Terms And Conditions - Reasonable Or Not?

Jim,

Thanks for sharing.

Paragraph 1 did not really concern me. The portion you excepted, the way I read it, means that the terms in conditions listed there (paragraphs 1 to 21) are all of them. It seems reasonable that they don't want people to say 'hey you told me on the phone that I'd get half off or I don't need to pay for 1 year'. This way, paragraph 1 makes it explicit that any term not listed in that document needs to be explicitly put in writing as they say later in the paragraph: "Customer expressly agrees Streakwave will not be bound by any terms and conditions set forth by Customer unless previously agreed to by Streakwave management in writing."

As for paragraph 11, here it is:

"Customer agrees to indemnify and hold Streakwave and its officers, directors, servants, employees, agents and advisors harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorneys' fees and costs) or liabilities that may result, in whole or in part, from any third party using the Products provided under this agreement. Any defense provided hereunder shall be by counsel of Streakwave's choice."

This seems fairly reasonable and commonplace. They are a distributor, not the manufacturer. If something goes wrong with the product. A radio bursts in to flames and burns down the end user's building, Streakwave is making sure you cannot sue them. You could, of course, sue the manufacturer, unless they make you sign similiar terms and conditions :)

Even if you click through and buy something from a company with unreasonable T&Cs doesn't mean it's legal and binding in court. I'm not saying it's the case here, but in general, a company cannot absolve themselves of all liability no matter how they word it. A judge or jury may not agree with the terms and rule how they see fit.

I have had the same problem with other contracts from manufacturers. I also think I am one of the rare individuals that reads these T&C. Although sometimes I don’t, with for example Apple or Microsoft, it really would be a take it or leave it with some companies.

I recently was presented a contract with a company in a different industry, which said if we (the company) decide to terminate this relationship, you have 90 days to liquidate your inventory and we will refer your customers to another vendor. There are frequently these one sided statements.

I can tell you with many companies you can negotiate changes to the T&M. It all depends on how much they want your business and your willingness to go someplace else if they won’t be more reasonable.

Not to put too fine a point on it, but if you are submitting a P.O. you can put any verbiage you want on it, and if it's not too much of a red-flag it will generally be ignored by the vendor's sales clerk. This effectively modifies (or at least gives you a solid explanation for a judge) their prior T&Cs. Of course this doesn't help if it's an online click-thru form...

The key take-away here is read the fine print. That is especially true with RFP responses, large-value contracts and support agreements. Question everything that looks suspicious or calls for you to give up your rights.

If you aren't happy with the stated terms, try to negotiate better ones or perhaps it would be in your best interest to pick another vendor. The vendors insert certain language to protect themselves, even from their own negligence. The customer must take the same attitude or be left high and dry when the vendor points to a "get out of jail free" clause.