1. GENERAL PROVISIONS

  • 1.1 These Terms and Conditions (“Terms”) govern the sale of goods (“Goods”) by Dolphin Solutions USA, Inc. (“Dolphin”) to the business entity purchasing such Goods (“Customer”).

  • 1.2 By placing an order, Customer represents and warrants that it is acting solely in a commercial or professional capacity and not as a consumer.

  • 1.3 These Terms supersede any contrary terms submitted by Customer, whether included in a purchase order or otherwise, and any such terms are hereby rejected unless expressly accepted in writing by Dolphin.

  • 1.4 Any quote provided by Dolphin is non-binding and expires after 30 days unless otherwise stated.

2. DEFINITIONS

Key terms are defined as follows:

  • Business Day: Any day other than a Saturday, Sunday, or U.S. federal holiday.

  • Contract: A binding agreement formed upon Dolphin’s submission of an Order Confirmation to Customer.

  • Delivery Date: The date for the tender or delivery of Goods as set out in the Order Confirmation or as otherwise agreed in writing between the parties.

  • Delivery Location: The location to which the Goods are to be delivered to by Dolphin as set out in the Order Confirmation or such other location as is agreed between the parties in writing. Unless otherwise stated in writing, the Goods will be tendered to Customer at Dolphin’s facility located at 7171 Dorsey Run Road, Suite 100, Elkridge, Maryland 21075 (the “Facility”).

  • Force Majeure: Events beyond a party’s reasonable control including, but not limited to, pandemic, epidemic, terrorist attack, civil war, any breakdown, interruption, failure or disruption of any communications, and/or banking systems, civil commotion or riots, war, threat of or preparation for imposition of sanctions, embargo, breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction or tariff, quota or prohibition, or failing to grant a necessary license or consent, any labor or trade dispute, strikes, industrial action or lockouts.

  • Good Industry Practice: The exercise of that degree of skill and care as would be expected from a reasonable provider of goods substantially similar to the goods provided to customers of a similar size and nature as Customer, and commensurate with the price paid for such goods.

  • Intellectual Property Rights: Means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

  • Order Confirmation: Dolphin’s written order confirmation or acknowledgement provided to Customer confirming the Customer’s order in response to an Order Request.

  • Shipping Terms: The shipping terms under which Goods are to be sent to Customer as stated in the Order Confirmation, which incorporate the UCC.

  • Specification: Any specification for the Goods, including any related plans and drawings, which is confirmed in writing by Dolphin in the Order Confirmation.

  • UCC: The Uniform Commercial Code as adopted in the State of Maryland.

3. ORDERS AND ACCEPTANCE

  • 3.1 Any Dolphin quotation for Goods shall not constitute an offer and is only valid for a period of 30 calendar days from its date of issue or as otherwise notified to Customer in writing by Dolphin. All quotations shall automatically expire 30 days after the quotation date.

  • 3.2 Any samples, drawings, descriptive matter or advertising produced by Dolphin and any descriptions or illustrations contained in Dolphin’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract.

  • 3.3 Customer shall submit a written order (an “Order Request”) which shall constitute an offer by Customer to purchase the Goods in accordance with these Terms. Orders are not binding until accepted in writing by Dolphin via an Order Confirmation.

  • 3.4 No cancellation or modification of an Order is permitted once Dolphin issues an Order Confirmation, except with Dolphin’s written consent. Customer shall be responsible for any resulting costs.

4. PRODUCT SPECIFICATIONS

  • 4.1 Goods will conform to the Specifications stated in the Order Confirmation and Good Industry Practice, subject to standard manufacturing tolerances. Customer acknowledges that specified dimensions are subject to a tolerance of +/- 13mm, or as otherwise specified in the Specification.

  • 4.2 Dolphin reserves the right to change Specifications without notice for any reason, provided such changes do not materially affect the performance of the Goods.

  • 4.3 If Customer provides Specifications, Customer agrees to indemnify and hold harmless Dolphin, its representatives, affiliates, successors and assigns (the Dolphin Indemnitees”), against any third-party claims for infringement or defects arising from such specifications.

5. DELIVERY

  • 5.1 Unless otherwise stated in the Order Confirmation, Goods are tendered at Dolphin’s Facility and risk of loss passes to Customer upon tender to Customer’s carrier at Dolphin’s Facility.

  • 5.2 Each delivery of the Goods will be accompanied by a delivery note which shows the date of the Order, the order reference number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered. The delivery note will also clearly state any requirement for Customer to return any packaging material to Dolphin. Customer shall make any such packaging materials available for collection at such times as Dolphin shall reasonably request. Returns of packaging materials shall be at Dolphin’s expense.

  • 5.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Dolphin shall not be responsible for delays due to carrier performance, customs clearance, Force Majeure, or any act or omission of Customer.

  • 5.4 Delays in delivery shall not entitle Customer to refuse to take delivery of the order, claim damages, or terminate the Contract.

  • 5.5 If Customer fails to accept tender or, in the case where Dolphin agrees to deliver the Goods to a Customer specified location, take delivery of the Goods within three Business Days of Dolphin first attempting to tender or deliver the Goods, then, except where failure or delay in delivering the Goods is caused by a Force Majeure Event which affects Dolphin, delivery of the Goods shall be deemed to have been completed at 9:00am at the location of the tender or delivery on the third Business Day after the day on which Dolphin first attempted to tender or deliver the Goods. In such circumstance, Dolphin shall store the Goods until actual tender or delivery takes place, Customer shall be responsible to pay Dolphin for all related costs and expenses (including insurance).

  • 5.6 If Customer has not accepted tender or taken delivery of the Goods within ten (10) Business Days after the date on which Dolphin notified Customer that the Goods were ready for tender or delivery, Dolphin may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs or re-stock the Goods with Dolphin’s supplier and charge Customer in relation to all costs associated with such re-stocking. In the event Dolphin resells or otherwise disposes of part or all of the Goods, Customer shall be responsible to pay Dolphin the difference between the price of the Goods and the actual amounts realized by Dolphin from the sale or disposition of the Goods, plus all costs incurred by Dolphin in storing, insuring, selling, and/or disposing of the Goods. In the event that Customer pre-paid for the Goods, Dolphin shall refund to Customer any excess amounts remaining after deducting the difference between the price of the Goods and the actual amounts realized by Dolphin from the sale or disposition of the Goods and all costs incurred by Dolphin in storing, insuring, selling, and/or disposing of the Goods.

  • 5.7 In the event Customer requests a delay and/or postponement to the Delivery Date to which Dolphin agrees in writing, Dolphin shall store the Goods and shall be entitled to charge Customer for all related costs and expenses (including insurance) incurred in storing the goods from the original Delivery Date agreed until actual delivery takes place.

  • 5.8 Dolphin may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle Customer to cancel any other installment.

  • 5.9 Unless otherwise agreed in the Shipping Terms, Dolphin shall have no liability to Customer for any damage to or loss of the Goods while in transit to Customer. Any damage to the Goods must be reported to Dolphin and the courier in writing by Customer within three days of delivery. Claims for non-delivery must be made within fourteen (14) days of the date of Dolphin’s notice of shipment.

6. INSTALLATION (IF APPLICABLE)

  • 6.1 Installation services apply only if specified in writing and are limited to those services expressly included in the Order Confirmation.

  • 6.2 Should any predecessor activity required for Dolphin’s installation be incomplete at the time Dolphin is scheduled to commence its installation activities, or in the event Dolphin is delayed in its installation activities due to the actions or inactions of Customer or any person or entity for whom Customer is responsible (including contractors or subcontractors of any tier), Customer shall pay Dolphin all actual costs incurred by Dolphin (plus 15% markup) for each calendar day that Dolphin is delayed in its ability to install the Goods.

  • 6.3 If the actual as-built conditions at the installation site differ in any material respect from the conditions depicted or described in the approved shop drawings, and such discrepancies result in increased time, labor, material, equipment, or other installation costs, then following Dolphin’s notice to Customer of the discrepancy, Customer shall be responsible for payment of all such additional, reasonable, and documented costs incurred by Dolphin in performing the installation of the Goods.

  • 6.4 Installation is deemed complete upon Dolphin’s issuance of an installation certificate and Dolphin’s warranty obligations shall commence on the installation certificate date.

7. WARRANTIES

  • 7.1 Goods are warranted only as expressly stated in Dolphin’s applicable warranty documentation. Goods are warranted only as expressly stated in Dolphin’s applicable warranty documentation, which can be found here. No other warranties, express or implied, including those of merchantability or fitness for a particular purpose, apply and all such warranties are expressly rejected and disclaimed.

8. RETURNS AND DEFECTIVE GOODS

  • 8.1 All returns and remedies for defective Goods are governed solely by the applicable Dolphin warranty terms.

9. TITLE AND RISK

  • 9.1 Unless otherwise agreed in the Order Confirmation, title to the Goods shall pass to Customer upon Dolphin’s receipt of full payment for the Goods and the clearing of the same through normal banking channels. Until then, Dolphin retains a security interest in the Goods, and Customer agrees to execute any documents necessary to perfect such security interest. Customer shall be required to (1) store the Goods separately from all other goods held by Customer so that they remain readily identifiable as Dolphin’s property; (2) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (3) maintain the Goods in satisfactory condition; (4) notify Dolphin immediately if it suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business or experiences other financial distress so as to jeopardize its ability to honor the terms of the Contract; and (5) give Dolphin such information as Dolphin may reasonably require from time to time relating to the Goods and Customer’s ongoing financial position.

  • 9.2 Dolphin may, at any time before title to the Goods passes to Customer, require Customer to deliver to Dolphin all Goods in its possession that have not been irrevocably incorporated into another product, and, if Customer fails to do so promptly, exercise self-help and enter any premises of Customer or of any third-party where the Goods are stored or located to repossess the Goods.

  • 9.3 Risk of loss shall transfer to Customer upon Dolphin’s tender or delivery of the Goods. Customer shall be obligated to insure Dolphin’s interest in the Goods until Title to the Goods passes to Customer, and hereby agrees to indemnify and hold the Dolphin Indemnitees harmless from and against any and all losses, claims, or casualties to the Goods between Dolphin’s tender of the Goods and such time that Title passes to Customer.

10. PRICE AND PAYMENT TERMS

  • 10.1 The Price shall be as set forth in the Order Confirmation and is exclusive of shipping, taxes, duties, tariffs, and other charges, unless otherwise stated. If no price is quoted in the Order Confirmation, the Price shall be as set forth in Dolphin’s published price list in effect as of the Date of Delivery.

  • 10.2 Upon notice to Customer, Dolphin reserves the right to increase the Price to reflect any increase in the cost of the Goods to Dolphin due to (1) any factor beyond Dolphin’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials and other manufacturing costs); (2) any Customer request to change the Delivery Date(s), quantities or types of Goods ordered, the Specification, or Delivery Location; or (3) any delay caused by any instructions of Customer with respect to the Goods or any failure of Customer to give Dolphin adequate or accurate information or instructions in respect of the Goods.

  • 10.3 Payment is due net thirty (30) days from the invoice date unless otherwise agreed in writing, and the time for Customer’s payment shall be of the essence.

  • 10.4 Late payments incur interest at the lesser of 1.5% per month or the maximum rate permitted by law. Customer may not withhold payment or offset amounts owed to Dolphin.

11. INTELLECTUAL PROPERTY

  • 11.1 All intellectual property rights in the Goods remain with Dolphin or its licensors. No rights are transferred to Customer other than those necessary for use or resale.

12. CONFIDENTIALITY

  • 12.1 Both parties agree to maintain the confidentiality of the other’s proprietary and non-public information, except as required by law.

13. PRODUCT RECALLS

  • 13.1 Customer shall cooperate with any recall initiated by Dolphin or required by governmental authorities.

14. LIMITATION OF LIABILITY

  • 14.1 Except as prohibited by law, Dolphin’s total liability under any claim, whether arising under contract, tort, or otherwise, shall not exceed the amount paid by Customer for the particular Goods giving rise to such claim.

  • 14.2 Dolphin shall not be liable for any indirect, incidental, special, or consequential damages, including loss of profits or business interruption, arising from or relating to any claim with respect to which Dolphin may be liable.

  • 14.3 Customer shall indemnify and hold the Dolphin Indemnitees harmless from all costs, claims, demands, expenses and liabilities of whatsoever nature made by third parties (including for the avoidance of doubt any end users of the Goods) caused in whole or in part or arising out of or relating to any act or omission of Customer in connection with the use, storage and/or sale of the Goods.

  • 14.4 The within limitation of liability and indemnification obligations shall survive any termination of the Contract.

15. TERMINATION

  • 15.1 Dolphin may terminate any order or Contract, in whole or in part, for its convenience, with thirty (30) days’ written notice to Customer. In the event Dolphin terminates an order or Contract, Dolphin shall refund the unused portion of any Customer deposits or pre-payments within thirty (30) days following the termination date.

  • 15.2 Dolphin may terminate any order or Contract immediately for: non-payment, breach of Contract, insolvency, assignment for the benefit of creditors, Dolphin’s belief that Customer will be unable to discharge its obligations under the Contract, or any other Customer financial distress. In such event, Dolphin shall be entitled to hold any Customer deposits or pre-payments and shall be entitled to recover all damages incurred as a result of or relating to Customer’s non-payment, material breach, insolvency, assignment for the benefit of creditors, or other similar financial distress.

  • 15.3 In the event Dolphin terminates an order or Contract under Article 15.2, Customer shall immediately pay to Dolphin all of Dolphin’s outstanding unpaid invoices and interest thereon. In the event Dolphin supplied Goods and/or services but has not yet submitted an invoice for such Goods and/or services, Dolphin shall submit an invoice to Customer which shall be payable by Customer immediately on receipt. Customer shall return to Dolphin any Goods which have not been fully paid for at its own cost and expense. If Customer fails to do so, then Dolphin may enter Customer’s premises and take possession of them. Until unpaid Goods have been returned, Customer shall remain solely responsible for their safe keeping and shall not use them for any purpose not connected with this Contract.

  • 15.4 Without affecting any other right or remedy available to it, Dolphin may suspend all further deliveries of Goods under the Contract or any other contract between Customer and Dolphin for any of the reasons set forth in Article 15.2 above.

16. POST-TERMINATION

  • 16.1 Upon Dolphin’s termination for any reason, Customer must immediately return all unpaid Goods and pay all amounts due. Provisions which by their nature survive termination (e.g., indemnities, confidentiality, limitations of liability) shall remain in effect.

17. FORCE MAJEURE

  • 17.1 Neither party shall be liable to the other or to any third-parties for failure to perform its obligations due to causes beyond its reasonable control, including Force Majeure. Either party may terminate the Contract if such Force Majeure continues for more than thirty (30) days.

  • 17.2 In the event of a termination of the Contract for Force Majeure, Dolphin shall be entitled to payment for all actual costs (including termination costs) incurred through and including the date of termination.

18. GOVERNING LAW AND DISPUTE RESOLUTION

  • 18.1 This Agreement shall be governed by the laws of the State of Maryland, without regard to its conflict of laws rules.

  • 18.2 The parties shall seek to resolve disputes through good faith negotiations between principals of Dolphin and Customer. If unsuccessful, the dispute shall be resolved in the State or Federal courts having jurisdiction in Baltimore County, Maryland. Both parties hereby expressly consent to the personal jurisdiction and venue of such courts.

  • 18.3 GIVEN THE COMPLEXITIES OF CONSTRUCTION LITIGATION, THE PARTIES HEREBY EXPRESSLY WAIVE THEIR RIGHT TO HAVE THEIR DISPUTES RESOLVED BY A JURY TRIAL, AND HEREBY EXPRESSLY AGREE THAT ALL LITIGATION BETWEEN THEM OR INVOLVING THE GOODS SHALL BE RESOLVED ONLY BY A SINGLE JUDGE CONDUCTING A BENCH TRIAL.

19. MISCELLANEOUS

  • 19.1 No assignment by Customer shall be valid without Dolphin’s prior written consent, which consent may be reasonably withheld by Dolphin.

  • 19.2 Notices must be in writing and sent by personal delivery, certified mail, or email with receipt confirmation.

  • 19.3 If any provision hereof is found invalid, the remaining provisions shall continue in full force and effect.

  • 19.4 This Agreement constitutes the entire agreement between the parties and supersedes all prior terms. No modification is valid unless such modification is in writing and signed by both parties.

  • 19.5 No third party shall have any rights hereunder, and all implied third-party beneficiary rights hereunder are expressly rejected and disclaimed.

  • 19.6 In the event that Customer requires Dolphin to execute a separate written contract, such contract shall be mutually acceptable to both parties and shall be subject to these Terms, which are hereby expressly incorporated into such contract by reference as if fully restated therein. In the event of any conflict between these Terms and the terms and conditions in the contract Customer requires Dolphin to execute, these Terms shall absolutely prevail, govern and control over any conflicting terms or provisions in Customer’s contract.