Drafting General Terms and Conditions for an Energy Label Advisor

As an energy label advisor, you determine an energy label remotely or after an inspection, which is registered with the RVO. In doing so, you assume a responsibility that extends further than many entrepreneurs realize: an incorrect label can lead to damage claims from buyers, tenants, or clients. In a published case, a certified expert was sued for approximately €30,000 after approving incorrect insulation proof. General terms and conditions are the instrument by which you manage this risk and formalize your agreements with the client.

With good general terms and conditions, you determine in advance who is responsible for what, the extent of your liability, and the conditions under which you provide your service. Without these conditions, only statutory rules apply, which often turn out to be less favorable to you than a set of provisions tailored to your industry.

General terms and conditions only apply if they form part of the agreement. Pursuant to Articles 6:233 and 6:234 of the Dutch Civil Code, you must provide your terms and conditions before or at the time of concluding the agreement. If you fail to do so, your client may invalidate the provisions, and your carefully constructed limitation of liability will cease to apply.

In the case of online services, which is common in the energy label industry, the terms and conditions may be provided electronically. In practice, this means that you offer the terms and conditions in a clickable and downloadable format before the order is placed, and that the client can save them. If you only refer to your terms and conditions after the order has been placed, the provision is legally too late.

For an energy label advisor, the liability clause is the heart of the general terms and conditions. It is common practice and legally defensible to exclude liability for indirect damage, consequential damage, lost profits, and missed subsidies, and to limit your liability for direct damage to, for example, the invoice amount or the amount paid out by your professional liability insurance.

Please note that a limitation of liability never holds up in the event of intent or willful recklessness on your part. If you align your limitation with professional liability insurance, your terms and coverage will be consistent, and you will avoid being left uninsured by an overly broad promise in the event of a claim.

The Dutch labeling system relies heavily on data provided by the client: photos, invoices, and building characteristics. The RVO states that the homeowner applying for the label is responsible for the accuracy of the provided building characteristics. You must explicitly state this division in your terms and conditions.

Include that the client is obliged to provide accurate and complete information in a timely manner, grant access to all relevant areas, and cooperate with inspection visits. Also stipulate that you are not liable for the consequences of incorrect or incomplete information and that a label may be withdrawn or lapse if it turns out that the submitted data is incorrect.

The energy label industry involves risks that are missing from general model terms and conditions. An inspection by the certifying body (based on BRL 9500) may result in an issued label being rejected; specify in your terms and conditions what applies regarding rectification and costs in such a case. The validity period of the label, the dependence on software and standards such as NTA 8800, and the situation in which the client cancels the order after the inspection but before registration, also warrant a separate provision.

Many industry peers, for example, maintain a policy that if a cancellation occurs after the recording but before registration, a substantial portion of the fee remains payable, because the substantive work has already been performed. By arranging such scenarios in advance, you avoid disputes afterwards.

If you work for private homeowners, your client is a consumer and stricter rules apply. Clauses on the black list of Article 6:236 of the Dutch Civil Code are always unreasonably burdensome; clauses on the grey list of Article 6:237 of the Dutch Civil Code are presumed to be unreasonably burdensome. A limitation of liability that works perfectly well for a business client may fail when dealing with a consumer.

In addition, a fourteen-day cooling-off period generally applies to consumer contracts concluded remotely. For a service that is fully performed within that period at the express request, that right of withdrawal may lapse, provided you correctly inform the consumer of this. It is advisable to split your terms and conditions into a consumer version and a business version.

Filing general terms and conditions with the Chamber of Commerce or the court is not legally mandatory and does not automatically make the terms applicable. Applicability arises through agreement, and validity through timely provision. Filing can, however, have evidential value regarding the content and version of your terms at a specific time.

For most energy label advisors, demonstrable and timely electronic delivery is more important than filing. Those who regularly update their terms and conditions may benefit from filing to be able to demonstrate, in the event of disputes, which version was in effect at the time.

General terms and conditions for an energy label advisor are tailor-made: the allocation of liability, data responsibility, the BRL 9500 check, and the distinction between consumer and business clients must align precisely with your working methods. A copied model rarely adequately covers these industry-specific risks and could actually work against you in the event of a claim.

MKB Juristen drafts your custom general terms and conditions, legally correct and tailored to your services, for a fixed price in advance. This way, you know exactly where you stand and have terms and conditions that hold up when it matters.