I. Contractual legal relationships
(1) RUBBLE MASTER is a manufacturer of mobile crushers and screens as well as stockpile and conveyor belts and is the world market leader in mobile crushing and recycling in the compact class (hereinafter referred to as “machines”). The machines are sold by distribution partners from whom they are purchased by clients.
(2) At the client’s request, the machines are supplied to the distribution partner by RUBBLE MASTER already equipped with the hardware necessary for the additional RM GO! SMART function, or this can be retrofitted to existing GO! machines. The use of the this additional function by the client requires the software developed by RUBBLE MASTER that is installed on the machine (hereinafter referred to as “software”) as well as the application for mobile devices made available by RUBBLE MASTER (hereinafter referred to as “App”) and the user specific login data.
(3) A direct contractual relationship between RUBBLE MASTER and the client as a result of purchasing the machine does not exist – unless this contract has been signed.
II. Object of contract
(1) RUBBLE MASTER is the developer of the object of contract “RM GO! SMART” (software), available in the versions “RM GO! SMART Basic” and “RM GO! SMART Plus”. The version that is bound by the contract is described in the Annex (Annex ./A) and includes the APP.
(2) The software records – when in use – the performance data of the machine listed in Annex ./A, in order to provide the contractual parties information on the condition of the machine and the performance of the machine and all relevant parameters.
(3) With the rights of use in this contract the client obtains the right to use the related application (referred to hereinafter as “app”) – which can be used on mobile phones and other selected mobile end devices in accordance with Annex./A. The client has the right to use the application to view the performance data of the machine that they have purchased and are operating and use these data for evaluation purposes.
(4) RUBBLE MASTER grants the client hereby the right to use the software and the app, and also view and use the data obtained in return for a one-time (RM GO! SMART Basic) payment. The object of this contract is therefore the paid provision of the software and app for the client to use to measure data indicating the performance and condition of the machine.
(5) The hardware already provided with the machines delivered to RUBBLE MASTER distribution partners is prepared for an upgrade to the higher Plus version of “RM GO! SMART”. In this case a software upgrade and possibly a hardware upgrade is required.
(1) This contract is concluded for an indefinite period and can be terminated in writing by either party every year on 31 December – providing 3 (three) months notice is given.
(2) The contract expires at the end of the relevant calendar month if the machine is sold to a third party and RUBBLE MASTER is provided with proof of the sale. As long as RUBBLE MASTER is not informed about the sale of the machine, the contractual relationship with the client remains in effect.
(3) This contract also ends if the machine – for whatever reason – is destroyed.
(4) The client will not be granted any exception to the termination policy. However, RUBBLE MASTER’s right to withdraw from the contract prematurely for an important reason remains unaffected.
(5) The following apply as important reasons, among others, for premature termination of the contract:
- proven payment arrears, relating to more than two invoices
- critical change in the economical situation of the client
- cease in operation of the software
- insolvency and inability to pay of the client
- non-compliant use of the software or app
- non-compliant transfer of machine performance data obtained using the software or app to third parties
- non-compliant forwarding of client login data to third parties
IV. Copyright, performance data and data protection
(1) All – of whatever nature – tangible and intangible rights to the software as well as the app, especially intellectual property, the comprehensive copyright with all authority, remain exclusively with RUBBLE MASTER.
(2) The client is not permitted to duplicate the software. This includes making back-up copies. Any contravention in this respect will be treated as an infringement of RUBBLE MASTER’s copyright.
(3) The client is obliged to take appropriate measures to prevent unauthorised access to the software or app by third parties. The employees of the client are to be advised and instructed on the conditions of this contract and the copyright of RUBBLE MASTER.
(4) The client is not permitted to remove or damage features and other mechanisms that indicate the copyright of RUBBLE MASTER or are designed to prevent the making of pirate copies.
(5) The client is obliged to ensure that no changes/manipulations – of whatever kind – are made to the software.
(6) RUBBLE MASTER is the owner of the non-person related, machine related data that is recorded using the software and/or app. RUBBLE MASTER is entitled to collect, process and evaluate this data for their own purposes. The client expressly agrees to RUBBLE MASTER using the data in this way.
(7) The client also grants RUBBLE MASTER the right to collect, process and evaluate person-related data obtained using the software and/or app for their own purposes, especially for recording different performance data for machine development. The actual performance data of the machine and if need be the available (person-related) data on the operator and/or user of a machine are stored in a way that specific persons cannot be identified from the performance data without the provision of additional information. The scope of use is laid down in the data security agreement, which is an integral part of this agreement. (Annex ./B)
V. Obligations of the client
(1) The client is obliged to provide access to the machines with the hardware and software installed when requested by RUBBLE MASTER in order to carry out improvements, maintenance work and other changes/updates needed on the software. This obligation includes the provision of a personalised password for the WiFi on the machine when requested by RUBBLE MASTER.
(2) The client is obliged to download updates made available by RUBBLE MASTER for the app and/or software as soon as instructed and to update the existing app and/or software.
(3) The client is obliged to keep secret and not pass on to third parties the login data provided by RUBBLE MASTER for using the software and the app. The client has ensured that unauthorised persons are not able to log in and use the mobile device and app. The client is recommended in the course of signing the contract to personalise the standard password for accessing the WiFi connection on the machine. The client indemnifies and holds RUBBLE MASTER harmless for any disadvantageous consequences or damages resulting from the client not changing the standard password.
(4) The client is obliged to inform RUBBLE MASTER immediately if they lose the login data and or personal WiFi password, or it is made available to third parties, so that the relevant password can be blocked. The client is liable for all disadvantageous consequences and damages that occur to RUBBLE MASTER if the client does not arrange immediately for the password to be blocked after the client has intentionally or unintentionally given the login data and/or password to third parties. Immediately means that arranging for the password to be blocked takes place within 24 hours of the loss or forwarding of the password.
VI. Obligations of RUBBLE MASTER
(1) RUBBLE MASTER sends the client within 14 days of signing the contact the necessary link required to download the app and the personal login data (user name and password) that are needed to use the app. RUBBLE MASTER will also send the standard password for the WiFi installed on the machine.
(2) RUBBLE MASTER is not liable for the software and app that are the object of this contract being free of defects. A defect only exists if the client has not been granted the agreed actual or legal usage rights.
(3) RUBBLE MASTER warrants 95% availability of the software and/or app on average per calendar year. If this availability is not achieved, the payment to be made to RUBBLE MASTER by the client is reduced on a pro-rata basis. Any claim by the client for reduced availability of the software and/or app in excess of the above is excluded.
(4) RUBBLE MASTER is obliged to first carry out maintenance work to the technical extent possible using remote servicing technology. If this proves impractical or impossible, however, RUBBLE MASTER is entitled to perform maintenance work on-site on the machine – limited to the software that is the object of this contract.
(5) RUBBLE MASTER is not liable in any way for defects on the machine (as long as they are not related to the software that is the object of contract). The client is obliged to contact the distribution partner directly regarding any claim of this kind.
(1) RUBBLE MASTER accepts no liability for the software and app being free of third party property rights. The client is obliged to immediately report to RUBBLE MASTER any assertion of property rights by third parties – providing they concern the software or app that are the object of contract.
(2) RUBBLE MASTER is not liable for limitations or defects resulting from contractual rights that do not have their origins in the software or app.
(3) The client has the responsibility to install the app on a technically suitable WiFi compatible device. RUBBLE MASTER is not liable for the technical defect of defective technical equipment of the device. RUBBLE MASTER takes no responsibility for damage or disadvantageous consequences caused to the device as a result of downloading and using the app. The client is obliged to make back-up copies of the contents of their mobile device at regular intervals (at least once per week).
(4) RUBBLE MASTER is liable for damages resulting from the use of the software and/or app that are the object of this contract, providing it can be proven that RUBBLE MASTER or persons acting on their behalf have acted in gross negligence or intent.
(5) The liability of RUBBLE MASTER for slight negligence, replacement of lost earnings, consequential damages and financial damages, unforeseen damages, non-achieved savings, loss of interest, non-typical losses and loss caused by claims from third parties against the client are explicitly excluded.
(6) The client must prove any liability-triggering fault attributable to RUBBLE MASTER, clause § 1298 ABGB (Austrian Civil Code) is explicitly excluded.
(7) Any claim for damages by the client lapses after 6 (six) months after reporting the loss and the party responsible, and other claim for damages by the client – of whatever kind – are excluded.
VIII. Force Majeure
If contractual obligations cannot be fulfilled on time or in compliance with the contract as a result of force majeure, such as war, terrorism, natural catastrophe, fire, strike, embargos, government intervention, failure of telecommunication networks or data transmission lines, then these are not in breach of the contract.
IX. Liquidated damages
(1) In the event of the client contravening the contract – especially in regard to breaching copyright and secrecy obligations – RUBBLE MASTER is entitled to claim a lump sum in liquidated damages of EUR 10,000. No proof of actual loss needs to be provided for this claim to be valid.
(2) Any claim for additional liquidated damages in excess of the above lump sum remain unaffected.
(1) The client is obliged to keep strictly secret all business and operating secrets – regardless of method or form – made available to them by RUBBLE MASTER, especially in terms of the functionality of the software and app, as well as all information that is the object of this contract.
(2) The client must also expressly oblige all their employees or third parties acting on their behalf to comply with this secrecy agreement and must apply and implement suitable measures to ensure that it is enforced.
(3) RUBBLE MASTER is obliged to keep secret all business and operation secrets of the client, regardless in which way or form they have been obtained.
(4) This obligation to keep secret by RUBBLE MASTER explicitly does not apply, however, to all data obtained using the software and/or app that are the object of this contract. The client also expressly agrees to the data being forwarded to third parties.
(5) The client also agrees to being contacted by the distribution partner in future, providing it concerns RUBBLE MASTER products.
XI. Conclusive provisions
(1) If individual provisions of this contract are invalid or become invalid, then the validity of the remaining content of the contract remains unaffected. The invalid or unenforceable provision must be replaced by a provision that comes closest to achieving the intended commercial purpose of the invalid or unenforceable provision.
(2) RUBBLE MASTER is entitled to transfer the rights and obligations of this contract to a company in the RUBBLE MASTER group without obtaining prior permission from the client.
(3) This contract is subject exclusively to Austrian substantive law, except its provisions applying in particular to international private law that refer to the use of foreign laws.
(4) If concerning foreign matters the Austrian law provides for the application of special international laws that are also applicable in Austria – such as the CISG (Convention for the International Sale of Goods) – then these do not apply.
(5) The place of jurisdiction for any disputes arising from this contract is the relevant court responsible for 4020 Linz.
(6) Any amendments and supplements to this contract must be made in writing. This also applies to changing the requirement for the written form.
(7) If these contract is translated into any other language apart from German, it is exclusively the German version that is relevant and binding. It will be used for any interpretation of the contract.
Appendix ./A: SPECIFICATION OF SERVICES Software „RM GO! SMART Basic“
Operating System: iOS
Supported Devices: iPhone 6, 6s, 7, 8, X; iPad Mini 2 & 4
Scope of Service
- Controlling of Operation (Fuel level, fuel consumption, engine load, engine speed, working hours, throughput and performance when equipped with belt scale or volume measurement system
- Remote Live Performance Data
- Remote Live Condition Data
- Error Code Push Notification
- Key Performance Indicators
- Daily Status Report
- Automatic forwarding to selected Email-addresses
All functions are only available while wireless connection (WIFI) between machine (software) and device (application)