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Data Security

MiX Now standard Terms and Conditions

These terms and conditions together with our Privacy Policy (http://compliance.mixtelematics.com/data-security/mix-telematics-privacy-notice) (collectively, the "Agreement") will form a written contract between you and MiX Telematics North America Inc., a Texas Corporation ("MiX", "we", "us" and "our") and will govern our relationship with you and your use of our Services and Device(s).  MiX shall provide the Bundled Services as selected by you on the MiX web application (“the Website”).

  1. DEFINITIONS
    • Acceptance Date” means the date on which you accepted the Agreement by way of electronic medium, for example by clicking, “I agree” on our Website or via your mobile device;
    • Anonymised Data” means System Data that is not identifiable to you or any individual user and consists of speed, geolocation and other tracking and asset management related data that is collected and maintained in aggregate anonymous form;
    • Asset” means any vehicle, trailer, other fixed or mobile asset in which a Device has been installed;
    • “Authorized Dealer" means any company, other legal entity or individual conducting business on its own behalf and independently from MiX and authorized in writing by MiX to install and maintain the Devices;

 

  • Bundled Services” means the cost of the Services and Devices are consolidated into a single monthly fee without the requirement for you to purchase the Device in order to receive the Services;
  • Business Day” means a Monday to Friday, excludes Saturdays, Sundays and a day which is a federal public holiday in the United States of America;
  • Device(s)” means the MiX asset tracking unit(s) and associated components selected by you for the Bundled Services, which Devices will at all times remain the property of MiX.
  • Effective Date” means the date on which the Services are activated by you on the Website and you have paid the Services Fees;
  • Expiry Date” means 36 (thirty six) months after the Effective Date or such shorter or longer period as agreed to by the Parties in writing;
  • Intellectual Property” means the Copyright and all other present and future Intellectual Property Rights in the Services, the Devices, MiX Telematics data and/or the Software and other rights which may in the future be based thereon, the MiX Telematics patents, the trademarks and any solution specifically developed for you for which you have not paid;
  • “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
  • MiX Telematics Companies” means MiX Telematics North America Inc. (“MiX”)(with registration number 75-2073876), MiX Telematics Limited (with registration number 1995/013858/06) and all of its subsidiaries;
  • Network Provider” means the independent communications network service provider from which we obtain our network services in order to provide the Services to you;
  • Other Protected Parties” means members, directors, officers, employees, representatives, agents and independent contractors of MiX Telematics Companies;
  • Parties” means MiX and you and “Party” means either you or MiX however the context requires;
  • Payment Agent” means the third party service provider that provides the online payment services via the Website;
  • Personal Data” means any information relating to an identified or identifiable natural person or any other data that may be regarded as personal data under applicable data protection laws, rules or regulations. For clarity, Personal Data does not include anonymized or aggregated system generated data about your use of the Services (“System Data”);
  • Services” means tracking of the Asset and any other ancillary services as selected by you on the Website;
  • “Service Fees” means the monthly fee charged in advance for the Services, which fees may be reviewed by MiX upon renewal of the Agreement;
  • “Software” means application software developed and supplied by or for MiX and used in or in conjunction with the Devices including, without limitation, presently available and future upgrades, modifications and enhancements thereto and the documentation associated therewith, whether incorporated in humanly intelligible media or not; and
  • Uncontrolled Event” means (including without limitation) any fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of MiX, including the termination or suspension of the services or products provided by a third party supplier, the Network Provider, no or weak GPS signal, Device failure and logistical difficulties that may result in a delay or a failure to provide any Services.
  1. COMMENCEMENT, DURATION, TERMINATION AND SUSPENSION
    • This Agreement will commence on the Effective Date and endure for a period of thirty six (36) months.
    • The Service shall commence on the Effective Date.
    • MiX will ship the Device to you within five (5) business days of the Effective Date to the address specified by you and at your cost. The shipping costs will be payable together with the first month’s Service Fees. 
    • Bundled Services termination and suspension:
      • Either Party may cancel this Agreement as of the Expiry Date provided that the terminating party provides at least thirty (30) days prior written notice to the other party of its intent not to renew, subject to Section 4.2.
      • In the event that you cancel the Agreement prior to the Expiry Date or MiX cancels the Agreement due to you being in breach, you will remain liable for all amounts owing up to the Expiry Date.
      • You will be responsible to de-install, package and return the Device to MiX within five (5) days of the Expiry Date and/or other effective date of termination of the Agreement at your own costs, subject to Section 3.4 below.
      • If the Agreement is not cancelled by you or by us prior to or on the Expiry Date, it will automatically continue and constitute a month-to-month agreement terminable on at least 1 (one) calendar month's prior written notice, which termination will take effect on the first day of the month immediately following the end of the applicable notice period.
    • We will be entitled to suspend the Service if:
      • the Network Provider is no longer available or of no practical use;
      • an event beyond our control makes it impossible to render the Bundled Services; and/or
      • you are in breach of the Agreement.
  1. CUSTOMER’S OBLIGATIONS AND ACKNOWLEDGEMENTS
    • You will be liable for the shipping costs of the Device and to install the Device as per the installation instructions published on the Website, unless you order professional Device installation.
    • Should the Device that you select require installation by an Authorized Dealer, MiX or its Authorized Dealer shall contact you to arrange a suitable date and time for installation;
    • MiX will remain the owner of the Device at all times and all risk of loss or damage will transfer to you on shipment of the Device to you from MiX’s warehouse in Boca Raton, Florida.
    • On the Expiry Date or termination of this Agreement, you must return the Device to MiX in the same condition in which it was received by you, fair wear and tear excepted, failing which you shall be liable to MiX for the costs of replacing the Device.
    • At all times from the delivery of any Device to you until its return to MiX is acknowledged by MiX in writing, YOU SHALL BE ENTIRELY RESPONSIBLE FOR THE LOSS OF AND FOR ANY AND ALL DAMAGE (OTHER THAN ANY CAUSED BY THE NEGLIGENCE OR WILFUL MISCONDUCT OF MIX OR ITS DIRECTORS, OFFICERS OR EMPLOYEES) TO THE DEVICE OR ANY PART THEREOF (INCLUDING, WITHOUT LIMITATION, REMOVAL OR TAMPERING WITH THE SIM CARD EMBEDDED WITHIN THE DEVICE) AND YOU HEREBY AGREE TO INDEMNIFY MIX FROM AND AGAINST ANY AND ALL SUCH LIABILITY, LOSS, DAMAGE, COSTS AND EXPENSES SUFFERED OR INCURRED BY MIX IN ANY WAY ARISING OUT OF ANY LOSS OF OR DAMAGE TO ANY SUCH DEVICE OR PART THEREOF WHILE THE DEVICE IS OR SHOULD BE IN YOUR POSSESSION OR UNDER YOUR CONTROL.
    • The Device is interchangeable and MiX, in the event of Device failure, reserves the right to use an alternative Device which provides similar service quality and functionality.
    • You will need to activate the Services on the MiX Website once you have installed the Device in the Asset(s).
    • You hereby authorise MiX to track the Asset.
    • The Device’s communications may include information about your location and other information about your Asset(s) or personal information about you such as the speed, geolocation, harsh braking and harsh acceleration. MiX Telematics will use information communicated by the Device in accordance with our Privacy Policy. 
    • You acknowledge that the SIM card included in the Device remains the property of MiX and/or the Network Provider for the provision of the Bundled Services.
    • You shall not remove or allow the SIM card to be removed from the Device and shall ensure that the SIM card is not utilized in any manner whatsoever other than as part of the Device, which is required to receive the Bundled Services.
    • You warrant that as at the Acceptance Date, all the details furnished by you to us are true, complete and correct and that you will update the details in the event of any change to such details within 24 hours of the change or you becoming aware of the change.
  2. USE AND MAINTENANCE
    • You undertake to:
      • use the Device only for the purpose of receiving the Bundled Services;
      • not to alter, modify or tamper with the Device; and
      • use the Device strictly in accordance with the directions provided in MiX’s applicable literature and user documentation published from time to time.
    • Any maintenance to be provided by MiX under the Agreement shall take place during business hours. Maintenance will only be carried out in a place where the MiX employee or agent of the Authorised Dealer is able to work in safe and appropriate conditions including having free access to power, shade and shelter from adverse weather conditions.
    • You will be responsible for and pay any additional charges levied by any third party as a result of any misuse of any component of the Device, including the cellular telephony SIM card.
    • Should you or MiX report a Device that does not function properly during the term of this Agreement, MiX undertakes to attend to the Device, alternatively, procure that an Authorised Dealer attends to the Device within seven (7) Business Days after receiving such notice, subject to you making the Asset available. The maintenance, travel, necessary expenses and accommodation costs shall be for your account.
    • If, in the sole but reasonably exercised discretion of MiX, the Device is damaged or is malfunctioning due to unauthorized alterations or modifications, abuse, misuse or through an accident and is capable of repair, then MiX shall effect, alternatively, MiX shall procure, that an Authorized Dealer effects the necessary replacements and/or repairs to the Device within seven (7) Business Days of becoming aware of the damage or malfunctioning of that Device. The costs thereof, including travel, necessary expenses and accommodation costs, will be for your account and will be payable on demand.
  3. DAMAGE AND LOSS
    • You must notify MiX within twenty-four (24) hours of becoming aware that the Asset, any Device or any part of the Device has been lost or stolen or damaged (as the case may be), irrespective of the cause.
    • In the event that an Asset or any Device is damaged, stolen or lost, you will remain liable for the Service Fee for the duration of the Agreement.
    • In the event that you sell or relinquish control over the Asset, without first removing the Device from the Asset, then you will remain liable to perform all your obligations to MiX (including payment of the Service Fee) up to the Expiry Date.
    • Without prejudice to Section 3.5 or Section 5.2, in the event that the Device is stolen or lost, or is damaged beyond economic repair (which decision shall be at MiX Telematics’ sole discretion), and subject to the warranty terms, you will promptly pay to MiX an amount equal to the replacement cost of the Device and MiX will invoice such amount to you. Upon receipt of payment of the replacement cost, MiX will send a replacement Device to you to be used in accordance with the terms and conditions of this Agreement.
  4. MIX TELEMATICS’ OBLIGATIONS
    • The Bundled Services are only available within the areas covered by the Network Provider in the United States of America.
    • We will not be obliged to supply the Services or replace the Device if you are in breach of this Agreement, including if your monthly fees are in arrears.
    • We will provide you with support services via our online contact form, which services will be available at all times.
  5. FEES AND PAYMENT
    • Billing will commence on the Effective Date and you will have access to all billing information and your statement on your profile on the Website. All fees will be exclusive of any applicable tax.
    • To the fullest extent permitted by law, all amounts due and payable in terms hereof shall be paid without deduction or set-off, by way of credit card or otherwise, and shall be made monthly in advance.
    • Should you fail to pay any amount on the due date for payment then we may, without prejudice to any of our other rights and remedies:
      • take all such further steps as may be necessary to recover the outstanding amount from you, including without limitation the use of debt collection mechanisms;
      • charge interest on the late payment of one and one half percent (1½%) per month, or the highest allowable rate under applicable law;
      • suspend your access to the Services without notice to you until such time as the outstanding amount has been paid in full. No re-activation fees will be charged should the outstanding amount be paid by you and you choose to continue the Bundled Services;
      • subject to Section 2, terminate this Agreement with immediate effect.
    • In the event of MiX suspending your access to the Bundled Services, we reserve the right to continue to charge you to keep your account activated for the period of suspension.
    • Collection by Payment Agent:
      • the Payment Agent will collect the Service Fees due to us on our behalf;
      • the Service Fees will be paid by you monthly in advance via credit card via the Website. You authorize the Payment Agent to provide your banking details to MiX, should:
        • payment from you to the Payment Agent, for any reason, not occur; or
        • payment of the collected Service Fee from the Payment Agent to us, for any reason, not occur; or
        • the agreement or relationship between you and the Payment Agent cease to exist, for any reason; or
        • the agreement or relationship between the Payment Agent and MiX cease to exist, for any reason.
  1. SERVICE DELIVERY, SERVICE AVAILABILITY AND LIMITED WARRANTIES
    • We will use commercially reasonable efforts to make the Bundled Services available to you and to maintain the availability thereof. However, we provide the Bundled Services “as is” and “as available” and do not warrant or guarantee that the Services will at all times be free of errors or interruptions, be always available, fit for any purpose, not infringe any third party rights, be secure and reliable, or will conform to your delivery timeline requirements.
    • The Device’s functioning, and as a result, the Bundled Services, are dependent on the Network Provider and its availability. You acknowledge that the Device might not be communicating and the Services might as a result not be available for certain undeterminable periods of time within certain undeterminable locations.  This is beyond our control and we will not be liable for any loss or damage arising as a result thereof.
    • Warranty: During the fixed term period of 36 months (or until the Agreement is terminated, if terminated prior to the Expiry Date), if after inspection of the Device by an Authorized Dealer or us, such Device is found, in our sole discretion, to be defective, your sole remedy and our sole liability will be to repair or replace the Device free of charge.
    • Notwithstanding the provisions of Section 8.3 above, MiX does not warrant that the Device will be compatible with the Asset. In the event that the Device is not compatible with an Asset, you have to return the Device to MiX and your account will be credited with the first month’s Service Fee.
    • There is no warranty in the case of liquid damage, accident damage, tampering with or altering the Device or your or any other third party’s negligence or willful misconduct. Any replacement costs applicable in such an event will be for your cost.
  2. LIMITATION OF LIABILITY
    • EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT OR WHERE ITS EXCLUSION IS PROHIBITED UNDER APPLICABLE LAW, NO WARRANTY, CONDITION, UNDERTAKING REPRESENTATION OR TERM, EXPRESS OR IMPLIED IS GIVEN BY MIX OR OTHERWISE INCORPORATED INTO THIS AGREEMENT:
      • AS TO THE CONDITION, QUALITY, PERFORMANCE, FITNESS FOR ANY PARTICULAR PURPOSE OR CIRCUMSTANCE OR AVAILABILITY AT ALL TIMES OF ANY DEVICE, OF THE SERVICES OR OF ANY PART THEREOF;
      • THAT THE SOFTWARE, THE DEVICE, OR ANY SIM CARD PROVIDED BY MIX IS FREE FROM DEFECTS OR ERROR;
      • THAT THE SUPPLY OR USE OF THE SOFTWARE, OF THE DEVICE, OR OF ANY SIM CARD PROVIDED BY MIX WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY (HOWEVER, TO MIX’S KNOWLEDGE AND BELIEF, IT DOES NOT INFRINGE THE COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY AND MIX CONFIRMS THAT IT HAS THE LEGAL RIGHT AND REQUISITE LICENCES TO ALL THIRD PARTY INTELLECTUAL PROPERTY UTILISED BY MIX IN THE SOFTWARE AND DEVICE); OR
      • THAT ANY DATA OR INFORMATION TRANSMISSION, NOTIFICATION OR PANIC ALERT ISSUED OR TO BE ISSUED AS PART OF ANY SERVICE WILL IN ALL CASES BE SUCCESSFULLY RECEIVED BY YOU OR RECEIVED BY YOU IN A TIMELY MANNER,

AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS, REPRESENTATION AND TERMS WHETHER EXPRESS OR IMPLIED ARE HEREBY EXCLUDED TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE IN PARTICULAR THAT IN PROVIDING SERVICES, MIX RELIES UPON SERVICES, INCLUDING SATELLITE SERVICES AND THE LIKE, FOR THE TRANSMISSION OF PANIC ALERTS AND OTHER NOTIFICATIONS OVER WHICH MIX HAS NO CONTROL AND WHICH ARE PROVIDED BY THIRD PARTIES. YOU AGREE THAT MIX SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY IN THE TRANSMISSION OF PANIC ALERTS OR NOTIFICATIONS ARISING FROM OR CONNECTED TO THE USE OF SUCH THIRD PARTY SERVICES.

  • NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE YOUR LIABILITY FOR:
    • NON-PAYMENT OF INVOICES FOR SERVICE FEES OF ANY SORT OR ANY OTHER INVOICE LEGITIMATELY RAISED BY MIX UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND ANY COMPENSATION DUE ON SUCH AMOUNT PURSUANT TO SECTION 7; OR
    • UNDER ANY INDEMNITY GIVEN BY YOU IN FAVOR OF MIX WHETHER UNDER THIS AGREEMENT OR ANY CONNECTED AGREEMENT.
  • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MIX SHALL NOT UNDER ANY CIRCUMSTANCES WHATSOEVER BE LIABLE TO YOU, OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, DELICT OR OTHERWISE, FOR:
    • loss of profit,
    • loss of goodwill,
    • loss of business,
    • loss of business opportunity,
    • loss of turnover or revenue,
    • loss of anticipated saving,
    • loss or corruption or failure or delay in transmission or receipt of data or information, or
    • any other special, incidental, indirect or consequential loss or damage,

in each case suffered or incurred by you and which arises under or in connection with this Agreement or out of or in connection with any Service or Device.

  • Subject to Section 2 and without prejudice to Section 9.3, the total liability of MiX arising under or in connection with this Agreement, whether arising in contract, delict or otherwise, shall in all circumstances be limited to direct damages only, to a sum no greater than the aggregate of the Service Fees received by MiX in the twelve (12) months preceding the date of notification of the claim in question to MiX.
  • YOU HEREBY INDEMNIFY, DEFEND AND HOLD MIX, ITS EMPLOYEES, SUBCONTRACTORS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, FINES, DEMANDS AND/OR LIABILITIES SUFFERED OR INCURRED BY MIX AND/OR YOU ARISING DIRECTLY OR INDIRECTLY OUT OF ANY BREACH BY YOU OF ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO ANY BREACH OF SECTION 9.
  • MiX will have no obligation or liability in terms of this Agreement for any claim, action, suit or demand that arises as a result of, or results from: i) modifications of or addition to the Device and/or Software by any party other than MiX; (ii) use of the Device and/or Software in combination with any software, equipment, products, materials or processes, not authorized in writing by MiX, and you indemnify MiX against any such claim, action, suit or demand.
  • YOU FURTHER HEREBY INDEMNIFY AND AGREE TO KEEP INDEMNIFIED MIX AND/OR ITS LICENSORS AGAINST ANY CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY TO THE EXTENT THAT SUCH INFRINGEMENT OR ALLEGED INFRINGEMENT IS THE RESULT OF MISUSE OF THE SERVICE(S), SOFTWARE OR DEVICE BY YOU, CONTRARY TO THIS AGREEMENT. SOFTWARE AND DEVICES ARE DEEMED TO BE MISUSED IN CIRCUMSTANCES WHERE YOU FAIL TO COMPLY WITH THIS AGREEMENT OR WITH ANY INSTRUCTIONS OF MIX IN CONNECTION WITH THE USE OF ANY SUCH SERVICE, SOFTWARE OR DEVICE (AS THE CASE MAY BE).
  • The Parties acknowledge that the forgoing provisions of this Section 9 have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and shall survive and continue in full force and effect despite any failure of consideration or of any remedy.
  1. BREACH
    • Should you be in breach of any provision of this Agreement, then we shall be entitled, without prejudice to any other rights that we may have and to the extent required or permitted, as the case may be, by law, to forthwith:
      • afford you a reasonable opportunity to remedy the breach, taking into account the nature of the breach in question; or
      • suspend your access to the Services;
      • cancel all agreements concluded between us; or
      • claim immediate performance and/or payment of all your obligations in terms hereof.
    • Should we suspend, disconnect or terminate your Services, we will only reconnect your Services if all your Services fees are paid up to date. (We will also be entitled to charge you a fee for reconnecting your Services.) Billing disputes shall be handled in accordance with Section 12.
  2. DATA AND PRIVACY POLICY
    • You confirm that you have read and understood the MiX Privacy Policy and that you consent to the terms thereof.
    • You own and retain ownership and all rights in your Personal Data, represent that you have obtained informed consent to provide us with the Personal Data from the individuals whose Personal Data is provided to us, and you hereby grant us permission to use the Personal Data only for the purpose of providing the Services and exercising our rights and remedies in connection with the Agreement. If and to the extent applicable law requires, you shall provide us with verification of informed consent with regard to the Personal Data provided to us by you.
    • You acknowledge and give consent that MiX Telematics retains ownership rights in the System Data and Anonymous Data and may use, transfer and commercially exploit the System Data and Anonymous Data for any purpose whatsoever.
    • Each Party agrees to comply with its obligations under all applicable laws relating to privacy and protection of Personal Data, in respect of Personal Data obtained by or disclosed to them pursuant to this Agreement.
    • The Customer shall indemnify and keep indemnified MiX Telematics against any all claims, damages, losses, fines, penalties, costs (including legal costs) and expenses of whatever nature and however arising (including any class actions) in relation to any failure by the Customer to comply with any of the obligations of the Customer required in terms of any applicable Data Protection Laws.

 

  1. COMMUNICATION, COMPLAINTS HANDLING AND DISPUTE RESOLUTION
    • By executing this Agreement, you agree that we may from time to time send you communications regarding (without being limited to) special offers or discounts which we may negotiate for and offer to our customers and/or new services or products launched. All communications will abide by our Privacy Policy and applicable law. You will always be entitled to notify us in writing that you do not wish to receive or continue to receive promotional or marketing related communications by completing the form at the following link http://www.mixtelematics.com/data-security/information-request   
    • From time-to-time we need to send you important information regarding the Service. You agree to electronic communication from us through SMS or email in order for us to provide the Services to you. You cannot opt-out of any Service communications contemplated in this Section.
    • Complaints must be submitted to us and will be dealt with by us in accordance with the provisions of this Section.
    • Any payment default by you arising from, or in connection with, any Bundled Services rendered or provided by us, will be handled in accordance with Section 10 and excluded from the provisions of this Section 12.
    • Without prejudice to your rights in law, you are required, to first approach us with any complaint or dispute and afford us an opportunity to resolve a compliant before you approach any other relevant authority, court or other dispute resolution body.
    • Please direct all complaints using the online help section within the MiX Now Software.
    • This Agreement and any disputes between the Parties shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its rules relating to conflicts of laws.
    • Each party to this Agreement hereby submits to the jurisdiction and venue of the United States District Court for the Northern District of Texas, and the Dallas County District Court, State of Texas, for the purposes of all legal proceedings arising out of or relating to this Agreement. Each party hereby irrevocably waives any objection it may now or hereafter have as the jurisdiction or venue of any such suit, action or proceeding brought in the United States District Court for the Northern District of Texas or the Dallas County District Court or that such court is an inconvenient forum.
    • In the event of any legal action being taken by MiX for the recovery of amounts from you, you will be liable for all legal costs, including collection charges and tracing fees, on the scale as between attorney and own client, alternatively on the scale as between attorney and client.
    • The provisions of this Section 12:
      • constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;
      • are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement; and
      • shall not permit you to withhold any payment or payments due to MiX.
  1. INTELLECTUAL PROPERTY
    • MiX hereby grants you a non-exclusive, non-transferable, limited license to use the proprietary Software for the duration of the Agreement to process System Data and/or Personal Data or any other data on the proprietary Software.
    • You will not:
      • copy the whole or any part of the Device, and/or the Software, save as otherwise provided herein;
      • reverse engineer, disassemble, translate, adapt, modify, alter or in any way decode the whole or any part of the Software and/or the Device;
      • convert the whole or any part of the Software from object code to source code;
      • merge or combine the whole or any part of the Software with any other computer software or documentation;
      • part with possession of, lend, assign, lease, sub-license, transfer or otherwise provide electronically any part of the Software and/or Device or any copy or part thereof to any other person;
      • use any of the Intellectual Property or confidential information of MiX contained in or derived from the Software and/or the Device to develop or market any software which is substantially similar in its function or expression to any part of the Software; and/or
      • use the Software for the business needs of another person or entity.
    • You acknowledge that any and all of the Intellectual Property Rights used or embodied in or in connection with the Services, the Software and/or the Device are and shall remain the sole property of MiX (subject to third party Intellectual Property Rights in respect hereof). You will not question or dispute the ownership of such rights at any time during the continuation in force of the Agreement or thereafter.
    • You must notify MiX as soon as practicable after you become aware of –
      • any actual, threatened or suspected infringement of the rights of MiX in the Intellectual Property; or
      • any claim brought against you alleging that its use of the Software, Services and/or Devices infringes the Copyright or any other Intellectual Property belonging to or alleged to belong to the claimant.
    • If any such claim as mentioned in Section 13.4.2 is brought against you, MiX reserves the right to defend any such action (in connection with which you shall at the request and reasonable cost of MiX provide MiX with all reasonable assistance and information available to it) and/or to replace or change all or any part of the Software and/or Device in order to avoid infringement or alleged infringement of any third party's rights. You shall not admit liability or make any agreement or settlement in relation to any claim (unless required by law or a court order) without the prior written consent of MiX.
    • You acknowledge that the Software and the Devices contain confidential information that is proprietary to MiX and undertake to hold in confidence such information and not to divulge such information to any person, including to any of its employees, save for employees directly involved with the execution of this Agreement.
    • This Section shall continue to apply after termination of this Agreement.
  2. ANTI-BRIBERY
    • Each Party hereby warrants to the other that it has not, at the date of the entering into force of the Agreement, itself, and its directors, officers or employees have not themselves, offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with any such agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.
    • The Parties agree that, at all times in connection with and throughout the course of the Agreement and thereafter during the subsistence of any continuing Bundled Services, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence, will comply with the Foreign Corrupt Practices Act which is hereby incorporated by reference into the Agreement in full and any other applicable bribery, fraud, kickback, or other similar anti-corruption law or regulation that may be applicable.
    • Any breach by the Customer of any provision in this Section 14 will be deemed to be a material breach by the Customer as contemplated in Section 10.
  3. EXPORT CONTROLS & SANCTIONS
    • MiX shall not have any obligation to deliver the Services, the Device and/or the Software under this Agreement or perform any other obligations under this Agreement if such performance is or might be hindered by, or be unlawful under the applicable export laws and regulations of the national authorities, the European Community, the United States of America (USA) or of any other relevant country.
    • You shall not participate in or facilitate any sale or import or provision of the Device, the Software and/or the Services into any countries or regions in which the Device, the Software and/or the Services (or any of them) have not received relevant national or supranational regulatory approvals that are required by any law in force in such a country or region. The Customer hereby indemnifies and agrees to keep indemnified and hold MiX, its employees, subcontractors and agents harmless from and against any and all claims, losses, fines, demands and/or any liabilities suffered or incurred by MiX arising directly or indirectly out of any breach by you of any of its obligations under this Section 15. 
    • The Parties shall each comply with all applicable laws pertaining to their respective obligations under this Agreement with respect to the import, export, distribution, sales and marketing of the Device, the Services and/or the Software. Furthermore, you will not engage in any business or dealings with any embargoed countries, blocked or sanctioned persons, or individuals or entities listed as a sanctions target by the USA (for example, the USA Department of the Treasury's Office of Foreign Assets Control (OFAC)), by the United Kingdom, European Union or any other relevant country’s legislation (including facilitating transactions with third parties that involve embargoed countries, blocked or sanctioned persons or entities).
    • Any breach by you of the provisions of this Section 15 will be deemed to be a material breach of this Agreement.
  4. ASSIGNMENT
    • MiX shall, without your consent, be entitled to sell, pledge, assign and/or re-assign all or any of MiX’s rights under this Agreement to any third party, and if such sale, pledge, assignment and/or re-assignment takes place, the Customer shall:-
      • make all payments directly to such third party on the same terms as are set out in this Agreement; and
      • accept any assignment and/or re-assign; and
      • accept any reference in this Agreement to MiX (unless the context clearly indicates otherwise) as referring to such third party.
    • You will not be entitled to sell, pledge, assign and/or re-assign all or any of its rights and obligations under this Agreement without prior written consent of MiX, which consent shall not be unreasonably withheld.

 

  1. GENERAL
    • We reserve the right to amend this Agreement from time to time. Any new version of the Agreement will be displayed on our Website together with the date on which it will become effective, which will never be less than 30 (thirty) days after the date on which it is first published. It is your obligation to visit our Website on a regular basis in order to determine whether any amendments have been made.
    • The Parties acknowledge and agree that this Agreement constitutes the whole of the agreement between them and that no other agreements, guarantees, undertakings or representations, either verbal or in writing, relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on the Parties. No changes or cancellation of this Agreement by you will be binding on any of the Parties unless recorded in writing and signed by both Parties, notwithstanding activation of the Services.
    • You agree that any notices we send to you in terms of any agreement concluded between us may be sent via e-mail unless otherwise prescribed by law.
    • No indulgence, leniency or extension of time which we may grant or show to you shall in any way prejudice us or preclude us from exercising any of its rights in the future.
    • The physical address where we will receive legal service of documents is the following:

Physical address: 750 Park of Commerce Blvd, Suite 100 Boca Raton, FL 33487.  We will send any notice or legal process relating to the Agreement to the address you provided when you entered into the Agreement with us, as amended by you from time to time. 

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