You have set up your INC or LLC. Great, but that’s not all. Once you start working with American customers, suppliers, or partners, you’ll quickly encounter an often-overlooked aspect: your terms and conditions.
Many Dutch companies use their existing Dutch terms (sometimes translated) and think that it will “work just fine.” In practice, the most significant differences lie in formation, content, and enforceability. And if any disputes arise, you don’t want to find out that your terms look fine on paper but don’t work as you thought in the US.
Why American Terms Are Different
In the Netherlands, general terms and conditions are relatively strongly regulated by law. There is more protection for the other party, and there is a stricter focus on aspects like provision (have they been provided correctly?) and comprehensibility.
In the US, the emphasis is often on freedom of contract: what the parties agree on is paramount. As a result, American terms are typically much more extensive and aim to address more risks and scenarios in advance. Therefore, you often see a standard focus on choice of law, warranties, indemnities, and limitation of liability.
Key Differences (NL vs US)
- More legal protection in the Netherlands
In the Netherlands, unclear or unreasonably burdensome text is addressed more swiftly. In the US, the focus is more on what parties contractually agree upon. - Shorter in the Netherlands, longer in the US
Dutch general terms and conditions are often more compact. American terms are usually longer and more detailed, as there is a preference to avoid relying on open standards. - Provision vs. wording and applicable law
In the Netherlands, handing over and understandability play a significant role. In the US, the crucial aspect is which law applies and how precisely the clauses are formulated.
“American terms aren’t more extensive because Americans love paperwork, but because risks are contractually sealed in the US.”
Practical legal differences you don’t want to miss
1) Voidability and interpretation
The Netherlands has a strict standard for the voidability of general terms and conditions. In case of doubt about the interpretation, the interpretation may more quickly favor the counterparty.
In the US, the outcome often depends much more on the literal wording and how it is structured. This makes careful drafting and consistent definitions especially important.
2) No uniform national contract rules
The US does not have a uniform national contract law as experienced in the Netherlands. Contract law varies by state. Therefore, a choice of law provision (which law applies?) is often one of the most crucial components.
3) More “boilerplate” on risk and liability
American contracts often contain extensive provisions regarding:
- Limitation of liability
- Exclusion of indirect/consequential damages
- Warranties and disclaimers
- Indemnities
- Exclusive remedies (what is the sole remedy for an issue?)
This may sometimes feel excessive, but it’s precisely how many American parties try to manage risks.
Negotiation and dispute: other reflections
- Remedies: specific performance vs damages
In the Netherlands, specific performance is often the primary remedy for a breach. In the U.S., damages are typically more central and there is a stronger focus on limiting exposure. - Document everything in writing
American contracts aim to prevent evidentiary issues by putting agreements down on paper as thoroughly as possible. Verbal promises usually carry less weight than Dutch entrepreneurs might expect. - Battle of forms in international transactions
In international deals, extra attention must be paid to conflicts between terms. Depending on the circumstances (and applicable law), only the agreeing provisions may apply. This can increase your risks if you do not explicitly stipulate which terms take precedence.
“In the U.S., if you don’t lock in governing law, limit liability, and define indemnities, you’re walking into a lawsuit with your guard down.”
What is most crucial for your practice?
For Dutch companies working with American parties, these are often the provisions where the difference is made:
- Governing law (choice of law)
- Jurisdiction / dispute resolution (which court or arbitration?)
- Liability limits
- Warranty clauses and disclaimers
- Indemnity clauses
- Consistent definitions and scope (what exactly do you deliver, and what not?)
And yes: language and readability remain important. In the Netherlands, it must be understandable for the counterparty, and in the U.S., you want to ensure that your text leaves no unnecessary room for interpretation.
Practical Checklist:
Making Your Terms “USA-Ready”
Use this checklist as a starting point for your own review:
- Define your contract model
Are you working with standard terms, a Master Service Agreement (MSA), Statements of Work (SOWs), or a combination? - Establish choice of law and forum selection
Choose wisely: which state, which court, and why does it fit your risk and type of client? - Outline your liability
Consider caps, exclusions of indirect damages, and clear definitions of “damages.” - Review warranties and disclaimers
What do you promise and what do you explicitly not? Align with your product or service. - Indemnity: what do you indemnify, and what do you not?
Think about IP, third-party claims, and limits on your obligations. - Set payment terms and late fees
Payment periods, interest, suspension, and what happens in case of non-payment. - Scope and change control
How do you prevent scope creep? Specify how changes are requested, priced, and approved. - Limit reliance on verbal agreements
Consider an “entire agreement” clause and ensure that sales/operations are aligned. - Battle of forms: determine which terms apply
Clearly state that your terms prevail, and ensure your process (quote, order, acceptance) is set up accordingly. - Have it legally reviewed by someone who understands the US context
Especially if you are working across multiple states, larger contract values, or regulated sectors.
Important: No legal advice, but the right guidance
This blog is intended as practical explanation and awareness, not legal advice. Every situation is different, especially in the US where states vary.
Do you want to approach this properly without endless back and forth? At Van Holland Group, we have in-house counsel who can help you review and align your terms with your activities in the US. This saves you time, hassle, and surprises when it really matters.
We are happy to assist you with personalized advice.
- Schedule a TEAMS video call at your convenience
- Contact us by phone (786) 233 6384
- Or email: info@vanhollandgroup.com
