As an entrepreneur, you can greatly benefit from good general terms and conditions. In these terms and conditions you can limit the risks your company runs in various ways. In this blog you can read how far you can go and what you should take into account when drawing up general terms and conditions.
What are general terms and conditions?
General terms and conditions are the rules that apply to all contracts that a company enters into with third parties, such as customers and/or clients. In other words, the so-called “small print”, which the parties (often) do not negotiate. General matters are regulated in this small print. Consider, for example, rules about applicable warranty periods, the delivery of products or services, the method of payment and liability.
Terms and conditions should be general
Terms and Conditions are intended to apply to all contracts you enter into. You want to be able to use it in various situations. The trick is therefore to formulate your general terms and conditions as generally as possible. It just needs to be clear what exactly is being arranged in it. A good lawyer can help you with this.
Definitions
To ensure that your terms and conditions are clear, it is a good idea to include a list of definitions, in which you define the most important terms. For example, do you want to include special conditions for the delivery of a certain type of product? Then it is advisable to define which type of product that is exactly. In this way you prevent these terms and conditions from also applying to the delivery of other products offered by you.
Limit liability in terms and conditions
As indicated, it is also possible to limit or exclude your liability risks in the general terms and conditions. We call such a condition an exoneration clause. Exclusion of liability in general terms and conditions is possible, but there are limits. How far you can go in this depends on who your contracting party is. If you do business with consumers, different rules apply than if you do business with business contracting parties. It is therefore important to take this into account when drawing up your general terms and conditions.
Agreements with consumers
A consumer is regarded by the legislator as a “weak” contracting party and therefore enjoys far-reaching legal protection. For example, if a provision is unreasonably onerous for the consumer, the consumer may nullify that provision. You can then no longer invoke the relevant provision. Whether a clause is unreasonably onerous depends on all the circumstances of the case and the applicable law.
To protect the consumer, the legislator has also included a so-called “black” and “grey” list in the Civil Code. The blacklist contains provisions that are always regarded as unreasonably onerous. The provisions included on the gray list are presumed to be unreasonably onerous. The exemption clause is on the gray list. This means that you can still rebut the presumption that such a clause is unreasonably onerous, but this will generally be very difficult.
Agreements with business parties
Are you entering into an agreement with a business party? Then different rules apply. In that case, you basically have freedom of contract and you have more options to include provisions that exclude the liability of your company. However, it is not possible to limit liability for damage resulting from intent or deliberate recklessness. Such provision is null and void. However, it may be possible to limit liability for the actions of third parties engaged by you, for example by including an exoneration clause in the contract for services in addition to the general terms and conditions.
Copy + Paste?
It can be tempting to copy the terms and conditions of another comparable company. There are only the necessary risks associated with this. For example, you can accidentally adopt conditions that are not at all beneficial for your company. Or adopt provisions that do not apply to your company at all, so that you enter into obligations that are irrelevant or, even worse, that you cannot fulfill at all. It is therefore very important that you are aware of the content and legal meaning of the terms and conditions you use. In addition: general terms and conditions may be protected by copyright. Copying such terms and conditions may therefore infringe another company’s copyright. You can be held liable for this.
Making general terms and conditions available
To be valid, your general terms and conditions must not only be correct in terms of content. You must also have made them available to your contracting party on time and in the correct manner. That party must have had the opportunity to view the general terms and conditions before concluding the agreement. Did you not make your terms and conditions available in the right way? Then they are not applicable, with all the adverse consequences that entails. I will tell you more about that in my next blog.
Finally
Do you have questions about your current general terms and conditions, are you planning to draw up (new) general terms and conditions or are you curious about your options for limiting your liability via general terms and conditions? Then please contact one of our specialists.