'Small print'

The so-called "fine print," or general terms and conditions, have become an integral part of business practice. You probably know that drafting them requires customization and that their content must be tailored to your business. However, at least as important is how to use general terms and conditions. Indeed, in order to benefit from general terms and conditions, it is very important that they are used according to the legal requirements. If you fail to do so, your terms and conditions may be annulled by your counterparty. As a result, you cannot rely on (provisions of) the terms and conditions. And this is where things often go wrong in practice. This article therefore provides a brief guide on the use and application of general terms and conditions.

Two aspects are of great importance when using general terms and conditions. First, general terms and conditions should be declared applicable to the legal relationship between the parties and second, they should be provided to the other party before or no later than the conclusion of the contract.

Declare applicable

You should explicitly declare your terms and conditions applicable to any agreement you enter into with an opposing party. Declaring general terms and conditions applicable can be done either orally or in writing, but from the perspective of proof it is obviously preferable to do so in writing. For general terms and conditions to be applicable, it is not sufficient that you refer to the general terms and conditions only after the conclusion of the agreement with the other party. The declaration of applicability should preferably take place before, but no later than during the conclusion of an agreement. You can achieve this, for example, by already referring to your general terms and conditions in your offers.

To hand

However, merely declaring the general terms and conditions applicable is not sufficient. You must also offer the other party a reasonable opportunity to take note of the general terms and conditions.You have offered this reasonable opportunity if you have provided the general terms and conditions to the other party before or at the latest during the conclusion of the contract. If they are not handed over in time, you run the risk that the other party will invoke their annulment. Your general terms and conditions will then no longer be effective. And therein lies the catch. Because how do you do that nowadays, with digital contracting?

Previously, handing over general terms and conditions could only be done by physically handing them over, or sending them along by mail. Fortunately, the legislator has moved with the times. As of July 1, 2010, the possibilities have been significantly expanded. Whereas previously you could only hand over the contract electronically if the contract was concluded electronically, nowadays you can also hand over the contract electronically if the contract was not concluded electronically but, for example, by telephone, e-mail or the Internet. But it is still not really simple, because you must obtain the "express consent" of your customer to do so. What the legislator means by this is still unclear. Should you ask if the other party agrees to receive the general terms and conditions electronically? Since we know that the legislator wants to encourage the use of electronic means, it seems that it is not meant to be so strict. The main point is that the other party must have been expressly made aware of the electronic transmission.

A condition for this is that the other party can save the terms and conditions so that he can view them at a later time. Although the law does not require this, from the point of view of proof it would also be preferable to have the other party confirm during the electronic conclusion of the contract that he acknowledges the applicability of your general conditions and has taken note of them. This can be accomplished, for example, by means of the well-known "check mark.

Of course, physical delivery is still a possibility. In that case you will have to actually hand the general conditions to the other party. You can do this, for example, by sending them along with an offer. Although in principle you have thus complied with the handover, from the point of view of proof it is preferable to require that the other party confirm receipt of the general conditions or return them with a signature.

All in all, the way to handle your general terms and conditions is not so easy. So it is very important that you pay sufficient attention to this. After all, it is not for nothing that you have carefully compiled your general terms and conditions and regulated how you want to handle certain matters, should something unexpectedly go wrong. The advice, therefore, is to pay close attention to the small print!