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18 Jul 2023 General terms and conditions: an absolute must for entrepreneurs!

As business lawyers, we still regularly come across companies (both small and large) that do not use general terms and conditions. Or companies that use terms and conditions that no longer fit the current offer in products or services. Does this perhaps also apply to your business? If so, please continue reading.

Frequent mistakes

A frequently heard explanation is: "well, I don't need those general terms and conditions, I have clear offers or order confirmations". Of course, that is also very important, but when discussions arise, it often turns out that those documents are not very comprehensive after all and agreements are missing. If the contracting party is also a company, there is a good chance that it can refer to its own general purchase conditions. And these are obviously not drafted in your best interest...

If companies do use general terms and conditions, it regularly happens that they are not consistent with the offers and order confirmations used. This is especially common when 'sample terms and conditions' are used, found on the internet from another company. It also happens that offers and order confirmations are regularly updated, but the general terms and conditions date from the last century. The resulting lack of clarity is of course very unfortunate and unnecessary.

What also occurs often is a 'clash' between general terms and conditions of business parties: do your terms and conditions of sale (with, for instance, your limitation of liability) or the other party's terms and conditions of purchase (with extended liability for you as supplier) apply? It is important to be alert to this from the outset, as it can lead to complicated discussions. In case of conflict between the two sets of terms and conditions, it is important to conclude tailor-made agreements, in writing.

Not only having general terms and conditions is important, but they should also be provided in a timely manner. And if your contractual counterparty is a consumer, this is certainly of great importance. So always send your general terms and conditions together with your offer.

What should general terms and conditions contain?

The most important things usually included in general terms and conditions:

  • Definitions: what is meant by certain terms?
  • Applicability: when do these terms and conditions apply (or not)?
  • What about the acceptance of offers? In other words: how exactly does the agreement between parties come about?
  • The manner of performance of the agreement (e.g. providing services or selling products) and the obligations of both parties in doing so. Consider your customer's obligation to provide the right information. And do you have an obligation of effort or an obligation of result?
  • How will modification or cancellation of the order be handled? Can the price be changed later?
  • Can the agreement be terminated or dissolved, and if so on what grounds and (and in the case of termination: on what term)?
  • What are your payment terms? Does your customer have to provide security for payment in certain cases, and if so, how?
  • What are your delivery times and are they binding or merely indicative?
  • How do you deal with complaints? Within what time frame must your customer lodge a complaint?
  • In what way do you limit your own liability in case of errors or faulty products?
  • What is the situation if there is force majeure?
  • If applicable: provisions on confidentiality and intellectual property.
  • Which law applies to the agreement and which court has jurisdiction if a dispute arises?
    .

This overview is far from exhaustive; depending on the type of business you have and your business activities, further topics may be covered in general terms and conditions. This is always tailor-made: with terms and conditions written specifically for your business, you will be able to move forward for years to come.

Don't have general terms and conditions yet? Or could your existing general terms and conditions use a fresh look or a thorough overhaul? We will gladly take a look with you.

SPEE advocaten & mediation Maastricht

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