Is enclosing your terms and conditions during the course of negotiation sufficient for them to be included in the contractual terms? Not necessarily, says the High Court.
Despite the fact that the Defendant had, via e-mail, provided (but not referred to) its terms and conditions (the “T&Cs”) to the Claimant at the outset of the negotiation of a contract and later provided (and referred to them) as the negotiation progressed, the Court decided that the T&Cs did not form part of the contractual terms agreed.
This is because the Claimant had also issued a purchase order which contained its own terms and conditions with different payment terms. The negotiation culminated in a revised quotation being sent via email by the Defendant which referenced the T&Cs, but did not attach them.
The Court asked the question whether there was some form of words (or, perhaps, some conduct) which incorporated the T&Cs, into the contract. The Court decided that there was not. Even though there was a reference to “attached terms and conditions” with the revised quotation sent, the T&Cs were not, in fact, attached to the email, albeit they had been provided at an earlier date.
Had the T&Cs simply been referred to but not specified to be attached or had there been a significant history of negotiations during which the T&Cs had been attached to each exchange, the Court may have come to a different conclusion.
This is a stark reminder to businesses to make sure that it is made clear, expressly where at all possible, that their terms and conditions are included in the contracts they make with their customers/suppliers and, where they are stated to be attached, that they are indeed attached.