Disclosing Terms & Conditions To Make Them Enforceable
It is common practice today for companies to post their Terms and Conditions (T&C) online, but the key to enforceability is ensuring that these terms are accessible by the customer. In the shipping industry, you are responsible for making customers aware of Terms and Conditions by either publishing access to them in the bill of lading or in an e-mail correspondence. There is a right and wrong way to go about doing this, so let’s take a look at some best practices.
If you want to enforce T&Cs on bill of lading, it is always safest to print the full terms on the reverse side. If you are emailing PDFs of the front only, making reference to the T&Cs there instead of printing them in full, there are some important points to cover. First, you must state clearly that the booking and the bill of lading are “subject to the terms and conditions to be found on [insert website]” and that the customer “hereby acknowledges and agrees to all the terms and conditions.” Also, you must be sure that the website you provide a link to is sufficiently accessible and operative. If you do not properly disclose the site or it is not operative at the time the bill of lading is issued, then the terms may not be enforceable.
On the other hand, you may choose to incorporate the T&C into an e-mail. The first step for this process is the same as the protocol for the bill of lading; you must state clearly that the booking and bill of lading are “subject to the terms and conditions to be found on [insert website]” and the customer “hereby acknowledges and agrees to all the terms and conditions.” Within the e-mail you must also provide an embedded link to the words “Terms and Conditions.” This will ensure that the T&C are reasonably accessible by customers, so long as the link you provide is operative. If not, issues of enforceability may arise. The best practice in this case is to send a copy of the full T&C with the e-mail; then there will be no question of whether or not they are enforceable. If you can program it, you ought to send out the T&C reverse side along with any email containing the front.
It is no surprise that companies often find themselves in legal grey areas as we continue to shift to an all-digital world. Gone are the days of paper forms and contracts, but the responsibilities of being transparent are still the same. The ability to enforce Terms and Conditions is imperative for good business practices, which is why understanding how to properly disclose them to customers is key.
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