THIRD-PARTY TERMS
Smartflex services
In these third-party terms of use (“Third-Party Terms“), We, Our and Us means Kraken Technologies Limited and You means Our client for the SmartFlex Services as defined and provided under a separate agreement between You and Us (“Agreement”). We are required by the third-party API providers (to pass through to You their respective contractual conditions on the use of their Third-Party API Data. We have encapsulated all such conditions into these Third-Party Terms, which You are required to comply with, these Third-Party Terms in order to receive the SmartFlex Services.
The definitions in these Third-Party Terms shall have the same meaning as in the Agreement, unless otherwise expressly stated herein.
Please read these Third-Party Terms carefully before using the Third-Party API Data provided by an API Provider. By using the Third-Party API Data, You agree to be bound by these Third-Party Terms. If You do not agree to these Third-Party Terms, You must not use the Third-Party API Data for any purpose whatsoever.
1. Licence to use the Third-Party API Data
We grant You a non-exclusive, revocable and non-transferable licence to use the Third-Party API Data for the SmartFlex Services and subject to the restrictions on use in these Third-Party Terms.
2. How You may use the Third-Party API Data
You shall use the Third-Party API Data in compliance with these Third-Party Terms, any documentation relating to the Third-Party API Data provided or made available by Us to You (as updated from time to time), and the Agreement.
3. What the Third-Party API Data shall not be used for
You shall not:
use the Third-Party API Data for any purpose other than for the use of the Smartflex Services as set out in the Agreement;
use the Third-Party API Data for any purpose or activity that would (i) violate applicable law, meaning any statute, law, rule, regulation, guideline, ordinance, code or rule of law issued, administered or enforced by any governmental authority, and any judicial or generally applicable administrative interpretation of any of these that is applicable to the relevant party and; (ii) infringe the intellectual property rights (including copyright, trademarks, patents, database rights, know-how) of the API Providers;
distribute, license, sell, rent, lease or otherwise deal in or encumber the Third-Party API Data to a third-party that is not Your end customers, being the owners or operators of a Connected Consumer Device, as defined in the Agreement; an
modify, add to, or otherwise enhance the Third-Party API Data other than Your rights to analyse, compile or process the Third-Party API Data for the purpose of the SmartFlex Services.
4. Audit
A Third-Party API Data provider may audit Our platform, systems, records, and/or activities relating to the use of the Third-Party APIs and Third-Party API Data to verify compliance with these Third-Party Terms. You shall provide reasonable access and assistance to Us, if required, to help Us complying with an audit conducted by an API Provider.
5. Liability and indemnification
This section exclusively applies to the liability and indemnification that are due to the use of the Third-Party API Data.
5.1 Liability. We exclude Our liability to the maximum possible extent that We are permitted to under applicable law. We shall not be liable to you for any loss of profits, business, anticipated savings, goodwill, or revenue, or any loss or corruption of data, or any indirect or consequential loss or damage whatsoever, arising under or in connection with the Third-Party API Data.
5.2 Indemnification. You agree to indemnify Us against all losses or damage We may suffer related to any misuse of the Third-Party API Data and any breach by You of any of Your obligations under these Third-Party Terms.
6. Termination
Upon termination or expiration of these Third-Party Terms, You shall immediately cease to make any instructions which relate to the relevant Third Party API Data.
If You breach these Third-Party Terms, Your rights to use the Third-Party API Data may terminate.
Unless Your access to Third-Party API Data is suspended or terminated in accordance with the Agreement, Your access to the Third-Party API Data and these Third-Party Terms will apply for so long as You operate any Connected Consumer Devices (as defined in the Agreement) as part of the SmartFlex Services which require a Third-Party API.
7. Data Protection and Data Security
You acknowledge and agree that You act as an independent controller in respect of the Third-Party API Data, and You shall comply with the terms of the Data Processing Terms in respect of Your role of Controller in relation to the Third-Party API Data that We process on Your behalf under a separate agreement.
You shall at all times comply with Applicable Data Protection Laws in Your use of the Third-Party API Data and shall at all times ensure that You has obtained valid consent for the Connected Consumer Devices and associated Third-Party API Data to be used as required for Us to deliver the Smartflex Services.
8. Marks
All trademarks, logos and services marks (“the Marks”) which may appear on the Third-Party API Data are proprietary marks and are registered to their respective owners. Nothing contained on the Third-Party API Data should be construed as granting any licence or right to use any Marks displayed without Our prior written consent.
Misuse of any Marks displayed on the Third-Party API Data, or any other content, is strictly prohibited.
9. Specific Third-Party API Terms
You hereby acknowledge and agree:
a. To comply with the Tesla API Terms as if you were the Licensee under the Tesla API Terms; and
b. Pursuant to clause 4.3 of the Tesla API Terms, and notwithstanding anything to the contrary in the Agreement, that Tesla is hereby designated as a third-party beneficiary for the purpose of enforcing its rights and retaining the benefit of the terms set out in the Tesla API Terms.
In the event of any conflict between these Telsa API Terms and the terms of the Agreement, the Tesla API Terms shall prevail.
If You use Tesla Third-Party API Data, in addition to Your obligations under these Third-Party Terms, You also hereby acknowledge and agree:
a. To comply with the Tesla API Terms as if you were the Licensee under the Tesla API Terms; and
b. Pursuant to clause 4.3 of the Tesla API Terms, and notwithstanding anything to the contrary in the Agreement, that Tesla is hereby designated as a third-party beneficiary for the purpose of enforcing its rights and retaining the benefit of the terms set out in the Tesla API Terms.
In the event of any conflict between these Telsa API Terms and the terms of these Third-Party Terms, the Tesla API Terms shall prevail.
Definitions:
Tesla: means the Tesla entity providing the Tesla API;
Tesla API: means the instance of the Third-Party API made available by Tesla and provided by Kraken;
Tesla API Terms: means the terms and conditions of use of the Tesla API as set out at this link, or such link as notified to the Client by KTL from time to time: https://digitalassets.tesla.com/tesla-contents/image/upload/Fleet-API-Agreement-EN.pdf
If You use any BMW Third-Party API Data, in addition to Your obligations under these Third-Party Terms, You also acknowledge and agree to comply with the following terms.
Availability
The ability to transfer the BMW Third-Party API Data is dependent on the availability of the Connected Consumer Device. You must ensure that all Connected Consumer Devices’ ability to make data transfers is not deactivated via the data protection menu in the Connected Consumer Device, and neither We nor the API Provider shall have any liability for failure to deliver Third-Party API Data where such setting has been deactivated.
Data Privacy and Consent
You agree to provide to Us, and agree that We may share with BMW, all information the following information:
(i) Company name;
(ii) Company address;
(iii) Contact person (including full name and email address); and
(iv)VAT ID number.
You shall inform the owner or operator of the Connected Consumer Device that their personal data is being processed in the context of the use of BMW Third Party API, and shall obtain corresponding consent from such owner or operator of the Connected Consumer Device.
Promptly on Our request, You shall demonstrate to Us (and allow Us to share the same information with BMW), that You have taken the necessary measures to ensure lawfulness of the processing of the Third-Party API Data under the Third-Party Terms, including that the owner or operator of the Connected Consumer Device in question is sufficiently informed of the nature of processing.
Where BMW requires a specific form of consent from the owner or operator of the Connected Consumer Device, We shall provide the requirements to You in writing. You shall then ensure that such terms are implemented in Your journey with the owner or operator of the Connected Consumer Device.
Prior to receiving the benefit of the BMW Third-Party API and Third-Party API Data, You must execute and deliver to Us (who shall provide the same to BMW) a copy of the letter set out below:
The Client that has instructed the BMW Charging API Customer,
____________________________________________________
(Company name, seat, register entry; hereinafter ‘Client’)
hereby confirms that the BMW Charging API Customer (hereinafter ‘Customer’),
Kraken Technologies Limited, a company registered in the United Kingdom with registered address of UK House, 5th Floor, 164-182 Oxford Street, London, United Kingdom, W1D 1NN, and registered number 12014731.is acting on its behalf and on its instructions and is permitted to receive telematics data through BMW Charging API for this purpose. Client acts as independent data controller in the meaning of Article 4 No. 7 GDPR. Client will conclude an appropriate agreement regarding the processing of personal data pursuant Article 28 GDPR with Customer acting as processor. The scope of the data requested by the Customer has been coordinated with the Client. The Client may add further vehicles to the fleet in consultation with BMW and remove existing vehicles from the data reference list. In this case, no prior coordination between BMW and the Customer is required. The Client will process personal data and ensure to adequately meet its obligations as independent data controller in accordance with applicable data protection law. In particular, Client will adequately inform data subjects about the scope of processing including the source of data according to GDPR and cooperate with BMW in this regard where necessary.
Client
____________________________________________________
Place, date Name, signature
If You use any Volkswagen Group (“VW”) Third-Party API Data, in addition to Your obligations under these Third-Party Terms, You also acknowledge and agree to comply with the following terms.
You shall:
use the VW Third-Party API Data strictly for the use of the Services as set out in the relevant Order Form;
not sublicense or transfer the VW Third-Party API Data except as necessary for the Services and subject to equivalent obligations as contained within the MSA, Order Form and these Third-Party Terms;
not retain VW Third-Party API Data longer than necessary for the purpose of its use under this Agreement; and
promptly delete such data when no longer required or upon termination of the relevant Order Form, or cessation of use of the VW Third-Party API Data in connection with such Order Form.
Additional Data Protection Terms
You acknowledge and agree that You shall ensure that a valid legal basis exists for processing VW Third-Party API Data, including informing the data subject of the processing and ensuring that a valid and enforceable contract is in place with the relevant data subject. You shall not request, access or process any VW Third-Party API Data unless a valid contract with the relevant data subject is in place.
You shall ensure that such contract:
covers the purposes of processing;
is valid and maintained at all times during which VW Third-Party API Data is accessed or processed; and
is linked to the relevant vehicle and data subject.
You shall notify Us where any such contract ceases and immediately cease processing of the relevant VW Third-Party API Data. You shall be solely responsible for all interactions with data subjects, including handling any data subject rights requests, withdrawals, complaints or regulatory interactions.
You shall, within three (3) Business Days of Our request, provide evidence of such contract, including copies of the contract (appropriately redacted to remove unnecessary personal details or sensitive information) and confirmation that the contract is valid or was valid at the time of the data processing. Failure to provide such evidence will constitute a material breach of the relevant Order Form and may result in suspension or termination of the provision of VW Third-Party API Data or of the relevant Order Form.
You shall ensure that:
The data subject is the rightful owner or holder and primary user of the relevant vehicle;
You inform the data subject of the nature, scope and purposes of the processing of VW Third-Party API Data, including the involvement of Volkswagen Group entities and Us in such processing and direct the data subject to relevant privacy notices;
You provide the data subject with all information required under applicable Data Protection Laws, including information about their rights and how to exercise them;
the data subject is informed that they may withdraw or terminate participation and how to do so; and
any passengers or secondary users of the vehicle are appropriately informed of any data collection and processing (including the availability of any privacy modes or equivalent functionality).
Security and Technical Requirements
You shall implement appropriate technical and organisational measures, ensure independent audits, and notify Us of any security incidents affecting the VW Third-Party API Data without delay.
Audit and Compliance
You acknowledge and agree that the Volkswagen Group may audit compliance with these Third-Party Terms and applicable data protection laws as it relates to the VW Third-Party API data and may demand that Kraken cease sublicensing the VW Third-Party API Data at any time. You shall cooperate fully with Us to fulfil any requests received by VW, including requests to receive copies of Your relevant records under applicable data protection laws.
We may suspend access to VW Third-Party API Data immediately where We reasonably believe that the requirements of this section are not met.
10. Updates
We will, where practicable in the circumstances, liaise with You in advance of any changes to these Third-Party Terms and/or the documentation relating to the Third-Party API Data provided or made available by Us to You.
In the event that API Providers pass through to Us amendments or additional contractual terms not already covered hereunder on the use of their Third-Party API Data, to the extent they are applicable to You, We shall update these Third-Party Terms by posting a notice of the update online or by notifying You by any other reasonable means, including by email to the contact details as specified in the Agreement. Such updates shall take effect within the timeframe specified after details of them are notified to You. Please check the link provided in the definition of ‘Third-Party Terms’ in the Agreement regularly for details of updates. If You do not agree to any such updates, You should stop using the Third-Party API Data before the update takes effect.
11. Governing Law
These Third-Party Terms and any dispute or claim arising out of, or in connection with, these Third-Party Terms, their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales.