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Prepare your general terms and conditions (B2B) for their (re-)exam

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Are your general terms and conditions still up-to-date? Do they still offer sufficient protection in case of changed or unforeseen circumstances? Moreover, Belgian business and contract law has been recently amended by the legislator. As a result, many general terms and conditions will/could be (partly) invalid or unenforceable as of 1 December 2020.

Below, you can find a short (non-exhaustive) test:

  1. Has a hardship clause been included, stipulating that, in the event of unforeseen circumstances, an adjustment of the contract and the price may be imposed or, at least, can be renegotiated?
  2. Is it stipulated that, if the buyer does not (or no longer) meet certain ratios (e.g. liquidity), the current order can be cancelled or suspended in anticipation of suitable guarantees?
  3. Has a price revision clause been included? Note: pursuant to the new B2B Act, unilateral (price) changes without valid reasons are presumed to be unlawful. Therefore, always provide a valid reason for unilateral price changes, such as: changes in the prices of raw materials or services of suppliers, changes in legislation, etc.
  4. Is the delivery term sufficient or (even) non-binding, so that, in the event of a reasonable delay, no penalties and/or termination of the contract will arise?
  5. Is it stipulated that the non-payment of an overdue invoice will make all outstanding invoices due and payable?
  6. Is the liability limited to a certain type of damage or maximum intervention? Note: pursuant to the new B2B Act, any clause which limits the liability of the company or of its appointees for willful misconduct, gross negligence is presumed to be unlawful; also the right to compensation in case of breach of contract may not be restricted or excluded in an inappropriate or unreasonable manner.
  7. Is it stipulated that in the event the buyer does not fulfil their obligations, a lump sum (e.g. 20%) for the damage suffered and loss of profit is due? Note: pursuant to the new B2B Act, manifestly disproportionate amounts of compensation are presumed to be unlawful.

We remain at your disposal for a critical review of your general terms and conditions.

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