1 DEFINITIONS
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 thirty (30) 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may be withdrawn or revised at any time prior to DEC’s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.

3 PRODUCT INFORMATION
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 PRICE
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 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 PAYMENT
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
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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 the
Products 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.
6.9 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 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 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 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 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
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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, nontransferable,
non-exclusive licence (with the right to sublicence
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, nontransferable,
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.

11 WARRANTY
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 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 liability 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 LIABILITY
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: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;
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12.2.7 Wasted management or staff time; and/or
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.

13 TERMINATION
13.1 DEC shall be entitled to terminate the Contract without
liability to the Customer by giving notice to the Customer
at any time if:
13.2 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
13.3 the Customer ceases, or threatens to cease, to carry on
business; or
13.4 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
13.5 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 GENERAL
14.1 DEC may assign or transfer or purport to assign or
transfer to any other person any of its rights or subcontract
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.