Version 2.1 June 2018 – Australia
1. Scope and Service Description – Husqvarna Fleet Services
Husqvarna Fleet Services are intended to help the Customer to increase productivity by providing an overview of the Customer’s fleet of Machines. The Services are provided by way of Fleet Machine Sensors (embedded in the Machine and/or subsequently installed) and other Sensors that collect a variety of Machine Data- and, depending on the use of the Services, personal data relating to the Operator. Processing of personal data is regulated in Section 7 and 8 in these Terms and Conditions as well as in a separate Data Processing Agreement.
Depending on type of Machine, data is uploaded via tablet or smartphone or via connectivity embedded in the Machine to a managed web site and dedicated apps that provide various Machine statistics and other related services such as Operator statistics, by using electronic ID cards, the management of jobs, tasks, documents and more.
The Services consist of access to and use of functions made available on the Fleet Services Platform. The Services provide the Platform Users of the Customer access to the Fleet Services Platform and the ability to monitor Machine Data and Operator related data. In providing the Services, each Machine collects Machine Data and Operator related data by means of the Sensors.
Fleet Services comes with a set of free functionality, such as asset list, project and tasks and library. In order to make use of the full range of Services, each Machine must be subscribed to the Services (a Machine Subscription). Additionally, in order to make use of functionality, statistics and other parts of the Services relating specifically to an Operator the Operator must also be subscribed to the Services (an Operator Subscription). This specific functionality is planned to be released during 2019.
The Customer can activate and inactivate Machine Subscriptions and Operator Subscriptions over seasons. Available Service content depends on Machine model and some Services are not available for Third Party Machines. Detailed information about which Service content is available for each Machine model can be found on www.husqvarna.com or inside Fleet Services Platform.
Husqvarna Fleet Services have been designed and are intended for use by companies and other professional users and they have not been adapted for use by consumers and non-professionals. Husqvarna may under separate terms, in its sole description, from time to time, against fees or free of charge, provide alternatives to Husqvarna Fleet Services for use inter alia by consumers; please visit Husqvarna's webpage for information on available consumer services.
Husqvarna Fleet Services are provided by Husqvarna Sales Company as a subscription service, subject to the following terms and conditions.
For the avoidance of doubt, these terms and conditions do not regulate the sale of Machines and Hardware, which instead is regulated by a separate sales contract concluded with the Husqvarna Sales Company or the Dealer.
The following expressions shall, when used in these terms and conditions and on the Fleet Services Platform, have the meaning assigned to them in this Section 2:
|| means a user account, including log-in credentials, enabling the Customer to access the Fleet Services Platform and other Husqvarna systems.
|| means the customer company that validly operates the Machines in its business and for which the Account has been created.
|| means an independent company (not part of the Husqvarna AB group of companies) that sells Husqvarna Machines and Hardware to the Customer under a separate agreement.
| “Fleet Services Platform”
|| means the web portal found at fleetservices.husqvarna.com and dedicated apps for Android and iOS smart phones and tablets.
|| means all hardware equipment required for data collection, monitoring and management in connection with Husqvarna Fleet Services, including Sensors, electronic ID cards, base stations and the necessary computer and telecommunications equipment to access the Internet.
| “Husqvarna AB”
|| means Husqvarna AB (publ), Company Registration No. 556000-5331, a corporation organized and existing under the laws of Sweden, having its principle office at Drottninggatan 2, SE-561 82 Huskvarna, Sweden.
| “Husqvarna Machine”
|| means a Husqvarna hand held, walk-behind, robotic lawn mowers or ride-on Machine owned, leased or otherwise validly operated by the Customer as part of its fleet, in relation to which the Customer will use the Services. The Machine models available for the Services are listed on the Fleet Services Platform at www.husqvarna.com.
| “Husqvarna Sales Company”
|| Means the local Husqvarna sales company providing the Services to the Customer. The Husqvarna Sales Company is the Customer’s contracting party.
The Husqvarna Sales Company in Australia is Husqvarna Australia Pty Ltd, registered with the Australian Securities and Investments Commission (ASIC) under the Company Registration No. 115 475 619 a corporation organized and existing under the laws of Australia having its principle office at 4 Pioneer Ave., Tuggerah NSW 2259, Australia.
|| Means a Husqvarna Machine and/or a Third Party Machine as the case may be.
| “Machine Data”
|| means certain data attributable to the Machine, such as engine rpm and clutch engagement. For the avoidance of doubt, Machine Data does not contain any personal data.
| “Fleet Machine Sensor”
|| means a Sensor installed in a Machine.
| “Platform User”
|| means an individual who has been authorized by the Customer to use the Services and the Fleet Services Platform, or part thereof.
| “Machine Subscription”
|| means a subscription to the Services, for one or more of the Customer’s Machines.
|| means the Fleet Machine Sensors and the sensors built into the electronic ID-cards and the base station, enabling data tracking and wireless transmission of data.
|| means Husqvarna Fleet Services, as described in Section 1, as subscribed to by the Customers.
|| means the software provided with or embedded in the Sensor and the software contained in or underlying the Fleet Services Platform.
|| means the Software and Hardware required for data collection, monitoring and management in connection with Husqvarna Fleet Services.
3. Conditions for using Husqvarna Fleet Services
In order to use the Services the Customer must:
- Sign up for and create an Account, as further described in Section 4.
- Accept these Terms and Conditions as set out on the Fleet Services Platform, as further described in Section 4.
- Pay the relevant subscription fees, as further specified in Section 10.
- Obtain the necessary Hardware (as defined in Section 2 above) as follows:
- The Fleet Machine Sensors.
- The Customer is responsible for obtaining and maintaining access to the Services. Thus, the Customer must have and is responsible for all computer and telecommunications equipment necessary to access the Fleet Services Platform (including Internet connection).
Follow Husqvarna Sales Company’s instructions from time to time regarding the Services, for example relating to Software updates required for the continued use of a Service.
During the on-boarding process, a welcome e-mail to the Fleet Services Platform will be generated and sent to the Customer. The Customers first step will be to confirm and/or create an Account and may then continue to login to the Account on the Fleet Services Platform only after having accepted these Terms and Conditions for Husqvarna Fleet Services, as presented to the Customer on the Fleet Services Platform.
The Husqvarna Fleet Services will be administered by the Customer via a set of self-service modules in the Fleet Services Platform, such as adding Machines, inviting and managing PlatformUsers, activating the Machine Subscription(s) .
User names and passwords are personal and must be handled with care by the Customer and the Platform Users.
5. Intellectual Property Rights
The Customer acknowledges that Husqvarna AB (or a third party) holds all intellectual property rights to the Software, including the Software documentation and user manuals, and that Husqvarna AB holds the intellectual property rights to the trademarks and/or trade names Husqvarna and Husqvarna Fleet Services.
The Customer may not copy, replicate, alter, modify, adapt, decompile, disassemble, create a derivative work of, reverse engineer, or otherwise attempt to discover any source code of theSoftware, except to the extent expressly permitted by Husqvarna AB or under mandatory law.
Husqvarna Fleet Services are marketed by Husqvarna Sales Company as services. The Customer acknowledges and agrees that the Customer does not obtain any intellectual property rights to the Software, to the System or to Husqvarna AB’s or Husqvarna Sales Company’s registered trademarks and/or trade names.
The Customer also acknowledges and agrees that, unless otherwise indicated, the Fleet Services Platform and its contents are the property of Husqvarna AB. The copyright and the material contained on the Fleet Services Platform belong to Husqvarna AB or its licensors, and the trademarks appearing on the Fleet Services Platform are protected under law and international trademark laws. The Customer may not copy, replicate or redistribute any of the content of the Fleet Services Platform or create a database in electronic form or manually by downloading and storing any such content.
6. Modifications by Husqvarna
Husqvarna Sales Company may modify the Services, including the fees, or the provisions of these terms and conditions at any time in Husqvarna Sales Company’s sole discretion. Any change to a Service (other than minor changes) or these terms and conditions shall be notified to the Customer by notice on our website or email correspondence to the Customer or other appropriate means of correspondence with confirmation of delivery (e.g. trackable post) and will take effect thirty (30) days after such notice was sent to the Customer. The Customer is entitled to terminate the Services or individual subscriptions, with immediate effect by providing Husqvarna Sales Company written notice that the notified changes are not acceptable to the Customer as set out inSection 15 below. In this case, the Customer may request that any pro-rated pre-paid sums for the terminated parts of the Services will be repaid to the Customer. Unless the Customer within that thirty (30) days' period has exercised its right to terminate the Services in whole, the Customer shall be deemed to have accepted Husqvarna Sales Company’s changes to the Services or these terms and conditions.
7. Collection and Use of Information
The Services will result in the automatic gathering of Machine Data.
Data created by the Customer in connection with its use of the Services belongs to the Customer. However, Husqvarna AB, Husqvarna Sales Company and Dealers as selected by the Customer may freely access, process, utilize and aggregate Machine Data contained in the Services and the System for the purposes set out in this document and in the data processing agreement between Husqvarna AB or the applicable Husqvarna Sales Company and Customer as set out in Section 8. Such aggregated Machine Data may, for example, be used to improve support services and to provide appropriate maintenance and asset management of the Machines. Husqvarna AB and Husqvarna Sales Company are free to disclose any anonymized Machine Data to third parties and publicly. Husqvarna AB’s and Husqvarna Sales Company’s right to access, process, utilize and publish the anonymized Machine Data may not be revoked or terminated and will survive the termination of all subscriptions.
Personal data about the Platform User, if processed by the Customer, is stored on behalf of the Customer in a database to which only a limited amount of Husqvarna users have access. See further Section 8 below.
Historic data in the System connected to an individual subscription of the Customer can be accessed by the Customer on the Fleet Services Platform after even if the subscription has been deactivated.
8. Data Protection and Security
The Customer and Husqvarna AB and any relevant Husqvarna Sales Company shall comply with the requirements on data controllers and data processors (respectively) set out in applicable privacy laws including without limitation the EU Directive 95/46/EC (the "Directive") and, as from 25 May 2018, Regulation (EU) 2016/679 General Data Protection Regulation (the "GDPR"), and such national legislation implementing the Directive and the GDPR (together the "Data Protection Legislation"). In line with Data Protection Legislation, Customer and Husqvarna AB or the applicable Husqvarna Sales Company will conclude a data processing agreement pursuant to Article 28 of the GDPR.
The Customer agrees not to disclose any confidential information of Husqvarna AB or Husqvarna Sales Company. Confidential information includes all business, marketing, technical or other information of a confidential or sensitive nature belonging to, or licensed to, Husqvarna AB or Husqvarna Sales Company and disclosed to the Customer as part of or in connection with the Services. Information shall not be considered confidential to the extent that such information is: (i) already known by the Customer free of restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of restriction; or (iii) available publicly.
10. Prices and Payment Terms
The Customer shall pay fees monthly, or otherwise as specified on the Fleet Services Platform, for each subscription activated from time to time. Subscription fees paid are non-refundable, unless otherwise stated in these terms and conditions.
Invoices to the Customer are issued by Husqvarna Sales Company. Unless otherwise agreed, (i) the Husqvarna Sales Company will invoice the Customer for the Services as described on theFleet Services Platform, (ii) each invoice must be paid thirty (30) days from the date of the invoice, and (iii) the Husqvarna Sales Company shall be entitled to charge statutory default interest rate on any overdue amount, including accrued interest. All taxes or duties or any fee, charge, allowance or similar compensation imposed by local law shall be borne by the Customer and will be added to the fees.
11. Disclaimer of Warranties and Limitation of Liability
To the extent not expressly stated otherwise in these terms and conditions, neither Husqvarna AB, Husqvarna Sales Company, nor any of their partners, agents or affiliates, have made or shall be deemed to have made any representation or warranties in respect of the Services, the Fleet Services Platform or the System. Thus, they are provided without any warranties, to the fullest extent permissible by mandatory law.
The Customer understands and agrees that Husqvarna AB and Husqvarna Sales Company will have no responsibility or liability for any damage arising as a result of any inaccuracy in the data processed as part of the Services or as a result of a failure to store Customer input information or Machine Data. The Customer also understands and agrees that the provision of the Services contains elements of hosting services and communications, and that the provision of such services might not be free from errors, meaning that the provision of the Services may be interrupted or suspended, and that Husqvarna AB and Husqvarna Sales Company will have no liability with respect thereto.
Husqvarna AB and Husqvarna Sales Company shall only be liable for lost profit, indirect damage, consequential loss, any other indirect damages or any damages which could not be foreseen at the time of conclusion of the contract if such damages occur due to the gross negligence or fraud of Husqvarna AB, Husqvarna Sales Company or one of their managerial employees. This limitation of liability is correspondingly valid for claims against employees, agents, partners and affiliates of Husqvarna AB and Husqvarna Sales Company.
The above limitations shall not apply to damage resulting from death, injury or damage to health.
The Customer shall indemnify and hold harmless Husqvarna AB and Husqvarna Sales Company and each of their partners, agents and affiliates from and against any and all claims, liabilities, losses and damages, costs and expenses (including but not limited to any fines and reasonable legal expenses), caused by its employees or other representatives or by its third parties or arising out of the Customer’s breach of any of its obligations under these terms and conditions or any of its obligations under laws in connection with its use of the Services, including the System, Software and the Fleet Services Platform, except to the extent that Husqvarna AB or Husqvarna Sales Company has caused or contributed to the claim, liability, loss, damage, cost or expense.
12. Third Party Machine – Limitation of Liability and Indemnification
Husqvarna shall have no responsibility or liability towards Customer or any third party for any claims, liabilities, losses and damages, costs and expenses (including but not limited to any fines and legal expenses) arising as a result of Customer mounting a Fleet Machine Sensor to a Third Party Machine.
Without limitation as to Husqvarna’s other rights here under, Customer shall defend, indemnify, and hold Husqvarna, Husqvarna Sales Company, Dealer, its affiliates, employees, agents, and customers harmless from and against all claims, liabilities, losses and damages, costs and expenses (including but not limited to any fines and reasonable legal expenses) arising out of (i) any death, personal injury, property damage or any other type of damage or injury, by whomever suffered, caused or alleged to be caused by mounting the Fleet Machine Sensor to a Third Party Machine; or (ii) the use of the Third Party Machine on which the Fleet Machine Sensor has been mounted; or (iii) any limitation in warranty covering the Third Party Machine caused or alleged to be caused by mounting the Fleet Machine Sensor to a Third Party Machine or the use thereof, or (iv) any other limitation in the Third Party Machine supplier’s, dealers and/or other representatives responsibility and/or liability for the Third Party Machine related to, caused or alleged to be caused by, mounting the Fleet Machine Sensor to the Third Party Machine or any other use of the Services, , except to the extent that the Dealer, Husqvarna AB or Husqvarna Sales Company has caused or contributed to the claim, liability, loss, damage, cost or expense.
13. Force Majeure
Husqvarna Sales Company shall not be liable for any failure to perform its obligations under these terms and conditions if such failure is caused by a force majeure event such as any failure by a third party supplier of goods or services, communications outages or interruptions, accidents, strikes, labor trouble, earthquakes, flood, fire, riot, revolt, acts of war or terrorism, acts of governmental authority or the occurrence of any other event beyond the reasonable control of Husqvarna Sales Company.
14. Assignment, etc.
The Customer is not entitled to assign, delegate or pledge any right or obligation under its subscription and these terms and conditions, either in whole or in part, against payment or free of charge, without the prior written consent of Husqvarna Sales Company.
Any notice required or permitted to be given under these terms and conditions by one of the parties to the other, shall, unless expressly stated otherwise herein, be delivered
- To the Customer, by e-mail to the e-mail address or Customer contact information as registered on the Account.
- To Husqvarna Sales Company, by e-mail using the e-mail address set out on the Fleet Services Platform, under “Contact us”.
16. Term and Termination
These terms and conditions shall apply for as long the Customer maintains an Account. Husqvarna and the Customer may terminate the Services at any time with three (3) months' and one (1)month, respectively, written notice to the other party which may be served by all appropriate means with confirmation of delivery.
Each of the parties is entitled to terminate the Services, or subscription(s), with immediate effect if (a) the other party commits a breach of these terms and conditions that, if capable of being cured, is not cured within ten (10) working days after the party was informed about the breach or (b) insolvency proceedings are instituted with respect to the Customer’s assets or if the institution of such proceedings has been rejected due to a lack of insolvency assets or the Customer can otherwise reasonably be considered as being insolvent (c) or winding-up proceedings take place or are pending against the Customer.
17. Governing Law and Dispute Resolution
These terms and conditions shall be governed by and interpreted, and all rights and obligations of the parties shall be determined, in accordance with the substantive laws of Sweden excluding its conflicts of law rules. Any dispute, controversy or claim arising out of or in connection with the Services or these terms and conditions, or the breach, termination or invalidity thereof shall be settled by general Court of Law in Sweden.