“Agreement” means the agreement between MSG Automotive Solutions Limited (“We”, “Us”, “Our”) and the Customer, consisting of the Order Form and any attachments thereto, including these Terms.
“Camera” means a device, as referred to on the Order Form, purchased or leased by the Customer under a separate contract that can be used for obtaining Location Data and Footage via satellite tracking and for sending and receiving such data and other messages via Mobile Communication Service (either automatically according to a set procedure or by manual information retrieval).
“Customer” means the customer stated in the Order Form (“you”, “your”).
“Data” means any information collected by the Camera including, but not limited to; road and vehicle usage including for road safety issues, real time traffic flow, environmental impacts such as idle time at junctions, journey times, distances and speeds, and the analysis of junctions and the risk they represent, driving behaviour, factors involved in collisions and other road incidents; and the Footage. Where applicable, “Data” includes “Personal Data”.
“Data Subject” means any individual making use of a Fleet vehicle.
”DPA” means the Data Protection Act 1998.
“Effective Date” means the date the Order Form is signed by the Customer.
“Fleet” means the Customer’s vehicles fitted with a Camera to be tracked or traced via the VISIONTRACK Service.
“Fleet Driver” means an individual authorised by the Customer to drive a vehicle forming part of the Fleet.
“Force Majeure” means any cause beyond the reasonable control of the party affected, which affects the performance of the Agreement, including in any case prolonged break-down of transport, telecommunication or electric current.
“Footage” means video footage taken by the Camera.
“Group” means any member of the Markerstudy group of companies.
“Indemnified Parties” means Us, the Group, and any Representatives of same.
“Initial Term” means the term specified in the Order Form, commencing from the Effective Date.
“Location Data” means data on the geographical position of vehicles in the Fleet sent to the Platform.
“Mobile Communication Service” means the mobile electronic communication Service used for transmitting the Location Data.
“Order Form” means the order form pursuant to which MSG Automotive Solutions Limited will provide to the Customer and the Customer will take from MSG Automotive Solutions Limited the VISIONTRACK Service in accordance with the terms of the Agreement.
“Personal Data” has the meaning given to it in the DPA.
“Platform” means the Software systems and infrastructure required for the collection, storage, processing, transmission and display of Data (defined above) received from and sent to the Camera.
“Price List” means the prices specified in the Order Form.
“Purpose” means the purpose of assisting in:
- understanding safe driving behaviours, developing underwriting of motor insurance policies and informing development of products, services and systems;
- determining or corroborating the circumstances of a claim, loss or theft;
- preventing and detecting fraud; and
- tailoring insurance premiums at renewal;
- use in the management and tracking of fleet vehicles
“Representatives” means a party’s officers, employees, agents or contractors.
“Terms” means these general terms and conditions for the VISIONTRACK Service.
“Territory” means the territory specified in the Order Form.
“Users” those employees of the Customer authorised by the Customer to use the VISIONTRACK Platform.
“VISIONTRACK Platform” means the software Platform provided as part of the VISIONTRACK Service whereby the Customer can access the Data.
“VISIONTRACK Service” means:
- the VISIONTRACK Platform; and
- transmission of Location Data and Footage between the Camera and telematics device and the VISIONTRACK Platform.
- These Terms for the VISIONTRACK Service shall be read in conjunction with the Order Form and all subsequent agreements entered into between us and the Customer in connection with the VISIONTRACK Service all of which combined shall form the Agreement.
- The VISIONTRACK Service
- Subject to the Customer complying with its obligations under the Agreement, We hereby grant the Customer a non-exclusive, non-transferable right to use the VISIONTRACK Service in accordance with the Terms.
- The Customer may use the VISIONTRACK Service in connection with the number of Cameras set out in the Order Form. If, at any time, the Customer wishes to increase the then current number of Cameras it must notify MSG Automotive Solutions Limited thereof and sign a separate Order Form.
- The Customer is responsible at its own cost for:
- ensuring the Fleet’s Cameras are properly installed and fitted;
- ensuring the contactability of such Cameras;
- ensuring that its hardware, software, network and systems (including without limitation its browser software and internet access) are fully functioning and comply with the relevant specifications provided by Us from time to time on our web page;
- correct configuration of the VISIONTRACK Service;
- providing computing infrastructure to the Platform.
- We neither warrant that GPS or the Mobile Communication Service nor the solution hosting infrastructure will continue to support the functionality offered by the VISIONTRACK Service nor that the Customer will be able to successfully use the VISIONTRACK Service for the intended use, due to the fact that such use depends partly on circumstances beyond our reasonable control.
- We reserve the right to change:
- the look and feel of the VISIONTRACK Platform and the way the Location Data are displayed; and
- if required by law, any other aspect of the VISIONTRACK Service.
- change the programming interface and data exchanges with reasonable notice.
- The Customer will not allow or suffer any User’s account to be used by any other User unless it has been reassigned in its entirety to another User, in which case the prior User shall no longer have any right to access or use the VISIONTRACK Platform.
- We may audit the Customer’s use of the VISIONTRACK Platform in order to establish the account name and password of each User and general compliance with these Terms. Such audit may be conducted no more than every six months. We further reserve the right to audit at any time in case of suspected security breach or other unforeseen circumstance, at Our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business.
- The rights provided under paragraph 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
- The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the VISIONTRACK Platform that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, religious belief, sexual orientation, disability; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property
and We reserve the right, without liability or prejudice to Our other rights, to disable the Customer’s access to any material that breaches the provisions of this paragraph.
- The Customer shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the VISIONTRACK Platform in any form or media or by any means;
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the VISIONTRACK Platform; or
- access the VISIONTRACK Service in order to build a competing product or service;
- use the VISIONTRACK Service to provide services to third parties;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the VISIONTRACK Platform available to any third party except the Users;
- attempt to obtain, or assist third parties in obtaining, access to the VISIONTRACK Service, other than as provided under these Terms.
- The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the VISIONTRACK Platform and, in the event of any such unauthorised access or use, promptly notify Us.
- The VISIONTRACK Service is solely designed and intended to fulfil the Purpose. If the Customer uses the VISIONTRACK Service for any other purpose, including but not limited to monitoring or disciplining of Fleet Drivers, then the Customer shall indemnify the Indemnified Parties in full and on demand and keep them so indemnified from and against all losses, claims, costs or expenses suffered or incurred by the Indemnified Parties as a direct or indirect result of the Customer’s or its Representatives’ use of the VISIONTRACK Service other than for the Purpose.
- The Customer acknowledges that:
- there may be interruption to the VISIONTRACK Service as a result of updates to the Platforms (including the VISIONTRACK Platform); and
- that the Platforms (including the VISIONTRACK Platform) may not integrate (whether in whole or in part) with other application programming interfaces,
and that nothing in this Agreement shall be deemed to be a warranty or representation by Us that is incompatible with this Clause 2.13.
- User names and passwords
- We shall provide the Customer with such information, such as account names, user names and passwords, as necessary for access to the VISIONTRACK Platform (“Access Data”). For security reasons, the Customer must keep the Access Data confidential and ensure that Users do the same.
- The Customer is responsible and liable for any use of the VISIONTRACK Service, if the User obtained access to such service via the Access Data, even if the Customer did not consent to or was unaware of such use.
- We will procure the Mobile Communication Service for the transmission of Data and Footage between the Cameras and the VISIONTRACK Platform. The Customer acknowledges and agrees that We are dependent on the performance of the third parties providing these Service, and therefore We cannot warrant:
- that the Mobile Communication Service will be available on a continuous basis and at any place within the Territory (for instance due to gaps in network coverage and to the fact that these providers reserve the right to suspend their service for maintenance purposes, for security reasons, under instruction of competent authorities etc.);
- the speed at which the Location Data will be transmitted.
- The Customer shall indemnify, defend and hold the Indemnified Parties harmless from and against any losses, damages, fines, costs or expenses (including legal fees) arising from or in connection with claims from third parties that the Location Data sent to or from the VISIONTRACK Platform violate applicable laws and regulations, infringes the rights of such third parties or is otherwise unlawful toward third parties.
- Cameras are provided to the Customer with SIM-cards which the Customer is licensed to use in connection with the VISIONTRACK Service, which the Customer shall use solely;
- in combination with the Cameras and
- for transmitting Data and Footage between the Fleet and the VISIONTRACK Platform.
- We retain exclusive ownership of SIM-Cards provided by Us and the Customer must return (or at Our request destroy) such SIM-Cards upon expiry or termination of the Agreement.
- The Customer shall indemnify, defend and hold the Indemnified Parties harmless from and against any losses, damages, fines, costs or expenses (including legal fees) arising from or in connection with claims from third parties, in particular the underlying wireless service carrier, that the Customer’s use of the SIM-cards is not in conformity with the Agreement.
- Fees and Payment
- The Customer shall pay the charges set out in the Price List. The charges are exclusive of VAT and any other sales taxes and incidental costs and expenses.
- The charges are fixed for the Initial Term and may be adjusted by Us thereafter on the first day of each additional period of one year, provided that We have given the Customer at least three (3) months prior notice.
- The charges will be due monthly in advance. Unless otherwise agreed, We will collect all payments via direct debit and the Customer hereby authorizes Us to collect the payments due from the Customer’s bank account as specified in the Order Form. If We do not receive payment of any charges when due then:
- the Customer shall be in breach of this Agreement without any notice of default being required and all of Our claims against the Customer shall become immediately due and payable;
- the Customer shall be obliged to pay the statutory interest rate for commercial debts on the outstanding amount and all judicial and extra-judicial costs incurred by Us relating to the recovery and collection of any overdue amount;
- We reserve the right to suspend the Customer’s access to and use of the VISIONTRACK Service until all outstanding amounts (including interest and costs) are settled; and
- any costs of suspending and reactivating shall be borne by the Customer.
- All payments to be made by the Customer must be effected without set-off or suspension.
- Liability and Indemnity
- Subject to paragraph 7.3, We shall not be liable in contract, tort (including negligence), breach of statutory duty or otherwise for:
- regardless of whether direct or indirect, any:
- loss of profits;
- loss of anticipated savings;
- loss of revenue or business;
- loss or corruption of data;
- loss of use;
- loss of goodwill;
- loss due to delay; or
- any indirect or consequential loss or damage whatsoever, regardless of whether such loss or damage was foreseeable or foreseen.
- Subject to paragraph 7.3, Our aggregate liability to the Customer for any claim or linked series of claims arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to the greater of:
- 100% (one hundred per cent) of the net price paid or to be paid by the Customer in the twelve (12) months preceding the claim for such loss or damage; or
- £5,000 (five thousand pounds GBP).
- Nothing in the Agreement shall be deemed to exclude or limit Our liability in respect of:
- fraudulent misrepresentation; or
- injury or death caused by Our negligence or that of Our Representatives;
- any other liability that cannot be excluded or limited by law.
7.4 Any claim for loss or damages (except a claim for damages arising out of paragraph 7.3) must be notified to Us within twelve (12) months from the date on which the loss or damage was caused, failing which such claim is deemed to be waived and the Customer agrees to indemnify Us and Our Group in full and on demand against any loss or damage suffered or incurred by Us as a result of any claim not brought in accordance with this paragraph.
7.5 The Customer shall indemnify the Indemnified Parties in full and on demand and keep them so indemnified from and against all losses, claims, costs or expenses suffered or incurred by the Indemnified Parties as a direct or indirect result of the Customer’s or its Representatives’:
- negligence; or
- breach of the Agreement; or
- use of the VISIONTRACK Service,
except to the extent that such losses, claims, costs or expenses arise as a direct result of any negligence or breach of the Agreement by the Indemnified Parties or their Representatives.
7.6 All warranties, conditions or other terms implied by statute that are not expressed in this Agreement are, to the fullest extent permitted by law, excluded from the Agreement.
- Force Majeure
If a party is prevented or delayed in the performance of any of its obligations under the Agreement by Force Majeure, then that party will be excused from the performance or punctual performance, as the case may be, of its obligations, to the extent that such Force Majeure continues and agrees to use its reasonable endeavours to overcome or work around the Force Majeure so as to be able to perform its obligations under the Agreement.
- Personal Data
- We may collect, process, store and use Fleet Drivers’ Personal Data, including without limitation the Location Data and Footage. We currently host Our data centres via a third party under terms compliant with the European Data Protection Directive. The Customer agrees to Us making Personal Data available to third parties for this purpose.
- The Customer agrees that We may transfer Fleet Drivers’ Personal Data to the third parties that We use for the provision of the VISIONTRACK Service.
- At Our option, We may anonymise Personal Data obtained via the use of the VISIONTRACK Services in order to sell it as aggregated data to third parties.
- We may transfer Personal Data outside of the European Economic Area.
- The Customer agrees to the collection, processing, storage and use by Us of Location Data and Footage.
- The Customer warrants that it shall obtain all consents (which consents must be explicit and compliant in all ways with the DPA) from all Fleet Drivers necessary to the processing of their Personal Data by Us. The Customer shall issue a data notice to all Fleet Drivers in such form as We decide from time to time.
- The Customer shall not provide access to vehicles forming part of the Fleet to any person who has not provided consent (which consent must be compliant in all ways with the DPA) to the processing of their Personal Data. In the event that any Fleet Driver withdraws consent to processing of their Personal Data, the Customer shall immediately withdraw that Fleet Driver’s access to vehicles forming part of the Fleet.
- The Customer shall notify Us within two working days if it receives a request from a Fleet Driver for access to that Fleet Driver’s Personal Data which is processed as part of the VISIONTRACK Service and shall provide any details relating to such request that We require.
- The Customer may revoke its consent for the collection, processing, storage and use of Location Data at any time. Such revocation must be presented to Us in writing and shall not affect the Customer’s payment obligations under the Agreement. The Customer acknowledges that as a result of such revocation We may no longer be able to provide the VISIONTRACK Service.
- The Customer understands and agrees that the Camera and Platform will record and analyse data about Fleet Drivers. We will collect, process and store this information securely, ensuring that it is protected in accordance with industry best practice and Our legal and regulatory requirements.
- The Camera and Platform will capture and send specific locations, direction and current speed amongst other factors as well as footage to the server which will be available to view via the VISIONTRACK Platform.
- The Customer must make Fleet Drivers aware that Data, including where applicable their Personal Data may ultimately be used for the following purposes:
- to help to understand safe driving behaviours, to develop underwriting of motor insurance policies and to inform development of products, Service and systems;
- to help to determine or corroborate the circumstances of a claim, loss or theft;
- to help prevent and detect fraud;
- to tailor insurance premiums at renewal.
- We may share anonymous (or anonymised) Data received from telematics devices with the general public and other third parties.
- Fraud Prevention & Detection
The Customer must show the following notice to any Fleet Driver or anyone else whose Personal Data has been supplied to Us in connection with this Agreement.
To prevent and detect fraud We, MSG Automotive Solutions Limited, may at any time:
- Share the data and other information about you with other organisations and public bodies including the police although We only do so in compliance with the Data Protection Act 1998.
- Check and/or file details with fraud prevention agencies and databases and if We are given false or inaccurate information and We identify fraud, We will record this with these agencies and on these databases. We and other organisations may also use and search these agencies and databases from the UK and other countries to:
- inform decisions about the provision and administration of insurance, credit and related Service for you and members of your household;
- trace debtors or beneficiaries, recover debt, prevent fraud, and to manage your accounts or insurance policies;
- check your identity to prevent money laundering, unless you provide Us with other satisfactory proof of identity
Law enforcement agencies may access and use this information. We may have to provide information and data concerning Our policyholders if the police request this under section 29 of the Data Protection Act 1998. We will only do this where the police or other agencies have obtained a court order.
We and other organisations may also access and use this information to prevent fraud and money laundering, for example when:
- Checking Platforms for, and managing credit and other facilities and recovering debt;
- Checking insurance proposals and claims;
- Checking details of job applicants and employees.
We, and other organisations that may access and use information recorded by fraud prevention agencies, may do so from other countries.
We can provide the names and addresses of the agencies We use. Please contact Us at firstname.lastname@example.org.
Access to your information
You will be able to access your data via the VISIONTRACK Platform using a username and password. By accepting these Terms you accept that any individual who is provided with the password and has a sufficient user level permission (with such sufficiency to be determined by MSG Automotive Solutions Limited) will be able to view the data collected by the telematics device.
Information on how to access and log on to the Platform has been sent to you via email.
You have the right to see the information We hold about you through a Subject Access Request. If you would like a copy of your information, please write to:
The Data Protection Officer, MSG Automotive Solutions Limited, Markerstudy House, 45 Westerham Road, Bessels Green, Sevenoaks, Kent, TN13 2QB. A fee may be payable.
- Intellectual Property
- All intellectual property rights in the VISIONTRACK Service are and remain proprietary to Us and Our licensors and the Customer shall not at any time acquire any rights, title or interest in these intellectual property rights.
- The Customer will not at any time contest Our ownership of the intellectual property rights in the VISIONTRACK Service, nor assist anyone else to do so, nor do anything that would jeopardize or diminish Our rights to the VISIONTRACK Service or the value of the intellectual property rights vested therein.
- Term and Termination
- The Agreement commences on the Effective Date and shall continue in force during the Initial
Term. Following the Initial Term, the Agreement shall automatically renew for consecutive additional periods of one (1) year each, unless either party gives the other party written notice of its intention not to renew at least three (3) months prior to the date on which the Agreement would otherwise renew.
- Each party may, without prejudice to any of its other rights arising hereunder, upon giving written notice to the other party, terminate the Agreement with immediate effect, if:
- the other party breaches any material term of the Agreement, including in any event non or late payment, and such default or breach (if capable of remedy) is not remedied within ten (10) calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given;
- any of the following events occur: (a) the presentation of a petition for winding up of the other party; (b) the other party is the subject of an order or an effective resolution is passed for winding up the other party; (c) the Platform for an order or Platform for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the other party; (d) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the other party; (e) the other party making a composition nor arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (f) the other party goes into liquidation; (g) the other party becoming unable to pay its debts or otherwise becoming insolvent, or (h) the other party ceasing, or threatening to cease, to carry on business, or
- there has been any delay or failure in performance under the Agreement resulting from any event of Force Majeure, which delay or failure shall have continued for a period of three (3) calendar months.
- Upon termination of the Agreement and without prejudice to Our other rights:
- the Customer’s right to use the VISIONTRACK Service shall automatically terminate without further notice; and
- the Customer shall pay Us all sums due under the Agreement.
- Upon termination of the Agreement and without prejudice to Our other rights:
13.1 Neither party may assign, sub-contract, transfer or dispose of any of its rights and obligations under the Agreement, either in whole or in part, without the prior written consent of the other party, provided that We may assign, sub-contract, transfer or dispose of any of Our rights and obligations under the Agreement, either in whole or in part, to any member of the Group without the Customer’s prior consent.
13.2 The illegality, invalidity or unenforceability of any provision (or any part of a provision) of the Agreement shall not affect the legality, validity or enforceability of any other provision (or any other part of the provision) of the Agreement.
13.3 No amendment to the Agreement is valid or binding unless made in writing, and for the purposes of this paragraph “writing” shall include email.
13.4 We shall be entitled to amend these Terms, which amendments shall enter into force on the date that the Customer is notified thereof.
13.5 A person who is not a party to this Agreement may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.
13.6 This Agreement and any dispute or claim arising out of it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.7 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including non-contractual disputes or claims).
- Acceptable Use Policy
14.1 By accepting the Terms, the Customer agrees to be bound by the Acceptable Use Policy below and further agrees that it shall procure Users’ strict adherence to the Acceptable Use Policy.
14.2 Users and the Customer may use the VISIONTRACK Service only for lawful purposes. The VISIONTRACK Service must not be used:
- in any way that breaches any applicable local, national or international law or regulation.
- in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
- for the purpose of harming or attempting to harm minors in any way.
- to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
- to knowingly transmit any pornographic material, or other material which may cause harassment, alarm or distress to others.
- to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
14.3 The Customer agrees and warrants on behalf of Users not to access without authority, interfere with, damage or disrupt:
- any part of the VISIONTRACK Service;
- any equipment or network on which Our Camera and Platform is stored;
- any software used in the provision of the VISIONTRACK Service; or
- any equipment or network or software owned or used by any third party.
14.4 We accept no liability for damage to vehicles caused by the Customer’s installation of a self-installed telematics device.