TERMS AND CONDITIONS, RENTAL, LEASE, PURCHASE OR SALE
1.1 In these terms and conditions, the following words and expressions shall have the following meanings:
“Alert Sharing Software”
software permitting SCAN NET Members (defined below) to share a SCAN NET Alert (defined below) with other SCAN NET Members;
operating the Customer’s business, direct marketing and any other related purpose; and uploading Customer Data to the Equipment (or other comparable equipment);
Support Services provided in respect to an item of Equipment returned to IDscan Head Office;
twenty five  pounds plus VAT;
twenty Fifth [25th] December;
the terms and conditions set out in this document;
infection, viruses and/or any other software code that has contaminating or destructive properties;
the contract between the parties for the rental, lease or sale of the Equipment and the license for the Software by IDscan to the Customer, evidenced by a Quotation or an Order and acceptance thereof by the Customer or IDscan as the case may be and including these Conditions;
the company, entity, legal body, directors, partners or individuals who is hiring, leasing or purchasing the Equipment and license for the Software pursuant to the Contract;
any and all data created by or for the Customer which is stored on the Equipment;
“Distant Call Out Rate”
two hundred and seventy five pounds [£275] plus VAT;
any user guide, help information and/or other documentation provided by IDscan to the Customer;
the equipment rented, leased or sold by IDscan to the Customer under the Contract;
“Extended Payment Fee”
a fixed charge of one hundred pounds [£100] plus VAT chargeable to the Customer pursuant to Clause 3.2.3(g);
“Extended Payment Window”
a period of sixty  days from the Payment Date;
IDscan Biometrics Limited, a company registered in England and Wales under company number 04779960, with registered address Aegon House, 13 Lanark Square, Cross Harbour, London E14 9QD;
“IDScan Head Office”
Aegon House, 13 Lanark Square, Cross Harbour, London E14 9QD;
material that is, or may in the reasonable opinion of IDscan be considered to be, obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights (defined below) or any other law or regulation;
“Intellectual Property Rights”
a) any and all rights in any patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, in any part of the world;
- b) rights under licenses, consents, orders, statutes or otherwise in relation to a right in paragraph(a);
- c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
- d) the right to sue for past infringements of any of the foregoing rights;
the fixed date in each month in which a Rental/Lease Invoice is issued by IDscan to the Customer pursuant to Clause 4.2.2;
Invoice issued by IDscan for the rent or lease of the Equipment and the license to use and access the Software through the Equipment;
“Late Payment Fee Expansion Factor”
a factor of twenty percent [20%] by which the Rental/Lease Fees (and Support Fees as appropriate) are increased pursuant to Clause 3.2.3(g);
a license and right to use the Software for the Authorised Purpose;
a period of seven  days;
the payments made by or on behalf of the Customer for the use of the Software Services as set out in the Order;
“Local Call Out Rate”
one hundred and ninety five pounds [£195] plus VAT;
a service in which IDscan employees or agents disposed proximal to the Equipment or other equipment; through which the Software is used by the Customer; access and intervene in the Equipment or other equipment to resolve a fault therein and/or in the Software;
“Missed Payment Fee”
the fee of thirty nine pounds [£39] payable by the Customer to IDscan pursuant to Clause 3.2.3(d);
any improvements, updates, variations, modifications, alterations, additions, error corrections, enhancements, functional changes or other changes to the Software and Documentation;
local Intervention service in which IDscan employees or agents travel to the premises to investigate (and if possible resolve) reported problems with the Software and/or the Equipment;
sum for which the Customer may purchase the Equipment following the termination of the Rental/Lease Period;
order placed by the Customer for the purchase, rent or lease of the Equipment and the Software as set out in the Customer’s purchase order form or the Customer’s written acceptance of a Quotation as the case may be;
the fixed date in each month in which a Rental/Lease Fee is payable for the following month;
two  Payment Dates on which Rental/Lease Fees are not paid pursuant to Clause 3.2.3(f);
a period of seven  days from the issuance of a notice to the Customer under Clause 3.2.3(e);
basic support and advice delivered by telephone and by IDscan’s employees or agents to the Customer without Local Intervention or Remote Intervention;
location set out in the Order, or such other location as the Parties may agree, to which the Equipment are delivered and installed by IDscan;
IDscan’s price list, current at the start of the Rental/Lease Period;
a quotation of IDscan;
service in which IDscan, through the Internet or other suitable network means remotely accesses and intervenes in the Equipment or other equipment through which the Software is used by the Customer to resolve a fault in the Equipment and/or the Software;
the payments made by or on behalf of the Customer for the rental or lease of the Equipment as set out in the Order;
invoice issued by IDscan for the rent or lease of the Equipment;
the period of rental or lease of the Equipment as set out in the Order;
the charge of five thousand pounds [£5000] plus VAT payable by the Customer to IDscan pursuant to Clause 3.2.6(c), in the event the Customer fails to return the Equipment to IDscan within the Return Period
“Return Penalty Payment Period”
period of seven  days from the issuance to the Customer of a “FAIL TO RETURN EQUIPMENT DEMAND” within which the Customer must pay the Return Penalty pursuant to Clause 3.2.6(c);
period of twenty one  days from the end of the Rental Period, in which the Equipment must be returned to IDscan pursuant to Clause 3.2.6(c);
“SCAN NET Alert”
a shared digital communication describing an alleged incident that took place at the premises of a SCAN NET Member who has chosen to share (under the terms of the Safer Clubbing at Night Network Information Sharing Agreement) the details thereof with other SCAN NET Members to assist them in complying with their statutory obligations under the Licensing Act 2003;
“SCAN NET Alert Originator”
the creator of a SCAN NET Alert;
“SCAN NET Members”
Customers who are members of the Safer Clubbing at Night Network and who are signatories to the Information Sharing Agreement for the Safer Clubbing at Night Network;
“Scheduled Payment Fee”
fixed charge of thirty nine pounds [£39] payable by the Customer to IDscan pursuant to Clause 3.2.3(c);
computer software application(s) developed and owned by IDscan or licensed by IDscan from third party sources, the said computer software application(s) being operable in the Equipment to perform identity document checking;
“Software Licence Invoice”
Invoice issued by IDscan for the license to use and access the Software;
“Software Use Term”
the period, as set out in the Order, during which access and right of use is granted to the Software;
providing access to the Software, granting the Licence and making all necessary Modifications to the Software as set out in Clause 4.1.1;
services in respect to the support and maintenance of the Software, and the Equipment upon which the Software may be installed;
loss of the Equipment through accident or theft; or damage to the Equipment which is beyond economical repair.
1.2 Unless the context otherwise requires, each reference in these Conditions to:
- (a) “writing” and any cognate expression, includes a reference to any communications effected by electronic or facsimile transmission or similar means;
- (b) a Clause is a reference to a Clause of these Conditions;
- (c) a “Party” or “Parties” refer to the parties to these Conditions;
- (d) the headings used in these Conditions are for convenience only and shall have no effect upon the interpretation of these Conditions;
- (e) words imparting the singular number shall include the plural and vice versa; and 10
- (f) references to any gender shall include the other gender.
2.1 IDscan agrees to
- (a) rent, lease, or sell the Equipment; and/or
- (b) provide a non-exclusive licence to use the Software and Documentation; as the case may be, in accordance with the Contract.
2.2 All Quotations and acceptance by IDscan of any Order is on the understanding that the 20 Customer accepts these Conditions. These Conditions shall form the basis of the Contract notwithstanding anything to the contrary in any other terms and conditions of or referred to by the Customer. In particular, apart from individual End User Software Agreements which apply to certain computer software applications which may be licensed to the Customer as part of the Software, the Conditions and the Order make up the whole Contract between the 25 Customer and IDscan, to the exclusion of all other terms and conditions referred to, offered or relied on by the Customer whether in negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by the Customer, unless the Customer specifically states in writing, separately from such terms and conditions that the Customer wishes such terms and conditions to apply and this has been acknowledged by 30 IDscan.
2.3 The Condition binds the Customer, and its employees and any future legal entity that continues to operate the Equipment, rented, leased or purchased by the Customer.
2.4 If the Customer comprises two or more persons, the said persons will be jointly and severally liable under the terms of the Contract. This means that each person will be fully 5 responsible for complying with the terms of the Contract and if any person is in breach of the contract, IDscan may at its option sue that person or any or all of the persons.
2.5 The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce 10 all Conditions in this Agreement.
(a) IDscan shall deliver the Equipment to the Premises and install the Equipment therein. It is expressly agreed that IDscan shall not be liable to the Customer for any delay in the delivery and installation of the Equipment.
(b) Risk associated with the Equipment shall pass to the Customer on delivery or with the passing 20 of title in the Equipment, whichever occurs first; provided however that where delivery is delayed on account of circumstances caused by or within the responsibility of the Customer, risk of loss shall pass to the Customer upon IDscan’s notification that the Equipment is ready for dispatch. Unless otherwise specified in writing in the Contract, all charges, expenses or taxes associated with the delivery of the Equipment shall be paid by the Customer.
3.2 RENTAL OR LEASE
3.2.1 Rental/Lease Period
- (a) The agreed Rental/Lease Period will be as set out in the Order unless the Contract is terminated earlier in accordance with these Conditions.
- (b) The Rental/Lease Period will commence from the time and date when the Equipment and the Software is delivered and installed at the Premises.
- (c) The Rental/Lease Period may be extended by mutual written agreement of both Parties.
- (a) The Equipment shall at all times remain the property of IDscan and is provided to the Customer solely on a rental or leased basis.
- (b) The Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the Conditions).
3.2.3 Fees and Payment
- (a) The Rental/Lease Fees will be determined by reference to the length of the Rental/Lease Period, the type and quantity of the Equipment, the Price List and any additional items which 50 may be included in the rental or lease, as set out in the Contract. IDscan reserves the right to alter the Rental/Lease Fees for Equipment already on rent or lease by written notice to the Customer.
- (b) The Rental/Lease Fees shall be paid in advance and on a regular monthly basis. IDscan will 55 issue to the Customer on a fixed Invoice Date in each given month a Rental/Lease Invoice in respect to the Rental/Lease Fees payable for the next month. Payment of the Rental/Lease Fee will be made to IDscan on a fixed Payment Date in the same month as the corresponding Rental/Lease Invoice issued.
- (c) All Rental/Lease Fees payable to IDscan for the provision of the Equipment shall be paid by direct debit or scheduled payment. Customers who opt for scheduled payment shall pay 5 IDscan an additional Scheduled Payment Fee each month.
- (d) In the event the Customer fails to pay IDscan a Rental/Lease Fee on the Payment Date, IDscan will without prejudice to any other right or remedy that it may have,
- (i) charge the Customer a Missed Payment Fee; and 10
- (ii) issue a notice to the Customer advising them of the failed payment and the charge to the Customer of the Missed Payment Fee.
- (e) In the event the outstanding Rental/Lease Fee and the Missed Payment Fee is not paid within the Payment Window, then without limiting the other remedies available to IDscan, IDscan reserves the right to recover the Equipment.
- (f) In the event a direct debit or scheduled payment of a Rental/Lease Fee is not paid on a Payment Threshold number of Payment Dates, all rights to any previous payments and/or deposits made in connection with the Equipment are null and void and the Customer will 20 relinquish all future claim to such and/or any rights to any of the Equipment.
- (g) In the event a Rental/Lease Fee is not paid within the Extended Payment Window, then without limiting the other remedies available to IDscan, the Customer shall pay IDscan an Extended Payment Fee. In addition, all subsequent Rental/Lease Fees (and Support Fees as 25 appropriate) payable under the Contract will increase by the Late Payment Fee Expansion Factor until the outstanding Rental/Lease Fee(s) and associated Missed Payment Fee(s) and the Extended Payment Fee are paid.
3.2.4. Conditions of using the Equipment
- (a) Customer may only use the Equipment for the purposes for which it was intended; and operate the Equipment in a properly and prudent manner.
- (b) Customer shall take all reasonable and proper care of the Equipment, not subject the 35 Equipment to misuse and shall at the Customer’s own expense at all times during the Rental Period keep and maintain the Equipment in good and substantial repair, condition and appearance in order to keep the Equipment in as good an operating condition as it was on the commencement of the Rental/Lease Period (fair wear and tear only accepted). Customer will be responsible for any damage caused to the Equipment apart from that caused by fair wear and tear.
- (c) Customer will comply with all laws, regulations or rules of lawfully constituted authorities in relation to the possession and use of the Equipment.
- (d) Customer will keep the Equipment at all times in Customer’s possession and control. Customer will keep the Equipment at the location specified in the Contract and will not move the Equipment from this address without the prior written consent of IDscan.
- (e) Customer will allow IDscan or its authorized representatives to inspect the Equipment at all 50 reasonable times and for such purpose to enter upon the Premises and shall grant reasonable access and facilities for such inspections.
- (f) Customer may not remove, alter, affix to, disfigure or cover up any numbering, lettering or insignia displayed upon the Equipment or any warnings or documentation thereon without 55 IDscan’s prior written consent.
- (g) Customer must not transfer the benefit of the Contract or do anything which affects IDscan’s rights in the Equipment, including selling or disposing of the Equipment; or using the Equipment as a security for a debt or any other obligation. If the Equipment is kept on rented property in Scotland, it will not form part of the landlord’s hypothec.
- (h) Customer will not do or permit to be done anything which would invalidate the insurances 5 referred to in Clause 3.2.5.
- (i) Customer must immediately notify IDscan of any loss or damage to the Equipment and on demand, reimburse IDScan in respect thereof within thirty  days of the occurrence. In the event of “Total Loss”, Customer shall within twelve  days, replace the 10 Equipment at Customer’s own expense. In any event, IDScan is not obliged to replace Equipment that is lost or damaged.
In the event of
- (i) Total Loss or
- (ii) Customer fails to return the Equipment to IDscan in the condition required in Clause 3.2.4(b), and as consequence, IDscan is unable to sell the Equipment for the full amount of IDscan’s unrecovered investment in the residual value of the Equipment,
Customer shall pay IDscan five thousand pounds [£5000] plus VAT to compensate IDscan for its loss. 20
- (k) Should the Customer enter administration, liquidation or cease trading, the Customer must notify IDscan of the same, within twenty-four  hours of the said event and return all of the Equipment to IDscan or otherwise pay IDscan for the full replacement value of the Equipment. 25
- (l) Customer must comply with the terms and conditions of any software licence provided to Customer by IDscan in connection with the Equipment; and Customer agrees to indemnify and hold IDscan, its directors, officers, employees and agents harmless from and against any liability and expenses (including legal costs on a full indemnity basis) arising from, relating to 30 or in connection with the breach of any of the provisions of any such software licence.
- (a) During the Rental Period, the Customer shall, at its own expense, provide and maintain the 35 following insurances:
- (i) insurance for the Equipment against all loss and damage, in an amount equal to the full replacement value of the Equipment;
- (ii) insurance for such amounts as a prudent owner or operator of the Equipment would insure the Equipment for, or such amount as IDscan may from time to time reasonably 40 require, to cover any third party or public liability risks arising directly or indirectly out of the possession or use of the Equipment.
Such insurance shall commence on date of delivery and installation of the Equipment and shall extend for the Rental Period up to and including the date when the Equipment is returned to IDScan and acknowledged by IDscan in writing.
- (b) Customer will arrange for IDscan’s interest in the Equipment to be endorsed on any insurance policy procured by the Customer to provide the coverage outlined in Clause 3.2.5(a) above.
- (c) Customer shall, upon request by IDscan, provide IDscan with certificates of insurance 50 evidencing the coverage required in Clause 3.2.5(a). In the event the Customer fails to provide such evidence, IDscan may, at its discretion and for such period as it thinks fit, arrange insurance for the Customer to provide at least some of the coverage outlined in Clause 3.2.5(a). In this case, the Customer will appoint IDscan as the Customer’s agent to arrange for the insurance and Customer will pay the full cost of the insurance, which IDscan will collect from 55 Customer with the Rental/Lease Fees.
- (d) Customer must immediately notify IDscan of any insurance claim pursuant relating to the Equipment. Customer must not settle any insurance claim relating to the Equipment without IDscan’s prior written consent. Customer appoints IDscan as Customer’s agent for receiving insurance settlements and Customer must tell the insurance company that any settlements from a Total Loss claim should be paid to IDscan, as Customer’s agent.
- (e) Any insurance settlement received by IDscan receives from the Customer’s insurers will be credited to any amount payable by the Customer to IDscan pursuant to Clause 3.2.3.
- (a) Upon termination of the Rental/Lease Period Customer shall at Customer’s own expense, restore the Equipment to its original condition, fair wear and tear excepted and return the Equipment to IDscan at such place in the United Kingdom that IDscan shall designate, normally IDscan Head Office.
- (b) In restoring the Equipment to its original condition, the Customer shall remove all Customer Data from the Equipment. IDscan accepts no responsibility for any Customer data which remains on the Equipment following the end of the Rental/Lease Period.
- (c) In the event the Equipment is not returned to IDscan within the Return Period, the Customer will 20 be charged the Return Penalty. The Return Penalty must be paid in full within the Return Penalty Payment Period. Customer also hereby authorizes IDscan to enter the Premises and to do any and all things necessary to repossess the Equipment. IDscan shall not be under any liability for any loss or damage sustained in consequence or by reason of IDscan’s actions under this Clause.
3.2.7 Option to Purchase
In the event the Customer has paid all the Rental/Lease Fees and any other sums payable under the Contract and performed all of the Customer’s obligations under the Contract, the Customer shall have the option to purchase the Equipment for the Option Payment.
- (a) Equipment purchased by the Customer from IDscan, but not fully paid for, shall at all times remain the property of IDscan; and the Customer shall have no right, title or interest in or to the Equipment, notwithstanding the delivery of the Equipment to the Customer.
- (b) Title in Equipment purchased by the Customer from IDscan shall pass to the Customer 40 only upon full payment by the Customer for the purchased Equipment and following payment of any other outstanding debt by Customer to IDscan.
- (c) Customer shall at IDscan’s request take any measures necessary under the applicable law to protect IDscan’s title in the Equipment and lawfully notify the Customer’s creditors or potential 45 creditors of IDscan’s title on and interest in the Equipment. Customer acknowledges that so long as title has not been transferred in the Equipment, the Customer holds the Equipment as bailee and fiduciary agent for IDscan and shall safely and securely store and keep the Equipment in good condition and shall record IDscan’s ownership of the Equipment in its books. Notwithstanding this, Customer may use the Equipment in its business, but may not 50 sell, rent or otherwise dispose of the Equipment with IDscan’s prior written consent.
Unless otherwise agreed by IDscan in writing, payment for the Equipment shall be due on or prior to the delivery date of the Equipment. Payments received after the delivery date shall bear a service 55 charge which will accrue from the due date, whether inscribed on the relevant invoice or otherwise agreed, at the maximum lawful interest rate applicable, and if none, at the annual rate of 5% above the current base rate of the Bank of England.
4.1.1 Subject to the Customer’s full compliance with the Conditions, IDscan will provide for the duration of the Licence Term, the Software Service comprising:
- (a) supplying the Customer with access to the Software;
- (b) granting the License to the Customer;
- (c) supplying Documentation;
- (d) making all necessary Modifications to the Software and ensuring that the Software is updated as necessary.
4.1.2 The License is non-exclusive, non-transferable and nonsublicensable; and shall be repeatedly renewed for the duration of the Software Use Term specified in the Order. 15
4.1.3 The Software is owned by IDscan and is copyrighted and licensed, not sold. Thus, all rights and title in the Software, including all the Intellectual Property Rights in the Software (and any Modifications) remain the property of IDscan.
4.2 Term, Fees and Payment
4.2.1 The Software Use Term and Licence Term shall commence from the time and date specified in the order or the date and time of the delivery and installation of the Equipment at the Premises whichever is the later. For the avoidance of doubt, in the 25 event the Software is licensed by the Customer for use with Equipment rented or leased by the Customer from IDscan pursuant to Clause 3.2, the Software Use Term shall run concurrently with the Rental/Lease Period.
4.2.2 The License Fee shall be paid in advance and on a regular monthly basis. IDscan will issue 30 to the Customer on a fixed Invoice Date in each given month a Software Licence Invoice in respect to the License Fee payable for the next month. Payment of the Licence Fee will be made to IDscan on a fixed Payment Date in the same month as the corresponding Software Licence Invoice issued. In the event the Software is licensed by the Customer for use with Equipment rented or leased by the Customer from IDscan pursuant to Clause 3.2, a 35 Joint Invoice may be issued in respect of the License Fee and the Rental Lease Fees.
4.2.3 All License Fees payable to IDscan shall be paid by direct debit or scheduled payment. Customers who opt for scheduled payment shall pay IDscan an additional Scheduled Payment Fee each month.
4.2.4 In the event the Customer fails to pay IDscan a License Fee on the Payment Date, IDscan will without prejudice to any other right or remedy that it may have, immediately rescind the Customer’s License so that the Software will cease to operate.
4.2.5 IDscan may increase the License Fee from time to time. IDscan shall give the Customer prior written notification of any such increase.
4.3 License Updates
4.3.1 Customer shall ensure that the Equipment (or other equipment through which the Customer is using the Software Service) is connected to the internet and has access to IDscan’s license manager (www.IDscan.biz) for a minimum period of thirty  minutes at least once during the License Term to permit renewal of the License.
4.3.2 Failure to comply with Clause 4.3.1 will cause the License to be invalidated and the cessation of normal operations of the Software. IDscan is not liable for any consequential loss, loss of business and/or loss of profit that may be suffered by the Customer in this eventuality.
4.4 Conditions of Use
4.4.1 The Licensee undertakes during the Licence Term:
- (a) upon request from IDscan, to allow remote or direct access to the Equipment (or any other equipment through which the Customer is using the Software Service) by removing firewalls and/or passwords that in any way may block IDscan access to the 10 Software; and
- (b) to immediately notify IDscan in the event the Customer becomes aware of any unauthorized access to the Software.
4.4.2 The Customer shall be responsible for
- (a) keeping confidential all login and password information supplied thereto by IDscan from time to time;
- (b) ensuring that permissions granted to its employees for use of the Software are kept up to date at all times; and
- (c) all access to the Software Service by the Customer’s employees or any other 20 persons accessing the Software using the Customer’s login and password information, whether authorized by the Customer or not.
4.4.3 Except to the extent permitted by the Customer as a lawful user of the Software Service or to the extent permitted by law, the Customer undertakes not to:
- (a) use the Software Service or the Software to store, send or otherwise process Inappropriate Content;
- (b) in any way deny IDscan access to the Software,
- (c) translate, disassemble, decompile, reverse engineer, adapt, vary or modify the Software without IDscan’s prior written consent;
- (d) copy, adapt, modify or translate the Documentation without the prior written consent of IDscan;
- (e) delete, vary or obscure any copyright or other proprietary notices on or in the Software and/or the Documentation; and
- (f) rent, lease, sub-license, assign, transfer or distribute the Software and/or the 35 Documentation.
4.4.4 The Customer acknowledges that
- (a) IDscan has no control over any Customer Content and does not purport to monitor such content; 40
- (b) the Software Service may from time to time be at least partially inoperative as a consequence of factors beyond IDscan’s reasonable control, wherein these factors include but are not limited to maintenance, hardware or software upgrades and internet /telecommunication connectivity problems. IDscan will not be liable for its failure or inability to provide continuous, error free, uninterrupted services under 45 these circumstances.
4.4.5 In the event of any interruption to the Software Service as set out in Clause 4.4.4(b), IDscan will notify the Customer of the same as soon as reasonably practicable by posting a notice on the IDscan Website or by any other reasonable means available to IDscan.
4.4.6 IDscan reserves the right to remove any Customer Content where it reasonably suspects such content is Inappropriate Content. IDscan shall notify the Customer in the event IDscan becomes aware of any allegation that Customer Content may be Inappropriate Content.
4.4.7 IDscan shall be entitled, on prior notice to the Customer, to make changes to the Software Service, provided such changes do not have a material adverse affect on the functionality of the same.
4.4.8 IDscan shall have no obligation to correct or continue to provide the Software Service where the cause(s) of any fault in the Software Service have been identified by IDscan as having arisen from any of the following:
- (a) misuse or incorrect use of the Software Service;
- (b) use of the Software Service in combination with any unsuitable equipment or any fault 5 in any such equipment; or
- (c) any breach of the Customer’s obligations under these Conditions.
5.1 Customers may contact IDscan by phone or email to report problems with the Equipment and/or the software. The Customer, shall supply IDscan a detailed description of the problem and the circumstances under which it arose; and if necessary, shall submit to IDScan sufficient material and information to enable IDscan support staff to duplicate the problem. IDscan shall endeavor to respond to such communications within ten  hours of receipt 15 thereof.
5.2 IDscan shall provide Customer with the Support Services, subject to the following terms:
- (a) in the event the Equipment in the possession of the Customer includes a card scanner, the card scanner is calibrated each week and cleaned each month; 20
- (b) Customer does not surf the web on or add any other software to the Equipment or other equipment through which the Customer uses the Software;
- (c) Customer’s payments of the Licence Fee, Rental/Lease Fee and/or any other payments due to IDscan have been paid with no sums outstanding;
- (d) Equipment is operated within normal operating temperatures of 6o C to 34o C; 25
- (e) License is renewed and up to date; and
5.3 Support Services comprises Remote Intervention, Phone Support and Local Intervention elements.
5.4 Remote Intervention is provided twenty four  hours a day, seven  days a week, every day of the year apart from Christmas Day. To avail of Remote Intervention, the Equipment or other equipment through which the Customer uses the Software must be connected to the Internet.
5.5 Phone Support is provided in the event Customer is unable to connect the Equipment (or other equipment through which the Customer is using the Software) to the internet for remote support
- (i) during office hours between 0900 and 1730 Monday to Friday (excluding national holidays);
- (ii) out-of hours: from 1800 to 21:00 on Friday and Saturday and from 1800 to 2200 40 on other nights.
5.6 Local Intervention may be provided by way of:
- (i) On-site Support; or
- (ii) Bench Support to Equipment or other equipment sent to IDscan for investigation.
5.7 On-site support will be provided by IDscan if specified in the Order and where appropriate in the event that Phone Support or Remote Intervention fails to resolve a problem with the Software or the Equipment. On-site support will be provided within seven  days of registration of a support call. Should the cause of the problem be deemed to be 50 caused by
- (a) something other than a fault in the Software or the Equipment
- (b) damage incurred to the Equipment since installation in the Premises pursuant to Clause 3.1 a call-out charge for the On-site support shall be invoiced at the Local Charge Out Rate when the premises are located outwith the London and M25 areas, and otherwise at the Distant Call Out Rate. A call-out charge will also be invoiced for the on-site support in the event the Equipment is not is connected to the internet (to support Remote Intervention and/or license updates pursuant to Clause 4.3.1).
5.8 Bench Support will be provided on request subject to the payment of a Carriage Charge for each of the transport of the Equipment to IDScan Head Offices and return of the Equipment to the Premises. When appropriate, IDscan will within three  days of the receipt of the 5 Equipment at the IDScan Head Offices, provide the Customer with an estimate of the how long a problem may take to resolve and the likely costs thereof. Bench time for repairs is charged at the current rate. Should the Customer accept these estimates, IDscan will commence servicing or repairs as appropriate. IDscan will keep Customer, informed of progress in resolving the problem. 10
5.9 Purchased Equipment is supported for one  month, thereafter the Manufacturer’s warranty takes precedence.
5.10 IDscan may at its sole discretion, correct errors by issuing a ‘patch’ for the Software or by 15 issuing a new version of the Software.
5.11 IDscan may back up automatically up to seven  days of data as a free service, any data more than seven  days old may automatically become unavailable to the Customer for the purposes of reinstating a lost data-base. This free service is dependent upon the availability 20 of internet connectivity and can be switched off in the Customer’s user settings of the Software.
5.12 IDscan may back up unknown or high risk documents with a score of 7 or above, for the purpose of reviewing the document to ensure that it is included within the IDscan library. 25 Once reviewed the document will be purged. This free feature is dependent upon the availability of internet connectivity and can be switched off in the Customer’s user settings of the Software.
6. INTELLECTUAL PROPERTY
6.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment and the Software are and shall remain the sole property of IDscan or, as the case may be, a third party.
6.2 IDscan shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of IDscan.
6.3 IDscan’s Intellectual Property Rights in and relating to the Equipment shall remain the exclusive property of IDscan, and the Customer shall not at any time make any unauthorized use of such Intellectual Property Rights, nor authorize or permit any of its agents or contractors or any other person to do so.
6.4 The Customer acknowledges that all Intellectual Property Rights in the Software and the Software Service and any Modifications belong and shall belong to IDscan, and the Customer shall have no rights in or to the Software or the Software Service other than the right to use it in accordance with the terms of this Contract.
6.5 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, de-compilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation 55 of other software or systems used by the Customer. On request from the Customer, IDscan may be prepared for a reasonable commercial fee to support the integration of the operation of the Software with the operation of other software or systems used by the Customer. Additionally, IDScan may be prepared for a reasonable commercial fee to provide the Customer with information necessary to achieve such integration within a reasonable period.
6.6 The copyright in all material provided on the IDscan website is the property of IDscan. None of the material may be copied, reproduced, distributed, republished, down-loaded, 5 displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of IDscan. Customer also may not, without IDscan’s permission, “mirror” any material contained on the IDscan website on any other server. Any unauthorised use of any material contained on the IDscan website may violate copyright laws, trademark laws, the 10 laws of privacy and publicity, and communications regulations and statutes.
6.7 The trade marks and logos used and displayed on the IDscan website including without limitation: IDscan; IDscan Biometrics; IDscan Bespoke; Age Safe; Blue2; clubscan; Cloakscan; “worlds first biometric coat check system”; Intouch; Entrytill; Smokescreen; Search Wand; SearchArch; KnifeArch; MembershipPod; Lobby Scan; “Protects your License Installs In minutes”; “Protecting you, And Your environment”; and “The Home of mobile Marketing” are registered and un-registered trademarks of IDscan and may not be used in any advertising or other publicity materials in relation to the distribution of any information or materials obtained from the IDscan website without the prior written consent of IDscan.
7. Data Protection
7.1 Customer acknowledges that Customer will apply for and maintain a data protection license
7.2 Customers must have Data Protection Notices on display at the point of entry to participating venues.
7.3 Customers must either have the Data Protection Notices on their website or provide a link on their website to the Data Protection Notices on the SCAN NET website (http://nightclub.co.uk/downloads/DataNoticeCard.pdf)
7.4 In accordance with the Information Commissioner’s advice, Customers must supply door staff with Data Protection Notice Cards which are to be distributed to patrons on entry to participating venues. Data Protection Notice Cards are identical to the above-mentioned Data 35 Protection Notices but are smaller in size, to enable the said Data Protection Notice Cards to be conveniently carried on the person.
7.5 Each member of the Customer’s door staff and management must read the Data Protection Notices and the Information Commissioner’s Good Practice Note. 40
7.6 Customers will ensure that all their employees, receive appropriate information security training.
7.7 Customers who are SCAN NET Members must comply with the terms of the Information 45 Sharing Agreement for members of the Safer Clubbing at Night Network, wherein the present Contract includes by reference the terms of the Information Sharing Agreement.
7.8 For emphasis:
- (1) SCAN NET Members must ensure that each member of staff using the Equipment 50 and Software has their own unique login profile. This ensures that each venue is able to maintain an audit log of users, indicating who logged onto the Software and when.
- (2) SCAN NET Members must ensure that use of the Alert Sharing Software is hierarchically restricted. More specifically, SCAN NET Members ensure that 55 specified types of users are permitted access to correct levels of information. In particular, Door Staff must be provided with limited access to the Alert Sharing Software, so that they are permitted only to receive, process and create SCAN NET Alerts.
- (3) SCAN NET Members will designate at least one individual at management level as a “Super Administrator” who shall be permitted access to all levels of the Alert Sharing Software. A Super Administrator will typically be General Manager or Director of the 5 SCAN NET Member. The Super Administrator will be the only member of staff in the SCAN NET Member capable of deleting an SCAN NET Alert, amending a SCAN Net Alert distribution and amending a watch list etc.
- (4) Before sharing a SCAN NET Alert, a SCAN NET Member will check that the 10 information contained in the SCAN NET Alert is accurate and up to date. Particular care must be taken if the SCAN NET Alert contains sensitive data which could be harmful to the subject thereof in the event the SCAN NET Alert was inaccurate.
- (5) If a complaint is received about the accuracy of personal data which forms the basis of a shared SCAN NET Alert
- (a) the relevant SCAN NET Alert(s) will be removed by the SCAN NET Alert Originator;
- (b) the SCAN NET Alert Originator will investigate the complaint in accordance with their internal policies, but in each case reasonable steps will be taken to 20 ensure the accuracy of the allegation at the heart of the SCAN NET Alert;
- (c) the SCAN NET Alert Originator will update the relevant SCAN NET Alert (up to and including deleting the relevant SCAN NET Alert), in the event the SCAN NET Alert is not deleted, the SCAN NET Alert Originator will annotate the SCAN NET Alert to record that the subject of the SCAN NET Alert 25 considers the allegation to be inaccurate;
- (d) the SCAN NET Alert Originator will communicate the updated SCAN NET Alert to the rest of the SCAN NET Members; and
- (e) the SCAN NET Members will replace the previous version of the SCAN NET Alert with the revised version thereof.
- (6) SCAN NET Members undertake that personal data shared with other SCAN NET Members will only be used for the specific purpose for which it was shared. The purpose of sharing a SCAN NET Alert is to provide information about an alleged incident sufficient to enable informed decision-making by the recipients of the SCAN 35 NET Alert regarding the admittance of a person to a venue; thereby helping SCAN NET Members to comply with their statutory obligations under the Licensing Act 2003. Personal data must not be shared between SCAN NET Members for any other purpose.
- (7) In each case, the SCAN NET Alert Originator remains the primary information owner and record keeper of the SCAN NET Alert. A recipient of the SCAN NET Alert may edit the SCAN NET Alert. However, the said SCAN NET Member must clearly annotate the SCAN NET Alert to record that the SCAN NET Member made the amendment thereto. It should be understood that the amending SCAN NET Member will also 45 technically be a “Data Controller” in respect to the amended SCAN NET Alert.
- (8) A SCAN NET Alert should only be kept active for as long as deemed necessary. SCAN NET Members should establish their own internal guidelines for establishing the lifetime of a given SCAN NET Alert. In many cases, a short period (e.g. a 50 fortnight) is sufficient to deter the subject of a SCAN NET Alert from attempting to move onto other SCAN NET Members and potentially engaging in undesirable behaviour therein. Similarly, a SCAN NET Alert Originator must check on a three-monthly basis whether the SCAN NET Alert is still necessary. The SCAN NET Alert Originator must record the check against the relevant SCAN NET Alert. 55
- (9) In any event, a SCAN NET Alert shall not remain active for more than twelve  months. The Alert Sharing Software is adapted to automatically delete a SCAN NET Alert of more than twelve  months old (or that have not been updated for more than twelve  months).
- (10) A SCAN NET Alert Originator must check that SCAN NET Alerts created thereby are accurate and up to date on a three monthly basis. In the event the lifetime of a given SCAN NET Alert is less than three months, the check on the accuracy of the SCAN 5 NET Alert will not be required.
- (11) A SCAN NET Alert Originator may be required to provide details of a SCAN NET Alert created thereby (and any subsequent amendments made to the SCAN NET Alert). A recipient of a SCAN NET Alert may also be required to provide details of a 10 received SCAN NET Alert and any further personal information they have appended to the SCAN NET Alert (e.g. photograph of a patron entering a venue).
- (12) Information shared between SCAN NET Members must not be disclosed to any third party without the written consent of the SCAN NET Member that provided the 15 information. However, where a SCAN NET Member in receipt of a SCAN NET Alert discloses the data contained therein (either on its own or in combination with other data) to the Police or a Local Authority to assist with the prevention of a crime, the consent of the SCAN NET Alert Originator is not required.
8.1 Whilst IDscan shall endeavor to ensure that the Software and the Software Service is free from Contamination, IDscan does not warrant that the Software or Software Service will be free from such Contamination.
9. Defects, Claims, and Liability
9.1 Whether the Customer is hiring or purchasing the Equipment, the Customer shall notify IDscan of any defects in the Equipment within twenty four  hours of receipt thereof. 30 Failing such notification, it shall be conclusively presumed as between IDscan and the Customer that the Equipment was received by the Customer in good condition and in every way satisfactory for the Customer’s purposes.
9.2 IDscan shall not be liable for any damage or defect to the Equipment caused by
- (a) improper use of the Equipment or use outside its normal application; or
- (b) failure of the Customer to follow IDscan’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice.
9.3 IDscan shall in no circumstances be responsible for any:
- (a) loss of profits;
- (b) loss of business;
- (c) depletion of goodwill and/or similar losses;
- (d) loss of anticipated savings; 45
- (e) loss of goods;
- (f) loss of contract;
- (g) loss or corruption of data or information;
- (h) loss of any premises, alcohol or other license; or
- (i) special, indirect, consequential or pure economic loss, costs, damages, charges or 50 expenses.
suffered by the Customer or any other party in any way connected with the Contract or the use, nature or condition of the Equipment, the Software and/or the Software Service.
9.4 Without prejudice to Clause 9.5, IDscan’s maximum aggregate liability for breach of the 55 Contract (including any liability for the acts or omissions of its employees, agents and subcontractors) whether arising in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract or any use made by the Customer of the Equipment, the Software and/or the Software Service; shall be limited to the price paid by the Customer for the Equipment, Software and/or Software Service.
9.5 Nothing in these Conditions limits or excludes the liability of IDscan for
- (a) death or personal injury resulting from negligence; or
- (b) any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by IDscan.
9.6 The Customer shall indemnify and hold harmless IDscan and its affiliates, employees, agents, contractors, directors, officers and third party providers from all losses, claims, liabilities, demands, costs, damages and expenses (including legal expenses) arising out of or in connection with arising out of this Agreement and the possession or use of the Equipment, the Software and/or the Software other than those arising from IDscan’s own 15 gross negligence or willful misconduct.
10.1 Without affecting any other right or remedy available to it, IDscan may terminate the Contract 20 with immediate effect by giving written notice to the Customer in the event :
- (a) the Customer commits a material breach of any other term of the Contract and either such breach cannot be remedied or (if such breach can be remedied) fails to remedy that breach within a period of five  days after being notified to do so;
- (b) the Customer suspends or threatens to suspend, payment of its debts or is unable to 25 pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- (c) the Customer 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; 30
- (d) a petition is filed, a notice is given, a resolution is passed or an order is made for or in connection with the winding up of the Customer (being a company);
- (e) an application is made to court, or an order is made, for the appointment of an administrator, or is a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company); or 35
- (f) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11. Consequences of Termination
11.1 Upon termination of the Contract, howsoever caused:
- (1) All sums payable to IDscan under the Contract shall become due immediately. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract;
- (2) IDscan shall immediately cease the supply of the Equipment and the Software 45 Service to the Customer; and
- (3) the license to the Software provided pursuant to Clause 4.1.1 shall immediately cease.
11.2 Termination or expiry of the Contract shall not affect any rights, remedies or obligations of 50 IDscan that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12. Force Majeure
12.1 IDscan shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of IDscan or any other party), failure of a utility or telecommunication service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, 5 rule, regulation or direction, accident, strike, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
13.1 Customer will not claim any capital allowances in respect of the Equipment. The Payments have been calculated on the assumption that there will be no change in the nature, method or basis of taxation of companies and groups of companies in the United Kingdom including the rate of Corporation Tax, the availability of capital allowances and the treatment of losses and expenses. If any such change does occur at any time during the term of the Contract, 15 IDscan is entitled to adjust the Payment to ensure that IDscan’s after-tax return is not reduced. IDscan can only make such an adjustment after giving the Customer seven  days written notice.
13.2 The Customer shall not, without the prior written consent of IDscan, assign, transfer or 20 charge nor sub-contract the performance of any obligation under the Contract, or deal in any other manner with all or any of its rights or obligations under the Contract.
13.3 IDscan may at any time and at its absolute discretion, assign, transfer, charge, sub-contract the performance of its obligations under the Contract or deal in any other manner with all or 25 any of its rights or obligations under the Contract.
13.4 Nothing in this Agreement shall confer any benefit on any third party and no person other than Customer or IDscan and our successors or assigns shall have any right to enforce any Clause of the Agreement. 30
13.5 IDscan may vary these Conditions at any time by posting the changes or any new version of the same on the IDscan website and, where reasonably practicable, giving the Customer prior notice thereof. The Customer hereby agrees that, if the Customer decides to use the Equipment, the Software and/or the Software Service following the posting on the IDscan 35 Website of any variation(s) to these Conditions, the Customer will be bound by the Contract as varied.
13.6 If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the 40 remainder of the provisions hereof shall remain in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
13.7 This Agreement shall be governed by and construed in accordance with the laws of England and the Parties hereby submit to the exclusive jurisdiction of the English courts