1.2 High Mobility will provide the Developers (as defined below) access to Car Data (as defined below), but High Mobility will not grant any rights in such Car Data and is under no responsibility regarding the quality of the Car Data.
2.1 Car Maker shall mean a car maker which offers the Developer (as defined below) the access to the Car Data (as defined below) through High Mobility.
2.2 Car Data means specific data provided by a Car Maker through High Mobility. The type of Car Data is specified within the Developer Center.
2.3 Developer means a party which wants to get access to Car Data via High Mobility and which are verified by High Mobility after a successful passing of the Verification procedure of High Mobility.
2.4 End-Customer means the owner or user of a car who will enter into a contract with the Developer for the purpose to use the Car Data.
2.5 Developer App means the software application developed and run by the Developer through which the Developer intends to use the Car Data and which the Developer provides High Mobility during the Verification procedure (as defined below).
2.6 Verification means the process by which High Mobility accredits the Developer and the Developer App for the purpose to receive and use Car Data. For avoidance of doubt each use of Car Data by the Car Data User is subject to the valid consent by the Car Driver through the Consent Flow (as defined below).
2.7 Consent Flow means a digital approval process (as more specified in Section 4) in which the End-Customer gives the Car Maker the approval to transmit Car Data to the Developer via High Mobility. The Consent Flow follows with some adaptions and extensions basically the common OAuth3-Standard. For the avoidance of doubt, in this understanding “Consent” shall not mean consent in terms of the Regulation (EU) 2016/679 (General Data Protection Regulation - GDPR).
2.8 Car Data Derivatives means data that is created by editing Car Data, e.g. by changing its file format, encryption, statistical evaluation and technical processing.
3.1 To become an authorised Developer a party must receive the respective Verification from High Mobility. High Mobility will provide Verification only to trustworthy and reliable party carrying out a legally compliant and respectable business. Among other things, it is a prerequisite for Verification that the Developer entered valid account information, including the company name, address, VAT ID and website. In particular, prior to providing Car Data to the Developer and throughout the relationship with the Car Driver High Mobility has the right to review the Developer’s strict compliance with data protection law. High Mobility reserves the right to provide further rules and guidelines regarding the accreditation which will then apply for future Accreditations.
3.2 Within the Verification process High Mobility will review the request of the Developer and evaluate the Developer App. In addition High Mobility will inform the Developer about the scope of use of the Car Data.
4.1 The delivery of Car Data requires the permission of the End-Customer through a Consent Flow which specifies the Car Data to be processed and for which purposes.
4.2 The End-Customer can confirm the Car Data request through the Consent Flow, thus approving the transmission of the queried Car Data for the disclosed purpose. The End-Customer can terminate the Car Data release at any time.
5.1 If the End-Customer has given consent to the use of the Car Data by the Developer High Mobility will provide the Developer the Car Data in accordance with Section 6 below. Developer agrees and accepts to use the Car Data for the purposes specified during the Verification only; in addition the Developer agrees and accepts that the purpose may vary for each Car Maker and that the Developer will obey such restrictions. The Developer agrees and accepts that it will not receive any rights in the Car Data beyond the aforesaid rights. In particular, Developer agrees and accepts that the Car Maker remains the owner of all rights, title and interest, including all intellectual property rights it has in and on the Car Data. Developer agrees and accepts that the Car Data must not be changed, analysed, aggregated, anonymised, enriched, filtered, structured, combined with any other data unless expressly provided for during the Verification.
5.2 Developer agrees and accepts that it is only entitled to store the Car Data during the Term of this Agreement.
5.3 Developer agrees and accepts that it will not make available or transfer the Car Data to third parties except the End-Customer.
5.4 Developer is not allowed to create Car Data Derivatives and to provide any Car Data Derivatives to any third parties.
5.5 Developer will delete all Car Data after the end of the Term of this Agreement unless, unless the storage of Car Data is required for Developer to comply with contractual obligations vis-à-vis the respective data subject.
6.1 High Mobility will provide the Developer the Car Data as soon as High Mobility receives the requested Car Data from the Car Maker. There may be rate limitations or other technical limitations for each Car Maker beyond the control of High Mobility.
7.1 Developer agrees and accepts that the Car Makers do not provide any warranty regarding the Car Data. Therefore High Mobility is under no obligation as to the Car Data’s quality, quantity, completeness, accuracy or fitness for any purpose. High Mobility provides access to the Car Data “as is” and “as available” without any responsibility going beyond granting access to existing data. For the avoidance of doubt, Developer is in particular aware
(i) that High Mobility and/or the Car Maker only collects data during an established connection with the car; once a connection is dropped High Mobility and/or the Car Maker cannot detect any changes to the information transmitted prior to the drop;
(ii) that not all cars of the Car Maker are technically capable of transmitting data;
(iii) that a transmission of Car Data is not possible in all countries and regions;
(iv) that Car Data may be inaccurate or limited for reasons beyond High Mobility’s or the Car Maker’s control caused in particular by deficiencies in the telecommunication or internet service, e.g. where a car is operated outside the range of a telecommunication network’s proper reception.
8.1 Developer shall always comply with regulatory requirements when integrating Car Data into its products or services and displaying information to its end-customer based on Car Data. In particular, as far as Car Data includes personal data, Developer shall comply with the applicable data protection and privacy laws, rules and regulations, including the GDPR.
8.3 Developer is obliged to comply with the GDPR and any other applicable data protection regulations. A violation of data protection regulations is considered a violation of essential contractual obligations. This includes in particular data protection requirements for IT security in the respective Parties´ area of responsibility.
9.1 If High Mobility is to be held responsible under the statutory provisions in accordance with these terms and conditions for damage caused by slight negligence, the liability of High Mobility shall be limited as follows: High Mobility shall be liable only for the breach of obligations essential to the contract, such as those imposed on High Mobility by the content and purpose of the contract or whose fulfilment facilitates the proper performance of the contract in the first place, and whose fulfilment the Developer can and does rely on. This liability shall be limited to the typical damage which was foreseeable at the time the contract was concluded.
9.2 The aforementioned limitation of liability and the aforementioned exclusion of liability apply to legal representatives, vicarious agents and employees of High Mobility accordingly.
9.3 The above provisions shall not prejudice the liability of High Mobility in the event of malicious non-disclosure of a defect, or if High Mobility has provided a guarantee or accepted a procurement risk, or under the terms of the German Product Liability Act. For the avoidance of doubt, the above provisions shall neither apply to liability for any harm to life, physical integrity or health or liability caused by gross negligence or intent.
10.1 As remuneration the Developer shall pay High Mobility the fee as defined during the Consent Flow. The Developer agrees and accepts that High Mobility is entitled to change the fees with thirty (30) days prior notice. The consent of the Developer is deemed given if the Developer does not object to the changed fees by terminating the Agreement in accordance with Section 13.1 below. High Mobility will indicate the effect of consent within the notice separately.
10.2 High Mobility will provide the Developer with a monthly report about the cost incurring Car Data requests during the previous calendar months together with a respective invoice.
10.3 All payments will be due with the receipt of the report and/or the invoice. All payments will be made in Euro plus Value Added Tax – if applicable.
10.4 If Developer is required to withhold taxes in accordance with applicable law from payments under this Agreement Developer has to pay such withholding tax in addition to the amount payable under this Agreement. Developer shall provide High Mobility without undue delay with the original tax certificate, copy of tax assessment and any other documents that evidence the calculation and the payment of the tax. These documents shall specify High Mobility as tax payer, the amount of tax paid, the tax law and the legal regulation on which such tax payment is based, the tax rate and/or the amount on which such rate is based, the date of payment of the tax, and the tax authorities to which the payment of the tax has been made.
11.1 The Developer agrees and accepts that no rights in the trademarks and logos of High Mobility and/or the Car Makers are licensed hereunder.
12.1 High Mobility is entitled to review Developer’s compliance with the obligations under this Agreement and/or the Consent Flow, in particular with the obligation not to use Car Data in any way other than expressly authorised under this Agreement. High Mobility may carry out related audits during business hours after reasonable prior notice. Any audit will be performed by an independent auditor sworn to secrecy who will provide no details of the audit to High Mobility other than what is required for High Mobility to assess the compliance. Developer shall provide the auditor with all relevant information and documents required for the audit and shall on High Mobility’s request give auditor access to the premises on which the services are performed. The information must be made available no later than ten (10) working days upon High Mobility’s respective the auditor´s request.
12.2 If an audit reveals any cases of non-compliance with Developer’s obligations, High Mobility will inform Developer accordingly and High Mobility may, at its sole discretion, either (i) require Developer to ensure compliance without undue delay and/or (ii) withhold any transfer of Car Data to the Developer until the Developer has demonstrated compliance, and/or (iii) in severe cases terminate the Agreement upon written notice to Developer. High Mobility may also disclose such issues to the respective Car Maker. In cases of significant non-compliance, Developer will reimburse High Mobility for the cost of the audit.
13.1 This Agreement comes into force with the consent of the Developer with this Agreement and the Verification of the respective Developer App by High Mobility and remains in effect until the Developer terminates this Agreement. The Developer can terminate this Agreement with respect to the respective Developer App by withdrawing the Developer App from the High Mobility Developer Center.
13.2 High Mobility is entitled to terminate this agreement at any time by providing at least six weeks written (email is sufficient) notice.
13.3 Either Party may terminate this Agreement with immediate effect if the other party is either in material breach of this Agreement. The Parties understand that a material breach is the breach of an obligation which makes it unacceptable for the other party to hold on to the Agreement in accordance with Section 314 of the German Civil Code, whereby the Parties agree that misappropriation of Car Data by the Developer has to be considered a material breach. In addition, either Party may terminate this Agreement if the other party (i) is in breach of this Agreement and fails to cure that breach within a period of 20 days after receipt of written notice, or (ii) if the other party is notified of such breach and explicitly declares that it is not able or not willing to cure that breach.
14.1 All notices must be in English, in written form (e.g. email, facsimile or letter) and addressed to the attention of email@example.com or such other address as either Party has notified the other in accordance with this clause.
14.2 Developer is not entitled to assign claims against High Mobility or to appoint a third party as factor. Section 354a German Commercial Code shall remain unaffected. Developer may only set off its own claims against claims of the other party or exercise a right of lien if its own claims are uncontested or finally confirmed by a court.
14.3 Except as expressly stated otherwise, nothing in this Agreement shall create an agency, partnership or joint venture of any kind between the Parties.
14.4 Except as stated otherwise, nothing in this Framework Agreement and any Supplement shall create or confer any rights or other benefits in favor of any person other than the Parties to this Framework Agreement.
14.5 Provisions in this Agreement that by their nature should reasonably survive the termination or expiry of a Supplement shall survive.
14.6 If any provision of this Agreement should be fully or partially unenforceable or invalid ("Ineffective Provision") or contain a gap, the other provisions (or the effective part of such Ineffective Provision, provided the remainder of the Ineffective Provision is reasonable from the viewpoint of both Parties) shall remain effective and enforceable between the Parties. In case of an Ineffective Provision, the Parties shall agree on an effective provision which legally and commercially best reflects what the Parties intended or would have intended considering the spirit and purpose of the agreement. The Parties agree that this severability clause does not merely contain a reversal of the burden of proof but that Section 139 German Civil Code shall not apply altogether.
14.7 This Agreement sets out all terms agreed between the Parties in relation to its subject matter and supersedes all previous agreements between the Parties relating to the same (except for existing confidentiality agreements).