Scannet Hardware, Software and Services Agreement
GENERAL TERMS AND CONDITIONS
These General Terms shall apply to all use of the Scannet Hardware, Software and Services. Additional Terms may also apply depending on whether Hardware is purchased or rented from IDscan. The Additional Terms are attached to this Agreement as appendices and shall form part of the Agreement where selected on the relevant Order Form.
1 DEFINITIONS AND INTERPRETATION
1.1 In these General Terms the following definitions shall apply: “Additional Terms” means the special terms and conditions relating to the provision of the Hardware as set out in the appendices to this Agreement which will apply where specified in the Order Form. “Agreement” means these General Terms, the Additional Terms, the Schedules and the relevant Order Form, which in the case of conflict rank in the order of precedence set out above.
“Alert Sharer” means a Scannet client who has selected to access the Scannet Shared Alert System. The Client shall be classed as an Alert Sharer where this option is selected on the Order Form.
“Business Day” means Monday to Friday (excluding public and bank holidays in England).
“Charges” means all charges for the Hardware, Software and Services (including the Licence Fees or Rental Fees as applicable) as set out in the Order Form during the Initial Period and thereafter shall mean IDscan’s standard pricing.
“Client” means the organisation, firm, company or public authority named on the Order Form that receives the Hardware, Software and/or Services provided by IDscan.
“Client Information” means data and any other materials provided or otherwise made available to IDscan by or on behalf of the Client. This may include Personal Data on individuals such as the Client’s employees and customers.
“Confidential Information” means any information relating to the business of the disclosing Party which is not publicly available including, but not limited to, (i) Client Information, information regarding the business, affairs, customers, clients, suppliers, operations, processes, product information, know-how, technical information, designs, trade secrets or software of the disclosing Party; (ii) any information, findings, data or analysis derived from Confidential Information; (iii) the existence and terms of this Agreement; and (iv) any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business of the disclosing Party.
“Contract Start Date” means the date specified as the contract start date on the Order Form.
“Data Protection Notice” means the fair processing notice provided to a Data Subject by the Client prior to processing their Personal Data using the Hardware, Software and/or Services. Where the Client is using the Hardware, Software and/or Service to capture, store and/or verify a Data Subject’s identity document on entry to a premises or venue, the Data Protection Notice should comply with the Good Practice Guidance.
“Data Subject” means a living individual about whom a Data Controller holds Personal Data. For the purposes of this Agreement, this may include an individual whose details are processed using the Software or Hardware or shared via the Scannet Shared Alert System.
“Event of Force Majeure” means any one or more acts, events, omissions or accidents beyond the reasonable control of a Party, including but not limited to: strikes, lock-outs or other industrial disputes (other than a Party’s own); failure of a utility service, or transport network or information technology or telecommunications service; act of God (including without limitation fire, flood, earthquake, storm or other natural disaster); war, threat of war, riot, civil commotion or terrorist attack; malicious damage (including without limitation the acts of hackers); epidemic; compliance with any law or governmental order, rule, regulation or direction; and/or default, non-performance or late performance of suppliers or sub-contractors.
“Good Practice Guidance” means the wording that should be incorporated into the Client’s Data Protection Notice, where the Hardware, Software and/or Service is used to capture, store and/or verify a Data Subject’s identity document on entry to a premises or venue and set out in the Additional Terms.
“Group Company” means in relation to a Party, that Party, any subsidiary or holding company from time to time of the Party and any subsidiary from time to time of a holding company of that Party, as defined by s1159 of the Companies Act 2006, as amended from time to time.
“Hardware” means the equipment purchased or rented from IDscan by the Client as detailed on the Order Form.
“Helpdesk” means the helpdesk facility provided by IDscan to handle enquiries regarding the Software, Hardware and Services as more particularly described in Schedule 1.
“Initial Period” means the period specified on the Order Form starting on the Contract Start Date.
“IDscan” means IDscan Biometrics Limited, a company registered in England and Wales under company number 04779960, with registered address The Foundation, Herons Way, Chester Business Park, Chester, Cheshire, CH4 9GB, including its authorised sub- contractors and agents.
“Scannet Shared Alert System” means the system operated by IDscan which allows Alert Sharers to share Personal Data and information gathered using the Scannet Hardware, Software and Services.
“Information Sharing Agreement” or “ISA” means the contractual document which sets out the terms on which an Alert Sharer may access the Scannet Shared Alert System and use of the data contained within the Scannet Data Repository made available to the Client and incorporated into this Agreement by reference. “Intellectual Property Rights” means (i) patents, rights to inventions, rights in designs, trademarks and trade names, copyright and related rights, rights in goodwill, database rights and know-how, whether registered or not; (ii) all other intellectual property rights or forms of protection and similar or equivalent rights anywhere in the world (whether registered or not) which currently exist or are recognised in the future; and (iii) all applications, extensions and renewals to any such rights.
“Licence Fees” means the monthly Charge paid in advance as set out in the Order Form for the licence of the Software by the Client from IDscan where the Hardware has been purchased.
“Order Form” means the order form annexed to or relating to this Agreement as accepted by the Parties.
“Party” means a party to this Agreement and “Parties” shall be construed accordingly.
“Permitted User” means anyone who has been given access to the Hardware, Software, Services and/or Scannet Shared Alert System by the Client in accordance with the terms of this Agreement,
“Personal Data” means data which relates to a living individual who can be identified (i) from that data, or (ii) from that data and other information which is in the possession of, or is likely to come into the possession of, the Data Controller and includes any expression of opinion about the individual and any indication of the intentions of the Data Controller or any other person in respect of the individual.
“Prepayments” means any prepayments of the Charges to be made by the Client as indicated on the Order Form.
“Privacy and Data Protection Requirements” the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority (such as the Information Commissioner’s Good Practice Note: Use of ID scanning devices in pubs and clubs), and the equivalent of any of the foregoing in any relevant jurisdiction.
“Professional Services” means the professional services as indicated on the Order Form and provided in accordance with the terms of Schedule 2.
“Renewal Period” means each period of 12 months commencing on the expiry of the Initial Period and each anniversary thereafter. “Rental Fees” means the monthly Charge paid in advance as set out in the Order Form for the rental of the Hardware and Licence of the Software where the Hardware is rented by the Client from IDscan in accordance with Appendix 1 of the Additional Terms.
“Scannet Data Repository” means the central repository of data and information created using the Hardware, Software and Services which is shared with other Alert Sharers and is hosted by IDscan.
“Services” means identity document checking services provided by IDscan as a result of the use of the Hardware and Software and/or the Standard Support Services and/or the Professional Services as detailed in the Order Form together with any other ancillary services provided by IDscan to the Client pursuant to this Agreement. “Software” means computer software application(s) developed and owned by IDscan or licensed by IDscan from third party sources, that operates with the Hardware to perform identity document checking services.
“Standard Support Services” means the standard support services as indicated on the Order Form and provided in accordance with the terms of Schedule 1.
“System Administrator” means the individual(s) named as such on the Order Form or their replacement(s) as notified to IDscan by the Client who will be familiar with the use of the Hardware, Software and Services and be the first point of contact for all Permitted Users. “User Profile” means the specific configuration of the Hardware, Software or Service created for the Client as detailed on the Order Form.
1.2 The headings in this Agreement do not affect its interpretation.
1.3 References to clauses, sections and appendices are to clauses, sections and appendices of this Agreement.
1.4 Words in the singular include the plural and vice versa.
1.5 A reference to “writing” or “written” does not include electronic mail or facsimiles
2 TERM OF THE AGREEMENT
2.1 This Agreement will start on the Contract Start Date and will continue for the Initial Period and shall automatically renew for further Renewal Periods unless terminated earlier in accordance with clause 7.3 or clause 11 of these General Terms.
3 DELIVERY OF THE HARDWARE, SOFTWARE AND SERVICES
3.1 IDscan will provide the Client with the Hardware, Software and Services detailed in the Order Form in accordance with the terms set out in this Agreement.
3.2 IDscan will use reasonable endeavours to deliver the Hardware and Software and to provide the Services in accordance with any timetable agreed with the Client. However, the Client acknowledges and accepts that any dates given by IDscan are estimates only and that delivery of the Hardware and Software and provision of the Services will be dependent upon the Client’s timely cooperation with IDscan as well as other factors outside of IDscan’s reasonable control.
3.3 Risk associated with the Hardware shall pass to the Client on delivery or with the passing of title in the Hardware, whichever occurs first; provided that, where delivery is delayed on account of circumstances caused by or within the responsibility of the Client, risk of loss shall pass to the Client upon IDscan’s notification that the Hardware is ready for dispatch.
3.4 The Client is solely responsible for checking the condition of the Hardware on delivery. The Client shall notify IDscan within twenty- four (24) hours of receipt of any defects in the Hardware that it detects. Failing such notification, it shall be conclusively presumed as between IDscan and the Client that the Hardware was received by the Client in good condition.
3.5 Unless otherwise specified in writing in the Order Form, all charges, expenses or taxes associated with the delivery of the Hardware shall be agreed in advance and paid for by the Client.
3.6 Deliveries and installations carried out by IDscan on Client premises as part of the Professional Services is limited to out-of-the-box set- up of the IDscan Hardware and Software. IDscan employees are not insured or contracted to perform other electrical or technical work.
3.7 The Client acknowledges and accepts that occasionally IDscan, in providing the Software and Services, may be required to:
(a) change the technical specification of the Software and Services for operational reasons, however, IDscan will ensure that any change to the technical specification does not materially reduce or detrimentally impact the performance of the Service;
(b) give the Client instructions which it reasonably believes are necessary for reasons of health, safety or the quality of any Service provided by IDscan and the Client shall comply with such instructions; and
(c) suspend the use of the Software or Service for operational reasons such as repair, maintenance or improvement or because of an emergency, in which case IDscan will give the Client as much on-line, written or oral notice as possible and shall ensure that the Service is restored as soon as possible following suspension.
3.8 The Client shall be responsible for:
(a) ensuring all premises and facilities are electrically and technically prepared for the installation of the Hardware and Software;
(b) ensuring that it has a minimum of one System Administrator who is familiar with the use of the Hardware and Software and can act as the first point of contact for all Permitted Users;
(c) informing IDscan of any changes to the Client’s System Administrator’s contact details without undue delay;
(d) providing the telecommunications and network services and correctly configured equipment needed to connect to the Hardware and Software; and
(e) the configuration and management of access to the Hardware and Software including configuration of the Client’s network, firewall, DNS, routers, personal computers and User Profile.
3.9 The Client must inform IDscan, without undue delay, of any changes to the information which the Client supplied within the Order Form.
4 USE OF THE HARDWARE, SOFTWARE AND SERVICES
4.1 The Client shall comply with these General Terms and all relevant Additional Terms and Schedules to this Agreement.
4.2 The Client must ensure that any software, equipment and materials which are used with the Hardware, Software or Services:
(a) are connected and used in accordance with any instructions and security procedures specified by IDscan or other relevant third party licensor;
(b) are technically compatible with the Hardware, Software and Services.
4.3 The Client shall ensure that the Hardware is operated within normal operating temperatures of 6o C to 34o C and that the Hardware and Software is connected to the internet and has access to IDscan’s licence manager website (https://lic.idscanbiometrics.com) for a minimum period of thirty (30) minutes at least once during the Initial Period to permit renewal of the Software.
4.4 Subject to clause 4.5, the Client may only use the Hardware, Software and Service for the purpose of capturing, processing, verifying and storing identity documentation and identity data belonging to the Client’s customers or employees who have consented to such use in accordance with Privacy and Data Protection Requirements.
4.5 Where the Client has selected to access the Scannet Shared Alert System as an Alert Sharer and where the Client has agreed to comply with the terms of the Information Sharing Agreement, the Client may also use the Hardware, Software and Service for the purpose of accessing and contributing to the Scannet Data Repository.
4.6 The Client warrants that it will use and operate the Hardware, Software and Service in a proper and prudent manner and that it shall only access the Hardware, Software and Services as permitted by IDscan and shall not attempt at any time to circumvent system security or access the source software or compiled code.
4.7 The Client acknowledges and accepts, that IDscan shall have no responsibility for any damage to the Hardware or Software caused by improper use of the Hardware or Software or failure of the Client to follow any oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware and Software provided by IDscan and/or good trade practice.
4.8 The Hardware, Software and Services are provided solely for the Client’s own internal use. The Client must not resell or attempt to resell the Hardware, Software or Service (or any part or facility of it) to any third party.
4.9 The Hardware, Software and Service is protected by Intellectual Property Rights. The Client must not copy, store, adapt, modify, transmit or distribute the Hardware, Software or Service or permit anyone else to do the same.
4.10 The Client shall be responsible for the creation, maintenance and design of all Client Information.
4.11 The Client warrants that it shall comply with all applicable legislation, instructions and guidelines issued by regulatory authorities, relevant licences and any other codes of practice which apply to the Client and its use of the Hardware, Software and Service including those which relate to the provision of Client Information.
4.12 The Client is responsible for the acts and omissions of all Permitted Users of the Service and is liable for any failure by a Permitted User to perform or observe the terms and conditions of this Agreement including without limitation to the provisions set out in the Additional Terms and any instructions issued under clauses 3.3(b) and 4.2.
4.13 If the Client uses the Service in contravention of this clause 4 then IDscan shall be entitled to treat the contravention as a material breach of this Agreement which cannot be remedied for the purposes of paragraph 11.3(b).
5.1 The Client is responsible for the security and proper use of all user identities (“User IDs”) and passwords used in connection with the Hardware, Software and Services (including changing passwords on a regular basis).
5.2 The Client shall take all necessary steps to ensure that User IDs are kept confidential, secure, are used properly and are not disclosed to any unauthorised parties.
5.3 The Client must immediately inform IDscan if there is any reason to believe that a User ID or password has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
5.4 IDscan reserves the right to suspend User ID and password access to the Software or Service if at any time IDscan reasonably considers that there is or is likely to be a breach of security or misuse of the Software or Service and/or to require the Client to change any or all of the passwords used by the Client in connection with the Software or Service.
6 CHARGES AND PAYMENT
6.1 The Client shall pay all Charges due under this Agreement within 20 days of the date of the invoice. The due date for all invoices issued by IDscan shall be 20 days from the date of the invoice.
6.2 If specified in the Order Form that the Client is to pay the Charges in advance or by direct debit then such payments shall be made on or before the date specified in the Order Form.
6.3 Charges will be invoiced and paid in pounds sterling unless otherwise agreed in the Order Form. Where applicable, Value Added Tax (or any other applicable tax or charge in a country where the Service is provided) will be added to the Charges.
6.4 If the Client fails to pay any part of the Charges when due, it shall be liable to pay IDscan interest on such part of the Charges from the due date for payment at an annual rate of 8% above the base lending rate of National Westminster Bank plc from time to time accruing at a daily rate until payment is made in full in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
6.5 In the event of late payment, if the Client undergoes a restructure or re-organisation, or if the Client has been affected by one of the circumstances listed in clause 11.3, on receipt of IDscan’s reasonable request, the Client shall pay a deposit or provide a guarantee as security for payment of future invoices for the Service.
6.6 The Client shall make all payments due under this Agreement without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.
6.7 If the Client has received preferential pricing or payment terms under this Agreement or if the standard pricing or payment terms that applied on the Contract Start Date have changed during the Initial Period then unless otherwise expressly agreed in writing between the Parties, IDscan’s standard pricing and payment terms will prevail in respect of the Client’s continued use of the Service after the Initial Period.
6.8 After the expiry of the Initial Period IDscan shall be entitled to increase the Charges by giving the Client not less than 30 days’ notice of the change. For the avoidance of doubt, IDscan will not revise the Charges before the end of the Initial Period.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 The Client acknowledges that all Intellectual Property Rights in the Hardware, Software and Services belong and shall continue to belong to IDscan and/or IDscan’s third party licensors. IDscan grants a non-transferable licence to the Client to use the Hardware, Software and Service in accordance with the terms of this Agreement during the Initial Period and any Renewal Period.
7.2 IDscan acknowledges all Intellectual Property Rights in the Client Information belong and shall continue to belong to the Client. The Client grants to IDscan a non-transferable, non-exclusive, royalty free licence to use, process, disclose and copy the Client Information to enable IDscan to provide the Services and carry out its obligations under this Agreement.
7.3 If any third party makes or threatens to make a claim against IDscan, the Client or one of IDscan’s third party suppliers that the use of the Hardware, Software or Services or part thereof infringes any third party’s Intellectual Property Rights, IDscan shall be entitled to do one or more of the following:-
(a) Suspend or withhold any part of the Hardware, Software or Services that is subject to the infringement claim made by the third party;
(b) modify the Hardware, Software or Services so as to avoid any alleged infringement, provided that the modification does not materially affect the performance of the Hardware, Software or Services;
(c) terminate the Agreement upon written notice to the Client and provide a refund to the Client of any Prepayment made by the Client which at the date of termination has not been and will not be credited against Charges due to IDscan.
7.4 IDscan will indemnify the Client against all liabilities, costs, expenses, damages and losses incurred by the Client as a direct result of any third party making or threatening to make a claim against the Client that the Client’s use of the Hardware, Software and/or Services in accordance with the terms of this Agreement infringes that third party’s Intellectual Property Rights (a “Claim”), provided that the Client:
(a) notifies IDscan promptly in writing of any Claim;
(b) makes no admission or compromise relating to the Claim or otherwise prejudice IDscan’s defence of such Claim;
(c) allows IDscan to conduct all negotiations and proceedings in relation to the Claim; and
(d) gives IDscan all reasonable assistance in doing so (IDscan will pay the Client’s reasonable expenses for such assistance).
7.5 The indemnity in clause 7.4 does not apply to any Claim arising as a result of the misuse of Hardware, Services or to Claims caused by designs or specifications made by the Client, or on the Client’s behalf.
7.6 The Client warrants that:
(a) it will not use or exploit the Intellectual Property Rights in the Hardware, Software or Service or permit others to use or exploit the Intellectual Property Rights in the Hardware, Software or Services outside of the terms of the licence granted to the Client in clause 4 of this Agreement;
(b) all computers, IT systems and/or software which IDscan is required to use, access or modify as part of the Professional Services are legally licensed to the Client or are the Client’s property and that such activities by IDscan will not infringe the rights of any third party;
(c) the use of the Hardware, Software or Service in conjunction with any software, equipment, materials and/or services (which are not supplied by IDscan) will not infringe the rights of any third party; and
(d) IDscan’s compliance with any designs or specifications provided by the Client, or on the Client’s behalf will not infringe the rights of any third party.
8 CONFIDENTIALITY AND PUBLICITY
8.1 Each Party undertakes that it shall not at any time disclose the other Party’s Confidential Information to any third party except as permitted by clauses 8.3, 8.4 and 8.5 or to the extent necessary for the proper performance of this Agreement.
8.2 Each Party warrants to the other that it shall apply the same security measures and degree of care to Confidential Information disclosed to it as it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own Confidential Information.
8.3 Neither Party shall use the other Party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
8.4 Each Party may disclose the other Party’s Confidential Information:
(a) to its or its Group Companies’ employees, officers, representatives, advisers and third party suppliers who need to know such information to perform its obligations under this Agreement. Each Party shall ensure that its and its Group Companies’ employees, officers, representatives, advisers and third party suppliers to whom it discloses the other Party’s confidential information comply with this clause 8; and
(b) as may be required by law, court order or any governmental or regulatory authority;
8.5 For the purposes of clause 8, Confidential Information shall not include information which:
(a) is or becomes generally available to the public (other than through a breach of this Agreement);
(b) is lawfully in the possession of the other Party before the disclosure under this Agreement took place;
(c) is obtained from a third party who is free to disclose it; or
(d) the Parties agree in writing is not confidential or may be disclosed.
8.6 Notwithstanding the terms of this clause 8, once the Order Form has been signed by both Parties, IDscan may issue a press release (or if IDscan wishes, another form of public communication) relating to the Parties’ entry into this Agreement.
9 DATA PROTECTION
9.1 Both Parties warrant that they will comply with their respective obligations under the Privacy and Data Protection Requirements.
9.2 The Parties acknowledge that for the purposes of this Agreement, the Client will be the Data Controller and IDscan will in most scenarios be the Data Processor, as defined under the Data Protection Act 1998.
9.3 Where it is required to do so, IDscan may also act as a Data Co- Controller to ensure that the Software, Hardware and Services comply with all relevant Privacy and Data Protection Requirements and/or in the event that the Client ceases to be a Data Controller. IDscan is also a Co-Data Controller of all Personal Data stored in the Scannet Data Repository.
9.4 Where IDscan processes Personal Data on the Client’s behalf, IDscan acting as Data Processer will:
(a) act on and comply with the Client’s instructions with regard to the processing of its Personal Data; and
(b) take reasonable steps to ensure the reliability of all IDscan’s employees who have access to the Client’s Personal Data; and
(c) take appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data; and
(d) where an individual exercises his or her right under any laws in respect of Personal Data processed by IDscan on the Client’s behalf or where the Client is required to deal or comply with any assessment, enquiry, notice or investigation by any regulatory or legal body, IDscan will co-operate with the Client’s reasonable requests to enable it to comply with its legal obligations which arise as a result of the exercise of such rights or as a result of such assessment, enquiry, notice or investigation.
9.5 The Client shall ensure that all Permitted Users receive appropriate data protection and information security training before using or accessing the Hardware, Software and/or Services and that all Permitted Users are familiar with the terms of its Data Protection Notice.
9.6 The Client acknowledges and agrees that it is responsible for:
(a) ensuring each Data Subject is provided with, or has made readily available to it a copy of the Client’s Data Protection Notice containing: the identity of the Client; the purpose, or purposes, for which any data or information gathered using the Hardware, Software and/or Services will be processed; and further information necessary, in the specific circumstances, to enable the processing in respect of each Data Subject to be fair.
(b) obtaining the informed consent (permission) of any Data Subjects whose Personal Data is captured, stored or verified by the Client using the Hardware, Software and/or Services; and
(c) where the Hardware, Software and/or Service is used capture, store and/or verify a Data Subject’s identity document on entry to a premises or venue; (i) displaying an appropriate Data Protection Notice (incorporating the Good Practice Guidance) at the points of entry to participating venues; (ii) posting a copy of such Data Protection Notice on the Client’s website in a publically accessible place; and (ii) providing a Data Protection Notice card to Data Subjects on entry to participating venues.
9.7 The Client shall ensure that the consent provided by a Data Subject in accordance with clause 9.5 complies with Privacy and Data Protection Requirements and is sufficient to allow the Client and IDscan to access, use, store, transfer and process the Data Subject’s Personal Data in accordance with the terms of this Agreement.
9.8 Where the Client is also an Alert Sharer, the Client must also ensure that the Data subject is informed that their Personal Data may be disclosed to other Alert Sharers and that the consent provided by a Data Subject in accordance with clause 9.5 allows for such data to be shared in accordance with the terms of the Information Sharing Agreement.
9.9 Although IDscan may from time to time provide the Client with best practice guidance regarding the use of the Hardware, Software and/or Services in compliance with Privacy and Data Protection Requirements, the Client acknowledges and accepts that is solely responsible for establishing its own data protection policies, Data Protection Notice and any internal guidelines for the use and retention of Personal Data including all data gathered using the Hardware, Software and/or Services.
9.10 As the Client’s Data Processor (or otherwise) IDscan relies on its Clients for direction as to the extent to which it is entitled to process any Personal Data provided to it by the Client. Consequently IDscan will not be liable for any claim brought by an individual Data Subject whosePersonalDataisprovidedtoIDscanbytheClientor is captured, processed or verified using the Hardware, Software and/or Services, where such claim arises from the processing of Personal Data undertaken by IDscan in accordance with instructions given to it by the Client or in the provision of the Hardware, Software and Service in accordance with the terms of this Agreement.
10.1 Neither Party excludes or limits its liability for death or personal injury resulting from its negligence, fraudulent misrepresentation or any other type of liability that cannot by law be excluded or limited.
10.2 Neither Party excludes or limits its liability in respect of clauses 7 (Intellectual Property Rights), 8 (Confidentiality) and 9 (Data Protection) of this Agreement.
10.3 Subject to clauses 10 and 10.2, each Party’s aggregate liability to the other Party under or in connection with this Agreement, whether such liability arises in contract, tort (including, without limitation, negligence) misrepresentation or otherwise, shall be limited to either the Charges payable in the 12 month period preceding the breach or £5,000, whichever is the greater.
10.4 Subject to clauses 10.1 and 10.2, neither Party shall be liable for loss of profits, business or anticipated savings, loss or destruction of data, loss of use of data, loss of reputation, loss of goodwill, any special, indirect or consequential loss or damage.
10.5 Whilst IDscan shall use reasonable endeavors to ensure that the Hardware and Software is free from infection, viruses and/or any other software code that has contaminating or destructive properties, IDscan does not provide any warranties regarding:
(a) the accuracy, suitability for purpose/requirements and/or uninterrupted availability of the Hardware, Software and Services;
(b) that the use of the Hardware, Software and/or Services will meet the Client’s business requirements accordingly the Client accepts that the Service was not designed or produced to its individual requirements and that it was responsible for its selection.
10.6 The Client agrees that except as expressly set out in this Agreement, all warranties, conditions and other terms relating to the Hardware, Software and Services and this Agreement whether express or implied by law, custom or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.
10.7 The Parties acknowledge that damages alone may not be an adequate remedy for a breach by the other Party of clauses 4 (Use of the Service), 7 (Intellectual Property Rights), 8 (Confidentiality) and 9 (Data Protection) of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, the injured Party shall be entitled to seek specific performance and/or injunctive or other equitable relief.
11 SUSPENSION AND TERMINATION
11.1 IDscan may suspend all or part of the provision of the Software and/or Services immediately and without notice in the event that the Client materially breaches or IDscan acting reasonably suspects that the Client has committed a material breach of any term of this Agreement.
11.2 Either Party may terminate this Agreement by giving at least 90 days’ prior written notice to the other of such termination to take effect on the expiry of the Initial Period or on the expiry of a Renewal Period.
11.3 Either Party may terminate this Agreement (or, if IDscan wish, part of it) on immediate notice in writing to the other if any of the following applies:
(a) the other Party commits a material or persistent breach of this Agreement, which is capable of remedy, and it fails toremedy the breach within 10 Business Days of a written notice to do so. A breach shall be capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to the time of performance;
(b) the other Party commits a material or persistent breach of this Agreement which cannot be remedied;
(c) any meeting of creditors of the other Party is held or any arrangement or composition with or for the benefit of its creditors (including any voluntary arrangement as defined in the Insolvency Act 1986) is proposed or entered into by or in relation to the other Party (other than for the purpose of a bona fide solvent re-construction, re-organisation or amalgamation);
(d) the other Party ceases or threatens to cease carrying on business or is or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;
(e) a nominee, supervisor, receiver, administrator, administrative receiver or liquidator is appointed in respect of the other Party or any encumbrancer takes possession of, or any distress, lien, execution or other process is levied or enforced (and is not discharged within seven days) upon, the assets of the other Party;
(f) an order is made for the bankruptcy or winding-up of the other Party or a resolution for its winding up is passed;
(g) a notice of intention to appoint an administrator is filed with the court or served on any creditor of the other Party;
(h) an application for an administration order is issued at court in respect of the other Party;
(i) a meeting is convened for the purpose of considering a resolution for the winding up of the other Party or the making of an application for an administration order or the dissolution of the other Party; or
(j) any event analogous to any of clauses 11.3(c)to (i) above occurs in any jurisdiction.
11.4 When this Agreement terminates the Client will:
(a) cease using the Hardware, Software and Services or, in the case where access to a specific part of the Service has been terminated, cease to use the specified part of the Service; and
(b) promptly pay any outstanding and unpaid invoices due for the provision or use of Hardware, Software and/or Services whether the invoice was submitted before or after the termination of this Agreement.
11.5 When this Agreement terminates the Parties will return or destroy (at the option and request of the disclosing Party) any Confidential Information belonging to the other Party in its possession or control.
11.6 The termination of this Agreement does not affect the accrued rights, remedies and obligations or liabilities of the Parties existing at termination. Nor shall it affect the continuation in force of any provision of this Agreement that is expressly or by implication intended to continue in force after termination.
11.7 If IDscan terminates this Agreement during the Initial Period following a breach of this Agreement by the Client the Client agrees to pay IDscan the Charges due, if any, for the remaining part of the Initial Period in accordance with clause 11.4.
12 AUDIT RIGHTS
12.1 IDscan is required to include a right of audit in all of its Client Agreements to ensure compliance with Data Protection and Privacy Requirements. The following provisions of this clause 12 are to give effect to that requirement.
12.2 Upon reasonable prior written notice to the Client and upon reasonable grounds, IDscan shall be entitled to conduct an on-site audit or to appoint a third party auditor to conduct an on-site audit oftheClient’spremisesusedinconnectionwiththe Hardware, Software and Services for the purposes of investigating the Client’s compliance with its obligations under this Agreement.
12.3 Audits shall not be carried out on more than one occasion per year of this Agreement unless IDscan reasonably believes that the Client is in material breach of the Agreement or unless IDscan is required to do so by any regulatory body with competent jurisdiction. IDscan or its auditor may be accompanied by representatives of any such regulatory body in respect of any such audit imposed on IDscan.
12.4 All audits will be conducted in a manner that does not materially disrupt, delay or interfere with the Client’s performance of its business and shall be carried out at the expense of IDscan. Should the audit reveal a breach of the Agreement by the Client, the Client shall reimburse IDscan for the full cost of the audit.
12.5 The Client shall provide IDscan its auditor or any regulatory body as relevant with full access to its premises, employees, computers, IT systems and records as required for the purpose of any such audit.
12.6 Prior to undertaking an audit under this clause 12 IDscan shall be entitled (but not obligated) to submit to the Client questions regarding the Client’s performance of its obligations under this Agreement. The Client shall respond to these questions within 14 days of receiving such request. The submission of questions under this clause 12.6 will not prejudice IDscan’s audit rights under this clause
13 DISPUTE RESOLUTION
13.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute”) then the Parties shall follow the procedure set out in this clause 13, specifically:
(a) either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, authorised representatives of IDscan and the Client shall attempt in good faith to resolve the Dispute;
(b) if the authorised representatives of IDscan and the Client are for any reason unable to resolve the Dispute within 10 Business Days of service of the Dispute Notice, the Dispute shall be escalated to senior officers of IDscan and the Client who shall attempt in good faith to resolve the matter; and
(c) if the senior officers of IDscan and the Client are for any reason unable to resolve the Dispute within 30 Business Days of it being referred to them, the parties will attempt to settle it by way of mediation. Should the parties fail to reach a settlement within 25 Business Days from the date of engaging in such mediation, the Parties shall be entitled to refer the Dispute to the courts of England and Wales in accordance with clause 18.2 of this Agreement.
13.2 Notwithstanding clause 13 above, the Parties shall be entitled to seek injunctive or other equitable relief at any point should that Party deem it necessary to protect the legitimate business interests of that Party.
14.1 Neither Party shall directly or indirectly (whether alone or in conjunction with or on behalf of any other person, business or organisation) solicit or entice away (or attempt to solicit or entice away) any person employed or engaged by the other Party or the other Party’s Group Company in connection with this Agreement during the term of this Agreement or for a further period of 12 months after the termination of this Agreement other than by means of an advertising campaign open to all comers and not specifically targeted at any of the other Party’s or the other Party’s Group Companies’ staff.
14.2 If either Party breaches clause 14 it shall, on demand, pay to the other Party a sum equal to one year’s basic salary or the annual fee that was payable by the other Party to that employee, worker or independent contractor plus the recruitment/sourcing costs incurred by the other Party in replacing such person. The Parties agree that this sum is proportionate to both Parties’ interests in enforcing the provisions of this clause 14.
15 EVENT OF FORCE MAJEURE
15.1 Neither Party shall be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three consecutive months, the Party not affected may terminate this Agreement immediately by giving written notice to the affected Party.
16.1 Notices required to be given under this Agreement must be in writing and may be delivered by hand or by courier, or sent by first class post to the following addresses:
(a) to IDscan at its registered office address and marked for the attention of the Company Secretary,
(b) to the Client at the address to which the Client asks IDscan to send invoices or the Client’s registered office address (in the case of a corporate body).
16.2 Any notice shall be deemed to have been duly received:
(a) if delivered by hand or by courier, when left at the address referred to in this clause 16;
(b) if sent by first class post, two Business Days after the date of posting.
16.3 This clause does not apply to the service of any proceedings or other documents in any legal action.
17.1 Save where expressly provided for elsewhere in this Agreement, if either Party wishes to change this Agreement, the Parties agree that each Party will:
(a) notify the other detailing the proposed change and the reason for it;
(b) discuss the proposed change;
(c) notify each other whether the proposed change is feasible and the likely financial, contractual, technical and other effects of the proposed change;
(d) decide whether it agrees to this Agreement being amended to incorporate the change and notify the other Party.
17.2 Agreed changes to this Agreement will be recorded in writing and will form part of this Agreement when signed by authorised signatories of both Parties.
17.3 The Client may not assign or transfer (in whole or part) any of its rights or obligations under this Agreement, without IDscan’s prior written agreement (which must not be unreasonably withheld or delayed).
17.4 IDscan will inform the Client if it assigns or transfers (in whole or part) any of its rights or obligations under this Agreement.
17.5 Save where expressly stated in the Additional Terms, a person who is not party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.
17.6 This Agreement constitutes the entire agreement between the Parties and replaces and supersedes all previous written or oral agreements relating to its subject matter.
17.7 The Parties agree that:
(a) neither Party has been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into it; and
(b) in connection with this Agreement its only rights and remedies in relation to any representation, warranty or other assurance are for breach of contract and that all other rights and remedies are excluded, except in the case of fraud.
17.8 If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
17.9 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all counterparts shall together constitute the same Agreement. No counterpart shall be effective until each Party has executed at least one counterpart.
17.10 No failure or delay by a Party to exercise any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other remedy.
17.11 Unless otherwise stated herein, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any other rights or remedies provided by law.
18 GOVERNING LAW AND JURISDICTION
18.1 By entering into this Agreement, the Parties warrant that they each have the right, authority and capacity to enter into and be bound by the terms and conditions of this Agreement and that they agree to be bound by these.
18.2 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) shall be governed and construed in accordance with the laws of England and subject to clause 13 both Parties submit to the exclusive jurisdiction of the English Courts, save that IDscan may elect to bring proceedings against the Client in the courts of any jurisdiction where the Client or any of the Client’s property or assets may be found or located.
Scannet Hardware, Software and Services Agreement
These Additional Terms will apply in addition to the General Terms and any applicable Schedule where stated on the Order Form. Any definition not provided in these Additional Terms shall have the same meaning as set out elsewhere in the Agreement.
APPENDIX 1 – HARDWARE RENTAL TERMS
Where the Order Form specifies that the Hardware is rented, the following provisions shall apply in additional to the General Terms:
1.1 In these terms and conditions, unless the context clearly indicates otherwise:
“Failure to Return Payment” means the Charge of five thousand pounds (£5000) payable by the Client to IDscan in accordance with clause 5.5 of this Appendix 1 in the event of Total Loss or if the Client fails to return the Hardware to IDscan on or before the Return Date. “Location” means the premises on which the Hardware is installed as set out in the Order Form or such other location as may be agreed between the Parties during the Rental Period.
“Missed Payment Fee” means the fee of thirty nine pounds (£39) payable by the Client to IDscan in the event of a missed payment in accordance with clause 6.4 of this Appendix 1.
“Payment Date” means the fixed date in each month on which the Rental Fee for the following month is due as specified in the Order Form.
“Rental Fees” means the monthly Charge paid in advance as set out in the Order Form for the rental of the Hardware by the Client from IDscan.
“Rental Period” means the term specified in the Order Form as the period during which the Hardware is to be rented.
“Return Date” means the date specified in the Order Form as the date on which the Hardware must be returned to IDscan or twenty one (21) days after the expiry of the Rental Period whichever is the latter. “Scheduled Payment Fee” means the monthly fixed Charge of thirty nine pounds (£39) payable by the Client to IDscan if the Client has selected to pay IDscan via scheduled payment.
“Total Loss” means loss of the Hardware through accident or theft, or damage to the Hardware which is beyond economical repair
2 RENTAL PERIOD
2.1 The Rental Period will commence on the date on which the Hardware is delivered and installed at the Location and shall continue for the Rental Period specified in the Order Form, unless this Agreement is terminated earlier in accordance with the General Terms.
2.2 The Rental Period may be extended by mutual written agreement of both Parties.
3 USE OF THE RENTED HARDWARE
3.1 The Hardware shall at all times remain the property of IDscan and is provided to the Client solely on a rental basis.
3.2 The Client shall have no right, title or interest in or to the Hardware save the right to possession and use of the Hardware as set out in the General Terms and this Appendix 1.
3.3 The Client warrants that shall take all reasonable and proper care of the Hardware and that it shall at all times keep and maintain the Hardware in good and substantial repair, condition and appearance whilst it is in its possession in order to keep the Hardware in the same operating condition as it was on the commencement of the Rental Period.
3.4 The Client shall be solely responsible for any damage caused to the Hardware whilst in its possession apart from fair wear and tear.
3.5 The Client may not remove, alter, affix to, disfigure or cover up any numbering, lettering or insignia displayed upon the Hardware or any warnings or documentation thereon without IDscan’s prior written consent.
3.6 The Client must keep the Hardware within its possession and control at the Location all times during the Rental Period. The Client must not change the Location or move the Hardware at any time without the prior written consent of IDscan.
3.7 The Client must not transfer the benefit of this Agreement or do anything which affects IDscan’s rights in the Hardware, including selling or disposing of the Hardware; or using the Hardware as a security for a debt or any other obligation. If the Hardware is kept at a Location which is a rented property in Scotland, it must not form part of the landlord’s hypothec.
4 RETURN OF THE HARDWARE
4.1 Upon termination of the Rental Period the Client shall at its own expense, restore the Hardware to its original condition (fair wear and tear excepted) and return the Hardware to IDscan at such place in the United Kingdom that IDscan shall designate on or before the Return Date.
4.2 In restoring the Hardware to its original condition, the Client shall remove all Client Information from the Hardware. Save as set out in clause 4.3 below, IDscan accepts no responsibility for any Client Information which remains on the Hardware following the end of the Rental Period.
4.3 In the event that this Agreement is terminated, IDscan may, at its discretion, act as a Data Co-Controller to restore the Hardware to its original condition by removing all Client Information, including any Personal Data stored on it, in order to ensure compliance with the Data Protection Act 1998 (specifically Principles 3 and 5).
5 DAMAGE, LOSS OR FAILURE TO RETURN
5.1 The Client must immediately notify IDscan of any loss or damage to the Hardware which occurs during the Rental Period.
5.2 The Client shall allow IDscan or its authorised representatives to access the Location and to inspect the Hardware at all reasonable times to check compliance with the terms of this Appendix 1.
5.3 The Client acknowledges and accepts that IDscan will assess the condition of the Hardware on the Return Date and where it elects to do so, periodically during the Rental Period. In the event that the Hardware is damaged (fair wear and tear excluded), IDscan shall be entitled to invoice the Client for the full costs of repair of the Hardware.
5.4 In the event that the Client fails to return the Hardware on or before the Return Date, the Client acknowledges and accepts that IDscan will need to enter the Location and take such action as is necessary to repossess the Hardware. IDscan shall not be under any liability for any loss or damage sustained as a result of the repossession of the Hardware.
5.5 The Client acknowledges and accepts that in the event of Total Loss of the Hardware or if the Client fails to return the Hardware that IDscan will be unable to sell or rent the Hardware to another client and it will be unable to recoup its investment in the residual value of the Hardware. In such circumstances, the Client shall pay IDscan the Failure to Return Payment to compensate IDscan for its loss within fourteen (14) days of receipt of IDscan’s written notice to do so.
5.6 IDscan may at its discretion elect to replace any Hardware which is lost or damaged at the Client’s expense. However, nothing in this clause 4 of Appendix 1 shall oblige IDscan to provide the Client with a replacement.
6 RENTAL FEES
6.1 The Rental Fees will be determined by reference to the length of the Rental Period, the type and quantity of the Hardware provided in accordance with this Agreement.
6.2 The initial Rental Fees shall be as set out in the Order Form, however, the Client acknowledges and accepts that IDscan may alter or amend the Rental Fees payable at any time during the Rental Period by giving the Client no less than thirty (30) days’ notice to do so.
6.3 All Rental Fees payable to IDscan for the provision of the Hardware shall be paid by direct debit or scheduled payment. Clients that opt for scheduled payment shall also pay IDscan an additional Scheduled Payment Fee each month.
6.4 In the event the Client fails to pay IDscan a Rental Fee on the Payment Date, IDscan may, without prejudice to any other right or remedy that it may have, issue a notice to the Client advising them of the failed payment and may charge to the Client a Missed Payment Fee.
6.5 In the event that the outstanding Rental Fee and the Missed Payment Fee are not paid within fourteen (14) days of the date of issuance of the notice in accordance with clause 6.4, then without limiting the other remedies available to it, IDscan may at its option recover the Hardware, cease providing any ancillary Services and/or terminate this Agreement.
6.6 If the Client does not pay the Licence and/or Rental Fees by the 20th day of each month the Software will be deactivated on the first day of the next month. The Client will not be able to utilise the Software or Services until payment is made.
7.1 During the Rental Period, the Client shall, at its own expense, provide and maintain insurance for the Hardware against all loss and damage, in an amount equal to the full replacement value of the Hardware and insurance to cover any third party or public liability risks arising directly or indirectly out of the possession or use of the Hardware (“Insurance”).
7.2 The Insurance shall commence on date of delivery and installation of the Hardware and shall extend for the Rental Period up to and including the date when the Hardware is returned to IDScan as acknowledged by IDscan in writing.
7.3 The Client shall ensure that IDscan’s interest in the Hardware is endorsed in any Insurance policy procured by the Client to provide the coverage in accordance with this clause 7.
7.4 The Client shall, upon request by IDscan, provide IDscan with evidence of Insurance, including up to date insurance certificates.
7.5 In the event the Client fails to provide evidence of Insurance when requested, IDscan may, at its discretion and for such period as it thinks fit, arrange to take our Insurance on behalf of the Client. In such case, the Client will appoint IDscan as its agent to arrange for the Insurance and Client will pay the full cost of the Insurance, which IDscan will collect from Client as an additional Charge alongside the Rental Fees.
7.6 The Client must immediately notify IDscan of any Insurance claim relating to the Hardware. The Client must not settle any insurance claim relating to the Hardware without IDscan’s prior written consent. Client appoints IDscan as its agent for receiving insurance settlements.
7.7 Any insurance settlement received by IDscan receives from the Client’s insurers will be credited to any amount payable by the Client to IDscan in accordance with clause 5.5.
APPENDIX 2 – HARDWARE PURCHASE TERMS
Where the Order Form specifies that the Hardware is purchased the following provisions shall apply in additional to the General Terms:
1.1 Title in Hardware purchased by the Client from IDscan shall pass to the Client only upon full payment by the Cleint for the purchased Hardware.
1.2 Hardware purchased by the Client from IDscan, but not fully paid for, shall at all times remain the property of IDscan and the Client shall have no right, title or interest in or to the Hardware, notwithstanding the delivery of the Hardware to the Client.
1.3 The Client shall at IDscan’s request take any measures necessary under the applicable law to protect IDscan’s title in the Hardware and lawfully notify the Client’s creditors or potential creditors of IDscan’s title on and interest in the Hardware.
1.4 The Client acknowledges that so long as title in the Hardware has not been transferred, the Client holds the Hardware as bailee and fiduciary agent for IDscan and shall safely and securely store and keep the Hardware in good condition and shall record IDscan’s ownership of the Hardware in its books. Notwithstanding this, the Client may use the Hardware as permitted by this Agreement, but may not sell, rent or otherwise dispose of the Hardware without IDscan’s prior written consent.
2 PAYMENT OF CHARGES
2.1 The Charges for the purchase of the Hardware shall be as set out in the Order Form. All Charges due for the purchase of the Hardware, shall be paid by the Client in accordance with the payment provisions set out in the General Terms.
2.2 The use of the Software during the Initial Period and any Renwal Period shall be subject to the payment of Licence Fees. If the Client fails to pay Licence fee on or before the due date the license for the use of the Software will automatically be suspended until payment has been received.
3 PROVISION OF SUPPORT
3.1 Where the Hardware is purchased, IDscan will provide Standard Support Services for the Hardware during the first three (3) years of this Agreement. Such Services will be provided by either the hardware manufacturer or IDscan. Thereafter the Client shall be solely responsible for Hardware support.
3.2 Damage caused to the purchased Hardware which is deemed deliberate will not be covered by IDscan Standard Support Services.
APPENDIX 3 – GOOD PRACTICE GUIDANCE
Where the Order Form specifies that the Hardware, Software and/or Service is to be used to capture, store and/or verify a Data Subject’s identity document on entry to a premises or venue, the Client must ensure that the following Good Practice Guidance is incorporated into the Client’s Data Protection Notice:
The Client agrees that it shall tell the Insurance company that any is a Scannet User.
settlements from a Total Loss claim should be paid to IDscan, as the Client’s agent.
Why we ask for your identification (ID)
In order to comply with the Licensing Act 2003 and as a condition of your entry, our staff may ask you to provide official identification.
Why we use Scannet
In addition to ensuring the elimination of underage drinking, the Licensing Act 2003 places strict regulations on licensed venues to protect public safety and prevent crime, disorder and public nuisance. Scannet allows us to verify the age on your ID, confirm that the photo on your ID is actually you and find out if you have been barred from this venue or another Scannet venue has placed an alert on your ID.
We use Scannet to help us maintain a safe, enjoyable and legal environment for our customers. By allowing your identification to be scanned and retained on this system you may help to prevent, detect and prosecute crime.
The personal information noted on your ID is scanned onto an encrypted system which is managed by this venue and resides on this machine for as long as necessary in accordance with our data retention policy.
Who we may share your information with using Scannet
In the event you are involved in an incident with a member of staff or another patron of this venue we have the right to prohibit you from entering this venue. Details of this incident, including personal information that you have provided to us including information held on your identification, may be shared with Scannet Users when you attempt to enter their venue. A venue may refuse you entry based on the information that has been disclosed and they can do this at their own discretion.
If our records show that you were present during an incident we may provide law enforcement agencies and/or local authorities with access to this information.
What are your rights?
Please contact us if you feel that any of the personal information we hold about you on the Scannet system is incorrect or if you wish to object to the use of your personal information.
If we have told you that an alert has been placed on your ID by another Scannet User then we can provide you with the name of the originating venue and you can contact them for further information.
You can also find out what personal information we hold about you (if any) by making a ‘subject access request’. A fee may be payable.
The Parties acknowledge and accept that IDscan provides the Good Practice Guidance to its Clients to help to ensure that venues adopt a uniform approach to data collection and to help its Clients to comply with their obligations under the Privacy and Data Protection Requirements.
Notwithstanding the fact that IDscan provides the Client with the Good Practice Guidance, the Parties acknowledge and accept that the Client is the Data Controller in relation to all data captured using the Hardware, Software and Services and that the Client is solely responsible for ensuring that its Data Protection Notice complies with the Privacy and Data Protection Requirements.
Scannet: Hardware, Software and Services Agreement
SCHEDULE 1 – STANDARD SUPPORT SERVICES
This section only applies if the Order Form shows that Standard Support Services have been selected. If so, this Schedule 1 will apply in addition to the General Terms and any applicable Additional Terms. Any definition not provided in this Schedule shall have the same meaning as set out elsewhere in the Agreement.
1.1 The following definitions apply to this Schedule 1:
“Business Day” means Monday to Friday (excluding Public and Bank Holidays in England).
“Business Hours” means the working hours in a Business Day being 0900 to 1700.
“Chat Support” means the provision of Standard Support Services via online chat without the need for Remote Intervention and/or Local Intervention via the Helpdesk.
“Client Administration Portal” means the admin section of the Software.
“Local Intervention” means the provision of Standard Support Services via local Intervention whereby IDscan employees or agents travel to the Client’s premises to investigate (and if possible resolve) reported problems with the Hardware and/or Software.
“Phone Support” means the provision of Standard Support Services via telephone without the need for Remote Intervention and/or Local Intervention via the Helpdesk.
“Planned Maintenance” means any work planned in advance to be carried out by IDscan or on IDscan’s behalf that may cause the Software and Service to be temporarily suspended.
“Remote Intervention” means the provision of Standard Support Services via the internet or other suitable network means remotely accesses and intervenes in the Hardware or other equipment through which the Software is used by the Client to resolve a fault in the Hardware and/or the Software.
“User Guide” means the user guide provided by IDscan for use with the Service.
“Version” means a new release in any year of the Software.
2 ACCESS TO THE SERVICE
2.1 IDscan will provide the System Administrator with a Username and Password to access the Software once the Hardware is installed. The System Administrator will be required to change the password upon the first use.
2.2 The System Administrator will have access to the Client Administration Portal which will enable the System Administrators to create accounts and edit access for Permitted Users.
2.3 The minimum system requirements for using the Hardware, Software and Services is: Core i7, 8Gb Ram, 500Gb HDD, Windows 8, Internet access minimum 2Mb and IE version 6 or higher.
3 STANDARD SUPPORT SERVICES
3.1 Day-to-Day System Administration: IDscan will perform routine system administration of the Software, including server, network and security monitoring.
3.2 Service Management: The Software is provided 24 hours a day, 365 days per year. IDscan will respond to faults it detects or which the Client reports to IDscan as set out in paragraph 3.4 below.
3.3 Helpdesk: IDscan will provide the Client with Support Services via Phone Support, Chat Support, Remote Intervention, and/or Local Intervention elements as selected on the Order Form.
3.4 Phone Support: The Client may contact Phone Support on 0207 987 9977 (Monday – Friday 8am-6pm) and on 0781 310 1010 (Monday – Sunday 6pm – 10pm).
3.5 Chat Support: The Client may contact Chat Support (via the Client Administration Portal or www.idscan.com) 24 hours a day, 365 days of the year.
3.6 Fault Reporting and Fault Repair:
(a) Any faults in the Hardware, Software or Service need to be notified to IDscan’s Helpdesk via the Client’s System Administrator. The Client will need to use the reporting procedures IDscan requires it to use from time to time.
(b) If the Client reports a fault in the Hardware, Software or Service or makes a request for assistance, IDscan will immediately undertake an initial assessment, provide a fault reference and discuss and agree with the Client a priority level.
(c) Progress will be tracked and clients will be updated as necessary.
3.7 Service Restoration: Each of the priorities has the following associated target clearance time:
|Priority 1 faults||80% of faults cleared within 4 hours of IDscan’s acknowledgement of the fault.||The Hardware, Software, or Service is not operational or is inaccessible.|
|Priority 2 faults||80% of faults cleared by the end of the next Business Day of IDscan’s acknowledgement of the fault||The Hardware, Software, or Service is degraded, a marked increase in time to access the Service.
A problem causing significant reduction in functionality.
|Priority 3 faults||80% of faults cleared within 5 Business Days of IDscan’s acknowledgement of the fault.||The Hardware, Software, or Service is experiencing minor problems but is functioning substantially.|
|Priority 4 faults||Fix available in the next release of the Software||Minor problem with Hardware, Software, or Service but does not impact the Client’s use.|
3.8 Disclaimer: IDscan will always try to resolve any fault within the appropriate target clearance time, but the Client recognises and accepts that IDscan may not be able to do so and that these times are only intended to be targets.
3.9 Outside of Business Hours: The Chat Support will be available outside of business hours. The Helpdesk will log the support request and may be able to fix minor software issues remotely. The target times listedin section 3.7 will only commence during business hours or the next business day.
3.10 Scheduled Service Time: The Service is provided on a resilient platform enabling IDscan to offer a high level of service which is scheduled to be available 24 hours per day, 7 days per week, 365 days per year. The Service has a target of 98.5% availability within any calendar month. This target excludes all periods of Planned Maintenance or any emergency maintenance or updates. IDscan will always try to meet and exceed this monthly target availability. However, the Client accepts, that IDscan may not always be able to do so and that this level of availability is only intended to be a target level.
3.11 Planned Maintenance: From time to time, IDscan may need to schedule maintenance of the Service. IDscan will always endeavour to conduct Planned Maintenance at a time that reduces the impact on the availability of the Service. So, where possible, Planned Maintenance will be conducted during low usage periods outside of Business Hours. If IDscan needs to suspend the Service for Planned Maintenance (which IDscan would only reasonably expect to be under exceptional circumstances) IDscan undertake to give the Client as much advance notice as is practicable.
3.12 Client Reports: The Service will allow the System Administrator online access to reports on the Client’s usage.
3.13 Software Updates: The Software will be regularly updated and each new release will be provided to each Client to ensure their system is up to date. Provided that the Client has maintained payment of their Licence Fees and/or Rental Fees, the update will be automatically downloaded onto the Client’s Hardware when they connect their system to the Internet.
3.14 Non-Payment: IDscan reserves the right to suspend the provision of Standard Support Services in relation to the Hardware and Software, in the event that any Charges are outstanding.
3.15 Hardware Damage: A fee of £270 will be chargeable if IDscan is called out to the Location for Local Intervention where the damage to the Hardware has been caused by the Client.
Scannet: Hardware, Software and Services Agreement
SCHEDULE 2 – PROFESSIONAL SERVICES
This section only applies if the Order Form shows that Professional Services have been selected. If so, this Schedule 2 will apply in addition to the General Terms and any applicable Additional Terms. Any definition not provided in this Schedule shall have the same meaning as set out elsewhere in the Agreement.
1.1 The following definitions apply to this Schedule 2.
“Service Materials” means any and all works of authorship and materials developed, written or prepared by IDscan, in relation to the Professional Services (whether individually, collectively or jointly with the Client and on whatever media) which it is required to deliver to the Client pursuant to the Professional Services, including, without limitation, any and all reports, studies, data, diagrams, charts, specifications and all drafts thereof and working papers relating thereto, but excluding ordinary correspondence passing between the Parties.
2 PROFESSIONAL SERVICES
2.1 IDscan hereby agrees to provide the Professional Services to the Client in consideration of the Charges set out in the Order Form in accordance with this Schedule 2.
2.2 Nothing in this Agreement shall operate to prevent IDscan from engaging in other professional, consultancy or project management activities.
2.3 The Client hereby authorises IDscan and IDscan’s sub-contractors to have such access to the Client’s premises, computers and IT systems and other facilities as is necessary in order to perform the Professional Services.
2.4 IDscan shall at the Client’s request, in the provision of the Professional Services, provide support in the creation and amendment of the User Profile. The Client’s request to create or amend the User Profile shall be deemed as the Client’s agreement to such creation or amendment.
3 IDSCAN’S RESPONSIBILITIES
3.1 IDscan warrants to the Client that the Professional Services:
(a) will be provided in a timely and professional manner and that it shall use reasonable endeavours to provide the same in accordance with any Timetable (as defined in 6.1 below);
(b) will conform to the standards generally observed in the industry for similar services and will be provided with reasonable skill and care.
3.2 IDscan shall be fully entitled to use any skills, techniques, concepts or know-how acquired, developed or used in the course of performing the Professional Services in any way it deems fit and any improvements to IDscan’s existing products and/or service made or developed during the course of the Professional Services, subject to the obligations of confidentiality detailed in the Agreement.
4 CLIENT’S OBLIGATIONS
4.1 The Client shall:
(a) make available to IDscan such office and support services as may be necessary for IDscan’s work under this Agreement;
(b) ensure that its employees co-operate with IDscan’s reasonable requests in relation to the provision of the Professional Services; and
(c) promptly furnish IDscan with such information and documents as IDscan may reasonably request for the proper performance of the Professional Services.
5.1 The Charges for the Professional Services are exclusive of the travel, accommodation and subsistence expenses incurred by IDscan and IDscan’s sub-contractors in attending the Client’s premises to perform Professional Services and such expenses shall be invoiced separately by IDscan and shall be paid by the Client within 30 days of receipt of an invoice. Where the Client cancels or rearranges a scheduled meeting IDscan reserves the right to charge the Client for all accommodation and travel expenses that have been incurred by IDscan.
6 TIMETABLE AND DELAYS
6.1 Time of performance of the Professional Services is not of the essence. Where a timetable is agreed and appended to this Agreement (the “Timetable”), IDscan undertakes to use reasonable endeavours to complete each element of the Professional Services by the date specified in the Timetable.
6.2 If IDscan is prevented or delayed from performing any of the Professional Services for any reason which is not directly attributable to IDscan’s acts or omissions then, notwithstanding anything else contained in this Agreement:
(a) If as a result any element of the Service Materials or any other deliverable is not completed by the date specified in the Timetable (where one is agreed) (or by any extended date agreed between the Parties) then any part payment of the Charges for the Professional Services due to be paid on the completion of that element (if any) shall be paid on the scheduled date for such completion (taking into account any extension of time agreed between the Parties) as distinct from the actual date of completion;
(b) The Client shall pay to IDscan a reasonable sum in respect of any additional time spent and materials and computer time incurred as a result of any such prevention or delay; and
(c) The Client shall pay to IDscan all other reasonable costs, charges, expenses and losses sustained or incurred by IDscan as a result of such prevention or delay.
6.3 The Client shall pay to IDscan a reasonable sum in respect of any additional time spent and materials and computer time incurred in connection with the provision to IDscan of any inaccurate, incorrect or inadequate information or data by the Client or on the Client’s behalf.
6.4 IDscan shall notify the Client in writing without undue delay of any claim which IDscan may have under paragraph 6.2 or 6.3 giving such particulars thereof as IDscan is then able to provide.
7.1 If at any time the Client requires IDscan to alter all or any part of the Service Materials, the Professional Services and/or any other deliverable under the Professional Services then the Client shall provide IDscan with full written particulars of such alterations and with such further information as IDscan may reasonably require. IDscan may suggest alterations to the Client at any time which the Client may then use as the basis for a request under this provision.
7.2 IDscan shall then submit to the Client as soon as reasonably practicable a written estimate for such alterations specifying what changes (if any) will be required to the Charges hereunder and the Timetable (if applicable) and what adjustments will be required to the Service Materials (if applicable).
7.3 Upon receipt of such estimate the Client may elect either:
(a) to accept such estimate in which case this Agreement shall be amended in accordance therewith;
(b) (to withdraw the proposed alterations in which case the Professional Services shall continue in force unchanged.
7.4 IDscan shall be entitled to charge a reasonable fee to the Client for considering such alterations and preparing the said estimate and if the Client’s request for such alterations is subsequently withdrawn but results in a delay in the performance of any of the Services then IDscan shall not be liable for such delay and shall be entitled to an extension of time for performing its obligations equal to the period of the delay.
7.5 IDscan shall not be obliged to make any alterations to the Service Materials save in accordance with the aforesaid procedure.