Data-driven Services Terms & Conditions
1 FEBRUARY 2021
Data-Driven Services Terms & Conditions
The Specific Terms and Conditions herein shall form an integral part of the Agreement entered into by the Company and the Customer through Scania Interfaces. The Customer has read and understood these Specific Terms and Conditions and agrees that the Customer’s written acceptance of or its performance in relation to the Agreement shall constitute the Customer’s acceptance of these Specific Terms and Conditions.
1.1 "Agreement” shall mean these Specific Terms and Conditions, the General Terms and Conditions, and the applicable agreement for subscription to Services (as the case may be) as entered into between the Company and the Customer, including these Specific Terms and Conditions as well as all and any appendices thereto.
1.2 “Charges” shall mean the fees that are charged (where applicable) by the Company for the Services and for administration in connection therewith.
1.3 "Company” shall mean Scania (Malaysia) Sdn Bhd.
1.4 “Customer” shall mean a physical or legal entity holding a Subscription for Services.
1.5 “Customer Data” shall mean all and any data relating to the Customer itself in its capacity as recipient of Services as well as Personal Data and Operational Data, save for data which the Company created or generated itself for purposes of formalising the Agreement with the Customer.
1.6 “Equipment” shall mean Hardware and Software.
1.7 “Hardware” shall mean the requisite computers and other equipment meeting with the system requirements set out in these Specific Terms and Conditions, any other part of the Agreement or the Service Description(s), or as otherwise approved by the Company according to its normal routines, for use in connection with the Interfaces and/or Services.
1.8 “Interfaces” shall mean all relevant interfaces for connecting to Scania Fleet Management or other systems through which Services are provided, such as the Scania Fleet Management Portal, the Scania Tachograph Portal, mobile apps, Scania communicators, or other wireless communication or similar interface.
1.9 “Operator” shall mean any communications services provider which the Company may co-operate with when offering Subscriptions to Customers.
1.10 “Operational Data” shall mean data which is generated in, through and from Products during or in connection with the rendering of Services to the Customer. Operational Data from e.g. Vehicles may for purposes of the Agreement also be regarded as Personal Data, due to the availability through Vehicle tachographs to information about the identity of the individuals who generated it when operating the Vehicles.
1.11 “Operator Network” shall mean the Operator’s communications network, which the Company and the Customer use for communication between the Product(s) and Scania servers through the Interfaces.
1.12 “Party” shall mean the Company and the Customer individually.
1.13 "Personal Data” shall have the meaning as defined in the General Terms and Conditions.
1.14 “Price List” shall mean the list of relevant Charges determined by the Company in respect of the Subscription and Services. as applicable from time to time.
1.16 "Product” shall mean a Vehicle, engine or other product that is covered by one or more Subscriptions to Services according to the main contract form (as updated from time to time according to these Specific Terms and Conditions).
1.17 “Scania” shall mean the Scania Group Company or Scania Network Member.
1.18 “Scania CV AB” shall mean the virtual parent company of the Scania Group, as incorporated in Sweden.
1.19 “Scania Group” shall mean all companies jointly which are part of the global corporate group of Scania CV AB, as defined according to the applicable laws of Sweden.
1.20 “Scania Group Company ” shall mean a company within the Scania Group.
1.21 “Scania Network Member ” shall mean a company within Scania CV AB’s authorised distribution system.
1.22 “Service(s)” shall mean the various fleet management, tachograph, driver training, driver coaching and other data driven services managed by the Scania Group and/or the Company through any of the Interfaces, whether ordered separately or included with Products, as such services to the Customer have been further defined in the relevant Service Descriptions or separate arrangements between the parties.
1.23 "Service Description(s) ” shall mean the description(s), as applicable from time to time, of the scope and contents of as well as the accessibility of the relevant Service(s).
1.24 “Software” shall mean the requisite computer programs, Product embedded code, or other software meeting with the system requirements set out in these Specific Terms and Conditions, any other part of the Agreement or the Service Description(s), or otherwise approved by the Company according to its normal routines, for use in connection with Hardware, the Interfaces and/or the Services.
1.25 "Subscription” shall mean a subscription for one or more Services.
1.26 "User” shall mean a physical entity or an individual, who is either the same as the Customer, or specified as “User” in the Agreement, or separately mandated by the Customer to use the Product(s), connect to or through the Interfaces, or utilise any of the Services.
1.27 "Vehicle” shall mean a vehicle that is covered by one or more Subscriptions to Services according to the main contract form (as updated from time to time according to these Specific Terms and Conditions).
2. The Agreement
2.1 The Agreement and the Service Descriptions, along with any Customer specific settings or instructions confirmed as according to normal Company’s routines, shall exclusively govern the right of use of the Interfaces, the Subscription to Services and provision of the same by the Company.
2.2 These Specific Terms and Conditions as well as any special terms agreed to for purposes of the Services shall constitute integral parts of the Agreement.
2.3 The Customer shall always ensure that each User observes, and acts in compliance with all parts of the Agreement as applicable and amended from time to time.
2.4 Scania shall be notified immediately of any changes to the Customer details given to Scania.
3. Conditions Precedent
3.1 The validity of the Agreement is conditional on;
a) it having been subsequently signed also by the Customer, if initially signed only by a User;
b) the Customer having been aprroved as creditworthy in the Company's credit worthiness check pursuant to the Agreement, provided though that the Customer has signed up for Services to be paid for and that Scania have not explicity waived this condition; and
c) no other reason materialising (during relevant know-your-customer or credit worthiness checks or other-wise connection with entering into the Agreement) for the Company to suspect that the Customer's ability fulfil obligations according to the Agreement may be impaired, or to deem itself prevented from pursuing a commercial relationship with the Customer.
3.2 Until all of the above is satisfied in full, Scania shall be entitled to either postpone start-up of Services or limit the use of Services to a certain territory or a certain data volume. Consequently, start-up of Services to the Customer shall to no extent be construed as a waiver by Scania of any of the conditions precedent.
4. Power of Attorney
4.1 The User has the right to act and take measures on behalf of the Customer in respect of the Subscription and the Services, unless the Company requests an explicit approval of the Customer.
5.1 During the term of the Agreement, the Customer is liable to pay (where applicable) all Charges for the Subscription and Services according to the Price List. Payment shall be made against invoice, monthly in advance and in the currency as stated in the invoice, unless otherwise agreed. The Company has the right to charge an invoicing fee. The Customer shall immediately notify Scania if the invoice is incorrect.
5.2 Unless otherwise agreed in writing, payment shall be made no later than twenty (20) days after invoice date (which will normally be at the end of each calendar month) or, if that is a public holiday, the next day that banks are normally open for business in the Customer’s jurisdiction.
5.3 Invoicing of Charges for Services may be co-ordinated by the Company so as to balance the effects at start-up and expiry respectively, e.g. by way of not invoicing any Charges for the full month that the start-up date of certain Services occurs in against charging for the full month that the expiry date for the same Services occurs in.
5.4 The Customer confirms that electronic invoicing (including, but not limited to PDF invoices and e-Invoices) shall in every respect be considered a satisfactory format valid for payment in connection with the Services or otherwise under the Agreement.
5.5 If during any calendar month a Service was unavailable for more than forty-eight (48) hours (whereof at least 24 hours shall have been consecutive) for reasons attributable to the Company, then 1/30 of the monthly Charges are payable per day that such Service could be accessed.
5.6 In the event of delayed payment and after the Company’s notification thereof, accrued and other Charges for all Subscriptions registered on the Customer shall fall due and be immediately payable.
5.7 Use of Services in any other way than provided for by the Agreement will be charged to the Customer in accordance with the applicable Price List.
5.8 The Company is entitled to unilaterally change the Price List with effect as from twenty (20) days from prior notice to the Customer to that effect. Such notice shall be sent via electronic or conventional mail, if not provided by hand to the Customer.
5.9 If price increases exceed seven-point-five (7,5) per cent, the Customer may terminate the Agreement in writing while observing fourteen (14) days’ notice period. If such termination notice is given accordingly and the Company does not confirm anything to the contrary, the Agreement will be terminated on the date that the revised Price List would otherwise have come into effect. If on the other hand a termination notice is not received in time by the Company, the Customer shall be considered to have approved the revised Price List.
5.10 In the event of delayed or failed payment, the Company shall be entitled to compensation for payment reminders, debt recovery, collection costs and default interest pursuant to the laws applicable to the Agreement. The Company shall then also be entitled to immediately suspend the Services until such time that payment has been received in full or the Agreement terminated. The Customer is not entitled to reduction in any Charges during suspension periods.
5.11 In the event of payment delays exceeding ten (10) working days, the Company shall be entitled to close down the relevant Services with immediate effect and terminate the Agreement in accordance with the provisions stated herein. In such case, the Customer’s obligation to pay Charges as according to the Agreement shall continue to apply during the notice period.
6. Telematics and Other Equipment
6.1 The Subscription and the Services shall only be used together with requisite Equipment as defined above. The Customer must at its own cost obtain and maintain such Equipment (as part of either the Company’s product or other equipment acquired by the Customer from the Company, or as independently acquired by, or licensed to the Customer).
6.2 For Services involving a Product which is not manufactured by Scania and/or the Company and not equipped with a Scania communicator as needed for purposes of the Services, such communicator may have to be connected to the Product through an FMS prepared gateway supplied by the Product manufacturer. Otherwise, functionality and quality of the Services may be impaired or even jeopardised. Whether or not this is applicable to a particular Service is set forth in the relevant Service Description.
6.3 SIM Cards (if any) shall only be used for connection to the Operator Network.
6.4 In case of interference with Equipment or the Product(s), or a breach of intellectual property rights of any Scania Group related thereto, the Customer shall upon request immediately disconnect such other equipment.
6.5 The Company has the right to upgrade or undertake changes in the Services or Equipment supplied. The Customer shall as far as possible be notified in advance of impending upgrades or changes.
6.6 The Company or its supplier shall, both at the time of installation of the Equipment or for other measures that the Company finds necessary, be given access to Products or relevant equipment in order to prepare for the Subscription and Services to be installed, used or closed down.
6.7 The Company allocates subscriber numbers or other forms of identification for connection to the Operator Network. The Company may at any time change such identification if required for technical, maintenance or operational reasons.
6.8 Tampering or removal, or attempts thereto, with and of a Product’s communicator, other telematics equipment or (where applicable) SIM cards as fitted to it is strictly forbidden.
7. Availability of Services and Maintenance of Equipment, etc
7.1 Details concerning Services availability, system maintenance, and user support relating to the Services, Interfaces and Equipment are set out in the relevant Service Description(s).
7.2 If a defect arises in the Services, the Company shall rectify it within reasonable time from notification by the Customer. Since the Services are based on a connection to the Internet as well as communication over the Operator Network, connection interruptions or delays do not constitute a defect under the Agreement, and thus will result in no liability for the Company.
7.3 In case of obstruction, abuse or breach of Customer undertakings of the Agreement from a User’s side, the Company may block such User (following permission from the relevant authorities, where required) from access to the interfaces, Scania systems and the Services so as to avoid further irregularities.
8. Technical, Equipment or Network Problems
8.1 The Company assumes no responsibility for operational issues such as interruptions in the Operator Network, even if such issues are caused by measures carried out by the Company or the Operator.
8.2 The Company is entitled to inspect the Equipment, if there is reason to believe that the Equipment has caused disruptions in the Operator Network or been connected in breach of the Agreement.
9.1 Equipment fitted as integral parts of Products is subject to warranty conditions of the Customer’s agreement for purchase of such Products from the Company (as set out in Scania’s General Conditions of Delivery and Warranty or otherwise), whereas warranty conditions for Equipment acquired from the Company as spare part or for retro-fit are covered in the separate parts contract(s).
10. Use of the Subscription and Services
10.1 Unless otherwise agreed in writing or set out herein, the Customer may only use the Subscription and the Services for the purposes intended in the Agreement and may not sub-contract, sub-lease or in any other way transfer its rights under the Agreement.
10.2 The Customer is entitled upon its own request to change the form of Subscription, provided that other forms are available. Such change will take effect at such as confirmed by the Company upon the request. Changes shall be formalised according to the normal routines applied by the Company from time to time, and subject to Charges as according to the Price List.
10.3 The Customer shall keep in touch with the Interfaces regularly and keep itself updated on any changes to them or in the Services. The Company’s notifications about the Subscription or the Services are sent either by electronic or conventional mail directly to the Customer, or are made available through the Interfaces.
10.4 The Customer is fully responsible for all data and information that the Customer transfers or downloads via, or stores or saves on, the Interfaces, the Subscription or the Services, or which is communicated through Hardware or Software.
10.5 The Customer shall restrict unauthorised access to connected networks or computer resources through the Interfaces, whether belonging to the Company or other parties, and may not access, use, destroy, distort, circulate or pass on information from any aforesaid source without authorisation. The Customer shall ensure that User ID’s, passwords and other access data are not disclosed to unauthorised persons.
10.6 The Customer shall comply with national laws, regulations and rules, as well as instructions notified by the Company from time to time, and also generally accepted ethical and moral values when using the Subscription or Services. The Customer may not use the Subscription or Services in a way, which causes inconvenience or damage to the Company or any other party.
10.7 The Customer is liable for any action taken by, or breaches of the Agreement hereof caused by persons authorised by the Customer for use of the Subscription or the Services. The Company shall be notified immediately of such incidents.
10.8 The Customer shall compensate the Company in full for any claim against the Company due to improper use of the Subscription and Services. The Customer further undertakes to pay for damage caused by use of the Services in breach of the Agreement and to compensate the Company or third parties for the damage caused by the Customer, or for which the Customer is responsible.
10.9 The Company is, without prior notice to the Customer, entitled to change the Subscription or Services unless such change significantly affect the access to the Subscription or content of the Services.
11. Moving, transfer, sub-contractors, etc.
11.1 The Customer may not transfer or assign the Agreement or the Subscription, whether in whole or in part, to any third person without prior written consent from Scania.
11.2 Scania shall have the right to transfer the Subscription or its rights under the Agreement to any other party without the approval of the Customer. Scania may also use sub-contractors, agents and other business partners of its own choice for purposes of providing Services and complying with any undertaking of the Agreement.
12. Term and Termination
12.1 The Agreement takes effect upon signing by both the Company and the Customer (meaning at the latest such date, if they did not sign together), and then remains in force for a fixed term as defined in the main contract form of the Agreement. However, the Agreement expires on the last day of its term only provided that notice to that effect from either Party is received by the other Party no less than three (3) months in advance, absent which the Agreement will continue to apply until further notice with a mutual notice period of three (3) months.
12.2 The Services will be rendered as from the date when they were registered in the relevant Interface(s), unless otherwise agreed.
12.3 If upgrades or changes in Equipment are undertaken by Scania and/or the Company and result in significant inconvenience for the Customer, the Customer may at no cost to the Company terminate the Agreement with thirty (30) days prior written notice, though at the earliest as of the commencement of the change.
12.4 Notwithstanding anything to the contrary herein, the Customer may terminate the Agreement prematurely at any time (in whole or in part only for a certain Product), subject though to payment of a termination fee per Product concerned as according to the Price List. Such fees shall not be payable if the Services were included with the Product(s) from the Company, or if early termination is effected due to the contents of these Specific Terms and Conditions having been changed by the Company to the significant disadvantage of the Customer (as envisaged in separate provisions herein). Even if the Customer terminates the Subscription before the Company has invoiced applicable connection fees and the first monthly Charge (where applicable), the Customer is always liable to pay such Charges according to the Price List.
12.5 Technological development in the field of telecommunication may necessitate replacement of the Services with other services that have equivalent technical performance and functionality. The Company shall in such cases be entitled to substitute the Services, provided though that the Customer is notified in advance thereof. The Agreement will be considered terminated when the Company actually ceases to provide the Services. The Customer is entitled to receive any Charges paid in advance for the period that the Customer will not be able to use the Services.
12.6 The Company shall be entitled to terminate the Agreement with one month’s prior notice if the Customer’s connection with the Services has been shut down pursuant to these Specific Terms and Conditions.
12.7 The Company shall at its own discretion be entitled to suspend (without affecting the Customer’s liability to pay any relevant Charges) or terminate the Services in whole or in part, or even terminate the Agreement with immediate effect;
a) if Charges payable as set out in any part of the Agreement are not timely paid;
b) if the Customer refuses the Company to access Equipment as agreed;
c) if the Customer, any User or someone else that the Customer is responsible for has in any material respect used the Subscription, Interfaces or Services improperly or in breach of the Agreement;
d) if the Customer is in breach of any other obligation(s) as set forth in the Agreement, where such breach is material to the Company or a Scania Group;
e) if the Company reasonably suspects that the Customer is about to, or may commit a material breach of contract as aforesaid, and the Customer has then not offered security which in the opinion of the Company is sufficient as a safeguard against such risk materialising;
f) if Equipment has been connected to the Interfaces or any Product in breach of the Agreement, or if Equipment has not immediately been disconnected when it should have been disconnected according to the Agreement;
g) if the Services, Interfaces and Operator Network are used in a way which incurs costs and/or damages upon the Company or causes the Company, the Operator or any other relevant party significant inconvenience; and/or
h) if the Customer suspends its payments, enters into composition negotiations, goes into liquidation, or is declared bankrupt, or if there are other legitimate reasons to believe that such person is insolvent;
12.8 Suspension or termination of Services or the Agreement shall always be in writing, unless the Company offers self-service contract management as defined separately.
12.9 In case of early termination by the Company as aforesaid of Services or the Agreement;
a) all accrued Charges (where applicable) for past use and other debts for the Subscriptions concerned shall become immediately due and payable;
b) the Customer shall not be liable to pay any future connection fees and monthly Charges (where applicable) for the relevant Subscription(s);
c) pre-paid Charges, data volume and supplementary services stored on or through telematics equipment in the Product(s) or any of the Interfaces are forfeited without any further liability for the Company; and
d) the Customer shall pay an administrative close-down fee according to the Company’s applicable price list as valid from time to time.
13. Transfer of Title to the Product(s), etc
13.1 The Customer undertakes to immediately notify Scania when a Product is no longer operated by the Customer (for instance due to a sale or other transfer of ownership to it, termination
of a lease contract covering the Product, or the Customer letting it to a third party). The provisions herein regarding termination by the Customer shall apply to such notice.
14.1 The Company shall have no liability under or in connection with the Agreement over or above what is explicitly mentioned in these Specific Terms and Conditions or any Part of the Agreement.
14.2 The Company commits to no undertaking or warranty, makes no representation, and shall consequently have no responsibility or liability for or regarding;
a) the legality of use of the Services in any situation, concerning inter alia computer security, telecommunications and data export;
b) the correctness or quality of data transmitted via the Services or analyses thereof, whether for fulfilment of the Customer’s legal obligations according to social provisions (such as those relating to working/ driving times and rest periods) or otherwise;
e) the Customer’s use of the Services, or, unless otherwise stated in the Agreement, the quality of results obtained by the Customer while utilising the Services or the Services does not corresponding to the Customer’s needs;
d) defects caused by incorrect connection, use or maintenance of Equipment, e.g. connection of communicators to non-Scania Products through other interfaces than the manufacturer’s own FMS prepared gateway;
e) distortion or loss of data during the Customer’s connection to Scania and/or the Company servers through an Interface, or use of the Services;
f) expenses, costs or damages caused by Customer non-compliance with the Agreement;
g) breach into the Customer’s or other computer resources, whereby third parties may access, circulate, destroy or distort Customer Data;
h) any expense, cost, or damages caused by the Customer not having access to information through the Interfaces after termination or close-down of a Subscription or due to information being deleted by the Company in accordance with the Agreement.
14.3 The Company shall under no circumstances be held liable for defects in Services or interruptions in the Subscription, or for direct or indirect costs and damages incurred by the Customer as a result thereof (such as loss of income, expenses, loss or corruption of Customer data, Customer liability towards third parties, etc) even if the Company was notified of the possibility of such loss occurring.
14.4 The Company shall not be liable under the Agreement for any defects, costs or damages occurring in or being caused by the Equipment, unless such defects, costs or damages are covered by a Scania Product warranty or similar undertakings by the Company for Equipment or other goods as supplied by it (where relevant).
14.5 In any event, the Company shall in case of breach of its obligations in connection with the Subscription(s) or the Agreement or otherwise be held liable towards the Customer for contingent or indirect damages only to the extent that they were caused by wilful misconduct or gross negligence on the Company’s part.
14.6 The Company shall not be liable for breach of the Agreement caused by events outside the Company’s reasonable control (force majeure), such as defects in the Equipment, faults of or any other circumstance related to the Customer, accidents, fires, armed or similar conflicts, civil commotion, labour disputes, the action or lack of action of public authorities, flooding/ leakage, power cuts, interruptions or delays, defects or faults in the Operator Network, external networks, Internet, or telephone connections or communications.
14.7 The Company’s maximum liability for damages (direct and indirect) incurred by the Customer under or in connection with the Agreement shall be limited to one-thousand (1,000) Euros per twelve (12) month period as of the date of registration of the first Subscription, regardless of how many Subscriptions or Products covered thereby the Customer has.
14.8 A claim from either Party to the other shall be presented within three (3) months after the relevant damage or ground for indemnification was, or should have been, discovered.
15. Changes to the Specific Terms and Conditions
15.1 The Company is entitled to change or modify these Specific Terms and Conditions at any time. Such changed terms and conditions shall take effect and apply to the Customer and its Subscription(s) and Service(s) as from the fourteenth (14th) day after notification to the Customer. The Company may notify such changes on invoices to the Customer, by conventional or electronic mail to the Customer or through any of the Interfaces as used by the Customer. In case of changes to the Price List, the separate provisions of these Specific Terms and Conditions shall apply.
15.2 If a change in these Specific Terms and Conditions is to the significant disadvantage of the Customer, the Customer is entitled to terminate the Agreement with effect as from expiry of the 14 days notification period as above. If the Customer actively uses the Subscription or Services after such period, the Customer shall be considered to have approved the change.
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