Declaring them applicable is step one
General terms and conditions (algemene voorwaarden) only apply if they are part of the agreement. To achieve that, you must declare them applicable, for example in your quote, before the agreement is concluded. A reference on the invoice afterwards is usually too late.
Step two: the other party must be able to read them
The law requires you to give the other party a reasonable opportunity to take note of your terms (art. 6:233 sub b BW). How to do that is set out in art. 6:234 of the Dutch Civil Code (BW). The main rule: you provide the terms before or when concluding the agreement (ter hand stellen). Put simply: you send them along.
For an agreement concluded electronically, you may also make the terms available electronically, in a way that lets the other party store them and consult them later.
If you do not do this properly, the other party can annul a clause in your terms. That clause then does not apply. Precisely the provisions you want to fall back on, such as a limitation of your liability, can drop out this way.
Not everyone can rely on this
The protection is mainly intended for consumers and smaller businesses. Larger companies cannot, in certain cases, rely on these grounds for annulment (art. 6:235 BW). Towards those parties you are therefore often in a stronger position, but do not assume so blindly.
Unreasonably onerous
Even if you properly sent the terms along, a clause can be annulled if it is unreasonably onerous (art. 6:233 sub a BW). Towards consumers, the law gives lists of clauses that are deemed or presumed to be unreasonably onerous (art. 6:236 and 6:237 BW).
Both have terms: the battle of forms
Do you refer to your terms in your quote, and does the other party refer to theirs when accepting? Then art. 6:225 lid 3 BW governs what happens: the second reference has no effect, unless it expressly rejects the terms of the first. So whoever refers first usually wins. Other rules may apply to international contracts.
Checklist
- Declare your terms applicable in your quote or offer.
- Send them along as an attachment, or provide them electronically so the other party can store them.
- Have the other party confirm that they received them, for example with a tick box on acceptance.
- Expressly reject the other party's terms if you want to.
- Have your terms reviewed now and then: does your company still work the way they describe?