Providing general terms and conditions correctly is actually very simple: you must give the other party a reasonable opportunity to read the content. And this must be done before you enter into an agreement. Think of it as the rules of your business relationship; your customer can hardly abide by them if they have never seen them.
Why proper delivery is crucial
Terms and conditions – the well-known ‘small print’ – are the legal backbone of your quotations and contracts. They set out crucial agreements on matters such as payment terms, liability and guarantees.
But it is a misconception to think that simply drawing up those terms and conditions is sufficient. The law imposes a clear duty of disclosure on you. It is up to you to demonstrate that you have actively informed your customer about this.
If you fail to fulfil this obligation, the consequences are serious. The other party can then successfully ‘annul’ your general terms and conditions. This means that your carefully drafted provisions become legally invalid, as if they had never existed.
The risks of an incorrect approach
If your terms and conditions are voidable, you automatically fall back on the standard rules of the Civil Code. That may not sound so bad, but it can lead to unexpected and very unfavourable situations. Especially if you thought you were well protected.
Consider, for example:
- Unlimited liability: The limitations you had drawn up suddenly no longer apply.
- No retention of title: You lose the right to reclaim goods if a customer does not pay.
- Statutory payment terms: Your own, often shorter payment terms are no longer valid.
Correct delivery is therefore by no means an administrative formality. It is a fundamental step in protecting your business. It is the key that determines whether your terms and conditions are a strong legal shield or just a worthless document.
The essence of the duty to provide information is to give the other party a fair chance to read and understand the terms and conditions. The aim is to avoid surprises afterwards and to ensure transparency in the business agreement.
By taking this process seriously, you lay a solid foundation for every transaction. It provides clarity, prevents discussions and significantly strengthens your legal position should a dispute ever arise. The effort you put in upfront pays for itself many times over in security and protection.
The classic method: physical delivery
Sometimes the old way is the best way. This certainly applies to the delivery of general terms and conditions. The most traditional and legally robust method is still physical delivery. It may sound a bit old-fashioned in this digital age, but it offers the most certainty that your terms and conditions are legally valid.
The essence is actually very simple: you give your customer the general terms and conditions on paper before the agreement is signed. This can be a separate document accompanying a quotation or a complete appendix to a contract. By doing so, you literally give the other party the opportunity to read through and understand the content at their leisure.
Why this method is so effective
The biggest advantage of physical delivery is its evidential value. Should a dispute arise later, you can easily demonstrate that you have fulfilled your duty to provide information. There are a few practical ways to record this effectively:
- Initials on each page: Have the customer initial each page of the terms and conditions. This way, you can be sure that everything has been seen.
- Confirmation of receipt in the contract: Include a simple clause in the main agreement. In it, the customer explicitly states that they have received a copy of the terms and conditions and agree to them.
- Send two copies: Send two complete sets of the contract and the terms and conditions. The customer signs and initials both sets, keeps one for themselves and returns the other copy to you.
This approach makes any discussion about the terms and conditions practically impossible.
The physical method is the gold standard because it leaves no room for interpretation. The other party has literally held the document in their hands. This forms the basis for a clear and indisputable agreement.
Of course, this process requires a little more administration than a digital click. But the legal certainty it provides is priceless, especially for high-value or high-risk contracts.
The important exception for regular business partners (B2B)
However, it does not always have to be so formal. Fortunately, the law offers a practical exception, particularly in long-term business (B2B) relationships. Do you regularly do business with the same party and have you provided the terms and conditions before? Then you do not have to hand them over again for every new, similar assignment. This is known as the ‘familiarity exception’.
The main rule is that the terms and conditions must be provided before or at the time of concluding the agreement. However, case law, such as in the well-known Geurtzen/Kampstaal judgment, has introduced an important nuance here. If the parties are already familiar with the terms and conditions from previous transactions, the obligation to provide them is applied less strictly.
This exception is an efficient rule that prevents unnecessary paperwork in established business relationships. Please note: this only applies to similar agreements. Do you normally sell products and are you now suddenly entering into a complex maintenance contract? In that case, it is wise to provide the terms and conditions again.
Digital delivery for online contracts
For webshops, SaaS companies and, in fact, any entrepreneur who does business online, physically handing over the general terms and conditions is simply not an option. Contracts are concluded with a click of the mouse, so the ‘delivery’ of your terms and conditions must also be done digitally. But beware, the law sets clear rules for this.
Simply hiding a link somewhere on your website is really not enough. The essence of the digital information obligation is that your customer must be able to store the terms and conditions in a durable manner. This allows them to refer back to them later. This is crucial protection for the customer and ensures that the agreements remain clear and accessible even after the purchase.
Research shows that although 65% of online shops display their terms and conditions online, only 40% do so in a manner that fully complies with the legal storage requirement. That is a significant gap. It shows how important it is to choose the right method that suits your business.
Below is an overview of the most common methods and their legal validity.
Comparison of digital delivery methods
This table compares different methods of digital delivery and indicates what is legally permitted for consumer sales (such as a webshop) and for business service providers.
| Method | Legally valid for consumers? | Legally valid for service providers? | Practical tip |
| Active offering (PDF download via checkbox) | ✅ Yes | ✅ Yes | Ensure that the checkbox is mandatory and that the link leads directly to a PDF. |
| Send as a PDF attachment with the confirmation email | ✅ Yes | ✅ Yes | Automate this process so that it happens with every order or registration. |
| Only a link on the website (e.g. in the footer) | ❌ No | ✅ Yes | Ensure that the URL is permanent and that the terms and conditions are always accessible. |
| Display terms and conditions in a pop-up (without download) | ❌ No | ❌ No | This does not meet the storage requirement, as the customer cannot save them. |
As you can see, context is everything. What is sufficient for a consultancy firm is legally insufficient for a webshop.
Properly arranging digital delivery is therefore not a minor issue. As with the physical method, an incorrect approach can lead to the invalidity of your general terms and conditions. This means you lose your legal safety net. So make sure your online process is watertight and perfectly aligned with the requirements that apply to your type of business.
Exceptions in impractical situations
The main rule is clear: you must physically hand over the general terms and conditions or send them digitally. But what if that is simply not possible in practice? Think of buying a train ticket from a machine, concluding a contract over the telephone, or dropping off your coat at the dry cleaners. In these kinds of fleeting situations, where you cannot hand over a stack of paper and sending a PDF is not an option, providing the general terms and conditions becomes an impossible task.
The law provides a contingency solution for precisely these scenarios. In such cases, it is sufficient to state that the terms and conditions are available for inspection somewhere and that you will send them free of charge upon request.
Filing as a last resort
This exceptional route does require a formal step: filing your terms and conditions. You do this by leaving them with the Chamber of Commerce (KvK) or the registry of a court. This makes the documents public and available to anyone who requests them.
It is crucial to realise that this is not an easy way out. You must be able to demonstrate why the standard methods – physical or digital delivery – were not reasonably possible in that specific situation. The burden of proof therefore lies entirely with you as an entrepreneur.
Do not view this exception as an alternative route, but as an emergency exit. You should only use it if the front door – normal delivery – is truly locked due to the nature of the transaction.
The legislator has created this option specifically for agreements that are concluded on a large scale and quickly. Figures from the Chamber of Commerce show that several thousand companies have officially filed their general terms and conditions, often as an additional legal safety net for precisely this type of situation.
When is filing permitted?
In practice, this exception is mainly found in a few specific sectors. Below are a few concrete examples where this approach is often accepted:
- Public transport: When purchasing a ticket from a machine, it is impossible for a transport operator to provide every passenger with the terms and conditions. A clear reference on the machine to where the terms and conditions can be found is sufficient.
- Dry cleaning services: When you quickly drop off your clothes, the agreement is concluded immediately. A sign in the shop stating that the terms and conditions have been filed and are available on request is sufficient.
- Telephone sales: During a telephone conversation, it is impossible to send a document immediately. A verbal statement that the terms and conditions have been filed and will be sent later is therefore a valid approach.
Please note: even if you make use of this exception, your duty to provide information remains. You must always actively inform the other party where the terms and conditions can be found and offer to send them free of charge. If you fail to do so, your terms and conditions will still be voidable, even if you have duly filed them. It is therefore an active duty, not a passive solution.
Common mistakes you can avoid
Many entrepreneurs think they are following the rules, but unknowingly make costly mistakes when providing their general terms and conditions. These mistakes can completely undermine the legal protection you rely on. Fortunately, they are easy to recognise and avoid once you know where the pitfalls lie.
Proper delivery is an active action that must take place before or at the latest upon conclusion of the agreement. Problems often arise once this crucial moment has passed. Without valid delivery, your terms and conditions are voidable and you are in a much weaker legal position.
Mistake 1: Referring to the invoice
This is perhaps the most classic mistake in the business world. You send an invoice and at the bottom is the familiar sentence: “Our general terms and conditions apply to all our deliveries.” Legally speaking, you are hopelessly too late.
After all, the agreement is already concluded as soon as the invoice is sent out. The rules of the game must be shared before the match, not afterwards in the dressing room. A judge will therefore almost always dismiss a reference on an invoice.
Fortunately, the solution is simple: ensure that the general terms and conditions are always provided with the quotation or order confirmation. That is the moment when the agreements are laid down.
Mistake 2: A hidden link on the website
Many websites place a link to the general terms and conditions in the footer, the bottom bar of the page. Although this may sometimes be sufficient for service providers under strict conditions, it is absolutely insufficient for the sale of products to consumers.
The law is very clear on this: you must offer the customer a reasonable opportunity to save the terms and conditions. A passive link that someone has to hunt for themselves simply does not meet this requirement.
The burden of proof lies entirely with you. You must be able to demonstrate that you have actively offered the terms and conditions in a way that allows them to be saved, not that the customer could have found them if they had searched hard enough.
Therefore, implement an active method. Consider a mandatory checkbox during the checkout process with a direct download link to a PDF. This will provide conclusive evidence of correct delivery.
Mistake 3: Illegible ‘small print’
The term ‘small print’ should not be taken too literally. Sometimes terms and conditions are printed on the back of a receipt or contract in a font that is barely legible. Technically speaking, you are handing over a document, but you are not offering a reasonable opportunity to take note of it.
Is the text so small that a magnifying glass is required? Then a judge will rule that you have not fulfilled your duty to provide information. Legibility is a crucial part of the process.
So always ensure you use a clear and legible font, both on paper and digitally. Transparency and accessibility are the keys to legally valid terms and conditions.
A practical checklist for proper delivery
All the complex rules surrounding the delivery of terms and conditions ultimately boil down to one simple question: did your customer have a fair chance to read them before the deal was closed? This is not an administrative formality, but the only way to ensure that your terms and conditions remain legally valid.
Use this checklist to immediately assess whether your approach is sound.
Key points for a watertight method
Whether you do business online or offline, follow these steps to check that you comply with the legal requirements.
- 1. Timing is everything: Make sure you provide the terms and conditions before or at the latest at the time of concluding the agreement. A reference on the invoice is always too late.
- 2. Active delivery: You must make it easy for the customer. So send the terms and conditions physically with a quotation or add them as a PDF attachment to a confirmation email. In most cases, a simple link to a page on your website is really not enough.
- 3. Guarantee storage options (digital): Your customer must be able to download and save the terms and conditions for later. A tick box with “I agree” in your ordering process, immediately followed by a download link for the PDF, is a perfect solution for this.
- 4. Provide proof: Ask for a signature for receipt on the agreement itself, or have the customer initial each page of the terms and conditions. Keep emails with the terms and conditions attached; these are your digital proof of delivery.
Proper delivery is your legal insurance. It prevents your carefully drafted terms and conditions from being immediately dismissed in the event of a dispute.
By consistently following these steps, you build a solid foundation for your agreements. This effectively protects your business against unnecessary legal risks.
Practical questions from the business world
The theory is clear, but how does this work in practice? Entrepreneurs often encounter the same questions. Below, we dive into a few common scenarios to provide clarity once and for all.
Is a reference on the invoice sufficient?
A persistent misunderstanding in the business world is the idea that a sentence on the invoice is sufficient. The answer to this is a resounding no.
An invoice is, in fact, the financial settlement of a deal that has already been concluded. At that point, the agreement is already a fact. The law requires you to offer the terms and conditions before or during the conclusion of that deal. Think of the moment of the quotation or the order confirmation. A reference afterwards is simply too late from a legal point of view and invalidates your terms and conditions.
What if the customer does not read the terms and conditions?
This may sound strange, but it is not your problem if the customer actually reads the terms and conditions. Your legal obligation, known as the duty to provide information, does not concern the reading habits of your counterpart.
The law requires you to offer the customer a ‘reasonable opportunity’ to take note of the content.
Your responsibility ends with the correct presentation of the terms and conditions. Whether the customer actually takes advantage of this opportunity is entirely their own choice and risk.
As long as you can prove that you have provided the terms and conditions in the correct manner, they are valid. Whether they have been read word for word or not.
Do I need to translate my terms and conditions?
Do you do business across borders? Then the language of the agreement is leading. If all communication, the quotation and the contract are in English, it is very wise to also provide your general terms and conditions in English.
Although this is not always a strict legal requirement, it will prevent a lot of discussion. A foreign customer may argue that they did not understand the Dutch terms and conditions and therefore had no reasonable opportunity to comprehend them. By sending a translation, you ensure clarity and put yourself in a much stronger legal position.