- William Kanaan
Onerous term buried in standard terms and conditions not enforceable
The High Court considered whether an onerous clause relating to early cancellation fees within T&Cs was incorporated by reference into a supplier's standard terms and conditions (T&Cs) in a business-to-business.
The customer, via an e-signing system, signed the purchase order which contained these words: "by signing this document I agree I have logged on to the [supplier's] website at [weblink], have read agree and fully understand all terms and conditions regarding the contract and the policy protection scheme & free trial (*where applicable) and am bound by the same." The customer did not access nor read the T&Cs before signing. The customer's argument that the T&Cs were not incorporated failed as they were accessible on the supplier's website.
The customer then argued that a clause requiring it to pay early cancellation fees within those T&Cs was not incorporated on the basis that it was onerous, and the supplier had failed to draw sufficient attention to it.
The Court found that the clause was onerous so the supplier should have taken extra measures to draw the customer's attention to it. The judge criticised the T&Cs, saying they were "not in any way user-friendly to any reader, let alone a non-legal reader" and added that the clause in question was "cunningly concealed in the middle of a dense thicket which none but the most dedicated could have been expected to discover and extricate…". The judge ruled that the clause was not incorporated into the contract, though the other terms of the T&Cs were.
Blu-Sky Solutions Ltd v Be Caring Ltd  EWHC 2619 (Comm) (30 September 2021)