In the standard terms and conditions of supply set out in this document (“Conditions”) the following words and phrases shall have the following meanings:
1.1. “DEC” means Dynamic Ear Company BV, (chamber of commerce number 27305009) a company registered in the Netherlands having its place of business at Delft, the Netherlands.
1.2. “Acceptance Notice” is defined at Clause 2.3 below.
1.3. “Contract” is defined at Clause 2.3 below.
1.4. “Customer” means the entity purchasing the Products or the Services.
1.5. “Order” means the Customer’s purchase order for the Products and/or the Services.
1.6. “Product” means the hardware or software product or products described in the Order.
1.7. “Services” means the services described in the Order.
1.8. “Writing” means any written communication, including fax transmission where the successful transmission can be proved by an automatically generated report, and “Written” shall be construed accordingly.
2. BASIS OF SUPPLY
2.1. A quotation by DEC does not constitute an offer to supply any Products or Services. Quotations remain valid for a period of fourteen (14) days and after this period has expired may be withdrawn or revised at any time prior to DEC’s acceptance of the Order.
2.2. The Order constitutes an offer by the Customer, capable of acceptance by DEC, to purchase the Products and/or the Services subject to these Conditions.
2.3. No Order shall be binding upon DEC unless DEC expressly accepts the Order by Written notice to the Customer (“Acceptance Notice”) in which case a contract (the “Contract”) will be formed, for the sale and purchase of the Products and/or the supply and purchase of the Services, comprising the Order, Acceptance Notice and these Conditions. DEC shall not be obliged to accept any Order.
2.4. These Conditions shall apply to, and shall be part of, the Contract to the exclusion of any terms and conditions of the Customer.
2.5. No variation to the Contract shall be binding unless agreed in Writing between the authorised representatives of the Customer and DEC.
All drawings, dimensions, specifications, descriptions and illustrations contained in any sales literature for the Products shall not form part of the Contract unless expressly referred to in the Acceptance Notice.
4.1. Unless agreed otherwise in writing between the parties, the price of the Products shall be as quoted or, if no price is quoted, as stated in DEC’s applicable price list for the Products. The price of the Services shall be as quoted or, if no price is quoted, DEC’s standard charges for the Services. The price of the Products/Services shall, unless otherwise so stated, be exclusive of handling- and transportation cost and exclusive of VAT and any other tax which, where applicable, shall be payable by the Customer in addition to the price.
4.2. DEC shall have the right, on written notice to the Customer and no less than fifteen (15) business days before delivery of the Products or performance of the Services, to increase the price of the Products/Services from the price stated in the Acceptance Notice to take account of any increase in manufacturing or other cost to DEC (including but not limited to an increase in the cost of components). Provided that if DEC increases the price for any Products and/or Services, the Customer shall have the right to notify DEC within ten (10) business days of receipt of DEC’s notice, that it does not accept the increase, whereupon DEC shall have the option, exercisable within ten (10) business days of receipt of any such notice of objection, to cancel the affected orders without liability, or to fulfil the orders at the original price.
4.3. DEC shall be reimbursed for all travelling, subsistence and other expenses (including but not limited to board and lodging) reasonably incurred by it in the course of the provision of the Services provided that any claim for reimbursement is accompanied by available, reasonably relevant documentation (including but not limited to receipts) in support of such claim.
5.1. DEC may (unless otherwise agreed in Writing) invoice the Customer:
5.1.1. at any time before the delivery date for the Products stated in the Contract; or
5.1.2. at any time before, during or after the provision of the Services.
5.2. The Customer shall pay DEC’s invoices in full without any deduction whether by way of set off, counterclaim or otherwise within thirty (30) days of the date of the invoice.
5.3. Without prejudice to any other right or remedy available to it, DEC shall be entitled to charge interest on late payments before as well as after judgement at the rate of 12% per annum unless the statutory interest is higher than 12%, in which case the statutory interest applicable at that time will be charged.
5.4. Invoices not paid on the expiry date will be legally and without formal notice increased with a standard compensation rate of 10% with a minimum of 50 €.
5.5. No partial payment expressed to be “in full and final settlement” shall be effective as such unless specifically agreed in Writing by DEC.
5.6. DEC reserves the right to suspend deliveries of the Products or performance of the Services until it has received the full price of the Products and/or Services in cleared funds from the Customer, or to require the Customer to enter into a letter of credit or other security for payment prior to delivering the Products or performing the Services.
6. DELIVERY AND PERFORMANCE
6.1. Unless otherwise agreed in Writing by the Parties, delivery of the Products shall be EXW (Incoterms 2000) the premises specified in the Contract. DEC shall perform the Services at the times specified in, and otherwise in accordance with the terms of, the Contract.
6.2. Products shall, unless otherwise agreed in Writing by the parties, be packed in DEC’s normal specification packaging.
6.3. The Customer acknowledges that any dates or times for delivery of Products and/or performance of the Services are estimates only. DEC shall use its reasonable endeavours to adhere to such dates or times, but provided it uses such reasonable endeavours DEC shall have no liability in the event of any delays in the delivery of the Products and/or performance of the Services. The time for supply or delivery of the Products and/or performance of the Services is not and shall not be made of the essence of the Contract.
6.4. The Customer shall, at its own expense, provide DEC with any and all information, documents, access to premises, assistance from appropriately skilled personnel of the Customer,
and such other items or assistance as DEC may reasonably request to enable it to provide the Services. DEC shall not be liable for any failure to perform the Services or any late performance of the Services which results from any delay or failure by the Customer to provide items or assistance as set out in this Clause 6.4.
6.5. When any personnel of DEC are for the purposes of providing the Services on premises owned or occupied by the Customer, DEC shall procure that such personnel comply with the health and safety and security procedures of the Customer as notified to such personnel in writing.
6.6. The Customer shall be deemed to have accepted the Products upon delivery in all cases other than when Products that have been shipped at the expense and risk of DEC are damaged at the time of delivery and the Customer notifies DEC (in Writing) of such damage within five (5) days of the date of delivery in which case DEC shall, at its sole option and as the Customer’s sole and exclusive remedy, replace or repair any such Products or part thereof which are proved, to DEC’s satisfaction, to have been damaged at the time of delivery.
6.7. If the Customer refuses or fails to take delivery of Products tendered in accordance with these Conditions then, without prejudice to any other rights DEC may have against the Customer (for breach of contract or otherwise):
6.7.1. DEC shall be entitled both to immediate payment in full for the Products so tendered and either to effect delivery by whatever means it considers most appropriate or to store those Products at the risk of the Customer;
6.7.2. the Customer shall, in addition to the Price, pay all costs of such storage and any additional costs incurred as a result of such refusal or failure; and
6.7.3. DEC shall be entitled, after the expiration of one (1) month from the date upon which it first tendered the Products for delivery, to dispose of the Products in such manner as DEC may determine and shall be under no duty to account to the Customer for any of the proceeds of such disposal.
6.8. DEC shall be treated as having fulfilled its obligations under a Contract notwithstanding that the quantity of Products delivered is up to five per centum (5%) more or less than the quantity specified in the Contract and in such event the Customer shall pay for the quantity delivered.
DEC shall be entitled to deliver the Products to be delivered under a Contract in instalments, and any delay or failure on the part of DEC to deliver any such instalment shall not entitle the Customer to treat the entire Contract as breached.
7.0 RETURNS PROCEDURE
7.1 Where the Customer requires to return any Products to DEC, it shall not do so until it has obtained an RMA (Returned Materials Advice) number from DEC. All Products returned must be clearly marked with the RMA number and will not be accepted by DEC otherwise.
7.2. Risk in the returned Products will remain with the Customer until delivery to the address DEC has specified in writing (either in the RMA or otherwise). The Customer shall pay all freight, duty, taxes and carriage charges involved in returning the Products to such address.
7.3. Repaired or replacement Products shall be delivered in accordance with Clause 6 above.
8.0 PROTOTYPE PRODUCTS
8.1. The quotation and Acceptance Notice from DEC to the Customer will specify which of the Products are considered to be prototypes (by designating them “PP”).
8.2. DEC will use reasonable efforts to design and build the prototype Products in accordance with the relevant specification, but due to the incomplete nature of prototype Products, DEC does not give any warranties, conditions or other terms in relation to functionality, quality or fitness for purpose of prototype Products or that prototype Products are free from bugs, errors or omissions.
9.0 OWNERSHIP AND RISK
9.1. The ownership of the Products shall, subject to the second sentence of this Clause 9.1, pass to the Customer upon full payment for the Products. Where the Products include software, ownership of the software shall not pass to the Customer.
9.2. Until such time as ownership of the Products has passed to the Customer:
9.2.1. DEC shall be entitled to repossess at any time any of the Products in which ownership remains vested in DEC;
9.2.2. for the purpose specified in Clause 9.2.1 above, DEC or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the Products or any part thereof are installed, stored or kept, or are reasonably believed so to be;
9.2.3. DEC shall be entitled to seek a court injunction or equivalent judicial order under the applicable law of the Contract to prevent the Customer from selling, transferring or otherwise disposing of the Products;
9.2.4. Until such time as ownership of the Products has passed to the Customer, the Customer shall, subject to DEC’s rights hereunder, keep the Products separate from other products and hold the Products as the Supplier’s fiduciary agent.
10.0 INTELLECTUAL PROPERTY AND SOFTWARE
10.1. Without prejudice to the transfer of ownership of the Products in accordance with Clause 9, and subject to the following provisions of this Clause 10, nothing in the Contract or in these Conditions shall be treated as granting the Customer any rights in any of the intellectual property rights (including, but not limited to, copyright) in the Products or in DEC’s specifications or in any user documentation, manuals or any other technical information or materials, unless expressly stated otherwise. It is agreed by the Customer that all intellectual property rights in the Products are owned by or licensed to DEC.
10.2. DEC grants to the Customer a worldwide, non- transferable, non-exclusive licence (with the right to sub-licence to the Customer’s customers) to use the intellectual property rights in the Products solely for the purposes of using the Products.
10.3. Where the Products comprise software (whether in whole or in part) the Customer shall not and shall procure that its customers shall not, save to the extent permitted by law, reverse engineer, disassemble, decompile or translate such software, or otherwise attempt to derive the source code of such software. Such software is the confidential and proprietary information of DEC or its licensors. Unauthorised reproduction or distribution may be subject to civil and criminal penalties. The Customer shall take adequate steps to protect such software from unauthorised disclosure or use. DEC reserves all rights in and to such software not expressly granted to the Customer in these Conditions.
10.4. All intellectual property rights and other property/proprietary rights created by DEC during the performance of the Services (including, but not limited to, all intellectual property rights and property/proprietary rights in all documents, software and other deliverables delivered by DEC to the Customer as part of the Services) (collectively “Rights”) shall, unless otherwise agreed in Writing, be exclusively owned by DEC. Upon completion of all phases of the Services, and following full payment of all of DEC’s invoices raised under the Contract, DEC hereby grants to the Customer a royalty-free, non-transferable, non-exclusive licence to use the Rights (and any deliverables) for its internal business purposes only.
10.5. DEC gives no warranty that the Products, Services or any deliverables do not infringe the patents, copyright or other intellectual property rights of any person and (to the maximum extent permitted by law) accepts no liability in this regard. It is the responsibility of the Customer to ensure any applicable intellectual property licences are obtained from third parties in order to possess and use the Products or any deliverables.
10.6. DEC does not permit the resale or distribution of DEC filters for use in otoplastics and universal fit earplugs to non certified laboratories without written permission from Dynamic Ear Company. Permission cannot be granted without first sending customer contact details, copy of certification and details of product to be manufactured to: QA Department DEC, Rotterdamseweg 386 B18, 2629 HG Delft, The Netherland
11.1. NOTHING IN THESE CONDITIONS AFFECTS YOUR STATUTORY RIGHTS IF YOU PURCHASE THE PRODUCTS AS A CONSUMER.
11.2. DEC warrants that its Products (excluding prototype Products) will for a minimum period of one (1) year from the date of delivery (“Warranty Period”):
11.2.1. be free from defects in work and materials; and
11.2.2. operate substantially in accordance with DEC’s relevant published specifications.
11.3. If DEC is shown to be in breach of the warranties set out in Clause 11.2 above it shall, at its option and cost and (to the extent permitted by law) as the Customer’s sole remedy, repair or replace (with the same or functionally similar products) any defective Products which are returned to the Supplier during the Warranty Period in accordance with the Contract, subject to the following conditions:
11.3.1. The Customer notifies DEC in writing of the defect DEC within 5 days of discovery of such defect by the Customer;
11.3.2. The Customer follows the returns procedure set out in Clause 7 above;
11.3.3. DEC reserves the right to charge the Customer on a time and materials basis at its then current rates if the Customer’s warranty claim is found to be invalid.
11.4. DEC shall be under no circumstances be liabible for defects in the Products caused by:
11.4.1. any conditions of use, operation, testing, storage and/or maintenance of the Products by the Customer which are not in keeping with generally accepted industry practices or which have not been recommended or authorised by DEC;
11.4.2. any accident, wilful damage, abuse, misuse or neglect by the Customer;
11.4.3. any improper installation, or any repair or alteration not approved by DEC;
11.4.4. static discharge;
11.4.5. fair wear and tear;
11.4.6. any failure promptly to install a software upgrade provided by DEC.
11.5. The warranties given in this Clause 11 shall, to the fullest extent permitted by the applicable law, apply in lieu and to the exclusion of all other warranties, conditions or other terms, express or implied, statutory or otherwise, including without limitation any implied terms as to quality, merchantability, fitness for purpose or correspondence with description or sample.
11.6. The warranties given in this Clause 11 are for the benefit only of the Customer. DEC shall not be bound by any representations or warranties given by the Customer to its own customers.
12.1. DEC does not limit or exclude its liability for death or personal injury caused by its negligence, or for fraud, or otherwise insofar as such limitation or exclusion is void, prohibited or unenforceable in law.
12.2. Subject to Clause 12.1, whether or not DEC has been advised of the possibility, DEC will not be liable, whether under contract, tort (including negligence) or otherwise, for:
12.2.1. Loss of production;
12.2.2. Loss of or corruption to data, the Customer being responsible for establishing and maintaining adequate back up procedures for its data;
12.2.3. Loss of profits;
12.2.4. Loss of contracts or other opportunities;
12.2.5. Loss of revenue;
12.2.6. Loss of goodwill or anticipated savings;
12.2.7. Wasted management or staff time;
12.2.8. Any indirect loss or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused.
12.3. Subject to Clauses 12.1 and 12.2, in no event shall the aggregate amount of DEC’s liability exceed 100% of the amounts payable by the Customer under the relevant Contract, or one million EURO (€ 1,000,000), whichever is the lesser.
12.4. To the extent permitted by law, the Customer shall defend and indemnify DEC from any and all claims brought against DEC by third parties, and shall hold DEC harmless from all corresponding damages, liabilities, costs and expenses, (including lawyers’ reasonable fees) incurred by DEC and arising out of or in connection with the Customer’s possession or use of the Products or any deliverables delivered as part of the Services.
DEC shall be entitled to terminate the Contract without liability to the Customer by giving notice to the Customer at any time if:
13.1. the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or an encumbrancer takes possession of, or a receiver is appointed over, any of the property or assets of the Customer; or
13.2. the Customer ceases, or threatens to cease, to carry on business; or
13.3. DEC reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly; or
13.4. the Customer commits a material breach of the Contract or a series of beraches which in aggregate constitute a material breach and (if capable of remedy) fails to remedy the breach within seven (7) days of being required by Written notice to do so (such notice to specify the breach and to state DEC’s intention to terminate the Contract if the breach is not remedied).
14.1. DEC may assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract. The Customer may not assign the Contract in whole or in part without the prior written consent of DEC.
14.2. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
14.3. No waiver by DEC of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver of the Contract by DEC shall only be effective if in Writing expressly waiving the provision in question.
14.4. 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 not be affected thereby.
14.5. DEC shall be under no liability to the Customer in respect of anything which, apart from this provision, may constitute breach of the Contract arising by reason of circumstances beyond the reasonable control of the Supplier which shall include (but shall not be limited to) perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; shortage of supplies, utilities, equipment, materials, breakdown or shortage of equipment and labour disputes of whatever nature and for whatever cause arising.
14.6. The parties agree that, to the extent permitted by law, the Vienna Convention of 1980 (“The Convention on Contracts for the International Sale of Goods”) and all international and domestic (or other) implementations of that Convention shall not apply in relation to any Contract.
14.7. The Contract shall be governed and construed in accordance with the laws of the Netherlands and the parties submit to the non-exclusive jurisdiction of the Dutch courts in relation to any dispute arising out of or connected with the Contract or these Conditions.
15 General conditions
DEC provides access to product and pricing information on an international basis as a result of making such information available on the World Wide Web. Such information may contain references or cross references to products, prices, promotions and services that are not announced or available in your country. Such reference does not imply that DEC intends to announce or make available such products, promotions or services, under such prices in your country. Any product, pricing may not apply in your geographic region. Please check with your reseller regarding product availability, pricing and promotions and the availability therof in your geographic area.