|Kinesis Fleet General Terms and Conditions
1. Definitions and Interpretation
Kinesis Fleet General Terms and Conditions
1. Definitions and Interpretation
1.1 In these Terms:
Additional Charges means the charges set out in the Charges Schedule;
Affiliates means with respect to any party, any other entity controlling, controlled by or under common control with such party. The terms “control”, “controlling” and “controlled”, as used in this definition shall mean the legal, beneficial or equitable ownership, directly or indirectly, of more than 50% of the issued share capital or more than 50% of the voting rights, or the power, directly or indirectly, to appoint a member of the board of directors or similar governing body of such entity;
Agreement means these Terms and Conditions of Supply;
Confidential Information means information of commercial, proprietary or other value disclosed by one Party to the other Party which is identified as confidential or might reasonably be considered to be confidential and that has not come into the public domain or been independently developed;
Charges Schedule means the charges set out at https://www.kinesisfleet.com/en-my/charges/
Commencement Date means the beginning of the first billing period;
Contract means a contract between the Parties for the sale, rent and licence (as applicable) of Products and/or the Services entered into between the Customer and Supplier in accordance with clause 3;
Customer means the entity purchasing, renting or licensing the Products (as applicable) and/or the purchaser of Services;
Data Reports means visual and other representations of telematic data accessible through the Website;
Firmware means the Supplier’s proprietary tracking unit management and control software;
Fleet means the vehicles, assets or personas to be tracked or traced via the Services;
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the Party affected (including power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
Hardware means vehicle telematics units and associated peripherals which may or may not include Firmware, SIM card and network airtime and Onboard Unit
Initial Term the first-time period of a grant of a licence to use the Product and paid for by the Customer as set out in the Sales Order Confirmation;
Installation means fitting the Hardware into the Fleet;
Intellectual Property means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Products any copyrights and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing;
Kinesis and Kinesis Fleet are trading names of the Supplier and the Supplier’s parent company, Radius Payment Solutions Limited (Company number: 08260702);
Kinesis Platform means the IT systems that run the Service;
Location Data means data on the geographical position of the Fleet and other messages sent to or by the Fleet;
Mobile Communication Services means the mobile electronic communication services used for transmitting Location Data;
Onboard Unit means an electronic device that can be used for obtaining, capturing and transmitting Location Data and other driver behaviour events via satellite tracking and for sending and receiving such data;
PAYGO Customer means an entity who is Supplied the Product and Services on a rolling monthly basis;
PAYGO Termination Fees means an amount equal to the equivalent of three times the monthly Prices;
Personal Data has the meaning set out in section 4 of the Personal Data Protection Act 2010 of Malaysia and relates only to personal data, or any part of such personal data, in relation to which the Supplier is providing Services under the Contract;
Prices means the price:
a) for the Products and the Services set out in the Sales Order Confirmation; or
Processing has the meaning set out in section 4 of the Personal Data Protection Act 2010 of Malaysia and “Process” shall have a corresponding meaning;
Products means the Hardware which is purchased or rented by the Customer and where applicable the Software and Firmware;
RM means Malaysian Ringgit, the lawful currency of Malaysia;
Renewal Period shall be on a rolling quarterly basis as the set out in the original Sales Order Confirmation;
Sales Order Confirmation means the confirmation sent by the Supplier to the Customer;
Services means the delivery of such services as agreed with the Customer from time to time;
SIM means Subscriber Identity Module card providing network airtime;
Software means the Supplier’s proprietary application software and third party licensed software where applicable in existence at the commencement of the Contract or developed as a product of the Services;
Statistical Data has the meaning given in clause 10.5;
Supplier means Radius Fuel Cards. Sdn. Bhd (Company number: 1180138-H), a private company incorporated in Malaysia with its registered office address at Upper Penthouse, Wisma RKT, No. 2 Jalan Raja Abdullah, Off Jalan Sultan Ismail. 50300, Kuala Lumpur;
Terms means this Agreement along with the Sales Order Confirmation and invoice;
Termination Fee means an amount equal to the equivalent of six times the monthly Prices;
Website means the content (including all and any displayed materials and graphics such as databases, maps, photographs, and other images) of the Supplier websites at www.velocityfleet.com and www.kinesisfleet.com which shall contain the Data Reports.
1.2 The ejusdem generis rule is not intended to be used in the interpretation of these Terms; it follows that a general concept or category utilised in these Terms will not be limited by any specific examples or instances utilised in relation to such a concept or category.
1.3 The singular shall include the plural and vice versa and words denoting persons shall include bodies corporate and unincorporated associations of persons.
2. These Terms
These Terms contain the only conditions upon which the Supplier will deal with the Customer, and they govern all Contracts to the exclusion of all other terms and conditions.
3. Basis of Contract
3.1 Each order for Products given by the Customer to the Supplier will be deemed to be an offer by the Customer to purchase or rent (and in the case of Software and Firmware, licence) Products from the Supplier subject to these Terms and in order for a Contract to come into force the Supplier shall send a Sales Order Confirmation to the Customer.
3.2 Notwithstanding the above, use of the Products and/or the Services will, in any event, constitute acceptance of these Terms by the Customer and a Contract will come into force between the Parties on the basis of these Terms.
4. Delivery & Installation
4.1 Unless otherwise agreed in writing:
4.1.1 all Hardware will be delivered by the Supplier to the Customer’s premises or to such other address as may be agreed by the Parties;
4.1.2 risk in the Hardware will pass from the Supplier to the Customer when the Products are delivered to or where applicable collected by the Customer;
4.1.3 subject to clause 10.1, where the Customer installs the Hardware or appoints another person to install the Hardware, the Supplier shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence or failure to comply with the Supplier’s instructions in installing the Hardware;
4.1.4 where the Customer requests Installation of the Hardware by the Supplier an Installation date will be agreed with the Customer and the Installation may be performed by a third party engaged by the Supplier. Installation costs shall be borne by the Customer. Where the Customer cancels an arranged Installation with less than 24 hours’ notice, or otherwise fails to present the vehicle at the agreed date, time or place of Installation the Supplier may charge the Customer a late cancellation charge of RM100 per vehicle or such other late cancellation charge as the Supplier customarily applies as at the date of cancellation
5.1 Where the Customer purchases the Hardware from the Supplier, legal and equitable title to the Hardware (excluding where applicable, Firmware and SIM card) will pass from the Supplier to the Customer upon the later of:
5.1.1 delivery of the Hardware; and
5.1.2 receipt by the Supplier of all amounts due from the Customer to the Supplier under any Contract or other agreement.
5.2 Until title to the Hardware (excluding where applicable Firmware and SIM card) has passed to the Customer:
5.2.1 the Customer will hold the Hardware as fiduciary agent and bailee of the Supplier;
5.2.2 the Customer will as applicable: (i) store the Hardware in a secure, safe, dry and clean environment separately from other products and goods; (ii) ensure that the Hardware is easily identifiable as belonging to the Supplier; (iii) not deface, destroy, alter or obscure any identifying mark on the Hardware or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Hardware; and (v) deliver up the Hardware to the Supplier upon demand.
5.3 Where a Customer has not paid for the Hardware, the Customer’s right to possession of the Hardware shall terminate immediately in the event of:
5.3.1 the Customer (being an individual) dies or is unable to pay his debts or subject of a bankruptcy order or (being a company) if a liquidator (other than for the purpose of amalgamation or reconstruction), administrative receiver, administrator or receiver is appointed in respect of the whole or any part of the Customer’s assets or business or the Customer enters into an arrangement or composition with its creditors, or if it becomes unable to pay its debts, or if the Customer suffers any distress or execution to be levied upon any of his goods or premises or any equipment at his premises or other circumstances arise which would entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to make a winding up order in relation to the Customer;
5.3.2 the Customer ceases to trade; or
5.3.3 the Customer seeks to or does encumber or in any way charge the Hardware.
5.4 The Supplier may bring an action for the price of the Hardware, and any other amounts due under a Contract, notwithstanding that title to the Hardware has not passed to Customer.
6. Undertakings and obligations of the Customer
6.1 The Customer shall:
6.1.1 only use the Products for their purpose and in a careful and proper manner in compliance with the Supplier’s instructions and specifications;
6.1.2 ensure that the Products and Services are used strictly in accordance with all applicable laws and regulations at all times, and procure and maintain in place at all times all licences, consents, authorisations and approvals required to utilise and enjoy the Products and Services (including in respect of the Personal Data Protection Act 2010 of Malaysia and any other applicable data protection laws and regulations);
6.1.3 procure that all restrictions and obligations imposed on it by this Contract apply equally to its employees, Affiliates and its customers;
6.1.4 ensure that all such employees, Affiliates and customers fully comply with all such restrictions and obligation;
6.1.5 cooperate in good faith with the Supplier and follow the Supplier’s reasonable instructions;
6.1.6 procure that the Supplier, its agents, employees, subcontractors and Affiliates are provided with access to the Fleet and any premises where the Fleet is located, and provide such reasonable information as is required from time to time in order to fulfil the Suppliers’ obligations under the Contract.
7. Prices and Payment
7.1 The applicable Prices in respect of the Services provided to the Customer by the Supplier shall be as set out in the Sales Order Confirmation.
7.2 Each purchase of Services by the Customer under a Sales Order Confirmation shall be subject to these Terms. In the event of a conflict between the provisions of these Terms and any Sales Order Confirmation, the Sales Order Confirmation shall prevail.
7.3 No Order shall be deemed to be accepted by the Supplier unless and until the Sales Order Confirmation has been signed by a duly authorised officer or employee of the Supplier and its signature has been notified to the Customer.
7.4 The Customer shall pay the Prices, via direct debit, to the Supplier in accordance with this clause and as specified in an applicable Sales Order Confirmation. Unless otherwise specified in the Sales Order Confirmation, payment of all amounts due shall be made by the Customer within 14 days of the date of invoice.
7.5 All Prices payable under a Contract are exclusive of all value-added and other taxes and duties applicable to the sale, licencing and supply of the Products or provision of the Services which will be payable by the Customer.
7.6 If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract on or before the due date, the Supplier may charge the Customer interest on the overdue amount at the rate of 5% per year above the base rate of Malayan Banking Berhad as may be amended from time to time (which interest will accrue daily until the date of actual payment and be payable on demand).
7.7 Unless agreed otherwise in writing, all Prices can be changed by the Supplier upon giving the Customer 30 days written notice.
7.8 The Customer shall make all payments properly due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
8.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (“Warranty Period”), the Products shall:
8.1.1 conform in all material respects with their description;
8.2 Subject to clause 8.3, if:
8.2.1 the Customer gives notice in writing during the Warranty Period within 10 Business Days of discovery that some or all of the Products do not comply with the warranty set out in clause 8.1; and
8.3 the Supplier shall, at its option, repair or replace the defective Products, or refund the price paid for the defective Products in full (where the Customer has purchased such Products).
The Supplier shall not be liable for the Products’ failure to comply with the warranty in clause 8.1 if:
8.3.1 the Customer makes any further use of such Products after giving a notice in accordance with clause 8.2;
8.4 Except as provided in this clause 8, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 8.1.
8.5 These Terms shall apply to any repaired or replacement Products supplied by the Supplier under clause 8.2.
9.1 Subject to and in accordance with the provisions of this Contract, the Supplier grants to the Customer for the duration of the Initial Term (and any Renewal Period thereafter) a personal, non-exclusive right to: access and browse the contents of the Website; and download and print Data Reports or any part thereof from the Website on the basis that no graphics on the Website shall be used separately from the corresponding text; and Customer shall not utilise the Supplier’s trademarks or trade names in any way without the express written consent of the Supplier save that the Customer shall ensure that the Supplier’s copy right and trade mark notices appear in all copies. No part of the Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service.
9.2 The Customer shall comply with any reasonable instructions or conditions relating to its use of the Website as may be posted on the Website or otherwise communicated to the Customer from time to time by the Supplier.
9.3 The Supplier shall supply the Customer with a unique, personalised user name and password to enable the Customer to access the Website and thereby use the Service. The Customer agrees that responsibility for the security of any user name or password issued pursuant to this clause 9.3 rests with the Customer;
9.4 The Supplier shall make the Kinesis Data Reports and the Location Data in respect of any data received from the Customer’s Onboard Unit available on the Website.
9.5 The Customer acknowledges and agrees that the availability of the Website (or relevant parts thereof) is dependent upon systems, technologies and other factors which are beyond the Supplier’s control including but not limited to Mobile Communication Services operated by third party providers and the Internet and interconnected systems. Due to the nature of such technologies, systems and other factors, problems including but not limited to, outages, link failures, power difficulties, network overloads, signal degradation and topographic, electromagnetic and other interferences and government intervention may have an adverse effect on the availability of the Website. The Supplier does not warrant that the features made available on the Website will continue to be supported by Mobile Communication Services or that the Customer will be able to use the features made available on the Website as part of the Services for the intended use, due to the fact that such depends partly on circumstances beyond the Supplier’s reasonable control.
9.6 The Supplier shall have the right at any time to temporarily suspend access to the Website for the purposes of maintaining or repairing the Website or any part thereof; and to make changes to the functionality, presentation, features, modes of access and material content in relation to the Website at any time without notice to the Customer
9.7 The Supplier will provide the Customer with SIM cards for each Onboard Unit that the Customer is entitled to use in accordance with the Contract, which the Customer shall use solely:
9.7.1 in combination with the Onboard Units; and
10. Intellectual property rights and data
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services or the Products (including the Hardware, Firmware and Data Reports) shall be owned by the Supplier.
10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, or the Products, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
10.3 The Supplier owns all data generated by or related to the operation or performance of the Services (including the Data Reports and Location Data). This operational and performance data does not include any Personal Data (which, for the avoidance of doubt, shall be dealt with subject to the provisions of clause 13).
10.4 The Customer owns all data provided by or on behalf of the Customer to the Supplier in connection with the Services. The Supplier may use this data as required for the purpose of performing the Services.
10.5 The Customer authorizes the Supplier to retain and use a copy of the data referred to clause 10.4 above, in anonymized aggregated form (such that the identity of the Customer and any Data Subject is not ascertainable) for the purpose of carrying out data analytics in relation to the services provided to its customers and otherwise developing new products and services (“Statistical Data”).
10.6 The Customer hereby grants the Supplier 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 anonymization and use of the Statistical Data, the Supplier shall not use for its own purposes or disclose to any third parties Statistical Data that identifies the Customer or any of the drivers of the Customer’s vehicles. It being understood, however, that the foregoing restriction shall not apply to disclosures of Statistical Data that are:
10.6.1 required by law in response to request from law enforcement authorities;
11.1 Nothing in these Terms or the Contract shall deemed to exclude or limit the Supplier’s liability in respect of:
11.1.1 death or personal injury resulting from negligence; or
11.2 Subject to clause 11.1, in no event, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Contract, shall the Supplier be liable for any loss of profits, income, revenue, use, production or anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, any loss or corruption of any data, database or software or in respect of any special, indirect or consequential loss or damage whatsoever.
11.3 Subject to clauses 11.2 and 11.3, the Supplier’s maximum aggregate liability under the Contract or otherwise shall be limited to the net price paid or to be paid by the Customer in the first twelve months in the year in which the loss or damage occurred.
11.4 If a Party is prevented or delayed in the performance of any of its obligations under the Contract by a Force Majeure Event, then that Party will be excused from the performance or punctual performance, as the case may be, of its obligation, to the extent that such Force Majeure Event continues and agrees to use all reasonable endeavours to overcome or work around the Force Majeure Event so as to be able to perform its obligations under the Contract.
12. Term and Termination
12.1 The Contract will come into force on the Commencement Date, and will continue in force until, in case of:
12.1.1 a fixed term Contract including the supply of Services, the later of completion of: (i) performance of all Services; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract;
12.1.2 a fixed term Contract for rental of the Products and the supply of Services, the later of completion of: (i) the relevant rental period as set out in the Sales Confirmation Order; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract; or
12.1.3 a PAYGO Customer Contract, when terminated by either Party.
12.2 In the case of either:
12.2.1 a fixed term Contract including the supply of Services; or
12.2.2 a fixed term Contract for rental of the Products and the supply of Services,
if neither party terminates the Contract, the Contract shall automatically roll on for the Renewal Period and subsequent Renewal Periods until terminated be either party in accordance with clause 12.
12.3 The Supplier may, without prejudice to any of its other rights arising under this Contract, on giving written notice, terminate the Contract:
12.3.1 on not less than 28 calendar days’ notice, such notice to expire on the last day of any calendar month; or
18.104.22.168 the Customer fails to observe or perform any material term or condition hereof, including in any event non-payment, and such default or breach (if capable of remedy) shall not be remedied within 20 calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or
12.4 In the event of termination in accordance with clause 12.3, the Customer shall pay the Supplier the Termination Fee in accordance with the payment terms set out in clause 7.
12.5 In event that a PAYGO Customer terminates its Contract with the Supplier, the PAYGO Customer shall pay the Supplier the PAYGO Termination Fee in accordance with the payment terms set out in clause 7.
13. Data Protection
13.1 The Parties will each observe all provisions of the Personal Data Protection Act 2010 and regulations, insofar as the violation of such provisions affects the interests of the other Party and/or the Data Subject involved. This includes but is not limited to the obligation of the Customer to duly inform and obtain the consent of all involved Data Subjects about the Processing of their Personal Data by the Supplier under the instruction of the Customer.
13.2 The Supplier and/or its Affiliates shall only collect, Process, store and use Personal Data in accordance with the Customer’s instructions from time to time and in accordance with the terms of the Contract or as is necessary for the performance of this Contract and/or the improvement of the Services and Products and for the purpose of carrying out data analytics in relation to the Services and otherwise developing new products and services.
13.3 The Customer instructs the Supplier to collect, Process, store and use the Personal Data for the purpose as included under clause 12.2 above and the Customer undertakes, warrants and represents to the Supplier that the Customer has obtained the written consent of the Data Subjects for the collection, Processing, use and disclosure of their Personal Data by the Supplier.
13.4 The Customer approves that the Supplier is allowed to outsource the hosting of its data centres to a third party within the European Economic Area. The Supplier will ensure that such third party is legally bound to provisions equivalent to those in clause 12 of this Contract regarding the Processing of Personal Data.
13.5 The Customer and/or Data Subject may revoke its consent for the Processing of Personal Data in relation to this Contract at any time. Such revocation must be presented to the Supplier in writing and shall not affect the Contract and will leave the Customer’s obligations (including payment obligations) under the Contract intact. The Customer acknowledges that as a result of such revocation the Supplier may not be able to provide the Services, and the Supplier will have no liability for any such resulting failure to provide the Services.
13.6 The Supplier will not be liable for and shall be fully indemnified by the Customer with respect to any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions or from failure of the Customer to obtain the written consent of the Data Subject for the Supplier’s and/or its Affiliates collection, use, storage and Process of the Personal Data.
13.7 The Customer agrees and consents that the Supplier may transfer the Personal Data outside of Malaysia. The Supplier shall implement reasonable technical and organizational measures to protect any Personal Data collected under the Contract against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing. Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the Processing and the nature of the data to be protected.
13.8 The Parties acknowledge that they have agreed that the Customer will respond to enquiries from Data Subjects, any governmental and/or judicial body concerning the Processing of Personal Data by the Supplier and the Customer should have sufficient processes in place to handle such enquiries.
14. Confidential Information
14.1 Each Party agrees that for the duration of this Contract and for a subsequent period of three years they will at all times keep any Confidential Information of the other Party as confidential and shall not permit the same to be copied, used, disclosed or disposed of except in accordance with this Contract The provisions of this clause 14 shall not apply to Confidential Information which is already in the public domain or becomes so at a future date other than by breach of this Contract.
15.1 No breach of any provision of these Terms or the Contract will be waived except with the express written consent of the Party not in breach.
15.2 If any provision of these Terms or the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms or the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted).
15.3 Contracts or this Agreement may not be varied except by a written document signed by or on behalf of each of the Parties.
15.4 The Supplier shall be entitled to amend these Terms by publication on the Supplier’s website, which amendments shall enter into force on the date that the Customer is notified thereof and apply to all Contracts entered into after that date.
15.5 The Supplier may freely assign its rights and obligations under these Terms or the Contract without the Customer’s consent. Save as expressly provided in a Contract, the Customer may not without the prior written consent of the Supplier assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under these Terms or the Contract.
15.6 Each Contract is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party save for any third-party software sub-licensing provisions. The right of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to a Contract is not subject to the consent of any third party.
15.7 The Contract constitutes the entire agreement between the Parties in relation to its subject matter, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of that subject matter, provided always that the usage of the Website by the Customer shall be governed by the Website Terms and Conditions.
15.8 Failure or delay by either Party in enforcing or partially enforcing any provision of this Contract will not be construed as a waiver of any of its rights under this Contract. Any waiver by one Party of any breach of, or any default under, any provision of the Contract by the other Party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
15.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of Malaysia and the Parties submit to the exclusive jurisdiction of the courts of Malaysia.