General terms and conditions: drafting them so they apply under Dutch law

General terms and conditions (algemene voorwaarden) only protect your business if they validly form part of the contract. Under Dutch law that depends above all on one question: did the other party have a reasonable opportunity to read them before or when the contract was concluded? If not, the other party can annul the conditions, and your limitation of liability disappears with the rest.

The main exception concerns larger business customers. A company that publishes annual accounts, or that has at least 50 people working for it, cannot rely on these grounds for annulment. For consumers, on the other hand, the law adds a black list and a grey list of clauses that are unreasonably onerous.

What counts as general terms and conditions?

General terms and conditions are written clauses drafted for use in several contracts. The core terms, such as the price and the description of what you deliver, fall outside that definition as long as they are clear and comprehensible.

This definition comes from Article 6:231 of the Dutch Civil Code (Burgerlijk Wetboek, BW). The rules on general terms and conditions are set out in Articles 6:231 to 6:247 BW. What matters is the purpose of the text, not its title. A standard quotation template with delivery, payment and liability clauses that you use for every customer is general terms and conditions, even if you call it something else. A clause that you negotiated for one specific deal is not.

The distinction with core terms matters. A core term cannot be tested against the rules on unreasonably onerous clauses. If you hide the price or the main obligation in unclear wording, however, the court treats that clause as an ordinary condition that can be tested.

How do you make your terms part of the contract?

You must declare your conditions applicable before or when the contract is concluded, for example in your quotation, order confirmation or online checkout. A reference sent only with the invoice, after the contract was made, comes too late.

Once the other party has accepted the applicability of your conditions, it is bound by their content, even if it never read them (Article 6:232 BW). That is why the reference itself should be clear and unconditional: “Our general terms and conditions apply to all our quotations and contracts; a copy is attached.”

Two sets of conditions: the battle of forms

In business-to-business trade, the supplier often refers to its own conditions and the buyer replies with a purchase order that refers to its conditions. Under Article 6:225(3) BW, the second reference has no effect unless it expressly rejects the first set. In practice the first party to refer to its conditions wins, unless the other party clearly rejects them.

In cross-border sales of goods the Vienna Sales Convention (CISG) often applies instead of the Dutch Civil Code, and its rules on conflicting conditions work differently. If you trade internationally, check which regime applies and consider an explicit clause on applicable law and the competent court in your contract itself, not only in your conditions.

When can the other party annul your terms?

The other party can annul a clause on two grounds under Article 6:233 BW: the clause is unreasonably onerous, or you did not give the other party a reasonable opportunity to take note of the conditions. The second ground affects the conditions as a whole.

The duty to provide the conditions

Article 6:234 BW sets out what a reasonable opportunity means. As a rule you must hand over the conditions before or at the conclusion of the contract. Only if that is not reasonably possible may you instead tell the other party, before the contract is concluded, where the conditions can be inspected, for example because they are filed with the Chamber of Commerce (KvK) or a court registry, and that you will send them at no cost on request.

For contracts concluded online, you must make the conditions available electronically before or at the conclusion of the contract, in a way that allows the other party to store them. A link to a downloadable PDF in the checkout or in the email that concludes the contract usually meets this requirement. A statement in fine print that the conditions “are available on request” does not, if you could easily have attached them.

Who cannot rely on these grounds?

Under Article 6:235 BW, a company that has published its annual accounts, or that has at least 50 people working for it, cannot invoke these grounds for annulment. A party that uses the same or largely the same conditions itself cannot argue that it had no opportunity to read them. Against such parties, a clause can still be set aside if applying it would be unacceptable under the standards of reasonableness and fairness (redelijkheid en billijkheid, Article 6:248(2) BW).

Which clauses are not allowed in consumer contracts?

In contracts with consumers, clauses on the black list in Article 6:236 BW are always unreasonably onerous, and clauses on the grey list in Article 6:237 BW are presumed to be. For a grey-list clause, you as the business must show that it is reasonable in the specific case.

Examples from the black list include a clause that takes away the consumer’s right to terminate or dissolve the contract, a price increase within three months of the contract without giving the consumer the right to dissolve it, and a choice of court other than the court of the consumer’s place of residence, unless the consumer is given one month to opt for that court. Tacit renewal of a consumer subscription is also restricted: after the first term, the contract may only continue for an indefinite period with a notice period of no more than one month.

The grey list includes clauses that exclude or limit your liability, give you the right to change your performance substantially, or impose a notice period on the consumer that is longer than three months. Such clauses are not automatically void, but in a dispute the burden of proof is on you.

Two further rules apply to consumers. If a clause is unclear, the interpretation most favourable to the consumer prevails (Article 6:238(2) BW). And some consumer rights cannot be excluded at all, whatever your conditions say. Examples are the statutory warranty (conformity) for consumer purchases and the rule that a consumer buyer cannot be required to pay more than half the price in advance (Article 7:26(2) BW).

The right of withdrawal of 14 days applies to distance contracts, such as webshop sales, and to off-premises contracts (Article 6:230o BW). It does not apply to every consumer contract, so do not describe it that way. The Authority for Consumers and Markets (ACM) can take enforcement action against businesses that use unfair terms towards consumers.

Do the lists also protect business customers?

The black and grey lists do not apply directly between businesses. A small business customer can still ask the court to annul a clause as unreasonably onerous under the general rule of Article 6:233(a) BW.

When applying that open standard, courts may take the lists into account for a smaller business that is in a position comparable to a consumer. This is known as the reflex effect (reflexwerking). A sole trader who buys a van or a software subscription for his business is not a consumer, but he may still benefit from this protection.

One limit applies regardless of the type of customer. A clause that excludes liability for damage caused by your own intent or gross negligence will generally not be upheld, because relying on it is unacceptable under the standards of reasonableness and fairness. Draft your limitation of liability with that in mind: cap it at an amount or at the insured sum, and exclude intent and gross negligence from the cap.

What should your terms and conditions cover?

Good conditions follow the life of a contract: how it is formed, what each party must do, what happens when something goes wrong and how a dispute is resolved. Most businesses need at least the following subjects.

• Definitions and scope: to which quotations and contracts the conditions apply, and that the other party’s conditions are rejected
• Quotations, acceptance, prices and payment terms, including statutory commercial interest and collection costs
• Delivery, transfer of risk and retention of title (eigendomsvoorbehoud, Article 3:92 BW)
• Warranty, complaints procedure and limitation of liability
• Force majeure, suspension and termination
• Intellectual property and confidentiality, where relevant
• Applicable law and the competent court

For business customers, pay attention to the statutory rules on payment terms. Between businesses, a payment term longer than 60 days is only valid if it is not grossly unfair to the creditor (Article 6:119a BW). Since 1 July 2022, a large company that buys from a small or medium-sized enterprise may not agree a payment term longer than 30 days (Article 6:119a BW). Between 2017 and mid-2022 the maximum was 60 days.

For consumers, add the information the law requires, such as your contact details, the right of withdrawal where it applies and how the statutory warranty works. Many businesses use two versions: one for business customers and one for consumers. That keeps each version readable and prevents a consumer clause from being judged by the stricter consumer rules in a business contract, or the other way round.

How do you draft your terms step by step?

Start with the risks of your own business, not with a template. Ask yourself whether you sell to consumers, businesses or both, which damage your products or services can cause, whether you deliver once or provide an ongoing service, and how you want to be paid.

Then decide on the basis. Many trade associations offer industry conditions to their members. Some have been negotiated with consumer organisations under the auspices of the Social and Economic Council (SER). Check whether they fit your actual work and add what is missing.

Conditions copied from a competitor or from a foreign template are a common source of trouble. They may refer to foreign law, use concepts that do not exist in Dutch law, or contain clauses that fall on the black list.

Can you change your terms and conditions later?

Yes, but new conditions only apply to new contracts, unless the existing contract allows you to amend them. For ongoing contracts such as subscriptions or service agreements, you need an amendment clause and you must announce changes in good time.

For consumers, a clause that allows you to change your performance substantially is on the grey list. In practice, an amendment clause for consumers is only acceptable if the consumer may terminate the contract when a change is to his disadvantage. A price increase within three months of the contract is only allowed if the consumer can then dissolve it.

With business customers you have more room, but the same principle applies. Announce changes in writing, give a reasonable period before they take effect, and send the new text. A customer who has never received the amended version can argue that it was not given the opportunity to read it.

Should you file your terms with the Chamber of Commerce or a court?

Filing is not required by law, but it can be useful. It shows which version applied at a given moment, and it allows you to refer to the filed version when handing over the conditions is not reasonably possible.

Filing does not replace the duty to provide the conditions. The general rule remains that you hand them over before or at the conclusion of the contract. You can only fall back on a reference to the filed version when handing them over was not reasonably possible, which courts accept only rarely, for example for a contract concluded by telephone.

Which mistakes should you avoid?

The most frequent mistake is that the conditions were never properly provided. A line at the bottom of a quotation saying that the conditions “can be found on our website”, without a direct link or attachment, often proves insufficient in court.

A second mistake is a limitation of liability that goes too far. A clause that excludes all liability, including for intent and gross negligence, invites the court to set it aside entirely, leaving you with no limitation at all. A moderate cap stands a much better chance.

What should you check as the user of the conditions?

• Refer to your conditions in every quotation, order confirmation and online checkout, before the contract is concluded.
• Attach the conditions or provide a download link, and keep evidence that you did (Article 6:234 BW).
• Check consumer conditions against the black list (Article 6:236 BW) and grey list (Article 6:237 BW).
• Exclude intent and gross negligence from your limitation of liability.
• Expressly reject the other party’s conditions to avoid losing the battle of forms under Article 6:225(3) BW.

What should you check as the other party?

• Check whether you received the conditions before or when the contract was concluded.
• Check whether your business can rely on the annulment grounds, or falls under Article 6:235 BW (published accounts or at least 50 people).
• As a consumer, check clauses on liability, notice periods and price increases against the black and grey lists.
• Reject conflicting conditions expressly if you want your own conditions to apply.

What can we do for you with your general terms and conditions?

Our corporate lawyers draft and review general terms and conditions for Dutch and international businesses.

• We draft general terms and conditions that fit your business, in separate versions for consumers and business customers.
• We review existing conditions against the black and grey lists and the rules on payment terms.
• We check how your quotations, order confirmations and checkout make the conditions part of the contract.
• We draft a limitation of liability and an amendment clause that are likely to hold up.
• We assess a dispute about the applicability of conditions and draft the annulment letter or the response.

Summary

• General terms and conditions only bind the other party if you declared them applicable and handed them over before or at the conclusion of the contract (Articles 6:232 to 6:234 BW).
• Large companies and parties with at least 50 people working for them cannot rely on these grounds for annulment (Article 6:235 BW).
• Towards consumers, the black list and grey list apply (Articles 6:236 and 6:237 BW); smaller businesses may benefit indirectly.
• Never exclude liability for intent or gross negligence; a moderate, clear cap is more likely to be upheld.
• Keep evidence that you provided the conditions, and review them at least once a year.

Frequently asked questions