STANDARD TERMS AND CONDITIONS OF SALE
1.0 Definitions
In these Terms and Conditions:
1.1 "Fulcrum Biometrics" shall mean Fulcrum Biometrics Limited with registered office at 15 Manor Courtyard, Hughenden Ave, High Wycombe, HP13 5RE, UK.
1.2 "Buyer" shall mean the person, organisation, firm or company from whom orders are received.
1.3 "Products" shall mean the range of items sold under contract of sale supplied by Fulcrum Biometrics to which these conditions apply.
1.4 “Order” shall mean an order placed with Fulcrum Biometrics at its premises, by fax, by phone or by email.
2.0 Quotes
2.1 Quotes issued by Fulcrum Biometrics shall not constitute a binding contract until acceptance by Fulcrum Biometrics and the buyer.
2.2 There shall be no binding contract until acceptance between Fulcrum Biometrics and the buyer until such time as Purchase Order (or similar instruction) is confirmed by Fulcrum Biometrics.
3.0 Orders, Acceptances and Cancellation
3.1 An order shall be accepted only upon and subject to the Fulcrum Biometrics current terms and conditions of sale. The buyer understands and agrees that future orders are subject to Fulcrum Biometrics Terms and Conditions. No other written, or oral, shall be incorporated into the contract, unless confirmed in writing by a director of Fulcrum Biometrics. These terms and conditions shall supersede any conflicting terms in any referenced agreement or document, including PO terms.
3.2 No cancellation or amendment of any order will be accepted unless received by the buyer in writing at least 3 days before the delivery date notified by Fulcrum Biometrics to the buyer.
3.3 No cancellation or amendment of an order where goods have been manufactured, ordered or purchased by Fulcrum Biometrics to meet the buyer’s requirements or where a special price has been negotiated with the buyer.
3.4 This does not affect any statutory rights the buyer may have.
3.5 All prices quoted to the buyer are on the basis of full quantities specified by the buyer. Fulcrum Biometrics reserves the right to revise prices in the event of alteration of the quantity of goods being ordered.
3.6 Order acknowledgment does not constitute acceptance of the terms of customer's purchase order except for the acknowledgement of the requested quantity and estimated delivery date. All terms of any purchase order or similar document provided by customer, including but not limited to any pre-printed terms thereon are expressly rejected by Fulcrum Biometrics and such terms shall be null and void and of no legal force or effect.
4.0 Price of Products
4.1 An order is accepted only on the condition that the prices of the products shall be in force at the date of dispatch of the products. All prices and other sums payable by virtue of these Terms and Conditions are subject to the addition of Value Added Tax or such other Tax required to be paid by Law at the rate for the time being in force. Prices are also exclusive of carriage fare.
4.2 Where an estimate or quotation is given and is based on information received by the buyer and that information is subsequently changed or proves to be incorrect, Fulcrum Biometrics reserves the right to increase the price or cancel the order. All products are priced in USD, and quoted in other currency equivalents, and currency fluctuation may affect prices quoted in any currency other than USD without notice.
5.0 Product Specification
5.1 The buyer within seven days, from and including the date of delivery of the products, carry out, at its own expense, tests to ensure that the product satisfies the buyer reference specifications as set out in the delivery note, and shall notify Fulcrum Biometrics in writing within such 7 day period of any failure of the products to meet the referenced product specification. If no such notice is received by Fulcrum Biometrics within such 7 days, the buyer shall be deemed to have accepted the products as satisfying the product specification. Fulcrum Biometrics reserve the right to alter such specifications without prior notice and without liability on the part of Fulcrum Biometrics and no warranties are given by Fulcrum Biometrics in respect of such alterations. At Fulcrum Biometrics’s sole discretion, the buyer (and their customer) shall be entitled to a first inspection period of 21 days if agreed in writing, except for consumables.
5.3 Software product includes software delivered, the buyer agree to abide by the software license restrictions.
6.0 Delivery
6.1 The buyer at the time of placing an order with Fulcrum Biometrics, specify in writing, the dates, addresses and any general instructions for the delivery of the products.
6.2 Fulcrum Biometrics shall use its best endeavors to supply and deliver products in accordance with any such dates, addresses and any general instructions specified by the buyer. However, it shall not be liable as a result of delay in or failure to deliver for any consequences of such delay or failure shall entitle the buyer to rescind the contact or claim damages.
6.3 The buyer shall pay reasonable delivery charges to Fulcrum Biometrics. Such charges shall be available on request.
6.4 If no delivery of the products takes place Fulcrum Biometrics may sell the products at the best price readily obtainable and the buyer will be liable for the costs of the sale. If the products are sold for less than the price payable by the buyer, the buyer shall remain liable to pay Fulcrum Biometrics the difference in price.
6.5 This does not affect any right or remedies Fulcrum Biometrics may have.
6.6. The Buyer shall not resell or otherwise ship the product purchased hereunder, directly or indirectly, to any country which is designated as restricted territory for the export of such material by the competent authorities or by official regulations, or to any country on which any trade embargo is imposed.
7.0 Risk and Title
7.1 Risk in the products shall pass from Fulcrum Biometrics to the buyer on delivery of the products to the buyer or the specified delivery address advised by the buyer and until such time as title in the products has passed to the buyer, the buyer shall insure such products to its replacement value (naming Fulcrum Biometrics as the loss payee) and the buyer shall forthwith upon request provide Fulcrum Biometrics with a certificate or other evidence of such insurance.
7.2 Title to all product supplied to buyer shall remain with Fulcrum Biometrics and shall not pass the buyer until payment in full for the same has been received by Fulcrum Biometrics. Until payment in full for the same has been received by Fulcrum Biometrics. Until such time as title to the products has been passed to the buyer Fulcrum Biometrics shall have absolute authority to retake, sell or otherwise deal with or dispose of all any or part of the products in which title remains vested in Fulcrum Biometrics for this purpose Fulcrum Biometrics or any of the products in which title remains vested in Fulcrum Biometrics from this purpose Fulcrum Biometrics or any of its agents or authorised representatives shall be entitles at any time and without notice to enter upon any premises in which the products or any part thereof are stored or kept or is reasonably believed so to be and Fulcrum Biometrics shall be entitled to seek a court injunction to prevent the buyer from selling transferring or otherwise disposing of the products.
7.3 The buyer shall not interfere with any of Fulcrum Biometrics distinguishing marks or labels attached to the products before the products have been paid for in full
7.4 In-accordance of Fulcrum Biometrics agreeing to supply products to the buyer and entering into this agreement with the buyer, the buyer hereby agrees absolutely to assign to Fulcrum Biometrics the buyer’s rights to recover from the purchaser the price of the products supplied (by way of purported sale or otherwise) by the buyer to the purchaser in respect of which products the buyer has not been paid Fulcrum Biometrics in full at the time of the said supply to the purchaser.
8.0 Payment
8.1 Fulcrum Biometrics shall render an invoice on shipment or availability to collect the products to the buyer. Payment for the products, delivery charges and any taxes shall be due and payable by the buyer to Fulcrum Biometrics immediately (or no later than thirty [30] days if agreed in writing by Company Directors) from the date of the invoice, and without the right of deduction or set off.
8.2 Unless terms of credit have been formally approved in writing by a Company Director, all products supplied by Fulcrum Biometrics, must be prepaid by the buyer or paid on receipt.
8.3 In the event that the buyer shall delay in making payment on the due date, then the buyer shall be liable to pay Fulcrum Biometrics interest on the unpaid sums. Such interest will be calculated at the annual rate of Barclays Bank base rate plus 12%, charged per month or part of a month during which they are late any unpaid sums.
8.3.a In the event that the buyer is in arrears in the payment of any sums due or shall exceeded any agreed written credit limit, Fulcrum Biometrics shall be entitled (without prejudice to any other rights or remedies it may have) to:
- Withdraw any credit facilities and shall not be obliged to supply any further products whether orders have been accepted by Fulcrum Biometrics or otherwise; and
- Enter upon the buyer’s property in order to repossess the property belonging to Fulcrum Biometrics and for that purpose the buyer hereby grants to Fulcrum Biometrics or its agents and employees an irrevocable license to enter any premises where the products are stored in order to repossess the same.
- Restrict access to Fulcrum Biometrics systems or services, until such payments are made without compensation for loss of service or termination of the agreement.
8.4 Fulcrum Biometrics rights under the agreement will not be affected by any forbearance or concession made by Fulcrum Biometrics.
8.5 Any notice required under this agreement will be properly served in writing; and sent by email, facsimile or prepaid letter post or delivered by hand to the addressee on the application or the last known address of the addressee. Notice will be effective at the time of sending of the facsimile 48 hours after posting if sent by prepaid letter and at the time of delivery if delivered by hand or email.
- For monthly rolling contracts, contracts will terminate on the last calendar date of the following month.
- For annual contracts, contracts will terminate on the last calendar date of the current period unless renewed.
8.6 In the event of a cheque issued by the buyer being unpaid, the buyer will be liable to pay Fulcrum Biometrics for the bank charges incurred by Fulcrum Biometrics, interest at 12% above Barclays Bank base rate and a £30.00 administration fee.
8.7 Fulcrum Biometrics shall be entitled to treat this contract at an end and to suspend all further deliveries under it and payment for all products not paid for shall become due immediately.
8.8 The buyer shall immediately notify Fulcrum Biometrics in writing in the event of the following:
a) Change or alteration in your trading name
b) Change of banker
c) Any change of Directors, principals and Partners.
d) Change of your address or that of any directors, principals or Partners.
8.9 Fulcrum Biometrics shall be liable at any time to vary or suspend any terms of credit or credit limit given to the buyer.
8.10 If the buyer has service account, repair account, printer or hardware account, any or all can be placed on hold until payment of the overdue account(s) have been received in full.
8.11 Where services or products are sold on a ‘recurring payment’ basis, then a Bank Standing Order or Direct Debit must be in operation in favour of Fulcrum BiometricsBiometrics for the entire period, otherwise the full outstanding balance become due immediately. In addition, cancelled standing orders shall be charged at £30 fee per incident.
9.0 Warranty
9.1 Fulcrum Biometrics warrants that it shall forward goods as provided by the manufacturer with due care. The period of such warranty shall be determined by the manufacturer and may differ, and is 1 year return to base warranty unless otherwise stated. The express terms may be received in writing from Fulcrum Biometrics upon request. The warranty period shall commence on the date of dispatch of the products to the buyer. Any alleged defects in the products must be notified in writing within 7 days of receipt of the products.
9.2 In the event of any established breach of warranty, Fulcrum Biometrics shall repair at its absolute discretion any defective products. The buyer shall be liable for the delivery charges incurred in returning the defective products to Fulcrum Biometrics, but shall not be liable for the cost of the repair or the replacement of the products to the buyer. If installation services are required, then the buyer is liable for these costs unless a valid support contract is in place.
9.3 Repairs undertaken by Fulcrum Biometrics under the terms of its warranty are guaranteed for 180 days from the date of despatch to the buyer on a ‘return to base’ basis.
9.4 The warranty shall not cover any defect caused:
a) by fair wear and tear, including consumable parts like silicon coatings.
b) in whole or part by the negligence of the buyer or a user
c) by improper or unauthorised use of the products including any attempt to carry out repairs or modifications to the product.
d) by causes external to the products.
e) conflicts with other software or configurations beyond our control e.g. Windows Updates, network configuration
9.5 The buyer shall have no claim for loss of profits or contract or consequential loss which may be suffered by the buyer or by any third party arising out of such breach of warranty.
9.6 Failure by the customer to settle accounts rendered for goods supplied will render the warranty null and void.
10. Complaints
10.1 In the event of a complaint in respect of any matter, the Buyer shall notify Fulcrum Biometrics as soon as possible in writing.
10.2 When a Buyer needs to raise a complaint, the complaint should be lodged with a manager of Fulcrum Biometrics either verbally or in writing. The Manager will then investigate the complaint to resolve the issue or provide a full explanation of the actions / issues that resulted in the complaint.
10.3 If Fulcrum Biometrics fail to resolve the Customers complaint in a reasonable and or timely fashion, the Customer may escalate the matter to a Company Director.
10.4 In the event that the Customer is dissatisfied with the quality of performance of a Consultant, the Customer must inform Fulcrum Biometrics immediately, stating the basis for dissatisfaction. If, in the view of Fulcrum Biometrics, the situation merits it, Fulcrum Biometrics may withdraw the Consultant and will use its reasonable endeavours to provide a replacement.
11 Warranty Returns Procedure
a) The customer shall be responsible for the cost of carriage and insurance in respect of all goods returned by the buyer to Fulcrum Biometrics for repair, replacement or credit which goods will be at the risk of the buyer until actual receipt thereof by Fulcrum Biometrics. After 30 days, you may be required to return goods under warranty to the manufacturer directly.
b) Fulcrum Biometrics will not accept returned goods for repair, replacement or credit unless such a return has been agreed in advance, and the goods are received in stock condition, original packaging and clearly marked with the appropriate "Return to Manufacturer Authorisation" (RMA) number issued by Fulcrum Biometrics.
c) Any notification of return "Dead on Arrival" ('DOA) goods must be made no later than 7 days from the date of invoice.
d) Fulcrum Biometrics reserve the right to determine whether returned goods will be repaired, replaced or credited under absolute discretion of Fulcrum Biometrics
e) Fulcrum Biometrics reserves the right to levy a surcharge of 20% of the value of the goods to the buyer in the event of returned goods being found to be in working order in accordance with the specifications of the order. The buyer shall be liable for all postage costs.
f) Fulcrum Biometrics reserve the right to replace goods with the product(s) considered by Fulcrum Biometrics to be equal specifications to the goods being replaced.
g) WEEE regulations and disposal will be responsibility of the buyer
h) Notwithstanding, Fulcrum Biometrics will not be liable to any claim of value greater than the goods.
i) When product is returned under warranty such items should be returned carriage paid to Fulcrum Biometrics. No item should be returned to Fulcrum Biometrics until a "Equipment Return Authorisation" (ERA) number has been issued by Fulcrum Biometrics.
j) Fulcrum Biometrics reserves the right to delay the return of any items of Customers property in Fulcrum Biometrics possession and shall have a general lien on all such property in respect of any sum(s) which may be owing by the Buyer to Fulcrum Biometrics on their account(s).
k) Fulcrum Biometrics do not accept any liability for retention or security of data or information stored on Magnetic or other media returned, by the Buyer or third party that is lost or corrupted as a result of Fulcrum Biometrics’s repair process.
12 Storage
In the event that written dates, addresses and general instructions for delivery of the products are not notified to Fulcrum Biometrics at the time of placing the order, Fulcrum Biometrics shall be entitled to store the products and the buyer shall be liable for the reasonable cost of such storage, normally £30 per calendar month.
In the event that products are not returned to Fulcrum Biometrics with the appropriate RMA approvals, Fulcrum Biometrics shall be entitled to store the products for up to 90 days before disposing of them. The buyer shall be liable for the reasonable cost of such storage, normally £30 per calendar month.
13 Intellectual Property
The buyer shall promptly notify Fulcrum Biometrics of any claim received by the buyer alleging an infringement of patent or other intellectual property rights of a third party. Unless stated otherwise, ownership of intellectual property shall not pass to the buyer except under license.
14 Force Majeure
Fulcrum Biometrics shall not be liable for any failure to supply and or deliver products or any incomplete supply or delivery or for any damage to or defect in the products caused by transport failures, strikes, lockouts, labor disturbances, Acts of God or any other reason beyond Fulcrum Biometrics control including the buyer and the third parties.
15 Representations
No agent of Fulcrum Biometrics has authority to make oral representations prior to or after placing an order. Nor subject to Clause 2.1 has any agent of Fulcrum Biometrics authority to vary or modify the Terms and Conditions herein unless confirmed in writing by a Director of Fulcrum Biometrics.
16 Maintenance & Support
No support or maintenance contract shall exist, with an explicit payment of a support fee on an annual or one-off basis. Any courtesy assistance provided free of charge shall be ex-gratia and without duty or liability. Fulcrum Biometrics only provides a limited support contract based on a maximum of 20 hours support per annum.
16.1 Support Definitions
“Customer” means the company, organisation, person or persons that enter into the agreement for the supply of Support services.
“Users” and or “End Users” means the individual(s) using the products and or services
“Account” means the confidential file where the details of the customer are held.
“Agreement” means a contract for the provision of Fulcrum Biometrics’s Support Services signed by both parties (Fulcrum Biometrics and the Customer). The agreement declares that the customer accepts Fulcrum Biometrics’s Support & Maintenance Contract Terms and Conditions and agrees to the provision of services as outlined in the support schedule.
“Support Schedule” means the schedule to the Agreement listing the services, products, software and or applications covered under the agreement, normally listed in the invoice.
“SLA” means the Service Level Agreement that dictates the Response Times provided by Fulcrum Biometrics to the Customer for Incidents and the availability / regularity of services.
“System Audit” means an assessment of the customer system(s) by an Fulcrum Biometrics consultant in order to gain the necessary understanding of the System for Fulcrum Biometrics to be able to supply the required level of support.
“The Initial period” means the period of 12 months from the commencement of the Support Contract.
“Continuity” means the contract is deemed as renewed unless cancellation is received in writing with not less than 1 months’ notice prior to the annual renewal date, any variation on this cancellation notice is at Fulcrum Biometrics’s discretion
“Distributor” means any supplier to Fulcrum Biometrics Limited
“Vendor” and/or “third party software vendor” means the company who has designed or developed the software “Equipment” means the equipment specified in the Support Schedule
“Roaming Computers/ Users” means a workstation, mobile communication device or user that is not permanently located at the Customer’s site when the workstation or mobile communications device in question is owned by the Customer and is part of the Customer’s domain.
“Server Instance” means a network, email or other server, whether physical or virtual.
“System” means the network, software, Server Instances, or any other item being maintained under the Agreement, as per Fulcrum Biometrics Invoice.
“Software” refers to the Software Products specified in the Support Schedule. “Software applies to all parts of software, to new releases, updates and modifications of the software.
“Support Hours” means 9:00am to 5:00pm Monday to Friday excluding public and national holidays. Fulcrum Biometrics reserves the right to reduce or withdraw these support hours during Christmas and New Year.
“Our representative” means any employee, agent or subcontractor of Fulcrum Biometrics Limited or other third party.
“Support Service” means any Support services as specified in the support schedule, or invoice. Support may include both proactive and reactive actions to maintain the System’s accepted operational status. There will be times when Changes as opposed to Support are required to maintain the accepted operational status of the System. Such Changes may be deemed as being chargeable.
“Change(s)” mean a modification that is material or otherwise that alters the hardware or software configuration of the System defined in the Agreement.
“Remote support’ means any support given to you by us that is not given on site.
“On Site Support” means the provision of support services by Fulcrum Biometrics at the customer site(s) as specified in the support schedule.
“Customer Site” means the Site or Sites specified in the Support Schedule at which the Customer operates the System defined in the Agreement.
16.2 Commencement of Support Service
16.2.1 Upon commencement of the Support Service Agreement a System Audit will be performed, Fulcrum Biometrics may at its discretion require the system audit prior to commencement of the Support Service Agreement
16.2.2 The Customer accepts responsibility for the status of their System prior to the involvement of Fulcrum Biometrics.
16.2.3 Any deficiencies found during the System Audit will be noted in the report produced and can be corrected or improved by Fulcrum Biometrics for a fixed price.
16.2.4 The Customer is under no obligation to commission Fulcrum Biometrics to resolve issues discovered during the System Audit.
16.2.5 If the Customer does not wish to adopt recommendations for improving aspects of the System or resolve deficiencies highlighted or if there are omissions in the information provided by the Customer during the System Audit, Fulcrum Biometrics retain the right to charge additional fees or impose
reasonable limits on the Support provided for certain aspects of the System.
16.2.6 A quotation will be provided to the customer confirming costs for the support service. The fees for Fulcrum Biometrics’s Support Service will be calculated based upon the number of sites, software instances and hardware within the Customers IT System along with any other relevant factors or specific requirements the Customer may have.
16.2.7 The default Support Service Response Target will be 24 working hours remote response by default during working days, by phone or email. Onsite support shall be chargeable on a tiered basis based on response times from Emergency (1 Day), Urgent (2-4 days) and Standard (5+ Days) basis.
16.2.8 Installation of Software by the Customer will be deemed as acceptance of the support schedule and therefore acceptance of what will be supported under the terms of the Agreement.
16.2.10 Support Schedules may require amending from time to time depending upon the Customer’s needs and Changes to the System. Any such amendments will be recorded and appended to the Agreement.
16.2.11 The Support Schedule may include Roaming Computers / Users (usually laptops or mobile communications devices) that are regularly away from the Customer’s Site. Such computers must be owned by the Customer and of a configuration that is consistent with the computers at the Customers Site. This configuration requires Roaming Computers to be within the Customer’s domain architecture and having appropriate Antivirus software installed.
16.2.12 The Customer will be required to provide confirmation of all Software Licensing applicable to the System either at the commencement of the Agreement or as required by Fulcrum Biometrics during the Agreement.
16.3 Requesting Support
16.3.1 All requests for Support from the Customer must be made via the company telephone number on + 44 (1342) 810 810 or e-mail to techsupport@delaneybiometrics.com. Any support requests made by other means (e.g. emails to personal mailboxes, or calls to mobiles) shall not be monitored or covered by this agreement.
16.3.2 The Customer must inform Fulcrum Biometrics of any Incidents as soon as is practically possible. If there is a delay informing Fulcrum Biometrics of obvious warning signs then the fault may grow and cause additional impact.
16.3.3 Upon receiving notification regarding an issue with the Customer’s System, the issue will be logged as an Incident with an allocated Incident reference number. The Incident reference number along with details of the Incident will be stated to the Caller.
16.3.4 In the event of the Customer wishing to query the progress of an Incident, the Customer must be able to state the specific Incident reference number to enable Fulcrum Biometrics to identify the Incident in question. When technical staff are actively working on incidents, they may be support by nontechnical staff to assist in communications.
16.4 Delivery of Support
16.4.1 Support will be delivered by Fulcrum Biometrics to the Customer in accordance with the Support Schedule, which is 24 working hour remote response during working days by email or phone.
16.4.2 Fulcrum Biometrics retains the right to install 3rd party software on the Customer’s System to facilitate the remote connection and delivery of Support to the Customer. In accordance with this right:
16.4.2.1 If at any stage following the commencement of the Agreement the Customer refuses Fulcrum Biometrics the right to install / use 3rd party software upon their System for the purposes stated in clause 4.2 above, Fulcrum Biometrics retains the right to revise any pricing previously agreed for the Agreement or to terminate the Agreement.
16.4.2.2 Fulcrum Biometrics warrant to the Customer that all 3rd party software installed upon the Customers System for the purpose stated in clause 4.2 above will be licensed accordingly by Fulcrum Biometrics.
16.4.2.3 The ownership of 3rd party software installed upon the Customer’s System for the purpose stated in clause 4.2 above will remain vested in Fulcrum Biometrics.
16.4.2.4 The Customer can request that Fulcrum Biometrics demonstrate and explain what 3rd party software it intends to install on the Customer’s System and for what purpose it is intended.
16.4.3 Whilst working on Incidents, Consultants will keep a record of the time they spend and the actions taken. This information will be logged in the Fulcrum Biometrics Support Application under the specific Incident reference number.
16.4.4 No guarantees or commitments will be given regarding the length of time required for resolving Incidents.
16.4.5 In providing Support, Consultants regularly refer to colleagues for help and advice with specific issues in order to resolve incidents as quickly as possible.
16.4.6 To ensure that Incidents are resolved as quickly as possible and to reduce the reliance on individual Consultants, Fulcrum Biometrics retain the right to allocate Consultants to Incidents and actions within Incidents as they see fit, depending on the skills, experience and availability of Consultants.
16.4.7 The support schedule specified in the Agreement will determine the actual Response Times available under the following categories:
16.4.7.1 Standard Remote Support (within 8 hours) – reasonable use for all Customers with valid support contract, all calls answered by an experienced consultant. Outside contract, services are provided solely at our discretion on a 5 day response target.
16.4.7.2 On Site Support: All services shall be provided at Fulcrum Biometrics UK offices or our nominated location. If onsite services are required then the minimum charges per hour, or part thereof including travel and London Congestion Charge, shall apply (correct at 2018, and increase annually in line with RPI):
- < 1 Working Day (Emergency) callout: £99 per hour
- 2-3 Working Day (Urgent) callout: £79 per hour
- 3+ Days (Standard) callout: £49 per hour
16.4.8 Fulcrum Biometrics retains the right to decide whether Support will be delivered remotely or on site at all times.
16.4.9 If as a consequence of Support being provided, software, other than that installed by Fulcrum Biometrics for the purpose of facilitating remote connection and the delivery of Support as stated in clause 4.2. is installed, configured or in any way utilised on the Customer’s System the Customer is responsible for having the appropriate license for the intended use of that software.
16.4.10 The Customer accepts that whilst Fulcrum Biometrics may advise on software licensing matters the Customer will be legally liable for maintaining, acquiring and proving that appropriate licensing agreements for all software in use on their IT System exists. Consequently the Customer will be solely legally liable to pay any fees, fines or other costs associated with software licensing except for software installed by Fulcrum Biometrics as per clause 4.2.
16.4.11 The customer will provide Fulcrum Biometrics or its representative with unrestricted access to the system and will provide such further facilities and assistance as the representative may require to carry out the work. Fulcrum Biometrics will not be liable for where its representative cannot provide support as a result of the Customer failing to provide such facilities or assistance.
16.5.0 Availability of Support
16.5.1 Standard Working Hours.
16.5.1.1 Fulcrum Biometrics’s standard working Hours for the provision of any services are 09.00 AM – 5.00 PM Monday to Friday (excluding public holidays in England, and 23rd Dec to the 3rd Jan) unless expressly stated otherwise in the Agreement.
16.5.1.2 Fulcrum Biometrics’s standard working Hours for the provision of onsite Support services are 9.00 AM – 5.00 PM Monday to Friday (excluding public
holidays) unless expressly stated otherwise in the Agreement (Including 1 hour for lunch).
16.5.1.3 Consultants will work on varying shift patterns within the hours stated above. This means that individual Consultants do not necessarily work from 09.00 AM to 5.00 PM on a daily basis.
16.5.2 Out of Hours Periods.
16.5.2.1 Fulcrum Biometrics provide remote helpdesk Support during Out of Hours Periods which are the times beyond Fulcrum Biometrics standard working hours as outlined in clause 5.1 above, by pre-agreement only.
16.5.2.2 On Site Support will NOT be available during Out of Hours Periods unless explicitly stated in the Customer’s Support Agreement, and additional charges will apply.
16.5.3 The Customer is responsible for giving Fulcrum Biometrics the authority to deal with 3rd party suppliers on behalf of the Customer. When such authority has not been provided, the Support that can be offered by Fulcrum Biometrics may be limited.
16.5.4 The full breadth and depth of Fulcrum Biometrics’s technical skills and expertise will not be available during Out of Hours Periods. Consequently there
may be instances when the on duty Consultant reaches the boundary of their experience causing Support to be suspended until other technical members of staff are available.
16.5.5 When other technical expertise and experience is required in relation to an Incident logged during an Out of Hours Period there is no guarantee that this will be available before the start of the next normal working day
16.5.6 Planned maintenance can be scheduled for Out of Hours Periods at no extra cost to customers with a support agreement.
16.5.7 Fulcrum Biometrics cannot guarantee that the remote connection to the Customer’s System will always be available due to issues with the Customer’s System or other external factors beyond the control of Fulcrum Biometrics (e.g. Internet Service Provider problems).
16.5.8 When Remote Support cannot resolve the Incident and On Site Support is required, the On Site visit will be arranged for the soonest available
point in time during Fulcrum Biometrics’s standard onsite Support Hours 09.00 AM – 5.00 PM Monday to Friday. Charges will apply.
16.5.9 When an onsite visit is required, it will take place in accordance with the Standard Response Times, normally 3-5 Working Days.
Consequently there is no guarantee that an onsite Support visit will commence immediately at the start of the next standard hours period (9.00AM)
16.5.10 When a Customer has an Incident that is being worked upon during normal business hours that remains unresolved at 5.00PM Support will not continue in the Out of Hours Period by default.
16.5.11 In order for Support on an Incident that remains unresolved at 5.00PM to continue and be worked on beyond 5.00PM, the Customer will be required to specifically request an immediate Out of Hours task to be logged within the Incident in question.
16.5.12 The Customer can opt to pay for Support during Out of Hours Periods either by:Version: Aug 2016
16.5.12.1 Agreeing to a fixed fee as part of the overall contract cost in order to be able to log unlimited Out of Hours Support. The fixed fee will be stated in the Agreement.
OR
16.5.12.2 Agreeing to pay for Out of Hours Support on a pay as you go basis at an agreed hourly rate stated in the Quotation, which is be reviewed annually.
16.5.12.3 Minimum billing periods will apply when Support has been delivered for part thereof the billing period in question. (i.e. per hour, or part thereof)
16.5.12.4 When Out of Hours Support is requested on a pay as you go basis, the fees for Out of Hours Support will be invoiced in arrears as/when applicable as a separate line item in Fulcrum Biometrics’s Support invoices.
16.5.12.5 All Out of Hours Support Incidents logged will be subject to a minimum billing period of 60 minutes, followed by subsequent billing periods of 60 minutes, including travel.
16.5.13 Fulcrum Biometrics retains the right to revise the fees for Out of Hours Support from time to time and will notify Customers in advance in accordance with the guidelines stated in the Agreement from time to time.
16.6 Scheduled Maintenance
16.6.1 Where your support contract provides for, in addition to Telephone, Remote & onsite Support, Fulcrum Biometrics will provide regular scheduled software updates as required.
16.6.2 Fulcrum Biometrics does not provide General IT Support for desktop servers and network, and only its own products. Responsibility for security, patching, backups and maintenance shall be the sole responsibility of the customer, and no advice, consultancy or support shall be expected or delivered under this Agreement.
16.7 Chargeable Services
16.7.1 A Change may be in the form of urgent repair work deemed as being within the scope of the Support contract in order to maintain the accepted operational status of the System. Alternatively a Change may be an enhancement for security, stability, scalability or functionality reasons that will not be covered within the scope of the Support Service Agreement unless undertaken at the discretion of Fulcrum Biometrics as a proactive measure.
16.7.2 Requests from Customers for Changes to their System not deemed as being implicit within the ongoing Support duties required under the scope of this Agreement will normally be chargeable as separate pieces of work. Fulcrum Biometrics will however assess each request on a request by request basis. If a request can be completed via remote support within a 60 minute period there will not normally be a charge, any work requiring longer involvement will be charged in billing periods of 60 minutes at the rate specified in the support agreement.
16.7.3 For separate pieces of work in the form of “consultancy” or “project work”, charges will be at the hourly rate as set out in the support agreement, unless a fixed price has been pre-agreed in the form of supporting quotes and proposals. The Customer will be required to confirm commencement of such work via sign off of a work sheet.
16.7.4 Fulcrum Biometrics will always endeavour to seek the Customer’s approval for chargeable Changes in advance, however, Fulcrum Biometrics retain the right to perform chargeable Changes that fall outside of the Agreement without prior sign off if deemed absolutely necessary for the continued operation of the Customer’s System.
16.7.5 Fulcrum Biometrics retain the right to revise the fees charged for ongoing Support under the Agreement following the implementation of Changes.
16.7.6 Any Changes performed by Fulcrum Biometrics to the System will be Supported under the Agreement, once any warranty periods have expired, and pending agreement being reached on revised fees for ongoing Support (if applicable).
16.7.7 The Customer retains overall responsibility for their System. Any Changes made to the System by the Customer or a 3rd party instructed by the Customer, may be approved in principle prior to being implemented. However, such changes will only be covered by the Agreement once approved by Fulcrum Biometrics upon completion of the implementation.
16.7.8 For such Changes to be approved upon completion, Fulcrum Biometrics must receive appropriate details from the Customer in a timely fashion in order to assess the impact they will have on the System and if they may cause the need for additional Support.
16.7.9 If accepted, with or without an increase to the fees charged via the Agreement, the Changes will be noted in Appendix 1 of the Support Service Agreement.
16.7.10 If Support is required for an unapproved System Change or another System, Fulcrum Biometrics will endeavour to provide Support under the terms of the Agreement, however Fulcrum Biometrics retain the right to refuse Support or impose additional charges as necessary.
16.7.11 If the Customer’s System grows in numbers of installations by 25% over any given period, Fulcrum Biometrics retain the right to instigate a System review.
16.7.12 The result of the System review may lead to the fees charged under the Agreement to be revised.
16.8 Exclusions/Excluded Work
16.8.1 Customers must accept that computers, software and their associated products can be supplied in an imperfect state or can develop faults over time and that Fulcrum Biometrics’s role is to reduce the effects of such imperfections rather than to eliminate them.
16.8.2 Fulcrum Biometrics retains the right to exclude 3rd party software from the scope of the Agreement.
16.8.3 When 3rd party software is included within the scope of the Agreement, Support will only be provided to users that have a reasonable level of competency and once the user has used help files and other resources available from the vendor.
16.8.4 Fulcrum Biometrics do not commit to having experts available for all 3rd party software and therefore cannot guarantee being able to resolve all Incidents relating to 3rd party software logged and will not provide training under the terms of the Agreement.
16.8.5 When 3rd party information or services are provided Fulcrum Biometrics can make no guarantees about quality or suitability.
16.8.6 Fulcrum Biometrics cannot guarantee that any 3rd party software including but not limited to anti-virus, security and firewall software, whether or not recommended by Fulcrum Biometrics will keep computer(s) free of errors, viruses, worms, trojans, email spam, spy ware, hacking or any other unauthorised access.
16.8.7 In certain circumstances when an issue exists with an aspect of the Customer’s System, Fulcrum Biometrics may recommend a solution that will require a capital cost outlay by the Customer. Such costs will not be covered by the Agreement.
16.8.8 If the Customer chooses not to adopt the solution recommended by Fulcrum Biometrics and the issues continue, Fulcrum Biometrics retains the right to refuse or limit Support in respect of the item / issue in question.
16.8.9 Alternatively a higher charge for continued Support for the item / issue may be introduced to reflect the additional effort that would not have been required if the recommendation were adopted.
16.8.10 Fulcrum Biometrics will require Administrator-level access to the System at all times
16.8.11 Fulcrum Biometrics cannot be held responsible for being unable to provide Remote Support due to a lack of remote access to the System, when the lack
of remote access results from a problem with connectivity that is beyond Fulcrum Biometrics’s control.
16.8.12 Fulcrum Biometrics will respond to each Incident on a best endeavours basis, normally 24 working hour response, with 1-5 working day resolution target. Issues which are complex, intermittent or Fulcrum Biometrics cannot replicate on its systems may take considerably longer.
16.8.13 Fulcrum Biometrics retains the right to decide the appropriate course of action for each Incident and will follow the necessary troubleshooting steps in order to diagnose and then rectify the Incident.
16.8.14 Depending upon the nature of the Incident, Fulcrum Biometrics may have to impose a workaround to rectify the Incident as opposed to a fix. Any workaround may be temporary prior to a permanent solution being instigated or permanent if the Customer decides not to proceed with a permanent fix.
16.8.15 A workaround may be of a technical nature or may involve changing a manual business process performed by the Customer.
16.8.16 Fulcrum Biometrics will always aim to return the affected area of the System to an acceptable operational state, however depending on the nature of the problem this may not be possible without Changes to the System being made.
16.8.17 Fulcrum Biometrics retains the right to not install, configure or Support any software for which the Customer cannot provide / produce a valid license for.
16.8.18 Other services not included as standard within the scope of the Agreement include:
16.8.18.1 Procurement of new or replacement hardware, software of whatever nature.
16.8.18.2 Installation, physical removal or relocation of hardware, software or networks.
16.8.18.3 Provision of Hardware warranty for repairs or replacement of equipment including but not limited to networked printers, photo copiers, fax and scanning machines (The Customer is responsible for keeping records of all 3rd party warranties and licences).
16.8.18.4 Provision of Anti-Virus or Backup Software (Fulcrum Biometrics may make recommendations but the Customer will remain responsible for purchasing and operating the appropriate licence).
16.8.18.5 Technical or end user training on the Customer’s System or 3rd party applications.
16.8.18.6 Internet connections email and web hosting services and remote file storage services.
16.8.18.7 Work required as a result of operator error or any other improper use, care of or accident to the system, or any failure of or change in: electricity, air conditioning, humidity control or other environmental or operating conditions not recommended or approved by Fulcrum Biometrics, or by the system manufacturer
16.8.18.8 Electrical or other work external to the equipment, except where we are the installer.
16.8.18.9 Work on any item of the equipment that has been moved, repaired or tampered with by any person other than one of Fulcrum Biometrics representatives.
16.9. Data Security/Recovery
16.9.1 Fulcrum Biometrics will not be held responsible for any data backups, corruption or loss, howsoever caused.
16.9.2 Should any such data loss occur, Fulcrum Biometrics will make every effort to support recovery of the data at additional cost.
16.9.3 If 3rd party specialist data recovery services are required, then it is the customer’s responsibility to cover the cost for this.
16.10 Termination of Support Agreement
16.10.1 The Customer can terminate the Agreement at any time with the provision of 30 days’ notice in writing before the end of the support period, normally 1 month or 1 year.
16.10.2 If the Customer wishes support services to be ceased immediately or at any specific point during the support period, the FULL charges for the support period will remain applicable and payable in full by the Customer.
16.10.3 Fulcrum Biometrics can terminate the Agreement or any aspect of it including at any time with 30 days’ notice in writing, and issue a refund.
16.10.4 Fulcrum Biometrics can terminate the Agreement or any aspect of it with immediate effect if the Customer becomes the subject of a receivership, winding up, administration or bankruptcy order (or a petition is presented in respect of any of these). Or, if it otherwise appears to Fulcrum Biometrics that the Customer is insolvent and unable to pay its debts as they fall due.
16.10.5 Fulcrum Biometrics shall be entitled to terminate the Agreement in the event that the Customer commits a material breach of the Agreement and fails to
remedy the breach within 30 days of receipt of written notice from Fulcrum Biometrics.
16.10.6 The customer shall be entitled to terminate the Agreement in the event that the Fulcrum Biometrics commits a material breach of the Agreement and fails to remedy the breach within 30 days of receipt of written notice from the customer.
16.10.7 Any termination shall be without prejudice to Fulcrum Biometrics’s other rights or to the Customers liability for amounts payable under the Agreement.
16.10.8 In the event of termination of the Agreement, Fulcrum Biometrics retains the right to uninstall any 3rd party software from the Customer’s System that Fulcrum Biometrics own the licence for or that Fulcrum Biometrics have installed on behalf of a 3rd party who own the software licence.
16.11 Assignment of Support Agreement
16.11.1 We may assign, subcontract or otherwise dispose of our obligations under the Agreement or any other agreement between the parties to any other party. Fulcrum Biometrics may withdraw from the support contract at any time by provide 1 months notice and providing a pro-rata refund of monies paid.
16.11.2 Specifically, where we procure that a third party (such as the system manufacturer) provides a preventative maintenance routine, telephone, modem or onsite support or other services to the customer, the customer shall be bound by any additional terms which the third party may impose either on Fulcrum Biometrics or the customer, and if there is any inconsistency between the terms of business of the third party of and the terms of the Support Services Agreement the terms of the third party terms shall prevail.
16.11.3 The customer may not assign the Support Services Agreement to another legal entity without prior written consent by a director of Fulcrum Biometrics.
