The Validity of Standard Terms and Conditions

General terms and conditions are not binding in an individual contractual relationship without a specific affiliation. The question of whether a connection has been properly made will be decided on a case-by-case basis. At least the following can be mentioned as forms of affiliation:

• the parties sign a contract, of which the general conditions form part, for example, in an annex;

• the terms and conditions are contained in an offer which is accepted as such;

• the terms and conditions are expressly and specifically referred to in the contract and the other party has had the opportunity to acquaint themself with them before the conclusion of the contract;

• the terms are generally known in the sector or should have been known to the parties;

• the terms are based on the parties' previous contractual practice.

If the standard terms contain unexpected and harsh conditions, special care must be taken to bring them to the attention of the other party. Such a term could be, for example, a disclaimer or an arbitration clause. When considering whether a term is unexpected and harsh, account will be taken of whether it is commonly used in the sector. If the term is not common in the industry, it is reasonable to point it out before the contract is concluded. If a harsh or unexpected term is not pointed out, there is a risk that the term will not apply to the contractual relationship at all, or at least not as such. In a situation where the other party to the contract has no knowledge of the sector or has a low level of education, it may be more likely that a particular term should have been pointed out before the contract was concluded.