Drafting General Terms and Conditions by Lawyers

Having general terms and conditions drafted by lawyers means that attention is paid not only to standard text, but also to legal validity, applicability, industry, client type, liability, payment, complaints, and practical usability. General terms and conditions must align with the way your company actually issues quotations, concludes contracts, sells products, or performs services.

Many terms and conditions appear similar, but the risks vary significantly from business to business. A webshop requires different terms and conditions than an installer, consultant, software company, retail store, wholesaler, or business service provider. Lawyers and legal experts assess which provisions are necessary and which provisions actually pose a risk.

MKB Juristen drafts custom general terms and conditions and reviews existing ones. Our lawyers and in-house counsel examine both the legal text and its application in your commercial practice.

It is advisable to have general terms and conditions legally drafted if you regularly sell, issue quotations, provide services, execute projects, sell online, work with business clients, or run a risk of liability. Clear standard agreements are particularly important in such cases.

Even if you already have terms and conditions, a review may be necessary. Terms and conditions may be outdated, not align well with new services, or be misused. Sometimes they contain provisions that make consumers vulnerable or that do not practically fit your way of working.

When drafting or reviewing general terms and conditions, we assess, among other things:

• whether the conditions are correctly declared applicable;
• or terms and conditions of clients or customers are rejected;
• whether the provisions apply to B2B, B2C, or both;
• payment arrangements, interest, collection and retention of title;
• delivery, execution, completion, delay and cooperation of the customer;
• additional work, changes and additional costs;
• warranty, complaints, repair and proof of defects;
• liability, consequential damages and insurance coverage;
• intellectual property, licenses and usage rights;
• confidentiality and confidential information;
• cancellation, termination and consequences after the end of the agreement;
• applicable law, competent court and disputes.

General terms and conditions provide protection only if they actually become part of the agreement. To this end, they must be declared applicable before or at the time of concluding the agreement, and the customer must be given a reasonable opportunity to read them.

Merely referring to them on an invoice is usually too late. In practice, therefore, terms and conditions must align with quotations, order confirmations, ordering processes, order forms, websites, or checkout and counter processes. Consequently, a lawyer or legal expert looks not only at the text but also at the moment the terms and conditions are provided.

A free sample or copied set of terms and conditions may seem usable at first glance, but often does not align well with your business. Provisions may be missing, too strict, outdated, or not suitable for your industry, customer type, or liability risk.

In addition, copied terms and conditions may be protected by copyright. More importantly, you usually do not know why certain provisions have been included and how they should be applied in practice. This can actually create a false sense of security.

Business customers enjoy greater contractual freedom than consumers. For consumers, certain provisions may more readily be deemed unreasonably burdensome or prove voidable. Consider provisions regarding liability, warranty, complaints, cancellation, payment, returns, and changes to terms and conditions.

If you work with both B2B and B2C customers, the text must be tailored accordingly. Sometimes, a single set of terms and conditions with separate clauses is sufficient. Sometimes, separate terms and conditions for consumers and business customers are more sensible.

Limitations of liability are often one of the most important parts of general terms and conditions. They must clarify what you are and are not liable for, which damages are excluded, and to what amount liability is limited.

An overly broad limitation can be vulnerable. An overly restrictive arrangement offers insufficient protection. Therefore, we tailor the liability provision to your activities, contract value, nature of the damage, insurance, client type, and industry.

Good general terms and conditions must be built into your process. This means that they appear in quotations, order confirmations, online ordering processes, order forms, terms of sale, email templates, or customer portals.

With business customers, you must also check whether the other party uses its own purchasing or contract terms and conditions. If you wish your own terms and conditions to apply, you must clearly declare them applicable and expressly reject the terms and conditions of the other party.

Do you already have general terms and conditions? If so, we can check whether they are still legally and practically sound. We examine, among other things, applicability, payment, delivery, complaints, warranty, liability, consumer regulations, intellectual property, confidentiality, and their relationship to your quotations or contracts.

We also assess whether the terms and conditions are being used correctly. A legally sound text is of little use if the terms are only sent after agreement or do not align with your sales process.

After a brief intake, we discuss your company, industry, customer type, sales process, contracts, and key risks. We then draft custom general terms and conditions or review your existing terms.

You will receive terms and conditions tailored to your practice, with attention to applicability, payment, delivery, complaints, warranty, liability, intellectual property, consumer regulations, and correct use in quotations, orders, and sales.