GENERAL TERMS AND CONDITIONS OF NEDIS (UK) LIMITED Version November 2016
Article 1. General
1. The private limited liability company Nedis (UK) Limited is registered in England and Wales under company number 1066461 (hereinafter “Nedis”).
Article 2. Definitions
In these general terms and conditions (“GTC”) the following expressions shall have the follow-ing meanings:
I. Commercial RMA: has the meaning described in article 11 section 1.
II. DAP: means delivered at place in accordance with Incoterms 2010.
III. Delivery: means the delivery of Products to Purchaser.
IV. FCA: means free carrier in accordance with Incoterms 2010.
V. IP: means any intellectual and industrial property rights, such as patents, trade marks, service marks, trade names, trade mark registrations, designs, business names, cop-yrights, database rights, design rights, inventions, confidential information, knowhow and other intellectual property rights and interests relating to or embodied in the Prod-ucts or any other materials provided by Seller.
VI. Invitation: means any proposal by Seller to a (potential) Purchaser in whatsoever form and whether or not containing a price offer to sell Products to Purchaser, which pro-posal is without obligation and can be cancelled or withdrawn at all times by Seller until it is confirmed by Seller;
VII. Products: means products sold (or invited to be sold, as the case may be) under an agreement by Seller to Purchaser.
VIII. Purchaser: means any natural or legal person, entering into a purchase or other agreement with Seller and/or such person that Seller has made an Invitation pursuant to article 4 of these GTC.
IX. Seller: means Nedis, or a member of the Nedis group of companies
X. Technical RMA; has the meaning described in article 11 section 1;
Article 3. Applicability
1. These GTC shall apply to all (distribution) agreements, purchase orders, Invitations or other legal relationships in the broadest sense under which Seller sells or invites to sell Products to Purchaser. These GTC shall apply to the exclusion of any general terms and conditions that may be used by Purchaser or any that are implied by trade, custom, prac-tice or course of dealings.
2. Seller and Purchaser shall only deviate from these GTC if expressly agreed in writing with regard to a specific agreement, Invitation or other legal relationship, and then with refer-ence to a specific clause of these GTC that is to be deviated from.
3. Such deviation does not create any deviation or other right with regard to other agree-ments, Invitations or legal relationships.
4. Any existing agreement(s), Invitations, or other legal relationships entered into between Seller and Purchaser shall remain subject to these GTC which applied at the moment the agreement was entered into.
Article 4. Agreement
1. All proposals made by Seller to sell Products to Purchaser shall be Invitations and not offers.
2. An agreement shall only exist from the moment Purchaser accepts these GTC and after acceptance in writing by Seller of a purchase order. A purchase order shall be deemed to be an offer by Purchaser (whether or not such purchase order was based on an Invi-tation).
3. Orders should be made electronically using tools like EDI, the Seller’s webshop or csv files. In case of ordering methods requiring manual handling for Seller, Seller is allowed to charge handling costs. For ordering Purchaser has a unique client number and login code. These login details may not be transferred to any party or individual outside the organisation of Purchaser.
4. Seller will make Product information available on its website. Such Product information is always for information only and the Seller accepts no responsibility for any errors or omissions.
5. Seller reserves the right to refuse purchase orders at his own discretion, or to charge an extra fee, the acceptance of which shall be subject to Purchaser’s approval. Acceptance of purchase orders can be subject to conditions, such as but not limited to, advance payment of the entire price or part of the price.
6. If for any reason it is impossible to accept the purchase order of a specific Product, Seller will where reasonably possible consult with Purchaser in order to supply an alter-native Product. Seller and Purchaser shall agree the alternative purchase order as per the procedure in these GTC.
7. A Purchaser’s purchase order shall be binding for Purchaser regardless of how it was placed with Seller. Seller shall use reasonable efforts to confirm within two (2) working days whether or not Seller can accept the purchase order.
8. Any changes in and/or (partial) cancellation of a purchase order by Purchaser shall only take place at Seller’s discretion, to be given in writing and on the condition that any changes to the performed activities by Seller will be paid for, in full, by Purchaser; In such case, Seller is always entitled to pass on any (extra) costs to Purchaser and to re-determine the Delivery time.
9. Purchaser shall immediately provide Seller with any information Seller deems necessary or any information that can be reasonably understood as necessary for the performance of the agreement. If the information required for the performance of the agreement is not supplied in time to Seller, Seller has the right to postpone the performance of the agree-ment and/or to charge Purchaser with the extra costs Seller incurred because of the de-lay, at Seller's usual rates.
10. Any additional commitments and/or arrangements made by Seller, or made on behalf of Seller by other persons acting as a representative, are only binding to Seller if these commitments and/or arrangements have been confirmed in writing to Purchaser by Seller's authorised staff.
11. Seller and Purchaser understand and agree that in the performance of the agreement each party may have access to confidential information of the other party, such as for example marketing and business plans. Both parties agree that the terms of the agree-ment, including without limitation its financial terms and the information contained in the agreement or any reports relating to the agreement, shall be deemed confidential infor-mation. Each party agrees that it shall maintain and shall use prudent methods to cause its employees and agents to maintain the confidentiality and secrecy of the confidential information and will not copy, publish, disclose to others or use (other than pursuant to the terms hereof) the confidential information.
The parties undertake to implement and maintain security procedures and measures in order to ensure the protection of data exchange against the risks of unauthorized ac-cess, alteration, delay, destruction or loss. The information is provided “as is“. In no event shall the disclosing party and their respective representatives be liable for inaccu-racy or incompleteness of the information.
This obligation will survive the expiry, termination or cancellation of the agreement.
Article 5. Prices
1. All prices communicated by Seller whether in an Invitation or by any other means shall be in £ (GBP), unless otherwise agreed in writing.
2. The purchase price payable by Purchaser to Seller will be exclusive of value added taxes (VAT), other transaction based taxes or customs duties and exclusive of all other costs, e.g. those mentioned in article 6 Section 3, unless otherwise agreed in writing. Where applicable, VAT, other transaction based taxes or customs duties will be paid in addition to the purchase price by Purchaser. In case tax or customs authorities, for whatsoever reason, should conclude (1) that Seller is to act as the importer, respectively should have acted as the importer in the past under this agreement instead of as purchaser; or (2) that Seller should have treated the transaction as subject to VAT and, as a consequence, (retroactively) assess VAT (incl. import VAT), other transaction based taxes or customs duties, including late interest and penalties, against Seller, Pur-chaser shall indemnify Seller for, and hold it harmless against, any and all damages arising in respect of or as a consequence of such assessments (e.g. additional VAT and customs duties assessments, etc.).
3. Prices quoted by Seller are only binding upon acceptance of a purchase order by Seller pursuant to article 4 section 2.
4. If Purchaser makes multiple purchases under a continuing agreement, Seller is at all times entitled to charge the price applicable at the time of each purchase order.
5. The Seller is allowed to adjust the prices in case of unforeseen circumstances outside its control, including but not limited to devaluation of the Euro, increase of raw material prices and increase of transportation costs.
Article 6. Delivery
1. The dates of Delivery indicated by Seller can never be considered as binding deadlines. Any deviation from these dates by Seller does not give Purchaser any entitlement to claim damages, to cancel or to terminate the agreement, unless expressly agreed otherwise in the agreement. The time for delivery is not of the essence.
2. Indicated Delivery dates shall always be conditional on timely receipt of any authorisation permits or licences, documentation to be provided by Purchaser and upon timely fulfilment of payment or any other obligations by Purchaser. In the event that these conditions are not met, the involved dates may be adjusted accordingly by Seller.
3. Unless the contrary appears from the purchase order confirmation, all additional costs e.g. Delivery, insurance, administration and transport costs, etc., all in the widest possible sense shall be charged separately (i.e. in addition to the agreed price of the Products/ser-vices) by Seller to Purchaser. In case such an additional service applies and is taken care of by Seller without any price having been explicitly agreed upon, Seller shall be entitled to bill Purchaser for the costs actually incurred, including a profit margin, and/or to charge the rates normally used by Seller.
4. In case the Products are delivered on deposit pallets, the deposit will be charged to the Purchaser.
5. Within the EU the Products will be delivered DAP, outside the EU the Products will be delivered FCA.
6. If Purchaser wants the Products to be delivered in a specific way, Seller shall be entitled to charge Purchaser all extra costs incurred for such Delivery in addition to all regular costs.
7. Purchaser is at any time obliged to accept Delivery of the Products, with the sole excep-tion of the application of article 9.2. In the event of failure to accept Delivery, Purchaser shall be liable for all reasonable damages and/or costs incurred by Seller, Seller shall in addition have all rights afforded by law.
Article 7. Transfer of risk
All risks in connection to the Products, shall be transferred to Purchaser at the moment that Products are delivered to Purchaser or those people appointed by Purchaser.
Article 8. Intellectual and industrial property rights
1. All IP with regard to the Products offered by Seller are exclusively vested in Seller or its licenced issuers. Purchaser acknowledges that the possible IP are vested in Seller and Purchaser shall never (try to) claim these rights in or out of court nor shall these rights at any time be passed on to Purchaser.
2. Should any third party make a claim with regard to a possible violation of any IP that relates to Seller, Seller is entitled to, defend itself against it or to take legal action against such third party, or to reach a private arrangement with such third party. Purchaser shall fully cooperate with Seller in such procedures.
3. Purchaser is not allowed to make any kind of changes, alterations to or remove anything from the packaging, brands, trade names or other distinguishing features attached to or put on the Products or packaging delivered by Seller or its licence issuers, except for sales purposes.
4. Seller shall not be liable for defects or damages/losses arising from inaccuracies or im-perfections in specifications, designs, drawings, models, descriptions, images, and other IP.
5. Purchaser, may receive images, audio, text and videographs (jointly referred to as mar-keting features) of Seller’s Products and (registered) trademarks (logos) in the name of Seller and/or associated companies. Purchaser is allowed to use these marketing fea-tures, for the duration of the agreement, for promotion of sales of the Products only. The Purchaser shall ensure that the marketing features are not transmitted to any person or entity outside Purchaser’s organisation.
Article 9. Conformity
1. Any complaints of Purchaser must be sent to Seller within five (5) working days following the Delivery. Complaints must be made in writing, with a clear and detailed description of the complaint. Purchaser shall check the Delivery carefully, completely and promptly upon Delivery. If Seller has delivered the wrong Products, or has delivered more Products than ordered, Purchaser shall either return these Products to Seller, or should contact Seller in order to have Seller generate an extra order for the in surplus send Products.
2. If the packaging is visibly damaged at the moment of Delivery, and/or the packaging has been opened, Purchaser may choose to refuse or to accept the Delivery by signing the receipt and adding "subject to verification". Purchaser shall promptly confirm this to Seller in writing.
3. Defects that were not visible at the time of Delivery, and could not have become known after a careful and timely check at the Delivery, must be reported to Seller by Purchaser as a Technical RMA following the procedure described in article 11 within 5 working days.
4. Any entitlement to claim that Purchaser may have against Seller regarding defects in Products delivered by Seller will be void if:
a. Seller has not been informed in the time frame mentioned in sections 2, 3 and 4 above and/or not in the way specified in said sections;
b. Purchaser does not cooperate (sufficiently) with Seller to investigate the soundness of the complaints;
c. Purchaser has not properly mounted, treated, used, stored or maintained the Prod-ucts, or has used or treated the Products under circumstances or for purposes other than provided for by Seller; and/or
d. Purchaser has continued to use the concerned Product.
Article 10. Warranty
1. Seller does not provide Purchaser with any warranties other than those stipulated in these GTC including with regard to any (inferred or implied) uses or qualities of the Products. All other warranties, terms and obligations are excluded to the fullest extent permitted by law.
2. Seller warrants that Products sold under Seller’s own brand names shall be free from material defects in design, material and workmanship for a warranty period of twelve (12) months. The 12 months warranty period starts on the day Purchaser sells the Product, or if later, within three (3) months after Purchaser has purchased the Product from Seller. In case of professional or equivalent use by Purchaser’s customer, the warranty for these Products is limited to six (6) months. Seller’s warranty lapses in any case after fifteen (15) months after the Product is sold by Seller to Purchaser, or nine (9) months in case of professional use. The type of use (professional or equivalent, or non-professional) shall if disputed by Seller be proven by Purchaser. Purchaser shall in all cases provide (copy of) the original invoice/agreement. Seller shall have no obli-gations whatsoever to the Purchaser regarding the concerned Products following the periods stipulated in this section.
3. For Products of other (non Nedis) brands, the warranty periods of the manufacturer of the respective Product will be applicable to the extent Seller is able to pass them on, which are available in the webshop and upon request. Otherwise - mutatis mutandis – section 2 of this article shall apply to these Products. The provisions contained in sec-tion 2 and 3 are without prejudice to any rights that Purchasers may have against the manufacturers of such Products.
4. Warranty claims must be sent in writing to Seller within thirty (30) days after the de-fect/flaw has been detected or should reasonably have been discovered. This must be done through the RMA procedure described in article 11.
5. If Seller finds the claim is sound and covered by a warranty, Seller will, at Seller’s sole discretion: a. repair the defect Products; b. supply a replacement Product or parts, c. refund the purchase price to Purchaser, with termination (without judicial intervention) of the signed agreement. Seller and Purchaser may agree that the defect Product will be replaced by an equivalent Product.
6. If Purchaser or any third party (had) made repairs and/or changes to the Product, with-out Seller’s express prior authorisation in writing, Seller has no warranty obligation whatsoever.
7. If the Product does not show any defects after comprehensive testing and inspection by Seller, Seller shall charge Purchaser a minimum of € 20, - in research costs. The Product will be returned and the shipment costs will be charged.
8. If it appears that the defect is the result of deterioration, improper or wrong use, or not following the instructions for use, of damage to fragile parts or normal wear and tear, the warranty does not apply.
9. Samples for development of testing purposes, prototypes and pre-Production versions of Products are excluded from the warranty described in this Article 10.
10. Except as provided in this Article 10, Seller shall have no liability to Purchaser in re-spect of the Products’ failure to comply with the warranties set out in this Article.
Article 11. Conditions for returning Products
1. If Purchaser wants to return the delivered Products in case of a technical defect (a “Tech-nical RMA”) or in case Purchaser did not order the Products or quantities he intended to (a “Commercial RMA”), he can only do so after having received from Seller a Return Ma-terial Authorisation number (RMA number) and after having stated why the Product is re-turned, and, if applicable, the defects discovered and/or the Delivery defects established, in the way indicated by Seller.
2. If Purchaser wishes to return the delivered Products with regard to a Commercial RMA, he must inform Seller by registering via the RMA section on Seller’s webshop within five (5) business days of receipt of the Products, following the RMA procedure stipulated in this article. Products that were custom made or ordered specifically at the request of Pur-chaser cannot be returned for this reason.
3. Purchaser must fill out the required RMA request form before returning the Product. The RMA form can be filled out in Seller’s webshop.
4. Upon receipt of the RMA request, Seller will assess this request. If the Product is eligible for return (due to Technical or Commercial RMA), Seller approves the RMA request, the Purchaser will receive an RMA number and forwarding instructions in case of physical return, or instructions that Seller accepts the RMA without the need for Purchaser to return the Product. In principle the Product must always be returned, unless Seller expressly indicates that it is not necessary to return the Products in which case the Purchaser needs to scrap the Product. Unless otherwise agreed, the entire Product, including all parts, must be returned.
5. The RMA number is valid for thirty (30) days following its issuance by Seller. If the Prod-ucts are not returned within this period of thirty (30) days, the RMA number expires and Purchaser must ask for a new RMA number (subject to a new assessment by Seller).
6. Seller only accepts returns with a valid RMA number, and – in case of Commercial RMA, Products that have been returned in their original, undamaged packaging which do not hold any writings or any labels, price tags etc. of Purchaser. The RMA number must be clearly visible at the outside of the packaging. Damage caused during transport as a result of inadequate packaging may be a reason for Seller to refuse the return.
7. In case of Technical RMA, Seller will, within 10 working days upon receipt in ‘s-Hertogen-bosch (the Netherlands), verify whether the Product is defect as indicated by the Pur-chaser in the RMA request and whether it is covered by a warranty. In case of Commercial RMA, after having received and checked the returned Products, Seller sends Purchaser a credit note of 80% of the charged net sales price, less the applicable shipment costs.
8. Commercial RMA shall not be available for:
a. Data, audio and video carriers;
b. Books with opened packaging;
c. (Products with) Software with opened packaging;
d. CDs , MDs, DVDs and Blu-ray;
e. Cartridges and toners;
f. Glue with opened packaging;
g. Used aerosols/sprays/gas lighters/ cleaning liquids;
h. Computer components with opened packaging;
i. Already built-in components, such as CD drivers, video cards, Solid State Disks;
j. Satellite receivers with smart card, of which the smart card has been activated;
k. Health Products with opened packaging;
l. Lamps, active and passive components and similar Products;
m. Built-on building components and parts that have already been built on;
n. Special orders, such as orders of non-stock Products, spare parts and in-dash sys-tems;
o. (UPS) batteries.
9. Seller does not accept any return of Products other than the Technical RMA or the Com-mercial RMA as described in this article, unless otherwise agreed between parties in writ-ing.
10. In the event any product is the subject of a recall Seller will provide detailed instructions to Purchaser and Purchaser is obliged to comply with these instructions. All actions and re-lated costs, made by Purchaser in executing the instructions require Seller’s prior written approval, which shall not be unreasonable withheld. Seller shall be responsible for rea-sonable expenses and costs incurred by Purchaser in recalling the Products and in return-ing them to Seller in accordance with Seller’s instructions. These costs will include refund payments to customers of Purchaser as well as costs for Products in stock at Purchaser, which Products shall also be returned to Seller as part of the recall. Purchaser will fully cooperate and assist Seller in the recall process and will be compensated for the expenses and costs after the recalled products are received by Seller.
Article 12. Liability
1. Nothing in these GTC’s shall limit or exclude Seller’s liability for:
1.1 death or personal injury caused by its negligence, or the negligence of its employ-ees, agent or subcontractors (as applicable);
1.2 fraud or fraudulent misrepresentation;
1.3 breach of the terms implied by Section 12 of the Sale of Goods Act 1979;
1.4 defective products under the Consumer Protection Act 1987; or
1.5 any matter in respect of which it would be unlawful for Seller to exclude or restrict liability.
2. Subject to section 1 of this article, Seller shall never be liable towards Purchaser for any loss of: data, profit or turnover, contracts, or for any other consequential loss or indirect or other damage, regardless of the cause thereof and regardless whether it has been caused by an unlawful act (including negligence), breach or otherwise.
3. Subject to sections 1 and 2 of this article, Seller's maximum total liability in relation to all other losses towards Purchaser shall in any case never exceed the amount paid by Pur-chaser to Seller for the Product(s) that has/have allegedly caused the damage.
4. Purchaser shall indemnify Seller from and against all damage (including third party claims) and/or costs of whatever nature, caused directly or indirectly by or with regard to incorrect information/representation, wrongful acts and or mistakes of Purchaser.
5. If Seller provides Purchaser with advice or assistance concerning any Products, the fur-nishing of such advice or assistance shall never subject Seller to any liability and Pur-chaser shall indemnify Seller in this regard.
6. Seller is not liable for any damage as a result from purchase orders which are misunder-stood, deformed, delayed or which do not come across properly as a result of the use of the internet or any other means of communication between Purchaser and Seller, or be-tween Seller and third parties.
7. In the event of any conflict, this article shall take precedence over any other article in these GTC.
Article 13. Reservation of ownership and security
1. The Products delivered by Seller remain the property of Seller until Purchaser has paid all amounts due to Seller for the Products delivered under the agreement. If Seller deems necessary to do so, it is entitled to require from Purchaser to provide security for its obli-gations.
2. Notwithstanding the provisions in section 1 of this article, Purchaser is allowed to sell the Products to third parties, but only in the normal course of business. Purchaser shall trans-fer the money thus received immediately to Seller or if the Products have not been sold against cash payment, immediately transfer to Seller the claim(s) thus acquired.
3. If Purchaser does not comply with such obligations to Seller, or if a reasonable fear exists that Purchaser will fail to comply, Seller is entitled to remove the delivered Products which it owns, from Purchaser or third party that hold the Products on behalf of Purchaser, or to have these Products removed. Purchaser shall fully cooperate with Seller in this matter, under the penalty of an additional fine to be paid immediately by Purchaser to Seller, of 10% of the amount due to Seller, for each day that it fails to cooperate with Seller.
After the Products have been taken back, Purchaser shall be credited for the market value, which under no circumstances will exceed the original purchase price, less the costs for taking back the Products and the damage sustained by Seller as a consequence of taking back the Products (including, for the avoidance of misunderstanding, any profits foregone). The above does not harm any of Seller's rights afforded by law.
4. Until ownership has passed, Purchaser is not entitled to vest a non-possessory pledge or any other real or personal right in the Products for the benefit of a third party.
5. Purchaser shall identify the Products delivered to him by Seller that are still under Pur-chaser’s control, as being Seller's property until the property has been transferred to Pur-chaser. Pursuant to section 1 of this article Purchaser is to insure against the risk of fire, explosion and water damage and theft with regard to such Products and to produce evi-dence of such insurance to Seller at Seller’s request. All of Purchaser's claims against the insurers of the Products under said insurance will be pledged by Purchaser to Seller if Seller so desires, as an additional security to Seller's claims against Purchaser, all this notwithstanding Purchaser’s obligation to pay for the Products.
Article 14. Payment
1. Purchaser shall pay in in £ (GBP), unless otherwise agreed in writing, without any deduc-tion or discount by bank transfer to a bank account provided by Seller. Payment of the purchase price is to be made within the period agreed upon in writing, or in case no spe-cific period has been agreed the default will be prepayment.
2. In case a payment term has been agreed, Seller shall at all times be entitled to request payment in advance, either in full or in part, and/or obtain security for the payment.
3. If payment is made by bank transfer, the day on which the amount is received on Seller's bank account is considered the day of payment.
4. If Purchaser fails to pay on time the (full) amount due, he is in breach without further notice and Seller’s claims to Purchaser are immediately due. In such circumstances, Seller has the right to suspend compliance with all obligations ensuing from the agreements with Purchaser, without prejudice to all rights ensuing from general law.
5. If Purchaser fails to meet his payment obligations in time, Seller is entitled immediately and without any written notice being required, to charge an interest at a rate of 8% above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Purchaser shall pay the interest together with the overdue amount.
6. Complaints, defects, faults, etc. do not suspend Purchaser's obligation to pay. Purchaser is not entitled to deduct any amount in whatever capacity, without Seller's express written authorisation.
7. All costs related to the collection of invoiced amounts (including extra-judicial and judicial collection costs) are for the account of Purchaser. The judicial costs are expressly not limited to the court fees, but will include Seller’s legal fees and will be fully for the account of Purchaser, if Purchaser is (for the greater part) the losing party.
8. If the financial situation of Purchaser after the entering into the agreement, but prior to the Delivery of the Products, sustains a considerable setback, Seller is entitled to refrain en-tirely or in part from further performance of the agreement, or to demand a change of the payment conditions.
9. Seller is entitled to transfer its claims under all transactions with Purchaser to a credit insurer or factoring company, at the choice of Seller.
10. Any objections to an invoice must be made prior to the payment date of the invoice, after which payment date such invoice shall be deemed to correct and definitive.
Article 15. Force Majeure
1. Seller shall not be held to perform any obligation to Purchaser if it is outside of Seller’s control to do so as a result of circumstances that permanently or temporarily prevent such performance (“Force Majeure”). Seller shall not be liable for any damages or losses re-sulting from such Force Majeure. Force Majeure shall include at any rate, but not be lim-ited to, transport ban, import ban, strike, modes of transport, civil disturbance, acts of war, fire and/or water damage, breakdown of machines, interruption of the power supply, faulty or incomplete compliance by third parties, government measures, including at any rate import and export restrictions, marketing ban and non-compliance of its vendors.
2. Should Seller be of the opinion that the Force Majeure is of a temporary nature, it is enti-tled to suspend the performance of the agreement until the circumstance causing the Force Majeure no longer exist, which has to be a period not exceeding two months.
3. Should Seller be of the opinion that the Force Majeure is permanent, then each party is entitled to adapt the performance of the agreement to the circumstances or to terminate the agreement in whole or in part, without judicial intervention, and without being held to any compensation of damage to the other party.
4. If Seller already complied with part of the agreed obligations when the situation of Force Majeure commences, it is entitled to charge the work already performed separately and prematurely, and Purchaser must pay this invoice as if it were a transaction on its own.
Article 16. Termination, suspension, and cancellation
1. In addition to all powers afforded by law, Seller is entitled to suspend the compliance of its obligations if:
a. Purchaser does not comply with its (payment) obligations on time and completely;
b. Purchaser has been asked to provide security for the compliance of its obligations under the agreement and has failed to do so (sufficiently);
c. Purchaser has been declared bankrupt or filed for bankruptcy or for a court-super-vised recovery procedure;
d. Seller has learned of any (other) circumstances which constitute reasonable grounds to fear that Purchaser will fail to comply with its obligations.
2. In addition to all powers afforded by law, if Purchaser does not comply with its obligations under these GTC and/or the agreement to which they pertain, Seller shall be entitled to terminate the agreement immediately in whole or in part and with immediate effect, with-out having any obligation to pay any kind of compensation of damage or restitution, while Purchaser is obligated to pay compensation for damage for having committed non-per-formance.
3. Seller is entitled to terminate or amend the agreement if circumstances occur which are of such nature that compliance with the obligations under these GTC and/or the agree-ment to which they pertain has become impossible or if any other circumstances occur which are of such nature that it is not reasonable to expect from Seller to perform these GTC and/or the agreement to which they pertain on the originally agreed conditions.
4. Also in case of liquidation, a (request of) court-supervised business recovery or bank-ruptcy, attachment, if such attachment has not been lifted within three months, of Pur-chaser's assets, debt relief or any other circumstance preventing Purchaser to dispose freely over its assets, Seller is free to cancel the purchase order or contract or to terminate the agreement at once and with immediate effect, without being liable to payment of any compensation of damage.
5. Regardless whether the agreement was signed for a fixed or for a continuous term, Seller is always entitled to cancel such agreement, for whatever reason, with due observance of a reasonable notice period. Seller is never held to pay any kind of compensation for damage.
6. Purchaser shall not cancel the agreement without prior written authorisation of Seller which shall not be unreasonably withheld. Seller may attach conditions to the authorisa-tion of the cancellation of the contract. Purchase orders already placed with Seller shall in any case be fulfilled by Seller, unless Seller agrees to cancel the purchase order.
Article 17. Offsetting
1. Seller is always entitled to offset any and all claim(s) of Purchaser against Seller with claim(s) Seller and/or one of its affiliates has against Purchaser.
2. Purchaser is not allowed to offset a claim of Seller against Purchaser with claims Pur-chaser has against Seller.
Article 18. Governing law and disputes
1. These GTC and the agreements to which they pertain entered into by Seller are exclu-sively governed by the Laws of England and Wales.
2. All disputes shall as much as possible be settled amicably in good faith between Pur-chaser and Seller. If an amicable settlement is not possible disputes may be presented to the court of England and Wales, having exclusive jurisdiction.
Article 19. Severability clause
If any provision of these GTC or the agreement to which they pertain is deemed to be invalid, the validity of any other part of these GTC and the agreement to which they pertain will not be affected. In such a case, the parties shall replace the invalid provision by a valid provision that is permitted by law and as much as possible, in accordance with the purpose and intent of these GTC and the agreement to which they pertain.
Article 20. Assignment and subcontracting
Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these GTC and/or the agreement. Purchaser may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these GTC and/or the agreement without the prior written con-sent of Supplier.
Article 21. Notices
1. Any notice or other communication given to a party under or in connection with these GTC shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax.
2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in section 1 of this article; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax, one working day after transmission.
8. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Article 22. Waiver
The failure by either party to take action shall not prevent either party from taking action later.
Article 23. Third party rights
A person who is not a party to these GTC and/or the agreement shall not have any rights un-der or in connection with it.