Your general purchase conditions bind a supplier under Dutch law only if you declared them applicable in time, the supplier accepted them, and you gave the supplier a reasonable chance to read them, normally by handing them over. The main exception works against you: if the supplier referred to its own sales conditions first, or expressly rejected yours, you may end up contracting on the supplier’s terms instead.
If you fail to hand the conditions over, the supplier can annul individual clauses under article 6:233 under b of the Dutch Civil Code (Burgerlijk Wetboek). Below we explain when your purchase conditions apply, what happens when both sides use their own set, which clauses can be attacked, and what a workable set should contain.
What are general purchase conditions, and why are they separate from the contract?
General purchase conditions are the standard terms a business uses every time it buys goods or services from another business. They sit next to the contract: the contract records the deal, the conditions record the framework.
Article 6:231 of the Civil Code defines general terms and conditions as clauses drafted to be used in a number of contracts. Clauses that describe the core of the performance (kernbedingen) are excluded from that definition. That distinction is the whole point of the arrangement. The contract records what the parties agreed this time: what is supplied, at what price and by when. The general conditions record what is the same every time: liability, warranties, payment, intellectual property, confidentiality and applicable law.
Purchase conditions are the buyer’s version. Standard sales conditions are written by and for the seller. A business that buys regularly without its own set is always negotiating from 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. It deserves a recurring document.
For the seller’s 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, and what you may put in them. The rest is drafting.
How do you make your purchase conditions applicable?
You need three things: a clear declaration of applicability, acceptance by the supplier, and proper provision of the conditions. Miss the third and the supplier can annul clauses later.
Step 1: declare them applicable
State in the request for quotation, the order, the purchase order or the contract that your general purchase conditions apply. A sentence saying that the general purchase conditions of your company apply to all your agreements is enough, as long as it is unambiguous.
Do you use more than one set, for example one for the supply of goods and one for contracting work? Then say which set you are invoking. A reference to conditions that could be either set is, in effect, a reference to nothing in particular.
Step 2: make sure the supplier accepts them
Written acceptance is ideal, but not required. Acceptance can also be tacit. A supplier who receives your order stating that your purchase conditions apply, does not object and then delivers has accepted them. The problem arises when the supplier does object. That is the battle of forms, discussed below.
Step 3: give the supplier a reasonable chance to read them
Article 6:233 under b makes a clause annullable if you did not give the supplier a reasonable opportunity to take note of the conditions. Article 6:234 sets out how you give that opportunity. The main route is simple: hand the conditions over before or when the contract is concluded.
Only if that is not reasonably possible may you use the alternative. You then tell the supplier, before the contract is concluded, that the conditions are available for inspection at your offices or have been filed with a chamber of commerce or court registry you name, and that they will be sent on request. If you later fail to send them promptly on request, the clauses are annullable as well. Courts read “not reasonably possible” narrowly. When you can simply attach a PDF to the order, the alternative will rarely be open to you.
What about electronic provision?
The same logic applies. Under article 6:234 paragraph 2 you must make the conditions available electronically before or when the contract is concluded, in a way that lets the supplier store them and consult them later. If the contract itself is not concluded electronically, paragraph 3 requires the supplier’s express consent to receiving the conditions this way. A link in an email footer to a web page that can change at any time does not meet the storage requirement.
What happens when the supplier sends its own conditions back?
In a purely Dutch contract, the set referred to first normally wins. The supplier’s later reference only has effect if it expressly rejects your conditions.
This is the battle of forms. Suppliers often respond to your order by declaring their own sales conditions applicable. 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. In practice, timing beats drafting.
How do you win the battle of forms?
Declare your purchase conditions applicable and supply them at the earliest possible moment, ideally already in the request for quotation. Suppose the supplier then quotes on its own conditions and expressly rejects yours. If you accept that quotation without more, you conclude a contract on the supplier’s terms.
To avoid that, refer to your own conditions again, expressly reject the supplier’s conditions, and make clear that you will only contract on your own basis. Where the relationship matters enough, the cleanest solution is to state the applicability of your purchase conditions in the signed contract itself. That takes the question out of the correspondence altogether.
Does the same rule apply to international purchases?
No. Where the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Sales Convention, or CISG) 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. That point is easily overlooked in Dutch purchase conditions.
Under the Convention, a reply that contains material additions or changes counts as a counter-offer. How courts then deal with two conflicting sets of conditions is not settled. One approach, the knock-out approach, lets the conflicting clauses in both sets cancel each other out and lets the Convention fill 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 a supplier attack, and on what grounds?
Dutch contract law starts from freedom of contract, but general conditions are checked in three separate ways. It helps to keep them apart.
Is the clause unreasonably onerous?
The general content test is in article 6:233 under a. A clause can be annulled if it is unreasonably onerous for the counterparty. The court looks at the nature and content of the contract, the way the conditions came about, the interests of both parties as they were apparent to each other, 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.
Can this supplier rely on that protection at all?
Not always. Article 6:235 excludes the largest counterparties. A party that publishes its annual accounts under the rules in Book 2 of the Civil Code, or that employs fifty or more people, cannot invoke articles 6:233 and 6:234. Between two substantial businesses, the annulment route is closed and the conditions stand or fall on ordinary contract law.
At the other end of the scale, a small business counterparty, such as a sole trader or a local craftsman, may benefit from a reflex effect (reflexwerking). The consumer lists are then used as guidance even though they do not apply directly. Whether that happens depends entirely on the circumstances.
Which limits apply to everyone?
A clause that is contrary to mandatory law, public order or good morals is void under article 3:40 of the Civil Code, whether it is in the contract or in the conditions. In addition, under article 6:248 paragraph 2 a clause does not apply to the extent that applying it would be unacceptable by the standards of reasonableness and fairness (redelijkheid en billijkheid).
Courts apply that test with restraint, because contracts are meant to be performed. Still, it is the route a supplier will use to attack a wide exclusion of liability after something has gone seriously wrong. A liability exclusion that would even cover deliberate recklessness is the classic example of a clause that will not survive.
What does this mean for you as the buyer?
Because you are the purchasing party, your counterparty is a business, not a consumer, so the consumer lists are not your main concern. Your risks are different. You may draft so aggressively that a clause is set aside just when you need it. Or you may rely on conditions that were never properly provided.
What should your purchase conditions contain?
A workable set covers definitions, liability and warranties, intellectual property, confidentiality, applicable law and forum, and payment. For contracted work, add the clauses discussed further below.
Definitions
A definitions clause fixes the meaning of recurring terms. That matters more than it seems. The difference between delivery, acceptance and approval decides when risk passes to you and when payment falls due.
Liability and warranties
Liability is the clause suppliers negotiate hardest. As purchaser you want the supplier’s liability for defects and 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. That part will simply fall away, and it may damage the credibility of the rest of the clause.
Warranties are the positive counterpart. State what the supplier guarantees about the goods or the result, for how long, and what remedy you have if the guarantee is not met.
Intellectual property
Include a separate clause whenever you commission work. The starting point is that the maker holds the copyright. An architect who draws for you owns the drawings unless you agree otherwise. Under article 2 of the Dutch Copyright Act (Auteurswet), an agreement to transfer copyright must be made in writing, and the transfer itself requires a deed.
Your purchase conditions should therefore either provide for a transfer to be executed in writing or, at a minimum, give you an unrestricted licence. That licence should include the right to modify the work and a waiver of the moral rights that can be waived.
Confidentiality
Confidentiality clauses protect the information exchanged during the negotiations and afterwards. Say how long the duty lasts and what happens to the material when the contract ends.
Applicable law and competent court
Always specify the applicable law and the competent court, even for a purely Dutch supply chain. Suppliers are taken over, subcontract, or turn out to be a branch of a foreign company. A choice of law 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.
What payment term may you impose on suppliers?
If nothing is agreed, the statutory term is thirty days. A large company buying from a smaller supplier may not agree a term longer than thirty days at all.
Older purchase conditions are often wrong on this point. Article 6:119a of the Civil Code implements the European rules on late payment in commercial transactions. Where no payment date is agreed, statutory commercial interest (wettelijke handelsrente) is due from thirty days after the buyer received the invoice. No notice of default is required.
Under paragraph 5, parties may agree a payment term of up to sixty days. A longer term is only valid if it is expressly included in the contract and is not grossly unfair to the supplier. The court considers, among other things, whether you have objective reasons for the longer term, the nature of the performance, and any serious deviation from good commercial practice.
The thirty-day limit for large companies
Paragraph 6 contains the key restriction for large buyers. Where the buyer is a company that does not qualify as small under the size criteria of article 2:397 of the Civil Code, and the supplier is a smaller business or a self-employed professional, the parties cannot agree a payment term of more than thirty days. A clause that does so is void, so the statutory term applies instead.
A large purchasing business therefore cannot use its purchase conditions to impose a sixty or ninety-day term on its smaller suppliers, however common that practice once was.
Collection costs and set-off
Two further points belong in the payment clause. The law gives the supplier a fixed minimum compensation for collection costs on top of interest. A clause that tries to exclude collection costs entirely will not hold.
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 the amounts are modest, the route through the subdistrict court is often faster than the conditions suggest.
What should you add when you buy works or services?
When you engage a contractor to carry out work rather than to supply goods, add clauses on chain liability, the contractor’s duty to warn, safety, and any standard set such as the UAV 2012.
How do you limit chain liability for payroll taxes?
A principal or main contractor who engages a subcontractor for material work falls under the chain liability regime (ketenaansprakelijkheid) of article 35 of the Collection of State Taxes Act 1990 (Invorderingswet 1990). If the subcontractor does not pay the payroll taxes and social security contributions on the wages of the people who did the work, the Dutch Tax Administration (Belastingdienst) can hold you liable. If you hire in personnel rather than contract out work, the parallel regime in article 34 applies. This liability is real, and it survives the insolvency of the party that should have paid.
Your purchase conditions can reduce the exposure. Oblige the subcontractor to keep proper wage records, to identify the people deployed, to provide payment records on request, and to obtain your consent before subcontracting further. Also require it to accept payment of the wage component into a blocked account (G-rekening). How the blocked account and related safe-harbour arrangements work in your specific case is a question for your tax adviser. Your purchase conditions should create the obligations that make those arrangements possible.
Should you spell out the contractor’s duty to warn?
Yes. Dutch law already requires a contractor to warn you about errors in the assignment and about defects in materials or plans you supplied, as far as the contractor knew or should reasonably have known of them.
Restating and sharpening that duty in your conditions is still worth it. It turns an implied standard into an express obligation with an agreed moment for performance. Typically that is an inspection of the site before work starts, followed by a written report of anything that is wrong.
What about safety?
Safety belongs in the same section. You can require the contractor and its staff to hold specified qualifications and certificates, such as VCA. You can also require them to follow your site rules, report incidents within a set time, and carry insurance of a specified type and amount. Where the work involves hired-in workers, add an obligation to comply with the rules on identification and on minimum working conditions, because those obligations also rest on you as principal.
How do you use a standard set such as the UAV 2012?
Construction and installation work is often carried out under the Uniform Administrative Conditions for the execution of works and technical installation works 2012 (UAV 2012). Integrated contracts often use the UAV-GC. If you want such a set to apply, declare it applicable expressly in your purchase conditions. Then list, just as expressly, every point on which you deviate from it.
A general clause stating that your own conditions prevail over the UAV in case of conflict is no substitute for naming the deviations. A court that has to interpret two overlapping sets will look for what the parties actually intended to change.
Which mistakes cost buyers the most?
Five mistakes recur:
- Conditions that are referred to but never handed over. Every clause is then 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 drafted once and never updated. They may still contain a sixty-day payment term that is void against small suppliers, or an intellectual property clause that assumes a transfer without a deed.
- Conditions written for the supply of goods and used unchanged for contracted work, where chain liability, safety and the duty to warn are the clauses that really matter.
- Conditions the purchasing department does not use. A set that lives on your website but is missing from the order template is not part of any contract.
What should you check now?
Start with three questions about the set you use today:
- Is the version in your order template the version you think it is, and is it actually sent with the order rather than only referred to?
- Does the payment clause comply with the current article 6:119a, especially where you buy from smaller suppliers?
- Do you have one set, or the several sets your different purchasing streams actually need?
Then look at practice. Who declares the conditions applicable, at what moment, and what are your buyers told to do when a supplier rejects them? For related topics, see our Dutch civil law guides.
In summary
- Your purchase conditions bind a supplier only if you declared them applicable in time, the supplier accepted them, and you handed them over before or when the contract was concluded (articles 6:233 and 6:234 of the Civil Code).
- In a Dutch contract, the set referred to first usually wins, unless the other side expressly rejects it (article 6:225 paragraph 3). Under the Vienna Sales Convention different rules apply, so exclude it if you want your own conditions to govern.
- Large counterparties cannot use the annulment route, but every clause remains subject to mandatory law and to reasonableness and fairness.
- A large company may not agree a payment term longer than thirty days with a smaller supplier; such a clause is void (article 6:119a paragraph 6).
- For contracted work, add clauses on chain liability, the duty to warn, safety and any standard set such as the UAV 2012.
Frequently asked questions
Is a reference to our conditions on the website enough?
Usually not. You must normally hand the conditions over before or when the contract is concluded. When contracting electronically, you must make them available in a form the supplier can store and consult later. A link to a web page that can change at any time does not meet that requirement.
The supplier’s confirmation refers to its own sales conditions. Which set applies?
Under Dutch law, the set referred to first applies, unless the supplier expressly rejected yours. If it did, and you then accepted without objecting, the supplier’s conditions will usually apply. For international sales of goods, the Vienna Sales Convention may lead to a different outcome.
Can we agree a ninety-day payment term?
Only in limited cases. A term of more than sixty days must be expressly agreed and may not be grossly unfair to the supplier. If you are a large company and your supplier is a smaller business or self-employed professional, the maximum is thirty days.
Do our purchase conditions give us the copyright in commissioned work?
Not automatically. The maker holds the copyright unless it is transferred. A transfer requires a written agreement and a deed, so your conditions should provide for that or at least give you a broad licence.
Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.
