Terms & Conditions
- General Provisions. These Terms and Conditions of Sale (referred to herein as these “Terms” or the “Agreement”) govern the sale of the products (collectively, the “Products”) offered for sale by NCLOSD Masks, LLC, a Delaware limited liability company (“Seller”), on its website, https://nclosd.com (the “Website”). Seller objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by buyer (“Buyer”) to Seller. No such additional or different terms or conditions will be of any force or effect. These Terms will be the entire agreement between Seller and Buyer on the subject of the transaction described herein; there are no conditions to the Agreement that are not so contained or incorporated. By placing an order for the Product(s) through the Website, Buyer consents to these Terms and acknowledges that Seller will only furnish the Product(s) subject to these Terms.
- Orders and Acceptance. All orders are subject to Seller’s acceptance or rejection. When Buyer places an order on the Website, such order will not be deemed accepted by Seller unless and until an order confirmation is sent by Seller to Buyer via email (“Order Confirmation”) and Buyer’s order has been shipped by Seller. Seller may refuse to accept or may cancel any order, whether or not the order has been confirmed (via an Order Confirmation or otherwise), for any or no reason, and without liability to Buyer or anyone else. Orders accepted by Seller may not be cancelled by Buyer without Seller’s express written consent, which Seller may withhold in its sole discretion. All orders are subject to the availability of the ordered Product(s). Seller reserves the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue Products without notice, even if Buyer has already placed an order through the Website. Also, even if an order has been accepted, Seller may subsequently cancel such order in whole or in part due to Product non-availability (including, without limitation, due to discontinuation of the Product), price change, incorrect pricing displayed on the Website, or as otherwise determined by Seller in its sole discretion. If Buyer chooses to purchase a Product, Buyer must designate and provide information about Buyer’s preferred payment method (e.g., credit card, debit card, PayPal, Apple Pay or any other payment method made available by Seller (each, a “Payment Method”). If Buyer’s Payment Method has already been charged for an order that is later cancelled by Seller, Seller will issue Buyer a refund.
- Pricing and Taxes. All Product prices on the Website are shown in United States dollars. All Product prices are subject to change by Seller without notice and exclude Taxes and shipping and handling charges (if applicable). The prices quoted for the Product(s) on the Website do not include any foreign, federal, state or local sales, use, value-added, excise, gross receipts, personal property, or any similar transaction or consumption taxes, tariffs, duties or other charges imposed on or measured by the use, sale or ownership of Products (collectively, “Taxes”). Buyer shall pay, and reimburse Seller if Seller pays, any and all applicable Taxes, except for those Taxes imposed on Seller that are based on Seller’s net income. If Seller is required by any governmental authority or agency to collect and pay any Taxes on Buyer’s behalf, Seller may charge such amounts, including any interest or penalty assessed thereon, to the Payment Method Buyer chose to purchase the Product, and Buyer agrees to pay and be responsible for such charges.
- Payment. All orders must be paid in full prior to shipment of any Products. Seller accepts most major credit cards and debit cards. Buyer must submit payment information upon the placement of any order, and fulfillment and shipping of the order is subject to verification of payment information and availability of funds. By submitting an order, Buyer (a) confirms Buyer is authorized to use the designated Payment Method and (b) authorizes Seller to charge the order (including applicable Taxes, any shipping and handling charges, and any other amounts described in these Terms or on the Website) to that Payment Method. If the Payment Method cannot be verified, is invalid, or is not otherwise acceptable, Buyer’s order may be suspended or cancelled automatically.
- Website Errors. Seller does its best to ensure that all the information on the Website about the Products is accurate and up to date. In the event that an error is made that affects Buyer’s order, whether on the Website, in an Order Confirmation, in processing an order, shipping a Product to the specified destination or otherwise, Seller will correct such error and revise Buyer’s order accordingly, if necessary. Seller will give Buyer notice of all changes made and, if Buyer does not agree to any of the changes made, Buyer may cancel its order and request a refund. Buyer’s exclusive remedy, and Seller’s sole obligation, in the event of such an error, is for Seller, upon Buyer’s request, to cancel the order and provide Buyer with a refund.
- Delivery, Claims and Force Majeure. Products shall be delivered to Buyer F.O.B. Seller’s or its manufacturer’s or third party logistics provider’s loading dock (as defined in the Maryland Uniform Commercial Code) or, for ultimate destinations outside of the U.S., EXW Seller’s or its manufacturer’s or third party logistics provider’s loading dock (as the latter shipping term is defined in Incoterms 2020). As between Buyer and Seller, responsibility for costs of shipping will be as set forth on the Website as in effect upon the date of purchase. Delivery of Products to a common carrier will constitute delivery to Buyer, and regardless of shipping terms or freight payment, Buyer will bear all risk of loss or damage in transit. Claims for shortages or other errors in delivery must be made in writing to Seller within 10 calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss of or damage to Products in transit must be made to the carrier, and not to Seller.
All delivery dates are approximate. Seller will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, whether foreseeable or unforeseeable, including, but not limited to, any act of God, act of Buyer, embargo or other governmental act, epidemic, pandemic, quarantine, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. For the avoidance of doubt, the foregoing includes, without limitation, any delays or failures attributable in whole or in part to the global COVID-19 pandemic. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay.
- Changes. At Seller’s sole discretion, Seller may make any changes in the design of or specifications for, or in the way we manufacture or produce, any Product if such changes are necessary or desirable to improve the safety, performance or other aspect of such Product. Further, Seller may furnish suitable substitute Products or components for Products or components which are unobtainable by Seller because of any priorities, rules, orders, regulations or the like established by governmental authorities or agencies, or due to price changes or the non-availability of materials or components from Seller’s suppliers.
- Not for Resale. Buyer agrees and represents that it is buying the Product(s) for Buyer’s own personal use and not for resale unless otherwise agreed in writing by Seller.
- Intellectual Property. All intellectual property rights (including, without limitation, patents, trademarks, registered designs and any rights to apply for same, copyright, design rights, database rights, rights in and to confidential information and know-how) and any rights analogous to the same anywhere in the world and existing at any time in Products or arising out of or relating to the design or manufacture of Products shall belong to and remain vested in Seller. Nothing in the Agreement grants to Buyer any right, title or interest in or to Seller’s intellectual property.
- No Returns. Except as otherwise agreed to in writing by Seller, no Products will be accepted for return.
- Warranties. Seller warrants that the Products shall be free of defects in materials and workmanship, in each case for one (1) year after the delivery of the Products to Buyer by Seller (the “Warranty Period”). If, within the Warranty Period, any such Products shall be proved to Seller’s satisfaction to be non-conforming or defective, Seller shall, at its option: (a) repair or replace the Product(s) free of charge, at Seller’s expense and risk of loss, and send such repaired or replaced Product to Buyer; or (b) refund to Buyer the price paid by Buyer for such defective Product(s). Such repair, replacement or refund (whichever Seller determines, in its discretion, to provide) shall be Seller’s sole obligation and Buyer’s exclusive remedy for any deficiency in the Product(s) furnished hereunder, and shall be conditioned upon Buyer’s return of such Product(s) to Seller at Buyer’s expense and risk of loss. Any Product(s) repaired or replaced under this warranty are warranted only for the balance of the Warranty Period on the original Product that was repaired or replaced.
[Version 1 – Pre-Testing] ACKNOWLEDGEMENT. Buyer hereby acknowledges, recognizes, and accepts that the Products do not comply with the requirements for Medical Devices promulgated by the United States Food and Drug Administration (the “FDA”) or any other medical mask or respirator requirements required under applicable laws, rules, regulations or guidelines and that the Products are NOT INTENDED FOR A MEDICAL PURPOSE.As the Products are not approved, cleared, or authorized by the FDA, Seller does not represent that the Products will prevent against infection by bacteria, virus, or other pathogens, including the infection by SARS-CoV-2, which virus causes COVID-19.
THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
- LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, PUNITIVE INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute Products, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages, costs or losses. Seller shall not be liable to Buyer for any amount with respect to any order of Products that, in combination with all claims by Buyer against Seller related to such order of Products, exceeds the total price paid by Buyer to Seller for such order of Products. SELLER WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. The liability of Seller to Buyer, whether in contract, tort (including negligence or strict liability) or otherwise, is exclusively limited to the remedies expressly provided under the terms of the Agreement, in lieu of any and all other remedies at law or in equity.
- BUYER’S INDEMNITY. Buyer shall indemnify, defend and hold harmless Seller and its officers, members, managers, agents, employees, successors and assigns from and against any and all losses, damages (including damages arising from personal injury or death), liabilities, costs and expenses (including attorneys’ fees) that may arise out of Buyer’s acts or omissions, including, but not limited to: (a) any breach by Buyer of the Agreement; (b) any violation by Buyer of any law, rule or regulation; (c) any resale of the Products by Buyer; (d) any use of the Products by Buyer or any of its employees or agents, including, without limitation, use resulting in the contraction or spread of any illness, disease, infection, cold, virus or other pathogen, including COVID-19 and/or (e) any negligence or willful misconduct of Buyer. Seller shall give Buyer written notice of any claim for which indemnification is sought under the Agreement, provided that the failure to give such written notice shall not, however, relieve Buyer of its indemnification obligations, except and only to the extent that Buyer forfeits rights or defenses by reason of such failure. Seller, may, at Seller’s option, assume and control the defense of the claim, and in such case, Buyer shall indemnify Seller from and against losses, damages, costs and expenses (including attorneys’ fees, court fees, and other defense costs) incurred by Seller in defending such claims. If Seller decides not to assume the defense of a claim, then Buyer shall assume and control the defense of such claim, at Buyer’s expense and by Buyer’s own counsel (which counsel shall be subject to the approval of Seller, which approval will not be unreasonably withheld or delayed); provided that Seller shall have the right to participate in the defense of any claims with counsel selected by it at Seller’s expense. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any claims. Notwithstanding any other provision of this Agreement, Buyer shall not consent to the entry of any judgement or enter into any settlement of any claims without the prior written consent of Seller.
- ASSUMPTION OF RISK RE: COVID-19; RELATED NOTIFICATIONS. SELLER SHALL NOT BE LIABLE FOR, AND HEREBY DISCLAIMS, ANY AND ALL INJURIES, LIABILITIES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY AND ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE AND CONTINGENT DAMAGES), TO BUYER, ITS EMPLOYEES OR AGENTS OR TO ANY THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR USE OF THE PRODUCTS OR ARISING OUT OF THE CONTRACTION OR SPREAD OF ANY ILLNESS, DISEASE, INFECTION, COLD, VIRUS OR OTHER PATHOGEN, INCLUDING COVID-19, IN CONNECTION WITH THE PRODUCTS, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES OF LAW OR EQUITY, EVEN IF BUYER HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Buyer hereby assumes, and releases Seller from, any and all such injuries, liabilities, and damages now existing or hereafter arising. BUYER ACKNOWLEDGES, AND ACCEPTS FULL RESPONSIBILITY FOR INFORMING ANY WEARER OF THE PRODUCTS, THAT THE PRODUCTS WILL NOT NECESARILLY PREVENT THE SPREAD OF SARS-COV-2 NOR PROTECT WEARERS FROM CONTRACTING COVID-19.
- Government Contracts. If the provision of Products by Seller under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. or any state government, Buyer shall so notify Seller in advance of order acceptance specifying the mandatory provisions of U.S. or state law which apply.
- Cumulative Remedies. Seller’s rights and remedies under the Agreement are cumulative and in addition to all other rights and remedies available to Seller at law or in equity.
- No Assignment. Buyer shall not assign its rights or delegate its duties under the Agreement. Any such attempted assignment or delegation shall be null and void.
- Confidential Information. Any and all designs, sketches, models, or samples, drawings, bills of materials, blueprints, plans, devices, machinery, specifications, processes, techniques, expertise, business and financial records, part numbers, plans and projections, and other similar information, items, documents and materials made available by Seller or its affiliates to Buyer or its affiliates, or otherwise acquired, obtained or developed by Buyer under or in connection with these Terms (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Seller. “Confidential Information” shall not include any item of information that Buyer can demonstrate by documentary evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Buyer or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Buyer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. During the Confidentiality Period, Buyer agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in these Terms; or (ii) disclose the Confidential Information to any third party. The “Confidentiality Period” shall mean, for all Confidential Information that constitutes a ‘trade secret’ under applicable law, the period beginning on the date of disclosure to Buyer and ending on the later of (x) the date such Confidential Information is no longer a trade secret under applicable law, or (y) the date that is 3 years after the date of Buyer’s last Order Confirmation; and shall mean, for all other Confidential Information, the period beginning on the date of disclosure to Buyer and ending 3 years after the date of Buyer’s last Order Confirmation. Buyer acknowledges and agrees that money damages for any and all breaches of Buyer’s obligations under this Section are both incalculable and insufficient and that any such breach would irreparably harm Seller. Therefore, in the event of an actual or prospective breach of any such obligation, Seller shall be entitled to seek a permanent and/or preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Section against Buyer in addition to any other remedies to which Seller may be entitled at law or in equity.
- Relationship of Parties. Buyer and Seller are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.
- Governing Law and Venue. THE AGREEMENT AND ANY DISPUTE ARISING HEREFROM WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF MARYLAND AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Buyer and Seller each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with this Agreement will lie in the United States District Court for the District of Maryland or the courts in the State of Maryland sitting in or proximate to Chevy Chase, Maryland and each party hereby irrevocably and unconditionally submits to the sole and exclusive personal jurisdiction of such courts.
UPDATES. THESE STANDARD TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF SELLER UPON WRITTEN NOTICE TO BUYER.