Dolphin Interconnect Solutions - Terms and conditions of sales agreement
The terms and conditions of sale contained herein constitute an agreement (“Agreement”) which shall apply to all quotations and offers made, and all purchase orders accepted, by Dolphin (“Dolphin” or “Seller”) in respect of any products to be sold by Seller (collectively, “Products”) to you (“Buyer”). Seller’s acceptance of any purchase order from Buyer in the form of an Order Confirmation is conditioned upon Buyer’s acceptance of this Agreement, regardless of whether Buyer accepts this Agreement in writing, by implication or by acceptance of and payment for any Products. This Agreement shall take precedence over and govern in case of any additional, different or conflicting terms and conditions in any purchase order(s) or any other form or correspondence of either Buyer or Seller. Additional, different or conflicting terms and conditions on Buyer’s purchase order or any other form or correspondence shall be of no effect. This Agreement, together with each Order Confirmation issued by Seller hereunder, constitutes the entire agreement between Seller and Buyer and supersedes all previous communications, whether oral or written. Unless there exist a modified mutual agreement already established between Seller and Buyer, this Agreement is final and cannot be altered in any way.
1. QUOTATIONS: Written quotations are valid for thirty (30) days from the date of the quotation. Verbal quotations are valid for 24 hours. All quotations must be accepted in writing. Buyer must correct clerical errors in writing.
2. PRICES: Prices are FCA (Incoterms 2000) Oslo, Norway and FOB Woodsville, NH, USA. All prices for Products are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions that are not a part of the original price quotation for such Products. Prices are subject to change without notice. Orders received on expired quotations may be subject to price adjustments. If Buyer does not purchase the entire quantity of Products upon which the applicable price quotation is based, Buyer agrees to pay the specified higher price for the quantity actually purchased. All prices for Products are exclusive of all federal, state and local excise, sales, value added, use and similar taxes, tariffs, customs and duties. Prices are consequently subject to increase by the amount of any such tax, tariff, custom fee or duty that Seller pays or is required to pay or collect upon sale or delivery of the Products. Any certificate of exemption or similar document or proceeding required to exempt the sale of the Products from any such tax, tariff, custom fee or duty shall be obtained by Buyer, at its sole expense.
3. PAYMENT TERMS: Payment terms are cash upon delivery, except where satisfactory open account credit is established, in which case terms of payment are normal net thirty (30) days from the date of invoice or as stated on the invoice. Open account credit must be established prior to the purchase of Products. Seller reserves the right at any time to revoke any credit extended to Buyer for any risk deemed good and sufficient by Seller. Seller will issue invoices on delivery in the case of all Products, and if deliveries are authorized in installments, each shipment shall be invoiced and paid when due without regard to other scheduled deliveries. Overdue payments shall be subject to finance charges computed at a periodic rate (to the extent permitted by law) of 1.5% per month (18% per year). In case of no-payment, Dolphin may choose to cancel the order on 30 days notice. Payment within this period cancels out the cancellation. No penalty clauses by the Buyer will be effective unless accepted in writing by a duly authorized officer of Dolphin. Amounts owed by Buyer with respect to which there is no dispute shall be paid without offset for any amounts which Buyer may claim are owed by Seller and regardless of any other controversies which may exist.
4. TITLE AND DELIVERY: Products will be shipped either from Oslo, Norway or Woodsville, NH. Ownership of, and risk of loss with respect to, the Products shall pass to Buyer upon delivery thereof by Seller to Buyer or to a carrier for shipment to Buyer, whichever is earlier, regardless of whether Seller will install or supervise the installment of the Products. Notwithstanding the foregoing, the parties acknowledge that ownership of Products consisting of software shall remain with Seller and Buyer’s rights in respect of such software will be as specified in a separate license agreement between Seller and Buyer. Buyer shall pay all shipment charges. Unless specific instructions to the contrary are supplied by Buyer, Seller will select the carrier and ship the Products to Buyer’s address indicated on the applicable purchase order. Seller will not assume any liability in connection with the shipment nor constitute any carrier as its agent. Buyer shall be responsible for making all claims with carriers, insurers, warehouses and others for non-delivery or loss within thirty days of shipment. Buyer does hereby grant to Seller a security interest in the Products as security for the performance by Buyer of all its obligations under this Agreement.
Shipping dates are approximate and are based upon prompt receipt by Dolphin of all necessary information. Partial shipment may be made unless Buyer instructs otherwise. If the order calls for the shipment of goods in separate lots or if partial shipments are made as authorized herein, this order shall be deemed an “installment order” within the meaning of the governing law.
5. Billing: Minimum billing is $50.00 (USD) or equivalent.
6. CANCELLATION: (a) Default. If Buyer is in default of this Agreement, Seller may decline to make further shipments and/or may terminate Buyer’s purchase orders without affecting Seller’s rights and remedies including, but not limited to, any right to cancellation charges and quantity price adjustments and any other amounts then due from Buyer to Seller. (b) Standard Products. Upon written notice to Seller, Buyer may cancel any purchase order for standard Products with a scheduled shipment date beyond thirty days from date of receipt by Seller of Buyer's cancellation notice. Buyer shall be liable for any quantity price adjustments resulting from such cancellation. Buyer shall also pay as a rescheduling/restocking charge, ten percent (10%) of the price for each canceled Product with a scheduled shipment date sixty days or less from date of receipt by Seller of Buyer's cancellation notice. For a purchase order for standard Products which is more than thirty days, but less than the applicable lead time, from its scheduled shipment date, Buyer may request in writing a one-time deferral of the scheduled shipment date for not more than ninety days, with no rescheduling/restocking charge imposed. However, if such purchase order is subsequently deferred or canceled, then the above-referenced rescheduling/restocking charge will be due. (c) Non-standard products or fiber optics. Orders for non standard products, fiber optics or products not normally stocked are non-cancelable, non-returnable (NCNR). (d) Custom Labeled Products. If Buyer cancels any purchase orders for standard hardware or software Products containing designs, markings, packaging, code or other specifications unique to Buyer, Buyer shall pay the following cancellation charges:
Percentage of Purchase Price to be Paid Upon Cancellation
Number of Days Before Scheduled Shipment Date that Written Cancellation Notice is Received
0 – 60
61 – 90
91 – 120
7. LIMITED WARRANTY: (a) Hardware Products. Seller warrants that the hardware Products to be delivered to Buyer, if properly used and serviced, will conform to Seller’s published specifications and will be free from defects in material and workmanship for one (1) year following the date of shipment of such Products to Buyer. If any hardware Product furnished by Seller fails to conform to the above warranty, Seller's sole liability and responsibility shall be at Seller's option to repair, replace or credit Buyer's account with an amount equal to the price paid for any such Product returned by Buyer to Seller during the applicable warranty period, provided that (x) Buyer promptly notifies Seller in writing that such Product failed to conform and furnishes a detailed explanation of any alleged deficiency, (y) such Product is returned to Seller's plant at Buyer's risk and expense within such warranty period, and (z) Seller is satisfied that claimed deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, repair or improper testing. If Seller determines that such Product fails to conform to the warranty following its evaluation thereof, Seller will reimburse Buyer for the transportation charges. Seller shall have a reasonable time to make repairs to, replace Products or credit Buyer's account. This limited warranty does not extend to any system or device into which a Product is incorporated. This limited warranty applies only to Buyer and may not be assigned or extended by Buyer to any of its customers or other users of the systems or devices referred to in the preceding sentence. Seller will not accept returns from Buyer’s customers or other users of such systems or devices. (b) DISCLAIMER OF WARRANTIES. THE FOREGOING EXPRESS LIMITED WARRANTY MADE BY SELLER IS EXCLUSIVE AND CONSTITUTES SELLER’S SOLE LIABILITY AND BUYER’S SOLE REMEDY WITH RESPECT TO THE PRODUCTS, AND IS IN LIEU OF ANY OTHER WARRANTIES, LIABILITIES AND REMEDIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITIES ON BEHALF OF SELLER IN CONNECTION WITH THE SALE OR USE OF ANY PRODUCT. NO COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR PRODUCT DESCRIPTION SHALL BE DEEMED TO ESTABLISH A WARRANTY, EXPRESS OR IMPLIED.
8. SAMPLING AND TESTING: Buyer shall make an examination and test of any products delivered hereunder immediately upon receipt at Buyer’s plant, and Buyer’s failure to give notice of any claim and return of eventual defect products as provided herein to Seller’s office within thirty (30) days after the receipt of such product at its plant shall be deemed as unqualified acceptance of said product.
9. REPAIRS: Prior to return of defective product, a return authorization number (RMA) must be obtained from Seller (email@example.com). Product repairs covered by warranty will be repaired or replaced at no charge. Product repairs not covered by warranty must be accompanied by a purchase order. Returned products must be sent to Sellers’s office by prepaid shipment and be packaged similarly to Seller’s standard packaging. Seller’s will pay the shipment cost for the return to Buyer. Seller will not be responsible for damage due to improper packaging of items returned by Buyer for repair.
10. RETURNED ITEMS: Orders are NCNR, Non-Cancelable, Non-Returnable unless sold under an evaluation clause. No item will be accepted without prior written authorization and as otherwise required under these Terms and Conditions. Items returned due to the fault of Seller will be allowed full credit. Items built to the Buyer’s specifications may not be returned. In order to receive credit, products must be returned to Dolphin, in same condition as received within thirty (30) days after received by Buyer.
11. INTELLECTUAL PROPERTY INDEMNIFICATION: Seller shall indemnify Buyer from and against any damages finally settled or awarded by a court of competent jurisdiction resulting from any direct infringement of any U.S., Canadian, Japanese or European Union member country issued patents or registered copyrights or trademarks of a third party by a Product as delivered by Seller, provided Seller is promptly advised in writing of any such claim or action, Buyer provides Seller with reasonable assistance for the defense thereof, and Seller has sole control of the defense of any such action and all negotiations for its settlement or compromise. If at any time, use of the Product is enjoined or is discontinued because of a settlement, Seller shall have the right, but not the obligation, at its sole option and expense, to either procure for Buyer the right to continue using the Product, replace or modify the Product so that it becomes non-infringing or grant Buyer a credit for the Product as depreciated, and accept its return. Seller shall not have any liability to Buyer if the infringement or other violation of a third party right is based in any way upon (i) the use of a Product in combination with other components, equipment or software not furnished by Seller; (ii) use of a Product in any process; (iii) any Product which has been modified or altered; (iv) the manner in which the Product is used even if Seller has been advised of such use; or (v) Seller's compliance with the Buyer's designs, specifications or instructions. Notwithstanding the foregoing, Seller shall not indemnify or hold Buyer harmless from or against any liabilities, losses, damages or expenses (including attorneys’ fees) relating to any claims whatsoever, including without limitation, claims for personal injuries, death or property damage relating to the Products sold hereunder. The purchase, receipt or possession of a Product from or through Seller carries no license or immunity, express or implied, under any patent of Seller covering the combination of such Product with other products or the use of any such combination, or under any patent or other intellectual property right of any third party relating to the Product or its combinations with any other products. Buyer shall indemnify Seller from and against any damages finally settled or awarded by a court of competent jurisdiction resulting from any direct infringement of any U.S., Canadian, Japanese, or European Union member issued patents or registered copyrights or trademarks of a third party by a Product arising as a result of Seller’s compliance with the Buyer’s designs, specifications or instructions or modification of a Product by Buyer or the use of a Product in combination with other components, equipment or software not furnished by Seller, provided Buyer is promptly advised in writing of any such claim or action, Seller provides Buyer with reasonable assistance for the defense thereof, and Buyer has sole control of the defense of any such action and all negotiations for its settlement or compromise.
12. ASSIGNMENT: Buyer may not assign this Agreement in whole or in part without Seller’s prior written consent, except that if the assets or stock of Buyer become owned or controlled, directly or indirectly, by a third party, Buyer may assign its entire right, title and interest in this Agreement to such third party upon prior written notification to Seller, provided that such third party agrees to be bound by all the terms and conditions of this Agreement. Any assignment by Buyer in violation of the foregoing will be null and void. This Agreement shall be binding upon and shall inure to the benefit of the permitted successors and assigns of the parties.
13. FORCE MAJEURE: Seller shall not be liable for any loss or damage resulting from any delay in delivery or failure to give notice of delay when such delay is due to any cause or event beyond Seller’s reasonable control, including, without limitation, acts of nature, unavailability of supplies or sources of energy, riots, wars, fires, strikes, terrorist acts, labor difficulties, delays in transportation, delays in delivery or defaults by Seller's vendors, or acts or omissions of Buyer. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of such delay and Buyer shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay. If, as a result of any such cause, any scheduled delivery is delayed for a period in excess of one hundred and twenty days, Seller or Buyer shall have the right by written notice to the other to cancel the purchase order for the Products subject to the delayed delivery without further liability of any kind.
14. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, COVER, LOSS OF OR INTERRUPTION OF BUSINESS OF BUYER OR ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE PRODUCTS OR ANY OTHER CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS ACCRUED. IN NO EVENT SHALL THE ACCRUED TOTAL LIABILITY OF SELLER FROM ANY LAWSUIT, CLAIM, WARRANTY OR INDEMNITY EXCEED THE AGGREGATE SUM ACTUALLY PAID TO SELLER BY BUYER UNDER THE APPLICABLE PURCHASE ORDER THAT GIVES RISE TO SUCH LAWSUIT, CLAIM, WARRANTY OR INDEMNITY.
15. GOVERNING LAW: This Terms and Conditions shall be governed by Norwegian Law for Products shipped from Norway and governed by laws of the State of New Hampshire for products shipped from New Hampshire, USA - without regard to conflicts of law.
16. DISPUTE RESOLUTION: In the event of any controversy or dispute between Seller and Buyer, the parties hereby agree to the dispute resolution procedure set forth in this Agreement. If a dispute is not otherwise resolved between the Seller and Buyer within thirty days from the date of the first written request of a party, the parties agree, at the written request of either party, to submit the dispute to a single arbitrator. For Products shipped from Norway, submission is to be made to Oslo Chamber of Commerce to be settled by arbitration in accordance with the Rules of the Arbitration Institute of the Oslo Chamber of Commerce. Products shipped from New Hampshire, USA, submission is be to City of Concord, New Hampshire for resolution by binding arbitration under the rules of the American Arbitration Association. Any award of the arbitrator shall be enforceable under any court having jurisdiction thereof. The costs of the arbitration will be borne by the respective parties, except that the cost of the arbitrator will be shared equally by the parties.
17. EXPORT COMPLIANCE:
- Buyer understands that U.S origin commodities, software, and/or technology, exported from the U.S., and/or foreign manufactured products made with U.S. origin technology of more than de-minimis U.S. component content are subject to U.S. re-export laws. In the event of re-export, Buyer will ensure that the required permissions (license, license exceptions, etc., as applicable) will be obtained.
- Buyer certifies that Dolphin products or technology will not be used, sold or incorporated into products used directly or indirectly, in design, development, production, maintenance, stockpiling, detection, identification or use of nuclear weapons (including activities related to nuclear explosive devices, nuclear reactors, and nuclear fuel-cycle activities), chemical or biological weapons, missiles (including cruise and ballistic missile systems, space launch vehicles, sounding rockets, target drones, remotely piloted vehicles, and reconnaissance drones), and maritime nuclear propulsion projects except as authorized under applicable laws and regulations.
- Buyer certifies that Dolphin products will not be sold or incorporated into products for use by military, police and intelligence entities or for any space applications except as authorized under applicable laws and regulations.
- Buyer certifies that Dolphin products or technology will not be used directly or indirectly, sold or incorporated into products for foreign vessels or aircrafts except as authorized under applicable laws and regulations.
- Buyer certifies that Dolphin products or technology will not be used directly or indirectly, sold or incorporated into products for the benefit of persons and entities named on the EU, US or other Government Restricted Party or Denied Party list (RPL, DPL).
- Buyer certifies that Dolphin products or technology will not be exported or re-exported (directly or indirectly), diverted, or transshipped to or via any country in violation of any US, U.N or EU embargo, nor will Dolphin products or technology in their original state be shipped or moved to a Free Trade Area/Zone without appropriate licenses being issued by relevant authorities.
- Buyer certifies that it will not export or re-export the Products or any technical data furnished by or on behalf of Seller hereunder unless it complies fully with all applicable federal, state and local laws, regulations and ordinances including, without limitation, the regulations of the United States Government, including but not limited to the U.S. Export Administration Act and the U.S. Export Administration Regulations.
FEDERAL CONTRACT TERMS: In any contract entered into with the United States federal government, or in any contract entered into with any other party which is a subcontract or at any tier of one entered into with the U.S. federal government: (i) only those clauses of the federal acquisition regulations which the regulations themselves mandate for a party in Seller's position, given all relevant limitations including Seller's status as a customer or a subcontractor and the size and type of contract, apply; and (ii) Seller retains proprietary rights in all technical data and computer software provided under such contract. Only limited rights or restricted rights are provided to the U.S. federal government under the narrowest provision of those rights that the regulations allow, and no rights (including rights of audit of Seller's cost or pricing data) are provided to any other party, including the prime contractor or any higher tier subcontractor.
USE IN CERTAIN APPLICATIONS: Products sold by Seller are not designed for (i) use in life support and/or safety or other equipment where malfunction of the product can reasonably be expected to result in personal injury or death, including without limitation, medical implantation or other direct life support (collectively, “Life Support Applications”) or (ii) commercial aviation, nuclear materials, or other hazardous activities (collectively, “Hazardous Applications”). If Buyer chooses to use or sell such Products for use in Life Support Applications or Hazardous Applications at Buyer's own risk, Buyer agrees to defend, indemnify and hold Seller harmless from any and all damages, claims, suits or expense resulting from such use.
If you have questions, please contact Dolphin.