Terms of Sale

LayerCore Networks Terms of Sale

1. INTERPRETATION

1.1  In these Conditions: : ‘Buyer’: means the person who buys Goods from the Seller; ‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller; ‘Contract’ means the contract for the purchase and sale of the Goods between the Buyer and the Seller; ‘Goods’ means the goods (including any instalment or parts of them) which the Seller is to supply under a Contract and includes any computer software and any configuration work carried out to goods before delivery; ‘Intellectual Property Rights‘ mean rights in all intellectual and industrial property rights including patents, registered trademarks, registered designs, utility models, copyrights (including rights in computer software), database rights, applications for any rights to apply for any of the foregoing, unregistered trademarks, design rights, rights in get-up and look and feel, know-how, rights to prevent passing off for unfair competition and copyright, moral rights, database rights, topography rights, and any other rights in any invention, discovery or process, in each case in the Netherlands and all other countries in the world and whether registered or unregistered and together with all renewals and extensions; ‘Loss’ means any indirect or consequential loss or any (whether direct or indirect) economic loss, loss of profits, loss of business, loss, and/or corruption, of data, loss of contract, loss of savings or depletion of goodwill or similar loss; ‘Order‘ means a purchase order for Goods submitted by the Buyer to the Seller and which is accepted by the Seller; ‘Seller’ means whichever of LayerCore Networks (registered in The Netherlands under number 34371475) and ‘Writing’ includes fax, email and comparable means of communication (and ‘Written’ shall be construed accordingly).

1.2  Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3  The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.4  Unless the context requires otherwise, words denoting the singular shall include the plural and vice versa and words denoting any one gender shall include all genders and words denoting persons shall include individuals, bodies corporate, unincorporated associations and partnerships.

1.5  Any lists or examples following the word “including” shall be interpreted without limitation to the generality of the preceding words.

1.6  If there is a conflict between these Conditions and an Order, the terms of the Order shall take precedence but only to the extent that a term is unambiguously and expressly stated to vary these Conditions.

2. BASIS OF SALE

2.1  The Buyer agrees to purchase the Goods from the Seller and the Seller agrees to sell the Goods to the Buyer on the terms and subject to the conditions of these Conditions.

2.2  By placing an Order with the Seller or accepting the Seller’s quotation, the Buyer agrees to deal with the Seller on the terms and conditions set out in these Conditions, to the exclusion of all other terms, conditions, warranties or representations (including any terms or conditions on which the Buyer purports to accept the quotation or to apply under any purchase order, confirmation of order, specification or any other document).  These Conditions shall govern and are incorporated into each and every Contract.

2.3  No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.4  The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing.

2.5  In entering into a Contract the Buyer acknowledges that it does not rely on, and unconditionally waives any right it may have to claim damages for and/or to rescind the Contract as a result of, any representations (other than fraudulent misrepresentations) not contained in these Conditions or which are not otherwise confirmed in Writing by the Seller.

2.6  Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.7  Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.8  Without prejudice to the generality of the application of Condition 2.7 the Seller shall be entitled to correct any error contained in any quotation issued by electronic communication to the Buyer by a representative of the Seller without any liability on the part of the Seller. The Buyer hereby acknowledges that due to the informality and ease of electronic communication errors can occur more readily than by other means of communication but that such errors are capable of being corrected by the Seller without any liability or the Seller being bound to sell in accordance with such mistaken terms.

2.9  Upon the Seller discovering an error in the price of Goods ordered by the Buyer, the Seller may inform the Buyer of such error as soon as possible and may give the Buyer the option of reconfirming its order at the correct price or cancelling its order. If the Seller is unable to contact the Buyer, the Buyer agrees that the Seller may treat the order as cancelled. If the order is cancelled at any time after the order has been paid for at the incorrect price, the Seller will provide the Buyer with a full refund as soon as possible.

3. ORDERS AND SPECIFICATIONS

3.1  Each Order or acceptance of a Written quotation for Goods by the Buyer shall be deemed to be an offer by the Buyer to purchase the Goods subject to these Conditions which shall be binding on the Buyer. No order submitted by the Buyer, or acceptance by the Buyer of a Written quotation, shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.

3.2  The Buyer shall be responsible to the Seller for ensuring the completeness and accuracy of the terms of any Order (including any applicable specification submitted by the Buyer) and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with these Conditions.

3.3  The quantity, price, delivery details, quality and description and any specification for the Goods shall be those set out in the Order (if accepted by the Seller).

3.4  All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures or websites are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

3.5  Any quotation is valid for a period of 2 days or such shorter period as the Seller may at the time specify from its date, provided that the Seller has not previously withdrawn it.

3.6  If the Goods are to be manufactured, built or any process is to be applied to the Goods by the Seller in accordance with a specification submitted, or requested, by the Buyer or imported into the EEA at the request of or on the instructions of the Buyer, or the Goods are to be marked with any trade mark at the request of the Buyer, the Buyer shall indemnify and hold the Seller harmless in full and on demand against: (a) all Loss, damages, costs (including legal costs) and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of third party Intellectual Property Rights arising therefrom; (b) all damages, costs (including legal costs) and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for misuse of any confidential information of any other persons; and (c) any other liability whatsoever which results from the Seller’s use of the Buyer’s specification or the marking of the Goods or from the sale or supply of such Goods by the Seller.

3.7  The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable EU law or regulation or other legal requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

3.8  The Seller reserves the right to amend, modify or change the specification of the Goods to the extent the relevant manufacturer of Goods does the same but provided only that such amendment, modification or change does not materially detract from the overall quality or performance of the Goods.

3.9  No Order which has been accepted by the Seller or Written quotation which has been accepted by the Buyer may be cancelled in whole or part by the Buyer except with the agreement in Writing of the Seller and in such circumstances the Buyer shall indemnify and hold the Seller harmless in full against all Losses, costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation and further including without prejudice to the generality of the foregoing a re-stocking fee of 20% of the price of the Goods.

3.10 THE BUYER ACKNOWLEDGES THAT THE GOODS ARE NOT DESIGNED, OR AUTHORISED, FOR USE IN ANY LIFE SUPPORT, OR OTHER APPLICATIONS, WHERE PRODUCT FAILURE COULD CAUSE, OR CONTRIBUTE TO, PERSONAL INJURY OR DEATH.

3.11As between the parties, all Intellectual Property Rights in the Goods are the property of the Seller.

4. PRICE OF THE GOODS

4.1  The price of the Goods shall be the price detailed on an Order and accepted by the Seller or, as applicable, the Seller’s quoted price at the date of its acceptance of the Order.

4.2  The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the reasonable control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3  Except as otherwise stated under the terms of any quotation or Order and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an Ex Works basis (Incoterms 2010) and, where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable for the cost of delivery to the Buyer’s premises (or requested place of delivery, if different) including, without limitation, transport and packaging costs and insurance costs, together with any additional expense, licence fees, import/export duties, customs fees, levies or other tax of any nature paid or incurred by the Seller.

4.4  The Seller and Buyer agree that all prices quoted are exclusive of insurance.

4.5  The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller where applicable.

5. TERMS OF PAYMENT

5.1  Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for all amounts due under the Contract on or before or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2  All payments shall be made in €, for such other currency as notified by the Seller from time to time.

5.3  If the Seller approves the Buyer’s application for a credit account, the Seller may set such credit limit, and may also vary any credit limit, as it deems appropriate from time to time.

5.4  The Seller reserves the right, at its discretion and without prior written notice, to immediately terminate or suspend availability of the credit account if: (a) any of the circumstances detailed at Condition 9.1(a)-(i) (inclusive) arise; or (b) any other circumstances arise which, in the Seller’s view, suggest it would be prudent to do so and, in each case, all amounts outstanding from the Buyer to the Seller will become immediately due and payable.

5.5  The Buyer shall make payment of all amounts due under the Contract (free from any right of set-off, counterclaim, withholding or deduction of any kind, those rights being expressly excluded) on the date as stipulated on the front of the sales invoice unless agreed otherwise in Writing, notwithstanding that delivery may not have taken place and legal title to the Goods has not passed to the Buyer. Where no such date is specified on the sales invoice or agreed in Writing between the parties, the Buyer shall make payment to the Seller in full within 30 days of the date of the invoice.

5.6  The time of payment of the price shall be of the essence. Receipts for payment will be issued only upon request.

5.7  No payment shall be deemed to have been received until the Seller has received cash or cleared funds.

5.8  All amounts payable to the Seller under the Contract shall become due immediately on its termination despite any other provision to the contrary.

5.9  If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: (a) cancel the Contract or suspend any further deliveries to the Buyer; (b) declare that all unpaid balances owing to the Seller from the Buyer shall become immediately due and payable, regardless of previously agreed payment terms; (c) require the immediate return to the Seller of all Goods agreed to be sold by the Seller to the Buyer in which legal title has not passed to the Buyer in accordance with the provisions of Condition 7 below and the Buyer agrees to reimburse to the Seller on demand the Seller’s costs or expenses in recovering such Goods; (d) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); (e) charge the Buyer interest (both before and after any judgement on the amount unpaid at the rate of 4% per cent per annum (or, if higher, the rate payable under the Late Payment of Commercial Debts (Interest) Act 1988) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); (f) recover from the Buyer all costs, charges and expenses incurred by the Seller in recovering any debts to be paid by the Buyer (including all legal costs on a full indemnity basis); and (g) charge (in addition to interest and any legal costs ordered by the Court and without prejudice to any other rights or remedies available to the Seller) the sum of €100.00 plus VAT or 10% of the total debt, whichever is the greater, by way of liquidated damages and as a contribution to administrative costs incurred by the Seller in taking steps to secure payment.

6. DELIVERY

6.1  Delivery of the Goods shall be made Ex Works (Incoterms 2010) at any time after the Seller has notified the Buyer that the Goods are ready for collection or if, some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place in accordance with the applicable Incoterm agreed between the parties in Writing.

6.2  Where the Goods are delivered to a place other than the Seller’s premises, the Buyer shall provide at its own cost and expense all necessary labour and equipment to enable the Goods to be safely unloaded at the alternative delivery address.

6.3  Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer and the Buyer agrees to accept and take delivery of the Goods on such earlier date.

6.4  The Seller shall be entitled to deliver the Goods in instalments. Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.5  Subject always to Condition 8, if the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer, the Seller’s liability for its failure to deliver shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.

6.6  Subject to other provisions of these Conditions, the Seller shall not be liable for any Loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, nor shall any delay entitle the Buyer to terminate or rescind the Contract.

6.7  If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may: (a) store the Goods until actual delivery and charge the Buyer for the reasonable costs of storage (including insurance); and/or (b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.

6.8  Any claim by the Buyer which is based on a shortfall in the quantities of Goods delivered shall (whether or not delivery is refused) be notified to the Seller in writing within 48 hours from the time of delivery (or, in the case of delivery being effected by the Buyer collecting the Goods at the Seller’s premises, within 48 hours from the time of collection). Where the Buyer fails to notify the Seller accordingly, the Seller shall be deemed to have supplied the Goods in accordance with the quantities specified in the Contract, and shall have no liability to the Buyer in respect of any such shortfall claim.

6.9  If the Goods have not been delivered despite receipt by the Buyer of the invoice from the Seller relating to them then, unless the Buyer notifies the Seller within 7 days after the date of such invoice, no claim against the Seller may be made in respect of non-delivery of those goods.

6.10 If the Goods are damaged (and such damage is visible) on delivery then, unless the Buyer notifies the Seller or the carrier in writing (otherwise than on the delivery note) within 3 days of delivery, no claim against the Seller may be made in respect of damage to such Goods.

7. RISK AND PROPERTY

7.1  Risk of damage to or loss of the Goods shall pass to the Buyer: (a) in the case of Goods to be delivered at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection; or (b) in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

7.2  Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, legal title in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of (i) the price of the Goods (plus VAT); and (ii) all other sums which are or which become due to the Seller from the Buyer on any account.

7.3  Until such time as legal title in the Goods passes to the Buyer, the Buyer shall: (a) hold the Goods as the Seller’s fiduciary agent and bailee and shall accordingly remain liable to account to the Seller for the Goods; (b) store the Goods (at no cost to the Seller) separately from those of the Buyer and third parties; (c) identify the Goods as the Seller’s property; (d) not remove, alter, destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and (e) protect and maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller.

7.4  Subject to Condition 7.2, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business but such right shall terminate immediately if: (a) the Buyer fails to make payment of any sum whatsoever due to the Seller (whether in respect of the Goods or any other goods or services under any agreement between the Buyer and Seller) on the relevant due date; (b) the Seller, acting reasonably, notifies the Buyer in Writing that it has bona fide doubts as to the solvency of the Buyer; (c) the Seller has a right to terminate the Contract under Condition 9; (d) the Buyer suffers any event of insolvency as described in Condition 9.1; (e) the Buyer allows any execution, whether legal or equitable to be levied on its property or obtained against it; (f) the Buyer fails to observe any of its obligations under the Contract or any other contract between the Seller and Buyer; or (g) the Buyer encumbers or in any way charges any of the Goods.

7.5 Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.

7.6 Until such time as title in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver-up the Goods to the Seller and, if the Buyer fails to do so, the Seller, its agents or employees, may forthwith enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. If the Goods have been incorporated into any property within the control of the Buyer, the Seller may dismantle the Goods or detach them from any items and all costs incurred in so doing and any diminution in the value of the Goods suffered by the Seller, or loss of profit on the resale of the Goods shall be charged against the Buyer.

7.7 The Seller shall be entitled to re-sell or otherwise dispose of recovered Goods in any way the Seller in its absolute discretion, thinks fit. The Buyer hereby grants the Seller a non-exclusive world-wide, royalty free, perpetual, irrevocable licence (with a right to sub-license) to use, for the purpose of such re-sale or disposal, any and all trademarks which may have been applied to the Goods by the Buyer and/or by the Seller or any third party at the request of, or with the consent of, the Buyer.

7.8 The Buyer shall not be entitled to encumber or in any way charge any of the Goods in which legal title remains vested in the Seller. If the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8. WARRANTIES AND LIABILITIES

8.1 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.2  Subject to Condition 8.3, the Buyer acknowledges that the Seller is not the manufacturer of the Goods and it shall only be entitled to the benefit of any product warranty or guarantee, repair or return policy to the extent as provided by the relevant manufacturer. For the avoidance of doubt, this shall also include any Goods which have been refurbished by the manufacturer (also known as renewed goods).

8.3 In the event that the Goods are used and/or refurbished goods (also known as bulk goods) (other than Goods which have been refurbished and/or renewed by the manufacturer directly), the Seller warrants that the Goods will correspond in all material respects with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 30 days from delivery.

8.4 It is a condition of any alleged warranty or guarantee claim made by the Buyer that the Goods must be returned to the Seller in the original (undamaged) manufacturer’s box.

8.5 The Seller does not give any warranty that the Goods shall be suitable for any particular purpose for which the Buyer intends to use them save where the Seller has expressly accepted responsibility for such suitability in Writing. The Seller does not accept responsibility for defects resulting from the location in which the Goods are to be used, or for their method of installation, use or maintenance, nor for any failure to correspond with any specification where that results from a failure to use the Goods in a suitable location (as reasonably determined by the Seller) or by competent operators or from improper installation, use or maintenance.

8.6 Nothing in these Conditions shall exclude or limit the Seller’s liability for (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; or (iii) for any other liability that cannot be excluded by law.

8.7 The Seller shall be liable to the Buyer for any direct physical damage (other than death or personal injury) to the extent that it results from the negligence of the Seller or its employees up to a maximum of €250,000.

8.8 SUBJECT TO CONDITIONS 8.6 AND 8.7 THE SELLER’S LIABILITY IN RESPECT OF ALL CLAIMS ARISING IN CONNECTION WITH OR ARISING OUT OF THE PROVISION OF THE GOODS WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) SHALL NOT EXCEED: (A) IN RESPECT OF A CLAIM FOR A SINGLE GOOD SUPPLIED UNDER THE CONTRACT, THE PRICE OF THAT SINGLE GOOD; AND (B) IN RESPECT OF ALL CLAIMS UNDER THE CONTRACT, THE AGGREGATE PRICE OF ALL THE GOODS SUPPLIED UNDER THE CONTRACT.

8.9 SUBJECT TO CONDITION 8.6, THE SELLER SHALL NOT BE LIABLE TO THE BUYER FOR ANY LOSS SUFFERED BY THE BUYER ARISING OUT OF OR IN CONNECTION WITH THE SUPPLY OF GOODS OR THEIR USE, RESALE OR LICENSE BY THE BUYER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.

8.10 THE BUYER RECOGNISES THAT THE LIMITATIONS OF LIABILITY CONTAINED IN THESE CONDITIONS ARE REASONABLE AND THAT THE PRICES QUOTED BY THE SELLER ARE DEPENDENT UPON SUCH LIMITATIONS BEING INCORPORATED INTO THE CONTRACT.

8.11 The Seller does not give any warranty or representation, and it is not a condition of the Contract, that (a) the Goods have been sold to the Buyer with the consent, whether express or implied, of the brand owner or that the owner of any Intellectual Property Rights in or relating to the Goods has consented to their import into the EEA or export from the EEA; and/ or (b) the manufacturer of the Goods will comply with any guarantee which the manufacturer generally makes available, whether due to the Goods not having been so sold, imported or exported or otherwise, and/or (c) the design, manufacture, use or sale of the Goods do not infringe the Intellectual Property Rights of a third party.

8.12 The Buyer is responsible to ensure that the equipment purchased from the Seller is of EEA origin and deemed for sale within the EEA, serial number(s) can be provided in advance on Buyers request, Seller shall not be liable to the Buyer regarding this subject, for any loss or claim against the Seller by the Buyer or their customer and/or the original equipment manufacturer.

8.13 The Buyer is responsible to ensure that the equipment purchased from the Seller is readily available for the original manufacturer maintenance agreements within the EEA , serial number(s) can be provided in advance on Buyers request, Seller shall not be liable to the Buyer regarding this subject, for any loss, expired original manufacturer warranty, re-certification costs and/or fees or claim against the Seller by the Buyer or their customer and/or the original equipment manufacturer.

8.14 The Seller shall use its reasonable endeavours to only supply Goods which are genuine but, in the unlikely event that any Goods are found to be counterfeit, the Seller shall be entitled at its sole discretion to either: (a) replace the Goods (or the part in question) free of charge; or (b) refund to the Buyer the price of the Goods (or a proportionate part of the price) and the Seller shall have no further liability to the Buyer whether under contract, tort or otherwise.

8.15 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control including without limitation: (a) act of God, explosion, flood, tempest, fire or accident; (b) war or threat of war, sabotage insurrection, terrorist attack, civil disturbance or requisition; (c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of a governmental, parliamentary or local authority (or analogous body) anywhere in the world; (d) import or export regulations or embargoes; (e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or a third party); (f) difficulties in obtaining raw materials, labour, fuel, parts, machinery or supplies or transport delays and/or the shortage of any of the foregoing; (g) any act, omission or default of a manufacturer; or (h) power failure or breakdown in machinery.

8.16 The parties acknowledge that they may in the course of dealing communicate electronically with each other and hereby agree to use commercially reasonable procedures to check for the then most commonly known viruses before sending information electronically. However, the parties further acknowledge that such procedures cannot constitute a guarantee that transmissions will be unaffected by hazards and therefore hereby accept such risks. Each party shall be responsible for protecting its own system and interests in relation to electronic communications. Neither party shall have any liability to the other on any basis, whether in contract, tort (including negligence) or otherwise in respect of any error, damage, loss or omission arising from or in connection with an electronic communication.

8.17 The Seller has no right, title, or interest in any software that may be contained in or a part of the Goods. Title to software will remain with the applicable licensor(s). Any rights that the Buyer may have with respect to the software shall arise only pursuant to license agreements (“Licenses“) between the Buyer and the licensor(s), which Licenses may be contained within the packaging associated with the Goods. The Buyer agrees to use all software in accordance with the Licenses.

8.18 The Buyer indemnifies and holds the Seller harmless on demand from and against all Loss, damages, costs, liabilities, expenses, costs (including legal costs) arising out of or in connection with: (a) breach by the Buyer of any provision of these Conditions or any breach of warranty or the acts or omissions of the Buyer or its employees; and (b) the modification or amendment of the Goods without the prior consent of the Seller in Writing.

9. TERMINATION

9.1  The Seller shall be entitled to terminate a Contract forthwith by notice in Writing to the Buyer if: (a) the Buyer commits an irremediable breach of the Contract (including failure to pay any sum due to the Seller), persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 14 days of receipt of notice of the breach requiring remedy of the same; or (b) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); (c) the Buyer presents a winding up petition or has a winding up petition presented against it which in each case is not withdrawn within seven days or has a winding up order made against it or a provisional liquidator is appointed; or (d) an encumbrancer takes possession, or a receiver is appointed, of any other property or assets of the Buyer; or (f) the Buyer ceases, or threatens to cease, to carry on business, or (g) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer; or (h) any order is made in relation to the Buyer for or there occur proceedings constituting main proceedings in any member state of the European Union; or (i) any analogous demand, appointment or procedure to those specified in this Condition is instituted or occurs in relation to the Buyer elsewhere than in The Netherlands.

9.2  If the Seller terminates the Contract pursuant to Condition 9.1 then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to stop any Goods in transit and/or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

10. EXPORT TERMS

10.1 Where the Goods are supplied for export from the E the provisions of this Condition 10 shall (subject to any special terms agreed in Writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.

10.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon and for complying with export control legislation and, if applicable, US re-export control legislation.

10.3 Where applicable, the Buyer agrees to obtain and provide in a timely manner, all necessary support documentation required by the Seller to apply for the approval of local government authorities to permit the exportation, re-exportation, transfer or sale of Goods to the Buyer. The Seller shall have no liability or obligation to the Buyer if the relevant government declines to issue such approval or if approvals are not issued in a timely manner. The Buyer acknowledges, as the importer of record, that it is solely responsible for the import of the Goods into its intended country of destination, and it further undertakes to obtain all required licences and permits required for the import of the Goods, and to comply with applicable laws, regulations and formalities applicable to the import of the Goods, and the payment of all import duties, taxes and fees applicable to those Goods.

10.4 Unless otherwise agreed in Writing between the Buyer and the Seller, and subject always to Condition 6, the Seller shall deliver to the address of the Buyer stipulated on the sales invoice.

10.5 The Buyer shall be responsible for arranging the testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.

10.6 The Buyer shall verify that no law is broken by the import into or use of the Goods in that territory and that doing so will not infringe the rights of any third party.

10.7 The Seller and the Buyer acknowledge that Goods incorporating encryption may require local government authorisation prior to export, re-export or import. The parties will cooperate to effect compliance with all applicable export and/or import laws relating to encrypted Goods.

11. GENERAL

11.1 No waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.2 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall be construed as if such invalid or unenforceable term or right did not exist.

11.3 The Contract is personal to the Buyer and the Buyer may not assign, transfer, sub-contract or otherwise part with the Contract or any related credit account, or any right or obligation under the Contract or any related credit account, without the prior written consent of the Seller.

11.4 The rights and remedies provided in these Conditions are cumulative and not exclusive of any rights or remedies otherwise provided by law.

11.5 Nothing in a Contract, or these Conditions, shall confer any right upon any person who is not a party to it whether.

11.6 The Contract (including any associated non-contractual disputes or claims) shall be governed by the laws of The Netherlands, and the parties agree to submit to the exclusive jurisdiction of the Dutch Courts provided that nothing in the Contract will prevent the Seller from taking proceedings against the Buyer in any other court of competent jurisdiction wherever in the world.