All products (“Products”), software (“Software”) and services (“Services”) (hereinafter all referred collectively to as the “Supplies”) are supplied, licensed and performed by Idemia Identity & Security USA LLC., a Delaware limited liability company, with is principal place of business located at 11951 Freedom Drive, Ste 1800, Reston Va, 20190 (“Idemia”) in accordance with these General Terms and Conditions of sale (“GTC”). These GTC supersede all prior terms and conditions and shall be the sole terms and conditions which apply to any supply, licensing or other performance of Products, Software or Service, except as otherwise provided herein. Acceptance by Buyer of any quotations provided by Idemia shall be deemed a full acceptance by Buyer of all the GTC set forth herein. Any terms or conditions proposed by Buyer shall not be applicable unless otherwise agreed to in writing by a duly authorized representative of Idemia.
1. Quotation – Contract – Idemia’s quotations are open for acceptance within the period stated in the quotation or, when no period is stated, within thirty (30) calendar days from the date of the quotation.
An order together with these GTC (“Contract”) shall be applicable between Idemia and Buyer when (i) Idemia issues its confirmation in writing, or (ii) starts to perform its obligations in accordance with Buyer’s order, whichever occurs first (“Confirmation”).
Any Contract is deemed to include the document describing the technical and/or functional specifications of the Supplies, such as but not limited to artwork proof copy and personalization proof if needed (the “Specifications”). In the absence of agreed Specifications between Idemia and Buyer, the Specifications shall refer to the most recent specifications held by Idemia at the time of Confirmation.
2. Price – In absence of information to the contrary on the order document, all prices shall be in the currency stated in the Idemia’s quotation, based on delivery EXW to Idemia’s facility designated on the Confirmation (“Facility”) and shall be net of any taxes or duties.
3. Payment – Idemia shall invoice Buyer upon delivery of the Supplies in accordance with the applicable Incoterm and/or upon performance of the Services. The invoice amount (net price plus VAT or other taxes/duties when applicable) shall be due for payment not later than thirty (30) calendar days after the invoice date. Payments shall be made in the currency stated in the invoice. Buyer shall not be entitled to retain or offset payments against counter-claims on grounds of warranty claims or other claims of whatsoever nature. Title shall pass to Buyer upon payment in full of the Contract price in respect thereof.
4. Delivery – Idemia shall communicate in its Confirmation the estimated delivery date (“Delivery Date“). Buyer shall notify Seller in writing of any nonconforming Products/Software/Services within seven (7) calendar days from the date of delivery or performance. Buyer’s failure to notify Idemia within this period shall constitute final acceptance and shall waive all claims of non-conformity, except such claims governed by the terms of clause 5 (Warranty). Risk of loss and damage to the Products shall pass to Buyer upon Idemia’s delivery in accordance with the applicable Incoterm.
5. Warranty – With regard to Products and Software, Idemia warrants that, for a period of twelve (12) months from delivery, the Products shall be free from defects in material and workmanship which may arise under proper and normal use and service and will substantially conform to the Specifications.
With regard to Services, Idemia warrants that it shall perform the Services in accordance with the skills and care expected for this kind of Services in the industry and shall use technically competent and properly trained staff who shall act in accordance with best industry practices.
Buyer’s exclusive remedy for defective Supplies is limited to (at Idemia’s reasonable option) (i) Idemia’s correction of any such defects by repair or replacement or reperformance at no cost to Buyer or (ii) reimbursement of the affected Supplies, provided that Buyer has given Idemia written notice of the defect within the above-mentioned warranty periods.
The above warranties shall not apply to defects (i) caused by the use or operation of Supplies other than as intended or recommended by Idemia, (ii) caused by modifications or alterations made to the Supplies by any party other than Idemia, (iii) which are the result of the Supplies being subjected to unusual physical or electrical stress, neglect, abuse, accident, misuse, (iv) caused by conformance to specifications of Buyer, or to any laws, statutes, ordinances, administrative orders, rules and regulations, (v) which could not be envisaged according to state-of-the-art or state-of-the-industry level of knowledge at the time of the Confirmation.
If Buyer gives Idemia notice of any defect, as per clause 5 above, it shall provide Idemia with all information regarding said defect which Idemia may reasonably require and comply with any reasonable suggestions or instructions which Idemia may offer with a view to the diagnosis and/or remedy of such defect.
The correction of any defect or the supply of repaired or replacement Supplies pursuant to this clause shall not extend the duration of the applicable warranty period.
6. Software – Any Software provided to Buyer shall be supplied in object code form only. Any and all references to “sale” or “sold” of any Software shall be deemed to mean a license regarding such Software, and no ownership or assignment of any intellectual property rights is intended nor shall be implied thereby. Title to the Software shall at all times remain the property of Idemia or its licensors. Idemia hereby grants to Buyer for the life span of the Supply a non-exclusive, non-transferable, non sublicensable (except to end users) license to use the Software for the operation of said Supply. Software developed by a company other than Idemia are protected by their respective intellectual property rights and shall be used under license of their original developer of which Buyer acknowledges the enforceability and applicability.
7. Intellectual Property Rights Indemnity – In the event that the Supplies have been used according to the purpose for which they were designed, without any alteration and/or modification, Idemia, subject to immediate written notification of the claim and reasonable assistance by Buyer during Idemia’s sole conduct of the litigation, shall indemnify Buyer against any civil damages which may be finally and definitely sentenced against Buyer by the court of competent jurisdiction determining that the Supplies directly infringe any third party’s patent, copyright, trade secret, trademark or other intellectual or industrial property right.
The above mentioned obligation to indemnify shall not apply (i) to aspects of the Supplies performed, developed or manufactured according to designs and/or specifications and/or instructions provided by or on behalf of Buyer, and/or (ii) to parts of the Supplies supplied to Idemia by or on behalf of Buyer and/or (iii) claims to which Buyer has agreed to any settlement without the prior written consent of Idemia and/or (v) to the extent the claim(s) arises from the combination of the Supply with any other hardware, software, product, technology, system or network not supplied by Idemia.
In the event the Supplies infringe third parties rights according to this clause 7 or Idemia reasonably considers such infringement possible, Idemia shall, depending on the feasibility of each solution and at its option (i) modify the Supplies to render them noninfringing, or (ii) replace the Supplies with other non-infringing ones with equivalent functionality and performance, or (iii) obtain from the third party a right to use the Supplies, or, if none of the above mentioned solutions are practicable, (iv) terminate the Contract and accept return of any Supplies still in stocks to Idemia who shall reimburse their already paid price as well as pre-agreed return expenses.
This clause 7 provides for the entirety of Idemia’s obligations with respect to infringement of third party intellectual property rights and, to the limit permitted by Law, replace any other warranties and/or obligations, express or implied.
If Products are manufactured, Software developed, or Services performed by Idemia based on design, specifications, drawings, models or other documentation received from Buyer, the latter shall indemnify and hold Idemia harmless for associated violations of third party rights.
8. Data Protection – Should Idemia process personal data of Buyer’s end users/customers under the Contract, it shall be deemed do so only on behalf of Buyer, as a processor, as applicable.Buyer shall strictly comply with all data protection, privacy or similar laws and regulations applicable (notably making necessary declarations and obtaining necessary authorisations) and shall fully indemnify Idemia for any damages resulting from any breach of the above laws and regulations.
9. Termination – Idemia may terminate a Contract with immediate effect if the Buyer commits a material breach of its obligations under the Contract, and, in the case of a breach capable of being remedied, if it does not remedy the breach within thirty (30) calendar days after receipt of notice in writing from Idemia requiring it to do so. Termination of the Contract shall have no effect on the rights and remedies of either party which have arisen prior to termination.
10. Confidentiality – Idemia and Buyer acknowledge that all technical, commercial and financial data to which either party may have access during the execution of the Contract is confidential information. The receiving party shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the transaction contemplated in the Contract. Confidentiality obligations shall survive for five (5) years from the date of termination of the Contract.
11. Disclaimers – Under no circumstances shall Idemia be liable for any damages resulting from or arising out any illegal and/or fraudulent and/or non conforming use of the Supplies by Buyer or any third party including the end user.
12. Limitation of Liability – Under no circumstances shall Idemia be liable to Buyer or any other person for (i) any kind of special, incidental, indirect, consequential, punitive, criminal damage, loss, cost or expense or (ii) any loss of profits, loss of revenue, loss of business, loss of goodwill, loss of reputation, loss of contracts, loss of use or loss of, or damage to, data, even if Idemia has, or should have had, any knowledge of the possibility of such damage.
To the maximum extent permitted by law, the aggregate liability of Idemia to Buyer on all claims of any kind (including but not limited to any form of indemnification) under or related to the Contract, whether in contract, warranty, condition, tort, strict liability, statute, or otherwise shall not exceed the amount actually received by Idemia under the said Contract during the twelve (12) months preceding the event that gave rise to the claim for damages by the buyer (hereinafter referred to as “cap of liability”). No indemnification beyond the cap of liability shall be due by Idemia. For the interpretation of this clause, several defaults having the same origin shall be deemed to be one default. In such case, the date of the occurrence of the first default shall be deemed to be the starting date for the calculation of the above-mentioned cap of liability.
13. Force Majeure – Neither party shall be liable for any failure or delay in performance if such failure or delay is caused by Force Majeure. “Force Majeure” shall mean and include any unforeseen circumstances or occurrences beyond a Party’s reasonable control. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, insurrections, strikes, fires, floods, earthquakes, labour disputes, epidemics, freight embargoes, defaults or delays of subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labour, materials or components. The time for completion shall be extended by a period of time reasonably necessary to overcome the effect of delay of performance due to Force Majeure. If Force Majeure continues for a period exceeding ninety (90) calendar days, either party shall be entitled to terminate the Contract forthwith without liability, by written notice.
14. Governing law and Venue – All Contracts shall be construed and enforced in accordance with the governing laws of state if Delaware (without giving effect to its conflict law of principles). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract.
15. Miscellaneous – Neither party may assign its rights or obligations under any Contract without the other party’s prior written consent. Idemia shall be however entitled to subcontract performance of any of its obligations to any third party but shall remain primarily liable. The right to exercise or enforce any right of either party against the other party shall not be affected by any failure or delay nor shall any waiver of any breach of any provision be taken as a waiver of any subsequent breach or of the provision itself. Waiver must be in writing, signed by an authorised representative and be delivered to the other party. If any provision of the Contract be held as void, contrary to law or unenforceable, the validity and enforceability of the remainder of the Contract shall not be affected.
© 2024 IDEMIA Public Security North America. All rights reserved.