General Terms and Conditions
(Software as a Service)
Monday, 8 January, 2018
1 SUBJECT OF THE CONTENT
(1) HERE Technologies (hereinafter also “ATS”) provides its customers (hereinafter also “customer”) with “ATS Garage” software as a service (hereinafter also “ATS Garage”, “the service, “the software”), a cloud-based over-the-air software and firmware update management system. "HERE" refers to either (i) HERE Europe B.V. with offices at Kennedyplein 222-226, 5611 ZT Eindhoven, The Netherlands, if your official address is in any country within Europe, Russia, the Middle East or Africa, or (ii) HERE North America, LLC with offices at 425 West Randolph Street, 60606 Chicago, Illinois, USA, if your official address is in any other country.
(2) These General Terms and Conditions apply to and are part of the contract on the use of “ATS Garage” (hereinafter: “ATS Garage” contract or “the contract”).
(3) These General Terms and Conditions shall apply exclusively. Contractual provisions of the customer shall not be applicable. Counter-claims by the customer with reference to his own Terms and Conditions are expressly rejected.
(4) The requirement of a written form under these Terms and Conditions is observed by telefax or e-mail.
(1) By registering on the website www.atsgarage.com the customer agrees to the conditions laid out on the website (including pricelists) and to these General Terms and Conditions.
(2) After verification of the application by ATS the customer receives a confirmation e-mail with the access data for his user account. Upon reception of the confirmation e-mail by ATS the “ATS Garage” contract shall be deemed concluded.
3 TYPE AND SCOPE OF THE SERVICE
(1) “ATS Garage” is an industry-grade Software as a Service platform that is based on open standards and particularly designed for the mobility market. “ATS Garage” provides a complete over-the-air (OTA) update service, enabling software and firmware updates for connected devices (hereinafter also “devices”). “ATS Garage” is operated by ATS as a cloud-based solution. “ATS Garage” comprises a browser-based user interface (hereinafter “ATS Garage Website”) and a collection of programmatic application interfaces for connected devices clients (hereinafter “ATS Garage APIs”).
(2) “ATS Garage Website” provides a user interface for the management of devices and orchestration of over-the-air software update campaigns. The “ATS Garage APIs” allow client software implemented on devices to communicate with the “ATS Garage” service to send configuration information, request software updates, receive notifications of software updates, and download updated software onto the devices. Further details to the scope of “ATS Garage” are provided on www.atsgarage.com and/or in service descriptions and conditions provided to the customer at the time of the conclusion of the contract.
(3) The customer shall be allowed to use “ATS Garage” - stored and running on the servers of ATS or a service provider commissioned by ATS - via an internet connection during the term of this contract for his own purposes and to store and process data with its help and to implement API clients for or integrate API clients into connected devices.
(4) The customer registers for a number of devices that defines the initial scope of “ATS Garage” service. The customer may register additional devices or reduce the number devices at any time via his user account under the provisions in § 12 of these Terms and Conditions. In the event of extending the scope of “ATS Garage” service these extensions are considered part of the existing “ATS Garage” contract and all the provisions hereof.
(5) ATS provides the customer with “ATS Garage” at the router output of its data center ("transfer point"). ATS is not responsible for the availability and maintenance of the data connection between the transfer point and the IT systems of the customer.
(6) ATS reserves the right to update, change, add or remove functions and features of “ATS Garage” as required for the technical development of the product or due to new laws or jurisprudence or equivalent causes. ATS will notify the customer at least two months ahead of substantial changes or a removal of functions. If a change or a removal of functions and features leads to a substantial change of the scope of “ATS Garage” it will be deemed accepted by the customer if the customer doesn’t object in writing within two months after the changes have taken effect.
(7) As far as “ATS Garage” runs exclusively on servers of ATS or a service provider commissioned by ATS, the customer does not require any copyright-related rights to use the software and ATS does not grant such rights. However, limited to the duration of the contract ATS grants the customer the non-exclusive, non-transferable right to use the “ATS Garage Website” user interface through a web browser and to exercise the “ATS Garage APIs” for the number of devices registered with ATS and to use “ATS Garage” for the purposes according to the “ATS Garage” contract.
(8) The customer does not have the right to incorporate “ATS Garage Website” user interface elements into any other product or service, or to use the “ATS Garage APIs” from other devices as those agreed upon, especially to provide “ATS Garage” to third parties. The customer does also not have the right to create derivative services of “ATS Garage”, or to create proxies to access the services on the behalf of third parties.
4 DATA STORAGE
(1) ATS shall store content and data for the customer and make it available for retrieval as part of “ATS Garage”. Data storage by ATS is carried out with the sole purpose to serve as an integral component of the technical means to execute “ATS Garage”. ATS does not provide and owe data storage as an autonomous service and therefore especially does not owe back-up solutions or grant the right to the customer to retrieve data or to request the return of data by ATS outside the use of “ATS Garage” unless this is required by mandatory Laws of the Federal Republic of Germany.
(2) The customer undertakes not to establish any criminal or otherwise illegal contents and data, and not to upload viruses or other programs containing malicious software into “ATS Garage”. The customer is solely responsible for his and/or his users data uploaded by him to “ATS Garage” and therefore has to make sure that the storage and processing of such data does not infringe third party rights or the law. ATS is not aware of the contents of uploaded data and does not examine the content of the data.
(3) “ATS Garage” includes the allocation of storages space for 100 GB of data if not agreed on more storage space. § 5 is applicable to the data storage. Data transfer from or to the “ATS Garage” storage is limited to 1 GB per mobile device per month if not agreed otherwise.
(4) The customer shall not be entitled to, in part or full, allow third parties to use the storage space.
(5) ATS shall take appropriate precautions against loss of data and to prevent unauthorized access to the customers’ data by third parties.
(6) The customer shall remain the sole owner of the data.
(1) ATS ensures an average availability of “ATS Garage” of 97 % over the year. Any interruptions or disruptions of “ATS Garage” due to maintenance or interruptions as well as disruptions of the service due to reasons that are beyond the control or influence of ATS (especially but not exclusively due to failure of the telecommunication networks beyond the transfer point) or due to a removal or change of features of “ATS Garage” according to § 3 (6) do not count as non-availability of “ATS Garage” in the above sense.
(2) ATS is entitled to interrupt the service for maintenance purposes or due to other technical requirements. The customer will be informed of such an interruption in advance. If an interruption due to maintenance work is required during normal working hours the customer shall be informed at least one week before the interruption.
(3) In the case of an interruption, disruption or malfunction of the “ATS Garage” service the customer shall report these to ATS without delay and as precise as possible via e-mail to email@example.com. If the customer waives this cooperation, § 536c German Civil Code (BGB) shall apply mutatis mutandis.
(4) On workdays (Monday through Friday from 9:00 to 18:00 CET) ATS will react to a disruption of “ATS Garage” or a malfunction that leads to total software failure within 4 hours of the report by the customer. In the case of less severe malfunctions ATS will react in the shortest possible time, but no later than the business day following the day of the reception of the failure report.
(5) In the case of failure reports by the customer after business hours, the reaction time begins with the start of business on the next working day.
(6) If a disruption of “ATS Garage” or a total software failure cannot be eliminated within a working day ATS has to inform the customer.
(7) Malfunctions of “ATS Garage” may arise which are outside of the control or influence of ATS. This includes, in particular, acts by third parties which are not acting on behalf of ATS, technical conditions of telecommunication and the internet, as well as force majeure. The hardware, software (e.g. client software) and technical infrastructure used by the customer and the configuration and reconfiguration (including changes to the client software) of the aforementioned may also have an influence on “ATS Garage” services. All circumstances mentioned in this paragraph and all comparable circumstances that are outside the control or influence of ATS that affect the availability or functionality of “ATS Garage” shall not be considered a defect of the “ATS Garage” service or a disruption in the above sense and for the purpose of the “ATS Garage” contract.
6 RIGHTS FOR DATA PROCESSING, DATA PROTECTION
(1) ATS and the customer observe the legal data protection regulations of the Netherlands and will ensure that the respective employees are committed to comply with the data protection regulations.
(2) For the purpose of carrying out the “ATS Garage” service, the customer grants ATS the right to reproduce the data and to be stored by ATS for the customer, as far as necessary for the “ATS Garage” service. In order to eliminate disturbances, ATS is also entitled to make changes to the structure of the data or to the data format.
(3) If and to the extent that the customer processes personal data according to statutory regulations on IT systems for which ATS is technically responsible, a separate data processing agreement has to be concluded.
(1) ATS offers two remuneration models for the use of “ATS Garage”: “ATS Garage Basic” and “ATS Garage Premium”.
(2) “ATS Garage Basic” allows the customer a free of charge use of “ATS Garage” for a number of up to 20 devices.
(3) “ATS Garage Premium” allows the customer the use of “ATS Garage” for an unlimited number of devices for a fee plus VAT (if applicable) as set out in the price list in effect. The prices will be displayed to the customer during the registration process. The current price list is also published on the website www.atsgarage.com. The prices are quoted exclusive of the respective statutory value-added tax (VAT).
(4) If not agreed otherwise “ATS Garage Premium” bases the fee on the number of devices the customer uses “ATS Garage” for per month. Therefore, if the customer activates or deactivates devices in his user account it will result in an according change of fees. If the customer deactivates devices the fee for these devices shall be billed for a full month.
(5) ATS shall invoice the fees monthly. The invoice shall be payable within 10 days.
(6) In the event of delay of payment ATS has the right to charge interest of 9 % above the base lending rate of the European Central Bank. Delay of payment starts in the case of non-payment after the reception of a reminder by ATS (e-mail or any other electronic means of communication is sufficient) but at the latest 30 days after reception of the invoice. The right to claim further damages resulting from the delay of payment shall remain unaffected. During the delay of payment ATS has the right to deny access to “ATS Garage” until reception of the full payment.
(7) If the customer is in delay of payment with two consecutive months, ATS may terminate the contract without further notice and with immediate effect.
(8) The customer may set off or withhold payments exclusively against undisputed counterclaims or claims that are established by uncontestable court decision.
(9) In case of an increase of total costs (labor expenses, material costs, license fees, data center costs, hardware costs, software costs, other costs for technical equipment, other procurement costs, general and fixed costs (e.g. lease, energy etc.) ATS shall be entitled to increase the prices for “ATS Garage” accordingly. The first price adjustment cannot take place earlier than 12 months after the inception of the “ATS Garage” contract. Following price adjustments may take place no earlier than after 12 months since the date of the respective last price change. ATS will inform the customer about the price adjustment no later than 6 weeks before the effective date of the price adjustment. In the event of a price increase by more than 5 % per year the customer has the right to terminate the “ATS Garage” contract in writing with a notice period of one month to the end of the following calendar month. If the customer does not terminate the contract within six weeks after reception of the price adjustment notification the price changes become part of the contract and take effect at the date set out in the notification. If the customer terminates the contract the previous price will continue to be valid until termination date.
8 SUPPORT AND UPDATE
(1) “ATS Garage Premium” comprises a support service including enhancements of functions to optimize its processes (updates) and a support hotline for inquiries regarding the operation and integration of “ATS Garage”.
(2) However, ATS does not provide support for customers’ implementations of “ATS Garage APIs” into his client software.
(3) “ATS Garage” support hotline is accessible by e-mail at firstname.lastname@example.org. It shall be available on workdays Monday to Friday from 9:00 till 18:00 CET with the exception of public holidays in Berlin and the 24. and 31. of December of each year. Inquiries received outside of these support hours shall be deemed as received during the next work day.
(4) “ATS Garage Premium” support does not include consulting, elimination of malfunctions due to improper operation of “ATS Garage” or due to customer modifications of “ATS Garage API” clients, or incorrect customer implementation of “ATS Garage APIs”, or caused by force majeure or third party intervention or other influences outside the sphere of control or influence of ATS.
(5) The customer shall not be entitled to support for features which ATS has removed from “ATS Garage” in accordance with the “ATS Garage” contract or with consent of the customer, or for features which are indicated to be in active development or “beta”.
9 OBLIGATIONS OF THE CUSTOMER
(1) The customer shall provide ATS with whatever support required to investigate reported defects or malfunctions of “ATS Garage”.
(2) For the use of “ATS Garage” the system requirements (software and hardware) resulting from the product description must be fulfilled at the customer's premises. The customer bears the responsibility for this and the correct configuration of his IT-systems (software and hardware).
(3) As far as the customer uploads any content or transfers any data to ATS he grants ATS all necessary rights for the implementation of “ATS Garage” service, especially the right to make copies of files the customer has uploaded as required to store, process and distribute them to the devices. The customer assures that he is legally entitled to the aforementioned necessary rights.
(4) The customer will use “ATS Garage” under full compliance with the laws and regulations that are applicable to his business and to the law applicable to the “ATS Garage” contract. The customer will use “ATS Garage” exclusively for the purposes of the “ATS Garage” contract.
(5) The customer shall take the necessary precautions to ensure that “ATS Garage” is not used by unauthorized employees or third parties, especially the customer shall keep authentication credentials (usernames, passwords etc.) secure and confidential and ensure that employees to whom authentication credentials are made available also do so.
(6) If third parties (including public bodies) assert claims or rights violations against ATS based on the claim that the customer has used “ATS Garage” in a any manner that violates any laws or third party rights (e.g. copyrights) or has breached contractual obligations, the customer shall indemnify and hold harmless ATS immediately, offer ATS appropriate support for its legal defense and pay all the cost of legal defense. ATS shall inform the customer immediately in writing of any claims by third parties and allow the customer, if possible to lead the judicial and extrajudicial negotiations regarding these claims at his own cost. The customer will immediately inform ATS of all information available to him about the facts which are the subject of the claim.
(7) The customer shall make regular and complete backups of all his data uploaded according to § 4.
(1) The statutory provisions of the Law of the Federal Republic of Germany for the warranty in rental agreements apply in principle and as far as they are not excluded or amended by these General Terms and Conditions or by other contractual provisions of the parties.
(2) § 536b BGB (Bürgerliches Gesetzbuch – German civil code: knowledge of the lessee of the defect at the conclusion of the contract), and § 536c BGB (indication of defects by the tenant) apply. However, the application of § 536a Abs. 2 BGB (self-employment right of the tenant) is excluded. The application of § 536a (1) BGB (liability for damages by the landlord) is also excluded as far as this rule provides for a liability which is dependent on fault.
(3) Minor reductions of the capabilities of “ATS Garage” service are shall remain out of consideration. Also, a removal or change of features of “ATS Garage” according to § 3 (6) shall not be considered a defect of “ATS Garage”.
(4) Warrant claims are void if “ATS Garage” is not used in accordance with the “ATS Garage” contract conditions and if a malfunction results from modifications to the software by the customer and under the circumstances mentioned in § 5 (7).
(1) ATS shall be liable for damages that were caused by willful or gross negligence of ATS or were caused by slight negligence by ATS and result in significant breaches of main obligations that jeopardize the purpose of the contract
(2) In all other respects the liability of ATS shall be excluded, regardless of the legal basis thereof, unless in cases of injury to life, body or health of a person or a case of fraudulent concealment of a defect or in accordance with product liability law.
(3) ATS is especially not liable for the loss of data, as far as the losses were avoidable by a regular and complete backup of all relevant data by the customer or a third party on behalf of the customer, for any failure of the telecommunication connection and internet network beyond the transfer point, for force majeure, third party faults or for actions of the customer himself. ATS is especially not liable for damages that are caused by failure or incompatibility of hardware and software (e.g. client software) used by the customer, for damages caused by any modifications of “ATS Garage” by the customer or third parties or system interference that arises from misconfiguration by the customer and for any other damages caused by the customer.
(4) In any case of liability according to § 11 (1) except for willful actions the liability of ATS shall be limited to typical and foreseeable damages. ATS shall not be liable for the loss of profits, savings or other incidental or consequential damages.
(5) Claims for damages against ATS are lapsed after a period of 12 months after the occurrence of a breach of a contractual obligation.
12 CONTRACT TERM AND TERMINATION OF THE CONTRACT
(1) If not otherwise agreed the “ATS Garage” contract is concluded for an indefinite time period.
(2) “ATS Garage” contract may be terminated by either party in written form observing a notice period of 6 months to the end of the calendar month.
(3) The customer may activate and deactivate devices at any time without written request or notice via his user account. An “ATS Garage Basic” customer that wants to add devices above a total of 20 devices (§ 7 (2)) first needs to register as an “ATS Garage Premium” user
(4) The mutual right of extraordinary termination of the contract for good cause remains unaffected.
(5) After the contract has been terminated, ATS shall delete the data stored at ATS within one month of the end of contract, notwithstanding reservations or rights of the customer.
(1) The parties shall be obligated to keep secret all information about the other party known to them or become known to them as confidential or that is obviously confidential due to other circumstances, (hereinafter referred to as "confidential information"). Confidential information shall not be passed on to third parties, recorded, or used in any other way, unless the other party has agreed to the disclosure or use explicitly or in writing or the information must be disclosed on the basis of law, court decision or a decision by public authority. The parties shall impose a corresponding confidentiality obligation on their employees who come into contact with the confidential information
(2) Information is not considered confidential information, if it
- has already been known to the other party in a licit manner
- is generally known
- has been disclosed by a third party, provided the disclosure is not a result of a breach of this obligation.
(3) The obligations pursuant to this clause endure the end of this agreement.
14 FINAL PROVISIONS
(1) The assignment of the rights and obligations from ”ATS Garage” contract is only permitted with the prior written consent of ATS. ATS is entitled to entrust third parties with the fulfillment of the obligations under this contract.
(2) The place of performance of “ATS Garage” is Berlin, Germany. The “ATS Garage” contract shall be exclusively subject to the laws of the Federal Republic of Germany under the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) The place of exclusive jurisdiction is Berlin, Germany.
(4) The “ATS Garage” contract and amendments of the contract require the written form.
(5) In the case that a clause of the “ATS Garage” contract, including these General Terms and Conditions is or becomes invalid this shall not affect the validity of the contract as a whole. The contracting parties commit themselves to substitute the invalid clause with a clause that is closest to the economic intention of the parties. The same shall apply if during the execution of “ATS Garage” a loophole in the contract becomes obvious.