Machine Data Share Terms and Conditions

1. Definitions

1.1. In these terms and conditions, unless the context requires otherwise:

1.1.1. Dealers means business operators engaged in the sale, maintenance, repair, etc. of products under contract with the HCM Group.

1.1.2. Equipment means the Hitachi branded machinery sold by the Seller to the Purchaser.

1.1.3. HCM Group means the Seller, Hitachi Construction Machinery Co., Ltd (HCM) and its related bodies corporate, including in particular (but without limitation) HCM’s subsidiaries whether they are incorporated within or outside of Australia.

1.1.4. Insights Data means any data, results, analysis, reports, or other outputs generated through or derived from the use of the Telematics Services, including any interpretations, conclusions, transformation or metrics that arise from such data. Insights Data does not include the Machinery Information and will be de-identifiable to the Purchaser.

1.1.5. Machinery Information means all information obtained from the Telematics Services including, but not limited to, operational and location information of the Equipment.

1.1.6. Material means any tools, methodologies, processes, libraries, databases, software, firmware, source code, documentation or other material in whatever form.

1.1.7. Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction and includes any industry codes of conduct.

1.1.8. Licensed Parties mean HCM Group, Dealers and third-party vendors of HCM Group engaged by or on behalf of HCM Group to utilise Machinery Information for the purposes of generating, storing, processing, retrieving, printing or producing such information to develop Insights Data.

1.1.9. Party means the Seller or Purchaser, as appropriate in the relevant context.

1.1.10. Parties mean the Seller and Purchaser collectively.

1.1.11. Personnel means a Party’s officers, employees, contractors (including subcontractors) and agents of the Party.

1.1.12. Purchaser means the party purchasing the Equipment.

1.1.13. Seller means Hitachi Construction Machinery (Australia) Pty Ltd ACN 000 080 179.

1.1.14. Telematics Services means telemetry services provided by HCM Group from time to time on the Equipment including, but not limited to, LANDCROS Connect and Global e-Service.

1.1.15. Terminal means the mobile communication terminal as may be installed in the Equipment.

2. Machinery Information

2.1. The Parties agree that in connection with the use of any Equipment, Machinery Information may be collected and used by the Licensed Parties for the following purposes, anywhere in the world:

a. to provide after-sales services for the Equipment;

b. to improve after-sales services, solutions service and other support services for Purchaser and other customers in general;

c. develop Insights Data to use for the development, optimisation, improvement, marketing and support of the current and future goods and services of HCM Group to customers; and

d. for the HCM Group to carry out its business objectives, including research and development, designing, engineering, manufacturing, sales and servicing.

2.2. In addition to clause 2.1, the Seller and Licensed Parties may also browse, use and disclose information that falls within any of the following categories for other purposes that are not set out in clause 2.1:

a. Machinery Information in which the Purchaser or the Equipment cannot be identified;

b. information in which Purchaser or the Equipment cannot be identified, as a result of data transformation by the Licensed Parties; and

c. Insights Data.

3. Protection of Machinery Information

3.1. The Seller must ensure that its Personnel and must have HCM ensure the Licensed Parties do not:

a. use any Machinery Information other than for the purposes outlined in clause 2;

b. purport to sell, let for hire, assign rights in or otherwise dispose for commercial purposes any Machinery Information; or

c. alter any Machinery Information in any way, except as required to fulfil its obligations under clause 2.

3.2. Machinery Information is the property of the Purchaser.

3.3. The Seller must have HCM ensure that it does not cause or have caused any pledge, lien, charge, mortgage, encumbrance of a third party or any other security interest to be placed on the Machinery Information or any database (whether electronic or otherwise) in which such Machinery Information is stored.

3.4. The Seller must establish and maintain safeguards against the destruction, loss or alteration of the Machinery Information in the possession, custody or control of the Seller that comply with all applicable Laws.

3.5. The Seller must have HCM establish and maintain safeguards against the destruction, loss or alteration of the Machinery Information in the possession, custody or control of HCM Group (external to the Seller) that comply with all applicable Laws.

4. Insights Data

4.1. The Insights Data is the sole and exclusive property of HCM or an HCM Group entity.

4.2. All intellectual property rights in the Telematics Services and Insights Data are and remain the exclusive property of HCM or an HCM Group entity.

5. Terminal and Telecommunications

5.1. Purchaser acknowledges that the Terminal may be required to be certified by a government authority in the event that the Purchaser desires to export the Terminal and Equipment. The Purchaser must comply with the Laws of the country to be imported or remove the Terminal from the Equipment prior to export.

6. Disclaimer

6.1. Neither the Seller or HCM Group are liable or responsible for the operation of the Telematics Services and all such entities shall be released of all liability in the event of any of the following:

a. appropriate information fails to be reflected in Telematics Services due to conditions of the Terminal or its telecommunication environments;

b. appropriate information fails to be reflected in Telematics Services due to malfunction of the sensor installed in Equipment;

c. Machinery Information fails to be properly received due to failure by HCM Group to register, cancel, update or otherwise properly manage any of the Machinery Information;

d. Machinery Information is delayed, is wrongly transmitted, or fails to be properly sent, due to deterioration of telecommunication environments or any inconvenience of the relevant telecommunications carrier; or

e. Machinery Information is delayed due to any system maintenance of Telematics Services.

7. Termination

7.1. Each Party may terminate the application of any one or all Telematics Services in which case this will be terminated in respect of all terminated Telematics Services within 60 days from receipt of written notice by the terminating Party.

7.2. On termination pursuant to clause 7.1 for any one or all of the Telematics Services, if requested by the Purchaser at no cost to the Purchaser, the Licensed Parties must at destroy and the Seller must certify in writing to the Purchaser the destruction of, the relevant Machinery Information derived from the terminated Telematics Services which is in the Licensed Parties’ possession, custody or control except for all de-identified information designated in clause 2.2.

7.3. Any obligation of confidence contained in these terms and conditions is independent of and must survive termination pursuant to clause 2.2.

8. Reinstatement

8.1. The Purchaser and Seller may agree to reinstate any or all terminated Telematics Services at any time after termination upon mutual written agreement of the Parties. Unless otherwise notified by the Seller, these terms and conditions will then apply to any reinstated Telematics Services.

9. Entire agreement

9.1. These terms and conditions constitute the entire agreement between the Purchaser and Seller and supersedes any previous agreement relating to its subject matter.