Terms & Conditions For Asset Owners

PLEASE READ THESE TERMS AND CONDITIONS (THE ‘AGREEMENT’) CAREFULLY. BY ACCESSING OR USING THE SERVICES (DEFINED BELOW) IN ANY WAY, CLICKING ON THE ‘Yes, I understand and agree to the Lucett Terms of Service, including the User Agreement and Privacy Policy‘ OPTION ON REGISTRATION PAGE YOU ACKNOWLEDGE AND AGREE THAT A LEGALLY BINDING AGREEMENT IS FORMED BETWEEN YOU AND LUCETT LTD AND YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT LEGAL ENTITY TO THE AGREEMENT. THE TERM ‘CUSTOMER’ OR ‘YOU’ REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER DURING THE REGISTRATION PROCESS ON THE WEBSITE.

IF YOU OR THE LEGAL ENTITY DOES NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.  

THIS AGREEMENT is a legal agreement between the Customer and LUCETT LTD incorporated and registered in England and Wales with company number 10889645 whose registered office is at 71-75 Shelton Street, London, Greater London, United Kingdom, WC2H 9JQ (the ‘Supplier’ or ‘we’, and ‘our’ and ‘us’ shall be construed accordingly).

Background

1. The Supplier has developed certain software and software applications which it makes available to subscribers via the internet on a subscription basis for the purpose of tracking the location and monitoring the condition of fine art, furniture and other assets in transit or storage, as more fully described in the Documentation (the ‘Services’).
2. The Customer wishes to use the Services.
3. The Supplier has agreed to provide and the Customer has agreed to use and pay for the Services subject to the terms and conditions of this Agreement.

Agreed Terms

1. INTERPRETATION

   1. The definitions and rules of interpretation in this clause apply in this Agreement.
      1. ‘App’ means the Supplier’s mobile software application that accompanies the Platform and which it makes available on the Apple App Store and Google Play under the name Lucett.
      2. ‘Approved Transport Company’ means the company listed on the Supplier’s Website as an ‘Approved Transport Company’ that the Customer has contracted with to transport or store the Asset.
      3. ‘Asset’ means each asset that the Customer notifies the Supplier via the Platform that it wishes to be tracked as part of the Services.
      4. ‘Authorised Users’ (i) where the Customer is an individual, non-business user, means the Customer; and (ii) where the Customer is a legal entity or business user, means the Customer and those employees of the Customer who are authorised by the Customer to use the Services and the Documentation.
      5. ‘Business Day’ means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
      6. ‘Change of Control’ means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
      7. ‘Confidential Information’ means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 5 or clause 11.6.
      8. ‘Customer Data’ means all and any of the data and content inputted to the Platform or otherwise supplied to the Supplier by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services, including but not limited to, photographs of the Assets and documentation confirming the ownership of the Asset.
      9. ‘Data Protection Legislation’ means all applicable privacy and data protection laws, including the EU General Data Protection Regulation (Regulation 2016/679) ('GDPR'), the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 ('UK GDPR'), the Data Protection Act 2018 ('DPA 2018'), and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426)).
      10. ‘Data Subject Request‘ means a Data Subject request to access, correct, amend, transfer or delete that person’s personal data consistent with that person’s rights under the Data Protection Legislation.
      11. ‘Documentation’ means the document made available to the Customer by the Supplier online via the Website which sets out a description of the Services and the user instructions for the Services.
      12. ‘Effective Date’ means the date on which the Customer accepts these terms by accessing or using the Services in any way, clicking on the ‘I accept’ button, and/or completing the registration process,
      13. ‘Initial Subscription Term’ means the initial term of this Agreement being the 12 months immediately following the Effective Date.
      14. ‘Insurer’ means the insurance company that insures the Asset and / or Customer’s property.
      15. ‘Location Data’ means any data processed in an electronic communications network or by an electronic communications service indicating the geographical position of the Asset, including data relating to—
          1. the latitude, longitude or altitude of the terminal equipment;
          2. the direction of travel of the user; or
          3. the time the location information was recorded
      16. ‘Normal Business Hours’ means [9:00am to 5:00pm] local UK time, each Business Day.
      17. ‘Platform’ means the Supplier’s online asset tracking and monitoring platform provided via website
      18. ‘Renewal Period’ means the period described in clause 1.
      19. ‘RFID Tag’ means a radio frequency identification tag supplied by the Supplier.
      20. ‘Security Company’ means the company which has contracted with the Customer for security services relating to the Asset.
      21. ‘'Standard Contractual Clauses'’ means as applicable (a) the standard contractual clauses available at website pursuant to the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to the GDPR ('EU SCCs'); and (b) the International Data Transfer Addendum to the EU SCCs issued by the Information Commissioner’s Office under S119A(1) of the Data Protection Act available at website ('UK Addendum').
      22. ‘Subscription Fees’ means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out on the Website or as otherwise notified by the Supplier to the Customer in writing.
      23. ‘Subscription Term’ has the meaning given in clause 1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
      24. ‘Virus’ means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
      25. ‘Vulnerability’ means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term ‘Vulnerabilities’ shall be construed accordingly.
      26. ‘Website’ means lucett.com or any other website notified to the Customer by the Supplier from time to time.
   2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
   3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
   4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
   5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
   6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
   7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
   8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
   9. A reference to writing or written includes faxes but not e-mail.
   10. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

2. PROVISION OF SERVICES

   1. The Supplier will provide, and the Customer will use and pay for, the Services in accordance with the terms and conditions of this Agreement.
   2. In order to use the Services, the Customer must have entered into a contract governing the transport or storage of the Asset with an Approved Transport Company (the ‘Transport Contract’). The Customer expressly acknowledges and agrees that the Supplier shall have no liability in respect of any matters arising under or in respect of the Transport Contract.
   3. The Supplier reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Services to its customers; (ii) the competitive strength of or market for Services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
   4. Without prejudice to the generality of clause 2.3, the Supplier may from time to time:
      1. modify the Services by issuing updates to the App or the Platform; and
      2. make new features, functionality, applications or tools available in respect of the Services, whose use may be subject to the Customer's acceptance of further terms and conditions,
      3. and, in relation to the App, the Customer shall ensure that the Customer and Authorised Users download and install updates to the App when made available by the Supplier.
   5. The Customer acknowledges that failure by the Customer or Authorised Users to install updates to the App in accordance with clause 2.4 may result in the unavailability or degradation of the performance or functionality of the App or the Platform and (i) the Supplier the Supplier shall have no liability in connection with or in relation to any such unavailability or degradation, and (ii) the Customer's obligations under this Agreement shall not be affected.

3. ACCESS AND USE

   1. Subject to the Customer paying the Subscription Fee in accordance with clause 8 and subject to the Customer’s compliance with these Terms and Conditions, the Supplier grants the Customer a limited non-exclusive, non-transferable license:
      1. if the Customer is an individual, non-business user, use the Services, including the right to download, install and run the App on the Customer’s own personal mobile devices, solely for the Customer’s own personal use; or
      2. if the Customer is a legal entity or business user, to use the Services, including the right to download, install and run the App on the mobile devices of the Authorised Users that they own or control, solely for the Customer’s internal business purposes.
   2. The Supplier reserves all rights in and to the Platform, App and Services not expressly granted to the Customer under these terms.
   3. In relation to the Authorised Users, the Customer undertakes that:
      1. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall be limited to Asset Owner and Asset Owner's manager/assistant/PR or help personnel.
      2. each Authorised User shall keep a secure password for his use of the Services and Documentation, and that such password shall be changed no less frequently than annually and that each Authorised User shall keep his password confidential; and
      3. it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request
   4. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. is otherwise illegal or causes damage or injury to any person or property; and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause
   5. The Customer shall not:
      1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
         1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform , App and/or Documentation (as applicable) in any form or media or by any means; or
         2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform or App; or
      2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
      3. use the Services and/or Documentation to provide services to third parties; or
      4. subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
      5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause3; or
      6. introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
   6. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
   7. The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

4. AVAILABILITY OF THE SERVICES

   1. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
      1. planned maintenance; and
      2. unscheduled maintenance performed outside Normal Business Hours.
   2. The Supplier will, as part of the Services, and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours.

5. SUSPENSION OF ACCESS

   1. The Supplier may suspend the access to or use of the App or the Platform (or both) by any or all of the Authorised Users or the provision of the Services if the Supplier determines that use of the Services:
      1. is in breach of this Agreement;
      2. poses a security risk;
      3. is adversely impacting or may adversely impact (as appropriate) the Services or any service provided by the Supplier to a third party; or
      4. where it is in the legitimate interests of the Supplier to do so, including where there is a reasonable risk that the Customer may default in the payment of the Subscription Fees, and the Supplier shall use its reasonable endeavours to notify the affected Authorised Users before the suspension takes effect and as soon as reasonably practicable thereafter, and may use any reasonable means to do so.
   2. Where the Supplier suspends access to or use of the App or the Platform (or both) under clause 5.1, the Customer remains responsible for the Subscription Fees.

6. CUSTOMER DATA

   1. The Customer hereby grants to the Supplier a non-exclusive, payment-free, transferable, worldwide licence, with the right to grant sub-licences, to use, copy, modify, make available and create derivative works from all Customer Data for the purpose of performing the Services during the Subscription Term.
   2. Without limiting the generality of clause 5.1 above, the Customer expressly authorises the Supplier to share the Location Data with the Customer’s Insurer and the Customer’s Security Company during the Subscription Term.
   3. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
   4. The Supplier shall follow its standard archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with its archiving procedures. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 6.9).
   5. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
   6. The parties acknowledge that:
      1. if the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation; and
      2. the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under this Agreement.
   7. Without prejudice to the generality of clause 5, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf.
   8. Without prejudice to the generality of clause 6.6, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf.
      1. process that personal data only on the documented written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
      2. ensure that access to any such Customer personal data is restricted to those of its personnel who need to have access in order to perform the Services and who are subject to confidentiality obligations in respect of the personal data;
      3. not transfer any personal data outside of the European Economic Area and the United Kingdom or to an international organisation unless the following conditions are fulfilled:
         1. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
         2. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
         3. transfers of Customer Personal Data to a third country that does not ensure an adequate level of protection, or an international organisation are subject to appropriate safeguards as described in Article 46 of the GDPR or UK GDPR (as applicable) or where required the Supplier shall enter into the Standard Contractual Clauses, incorporating the details from Annex A as applicable;
         4. the Supplier shall ensure that where applicable its sub-processors shall enter into the Standard Contractual Clauses; and
         5. subject to applicable law or regulation, the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data, and the Customer hereby acknowledges that the Supplier and its sub-processors may Process Customer Personal Data outside of the EEA or UK in non-adequate countries;
      4. assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators and shall: (a) not respond to the Data Subject Request without Customer’s prior written consent and in accordance with Customer’s instructions; and (b) shall provide such assistance as Customer may reasonably require in respect of such personal data in order for Customer to comply and respond to the Data Subject Request in accordance with the Data Protection Legislation;
      5. notify the Customer without undue delay on becoming aware of a personal data breach;
      6. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the personal data (and for these purposes the term ‘delete’ shall mean to put such data beyond use); and
      7. maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
   9. In the event any replacement Standard Contractual Clauses include a transition period for implementation, the Supplier shall notify the Customer of the date on which such Standard Contractual Clauses shall become effective which in any event shall be prior to the expiration of such transition period.
   10. Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
   11. The Supplier may appoint third party sub-processors to process the Customer’s Personal Data provided that it enters into a written agreement with the third-party processor substantially on that third party's standard terms of business which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.
   12. In order to demonstrate the Supplier's compliance with the Data Protection Legislation and the data protection provisions set out in this clause 6, the Supplier shall:
       1. provide the Customer with such information as the Customer reasonably requests from time to time to enable the Customer to satisfy itself that the Supplier is complying with its data protection obligations under this clause 6 and the Data Protection Legislation; and
       2. allow the Customer, at the Customer’s sole cost and expense access (on reasonable notice and no more than once a year) to its premises where Customer personal data is Processed under this Agreement to allow the Customer to audit its compliance with the data protection provisions of this Agreement and the Data Protection Legislation and shall provide reasonable co-operation as requested by the Customer in the performance of such audit. The Parties shall agree in advance on the reasonable start date, duration and security and confidentiality controls applicable to such audit.
   13. The Supplier may, at any time on not less than 30 days' notice, revise this clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

7. SUPPLIER'S OBLIGATIONS

   1. The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
   2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
   3. The Supplier does not warrant:
      1. that the Customer's use of the Services will be uninterrupted or error-free.;
         1. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
         2. that the Platform, the App or the Services will be free from Vulnerabilities.
   4. The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
   5. This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
   6. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

8. ADDITIONAL CUSTOMER OBLIGATIONS

   1. The Customer shall be responsible for ensuring that the appropriate RFID Tags are applied to the Asset by an Approved Transport Company or the consignor of the Asset to the Customer. In the event that a RFID Tag is not secured to the relevant Asset, or has been lost, the Customer shall notify the Supplier who will provide them with replacement RFID Tags. The Customer shall be responsible for ensuring that such replacement RFID tags are secured to the Asset. The Customer expressly acknowledges and agrees that Lucett shall have no liability in respect of any failure or delaying in performing the Services that results from the relevant RFID Tags not being applied, or being applied incorrectly, to the Assets.
   2. The Customer shall:
      1. provide the Supplier with:
         1. all necessary co-operation in relation to this Agreement; and
         2. all necessary access to such information as may be required by the Supplier; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
         3. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
         4. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
         5. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
         6. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
         7. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

9. CHARGES AND PAYMENT

   1. The Customer shall pay the Subscription Fees to the Supplier in accordance with this clause 9.
   2. The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
      1. its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
         1. on the Effective Date for the Subscription Fees in respect of the Initial Subscription Term; and
         2. subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; or
      2. its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
         1. at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.
   3. If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
      1. the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
      2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
   4. All amounts and fees stated or referred to in this Agreement:
      1. are, subject to clause 12.4.2 and clause 13.1, non-cancellable and non-refundable;
      2. are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
   5. The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 90 days' prior notice to the Customer.

10. PROPRIETARY RIGHTS

    1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Platform, App or the Documentation.
    2. Without prejudice to clause 10.1, to the extent that the Customer’s or any Authorised User’s use of the App or the Platform results in any modifications, adaptations, developments, or any derivative works of or to the App, the Platform or the Services ('Improvements'), any and all intellectual property rights in and to such Improvements shall immediately vest in and be owned by the Supplier.
    3. The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

11. CONFIDENTIALITY

    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
       1. is or becomes publicly known other than through any act or omission of the receiving party;
       2. was in the other party's lawful possession before the disclosure;
       3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
       4. is independently developed by the receiving party, which independent development can be shown by written evidence.
    2. Subject to clause 11.4 each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
    3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
    4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    5. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
    6. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
    7. The above provisions of this clause 10 shall survive termination of this Agreement, however arising.

12. LIMITATION OF LIABILITY

    1. Except as expressly and specifically provided in this Agreement the Services and the Documentation are provided to the Customer on an ‘as is’
    2. Nothing in this Agreement excludes the liability of the Supplier:
       1. for death or personal injury caused by the Supplier's negligence; or
       2. for fraud or fraudulent misrepresentation.
    3. If you use the Services as an individual, non-business user, then subject to clauses 12.1 and 12.2:
       1. if we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process; and
       2. if defective digital content which we have supplied damages a device or digital content belonging to you, and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow our instructions or to have in place the minimum system requirements advised by us.
    4. If you use the Services in the course of any business then subject to clause 12.1 and clause 12.2:
       1. the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
       2. the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose; and
       3. except as expressly and specifically provided in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

13. TERM AND TERMINATION

    1. If you are an individual, non-business user of the Services, you shall have fourteen (14) days from the Effective Date to change your mind and cancel your subscription to the Services. If you cancel your subscription after the Supplier has started supplying the Services to you, you must pay the Supplier for the Services provided up until the time you tell us that you have changed your mind.
    2. This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and thereafter , this Agreement shall be automatically renewed for successive periods of 12 months (each a ‘Renewal Period’), unless:
       1. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
       2. otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the ‘Subscription Term’.
    3. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
       1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
       2. the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
       3. the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
       4. 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 that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    4. On termination of this Agreement for any reason:
       1. all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
       2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party, including without limitation any rented or leased hardware and RFID Tags;
       3. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
       4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

14. FORCE MAJEURE

    The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15. CONFLICT

    If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

16. VARIATION

    No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. WAIVER

    No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18. RIGHTS AND REMEDIES

    Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19. SEVERANCE

    1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
    2. If any provision or part-provision of this Agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

20. ENTIRE AGREEMENT

    1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    2. Each party acknowledges that in entering into this Agreement it does not rely on[, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
    4. Nothing in this clause shall limit or exclude any liability for fraud.

21. ASSIGNMENT

    1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

22. NO PARTNERSHIP OR AGENCY

    Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

23. THIRD PARTY RIGHTS

    This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

24. NOTICES

    1. Any notice required to be given under this Agreement shall be:
       1. in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes; or
    2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

25. GOVERNING LAW

    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 by and construed in accordance with the laws of England.

26. JURISDICTION

    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).