1. Application of Terms
1.1 The following definitions are intended for use in interpreting this Agreement:
Business User: legal entity or person who buys or agrees to buy Products &/or Services from Dolphin Computer Access (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: Dolphin Computer Access Ltd., or any affiliate or subsidiary 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 (includes email) by DCA of Customer's Order;
Personal Data: refers to, without limitation, information such as name, address, e-mail address, age, date of birth, telephone number, fax, social security number or equivalent or similar government identification numbers, credit/debit card information, bank account information, logins, passwords, or medical or health records;
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 as described in any Order Confirmation & which Customer buys or agrees to buy from DCA but excluding items added to DCA hardware by Customers;
Service or 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 as described in any Order Confirmation;
Software: computer operating systems, middleware, applications or other software that is manufactured or owned by, or licensed by, DCA;
Subscription Service: Provision of a Product and associated service for use by a customer during a valid Subscription Period.
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.
Third Party Content: Content provided by a third party which can be accessed by DCA software or service.
1.2 By using DCA’s Services or Products, Customer has indicated his or her acceptance to these conditions and this document shall form the entire agreement between DCA and Customer (“Agreement”) to the exclusion of all other terms and conditions (including any which Customer purports to apply under any purchase order, confirmation of order, specification or other document). Additionally, by using DCA’s Services or Products, Customer has indicated his or her acceptance of the End User Licence Agreement found in each Product.
1.3 The terms and conditions contained in this Agreement apply to all DCA's sales and subscriptions. Please be advised that some parts of this Agreement apply to all of DCA’s Customers. However, other parts of this Agreement are specific to Consumers only or to Business Users only.
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 this Agreement 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 Customer to purchase Products &/or Services under the terms of this Agreement.
3.3 DCA accepts Customer's offer to purchase under this Agreement & makes a binding contract by issuing an Order Confirmation (“Contract”). 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 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 or Services to its Customers and will not allow cancellation of Orders for non-standard Products after processing of Orders.
4. Price and Payment
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 sales 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 its pricing notification or if the price changes as a result of circumstances beyond DCA's control, such as labour or materials costs or changes in duty, then Customer shall be responsible to pay the changed price or, in the alternative, either party may cancel the Contract upon 5 days’ notice to the other.
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 upon termination of the Contract 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 payment methods: cheques, credit/debit cards (Visa Credit, Mastercard Credit, Visa Debit, UK Maestro, Solo Debit, Electron), PayPal and Internet Banking. If making payment by Internet banking, Customers will need to provide their banking institution with the following details, all of which are available from DCA on request: Account name, Sort Code, and Account number. Customers may supply confidential payment details and make payment by phone, fax, regular mail or over the internet but, subject to Clause 12 below, Customers transmit payment details to DCA at their own risk. To the extent that Customer makes payment directly through DCA, Customer’s payment details will not be stored or displayed by DCA , and all payments are processed securely by trusted third party payment services (e.g. FastSpring, SagePay). The Customer uses such services subject to those payment service providers’ separate terms and conditions and privacy policies.
4.10 Payment shall be received before DCA delivers 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 suspend Customer’s use of the Product or Service &/or recover the outstanding payment &/or Product & the recovery costs, including, but not limited to, any attorney’s fees and court costs, from the Consumer.
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.
4.12 A subscription period is a set period of time between payments, and any subscription period requires payment made in advance of the period. Automatic renewal payments are always taken around the same date of each month or year depending on Customer’s recurring billing period. For example, if Customer’s Monthly Subscription Service was ordered on January 31st, the next payment date is likely to be February 28th and the payment will be automatically taken on such date. DCA reserves the right to change the timing of billing, in particular, if payment has not been successfully settled.
4.13 The Subscription Service will be provided as long as Customer maintains a valid internet connection to validate the Product and payment has been settled for the current subscription period.
4.14 In the event payment is not successfully settled due to expiration, insufficient funds, or otherwise, and Customer does not update payment information or cancel the subscription, the subscription will be immediately suspended for 7 days and thereafter will be deleted. In the event the subscription becomes reactivated after any suspension of its use, Customer will remain responsible for payment for the entire subscription period.
4.15 Cancellations can be made of eligible purchases within 30 days of purchase and must be made in writing to DCA. Subscription customers can cancel their subscription online on their subscription management page, or by contacting DCA directly or their Dealer. No refunds are available after such 30-day period or if a Software Product has been activated. The date of cancellation shall be the date on which DCA acknowledges its receipt of Customer’s notice of cancellation. DCA will send written confirmation to Customer of the cancellation.
4.16 Any changes to Subscription Services by DCA will always apply to the next subscription period. Notice of changes will be placed on DCA’s web site and an e-mail containing such changes will be sent to Customers who have provided a valid e-mail address. Customers can manage their Subscription Service (amend their name, address, card payment details and cancel their subscription) online using their subscription management page, by calling DCA or their Dealer.
5.1 Delivery of the Products shall take place at the delivery address, or email address, stated in the Order Confirmation. Such address shall be deemed the “Delivery Point”.
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 this Agreement, 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). Notwithstanding the foregoing, Business Users may terminate or rescind the Contract only if there is a delay which exceeds 180 days and which is occasioned by DCA. In such instance, Business Users shall only be entitled to a refund of any amount already paid to DCA pursuant to such Contract.
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.
6.1 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. Software download failures must be notified to DCA within 48 hours to obtain a replacement download.
7. Acceptance of Products on Delivery, ‘Cooling off’ and Rights of Return and Cancellation of Orders
7.1 Customers should notify DCA (a) within 48 hours following delivery of Product(s) 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 or which failed to download/install successfully; or (b) within 48 hours following discovery of any non-visible damage or defect in Product(s) supplied.
7.2 Where Product can be returned to DCA by 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
7.4 The items identified in Clause 7.3 may, however, be exchanged, repaired or replaced whenever possible if the items were determined to be faulty upon delivery.
7.5 Cancellations can be made of eligible purchases within 30 days of purchase and must be made in writing to DCA. Subscription customers can cancel their subscription online on their subscription management page, or by contacting DCA directly or their Dealer. A refund will be given only if (a) the Software has not been activated; and/or (b) the physical product has been returned in a saleable condition.
7.6 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.
7.7 On cancellation of Products, Consumer is obliged to stop using the Software and uninstall it, or 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.
7.8 The provisions of Clauses 7.3 & 7.5 do not apply to Product or Software that is damaged or defective on delivery.
7.9 Subject to Clause 7.3 above, 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.
7.10 Notwithstanding anything herein to the contrary, Business Users may cancel orders as outlined above, excepting special orders such as bespoke hardware systems, bulk or custom orders. Customers will be notified of this limitation at the time of purchase.
8.1 Customers use the Products at their own risk from the time of delivery.
8.2 Ownership of the Products shall not pass to Customers until DCA has received all sums due (cleared funds) pursuant to the Contract 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;
(b) any such sale shall be expressly conditioned on the third-party purchaser’s acceptance of this Agreement and the End User License Agreement; and
(c) 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 granting 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 any applicable Bankruptcy Act or Customers cease doing business; 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 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.
8.8 On termination of the Contract, howsoever caused, DCA's (but not Customer's) rights contained in this condition 8 shall remain in effect.
9. Statutory Rights, Warranties, Repairs, Replacements and Provision of Services
9.1 All Products are of satisfactory quality, fit for their purpose, correspond to description and will retain functionality for a period of 30 days from the delivery date unless specifically stated at time of purchase.
DCA will fulfill its legal obligations to repair &/or replace Products. These obligations are dependent upon proper use of Products & do not cover any parts of Products which have been modified or repaired without DCA's prior written consent. Customers must allow DCA's technical staff reasonable access to their computer hardware for the purpose of diagnosing problems and carrying out repairs. Such access may include remote desktop support. If access is denied, then DCA has no liability under any warranty in respect of computer hardware.
9.2 DCA's obligations do not apply to the consumable components of consumable items (such as toner in printer cartridges) or if a defect is caused by an external cause such as fair wear & tear, software or hardware loaded onto or connected to Product by Customer where this software or hardware has not been supplied by DCA, an accident, hazard, humidity control, electrical stress or other environmental conditions not commonly found in a safe home or office environment.
9.3 DCA does not provide Service for Third Party-manufactured Software or Products (including third party online services which DCA products enable Customers to access, such as books, newspapers, magazines and radio stations) but will pass to Customers, to the extent that it is permitted to do so, the benefit of any warranty or guarantee given by the manufacturer or supplier of Third Party Products. By accepting this Agreement, Customers are also accepting the additional terms and conditions and privacy policies set forth by any Third Party relating to Third Party Content or Products, including respecting copyright permissions of those third party services. In the event a Third Party does not confer a warranty for the content or Third Party Products, nothing in this section or this entire Agreement shall be inferred to provide a warranty for Third Party Content. DCA obligations do not extend to Third Party Content and the usage of that content via DCA Products and services.
9.4 Service may be provided via telephone (at the normal national rate) or Internet where appropriate. Telephone calls may be recorded for training purposes. Customers must provide DCA with all reasonable courtesy, information & cooperation to enable DCA to deliver the Services & shall be responsible for all telephone & postal charges in contacting DCA. Customers may request a Support Call-Back from DCA which incurs no cost to the Customer.
9.5 DCA makes repairs as required at law by using components which are new or equivalent to new in accordance with industry standards and practice. Products will be repaired using parts which will work for at least 90 days after the date upon which they were installed.
9.6 DCA owns any Product or parts that are removed during repair. DCA may require Customer to return removed parts to DCA for reconditioning, analysis or for environmental reasons.
9.7 If Customer does not return removed parts DCA then may charge a fee of which Customer will be informed prior to charge. The fee will reflect the cost incurred by DCA in retrieving the part(s), &/or the cost of procuring another component to recondition &/or arising from failure to comply with environmental obligations as a result of the Customer's failure to return the Product or part.
9.8 The charge referred to in 9.7 above will not apply to Consumers returning defective parts which have been replaced in accordance with statutory rights.
9.9 Before a DCA engineer begins any work, it is Customer’s responsibility to back up any records, information, files, operating software, data, or anything else on their computer system which could be affected. If data on the Customer's computer system is affected as a direct result of DCA providing the service, DCA will attempt to restore this information to their computer system. DCA does not accept any other responsibility or liability for anything damaged, corrupted or lost from the Customer's computer system which has not been backed up correctly.
9.10 Products sold will be suitable for general use in a domestic, non commercial, non research environment in a manner which is consistent with the specification, functionality & service standards described in the Product's description. Fitness for use in any other manner or environment must be explicitly and clearly agreed (preferably in writing) with DCA prior to purchase.
9.11 DCA will repair, or in the event that repair does not occur, replace Product which is defective within a reasonable period & with reasonable care & skill. This may only be varied to the extent reasonably agreed with the Consumer.
9.12 Business Users must satisfy themselves as to the suitability of the description for their needs. DCA does not warrant fitness for any particular purpose. Fitness for use in any particular manner or environment must be agreed in writing with DCA prior to purchase.
9.13 Business Users are not automatically entitled to repair or replacement other than as agreed by DCA. DCA shall have no liability or obligation for defects in Products or failure to remedy defects except as expressly provided under this Agreement.
9.14 Except as expressly provided herein, no warranty, express or implied as to the condition, quality, performance, merchantability, or durability of the Products is given or assumed by DCA & all such warranties are hereby excluded.
10. Limitation of Liability
10.1 Nothing in these conditions excludes or limits the liability of DCA:
(a) for death or personal injury caused by DCA's negligence; or
(b) under section 2(3), Consumer Protection Act 1987 or any applicable consumer protection law; or
(c) for any matter which it would be illegal for DCA to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.2 If liability is established contrary to the intent of these conditions then, DCA's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and DCA shall not be liable to Customers for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.1 Each right or remedy of DCA under this Agreement is without prejudice to any other right or remedy of DCA whether under the Agreement or not.
11.2 If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of this Agreement and the remainder of such provision shall continue in full force and effect.
11.3 Failure or delay by DCA in enforcing or partially enforcing any provision of this Agreement shall not be construed as a waiver of any of its rights under this Agreement.
11.4 Any waiver by DCA of any breach of, or any default under, any provision of this Agreement by Customers shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Agreement.
11.5 The parties to this Agreement do not intend that any term of the Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
11.6 The formation, existence, construction, performance, validity and all aspects of this Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
12. Personal Data Protection
12.2 DCA will take all reasonable measures to protect Customer’s Personal Data. Notwithstanding any applicable laws, Customer further agrees to hold harmless DCA for (a) any data breaches or security breaches which may occur; or (b) for any unlawful actions by Third Parties who obtain Customer’s Personal Data through DCA.
13.1 Each party must treat all information received from the other which appears to be confidential as it would treat its own confidential information generally, but at least, with no less than a reasonable degree of care.
13.2 Information received from a Customer may be used to inform the Customer of improvements to products and services and for marketing activities of the DCA – If you do not want to receive further news or special offers you can unsubscribe using our online form; select the unsubscribe link at the end of our emails; email us or call us.
14.1.Customers grant DCA, its agents and employees, an irrevocable licence at any time to monitor the use of the software remotely and (if applicable) upgrade its subscription status, on whatever computer or device it is kept, for the limited purpose of gathering anonymous usage data for statistical analysis for product improvement and development, and for validating the Customer’s software licence.
In the unlikely event that you have a complaint/grievance about any aspect of dealing with us please contact us as soon as possible (contact details in next section) We hope that we can deal with your problem in just a few moments on the telephone or by email, however, if your complaint is more complex and is submitted in writing, we promise to acknowledge all written complaints within 5 working days of receipt; and advise you of how long we feel it will take to resolve the complaint; and keep you informed throughout the process.
16. Contacting us
Message us: Send us an online message
Phone: 01905 754 577 (from outside UK +44 1905 754 577). Calls are charged at the standard National Call Rate. Callers from outside the UK will be charged at their standard International Call rate.
Fax: 01905 754 559 (from outside UK +44 1905 754 559)
UK office hours: Monday to Friday, 9am to 5.30pm (GMT)
Dolphin Computer Access Ltd
Blackpole Estate West
Worcester WR3 8TJ
Visitors: by appointment only please.