Terms & Conditions
PRISYM ID LIMITED Terms & Conditions
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TERMS AND CONDITIONS OF SUPPLY
1.1 In these terms and conditions (“Terms”):
“AO” means the acknowledgement of order form or, if none, the Quotation, issued by the Company to the Purchaser;
“Applicable Guarantee Period” means, subject to clause 7, the guarantee period applicable as notified in the relevant Quotation issued by the Company and confirmed in any AO, or if not stated therein, the period of 90 days from the date of initial delivery or of relevant performance;
“Company” means PRISYMID Limited registered in England and Wales at Tech House, Oaklands Business Centre, Oaklands Park, Wokingham Berkshire RG41 2FD, United Kingdom Company Number 05004963;
“Contract” shall mean, unless otherwise agreed in writing by the Company, solely these Terms, any AO and any relevant Quotation issued by the Company to the Purchaser;
“Goods” means the goods listed in the AO or which the Company otherwise agrees to supply to the Purchaser (including any instalments or parts of the goods);
“liability in relation to” means ‘liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with’;
“Price”, subject to these Terms, means the amounts payable for the Goods, Services and/or Software as confirmed in any AO.
“Purchaser” means the purchaser of the Goods, Services and/or Software as stated in any applicable AO;
“Quotation” means the written quotation issued by the Company to the Purchaser for the Goods, Services and/or Software;
“Services” means any services which the Company agrees to perform as specified in the AO; and
“Software” means the software identified in the Quotation together any user documentation, any Standard Releases and Revision Releases issued by the Company to Customer under any support agreement and any Customer-specific configurations or deliverables.
2. QUOTATIONS, SPECIFICATION, VARIATION AND CANCELLATION
2.1 A Quotation is not an offer and may be withdrawn or modified; save as otherwise agreed in writing by the Company no Contract or commitment shall exist until the Company sends its AO to the Purchaser or until the Company commences work on or appropriates Goods or Software to the Purchaser or commences performance of Services.
2.2 The Company may alter the specification of any Goods or Software or the scope of any Services if this does not materially affect their performance or utility.
2.3 If any variation in the Goods, Software, Services or the Contract is agreed or is required for compliance with any applicable law, regulation or safety recommendation, the Purchaser shall pay such additional amount as is fair and reasonable and the Company shall have reasonable additional time to perform the Contract.
2.4 If the Contract includes support services for software, such support will be provided solely in accordance with the relevant provisions of the Company’s Support Services Agreement in force at the date of the Contract, a copy of which is available on request.
3. PRICES AND PAYMENT
3.1 Subject to any AO, the Price shall be ex-works and shall exclude value added tax and any other applicable taxes and duties, packaging, carriage, insurance, documentation and installation charges which shall be payable by the Purchaser in addition. Unless costed for in any AO, the Company may make reasonable additional charges for complying with any special requirements of the Purchaser. Payment, subject to any AO, shall be made in pounds sterling clear of any banking transaction charges and without any deduction, set off or counterclaim whatsoever. Payment shall be made in accordance with the payment terms stated in any AO, or if none are stated, within 30 days of invoice following initial delivery of the Goods or Software or commencement of performance of the Services. A payment shall be deemed made when credited to the payee's bank account and is cleared funds.
3.2 Time of payment is of the essence of every Contract. Without limiting the Company's remedies, if payment is overdue, the Purchaser shall indemnify the Company against any legal fees and other costs of collection and (as well after as before judgment) shall pay to it a sum equal to any loss suffered by the Company arising from exchange rate fluctuations and interest on such sum and on the amount overdue at 4% above the base rate from time to time of Barclays Bank PLC calculated from the date payment fell due until the date of actual payment (or such lesser amount as is the maximum rate permissible by law) and the Company may cancel the Contract and any other contracts and suspend deliveries to the Purchaser.
3.3 Any payment which falls due later than it would have done because of delay caused by the Purchaser shall be deemed to fall due when, but for the Purchaser's delay, it might reasonably be expected to have fallen due. The Company may delay or withhold performance under the Contract until the Purchaser has made any payment or opened any letter of credit or established any other payment arrangements which are due to be made, opened or established and its time for performance shall be extended accordingly.
4. RISK AND PROPERTY
4.1 Until payment has been made of the whole of the Price and other monies payable by the Purchaser under the Contract and of all other monies owing by the Purchaser to the Company at the time the payment for the Goods falls due:
(a) property in any Goods shall remain the Company's; the Purchaser shall hold such Goods as the Company's fiduciary agent and bailee, stored separately from those belonging to any other person and labelled so as to show clearly that they are the property of the Company and properly protected, treated and insured;
(b) the Company may recover and/or resell the Goods, require their return to the Company and enter upon the Purchaser's or any carrier's premises by its servants or agents for that purpose and the Purchaser grants the Company an irrevocable licence to this effect which shall survive termination of the Contract;
(c) upon disposal by the Purchaser of the Goods it shall account to the Company for the proceeds and shall keep such proceeds separate from any other monies or property and (if tangible) properly stored and insured;
(d) the Company shall have a right of lien over any goods or materials belonging to the Purchaser which are in the Company's possession or control; and
(e) the Purchaser shall not pledge or charge by way of security for any indebtedness any of the Goods which remain the Company's property but if it does all monies owing by the Purchaser to the Company shall forthwith become due and payable.
4.2 Risk of damage to or loss of the Goods shall pass to the Purchaser at the earlier of the time when the Company notifies the Purchaser that the Goods are available for collection or upon the Company first despatching the Goods from its premises.
5.1 Save as otherwise agreed in writing by the Company, delivery shall be made by the Company making the Goods available for collection from its premises and so informing the Purchaser or, if some other place for delivery is stated in any AO, by the Company or its nominated carrier despatching the Goods from its premises to the stated place. If the Purchaser fails to take delivery or to give adequate delivery instructions, the Company may (without prejudice to its other rights) store or dispose of the Goods, in which case the Purchaser shall pay to the Company upon request the amount of any reasonable storage or disposal charges. Whilst the Company will seek to meet the stated delivery time, it is approximate and the Company shall not incur liability in relation to late delivery. If no time for delivery is agreed the Purchaser shall accept the Goods when ready for delivery.
5.2 The Company may deliver in instalments constituting separate contracts and delay in delivery of any instalment will not entitle the Purchaser to terminate the Contract, nor permit the set-off of any payments in respect of one delivery against any claim in respect of any other delivery. Where Goods are delivered by instalments the Company may issue separate invoices.
5.3 The costs of clearing the Goods for export from the UK and import into the country of delivery shall be borne by the Purchaser unless any AO states otherwise; the Purchaser shall clear the Goods for any subsequent export or use and shall comply with the Company’s reasonable instructions in relation to export controls; the Purchaser shall indemnify the Company against any liability in relation to any breach by the Purchaser of this clause 5.3.
5.4 Software shall be deemed delivered when it has been made available for download by the Purchaser or has otherwise been supplied to the Purchaser unless otherwise agreed in the AO.
6. INSPECTION AND ACCEPTANCE
The Purchaser shall inspect and test the Goods and/or Software and within 5 days of their delivery (and in respect of Services, within 5 days of the Company tendering their completion) shall give written notice to the Company of any damage or claim. In the absence of such notice, the Goods, Software and/or Services shall be deemed to comply with the Contract and the Purchaser shall accept them. The Goods are sold as a batch and without prejudice to the Purchaser's right to reject all the Goods the Purchaser may not reject some only of the Goods. Software shall be deemed accepted on its delivery.
7. GUARANTEE / WARRANTY
7.1 Subject to clause 7.5, if within the Applicable Guarantee Period any (a) Goods prove defective by reason of faulty design, workmanship or materials, (b) Software fails to materially comply with its specification or (c) Services fail to materially comply with any description agreed for them, the Company will adjust, repair, replace or re-perform them as it sees fit free of charge provided that:
(a) the Purchaser gives written notice of the defect (with reasonable relevant information) to the Company as soon as reasonably practicable and within the Applicable Guarantee Period;
(b) the Goods, Software or Services have been used solely for their proper purpose and in accordance with any stated instructions;
(c) the defect has not been caused by fire, accident, misuse, neglect, incorrect installation by someone other than the Company, unauthorised alteration, repair or maintenance or the use of sub-standard consumables and has not arisen from fair wear and tear;
(d) the defect has not arisen from any design, specification, component or material supplied by or on behalf of the Purchaser;
(e) no part of the Goods have been replaced with a part not supplied or approved by the Company, nor have the Goods, Software or Services been altered or modified by any person other than the Company;
(f) payment in full of all sums due has been made;
(g) the Purchaser shall be liable for any costs incurred by the Company in responding to claims caused by operator error or incorrect application or other default of the Purchaser or other third party;
(h) the Purchaser shall accord the Company sufficient access to the Goods, Software and/or Services to enable its staff to inspect and adjust, repair, remove, re-perform or replace them; and
(i) the costs of all consumables (including but not limited to paper, gel, ink etc) shall be paid by the Purchaser.
7.2 The Company may repair Goods in situ or have them returned to its premises; if the latter, the risk in the Goods shall at all times remain the Purchaser's and they shall be packaged as the Company instructs and despatched at the Company's expense. Costs of carriage on the Goods' return to the Purchaser shall be borne by the Company where the defect is covered by this guarantee. Any Software repair or Services re-performance may be done remotely.
7.3 If the Goods, Software or Services incorporate goods, software or services provided by a third party, the obligations of the Company in respect of such goods, software or services shall not exceed the warranty obligations of such third party to the Company nor exceed any time limit upon those obligations;
7.4 The Applicable Guarantee Period for any Goods or Software replaced or repaired or any Services re-performed shall be the remaining period, if any, of such initial guarantee period.
7.5 To the extent that the Goods comprise labels, the Company uses all reasonable endeavours to meet specifications, but absolute compliance with specification is not guaranteed and all supplies of labels are subject to the following:
(a) delivery quantities, label sizes, specifications and designs are subject to variations of up to 20% either way in respect of each item and each aspect;
(b) reproductions of designs are subject to variations of up to 2mm in length and/or width; and
(c) colour fastness and non-shrinkage are not guaranteed and colour matches are subject to the best commercial match reasonably available.
7.6 If the Company is unable to remedy the non-conformance as stated in clause 7.1, the Company shall have the option to terminate the affected Contract and provide to Customer a refund of any fees paid applicable to the non-conforming Goods, Software or Services.
7.7 This clause 7 states the Company’s entire liability, and Customer’s exclusive remedy, for breach of the warranties stated in clause 7.1.
7.8 Save as expressly set forth in this Contract, the Company disclaims all warranties, expressed or implied, with respect to Goods, Software and Services including any implied warranties of merchantability, fitness for a particular purpose or high-risk use, title or non-infringement, and any warranties that may arise from usage of trade or course of dealing. The Company does not warrant, guarantee, or make any representations regarding the use of or the results of the use of the Goods, Software and/or Services in terms of correctness, accuracy, reliability, that the operation of the Goods, Software and services will be uninterrupted or error free, or otherwise.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 In an effort to keep the contract price as low as possible and as the Purchaser is better able than the Company to quantify loss which it may suffer from a breach of contract and to insure accordingly, the Purchaser agrees to the Company limiting its liability and therefore agrees that save as expressly agreed in writing or as mandatorily implied by law:
(a) the Company shall have no obligation in respect of the Goods, Software or Services except for its obligations in clause 7 above and as expressly stated in the Contract;
(b) if the Company has repaired, replaced, re-performed or refunded pursuant to clause 7 it shall have no further liability in respect of such defect or fault in the Goods, Software or Services;
(c) the Purchaser acknowledges that the Company’s obligations and liabilities in respect of the Goods, Software or Services are exhaustively defined in these Terms; and
(d) the Company shall not be liable for any loss which represents loss of profit, revenue, loss of anticipated benefit, anticipated savings or goodwill, loss of use of any asset, loss of data, business interruption, management costs or third party liability, howsoever caused, regardless of the nature of the claim and even if the Company is negligent or has been advised of the possibility of such damages.
8.2 Subject to clause 8.3, the aggregate liability of the Company (whether in contract, tort, breach of statutory duty or otherwise) for all breaches under or non-performance of its obligations or contemplated by any Contract shall not exceed a sum equal to 120% of the amount paid for the affected Goods, Software or Services.
8.3 Nothing in this Contract shall operate to limit or exclude any liability of the Company which cannot be effectively excluded in law, including liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation.
8.4 The Purchaser shall not rely upon any representation concerning the Goods or Services unless made by the Company in writing in the Contract save that nothing in the Contract or theses Terms shall exclude liability for fraudulent misrepresentation.
8.5 Save to the extent of any warranty stated or expressly confirmed in the AO (and so far as permitted by law), the Company shall have no liability in respect of any failure by the Goods to recognise date changes and the Purchaser shall satisfy itself in all such respects.
8.6 Subject to clause 8.3, any liability of the Company under any warranty, indemnity or other obligation stated or confirmed in the AO is subject to all exclusions and limitations in these Conditions.
9. REGULATORY COMPLIANCE AND LICENCES
9.1 The Goods, Services and Software will comply with mandatory UK regulations applicable to the production and non-consumer sale of the Goods, Services and Software at the date of delivery but no other warranty or undertaking as to regulatory or legal compliance in the UK or elsewhere is given or to be implied unless specifically given in writing signed by a director of the Company or stated in any AO. The Purchaser shall comply with applicable laws relating to the Goods, Services and Software, their use and disposal.
9.2 The Purchaser shall obtain in good time any applicable licences, permits and approvals relating to import and export and to the installation and/or operation of the Goods and will indemnify the Company against all liability in relation to Goods supplied without them. The Company shall not be responsible for any liability in relation to delay in obtaining or failure to obtain such licences, permits or approvals.
10. TERMINATION OF CONTRACT
10.1 The Company may terminate separately all or any of the Contract and every other contract with the Purchaser if:
(a) the Purchaser fails to make payments to the Company under any contract as they fall due or the Purchaser otherwise breaches any such contract and the breach or non-payment is not remedied within seven days of notice from the Company;
(b) the Purchaser is, or is deemed to be, insolvent or suspends payment or performance of its obligations or threatens to do so, or the Company has reasonable grounds for believing it will fail to discharge its obligations under any contract or steps are taken to propose any composition, scheme or arrangement involving the Purchaser and its creditors or obtain an administration order or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against, the Purchaser or any of its property or enforce any security over the Purchaser's property, or repossess any goods in its possession or wind up or dissolve the Purchaser, or sequestrate its estate or dissolve it or file a petition in bankruptcy or other relief from creditors;
(c) control of the Purchaser passes from the present shareholders, owners or controllers to other persons whom the Company in its absolute discretion regards as prejudicial to its reasonable interests;
(d) in the reasonable opinion of the Company the Purchaser has ceased or threatened to cease to trade;
(e) where the Purchaser is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner; or
(f) anything corresponding to any of the above occurs outside England and Wales.
10.2 If the Contract is terminated, the Company (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following:
(a) declare immediately payable (and so interest-bearing under clause 3.2) any sums owed by the Purchaser, proceed against the Purchaser for the same and/or damages, and appropriate any payment by the Purchaser as the Company thinks fit (notwithstanding any purported appropriation by the Purchaser);
(b) suspend further performance of any Contract and/or any credit granted to the Purchaser on any account (and the time for delivery by the Company shall be extended by the period of such suspension);
(c) take possession of and deal with (including the sale of) any materials and other assets of the Purchaser held by or on behalf of the Company and apply any proceeds of sale in payment of any sums owing under or damages arising in connection with any Contract including any interest and costs arising thereon.
11. INTELLECTUAL PROPERTY
11.1 The Company retains ownership of all inventions, designs, copyrights and processes and all and any other intellectual/industrial property rights whether or not registered or registerable and all goodwill associated thereto relevant to the Goods, Software and Services and all specifications, designs, programs or other material issued by or on behalf of the Company. The Purchaser acknowledges that any such item is confidential and agrees not to use it or any other confidential information of the Company for any purpose (other than the purpose for which it was disclosed) nor reproduce it in any form nor disclose it to third parties. The Purchaser shall not copy the Goods, Software or Services nor seek to abstract from the Goods, Software or Services any confidential information regarding their design, construction or otherwise.
11.2 With regard to Software, unless otherwise expressly agreed or stated in an AO, the Company hereby grants, and Purchaser hereby accepts, a non-exclusive, perpetual, non-transferable license to use, such Software solely for its internal business purposes up to the agreed limitations. Purchaser shall not: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Software (save solely as may be permitted by law) or disclose any of the foregoing; (ii) encumber, transfer, manufacture, distribute, sell, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use (except as expressly provided herein) the Software; (iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work of any part of the Software; or (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Software. Save as licensed hereunder, all rights subsisting in Goods, Services and Software are reserved.
11.3 The Purchaser shall obtain similar undertakings as those set out in sub-clause 11.1 from its customers and indemnify the Company against any liability in relation to any failure to do so. The Purchaser shall upon request sign and/or require its customers to sign the Company's form of non-exclusive licence to use programs contained in or comprising or necessary to operate the Goods; all obligations of the Company under any contract are conditional upon execution of such agreement and compliance with its terms.
12.1 Each Party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers with a need to know in connection with performance under a Contract, and who have been advised of, and recipient shall procure shall be bound by, the obligations of confidentiality hereunder), copy or use for purposes other than the performance of the Contract, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, or the pricing or terms of this Agreement and which is either marked as confidential or can reasonably be inferred to be confidential by its nature (“Confidential Information”), and each Party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. As between the parties, the Goods, Software and Services are the Confidential Information of PRISYM ID.
12.2 Breach of this clause 12 may cause irreparable harm and damage. Thus, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this clause 12 by recipient or its affiliates, employees, third party service providers or any other third party.
12.3 Confidential Information shall not include information that (a) is already known prior to the disclosure by the owning party; (b) is or becomes publicly known through no breach of this Contract; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; or (d) is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality.
12.4 Recipient may disclose Confidential Information to the extent such disclosure is required (i) by a valid court order or other governmental body having jurisdiction, provided that recipient gives discloser reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist discloser in obtaining, a protective order; or (ii) to establish or enforce such Party’s rights under the Contract.
13. USE OF GOODS AND SAFETY
13.1 The Purchaser shall:
(a) procure that the Goods (including any goods the subject of services), Software and Services are used only for the purposes and in the manner for which they were designed and supplied; that all persons likely to use or come into contact with the Goods, Software or Services receive appropriate training and copies of applicable literature supplied by the Company; that all third parties who use or may be affected by or rely upon the Goods, Software or Services are given full and clear warning of any hazards (both patent and latent) associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with. Any warning or proprietary notices displayed on the Goods, Software or Services must not be removed or obscured; the Purchaser shall procure that any third party to whom the Goods are supplied agrees not to remove or obscure such warning or proprietary notices and shall take such steps as are reasonable to enforce such agreement;
(b) promptly comply with any safety recommendation made to it in respect of the Goods (including recall of them), Software or Services and shall procure compliance by all relevant persons and shall pay the Company's reasonable charges for additional or replacement parts (including installation costs) supplied by the Company for this purpose;
(c) maintain and make available to the Company all records necessary to enable Goods to be traced to their ultimate buyer or user;
(d) indemnify the Company against any liability in relation to any breach of the Purchaser's obligations under this clause 13.1.
13.2 If Services are performed by the Company’s representatives on any premises of the Purchaser, the Purchaser shall ensure that such premises comply with all applicable health and safety regulations and that any necessary security or safety notices are communicated to the Company’s representatives. The Purchaser shall notify the Company in advance of the nature of any materials or other items to be held or worked on by the Company under the Contract, shall provide adequate warnings and instructions where such materials or items are or may be hazardous to safety and shall ensure that they comply with any requirements or descriptions in these Conditions and any AO.
13.3 The Purchaser shall indemnify the Company for any loss, damage or claim which arises from or relates to such premises, materials or items and which could not have been prevented by the Company or its representatives acting in accordance with the Purchaser’s reasonable written instructions and was not caused by the negligence or wilful default of the Company or its employees.
14.1 The Purchaser shall indemnify the Company against all liability in relation to any specification, design, information or component which the Purchaser has supplied to the Company and warrants that the use of such specifications, designs, information or components will not infringe the rights of any third party.
14.2 No indulgence, forbearance, partial exercise of any right or remedy or previous waiver by a party shall prejudice any of its rights or remedies. Remedies shall be cumulative and no choice of remedy shall preclude any other remedy.
14.3 The Purchaser shall not assign, mortgage, charge, sub-let, sub-licence or otherwise dispose of the Contract or any rights thereunder in whole or in part except as expressly agreed by the Company in writing.
14.4 After termination (howsoever caused) or cancellation, clauses 3.2, 4, 8, 11, 13 and 14.1 shall continue in full effect together with any other rights, duties, and obligations of the Parties hereunder, which by their nature may be reasonably inferred to have been intended to survive termination, cancellation, completion, or expiration of this Agreement.
14.5 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which is available apart from that Act.
14.6 Variations of the Contract shall be effective only if agreed in writing and will then prevail over these Terms.
14.7 The Company shall not be liable for any failure to perform its obligations hereunder by reason of any cause whatsoever beyond its control (including without limitation trade dispute; fire, flood or act of god; armed conflict; equipment or supply difficulties; any rule or action of any public authority; transportation delays; refusal or delay in granting any necessary licence or permit; or any repudiatory event by the Purchaser). In such circumstances it may terminate the Contract whereupon the Purchaser shall pay a sum equal to the costs to the Company of performing the Contract and the Company's liability shall be limited to repayment of any sums paid in respect of undelivered Goods or Software or unperformed Services less such costs.
14.8 Any Contract provision invalid or unenforceable for any purpose shall be severed for that purpose but otherwise remain valid and enforceable and shall not affect the validity of the remainder of the Contract.
14.9 All Contracts shall be governed and construed in accordance with English law and the Purchaser irrevocably submits to exclusive jurisdiction of the Courts of England without prejudice to which the Company may apply for any provisional or conservatory measures or interim relief in any court having jurisdiction in the Purchaser's country or the country where the Goods are then located.