1. Introduction
1.0 This agreement (“Agreement”) comprise (i) the RS Terms and Conditions of Service (available here: Terms and Conditions of Services (“Service Terms”) ; (ii) the proposal for the RSMS Schaeffler OPTIME solution (the “Proposal”) which shall constitute the ‘Front Sheet’ for the purposes of the Service Terms), (iii) RS’s general Digital Service Terms (available here) and (iii) the terms set out below, being the RS Schaeffler OPTIME Terms (the RS Schaeffler OPTIME Terms and the Digital Service Terms shall, together, constitute the “Service Specific Terms” for the purposes of the Service Terms.
1.1 If and to the extent there is a conflict between these RSMS Schaeffler OPTIME Terms and RS’s general Digital Service Terms, these RSMS Schaeffler OPTIME terms shall apply.
1.2 This Agreement is made between RS Components Limited (a company incorporated in England and Wales under company number 01002091 whose registered office is at Birchington Road, Weldon, Corby, Northamptonshire NN17 9RS) (RS) and the customer identified in the Proposal (Customer).
1.3 This Agreement will apply to any variation of the Proposal or any new Proposal agreed by the parties from time to time.
2. Definitions
2.0 Data: means meta data, measurement data recorded via sensors or other devices with a measurement function and any data or information which is made available to the Customer by third parties or with equipment provided by third parties. For the avoidance of doubt the Data forms part of the Customer Data.
2.1 Digital Services: means the services outlined in the Proposal created by RS for the Customer.
3. General
3.1 The Customer acknowledges and agrees that that:
(a) its technical ability to access the OPTIME platform is a service provided by RS on the basis of this Agreement;
(b) before it will be able to access and use the OPTIME platform, it will need to agree to be bound by the terms of use presented at the log on page;
(c) nothing in this Agreement, establishes an independent contractual relationship between the Customer and Schaeffler for the technical ability to access the OPTIME platform; and
(d) all data and information made available to the Customer via the OPTIME platform is a service provided by RS to the Customer.
3.2 RS may change, update or extend the content of the Digital Services at any time at its own discretion if this is necessary for security or technical reasons, as well as due to functional extensions of the Digital Services. In the event of functional updates that require a technical adjustment on the part of the Customer for the continued use of the Digital Services, the Customer shall be informed of the change by e-mail at least 30 days before the change takes effect. It is not possible to provide customer-specific older versions of the Digital Services, and RS shall not be obliged to do so.
4. Provision and use of the Digital Services
4.1 The Customer shall, at its own expense, provide technical support and/or adjustments to the extent necessary, by performing the activities within its area of responsibility according to the product/service description (e.g. self-installation, designation of administrator) and by cooperating to the necessary and reasonable extent in troubleshooting in the event of failures or errors of the Digital Services (e.g. by providing information).
4.2 The Customer shall promptly provide all Data required by RS for the provision of the Digital Services. RS shall not be obliged to provide the Digital Services (or any part thereof) in the event that:
(a) any information provided by the Customer during the set-up process is incorrect or incomplete;
(b) the Customer fails to provide any Data required by RS for the provision of the Digital Services; and/or
(c) the Customer fails to comply with clause 3.1(a) of the Terms and Conditions for Services.
4.3 The Customer must not:
(a) in its use of the Digital Services or otherwise, violate applicable law or infringe the rights of third parties;
(b) provide RS with or upload to the Digital Services information that contains material protected by intellectual property rights, including copyrights or trademarks, or by non-disclosure agreements, unless the Customer is entitled in all respects to do so;
(c) resell the Digital Services to third parties;
(d) pass on or license the results of the Digital Services to third parties;
(e) steal or without permission otherwise collect information about RS, the Related Persons or the Related Persons’ affiliates or other customers using the Digital Services.
4.4 The parties agree that the Digital Services are not work for hire or the performance of work but is the discreet provision of a service. RS assumes no responsibility for the achievement of specific results or for any particular type of success in connection with the provision of the Digital Services. The Digital Services are provided on the basis of the data and other information provided by the Customer and of the measurement data recorded via sensors or other devices with a measurement function at a specific point of time. The results of the Digital Services, which include stochastic probabilities in particular, are recommendations and serve the purpose of supporting decisions made by the Customer. The Customer shall be solely responsible for any decision it makes on the basis of or in connection with the Digital Services and the results of the Digital Services, and also for settings made itself within the scope of a remote function offered for controlling hardware activated by the Customer.
4.5 Customer shall provide RS with access to all information which is reasonably required by RS for the purpose of performing its obligations under this Agreement. The Customer represents and warrants, and will continue to maintain the accuracy of these warranties and representations for the duration of this Agreement: (a) that all information provided to RS (including any information required for the set up of the solution, as referenced in the Proposal) is true, complete, accurate and not misleading; and (b) Customer undertakes to notify RS promptly if it becomes aware that any such information is not true, complete and accurate or is misleading, and provide any additional information required by RS.
5. Software
5.1 To the extent RS makes software available to the Customer as a Digital Service or for use or in connection with a Digital Service, RS grants the Customer a non-exclusive, time-limited, chargeable, non-sublicensable and non-transferable right to use the software for the intended purpose as specified in the service description of the corresponding Digital Service. Insofar as the software is provided as a software copy to be installed locally, the Customer shall be entitled to use the software copy and copies thereof on its own end devices.
6. Termination
6.1 This Agreement shall, unless otherwise terminated in accordance with this Agreement, commence on the date set out in the Proposal and shall continue for successive periods of 12 months (each a “Subscription Term”) unless either party gives the other at least 40 days’ notice prior to the end of the then current Subscription Term. Clause 11.2 of the Service Terms shall not apply.
6.2 Either party may terminate this Agreement by giving written notice to the other party if the other party if the other party commits a material breach of this Agreement and:
(a) such breach is irremediable; or
(b) if such breach is remediable, the other party fails to remedy that breach within a period of twenty (20) days after being notified in writing to do so.
6.3 RS shall be entitled to terminate this Agreement with immediate effect:
(a) if the Customer breaches this Agreement, and fails to remedy such breach within a reasonable time period of receipt of RS’ written notice to do so; or
(b) if RS determines, in its sole discretion, that:
(i) applicable export control regulations or its internal export control requirements based on such export control regulations make the provision of the Digital Services impossible or non-compliant and the provision appears impossible or non-compliant for the foreseeable future based on reasonable considerations; or
(ii) there is a risk that sanctions could be imposed in relation to the provision of Digital Services or the performance of other obligations under the Agreement, and RS shall have no liability towards the Customer in respect of such termination.
6.4 In the event of a breach of this Agreement and RS has terminated this Agreement, the Customer shall have no claims for reimbursement. In such cases, RS shall not be liable for any damages incurred by the Customer as a result of the termination of the Agreement.
7. Payment
7.1 The fees payable by the Customer under this Agreement for the initial Subscription Term (“Fees”) and the invoicing terms for the Fees, are as set out in the Proposal.
7.2 RS may increase the Fees payable in respect of a future Subscription Term by giving the Customer at least 60 days’ notice prior to the start of the relevant Subscription Term.
8. Indemnities
8.1 The Customer agrees to defend, indemnify and hold RS and its managing directors, executives, employees, affiliates and agents harmless against any and all actions, claims, demands, costs, liabilities, expenses and damages of third parties (hereinafter "Claims") related to or arising from:
(a) a breach of this Agreement by the Customer; and/or
(b) a breach of third party rights or applicable law by the Customer.
If any Claims described in this clause 8.1 are asserted against RS, RS shall promptly notify the Customer in writing. The failure of RS to promptly notify the Customer shall not release the Customer of its obligations under this clause 8.1 unless the Customer has been actually and substantially prejudiced by such failure. The Customer shall not settle any Claim without RS’ prior written consent.