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Many companies make a general reference to the BIFA terms in their correspondence and documents as a basis for using the standard terms as their contract terms. One of the most important things is to ensure that the terms are properly incorporated and referenced as the contract is made. BIFA Terms and Conditions As a general rule, the standard terms should be referred to as early as possible in any negotiations. For example, either a copy of the terms should be given or should be specifically referred to in any pre-contract exchanges.
Alternatively, you should try to ensure your contracting party is aware that a copy of the terms can be requested from you or, they can be found at a particular website address. This is particularly important when the BIFA terms are relied upon when dealing with parties who are based outside of the UK. If there is time, a copy of the BIFA terms should be sent to your contracting party in advance of the contract being concluded It is worth highlighting that a company should not assume they can rely on the terms and conditions printed on the reverse of invoices, since invoices are usually submitted after the event, and not when the contract is entered into.
This might not be sufficient evidence of incorporation of the terms. Claiming the benefit of the limitation clauses in the BIFA terms Clause 26 A of the BIFA terms contains the right to limit liability if a reasonable degree of care, skill and judgement has been exercised. If a company has agreed to arrange insurance, to cover risk but fails to organise that insurance it may not be possible to claim the benefit of the limitation set out in Clause 26 A of the BIFA terms.
The limitation figures in the BIFA terms can be overridden by particular legislation that is compulsorily applicable to a trade. Notwithstanding that many companies will try to argue that the BIFA terms should apply to a claim with a view to trying to keep their liability as low as possible.
You may then ask why is it necessary to use the BIFA terms if the limits can be overridden in any event?
The International Conventions are limited to the carriage of goods. As such, you should try to ensure that you limit liability at a much lower level, for which you need to properly incorporate your BIFA terms. If a non-current or non-BIFA member seeks to incorporate BIFA terms in their contracts with third parties, there may arguably be an issue of misrepresentation on their part. As such, the validity of the terms and their incorporation could be called into question.
Incorporating the BIFA terms and conditions into your contract
Standard Trading Conditions 2017 Downloads