Free months with subscription: provide good promotional terms

If you offer free months with a subscription, clearly state in the promotional terms and conditions whether those months fall within the subscription period or are in addition to it. If you fail to do so, there is a high probability that an unclear agreement will be interpreted in the consumer's favor. After all, in consumer contracts, an unclear clause is interpreted in the manner most favorable to the consumer. A few lines of promotional terms and conditions will thus prevent you from having to bear the cost of lost membership fees, hassle regarding cancellation periods, and reputational damage.

Why “two months free” leads to debate

Offering two, three, or even six months for free with the purchase of a subscription is a tried-and-tested way to win customers over. The trick, however, lies in the wording, and particularly in the question of what those free months do to the subscription term. Do they fall within the agreed duration, or do they only start counting after the paid subscription has ended?

That difference is no small detail. It determines how many months the customer pays, but it also affects agreements at the end of the contract: the notice period, the timing of automatic renewal, and practical matters such as returning a pass or access device. If it is unclear when the agreement ends, it is also unclear when all those terms begin to run.

10 + 2 or 12 + 2: the difference in a nutshell

The core of virtually every dispute regarding free months can be reduced to two formats:

• 10 + 2 (within the term): the customer signs up for twelve months and pays for ten; the last two months are free. The free months fall within the agreed duration.
• 12 + 2 (on top of the term): the customer pays for twelve months and receives two free months on top of that. The total duration is fourteen months, and the free period is in addition to the paid term.

Both models are permitted. The problem only arises if you do not specify which format applies, because then the same text is open to two interpretations.

The Basic-Fit case: 10 + 2 or 12 + 2?

A telling example comes from a dispute with gym chain Basic-Fit. A consumer took out a one-year subscription and received “two months free” with it. Disagreement arose regarding the interpretation of this:

• Basic-Fit's explanation: the two free months are in addition to the annual subscription. The paid twelve-month subscription only starts after that, so the total duration is fourteen months (12 + 2). The customer therefore pays twelve months of membership fees.
• The consumer's interpretation: the two free months fall within the agreed twelve months (10 + 2). The customer then pays ten months of membership fees, and the last two months are free.

The offer was a temporary promotion and was not detailed in the general terms and conditions. Neither the welcome email nor the agreement itself stipulated that it concerned the “twelve months plus two months free” format. As a result, Basic-Fit could not substantiate that this interpretation was intended, and the consumer was vindicated: the final two months did not have to be paid for.

It is telling that providers subsequently started communicating the format even more sharply. Those who describe the offer clearly, for example as a contract consisting of a fixed number of weeks at the same price, leave much less room for discussion about what “free” actually means.

Why the consumer wins the doubt

It is no coincidence that the consumer comes out on top here. In consumer contracts, a clause that can be interpreted in more than one way is interpreted in favor of the consumer. This contra proferentem rule essentially means that ambiguity is at the expense of the party that drafted the text, usually the entrepreneur. After all, it was in their power to formulate the agreement clearly.

The reasoning behind this is reasonable: whoever writes the terms and conditions also bears the consequences of sloppy or ambiguous wording. For you as an entrepreneur, this means a simple lesson. If you leave an agreement open to two interpretations, in practice you do not choose which interpretation applies yourself; instead, the customer prevails in the doubt. In business-to-business (B2B) relationships, a judge is not obliged to apply this rule, but even there, unclear text often works to the disadvantage of the drafter.

In addition, separate rules regarding automatic renewal and cancellation play a role for consumer subscriptions. We delve deeper into this in our article Consumers and subscriptions: a difficult combination.

Here's how to avoid disputes: draw up terms and conditions for the promotion

Terms and conditions and welcome emails are rarely tailored to the specifics of a temporary promotion. This is precisely where room for discussion arises. Clear promotional terms close that gap. Ensure that at least the following is unambiguously established:

• The format of the promotion: do the free months fall within the duration (10 + 2) or are they in addition to it (12 + 2)?
• The total duration and the end date of the agreement, including the free period.
• The start date: when does the free period begin, and when does the paid part start?
• The notice period and the moment of tacit renewal, and from which moment they commence.
• The validity period of the promotion and any conditions, such as “only for new members”.

Because promotional terms affect other agreements, it is best to consider the relationship with your general terms and conditions. Sometimes it is wise to include a clause stating that the promotional terms take precedence on specific points, so that no conflict arises between the two documents. If you run a gym or fitness concept, it pays to tailor your terms to your industry immediately, for example with general terms and conditions for gyms and personal trainers.

Communicate the action consistently

A comprehensive set of promotional terms and conditions only helps if you tell the same story everywhere. Ensure that the promotion page, the registration form, the welcome email, and the confirmation do not contradict each other. In a dispute, even a differing wording in an email can be enough to tip the balance in the customer's favor.

Frequently asked questions about free months with a subscription

Do the free months fall within or outside the subscription period?

That depends entirely on what you stipulate. If you do not write anything down, the agreement is open to two interpretations, and the interpretation most favorable to the consumer will be followed. If you want the free months to be in addition to the term (12 + 2), stipulate this explicitly and in all places.

What does “two months free” mean legally?

On its own, that sentence says nothing about the duration. It does not clarify whether it concerns 10 + 2 or 12 + 2 months. Only in combination with a clear mention of the format, the total duration, and the end date does the promotion acquire an unambiguous meaning.

Do I need to amend my terms and conditions for a promotion?

Not always, but certainly if the promotion deviates from what is stated in your general terms and conditions regarding duration, cancellation, or renewal. In that case, you prevent inconsistencies by stipulating in the general terms and conditions that promotional terms take precedence on those points.

Does this uncertainty rule also apply between companies?

The statutory rule that unclear clauses are interpreted in favor of the consumer applies to consumers. Between businesses, a judge is not bound by this, but even then, unclear wording can turn out to the disadvantage of the drafter. Clear agreements are therefore always in your best interest; if you have doubts about an ongoing matter, you can turn to our legal assistance for entrepreneurs.

What if the customer refers to the welcome email?

All communication regarding the agreement counts towards interpretation, including welcome emails and promotional pages. If such an email contradicts your terms or leaves room for interpretation, this could work against you in a dispute. Therefore, keep your communication consistent.

Can I still change a free months promotion retroactively?

For customers who have already signed under the old terms and conditions, what you agreed upon at that time applies; you cannot unilaterally extend an existing agreement to your advantage. For new registrations, you may adjust the promotion and the terms and conditions, provided you communicate this clearly and in advance. Therefore, include a stated validity period and a version date in your promotional terms and conditions.

Have your promotional terms and conditions legally watertight

Are you organizing a promotion where you are giving away several months of a subscription? Then have the promotional terms drafted by one of our legal experts. They ensure that the format, duration, and cancellation periods are watertight and immediately review your general terms and conditions and welcome emails so that all documents are consistent. We make a sport of making clear agreements, and Basic-Fit should have done the same.

• Help with contracts and terms and conditions: view our expertise in contract law.
• Do you want to have your terms and conditions drafted or reviewed? Start by scheduling an intake.