General terms and conditions: as far as we are concerned, these are an important foundation for doing business. We assume you are already aware of that. But do you know how to provide these terms and conditions to your business partner in the right way? And what are the consequences if you don't? Read more here:

Introduction

Previously we already discussed how important it is for entrepreneurs to have good general terms and conditions and to have them checked periodically. However, just because you have such terms and conditions does not mean that you can always successfully rely on them. To do so, it is necessary that your terms and conditions have been properly provided to your other contracting party.

This requirement applies to so-called “small contracting parties”: consumers and companies with fewer than 50 employees or companies without published annual accounts.

General terms and conditions not provided: voidable

The Gelderland District Court recently dealt with a case in which this did not go well. In this matter, the general terms and conditions were never provided to the business partner, which meant that the business partner could successfully invoke the voidability of these terms and conditions. This also meant that the business partner did not have to comply with the duty to complain (with a 24-hour deadline) included in these so-called Cumela terms and conditions (for green, soil and infra).

You can read the full judgment here.

The lesson learned: if you do not provide the general terms and conditions in the correct manner, your business partner can annul them. In other words: the conditions then never applied to the agreement you concluded with this party. Your business partner must invoke the voidability.

How to provide general terms and conditions in the right way?

You ask yourself, how exactly should I ensure that the general terms and conditions reach my business partner? This “providing” (in Dutch: ter hand stellen) (before or at the conclusion of the agreement) can be done in various ways:

• Physically handing them over: in this case, however, it is important that you can prove that you have actually provided the terms and conditions, for example by having your business partner sign for receipt or by including the terms and conditions on the back of the offer. In that case, do not forget to refer to these conditions in the offer itself and declare them applicable!
• By electronic means: if the agreement is concluded electronically (via the website or by email, for example). It is then important that your business partner can also save the conditions (e.g. as a PDF attached to an email or by adding a download button). If the agreement is not concluded electronically, you may only send the conditions electronically if your business partner agrees to this.

• If you are a service provider within the meaning of the European Services Directive (e.g. lawyer, architect or accountant), it is sufficient if your terms and conditions are posted on your website and you indicate where they can be found. Although in that case, we still recommend sending them, to avoid any discussion.
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Furthermore, it is important (as mentioned above) to refer to the general terms and conditions in good time (i.e. before or at the conclusion of the agreement), for instance in the offer or the agreement, and to state explicitly and in good time that the general terms and conditions are declared applicable.

If your business partner is a professional party that is already familiar with your general terms and conditions, you do not have to provide them again. Although, in our opinion, there is no harm in doing so - just to be sure.

With so-called “large contracting parties” (companies with more than 50 employees or with published annual accounts), in principle, a reference to your general terms and conditions will suffice. But also in this case we recommend that you simply send your terms and conditions in advance, for instance if you are not sure whether your business partner is a large or a small contracting party.

Could your general terms and conditions use an update? SPEE advocaten & mediation is happy to review and adjust them, so that you are optimally protected.