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Drafting general terms and conditions involves three steps: first, you determine who you are doing business with (consumer or business); next, you draft the clauses that suit your risks; and finally, you set up the process by which you provide the terms before concluding the agreement. This last step is most often overlooked and is just as legally significant as the text itself. Without timely provision, the customer can invalidate your clauses (Article 6:233 of the Dutch Civil Code), and you will have to rely on the law. Below is the full table of contents, the pitfalls, and the differences between B2B and B2C.
The short answer
- Determine your target group: for consumers, the black and grey lists apply (Articles 6:236 and 6:237 of the Dutch Civil Code).
- Inventory your risks: non-payment, damage, delays, additional work, intellectual property.
- Do not include the core terms in the general terms and conditions: price and description belong in the quotation.
- Include the standard blocks: payment, delivery, liability, force majeure, complaint period, choice of law.
- Arrange for provision: refer to it in the quotation and send it as an attachment, not only with the invoice.
- Update in case of new services, new legislation, or a changed revenue model.
Drafting general terms and conditions: start with your risks
A set of terms and conditions is not a collection of standard texts, but an answer to the question of what can go wrong in your company. If you work with long-term projects, additional work is your biggest risk. If you supply hardware, retention of title and warranty are more important. If you build software, it revolves around intellectual property, maintenance, and availability. Therefore, first put your five biggest risks on paper and write the corresponding clauses. Sections that do not cover a risk only make the document longer.
What does not belong in it is just as important. The price and the description of what you deliver are core terms: they belong in the quotation or the agreement itself. A data processing agreement under the GDPR also does not belong in the terms and conditions, but in a separate agreement.
The content block by block
- Definitions and applicability. To which agreements do they apply, and do you expressly reject the customer's terms and conditions?
- Quotation and conclusion. Validity period, non-binding nature, when the agreement is concluded.
- Prices and payment. Payment term, prepayment, price indexation, set-off and suspension.
- Late payment. Interest and extrajudicial collection costs. For consumers, the statutory scale and the fourteen-day notice apply; between businesses, you may agree on a percentage yourself.
- Execution and deadlines. Are delivery times indicative or binding? Also arrange what you need from the client.
- Changes and additional work. How additional work is determined, approved, and settled.
- Liability. Limitation to the invoice amount or the insured sum, exclusion of consequential damages, a limitation period.
- Force Majeure. Supplement to Art. 6:75 of the Dutch Civil Code, with examples and the consequences for ongoing obligations.
- Warranty and complaint period. Within what period must the customer lodge a complaint (in accordance with Art. 6:89 BW)?
- Retention of title. Indispensable for the delivery of goods (Art. 3:92 BW).
- Intellectual property and confidentiality. Who gets which rights, and what can you use as a reference?
- Termination and dissolution. Time limits, grounds, and consequences for work already performed.
- Applicable law and competent court. Dutch law and your own district, with the caveat that a consumer is not obliged to simply accept that choice.
Consumer or business: that changes the text
If you supply to consumers, a large part of consumer law is mandatory. The black list (Art. 6:236 BW) prohibits, among other things, the complete exclusion of your liability and the deprivation of the right to rescission. The grey list (Art. 6:237 BW) casts suspicion on clauses such as a very short complaint period or a unilateral price change clause: these are presumed to be unreasonably burdensome, unless you prove otherwise. If you sell online, the fourteen-day right of withdrawal and the information obligations for distance contracts are added on top of this.
Between companies, you have more freedom, but not unlimited freedom. The open test of Art. 6:233 sub a of the Dutch Civil Code continues to apply, judges sometimes grant a reflexive effect to self-employed professionals and small business owners, and an exclusion never works in cases of intent or conscious recklessness (Art. 6:248 paragraph 2 of the Dutch Civil Code). If you work with both groups, create two sets or include a clear consumer chapter. A single set that attempts to cover everything at once is often assessed under the strictest regime in practice.
The provision: where things usually go wrong
Even a perfectly written set is worthless if the client has not received it on time. The duty to provide information under Art. 6:234 of the Dutch Civil Code requires you to provide the terms and conditions before or at the time of concluding the agreement. In practice:
- Explicitly refer to the terms and conditions in the quotation or the ordering process.
- Send them along as a PDF attachment, or let the customer check a downloadable version online.
- Provision digitally is permitted without further ado if the agreement is concluded electronically; in other cases, the customer's consent is required.
- Keep the proof: the sent quotation with attachment, or the logging of the agreement.
Only if providing them in advance is not reasonably possible may you state where the terms and conditions are available for inspection and that you will send them free of charge upon request. This exception is interpreted strictly and almost never applies to a standard quotation. Filing with the Chamber of Commerce is not an alternative in this regard: it is neither a provision nor a statutory obligation.
Practical example
A design agency works with a copied set from a colleague. It contains a complaint period of eight days and an exclusion of liability for all damages. In a dispute with a private client, both clauses fail: the exclusion is blacklisted and the complaint period is too short. After rewriting, it includes a limitation to the invoice amount with a limitation period of twelve months, plus a separate chapter for consumers. That version holds up.
Honest recommendation
You don't always need a lawyer for this. If you provide standard services to business clients, with assignments of limited scope and without particular liability risks, you can write a solid set yourself using the blocks above. Focus your energy primarily on the process: referring to it in the quotation, sending it as an attachment, and saving for approval. That provides more protection than a longer text.
Do seek assistance if you supply to consumers, sell online, offer software or subscriptions, work with subcontractors, execute projects worth tens of thousands of euros, or deal with purchasing terms and conditions from major clients. In those cases, exactly one clause, usually the liability clause, determines whether an incident affects your business or not. In any case, never copy another company's terms and conditions: they rarely match your risks and may be protected by copyright.
Arrange it or read on: general terms and conditions (GTC), background on what are general terms and conditions GTC and outsourcing via having general terms and conditions GTC drafted.
Frequently Asked Questions
Start with your risks, not with a sample text. Put your five biggest risks on paper (non-payment, damage, delays, additional work, intellectual property) and add corresponding clauses. Then determine whether you supply to consumers or businesses, as this changes what is legally permitted.
Applicability, formation, prices and payment, interest and collection costs, performance and deadlines, additional work, liability, force majeure, warranty and complaint period, retention of title, intellectual property, confidentiality, termination and dissolution, and applicable law with competent court.
This does not apply to consumers: complete exclusion is on the blacklist of Article 6:236 of the Dutch Civil Code. Between businesses, you may limit coverage, for example to the invoice amount or the insured sum, but invoking this limitation will not succeed in cases of intent or conscious recklessness.
Better not. They are written for different risks, different services, and sometimes a different customer group, meaning essential clauses are missing or, conversely, invalid. Additionally, the text may be protected by copyright. Use an example as a checklist at most.
If you supply both groups, then yes, or at least a clear consumer chapter. For consumers, the black and grey lists, the right of withdrawal for distance selling, and mandatory conformity rules apply. In practice, a single mixed set is often assessed under the strictest regime.
Refer to the terms and conditions in the quotation or the ordering process and send them along as an attachment, before or at the time of concluding the agreement. Digital submission is permitted without further ado if the agreement is concluded electronically; otherwise, the customer's consent is required. Always retain proof of sending or agreement.
With every substantial change: new services, a different revenue model, sales to a new customer group, or relevant changes in legislation. Furthermore, a review every two to three years is customary. Changes only apply to agreements concluded thereafter, unless you have a valid amendment clause.
