Prepare your general terms and conditions (B2B) for their (re-)exam
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:
- 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?
- 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?
- 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.
- 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?
- Is it stipulated that the non-payment of an overdue invoice will make all outstanding invoices due and payable?
- 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.
- 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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