General Terms & Conditions
1. Definitions
In these Axscend Limited General Terms and Conditions, unless explicitly stated otherwise, words and expressions have the meaning given to them in the Order Form and as set out below:
“Affiliates” means with respect to any Party, any other entity controlling, controlled by or under common control with such Party. The terms “control”, “controlling” and “controlled”, as used in this definition, shall mean the legal, beneficial or equitable ownership, directly or indirectly, of more than 50% of the issued share capital or more than 50% of the voting rights, or the power, directly or indirectly, to appoint a member of the board of directors or similar governing body of such entity;
“Agreement” means collectively the agreement between Axscend and the Customer for the provision of the TrailerMaster Service and/or Equipment, consisting of the Order Form and any attachments thereto, including these Axscend Limited General Terms and Conditions, and to the extent selected on the Order Form, Equipment- and/or Service Order Form(s);
“Axscend’s Personnel” mean all employees, staff, other workers, agents and consultants of Axscend and of any sub-contractors who are engaged in the provision of the Services from time to time;
“Applicable Law” means the laws of England and Wales and any other laws or regulations which apply to the Services from time to time;
“Confidential Information” means (I) all information and documentation that is considered confidential or proprietary at the time of disclosure, and (II) all information and documentation that falls within any of the following categories: information regarding Customers, distributors, retailers, agents or Users; financial information (except as may have been publicly disclosed pursuant to regulatory requirements); logistics routing patterns; operations; processes; strategies; Equipment pricing information; Equipment specifications and designs; and manufacturing processes; the Customer Data, and all other information disclosed by either Party, which could be reasonably considered confidential to the extent such Party treats such information as confidential or proprietary;
“Customer Data” means any data (including but not limited any Personal Data relating to the staff, customers or suppliers of the Customer), documents, text, (together with any database made up of any of those), embodied in any medium, that are supplied to Axscend by or on behalf of the Customer, or which Axscend is required to generate, process, store or transmit pursuant to this Agreement and includes any location data sent from a Data Collection Unit to Axscend’s data centre;
“Data Collection Unit” (“DCU”) means the Equipment detailed on the Equipment Order Form which will, via the TrailerMaster Service, identify the location in the Territory of the Customer Asset to which it is fitted;
“Force Majeure” means any cause beyond the reasonable control of the Party affected, which affects the performance of the Agreement, including but not limited to prolonged break-down of transport, telecommunication or electric current, Mobile Communication Services, late and/or stagnation of deliveries by Axscend’s suppliers, incomplete deliveries by Axscend’s suppliers, failure to obtain all Equipment and/or (third party) services required for the proper fulfilment of the Agreement by Axscend caused by circumstances that cannot in fairness be attributed to Axscend;
“Initial Term” refers to the period of time for which the Services are to be provided by Axscend in respect of each item of Equipment, and the Initial Term in relation to each such item shall commence on the date Services are commenced in respect of each such item;
“Intellectual Property Rights” means all inventions, patents, registered designs, design rights, data base rights, copyrights, know-how, trademarks (including the Trademarks), trade secrets and any other intellectual property rights, and the applications for any of the same and any rights or forms of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world;
“Order” means an order placed by the Customer regarding the type and amount of Equipment to be delivered to the Customer including the requested estimated delivery date and/or subscriptions to the TrailerMaster Service to be taken by the Customer, in accordance with the Agreement;
“Order Form” means the order form pursuant to which Axscend will supply and the Customer will purchase or rent the Equipment and/or take the TrailerMaster Service in accordance with the terms of the Agreement;
“Party/Parties” means either Axscend or Customer or jointly;
“Equipment Order Form” and “Service Order Form” means the schedules containing product or service specific terms as indicated on the Order Form;
“Legacy Equipment” means any equipment that has previously been supplied by Axscend to the Customer other than under this Agreement.
“Axscend or Axscend Limited” Axscend Limited, a private company with limited liability, incorporated under the laws of the United Kingdom, with registration number 04275454 and its registered seat at Unit B Hampton Court, Tudor Road, Runcorn, WA7 1TT;
“Axscend Limited General Terms and Conditions” means these general terms and conditions that apply to the TrailerMaster Service, Equipment purchase and Equipment rental, as applicable;
“Axscend Platform” means the IT systems that run the TrailerMaster Service;
“Services” means the installation of Equipment to the Customer Assets and the provision of the TrailerMaster Service;
“Trademarks” means the Axscend names, trademarks and logos (whether registered or applied for) and any other names, trademarks, logos, designs and symbols designated to be used on or in relation to the Equipment or services provided by Axscend;
“User” means a person authorised by the Customer to access and use the TrailerMaster Service;
“TrailerMaster Service” means the online service, via the TrailerMaster Website, enabling the Customer to identify at least the last known location of any Customer Asset to which a Data Collection Unit has been installed to manage its Assets to the extent that such Customer Assets are located in the Territory;
“TrailerMaster Website” means the website www.trailermaster.com.
1. Applicability and Scope
1.1. These Axscend Limited General Terms and Conditions, including to the extent indicated on the Order Form the relevant Equipment Schedule(s) and/or Service Schedule(s), shall apply to and are expressly incorporated into the Agreement and all subsequent agreements entered into between Axscend and the Customer in connection with the TrailerMaster Service and/or Equipment. It is expressly agreed that the general terms and conditions, or any other terms, of the Customer do not apply.
1.2. All quotations submitted by Axscend shall be non-binding on its part, unless explicitly stipulated otherwise in writing by Axscend. An Agreement shall be concluded and binding for the Parties thereto, if and when both parties execute the Order Form.
2. Term and Termination
2.1. Axscend shall supply the TrailerMaster Service(s) and for, where applicable, the purchase or rental of Equipment for the Initial Term.
2.2. Either Party may, without prejudice to any of its other rights arising hereunder, upon giving written notice, terminate the Agreement with immediate effect, if: (I) the other Party fails to observe or perform any material term or condition hereof, including in any event late or non-payment, and such default or breach (if capable of remedy) is not remedied within twenty (20) calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given; or (II) any of the following events occur: (a) the presentation of a petition for winding up of the other Party; (b) the other Party is the subject of an order or an effective resolution is passed for winding up the other Party; (c) the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the other Party; (d) if a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the other Party; (e) the other Party making a composition or arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (f) the other Party goes into liquidation; (g) the other Party becoming unable to pay its debts or otherwise becoming insolvent; or (h) the other Party ceasing, or threatening to cease, to carry on business.
2.3. Upon: (I) the Customer’s actual or intended petition for insolvency; or (II) the institution of bankruptcy proceedings; or (III) the appointment of a receiver or administrative receiver in respect of the Customer; or (IV) the petition or award of a suspension of payments order; or (V) the Customer offering its creditors a private repayment arrangement or should its assets be attached; or (VI) the Customer becoming unable to pay its debts or otherwise becoming insolvent, then the Customer’s debts to Axscend shall become immediately due and payable. Subsequent to any such events, Axscend shall be entitled to suspend performance of the Agreement until such time that the Customer has fulfilled all of its obligations under the Agreement.
2.4. All clauses which are either expressly or by implication intended to survive termination shall continue to apply after termination of this Agreement.
3. Prices, Payment and Default
3.1. All prices quoted by Axscend are in GBP (unless stated otherwise), exclusive of VAT.
3.2. The Customer will be invoiced for TrailerMaster Service subscription fees and the rental rates for Equipment monthly in advance and monthly in arrears for all other charges. Payment is due within 30 days of the invoice date.
3.3. If payment is not made on time: (I) the Customer shall be in breach of the Agreement, without any notice of default being required and all of Axscend’s claims against the Customer shall become immediately due and payable; (II) the Customer shall be obliged to pay the statutory interest rate for commercial debts on the outstanding amount and all judicial and extra-judicial costs incurred by Axscend relating to the recovery and collection of any overdue amount; (III) Axscend reserves the right to suspend the Customer’s access to and use of the TrailerMaster Service until all outstanding amounts (including interest and costs) are settled; and (IV) the reasonable costs of suspending and reactivating shall be borne by the Customer.
3.4. All payments made by the Customer must be effected without set-off, discount and/or suspension of any type whatsoever, unless specifically agreed otherwise in writing.
4. Force Majeure
4.1. If a Party is prevented or delayed in the performance of any of its obligations under the Agreement by Force Majeure, then that Party will be excused from the performance or punctual performance, as the case may be, of its obligations, to the extent that such Force Majeure continues, and such Party agrees to use all reasonable endeavours to overcome or work around the Force Majeure so as to be able to perform its obligations under the Agreement.
4.2. Should the period in which a Party cannot fulfil its obligations because of Force Majeure continue for longer than 30 calendar days, either Party shall be entitled to terminate the Agreement in writing without there being an obligation to pay any compensation whatsoever arising out of or in connection hereto.
4.3. Notwithstanding clause 5.2 of these Axscend Limited General Terms and Conditions, if, at commencement of Force Majeure, Axscend has partly fulfilled its obligations or is only partly able to fulfil its obligations, it shall be entitled to charge all activities carried out prior to the start of the Force Majeure event and costs incurred in this respect separately to the Customer as if such costs related to a separate Agreement.
5. Intellectual Property
5.1. Axscend retains all Intellectual Property Rights vested in the TrailerMaster Service, TrailerMaster Website, Axscend Platform, and the Equipment. The Customer shall not at any time acquire any rights, title or interest in these Intellectual Property Rights by virtue of any use that the Customer may make thereof pursuant to the Agreement.
5.2. The Customer retains all Intellectual Property Rights vested in the Customer Data. Axscend shall not at any time acquire any rights, title or interest in the Customer Data by virtue of any use that Axscend may make thereof pursuant to the Agreement.
5.3. The Customer shall: (I) not cause or permit any third party to cause any damage or endanger the Intellectual Property Rights of Axscend; (II) without prejudice to any other rights of Axscend, indemnify Axscend for any loss suffered by Axscend by reason of any use by the Customer or User of Intellectual Property Rights of Axscend other than in accordance with the Agreement; (III) not in any way alter the packaging or labelling of the Equipment as supplied by Axscend unless such alterations have first been approved by Axscend in writing; (IV) not alter, remove, or in any way tamper with the Trademarks or affix any other name, Trademark, logo, design or symbol on Equipment or the packaging thereof unless such has been approved by Axscend in writing; (V) not use any Trademarks so as to prejudice the distinctiveness or validity or the goodwill of Axscend therein; (VI) not in any way use the Trademarks on or in connection with any Equipment or services other than the Equipment; (VII) not in any way use the Trademarks in any name, Trademark or logo of the Customer, whether or not such name, Trademark or logo is used in connection with the performance of the Agreement; (VIII) not use any name, Trademark, logo, design or symbol so resembling any of the Trademarks as to be likely to cause confusion or deception; (VIX) ensure that all references to, and use of, any Trademarks are approved by Axscend; (X) not challenge the validity or enforceability of or Axscend’s entitlement to use any of its intellectual property.
5.4. In the event the Customer at any time whether directly or indirectly contests Axscend’s ownership of the Intellectual Property Rights in, or does anything that would jeopardize or diminish Axscend’s rights to the TrailerMaster Service, TrailerMaster Website, Axscend Platform, or the Equipment, or the value of the Intellectual Property Rights vested therein, Axscend has the right to immediately terminate the Agreement.
5.5. Axscend warrants that the provision of the Services will not infringe any third party Intellectual Property Rights. Notwithstanding any other clause, Axscend shall indemnify the Customer against all liabilities, costs, damages, claims, demands, expenses and losses incurred or suffered by the Customer, including legal expenses reasonably and properly incurred, arising out of or in connection with any breach by Axscend of clause 6.5.
5.6. The Customer shall not engage in any conduct which in the opinion of Axscend is prejudicial or likely in the future to be prejudicial to Axscend’s business or marketing of the Equipment.
6. Liability
6.1. Subject to clause 7.3 of these Axscend Limited General Terms and Conditions, Axscend’s aggregate liability, whether in Agreement, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Agreement, shall be limited to the net price paid or to be paid by the Customer for the TrailerMaster Service in the full year (12 months) in which the loss or damage occurred, the price paid for those Equipment that actually caused the damage or the rental rates paid or to be paid by the Customer for those Equipment that actually caused the damage over a preceding period of 12 months, whichever is greater. In all other cases Axscend’s liability shall be excluded.
6.2. Axscend shall never be liable for: (I) any loss of profits, anticipated savings, revenue, business, loss or corruption of data, loss of use, loss of goodwill, loss due to delay; or (II) any indirect or consequential loss or damage whatsoever.
6.3. Nothing in this clause 7 and in the entire Agreement shall be deemed to exclude or limit the liability of either Party: (I) in respect of loss or damage caused by wilful intent or gross negligence of a Party or its officers, employees, agents or contractors; or (II) in respect of injuries to, damages to the health of, or death of any person, caused by a Party or its officers, employees, agents or contractors. (III) in respect of payment of any sums due under this Agreement; or (IV) for any other liability which cannot be excluded by law.
6.4. Any claim for loss or damages (except a claim for damages arising out of clause 7.3 of the Axscend Limited General Terms and Conditions) must be notified to Axscend within twelve (12) months as from the date on which the damage was caused, failing which such claim is deemed to be waived.
6.5. All warranties, conditions or other terms implied by statute that are not expressed in the Agreement are, to the fullest extent permitted by law, excluded from the Agreement.
7. Confidentiality
8.1 Neither Party shall at any time during or after the term of the Agreement divulge, disclose or otherwise furnish, directly or indirectly, to any third party any Confidential Information unless explicitly permitted herein or required by law. The provisions of this clause 8 shall not apply to any information which the receiving Party can demonstrate (I) is or becomes public knowledge other than by breach of a duty of confidentiality; or (II) is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party; or (III) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or (IV) is independently developed without access to the Confidential Information. The receiving Party may disclose the Confidential Information disclosed by the disclosing Party as required by law or to comply with an order of a court or other governmental entities or regulatory authorities that have jurisdiction over the receiving Party, provided that the receiving Party: (I) gives the disclosing party reasonable written notice to allow it to seek an injunctive order or other appropriate remedies and provide any assistance which the disclosing party may require in order to secure such order or remedies; (II) discloses only such information as is required by the governmental entity or regulatory authority; and (III) uses its reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
8.2 Axscend shall not, and shall procure that Axscend’s Personnel do not, use any of the Customer’s Confidential Information received otherwise than for the purposes of this Agreement.
8.3 On the expiry or termination of this Agreement, each party shall upon written request by the other party:
8.3.1 return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information; and
8.3.2 erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically practicable).
9. Data Protection and Information Security Requirements
9.1. Axscend will comply with its obligations under the General Data Protection Regulation (GDPR) as enshrined in law by the Data Protection Act of 2018.
9.2. Any Data breach will be handled as per Axscend’s Data Breach Reporting Policy. This reflects the requirements as set out under the GDPR Article 33. Both parties are obliged to comply with this GDPR requirement. Axscend will comply with its obligations under the Common Law Duty of Confidentiality.
9.3. Axscend will comply with its obligations under the GDPR with regard to its obligations to the eight rights of Data Subjects as enshrined in the Data Protection Act of 2018.
9.4. Axscend takes Data protection very seriously. Please refer to our Data Protection Policy for further details.
9.5. Retention and disposal of data will be in accordance with our obligation to the Data Subjects under the GDPR and in agreement of the retention periods.
9.6. Upon termination of the contract, data will be deleted within the system within one month, after ensuring that the Customer has been provided with that processed by Axscend within the parameters and during the period of the contract.
10. Installation of Equipment
10.1. Axscend shall install the Equipment on Customer Assets designated by the Customer in a good and workmanlike manner by trained technicians so as to identify the location of the Customer Asset.
10.2. Axscend shall observe any reasonable security requirements and health and safety requirements that apply to any of the Customers’ premises which have been notified to Axscend.
10.3. Axscend shall undertake the installation in compliance with all Applicable Laws.
11. Support and Maintenance Services
Axscend shall use commercially reasonable efforts to provide technical support via email at support@axscend.com and a customer support line at 01303 842100.
12. Miscellaneous
12.1. Neither Party may assign, sub-contract, transfer or dispose of any of its rights and obligations under the Agreement, either in whole or in part, without the prior written consent of the other Party, provided that Axscend may assign, sub-contract, transfer or dispose of any of its rights and obligations under the Agreement, either in whole or in part, to any of its Affiliates without the Customer’s prior consent.
12.2. The illegality, invalidity or unenforceability of any provision of the Agreement shall not affect the legality, validity or enforceability of the remainder of the clause or paragraph which contains the relevant provision or any other provision of the Agreement. If the remainder of the provision is not affected, the Parties shall use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Agreement which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the clause, or the part of the clause, in question.
12.3. Except for clause 7.4 of these Axscend Limited General Terms and Conditions, the rights of either Party under the Agreement are without prejudice to all other rights and remedies available to either Party and no failure or delay by either Party to exercise any right under the Agreement will operate as a waiver of such right under the Agreement.
12.4. Except as expressly otherwise provided for herein, no amendment to the Agreement is valid or binding unless made in writing.
12.5. All notices, consents, waivers and other communications under this Agreement must be in writing, in English and delivered by hand or sent by regular mail, registered mail, express courier or e-mail to the appropriate addresses set out in the Agreement (or to such addresses as a Party may notify to the other Party from time to time). A notice shall be effective upon receipt and shall be deemed to have been received at the time of delivery (if delivered by hand, registered mail or express courier) or at the time of successful transmission (if delivered by e-mail).
12.6. Axscend shall provide to the Customer on request a copy of all Customer data held by it under the Agreement, and shall promptly inform the Customer if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. Axscend will restore such data at its own expense.
12.7. A person who is not a party to this Agreement may not enforce any of its provisions under the Agreements (Rights of Third Parties) Act 1999.
13. Legacy Equipment
The parties acknowledge that Axscend previously supplied the Legacy Equipment which was fitted to Customers Assets pursuant to an Agreement dated 23 September 2012 and subsequent agreements (“Legacy Agreements”) and the parties agree that the Legacy Equipment shall now be the subject of this Agreement and the Legacy Agreements shall be terminated upon the date hereof.
14. Disputes and Governing Law
The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
Schedule 1
Information Security Requirements
1. Scope and Contents
1.1 Axscend will maintain an information privacy and security policy that:
(i) Is appropriate to the nature, size and complexity of Axscend’s business operations; and
(ii) Complies with any applicable laws and regulations that are applicable for the geographic region in which Axscend operates.
1.2 Axscend will provide details of any major changes that may adversely affect the security of any Customer Data. Such details will be communicated in writing or electronic mail to the customer’s Information Security Officer no later than ten (10) business days prior to the effectiveness of any changes.
1.3 The Customer shall ensure that its Information Security Officer’s contact details are communicated to Axscend. Any change of the Customer’s Information Security officer’s contact details must be communicated to Axscend no later than ten (10) business days prior to the effectiveness of any changes such that Axscend may update its systems.
2. Logical Security
2.1 The logical security processes in this Schedule apply to Axscend’s systems used to provide the Services on which Customer Data is accessed, processed, stored, transferred or maintained.
2.2 Axscend certifies that it employs access control mechanisms that are designed to:
(i) Prevent unauthorised access to Customer Data;
(ii) Limit access to personnel with a business need to know;
(iii) Follow the principle of least privilege allowing access to only the information and resources that are necessary under the terms of the Agreement;
(iv) Have the capability of detecting, logging and reporting access to the system or network or attempts to breach security of the system of network;
(v) Revoke personnel’s access to physical locations, systems and applications that contain or process Customer Data within one (1) week of the cessation of such personnel’s need to access the system(s) or application(s);
2.3 Where the customer is provided with the ability to create user accounts on Axscend’s system, the customer certifies that it will employ access control mechanisms that are designed to:
(i) Prevent unauthorised access to Axscend’s service;
(ii) Limit access to personnel with a business need to know;
(iii) Follow the principle of least privilege allowing access to only the information and resources that are necessary under the terms of the Agreement;
(iv) Have the capability of detecting, logging and reporting access to the system or network or attempts to breach security of the system of network;
(v) Revoke personnel’s access to physical locations, systems and applications that accesses Axscend’s service within one (1) week of the cessation of such personnel’s need to access the system(s) or application(s);
(vi) Where appropriate, ensure all personnel have an individual account that authenticates that individual’s access to Axscend’s service.
(vii) Ensure all account passwords must be configured according to industry best practice and adhere to a minimum length of eight (8) characters with a complexity containing uppercase, lowercase and special characters or numbers.
2.4 Axscend will deploy reasonably appropriate firewall technology in the operation of Axscend’s sites.
2.5 Axscend shall establish and maintain appropriate network segmentation. Axscend shall not allow direct connections from public networks into any network segment storing Customer Data.
3. Incident Response and Notification Procedures
3.1 Axscend will maintain an incident response function capable of identifying, mitigating the effects of, and preventing the recurrence of information security incidents. Upon discovering an information security incident that may put Customer Data at risk (“Breach”), Axscend shall take all reasonable measures to mitigate the harmful effects of the Breach. Axscend shall also notify the Customer of the Breach as soon as practicable, but in no event later than forty-eight (48) hours after discovering the Breach. Notice to the Customer sent to the Customer’s Information Officer and shall include:
(i) Identification of the Customer Data which has been, or is reasonably believed to have been, used, accessed, acquired or disclosed during the Breach;
(ii) Description of what happened, including any associated information security events, the date of the Breach and the date of discovery of the Breach (if known);
(iii) Scope of the Breach;
(iv) A description of Axscend’s response to the Breach, including steps Axscend has taken to mitigate the harm caused by the Breach; and
3.2 Where required by law, Axscend must ensure that affected third parties are notified of the Breach, at the Customer’s sole discretion, either by notifying such third parties after the Customer has reviewed and approved the language and method of notice, or by enabling the Customer to notify such third parties itself.
3.3 Upon conclusion of investigative, corrective or remedial actions with respect to a Breach related to Customer Data, Axscend will prepare and deliver to the Customer a final report that describes in detail:
(i) Extent of the Breach;
(ii) Customer Data disclosed, destroyed or otherwise compromised or altered;
(iv) Corrective and remedial actions completed; and
(v) Efforts taken to mitigate the risk of further Breaches.
4. Data Handling
4.1 Axscend will encrypt the following:
(i) All Customer Data at rest.
(ii) Any mobile devices used outside of a secure company office (e.g. laptop, smartphone, tablet) that will perform any part of the Service involving Customer Data.
Schedule 2
Service Levels
1. Customer support relating to the Equipment or the TrailerMaster Service shall be reported to Axscend Customer Service via email at support@axscend.com and/or the customer support line at 01303 842100. Axscend shall undertake an initial assessment of the reported problem within 4 working hours and in any event not longer than 48 hours and report its findings to the Customer.
2. If, following an initial assessment of the reported problem it appears that the Equipment may not be correctly functioning, Axscend will use all commercially reasonable endeavours to arrange an onsite visit within 48 hours of the Customer notifying Axscend that the Connected Asset is available for inspection at an appropriate location. During the onsite visit an Axscend engineer will either:
2.1. Repair or Replace faulty Axscend Equipment.
2.2. Advise the Customer that the Axscend Equipment has become physically damaged and if so requested by the Customer to do so, repair or replace the Equipment (which shall be at the Customer’s expense).
2.3. Advise the Customer that the problem is outside Axscend’s responsibility (e.g. a faulty Electronic Braking System) and if possible and if requested by the Customer to do so, the Axscend engineer may repair or replace the faulty equipment (which shall be at the Customer’s expense).
3. If following the initial assessment considered at 1, the problem is identified as relating to the Axscend Platform, Axscend will use all commercially reasonable endeavours to rectify the problem within 48 hours and notify the Customer when such rectification is completed.
4. In any event, Axscend shall use all commercially reasonable endeavours to ensure that the TrailerMaster Service is operational at least 98% of the time during the Initial Term.