General purchase conditions are the standard terms a business applies when it buys goods or services from another business. Under Dutch law they bind your supplier only if three things are true: you declared them applicable before or at the moment the contract was concluded, the supplier accepted them, whether expressly or tacitly, and you gave the supplier a reasonable opportunity to take note of them, normally by handing them over. Fail on the third point and the supplier can annul individual clauses under article 6:233 under b of the Dutch Civil Code. Get the timing wrong on the first and you will find yourself contracting on the supplier own sales conditions instead.
What general purchase conditions are, and why they are separate from the contract
The Civil Code defines general terms and conditions in article 6:231 as clauses drafted to be used in a number of contracts, with the exception of clauses that describe the core of the performance (the kernbedingen). That distinction is the whole point of the arrangement. The contract itself records what the parties actually agreed on this occasion: what is being supplied, at what price, by when. The general conditions record the framework that is the same every time: liability, warranties, payment, intellectual property, confidentiality, applicable law.
Purchase conditions are the buyer-side version. They exist because standard sales conditions are written by and for the seller, and a business that buys regularly without its own set is negotiating from the other side of a document drafted against its interests. Whether you are a retailer, a hospital, a housing corporation or a contractor engaging subcontractors, purchasing is a recurring activity and deserves a recurring document. For the seller-side perspective and the rules that protect consumers, see our article on general terms and conditions and what you should know about them.
Two questions decide whether a set of purchase conditions is worth anything: when you can invoke them at all, and what you are allowed to put in them. The rest is drafting.
Making your purchase conditions applicable
The first requirement is a declaration of applicability. You must state, in the request for quotation, the order, the purchase order or the contract, that your general purchase conditions apply. A sentence to the effect that the general purchase conditions of your company apply to all your agreements is enough, provided it is unambiguous. Where you work with more than one set, for example one for the supply of goods and one for the contracting of work, you must also say which set you are invoking; a reference to conditions that could be either is a reference to nothing in particular.
The second requirement is acceptance. Written acceptance is the ideal, but it is not necessary. Acceptance can be tacit: a supplier who receives your order stating that your purchase conditions apply, does not object, and then performs, has accepted them. What defeats acceptance is a supplier who does object, which brings you to the battle of forms below.
The third requirement is the information duty. Article 6:233 under b makes a clause annullable if the user did not give the counterparty a reasonable opportunity to take note of the conditions, and article 6:234 sets out how that opportunity is given. The main route is handing the conditions over before or at the conclusion of the contract. Only if that is not reasonably possible may you instead state, before the contract is concluded, that the conditions are available for inspection at your offices or at a chamber of commerce you designate, or that they have been filed with a court registry, and that they will be sent on request. Dutch courts read the words not reasonably possible narrowly: with the conditions in a PDF attached to the order, the exception will rarely be available.
Electronic provision follows the same logic. The conditions must be made available before or at the conclusion of the contract in a way that allows the supplier to store them and consult them later. If the contract itself is not concluded electronically, the supplier must consent to receiving the conditions electronically. A link in an email footer to a page that can change at any time does not meet the storage requirement.
The battle of forms
A supplier will often respond to your order by declaring its own sales conditions applicable and rejecting yours. Article 6:225 paragraph 3 of the Civil Code resolves this with a first-shot rule: where an offer and an acceptance refer to different sets of general conditions, the second reference has no effect unless it expressly rejects the applicability of the first. The set referred to first therefore prevails, and the practical consequence is that timing beats drafting.
That leads to a simple discipline. Declare your purchase conditions applicable and supply them at the earliest possible moment, ideally already in the request for quotation. If the supplier then quotes on its own conditions and expressly rejects yours, your acceptance of that quotation without more will conclude a contract on the supplier terms. To avoid it you must refer to your own conditions again and expressly reject the supplier conditions, and make clear that you are only willing to contract on that basis. Where the relationship matters enough, the cleanest solution is to put the applicability of your purchase conditions in the signed contract itself, which takes the question out of the correspondence altogether.
The rule is different in international sales. Where the United Nations Convention on Contracts for the International Sale of Goods, commonly called the Vienna Sales Convention, applies, article 6:225 does not. The Convention applies automatically to sales of goods between businesses established in different contracting states, unless the parties exclude it, which is a point regularly overlooked in Dutch purchase conditions. Under the Convention a reply containing material additions counts as a counter-offer, and courts in the Netherlands and elsewhere frequently apply a knock-out approach in which the conflicting clauses in both sets cancel each other out and the Convention itself fills the gap. If you want your own conditions to govern an international purchase, say so and exclude the Convention expressly. Our article on the most common mistakes in international commercial contracts deals with this in more detail.
Which clauses can be attacked, and by whom
Dutch contract law starts from freedom of contract, but general conditions are policed in three separate ways and it is worth keeping them apart.
The first is the general content test in article 6:233 under a: a clause can be annulled if it is unreasonably onerous for the counterparty, having regard to the nature and content of the contract, the way the conditions came about, the mutually apparent interests of the parties and the other circumstances of the case. The blacklist and greylist in articles 6:236 and 6:237 give concrete examples, but those lists apply directly only where the counterparty is a consumer.
The second is who may rely on that protection at all. Article 6:235 excludes the largest counterparties: a party that publishes its annual accounts under the rules in Book 2, or that employs fifty or more persons, cannot invoke articles 6:233 and 6:234. Between two substantial businesses, in other words, the annulment route is closed and the conditions stand or fall on ordinary contract law. At the other end, a small business counterparty, such as a sole trader or a local craftsman, may benefit from a reflex effect (reflexwerking) under which the consumer lists are used as a source of guidance even though they do not apply directly. Whether that happens depends entirely on the circumstances.
The third is the general limits that apply to everyone. A clause contrary to mandatory law, public order or good morals is void under article 3:40 of the Civil Code, whether it sits in the contract or in the conditions. And under article 6:248 paragraph 2 a clause does not apply to the extent that its application would be unacceptable according to the standards of reasonableness and fairness. That test is applied with restraint, precisely because contracts are meant to be performed, but it is the route through which a supplier will attack a wide exoneration clause after something has gone seriously wrong. A liability exclusion that would cover deliberate recklessness by the supplier is the classic example of a clause that will not survive.
Since you are the purchasing party, the counterparty in your conditions is by definition a business rather than a consumer, so the consumer lists are not your concern. Your risk is different: drafting so aggressively that a clause is set aside when you need it, and relying on conditions that were never properly provided.
What belongs in your purchase conditions
A workable set covers the following ground. A definitions clause fixes the meaning of the terms that recur, which matters more than it looks: the difference between delivery, acceptance and approval decides when risk passes and when payment falls due.
Liability is the clause suppliers negotiate hardest. As purchaser you want the supplier liability for defects and for consequential loss to be as wide as the market allows, and your own exposure limited. Do not draft an exclusion so broad that it covers intent or deliberate recklessness, because that part will simply fall away and may take the credibility of the rest of the clause with it. Guarantees are the positive counterpart: state what the supplier warrants about the goods or the result, for how long, and what the remedy is.
Intellectual property deserves its own clause whenever you commission work. The default position is that the maker holds the copyright, so an architect who draws for you owns the drawings unless you agree otherwise. A transfer of copyright requires a deed under Dutch law, so a purchase conditions clause should either provide for a transfer to be executed in writing or, at a minimum, grant you an unrestricted licence including the right to modify the work and a waiver of the personality rights that can be waived. Confidentiality clauses protect the information exchanged during the negotiation and afterwards, and should say how long the duty lasts and what happens to the material on termination.
Finally, always specify the applicable law and the competent court, even for a purely Dutch supply chain. Suppliers are acquired, subcontract, or turn out to be a branch of a foreign entity, and the value of a choice of law is that it removes an argument before it starts. If you prefer arbitration or a specific sector tribunal, say so; if you want the ordinary courts, name the district court.
Payment terms and interest
Payment is the clause that has changed most, and purchase conditions drafted before 2022 are frequently wrong on it. Article 6:119a of the Civil Code implements the European rules on late payment in commercial transactions. Where nothing is agreed, payment falls due within thirty days and statutory commercial interest runs automatically thereafter, without any notice of default being required. Parties may agree a longer term, but a term of more than sixty days is only valid if it is expressly agreed and is not grossly unfair to the creditor.
The important restriction for a purchasing business is in paragraph 6. Where a large company buys from a small or medium-sized enterprise or from a self-employed supplier, the payment term may not exceed thirty days. A longer term agreed in that situation is void, the thirty-day term applies in its place, and statutory commercial interest runs over the excess period as a matter of law. A purchasing business that qualifies as a large company under the annual accounts rules therefore cannot use its purchase conditions to impose a ninety-day term on its smaller suppliers, however common that practice once was.
Two further points belong in the same clause. The statute gives the creditor a fixed minimum compensation for the costs of recovery in addition to interest, so a clause purporting to exclude recovery costs entirely will not hold. And a set-off clause is worth having: as purchaser you want the right to set off your claims against the invoice, and you want to exclude the supplier from doing the same. Where invoices are disputed and amounts are modest, the route through the subdistrict court is often faster than the conditions suggest.
Purchasing works and services: what to add
Where you engage a contractor to carry out work rather than to supply goods, a further set of clauses earns its place.
Chain liability for payroll taxes
A principal or main contractor who engages a subcontractor to perform material work falls under the chain liability regime of article 35 of the Invorderingswet 1990. If the subcontractor fails to pay the payroll taxes and social security contributions on the wages of the people who did the work, the tax authorities can hold you liable for them. Where you hire in personnel rather than contract out work, the parallel regime in article 34 applies. The liability is a real one and it survives the insolvency of the party that should have paid.
Your purchase conditions can reduce the exposure by obliging the subcontractor to keep proper wage administration, to identify the people deployed, to supply payment records on request, to obtain your consent before subcontracting further, and to accept payment of the wage component into a blocked account. How the blocked account and the associated safe-harbour arrangements work in a specific case is a matter for your tax adviser; the purchase conditions should create the obligations that make those arrangements possible.
Warning duty and safety
Dutch law already imposes a duty on a contractor to warn the principal about inaccuracies in the assignment and about defects in materials or plans supplied by the principal, so far as the contractor knew or should reasonably have known of them. Restating and sharpening that duty in your conditions is worth doing, because it converts an implied standard into an express obligation with an agreed moment for performance, typically an inspection of the site before work begins and a written report of anything that is wrong.
Safety belongs in the same section. You can require the contractor and its personnel to hold specified qualifications and certification, such as VCA, to comply with your site rules, to report incidents within a set time, and to carry insurance of a specified type and amount. Where the work involves hired-in labour, add an obligation to comply with the rules on identification and on minimum working conditions, because those obligations rest on the principal as well.
Standard sets such as the UAV 2012
Construction and installation work is often carried out under the Uniform Administrative Conditions for the execution of works and of technical installation works 2012, the UAV 2012, and integrated contracts under the UAV-GC. If you want such a set to apply, declare it applicable expressly in the purchase conditions, and set out just as expressly every point on which you deviate from it. A general clause stating that your own conditions prevail over the UAV in the event of conflict is not a substitute for identifying the deviations, because a court asked to construe two overlapping sets will look for what the parties actually intended to change.
The mistakes that cost the most
Four recur. Conditions that are referred to but never handed over, which leaves every clause in them open to annulment by a supplier that is not a large company. Conditions declared applicable too late, after the supplier has already put its own set on the table. Conditions that were drafted once and never revisited, so that they still contain a sixty-day payment term that is void against small suppliers, or an intellectual property clause that assumes a transfer takes effect without a deed. And conditions written for the supply of goods that are applied without adaptation to the contracting of work, where chain liability, safety and the warning duty are the clauses that actually matter.
A fifth is procedural rather than legal: purchase conditions that the purchasing department does not use. A set that lives on the website but does not appear in the order template is not part of any contract.
What to do now
Check three things about the set you use today. Whether the version in your order template is the version you think it is, and whether it is actually sent with the order rather than merely referenced. Whether the payment clause complies with article 6:119a in its current form, in particular where you buy from smaller suppliers. And whether you have one set or the several sets your different purchasing streams actually require. Then look at what happens in practice: who declares the conditions applicable, at what moment, and what your buyers are instructed to do when a supplier rejects them.
Law & More draws up and reviews general purchase conditions for businesses in construction, healthcare, retail, industry and services, advises on battle-of-forms disputes and on international purchasing, and litigates about the clauses when it comes to that. We act for buyers and for suppliers, which means we know how the other set is drafted. Contact our contract lawyers to have your conditions reviewed, or read further in our Dutch civil law guides.
