Terms are basically things that we agree to do or not to do. For example, a Tenant agrees to pay money for rent, while the Landlord agrees to let the Tenant occupy the property in return. Or a software company will let you use their software for a predetermined amount of time.
Conditions are items that must be satisfied before the transaction becomes binding upon the seller and the buyer. Or after signing/award, the conditions can be items for dissolution of the agreement.
For example, some buyers insert a condition for due diligence that allows the buyer to verify all important details before committing to purchase.
Or if you fail to deliver on or stick to what was agreed, the conditions can spell out how the contract will be terminated.
Thank you, Mark for explaining it with examples.
• Legal and Commercial Training Limited
The words "Terms and Conditions" are likely to mean nothing more than 'the provisions of the contract'.
However, if the word "condition" is used in the contract, then it could mean that the particular provision is a 'condition' (in the legally technical sense) in that the term is fundamental to the contract. If such a 'condition' is breached, then the innocent party may terminate the contract. A term of a contract may be a 'warranty'. This is a less important term, breach of which will enable the innocent party to claim damages.
The aim that we should be seeking to obtain with contracts is to be as clear as possible and not to rely on a court deciding that you have used 'condition' or 'warranty' in a technical sense.
For example, if the date of delivery is vitally important, you could state that it is a condition but it is better to state that time of delivery is "of the essence". This phrase will mean that the term is indeed a 'condition' enabling the innocent party to walk away and claim damages and obtain the goods elsewhere. If you are agreeing to deliver the goods, you should state the opposite, namely that time of delivery is not of the essence. If you do not and if you are one day late, the other side can walk away. Or you could state that time of delivery is an estimate and that you will use all reasonable endeavours to deliver the goods by that date.
The above is the position in English law.
• Legal and Commercial Training Limited
I would add that Mark is not incorrect in his description of a condition. He is referring to yet another meaning given to 'condition'. Mark is describing a 'condition precedent' which is, as he states, a condition that has to be satisfied prior to the rest of the contract becoming effective. To add some complication, there is also a 'condition subsequent'. This means that the contract is enforceable but will cease to be so if a condition occurs.
Rather than rely on the difference meanings, we should remember that a court will interpret a contract by asking itself what the parties meant when they used the words in the contract. A court will strive to give those words their usual meaning. So, rather than rely on a suspected legal meaning of a word, you could use clear and usual language to state what the deal is and what the contract means.
Yes many organisations are moving beyond mere compliance statements to real actions on the ground. Have a look at the website of QANTAS, ANZ Bank, and Marks & Spencer in UK as examples. I can share more on this topic at our Perth Member Meeting, including what the Mekong Club, STOP THE TRAFFIK, and the Bali Government Forum are also doing. In your part of the world of Western Australia, also check out what Twiggy Forrest is doing.
Thanks for the question and we will hear what others have to say. See you next Tuesday.
Bruce R. Everett, Regional CEO Asia Pacific IACCM
+61 407 535 835 www.iaccm.com
• Fire and Emergency NZ
Hi Gaurav - good question to get the discussion going.
Will be exciting to see what others are doing. I found this overview from Lexology really useful to think about those issues :
It also took me to the link on those who are meant to help prepare guidance (but not much there yet) :
Will be looking up the examples that Bruce has outlined in his post as well to see how some of the bigger companies ahead of the game are looking at it.
Things like these, whilst they can be lots of compliance, can be a good opportunity for procurement teams around the country to look at portfolios and make some early assessments of those contracts at risk !
I would expand to the inclusion of customer name/logo use in marketing material as there would typically be some sort of agreement prior to such marketing material being used. Maybe strike the language or amend to clarify?
• Philips India Limited
I have had experience when we signed non-binding MoU for JVs. The most likely scenario would be that the JV partner may like to advertise to the greater world that they have signed on a path breaking MOU etc., especially if these partners are listed entities. So its advisable to make it explicit that disclosing the existence of agreement covers not just "verbatim" disclosures, but other modes as well - including social media...unless explicitly agreed between the parties.
I agree with the other replies here, the NDA should cover marketing material. It's common courtesy to check the other party is ok with this being shared and customers I have had have explicitly blocked this as a company policy.
The Royal Decree of January 14, 2013 (Belgian Official Gazette February 14, 2013) to determine the general rules of public procurement and public works concessions are fully applicable to all projects (regardless of the amount) for construction works, deliveries and services ordered by KU Leuven taking into account the following special provisions and any exceptions that are listed in the specifications or price request. The full text of this Royal Decree can be found on www.ejustice.just.fgov.be/wet/wet.htm or may be obtained from Central Purchasing upon simple request.
Please refer to admin.kuleuven.be/td/aankoop/english/algemene_aankoopvoorwaarden_EN.html And in case you cannot find the entire text in English, you can take this into consideration: www.lexgo.be/en/papers/public-administrative-law/public-procurement/new-regulatory-framework-for-public-procurement-will-enter-into-force-on-1-july-2013,80836.html
• Tata International Ltd.
Pl find below. You may retrive by using the following given links.
There is one official channel for Belgian public procurement contracts: the
application e-Notification (https://enot.publicprocurement.be). Enterprises can
find all the Belgian public procurement notices on this platform. As from January
1st, 2011, the Belgian Public Tender bulletin (BDA) (an annex to the Belgian
State Gazette) has been integrated with the Federal Public Service Personnel and
Organisation (FPS P&O). However, it is still possible to retrieve contract notices
published before 1 January 1st, 2011on the Belgian State Gazette website
(www.ejustice.just.fgov.be/cgi/welcome.pl). Also as from January 1st,
2011, the public contract notices published on e-Notification will count as the
official publication in the BDA. The practical modalities for both companies and
contracting authorities can be consulted in official notice 2010/02053 published
on September 6, 2010 in the Belgian State Gazette
(www.ejustice.just.fgov.be/cgi/api2.pl 06&numac=2010002053&lg=nl). The official announcements can be found on
the e-Notification site (https://enot.publicprocurement.be). The site also contains a
link to the official announcements published prior to January 1st, 2011.
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