What To Do When A Customer Won't Sign Your Terms

What do you do when a customer won't sign your terms and conditions, but you need to start the job?

The reassuring answer is: you don't always need a wet signature to have a contract. In New Zealand, a contract can often be formed through emails, an accepted quote, an order form, a purchase order, or even conduct - if it's clear what was agreed.

The less reassuring part is that if your standard terms aren't properly accepted, some of the clauses you rely on may not apply. That can leave you exposed on payment timing, terms of sale, scope creep, cancellations, liability, intellectual property and who is responsible if something goes wrong.

So, before you send the first invoice or book your team in, it's worth pausing for a practical risk check.

Can You Start Work If The Customer Hasn't Signed Your Terms?

Yes, you can start work without a signed set of terms, but you should only do it if you're comfortable with the risk and you have some clear written acceptance.

New Zealand contract law doesn't usually require a special signing ceremony for ordinary business contracts. The key question is whether you can show:

• Offer: you clearly offered to supply goods or services on particular terms.
• Acceptance: the customer accepted that offer, either in writing or through their conduct.
• Consideration: each side is giving something of value, such as services in exchange for payment.
• Intention: both sides intended to create a business arrangement that can be enforced.

For example, if you email a quote saying, "This quote is subject to our attached terms of trade", and the customer replies, "Approved, please start Monday", you may have a stronger position than if you simply attach terms after the job has already started.

The risk is that a customer may later say they never agreed to your standard terms. If that happens, you may still have a contract for the work itself, but your protective clauses might be harder to rely on.

Those protective clauses often include:

• payment dates and late payment consequences
• deposit requirements
• limits on your liability
• cancellation fees
• ownership of materials, files or intellectual property
• variation or scope change processes
• business-to-business Consumer Guarantees Act 1993 exclusions, where valid

If the job is low value and low risk, a clean email acceptance might be enough. If the job is high value, complex, recurring or business-critical, it's usually worth insisting on a clearer contract before you begin.

Do Standard Terms Apply If They Weren't Signed?

Sometimes, but only if you can show the customer had reasonable notice of the terms and accepted them before or when the contract was formed.

This is where many businesses get caught. Sending your terms after the deal is already agreed may be too late. For example, if the customer accepts your quote on Monday, then you send an invoice on Friday with terms printed on the back, those terms may not form part of the original deal.

Your position is usually stronger if your process makes the terms hard to miss. For example:

• your quote says the work is supplied on your terms of trade
• the terms are attached to the quote or clearly available before acceptance
• the order form includes an acceptance statement
• the customer ticks a box or replies by email confirming acceptance
• you use the same process consistently for all customers

There can also be a "battle of the forms" problem. This happens when you send your terms, the customer sends their purchase order with their own terms, and both sides quietly start work. If there's a disagreement later, it may not be obvious whose terms apply.

The safest way to deal with this is to answer it directly. For example, your quote or order form can say that your terms apply and any customer purchase order terms are excluded unless you agree to them in writing.

For New Zealand businesses, your terms also need to sit comfortably with laws like the Fair Trading Act 1986 and the Consumer Guarantees Act 1993. A clause might be written down, but that doesn't always mean it's enforceable. Standard form small trade contracts can be reviewed under the unfair contract terms regime in the Fair Trading Act, so one-sided terms can create their own risk.

What Can You Do Instead Of Asking For A Full Signature?

You can use a lighter acceptance method, as long as it's clear, recorded and used before the work starts.

A full contract signature is great, but it's not the only practical option. If your customer is pushing back because signing feels too formal, slow or procurement-heavy, you can often use one of these approaches.

Option 1: Email Acceptance

Send the quote and terms together, then ask the customer to reply with a clear approval. For example:

"Please reply 'I accept the quote and attached terms of trade' if you'd like us to proceed."

Keep the full email chain. Don't rely on a phone call alone for anything important.

Option 2: Short Order Form

Use a one or two page order form or heads of terms that sets out the commercial details and incorporates your full terms by reference. This often feels less intimidating than a long contract.

The order form can cover the customer name, project scope, fees, deposit, timing, key business terms and a simple acceptance line confirming your standard terms apply.

Option 3: Click Acceptance

If you sell online, a tick-box process can work well. The customer should have a clear opportunity to read the terms before they place the order or subscribe.

A tick box saying "I agree to the terms and conditions" is usually stronger than a small footer link that the customer might never see.

Option 4: Purchase Order With Conditions

If the customer insists on issuing a purchase order, you can accept the order only on the basis that your terms apply. Put that in your acknowledgement email before you start.

If they push back, stop and resolve the mismatch. Silence can create uncertainty.

Which Clauses Are Worth Holding Firm On?

You don't need to fight over every clause, but you should know your must-haves before the negotiation starts.

When a customer won't sign your terms and conditions, the goal isn't to "win" the contract at all costs. The goal is to make a sensible call about risk.

For most suppliers, the clauses worth protecting are:

• Scope: what you're doing, what you're not doing, and how changes are approved.
• Payment: deposits, invoice timing, due dates, expenses and GST treatment.
• Cancellations and delays: what happens if the customer cancels, postpones or fails to provide information.
• Liability limits: a sensible cap on your liability, with carve-outs where needed.
• Intellectual property: who owns existing materials, new work product, licences and portfolio rights.
• Confidentiality: what information needs to stay private.
• Privacy: how personal information is handled, especially under the Privacy Act 2020.
• Consumer Guarantees Act position: whether you're contracting out of the CGA for business customers where the law allows it.

Under the Consumer Guarantees Act, you can sometimes contract out for goods or services supplied for business purposes, but it needs to be in writing and fair and reasonable. You can't simply exclude consumer rights in ordinary consumer sales.

Under the Fair Trading Act, you also can't mislead customers about what they're getting, and standard form small trade contracts can be challenged if they contain unfair contract terms. So, pushing for fair and balanced terms isn't just nicer to negotiate - it's usually safer.

A practical way to negotiate is to divide your clauses into three groups:

• Non-negotiable: clauses you need to manage major risk, such as payment, scope and liability.
• Flexible: clauses you can adjust, such as reporting frequency or minor process points.
• Nice to have: clauses you'd like, but can live without for the right customer or job size.

This helps you avoid giving away the clause that actually protects your margin.

How Do You Negotiate Terms Without Losing The Customer?

You can usually negotiate safely by keeping the conversation commercial, not legalistic.

Customers often resist terms because they don't understand them, they're dealing with internal procurement rules, or they've been burned by unfair contracts before. A calm explanation can go a long way.

Try a message like:

"I completely understand you don't want extra paperwork. The reason we need the terms accepted is so we're both clear on scope, timing, payment and what happens if things change. I'm happy to talk through any clauses that are causing concern."

Then ask what the customer is actually worried about. If they say the liability cap is too low, you might be able to raise it for a higher fee or insurance-backed project. If they dislike upfront payment, you might split the deposit into milestones. If they want ownership of IP, you might give them ownership of the final deliverables while keeping your pre-existing templates and tools.

Worked Example: A Website Project

Say Maya runs a Wellington web design studio. A customer approves a $12,000 website project but won't sign the studio's full terms. They say, "Let's just get started and sort the paperwork later."

Maya looks at the risk and suggests a short order form instead. It says:

• the customer pays a 40% deposit of $4,800 before work starts
• the balance is paid in two milestones of $3,600
• the project includes up to 10 pages and two rounds of revisions
• extra pages are charged at the agreed hourly rate
• Maya owns her pre-existing templates, code snippets and processes
• the customer owns the final approved website content once all invoices are paid
• the studio's standard terms apply unless the order form says otherwise

The customer replies, "Accepted, please invoice the deposit." That isn't as neat as a signed full contract, but it's far better than starting on a vague promise. Maya has a written record of the core terms, the money is staged, and the project scope is much harder to stretch.

What Should Your Order Form Or Acceptance Email Include?

Your order form or acceptance email should capture the deal essentials and clearly bring your terms into the contract.

Templates can be a helpful starting point, but they often miss the details that matter for your business model. A lawyer should tailor the document before you use it with customers, especially if you deal with high-value work, regulated industries, personal information or recurring services.

Here's a practical fill-in outline you can use to plan what needs to go in.

1. Customer Details: write the customer's legal name, NZBN if known, contact person and billing details.
2. Supplier Details: write your correct legal entity name, trading name, NZBN and GST status if relevant.
3. Scope Of Work: describe exactly what you'll supply, including quantities, deliverables or service levels.
4. Exclusions: list anything not included, such as extra revisions, travel, third-party costs or urgent turnaround.
5. Price And Payment: set out fees, GST, deposits, invoice dates, due dates and accepted payment methods.
6. Timing: include start dates, delivery dates, customer dependencies and what happens if approvals are late.
7. Acceptance Statement: state that the customer accepts the quote, order form and your terms of trade.
8. Customer Responsibilities: explain what the customer must provide, such as information, access, approvals or materials.
9. Changes: explain how variations are requested, priced and approved before extra work begins.
10. Key Legal Clauses: refer to your full terms covering liability, IP, confidentiality, privacy, cancellations and CGA contracting out where appropriate.

If the customer won't sign, ask them to reply with a sentence that confirms acceptance. Avoid vague replies like "Looks good" if the job is significant. Ask for wording that clearly says they accept the quote and terms.

Keep a copy of the exact version of the terms sent to the customer. If you update your website terms later, you don't want confusion about which version applied to that deal.

When Should You Get Legal Help With Your Terms?

You should get help when the contract value, customer size or legal risk is high enough that a misunderstanding would hurt your business.

For a simple low-risk sale, you may be comfortable using a well-written template and a clear acceptance process. For more serious work, tailored terms are usually worth it because small drafting gaps can create expensive confusion later.

Legal help is especially useful if:

• you sell recurring services, subscriptions or wholesale goods
• customers often ask for changes to your terms
• you supply to larger companies with procurement teams
• your work involves personal information, confidential information or valuable IP
• you need business-to-business CGA exclusions
• you use standard form contracts with small businesses and want to reduce unfair contract terms risk
• you operate online and need click-wrap acceptance, website terms or terms of sale

What drives the cost is usually the complexity of your business, how many documents you need, whether your terms need to work online and offline, and how much negotiation support is involved.

Your main options are:

• Free template: cheapest upfront, but often generic and not built around your risk, workflow or New Zealand legal requirements.
• Online fixed-fee legal service: usually clearer on cost, with documents tailored to your business and a set scope agreed at the start.
• Traditional hourly billing: can suit complex negotiations, but costs may be harder to predict if there are multiple rounds of changes.

The right level of help depends on what you're selling and what's at stake. If a single customer contract could materially affect your cash flow, it's sensible to get the legal foundations sorted before you start work.

Key Takeaways

• A signed contract is helpful, but New Zealand contracts can also be accepted by email, order form, online tick box or conduct.
• Your standard terms are much stronger if the customer sees and accepts them before work starts.
• If a customer won't sign, consider a short order form, clear email acceptance or a purchase order acknowledgement that confirms your terms apply.
• Don't give away your must-have clauses without thinking through payment, scope, liability, IP, confidentiality, privacy and CGA risks.
• Keep records of the exact terms accepted, including the version sent to the customer and the acceptance email.
• Tailored terms of trade can make sales conversations easier because everyone knows what they're agreeing to from day one.

If you'd like help with your terms of trade, order forms, customer acceptance process or contract negotiation strategy, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.