apply.
- Don't miss the last shot. Even after signing a carefully agreed contract operational staff might receive additional terms on the back of a PO or bill which try to impose additional terms. This could be down to a standard form document being used (unintentional) or underhand tactics (sneaky, we know). Make sure your staff are savvy and recognise that any legal terms need to be signedoff by someone who gets this. The risk is the new terms might apply to the relationship, and unlucky you lost the battle.
- Make love, not war #cheesy. Optional, really, but by building a great relationship with the other side you can agree a set of terms that both parties can live with, and you'll be on the right foot for the rest of the contract.