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General terms and conditions only protect you if they are legally applicable. Two things often go wrong: you fail to declare the terms applicable (in a timely manner), or you fail to provide them. Both mistakes render your terms worthless the moment you need them.
Conditions must be declared applicable
Your general terms and conditions do not apply automatically. You must declare them applicable to the agreement, and the other party must accept this (implicitly). Therefore, refer to them clearly in your quotation, order confirmation, or ordering process. If you fail to do so, your terms and conditions do not apply.
Conditions must be provided
In addition to declaring them applicable, you must provide the terms and conditions: the other party must have been able to take notice of them before or at the time of concluding the agreement (Articles 6:233 and 6:234 of the Dutch Civil Code). A mere reference without sending the terms and conditions along or offering them in a saveable format is often insufficient, resulting in voidability.
The battle of forms
If both parties refer to their own terms and conditions, those of the first party to refer apply in principle (the first shot rule, Article 6:225 paragraph 3 of the Dutch Civil Code), unless the other party expressly rejects them. Therefore, refer as early as possible and reject the other party's terms and conditions.
This is how you do it right
Declare your terms and conditions applicable by default in every quotation and confirmation, provide them simultaneously (send them along or offer them as saveables), and reject the terms and conditions of others. This prevents your terms and conditions from being invalidated in a dispute.
Frequently Asked Questions
Do my general terms and conditions apply automatically?
No. You must declare them applicable and provide them. Otherwise, they are not valid or are voidable.
Is a link to my website sufficient?
Often not. Send the terms and conditions along or offer them in a saveable format so that the other party can review them.
Whose terms apply in a battle of forms?
In principle, those of the first referrer, unless the other party expressly rejects them (Article 6:225 paragraph 3 of the Dutch Civil Code).
Want to be sure your terms and conditions apply?
Our legal experts draft your general terms and conditions and perform a terms and conditions scan. View our contract lawteam or schedule a free consultation.
