The following definitions apply to the Agreement
Account - your personal account on the App or Website.
Affiliate - with respect to either Party, any company which (i) a Party controls; or (ii) controls a Party; or (iii) is controlled by the same company which controls a Party. For these purposes, “control” means a direct or indirect ownership interest of 50% or more of the issued voting shares or stock or having the right to vote to appoint directors of the relevant company.
App - the application for machine analytics services provided by Machine Max.
Applicable Law - includes (i) statutes (including regulations enacted under those statutes); (ii) national, regional, provincial, state, municipal, or local laws; (iii) judgments and orders of courts of competent jurisdiction; (iv) rules, regulations, and orders issued by government agencies, authorities, and other regulatory bodies; and (v) regulatory approvals, permits, licences, approvals, and authorisations.
Claim - any legal claims, actions or proceedings against one of us, whether threatened or actual, whether by a third party or the other party to this Agreement.
Commencement Date - the date provided by us to you from which we will begin to provide the Services.
Delivery Date - the date provided by us to you on which delivery of the Sensor Package is due to be made.
Dispute - any dispute, controversy or claim arising out of or in connection with this Agreement or its subject matter or formation, whether in tort, contract, under statute or otherwise, including any question regarding its existence, validity, interpretation, breach or termination, and including any non-contractual claim.
Gateway - the communication hub that facilitates the transmission of activity data from the Sensor to the Machine Max backend via LoRa protocol.
Gross Negligence - means any act or failure to act (whether sole, joint or concurrent) which seriously and substantially deviates from a diligent course of action or which is in reckless disregard of or wanton indifference of a risk known, or so obvious that it should have been known, and so great as to cause harm to people, property or the environment.
Force Majeure Event - any event that neither of us can control and that stops or delays one of us from performing its obligations under this Agreement, including: (i) natural event including a flood, a storm, lightning, a drought, an earthquake, or seismic activity; (ii) an epidemic or a pandemic; (iii) a terrorist attack, civil war, civil commotion or riots, war, the threat of war, preparation for war, an armed conflict, an imposition of sanctions, an embargo or a breaking-off of diplomatic relations; (iv) any law made or any action or sanction taken by a government or public authority, including not granting or revoking a licence or a consent; (v) collapsing buildings, a fire, explosion or accident; (vi) any labour or trade dispute, a strike, industrial action or lockouts; or (vii) failure or delay caused by any internet service provider, User application, device, or system, or third party services, or any third party cyber-attack, including a denial of service attack.
Initial Term - period of 3 months commencing on the Commencement Date.
Insolvency Event - means any of the following events that occurs where one of us (i) stops or suspends, or threatens to stop or suspend, payment of all or a material part of its debts, or is unable to pay its debts as they fall due; (ii) ceases or threatens to cease to carry on all or a substantial part of its business; (iii) begins negotiations for, starts any proceedings concerning, proposes or makes any agreement for the reorganisation, compromise, deferral, or general assignment of, all or substantially all of its debts; (iv) makes or proposes an arrangement for the benefit of some or all of its creditors of all or substantially all of its debts; (v) takes any step with a view to the administration, winding up, or bankruptcy; (vi) is subject to an event in which all or substantially all of its assets are subject to any steps taken to enforce security over those assets or to levy execution or similar process, including the appointment of a receiver, trustee in bankruptcy, or similar officer; or (vii) is subject to any event under Applicable Law that has an analogous or equivalent effect to any of the Insolvency Events listed above.
Intellectual Property Rights - all patents, copyright, database rights, design rights, rights in confidential information, including know-how and trade secrets, inventions, moral rights, trade marks and service marks (all whether registered or not and including all applications for any of them and all equivalent rights in all parts of the world), whenever and however arising for their full term, and including any divisions, re-issues, re-examinations, continuations, continuations-in-part, and renewals.
LoRa Protocol – digital wireless data communication technology which facilitates long-range connectivity for Internet of Things devices.
Machine Max - Machine Max Limited registered with Companies House under 11322220 with registered address at Shell Centre, London, United Kingdom, SE1 7NA.
Machine Max Trade Marks - the name “Machine Max” and such other trademarks, brand names, marks of ownership, unregistered marks, trading names or service names, owned by us or an Affiliate and used by us or an Affiliate from time to time.
Order - an order issued by you to us using the Order Form for the subscription of the Services and which has been accepted and confirmed in writing by us.
Order Form - the order form available on the App and Website or as otherwise supplied to you by us.
Party - us and you individually; and Parties means both of us collectively.
Personal Data - information about identified and/or identifiable individuals.
Restricted Jurisdiction - any place declared an embargoed or restricted destination by Trade Controls Laws. Currently those places include Iran, Sudan, Cuba, North Korea, Crimea and Sevastapol and Syria. We may notify you of any changes to these Restricted Jurisdictions.
Restricted Party - a person: (i) targeted by Trade Control Laws; or (ii) directly or indirectly owned or controlled by, or acting on behalf of such persons, and includes directors, officers or employees (including agency personnel).
Sensor - Machine Max’s wireless telematics sensor.
Sensor Package - comprises the Sensor(s), Gateway(s), installation manual and access to the App and Website, as further specified in the Order.
Services - the machine analytics services provided by us to you through the Sensor Package.
Subscription Fees - the subscription fees payable for the Services, comprising monthly fees payable per Sensor and per Gateway, as published from time to time on the App and the Website (or, to the extent different subscription fees are specified in any Order Form, the fees set out in such OrderForm, as amended from time to time).
Terms and Conditions of Use - the terms and conditions which you agree to comply with when using the Website or App, as the case may be.
Trade Control Laws - any applicable trade or economic sanctions, export control, embargo or similar laws, regulations, rules, measures, restrictions, restricted or designated party lists, licenses, orders, or requirements, including those of the E.U., the U.K., the U.S. and the U.N.
Us (whether or not capitalised) - Machine Max and “our” and “we” shall be read accordingly.
User - any employee, contractor or staff member you allow to use the Services.
Website - the website under the domain name www.machinemax.com
Wilful Misconduct - a deliberate act or omission, the consequences of which were foreseen or foreseeable and intended to cause harm to people, property or the environment.
Withholding Taxes - any tax, deduction, levy or similar payment obligation that is required to be deducted or withheld from a payment under Applicable Law.
You (whether or not capitalised) - the party identified as the customer in the Order and “your” and “yours” shall be read accordingly.
This Agreement shall commence on the Commencement Date and will carry on until you or we terminate the Agreement (in a manner permitted by the Agreement).
Throughout the term of this Agreement we will provide the Services to you with the due care and skill that would reasonably be expected in the circumstances and in compliance with Applicable Law.
The undertakings in clause 3.1 do not apply if any non-conformance is caused by:
your use of the Services contrary to our instructions;
modification or alteration of the Services by any party other than us.
Subject to clause 3.2, if the Services do not conform with the undertakings in clause 3.1, we will, at our expense, use reasonable commercial endeavours to promptly correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance, or refund you all amounts you have paid for the Services from the date upon which you notify us that Services do not conform with the undertakings. Such correction, substitution or refund constitutes your sole and exclusive remedy for any breach of the undertakings set out in clause 3.1.
Notwithstanding the foregoing, we:
do not warrant that your use of the Services will be uninterrupted or error-free or that the Services will meet your requirements; and
are 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.
You acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications, networks and facilities.
We may change the Services so long as the performance of the Services is not materially adversely affected. Such changes may include, without limitation:
introducing or removing features of the Services; or
replacing the Services with materially equivalent Services.
The software in any component parts of the Sensor Package is owned by or licensed to us. You agree to allow this software to be updated from time to time by us. Updates will be automatically provided to you at no extra charge to you.
In order to use the Services, you are required to create an Account.
Each Order is an offer by you to buy the Services specified in the Order subject to these Terms and Conditions.
By creating an Account and placing an Order, you confirm that you:
are registered as a business according to the law of your incorporation;
are authorised to agree this Agreement and perform your obligations under this Agreement; and
accept that this Agreement is a business-to-business transaction to which the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 do not apply.
In order for the Sensor Package to function properly:
the Sensor(s) must be registered to your Account;
the Sensor(s) must be properly installed and attached to your machinery;
the Gateway(s) must properly be installed; and (all in a manner, location(s) and use that will not negatively impact proper and safe operations of the machinery) for which you are responsible.
The Services are intended for your use only.
You may nominate Users to access the App and Website.
In using the Services, you shall comply with Applicable Law (and make sure that your Users do the same) and comply with our Terms and Conditions of Use.
You agree to pay the Subscription Fees for theServices in accordance with this clause 5.
The services are subject to a minimum term of 3 months in respect of each Sensor andGateway (the Minimum Term), such that a minimum of 3 months’ Subscription Fees shall be payable in respect of each Sensor and eachGateway notwithstanding the termination of thisAgreement or the return of a Sensor or Gateway (as applicable) prior to expiry of the Minimum Term.
Following expiry of the Minimum Term in respect of each Sensor or Gateway (and subject always to clauses 8 and 9), should you wish to return one or more Sensors or Gateways the Subscription Fees shall be reduced correspondingly with effect from the month following the month in which the relevant Sensor(s) and/or Gateway(s) are returned to us in full working order.
After the expiry of the Initial Term, we may amend the Subscription Fees from time to time on 3 months’ notice to you.
In addition to the prices payable for the Services, you will pay us for the following: (i) all applicable charges listed in the on the App and the Website and/or any Order Form, including those for delivery of the Sensor Package; and (ii) all applicable duties, taxes and levies.
All amounts shown shall be deemed to be exclusive of any VAT.
If applicable, you are liable for any WithholdingTax (and associated interest and penalties if any) on payments to us, so that the net amount that we receive is not less than the amount invoiced to you.
We accept payment by credit and debit cards and by direct debit.
You shall pay us in pounds sterling unless we agree otherwise
We will take your first payment on acceptance of your Order; thereafter you will be charged for the Services in advance at the beginning of each month.
You shall promptly notify us of any changes to your bank details that may affect payment.
We will send you an electronic invoice within 7 days of the beginning of the month following payment. For any failed or cancelled payments, an administration fee may be levied.
If you fail to make any payment when due and payable:
interest will accrue from the date on which payment fell due up to and including the date on which payment is received by us, at the rate 12% per annum; and
we may restrict or suspend provision of the Services as specified in clause 9.
No person other than you shall pay the invoice without our prior consent.
We both agree that we are familiar with, and will comply with, all Applicable Laws relating to anti-bribery and anti-money laundering.
You guarantee that your payments to us will not constitute the proceeds of crime in contravention of anti-money laundering laws.
We may terminate the Agreement immediately by giving you written notice if, in our reasonable opinion, you are in breach of any of the provisions of this clause and cannot provide evidence that you have complied with this clause.
Delivery of the Sensor Package will be to the delivery address that you nominate in your Order. We will use reasonable endeavours to deliver the Sensor Package by the Delivery Date.
You agree to follow the installation manual contained in the Sensor Package and comply fully with all reasonable installation instructions that we provide to you.
You agree that the Sensor Package is leased by us to you and we retain ownership thereof. You have no right, title or interest in or to the Sensor Package, save for the right to possession and use in accordance with this Agreement.
The risk of loss, theft, damage or destruction of the Sensor Package shall pass to you on delivery.
When this Agreement comes to an end, you will be required to return the Sensor(s) and Gateway(s) to us, as specified in clause 13.1.4, at which point in time risk of loss, theft, damage or destruction will return to us.
If, during the term, you believe that any Sensor or Gateway delivered to you is defective, you will:
give us written notice thereof as soon as is reasonably possible;
comply with our reasonable instructions to remedy the defect;
if requested by us, return the relevant Sensor or Gateway to us, unaltered, for inspection as soon as reasonably possible and at your own risk and expense.
We shall, at our option repair or replace the defective Sensor or Gateway.
If, following inspection, we attribute the defect to our failure or negligence:
any repair or replacement shall be at our expense; and
we shall refund your costs incurred in returning the relevant Sensor or Gateway to us in accordance with clause 9.1.3.
If, following inspection, we attribute the defect to:
your failure to follow our oral or written instructions as to the storage, installation, use, maintenance or remediation of the Sensor or Gateway;
any alteration or repair of the Sensor or Gateway without our written consent; or
fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, any repair or replacement shall be at your expense.
On written request from you, we will replace any lost, stolen or destroyed Sensors or Gateways upon payment of a replacement fee of:
£100 per Sensor; and
£1000 per Sensor; and
We may restrict or suspend the Services:
if we need to do maintenance to maintain, repair or improve the performance of the Services;
to implement a change under clause 3.6;
if you do not pay us on time and in the way described in clause 6; and
if we reasonably believe:
you have not followed the Terms and Conditions of Use; or
we need to do so in order to protect the integrity or security of our network.
If we restrict or suspend the Services because of the reasons in clause 10.1.3 or 10.1.4:
you will still have to pay the charges that are payable for the Services until the Services end; and
we may apply an additional charge to recommence the Services.
If we decide to restrict or suspend the Services for any of the above reasons, we will let you know as soon as reasonably practicable before doing so.
Following the expiry of the Initial Term, either of us may terminate this Agreement on 30 days’ written notice to the other Party.
Either of us may terminate this Agreement immediately on written notice to the other Party if:
the other Party materially breaches the Agreement and, where it is possible to remedy the breach, they fail to remedy the breach within 30 days after notice of the breach;
the other Party materially breaches the Agreement and it is impossible to remedy the breach; or
the other Party undergoes an Insolvency Event.
If a Force Majeure Event occurs and the Services are continuously unavailable for more than 60 days, either of us may terminate this Agreement by giving written notice to the other Party. We will not be liable to you for any losses suffered by you because of this termination.
If the Force Majeure Event has ceased before notice to terminate is received by one of us, the right to terminate set out above will cease and the notice will have no effect.
On termination or expiration of this Agreement:
your access to and use of the Services shall automatically cease; and
you will immediately pay us all outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
all licences granted to you under this Agreement shall immediately terminate; and
you shall promptly return the all of the Sensor(s) and Gateway(s) supplied to you. If you fail to do so within 30 days of termination or expiration of this Agreement, you will be liable to pay us a fee of:
£25 per Sensor per month, up to a maximum aggregate fee of £100 per Sensor; and
£250 per Gateway per month, up to a maximum aggregate fee of £1000 per Gateway.
Termination or expiration of this Agreement will not affect any accrued rights that either of us have.
To the maximum extent permitted by Applicable Law:
neither Party shall be liable to the other Party under this Agreement for loss of actual or anticipated profit, loss of production or business, losses caused by business interruption, loss of goodwill or reputation, or any indirect, punitive, special or consequential cost, expense, loss or damage, whether brought by, suffered, or otherwise incurred by the other Party EVEN IF such cost, expense, loss or damage was reasonably foreseeable or might reasonably have been contemplated by the Parties and whether arising from breach of contract, negligence or other tort, breach of statutory duty or otherwise;
our total aggregate liability to you in respect of Claims or losses arising under this Agreement, whether as a result of breach of contract, breach of warranty, breach of statutory duty, negligence or other tort or otherwise, shall not exceed the price payable for the Services for the Initial Term.
Indemnity. You will indemnify and hold harmless Machine Max, its Affiliates and any director, employee or agent of Machine Max against all Claims arising out of (i) any delay or failure by you to meet any of your obligations under clauses 6, 15 and 16; and (ii) arising out or in connection with the use of the Services by any third party unless theClaim is caused by Wilful Misconduct or GrossNegligence of managerial or senior supervisory personnel of Machine Max.
Intellectual Property Rights will carry on being their original owner’s property Intellectual Property Rights in all information and data in or related to the Sensor Package or developed by or on behalf of Machine Max in the course of, or in relation to the Sensor Package or providing the Services, shall vest exclusively in Machine Max, without restricting your use rights granted under clause 15.2.
We give you a non-transferable and non-exclusive licence to use the software in any component parts of the Sensor Package only for the purposes and in the manner set out in this Agreement and for so long as we provide you with the Services.
You will not and will ensure that your Users do not, copy, modify or reverse engineer any software, or let anyone else copy, modify or reverse engineer any software, unless we have given you permission in writing.
You agree that you will not do anything that may harm our good reputation, products or brands. In addition, you will not alter the decoration or design of Sensor Package or part thereof in any way or remove or alter the Machine Max Trade Marks appearing on the Sensor Package or part thereof.
You agree that we may publicise the fact that you are a customer of Machine Max and, in doing so, use your logo together with a general description of the Services provided to you. We may publish this information on any medium including on the Website, the App, in newsletters or when submitting proposals for work to other customers, and you agree to execute such documents and perform such actions as may be required to give full legal effect to the consent granted by you under this clause 15.5
Each Party will treat all information relating to the other Party and/or this Agreement which it receives under this Agreement, as confidential and will ensure that any person who receives any confidential information complies with the same obligations set out below.
Neither Party will use the confidential information for any reason other than for the Agreement or disclose any of this confidential information to any person except for any of its directors or employees who need to know this information so that they can perform their duties under the Agreement.
Either Party may disclose any confidential information:
if required by law, or in relation to a court case;
to its Affiliates, professional advisers, auditors and bankers;
if the information has come into the public’s knowledge through no fault of that Party; or
if the other Party has given prior written consent to the disclosure, which the other Party will not unreasonably withhold.
A Party disclosing information under 16.3.1, may only do this if it has told the other Party that it is going to disclose the information, unless this is not permitted by Applicable Law.
The confidentiality provisions above will continue to apply after the termination or expiration of this Agreement.
The Parties will comply with all applicable Trade Control Laws relating to the use, sale and export of a Sensor Package or part thereof and will not cause each other to breach any Trade Control Laws. Each Party may ask the other to provide evidence that the other Party is complying with this clause 17, including with respect to you only, evidence to check the final destination of Sensor Package or part thereof.
You will not, directly or indirectly, sell, transfer, export or in any other way dispose or make available any of the Sensor Package or part thereof to any Restricted Party or to any Restricted Jurisdiction or for end use by any Restricted Party or in any Restricted Jurisdiction, unless we confirm in writing that you can do this.
If a Party does not comply with this clause 17 or, if it becomes a Restricted Party, or if it otherwise becomes unlawful under Trade Control Laws for a Party to carry out any of its contractual obligations, the other Party may, either suspend the Services, or terminate the Agreement immediately. If the Services are suspended or the Agreement is terminated by a Party for these reasons, that Party will not be liable to the other Party for any of its losses. If we suspend or terminate we will repay any money that you have paid us for the Sensor Package or part thereof that was not delivered, provided that this does not breach any Applicable Laws.
In the course of providing the Services, we will process data on your behalf. This data may include:
data that you provide to us, such as your company name, company representative name, address, telephone number, email address, banking information, make, model and registration number of your machines; and
data that is generated by your use of the Services, such as data on your machines’ performance including but not limited to usage and idling patterns, running hours, fuel and lubricants consumption, engine revs, the location of your machines, metre readings etc.
You and your Users agree that this data may be held and processed by us in order to provide the Services and as required by Applicable Law. All Personal Data shall be processed in accordance with the Machine Max Privacy Statement Notice. This may include processing data after this Agreement has ended.
We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data, as required by Applicable Law.
Notwithstanding clause 16, and excluding any Personal Data, we retain rights to use your data for the purposes set out below and to share such data with third parties, including our Affiliates, suppliers and distributors who provide related products and services to you:
to provide the Machine Max Services and prevent or address service or technical problems and provide technical support (including granting access and use rights to any distributor we may appoint to address service or technical problems and provide technical support);
to improve the Services, to develop additional services and products aimed to benefit our customers and as part of our research and development programme; and
provided such data is anonymised and/or aggregated, for any purposes including, without limitation, to analyse market statistics and trends.
Any notices given by the Parties will only be effective if they are in writing and sent to the receiving Party’s usual address. E-mails are permitted but, if the email relates to a breach of the Agreement, it must be followed by a fax or a letter sent by a courier, if the recipient does not respond to the e-mail within two business days of the e-mail being sent.
This Agreement will be governed by the laws of England and Wales. If these Terms and Conditions are translated into any other language, the English version will be the final version.
The Parties agree that the courts of England and Wales shall be the exclusive forum to settle and resolve any Dispute between the Parties.
You may not assign any part of the Agreement to a third party without our prior written consent, which we will not unreasonably refuse to give you.
We may, at any time, assign all or any part of the Agreement to a third party.
If a Party delays or decides not to enforce any provision or part of a provision of this Agreement, this does not mean that the Party has waived its right under that provision, unless it expressly confirms in writing that it has waived this right.
If any provision or part of a provision of this Agreement is invalid, illegal or unenforceable, the Parties will attempt to agree a change to the provision(s). The other provisions will stay the same.
We may change this Agreement at anytime without notice to you, provided that any changes will only become effective when (i) we notify you in writing of the changes, or (ii) when you place a new Order or renew an existing Order, whichever is earlier.
You agree that the provisions of the Agreement are intended to be enforceable by our Affiliates in line with The Contracts (Rights of Third Parties) Act 1999.
Except as set out in clause 25.1, no provision of the Agreement will be enforceable under The Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to the Agreement.
This Agreement may be varied or terminated by the Parties without having to give notice to, or requesting the consent of, any third party, including any of our Affiliates.