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For further information about the content of this “Disclaimer” please send an e-mail to (email@example.com) or contact us by telephone.
STANDARD TERMS AND CONDITIONS OF DELIVERY AND PAYMENT OF BASIL B.V.
Article 1. Definitions
1.1 In these standard terms and conditions the following terms have the following meaning:
- Basil: The private limited company Basil B.V. with its registered office in Silvolde and having its principal place of business at Ettenseweg 7A, (7071 AA) Ulft, municipality of Oude IJsselstreek, user of these standard terms and conditions;
- Agreement: The agreement between Basil and the other party;
- Conditions: These standard terms and conditions of delivery and payment of Basil B.V.;
- Other party: every legal or natural person, acting in the execution of a profession or business who has entered into an agreement with Basil or wishes to enter into an agreement with such respectively as well as their representative(s), authorised person(s), successor(s) in title and heir(s).
Article 2. Applicablility
2.1 These conditions apply to every legal relationship between Basil and the other party to which Basil has declared these conditions applicable including every offer, quotation and agreement between Basil and the other party as well as work (including services) carried out by Basil on instruction of the other party.
2.2 The applicability of any standard terms and conditions in use by the other party are expressly rejected so that only the conditions in use by Basil apply to all agreements between the parties.
2.3 Departures from these conditions are only valid if they have been expressly agreed in writing.
2.4 Insofar (parts of the) articles of these conditions are null and void or are voided, the other (parts of) articles remain unimpaired.
Article 3. Offers, quotations and formation of agreement
3.1 Every offer made and quotation submitted by Basil is always subject to contract unless expressly stated otherwise or if a term for acceptance is referred to in respect of that offer or quotation. Sending an offer or quotation, in any form whatsoever, does not oblige Basil to deliver.
3.2 Statements on Basil’s website relating to goods to be sold are deemed to be an invitation to tender and do not bind Basil.
3.3 If an offer made or quotation submitted by Basil has solely or partly been made on the basis of information provided by the other party, Basil may rely on the accuracy and completeness of this information. The other party guarantees the accuracy and completeness of the information referred to.
3.4 Agreements with Basil are only formed in the following manner:
- signing by Basil and the other party of a written agreement drafted by Basil;
- written recording by Basil of agreements made with the other party.
3.5 Amendments or additions to an agreement, either verbally or in writing, made on behalf of Basil by personnel, representatives, sellers or other intermediaries are only binding if such have been confirmed to the other party by an employee of Basil authorised to represent it.
3.6 The other party can only cancel an agreement entered into with the prior written consent of Basil. Where Basil accepts the cancellation, the other party is obliged to pay Basil compensation of at least 25% of the contract price, without prejudice to the right of Basil to full compensation.
Article 4. Prices and fees
4.1 All prices referred to by Basil in its offers, quotations and agreements are always exclusive of VAT, insurance, shipping and
packaging costs, import duties, other taxes as well as exclusive of governmental levies, unless expressly stated otherwise.
4.2 All offers made and quotations submitted by Basil are non-binding and subject to contract and price changes, unless expressly stated otherwise.
4.3 Prices are partly based on (cost) price determining factors applicable on the day of the formation of the agreement. If, after the agreement has been formed, one or more (cost) price determining factors sees an increase due to, inter alia, a fluctuation in the currency, irrespective of whether or not this was foreseeable at the time of the offer, Basil is entitled to charge a proportional increase to the other party, or to cancel the agreement without being obliged to pay compensation to the other party.
Article 5. Delivery and transfer of risk
5.1 A delivery term stated by Basil applies between parties as a term of delivery by approximation only and not as a strict deadline. In the event of overdue delivery, the other party must issue Basil with a notice of default before it can be in default.
5.2 The delivery time of Basil is extended by the duration of the delay on the side of the other party in the performance of his obligations under the agreement or agreements entered into with Basil at an earlier date.
5.3 Unless expressly agreed otherwise, the delivery is deemed to have taken place the moment the goods to be delivered have left Basil's warehouse. From the moment of delivery the goods are at the risk of the other party. The other party accepts that from the time of delivery onwards, Basil is never liable for damage to the delivered goods irrespective whether the other party has taken delivery of the goods at that time. The other party also accepts that Basil is never liable for damage to delivered goods or persons caused during, or as a result of, the loading or unloading of goods or damage caused at the place where the goods have been delivered by or on behalf of Basil.
5.4 For shipments with an invoice value of less than EUR. 750,- Basil shall charge a handling and shipping costs fee. Special and/or packaging required by the other party, shall attract an additional fee. The manner of shipment and the mode of transport are at the discretion of Basil.
5.5 The other party is obliged to take delivery of the purchased goods within the agreed delivery time.
5.6 If the other party does not take delivery and/or refuses to take possession of the goods before the expiry of the delivery term and therefore fails to cooperate in taking delivery of the goods, Basil is entitled to:
- either store the goods for the account and at the risk of the other party, the risk of loss of quality included, in its warehouse or elsewhere. Through such storage the goods are deemed to have been delivered. Basil shall immediately notify the other party in writing of such storage stating the storage, shipping and other costs in that event due by the other party;
- or, without prior notice of default, terminate the agreement wholly or in part to the extent the delivery has not (completely) been carried out, without prejudice to the right of Basil to claim full compensation for the loss it has suffered. The loss suffered is set at least 50% of the sale price of the goods not taken possession of.
5.7 Basil is always entitled to perform an agreement by means of partial deliveries.
5.8 Exceeding the delivery time by Basil does not entitle the other party to compensation, termination or suspension of their own obligations under the agreement or previous agreements, unless there has been intent or the equivalent of gross negligence, on the part of Basil.
Article 6. Payment
6.1 Unless otherwise agreed between the parties, all payments must be made in cash on delivery, except when the invoice to be issued by Basil states otherwise. Payment shall be made in a manner to be indicated by Basil in the currency stated on the invoice, without any reduction, discount, suspension or setoff by the other party being permitted. Objections against the amount of the invoices do not suspend the payment obligation on the part of the other party.
6.2 When paying by bank or giro, the payment date is the date the giro or bank account of Basil respectively has been credited.
6.3 When the payment term agreed between the parties has expired, the other party is in default by operation of law without any further notice of default being required. Unless otherwise agreed, Basil is not obliged to inform the other party of the expiry of a payment term.
6.4 Without prejudice to any other rights Basil might have, the moment the default occurs the other party owes Basil an interest sum on the outstanding invoices equal to the statutory commercial interest in force at the time. The interest on the due and payable sum shall be calculated from the moment the other party is in default until the moment of payment of the full amount, whereby part of a month shall count as a whole month.
6.5 Basil is also entitled to charge the other party all judicial and extra-judicial (collection) costs reasonably incurred by Basil in connection with the failure of the other party to perform his payment obligations or perform those on time. The extra-judicial collection costs are at least 15% of the due and payable invoice amount with a minimum of EUR. 500,- without prejudice to the right of Basil to claim the actual extra-judicial costs, should this be greater.
6.6 Basil is entitled, irrespective of the payment reference indicated by the other party, to apply the payments made by the other party firstly to reduce the charged (extra-judicial collection) costs, then to reduce the accumulated arrear interest and finally to reduce the still outstanding invoices where the oldest invoices are deemed to be paid first.
6.7 Basil is always entitled, both before and after the formation of the agreement, to require security for the payment obligations of the other party, such on suspension of the obligations on the part of Basil in the context of the agreement entered into between the parties until such time the relevant security has been given; all this without prejudice to the right of Basil to performance, compensation and/or termination of the agreement wholly or in part and without any judicial intervention in that respect being required. In addition Basil shall therefore never be liable for any payment or compensation.
Article 7. Retention of title
7.1 All goods delivered by Basil remain the property of Basil until the other party has fully performed all the obligations under the agreement entered into with Basil, this to the discretion of Basil. In addition to the principal sum, the retention of title extends also to claims for compensation and interest.
7.2 The other party is not entitled to pledge or otherwise encumber the goods which are subject to a retention of title.
7.3 If any third party seizes the goods which are subject to a retention of title, or wishes to establish or exercise rights on such, the other party is obliged to notify Basil of this as soon as could reasonably be expected.
7.4 The other party undertakes to insure the goods delivered subject to a retention of title and to keep those insured against fire, explosion and water damage as well as against theft and to allow inspection of the insurance policy on demand.
7.5 Goods delivered by Basil which pursuant to the provisions of article 7.1 of these conditions, are subject to a retention of title may only be resold in the context of ordinary business operations and may never be used as a payment instrument. In the event of a resale, the other party undertakes to deliver subject to the retention of title as well.
7.6 In case Basil wishes to exercise its ownership rights as referred to in this article, the other party hereby grants his unconditional and irrevocable permission to Basil, or third parties to be appointed by it, to enter those places where the property of Basil is located and to retrieve the goods.
Article 8. Inspection and complaints
8.1 The other party is obliged to immediately inspect the goods, including the packaging, delivered by Basil for defects and/or damage or to have this inspection carried out after the notification by Basil that the goods are at the disposal of the other party.
8.2 Complaints can only be validly made if they have been submitted to Basil in writing within 2 working days by means of a complaint letter providing as much detail as possible so that Basil is able to issue an adequate response, all this without prejudice to the provisions in the following paragraphs. If the other party does not complain on time, all their rights and claims, on whatever basis, in respect of that about which it is complained or could have complained within that term, shall lapse. In that case the other party is deemed to have accepted the delivery. Complaints submitted outside the term as referred to above are no longer processed.
8.3 Complaints include all complaints of the other party in connection with the quality of a delivery, not being deviations in respect of the technical design and the model permitted by the manufacturer and Basil insofar these do not adversely affect the value of the delivery.
8.4 In the event of a justified complaint, Basil is obliged to replace the goods complained about or to credit them as soon as possible after receipt and inspection of these goods by Basil in the warehouse without Basil being held liable for the loss suffered.
8.5 Submission of a complaint does not suspend the payment obligation of the other party in respect of the goods in dispute.
8.6 Complained about goods must only be returned if Basil agrees to this in writing. The costs and risks associated with sending the goods postage paid to the address indicated by Basil and the resending to the other party are for the other party.
Article 9. Warranty
9.1 Basil warrants the soundness and the quality of the goods it has delivered and/or processed, all this with due observance of all that provided for elsewhere in these conditions.
9.2 A warranty for goods purchased elsewhere by Basil is only given if and to the extent the relevant manufacturer/supplier provides a warranty.
9.3 The warranty only applies towards the other party, not towards third parties.
9.4 Claims under the warranty only cover the repair of any possible construction and/or manufacturing defects or to have it repaired. Any loss, both direct and indirect, caused by the improper functioning of the goods delivered by Basil, are not covered by the warranty.
9.5 Claims under the warranty are not recognised if during the use of the goods delivered by Basil, the manufacturer's instructions have not been observed, if the delivered goods are used for different purposes than normal or are, or have been, treated used or maintained in an improper manner.
9.6 Repair of, or changes to, the delivered goods by the other party itself without consultation or permission of Basil causes any claim under the warranty to lapse.
9.7 If the other party does not fulfil his obligation(s), Basil shall, as a consequence of this, be relieved from its warranty obligations.
Article 10. Repair
10.1 Repairs of the goods delivered by Basil are undertaken with due observance of the provisions elsewhere in these conditions and are carried out to the best of its knowledge and ability.
10.2 Basil is not liable for theft, loss or damage of the goods given to it for repair unless this is a result of an intentional act or gross negligence attributable to Basil.
10.3 If it has been agreed with the other party that the repaired goods shall be collected by the other party and after repeated written notification that the goods are ready they breach this obligation, Basil is entitled to sell the goods.
Article 11. Liability
11.1 Basil is never liable for loss suffered or to be suffered by the other party or third parties whether or not in a legal relationship with the other party, unless the loss suffered is the direct result of gross negligence or an intentional act by Basil or any third party it has engaged.
11.2 In addition to the provisions of article 11.1 above, Basil's liability is limited to the performance of all that the supplier has obliged itself on the basis of the warranty provisions, such with a maximum of EUR. 2,500,- per event.
11.3 In further limitation of liability and the obligation to pay compensation, the other party accepts that only loss for which Basil is insured is eligible for compensation to the extent Basil’s insurer pays out the loss. If the insurer does not proceed to make a pay-out, Basil is never obliged to compensate loss to a higher amount than for which the goods, on which the liability is based, are delivered.
11.4 Irrespective of the provisions of article 11.1-11.3 above, consequential loss, trading loss, personal injury, loss due to operational failures, loss of income or loss caused by third parties engaged by Basil or loss as a result of a different use of the delivered goods than for which the goods were intended suffered by the other party or third party is never eligible for compensation.
11.5 Basil's opposing party accepts that the limitations of liability as set out in these conditions could also be relied upon towards the other party by employees of Basil or by third parties engaged by it.
11.6 The other party is obliged to adequately insure itself against loss in the widest sense of the word which is, or could be, the result of goods or services delivered (or provided on loan) by Basil, all this irrespective of whether Basil itself has taken out liability insurance.
11.7 Basil is never liable towards the other party or third parties for mistakes in drawings, calculations, appendices, product descriptions, availability information, measurements, specifications and technical data it has provided.
Article 12. Intellectual property rights
12.1 The other party expressly acknowledges that all intellectual property rights in respect of the products, supplied or produced designs, sketches, images, drawings, dies and models, represented information, notifications and other statements in respect of products delivered by, or on instruction of, Basil are vested in Basil, its suppliers or other entitled parties.
12.2 Intellectual property rights include patent rights, copyrights, trademark rights, drawing and design rights and/or other (intellectual property)rights including technical and/or commercial know how, methods or concepts, whether or not patentable.
12.3 Unless otherwise agreed, Basil retains all the intellectual property rights referred to in article 15.1 even if the other party has wholly or partly paid for those.
12.4 Without the prior written consent of Basil, the aforementioned rights, products and all products designed and/or produced by or on instruction of Basil may not, directly or indirectly, be imitated, copied or adapted by the other party all in the widest sense of the word without the written consent of Basil, irrespective of whether Basil has for the realisation of these rights, products of the mind or products charged costs to the other party.
12.5 In addition to rights to which Basil is entitled pursuant to the law and the agreement, Basil reserves the right to, in the event of the breach of one of the provisions of this article, claim specific performance and/or full compensation.
Article 13. Indeminty
13.1 The other party indemnifies Basil against claims from third parties relating to intellectual property rights on materials or data
provided by the other party which are used in the performance of the agreement.
13.2 The other party indemnifies Basil against claims from third parties in respect of loss relating to, or resulting from, the agreement performed by Basil if and to the extent Basil is not liable for this towards the other party pursuant to the provisions of article 11.
Article 14. Force Majeure
14.1 Basil is not obliged to perform any obligation pursuant to the agreement entered into with the other party if it is obstructed in doing so as a result of a circumstance which cannot be attributable and which is not on the basis of the law, a legal act or common opinion, for its account. In this situation Basil is entitled to terminate the agreement wholly or in part or temporarily suspend it, without the other party and/or third parties being able to claim specific performance and/or compensation.
14.2 In these conditions force majeure means, in addition to that included in the law and case law in that respect, all external causes, whether foreseen or not, on which Basil is not able to exercise any influence, yet because of which the whole or partial performance of the agreement can in all reasonableness and fairness not be expected of Basil. It includes, but is not limited to: operational failures at Basil, strikes at Basil, its suppliers or carriers, disruptions, including build-up of traffic irrespective of its cause, government measures, failures or delays in deliveries to Basil, fire, water damage, failures in the energy supply or failures of means of communication, hard and software faults and damage to Basil’s property, import and export obstructions as well as theft.
14.3 If due to the force majeure the delivery by Basil to the other party is delayed by more than 4 months, in addition to Basil, the other party is also entitled to terminate the agreement wholly or in part or to temporarily suspend it, without the other party being entitled to any compensation in that respect. This termination does not extend to goods which have already been delivered; those must be paid to Basil with due observance of the provisions of article 6 of these conditions.
Article 15. Suspension and termination
15.1 Without prejudice to any other rights Basil might have and the provisions elsewhere in these conditions, Basil is entitled, without any further notice of default being required, to terminate the agreement in respect of the unperformed part by means of an extrajudicial declaration and Basil is at all times entitled to take back all goods unpaid for without prior notification and at the expense and risk of the other party if:
a. the other party is, or remains, in default of the performance of his payment obligation; b. the other party applies for a moratorium;
c. a petition for the bankruptcy/liquidation of the other party is filed; d. the other party loses full or partial control over his assets and/or income;
e. any part of the possessions and/or assets of the other party are seized.; f. the other party sells or winds up his business,
15.2 In the event of a (partial) termination as referred to in the first paragraph of this article, Basil is entitled to compensation by the other party for loss consequently suffered by Basil, such with a minimum of 50% of the sale price of the relevant order.
Article 16. Disputes
16.1 All legal relationships to which Basil is party are exclusively governed by Dutch law even if an obligation is wholly or partially performed abroad or if the party involved in the legal relationship has its registered office there. The applicability of the Vienna Sales Convention is excluded.
16.2 Except where the law dictates otherwise, any dispute, of whatever nature, which might arise between Basil and its opposing party, including provisional or onerous measures, shall be heard by the competent court in the place where Basil has its registered office, without prejudice to the right of Basil to choose the court as provided for by legislation.
Article 17. Location
17.1 These terms and condition are filed at the offices of the Chamber of Commerce Central Gelderland (The Netherlands) in Arnhem on 31 October 2009 under number 09086961, and can also be consulted on and downloaded from the following website www.basil.nl
17.2 The last filed version or the version as in force at the time of the formation of the legal relationship with the other party applies.
17.3 In the event of a discussion on the interpretation of one or more provisions of these conditions, the Dutch text shall always be decisive.