Standard Terms and Conditions of Sale
1. DEFINITION AND INTERPRETATIONS
Standard Terms and Conditions of Sale
1.1 In these Terms and Conditions, the following words shall, where the context permits, have the following meaning:
"Company" means IDENTEC Limited;
"Contract" means an agreement between the Company and Purchaser for the supply of Products and/or Services;
"Delivery Address" means the address stated in the Order Acceptance Form;
"Delivery Date" means the date stated in the Order Acceptance Form;
"Development Work" means the development works as set out in the Order Acceptance Form;
"Incoterms" means Incoterms 1990 published by the International Chamber of Commerce;
"IPR" means any Intellectual Property subsisting in the Products and Services;
"EU" means those countries in the European Union;
"Order(s)" means Orders for Products and Services made by the Purchaser and accepted by the Company from time to time and as set out in the Order Acceptance Form;
"Order Acceptance Form" means the Company's "Acknowledgement of Order" form as may be varied from time to time;
"Price" means the price of the Products and/or the charge for Services as set out in the Company's Order Acceptance Form;
"Products" means Products (including hardware,firmware and software) manufactured by the Company and/or third parties and referred to in Orders;
"Purchaser" means the purchaser of Products and/or Services referred to in Orders;
"Services" means the services performed by the Company pursuant to Orders (including any installation and commissioning of Products);
"Software" means such software of the Company that may be produced from time to time by the Company;
Agreement" means the licence agreements in respect of the Software whether produced by the Company or to be entered into by the Company and the Purchaser on request by the Company;
"Terms and Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Company and the Purchaser;
"UK" means the United Kingdom;
"VAT" means Value Added Tax; and
"Writing" includes telex, cable, facsimile transmission and comparable means of communication.
1.2 These Terms and Conditions shall apply to any supply of Products and/or Services by the Company to the Purchaser from time to time. This Sub-clause shall apply whether or not the Purchaser's order form may purport to impose conflicting Terms and Conditions or the Company may not have executed an Order Acceptance Form and will govern the Contract to the exclusion of any other terms and conditions.
1.3 Any additions, deletions or variations to these Terms and Conditions will only be of any effect if agreed to in Writing by both the Company and the Purchaser.
1.4 The Company's employees or agents are not authorised to make any representations concerning the Products and/or Services unless confirmed by the Company in Writing. In entering into the Contract the Purchaser acknowledges that it does not rely on any such representations which are not so confirmed.
1.5 Any advice or recommendation given by the Company or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Products and/or Services which is not confirmed in Writing by the Company is followed or acted upon entirely at the Purchaser's own risk, and accordingly the Company shall not be liable for any such advice or recommendation on which is not so confirmed.
1.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.1 Prices for Products and Services shall be the Company's quoted Price as set out in the Order Acceptance Form or where no Price has been quoted the standard prices of the Company in place at the date of acceptance of the Order.
2.2 The Company reserves the right to alter the Prices from time to time on reasonable notification.
2.3 Unless otherwise stated all Prices are exclusive of Value Added Tax (if any) which shall be payable by the Purchaser to the Company.
2.4 Prices will be increased in the event of increases in the cost to the Company which is due to any factor beyond the control of the Company (such as without limitation any foreign exchange fluctuations, currency regulation, alterations of duties, significant increase in the costs of labour, materials or other costs of manufacture).
2.5 In the event of extraordinary changes in the Price as set out in the Order Acceptance Form the Company shall have the right to re-negotiate the Price of goods not yet shipped or to cancel the Contract without liability.
2.6 In respect of EU sales VAT will not be included in the invoice when the Purchaser supplies a VAT registration number. VAT will be included in the case when the Purchaser does not supply a VAT number. In respect of worldwide sales VAT will not be included.
3.1 A charge will be made on all shipments for carriage and packing in the UK. The Company shall select the means of carriage and packing. Special deliveries made and/or packing included at the Purchaser's request shall be charged to the Purchaser.
3.2 Overseas sales are effected on a (CIP) basis, (as defined in the Incoterms) unless otherwise expressly agreed in Writing by the parties. Any costs not incurred under an Incoterms (CIP) Contract shall be payable by Purchaser.
4 DELIVERY OF GOODS, STORAGE AND COMPLETION OF SERVICE
4.1 Any dates, or periods, for the delivery of Products or completion of Services are estimates only and are not guaranteed. The Company shall not be liable for any delay in delivery of Products or completion of Services however caused. Time for delivery shall not be of the essence of the Contract.
4.2 The Company shall have no liability for any loss whatsoever arising out of or in connection with delay in despatch or delivery of Products, or completion of any Services.
4.3 Products shall be delivered and Services shall be performed at the place
stated in the Order Acceptance Form.
4.4 Where the Products are to be delivered or the Services performed in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Purchaser in respect of one or more instalments shall not entitle the Purchaser to treat the Contract as a whole as repudiated.
4.5 If the Company fails to deliver the Products or perform the Services (or any instalment thereof) for any reason other than any cause beyond the Company's reasonable control or the Purchaser's fault, and the Company is accordingly liable to the Purchaser, the Company's liability shall be limited to the excess (if any) of the cost to the Purchaser (in the cheapest available market) of similar goods to replace those not delivered over the Price of the Products.
4.6 Where delivery is delayed at Purchaser's request or for other reasons attributable to the Purchaser, storage and other associated costs will be charged to the Purchaser, and the Products will be held at the Purchaser's risk. For the avoidance of doubt the Company shall not be liable whatsoever in respect of any delay or other problems it experiences upon attempting to deliver the Products and/or Services as a result of the Purchaser failing to accept delivery of the Products and/or performance of the Services.
4.7 The Company reserves the right:
(a) to invoice the Purchaser for the Products on the original Delivery Date;
(b) for the warranty in clause 12 to commence on the earlier of the dates in which the Products are first held or despatched to storage.
(c) where possible to sell the Products at the best Price readily obtainable, without compromising the Purchaser's security, and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the Price under the Contract or charge the Purchaser for any shortfall below the Price under the Contract.
5.1 Products (and Services) supplied will be in accordance with the standard specifications set out in the Order Acceptance Form at the time of despatch, except where otherwise agreed in Writing. The Company reserves the right to make such improvements or modifications in such specifications which do not significantly reduce overall performance of the Products (or Services (as appropriate)) and any charges that are required to conform with any applicable statutory or EU requirements.
5.2 The Purchaser shall be responsible to the Company for ensuring the accuracy and completeness of the terms of any Order (including any applicable specification) submitted by the Purchaser and for giving the Company any necessary information relating to the Products and/or Services within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
5.3 The quantity, quality and description of any specification for the Products and/or Services shall be those set out in the Company's Order Acceptance Form.
6 DAMAGE AND LOSS IN TRANSIT
6.1 Any damage or loss to Products in transit shall be notified by the Purchaser to the carrier and the Company within 7 days of receipt of the Products, which shall be held for inspection to enable a claim (if appropriate) to be made against the carrier.
6.2 If Products are not received by the Purchaser within 7 days of the date of the invoice, the carrier and the Company shall be immediately informed.
6.3 Failure to inform or notify the Company or the carrier in Writing within these time limits referred to in clause 6.1 and 6.2 shall absolve the Company from any further liability in respect thereof.
7 PROPERTY AND RISK
7.1 Without prejudice to Clause 4, for destinations in the UK the risk in the Products supplied by the Company shall pass to the Purchaser on delivery to the place stated in the Order Acceptance Form.
7.2 For destinations outside the UK, risk in the Products supplied to the Purchaser shall pass to the Purchaser in accordance with the provisions of the Incoterm agreed pursuant to Clause 3.2.
7.3 Ownership of all Products (and where appropriate, of any Services) is reserved to the Company and property in the Products (and where appropriate Services) supplied by the Company shall not pass to the Purchaser until the purchase Price for each such Product (and where appropriate, Service) shall have been paid in full and without deduction. In the case of payment by cheque, the cheque shall have cleared the relevant bank.
7.4 Until the property has so passed, the Products (and where appropriate, Services) shall be held by the Purchaser for the Company as the Company's fiduciary agent and bailee and the Purchaser shall identify the Products (and where appropriate, Services) held for and as the property of the
7.5 If the Products (and where appropriate, Services) are disposed of or lost before property shall have passed, then any monies received or receivable by the Purchaser in respect of such disposal or loss shall be held separately from all other monies received or receivable by the Purchaser and upon trust for the Company, absolutely.
7.6 If payment is not made in full in accordance with these Terms and Conditions, the Company or its agents or employees shall at anytime thereafter, have the right to enter upon the premises at which the Products (and if appropriate, Services) are located (with or without notice) and whether or not occupied, related to or used by the Purchaser and remove the Products (and where appropriate, Services), provided always that where Products are incorporated in or attached to or used as material for the manufacture of other goods the property in the whole of such goods shall vest in the Purchaser and shall hold such goods as bailee of and to the order of the Company until the Company has received payment in full in respect of the Product and all the Company's rights in relation to the Product (including its rights under these Terms and Conditions) shall extend to such goods.
8 INVOICE AND PAYMENT TERMS
8.1 8.1 Where the Company has extended credit to the Purchaser invoices are due for payment within 30 days of the date of invoice, unless otherwise agreed in Writing notwithstanding that delivery of the Products may not have taken place and the property in the Products has not passed to the Purchaser. The time of payment of the Price shall be of the essence of the Contract. In the event of non-payment by the due date, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
(a) cancel the Contract or suspend all deliveries until payment of all amounts invoiced has been received; and/or
(b) to appropriate any payment made by the Purchaser to such of the Products and/or Services (or the Products and Services supplied under any other Contract between the Purchaser and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser); and/or
(c) to withdraw credit facilities; and/or
(d) to charge interest (both before and after any judgment) on the overdue amounts at 3% above the Barclays Bank plc base rate ruling on the date the amount becomes overdue, until payment in full; and/or
(e) to appoint a debt collection Company to recover all sums owed plus all the charges associated with this appointment.
8.2 In the case of Pro-forma invoices payment must be received by the Company before the Products and Services can be supplied.
8.3 For the avoidance of doubt all Order Acceptance Forms will contain:
(a) Price of goods as detailed in clause 2;
(b) Carriage and packing charges as detailed in clause 3;
(c) VAT for both of the above (where it applies) as detailed in clause 2;
(d) the Delivery Address for Products to be delivered or Services to be carried out;
(e) the nature of the Products and Services; and
(f) the Delivery Date.
9.1 Orders must bear the Purchaser's purchase order number and must be placed in Writing and signed by an authorised person prior to despatch to the Company. The content, specification and accuracy of the Order including but not limited to colour, type, code, numbering and firmware is the absolute responsibility of the Purchaser. Tags once programmed cannot be used elsewhere without compromising the security of the Purchaser. No Order submitted by the Purchaser shall be deemed to be accepted by the Company unless and until confirmed in Writing by the Company's authorised representative by way of its Order Acceptance Form.
10 GOVERNMENT PERMITS/REGULATIONS FOR USE
10.1 For sales outside the UK:
(a) the Purchaser shall be responsible for obtaining all licences and compliance with legislation and regulations required for the import and/or use of the Product (or Services where appropriate) and where appropriate for any information relating to any Product and the payment of any duties on them; and
(b) The Company shall not be liable for any loss or damage arising from the delivery or refusal by any government or regulatory authority to grant any relevant import/export and/or operating permits in respect of the Products (or Services where appropriate) and where appropriate, any information relating to any Product.
10.2 Each Contract is made subject to any governmental law, orders or other restrictions on the export of Products or the reshipment of Products by the Company from the UK or information about Products, which may be imported from time to time by the government of the UK and which affects the Company. The Purchaser will not export directly or indirectly any such Products or information to a country which such government or any agencies thereof requires an export licence or other governmental approval at the time of export without first obtaining such licence or approval, and the written permission of the Company.
11 APPLICATION OF PRODUCTS AND/OR SERVICES
11.1 The Company's Products are not designed for use in or in order to preserve life, property or prevent injury and the Company does not warrant, guarantee or in any way indemnify use of the Products in such applications. Use of the Products in such a manner is understood to be fully at the risk of the Purchaser, and the Company excludes all liability in this respect.
12.1 The Company will, at its option, unless otherwise agreed in Writing, replace or repair free of charge, Products which in its opinion have proved defective during normal and proper use within 12 months from date of despatch (or otherwise stated in Clause 4, Clause 5 and Clause 6) where:
(a) the defect is shown to the satisfaction of the Company to be due to be faulty workmanship or materials and no unauthorised alterations or modifications have been carried out to the Product since the Delivery Date;
(b) the Purchaser notifies the Company of the defect with full details thereof within 7 days of discovery;
(c) it is returned suitably packed in accordance with the directions given by the Company at the time of notifying the defect; and
(d) the Product or part described has been used and maintained properly and carefully in accordance with any instruction issued by the Company.
12.2 The above warranty is given by the Company subject to the following conditions:-
(a) the Company shall be under no liability in respect of any defect in the Products or Services arising from any drawing, design or specification supplied by the Purchaser;
(b) the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether oral or in Writing), misuse or alteration or repair of the Products or Services without the Company's prior written approval in Writing;
(c) the Company shall be under no liability under the above warranty (or any other warranty, conditions or guarantee) if the total Price for the Products and Services has not been paid by the due date for payment; and
(d) the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
12.3 Products supplied by the Company to the Purchaser which have been manufactured by others (details of which will be supplied upon request) will be supplied to the Purchaser for the unexpired period of such warranty, with only the benefit of such manufacturer's warranty, and no other.
12.4 The Company warrants that it will use reasonable skill and care in the performance of Services. Any Products provided will be supplied with the benefit of warranties expressed above, as appropriate. The Company warrants Services undertaken by the Company will be free from defects in workmanship and materials for a period of 90 days from delivery.
12.5 The above warranties and limitations are exclusive remedies and are in lieu of all other warranties expressed or implied, including, without limitation, any warranty or fitness for a particular purpose or merchantability, except to the extent, if any, required at law.
12.6 Continued use or possession of the Products and/or Services after the warranty period has expired shall be conclusive evidence that that warranty is fulfilled to the full satisfaction of the Purchaser.
12.7 Where the Company undertakes Development Work for the Purchaser in accordance with the Order the Company makes NO WARRANTY as to firmware or Software Products which are supplied "AS-IS" or as to experimental or development products produced as a result of the Development Work. The Company is not obliged to produce repeat copies of samples of development firmware under any circumstances until the Development Work is fully paid and the Purchaser gives written approval as to the correctness of the computer code.
12.8 Where the Products are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions or Statements) Order 1976) the statutory rights of the Purchaser are not affected by these Terms and Conditions.
12.9 Except in respect of death or personal injury caused by the Company's negligence, the Company shall not be liable to the Purchaser by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit, use, contract, goodwill or otherwise), costs expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products (or Services where appropriate) or their use or resale by the Purchaser.
12.10 The entire liability of the Company under or in connection with the Contract shall not exceed the Price except as expressly provided in Writing.
13.1 The encoded contents of firmware and the Software are proprietary to the Company and/or its suppliers shall remain the property respectively of the Company and/or its suppliers.
13.2 In respect of any encoded contents of firmware and the Software for which the Company does not require the Purchaser and/or end user to enter into a Software Licence Agreement, the Company hereby grants to the Purchaser (and if appropriate its end user) a non-exclusive, non-transferable (fully paid up) Licence to use the Software in an unmodified form, on compatible production supplied by the Company. The Purchaser hereby undertakes to inform any end user prior to entering into a Contract for the supply of encoded contents of firmware, to which this clause applies, of its limited interest therein, and of the restrictions relating thereto, in particular with regard to use, liability, and warranty under which the same has been provided by the Company to the Purchaser. Save as provided in this clause, no further rights are granted in respect of the encoded contents of firmware and/or Software to which this clause applies.
13.3 In the case of a Software Licence Agreement one copy of computer code may be copied for back up purposes only.
14 RETURN OF GOODS
No Products may be returned (unless in accordance with clause 12) without the Company's prior consent. The Company will issue a Return Number (RN) for each Order or part Order approved for return. The issue of an RN does not mean that a credit will be issued by the Company.
The Buyer shall not be entitled to cancel or vary an Order or any part thereof, without the agreement in Writing of the Company. A cancellation charge up to the full value of the undelivered Products or Services may be levied at the absolute discretion of the Company.
The sale of Products and the provision of any information or technical data to the Purchaser by the Company does not confer any rights in respect of any patent, trade mark, copyright or other intellectual property rights that may exist in relation to the Products. The Company accepts no liability on behalf of the Purchaser in the event the Purchaser infringes any third parties' rights.
17 DETERMINATION OF ORDERS
If the Purchaser shall:
(a) breach any of these Terms and Conditions;
(b) suffer distress or execution with creditors;
(c) cease, or threatens to cease, to carry on business;
(d) becomes bankrupt or goes into liquidation (except for amalgamation or reconstruction upon terms approved in Writing by the Company) or any equivalent insolvency situation that may occur in any jurisdiction including but not limited to a voluntary arrangement with creditors; or
(e) a receiver is appointed in respect of any of its assets
the Company may (without prejudice to any claim or remedy) suspend performances of, or determine such Contract by written notice and shall be entitled to payment for Services supplied or for Products already delivered and for any work in progress under the Order in question at the rate provided in the Contract or, if none, at a rate reasonably based in the Price in question. Further all sums owing to the Company shall become payable immediately notwithstanding any previous agreement or arrangement to the contrary.
Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
19 FORCE MAJEURE
If production or delivery of the Products and/or Services shall be delayed or prevented by any cause beyond the reasonable control of the Company, including but not limited to power failure, difficulty of obtaining materials, breakdown of machinery or transport, strike, lock out, other industrial action, fire, storm, lightning or flood, riots or civil disorder, insurrection, act of government or authority the Company shall not be answerable for any such delay nor liable for any direct or indirect loss of whatsoever nature thereby caused. Without prejudice to the foregoing, if any such delay shall continue for a period exceeding six months, either party shall have the right to cancel the Contract by notice to the other and on such cancellation the Company shall return the deposit (if any) by the Customer and neither party shall be under any further obligation to the other.
The Company shall have the right to assign to any third party its rights under any Contract with Purchaser. The Purchaser shall not be entitled to assign its rights or transfer its obligations under any Contract without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.
Unless expressly incorporated in a Purchasers order form or in a Contract, any written or oral information about price, colour, type, computer code, firmware, availability, delivery, design, specification, importation or description of Products or Services given prior to making of the Contract, shall have no legal or contractual effect.
Any waiver of these Terms and Conditions (or any of them) shall not prejudice or affect either parties' rights and remedies in respect of subsequent breach, non-performance or non-observance by the other party.
In relation to any Contracts concluded between the Company and the Purchaser after notice of these Terms and Conditions has been given to the Purchaser, these Terms and Conditions shall supersede in relation to the subject matter of any Contract, any other earlier conditions, previous understandings, commitments, agreements or representations whatsoever, whether oral or written, express or implied.
If any part of these Terms and Conditions, or any other term or condition of a Contract, is adjudged by a competent court to be invalid or unenforceable, the remaining parts shall continue in full force and effect.
The Terms and Conditions shall be governed by and construed in accordance with The Laws of England and Wales subject to the exclusive jurisdiction of the courts of England and Wales.
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