This Data Access and Use Terms (hereinafter, “Terms”) is entered into between MAX CO.,LTD(hereinafter, MAX), MAX Europe BV (hereinafter, ME) and you (hereinafter, “you” or “User”).
When you tick the “Consent” button in the website of MAX and download the MAX software, it is deemed that you enter into and agree to the Terms as well as you are representing the organization you belong to, to agree to the Terms.
Upon your agreement to Terms, you are granted to download the MAX software for use and share within the organization you belong to, only under the Terms.
In the case that you do not agree to the Terms, please do not download the MAX software.
In the case that you have already engaged any other terms, agreements and/or contracts with MAX and/or ME, the Terms set out additional provisions regarding data access and use pursuant to Regulation (EU) 2023/2854 (the “EU Data Act”). The Terms form an independent part from the existing terms, agreements and/or contracts already entered into between MAX, ME (hereinafter, collectively the “Data Holders”) and the User and shall be binding in the same manner as the other provisions of the terms or policies. The Terms shall become legally binding immediately after the completion of download by the User.
If you wish to request the suspension of the Data Holders’ use of the data, please contact MAX Europe at the following web site; https://www.max-europe.com/
User may share the downloaded MAX software only within the organization you belong to.
It is User’s responsibility to ensure that the Subsequent User, Additional User of this product, or any third party to whom this product is used to, to understand and follow the provisions set forth in the Terms.
Article 1 (Covered Product/Related Services)
The Terms are made with regard to:
- (a) the following connected product(s) (the “Product(s)”): Any products made available by the Data Holders that (i) obtains, generates or collects data about its use or its environment, and (ii) is capable of communicating such data via an electronic communications service, a physical connection or on-device access.; and
- (b) the following related service(s) (the “Related Service(s)”): Any digital service provided by the Data Holders that is (i) connected to a Connected Product at the time of purchase, rental or lease in such a way that, in the absence of that service, the Connected Product would be unable to perform one or more of its intended functions, or (ii) subsequently connected to the Connected Product by the Company or a third party engaged by the Company to update, adapt or extend the functions of the Connected Product.
The User declares that it is either the owner of the Product or contractually entitled to use the Product under a rental, lease or similar contract and/or to receive the Related Service(s) under these Terms of Use.
Article 2 (Data Covered by the Contract)
The data covered by the Terms (the “Data”) consist of any readily available the Product Data or the Related Services Data within the meaning of Regulation (EU) 2023/2854 (the “EU Data Act”).
The Data consist of the Data listed in Appendix A, with a description of the type or nature, estimated volume, collection frequency, storage location and duration of retention of the Data.
If, during the period of the Terms, new data are made available to the User, Appendix A will be amended accordingly.
Article 3 (Data Use and Sharing by the Data Holders)
- 3.1 Agreed use of non-personal Data by the Data Holders:
3.1.1 The Data Holders undertake to use the Data that are non-personal Data only for the purposes agreed with the User as follows:
- (a) performing any agreement with the User or any activities related to such agreement;
- (b) providing support, warranty, guarantee or similar services or to assess the User’s, Data Holders’ or third parties’ claims (e.g., regarding malfunctions of the Product) related to the Product or Related Service;
- (c) monitoring and maintaining the functioning, safety and security of the Product or Related Service and ensuring quality control;
- (d) improving the functioning of any Product or Related Service offered by the Data Holders;
- (e) developing new products or services, including artificial intelligence (AI) solutions, by the Data Holders, by third parties acting on behalf of the Data Holders (i.e., where the Data Holders decide which tasks will be entrusted to such parties and benefits therefrom), in collaboration with other parties or through special purpose companies (such as joint ventures); and
- (f) aggregating these Data with other data or creating derived data, for any lawful purpose, including with the aim of selling or otherwise making available such aggregated or derived data to third parties, provided such data do not allow specific data transmitted to the Data Holders from the connected product to be identified or allow a third party to derive those data from the dataset.
- (g) advertising, market research purposes, evaluating User’s eligibility for certain types of offers, products or services
3.2 Sharing of non-personal data with third parties and use of processing services:
The Data Holders may share with third parties the Data and which is non-personal data, if the Data is used by such third party exclusively for the following purposes:
- (a) assisting the Data Holders in achieving the purposes permitted under Article 3.1.1; and
- (b) achieving, in collaboration with the Data Holders or through special purpose companies, the purposes permitted under Article 3.1.1.
- 3.3 Protection measures taken by the Data Holders:
- 3.3.1 The Data Holders undertake to apply the protective measures for the Data that are reasonable in the circumstances, considering the state of science and technology, potential harm suffered by the User as a result of Data loss or disclosure of Data to unauthorized third parties and the costs associated with the protective measures.
- 3.3.2 The Data Holders may also apply other appropriate technical protection measures to prevent unauthorized access to Data and to ensure compliance with the Terms.
- 3.3.3 The User agrees not to alter or remove such technical protection measures unless agreed by the Data Holders in advance and in writing.
Article 4 (Data Access by the User Upon Request)
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4.1 Obligation to make the Data available:
The Data, together with the relevant metadata necessary to interpret and use those Data must be made accessible to the User by the Data Holders, at the request of the User or a party acting on its behalf. The request can be made using the form specified separately by the Data Holders, sent to ME at its website https://www.MAX-europe.com/
4.1.1 The Data Holders shall make the Data which is personal data available to the User, when the User is not the data subject, only when there is a valid legal basis for making personal data available under Article 6 of Regulation (EU) 2016/679 (GDPR) and only, where relevant, the conditions set out in Article 9 of that Regulation and of Article 5(3) of Directive (EU) 2002/58/EC (Directive on privacy and electronic communications) are met.
In that regard, when the User is not the data subject, the User must indicate to the Data Holders, in each request made under the previous Article, the legal basis for processing under Article 6 of Regulation (EU) 2016/679 (and, where relevant, the applicable derogation under Article 9 of that Regulation and Article 5(3) of Directive (EU) 2002/58/EC) upon which the making available of personal data is requested.
4.2 Unilateral changes by the Data Holders:
The Data Holders may, in good faith, unilaterally change the specifications of the Data or the access arrangements stated in Appendix A, if this is objectively justified by the general conduct of business of the Data Holders – for example by a technical modification due to an immediate security vulnerability in the line of the Products or Related Services or a change in the Data Holders’ infrastructure.
The Data Holders must in this case give notice of the change to the User without undue delay after deciding on the change. Where the change may negatively affect Data access and use by the User other than to a limited extent, the Data Holders must give notice to the User at least fifteen (15) days before the change takes effect
A shorter notice period may only suffice where such notice would be impossible or unreasonable in the circumstances, such as where immediate changes are required because of a security vulnerability that has just been detected.
Article 5 (Data Use by the User)
- 5.1 Unauthorized use and sharing of the Data:
5.1.1 The User undertakes not to engage in the following:
- (a) use the Data to develop a connected product that competes with the Product, nor share the Data with a third party with that intent;
- (b) use the Data to derive insights about the economic situation, assets and production methods of the manufacturer or, where applicable, the Data Holders;
- (c) use coercive means to obtain access to the Data or, for that purpose, abuse gaps in the Data Holder’s technical infrastructure which is designed to protect the Data;
- (d) share the Data with a third party considered as a gatekeeper under Article 3 of Regulation (EU) 2022/1925; or
- (e) use the Data it receives for any purposes that infringe EU law or applicable national law.
Article 6 (Data Sharing upon the User’s Request with a Data Recipient)
6.1 Making the Data available to a Data Recipient:
The Data, together with the relevant metadata necessary to interpret and use those Data, must be made available to a Data Recipient by the Data Holders, free of charge for the User, upon request made by the User or a party acting on its behalf. The request can be made using the form specified separately by the Data Holders, sent to ME at its website https://www.max-europe.com/
6.1.1 The Data Holders shall make the Data which is personal data available to a third party following a request by the User, when the User is not the data subject, only when there is a valid legal basis for making personal data available under Article 6 of Regulation (EU) 2016/679 (GDPR) and only, where relevant, the conditions set out in Article 9 of that Regulation and of Article 5(3) of Directive (EU) 2002/58/EC (Directive on privacy and electronic communications) are met.
In that regard, when the User is not the data subject, the User must indicate to the Data Holders, in each request made under the previous Article, the legal basis for processing under Article 6 of Regulation (EU) 2016/679 (and, where relevant, the applicable derogation under Article 9 of that Regulation and Article 5(3) of Directive (EU) 2002/58/EC) upon which the making available of personal data is requested.
Article 7 (Transfer of Use and Multiple Users)
- 7.1 Transfer of use:
- 7.1.1 Where the User contractually transfers (i) ownership of the Product, or (ii) its temporary rights to use the Product, and/or (ii) its rights to receive the Related Services to a subsequent natural or legal person (the “Subsequent User”) and loses the status of a User after the transfer to a Subsequent User, the Parties undertake to comply with the requirements set out in this Article.
7.1.2 The User must:
- (a) use its best efforts to assign to the Subsequent User, as of the transfer date, its rights and obligations as a User and the Data Holders agree hereby in advance to such assignment; and
- (b) without undue delay notify the Data Holders of the transfer and the identity of the Subsequent User and provide the Data Holders with a copy of the assignment documents; if no assignment exists under point (a), the User must without undue delay notify the Data Holders of the refusal, in which case the Data Holders may not use the Subsequent User’s Data or make them available to third parties under Article 3.
- 7.1.3 The rights of the Data Holders to use the Product Data or the Related Services Data generated prior to the transfer will not be affected by a transfer, i.e., the rights and obligations relating to the Data transferred under the Contract before the transfer will continue after the transfer.
- 7.2 Multiple users:
- 7.2.1 Where the initial User grants a right to use the Product and/or Related Service(s) to another party (the “Additional User”) while retaining its status as a User, the Parties undertake to comply with the requirements set out in this Article.
7.2.2 The User must:
- (a) include in the Contract between the User and the Additional User, as of the transfer date, on behalf of the Data Holders, provisions substantially reflecting the content of the Terms and especially Article 3 on the use and sharing of the Product Data and/or the Related Services Data by the Data Holders (Flow Down Provisions); and
- (b) act as a first contact point for the Additional User if the Additional User makes a request under Articles 4 or 5 of the EU Data Act or a claim regarding the use or making available of the Data by the Data Holders under the Terms. The Data Holders should be notified of any request or claim in that regard without undue delay and the Parties must collaborate to address any request or claim.
7.3 Liability of the initial User:
- (a) if the User’s failure to comply with its obligations under Articles 7.1 or 7.2 leads to the use and sharing of the Product Data or the Related Services Data by the Data Holders in the absence of a contract with the Subsequent User or the Additional User, the User will indemnify the Data Holders and hold it harmless regarding any claims by the Subsequent User or the Additional User towards the Data Holders for the use of the Data after the transfer.
Article 8 (Date of application and duration of the Terms and Termination)
- 8.1 Date of application and duration
- 8.1.1 This Terms takes immediate effect.
- 8.1.2 This Terms is concluded for unspecified time, unless it expires or is terminated in accordance with clauses 9.2 and 9.2
8.2 Termination
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Irrespective of the term period agreed under clause 9.1, this Terms terminates:
- (a) upon the destruction of the Product or permanent discontinuation of the Related Service, or when the Product or Related Service is otherwise put out of service or loses its capacity to generate the Data in an irreversible manner; or
- (b) upon the User losing ownership of the Product or when the User’s rights with regard to the Product under a rental, lease or similar agreement or the user’s rights with regard to the related service come to an end; or
(c) when both parties so agree, with or without replacing this Terms by a new contract.
Points (b) and (c) shall be without prejudice to the contract remaining in force between the Data Holders and any Subsequent or Additional User.
- 8.3 Effects of expiry and termination
8.3.1 Expiry of the term period or termination of this Terms releases both parties from their obligation to effect and to receive future performance but does not affect the rights and liabilities that have accrued up to the time of termination.
Expiry or termination does not affect any provision in this Terms which is to operate even after this Terms has come to an end, in particular clause 10.1 on confidentiality, clause 10.2 on applicable law and clause 10.3 on dispute resolution, which remain in full force and effect.
8.3.2 The termination or expiry of this Terms will have the following effects:
- (a) the Data Holders shall immediately cease to retrieve the Data generated or recorded as of the date of termination or expiry;
- (b) the Data Holders remain entitled to use and share the Data generated or recorded before the date of termination or expiry as specified in this Terms.
Article 9 (Remedies)
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