FINGERPRINT DIGITAL LTD – Standard Terms and Conditions for the supply of Goods and Services
This document constitutes the terms and conditions upon which FINGERPRINT DIGITAL LTD of 26 Hall Barn Road Industrial Estate, Isleham, Ely, Cambs CB7 5RJ (hereafter referred to as “FDL”) agrees to supply goods and/or services (the “Goods” & “Services”) to the Customer on the following terms and pursuant to Purchase Orders provided by the Customer to FDL. No subsequent Purchase Order terms will supersede these terms and conditions of sale.
- DEFINITIONS
1.1. The section headings in these terms and conditions are inserted for convenience only and are not intended to affect the meaning or interpretation of the terms and conditions.
1.2. The following terms, when capitalised, have the ascribed meanings provided to them following each term and are to be interpreted as to their common usage:
a) “Business Day” means a day of business within the United Kingdom (UK) which operates between 8.30am to 5.30pm Monday to Friday, excluding Saturday, Sunday and the published UK public holidays.
b) “Customer” means the party to whom the Goods and/or Services shall be supplied by FDL.
c) “Delivery Date” means the date agreed as the date the Goods or the Services are to be delivered to the Customer;
d) “Force Majeure Event” means, but is not limited to, an event or occurrence which causes a Party to delay or fail to perform its contractual obligations, except for payment obligations, under these terms and conditions to the extent that such delay or failure is caused by fire, strike or labour disputes, embargo, explosion, earthquake, flood, war, water, the elements, pest damage, government requirements, acts of God, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond a Party’s reasonable control.
e) “Goods” means any tangible or intangible goods to be delivered by FDL and includes any Hardware, Software, documentation, supplies, accessories and other commodities related to any of the foregoing.
f) “VAT” means the national tax imposed on specifically prescribed items by the UK Parliament (Value Added Tax)
g) “VAT Rate” means the percentage rate/s of tax specified by the UK Parliament as applicable to the specifically prescribed goods and/or services and shall be additionally charged to the price of goods and/or services.
h) “Hardware” means the tangible component of the Goods made available to the Customer, and includes machinery, control units, attachments, cords, and as detailed in the equipment specifications and offered at the point of sale.
i) “Parties” means both FDL and the Customer (and includes the singular “Party”).
j) “Pricing” means the price of Goods and/or Services as set out in any quote provided by FDL (exclusive of VAT).
k) “Purchase Order” is a written or electronic order from the Customer to FDL for Goods or Services to be purchased, provided by FDL under these terms and conditions.
l) “Services” means the services including but not limited to installation, engineering, training, resource planning or consulting services and any other services to be performed by FDL or its agents. To avoid doubt, the maintenance and technical support services to be provided by FDL to the Customer will be provided pursuant to a separate “FDL Maintenance Agreement”.
m) “Software” is digitally supplied operating systems data as supplied by manufacturers specifically for use with the equipment supplied.
n) “Warranty” has the meaning as set out in clause 8 herein.
- PRICING
The price of Goods and Services provided by FDL is as follows:
2.1. Goods:
The price of Goods will be in accordance with the quotation as provided by FDL. Quotations are fixed and remain valid for a period of thirty (30) days from the date of the final quotation, unless otherwise specifically stipulated on the quotation, and if within this period are ordered by the Customer, pursuant to a Purchase Order, will further remain fixed from receipt of the Customer’s order until the Delivery Date.
2.2. Services:
The price of Services will be in accordance with the quotation as provided by FDL. Quotations are fixed and remain valid for a period of thirty (30) days from the date of the final quotation and if within this 30 day period are ordered by the Customer pursuant to a Purchase Order, will further remain fixed from receipt of the Customer’s order until the Services are fully performed.
2.3. Variation to Pricing:
If, after acceptance of the quotation as provided by FDL, the Customer delays the Delivery Date, other than due to a Force Majeure Event, for a period greater than agreed, then FDL reserves the right to vary the Pricing for the Goods and Services.
2.4. Unless otherwise stated prices quoted shall be exclusive of any applicable VAT, and any other duties, imposts and taxes which the Buyer shall be additionally liable to pay to FDL.
- PAYMENT
The Customer agrees to pay for all work carried out and /or Goods provided by FDL as follows:-
3.1 FDL shall be entitled to invoice the Customer for the price of the Goods at any time after the Goods are available for despatch, and all purchases of Goods and Services shall be paid for in full on completion of the same, subsequent to any variance stated at the point of sale whereby a deposit or other payment is to be made prior to supply.
3.2. Where FDL separately agrees in writing to supply Goods and Services on an ‘account basis’ (as recognised by common trading) all payments for Goods and Services shall be made within 30 days of the invoice date.
3.3 If the Customer fails to make any payment by the due date then, without prejudice to any other right or remedy available to FDL, FDL shall be entitled to:
3.3.1 cancel the Contract or suspend any further deliveries to the Customer;
3.3.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and FDL) as FDL may think fit (notwithstanding any purported appropriation by the Customer); and
3.3.3 charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 1.75% per month from time to time until payment in full is made.
3.4. Finance and Leasing shall be arranged by the Customer, or through an agent appointed by FDL as authorised by, and compliant with the rules of the Financial Services Authority (FSA). Payment from the finance supplier shall be as set out in 3.1 above.
3.5. Finance & leasing documentation must be completed and accepted prior to delivery and installation.
3.6. Excluding faulty or damaged goods, FDL shall be under no obligation or liability to accept the return of any goods duly supplied in accordance with the original contract of sale.
- DELIVERY AND TITLE
FDL will deliver Goods to the Customer’s address specified on the Purchase Order, and the Customer will pay any freight or other delivery costs applicable, unless agreed otherwise. The Customer expressly acknowledges that title to the Goods, and any Hardware or Software provided to the Customer as part of the Services does not pass to the Customer until the total price of the Goods, in the case of Goods, and the total cost of Services, in the case of Services, has been paid to FDL.
- RISK OF GOODS
Notwithstanding clause 4, the Customer expressly acknowledges that the risk of the Goods passes to the customer on delivery to the Customer’s specified address.
- ACCEPTANCE BY CUSTOMER
The Customer accepts the Goods when the Customer signs for delivery of Goods.
- SERVICES
7.1. Installation of Goods does not include any cabling, connection of data or electrical wiring to the customers supply lines or connection points, cabinets, frames, stands or items required for operating the goods supplied, other than as supplied specifically by the manufacturer for use with the goods. or otherwise agreed with FDL at the point of sale.
7.2. The Customer is responsible for ensuring all third party cabling and other connections or services necessary for installation and/or operation of Goods, are carried out prior to FDL carrying out installations and/or Services.
- WARRANTY
8.1. FDL warrants to the Customer as follows:
8.1.1. The Goods:
a. shall, unless otherwise agreed in writing, be new and conform to the description and any applicable specifications, as to both quantity and quality as specified in the order.
b. are of merchantable quality, free from defects, and fit for the purpose for which they are ordinarily intended or required by the Customer (or a person in a similar business to the Customer);
c. are free of any encumbrances or liens;
d. are legally and beneficially owned by FDL;
e. all reconditioned Goods (if any) are guaranteed by FDL to perform as specified for a period of three (3) months, from date of delivery to Customer unless otherwise agreed in writing.
8.2. Where any valid claim, in respect of any of the Goods, is based on any defect in the quality or condition of the Goods or their failure to meet specification, is notified to FDL in accordance with these Conditions, then FDL shall be entitled to replace the Goods (or the part in question) free of charge or at FDL’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price), but FDL shall have no further liability to the Customer.
8.3 Except in respect of death or personal injury caused by FDL’s negligence, FDL shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of FDL, its employees or agents or otherwise) which arise out of or in connection with the supply or failure to supply the Goods and/or Services, or their use, except as expressly provided in these Conditions.
8.4 FDL shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of FDL’s obligations in relation to the Goods and or Services, if the delay or failure was due to any cause beyond FDL’s reasonable control.
8.5. For any additional requirements, where the Customer does not have a valid maintenance agreement in place with FDL, FDL reserves the right to charge the Customer for additional work, including time spent to diagnose the issue/s at FDL’s standard time and materials rates.
- CUSTOMER OR THIRD PARTY ERROR OR FAILURE
9.1. Any warranty given by FDL pursuant to clause 8 will not apply where any failure or error in performance by Goods is due to operator error, or due to failure or error in Goods or Services provided by third parties, unless such third parties are under the direct control of FDL.
9.2. Where FDL reasonably determines operator or third party Goods or Services failure or error, FDL will be entitled to charge the Customer at its then standard rates, for investigative work and any repair work subsequently carried out.
- CUSTOMER REQUIREMENTS
Unless otherwise agreed in writing between the Parties, FDL will not be bound by any request or stipulation by the Customer, including delivery times and/or places, and customisation of Goods, and in particular FDL will not be liable for any loss or damage suffered or caused as a consequence of FDL not complying with any such requirement.
- AMENDMENT / VARIATION
Neither the Goods and Services nor these terms and conditions, may be amended or varied without the prior written consent and authorisation of the Managing Director of FDL.
- GOVERNING LAW AND DISPUTE RESOLUTION
These terms and conditions and any disputes arising out of or relating to them (“Disputes”) will be governed by and construed in accordance with English law.
12.1. Process
The Parties agree that any Dispute arising during the course of these terms and conditions is dealt with as follows:
a. the party claiming that there is a Dispute will send the other a written notice setting out the nature of the Dispute;
b. the Parties will try to resolve the Dispute initially through direct negotiation between the Parties’ appointed representatives, who will endeavour to resolve the matter within 7 days of the giving of the notice;
c. if the Dispute is not resolved within that time, the Dispute must be referred to the Parties’ respective executives, or such other persons who they have given authority to resolve the Dispute, who will endeavour to resolve the Dispute within a further 7 days or any other agreed period;
d. the Parties have a further 10 business days to reach a resolution or to agree that the Dispute is to be submitted to mediation or some alternative Dispute resolution procedure;
e. and if:
i. the Dispute is not resolved in that time;
ii. there is no agreement on submission of the Dispute to mediation or some alternative Dispute resolution procedure in that time; or
iii. there is a submission to mediation or some other form of alternative Dispute resolution procedure, but there is no resolution within 15 business days of the submission, or such extended time as the Parties may agree in writing before the expiration of the 15 business days, then either Party may commence legal proceedings.
12.2. Application
12.2.1. Nothing in clause 12.1 limits, delays or prevents a Party from exercising any right or remedy that they may have under these terms and conditions.
12.2.2. Contractual obligations are not affected, and the Parties must continue to comply with their obligations under these terms and conditions, notwithstanding that there is a Dispute between them, or that other proceedings are pending or current.
12.3. Not Withholding
Disputes will not be a basis for withholding payment of any undisputed amounts due to FDL or offsetting other amounts due whether or not the disputed item is on the same Purchase Order or invoice, nor will any amount be retained in anticipation of a Dispute for which notice has not been received and resolved.
12.4. Time Limit
Actions on Disputes between the Parties must be brought in accordance with these terms and conditions within ninety days (90) after the cause of action arises.
- CONFIDENTIALITY
Each Party shall treat as confidential all information disclosed to or obtained from the other Party pursuant to these terms and conditions and shall not divulge such information to any person (other than such Party’s employees or contractors or other authorised parties who need to know) without the other Party’s prior written consent, provided that this provision shall not apply to information which was rightfully in the possession of such Party prior to any negotiations, which is public knowledge (other wise than as a result of a breach of this provision) or which is disclosed in compliance with applicable law, regulation or court order, provided the other Party is given reasonable written notice of such proposed disclosure.
- LIMITATION OF LIABILITY
14.1. Scope
The limitations of liability in this section will apply to any damages, however caused, and on any theory of liability, whether for breach of contract, tort (including, but not limited to, negligence), or otherwise, and regardless of whether the limited remedies available to the Parties fail of their essential purpose. The limitations of liability will not apply, however, in cases of wilful misconduct, death or personal injury, or breaches of FDL’s or a manufacturer’s license restrictions with manufacturers of the Hardware and/or Software.
14.2. Excluded Types of Damage
In no event will either Party or its respective licensors or suppliers have any liability for any incidental, special, statutory, indirect or consequential damages, or for any loss of profits, revenue, data, fraud, or cost of cover.
14.3. Aggregate Liability
The liability of either Party for any claim arising out of or in connection with the delivery of any Goods or Services under these terms and conditions will not exceed an amount equal to the value of the goods or services. The liability of either Party for any claim arising out of or in connection with any order will not exceed an amount equal to the value of the goods or services. The total aggregate liability of either party for each and all claims arising out of or in connection with these terms and conditions will not exceed an amount equal to the value of the goods or services paid or payable by the Customer under this Agreement.
14.4. Limitation of Liability for Representatives
The limitations of liability in this section will also apply to any liability of directors, officers, personnel, agents and suppliers. Directors, officers, personnel, agents and suppliers will be third party beneficiaries of this contractual limitation of liability and will be entitled to enforce this limitation directly against the other Party.
- FORCE MAJEURE
Either Party is not liable for damages due to a Force Majeure Event occurring beyond a Party’s reasonable control and any failure to perform by either Party as a result of any such occurrence, interference or interruption shall not be deemed as a default act.
