Are you allowed to draft your own terms and conditions?

Yes, you may draft general terms and conditions yourself. The law does not require you to engage a legal expert or lawyer for this. Nor are you required to have general terms and conditions.

However, the question is not just whether it is allowed. The most important question is whether it is wise. After all, general terms and conditions determine your legal position regarding payment, delivery, complaints, liability, warranty, force majeure, collection, and disputes.

A poorly drafted document provides a false sense of security. The text appears to offer protection, but it is ineffective if things go wrong. Therefore, it is wise to always have general terms and conditions drafted by yourself legally reviewed.

Are you allowed to draft general terms and conditions yourself?

Yes, that is allowed. You can write your own general terms and conditions, use a template, or use the terms and conditions of a trade association as a basis.

That does not automatically make the document correct. General terms and conditions must suit your business, customers, products, services, and risks. A webshop requires different terms and conditions than a consultancy firm, software company, construction company, or employment agency.

You must also take mandatory law into account. Strict rules apply, especially to consumers. A provision that works for business customers may be invalid for consumers.

Are general terms and conditions mandatory?

No, general terms and conditions are not mandatory. You can also enter into agreements without general terms and conditions.

However, for many entrepreneurs, that is unwise. Without general terms and conditions, you are more likely to fall back on statutory rules. Those rules do not always provide sufficient protection for your business.

With good general terms and conditions, you establish standard agreements. Think of payment terms, collection costs, retention of title, complaint procedures, limitations of liability, and dispute resolution.

Why do entrepreneurs use general terms and conditions?

Entrepreneurs use general terms and conditions to create clarity. Customers then know in advance which rules apply. You avoid having to hold the same discussion over and over again.

Good terms and conditions are particularly helpful for recurring agreements. Consider payment, delivery, warranty, cancellation, liability, complaints, and force majeure.

In addition, general terms and conditions strengthen your evidentiary position. If a customer fails to pay or complains about your services, you can fall back on clear agreements.

What must be included in general terms and conditions?

What should be included in general terms and conditions depends on your business. There is no fixed standard that is suitable for every company.

Common provisions concern quotations, the formation of agreements, prices, payment, delivery, performance, deadlines, complaints, warranty, liability, force majeure, suspension, dissolution, collection costs, retention of title, and applicable law.

In service provision, scope, additional work, delivery, and liability are often important. In the sale of products, delivery, transfer of risk, retention of title, and warranty play a greater role.

What are the risks if you draft general terms and conditions yourself?

The biggest risk is that you forget important topics. Many entrepreneurs focus primarily on payment and liability, but forget complaints, evidence, termination, retention of title, or force majeure.

A second risk is that provisions are too strict. This can cause problems, especially for consumers. A clause that is too one-sided may be voidable. In that case, you cannot use that provision.

A third risk is that the terms and conditions do not align with your practice. If your website, quotation, order confirmation, and invoices state something different from your terms and conditions, a dispute will still arise.

Are you allowed to use terms and conditions from the internet?

You may use an example from the internet, but that is legally risky. A template is usually generic. It is not written for your company, industry, customers, or risks.

Many free templates contain provisions that do not suit your situation. Sometimes they are outdated. Sometimes they are too strict for consumers. Sometimes, the very provisions you need are missing.

Copying a competitor's terms and conditions is also unwise. You do not know whether those terms are legally sound. Moreover, they may not align with your working methods or business model.

General terms and conditions for consumers or businesses

It makes a big difference whether you sell to consumers or to businesses. Stricter rules apply to consumers.

Consumers are protected against unreasonably burdensome provisions. To this end, the law provides for, among other things, a black list and a grey list. Provisions on the black list are prohibited. Provisions on the grey list are presumed to be unreasonably burdensome.

Business clients enjoy greater contractual freedom. However, this does not mean that anything goes. Even in B2B relationships, a clause may, under certain circumstances, be disregarded.

When do you need two sets of general terms and conditions?

Do you work with both consumers and business clients? Then a single set of general terms and conditions is often not ideal.

For consumers, the text usually needs to be drafted more cautiously. Consider the right of withdrawal, warranty, information obligations, complaints, and liability.

For business clients, you can often negotiate stronger contracts. Provisions regarding payment, retention of title, liability, choice of forum, penalties, and collection are more important in this context.

A separate B2C set and B2B set prevents your terms and conditions from being too strict for consumers or too lenient for business customers.

When are general terms and conditions valid?

General terms and conditions are not valid merely because they appear on your website. You must clearly declare them applicable.

This means that you must make it clear before or at the time of concluding the agreement that your general terms and conditions apply. The other party must also be given the opportunity to read and save the terms and conditions.

A reference at the bottom of an invoice is usually too late. By then, the agreement has often already been concluded. Therefore, refer to your terms and conditions in your quotation, order confirmation, ordering process, or agreement.

Is a link to your website sufficient?

Merely referring to your website is often insufficient. The other party must be able to easily open, save, and consult the terms and conditions later.

For online agreements, you can offer the terms and conditions as a downloadable PDF, for example. For quotations sent by email, you can include the terms and conditions as an attachment or provide them via a clear download link.

The most important thing is that you can demonstrate afterwards that the customer could have taken notice of the terms and conditions before concluding the agreement.

Do you need to file general terms and conditions with the Chamber of Commerce or the court?

No, filing is not mandatory. Filing with the Chamber of Commerce or a court does not automatically make your general terms and conditions valid either.

Filing can be practical. You can then demonstrate which version of your terms and conditions existed at a specific time.

However, correct use is more important than filing. If you do not properly declare your terms and conditions applicable, filing usually does not help.

Drafting general terms and conditions for a webshop yourself

Additional rules apply to webshops. Especially when selling to consumers, you must provide clear information regarding ordering, payment, delivery, returns, withdrawal, warranty, and complaints.

A webshop must properly link the general terms and conditions to the ordering process. The customer must be able to read and save the terms before purchasing.

Do you have a webshop? Then do not use standard B2B terms and conditions. Also check out our page on general terms and conditions for webshops.

Drafting your own general terms and conditions for services

In service provision, it often revolves around the assignment. What is covered by the assignment? When does additional work occur? When have you performed well? And for what are you liable?

For consultants, advisors, marketing agencies, IT service providers, and business service providers, general terms and conditions are of particular importance. Lack of clarity regarding scope and results quickly leads to conflicts.

Therefore, ensure that your terms and conditions align with your quotations and order confirmations. The specific assignment is stated in the quotation. The general rules are set out in your terms and conditions.

Drafting your own general terms and conditions for the delivery of products

Do you supply products? Then delivery, transfer of risk, transport, retention of title, warranty, and payment are important.

A retention of title clause can be helpful, for example, if a customer fails to pay. You can then stipulate, subject to conditions, that the goods remain your property until full payment has been received.

For product suppliers, terms of delivery may also be relevant.

What if your client uses their own terms and conditions?

In business relationships, both parties often use their own general terms and conditions. You refer to your terms of sale. The customer refers to their terms of purchase.

Then a discussion arises about which conditions apply. This is also known as the battle of forms.

In the Netherlands, the general principle is that the terms referred to first apply. This is different if the other party expressly rejects those terms. This must therefore be done actively and clearly.

When should you have your own drafted general terms and conditions checked?

Have your own drafted terms and conditions reviewed before using them. This is especially true if you work with consumers, larger projects, online sales, software, recurring subscriptions, or high liability risks.

Checking is also advisable if you have used terms and conditions from the internet, deployed AI, or modified old terms and conditions.

With a legal review, you know whether the text is correct, whether important provisions are missing, and whether the terms and conditions align with your business.

What does a lawyer check regarding general terms and conditions?

A lawyer does not look only at language and formatting. The most important question is whether the terms and conditions have legal effect.

This involves examining liability, payment, complaints, warranty, collection, retention of title, termination, dissolution, force majeure, consumer law, privacy, intellectual property, and applicable law.

It is also assessed whether the terms and conditions align with your website, quotations, contracts, ordering process, and invoices. Good text has little value if you use it incorrectly.

Draft general terms and conditions yourself or have them drafted?

Drafting your own general terms and conditions can be a start. It allows you to already consider your working methods, risks, and customer agreements.

For actual use, customization is usually wiser. General terms and conditions must protect your business in the areas where you run the most risk.

Do you want certainty? Then have your general terms and conditions drafted or reviewed by MKB Juristen.

What is better: checking the general terms and conditions or drafting them?

Do you already have terms and conditions? Then a check is sometimes sufficient. This applies if the foundation is sound and only a few components need to be adjusted.

Are the terms and conditions copied, outdated, too general, or not tailored to your business? Then drawing them up again is often better.

Through our ContractCheck™, we can review existing terms and conditions. Afterwards, you will know whether adjustments are sufficient or if a new set is more sensible.

Need help with general terms and conditions?

Do you want to draft general terms and conditions yourself, but doubt whether the text is legally correct? MKB Juristen helps entrepreneurs with checking, amending, and drafting general terms and conditions.

We look at your company, customers, industry, risks, and way of working. This ensures you receive terms and conditions that are not only legally sound but also practically usable.

Also check out our page on contracts or read more about drafting general terms and conditions at Ondernemersplein.