Data-driven Services Terms & Conditions

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.  Definitions

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.

1.15 “Privacy Policy” shall mean the privacy statements of the Scania Group as published on www.scania.com and its national sub-pages, all of which include a contact form for questions and comments around personal data processing within the Scania Group.

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.   Payment

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.   Warranty

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.   Liability

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. 

-end of document-  

Archive