Scantrust: e-label Terms of Service

OCTOBER 1, 2023

The following Scantrust Terms of Service (this “Agreement”) contain the terms and conditions that govern Customer access to and use of the Platform and is an agreement between Scantrust SA (“Scantrust”) and you or the entity you represent (“Customer”). This Agreement takes effect when you click the “I agree to Scantrust Terms of Service” button or check box presented with these terms or, if earlier, when you use the Platform.

Scantrust reserves the right to change or revise these Terms of Service at any time. The date indicated in the title shows the latest applicable version. Customer’s express acceptance of any changes or revision to these Terms of Service will occur by clicking on the button “I agree to Scantrust Terms of Service“.

 

1. Scantrust Platform.  

  

A. Subject to this Agreement, Customer may use the Platform for its own business purposes during each Subscription Term (“Permitted Use”). The “Platform” means Scantrust’s proprietary multi-portal cloud-based service, which enables Customer to generate, and utilize identifiers on its products, to upload product and other Customer information, as identified in the relevant order. This includes the right to use the Platform and Documentation as part of Customer’s Permitted Use. “Documentation” means the standard manuals and technical information provided to Customer by Scantrust either in print or electronic form, including access and use instructions for the Platform. 

B. Users. Customer registered email(s) entered into in the order form is the authorized end-user with access to use the Platform (“Users”). Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Platform and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify Scantrust upon learning of any compromise of User accounts or credentials.

B(1). Enterprise Customers Only: Customer “Admin” (one or more individuals authorized by Customer) may permit a certain number of users (as set forth in the order, or if none set forth up to a maximum of 4) to use the Platform on its behalf (“Users”). Users may include (i) employees, advisors and contractors of Customer and its Affiliates and (ii) others if permitted in this Agreement, the Documentation or an order.

C. Use of Customer Data. Subject to this Agreement, Scantrust will access and use Customer Data solely to provide and maintain the Platform and maintenance activities under this Agreement (Enterprise Customers Only: including for Professional Services and support activities). Use of Customer Data includes sharing Customer Data as Customer directs through the Platform, but Scantrust will not otherwise disclose Customer Data to third parties except as permitted in this Agreement. “Customer Data” means any data, content, end-users input, QR code scans, IP address or materials that Customer (including its Users and end-users) submits to the Platform.

D. Security. Scantrust will implement and maintain appropriate administrative, physical, technical and organizational measures including disaster recovery procedures, designed to prevent unauthorized access, use, alteration or disclosure of Customer Data.  Scantrust will maintain compliance audit documentation and will make available a copy to Customer upon prior written request for Customer’s use solely for its internal compliance requirements and any governmental or regulatory authority inspections.  

E. Data Protection Agreement. The parties will adhere to the terms of Scantrust Data Protection Agreement.

F. Usage Data. Scantrust may collect Usage Data and use it to operate, improve and support the Platform and for other lawful business purposes, including benchmarking and reports. However, Scantrust will not disclose Usage Data externally unless it is (a) deidentified so that it does not identify Customer, its Users or any other person and (b) aggregated with data across other customers. “Usage Data” means Scantrust’s technical logs, QR code scan records, data and learnings about Customer’s use of the Platform, but excluding other Customer Data.  

G. Uptime. The Platform is hosted on Amazon Web Services in Ireland (“AWS”).  Scantrust will use reasonable commercial efforts to meet industry standard for up-time, subject to the availability of AWS or maintenance of the Platform (such as repair, update, improvement or for security purpose).

H. Support. After the implementation date, Scantrust will provide an online help desk available via the Platform and support via email (support@scantrust.com) with response time within 2 business days for Enterprise Customers (unless specified otherwise in the order)  and 3 business days for all other customers during the following business hours:

2. Use of the Platform.

 

A. Compliance. Customer (a) will comply with applicable Scantrust use guidelines and (b) represents and warrants that it has all rights necessary to use Customer Data with the Platform and grant Scantrust the rights to Customer Data specified in this Agreement, without violating third-party intellectual property, privacy or other rights. Between the parties, Customer is responsible for the content and accuracy of Customer Data.

B. Restrictions.  Customer will not and will not permit anyone else to (i) sell, sublicense, distribute or rent the Platform (in whole or in part), grant non-Users access to the Platform; (ii) copy, modify, disassemble, decompile, reverse engineer, create derivative works of the Platform or remove proprietary notice from the Platform;  (iii) use the Platform to develop a product that competes with the  Platform or (iv) breach, disable, tamper with, or develop or use (or attempt) any workaround for any security measure provided by any Scantrust service or product. 

C. Quality. Customer will be responsible for the quality of the QR-codes, specifically with respect to the quality of the printing and the size of the QR-codes, ensuring appropriate readability by end-users. Scantrust provides guidelines to illustrate good practice (see What To Consider When Printing And Placing QR Codes – Best Practices).

D. Suspension of Access.   Scantrust may at any time suspend Customer’s or any User’s access to the Platform and related services if (i) Customer’s account is 30 days or more overdue, (ii) Customer is in breach of Section 1 (Scantrust Platform) or (iii) Customer’s use of the Platform risks material harm to the Platform or others.  

E. Enterprise Customers Only: Agreement with Packaging Vendors.  If Customer requires to use the Platform interfacing with a packaging vendor (a “Converter”), Customer hereby authorizes Scantrust to allow interfacing between the Platform and the Converter for the purpose of transmitting identifier information necessary for the printing of printable identifiers, and to disclose Customer Confidential Information to the Converter as necessary for that purpose.  Customer shall be solely responsible for acts and omissions of the Converter.

 

2.Bis. Enterprise Customers Only: Professional Services. Scantrust will perform Professional Services as set forth in the order or SOW under which it will deliver to Customer the performance,  other deliverables and/or training materials (each a “Deliverable”) in relation to the Platform (the “Professional Services”).  

A. Customer Responsibilities. Customer shall (i) designate a representative for the duration of the Professional Services and provide the resources necessary to allow for the timely provision of Professional Services; and (ii) obtain such third-party licenses and approvals as are necessary for Scantrust’s performance of the Professional Services. Customer acknowledges that Scantrust’s ability to perform Professional Services will be contingent to Scantrust’s receipt of timely, accurate and complete data, information, feedback, assistance, specifications and/or payments from Customer and its agents, and that Scantrust shall not be liable for any delay or failure to perform its obligations hereunder resulting from Customer’s or its agents’ failure to comply with its responsibilities. 

B. Completion. Scantrust will notify Customer by email upon completion of the Professional Services. Professional Services shall be deemed accepted unless Customer, acting reasonably, provides written notice of non-acceptance by email within 5 business days following such notification, which notice shall include detailed explanations of the tasks that have not been correctly completed.  Scantrust shall work to correct any non-conformities and, upon completion, notify Customer thereof for reconsideration in compliance with this paragraph.  The date of acceptance of Professional Services for the first SOW shall be the “UAT Date.” 

C. Change Order. If Customer or Scantrust requests a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Professional Services, the party seeking the change shall propose the changes by written notice.  Within 2 business days of receipt of the written notice, each party’s project leads shall meet, either in person or via telephone conference, to discuss and agree upon next steps for the proposed changes.  Scantrust will prepare a change order describing the proposed changes to the SOW and the applicable change in timelines, fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties.  Executed Change Orders shall be deemed part of, and subject to, this Agreement.

 

3. Fees and Payment.

A. Fees. Other than use of the Platform within the free plan, Customer will pay the fees set forth in the applicable order (“Fees”). All Fees are nonrefundable unless otherwise specified. Scantrust may, at its reasonable discretion, increase Fees no more than once per 12 month period, provided such increase will not exceed the reference index set forth below. Reference index will be (i) for EUR, the ECB Harmonised Index of Consumer Prices (HCIP), (ii) for USD, the US Consumer Price Index (CPI) and (iii) for CHF, the Swiss Consumer Price Index (CPI). Enterprise Customers only: Customer will pay the fees set forth in the applicable Scantrust quote (“Fees”), which are due within 30 days after the invoice date.  Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by law, whichever is less. 

B. Payment Dispute.  In the event Customer disputes any invoiced Fees in good faith, it will notify Scantrust in writing and the parties will cooperate in good faith to resolve the dispute within 15 days.  Customer will promptly reimburse Scantrust for any cost or expense incurred in connection with any collection efforts undertaken by Scantrust in connection with any past due amount owed under this Agreement. 

C. Taxes.  Fees and expenses are exclusive of Taxes and Customer will be responsible for applicable Taxes.  “Taxes” means any sales, use, value-added, withholding and other taxes, export and import fees, customs duties and similar charges applicable to this Agreement that are imposed by any government or other authority, other than taxes on Scantrust’s income.

 

4. Warranty.

A. Mutual Warranties.  Each party represents and warrants that: (i) it has the legal power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

B. Scantrust Warranties.  Scantrust warrants that the Platform will perform substantially in accordance with the Documentation. Scantrust will use reasonable efforts to correct a verified breach of such warranties reported by Customer. If Scantrust fails to do so within 30 days after such Customer report,  Customer’s sole and exclusive remedy and Scantrust’s entire liability for a breach of this warranty shall be for Scantrust to use commercially reasonable efforts to modify the Platform to substantially achieve in all respects the functionality as set forth in the Documentation and if Scantrust is unable to restore such functionality within a reasonable time, either party shall be entitled to terminate this Agreement, in which case Scantrust shall refund Customer Fees pre-paid on a pro rata basis. 

C. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SCANTRUST WARRANTIES IN THIS SECTION DO NOT APPLY TO THIRD PARTY PLATFORM OR MISUSE OR UNAUTHORIZED MODIFICATIONS OF THE PLATFORM.

 

5. Confidential Information.

A. Definition. “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement, in any form, which is identified by the Disclosing Party as “confidential” or “proprietary”, or that should be understood reasonably as confidential or proprietary given its nature and the circumstances of its disclosure. The following information will be considered Confidential Information: (i) the Platform; (ii) content and Customer Data; and (iii) the terms of this Agreement including pricing.  These confidentiality obligations will not apply to information that, as shown by the Receiving Party’s records, was: (w) already known to Receiving Party at the time of disclosure by the Disclosing Party; (x) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (y) is, or through no fault of the Receiving Party has become, generally available to the public; or (z) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.

B. Protection. The Receiving Party will protect the Confidential Information of the Disclosing Party using the same precautions uses for its own similar information and no less than a reasonable standard of care.  The Receiving Party will only use the Confidential Information of the Disclosing Party: (i) to exercise its rights and perform its obligations under this Agreement; or (ii) as otherwise required by law.

C. Permitted Disclosure.  The Receiving Party may disclose Confidential Information:  (i) as compelled by law provided that to the extent legally permissible the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party seeks to contest such disclosure; (ii) in confidence, to employees, agents, legal counsel, accountants, banks, and financing sources and other advisors having a legitimate need to know, provided it remains responsible for their compliance with this Section and they are bound to confidentiality obligations no less protective than this Section; and (iii) in connection with the enforcement of this Agreement or rights under this Agreement.  

D. Equitable Relief.  Breach of this Section may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section, the Disclosing Party is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.

 

6. Intellectual Property.

A. Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Scantrust’s express rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Data and Customer materials provided to Scantrust. Except for Customer’s express rights in this Agreement, as between the parties, Scantrust and its licensors retain all intellectual property and other rights in the Platform (Enterprise Customers Only: including Professional Services deliverables, if any) and related Scantrust technology. 

B. Feedback. If Customer gives Scantrust feedback regarding improvement or operation of the Platform or maintenance activities (Enterprise Customers Only: including Professional Services and support activities), Scantrust may use the feedback without restriction or obligation. All feedback is provided “AS IS” and Scantrust will not publicly identify Customer as the source of feedback without Customer’s permission.

 

7. Term and Termination.

A. Subscription Terms. Each Subscription Term will last for the period stated in the applicable quote or order. Each Subscription Term will renew for successive periods unless (i) the parties agree on a different renewal order or (ii) either party notifies the other of non-renewal prior to the end of the current Subscription Term (Enterprise Customers Only: giving Scantrust at least 30 days prior written notice), including via the Platform settings for Customer’s convenience. 

B. Term of Agreement. This Agreement starts on the subscription date and continues until the end of all Subscription Terms, unless sooner terminated in accordance with its terms. If no Subscription Term is in effect, either party may terminate this Agreement for any or no reason with notice to the other party. 

C. Termination.  Either party may terminate this Agreement (including all Subscription Terms) for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured after the expiration of such period; or (ii) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.    

D. Effect of Termination; Access after Termination. Upon expiration or termination of this Agreement, all rights and licenses granted herein shall expire and Customer’s account be deactivated; provided, however, that unless Scantrust has terminated this Agreement for Customer’s breach and provided that Customer has paid all amounts due to Scantrust: (i) Scantrust will enable Customer to access the Platform to retrieve content and Customer Data of the 3 most recently created QR codes for a period of 1 month; (ii) Customer will have the option to access Scantrust then applicable free plan, if any; and (iii) Customer will also have the option to purchase from Scantrust at its then-current rates a maintenance plan to maintain and retrieve content and Customer Data for other QR codes by contacting Scantrust at support@scantrust.com.

D(1) Enterprise customers only: 

(i) Scantrust shall enable Customer to access the Platform to retrieve Customer Data for a period of 1 month following expiration or termination of this Agreement and, where requested by Customer, facilitate extraction of Customer Data from the Platform during such period; and 

(ii) If Customer has used a Scantrust URL, Customer may downgrade to the lowest subscription available for unlimited e-labels whereby its Users scanning identifiers for product information shall be directed to a URL determined by Customer or e-labels shall be kept active. 

(iii) if Customer has used a URL hosted by Customer, Scantrust shall make a procedure available through www.devportal.scantrust.com which shall provide guidance regarding how to transfer the redirect free of charge.

E. Within 60 days after termination or expiration of this Agreement, Scantrust will delete Customer Data and each party will delete any Confidential Information of the other in its possession or control.  Nonetheless, Scantrust may retain Customer Data or Confidential Information in accordance with its standard backup or record retention policies or as required by law. The following Sections will survive expiration or termination of this Agreement: 1.f (Usage Data), 3. (Fees and Payments), 5. (Confidentiality), 6. (Intellectual Property), 7.d. and d(1) (Effect of Termination. Access After Termination), 8. (Indemnification), 9. (Limitation of Liability) and 10. (Miscellaneous).

 

8. Indemnification.

A. Indemnification by Scantrust. Subject to Subsections c. and d. below, Scantrust, at its own cost, will defend Customer from and against any third-party claim that the Platform infringes or misappropriates a third party’s intellectual property rights and will indemnify and hold Customer harmless from and against the resulting damages awarded against Customer or agreed to in settlement. Scantrust obligations in this Subsection do not apply to claims resulting from: (i) any unauthorized use, reproduction, or distribution of the Platform or identifiers; (or (ii) any modification or alteration of the Platform or identifiers by anyone other than Scantrust or Scantrust’s agents. In the event of a Claim pursuant to this Subsection, Scantrust may (at Scantrust’s option and expense): (x) obtain for Customer the right to continue using the Platform; (y) modify the Platform to make it non-infringing; or (z) if neither of the foregoing are commercially reasonable (as determined by Scantrust in its sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to Scantrust for the corresponding unused period of the Term.  

B. Indemnification by Customer. Subject to Subsection c. and d. below, Customer, at its own cost, will defend Scantrust, from and against any third-party claim arising from Customer’s breach of this Agreement.  and will indemnify and hold harmless Scantrust from and against the resulting damages finally awarded against Scantrust or agreed to in settlement. 

C. Indemnification Process. As a condition of receiving an indemnification under this Agreement, the party seeking indemnification hereunder (the “Indemnified Party”) will provide the other party (the “Indemnifying Party”) with: (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim; and (iii) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request. The Indemnified Party may participate in a claim with its own counsel at its own expense.

D. Exclusive Remedy. This Section states the Indemnified Party’s sole and exclusive remedy and the Indemnifying Party’s sole liability in relation thereof.

  

9. Limitation of Liability.  

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR LOSS OF USE OR DATA) HOWEVER CAUSED, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES’ TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO SCANTRUST FOR THE USE OF THE PLATFORM IN THE 12 MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. 

 

10. Miscellaneous.

A. Communication. During the Subscription Term, Scantrust may indicate to third parties that Customer is using the Platform and Scantrust may use Customer as a reference and include Customer’s name and logo on lists and related promotional materials, including advertising. Any Customer logo or trademark usage will be in accordance with Customer’s trademark and logo usage guidelines as provided to Scantrust.  Any press releases relating to the use of the Platform will be subject to prior written approval by both parties.  

B. Open Source. The Platform accessed by Customer may include third-party open source software (“Open Source”) as listed in the Documentation or by Scantrust upon request. If Customer elects to use the Open Source on a stand-alone basis, that use is subject to the applicable Open Source license and not this Agreement. 

C. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for payments of money) on account of strikes, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, labor conditions, or any other cause which is beyond the reasonable control of such party. 

D. Independent Contractor. Nothing contained in or performed pursuant to this Agreement shall be construed as creating a partnership, general agency, or joint venture, and except as otherwise expressly provided in this Agreement, no party shall become bound by any representation, act, or omission of another party. 

E. Assignment. Neither the Agreement nor the licenses granted hereunder are assignable or transferable by a party, whether by operation of law or otherwise, without the prior written consent of the other party and any attempt to do so shall be void, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or shares. Any non-permitted assignment is void.  

F. Notices. Any notice or other communication under this Agreement given by any party to any other party will be in writing and will be effective upon delivery as follows: (i) if to Customer, when delivered via overnight courier, to the address specified in an order; or when sent via email to the email address specified in an order or otherwise on record for Customer; and (ii) if to Scantrust, when sent via overnight courier to the address of Scantrust first set forth above: Attention CEO.  

G. Order of Precedence. In the event of a conflict between the Terms of Service and any other document, the Terms of Service shall prevail.  This Agreement may not be amended or modified except as specified herein. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order or other similar document issued by Customer. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.  If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.    

H. Applicable Law and Jurisdiction. The laws of Switzerland (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. All disputes arising out of or in connection with the present contract shall be subject to the exclusive jurisdiction of the courts of Lausanne, Switzerland, subject to the right of appeal to the Federal Tribunal.  

I. Entire Agreement. This Agreement, together with other documents referred to herein, all of which are hereby incorporated by reference, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.