Standard terms and conditions—incorporation
Standard terms and conditions—incorporation

The following Commercial guidance note provides comprehensive and up to date legal information covering:

  • Standard terms and conditions—incorporation
  • Bring the terms and conditions to the attention of the other party
  • Battle of the forms
  • Course of dealing
  • Post-contract statements
  • Business to consumer transactions

This Practice Note summarises thepractical steps which a business can take to successfully incorporate its standard terms and conditions into contracts and agreements. It provides guidance on how to ensure that one party’s standard terms and conditions are incorporated into a contract, how to win thebattle of theforms and how to prevail over attempts by theother party to incorporate their standard terms and conditions into thecontract.

For information on thepurpose, advantages and disadvantages of using standard terms and conditions, see Practice Note: Standard terms and conditions—advantages and disadvantages and Determining whether standard terms and conditions should be used (B2B)—checklist.

For guidance on preparing standard terms and conditions for business to business (B2B) transactions, see:

  1. Practice Note: Key terms and conditions in contracts

  2. Drafting terms for thesupply of services—business to business—checklist, and

  3. Drafting terms for thesale of goods—business to business—checklist

For guidance on reviewing another party’s B2B standard terms and conditions, see:

  1. Contracting on another party’s standard terms and conditions (B2B)—checklist, and

  2. Reviewing terms for thepurchase of goods or services as a buyer—business to business—checklist

Bring theterms and conditions to theattention of theother party

It is essential to keep in mind thefundamental elements of contractual formation, particularly offer and acceptance, and to ensure that one party’s standard terms and conditions are brought to theattention of theother if they are to be effectively incorporated into a contract. Terms and conditions often appear on theback of an order form and can be easily overlooked. See Practice Notes: Forming enforceable contracts—offer and Forming enforceable contracts—acceptance.

Standard form contracts may not be