TERMS OF USE FOR REGISTERED USERS
Preamble
(A) The Data Hub is operated by Volkswagen Group Info Services AG, Berliner Ring 2, 38440 Wolfsburg, Germany ("Volkswagen Group Info Services AG").
(B) The Data Hub facilitates in particular the access to subscriptions of customized vehicle-related data sets ("Data Sets") for business Customers within the meaning of sec. 14 German Civil Code (BGB) ("Customer"), located in the European Union. Customers can only get access to all functions of the Data Hub with a valid account of Volkswagen AG's corporate identity provider and access management solution for B2B customers ONE Business ID ("ONE Business ID").
(C) The Data Sets are provided by various brands of the Volkswagen Group ("Data Provider") and made available by Volkswagen Group Info Services AG to Customers via APIs on the Data Hub.
(D) These Terms of Use ("ToU") govern the contractual relationship between Customer and Volkswagen Group Info Services AG (together the "Parties", each of them the "Party") for using the Data Hub section that is accessible for Customers upon registration and login with their respective ONE Business ID accounts provided by VW AG. The terms and conditions for Data Set subscriptions shall be stipulated in Data Distribution Agreements that are concluded between Customers and Volkswagen Group Info Services AG ("DDA") while the Customer subscribes for Data Sets based on the DDA via the Data Hub.
1. Registration & user account
1.1 Using the Data Hub is subject to prior registration and creation of a user account with ONE Business ID. The ONE Business ID account is a service managed by VW AG. A ONE Business ID user account is nontransferable and must not be used by different Customer employees or other individuals.
1.2 All actions taken under Customer's user credentials are always deemed to be actions taken on behalf of and authorized by Customer. Customer guarantees that the user or users (in case of more than one ONE Business ID account for one Customer) who are accessing and using the Data Hub are entitled to lawfully act on behalf of Customer, including the conclusion of legally binding contracts.
1.3 Registration on the Data Hub requires acceptance of these ToU. In the ONE Business ID authentication process, Customer is required to accept the ONE Business ID terms of use, provide company data such as name, proof of incorporation and commercial register excerpt. In case Customer already has a ONE Business ID account, it can also use the preexisting ONE Business ID account for the registration.
1.4 The contract for the use of the Data Hub in accordance with these ToU shall be concluded at the time of registration or first log in (in case of a preexisting ONE Business ID account) of the Customer to the Data Hub and acceptance of these ToU.
1.5 Customer is responsible for all actions of its users and all actions taken under Customer's user credentials. To this end, Customer shall ensure, inter alia, that: (i) ONE Business ID login credentials are kept secret and not misused; (ii) users are well trained to use the Data Hub; (iii) all technical requirements to use the Data Hub are met, inter alia usage of compatible devices and web browsers with current software versions, and installation of required (security) updates; (iv) user IDs and passwords are referring to an individual user and are not transferred to other users or any third parties; (iv) user information is kept up to date and accurate at all times and all changes are implemented immediately in Customer's ONE Business ID account; and (v) it notifies Volkswagen Group Info Services AG immediately in case of identified misuse of the Data Hub or breaches of these ToU.
2. Subscriptions & access to data sets
2.1 Customer can use the Data Hub after conclusion of a data distribution agreement to subscribe for specific Data Sets and access Data Sets upon subscription.
2.2 To subscribe for Data Sets for which it has been activated upon conclusion of a DDA, Customer must log in to the Data Hub with its ONE Business ID user account, access the respective Data Set via the "Data catalogue"-section, click on the "Confirm and subscribe"-button and follow the checkout procedure. The pricing for subscriptions is set forth in the respective DDA. Sec. 312i (1) sentence 1 No. 1-3 and sentence 2 German Civil Code (BGB) does not apply for Data Set subscriptions. For the avoidance of doubt: Customer can only conclude DDAs with Volkswagen Group Info Services AG outside the Data Hub.
2.3 Upon conclusion of the checkout procedure, Customer can view information on its activated Data Sets in the "My subscriptions"-section of the Data Hub. The information provided in this section includes all relevant information for the respective Data Set, such as the subscription creation date, and the subscription status.
2.4 Further information on Data Set subscriptions and the use of the Data Hub can be found in the "FAQ" section of the Data Hub. In case of questions (e.g. technical support, contract requests or general information), Customer can contact Volkswagen Group Info Services AG via the contact form provided on the Data Hub.
2.5 Volkswagen Group Info Services AG reserves the right to change the Data Hub and the services provided via the Data Hub or to offer different services, provided that such a change (i) is necessary for compliance with mandatory legal requirements, (ii) is required to adjust to the current technical state of the art or (iii) does not go beyond what is customary for comparable web services and reasonable for the Customer, i.e. does not frustrate the Customer's legitimate expectation of continuing to use essential available functions of the Data Hub, which include, for example, the access to active Data Sets.
3. Right to use the Data Hub
3.1 The right of Customer to use the Data Hub is non-exclusive, non-sublicensable, non-transferable and limited to the duration of the contractual relationship between Customer and Volkswagen Group Info Services AG under these ToU. The right of use extends exclusively to the users namely registered by Customer. Customer's right to use the Data Hub is exclusively limited to the purposes set out in these ToU.
3.2 When using the Data Hub, Customer must not: (i) copy, translate, disassemble, decompile, reverse engineer, or otherwise modify, transcribe, reproduce or replicate in full or in part, or make any derivative works of the Data Hub or parts thereof (except to the extent permitted by mandatory law); (ii) use the Data Hub in breach of applicable law, in particular Customer will not transmit any content or data that is unlawful or infringes any Intellectual Property Rights (e.g. (OEM) trademarks, designs, copyrights, patents) ("IPR") of third parties; (iii) circumvent or endanger the operation or security of the Data Hub.
4. Intellectual property rights
4.1 Any IPR owned or held by Volkswagen Group Info Services AG or any Data Providers which may be used by Customer in the context of using the Data Hub during the term of these ToU shall remain the sole and exclusive property of Volkswagen Group Info Services AG or the respective Data Provider. Customer shall have no rights or interest in IPR of Volkswagen Group Info Services AG or Data Providers, except for the right to use such IPR to the extent absolutely necessary for the use of the Data Hub according to clause 3.
4.2 In no event may Customer use or permit others to use Volkswagen Group Info Services AG's or Data Provider's IPR as a reference or otherwise without the explicit prior written consent of Volkswagen Group Info Services AG. The obligations set out in this clause 4 shall remain in force notwithstanding the expiry or termination of these ToU for whatever reason.
5. Costs
5.1 Registration and usage of the Data Hub is free of charge for the Customer.
5.2 Unless expressly provided otherwise in writing by mutual agreement of the Parties, all costs incurred by Customer in the context of using the Data Hub shall be borne by Customer (e.g. internet fees).
6. Suspension of the Data Hub
6.1 The availability of the Data Hub may be suspended for maintenance works, improvements, security precautions and other necessary technical or other measures of Volkswagen Group Info Services AG, downstream / upstream providers or other third parties involved. Due to the performance of necessary works, it is possible that the Data Hub or individual functionalities thereof may be unavailable for certain periods of time. Volkswagen Group Info Services AG takes into consideration the justified interests of the Customer by way of advance communication in a timely manner, if possible.
6.2 Volkswagen Group Info Services AG shall not be liable for any unavailability of the Data Hub due to any event affecting the Data Hub availability arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of Volkswagen Group Info Services AG ("Force Majeure Event"), which occur after conclusion of the contractual relationship of the Parties under these ToU and which were not reasonably foreseeable at the time of contract conclusion and whose effects are not capable of being overcome without unreasonable expense or loss of time to Volkswagen Group Info Services AG. Volkswagen Group Info Services AG shall notify Customer in writing upon the occurrence of a Force Majeure Event and shall use reasonable endeavors to reinstate the availability of the Data Hub.
7. IT- & Data Security
Customer must not:
(A) use any software, routine or device to interfere or attempt to interfere electronically or manually with the operation or functionality of the Data Hub, including uploading or making available files containing corrupt data, viruses, trojans, malicious code, denial of service attacks or else via whatever means;
(B) download, reproduce, transmit, sell or distribute, in whole or in part, in any form or fashion, the contents and the information available on the Data Hub or received via the Data Hub without Volkswagen Group Info Services AG's specific and express written permission and for any purpose other than accessing the Data Hub or otherwise using it as reasonably required;
8. Data protection
Customer shall comply with and provide that its employees, agents and subcontractors comply at any point in time with all applicable data protection laws in connection with the performance of its obligations under these ToU, inter alia the General Data Protection Regulation (regulation (EU) 2016/679).
9. Confidentiality
9.1 The Parties shall treat all Confidential Information (as defined in clause 9.3) of the other Party that is made known to them in connection with or while executing this contractual relationship between the Parties under these ToU, as strictly confidential and use it only for the contractually agreed purposes.
9.2 The duty of confidentiality does not apply:
9.2.1 to those employees, staff and external advisors who are directly involved in the use of the Data Hub ("need to know" principle). Such persons shall – to the extent permitted by applicable law, also for the time after they leave the company – be contractually obliged to confidentiality by the respective Party, unless they are already bound to a duty to confidentiality by law;
9.2.2 if the respectively other Party has agreed to disclosure of Confidential Information on a case by case basis.
9.3 "Confidential Information" shall mean business secrets within the meaning of sec. 2 no. 1 German Trade Secrets Act (GeschGehG) and other confidential information of an economic, legal, financial, technical or fiscal nature which relate to the business activities, customers or employees of the Parties and which are designated as such or are by their nature to be regarded as confidential, irrespective of whether and how it is documented or embodied.
9.4 Reverse engineering (sec. 3 (1) no. 2 GeschGehG) is not allowed, i.e. the Party receiving Confidential Information from the respectively other Party is prohibited from imitating or copying, investigating, dismantling, decompiling or testing Confidential Information in order to obtain (other) Confidential Information without the prior written consent of the Party disclosing the Confidential Information.
9.5 The term "Confidential Information" does not include information which (i) are in the public domain or are or become publicly accessible (unless as a result of a breach of these ToU by the informed Party or one of its representatives); (ii) was already lawfully at the disposal of the informed Party without a confidentiality duty before it received the information from the informing Party; or (iii) was received by a third Party who is entitled to disclose this information without restriction. The existence of one of the above exceptions must be proven by the Party seeking to rely on it.
9.6 If a Party is required by applicable laws to make Confidential Information of the other Party available to a public authority, it is authorized to do so provided that it (i) limits the scope of disclosure to the extent absolutely necessary ("need to know" principle) (ii) has informed – unless prohibited by law – the other Party without undue delay and before the disclosure of said requirement and (iii) has offered reasonable support to the other Party to prevent or limit the disclosure to the maximum extent possible.
9.7 If any Confidential Information of one Party has become known to the other Party, the receiving Party will, upon termination of the contractual relationship between the Parties under these ToU and written request by the disclosing Party, immediately and at its own expense, at the discretion of the disclosing Party either surrender all Confidential Information (including all embodiments, data carriers and copies) to the disclosing Party or destroy them to the extent feasible with reasonable effort, and will prove this to the disclosing Party. The obligation to return or destroy Confidential Information does not apply if, to the extent and as long as such Confidential Information must be retained by the other Party due to statutory retention obligations or had been automatically generated as a backup copy for disaster recovery.
9.8 The confidentiality obligation under this clause 9 shall remain in effect for a period of five years upon termination of the contractual relationship between the Parties under these ToU.
10. Term & termination
10.1 The contractual relationship between the Parties under these ToU shall become effective upon registration of the Customer according to clause 1 and shall be concluded for an unlimited period of time.
10.2 Either Party may ordinarily terminate these ToU with effect to the end of any full calendar month by giving the other Party three (3) months prior written notice.
10.3 Furthermore, either Party may terminate the contractual relationship between the Parties under these ToU with immediate effect for good cause, in particular, if the other Party commits a material breach of any provision of these ToU or the DDA, and, if such breach is remediable, fails to remedy that breach within a period of two (2) weeks after having been notified by the other Party to do so.
10.4 Volkswagen Group Info Services AG may in addition to clause 10.3 terminate the contractual relationship between the Parties under these ToU with immediate effect if
10.4.1 bankruptcy or composition proceedings are opened with final effect against the assets of Customer or such petition in bankruptcy is dismissed due to insufficient assets; or
10.4.2 a change of control occurs with respect to Customer, meaning any third Party shall become the owner, directly or indirectly, of shares representing more than 50% of the aggregate voting power of Customer.
10.5 For the avoidance of doubt: Any termination under this clause 10 (ordinary or for good cause) shall only terminate the contractual relationship between the Parties governed by these ToU (i.e. the use of the Data Hub) and shall have no effect on any other contracts concluded between the Parties (e.g. DDAs).
11. Limitation of liability
11.1 Volkswagen Group Info Services AG shall be fully liable for damage in the event of intentional conduct or gross negligence, in case of culpable injury to life, body and health and mandatory statutory liability such as under the German Product Liability Act.
11.2 In case that Volkswagen Group Info Services AG simply negligently breaches essential contractual obligations, i.e. principal obligations which enable the proper execution of these ToU and upon which the Customer therefore relies and may rely, Volkswagen Group Info Services AG assumes liability on the merits; in such case Volkswagen Group Info Services AG's liability shall be limited to damage which is typical for the breach committed and can reasonably be foreseen.
11.3 Any further liability of Volkswagen Group Info Services AG is hereby excluded.
11.4 The limitation of Volkswagen Group Info Services AG's liability set forth in the preceding clauses shall also apply in favor of Volkswagen Group Info Services AG's statutory representatives, executives and vicarious agents.
11.5 All Customer claims arising out of the contractual relationship of the Parties under these ToU are subject to a limitation period of twelve (12) months. The period shall commence when the claim arises, but not before Customer becomes aware of the facts giving rise to the claim. This shall not affect Volkswagen Group Info Services AG's liability for intentional or grossly negligent breaches of duty and liability for damages arising from injury to life, body or health and for liability under the German Product Liability Act; in this respect, the respective statutory limitation period and the respective statutory commencement of the limitation period shall apply.
12. Indemnity
12.1 Customer shall indemnify and hold harmless Volkswagen Group Info Services AG in full and at first request for any damage and costs (including legal and other professional advisers fees) in connection with all third party claims (including lawsuits, administrative claims, regulatory actions and other proceedings) that are related in any way to (i) any culpable violation of Customer's obligations under these ToU; (ii) Customer's violations of any applicable law, ordinance or regulation or government authorization or orders; (iii) Customer's violation of applicable data protection law; or (iv) any claim that Volkswagen Group Info Services AG violates any third party IPR using IPR provided by Customer.
12.2 The indemnity claim of Volkswagen Group Info Services AG according to clause 12.1 is excluded to the extent that Customer can prove that it did not culpably commit the violations described therein (i.e. no intention or negligence).
13. Governing law & dispute resolution
13.1 These ToU are subject to German substantive law. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
13.2 If a dispute arises out of or in connection with the contractual relationship of the Parties under these ToU ("Dispute"), the Parties shall resolve the Dispute in the following three steps. The transition from one procedural step to the next step shall only be permissible when the preceding procedural step has been completed in accordance with the following stipulations or has been terminated by the passage of time determined below.
13.2.1 As a first step, the Parties shall try to resolve the Dispute amicably through negotiations. For this purpose, the Parties shall meet for negotiations within two (2) weeks after written request by one of the Parties. Each side shall also send a member of its management to these negotiations. Failure to reach an agreement or failure of the negotiations shall have no liability consequences or other legal consequences even if one Party is responsible for the failure to reach an agreement.
13.2.2 If a Party declares in writing that the amicable negotiations pursuant to clause 13.2.1 have failed or if a meeting of the Parties does not take place within three (3) weeks of receipt of a Party's written request for negotiations, either Party may initiate mediation proceedings to settle Disputes. The mediation proceedings shall be conducted in English and at the Conciliation Office of the German Association of Law and Informatics (DGRI), main contact person Prof. Dr. Axel Metzger, LL.M. (Harvard), Humboldt-Universität zu Berlin, Unter den Linden 6, 10099 Berlin, email: schlichtung@dgri.de) in accordance with its Conciliation Rules.
13.2.3 If, after an initial mediation session, a Party declares in writing that the mediation pursuant to clause 13.2.2 has failed, or if an initial mediation session between the Parties does not take place within six (6) weeks of a Party's request for mediation, either Party may initiate arbitration proceedings in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The number of arbitrators shall be one (1) for Disputes with a value of up to EUR 100,000.00 and three (3) for Disputes with a value of more than EUR 100,000.00. The place of arbitration shall be Braunschweig, Germany, and the language of the arbitration proceedings shall be German. The arbitral tribunal may decide on its own competence, and in this context also regarding the existence or the validity of this arbitration agreement in accordance with sec. 1040 German Code of Civil Procedure (ZPO).
13.2.4 Statutes of limitation and contractual exclusion periods shall be suspended for the duration of the Dispute resolution proceedings. The suspension shall commence upon receipt of the request for negotiations pursuant to clause 13.2.1. The suspension shall end at the earliest six (6) months after this date.
13.2.5 Judicial interim or summary proceedings shall always be admissible.
14. Export control
14.1 The Parties shall comply with all applicable export control regulations for the purposes of these ToU and any DDA concluded for the subscription of Data Sets, in particular but not limited to those enacted by the European Union. In particular, the Parties shall not directly or indirectly export or re-export Data Sets to any country for which such export may be prohibited by applicable export control regulations.
14.2 Failure to comply strictly with all laws relating to embargoes, sanctions, export and re-export applicable to the Parties will entitle the respectively other Party to terminate the contractual relationship under these ToU in accordance with clause 10.3.
15. Miscellaneous
15.1 Customer shall submit any notices and declarations under the contractual relationship between the Parties governed by these ToU in text form (email or fax shall suffice).
15.2 Volkswagen Group Info Services AG uses subcontractors, including affiliated companies within the meaning of secs. 15 et seq. German Stock Corporations Act (AktG) for the operation of the Data Hub and the performance of its obligations under these ToU. Customer shall not be allowed to use subcontractors, including affiliated companies without the prior written consent of Volkswagen Group Info Services AG.
15.3 Changes to these ToU introduced by Volkswagen Group Info Services AG shall only become valid upon active consent of Customer. For this purpose, Volkswagen Group Info Services AG informs Customer of ToU changes upon log in to the Data Hub and asks for Customer's active consent.
15.4 Customer may not assign any rights or claims under these ToU without the prior written consent of Volkswagen Group Info Services AG to any third parties, including affiliated companies within the meaning of secs. 15 et seq. AktG.
15.5 Customer shall not be entitled to (i) set-off any claims against any claims Volkswagen Group Info Services AG may have under these ToU or (ii) refuse to perform any obligation it may have under these ToU on the grounds that it has a right of retention unless the rights or claims of Customer are undisputed or have been finally and non appealably established by a competent court of law.
15.6 In case of any conflict between these ToU and the DDA, the terms of these ToU shall prevail.
15.7 Should one or more provisions of the contractual relationship between the Parties under these ToU be or become invalid or unenforceable, this shall not affect the validity and enforceability of the remaining provisions of the contractual relationship between the Parties under these ToU. The same shall apply if the contractual relationship between the Parties under these ToU does not contain an essential provision. The legal principle contained in sec. 139 of the German Civil Code (BGB), including in the sense of a reversal of the burden of proof, shall not apply.
15.8 Nothing contained in these ToU shall be construed as creating a partnership, joint venture, agency or employee-employer relation, trust or other association of any kind between Volkswagen Group Info Services AG and Customer.
15.9 English language terms used in these ToU describe German legal concepts only and shall not be interpreted by reference to any meaning attributed to them in any jurisdiction other than Germany. Where a German term has been inserted in brackets and/or italics it alone (and not the English term to which relates) shall be authoritative for the purpose of the interpretation of the relevant term whenever it is used in this Agreement.
15.10 The headings in these ToU only serve as orientation and do not affect its interpretation.