In a previous contribution we drew attention to the fact that the general terms and conditions of companies (B2B) are due for an update as a result of new legislation. General terms and conditions remain the pre-eminent instrument for creating a clear legal framework for the commercial transactions that the company enters into with its customers. For example, provisions can be included about the payment term, interest and compensation due in the event of non-compliance with the payment obligation, limitations of liability, the competent courts in the event of a dispute, etc.
Just as important as having general terms and conditions that are up to date and valid is that these terms and conditions are also effectively opposable against the co-contracting party. This requires that the contracting partner has been informed of the general terms and conditions before concluding the agreement and has also accepted them. If this is not the case, the general terms and conditions cannot be applied in their entirety.
For example, it is not sufficient to send the general terms and conditions together with the invoice or with an order confirmation. In those cases, the customer has only become aware of the general terms and conditions after the agreement has been concluded.
It is best that the general terms and conditions are signed by the customer prior to the provision of services by the company. In many cases, however, this is difficult to work in practice.
Companies that want to be able to make good use of their general terms and conditions would therefore do well to:
- to publish the general terms and conditions in full on their website;
- to send the general terms and conditions with offers;
- to refer on the front of the invoice (in bold and in a box) to the general terms and conditions stated on the back.
In addition, general terms and conditions must be drawn up in a language that is clear and understandable to the customer. In practice, this means that the general terms and conditions must be drawn up in the language of correspondence between the company and its customer. For example, if a Belgian company has Spanish customers but the working language between them is English, the general terms and conditions must be drawn up in English.
If the general terms and conditions are not accepted by the customer before the conclusion of the agreement or if they are not drawn up in the official language, they will not be enforceable.
Do not hesitate to contact us if you would like advice on your terms and conditions. Van Steenbrugge Advocaten has a business unit that can assist you in this regard. (info@vsadvocaten.be)
