1.2 High Mobility will provide the Developers (as defined below) access to Fleet Car Data (as defined below), but High Mobility will not grant any rights in such Fleet Car Data and is under no responsibility regarding the quality of the Fleet Car Data.
2.1 Car Maker shall mean a car maker which offers the Developer (as defined below) the access to the Fleet Car Data (as defined below) through High Mobility.
2.2 Fleet Car means a vehicle owned by the Fleet Owner and which is approved by High Mobility.
2.3 Fleet Car Data means specific data provided by a Car Maker through High Mobility for the use of Fleet Owners. The type of Fleet Car Data is specified within the Developer Center.
2.4 Fleet Owner means an entity which owns a fleet of vehicles which are used by the Fleet End-User (as defined below) and wants to get access to Fleet Car Data and which are verified by High Mobility after a successful passing of the Fleet App Verification.
2.5 Fleet End-User means a person who uses a Fleet Car from the Fleet Owner fleet.
2.6 Fleet Owner App means the software application developed and run by the Fleet Owner through which the Fleet Owner intends to use the Fleet Car Data and which the Fleet Owner provides High Mobility during the Fleet App Verification procedure (as defined below).
2.7 Fleet App Verification means the process by which High Mobility accredits the Fleet Owner and the Fleet Owner App for the purpose to receive and use Fleet Car Data. For avoidance of doubt each use of Fleet Car Data by the Fleet Owner is subject to the valid approval through the Clearance Flow (as defined below).
2.8 Clearance Flow means an approval process in which a Fleet Owner vehicle is registered to High Mobility and cleared by High Mobility for access to Fleet Car Data.
2.9 Consent Management means a consent process (as more specified in Section 4) in which the Fleet End-User gives the Fleet Owner the approval to transmit Fleet Car Data to the Fleet Owner via High Mobility.
2.10 Fleet Car Data Derivatives means data that is created by editing Fleet Car Data, e.g. by changing its file format, encryption, statistical evaluation and technical processing.
3.1 To become an authorized Fleet Owner a party must receive the respective Fleet App Verification from High Mobility. High Mobility will provide Fleet App Verification only to trustworthy and reliable parties carrying out a legally compliant and respectable business. Among other things, it is a prerequisite for Fleet App Verification that the Fleet Owner entered valid account information, including the company name, address, VAT ID and website. In particular, prior to providing Fleet Car Data to the Fleet Owner and throughout the relationship with the Fleet End-User High Mobility has the right to review the Fleet Owner’s strict compliance with data protection laws. High Mobility reserves the right to provide further rules and guidelines regarding the accreditation which will then apply for future Fleet App Verifications.
3.2 During the Fleet App Verification process High Mobility will review the request of the Fleet Owner and evaluate the Fleet Owner App. In addition, High Mobility will inform the Fleet Owner about the scope of use of the Fleet Car Data.
4.2 The Fleet Owner must ensure that all Fleet End-Users has given all required consents and approvals which are necessary to use of have used the Car Data. The Fleet Owner must ensure the consents and approvals are in effect and available to him at all times during the use of the Car Data. In particular, Fleet Owner must ensure that the consents and approvals are in compliance with the GDPR and that the Fleet End-Users have been informed about the use of the data and its rights in accordance with the GDPR. Fleet Owner is obliged to present respective consent to High Mobility for revision upon request.
4.3 The Fleet Owner shall indemnify High Mobility, the Car Maker and its Affiliated Companies from any third party claims, which arise due to the lack of consent or approval by persons within the Fleet Owner’s sphere of influence, including the Fleet End-Users, or of such persons to whom the Fleet Owner has provided vehicles or access to the services of High Mobility or from claims due to an unlawful implementation and use of the services of High Mobility for which the Fleet Owner is responsible towards High Mobility.
5.1 If the Clearance Flow has successfully been completed High Mobility will provide the Fleet Owner the Fleet Car Data in accordance with Section 6 below. Fleet Owner agrees and accepts to use the Fleet Car Data for the purposes specified during the Fleet App Verification only; in addition, the Fleet Owner agrees and accepts that the purpose may vary for each Car Maker and that the Fleet Owner will obey such restrictions. The Fleet Owner agrees and accepts that it will not receive any rights in the Fleet Car Data beyond the aforesaid rights. In particular, Fleet Owner 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 Fleet Car Data. Fleet Owner agrees and accepts that the Fleet Car Data must not be changed, analyzed, aggregated, anonymized, enriched, filtered, structured, combined with any other data unless expressly provided for during the Fleet App Verification.
5.2 Fleet Owner agrees and accepts that it is only entitled to store the Fleet Car Data during the Term of this Agreement.
5.3 Fleet Owner agrees and accepts that it will not make available or transfer the Fleet Car Data to third parties.
5.4 Fleet Owner is not allowed to create Fleet Car Data Derivatives and to provide any Fleet Car Data Derivatives to any third parties.
5.5 Fleet Owner will delete all Fleet Car Data after the end of the Term of this Agreement unless, unless the storage of Fleet Car Data is required for Fleet Owner to comply with contractual obligations vis-à-vis the respective data subject.
6.1 High Mobility will provide the Fleet Owner the Fleet Car Data as soon as High Mobility receives the requested Fleet Car Data from the Car Maker. There may by rate limitations or other technical limitations for each Car Maker beyond the control of High Mobility.
7.1 Fleet Owner agrees and accepts that the Car Makers do not provide any warranty regarding the Fleet Car Data. Therefore, High Mobility is under no obligation as to the Fleet Car Data’s quality, quantity, completeness, accuracy or fitness for any purpose. High Mobility provides access to the Fleet Car Data “as is” and “as available” without any responsibility going beyond granting access to existing data. For the avoidance of doubt, Fleet Owner 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 Fleet Car Data is not possible in all countries and regions;
(iv) that Fleet 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 Fleet Owner shall always comply with regulatory requirements when integrating Fleet Car Data into its products or services and displaying information to its end-customer based on Fleet Car Data. In particular, as far as Fleet Car Data includes personal data, Fleet Owner shall comply with the applicable data protection and privacy laws, rules and regulations, including the GDPR.
8.3 Fleet Owner 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.
8.4 Fleet Owner is obligated to report the loss of a vehicle, communications module or SIM card, as well as any defects in the connectivity services and communications module (insofar as they are apparent to the Fleet Owner) to High Mobility's support channel (email@example.com). Before returning a vehicle to the seller (dealer) or lessor, or when returning the SIM card installed in a vehicle's communications module, and when removing a vehicle from the fleet (for example by selling the vehicle), the Fleet Owner shall notify High-Mobility to remove the affected vehicle’s clearance without undue delay.
8.5 Fleet Owner represents and warrants that all Fleet Cars are owned and rightfully possessed by the Fleet Owner.
8.6 The Fleet Owner represents and warrant that it complies with all relevant contractual and legal requirements, notably the requirements of the General Data Protection Regulation (GDPR). In particular, the Fleet Owner must ensure that only such vehicles of its fleet are connected, for which the required legitimation by the Fleet Owner and the consent declarations of the Fleet End-Users have been obtained and are available.
8.7 The Fleet Owner shall indemnify, defend and hold High Mobility harmless from and against any and all damages, costs (including legal/attorney fees), charges, expenses, liabilities incurred by High Mobility directly or indirectly out of or in connection with (a) the use of any personal data in the meaning of the GDPR of any user of Fleet Owner’s vehicles; (b) Fleet Owners breach of any of Fleet Owner’s obligations, representations or warranties under this Agreement.
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 Fleet Owner shall pay High Mobility the fee as defined during the Fleet App Verification. The Developer agrees and accepts that High Mobility is entitled to change the fees with thirty (30) days prior notice. The consent of the Fleet Owner is deemed given if the Fleet Owner 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 Fleet Owner with a monthly report about the cost incurring Fleet 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 Fleet Owner is required to withhold taxes in accordance with applicable law from payments under this Agreement Fleet Owner has to pay such withholding tax in addition to the amount payable under this Agreement. Fleet Owner 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 Fleet Owner 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 Fleet Owner’s compliance with the obligations under this Agreement and/or the Consent Management, in particular with the obligation not to use Fleet Car Data in any way other than expressly authorized 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. Fleet Owner 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 Fleet Owner’s obligations, High Mobility will inform Fleet Owner 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 Fleet Car Data to the Fleet Owner until the Fleet Owner 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, Fleet Owner will reimburse High Mobility for the cost of the audit.
13.1 This Agreement comes into force with the consent of the Fleet Owner with this Agreement and the Fleet App Verification of the respective Fleet Owner App by High Mobility and remains in effect until the Fleet Owner terminates this Agreement. The Fleet Owner can terminate this Agreement with respect to the respective Fleet Owner App by withdrawing the Fleet Owner 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 Fleet Owner 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 firstname.lastname@example.org or such other address as either Party has notified the other in accordance with this clause.
14.2 Fleet Owner 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. Fleet Owner 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).