Terms and Conditions Eartmasq B.V.

Private company with ordinary structure Eartmasq B.V. (hereinafter: Eartmasq) is registered with the Chamber of Commerce under number 80332978 and is located at Scharlo 18 (1815CP) in Alkmaar.

Article 1 – Definitions

1. In these general terms and conditions, the following terms are used with the following meaning, unless explicitly stated otherwise:
2. Offer: Any written offer to the Buyer to deliver (prototype) Products by the Seller to which these conditions are inseparably linked.
3. Company: The natural or legal person acting in the exercise of a profession or business.
4. Consumer: The natural person who is not acting in the exercise of a profession or business.
5. Buyer: The Company or Consumer who enters into a (distance) Agreement with the Seller
6. Agreement: The purchase agreement (at a distance) that extends to the sale and delivery of Products purchased by the Buyer from Eartmasq.
7. Products: The (prototype) Product offered by Eartmasq is a protective helmet against harmful viruses that can infect the body.
8. Seller: The supplier of Products to the Buyer, hereinafter: Eartmasq.

Article 2 – Applicability

1. These general terms and conditions apply to every Offer of Eartmasq and every Agreement between Eartmasq and a Buyer and to every Product offered by Eartmasq.
2. Before an Agreement is concluded (remotely), the Buyer will have access to these general terms and conditions. If this is not reasonably possible, Eartmasq will indicate to the Buyer how the Buyer can view the general terms and conditions, which in any case have been published on the Eartmasq website, so that the Buyer can easily save these general terms and conditions on a durable medium.
3. In exceptional situations, these general terms and conditions can be deviated from if this has been explicitly agreed in writing with Eartmasq.
   These general terms and conditions also apply to additional, amended and follow-up agreements with the Buyer. Any general and / or purchase conditions of the Buyer are expressly rejected.
4. If one or more provisions of these general terms and conditions are partially or completely null and void or are nullified, the other provisions of these general terms and conditions will remain in force and the invalid / voided provision (s) will be replaced by a provision with the same purport as the original provision .
5. Uncertainties about the content, explanation or situations that are not regulated in these general terms and conditions should be assessed and explained in the spirit of these general terms and conditions.
6. If in these general terms and conditions reference is made to him / her, this should also be understood as a reference to he / him / his, if and insofar as applicable.

Article 3 – The offer

1. All offers made by Eartmasq are without obligation, unless explicitly stated otherwise in writing. If the Offer is limited or valid under specific conditions, this will be explicitly stated in the offer. An Offer only exists if it has been laid down in writing.
2. The Offer made by Eartmasq is without obligation. Eartmasq is only bound by the Offer if the acceptance thereof is confirmed in writing by the Buyer within 30 days, or if the Buyer has already paid the amount due. Nevertheless, Eartmasq has the right to refuse an Agreement with a potential Buyer for a valid reason for Eartmasq.
3. The Offer contains an accurate description of the Product offered with associated prices. The description is detailed in such a way that the Buyer is able to make a proper assessment of the Offer. Obvious mistakes or errors in the Offer cannot bind Eartmasq. Any images and specific data in the Offer are only an indication and cannot be a ground for any compensation or dissolution of the Agreement (at a distance). Eartmasq cannot guarantee that the colors in the image exactly match the real colors of the Product.
4. Delivery times and periods stated in the Eartmasq Offer are indicative and do not entitle the Buyer to dissolution or compensation if they are exceeded, unless explicitly agreed otherwise.
5. A composite quotation does not oblige Eartmasq to deliver part of the goods included in the offer or Offer against part of the stated price.
   If and insofar as there is an offer, this does not automatically apply to repeat orders. Offers are only valid until stocks last, and according to the out-is-out principle.

 

Article 4 – Establishment of the Agreement

1. The Agreement is concluded the moment the Buyer has accepted an Offer from Eartmasq by paying the relevant Product.
2. An Offer can be made by Eartmasq via the website.
3. If the Buyer has accepted the Offer by concluding an Agreement with Eartmasq, Eartmasq will confirm the Agreement with the Buyer in writing, or at least by e-mail.
4. If the acceptance deviates (on minor points) from the Offer, Eartmasq is not bound by it.
5. Eartmasq is not bound by an Offer if the Buyer could reasonably have expected or should have understood or should have understood that the Offer contains an obvious mistake or clerical error. The Buyer cannot derive any rights from this mistake or error.
6. The right of withdrawal is excluded for the Buyer being a Company. Buyer being a Consumer has the right to assert his right of withdrawal within the legal term. If withdrawal applies, the Buyer will handle the Product and its packaging with care. It will only unpack or use the Product to the extent necessary to determine the nature, characteristics and operation of the Product. The direct costs for returning the Product are at the expense of the Buyer.
7. Products that cannot be taken back due to customization are excluded from the right of withdrawal. This is explicitly stated in the Offer.

Article 5 – Implementation of the Agreement

1. Eartmasq will execute the Agreement to the best of its knowledge and ability.
2. If and insofar as required for the proper execution of the Agreement, Eartmasq has the right to have certain activities performed by third parties at its own discretion.
3. The Buyer ensures that all information, of which Eartmasq indicates that it is necessary or of which the Buyer should reasonably understand that it is necessary for the execution of the Agreement, is provided to Eartmasq in a timely manner. If the information required for the execution of the Agreement is not provided to Eartmasq in time, Eartmasq has the right to suspend the execution of the Agreement.
4. In the implementation of the Agreement, Eartmasq is not obliged or obliged to follow the instructions of the Buyer if this changes the content or scope of the Agreement. If the instructions result in additional work for Eartmasq, the Buyer is obliged to reimburse the additional or additional costs accordingly.
5. Eartmasq may require security from the Buyer or full payment in advance before proceeding to implement the Agreement.
6. Eartmasq is not liable for damage, of whatever nature, that has arisen because Eartmasq relied on incorrect and / or incomplete information provided by the Buyer, unless this inaccuracy or incompleteness was known to Eartmasq.
7. Buyer indemnifies Eartmasq against any claims from third parties who suffer damage in connection with the implementation of the Agreement and which are attributable to Buyer.

Article 6 – Prototype Product by pre-order

1. The Product offered by Eartmasq is a prototype that can be ordered by means of a pre-order reservation.
2. Eartmasq will periodically keep the Buyer informed of the developments regarding the Product to be developed.
3. If Eartmasq has not succeeded in realizing the Product within one year after the conclusion of the Agreement, Eartmasq is entitled to cancel the Agreement. In this case, the buyer will have the option to get a refund of the amount paid from Eartmasq.
4. The Buyer agrees that it concerns a prototype Product and that Eartmasq can cancel, refuse or postpone the Agreement if this is necessary according to Eartmasq. In this case, the buyer will have the option to get a refund of the amount paid from Eartmasq.
5. The Product has yet to be developed and several tests and evaluations will have to take place before the Product can be delivered. The Buyer agrees that the images and descriptions of the Product shown on the website and in all possible other expressions may differ from the end Product to be delivered.
6. Cancellation of the Agreement by the Buyer is excluded during the prototype phase. The right of withdrawal is also excluded because it concerns customization.

Article 7 – Delivery

1. If the start, progress or delivery or completion of the Agreement is delayed because, for example, the Buyer has not provided all requested information or has not provided sufficient cooperation, the (down) payment has not been received by Eartmasq on time or due to other circumstances beyond the power of Eartmasq if any delay arises, Eartmasq is entitled to a reasonable extension of the delivery / completion period. All agreed delivery terms are never strict deadlines. The buyer must give Eartmasq written notice of default and allow it a reasonable term to still be able to deliver or complete. The buyer is not entitled to any compensation due to the delay that has occurred.
2. The Buyer is obliged to take delivery of the goods at the time when they are made available to it in accordance with the Agreement, even if they are offered to it earlier or later than agreed.
3. If the Buyer refuses to take delivery or is negligent in providing information or instructions that are necessary for the delivery, Eartmasq is entitled to store the goods at the expense and risk of the Buyer.
4. If the Products are delivered by Eartmasq or an external carrier, Eartmasq is, unless otherwise agreed in writing, entitled to charge any delivery costs. These will then be invoiced separately unless explicitly agreed otherwise.
5. If Eartmasq requires information from the Buyer in the context of the performance of the Agreement, the delivery time will only commence after the Buyer has made all the information necessary for the performance available to Eartmasq.
6. If Eartmasq has specified a term for delivery, this is indicative. Longer delivery periods apply for deliveries outside the Netherlands.
7. Eartmasq is entitled to deliver the goods in parts, unless this is deviated from by Agreement or the partial delivery has no independent value.
8. Eartmasq is entitled to invoice the thus delivered separately.
9. Deliveries are only made if all invoices have been paid unless explicitly agreed otherwise. Eartmasq reserves the right to refuse delivery if there are well-founded fears of non-payment.

Article 8 – Packaging and transport

1. Eartmasq undertakes towards the Buyer to properly package the goods to be delivered and to secure them in such a way that they reach their destination in good condition during normal use.
2. Unless otherwise agreed in writing, all deliveries are made including sales tax (VAT), including packaging and packaging material.
3. Accepting goods without any comments or remarks on the consignment note or receipt counts as proof that the packaging was in good condition at the time of delivery.

Article 9 – Investigation, complaints

1. The buyer is obliged to inspect the delivered goods at the time of delivery, but in any case within 14 days after receipt of the delivered goods, but only to unpack or use them to the extent necessary to can assess whether she will keep the Product. In addition, the Buyer must investigate whether the quality and quantity of the delivered goods correspond to the Agreement and whether the Products meet the requirements that apply to them in normal (trade) traffic.
2. The Buyer is obliged to investigate and inform himself how the Product is to be used and, in case of personal use, to test the Product in accordance with the instructions for use. Eartmasq accepts no liability for the incorrect use of the Product by the Buyer.
3. Any visible defects or shortages must be reported in writing to Eartmasq after delivery at info@undergance.com. The buyer has a period of 14 days after delivery for this. Invisible defects or shortcomings must be reported within 14 days after discovery, but no later than 6 months after delivery. In the event of damage to the Product due to careless handling by the Buyer himself, the Buyer himself is liable for any depreciation of the Product.
4. If a complaint is made in time pursuant to the previous paragraph, the Buyer remains obliged to pay for the purchased goods. If the Buyer wishes to return defective goods, this will only take place with the prior written consent of Eartmasq in the manner indicated by Eartmasq.
5. If the Consumer uses his right of withdrawal, she will return the Product and all accessories, insofar as this is reasonably possible, in original condition and packaging to Eartmasq, in accordance with the return instructions of Eartmasq. The direct costs for return shipments are at the expense and risk of the Buyer.
6. Eartmasq is entitled to start an investigation into the authenticity and condition of the returned Products before reimbursement will take place.
   Refunds to the Buyer will be processed as soon as possible, but payment can take up to 30 days after receipt of the return shipment. Refunds will be made to the previously specified account number.
7. If the Seller exercises its right of complaint, it is not entitled to suspend its payment obligation or to settle outstanding invoices.
8. In the absence of a complete delivery, and / or if one or more Products are missing, and this is due to Eartmasq, Eartmasq will send the missing Product (s) or cancel the remaining order after a request from the Buyer. The confirmation of receipt of the Products is leading. Any damage suffered by the Buyer as a result of the (deviating) scope of the delivery cannot be recovered from Eartmasq.

Article 10 – Prices

1. During the validity period of the Offer, the prices of the Products being offered will not be increased, except in the event that there are changes in VAT rates.
2. The prices stated in the Offer include VAT, unless explicitly stated otherwise.
3. The prices as stated in the Offer are based on the cost factors applicable at the time of the conclusion of the Agreement, such as: the import and export duties, freight and unloading costs, insurance and any levies and taxes.
4. In the event of Products or raw materials of which there are price fluctuations on the financial market and over which Eartmasq has no influence, Eartmasq can offer these Products at variable prices. The Offer states that the prices are target prices and may fluctuate.

 

Article 11 – Payment and collection policy

1. Payment should preferably be made in advance in the currency in which the invoice is made via the indicated method. If expressly agreed, payment can also be made afterwards.
2. The buyer cannot derive any rights or expectations from a previously issued budget, unless the parties have explicitly agreed otherwise.
   The buyer must make a lump payment to the account number and data of Eartmasq made known to it. Parties can only agree on a different payment term after explicit and written permission from Eartmasq.
3. If a periodic payment obligation of the Buyer has been agreed, Eartmasq is entitled to adjust the applicable prices and rates in writing, with due observance of a period of 3 months.
4. In the event of liquidation, bankruptcy, seizure or suspension of payment of the Buyer, the claims of Eartmasq on the Buyer are immediately due and payable.
5. Eartmasq has the right to have the payments made by the Buyer stretch in the first place to reduce the costs, then to deduct the interest that has arisen and finally to reduce the principal sum and the current interest. Eartmasq can, without being in default as a result, refuse an offer for payment, if the Buyer indicates a different order for the allocation. Eartmasq can refuse full payment of the principal sum, if not also the open and accrued interest as well as the costs are paid.
6. If the Buyer does not fulfill its payment obligation and has not fulfilled its obligation within the payment term set for this, the Buyer, being a Company, is in default. Buyer, being a Consumer, will first receive a written reminder with a period of 14 days after the date of the reminder to still comply with the payment obligation, including a statement of the extrajudicial costs if the Consumer does not fulfill his obligations within that period, before they is in default.
7. From the date that the Buyer is in default, Eartmasq will, without further notice of default, claim the statutory (commercial) interest from the first day of default until full payment and reimbursement of the extrajudicial costs in accordance with Article 6:96 of the Dutch Civil Code, to be calculated according to the graduated scale from the decision. compensation for extrajudicial collection costs from 1 July 2012.
8. If Eartmasq has incurred more or higher costs that are reasonably necessary, these costs are eligible for reimbursement. The judicial and execution costs incurred are also at the expense of the Buyer.

Article 12 – Retention of title

1. All goods delivered by Eartmasq remain the property of Eartmasq until the Buyer has fulfilled all of the following obligations from all Agreements concluded with Eartmasq.
2. The buyer is not authorized to pledge or encumber in any other way the goods falling under the retention of title if the ownership has not yet been transferred in full.
3. If third parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Buyer is obliged to inform Eartmasq of this as soon as may reasonably be expected.
4. In the event that Eartmasq wishes to exercise its property rights referred to in this article, the Buyer gives unconditional and irrevocable permission and authorization to Eartmasq or third parties to be designated by it to enter all those places where the properties of Eartmasq are located and those items. also to take back.
5. Eartmasq has the right to retain the Product (s) purchased by the Buyer if the Buyer has not yet (fully) fulfilled its payment obligations, despite an obligation to transfer or hand over Eartmasq. After the Buyer has still fulfilled its obligations, Eartmasq will make every effort to deliver the purchased Products to the Buyer as soon as possible, but no later than 20 working days.
6. Costs and other (consequential) damage as a result of retaining the purchased Products are at the expense and risk of the Buyer and will be reimbursed to Eartmasq by the Buyer upon first request.

Article 13 – Warranty

Eartmasq guarantees that the Products comply with the Agreement, the specifications stated in the offer, usability and / or reliability and the legal rules / regulations at the time of the conclusion of the Agreement. This also applies if the goods to be delivered are intended for use abroad and the Buyer has explicitly notified the Seller of this use in writing at the time of entering into the Agreement.

Article 14 – Suspension and dissolution

1. Eartmasq is authorized to suspend the fulfillment of the obligations or to dissolve the Agreement, if the Buyer does not or not fully fulfill the (payment) obligations under the Agreement.
2. In addition, Eartmasq is authorized to dissolve the Agreement existing between it and the Buyer, insofar as it has not yet been performed, without judicial intervention, if the Buyer does not fulfill the obligations arising for him from any Agreement concluded with Eartmasq.
3. Furthermore, Eartmasq is authorized to dissolve the Agreement or have it dissolved without prior notice of default if circumstances arise which are of such a nature that fulfillment of the Agreement is impossible or, according to standards of reasonableness and fairness, can no longer be required or if circumstances arise otherwise are such that unaltered maintenance of the Agreement cannot be reasonably expected.
4. If the Agreement is dissolved, the claims of Eartmasq on the Buyer are immediately due and payable. When Eartmasq suspends fulfillment of the obligations, it retains its rights under the law and Agreement.
5. Eartmasq always reserves the right to claim compensation.

Article 15 – Limitation of liability

1. If the execution of the Agreement by Eartmasq leads to liability of Eartmasq towards the Buyer or third parties, that liability is limited to the costs charged by Eartmasq in connection with the Agreement, unless the damage has arisen due to intent or gross negligence. The liability of Eartmasq is in any case limited to the amount paid for the order of the Product.
2. Eartmasq is not liable for consequential damage, indirect damage, loss of profit and / or loss, missed savings and damage as a result of the use of the delivered Products is excluded. A restriction applies to the Consumer in accordance with what is permitted under Article 7:24 paragraph 2 of the Dutch Civil Code.
3. Eartmasq is not liable for and / or obliged to repair damage caused by the use of the Product. Eartmasq supplies strict maintenance and user instructions that must be observed by the Buyer. All damage to Products as a result of wearing and using is expressly excluded from liability (this includes traces of use, usage damage, fall damage, light and water damage, theft, loss, etc.).
4. Eartmasq is not liable for damage that is or may be the result of any act or omission as a result of (incomplete and / or incorrect) information on the website (s) or of linked websites.
5. Eartmasq is not responsible for errors and / or irregularities in the functionality of the website and is not liable for malfunctions or the website being unavailable for any reason.
6. Eartmasq does not guarantee the correct and complete transmission of the content of and e-mail sent by / on behalf of Eartmasq, nor the timely receipt thereof.
7. All claims of the Buyer due to shortcomings on the part of Eartmasq lapse if they have not been reported to Eartmasq in writing and with reasons within one year after the Buyer was aware or could reasonably have been aware of the facts on which it bases its claims. All claims of the Buyer lapse in any case one year after the termination of the Agreement.

Article 17 – Force of the majority

1. Eartmasq is not liable if it cannot fulfill its obligations under the Agreement as a result of a force majeure situation, nor can it be held to fulfill any obligation if it is prevented from doing so as a result of a circumstance that is not due to its fault and is not for its account under the law, legal act or generally accepted beliefs.
2. Force majeure is in any case understood to mean, but is not limited to what is understood in this regard in law and jurisprudence, (i) force majeure of suppliers of Eartmasq, (ii) failure to properly fulfill obligations of suppliers to Eartmasq by the Buyer. prescribed or recommended, (iii) defectiveness of goods, equipment, software or materials of third parties, (iv) government measures (as a result of a pandemic or epidemic), (v) power failure, (vi) failure of the internet, data network and telecommunication facilities ( for example by: cybercrime and hacking), (vii) natural disasters, (viii) war and terrorist attacks, (ix) general transport problems, (x) strikes at Eartmasq’s company and (xi) other situations that, in Eartmasq’s judgment sphere of influence that temporarily or permanently prevent the fulfillment of its obligations.
3. Eartmasq has the right to invoke force majeure if the circumstance that prevents (further) compliance occurs after Eartmasq should have fulfilled its obligation.
4. During the period that the force majeure continues, the parties can suspend the obligations under the Agreement. If this period lasts longer than two months, either party is entitled to dissolve the Agreement, without any obligation to pay compensation to the other party.
5. Insofar as Eartmasq has already partially fulfilled or will be able to fulfill its obligations under the Agreement at the time of the commencement of force majeure, and the part fulfilled or to be fulfilled respectively has independent value, Eartmasq is entitled to fulfill or fulfill the already fulfilled respectively. part to be invoiced separately. The Buyer is obliged to pay this invoice as if it were a separate Agreement.

Article 18 – Transfer of risk

The risk of loss or damage to the Products that are the subject of the Agreement transfers to the Buyer being a company at the moment the goods leave the warehouse of Eartmasq. For Consumers, the aforementioned risk will pass to the Buyer if the Products have been provided in the Buyer’s control. This is the case if the Products have been delivered to the delivery address of the Buyer.

Article 19 – Intellectual Property Rights

1. All intellectual property rights and copyrights of Eartmasq rest exclusively with Eartmasq and are not transferred to the Buyer.
2. The Buyer is prohibited from disclosing and / or multiplying, changing or making available to third parties all documents on which the intellectual property rights and copyrights of Eartmasq rest without the express prior written permission of Eartmasq. If the Buyer wishes to make changes to the goods delivered by Eartmasq, Eartmasq must explicitly agree to the intended changes.
3. The Buyer is prohibited from using the Products on which the intellectual property rights of Eartmasq rest other than agreed in the Agreement.

Article 20 – Privacy, data processing and security

1. Eartmasq handles the (personal) data of the Buyer and visitors to the website (s) with care. If requested, Eartmasq will inform the person concerned about this.
2. If Eartmasq is required to provide security for information on the basis of the Agreement, this security will meet the agreed specifications and a security level that is not unreasonable in view of the state of the art, the sensitivity of the data and the associated costs. .

Article 21 – Complaints

1. If the Buyer is not satisfied with the Products of Eartmasq and / or has complaints about the (performance of the) Agreement, the Buyer is obliged to report these complaints as soon as possible, but no later than 14 calendar days after the relevant cause that led to the complaint. . Complaints can be reported via support@eartmasq.com with the subject “Complaint”.
2. The complaint must be sufficiently substantiated and / or explained by the Buyer if Eartmasq is to be able to handle the complaint.
3. Eartmasq will respond substantively to the complaint as soon as possible, but no later than 14 calendar days after receipt of the complaint.
   The parties will try to find a solution together.

Article 22 – Applicable law

1. Dutch law applies to every Agreement between Eartmasq and Buyer. The applicability of the (CISG) Vienna Sales Convention is expressly excluded.
2. In the event of an explanation of the content and scope of these general terms and conditions, the Dutch text will always be decisive. Eartmasq has the right to unilaterally change these general terms and conditions.
3. All disputes arising from or in connection with the Agreement between Eartmasq and the Buyer will be settled by the competent court of Noord-Holland court, Alkmaar location, unless mandatory provisions of law lead to the jurisdiction of another court.

Alkmaar, September 29, 2020 – Translated by google – translation errors reserved