MKB Juristen drafts custom legal documents
It is best not to cobble together or copy important contracts, terms and conditions, and other legal documents yourself. We help entrepreneurs on a budget with customized legal solutions, clear costs upfront, and practical explanations.
- Custom contracts, terms and conditions, and legal documents
- Budget-friendly and clear about the costs upfront
- Request a free consultation or a no-obligation quote
Drafting general terms and conditions for a mediation agency revolves around one central question: when does the right to commission or success fee arise, and for what are you and are you not liable? A mediation agency operates on the basis of a mediation agreement (Article 7:425 of the Dutch Civil Code) and provides a best-efforts obligation, not a guarantee of result. Good terms and conditions establish this and also regulate exclusivity, termination, payment, and liability. Below are the building blocks that absolutely must be included.
The short answer
- Applicability and definitions: to which assignments do they apply, who is the client, what is the “third party”.
- Nature of the assignment: mediation agreement (Art. 7:425 BW), obligation of best efforts.
- Remuneration: amount and the moment at which commission or success fee becomes due.
- Exclusivity: exclusive right or not, and the consequences thereof.
- Liability: limitation to direct damage and to the commission.
- Duration and termination: term, notice period, compensation for early termination.
Drafting general terms and conditions for an intermediary agency: the basics
Start at the top with applicability: declare the terms and conditions applicable to every mediation assignment and ensure that you provide them before or at the time of concluding the agreement (Articles 6:233-234 of the Dutch Civil Code). If you fail to do so, the other party may annul them, and you will have to rely solely on the law.
Next, establish the nature of the assignment: the agency acts as an intermediary pursuant to Article 7:425 of the Dutch Civil Code and has a best-efforts obligation. This sentence prevents the most common claim—that you “promised” a result. Also define who the client is and what you understand by the “introduced third party,” as these terms will later determine whether commission is due.
The compensation: the pivot point
This is the article where the money and the conflicts lie. Document at least:
- Form of remuneration: success fee (only upon result), fixed rate, retainer, or a percentage of the purchase or rental price.
- Moment of accrual: precisely when the right arises — upon signing the agreement with the third party, at the time of “presenting”, or upon the execution of the deed.
- Off-market clause: commission remains due if the client contracts with the proposed party within a specified period after the assignment.
- Payment term and consequences of late payment: interest and collection costs.
Be explicit here. “Upon success” is too vague — success of what, and at what moment measured? Link the obligation to an objective, verifiable moment.
Exclusivity and termination
Determine whether the assignment is exclusive. In the case of an exclusive assignment, only your agency has the right to act as an intermediary; agree that commission is also payable to a party found by the client themselves, and for what period this applies.
Regarding termination, the following applies: a mediation agreement is a contract for services, so the client can in principle always terminate the agreement prematurely (Art. 7:408 BW). You cannot completely exclude this right, but you can stipulate:
- Reimbursement for work already performed and costs incurred.
- That the clause regarding non-intermediary involvement continues for a period even after termination.
- A reasonable notice period for an ongoing assignment.
Limit liability
You act as an intermediary, but are not a party to the final deal. Therefore, limit:
- Regarding direct damage: excludes consequential damage, lost profits, and indirect damage.
- Up to a maximum: for example, the amount of the commission paid.
- For the nominated party: stipulate that you are not responsible for the solvency, reliability, or performance of the third party.
Please note: you cannot exclude liability for intent or conscious recklessness, and stricter limits apply to consumers (the “grey and black lists”, Art. 6:236-237 BW).
Brief SME example
A commercial intermediary connects an SME customer with a foreign supplier. The terms and conditions state that the success fee is due upon the first order, and that the agency is not responsible for the quality or delivery by the supplier. If a delivery problem arises later, the fee remains due, and the customer cannot hold the agency liable for the supplier's breach of contract. Two sentences that prevent a claim.
Honest recommendation
If you work exclusively with other companies, with a single clear rate and a clear due date, you can perfectly well draft a solid set of terms and conditions yourself — a lawyer is not strictly necessary in that case. As soon as you work with consumers, engage in double brokerage, charge high success fees, or impose exclusivity, it becomes riskier: that is where poorly formulated provisions fail. In that case, have the terms and conditions reviewed, with an emphasis on the due date and the liability limit.
Read more: general terms and conditions for a mediation agency, what are these conditions , and having them drafted: costs and process.
Frequently Asked Questions
At a minimum: applicability and definitions, the nature of the assignment (mediation agreement, best-efforts obligation), the remuneration and the moment at which it becomes due, exclusivity, limitation of liability, and the rules regarding duration and termination.
Link the obligation to pay to an objective, verifiable moment: for example, the signing of the agreement with the third party or the execution of the deed. Add a clause making commission also due if the client subsequently contracts with the proposed party within a specified period.
Yes. A success fee, where you are only paid upon a result, is common in recruitment and trade mediation. However, do clearly define what counts as “success” and at what point the fee arises, so that there is no dispute if the deal falls through later.
Not completely. You cannot exclude liability for intent or conscious recklessness, and stricter limits apply to consumers (Articles 6:236-237 of the Dutch Civil Code). You can, however, limit liability to direct damage and to a maximum of the commission paid.
That is a choice. With an exclusive assignment, only your agency has the right to act as an intermediary; in that case, stipulate that commission is also payable to a party found independently and for what period. Without exclusivity, the client may also engage other agencies or engage themselves.
No, not entirely. As a contract for services, the client can in principle always terminate the contract (Article 7:408 of the Dutch Civil Code). However, you can stipulate that work already performed and costs incurred are reimbursed, and that the commission clause continues for a period after termination.
Provide the terms and conditions to the other party before or at the time of concluding the agreement (Articles 6:233-234 of the Dutch Civil Code). If you fail to do so, the other party may invalidate the terms and conditions. Refer to them in the quotation or order confirmation and include the text.
