POLYTAG TECHNOLOGY LICENCE AGREEMENT
PLEASE READ CAREFULLY BEFORE ACCESSING OR USING THE POLYTAG TECHNOLOGY AND/OR THE POLYTAG SOFTWARE
1. Commencement and duration
1.1 This agreement shall commence on the date that you accept the terms of this agreement (the “Start Date”).
1.2 Unless otherwise terminated as provided in clause 14, this agreement shall continue for an initial term of 12 months (the “Initial Term”) and, thereafter, this agreement shall automatically renew for successive periods of 12 months (each a “Renewal Period”), unless:
1.2.1 either party gives the other party not less than 30 days written notice any time after the end of the Initial Term; or
1.2.2 it is otherwise terminated in accordance with the provisions of this agreement;
and the Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.
2. Grant
2.1 Polytag hereby grants to the Client a non-exclusive licence to:
2.1.1 use and apply the Tags to the packaging of Products; and
2.1.2 otherwise implement and use the Polytag Technology;
in each case, only in connection with the Products in the Territory during the Term.
2.2 The Client undertakes not to exploit the Polytag Technology in the Territory other than in connection with the Products.
3. Provision of Further Know-How
3.1 Polytag shall make available to the Client such further know-how relating to the access and use of the Polytag Technology as described in clause 2.1 (“the Use”) as Polytag is at liberty to disclose and, in the opinion of Polytag, is reasonably necessary for the Use (“Further Know-How”).
3.2 The know-how supplied by Polytag pursuant to clause 3.1 shall be used by the Client only for the Use in the Territory and shall be subject to the provisions of clause 7.
3.3 Nothing in this agreement shall constitute any representation or warranty that the Polytag Technology or any other know-how supplied to the Client pursuant to clause 3.2 is accurate, up-to-date, complete, or relevant to the Patents or the Use of the Polytag Technology.
4. Quality control and marking
4.1 The Client shall, in exercising its rights under this agreement, comply with the specifications, standards and directions relating to the Polytag Technology as notified in writing by Polytag from time and time and with all applicable laws, regulations and codes of practice. This includes, without limitation, ensuring the Tags are applied to the packaging of Products correctly and in accordance with any Polytag specifications, with particular regard to the position of the Tags on any Products' packaging and the equipment and ink used to apply the Tags.
4.2 The Client shall, at its own expense:
4.2.1 as soon as reasonably practicable after the Client first applies the QR Tags and the UV Tags to packaging of Products in accordance with clause 2.1;
4.2.2 at least once in every 6 months; and
4.2.3 at any time at Polytag's request,
supply samples of Products with packaging to which the Client has applied the Tags.
4.3 The Client shall permit, and shall use its best endeavours to obtain permission for, Polytag at all reasonable times and on reasonable notice to enter any place used for the Use or storage of Tagged Products to inspect the methods in relation to the Use and storage of the Tagged Products.
4.4 The Client shall, upon Polytag's request, provide Polytag with details of any complaints it has received relating to the Polytag Technology together with reports on the manner in which such complaints are being, or have been, dealt with, and shall comply with any reasonable directions given by Polytag in respect of such complaints.
4.5 The Client warrants that it has or shall obtain any licences, authorisations, permissions, certificates, or consents as may be required for it to comply with its obligations under this agreement, including but without limitation any licences in relation to third-party intellectual property rights arising or subsisting in the packaging of Products to which the Tags shall be applied.
5. QR Tags linking
5.1 The Client may provide Polytag with the URLs of landing web pages to be linked to QR Tags (“Link”). Polytag shall use reasonable endeavours to encode any such Links to the applicable QR Tags, subject always to the provisions of this clause 5
5.2 The Client acknowledges that each QR Tag is a unique identifier of the specific, individual Product unit to which it is applied or attached, such that the packaging lifecycle of each specific, individual Product may be tracked using the Polytag Technology.
5.3 The Client acknowledges and agrees that when a QR Tag is scanned, the fact, time and locality of that scan is recorded by Polytag for the purposes of tracking the packaging lifecycle of the specific, individual Product unit to which the QR Tag relates and in accordance with any specification, instructions or guidance notified to the Client by Polytag from time to time. The data collected by Polytag is completely anonymous, Polytag does not collect any personal data relating to the individual who has scanned the QR Tag.
5.4 Polytag will share the data it collects from QR Tags with the Client via the Software subject to the terms of the Software Licence. If the Client chooses to link the data it receives from the QR Tags with personal data it holds and/or collects via the Links, the Client warrants and represents to Polytag that:
5.4.1 it has all necessary consents or other legal basis to do so lawfully; and
5.4.2 that it will carry out such collection and processing strictly in compliance with all statutory, legal, or regulatory obligations as may apply, which shall include, without limitation, the Data Protection Legislation.
5.5 The Client warrants that Polytag's use of a Links provided under clause 5.1 shall not cause Polytag to infringe the rights of any third party otherwise cause Polytag to be in breach of its obligations under this agreement nor any statutory, legal, or regulatory obligations as may apply. If Polytag reasonably believes that any Link provided by the Client does not comply with this clause 5.5, Polytag shall notify the Client of its belief and shall be under no obligation to encode the relevant Link.
5.6 The Client shall indemnify Polytag against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Polytag arising out of or in connection with any breach of the warranties in this clause 5.
6. Improvements
6.1 If either party makes, devises, discovers, or otherwise acquires rights in, any Improvement, such party shall, to the extent that it is not prohibited by law or by any obligation to any other person, promptly notify the other party in writing giving details of the Improvement, and shall, if the other party so requests, provide such further information as is reasonably required to be able to evaluate the Improvement effectively.
6.2 Information provided by Polytag to the Client under clause 6.1 shall be subject to the provisions of clause 7.
6.3 The Client shall grant to Polytag a non-exclusive, royalty-free, worldwide irrevocable licence (together with the right to grant sub-licences) to use in any manner any Improvement made, devised or discovered by the Client.
7. Confidentiality
7.1 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by Polytag or its Representatives (as defined below) to the Client and the Client's Representatives whether before or after the date of this agreement in connection with this agreement, including:
7.1.1 the terms of this agreement;
7.1.2 all other know-how or Further Know-how relating to the Tags or other Polytag Technology;
7.1.3 any information provided by the Licensor to the Licensee under clause 3.1 or clause 6.1; and
7.1.4 any information (whether or not technical) that would be regarded as confidential by a reasonable business person.
“Representatives” means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
7.2 The provisions of this clause shall not apply to any Confidential Information that:
7.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the Client or its Representatives in breach of this clause);
7.2.2 the Client can show with documentary evidence was available to it on a non- confidential basis before disclosure by Polytag;
7.2.3 was, is or becomes available to the Client on a non-confidential basis from a person who is not bound by a confidentiality agreement with Polytag or otherwise prohibited from disclosing the information to the Client; or
7.2.4 the parties agree in writing is not confidential or may be disclosed.
7.3 The Client shall keep Polytag's Confidential Information secret and confidential and shall not:
7.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (“Permitted Purpose”); or
7.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 7.
7.4 The Client may disclose the Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
7.4.1 it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
7.4.2 it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a party to this agreement,
and at all times, it is liable for the failure of any Representatives to comply with the obligations set out in this clause.
7.5 The Client 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 Polytag as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 7.5, it takes into account the reasonable requests of Polytag in relation to the content of such disclosure.
7.6 Polytag reserves all rights in the Confidential Information. No rights or obligations in respect of the Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
7.7 On termination or expiry of this agreement, the Client shall:
7.7.1 destroy or return to Polytag all documents and materials (and any copies) containing, reflecting, incorporating or based on the Confidential Information;
7.7.2 erase all the Confidential Information from its computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
7.7.3 certify in writing to Polytag that it has complied with the requirements of this clause, provided that it may retain documents and materials containing, reflecting, incorporating or based on the Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
7.8 The provisions of this clause 7 shall continue to apply after the expiry or earlier termination of this agreement.
8. Charges
8.1 The Client shall pay the Charges to Polytag in accordance with this clause 8.
8.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to Polytag at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
8.3 Polytag shall submit invoices for the Charges plus VAT if applicable to the Client monthly in advance.
8.4 The Client shall pay each invoice due and submitted to it by Polytag, within 14 days of receipt, to a bank account nominated in writing by Polytag.
8.5 If the Client fails to make any payment due to Polytag under this agreement by the due date for payment, then, without limiting Polytag's remedies under the agreement:
8.5.1 the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.5.2 Polytag may suspend access to the Polytag Technology until payment has been made in full.
8.6 All amounts due under this agreement from the Client to Polytag shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Existing arrangements
9.1 Nothing in this agreement shall restrict either party's right to continue to conduct its business activities or arrangements that existed on the commencement date of this agreement or that otherwise come into being outside the scope of this agreement.
9.2 Notwithstanding clause 9.1, the parties agree and acknowledge that if an Incident which requires urgent attention or resolution occurs, the parties shall use best endeavours to direct such Input as may be required to resolve that Incident in a timely manner.
9.3 Neither party shall be liable to the other party for any disruption to its existing business activities and arrangements as described in clause 9.1 which may be caused by the parties fulfilling their obligations under clause 9.2.
10. Intellectual Property
10.1 The parties acknowledge and agree that all Intellectual Property relating to the Polytag Technology, including the Tags and any Polytag specification is owned or licensed exclusively by Polytag.
10.2 Subject to clauses 10.1 and 10.3, all Background Intellectual Property is and shall remain the exclusive property of the party owning it (or, where applicable, the third party from whom its right to use the Background Intellectual Property has derived).
10.3 Notwithstanding the provisions of clause 10.2; the Client acknowledges and agrees that:
10.3.1 Polytag may capture, record, copy, use, modify, and process images and data relating the Products and the shape and configuration of the packaging of the Products for the purposes of implementing, improving, and using the Polytag Technology and any artificial intelligence technologies that may be created, owned or licensed to Polytag;
10.3.2 any Intellectual Property Rights that may arise pursuant to clause 10.3.1 shall vest in and be owned absolutely by Polytag; and
10.3.3 where any Intellectual Property Rights that may arise pursuant to clause 10.3.1 do not automatically vest in Polytag, the Client hereby assigns to Polytag by way of present assignment of future rights all such Intellectual Property Rights arising.
10.4 Subject to clause 10.6, any New Intellectual Property that arises or is developed by Polytag during the Term shall vest in and be owned exclusively by Polytag.
10.5 Any New Intellectual Property which does not automatically vest in Polytag because it arises or is developed by the parties jointly during the Term, the Client hereby assigns to Polytag by way of present assignment of future rights.
10.6 Any New Intellectual Property in any Improvements developed by the Client shall be subject to the provisions of clause 6.3.
10.7 If any such New Intellectual Property is registrable, Polytag shall be responsible for filing and execution of applications for registration in such countries as Polytag determines. Polytag shall be responsible for the maintenance and renewal of any such registrations in such countries, subject to the Client co-operating in the provision of all necessary assistance, information and instructions and each party bearing their own fees and costs, including reasonable agents and lawyers fees, in relation to such registrations, where applicable.
10.8 Subject to the provisions of this agreement, Polytag hereby grants to the Client a non- exclusive licence for the Term to grant to any party engaged by the Client for the application of any Tags to the packaging of Products a sub-licence in respect of Polytag's Intellectual Property strictly as required for the Use and all terms of such sub-licence being subject always to the prior written approval of Polytag.
10.9 The Client shall immediately give written notice to Polytag of any actual, threatened or suspected infringement of any Background Intellectual Property or New Intellectual Property, or any unauthorised use of any Polytag Technology.
10.10 Notwithstanding anything in this agreement, Polytag shall grant the Client a licence to use the Polytag Software on the terms set out in Schedule 3 (“Software Licence”).
11. Change control
11.1 The Client may, by giving written notice to Polytag at any time during the Term, request a change to the Use or part of the Polytag Technology, including any changes to the Products or the Territory.
11.2 Within 7 working days of receipt of such notice, Polytag shall prepare for the Client a written estimate of any sums due in respect of the requested change, and of any effect that the requested change would have on any other part of this agreement.
11.3 Within 14 working days of receipt of the written estimate referred to in clause 11.2, the Client shall inform Polytag in writing of whether or not the Client wishes the requested change to be made. If the change is required, Polytag shall not make the requested change until the parties have agreed and signed a written agreement (“Change Agreement”) specifying, in particular, any changes to the Polytag Technology, the Use, the Products, this agreement or sums payable under this agreement.
12. Warranties
12.1 Each party warrants that:
12.1.1 it has full power and authority to carry out the actions contemplated under this agreement; and
12.1.2 its entry into and performance under the terms of this agreement will not infringe the Intellectual Property Rights of any third party or cause it to be in breach of any obligations to a third party.
12.2 Except as expressly provided in this agreement, there are no conditions, warranties or other terms binding on the parties with respect to the actions contemplated by this agreement. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated into this agreement, whether by statute, common law or otherwise, is, to the extent that it is lawful to do so, excluded by this agreement.
13. Limitation and exclusion of liability
13.1 References to liability in this clause include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.3 Nothing in this agreement limits any liability that cannot legally be limited, including liability for:
13.3.1 death or personal injury caused by negligence;
13.3.2 fraud or fraudulent misrepresentation; and
13.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title or quiet possession).
13.4 Subject to clauses 13.2 and 13.3, the following types of loss are wholly excluded:
13.4.1 loss of profits;
13.4.2 loss of sales or business;
13.4.3 loss of agreements or contracts;
13.4.4 loss of anticipated savings;
13.4.5 loss of use or corruption of software, data or information;
13.4.6 loss of or damage to goodwill; and
13.4.7 indirect and consequential loss.
13.5 Subject to clauses 13.2, 13.3 and 13.4, Polytag's liability to the Client in connection with this agreement shall not exceed an amount equal to the greater of £2,000 or the total sums paid to Polytag by the Client in the 6 months prior to the date the liability arose.
14. Termination
14.1 Without affecting any other right or remedy available to it, Polytag may terminate this agreement with immediate effect by giving written notice to the Client if:
14.1.1 the Client 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 to make such payment;
14.1.2 the Client commits a material breach of any term of this agreement and (if such breach is remediable) fails to take steps to remedy that breach within a period of 14 days after being notified to do so;
14.1.3 the Client takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 14.1.3;
14.1.4 the Client suspends or ceases, or threatens to suspend or cease, carrying on business; or
14.1.5 there is a change of control of the Client within the meaning of section 1124 of the Corporation Tax Act 2010).
15. Consequences of termination
15.1 On expiry or termination of this agreement for any reason and subject to any express provisions set out elsewhere in this agreement:
15.1.1 all outstanding sums payable by the Client to Polytag shall immediately become due and payable;
15.1.2 all rights and licences granted pursuant to this agreement shall cease;
15.1.3 the Client shall cease all exploitation of the Patents, the Further Know-How provided by Polytag to the Client, except insofar as such Further Know-How ceases or has ceased to be confidential, unless this is or was as a consequence of the default of the Client;
15.1.4 the Client shall co-operate with Polytag in the cancellation of any licences registered pursuant to this agreement and shall execute such documents and do all acts and things as may be necessary to effect such cancellation; and
15.1.5 within 90 days after the date of termination the Client shall promptly destroy or, if Polytag shall so elect, deliver to Polytag or any other person designated by Polytag, at the Client's expense, all Tagged Products that it has not disposed of within 60 days after the date of termination.
15.2 On expiry or termination of this agreement for any reason, the Client shall for a period of 60 days after the date of termination have the right to dispose of all stocks of packaging of Tagged Products in its possession and all packaging of Tagged Products in the course of manufacture at the date of termination, provided that any sums payable under the provisions of clause 8 is paid to Polytag within 60 days after termination.
15.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
15.4 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
16. Notices
16.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
16.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
16.1.2 sent by email to the addresses provided during the sign-up process (or an address substituted in writing by the party to be served);
16.2 Any notice shall be deemed to have been received:
16.2.1 if delivered by hand, at the time the notice is left at the proper address;
16.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
16.2.3 if sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17. General
17.1 Assignment and other dealings. Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
17.2 No partnership or agency. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
17.3 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.5 Severance. 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.
17.6 Entire agreement. This agreement, the schedules and the documents annexed as appendices to this agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into this agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) (“Representation”) other than as expressly set out in this agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement. Nothing in this clause shall limit or exclude any liability for fraud.
17.7 Survival. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
17.8 Further assurance. At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement.
17.9 Third party rights. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
17.10 Governing law. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England.
17.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
Definitions and Interpretation
1.1 Definitions:
Background Intellectual Property
(i) in relation to Polytag, any Intellectual Property, other than New Intellectual Property, that is used in connection with this agreement, and
(ii) in relation to the Client, any GTIN and/or any Intellectual Property in or relating to a Product or its packaging.
Business Day
a day other than a Saturday, Sunday or public holiday in England, when banks in London are usually open for business.
Charges
means the charges set by Polytag from time to time during the Term and payable pursuant to clause 8.
Data Protection Legislation
means all legislation relating to personal data and privacy; including: the Data Protection Act 2018, UK GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications), and any other data protection and/or privacy legislation applicable in the UK from time to time, (each as amended, updated, replaced or re-enacted from time to time and including all subordinate legislation made from time to time under or giving effect to the same).
GTIN
means a global trade item number and associated barcode.
Improvement
any improvement, enhancement or modification to the Polytag Technology, the Polytag Data or the Tags or the method of the application of the Tags.
Incident
an event, disruption or occurrence in relation to the Polytag Technology or any part of the same which could potentially pose or actually poses a risk to the functionality or security of any system or part of the Polytag Technology.
Input
in relation to a party, the services, resources, workforce or other tangibles or intangibles that such party provides in connection with this agreement.
Intellectual Property
patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), topography rights, image rights, rights in personality and similar rights, and all other intellectual property rights, including in the Polytag Technology and any Improvements, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Normal Business Hours
8.00 am to 6.00 pm local UK time, each Business Day.
Patents
the patents and patent applications, short particulars of which are set out in Schedule 1 and granted patents issuing from such applications and any patents and patent applications that may be notified in writing by the Licensor to the Licensee from time to time.
Polytag Data
all data and database rights created, captured or generated during, or as a consequence of, the use of the Polytag Technology or which is otherwise derived from any part of the Polytag Technology.
Polytag Software
the latest publicly available version of the software, developed by Polytag for use in conjunction with the Polytag Technology and licensed separately.
Polytag Technology
the Patents, the Tags, all inventions, designs, information, know-how, specifications, formulae, data, processes, methods, techniques, hardware, and other technology in connection with the development, use and implementation of Polytag's packaging circular economy system.
Product(s)
means the product(s) sold by the Client as at the Start Date, as may be amended in writing between the parties from time to time during the Term.
QR Tag
means a quick response code representing a unique alphanumeric code supplied by Polytag that may be applied and assigned to each unit of packaging of the Products.
New Intellectual Property
any Intellectual Property that arises or is obtained or developed by, or by a contractor on behalf of, either party in the course of the use of the Polytag Technology or the Polytag Data or is otherwise derived from, or incorporates, all or any part of the Polytag Technology or the Polytag Data.
Software Licence
has the meaning given to it in Clause 10.10;
Tag
means a QR Tag and/or the UV Tag.
Territory
means the United Kingdom.
UK GDPR
has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
UV Tag
means the data matrix numeric barcode applied and assigned to the packaging of a specific product line.
1.2 Clause and schedule headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.7 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.9 A reference to writing or written includes email but not fax.
1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11 A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied from time to time.
1.12 References to clauses and schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.13 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Software Licence
1. Licence
1.1 In consideration of the Charges paid by the Licensee to Polytag pursuant to the Polytag Technology Licence, Polytag grants to the Licensee a non-exclusive licence for the Term to use the Software for the Purpose only.
1.2 In relation to scope of use:
1.2.1 for the purposes of clause 1.1, use of the Software shall be restricted to use of the Software in object code form for the Purpose.
1.2.2 the Licensee may not use the Software other than as specified in clause 1.2.1 without the prior written consent of Polytag.
1.2.3 except as expressly stated in this clause 1, the Licensee has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
1.3 In relation to the scope of use set out in clause 1.1 and clause 1.2, the Licensee shall not and shall not assist any third party to:
1.3.1 remove any proprietary notices from the Software or any Derived Data;
1.3.2 use the Software or any Derived Data in any manner or for any purpose that infringes, misappropriates, or otherwise infringes any Intellectual Property Right or other right of any person, or that violates any applicable law;
1.3.3 design or permit any Third Party Product to disable, override, or otherwise interfere with the Software including, without limitation, any Polytag-implemented communications to end users, consent screens, user settings, alerts, warning, or the like; or
1.3.4 replicate the Software.
1.4 The Licensee shall not:
1.4.1 sub-license, assign or novate the benefit or burden of this agreement in whole or in part; or
1.4.2 deal in any other manner with any or all of its rights and obligations under this agreement,
without the prior written consent of Polytag.
1.5 Polytag may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this agreement.
1.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
1.7 The Licensee shall
1.7.1 notify Polytag as soon as it becomes aware of any unauthorised use of the Software and/or Derived Data by any person;
1.7.2 pay, for broadening the scope of the licences granted under this agreement to cover the unauthorised use, an amount equal to the fees which Polytag would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 8.5.1 of the Polytag Technology Licence from such date to the date of payment.
1.8 The Licensee shall permit Polytag to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being used, and have access to any records kept in connection with this agreement, for the purposes of ensuring that the Licensee is complying with the terms of this agreement, provided that Polytag provides reasonable advance notice to the Licensee of such inspections, which shall take place at reasonable times.
2. Confidentiality and publicity
2.1 Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
2.2 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.
3. Supplier's warranties
3.1 The Software is provided on an “as is” basis and Polytag does not warrant that the use of the Software will be uninterrupted or error-free.
3.2 The Licensee acknowledges that the Software is standardised for industry and has not been developed to meet the individual requirements of the Licensee.
3.3 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
4. Limitation of liability
4.1 Except as expressly stated in clause 4.2:
4.1.1 Polytag shall not in any circumstances have any liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
4.1.1.1 special damage even if Polytag was aware of the circumstances in which such special damage could arise;
4.1.1.2 loss of profits;
4.1.1.3 loss of anticipated savings;
4.1.1.4 loss of business opportunity;
4.1.1.5 loss of goodwill;
4.1.1.6 loss or corruption of data,
provided that this clause 4.1.1 shall not prevent claims for loss of or damage to the Licensee's tangible property that fall within the terms of clause 4.1.2 or any other claims for direct financial loss that are not excluded by any of the above listed categories of this clause 4.1.1;
4.1.2 the total liability of Polytag, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed an amount equal to the greater of £2,000 or the total Charges paid to Polytag by the Licensee in the 6 months prior to the date the liability arose; and
4.1.3 the Licensee agrees that, in entering into this agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this agreement) that it shall have no remedy in respect of such representations and (in either case) Polytag shall have no liability in any circumstances otherwise than in accordance with the express terms of this agreement.
4.2 The exclusions in clause 3.3 and clause 4.1 shall apply to the fullest extent permissible at law, but Polytag does not exclude liability for:
4.2.1 death or personal injury caused by the negligence of Polytag, its officers, employees, contractors or agents;
4.2.2 fraud or fraudulent misrepresentation;
4.2.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
4.2.4 any other liability which may not be excluded by law.
4.3 The Licensee acknowledges that:
4.3.1 it is exclusively responsible for:
4.3.1.1 ensuring that the staff of the Licensee are trained appropriately in the proper use and operation of the Software;
4.3.1.2 making regular backup copies of its data to ensure recovery of its data if the Software malfunctions; and
4.3.1.3 the selection, use of and results obtained from any other programs, equipment, materials or services used in conjunction with the Software.
4.4 All references to “Polytag” in this clause 4 shall, for the purposes of this clause, be treated as including all employees, subcontractors and suppliers of Polytag, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.
5. Intellectual property rights
5.1 The Licensee acknowledges that all Intellectual Property Rights in the Software belong to Polytag and the Licensee shall have no rights in or to the Software other than the right to use it in accordance with the terms of this agreement.
5.2 The Licensee acknowledges that it has no right to have access to the Software in source code form.
6. Data protection
6.1 Both parties will comply with all applicable Data Protection Legislation.
6.2 If either party becomes aware of any breach the Data Protection Legislation, it will notify the other party as soon as practicably possible and shall aim to notify within 48 hours and the parties shall work together to address any such breach.
6.3 Where applicable, Polytag will share the data it collects using the Polytag Technology with the Licensee via the Software subject to the terms of this agreement. If the Licensee chooses to link any such data it receives with personal data it holds and/or collects by means other than via the Software, the Licensee warrants and represents to Polytag that:
• it has all necessary consents or other legal basis to do so lawfully; and
• that it will carry out such collection and processing strictly in compliance with all statutory, legal or regulatory obligations as may apply, which shall include, without limitation, the Data Protection Legislation.
6.4 The Licensee shall indemnify Polytag against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Polytag arising out of or in connection with any breach of the warranties in clause 6.3.
7. Termination
7.1 Without affecting any other right or remedy available to it, Polytag may terminate this agreement with immediate effect by giving written notice to the Licensee if:
7.1.1 the Polytag Technology Licence is terminated for any reason;
7.1.2 the Licensee commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
7.1.3 the Licensee takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 14.1.3;
7.1.4 the Licensee suspends or ceases, or threatens to suspend or cease, carrying on business; or
7.1.5 there is a change of control of the Licensee within the meaning of section 1124 of the Corporation Tax Act 2010).
7.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
7.3 On termination for any reason:
7.3.1 all rights granted to the Licensee under this agreement shall cease;
7.3.2 the Licensee shall cease all activities authorised by this agreement; and
7.3.3 the Licensee shall immediately destroy or return to Polytag (at Polytag's option) all copies of any confidential information belonging to or obtained from Polytag and the Software then in its possession, custody or control and, in the case of destruction, certify to Polytag that it has done so.
7.4 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
8. General Terms
8.1 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.
8.2 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.
8.3 Entire agreement. This agreement, the schedules and the documents annexed as appendices to this agreement or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into this agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) (“Representation”) other than as expressly set out in this agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement. Nothing in this clause shall limit or exclude any liability for fraud.
8.4 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
8.5 Severance. 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. If any provision or part-provision of this agreement is thus deemed deleted, 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.
8.6 Counterparts. This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
8.7 Third-party rights. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
8.8 No partnership or agency. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
8.9 Force majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
8.10 Notices.
8.10.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
8.10.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
8.10.1.2 sent by email to the addresses provided during the sign-up process (or an address substituted in writing by the party to be served);
8.10.2 Any notice shall be deemed to have been received:
8.10.2.1 if delivered by hand, at the time the notice is left at the proper address;
8.10.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
8.10.2.3 if sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
8.10.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
8.11 Governing law. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England.
8.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
Definitions and Interpretation
1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges
has the meaning given to it in the Polytag Technology Licence.
Data Protection Legislation
has the meaning given to it in the Polytag Technology Licence.
Derived Data
data received from the Software and/or data that is created by the Licensee, now or in future, which has benefited from, derived from, relied on or made any use of, the Software or data received from the Software (including, without limitation, where the Licensee has created data by modifying, re-formatting, analysing or performing searches, look ups and/or enquiries using the Software or data received from the Software).
Intellectual Property Rights
has the meaning given to it in the Polytag Technology Licence.
Licensee
means the Client (as such term is defined in the Polytag Technology Licence).
Polytag
Polytag Limited incorporated and registered in England and Wales with company number 11188703 whose registered office is at Unit 13a Deeside Industrial Estate (Zone 1 Central), Drome Road, Deeside, Flintshire, Wales, CH5 2LR.
Polytag Technology
has the meaning given to it in the Polytag Technology Licence.
Polytag Technology Licence
means the Polytag Technology Licence Agreement to which this Software Licence is attached.
Purpose
access to the dashboard made available to the Client by Polytag allowing the Client to view statistics relating to:
• interactions by consumers withs Tags; and
• recycling.
QR Tag
has the meaning given to it in the Polytag Technology Licence.
Tag
has the meaning given to it in the Polytag Technology Licence.
Term
has the meaning given to it in the Polytag Technology Licence.
Third Party Product
any hardware or software developed or used by the Licensee in the course of its business.
UV Tag
has the meaning given to it in the Polytag Technology Licence.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement. References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule
1.3 Unless the context otherwise requires:
1.3.1 words in the singular shall include the plural and in the plural shall include the singular;
1.3.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.3.3 a reference to one gender shall include a reference to the other genders; and
1.3.4 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.