Drawing up general terms and conditions
If you as an entrepreneur provide goods / services, it is wise to record everything about the (re)sale and delivery in general terms and conditions. General terms and conditions are provisions in which you record everything about an agreement. This can be, for example, about the warranty, liability, cooling-off periods, the method of payment, or how your customers can dossier a complaint. But also about intellectual property and what to do in case of disputes.
an agreement Have your agreement drawn up by a legal specialist in contract law. When doing business, it is wise that you record as much as possible in writing in crystal clear agreements. Of course, not everyone does this. After all, it can always go well? Until things go wrong. Then you have a costly problem.
How does it work?
When drawing up legal documents for your company, all your business activities, your course of action and the agreements you want to make are taken into account. This optimally protects your company legally and limits liability.
General terms and conditions
When you conclude an agreement, general terms and conditions usually apply, also known as the 'small print'. These have been drawn up by the seller. General terms and conditions usually include:
What are a customer's rights?
According to the law, general terms and conditions quickly apply. Even if you haven't read them. The entrepreneur must ensure that customers know that there are general terms and conditions. He must therefore 'declare the conditions applicable', for example by including a text in the offer stating that general terms and conditions apply. You do not have to read the general terms and conditions. But the entrepreneur must offer the possibility to do this, before or during the conclusion of the agreement. If the entrepreneur does not offer the customer the opportunity to view the general terms and conditions (note: it is not important whether or not a customer sees these general terms and conditions), then the general terms and conditions drawn up by the entrepreneur do not apply to the concluded (purchase) agreement and therefore not legally valid.
Even when shopping online, the general terms and conditions must be 'handed over' (for example as a PDF dossier) and the consumer must be able to save them.
Clear and comprehensible general terms and
conditions The general terms and conditions that are declared applicable to a contract entered into with a consumer must be clear and understandable, because in case of doubt about the meaning of a clause in the general terms and conditions, the interpretation most favourable to the consumer prevails.
Voidable clause in general terms and conditions The law contains provisions from which it is not possible to
deviate in the general terms and conditions if the general terms and conditions apply to an agreement entered into with a consumer. Terms and conditions must be reasonable for a consumer according to the law. Article 6:233 sub a of the Dutch Civil Code contains the following in relation to the voidability of a clause in general terms and conditions: "A clause in general terms and conditions is voidable if, in view of the nature and other content of the agreement, the manner in which the conditions were concluded, the mutually identifiable interests of the parties and the other circumstances of the case, is unreasonably onerous for the other party. "
If the customer is a consumer, the law describes a number of clauses that are "unreasonably onerous" (black list) or that are suspected of being "unreasonably onerous" (gray list), the so-called black list and the gray list. Clauses in general terms and conditions that appear in the black or grey lists can be annulled by the customer being a consumer.
Black and grey list of general terms and conditions
A clause in the general terms and conditions can be annulled if the clause is unreasonably onerous. The law contains lists of "prohibited" and "suspicious" clauses, the black list and the grey list.
black list and the grey list are mandatory when it comes to general terms and conditions that are declared applicable to an agreement that is entered into with a consumer.
The blacklist contains provisions that are always unreasonably onerous, these are the prohibited clauses. Article 6:236 of the Dutch Civil Code (BW) contains the black list. Among other things, the following provisions in general terms and conditions are considered unreasonably onerous: that deprives the customer of the right to demand compliance with the promised performance;
The grey list
The grey list contains provisions that are usually unreasonably onerous, these are the suspicious clauses. However, the user of the general terms and conditions can provide proof to the contrary. In Article 6:237 of the Dutch Civil Code, the grey list, the following provisions in general terms and conditions are presumed to be unreasonably onerous.
The role of AGA Lawyers
A lawyer of AGA Lawyers offers assistance in most cases within corporate law. In the event of a conflict regarding corporate law, an expert lawyer is at your side. Together with you, the lawyer determines the right approach and ensures the best possible solution and result. Advising, mediating, litigating, negotiating or drafting legal documents, AGA lawyers arrange it for you.
Contact AGA Lawyers
The corporate lawyers of AGA Lawyers can do a lot for you, such as guiding you throughout the entire process. Feel free to contact one of our expert corporate lawyers for a 1st free intake interview.
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