In common law jurisdictions, the ‘battle of the forms’ is typically resolved by the ‘last shot’ principle. The contract is formed when the last set of terms is sent and the other party performs (e.g., delivers goods or makes payment) without objecting to those terms. This performance is seen as acceptance of the last offer’s terms.

A variation or change control clause is essential for managing changes to the contract. It establishes a formal process that both parties must follow to agree on any changes to scope, service levels, price, or other key terms. This prevents either party from imposing unilateral changes and ensures modifications are documented and agreed upon.

A clause excluding liability for indirect or consequential loss is a standard limitation of liability. However, for the buyer, it is problematic because it can prevent recovery of significant business damages that are a foreseeable result of a breach, such as lost revenue, opportunity costs, or increased operational expenses. Buyers often seek to negotiate such exclusions or cap them in some way.

A valid liquidated damages clause (one that represents a genuine pre-estimate of loss at the time of contract formation, not a penalty) provides certainty for both parties. The buyer knows the compensation they will receive for a specific breach (e.g., £X per week of delay), and the supplier knows their maximum liability for that breach. This saves time and cost associated with proving actual, often complex, financial losses in court.

When a contract ends and the parties continue to act as if it is still in force, a new contract can be implied by their conduct. The buyer’s request to continue and the consultant’s provision of services (and subsequent invoice) demonstrate offer, acceptance, consideration, and intention to create legal relations. The terms of this new contract are likely to be based on the terms of the expired one.

A Force Majeure event is typically defined as an extraordinary, external event beyond the reasonable control of the parties that could not have been foreseen or avoided. A government embargo fits this definition. The other options (market fluctuations, internal equipment failure, and internal labor disputes) are generally considered commercial risks or internal problems within a party’s control and would not be valid Force Majeure events under a standard clause.

The entire agreement clause (or integration clause) aims to provide contractual certainty. It ensures that the written, signed document is the single, definitive source of the parties’ obligations. This protects both parties by preventing disputes based on ‘he said, she said’ claims about what was promised during pre-contract negotiations, unless those promises were incorporated into the final written agreement.

The buyer has a duty to mitigate (minimize) their loss following a breach of contract. By sourcing the component elsewhere to avoid a greater business disruption, the buyer is fulfilling this duty. They can then claim from the original supplier the difference between the original contract price and the higher price paid as damages for the breach. This is a standard measure of direct loss.

In contracts for critical services (like medical, utilities, or IT infrastructure), step-in rights are a key risk management tool. They allow the client to intervene directly or appoint another contractor to perform the service if the main supplier is in material breach or fails to deliver, preventing a dangerous or costly service interruption. This is crucial where service failure has severe consequences beyond mere financial loss.

In common law jurisdictions, the ‘battle of the forms’ is typically resolved by the ‘last shot’ principle. The contract is formed when the last set of terms is sent and the other party performs (e.g., delivers goods or makes payment) without objecting to those terms. This performance is seen as acceptance of the last offer’s terms.0