Dolphin Computer Access Terms and Conditions of Sales and Services


DEFINITIONS:

DCA - Dolphin Computer Access Ltd.
The Customer - An individual, company or any organisation that makes a purchase.

1. APPLICATION OF TERMS

1.1 These conditions form the whole of the contract between DCA and the Customer to the exclusion of all other terms and conditions (including any which Customers purport to apply under any purchase order, confirmation of order, specification or other document).

1.2 These conditions apply to all DCA's sales. Some parts of this Agreement
apply to all of our Customers. However other parts are specific to Consumers only or to Business Users only.

1.3 These definitions are intended for use in interpreting this contract;

Business User: legal entity or person who buys or agrees to buy Products &/or Services from DCA other than for private use

Consumer: an individual over the age of 18 years, who buys or agrees to buy Products &/or Services from DCA for private use;

Customer: Consumers & Business Users collectively

DCA: the company identified in Customer's Order Confirmation and/or invoice;

Indemnify: promise to be responsible for another's loss, damage, liability or penalty including promise to compensate for any loss, damage, liability or penalty which occurs;

Order: request by Customer to purchase Product or Services from DCA;

Order Confirmation: written acceptance by DCA of Customer's Order;

Price: the total charge for Products &/or Services payable by Customer to DCA;

Products: an individual good (including Software) as described in any current document published by DCA physically &/or on its internet site, or in any Order Confirmation & which Customer buys or agrees to buy from DCA but excluding items added to DCA hardware by Customers

Services: service & support carried out by or for DCA in accordance with the Service and support offered by DCA as described in any current document published by DCA physically &/or on its internet site, or in any Order Confirmation;

Software: computer operating systems, middleware, applications or other software that is manufactured or owned by, or licensed by, DCA;

Third Party Products: products not manufactured, assembled or authored by DCA that DCA sells.

Third Party Software: computer operating systems, middleware, applications or other software from a third party editor or licensor.

2. DESCRIPTION

2.1 The quantity and description of the Products shall be as set out in DCA's quotation or acknowledgement of order.

2.2 All samples, drawings, descriptive matter, specifications and advertising issued by DCA and any descriptions or illustrations contained in DCA's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract and this is not a sale by sample.

3. QUOTATIONS/ORDERS AND CHANGES

3.1 DCA quotations are valid only if in writing & for 28 days after the quotation date, unless otherwise stated in the quotation.

3.2 All Orders for Products &/or Services shall be regarded as an offer by the Customer to purchase Products &/or Services under the terms of this Agreement.

3.3 DCA accepts the Customer's offer to purchase under this Agreement & makes a binding Agreement by issuing an Order Confirmation. Order confirmation is binding except, in the case of Consumers only, where there is a discrepancy between order confirmation and what consumer ordered and where discrepancy is unacceptable to the consumer. It is recommended that Customers review the Order Confirmation & notify DCA within a reasonable period of time (no more than 48 hours after delivery) of any discrepancies that are noticed.

3.4 DCA reserves the right to increase its prices whilst supplying non standard products/services to its Customers and will not allow cancellation of orders for non standard Products after processing of Orders.

4. PRICE AND PAYMENT

All Customers:

4.1 The Price that Customers have to pay will be shown on DCA's Order Confirmation and invoices. Price lists published by DCA and shown on DCA's website are subject to alteration at any time.

4.2 The price for the Products shall be as stated on DCA's Order Confirmation and invoices exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts Customers shall pay in addition when Customers are due to pay for the Products.

4.3 If prior to delivery DCA discovers an error in price notification or if the price changes as a result of circumstances beyond DCA's control such as labour costs or materials costs or change in duty then DCA shall be entitled to invoice the Customer at the changed price.

4.4 Time for payment shall be of the essence.

4.5 No payment shall be deemed to have been received until DCA has received cleared funds.

4.6 All payments payable to DCA under the Contract shall become due
immediately on its termination despite any other provision.

4.7 Customers shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless Customers have a valid court order requiring an amount equal to such deduction to be paid by DCA to Customers.

4.8 If Customers fail to pay DCA any sum due pursuant to the Contract, Customers shall be liable to pay interest to DCA on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. DCA reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 as amended.

4.9 DCA accepts the following credit/debit cards: Visa Credit, Mastercard Credit, Visa Debit, UK Maestro, Solo Debit, Electron. Alternatively, if making payment by Internet banking, customers will need to quote the following details: Account name, Sort Code, and Account number which are available on request. Customers may supply confidential details and make payment by phone, fax, regular mail or over the internet but must use discretion as no guarantee of security is provided by DCA. Customer's details are not stored or displayed in clear text on any website and DCA does not store personal information.

Consumers:

4.10 Payment shall be made before supply of Product or Service. DCA may suspend delivery of Product or Service until full payment is received. If DCA has delivered Product &/or Services & the Product &/or Services remain neither paid for nor made available for collection when reasonably demanded then DCA may recover the outstanding payment &/or Product & the recovery costs are to be paid by the Consumer.

Business Users:

4.11 If agreed in advance in writing, Business Users may pay within 30 days of the date of invoice. If DCA must recover the outstanding payment &/or Product, recovery costs are to be paid by the Business User.

5. DELIVERY

5.1 Delivery of the Products shall take place at the delivery address stated in the Order Confirmation.

5.2 Customers shall take delivery of the Products within 7 days of DCA giving Customers notice that the Products are ready for delivery.

5.3 Any dates specified by DCA for delivery of the Products are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

5.4 Subject to the other provisions of these conditions DCA shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profit, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products (even if caused by DCA's negligence), nor shall any delay entitle Business Users to terminate or rescind the Contract unless such delay exceeds 180 days.

5.5 If for any reason Customers fail to accept delivery of any of the Products when they are ready for delivery, or DCA is unable to deliver the Products on time because Customers have not provided appropriate instructions, documents, licences or authorisations:

(a) risk in the Products shall pass to Customers (including for loss or damage caused by DCA's negligence);

(b) the Products shall be deemed to have been delivered; and

(c) DCA may store the Products until delivery, whereupon Customers shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

5.6 Customers shall provide at the Delivery Point and at Customer's expense adequate and appropriate equipment and manual labour for loading the Products.

5.7 DCA may deliver the Products by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

5.8 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle Customers to repudiate or cancel any other Contract or instalment.

6. NON-DELIVERY

6.1 The quantity of any consignment of Products as recorded by DCA upon dispatch from DCA's place of business shall be conclusive evidence of the quantity received by Customers on delivery unless Customers can provide conclusive evidence proving the contrary.

6.2 DCA shall not be liable for any non-delivery of Products (even if caused by DCA's negligence) unless Customers gives notice to DCA of the non-delivery within 24 hours of the date when the Products would in the ordinary course of events have been received.

6.3 Any liability of DCA for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Products.

7. ACCEPTANCE OF PRODUCTS ON DELIVERY, "COOLING OFF" & RIGHTS OF RETURN AND CANCELLATION

All Customers:

7.1 Customers should notify DCA promptly and within 48 hours following delivery of any missing, incorrectly delivered, incorrect specification or otherwise not as ordered Products or Products which are either in damaged packaging or are visibly damaged; following discovery of any non-visible damage or defect in Product supplied.

7.2 Where Product can be returned to DCA by the Customer, under the terms of this Agreement, a Customer must supply clear details of identity and address when returning any items. In addition, all items should be made available for collection at a time which is mutually convenient insofar as possible. Customers should act reasonably in complying with a request by DCA to collect Product at a particular time. Customers also need to ensure that goods are adequately packaged to protect from potential damage whilst in transit, and obtaining proof of collection from the courier will remain the responsibility of the Customer. Couriers are not insured for the carriage of Product except at the customer's arrangement with the courier. DCA is not liable for acts or omissions of the courier.

7.3 Certain items cannot be cancelled once they have been delivered such as:

  • Consumable items - i.e. batteries, printer cartridges, toner and media etc
  • Third Party Software (specifically Microsoft unless part of a hardware product)
  • Hardware Accessories
  • Earpieces - ie mobile and hands free earpieces once opened
  • Film or audio recorded on to DVD or CD or Tape that is protected by copyright
  • Books or manuals that are protected by copyright

Unless faulty in which case exchange, repair or replacement may be available

Consumers:

7.4 Consumers may cancel their Orders for any reason until, but no later than:

7.4.1 the end of the 14th "working day" (not including weekends & public holidays) after the date of delivery of the Product &/or of the Service; or

7.4.2 the end of the 14th working day after the date when all such information required by law is supplied.

7.4.3 On cancellation of Software or Software Updates for Guide products, a refund will be given only on receipt of one of the following:

  • A valid de-activation code to prove that the Software has been deactivated from the machine on which it was activated;
  • The computer hard-drive from the computer on which the Software was activated
  • Otherwise no refund can be made on cancellation of the Software.

7.5 Consumers' right to cancel Third Party Software that is supplied on CD, DVD or other similar storage devices is also lost if the Software is unwrapped.

7.6 On cancellation of Products Consumer is obliged to return the Products to DCA in their original condition, undamaged & at the cost of Consumer. A Consumer shall take reasonable care to ensure that the Products are not damaged whilst in transit using means arranged by Consumer. Whilst in possession of the Products, a Consumer shall be under a duty to take reasonable care of them. DCA shall take action against Consumers for Products returned which have been made unfit for resale or damaged whilst in the possession of Consumer.

7.7 The provisions of Clauses 7.3&7.5 do not apply to Product or Software that is damaged or defective on delivery.

7.8 On cancellation of the Order DCA will refund the price paid, less the direct cost of recovering the Products (when applicable), within a period of 30 days from date of cancellation.

Business Users:

7.9 Notwithstanding anything herein to the contrary, Business Users may not cancel but only reject Product for material non-conformity with the Product Description by providing written notice to DCA within 48 hours after delivery or otherwise shall be deemed to have accepted the Products.

8. RISK/TITLE

8.1 The Products are at Customer's risk from the time of delivery.

8.2 Ownership of the Products shall not pass to Customers until DCA has received in full (in cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to DCA from Customers on any account.

8.3 Until ownership of the Products has passed to Customers, Customers shall:

(a) hold the Products on a fiduciary basis as DCA's bailee;

(b) store the Products (at no cost to DCA) separately from all other Products of Customer's or any third party in such a way that they remain readily identifiable as DCA's property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and

(d) maintain the Products in satisfactory condition and keep them insured on DCA's behalf for their full price against all risks to the reasonable satisfaction of DCA. On request Customers shall produce the policy of insurance to DCA.

8.4 Customers may resell the Products before ownership has passed to it solely on the following conditions:

(a) any sale shall be effected in the ordinary course of Customer's business at full market value; and

(b) any such sale shall be a sale of DCA's property on Customer's own behalf and Customers shall deal as principal when making such a sale.

8.5 A Customer's right to possession of the Products shall terminate immediately if:

(a) Customers have a bankruptcy order made against them or make an arrangement or composition with creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) Customers convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed of Customer's undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by Customers or Customer's directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for winding-up or for the grant¬ing of an administration order in respect of Customers, or any proceedings are commenced relating to the insolvency or possible insolvency of Customers; or

(b) Customers suffer or allow any execution, whether legal or equitable, to be levied on Customer's property or obtained against Customers, or fail to observe or perform any of Customer's obligations under the Contract or any other contract between DCA and Customers, or are unable to pay Customer's debts within the meaning of section 123 of the Insolvency Act 1986 or Customers cease to trade; or

(c) Customers encumber or in any way change any of the Products.

8.6 DCA shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from DCA.

8.7 Customers grant DCA, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where Customer's right to possession has terminated, to recover them.

8.8 Where DCA is unable to determine whether any Products are the Products in respect of which Customer's right to possession has terminated, Customers shall be deemed to have sold all Products of the kind sold by DCA to Customers in the order in which they were invoiced to Customers.

8.9 On termination of the Contract, howsoever caused, DCA's (but not Customer's) rights contained in this condition 8 shall remain in effect

(Terms and conditions continued...)