The relationship between a scheme member and its customers is primarily contractual, with the rights and obligations of both parties set out in the contractual documents, such as service or purchase agreements and any applicable terms and conditions.
When TDR considers a complaint, it may require copies of these documents in order to determine whether the scheme member has complied with its contractual obligations to the customer. TDR’s terms of reference require that complaints be brought within three years of the date the customer reasonably became aware of the problem, so scheme members’ information retention policies should reflect the need to retain and provide such documents at a later time.
It is best practice to obtain express agreement from a customer that they agree to terms and conditions and any other contractual provisions. For example, to accept an offer of service, the customer must sign a document which confirms their agreement to be bound by terms and conditions.
However, absent any express agreement, it may be inferred from a customer’s conduct that they accept the terms and conditions. Generally speaking, use of services can be taken as inference of acceptance. If a scheme member’s processes do not allow for express agreement as described above, the scheme member should ensure that the terms and conditions outline that agreement may be inferred. For example, by including a clause in the terms and conditions to the effect of “by using our services, you agree to be bound by these terms and conditions”.
For terms and conditions to form part of the customer’s contract, either through express or inferred agreement, they must be brought to the customer’s attention. Scheme members should ensure that terms and conditions are provided to the customer when the offer of services is made. Providing a link to the terms and conditions available on the scheme member’s website is sufficient.
Terms and conditions will change from time to time. TDR expects scheme members to provide the correct terms and conditions – ie, those applicable as at the date of the event complained about. These may not necessarily be the same as the current terms and conditions. Historic versions of webpages, including many online terms and conditions, can be accessed via the Internet Archives: https://archive.org/web/