1. Declaration of Applicability
First, the general terms and conditions must be declared applicable. This declaration must be made before or at the moment the agreement is concluded, for example in an offer, quotation or written agreement.
In practice, this is done by including a clause stating that your general terms and conditions apply to the agreement.
Practical tip
Also expressly state that the general terms and conditions of the counterparty are excluded. This helps to avoid a so‑called battle of forms, where both parties try to impose their own terms.
2. Duty to Inform (Providing the Terms)
In addition to declaring their applicability, you must ensure that the other party has been given a reasonable opportunity to review the general terms and conditions before contract formation.
A reference to general terms and conditions on an invoice is almost always too late, as the agreement will normally already have been concluded.
To comply with this duty, the general terms and conditions must be provided at least once. If a dispute arises, the burden of proof lies with the party invoking them.
Practical tip
You may include a confirmation clause in your offer or quotation, for example:
“A copy of the general terms and conditions has been provided to you. You have taken note of these terms and agree to their applicability.”
This clause strengthens your position but does not replace actual provision of the terms.
Specific Situations
Contracts Concluded Online
Where an agreement is concluded electronically, the general terms and conditions may also be provided electronically. This is permitted provided that the other party can store and access them for later reference.
If you use a hyperlink or pop‑up, the terms must be downloadable, for example as a PDF. A simple reference without download functionality is usually insufficient.
Ongoing Business Relationships
If you contract regularly with the same party, it is not necessary to provide the general terms and conditions again for every transaction. Their applicability must, however, still be declared.
In practice, disputes often arise over whether a relationship qualifies as ongoing. For that reason, it is generally advisable to provide the general terms and conditions with each new agreement, especially if changes have been made.
Large Counterparties and International Transactions
Providing general terms and conditions is not mandatory when dealing with certain large corporate counterparties, such as legal entities that:
- have published their annual accounts; or
- employ 50 or more employees at the time of contracting.
The statutory duty to provide the terms also does not apply to international B2B agreements where both parties act in the course of business and are not both established in the Netherlands.
That said, even in these situations the applicability of general terms and conditions may still be tested against the principles of reasonableness and fairness.
Practical advice
Even where disclosure is not strictly required, providing your general terms and conditions is recommended. It prevents uncertainty and strengthens enforceability.
Conclusion
General terms and conditions are an important contractual instrument, but only if they are applied correctly. Under Dutch law this requires:
- a timely and clear declaration of applicability; and
- proper provision of the terms before contract formation.
If these requirements are not met, the general terms and conditions—or individual clauses—may be voidable or unenforceable.
Questions about General Terms and Conditions?
Do you have questions about the applicability of general terms and conditions under Dutch law or about avoiding a battle of forms? Our contract law specialists will be happy to assist you.
