Applicability and obligation to provide information
The applicability of general terms and conditions must always be agreed. Reference to general terms and conditions must therefore be made at an early stage, for example by means of a reference to the general terms and conditions in a quotation/offer or a brochure. If the general terms and conditions of guarantee are subsequently actually 'provided' to the customer, then the terms and conditions are 'accepted' and therefore applicable. Providing is done by physically (printed) delivery of the terms and conditions if you also make a physical offer or, if everything goes electronically, by sending them in a pdf-file. A pdf-file is a legally acceptable method for the electronic way, because the customer must be able to store the conditions according to the law. Therefore, with only a link to the general terms and conditions on your website, you may not meet this requirement.
In summary: always make a reference in an offer/quotation or brochure that your general terms and conditions apply and then actually provide them to the client (electronically or otherwise).
Battle of forms
A 'battle of forms situation' is the situation when a customer places an order in response to your quotation/offer (in which you declare your general warranty conditions applicable) and this customer subsequently declares his own general (purchase) conditions applicable. There is then a so-called battle of forms. Under Dutch law, the following principle applies:
In principle, the first set of general terms and conditions will apply, unless the other party explicitly rejects the first set when declaring the second set of terms and conditions applicable. In that case, the second set of conditions will apply. In practice, this means the following:
If you make an offer in which your general terms and conditions of sale are declared applicable in the correct manner and the customer rejects your terms and conditions and declares his own terms and conditions of purchase applicable, then you must reject the customer's general terms and conditions by name and declare your own terms and conditions applicable in a written response. If you do not do so, you are bound by the customer's terms and conditions.
If you are the customer yourself and want your own terms and conditions of purchase to apply, then the reverse applies: in a written response, explicitly reject the supplier's general terms and conditions by name and declare your own terms and conditions of purchase applicable. If you do not do so, you are bound by the supplier's terms and conditions of sale.
Should you fail to reach an agreement with the customer or supplier and the rejections of general terms and conditions go back and forth, you will eventually have to make other agreements.
International agreement
Please note: if Dutch law does not apply to the agreement, other rules than the above will apply. The fact is that in some countries the principle applies that the last reference to general terms and conditions is decisive (regardless of whether or not the other party's terms and conditions have been rejected as well). A knock out rule may also apply. Preferably contact a lawyer if there is any ambiguity. Below is a brief overview.
The 'last shot rule' means that the last reference to a set of general terms and conditions must be regarded as a new offer and the performance of the agreement is then also regarded as acceptance of the general terms and conditions. From this wording it therefore does not seem necessary to explicitly reject the applicability of the other general terms and conditions. Only the reference to your general terms and conditions will suffice, as long as this reference is the last one before the execution of the agreement. However, it is advisable to explicitly reject the applicability of other general terms and conditions, also in an international context, in addition to the reference to your general terms and conditions.
The 'knock out rule' means that if both parties invoke their own conflicting general terms and conditions, an agreement will still be concluded when the contracting parties have executed the agreement. In that case the conflicting general terms and conditions do not apply. Only the other terms and conditions apply. Subjects that are not regulated by them will be judged on the basis of the applicable law. In the situation that a contract is concluded with Chinese customers or American customers, it is useful to include a provision stating that a dispute will be resolved through arbitration.
| Last shot rule | Knock out rule |
| England | Germany |
| Scotland | Belgium |
| China* | France |
| Croatia | Austria |
| Czech Republic | Bulgaria |
| Wales | China* |
| Italy | Spain |
| Russia | Switzerland |
| America |
* Unclear. There is no clear line in legislation and jurisprudence as to which theory applies.
Please contact us
At Legal Q, we work differently from traditional lawyers and legal professionals. We advise you with practical solutions and understand commercial relationships. Would you like support in drawing up your general terms and conditions? Or do you have a dispute about your general terms and conditions? Our lawyers will be happy to assist you. Feel free to contact us for more information