An underlying set of terms and conditions will typically govern the relationship between contractual parties, often in relation to the provision of goods or services by one party to another. Which parties terms and conditions will govern the engagement will depend on whose terms and conditions are incorporated into the agreement (see our FAQ below for details).
A set of terms and conditions will typically be drafted fairly broadly to cover the specific terms relating to the goods or services being provided alongside the following:
Obligations of the seller and the buyer – these will outline the duties each party shall be obligated to take in relation to the goods/services, this will typically centre around payment by the buyer for the goods/services and delivery or performance in relation to the seller.
Liability is also commonly included in relation to the parties – whereby the responsibilities for any liability arising in connection with the terms and conditions will be apportioned between the parties in reference to their obligations and breaches thereof.
Termination provisions and the resulting consequences of termination should also be outlined, including the termination process and the requirements which need to be met in order to terminate the provision of goods/services. This may include grounds for termination such as material breaches, the occurence of an insolvency event or termination by convenience on a specified amount of notice. The consequences of termination will likely include when the provision of goods/services cuts off, when the remaining sums will be payable by the buyer and the return/destruction of any goods or intangible property of the seller.
Personal data may also be featured in a set of terms and conditions, with both parties roles (whether this be controller – processor or controller – controller) being outlined and that the parties will adhere to the relevant data-related legislation when processing personal data of the other alongside warranties relating to the parties maintaining adequate framework for data to be transferred.
Typically general obligations will be featured at the end of the terms and conditions, rounding up and ticking off what has not been expressly covered previously. These will include entire agreement provisions, severance, waiver of rights, notice periods and dispute resolution processes.
It is important to remember that often, an individual order for goods/services and the terms therein may override the terms within the terms and conditions. As such, careful consideration should be made regarding the superiority of the different contractual documents used within a transaction.
