THE BOTTOM LINE
- Proof of Acceptance is Non-Negotiable: A Dutch court has ruled that merely having Terms and Conditions is insufficient. Businesses must be able to prove that a counterparty actively saw and accepted the specific version of the T&Cs in effect when the contract was formed.
- Digital Record-Keeping is Critical: For online platforms and services, this ruling highlights the necessity of maintaining robust, version-controlled records of user onboarding. This includes screenshots, user logs, and timestamps of “I agree” clicks.
- Failed Clauses Mean Default Rules Apply: Without proof that a forum selection clause was agreed upon, the court reverted to the default legal standard. This can lead to litigation in an unplanned and potentially less favorable jurisdiction, increasing legal costs and uncertainty.
THE DETAILS
The case involved Clickdrive B.V., a platform for driving lessons, and one of its affiliated instructors. When the instructor sued Clickdrive for breach of contract in Rotterdam, Clickdrive immediately challenged the court’s jurisdiction. They argued that their “Terms and Conditions for Driving Schools and Instructors” contained a clear forum selection clause designating the courts in Amsterdam as the exclusive venue for any disputes. Clickdrive asserted that the instructor had accepted these terms during the online sign-up process, a standard procedure for many platform-based businesses aiming to centralize their legal battles.
However, the Rotterdam District Court sided firmly with the instructor. The court’s reasoning was based on a straightforward but critical failure of proof by Clickdrive. The company failed to provide any concrete evidence that the instructor had actually completed the online form and, crucially, had been presented with and accepted the terms. No screenshot, digital log, or other record of the acceptance was submitted. Compounding this error, the version of the T&Cs Clickdrive presented to the court was dated July 2025, nearly three years after the instructor had supposedly signed up in August 2022. The court noted that these future terms could not possibly have formed part of the original agreement.
This judgment serves as a powerful reminder of a foundational principle of contract law: the burden of proof lies with the party seeking to enforce a clause. In the absence of a valid, proven forum selection clause, the court applied the standard rule of Dutch civil procedure—that a defendant is sued in the court of their official place of business. Since Clickdrive is registered in Rotterdam, the court confirmed its own jurisdiction. For CEOs and legal counsel, the lesson is clear: audit your digital contracting processes. Ensure that every click-through agreement generates and archives an undeniable, version-stamped record of acceptance, or you risk your carefully drafted clauses becoming unenforceable.
SOURCE
Rechtbank Rotterdam
