Digital Barriers Services Limited – Standard Conditions of Sale
Whereas, a purchase order (the “PO”) has been placed by purchaser (“Purchaser”) to purchase and licence certain Equipment and Software, as defined below, (collectively, the “Products”) and Services, as defined below, from Digital Barriers Services Limited, company number 06883884, with its registered office at Milton Gate, 60 Chiswell Street, London, EC1Y 4AG (“DB”). The “Agreement” comprises the PO, these Standard Conditions of Sale (“Conditions”) and if applicable, any terms, conditions, caveats and assumptions contained in the DB quotation (“Quotation”) referenced in the PO or Order Acknowledgement, as defined below. In the event of a conflict between the terms contained in the Quotation, these Conditions and the PO, the order of precedence shall be (i) the Quotation; (ii) these Conditions; and then (iii) the PO, unless expressly agreed in writing otherwise.
In accordance with the PO issued by Purchaser and accepted by DB, DB shall: (a) sell and Deliver, as defined in Clause 4.1, that Equipment so specified in the PO (“Equipment” being defined as the hardware component of each product); (b) grant to Purchaser a licence to use the Software (as defined in Clause 8.1) on the terms and conditions set forth in Clause 8; and (c) install and commission the infrastructure necessary for the Products (“Installation Services”) if such service is specified in the Quotation and provide other services specified in the Quotation (collectively “Services”). DB reserves the right to subcontract such portions of Services to subcontractors of DB’s choice as it deems appropriate. A PO or parts thereof may be accepted by DB either (i) in writing (“Order Acknowledgement”); or (ii) by performance, upon Delivery of Products or commencement of the Services.
2. POs AND CONTRACT PRICE
2.1 The PO shall set out the Products and Services required by Purchaser, the Contract Price and the requested Delivery date. The PO shall incorporate these Conditions and no additional or different terms and conditions stated in the PO, any letter, or otherwise shall be binding unless expressly referred and agreed to in writing by DB.
2.2 The contract price for each item of Equipment, Software or Services is as specified in the accepted PO (the “Contract Price”) and shall be paid to DB in pounds sterling (£GBP) or as specified in the PO or agreed between the parties. The Contract Price excludes delivery charges unless stated otherwise in the Quotation. Unless specifically stated in the accepted PO: (i) the Contract Price for Products does not include Installation Services; and (ii) the Contract Price for Services does not include expenses for travel, living or accommodation.
2.3 The Contract Price does not include value added tax and any other applicable duties, taxes or imports (including, but not limited to, any export or import duties), all of which shall be for Purchaser’s account.
2.4 If Purchaser is required by law to make any deduction or withholding in respect of tax from any amounts payable to DB under this Agreement, Purchaser shall pay to DB an additional amount as will, after the deduction or withholding has been made, leave the DB with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
3. PAYMENT TERMS
3.1 DB may invoice (“Invoice”) the Purchaser for the Contract Price upon Delivery.
3.2 Payment of the Contract Price is due within thirty (30) days of the date of Invoice, unless expressly agreed in writing otherwise. The Purchaser shall have no right of set off.
3.3 If Purchaser fails to make any payment to DB by the due date then, without prejudice to any other right or remedy available to DB, DB shall be entitled to (a) cancel or suspend any further delivery to Purchaser under any order; (b) charge Purchaser interest on the outstanding amount at the rate of 4% per annum above the base rate of HSBC Bank plc calculated daily from the date the payment became due until actual payment is made by Purchaser.
4. DELIVERY, TITLE & RISK
4.1 All Equipment and Software will be delivered by DB on an Ex-Works (EXW) basis, as defined in Incoterms 2020, at the delivery point specified in the PO (“Delivery”), provided, however, that title to the Equipment shall not pass to the Purchaser until full payment has been made in accordance with Clause 3. In the event of any inconsistency between the Incoterms 2020 and this Agreement, this Agreement shall prevail. If the PO does not specify a delivery point the delivery point shall be one of DB premises, as notified by DB to the Purchaser in its sole discretion.
4.2 Until such time as title in the Products passes to Purchaser in accordance with Clause 4.1, if applicable, Purchaser shall:
(a) hold the Products as DB’s fiduciary agent and bailee;
(b) store the Products (at no cost to DB) so that they are clearly identifiable as DB’s property, and shall procure that the Products are so stored when it is in the possession of any third party;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) keep the Products properly stored, protected and insured on DB’s behalf for their full price against all risks, with a reputable insurer; and
(e) be entitled to use, sell, process or otherwise dispose of the Products in the ordinary course of its business (unless DB revokes such entitlement in writing) provided that the proceeds of any such use, sale or processing received by Purchaser in respect of the Products shall be held by Purchaser as trustee for DB shall and shall at all times be identifiable as, and available to DB as, a fund from which Purchaser’s liabilities to DB, whether in respect of this Agreement or otherwise, can at the discretion of DB be discharged.
4.3 Notwithstanding any other provisions in these Conditions, the Software shall at all times remain the exclusive property of DB.
4.4 All risk of loss or damage to the Equipment and Software will pass to Purchaser upon Delivery to the agreed place of delivery or if Purchaser wrongfully fails to take delivery of the Equipment, the time when DB has tendered delivery of the Equipment.
4.5 DB will use reasonable efforts to meet Purchaser’s requested delivery dates for Products and Services. DB shall have no liability to the Purchaser for late or delayed Delivery. DB may make partial deliveries, but this shall not relieve Purchaser of its obligation to accept the remaining items. DB reserves the right to refuse, cancel or delay delivery to Purchaser if payment has not been made as required or guaranteed to DB’s satisfaction, or when Purchaser has failed to perform its obligations under this Agreement or any other agreement with DB. In any event, DB shall not be liable for any Consequential Loss (as defined in Clause 7.1) that may be suffered by the Purchaser or by any other person for failure to Deliver or for any delay or error in Delivery of Products or Services for any reason whatsoever.
4.6 In the event that the parties agree otherwise than in accordance with Clause 4.1 that title to the Equipment shall pass to the Purchaser prior to full payment in accordance with Clause 3.1, such title shall re-vest in DB (i) automatically upon notice by DB if the Purchaser fails to take Delivery of the Equipment; (ii) automatically upon notice by DB if the Purchaser fails to pay the Contract Price in accordance with the agreed terms; or (iii) automatically immediately prior to the Purchaser suffering an Insolvency Event.
“Insolvency Event” means (a) the party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (b) the party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that party; (d) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the party; (e) the holder of a qualifying floating charge over the assets of that party has become entitled to appoint or has appointed an administrative receiver; (f) a person becomes entitled to appoint a receiver over the assets of the party or a receiver is appointed over the assets of the party; (g) a creditor or encumbrancer of the party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; (h) any event occurs, or proceeding is taken, with respect to the party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (g) (inclusive); or the party ceases, or threatens to cease, to carry on all or substantially the whole of its business.
5. PROPRIETARY RIGHTS
“Intellectual Property Rights” means copyright and related rights, trademarks and service marks, trade names and domain names, patents, rights to inventions, rights in get-up, rights to goodwill and to sue for passing off and unfair competition, rights in designs, rights in computer software, the “look and feel” of any websites, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
5.1 The Products and Services and all Intellectual Property Rights in it or relating to them are and shall remain the property of DB (and/or its third party licensors) and nothing in this Agreement shall transfer or grant any rights in relation to the Products or Services other than the limited licences expressly set out in this Agreement.
5.2 You shall notify DB immediately if you become aware of any unauthorised use of any of the Products or any of the Intellectual Property Rights in or relating to them and will assist DB (at DB’s expense) in taking all steps to defend DB’s rights in them.
5.3 You shall not use, reproduce or deal in the Products or any copies of them (as applicable) except as expressly permitted by this Agreement.
5.4 All foreground Intellectual Property Rights created as a result of any Services undertaken by DB, its agents or sub-contractors pursuant to the Agreement or included in any deliverable shall vest in and be the absolute property of DB. Consequently, you shall assign or shall procure the assignment to DB, with full title guarantee and free from all third-party rights, the foreground Intellectual Property Rights and all other rights created as a result of the Agreement and you shall do all necessary acts to vest such foreground Intellectual Property Rights in the name of DB or its nominee, such acts to include (without limitation) the execution of documents.
6.1 The warranties set forth in this Clause 6 are in lieu of, and DB hereby disclaims, all other warranties and conditions, whether express or implied, including without limitation the implied terms of satisfactory quality and fitness for a particular purpose to the fullest extent permitted by law.
6.2 Subject to Clauses 6.3 and 6.4, DB warrants that the Equipment sold to Purchaser under this Agreement shall, under normal use and service, be free from defects in materials and faulty workmanship, and that the Software licensed to Purchaser under this Agreement shall conform in all material respects to DB’s published specifications therefor. The warranty period for any item of Equipment shall be twelve (12) months from the date of Delivery and the warranty period for Software shall be ninety (90) days from the date of Delivery (the “Warranty Period”).
6.3 DB’s obligation and Purchaser’s sole remedy under this warranty are limited to the replacement or repair, at DB’s option, of the defective Equipment or Software within the applicable Warranty Period. DB shall have no obligation to remedy any such defect if it can be shown that, in DB’s reasonable opinion: (a) the Equipment or Software was altered, repaired, or reworked by any party other than DB without DB’s prior written consent; (b) such defects were the result of Purchaser’s or a third party’s improper storage, mishandling, abuse, or misuse of the Equipment or Software; (c) such defects were the result of Purchaser’s or a third party’s use of the Equipment or Software in conjunction with equipment electronically or mechanically incompatible or of an inferior quality; or (d) the defect was the result of damage by fire, explosion, power failure, or any act of nature.
6.4 Subject to the provisions of this warranty clause, defective parts must be returned within the Warranty Period by Purchaser on a DDP basis (as defined in the Incoterms 2020) to DB’s appointed repair facility and said defective parts will be repaired or replaced by DB at no additional charge to Purchaser. In connection with such return by Purchaser, Purchaser shall comply with DB’s Return Material Authorisation procedures, available upon request. DB shall deliver the repaired or replacement parts on a DDP basis to Purchaser’s port of entry. However, if there was no fault found (“NFF”) Purchaser shall pay such transportation costs along with DB’s then prevailing NFF charge. Risk of loss or damage shall pass to the receiving party on delivery. DB will charge Purchaser for any maintenance carried out which is not covered by the warranties contained in Clause 6.2 or Clause 6.6 at DB’s then prevailing standard rates for such Services.
6.5 Any optional extended warranty, where available, may only be purchased at the time of product point of sale. The extended warranty shall run from the date of receipt of the extended warranty through the balance of the 12 months limited warranty plus the term of the extended warranty measured after the expiration of the 12 months limited warranty. Purchaser may not buy more than one extended warranty for any one specific product. The extended warranty shall not cover user-removable battery replacement, abuse, intentional or deliberate damage to the product, or force majeure during the extended warranty period. For customers who purchase an extended warranty, DB warrants it will repair or replace the DB product, which fails to function for any reason not excluded by this warranty, during the extended warranty period with the same or like product, at DB’s option. Purchaser may not buy a new extended warranty for any replacement or repaired product which is replaced or repaired under the extended warranty.
6.6 DB warrants that the defective element of the Equipment or Software returned by DB following repair or replacement of such defective element by DB shall be free from defects in materials and faulty workmanship and that the Software will conform in all material respects to DB’s published specifications therefor for ninety (90) days from delivery or until the end of the original Warranty Period, whichever is longer. For the avoidance of doubt, any Warranty Period extension granted pursuant to this Clause 6.6 only applies to the repaired defective element of the Equipment or Software.
6.7 Unless expressly set out in a Quotation and PO, in no event shall DB be obliged to provide on-site maintenance or general Product or Services support. If Purchaser requires support it may purchase a separate support package which shall be governed by DB’s Support Services Terms & Conditions. Details can be found at http://www.digitalbarriers.com/support.
7. LIMITATION OF LIABILITY.
7.1 Without prejudice to Clause 7.4, neither DB nor any of its officers, directors, employees, agents, representatives, shareholders, or affiliates (DB and such other persons, the “DB Parties”), shall have any liability to Purchaser for any Consequential Loss and the Purchaser shall save, indemnify, defend and hold harmless the DB Parties from and against any Consequential Loss arising from, relating to or in connection with the performance or non-performance of this Agreement, any collateral contract, or from or in connection with the Equipment or the Software or the use thereof or the inability to use them either separately or in combination with other equipment or software, or from or in connection with the Services, or from any other cause, whether caused by negligence, breach of contract or otherwise. For the purposes of these Conditions, “Consequential Loss” shall mean loss of profit or anticipated profit, income, revenue or data, or incidental, consequential or punitive damages or losses in each case whether direct or indirect and whether or not foreseeable.
7.2 Without prejudice to Clause 7.3, the total cumulative liability of the DB Parties howsoever arising out of, relating to or in connection with this Agreement, the Products and/or Services, or any other collateral agreement between the parties, shall not exceed the lesser of five hundred thousand pounds (£500,000) or the aggregate Contract Price.
7.3 Nothing in this Agreement shall exclude or in any way limit DB’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation or any other liability that cannot be excluded or limited by law.
7.4 Without prejudice to Clause 7.3, any and all claims, actions or other similar disputes brought by the Purchaser against DB arising out of or in connection with this Agreement must be brought within twelve (12) months of the date of Delivery.
8. SOFTWARE LICENCE.
8.1 “Software” means any computer programs contained on any media including: (a) hardwired logic instructions which manipulate data in the central processor and which control input output operations, error diagnostics, and recovery routine; and (b) instruction sequences in machine readable code which control call processing, peripheral equipment, and administration and maintenance functions as well as associated documentation used to describe, maintain, and use the programs.
8.2 Purchaser’s use of Software provided by DB, either as stand-alone Software or Software incorporated into Equipment, shall be governed by these Conditions unless such Software contains its own end user licence agreement or equivalent, in which case the terms of such alternative licence agreement shall prevail.
8.3 DB shall grant Purchaser a non-exclusive, non-transferrable, revocable, personal license to use the Software.
8.4 Purchaser shall: (1) not modify, disassemble or decompile any Software, or reverse engineer any portion of the Software or functioning of the DB Equipment, or permit others to do so, without DB’s prior written consent; and (2) not reproduce or copy any Software in whole or in part except for backup and archival purposes or as otherwise permitted in writing by DB. Information to achieve interoperability of the Software with independently created programs, within the meaning of Article 6 of the Directive on the Legal Protection of Computer Programs, is available from DB on written request.
8.5 Term-based Software licences (as identified in a Quotation or Order Acknowledgement) terminate upon the expiration of the prepaid term, unless the Purchaser has paid all applicable fees to extend the term. The Purchaser agrees that if the DB has the right to terminate this licence granted in accordance with this Agreement, DB may, in addition to any other remedies it may have at law or in equity, remotely disable the Software.
9.1 All commercial and technical information, documentation, Software and other proprietary information (“Confidential Information”) supplied by DB to Purchaser under this Agreement, except for that which may be in the public domain, shall, as between the parties hereto, be treated as the confidential and proprietary information of DB. Purchaser, except as specifically authorised in writing by DB, shall: (a) not disclose any Confidential Information received from DB to any person, except to its employees on a “need-to-know” basis; (b) not reproduce any Confidential Information received from DB, in whole or in part; (c) use any Confidential Information received from DB only for operation and maintenance of the Equipment; and (d) indemnify and hold harmless DB from and against any loss or damages resulting from a breach of this Clause 9.
9.2 If this Agreement is terminated or cancelled, or if Purchaser is found to have breached any of the provisions of Clauses 8 or 9, Purchaser shall immediately return all Confidential Information to DB. In any event, the obligations of Clauses 8 and 9 will survive termination or cancellation of this Agreement.
9.3 DB shall have the right to publically announce the key terms of the Agreement and may use non-confidential information as part of its marketing literature without the consent of the Purchaser, provided, however, Purchaser shall have the right, acting reasonably, to request that no publication is made.
10. FORCE MAJEURE.
DB shall not be liable for any non-performance, defective performance, or late performance under this Agreement due to causes beyond its control and without its fault or negligence such as, but not limited to, acts of God, war (including civil war), civil unrest, acts of government, fire, floods, explosions, the elements, epidemics, quarantine, restrictions, strikes, lock outs, plant shutdown, material shortages, or delays in transportation or delays of its suppliers or subcontractors for like cause.
11.1 DB shall have the right, prior to payment to DB of the Contract Price, to suspend its performance under this Agreement immediately by written notice to Purchaser and forthwith remove and take possession of any Equipment and Software which has been delivered if Purchaser shall: (a) become insolvent; (b) have a receiver or manager appointed over the whole or any part of its assets or business; (c) make any composition or arrangement with its creditors; (d) take or suffer any similar action in consequence of debt, or an order or resolution is made for its dissolution or liquidation (other than for the purpose of amalgamation or reconstruction); or (e) if Purchaser attempts to resell the Equipment or Software without the consent of DB.
11.2 In the event of any material breach of this Agreement by either party which shall continue for twenty (20) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to the breaching party by the aggrieved party, the aggrieved party shall be entitled at its option: (a) to immediately terminate this Agreement; or (b) if the aggrieved party is DB, to suspend performance of all of its obligations under the Agreement for as long as the breach continues. For the avoidance of doubt a material breach includes any breach of Clauses 13.7 and 13.9.
11.3 Termination of this Agreement in accordance with its terms shall not prejudice or affect any right or action or remedy which has accrued or shall thereafter accrue to either Party.
12. PURCHASER RESPONSIBILITIES.
Purchaser shall: (a) ensure that all DB designated personnel have the necessary access to Purchaser’s premises and the Products to enable it to provide the Services; (b) provide, at no charge to DB, reasonable working space and facilities including heat, light, ventilation, electric current and outlets for use by DB’s designated personnel and adequate storage space for equipment and materials; (c) provide any information in a timely fashion which DB reasonably requests from Purchaser and which is required for DB to provide the Services or other obligations under or in connection with this Agreement; and (d) not perform, or attempt to perform, or cause to be performed any maintenance or repair to the Equipment, other than pursuant to this Agreement, without DB’s prior, written consent. DB’s personnel will comply with site and security regulations as specified by Purchaser.
13.1 This Agreement and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
13.2 Each party irrevocably agrees that the English courts shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter or formation.
13.3 All notices, requests, consents and other communications hereunder must be in writing and will be deemed to have been properly given when actually received by DB at its address set forth in the Recitals hereto and by Purchaser at its address in the PO.
13.4 All obligations that by their nature survive the expiration, cancellation or termination of this Agreement shall remain in effect after its expiration, cancellation or termination.
13.5 The Purchaser shall not assign, novate or otherwise transfer any of its rights or obligations under this Agreement in whole or in part without the prior written consent of DB.
13.6 In the performance of its obligations under this Agreement, Purchaser shall at all times strictly comply with all import and export laws, regulations, and orders of the United Kingdom and any other applicable jurisdiction. Purchaser specifically acknowledges that Equipment, Software or technology supplied or licensed by DB under this Agreement are subject to U.K. trade sanctions and export control laws and regulations Purchaser specifically acknowledges that Equipment, Software, or technology obtained from DB pursuant to this Agreement shall not be exported, re-exported, transhipped, disclosed, diverted, or transferred, directly or indirectly, contrary to U.K. laws, orders or regulations.
13.7 In the performance of its obligations under this Agreement, Purchaser shall comply with all applicable law, regulation, and third party rights (including without limitation laws regarding the import or export of data or software, privacy, and local laws). You will not use any DB Products to encourage or promote illegal activity or violation of third party rights.
13.8 No person that is not an express party to this Agreement shall have any rights hereunder by virtue of the Contract (Rights of Third Parties) Act 1999.
13.9 The Purchaser warrants that it is compliant with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption, including without limitation the Bribery Act 2010, the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”), and any local anticorruption legislation that may apply.