Article 1 – General
- These terms and conditions shall apply to all quotations, bids and agreements between Touch Biomatrix, hereinafter to be referred to as: “Touch Biomatrix”, and another party (‘Other Party’), in so far as these terms and conditions have not been deviated from explicitly and in writing by parties.
- These terms and conditions shall also apply to agreements where for the execution of which third parties must be involved by Touch Biomatrix.
- These general terms and conditions have also been written for parties associated with Touch Biometrix and the directors, officers, employees, partners and representatives.
- The applicability of any purchasing or other conditions of Other Party shall be explicitly rejected.
- If one or more provisions in these general terms and conditions become at any time wholly or partially invalid or nullified, the other provisions in these general terms and conditions shall remain fully applicable. Touch Biometrix and Other Party shall then consult to agree new provisions to replace the invalid or nullified provisions, where the purpose and intent of the original provisions shall be taken into account as far as possible.
- If there is a lack of clarity concerning the interpretation of one or more provisions in these general terms and conditions, the interpretation thereof should be in the spirit of these provisions.
- If a situation arises between parties that has not been provided for in these general terms and conditions, then this situation must be assessed in the spirit of these general terms and conditions.
- If Touch Biometrix does not always demand strict compliance with these terms and conditions, this does not mean that the provisions thereof are not applicable, or that Touch Biometrix would lose the right to any extent to demand in other cases the strict fulfilment of the provisions of these terms and conditions.
Article 2 – Quotations and bids
- All quotations and bids of Touch Biometrix shall be free of obligation, unless a period for acceptance has been set in the quotation. If no acceptance period has been set, no right may be derived from the quotation or bid if the product to which the quotation or the bid relates is no longer available in the meantime.
- Touch Biometrix cannot be bound to its quotations or bids if Other Party can reasonably understand that the quotations or bids, or a part of them, contain an obvious mistake or error.
- The prices stated in a quotation or bid are exclusive of VAT and other government levies, any costs to be incurred within the framework of the agreement, including travel and accommodation, shipment and administration costs, unless stated otherwise.
- If the acceptance deviates (whether or not on minor points) from the offer included in the quotation or bid, Touch Biometrix shall not be bound to this. The agreement shall then not be formed in accordance with this deviating acceptance, unless Touch Biometrix states otherwise.
- A composite quotation shall not bind Touch Biometrix to execute a part of the assignment for a corresponding part of the stated price. Quotations or bids shall not apply to future orders automatically.
Article 3 – Contract duration; execution periods, transfer of risk, execution of and change to agreement; price increase
- The agreement between Touch Biometrix and Other Party shall be concluded for an indefinite period, unless the nature of the agreement provides otherwise or if parties explicitly agree otherwise in writing.
- If a period has been agreed or stated for the execution of certain work or for the delivery of certain services, this shall never be a mandatory time limit. If a period is exceeded, Other Party should therefore declare Touch Biometrix to be in default in writing. Touch Biometrix should be given a reasonable period to execute the agreement.
- Touch Biometrix shall execute the agreement to the best of its knowledge and ability and in accordance with the requirements of good professional practice. All this based on the state of the art known at that time.
- Touch Biometrix has the right to have certain work executed by third parties.
- If work is executed by Touch Biometrix or by third parties called in by Touch Biometrix within the framework of the assignment at the location of Other Party or a location designated by Other Party, Other Party shall provide free of charge the facilities reasonably desired by these employees free of charge.
- Delivery shall take place from the company of Touch Biometrix. Other Party is obliged to purchase the services at the moment that they are made available to it. If Other Party refuses purchase or fails to provide information or instructions that are necessary for the delivery, Touch Biometrix is entitled to store the services for account and risk of Other Party. The risk of loss, damage or reduction in value shall be transferred to Other Party at the moment when services are available to Other Party.
- Touch Biometrix is entitled to execute the agreement in a number of phases and to invoice the parts carried out separately.
- If the agreement is executed in phases, Touch Biometrix may suspend the execution of those parts that belong to a subsequent phase until Other Party has approved in writing the results of the preceding phase.
- Other Party shall ensure that all data, of which Touch Biometrix indicates that they are necessary or of which Other Party must reasonably understand that they are necessary for execution of the agreement, are provided to Touch Biometrix in good time. If the data required for execution of the agreement are not provided to Touch Biometrix in good time, Touch Biometrix has the right to suspend execution of the agreement and / or to charge the extra costs arising from the delay to Other party in accordance with the usual rates. The execution period shall not start until after Other Party has made the data available to Touch Biometrix. Touch Biometrix is not liable for damage, of any kind, due to the fact that Touch Biometrix has taken as a basis incorrect and / or incomplete data provided by Other Party.
- If during the execution of the agreement it is found that for proper execution thereof it is necessary to amend or supplement it, parties shall amend the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement, whether or not at the request or indication of Other Party, competent bodies, etc. is changed and the agreement is changed in qualitative and / or quantitative terms by this, this may have consequences for what was originally agreed. The originally agreed amount may therefore also be increased or reduced. Touch Biometrix shall give a quotation in advance as far as possible. Moreover the originally stated period of execution may be changed by amendment of the agreement. Other Party shall accept the possibility of amending the agreement, including the change in price and period of execution.
- If the agreement is amended, including a supplement, Touch Biometrix has the right only to execute this after agreement has been given for this by the authorised person within Touch Biometrix and Other Party has agreed with the price stated for the execution and other terms and conditions, including the time to be determined of when execution shall take place. The non-execution or not-immediate execution of the amended agreement shall not constitute a breach of contract by Touch Biometrix and is no cause for Other Party to terminate or cancel the agreement.
- Without being in default, Touch Biometrix may refuse a request to amend the agreement, if this could have consequences in qualitative and / or quantitative terms, for example, for the work to be executed or goods to be supplied within that framework.
- If Other Party defaults in the proper execution of its obligations towards Touch Biometrix, Other Party is liable for all damage on the part of Touch Biometrix arising directly or indirectly from this.
- If Touch Biometrix shall agree a fixed fee or fixed price with Other Party, Touch Biometrix is nevertheless at all times entitled to increase this fee or this price without Other Party in that case being entitled to dissolve the agreement for this reason, if the increase in the price arises from a competence or obligation in accordance with legislation or regulations or is due to a rise in the price of raw materials, wages, etc. or for other reasons that could not have been reasonably foreseen at the time the agreement was concluded.
- If the price increase other than as the result of an amendment to the agreement is more than 10% and is made within three months after the agreement was formed, only Other Party is entitled to dissolve the agreement by written statement, unless Touch Biometrix is prepared to execute the agreement based on that originally agreed; if the price increase results from a competence or an obligation resting on Touch Biometrix pursuant to the law; if it was stipulated that the delivery will take place longer than three months after the formation of the agreement; or, in the case of delivery of a product, if it was stipulated that the delivery will be made longer than three months after the purchase.
Article 4 – Suspension, dissolution and early termination of agreement
- Touch Biometrix is authorised to suspend fulfilment of the obligations or to dissolve the agreement if Other Party fails to fulfil the obligations arising from the agreement or does not fulfil them completely or in good time, after the formation of the agreement circumstances that come to Touch Biometrix’s notice give it good reason to fear that Other Party will not fulfil the obligations, if Other Party when concluding the agreement was requested to provide security for the fulfilment of its obligations arising from the agreement and this security is not provided or is inadequate or if due to the delay on the part of Other Party it can no longer be demanded from Touch Biometrix that it must fulfil the agreement under the conditions originally agreed.
- Moreover Touch Biometrix has the authority to dissolve the agreement if circumstances arise such that fulfilment of the agreement is impossible or if other circumstances arise such that the unaltered continuation of the agreement cannot reasonably be demanded from Touch Biometrix.
- If the agreement is dissolved, Touch Biometrix’s claims on Other Party shall be immediately payable and due. If Touch Biometrix suspends fulfilment of the obligations, it shall retain its legal claims and those from the agreement.
- If Touch Biometrix suspends or dissolves the agreement, it shall be in no way obliged to pay compensation for damage and costs ensuing from this in any way.
- If the dissolution is attributable to Other Party, Touch Biometrix is entitled to compensation for the damage, including the costs, ensuing from this directly and indirectly.
- If Other Party fails to fulfil the obligations arising from the agreement and this non-fulfilment justifies dissolution, Touch Biometrix is entitled to dissolve the agreement immediately and with immediate effect without any obligation on its part to pay any compensation or damages, while Other Party, due to breach of contract, is obliged to pay compensation or damages.
- If the agreement is terminated by Touch Biometrix early, Touch Biometrix in consultation with Other Party shall ensure transfer of work still to be executed to third parties. This unless the termination is attributable to Other Party. If the transfer of the work involves extra costs for Touch Biometrix, these shall be charged to Other Party. Other Party is obliged to pay these costs within the period stated for this, unless Touch Biometrix states otherwise.
- In the case of liquidation, (application for) suspension of payment or bankruptcy, attachment – if and in so far as the attachment has not been within three months – for account of Other Party, or debt restructuring or another circumstance as a result of which Other Party can no longer freely dispose of its assets, Touch Biometrix shall be free to terminate the agreement immediately and with immediate effect or to cancel the order or agreement, without any obligation on its part to pay any compensation or damages. Touch Biometrix’s claims on Other Party are in this case immediately due and payable.
- If Other Party cancels a placed order wholly or partially, the work that was performed and the goods ordered or made available for this, increased by any supply, removal and delivery costs thereof and the working time reserved for execution of the agreement, shall be charged in full to Other Party.
Article 5 – Force majeure
- Touch Biometrix is not obliged to fulfil any obligation towards Other Party if it is prevented from doing so as the result of a circumstance not attributable to fault, nor by virtue of the law, a legal act nor generally accepted principles can be considered for its account.
- In these general terms and conditions, the term force majeure shall be used to mean, in addition to the relevant definitions in the law and in case law, all external causes, foreseen or unforeseen, on which Touch Biometrix can exercise no influence, but as a result of which Touch Biometrix is unable to fulfil its obligations. This shall include strikes at the company of Touch Biometrix or of third parties. Touch Biometrix is also entitled to invoke force majeure if the circumstance that prevents this fulfilment or continued fulfilment of the agreement commences after Touch Biometrix should have fulfilled its obligation.
- Touch Biometrix may during the period that the force majeure continues suspend the obligations arising from the agreement. If this period continues for longer than two months, each of the parties is entitled to dissolve the agreement, with no obligation to compensate damage to the other party.
- In so far as Touch Biometrix at the time of the commencement of force majeure has partly fulfilled its obligations arising from the agreement or will be able to fulfil them, and the part fulfilled or to be fulfilled is of independent value, Touch Biometrix is entitled to invoice separately the part already fulfilled or to be fulfilled. Other Party must pay this invoice as if it was a separate agreement.
Article 6 – Payment and collection costs
- Payment must always be made within 14 days after invoice date, in a manner to be indicated by Touch Biometrix in the currency in which the invoice was raised, unless indicated otherwise in writing by Touch Biometrix. Touch Biometrix is entitled to invoice periodically.
- If Other Party fails to pay an invoice in good time, Other Party is legally in default. Other Party must then pay an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest is owed. The interest on the payable amount shall be calculated from the moment that Other Party is in default until the moment that the amount owed is paid in full.
- Touch Biometrix is entitled to use the payments made by Other Party in the first place to reduce the costs, then to reduce the interest owed and finally to reduce the principal sum and current interest. Touch Biometrix may refuse a payment offer, without being deemed to be in default, if Other Party indicates another sequence for allocation of the payment. Touch Biometrix may refuse full payment of the principal sum if this payment does not also include the interest still due, the current interest and collection costs.
- Other Party is never entitled to settlement of the amount it owes to Touch Biometrix. Objections to the amount of an invoice shall not suspend the payment obligation. Other Party is also not entitled to suspend payment of an invoice for another reason.
- If Other Party fails to fulfil its obligations or fails to fulfil them in good time, all reasonable costs to obtain an out-of-court settlement shall be for account of Other Party. The failure of Other Party who is a natural person, who is not acting in the exercise of a profession or business (private Other Party), shall commence after it has been warned to pay within fourteen days after the day of warning and payment has not been made. The consequences of failure to pay shall also be stated in the warning. The extrajudicial costs shall be calculated based on customary collection practice in the Great Britain.
If however Touch Biometrix has incurred higher costs that were reasonably necessary and Other Party is not a natural person who is not acting in the exercise of a profession or business (corporate Other Party), the costs actually incurred shall be eligible for compensation. Any legal and execution costs shall also be recovered from Other Party. Other Party shall also owe interest on the collection costs owed.
Article 7 – Inspection and complaints, limitation period
- The services to be provided by Touch Biometrix must fulfil the customary requirements and norms that may reasonably be set at the moment of delivery and for which they are intended in normal use in Great Britain.
- Other Party is obliged to inspect the delivered work or services or to have them inspected, immediately at the moment the services are made available to it or the work in question has been executed. Other Party must check whether the quality and/or the quantity of the delivery corresponds with what was agreed and fulfils the requirements agreed by parties in this respect. Touch Biometrix should be notified of any visible defects within seven days after delivery. Touch Biometrix should be notified in writing of any defects not visible immediately, but in any case no later than within fourteen days, after their discovery. The notification should contain as detailed as possible a description of the fault, enabling Touch Biometrix to react adequately. Other Party should give Touch Biometrix the opportunity to investigate a complaint or cause it to be investigated.
- If Other Party submits a complaint in a timely manner, this shall not suspend its payment obligations. Other Party shall also be bound in that case to purchase and pay for the other services ordered which it has commissioned from Touch Biometrix.
- If a fault is reported later, Other Party shall no longer be entitled to repair, replacements or compensation.
- If it has been established that a product is defective and a complaint has been submitted in a timely manner in that respect, Touch Biometrix shall replace the faulty product within a reasonable period after return or, if returning is no longer reasonably possible, of written notification in respect of the fault by Other Party, at Touch Biometrix’s discretion, or take care of repair thereof or pay alternative compensation for this to Other Party. In case of replacement Other Party is obliged to return the replaced product to Touch Biometrix and to grant ownership of it to Touch Biometrix, unless Touch Biometrix states otherwise.
- If it has been established that a complaint is unfounded, the costs arising from this, including the inspection costs, incurred by Touch Biometrix in this respect, shall be fully for account of Other Party.
- At the end of the warranty period all costs for repair or replacement, including administration, dispatch and call-out charges, shall be charged to Other Party.
- In the case of any deviation from the statutory limitation periods, the limitation period of all claims and defences against Touch Biometrix and third parties involved in the execution of an agreement by Touch Biometrix shall be one year.
Article 8 – Liability
- If Touch Biometrix is liable, this liability shall be limited to that laid down in this provision.
- Touch Biometrix is not liable for damage, of any kind whatsoever, resulting from the use by Touch Biometrix of incorrect and / or incomplete data provided by or on behalf of Other Party.
- If Touch Biometrix is liable for any damage, Touch Biometrix’s liability shall be limited to a maximum of the invoice value of the order, at least to that part of the order to which the liability relates.
- Touch Biometrix’s liability is in any case always limited to the amount paid out by its insurer in the case in question.
- Touch Biometrix is only liable for direct damage.
- The term direct damage is used exclusively to mean the reasonable costs to establish the cause and extent of the damage, in so far as the establishment relates to damage in the meaning of these terms and conditions, any reasonable costs incurred to have Touch Biometrix’s defective performance fulfil the agreement, in so far as these can be attributed to Touch Biometrix and reasonable costs, incurred to prevent or limit damage, in so far as Other Party demonstrates that these costs have resulted in limitation of direct damage as referred to in these general terms and conditions. Touch Biometrix is never liable for indirect damage, including consequential damage, lost profit, missed savings and damage caused by interruption of operations.
- The liability limitations included in this article shall not apply if the damage is caused by intent or gross negligence of Touch Biometrix or its managing employees.
Article 9 – Indemnity
- Other Party shall indemnify Touch Biometrix against any claims by third parties that suffer damage in connection with execution of the agreement and the cause of which is attributable to parties other than Touch Biometrix. If Touch Biometrix receives claims by third parties as a result of this, Other Party is obliged to support Touch Biometrix both at law and otherwise and immediately do everything that may be expected of it in that case. If Other Party continues to fail to take adequate measures, Touch Biometrix, without notice of default, is entitled to take such measures itself. All costs and damage on the part of Touch Biometrix and third parties arising as the result of this shall be fully for account and risk of Other Party.
Article 10 – Confidentiality
- Parties shall treat confidentially information that they provide to one another before, during or after the execution of the concluded agreement.
Article 11 – Maintenance and change
- Other Party has the right to take its systems temporarily out of service for the purpose of maintenance (planned and unplanned), modification or improvement of the services it supplies. Touch Biometrix shall make every effort to inform Other Party in good time of the planned taking out of service.
- Touch Biometrix is never liable for compensation for damage in connection with the taking out of service for maintenance and / or improvement of its systems / services or the change from time to time of its systems / services to improve functionality and repair faults. If a modification results in a major change to the functionality, Touch Biometrix shall make every effect to inform Other Party of this.
- Touch Biometrix shall make every effort in the case of non-availability of certain services due to faults, maintenance or other causes, to inform Other Party of the nature and expected duration of the interruption.
Article 12 – Intellectual property
- Touch Biometrix reserves the rights and competences that belong to it on the basis of the Copyright Act and other applicable intellectual laws and regulations. Touch Biometrix is entitled to use also for other purposes the knowledge it has acquired by the execution of an agreement, in so far as no strictly confidential information of Other Party is disclosed to third parties.
Article 13 – Jurisdiction and disputes
- All legal relationships to which Touch Biometrix is party shall be governed exclusively by Great Britain’s law, also if an obligation is executed abroad in full or in part or if the party involved in the legal relationship has its place of residence there. The applicability of the Vienna Sales Convention is excluded.
- The British Court has exclusive jurisdiction to hear any disputes, unless mandatory rules of law provide otherwise. Touch Biometrix has nevertheless the right to submit the dispute to the competent court according to the law.
- Parties shall only appeal to the court after they have done their utmost to settle a dispute in mutual consultation.
Article 14 – Location and amendment of terms and conditions
These terms and conditions have been filed with the Chamber of Commerce in Great Britain under number 11019706.
- The most recently filed version or the version in force at the time the legal relationship was formed with Touch Biometrix shall always apply.
- The English text of the general terms and conditions shall always prevail for the interpretation thereof.