Conclusion of the Agreement

Concluding contracts does not seem like such a common problem, but in practice, it is more difficult: It is sometimes difficult, especially in ICT, to understand who has concluded an agreement with whom, and which general terms and conditions apply.

If a supplier concludes an agreement with a customer, he can declare his own general terms and conditions applicable. It is then important for the conclusion of whether there is an agreement and whether the general terms and conditions have become applicable.

The first aspect for the conclusion: It must be assessed whether an agreement has been concluded, on the basis of the doctrine of “offer and acceptance”. Articles 6: 217, 6: 232, 3:33, 3:35 and 6: 235 (battle of forms) of the Dutch Civil Code apply to this. Offline, general terms and conditions are often declared applicable by footers (HR Avéro / Visser and HR Petermann / Frans Maas). Terms and conditions are often accepted online by ticking the checkbox.

The following requirement for realization is whether general terms and conditions have become part of the relationship: If the general terms and conditions have not been made available (offline) or have not been made available (online), the question will be raised whether the general terms and conditions have been cancelled. (6: 233 under b and 6: 234 BW). This does not apply in the following cases: if there is an agreement between two professional parties of which one of the parties is located abroad (6: 247 paragraph 2 BW and HR Van Vliet / Dealkent); when the customer is a large party (6: 235 paragraph 1 BW and Hof Arnhem Zwartewater / Hoekman); or when an appeal can be made to the derogating effect of reasonableness and fairness (HR Geurtzen / Kampstaal). In addition, a milder handover regime applies to service providers (6: 230a BW).

For agreements concluded offline, the general terms and conditions must be made available before or at the conclusion of the agreement (6233 under b and 6: 234 paragraph 1 BW). The supplier must take the initiative for this. It is insufficient that the customer can find the general terms and conditions on the internet by googling himself (HR First Data / KPN Hotspots).

If the agreement is concluded by e-mail, it is sufficient according to parliamentary history to conclude the general terms and conditions as an attachment to the e-mail, or to deep-link to the general terms and conditions by means of a URL. It is insufficient to refer to a general web address that still has to be clicked through and searched.

If the agreement is concluded online (via a website), the supplier must make the general terms and conditions available in such a way that the general terms and conditions can be stored and accessible for later inspection (6: 233 under b and 6: 234 paragraph 2). BW). In addition, there are numerous information obligations and regulations regarding the method of electronic contracting.

In ICT it is not uncommon to conclude contracts through intermediaries. It is then often insufficiently clear who contracts with whom and on what conditions. Do the terms and conditions of that intermediary apply? And that of the supplier? Or neither? Or only the suppliers? It should be properly assessed who has concluded which agreement. This is dealt with differently in the various industry (such as the ICT ~ Office conditions and ARBIT). A difficult consequence of this ambiguity is, for example, that it is unclear what consequences the termination of a single contract has for one or more related agreements (6: 279 BW, dissolution of multi-party agreements? And the doctrine of related legal relationships?).

Since many ICT projects often use a large number of different contracts and attachments, it is very important to agree on a good ranking system that determines when which conditions apply. After all, the rule that a specific provision in an agreement takes precedence over a provision in general terms and conditions is not an (unwritten) rule of law, but can only serve as a point of view that can be taken into account in the explanation (HR Vos / Heipro). And when reference is made to more than one set of general terms and conditions without clarifying when which applies, none of the sets applies (HR Avéro / Visser). This is also an important aspect when forming the agreement.