10.4 Other circumstances

The other circumstances (social position and the relative position of the parties, the marmer in which the clause came into existence and the extent to which the other party is aware of the purpose of the clause) should, in my opinion, also not be relevant when applying the Saladin/HBu test.

The circumstance 'social position' mainly plays a role in relationships in which the element of trust is viewed as essential, such as with doctors, lawyers, civil law notaries, banks and insurers. This is not the case in ICT contracts between professional parties.

The circumstance 'relative position of the parties' has three main aspects: a difference in expertise regarding the products and/or services supplied, abuse of a dominant market position and the difference in legal expertise on exemptions clauses.

The influence of a difference in expertise regarding the products and/or services supplied is important and has been discussed above in connection with the degree of culpability.

The possible effect of the abuse of a dominant market position on an exemption clause can be deduced from the literature on competition law. 1f there are no objections from a competition law perspective, the 'larger' party is, in my opinion, free to take advantage of its stronger bargaining position. Put differently, in contract negotiations it is not necessary to compensate for unequal bargaining positions as long as the competition laws are observed.

A difference in legal expertise on exemption clauses is, in my opinion, also not a circumstance which should affect whether the invocation of an exemption clause is unacceptable on the basis of reasonableness and fairness. The buyer or potential buyer should in my view bear the consequences of its own lack of legal expertise. A professional party may be expected to be aware of and understand the price and other conditions governing its purchases. Exemption clauses are part of those conditions. If the buyer or potential does not possess such expertise itself, it can hire someone who does.

The 'wanner in which the clause came into existence' (such as the fact that the exemption clause is a standard term) should, in my opinion, also not affect whether the invocation of an exemption clause is unacceptable based on reasonableness and fairness.

A customer, if it is interested in examining the standard terms, must in my opinion request a copy of them. 1f the supplier then fails to provide this, the customer is, in my opinion, not bound by the standard terms (there is no acceptance within the meaning of Article 6:217 of the Netherlands Civil Code) or can nullify them (Articles 6:233 (b) and 6:234 (1) Netherlands Civil Code, unless Art. 6:235(1) or 6:247(2) Netherlands Civil Code applies). If the standard terms include an exemption clause, its content will in that situation not be tested. If the supplier does provide a copy of the standard terms, the customer can make an educated choice to accept or negotiate them. In those two cases (accept or negotiate), the circumstance 'manner in which the clause came into existence' should not influence the enforceability of the exemption clause. If the customer accepts the exemption clause, it obviously agrees to the risk allocation the clause brings about. And if the customer decides to negotiate, it can influence that risk allocation in the same manner as it can influence the other conditions of the contract. If the customer is unable to affect the risk allocation to its liking, it can refuse to enter into the contract.

If the customer does not request a copy of the standard terms, it is in my opinion obviously not interested in them and accepts the risk that they will contain a disadvantageous exemption clause. In that case, the customer may, in my opinion, no longer argue that it has not accepted the standard terms or that the supplier's obligation to provide information has been breached. The customer may also not argue at a later stage that the invocation of the exemption is unacceptable based on the principles of reasonableness and fairness in view of 'the manner in which the clause came into existence' although it can of course still make this argument on the basis of other circumstances.

If an exemption clause is not a standard term, the clause is (by definition, see Art. 6:231 (c) Netherlands Civil Code) not intended to be included in more than one contract. It is therefore an individual term to which the general statutory provisions on offer and acceptance apply (Art. 3:33 et seq. and 6:217 et seq. Netherlands Civil Code). In that event, it can be assumed that the exemption clause was negotiated. If the clause was in fact not negotiated, it is even easier to say that the customer has accepted the risk because it could have negotiated the clause and did not do so. If the supplier refuses to negotiate, the customer can always decide not to purchase the relevant product or service. In this case too, 'the manner in which the clause came into existence' should not be a factor in the testing of an exemption clause.

The last circumstance (' the extent to which the other party is aware of the purpose of the clause') should, in my opinion, likewise not play a significant role in the testing of an exemption clause. A professional customer may be assumed to be aware of the purpose of an exemption clause. Put differently, it should be aware of the purpose of such a clause. If not, it must either ensure that it gains this awareness or accept the risk of being bound by an exemption clause it does not understand.