TERMS AND CONDITIONS OUTSTANDING B.V.
Clause 1. General
- 1.1 These conditions apply to each offer and quotation and to all agreements entered into, however named, between Outstanding B.V. and the Other Party, to which Outstanding B.V. has declared these conditions applicable.
- 1.2 These general terms and conditions may exclusively and only be departed from if and insofar as this has been expressly agreed in writing.
- 1.3 Where these general terms and conditions refer to the “delivery (of goods)”, this also includes the rendering of services and work of whatever nature.
- 1.4 The current conditions also apply to the agreements with Outstanding B.V., for the performance of which Outstanding B.V. must engage third parties.
- 1.5 These general terms and conditions are also drafted for the employees of Outstanding B.V. and its board.
- 1.6 The applicability of any purchase conditions or other conditions of the Other Party is expressly rejected.
- 1.7 If at any time, one or more provisions in these general terms and conditions are void either wholly or in part, or are declared void, the other provisions in these general terms and conditions remain fully applicable. Outstanding B.V. and the Other Party shall then enter into consultation in order to agree new provisions in replacement of the void or voided provisions whereby the objective and purport of the original provisions are taken into account as far as possible.
- 1.8 If there is lack of clarity in respect of the interpretation of one or more provisions of these general terms and conditions, the interpretation must then be in ‘the spirit’ of these provisions.
- 1.9 If a situation arises between the parties which is not provided for in these general terms and conditions, this situation must then be assessed in the spirit of these general terms and conditions.
- 1.10 If Outstanding B.V. does not always demand strict adherence to these conditions, this does not mean that such provisions are not applicable or that Outstanding B.V. would in any way lose its right, in other circumstances, to demand strict compliance with the provisions of these conditions.
Clause 2. Quotations and offers
- 2.1. All quotations and offers of Outstanding B.V. are without obligation, unless the offer contains a term for acceptance. They do not bind Outstanding B.V. in any way whatsoever, unless the offer itself expressly and unambiguously (written) determines the contrary.
- 2.2 Designs, drawings, models, samples, descriptions, images and such like, as well as any annexes and documents which form part of the offer or are related such, remain, just as the tools made by Outstanding B.V. in this respect, the property of Outstanding B.V. and must on first demand be returned to Outstanding B.V. and may not be copied and/or be handed over to third parties without express written consent.
- 2.3 A quotation or offer lapses if the product to which the quotation or offer relates is in the meantime no longer available, this without Outstanding B.V. being liable to any compensation.
- 2.4 Outstanding B.V. cannot be held to its quotations or offers if the Other Party could reasonably understand that the quotations or offers, or a part thereof, contain an obvious mistake or clerical error.
- 2.5 The prices listed in an offer or quotation are exclusive of VAT unless expressly otherwise agreed in writing, exclusive of packaging, other government levies, any costs to be incurred in the context of the agreement, travel and accommodation costs, shipping and administration costs included.
- 2.6 The prices are ex works of Outstanding B.V. unless otherwise agreed in writing (email, fax or post).
- 2.7 If the acceptance (whether or not on minor points) departs from the offer included in the offer or the quotation, Outstanding B.V. is not bound to such. The agreement is then not formed in accordance with this deviating acceptance, unless Outstanding B.V. indicates otherwise.
- 2.8 A composite quotation does not oblige Outstanding B.V. to carry out a part of the order at a corresponding part of the stated price. Quotations or offers do not automatically apply to future orders.
- 2.9 The order granted to Outstanding B.V. is considered to be an offer which is only deemed to have been accepted after a written or email confirmation by Outstanding B.V. (the so-called order confirmation).
Clause 3. Agreement
- 3.1 An agreement is only formed when an order granted to Outstanding B.V. has been accepted by Outstanding B.V. in writing (by email, fax or post). Agreement to the order is also the confirmation of the order.
- 3.2 The order confirmation sent by Outstanding B.V. to the Other Party is deemed to fully and accurately reflect the content of the agreement entered into. The Other Party is deemed to agree with the content of this order confirmation, unless the Other Party within 8 days after the date of this order confirmation notifies Outstanding B.V. in writing that it cannot agree with the content.
- 3.3 If the order is confirmed, within 8 days after the order confirmation there shall be an advance payment of 50% of the amount unless otherwise agreed.
- 3.4 When the advance payment of 50% has been made, the order is placed.
- 3.5 Any additional agreements and/or undertakings made by the employees of Outstanding B.V. or made on behalf of Outstanding B.V. by other persons acting as representatives, only bind Outstanding B.V. if these agreements and/or undertakings have been confirmed in writing (by email, fax or post) by a director authorised to represent Outstanding B.V..
Clause 4. Delivery terms, change of agreement and price increase
- 4.1 The delivery terms stated by Outstanding B.V. commence on the day the agreement has been formed provided all the information required by Outstanding B.V. for the performance of the order are in the possession of Outstanding B.V..
- 4.2 If a specific term has been agreed or stated for the completion of specific work or for the delivery of specific goods, this is never a strict deadline. On exceeding a term, the Other Party must therefore issue Outstanding B.V. with a written notice of default. Outstanding B.V. must then be given a reasonable term to as yet perform the agreement. On exceeding the agreed delivery term, Outstanding B.V. is not liable for the indirect loss as referred to in clause 10(5) of these general terms and conditions.
- 4.3 Delivery and prices are ex works of Outstanding B.V. unless otherwise agreed in writing. The Other Party is obliged to purchase the goods the moment they are made available to the Other Party. If the Other Party refuses to purchase or fails to provide information or instructions required for the delivery, Outstanding B.V. is entitled to store the goods for the account and at the risk of the Other Party.
- 4.4 If the Other Party requests that delivery takes place in a different manner than set out in paragraph 3, Outstanding B.V. may invoice the associated costs to the Other Party.
- 4.5 Outstanding B.V. has the right to have certain work carried out by third parties.
- 4.6 Outstanding B.V. is entitled to perform the agreement in different phases and to invoice any performed part separately.
- 4.7 If the agreement is performed in phases, Outstanding B.V. may suspend the performance of those parts belonging to the next phase until such time the Other Party has approved the results of the preceding phase in writing.
- 4.8 If during the performance of the agreement it appears that for a proper performance of such it is necessary to change or amend it, the parties will in a timely manner and in mutual consultation come to an amendment to the agreement. If the nature, extent or content of the agreement, whether or not at the request or direction of the Other Party, of the authorised institutions etc. is changed and the agreement is changed qualitatively and/or quantitatively as a result, this could also have consequences for that originally agreed. This means that the original agreed amount can be increased or lowered. Outstanding B.V. will submit a quotation for this in advance as far as possible. Due to an amendment to the agreement, the originally stated performance term may also be changed. The Other Party accepts the possibility of an amendment to the agreement, including the change in price and term of performance.
- 4.9 If the agreement is amended, which includes any addition, Outstanding B.V. is entitled to perform such only after approval has been given by the person authorised to this end within Outstanding B.V. and the Other Party has agreed to the price and other conditions stated for the performance, which includes the time for performance to be determined at that stage. The failure to perform the amended agreement or not perform it immediately does not constitute a breach of contract by Outstanding B.V. and does also not provide the Other Party with a ground to terminate the agreement. Without this resulting in Outstanding B.V. being in default, Outstanding B.V. may refuse a request to amend the agreement if this could have qualitatively and/or quantitatively consequences, for the work or goods to be delivered in that context for example.
- 4.10 Should the Other Party be in default with the proper performance of all that the Other Party is obliged to perform towards Outstanding B.V., the Other Party is liable for all loss (which includes costs) directly or indirectly arisen as a result on the side of Outstanding B.V..
- 4.11 If Outstanding B.V. agrees a fixed price with the Other Party, Outstanding B.V. is nevertheless at all times entitled to increase this price without the Other Party in that case being entitled to terminate the agreement for that reason, if the price increase arises from an authority or obligation pursuant to the law or regulations, or is caused by a rise in the price of raw materials, wages etc. or on different grounds which on entering into of the agreement were not reasonably foreseeable.
- 4.12 If the price rise, other than as a result of a change of the agreement, is more than 10% and takes place within three months after the entering into of the agreement, exclusively the Other Party who is entitled to rely on title 5 section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by means of a written statement, unless Outstanding B.V. is as yet prepared to perform the agreement on the basis of the originally agreed terms or if the price increase is the result of an authorisation or obligations resting on Outstanding B.V. pursuant to the law or if it has been stipulated that the delivery shall take place later than three months after the purchase.
Clause 5. Suspension, termination and early termination of the agreement
- 5.1 Outstanding B.V. is entitled to suspend the performance of the obligations or terminate the agreement, if:
- The Other Party fails to comply with the obligations under this agreement properly, in full or on time;
- After the formation of the agreement, Outstanding B.V. becomes aware of circumstances giving good grounds to fear that the Other Party shall fail to comply with the obligations;
- At the time of the agreement was entered into the Other Party has been requested to provide security for the performance of its obligations under the agreement and this security is not forthcoming or is inadequate;
- If due to delays on the part of the Other Party it can no longer be demanded from Outstanding B.V. that it shall perform the agreement at the originally agreed conditions.
- 5.2 In addition, Outstanding B.V. is authorised to terminate the agreement if circumstances occur which are of such a nature that performance of the agreement is impossible or if otherwise circumstances occur which are of such a nature that the unaltered maintenance of the agreement can in all reasonableness not be demanded from Outstanding B.V..
- 5.3 If the agreement is terminated, the claims of Outstanding B.V. on the Other Party become immediately due and payable. If Outstanding B.V. suspends the performance of the obligations, it retains its claims pursuant to the law and agreement.
- 5.4 If Outstanding B.V. proceeds to suspension or termination, Outstanding B.V. is not in any way whatsoever obliged to pay compensation for the loss and costs arisen as a result.
- 5.5 If the termination is imputable to the Other Party, Outstanding B.V. is entitled to compensation for loss, which includes costs directly or indirectly arisen as a result.
- 5.6 If the agreement is terminated early by Outstanding B.V., Outstanding B.V. shall in consultation with the Other Party ensure the transfer of work still to be carried out to a third party. This unless the termination is imputable to the Other Party. If the transfer of the work incurs extra costs for Outstanding B.V., these costs shall be charged to the Other Party. The Other Party is obliged to pay these costs within the set term, unless Outstanding B.V. indicates otherwise.
- 5.7 In the event of liquidation, (application for) a moratorium or bankruptcy, of attachment – if and insofar as the attachment has not been lifted within three months – in respect of the Other Party, of debt rescheduling or another circumstance as a result of which the Other Party loses its unfettered control over its assets, Outstanding B.V. is free to terminate the agreement with immediate effect or to cancel the order or agreement without any obligation on its part to pay any compensation or indemnification. In that event, the claims of Outstanding B.V. on the Other Party are immediately due and payable.
- 5.8 If the Other Party cancelled a placed order, wholly or in part, the items ordered or prepared for such, plus any delivery costs of such and the labour costs reserved for the performance of the agreement, shall be invoiced in full to the Other Party unless the cancellation takes place within the term as stated in clause 3(3) of these general terms and conditions.
Clause 6. Force majeure
- 6.1. Outstanding B.V. is not obliged to perform any obligation towards the Other Party if Outstanding B.V. is prevented from doing so as a result of a circumstance which is not its fault or for which it is accountable pursuant to the law, a legal act or common opinion.
- 6.2 Force majeure in these general terms and conditions means, in addition to that included in the legislation and case law, all external causes, whether or not foreseen, which are outside the control of Outstanding B.V. but as a result of which Outstanding B.V. is unable to perform its obligations, which includes strikes at the company of Outstanding B.V. or a third party. Outstanding B.V. is also entitled to rely on force majeure if the circumstance preventing (further) performance of the agreement, commences after Outstanding B.V. should have fulfilled its obligation.
- 6.3 Force majeure includes but is not limited to: war, riots, and hostilities of whatever nature, blockade, boycott, natural disaster, epidemics, lack of raw materials, impediments and interruptions of the transport options, import and export restrictions or prohibitions, obstructions caused by measures, legislation or decisions of international, national and regional (government) bodies.
- 6.4 For the duration the force majeure continues, Outstanding B.V. can suspend the obligations from the agreement. If this period lasts longer than two months, each of the parties is entitled to terminate the agreement without being liable to pay compensation for loss to the other party.
- 6.5 Insofar as at the time of the commencement of the force majeure Outstanding B.V. has in the meantime performed its agreement in part or is able to perform such, and the performed or to be performed part respectively has independent value, Outstanding B.V. is entitled to invoice the already performed or to be performed part respectively separately. The Other Party is obliged to pay this invoice as if there was a separate agreement.
Clause 7. Payment and collection costs
- 7.1 The delivery of services must be paid within 8 days from the invoice date, in a manner to be indicated by Outstanding B.V. in the currency as stated on the invoice, unless indicated otherwise in writing by Outstanding B.V.. Outstanding B.V. is entitled to invoice periodically.
- 7.2 If the Other Party fails to pay the invoice on time, the Other Party is in default by operation of law. The Other Party then owes interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest shall be payable. The interest on the due and payable sum shall be calculated from the moment the Other Party is in default until the moment the amount due is paid in full.
- 7.3 Outstanding B.V. is entitled to apply the payments made by the Other Party in the first instance to settle costs, subsequently to settle the arrear interest and finally to settle the principal sum and accrued interest.
- 7.4 Outstanding B.V. can, without being in default as a result, refuse an offer for payment if the Other Party indicates a different order for the allocation of the payment. Outstanding B.V. may refuse full payment of the principal sum if the arrear interest, accrued interest and collection costs are not paid at the same time.
- 7.5 The Other Party is never entitled to offset the amount it owes Outstanding B.V..
- 7.6 Objections to the amount of the invoice do not suspend the payment obligation. The Other Party which is unable to rely on section 6.5.3 (articles 231 to 247 Book 6 Dutch Civil Code) is also not entitled to suspend the payment of an invoice for any other reason.
- 7.7 If the Other Party is in default or in breach of the (prompt) performance of its obligations, all reasonable costs to obtain payment extra-judicially are for account of the Other Party. The extra-judicial costs are calculated on the basis of standard Dutch debt collection practice, currently the calculation method in accordance with the Voorwerk II Report. However, if Outstanding B.V. has incurred higher costs to obtain collection which were reasonably necessary, the actually incurred costs are eligible for reimbursement. Any incurred legal and execution costs shall also be recouped from the Other Party. The Other Party shall also pay interest on the payable collection costs.
- 7.8 The Other Party is obliged on first demand by Outstanding B.V. and to the satisfaction of Outstanding B.V. to provide security for the performance of all its obligations pursuant to the agreement.
Clause 8. Retention of title
- 8.1 All goods delivered by Outstanding B.V. in the context of the agreement remain the property of Outstanding B.V. until such time the Other Party has properly performed all the obligations under the agreement(s) entered into with Outstanding B.V..
- 8.2 The goods delivered by Outstanding B.V. which pursuant to paragraph 1 are subject to retention of title, may not be sold on and may never be used as payment instrument. The Other Party is not entitled to pledge the goods subject to retention of title or encumber them in any other way.
- 8.3 The Other Party must always do all that which reasonably may be expected from the Other Party to secure the ownership rights of Outstanding B.V..
- 8.4 If third parties levy an attachment on goods delivered subject to retention of title or wish to establish or execute rights in respect of such, the Other Party is obliged to notify Outstanding B.V. of this immediately.
- 8.5 The Other Party undertakes to insure the goods delivered subject to retention of title and keep them insured against fire, explosion and water damage as well as against theft and to make the insurance policy available to Outstanding B.V. for inspection on first demand. In the event of any payments pursuant to insurance, Outstanding B.V. is entitled to this insurance payout. Insofar as required, the Other Party commits itself towards Outstanding B.V. to render its cooperation in advance to all that should or might be required or desirable in that context.
- 8.6 In the event Outstanding B.V. wishes to exercise its ownership rights referred to in this clause, the Other Party grants in advance its unconditional and irrevocable consent to Outstanding B.V. and third parties to be appointed by Outstanding B.V. to enter all the locations where the property of Outstanding B.V. is situated and to repossess these goods.
Clause 9. Guarantees, inspection and complaints, limitation period
- 9.1 The Other Party must, as regards that provided by Outstanding B.V. in the offer, or that forming part of it in clause 2(2) of these general terms and conditions, regarding the measures, colour fastness and such like, allow for the usual deviations and small changes in the goods delivered by Outstanding B.V..
- 9.2 The goods delivered by Outstanding B.V. may therefore deviate from the description in the order confirmation if and insofar as it concerns minor differences in size and minor changes. This does not form a ground for the Other Party to terminate the agreement and does not give it a right to compensation.
- 9.3 Complaints by the Other Party, relating to defects to goods which are externally visible must be notified in writing by the Other Party to Outstanding B.V. at delivery but at the latest within 8 day after delivery. The Other Party must carry out a careful and prompt inspection.
- 9.4 Defects which were not externally visible at the time of delivery, nor could be apparent during a careful and prompt inspection, must be notified by the Other Party to Outstanding B.V. in writing within 8 days after these defects were revealed but at the latest within 12 months after delivery.
- 9.5 The guarantee applies to goods intended for use within the Netherlands. For use outside the Netherlands, the Other Party must verify itself whether the use of such is suitable for the use in that place and whether it satisfies the conditions put upon it. In that event, Outstanding B.V. may impose other guarantees and other conditions in respect of the goods to be delivered or work to be carried out.
- 9.6 The guarantee referred to in paragraph 5 of this clause applies for a period of 12 months after delivery, unless the nature of the delivery dictates otherwise or the parties have agreed otherwise. If a guarantee given by Outstanding B.V. relates to a good which was produced by a third party, the guarantee is limited to that provided by the producer of the good, unless otherwise stated.
- 9.7 Any form of guarantee lapses if a defect has arisen as a result of, or arises from, improper use or misuse of such, incorrect storage or maintenance of such by the Other Party and/or third parties, when, without the written permission of Outstanding B.V., the Other Party or third parties have made or have tried to make changes to the goods, other goods had been attached to it which must not be attached to it or if they were processed or treated in any other than the prescribed manner. The Other Party can also not rely on the guarantee if the defect has arisen as a result of circumstances beyond Outstanding B.V.’s control which includes weather conditions (such as but not limited to, extreme rainfall or temperatures) etc. or are the result of weathering and/or normal wear and tear.
- 9.8 The Other Party must give Outstanding B.V. the opportunity to investigate a complaint (or to have this investigated).
- 9.9 If the Other Party complains on time in accordance with paragraph 3 and 4, this does not suspend its payment obligation. In that event, the Other Party shall continue to be obliged to purchase and pay for the other ordered goods.
- 9.10 If a defect is notified later than as stated in paragraph 3 and 4, the Other Party is no longer entitled to repair, replacement or compensation.
- 9.11 If it is established that a good is defective and that a complaint has been lodged on time in that respect, Outstanding B.V. shall within a reasonable term after it has been returned or, if a return is reasonably not possible, after written notification in respect of the defect by the Other Party, replace the defective good or ensure it is repaired or provide replacement consideration to the Other Party, at the discretion of Outstanding B.V.. In the event of replacement, the Other Party is obliged to return the replaced good to Outstanding B.V. and grant Outstanding B.V. the ownership of such, unless Outstanding B.V. states otherwise.
- 9.12 If it is established that a complaint is unfounded, the costs arisen as a result, which includes the investigation costs, incurred on the side of Outstanding B.V. are fully for the account of the Other Party.
- 9.13 After expiry of the guarantee term, all costs of repair or replacement, including administration, shipment and call-out charges, shall be invoiced to the Other Party.
Clause 10. Liability
- 10.1 Should Outstanding B.V. be liable, this liability is restricted to that provided for in this clause.
- 10.2 Outstanding B.V. is not liable for loss, of whatever nature, caused by Outstanding B.V. proceeding on the basis of incorrect and/or incomplete information provided by or on behalf of the Other Party.
- 10.3 Outstanding B.V. is exclusively liable for direct loss.
- 10.4 Direct loss exclusively includes the reasonable costs to determine the cause and extent of the loss, insofar as the determination relates to loss in the meaning of these conditions, any reasonable costs incurred to have the defective performance of Outstanding B.V. correspond to the agreement insofar such can be attributed to Outstanding B.V. and reasonable costs incurred in the prevention or limitation of loss insofar as the Other Party demonstrates that these costs have led to a limitation of direct loss as referred to in these general terms and conditions.
- 10.5 Outstanding B.V. is never liable for indirect loss, including consequential loss, loss of profit, lost savings and loss due to business interruption.
- 10.6 If and insofar as Outstanding B.V. should be liable for any loss, Outstanding B.V.’s liability is limited to the invoice value of the order, or at any rate to that part of the order to which the liability relates, with a maximum of € 20,000.
- 10.7 Outstanding B.V.’s liability is in any event always limited to the amount of the payment made by its insurer in the relevant case plus the excess resting on Outstanding B.V. in this respect.
- 10.8 The limitations of liability included in this clause do not apply if the loss is the result of an intentional act or gross negligence by Outstanding B.V. or its managerial subordinates.
- 10.9 Outstanding provides a 2 year warranty exclusive of parts that are subject to wear and tear, which include including zippers and closures. For such parts subject to wear, Outstanding will determine per case for up to one year maximum after delivery if warranty will be applied.
- 10.10 If Outstanding provides any warranty obligation, Outstanding is free to choose whether to repair, replace or provide compensation. In this case, the client has no further right to lodge a claim to Outstanding.
- 10.11 Every warranty agreement becomes null and void if the client has made any repairs to the supplied product himself or has had repairs made by another party, or if the product has been used without due care.
Clause 11. Limitation period
- 11.1 In departure from the statutory limitation periods, the limitation period for all claims and all defences against Outstanding B.V. and the third parties engaged by Outstanding B.V. in the performance of the agreement, is one year.
Clause 12. Risk transfer
- 12.1 The risk of loss, damage or value reduction transfers to the Other Party the moment the goods to the Other Party are brought in the control of the Other Party.
Clause 13. Indemnification
- 13.1 The Other Party indemnifies Outstanding B.V. against any claims by third parties who suffer loss in connection with the performance of the agreement and of which the cause is attributable to another than Outstanding B.V..
- 13.2 If Outstanding B.V. is held liable in this respect by third parties, the Other Party is obliged to assist Outstanding B.V. both in and out of court and immediately do all that which may be required from the Other Party in that case. Should the Other Party fail to take adequate measures, Outstanding B.V. is entitled, without a notice of default being required, to take those itself. All costs and loss on the part of Outstanding B.V. and third parties resulting from this are fully for the account and at the risk of the Other Party.
Clause 14. Intellectual property
- 14.1 Outstanding B.V. reserves the rights and powers vested in it pursuant to the Copyright Act and other intellectual laws and regulations. Outstanding B.V. is entitled to use the increased knowledge it has acquired through the performance of an agreement also for other purposes insofar as this does not disclose strictly confidential information of the Other Party to third parties.
Clause 15. Applicable law and disputes
- 15.1 All legal relationships in which Outstanding B.V. is a party are exclusively governed by Dutch law even if an obligation is wholly or partly performed abroad or if the party involved in the legal relationship has its place of residence there. The applicability of the Vienna Sales Convention is excluded.
- 15.2 The Court in Lelystad has exclusive jurisdiction to hear disputes, unless mandatory law prescribes otherwise. Nevertheless, Outstanding B.V. is entitled to submit the dispute to the Court with jurisdiction according to the law.
- 15.3 The Parties shall only revert to the Court after they have made every effort to resolve the dispute in mutual consultation.
Clause 16. Location and change of conditions
- 16.1 These conditions have been filed with the Chamber of Commerce for Gooi, Eem and Flevoland in Almere.
- 16.2 The latest filed version or version as in force at the time the legal relationship with Outstanding B.V. was formed, applies.
- 16.3 The Dutch text of the general terms and conditions is always decisive for their interpretation.
- Wood is a natural product which can expand, contract and therefore also split. We are not responsible for this.
- In our prices for the floor we always proceed on the basis of hard wood frame picket posts of 4x4x80 cm length. This is adequate for most hard soil types. Should the client be on peat or a different soil type, they must notify us of this in order to deliver longer foundation posts. Any subsidence of the tent due to the soil turning out to be too soft is at the risk of the client who is most familiar with the characteristics of the soil.