New standard terms and conditions for the Dutch ICT industry

27 October 2009

Huub de Jong, Frank Simons

In January 2009 ICT~Office, the Dutch trade association of ICT-companies, published an updated set of standard conditions which modernise the widely known FENIT-conditions.

The purpose of these standard conditions is to facilitate doing business such that not every element of a contract  (for example, a new software licence, hosting contract or consultancy project) needs to be negotiated in detail. Suppliers and clients can therefore focus on the essential aspects of their arrangements and rely on the standard conditions to specify what their respective rights and obligations would be in the event that things go wrong.

The new ICT~Office conditions do not automatically replace the old FENIT-conditions and this may explain why the new ICT~Office conditions are not yet very popular. However, our view is that the ICT~Office conditions will soon become the de facto standard for the ICT industry.

Suppliers will have to agree on the applicability of the new conditions with their clients, and smaller clients will need to be provided with a copy of the conditions upon the ultimate conclusion of the agreement. Sending these new conditions by e-mail is not always sufficient as, at the time of writing, Dutch law only allows for electronic provision of standard conditions if the agreement itself is also concluded electronically.

Unlike the old FENIT-conditions, the new ICT~Office Conditions have a modular structure. The supplier has to select from no less than nineteen modules for different types of services. This selection must link up with the services provided to the client and this is particularly important if the scope of services being provided changes over time, in which case the supplier must remain alert. It is important that the correct modules of the ICT~Office conditions are supplied, and that the parties agree which are applicable.

The ICT~Office Conditions are particularly intended to protect the interests of suppliers. For example, the supplier’s liability is widely excluded in the ICT~Office Conditions. Indeed, potential clients should be warned that some modules limit the supplier’s liability to a very high degree. For example, a developer of a website does not bear any responsibility for the website’s security. In some cases, a court may judge that such a clause is not applicable because it is unreasonable in the specific case and so suppliers should also be aware that specific circumstances may impact on the scope of protection provided by the ICT~Office Conditions.

The ICT~Office Conditions fit better with the latest technological developments, the market and the law than the old FENIT-conditions. In order to gain optimum benefit from the new conditions though, suppliers will have to match the use of the conditions with their own practices and actively agree on the applicability of the conditions with their clients.