The 10 commandments of 'good general terms and conditions'

1. Provide them to the other party in good time

General terms and conditions are only binding if they are provided to the other party in due time. As a rule, the other contracting party must be able to review the general terms and conditions before the contract is concluded. If they appear for the first time on the invoice, this is by definition too late.

Therefore, provide your terms and conditions during the initial correspondence, make them clearly available on your website, or include them at the latest with the quotation sent to your customer.

2. Ensure proof of acceptance

In addition to timely delivery, acceptance of the terms and conditions is essential. This is comparable to a traditional contract, which only becomes binding once it has been signed by the parties.

You should therefore request written proof of acceptance of your general terms and conditions. This may take various forms, such as a signature on the terms and conditions, written consent by email, or a ticked checkbox in the online ordering environment of your website. If you can produce such evidence, you will be in a stronger position in the event of a dispute.

Important: courts apply stricter standards when assessing proof of acceptance of general terms and conditions in consumer relationships. In B2B relationships, it may be possible to rely on tacit acceptance, but this also entails risks.

3. No copy-paste, but tailor-made

Although it may be tempting to copy general terms and conditions found online, this is rarely a good idea.

General terms and conditions are a legal instrument tailored to your business. They offer optimal protection only if they reflect your way of working, your values, and the risks inherent in your business activities. A well-thought-out and carefully drafted set of general terms and conditions provides the same legal certainty as a traditional contract, while being more flexible and practical to use.

4. Clearly define the scope of application

Ensure that it is immediately clear to whom and in which situations your terms and conditions apply. Always state the full legal identity of the contracting entity so that no ambiguity can arise.

In addition, distinguish between transactions with consumers (B2C) and transactions with other businesses (B2B). This distinction is legally relevant: consumers benefit from a higher level of protection, meaning that certain clauses (such as liability limitations or debt collection clauses) must be drafted differently.

5. Use clear and plain language

Clear terms and conditions prevent misunderstandings and enhance trust between the parties. Avoid unnecessary legal jargon or overly complex sentence structures. This is all the more important when dealing with consumers.

The purpose of your general terms and conditions is to set out clear and legally sound arrangements, not to create confusion.

6. Make them future-proof

Do not focus solely on today’s risks. Unforeseen circumstances can have major consequences if they are not addressed in advance. Consider, for example, a pandemic, a trade war, or other supply chain disruptions. Therefore, include clauses on force majeure, hardship (imprevision), or price adjustments. These clauses provide a valuable safety net in times of crisis.

This article discusses these clauses in greater detail: Price revisions amid trade conflicts and uncertainty: how to protect yourself legally

7. Clearly define deviations

A solid set of terms and conditions is flexible and can be used in many situations. Sometimes you agree on specific arrangements with a customer that deviate from your general terms and conditions. This is perfectly possible, provided it is clearly recorded in writing.

Specify the extent of the deviation, which provisions are replaced, and how they relate to the remaining clauses. This helps avoid disputes at a later stage.

8. Agree on which court has jurisdiction

A forum clause determines which court has jurisdiction in the event of a legal dispute. This may seem like a minor detail, but it can save considerable time and costs. Especially when dealing with foreign contracting parties, a clear clause prevents unexpected proceedings before a foreign court.

9. Keep them up to date

General terms and conditions are a dynamic document. Regularly check whether they still align with the way your business operates and with current legislation. Regular updates ensure that your terms and conditions remain relevant, legally correct, and enforceable.

10. Have them reviewed by a legal advisor

Sound general terms and conditions are a key legal building block for your business. Therefore, have them drafted or reviewed by a legal advisor.

We ensure that your commercial arrangements are translated into a clear, legally robust, and flexible instrument. Our team is ready to support you in drafting, reviewing, or refining your terms and conditions. Feel free to contact us, we will be happy to think along with you.