TERMS & CONDITIONS OF SALE OF GOODS
“Dolphin” means Dolphin Machine, LLC, with a usual place of business located at 2939 Brookspark Drive, North Las Vegas, NV 89030, selling the Product covered by the General Terms and Conditions of Sale (the “Terms”) set forth in this document.
The term “Buyer” means a person or company that submits a written order (a “Purchase Order,” or “PO”) or who receives and accepts a Dolphin quotation. Dolphin and the Buyer are sometimes referred to in these Terms jointly as the “Parties” and severally as a “Party.”
The terms “Product” and “Products” mean the Product or Products proposed for sale by Dolphin. Dolphin acceptance of a PO from the Buyer and/or the Buyer’s written acceptance of a price quotation are both referred to as an “Acceptance.”
“Incoterms® 2010” means the 2010 edition of the International Commercial Terms published by the International Chamber of Commerce.
1. Formation of Contract, Purchase Order, and Acceptance. A binding, non-cancellable contract for the sale of Products (an “Accepted Order”) is formed when the following three (3) events occur:
- Dolphin issues a quotation in response to an inquiry from a Buyer or a Buyer submits a PO (or a Release under an existing Blanket Order) to Dolphin;
- the Buyer accepts Dolpin’s quotation or Dolphin accepts the Buyer’s PO in writing or ships a Product in response to the Release; and
- these Terms are included as part of the Accepted Order.
Dolphin’s agreement to sell the Products specified in the Accepted Order is expressly conditioned upon acceptance of these Terms. Dolphin hereby objects to any additional or different terms and conditions contained in the Buyer’s PO, none of which shall be binding upon Dolphin unless specifically agreed to in writing signed by an authorized representative of Dolphin. Failure by Dolphin to object to a specific provision contained in the Buyer’s PO shall not in any way be deemed an alteration to or waiver of any one of these Terms. Dolphin’s acceptance of the Buyer’s PO can be made only by written Acceptance. In the event of a conflict between a provision of these Terms and the Accepted Order, the provision in the Accepted Order shall take precedence.
2. Prices & Shipments. All shipments are EXW (Incoterms® 2010) Dolphin’s shipping point, where title and risk of loss will pass from Dolphin to the Buyer. Payment will be in US Dollars. The Buyer is responsible for all costs of transport and insurance unless the Buyer requests that such items be included as part of the Purchase Order and Dolphin accepts. Prices do not include any goods, services, technical data, documentation, proprietary rights, installation assistance, or testing that are not specifically stated in the Accepted Order. Prices are valid for 30 days from the date on a quotation unless otherwise stated on the face of the quotation.
3. Legal Compliance, Taxes & Other Charges. The Parties agree to comply with all applicable laws, rules, and regulations (including but without limitation International Traffic in Arms Regulations (“ITAR”), Export Administration Regulations (“EAR”), and Foreign Corrupt Practices Act (“FCPA”), and FCPA). Unless otherwise stated in the Accepted Order, the Buyer is responsible for the ultimate payment of all federal, state, local, foreign or provincial, present or future, sales, revenue, or excise tax, value added tax, turnover tax, import duty (including brokerage fees) or other tax, however characterized, applicable to the manufacture or sale of any Product (“Sales Taxes”). The prices for Products do not include Sales Taxes, which will be added to the sales price where Dolphin has a legal obligation to collect them. If the Buyer is exempt, the Buyer shall provide Dolphin with the documentation necessary to support such a claim and to allow Dolphin to document its decision not to collect such Tax.
4. Changes. Thirty (30) days or more prior to the scheduled initial shipment date the Buyer may request changes to an Accepted Order and Dolphin will quote the changes in price, time of delivery, or other terms that may result from the requested change. The proposed change shall not become effective unless and until the Buyer issues a PO recording the change and Dolphin has confirmed its acceptance in writing. No change will be accepted if it would result in (i) a delay of the Accepted Order’s initial shipment by more than six (6) months of the date of the PO, or (ii) the Accepted Order’s not being completed, with all shipments made, within one (1) year from the date of the Accepted Order.
5. Delivery Dates. Dolphin will make reasonable commercial efforts to meet the delivery date(s) quoted, however, Dolphin does not assume liability, consequential or otherwise, because of any delay or failure to deliver all or part of an order for any reason. If Dolphin needs information, sample material, or documentation from the Buyer in order to manufacture the Products, then all delivery dates are predicated upon prompt and timely receipt from the Buyer of the necessary information, sample material, documentation etc.
6. Credit & Payment Terms. Payment terms are net thirty (30) days from date of shipment, when full payment for the entire shipment will be due, unless other arrangements are specifically stated in the Accepted Order. All payment terms are conditioned upon approval of the Buyer’s credit and may be withdrawn or amended at any time by Dolphin at its discretion. Dolphin reserves the right to change the credit terms provided herein, refuse shipment or cancel unfilled orders at any time when, in its opinion, the financial condition or previous payment record of the Buyer so warrants. The Buyer will pay Dolphin a $100 administrative fee in each case when the Buyer’s payment is rejected by the bank or other entity processing payment. No cash discounts for early payment will be granted unless specifically stated in the Accepted Order. The Buyer will be delinquent if payment is not remitted according to the applicable terms. Interest shall accrue on delinquent invoices at the rate of 1.5 percent per month, subject to applicable laws, on the amount of the unpaid balance from the original due date of the invoice. In the event Dolphin refers delinquencies to an attorney or an agent for collection, the Buyer shall pay all costs of collection, including reasonable attorney’s fees. Should the Buyer become delinquent in the payment of any sum due hereunder, Dolphin reserves the right to terminate or suspend performance of the Accepted Order.
7. Packaging and Shipping. Dolphin shall (i) ship all of the Products covered by the applicable PO within one year from the date of the PO; (ii) ship in accordance with the instructions appearing on the face of the Purchase Order, using its best commercial efforts to ship no more than seven (7) days prior to or three (3) days later than the dates requested; and (iii) place the applicable PO number on all packaging and shipping documents.
8. Ethics. Dolphin is committed to uncompromising ethical standards, strict adherence to laws and regulations, and customer satisfaction. Both Parties will comply with all applicable national, state, provincial, and local laws, ordinances, rules and regulations including but not limited to those relating to providing, attempting to provide, or offering to provide any kickback (as defined in the AntiKickback Act of 1986), the Foreign Corrupt Practices Act or any other applicable national, state or local laws regarding kickbacks or commercial bribery.
9. Acceptance Criteria & Documentation. Unless the Parties agree in advance on a written acceptance test, the Buyer agrees to accept the Products upon delivery to the EXW location. Within seven (7) business days of delivery to the EXW location, the Buyer must inspect the Products and notify Dolphin by e-mail of any obvious physical defects, or quantity underages or overages. Acceptance, however, does not affect the Buyer’s warranty rights under Section 11 as set forth below.
10. Specifications. Buyer will provide a copy of the Specifications for the Products with its request for a quotation and those Specifications will be the only specifications applicable to the Accepted Order. If the Parties have agreed in the Accepted Order to modify the Specifications to meet the Buyer’s particular application, then the Specifications will be deemed to be the Specifications as so modified. The Buyer agrees that Products conforming to the specifications will be adequate for the purpose intended by the Buyer, and the Buyer is not relying on any superior knowledge of Dolphin.
11. Limited Warranty: Except if specifically otherwise set forth in these Terms, Dolphin warrants that its Products will be free from defects in materials and workmanship and will conform to the Specifications for a period of one (1) year from the date of delivery of the Products to the EXW location. Dolphin will repair or replace, at its option and at its expense, a Product returned by the Buyer under a valid Return Material Authorization (“RMA”) issued by Dolphin that is determined by Dolphin to have a defect in materials and/or workmanship that makes it not in compliance with the Specifications. This warranty is void if the Product is damaged by misuse, mishandling, disassembly, improper installation, installation in a system with which it is not compatible, neglect, accident, modification, contamination, or testing or handling by any party not under the direct control of Dolphin. “Misuse” includes both the use of Dolphin Products with incompatible third-party products resulting in damage to the Dolphin Product, and also exposure to temperatures, pressures, humidity or other conditions for which it was not designed, as set forth in the Specifications. The Buyer is responsible for any shipping and handling charges for returning Products for repairs. Dolphin is responsible for charges for shipping Products repaired under warranty back to the Buyer. Dolphin will choose the carrier and level of service. The Buyer is responsible for repair charges and all shipping charges for repairs determined by Dolphin to be non-warranty repairs. All repairs are warrantied for a period of 90 days or the remainder of the original warranty period, whichever is longer, for the repaired portion of the Product. Dolphin’s sole liability for any use of its Products, regardless of the operating condition of such Products, is limited to repair or replacement of the Product. The Buyer holds harmless and indemnifies Dolphin from any and all other claims resulting from the use of Dolphin Products. The benefit of this Warranty shall apply only to the Buyer. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DOLPHIN DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS.
12. Exclusive Remedies. THE REMEDIES PROVIDED HEREIN ARE THE BUYER’S SOLE AND EXCLUSIVE REMEDIES. NEITHER DOLPHIN NOR THE BUYER SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST BUSINESS OPPORTUNITY, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY ARISING OUT OF THE SALE, INSTALLATION, SERVICE, OR USE OF THE PRODUCTS, EVEN IF DOLPHIN HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSSES. IN NO EVENT SHALL DOLPHIN’S LIABILITY EXCEED THE AMOUNT THAT HAS THEN BEEN PAID TO DOLPHIN BY THE BUYER FOR THE DEFECTIVE PRODUCTS UNDER THE PO IN QUESTION. DOLPHIN NEITHER ASSUMES NOR AUTHORIZES ANY AGENT, EMPLOYEE, REPRESENTATIVE, OR ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, SERVICE OR USE OF ITS PRODUCTS.
13. Patents, Indemnification. The Buyer shall at its own cost and expense defend and hold Dolphin harmless against any expense, judgment or loss for alleged infringement of any claim of a patent which results from Dolphin’s compliance with the Buyer’s drawings, designs, specifications, or instructions.
14. Confidentiality. Both Dolphin and the Buyer agree not to disclose to any party not having a legitimate need to know in connection with the implementation of the Purchase Order any information of the other party, respectively, that is identified in writing at the time of initial disclosure as “confidential,” “proprietary,” “company private,” or other word of similar meaning.
15. Authority to Export. In the performance of an Accepted Order, Dolphin shall comply with all applicable local, state, national, and federal laws and regulations and executive orders issued pursuant thereto, including U.S. and UK export control laws. Dolphin shall not transmit, export or re-export, directly or indirectly, any Product or Technical Data (including processes and services) received from the Buyer, without first obtaining the applicable license and/or authorization required by the government having jurisdiction, including the Buyer’s government and the United States, which currently restricts shipments to certain countries, including without limitation, Myanmar (Burma), Cuba, Iran, Libya, North Korea, Sudan, and Syria or any other countries or parties (specially designated nationals, organizations etc.). The Buyer will be required to provide Dolphin any and all documentation (i.e. End Use Certificate, etc.), required to support any Accepted Order subject to issuance of an export license or any documentation to secure the export and/or import of the Product(s), Software and/or Technical Data subject to the Accepted Order. The quoted lead time is subject to timely receipt of the applicable documentation, as well as approval of an export license. Dolphin reserves the right not to commence manufacture of a Product until the authority to export that Product has been determined.
a. Applicable law and Jurisdiction. The Accepted Order shall be deemed to be made and entered into in Nevada, USA and shall be governed by and interpreted in accordance with its laws, rules and regulations. The courts of Clark County, Nevada will have jurisdiction over any dispute which may be brought in connection with the breach or interpretation of the Accepted Order.
b. Force Majeure. Dolphin shall not be responsible for any failure to perform the Accepted Order due to causes beyond its reasonable control, including, but not limited to, acts of God, labor disputes or shortages, acts of government or judicial action, or inability or delay in securing parts or components, all whether foreseen or unforeseen.
c. Assignment. None of the rights, duties or obligations set forth in the Accepted Order may be assigned, transferred or delegated by one Party without the prior written consent of the other Party. It will not be deemed an assignment, however, if an Accepted Order is performed by the parent corporation of Dolphin or by a sibling company of Dolphin that is wholly owned by the parent of Dolphin, following the merger of Dolphin into that sibling or parent, so long as the equipment, assets and staff used to manufacture the Products remain substantially the same.
d. Non-waiver. A Party’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege that such Party has under these Terms shall not thereafter be considered a waiver of that or any other terms, conditions or privileges, whether of the same or similar type.
e. Entire Agreement. An Accepted Order supersedes any and all prior agreements, offers, quotations, written or verbal messages, and any other communications and sets forth the entire agreement and understanding of the Parties with respect to the purchase and sale of the Products covered by that Accepted Order. No modification, amendments, or supplements to an Accepted Order shall be effective for any purpose unless in writing and signed by each Party. Whenever the permission or consent of either Dolphin or the Buyer is required or permitted under an Accepted Order, such permission or consent will be in writing and will not unreasonably be withheld, delayed, or made subject to any condition not specifically provided for in the Accepted Order. Titles and captions are used for convenience of reference only and may not be considered in the interpretation or construction of an Accepted Order.
f. Severability. Every provision of these Terms is intended to be severable. If any provision is determined by a court or agency of competent jurisdiction to be invalid or unenforceable, the Parties agree that such illegality or invalidity shall not affect the validity or legality of the remainder of these Terms. The Parties shall meet to discuss the issue and shall agree to revise this Agreement by deleting the invalid or unenforceable provision and substituting in its place another provision of similar economic effect which would be valid and enforceable. The Terms, as amended by such deletion and revision, shall continue in full force and effect.
g. Conduct on the Buyer’s Premises. In connection with the installation, repair, or replacement of a Product, it may become necessary for an employee or agent of Dolphin (a “Dolphin representative”) to be present on the Buyer’s premises. Should that occur, the Parties will in advance negotiate and enter into a Premises Agreement, a draft of which Dolphin will provide. In the Premises Agreement the Parties will include conditions appropriate to the particular situation, including payment for non-warranty repairs, and the workplace safety, security, and confidentiality rules applicable to Dolphin’s personnel. The Premises Agreement will also cover the fact that the Dolphin representative will not be required to work significantly longer hours than his regular work day, or under hazardous or unusual conditions.