1. Contracting Parties and Scope
1.1 The terms set out below (the “Terms“) govern all contracts between you (the “Customer“) and Movolytics (the “Company“) for the provision of Services by the Company to the Customer.
1.2 By ordering Services from the Company, the Customer agrees to be bound by the Terms. The Terms, together with any Services Order Form, Authorisation Agreement or other document referenced herein, constitutes the entire agreement between the parties (the “Agreement“) and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter. All other terms are excluded from this Agreement.
1.3 No variation to this Agreement shall take effect unless explicitly agreed in writing (also electronically) and signed by the Company.
1 Interpretation
1.1 The following definitions apply in these Terms:
Authorisation Agreement: the document under which the Customer authorises direct debit or credit card payments to be made to the Company.
Buy Out Sum: any sum paid by the Company to the Customer or a third party supplier of the same or similar services to terminate such services, as identified in the Services Order Form.
controller, processor, data subject, processing and personal data: each as defined in the GDPR.
GDPR: the General Data Protection Regulation (Regulation (EU) 2016/679), or similar legislation as implemented under relevant national laws (including in England the Data Protection Act 2018 and any other national laws, regulations and secondary legislation dealing with data protection, data privacy or similar), in each case as applicable and in force from time to time. References to Article numbers of the GDPR shall be deemed to include the equivalent provisions in the event the Article numbers in the legislation are changed from time to time;
Effective Date: the date of acceptance of a Services Order Form by the Company pursuant to clause 2.5.
Equipment: any physical equipment, including vehicle tracking units provided by the Company as part of the Services, as described in a Services Order Form. For the avoidance of doubt, Equipment includes Hired Equipment and Customer Owned Equipment (as such terms are referred to below).
Free Period: means, in relation to the Services, 30 days from the Effective Date or any other period of time set out in the Services Order Form as a Free Period, during which a New Customer shall not be obliged to pay the Subscription Fees.
Intellectual Property: means all patents, know-how, copyrights, database rights, trade or service marks, design rights, and all other intellectual property rights of any kind (whether registered or unregistered).
Minimum Service Period: the initial period for the Services set out in the Services Order Form which, unless stated otherwise in the Services Order Form, will commence on the day following the Free Period which starts from the Effective Date.
Standard Contractual Clauses means the standard contractual clauses annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as may be amended, superseded or replaced.
New Customer: a Customer who has not previously placed an Order for, or received the benefit of (whether directly or indirectly) the Services;
Order: any order or purchase order placed by the Customer.
Price: the one-off price payable by the Customer to the Company for Equipment if the Customer elects to buy, rather than hire, the Equipment, as set out in the Services Order Form.
Services Order Form: the document for placing orders of the Services, whether by e-mail, post, the Internet or otherwise, including addenda thereto. These Terms shall be deemed incorporated herein by reference to each Services Order Form and each Services Order Form shall be deemed a separate contract.
Services: the subscription services ordered by the Customer from the Company under a Services Order Form, including any associated documentation.
Software: the online software applications provided by the Company as part of the Services, together with any other software provided in connection with the Services.
Subscription Fees: the subscription fees payable by the Customer to the Company for the Subscriptions, as set out in a Services Order Form.
Term: is defined in clause 14.1.
1.2 The headings in these Terms are for convenience only and shall not affect any interpretation.
1.3 Any reference to a clause shall (unless otherwise specifically provided) be to a clause of these Terms.
1.4 Any reference to a plural shall include the singular and vice versa.
1.5 Any reference to any person shall include natural persons and partnerships, firms and other such unincorporated bodies and companies and corporate bodies and all other legal persons of whatever kind and howsoever constituted.
1.6 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2 Purchase of Subscriptions
2.1 The Customer shall pay the Subscription Fees and, where relevant, the Price to the Company in accordance with the terms of this Agreement. The applicable Subscription Fees in respect of the Customer’s subscription for Services and the Price, where relevant, shall be as set out in a Services Order Form. The first payment shall be taken by direct debit otherwise payment will be made by bank transfer.
2.2 Unless otherwise stated in the Services Order Form, the Customer shall pay:
(a) any Price on the Effective Date, and
(b) the Subscription Fees monthly in advance, with the first instalment being paid on the Effective Date or, for New Customers only, the date of expiry of any Free Period, and each additional instalment being paid on the same date in each subsequent month (the “Subscription Payment Date”), subject to clause 2.3.
2.3 The Company may at any time at its sole discretion change the Subscription Payment Date to any other date required by the Company (the “New Payment Date”). In such circumstances the Customer will pay the Company a pro-rata amount of the Subscription Fees calculated for the period running from the last Subscription Payment Date until the New Payment Date and thereafter shall pay all Subscription Fees monthly in advance on the New Payment Date.
2.4 Each and every purchase of Services by the Customer under a Services Order Form shall be subject to these Terms. In the event of a conflict between the provisions of these Terms and any Services Order Form, these Terms shall prevail unless any specific provision of these Terms is expressly overridden.
2.5 No Order shall be deemed to be accepted by the Company unless and until the Services Order Form has been signed by a duly authorised officer or employee of the Company and its signature has been notified to the Customer.
2.6 Where the Customer pays by direct debit, payment of all amounts due shall be made by the Customer on the date of the Company’s invoice and, where the Customer pays by bank transfer, payment shall be made within 30 days from the date of the invoice, in each case unless otherwise specified by the Company.
2.7 Subscription Fees and any Price paid are non-refundable and all amounts stated or referred to in this Agreement are exclusive of value added tax or any other applicable taxes (“VAT”), and are payable in sterling/euro. The subscriptions for Services purchased under a Services Order Form cannot be reduced during the relevant Minimum Service Period and cannot be cancelled prior to the end of the relevant Minimum Service Period or any Extension Period.
2.8 If the Company has not received payment in accordance with clause 2.2 then without limiting the Company’s right to terminate under clause 14.2 and without prejudice to any other rights and remedies it may have:
(a) the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the amount owing remains unpaid; and
(b) the Company may claim interest at its discretion (and the Customer shall pay such interest) on any unpaid amounts under the Late Payment of Commercial Debts (Interest) Act 1998.
2.9 The Customer agrees that the Company may issue invoices to it by electronic means and that invoices issued in this manner shall be valid. It is the Customer’s responsibility to notify the Company of any change to the email address to which it would like invoices to be issued.
2.10 Notwithstanding any other provision in this Agreement all payments payable to the Company under this Agreement shall become due immediately upon termination of this Contract, howsoever arising.
2.11 All payments and fees due under this Agreement are subject to the addition of VAT at the then prevailing rate, which the Customer shall be additionally liable to pay to the Company. Any firm prices quoted are with errors and omissions excepted.
2.12 The Customer shall pay to the Company the Price, if relevant, and the Subscription Fees in full and without set off, cross claim or deduction on any account whatsoever.
2.13. The Company may unilaterally adjust the price corresponding to any increased purchasing costs or costs to subcontractors, for example to providers of mobile data and/or map services, compared with the time of entering into the Customer Contract. Such change can take place with 2 months’ prior written notice (also electronically) to the Customer.
2.14. The Company may at any time and without prior notice adjust the price agreed upon for a Service in accordance with changes in the general price level by using a recognised and commonly used index in the country where the Company has its registered business address or such index in Europe. Choice of index and any supplementary mark up is the Company’s sole decision. Adjustment may take place at the earliest with effect from January the calendar year after the Effective Date.
2.15. Upon automatic renewal of the Agreement, the Company may adjust the price for the Service according to the current pricelist, which without prior notice thereof applies for the Renewal Term.
3 Services
3.1 The Company shall sell, and the Customer shall purchase, the Services for the Term in accordance with the Services Order Form and subject to these Terms, which shall govern the agreement to the exclusion of any other terms and conditions purported to be applied by the Customer.
3.2 The Company may provide on-line training, upgrades in software and mapping (upon availability) and technical support in accordance with the Company’s support services policy (which may be amended from time to time) as part of the Services at no additional cost to the Customer and in accordance with its policies in force from time to time.
3.3 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Services (including the Equipment) within a sufficient time to enable the Company to perform the Agreement in accordance with its terms.
3.4 The ability to send SMS text alerts and manually download camera footage is provided by The Company and is subject to a fair use policy, in which the usage is constantly reviewed. This is based on, but not limited to the following, size of fleet, number of SMS alerts generated, number of, and duration of manual camera footage requests. The Company reserves the right to charge customers who break this fair use policy.
4 Licence
4.1 In consideration of the Customer purchasing subscriptions for the Services in accordance with a Services Order Form and complying with the terms of an Authorisation Agreement and the other terms of this Agreement, the Company hereby grants to the Customer a non-exclusive, non-transferable, revocable right and licence to use the Software and Equipment during the Term subject to and in accordance with this Agreement for the purpose of receiving the Services solely for the Customer’s internal business operations in the territory in which the Customer is located.
4.2 The Customer shall not, except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, republish, download display, transmit, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form or distribute all or any portion of the Software, Equipment and/or associated documentation in any form or media or by any means.
5 Proprietary and Intellectual Property Rights
5.1 The Customer acknowledges and agrees that the Company and/or its suppliers/licensors own all Intellectual Property rights and any other title or proprietary rights in the Services, including the Software and Equipment. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, any Intellectual Property rights, trade secrets, trade names or any other rights, title, interest or licenses in respect of the Services, including the Software and Equipment.
5.2 The Customer grants a licence (or shall procure that all relevant third parties grant all rights and licences) to the Company to allow it to use the Customer’s Intellectual Property rights as required to provide the Services.
6 Third Parties
6.1 The Customer acknowledges that the Services may enable it to access third-party websites and that it does so entirely at its own risk and that the Company shall have no obligation or liability to the Customer in that regard.
6.2 The Services may contain features designed to interoperate with third party applications. To use such features, the Customer may be required to obtain access to such third party applications from their providers. If the provider of any such third party application ceases to make the third party application available for interoperation with the corresponding Services feature on reasonable terms, the Company may cease providing such Services feature without entitling the Customer to any refund, credit or other compensation.
6.3 This Agreement does not confer any rights on any entity (including any group company of the Customer) which is not a party hereto under the Contracts (Rights of Third Parties) Act 1999.
7 Equipment
7.1 The Services Order Form shall specify whether the Equipment is being hired by or purchased by the Customer.
7.2 Where the Customer hires the Equipment for the Term (“Hired Equipment”), the Hired Equipment shall at all times remain the property of the Company, and the Customer shall have no right, title or interest in or to the Hired Equipment (save the right to possession and use of the Hired Equipment subject to the terms and conditions of this Agreement).
7.3 Where the Customer purchases and pays for the Equipment at the start of the Term (“Customer Owned Equipment”), title to the Customer Owned Equipment shall pass to the Customer upon receipt by the Company of the full invoice amount of the Price in accordance with clause 2 or on delivery, whichever is later.
7.4 Risk of damage to or loss, theft or destruction of the Equipment shall pass to the Customer at the time of delivery.
7.5 The Customer acknowledges and accepts that any Equipment delivery times and dates are approximate only and are not “of the essence”. The Company shall not be liable for any loss or damage resulting from late delivery or installation howsoever caused.
7.6 The provision of Services as contemplated in these Terms requires the installation of Equipment into Customer vehicles. The Services Order Form shall specify whether the Equipment is being installed by the Customer or the Company.
7.7 Where the Company has agreed to install the Equipment as specified on the Services Order Form, the Customer shall use reasonable endeavours to schedule the installation of the Equipment within 14 days from the Effective Date, unless an alternate schedule is agreed upon in advance by both parties in writing.
7.8 Should Customer not make vehicles available to the Company, its representatives or agents for installation of Equipment within 30 days from the Effective Date, the Company’s obligation to install such Equipment shall expire, and the Customer shall pay an additional installation fee of £100 per vehicle, in addition to all other fees due. The Company’s inability to install such Equipment in Customer vehicles due to unavailability of Customer vehicles shall not relieve Customer of its Subscription Fees pertaining to such vehicle(s).
7.9 Where it is agreed that the Customer shall install the Equipment, as specified on the Services Order Form, the Company shall deliver the Equipment to the Customer at the location specified in the Services Order Form and the installation of the Equipment shall be the sole responsibility of the Customer. The Company shall not be liable for any damage or loss caused by any failure to install or any incorrect installation of the Equipment. Without affecting the Customer’s responsibilities, installation training may be provided by the Company to a person designated by the Customer if, in the Company’s sole opinion, such person has the necessary capabilities to perform such activities. The Company shall not be liable for any loss or damage caused by any such training or installation of the Equipment, which shall be the sole responsibility of the Customer. When undertaking installation, the Customer shall ensure compliance with all legal and regulatory requirements, including but not limited to health and safety.
7.10 The Company warrants that (i) any Hired Equipment supplied in connection with the Services will be free from defects for the duration of the Term and (ii) any Customer Owned Equipment supplied under this Agreement will be free from defects for a period of one year from the date of installation into the Customer vehicle (in each case, the “Warranty Period“). If the Equipment is defective within the relevant Warranty Period, the Company will (at the Company’s option) repair or replace them within a reasonable period using components or replacements in accordance with industry standards and practice. For the avoidance of doubt, the warranty in this clause 7.10 shall not apply to any Equipment used by the Customer after the expiry of the Warranty Period, including where the Customer is still using the Services and/or Software.
7.11 The above remedy shall be the Customer’s sole and exclusive remedy in respect of clause 7.10 and shall be in lieu of any other remedy available to the Customer at law or in equity in respect of any defective Equipment. The Company’s liability shall in any event be subject to clause 13. Under no circumstances shall the Company be responsible to the Customer or any third party for the loss of use of any vehicle during the Warranty Period.
7.12 The warranty under clause 7.10 shall not apply if failure of the Equipment or part thereof is due to (i) damage caused by external force or accident, (ii) incorrect installation, misuse, modification or repair by any unauthorised third party or by the Customer, (iii) the connection of the Equipment to any third party products not provided by the Company, or (iv) any other breach by the Customer, its directors, officers, employees, agents, subcontractors of the Customer’s obligations in clause 8.4, in which case the Customer shall pay for the cost of repair or replacement and clause 8.4 (g) shall apply.
7.13 The Company:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, nor that the Services and/or the information obtained by the Customer through the Services will be accurate or meet the Customer’s requirements;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
(c) makes no warranties with respect to the content of any third party information which it makes available to the Customer in the course of providing the Services.
8 Customer Obligations
8.1 The Customer shall provide the Company with (i) all necessary co-operation in relation to this Agreement, (ii) all necessary and timely access to its premises and vehicles to enable the Company to comply with its obligations in relation to the replacement, installation, maintenance, upgrade and repair of the Equipment or any part thereof (including SIM cards), and (iii) access to all such information as may be reasonably requested by the Company in order to render the Services.
8.2 The Customer shall ensure that (i) only authorised users access the Services, (ii) usernames and passwords are protected from unauthorised use, (iii) it immediately notifies the Company in respect of any suspected or actual breach of security, and (iv) its network and systems comply with the relevant specifications provided by the Company from time to time.
8.3 The Customer acknowledges and agrees that although the Company’s Services involve maps, routing instructions and driving directions, the Company assumes no responsibility for the accuracy of this information. The Customer is responsible for checking directions for accuracy, confirming that the designated routes still exist, responding appropriately to construction and other road hazards and adhering to all traffic laws.
8.4 The Customer shall during the Term:
(a) ensure that the Equipment is used properly, safely and only for the purposes for which it is designed;
(b) ensure that the Equipment is operated in a proper manner in accordance with any operating instructions provided by the Company;
(c) make no alteration to the Equipment or remove any existing component(s) from the Equipment, or allow any other person to do so, without the Company’s prior written consent;
(d) not use the Equipment in conjunction with any other software, without the Company’s prior written consent;
(e) not use the Equipment for any unlawful purpose;
(f) in the case of Hired Equipment, be responsible for any damage caused to the Equipment apart from fair wear and tear;
(g) in the case of Customer Owned Equipment, be responsible for any damage caused to the Equipment including from fair wear and tear;
(h) notify the Company immediately if any Equipment is lost, stolen or damaged. In such circumstances the Company will repair or replace the Equipment at the Customer’s cost (which the Customer shall pay on demand) and the Customer shall continue with this Agreement and any replacement Equipment will be the Company’s property in the case of Hired Equipment and will be the Customer’s property in the case of Customer Owned Equipment. Pending replacement of the Equipment the Customer will remain liable to pay all Subscription Fees due under this Agreement; and
(i) not transfer the benefit of this Agreement or do anything which affects the Company rights in the Equipment including without limitation allowing the creation of any mortgage, charge or lien in respect of the Equipment or otherwise usinFthirdg it as a security for a debt or any other obligation or selling, offering it for sale or disposing of it.
9 Vehicle Information
9.1 The Equipment and Services are designed to collect certain data and information from Customer’s vehicles, including, without limitation, data regarding the location of the vehicles, rate of travel, ignition on/off, idle time, number of stops and other similar information (collectively, “Vehicle Information“) which shall be and remain the property of the Customer and shall be processed by the Company as the “processor” of the Customer pursuant to clause 11. The collection, amalgamation, manipulation or recording of Vehicle Information by the Company as part of the Services may give rise to Intellectual Property rights including database rights, copyrights, rights in know-how and confidential information, design rights and other similar rights anywhere in the world (“Vehicle IP”). Customer acknowledges and agrees that as between Customer and the Company, all Vehicle IP, including all rights in and to such Vehicle IP are owned and shall at all times belong to the Company, and Customer hereby assigns for good and valuable consideration (the receipt of which is hereby acknowledged by Customer) any rights it may have in any current and future Vehicle IP. Customer has the right to use any Vehicle IP provided to Customer as part of the Services for its own internal business purposes.
9.2 The Customer authorises the Company to anonymise all Vehicle Information to create de-personalised statistical data (“Statistical Data”).
9.3 The Customer hereby grants the Company a non-exclusive, royalty-free, fully-paid, irrevocable worldwide right and licence to access, review, analyse, use, manipulate, copy and modify the Statistical Data for its own purposes, including but not limited to using the information to produce and distribute reports, analyses and data based upon the Statistical Data. However, except as regards such anonymisation and use of Statistical Data, the Company shall not use for its own purposes or disclose to any third parties any Vehicle Information that identifies specifically Customer or any of the drivers of Customer’s vehicles. It being understood, however, that the foregoing restriction shall not apply to disclosures of Vehicle Information that are (i) required by law or in response to a request from law enforcement authorities, (ii) made in connection with a court order or other similar demand, (iii) made in connection with a contemplated merger, acquisition or similar transaction, (iv) made to the Company’s affiliates or related companies, and/or (v) made to the Company’s service providers for delivering Services on behalf of the Company.
10 Indemnity
10.1 The Customer shall defend, indemnify and hold harmless the Company against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (i) any data inputted by the Customer to the Company’s systems, or (ii) the Customer’s breach of this Agreement.
11 Data Processing in the provision of the Services
11.1 In the event that the Company is required to process personal data on behalf of the Customer in connection with this Agreement and/or the Services, the parties agree that the Customer shall be the controller and the Company shall be the processor.
11.2 The Customer:
(a) instructs the Company (and authorises the Company to instruct any sub-processor it appoints) to process the Customer’s personal data; and
(b) permits the Company to transfer the Customer’s personal data outside the EEA in accordance with clause 11.4.
11.3 In relation to its obligations as a processor, the Company shall:
(a) process the personal data solely for the purposes of performing its obligations under this Agreement;
(b) process the personal data on the documented instructions from the Customer, unless required to do so by English, European Union (EU) or EU Member State law to which the Company is subject. In such a case, the Company shall inform the Customer of that legal requirement before processing (unless that law prohibits such information on important grounds of public interest);
(c) immediately inform the Customer if, in its opinion, an instruction of the Customer infringes the GDPR or other EU or EU Member State data protection provisions;
(d) ensure that the Company’s personnel authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(e) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, as well as the risk of the varying likelihood and severity of rights and freedoms of natural persons, in relation to the personal data, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk including considering those measures referred to in Article 32 of the GDPR (‘Security of processing’);
(f) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising data subjects’ rights laid down in Chapter III (‘Rights of the data subject’) of the GDPR;
(g) taking into account the nature of the processing and information available to the Customer, provide assistance to the Customer in order to assist the Customer in ensuring the Customer’s compliance with the obligations set out in GDPR Article 32 (‘Security of processing’), Article 33 (‘Notification of a personal data breach to the supervisory authority’), Article 34 (‘Communication of a personal data breach to the data subject’), Article 35 (‘Data protection impact assessment’), and Article 36 (‘Prior consultation’), in each case solely in relation to processing of the personal data;
(h) at the option of the Customer, delete or return all the personal data to the Customer after the end of the provision of services relating to processing, and delete existing copies unless English, EU or EU Member State law requires storage of the personal data; and
(i) make available to the Customer all information, assistance and cooperation required by the Company to demonstrate compliance with this Agreement and the GDPR and permit and contribute to audits, including inspections, conducted by the Customer or an auditor appointed by the Customer.
11.4 The Customer permits the Company to transfer the Customer’s personal data outside the EEA provided that, in respect of any transfers outside of the EEA:
(a) an adequacy decision applies in relation to the relevant third country (such as the Privacy Shield); or
(b) an appropriate safeguard is in place in relation to the transfer (such as the Model Clauses or binding corporate rules)); or
(c) one of the derogations in Article 49 of the GDPR applies,
in each case as reasonably necessary for the provision of the Services and in accordance with the terms of this Agreement. For these purposes, if the Company wishes as processor to transfer personal data to a third party sub-processor located outside of the EEA and wishes to rely on the Model Clauses to do so, the Customer hereby authorises the Company to enter into the Model Clauses on its behalf with the third party sub-processor.
11.5 The Customer authorises the Company engaging sub-processors in relation to the personal data and specifically authorises the engagement of those processors listed in clause 11.10. The Company shall inform the Customer of any intended changes concerning the addition or replacement of such processors and, if the Customer has any objections, these must be notified in writing to the Company within three days of the Customer being informed.
11.6 The Company shall ensure that the arrangement between it and each processor is governed by a written contract including terms which offer at least the same level of protection for the Customer personal data as those set out in this Agreement which are required by Article 28(3) of the GDPR.
11.7 The Company shall provide assistance requested by the Customer in relation to the fulfilment of the Customer’s obligation to cooperate with the relevant supervisory authority under Article 31 GDPR.
11.8 The Customer warrants and represents that:
(a) it has all authority, grounds, rights and consents necessary to enable the Company to process the personal data in accordance with the GDPR for the purposes of this Agreement;
(b) it shall comply with the GDPR and all other applicable laws and regulations, relevant industry codes of practice and guidance in relation to the processing of personal data;
(c) the information set out in clause 11.10 is accurate; and
(d) it will at all times remain duly and effectively authorised to give the instructions set out in clauses 11.2 and 11.4.
11.9 The Customer shall indemnify the Company and keep the Company indemnified against all claims, demands, actions, proceedings, damages, charges, costs and expenses which may be brought against the Company in respect of or in any way arising out of or in connection with a breach by the Customer of this clause 11.
11.10 The subject matter and duration of the processing, the nature and purpose of the processing, the type of personal data, categories of data subjects and sub-processors shall be as set out below:
(a) Subject-matter of the processing: the performance of the Services.
(b) Duration of the processing: the term of this MSA and for such further time as the parties shall agree in writing.
(c) Nature and purpose of the processing: performing the Company’s obligations under this Agreement for the purpose of providing Services.
(d) Type(s) of personal data: name, contact details, vehicles information
(e) Categories of data subjects: employees or contractors of customers.
(f) Sub-processors : Amazon Website Services –
11.11 The Customer shall do, or cause to be done, all things required to comply with any additional requirements imposed by the Company to ensure compliance by the Customer and/or the Company with the GDPR (“Purpose”) including in relation to or arising out of or in connection with the UK’s exit from the European Union.
12 Confidentiality
12.1 Each party undertakes that it shall not at any time during this Agreement, and for a period of five years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as may be required by law, court order or any governmental or regulatory authority or authorised by the disclosing party in advance in writing.
12.2 The provisions of clause 12.1 shall not apply to confidential information received by a party which: (i) that party can prove was known before receipt; (ii) is in or enters the public domain through no wrongful default by or on behalf of that party; or (iii) was received from a third party without obligations of confidence owed directly or indirectly to that party.
12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
13 Liability
13.1 This clause sets out the entire liability of the Company however caused out of or in connection with this Agreement and/or the Services including (i) whether arising by reason of any misrepresentation (whether made prior to and/or in this Agreement) negligence, other tort, breach of statutory duty, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; (iii) whether caused by any total or partial failure or delay in supply of the Services (including in relation to the delivery or non-delivery of the Equipment); and (iv) whether deliberate (but not in bad faith) or otherwise, however fundamental the result.
13.2 Except as expressly and specifically provided in this Agreement and subject to clause 13.3:
(a) the Company shall have no liability for any damage caused by errors or omissions in any information or instructions provided to the Company by the Customer in connection with the Services, any actions taken by the Company at the Customer’s direction, any other failure or delay on the part of the Customer to perform its obligations under this Agreement;
(b) the Company shall not be responsible for any loss of or damage arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
(d) the Services (including the Software and the Equipment) are provided to the Customer on an “as is” basis; and
(e) the Company shall have no liability however caused whether suffered by the Customer or any third party for any:
1. direct or indirect loss of or damage to:
(i) profit;
(ii) revenue;
(iii) business;
(iv) contracts;
(v) opportunities;
(vi) anticipated savings;
(vii) data;
(viii) goodwill;
(ix) reputation;
(x) use;
(xi) market;
(xii) tangible property; or
2. indirect, special or consequential loss or damage; and
(f) the Company’s total aggregate liability for any claims arising out of or in connection with this Agreement and the Services, however caused, shall be limited in respect of all claims in aggregate to a sum equal to the total Subscription Fees paid or payable (exclusive of VAT) by the Customer.
13.3 The Company shall not be in breach of this Agreement and shall not be liable to the Customer in respect of any failure or delay by the Company to perform its obligations under this Agreement to the extent that such failure is a result of:
(a) a failure or delay by the Customer in performing any of its obligations under this Agreement, including clause 8;
(b) any negligent, tortious or unlawful act of the Customer or its personnel; or
(c) the Company complying with any instruction or request by the Customer.
13.4 Nothing in this Agreement excludes either party’s liability to the extent prohibited or limited by law and in particular nothing in this Agreement shall affect either party’s liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation.
13.5 Each party acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
14 Term and Termination
14.1 This Agreement shall commence with effect from the Effective Date and shall (subject to earlier termination in accordance with the terms of this Agreement) continue until expiry of the Minimum Service Period and thereafter shall continue for successive 12 month periods (or such other period as the parties may agree, whether in writing or otherwise) (each such period being an “Extension Period”) unless and until terminated by either party giving to the other not less than ninety (90) days’ prior written notice of termination, such termination to take effect only on expiry of the Minimum Service Period or any Extension Period (“Term”). Unless otherwise specified in the Services Order Form, add-on features will run for the same term as the base vehicle tracking units to which the add-on features apply.
14.2 Without prejudice to any other rights or remedies to which the Company may be entitled, the Company may terminate this Agreement without liability to the Customer by giving written notice to the Customer of immediate termination if the Customer:
(a) has not paid any invoice issued to it by the Company by the due date for payment;
(b) commits an irremediable material breach of any of the terms of this Agreement;
(c) commits a material breach of this Agreement which is capable of being remedied but has failed to remedy such breach within 10 business days of the Customer being notified in writing of the breach; or
(d) becomes the subject of a petition in insolvency or any other proceeding relating to insolvency, receivership, examinership or liquidation.
14.3 Without prejudice to any other rights or remedies to which the Customer may be entitled, the Customer may terminate this Agreement without liability to the Company if the Company:
(a) commits an irremediable material breach of any of the terms of this Agreement;
(b) commits a material breach of this Agreement which is capable of being remedied but has failed to remedy such breach within 30 business days of the Company being notified in writing of the breach; or
(c) becomes the subject of a petition in insolvency or any other proceeding relating to insolvency, receivership, examinership or liquidation.
14.4 In the event of termination under clause 14.1, the Customer shall pay any unpaid fees covering the remainder of the Minimum Service Period under a Services Order Form.
14.5 On expiry or termination of this Agreement for any reason:
(a) the Customer shall pay to the Company on demand (i) all Subscription Fees and other sums due but unpaid together with any interest accrued pursuant to clause 2.8 (b) and (ii) all costs and expenses incurred by the Company in recovering the Equipment;
(b) where such termination occurs before the end of the Minimum Service Period, the Customer shall pay the full amount of any Buy Out Sum specified in the Services Order Form to the Company on demand;
(c) the licence granted under clause 4.1 shall immediately terminate;
(d) each party shall return and make no further use of any property, and other items and all copies of them belonging to the other party (in the case of the Customer, including the Software) and the Customer permits the Company to enter any premises or vehicles over which the Customer has control for the purposes of retrieval of such items belonging to the Company; and
(e) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced including clauses 11.9, 9.3, 10, 12, 13, 14.4, 14.5, 14.6, 14.7, 14.9, 16, 17, 20.
14.6 Notwithstanding expiry or termination of this Agreement:
(a) the Customer shall be entitled to continue to use the Vehicle IP in respect of, and only to the extent necessary for, the Customer’s use of the Vehicle Information; and
(b) the Company shall be entitled to continue to use the Statistical Data subject to clause 9.3.
14.7 In relation to Hired Equipment, if this Agreement expires or is terminated by either party for any reason whatsoever, the Customer shall within 28 days of expiry or termination and at its own expense and risk return the hired equipment in good working order to Movolytics at the chosen address by the Company or have agreed and paid for one of the following options :
1 – Allow the Company to de install the hired equipment at a cost to the Customer of £70+VAT per unit
2 – Request the Company to over air deactivate the hired equipment at a cost to the Customer of £60+VAT per unit
14.8 Either (at the Company’s option) make available the vehicles for the Company to retake possession of any Hired Equipment or return the Hired Equipment to the Company to an address nominated by the Company within the United Kingdom in good condition (except fair wear and tear). If the Customer does not do so, or if for any reason it is not otherwise possible or lawful for the Company to repossess the Hired Equipment within 28 days of expiry or termination, then at the Company’s option and without prejudice to any other rights or remedies of the Company:
(a) the Company shall have the right to require the Customer (by notice in writing) to purchase the Hired Equipment from the Company. The price payable by the Customer for the Hired Equipment shall be the cost to the Company of replacing the Hired Equipment with new equivalent equipment; or
(b) the Customer shall pay the Company the Subscription Fees, at a rate equal to the last Subscription Fee paid under the contract, due in respect of each item of non-returned Hired Equipment for each month or part month after expiration of the 28-day period following termination or expiry during which the Hired Equipment is not returned as agreed damages.
14.9 The Customer shall pay on demand all costs incurred by the Company in the refurbishment of the Hired Equipment where this is required other than as a result of fair wear and tear.
14.10 In relation to Customer Owned Equipment, upon cancellation of the Services or expiry or termination of this Agreement by either party for any reason whatsoever, the Company will suspend the connectivity of any Customer Owned Equipment and the Services will no longer be available. Any Customer Owned Equipment will remain the property of the Customer and the Customer will be responsible for its safe and lawful disposal. If the Customer uses the Customer Owned Equipment for any purpose after termination of the Services, the Customer will be fully responsible for such use including compliance with all relevant requirements under applicable law (including without limitation all data protection and privacy laws).
15 Force Majeure
15.1 The Company shall not be liable in any way and its obligations shall be suspended for loss, damage or expense arising directly or indirectly if it is prevented from or delayed in performing its obligations under this Agreement by any acts of God, war, riot, civil commotion, embargo, strikes, fire, theft, delay in delivery of services of sub-contractors or sub-suppliers, shortage of labour or materials, confiscation or any other unforeseen event (whether or not similar in nature to those specified) outside the reasonable control of the Company.
16 Assignment
16.1 The Customer shall not, without the prior written consent of the Company, assign, novate transfer, charge, mortgage, hold on trust for another, create a lien over, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.2 The Company may at any time assign, novate, transfer, charge, mortgage, hold on trust for another, create a lien over, sub-contract and/or deal in any other manner with all or any of its rights or obligations under this Agreement without needing to obtain consent from the Customer.
17 Notices
17.1 Any notice under this Agreement shall be in writing and signed by or on behalf of the party giving it.
17.2 Any such notice may be served on any party by leaving it or by sending it by prepaid first class post or recorded delivery at or to the address of such party set out in the Services Order Form or any other address in England and Wales which it may notify in writing to the other (in the case of any notice to the Company marked for the attention of “the Directors”).
17.3 Any notice shall be deemed to be received when left at the recipients address or, if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting. If such deemed receipt is not within business hours (being between 9.00 am and 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to be received when business hours next commence.
18 Waivers and Remedies
18.1 Except as otherwise stated in this Agreement, the rights and remedies of each party under this Agreement are in addition to and not exclusive of any other rights or remedies under this Agreement or the general law. No waiver shall be effective unless in writing and signed by the relevant party or on his behalf by a duly authorised representative.
18.2 Delay in exercising or partial exercise or non-exercise of any right or remedy under this Agreement is not a waiver of that or any other right or remedy and shall not preclude any further or other exercise of that right or any other right or remedy under this Agreement. Waiver of a breach of any term of this Agreement on one occasion shall not constitute a waiver of breach of any other term or any subsequent breach of that term.
19 Severance
19.1 If any provision or part of a provision in these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions of this agreement will remain in force and effect.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give the provision legal effect.
20 Governing Law and Jurisdiction
20.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the English courts have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims.
