A business can only rely on its terms and conditions if they have been properly incorporated into the contract. In practice, that means the terms must be brought to the other party’s attention at the right time, in a clear enough way that they form part of the deal.

Why incorporation matters

It is not enough to have terms sitting on a website, tucked into a footer, or filed away in a document that nobody actually saw. If the other party was not given proper notice before or at the time of contracting, the terms may not bind them.

This is especially important because the law treats business-to-business and business-to-consumer contracts differently, and consumer-facing contracts usually attract more statutory protection and disclosure requirements.

The main ways terms are incorporated

There are three common routes to incorporation. First, a party can sign a contract containing the terms, in which case they are usually bound even if they have not read them. Second, terms can be incorporated by notice, provided reasonable steps are taken to draw them to the other party’s attention before the contract is made.

Third, terms may sometimes be incorporated through a consistent course of dealing, but that is less reliable and depends on repeated, regular trading on the same terms. For most businesses, signature and clear notice remain the safest routes.

Quotations and order forms

Quotations and order forms are common places where incorporation goes wrong. If a quote refers to standard terms, but the terms are not attached, clearly linked, or otherwise made available before acceptance, there is a risk that they will not be binding.

The safest approach is to state clearly on the quote or order form that the contract is subject to specific terms and conditions, and then ensure those terms are sent or made available at the same time. If the business relies on website terms, the relevant version should be clearly identified and easy to access.

Website terms

Website terms can work well, but only if they are used properly. Merely having a link in the footer may not be enough in every case, especially where the terms include significant obligations or exclusion clauses.

If the contract is concluded online, the user should be taken through a clear process showing that the terms apply, ideally with an active tick-box or clear statement of acceptance. Businesses should also make sure the correct version of the terms is dated and easy to identify.

Onerous terms need extra care

Even where terms are generally incorporated, particularly harsh or unusual clauses may still fail if they were not fairly and reasonably drawn to the other party’s attention. This is often

relevant to clauses involving cancellation charges, liability caps, indemnities, or other significant burdens.

The practical point is simple: the more unusual the clause, the more obvious it should be. Highlighting it in bold, separating it out, or expressly flagging it in the signing process can all assist with its incorporation.

Common traps to avoid

· Sending a quote without the terms attached or clearly linked.

· Referring to website terms without identifying the correct version.

· Assuming an invoice footer will incorporate terms after the contract is already made.

· Using one set of terms for both B2B and consumer work without checking the legal position.

· Hiding important clauses in dense legal text without drawing attention to them.

Berry Smith Bottom Line

To make sure your terms are properly incorporated, focus on timing, clarity, and evidence. The terms should be presented before the contract is formed, easy to find, and clear enough that the other party cannot say they were unaware of them.

If your business relies on quotations, order forms, online checkouts, or standard website wording, it is worth checking whether the terms are actually binding in practice. A contract review can often reveal gaps long before they turn into disputes.

If you have any questions or queries in relation to your terms and conditions or this article, please contact the commercial team on 02920 345511 or at commercial@berrysmith.com.