FREIGHT FORWARDER TERMS INCORPORATED BY EMAIL FOOTER
In our perfect world, our freight forwarder clients always present us with a copy of their terms and conditions signed by their customer. Unfortunately, this often doesn't happen and we have to look at some other way of showing the customer accepted the terms and conditions.
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Often the best the freight forwarder can say is that all their emails include a footer that says "all services are provided according to the freight forwarders terms and conditions". Sometimes the footer will contain a link to the T&Cs, other times the footer will say where the T&Cs can be found. The best footers point out that the T&Cs limit the liability of the freight forwarder.
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Whether the freight forwarder can rely on their T&Cs in these circumstances has always been a tricky issue. Most emails are not meant to constitute contractual documents.
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This issue was considered in the 2019 Victorian County Court case of Technology Swiss Pty Ltd and Ecology SRL v Famous Pacific Shipping (Vic) Pty Ltd. While there were many issues in dispute, one was whether Famous' email footer was sufficient to incorporate its T&Cs. The Court found that there was no dispute that at least 2 of the emails between the parties formed part of the contract. Those emails included a footer referring to Famous' T&Cs. Importantly, the Court held that the whole of the emails were incorporated, which included the footer.
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The Court held that the email footer could hardly have been clearer. The Court expressly dismissed arguments that the email footer would be rejected by a reasonable business person due to its location, repetition and generic language. If anything, the Court thought that the repetition of the email footer made it more likely to form part of the contract.
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There are two clear lessons from this case:
It is always best to remove doubt and have your customer sign your terms and conditions. If you base your pricing on the condition that your T&Cs form part of the contract, make sure of this; and
Reference to T&Cs in email footers can work. This has implications for both parties to the contract, the party seeking to enforce the T&Cs and the party seeking to avoid them.
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Every case will turn on its facts. An important issue will be whether the relevant email formed part of the contract.
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Please contact us if you would like assistance drafting your T&Cs or email footers.