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A reference clause is the sentence (on your invoice, quotation, order form, email, or website) in which you make it clear that your general terms and conditions apply and where the other party can find them. Without such a clause, a dispute arises as to whether the terms and conditions apply—and you lose the protection they provide. Therefore, provide a timely and specific reference, with a direct location.
In disputes concerning general terms and conditions, the central question often revolves around whether they apply at all. For this to be the case, they must have been properly notified, and the referral clause plays a central role in this regard.
What is a referral clause?
A reference clause refers to the general terms and conditions applicable to the contractual relationship. You include these, for example, at the bottom of invoices, order forms, and quotations, as well as in emails and on your website. The purpose: the counterparty knows that the terms apply and where they can be read. Be sure to provide a timely reference—preferably before or at the time of concluding the agreement.
What is stated in a referral clause?
The clause refers to the terms and conditions and indicates where they can be found: on the back, filed with the Chamber of Commerce, or on your website. Please note the requirements:
- Merely referring to the general web address is not sufficient; the counterparty does not have to search for the correct terms and conditions on your site themselves. The clause must at least a direct (electronic) address where the terms and conditions can be consulted.
- Merely referring to filed terms and conditions suffices only if delivery is not possible — although that is often possible. Nevertheless, filing remains useful.
The clause must make clear that the terms and conditions form part of the agreement and where they can be found. It may contain additional provisions: for example, the Rotterdam District Court ruled that an arbitration clause in a referral clause is valid (ECLI:NL:RBROT:2018:5135). Please note, however: core terms belong in the main document, not the general terms and conditions — preferably add them as a separate clause, rather than confusing them with the reference.
What if I don't have a referral clause?
Without a referral clause, there is a dispute as to whether the terms apply. Merely sending the terms does not mean that the counterparty knew they applied. As a result, you lose their benefits, such as the limitation of liability or the payment terms — which can cost you dearly.
Frequently Asked Questions
Is a link to my website sufficient?
Not if you only refer to the general web address. The counterparty should not have to search for the terms and conditions themselves; provide a direct (electronic) address where they can be consulted.
Is filing with the Chamber of Commerce sufficient?
In principle, merely referring to filed terms and conditions is not sufficient if you can also provide them. Filing remains useful, however, as a supplement.
What happens without a referral clause?
In that case, the opposing party may dispute that your terms and conditions apply, causing you to lose out on their protection. A correct reference is therefore essential.
Have the conditions and correct referral arranged
The legal experts at MKB Juristen draft your terms and conditions and ensure that you refer to them correctly. View our expertise in contract law or schedule a free consultation .
