Disclaimer and Privacy Statement
Alltech has created this privacy statement to demonstrate our firm commitment to protecting the privacy of its online visitors.
Alltech supports industry initiatives, such as TRUSTe, to preserve privacy rights on the Internet and in all aspects of electronic media. Alltech gathers personally identifiable data when voluntarily submitted by a visitor. For example, personally identifiable information may be requested by Alltech in order to respond to a request for a subscription to a company newsletter or following a request for more information about a product. It is Alltech's policy to use personally identifiable information for Alltech's internal business purposes only.
GENERAL TERMS AND CONDITIONS OF SALE OF ALLTECH COPPENS B.V.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Amsterdam are open for business.
Conditions: these general terms and conditions.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases and/or accepts delivery of the Goods from the Supplier.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property: any and all tangible and intangible: (i) rights associated with works of authorship, including copyrights, moral rights, neighbouring rights, and derivative works thereof, (ii) trademark and trade name rights, (iii) knowhow and trade secret rights, (iv) patents, design rights, and other industrial property rights, and, (v) all other intellectual property rights (of every kind and nature however designated) whether arising by operation of law, treaty, contract, license, or otherwise, together with all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof, in connection with the Goods.
Order: the Customer's order for the Goods, as set out in writing by the Customer (including, as applicable, a written acceptance by the Customer of a formal written offer from the Supplier).
Specification: the specifications for the Goods as stated by Supplier on its Website, and/or as agreed between the parties in writing.
Supplier: Alltech Coppens BV, a company incorporated and registered in the Netherlands with registered office at Dwarsdijk 4 5705 DM Helmond, the Netherlands.
Trade Secrets: any information disclosed to the Customer that is confidential, including without limitation all ideas, concepts, structures, costs, specifications, recipes, ingredients, formulations, composition, documentation, designs, techniques, drawings, hardware, software, data, prototypes, processes, technology, knowhow, methods of design and/or development, inventions, and/or other technical, business, marketing, planning, commercial and/or financial information and/or data regardless of how such information is transmitted (including orally, and/or in documentary and/or machine readable form, and/or in the form of samples from which the information may be derived) that if disclosed in tangible form, is marked ‘Confidential’, ‘Proprietary’, or if disclosed orally, is stated by the Supplier to be confidential, or is of such a nature that the Customer in the exercise of reasonable business judgment should know is confidential.
a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
c)a reference to writing or written includes emails.
2 - Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate and indicative idea of the Goods referred to in them. They shall not form part of the Contract nor may the Customer derive any right thereof in relation to the conformity of the Goods.
2.5 A quotation for the Goods given by the Supplier shall not constitute an offer. (For the avoidance of doubt: any proforma invoice provided by Supplier shall constitute a quotation, and will therefore not constitute an offer).
2.6 An Offer from the Supplier is free of obligation, meaning that the Supplier can withdraw the offer at any time, even after it has been accepted. The Supplier does not have an obligation to supply until it has confirmed an Order in writing. The Customer hereby waives the right to (attempt to) compel the supply of Orders that have not been confirmed by the Supplier in writing.
2.7 The Supplier may attach (further) terms and conditions to its confirmation of the Order, such as an advance payment. The Supplier may adjust the price of the offer until the Supplier has confirmed the Order in writing. In the event of an increase of the offer price with more than 10 percent, the Customer may cancel the Order free of charge.
2.8 Inaccuracies in an Order confirmation from the Supplier must be reported to the Supplier in writing within two Business Days after the date of the Order confirmation, in the absence of which the Order confirmation is deemed to be an accurate and complete representation of the Contract.
2.9 If the Contract is concluded without the price having been agreed in writing, the Customer will owe the price usually stipulated by the Supplier at the time of the Contract.
3 - Goods
3.1 The Goods including the Specifications are described in the Website and/or will be agreed between the parties in writing.
3.2 To the extent that the Goods are to be manufactured in accordance with a specification requested by the Customer, the Customer shall indemnify the Supplier against all claims, liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's (intellectual property) right(s) arising out of or in connection with the Supplier's use of such specification.
3.3 The Supplier reserves the right to amend the specification of the Goods received from the Customer or the Specification if required by any applicable statutory or regulatory requirements.
4 - Delivery
4.1 Any delivery dates agreed upon are approximates only, and the timing of delivery is not of the essence for the Customer. If the Supplier does not deliver the Goods to the Customer within the agreed delivery period, the Customer must give the Supplier written notice of default and grant a further period of no less than fourteen days to deliver the sold Goods.
4.2 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable),) and, if the Goods are being delivered by installments, the outstanding balance of Goods remaining to be delivered.
4.3 Unless agreed otherwise, all Goods shall be supplied Free Carrier (FCA) ICC Incoterms 2020 Supplier’s premises located at Nettetal, Germany. At the Supplier’s first request, the Customer is required to take receipt of the Goods purchased. If the Customer does not take receipt of the purchased Goods at the Supplier’s first request, the Supplier will hold the Goods for the account and risk and at the expense of the Customer.
If the Supplier fails to deliver the Goods, the Customer shall be entitled to a penalty equal to 5% of the purchase price of the Goods. The Customer will not be entitled to claim any (further) damages for late or non-delivery.
4.4 If ten (10) Business Days after the day on which the Supplier notified the Customer that the Goods were ready for collection the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.5 The Goods delivered must conform with the Contract. The Goods delivered conform with the Contract if the Goods conform with the Specifications, under the understanding that minor deviations and/or deviations that are customary in the sector (which includes, in any event, deviations in quantity of up to %) and minor, customary, or unavoidable differences in quality, colour, measurements, thickness, weight, etc. are permitted. The Customer declares that the Goods purchased are suitable for the use intended by the Customer if the Goods supplied meet the agreed Specifications/characteristics, including the corresponding permitted deviations.
4.6 The Supplier is entitled to deliver the sold Goods by means of partial deliveries, which may be invoiced and shall be paid for separately. Any claim of the Customer with regard to a certain (partial) delivery has no effect on any other (partial) delivery.
5 – Warranty, inspection and remedies
5.1 Supplier warrants that the Goods sold and delivered to Customer shall meet the Specifications. In the event that any of the Goods are alleged to be defective/non-conforming, and said claim is verified by Supplier, Supplier shall take appropriate corrective action (as further described in this clause 5).
SUPPLIER MAKES NO WARRANTIES, EXPRESS, OR IMPLIED, (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF THE PRODUCTS FOR ANY PURPOSE EXCEPT AS RECOMMENDED ON THE PRODUCT LABEL) WITH RESPECT TO THE GOODS, EXCEPT AS FOR ANY EXPLICIT WARRANTIES LAID DOWN IN THESE CONDITIONS AND/OR THE CONTRACT.
5.2 As soon as the Customer retains the Goods purchased, the Customer must inspect the Goods and check whether the Goods supplied conform with the Specifications. The Customer can no longer invoke the delivered Goods’ non-conformity, if the Customer does not notify the Supplier thereof in writing:
a) For visible deviations/defects: within fourteen days of delivery; and
b) For hidden deviations/defects: within fourteen days of the moment at which the Customer discovered the deviation/defect or should reasonably have discovered it (whichever is sooner). Causes of action and defences, based on facts that would justify the assertion that the delivered Goods do not conform with the Contract, lapse one year after the notification sent in accordance with this clause 5.2.
5.3 Subject to this clause 5, if:
a) the Customer gives notice in writing to the Supplier during the warranty/inspection period that some or all of the Goods are defective/non-conforming;
b) the Supplier is given a reasonable opportunity of examining such Goods; and
c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.4 The Customer is not entitled to make any claim with regard to non-conformities/defects of the Goods in any of the following events:
a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
b) the defect arises because the Customer failed to follow the Supplier's instructions as to the storage and use of the Goods or (if there are none) good trade practice regarding the same;
c) the defect arises as a result of the Supplier following any specification supplied by the Customer;
d) the Customer alters the Goods without the written consent of the Supplier;
e) the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions by the Customer; or
f) the Goods differ from the Specification as a result of changes made by the Supplier to ensure that they comply with applicable statutory or regulatory requirements.
5.5 These Conditions shall also apply to any repaired or replacement Goods supplied by the Supplier.
6 - Title and risk
6.1 The Customer bears the risk of the sold Goods from delivery onwards. Transfer of ownership of the Goods is effected under the conditions precedent(s) – as described below in this clause 6 and agreed upon between the parties – by placing the sold Goods merely under the control (and not in the possession) of the Customer upon delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
a) the Supplier receives payment in full (in cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; and
e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
a) it does so as principal and not as the Supplier’s agent; and
b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Supplier may have:
a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
b) the Supplier may at any time:
i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6.6 If the Supplier does not receive the full purchase price within thirty Business Days days of the date/dispatch of the invoice, the Supplier may reclaim the Goods supplied by means of a written statement addressed to the Customer. This statement has the effect of canceling the purchase and terminating the Customer’s right to retain/acquire ownership of the Goods supplied.
6.7 In the event that the Customer is declared bankrupt or is granted suspension of payments, the reclaiming by the Supplier will have no consequences if the receiver/administrator pays the purchase price owed within a period set by the Supplier, or if security is provided for this payment.
6.8 The Supplier’s rights as described in this clause 6 do not lapse through the passage of time, but only through payment of the full purchase price by the Customer.
7 - Price and payment
7.1 The price of the Goods shall be the price set out in the Order and/or the Order confirmation.
7.2 The Supplier may, by giving notice to the Customer at any time up to ten (10) Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
b) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The prices of the Goods are:
a) exclusive of value sales tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;
b) Free Carrier (FCA) ICC Incoterms 2020, unless agreed otherwise between the parties in writing.
7.4 The Supplier may invoice the Customer (either by post or by email) for the Goods on or at any time after the completion of delivery.
7.5 Unless otherwise agreed between the Parties in writing (including via any price list, proforma, confirmation of sale, or invoice, provided by the Supplier), the Customer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice. Payment shall be made directly to the bank account nominated in writing by the Supplier (for the avoidance of doubt, cheques will not be accepted). This is a final/absolute payment deadline.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer is obliged to pay the Supplier -on top of the outstanding amounts- the Dutch statutory commercial interest calculated based upon the due and outstanding amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or suspension of payment (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.8 The Customer must send complaints regarding the correctness of the invoice in writing to the Supplier within 10 Business Days of the date/dispatch of the invoice. The right to complain about the correctness of the invoice lapses upon the expiry of this period. If the Customer complains in good time and with good reason, the Supplier will credit the incorrect invoice and send a new invoice to the Customer.
7.9 The Customer hereby gives the Supplier prior consent to transfer or pledge the claims that the Supplier has against the Customer.
8 - Termination
8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
a) the Customer commits a breach of any terms of the Contract (including these Conditions), and (if such a breach is remediable) fails to remedy that breach within seven (7) Business Days of the Customer being notified in writing to do so;
b) the Customer becomes bankrupt, requests suspension of payment, takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), is wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), has a receiver appointed to any of its assets, or ceases to carry on business;
c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
d) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
e) the Suppliers has objective grounds and/or indications that the Customer is involved in tax evasion, fraud and/or other criminal activities.
8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1 or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 If the Contract has an indefinite duration, then either party is entitled to terminate the Contract for its convenience upon written notice, taking into account a notice period of one month per contract year (a contract year being twelve consecutive months), provided that the required notice period will never be more than three months.
8.4 Investments of parties in connection with the execution of the Contract shall be at the own risk and expense of parties. In the event of a lawful termination of the Contract by one of the parties, the other party shall not be entitled to any compensation in connection with this termination.
8.5 On termination of the Contract for any reason, all claims that the Supplier has or may acquire on the Customer shall immediately become due and payable, and the Customer shall immediately pay to the Supplier all of the Supplier's invoices and interest due.
8.6 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.7 Notwithstanding the rights following from the Contract, the parties waive the right to terminate the Contract outside the provisions of this clause 8. The parties waive the right (all fully or partly) to annul, rescind or dissolve, or cancel the Contract in whole or in part, or to institute a claim at law for the annulment, rescission, dissolution or cancellation of the Contract (all fully or partly), unless agreed otherwise in the Contract.
8.8 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9 - Limitation of liability
9.1 In the event that the Supplier is liable vis-à-vis the Customer and has to compensate the Customer’s damage on that basis, the limitation of liability set out in this clause 9 will apply, regardless of the basis for the liability. The limitation of liability set out in this clause 9 will only be inapplicable if the damage results from the wilful intent or deliberate recklessness of the Supplier or of individuals charged with the management of its company.
9.2 The Supplier has taken out product liability insurance to cover its liability risks. In the event that the Customer suffers damage for which the Supplier is liable based upon product liability, at the Customer’s first written request the Supplier will submit the claim for payment of damages to the Supplier’s insurer, requesting compensation for the damage suffered by the Customer. If the Supplier’s insurer accepts the insurance claim and compensates the damage suffered by the Customer, consisting of the loss it has suffered, the Customer will compensate the Supplier for the Supplier’s applicable excess.
9.3 In the event that the Supplier’s (product) liability insurance does not offer cover or does not payout, the Supplier’s liability will be capped at/limited to the purchase price actually received by the Supplier (excluding VAT) in respect of the supplied Good(s) that caused the damage.
9.4. The Customer hereby waives its right to claim for damage other than the damage consisting of the loss it has suffered that bears such relation to the event on which the liability is based, that the loss suffered can be attributed to this event. Lost profits, foregone sales or (other) special, indirect or consequential damages are not eligible for compensation by the Supplier. 9.5 Causes of action and defenses, based on facts that would justify the assertion that the Customer has suffered damage for which the Supplier is liable, lapse after a period of one year calculated from the day on which the damage arose.
10 – Force Majeure
10.1 Failure of Supplier to make any delivery (or portions thereof) or fulfill any of its obligations when due, if occasioned in whole or in part by act of God, fire, explosion, perils of the sea, flood, drought, epidemic, pandemic, war, riots, civil insurrection or unrest, sabotage, accident, embargo, governmental priority, requisition or allocation or any action/measure of any governmental authority, or shortage or failure of supply of materials, shipping space, or labor, or strikes or other labor trouble, loss of or damage to goods in transit, or any occurrence, act, cause, or thing beyond the control of the Supplier, shall excuse any such failure on the part of the Supplier and the Supplier shall have no obligation or liability whatsoever arising out of or in connection with any such failure.
10.2 In case of temporary force majeure as described in this clause 10, the mutual obligations of the parties shall be suspended until the hindrance is eliminated (except for payment by the Customer for Goods that have been delivered). Where force majeure persistently prevents fulfillment, which lasts for more than 180 days, either party is entitled to immediately terminate the Contract upon written notice. The parties shall then have no right to fulfillment, compensation for this reason and/or postponement.
11 – Trade Secrets
11.1 The Supplier has invested in acquiring, developing and applying valuable know-how and business information. In order to enable the purpose of the Contract and in order to fully exploit the business opportunities, the Supplier considers the dissemination of Trade Secrets as being essential. However, the Supplier is only willing to disclose the Trade Secrets if the Customer agrees not to acquire, use or disclose the Trade Secrets outside the scope of the Contract.
11.2 The Customer agrees that it shall (i) not acquire, use or disclose the Trade Secrets outside the scope of the Contract, (ii) keep secret the Trade Secrets, (iii) not reverse engineer, disassemble, decompile or assess the composition of the material or any tangible or intangible items or objects which embody the Trade Secrets and (iv) disclose the Trade Secrets only to its employees, independent contractors or other third parties who have a need to know such information to perform the Contract, and under the condition that such employees, independent contractors or other third parties have entered into an obligation to not acquire, use or disclose the Trade Secrets under the terms of a written agreement which is no less restrictive or comprehensive than this clause 11.
11.3 The obligations stated above do not apply where the alleged acquisition, use or disclosure of the Trade Secrets was carried out in any of the following cases:
a) for exercising the right to freedom of expression and information as set out in the EU Charter, including respect for the freedom and pluralism of the media;
b) for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest;
c) disclosure by workers to their representatives as part of the legitimate exercise by those representatives of their functions in accordance with EU or national law, provided that such disclosure was necessary for that exercise;
d) for the purpose of protecting a legitimate interest recognized by EU or national law.
11.6 The Customer will procure, and represents and warrants vis-à-vis the Supplier, that all of its affiliates shall comply with this clause 11.
12 – Intellectual Property
12.1 The Supplier reserves all rights with respect to the Goods and the Intellectual Property. Nothing under the Contract will constitute, or be deemed to constitute, a transfer of any Intellectual Property to the Customer.
12.2 The Customer undertakes not to infringe or to attack the Intellectual Property in any way, directly or indirectly, by use or otherwise, and acknowledges that the Supplier is the beneficiary with regard to the Intellectual Property.
12.3 Supplier will grant the Customer the non-exclusive right to use the Intellectual Property, but only for executing the Contract and in the Supplier’s sole interest. After expiration or termination of the Contract, for any reason whatever, the Customer shall cease above-mentioned use without delay.
12.4 The Customer shall fully and completely comply with the marking provisions of the trademark and copyright laws.
12.5 The Customer agrees not to register, use or file in its own name or in the name of any other person or company the trademarks of the Supplier or any trademark resembling those trademarks, and not to associate the trademarks with its own business, except for the purpose of the Contract.
12.6 The Customer shall notify the Supplier without delay of any infringement of the Intellectual Property and shall provide the Supplier all assistance necessary in defending the Supplier’s entitlement to the Intellectual Property. During the term of the Contract, the Supplier may, at its sole discretion, prosecute or defend any claim of infringement or of invalidity of the Intellectual Property.
12.7 The Customer will procure, and represents and warrants vis-à-vis the Supplier, that all of its affiliates shall comply with this clause 12.
13 – General
13.1 Assignment and other dealings
a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
13.2 - Entire agreement
a) Save as otherwise set out in writing between the parties, the Contract (including these Conditions) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
b) The Customer agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract (including these Conditions).
13.3 - Variation
Changes to the Contract or any additional or deviating clauses will only be effective if laid down in writing and signed by the parties, or if confirmed by the Supplier in writing via an order confirmation.
13.4 - Waiver
A waiver of any right or remedy is only effective if given in writing, and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy nor prevent or restrict the further exercise of that or any other right or remedy.
13.5 - Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 13.5 shall not affect the validity and enforceability of the rest of the Contract.
13.6 - Notices
a) Any notice or other communication given to a party under or in connection with the Contract 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 13.6, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business 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 email, one Business Day after transmission.
c) The provisions of this clause 13.6 shall not apply to the service of any proceedings or other documents in any legal action.
13.7 - Third party rights.
No one other than a party to this Contract shall have any right to enforce any of its terms.
13.8 - Governing law
The legal relationship(s) between the Supplier and the Customer, including the Contract and these Conditions (and their existence and validity) and (further) agreements (and their existence and validity) concluded between them, are governed by Dutch law.
13.9 - Jurisdiction
a) The Supplier and the Customer hereby designate the District Court of Oost-Brabant (the ‘Designated Court’) on an exclusive basis to take cognisance of disputes (‘Disputes’) that have arisen or will arise in connection with the legal relationship(s) existing between them, without prejudice to the Supplier’s right to lodge claims to which it is entitled with
(i) the Netherlands Arbitration Institute (NAI) in accordance with the then current Arbitration Rules, for the rendering of a decision by arbitration or
(ii) the court of the country in which the Customer has its registered office or place of business (the ‘Alternative Fora’), instead of via the Designated Court.
b) In the event that the Supplier submits its claims to the NAI, the arbitral tribunal shall be composed of one arbitrator. The place of arbitration shall be Amsterdam, the Netherlands. The arbitral procedure shall be conducted in the English language.
c) In the event that the Supplier submits its claims to one of the Alternative Fora referred to, the Customer will acquire, by operation of law, the right to lodge a counterclaim with the Alternative Fora selected by the Supplier.
d) If a case is brought before the Designated Court, then any other court seized at an earlier stage will stay its judgment until the Designated Court declares that it does not derive any jurisdiction from the Contract (including these Conditions).
e) Provisional or protective measures may only be requested at the Designated Court, without prejudice to the Supplier’s right to request provisional or protective measures at the district court that has jurisdiction in the country in which the Customer has its registered office or place of business.
f) This clause 13.9 and clause 13.8, regarding the applicable law and designation of jurisdiction, are regarded as stipulations that are separate from the other provisions of the Contract (including these Conditions). The validity of these stipulations cannot be contested solely on the ground that (a provision in) the Contract (including these Conditions) is not valid.