Honda RoadSync
Terms of Services ("Terms") for United Kingdom
Contents
1. |
Information about these Terms |
2. |
Contacting us |
3. |
User eligibility |
4. |
The App |
5. |
Use of the App |
6. |
License and Ownership |
7. |
Warranties |
8. |
Events Outside of Our Control |
9. |
Limitation of Liability |
10. |
Feedback |
11. |
Privacy |
12. |
Suspension and Termination |
13. |
Changes to these Terms |
14. |
General |
15. |
Data Act |
1. INFORMATION ABOUT THESE TERMS
1.1 We are Honda Motor Europe Limited (“Honda,” “we,” “us,” or “our”), a limited company registered in England and our registered address is Cain Road, Bracknell, Berkshire RG12 1HL. Our company number is 857969 and our VAT number is GB711019584.
1.2 These Terms apply to your use of the Honda RoadSync mobile phone application ("App") and any products and/or services which might be available to you through, or in connection with, the App ("Services").
1.3 These Terms constitute a legally binding agreement between you and Honda in relation to your use of the App and the Services so please read them carefully before you use the App and/or the Services.
1.4 You will be asked to accept these Terms when using the App which may require you to tick digital acceptance boxes within the App. You understand that by accepting these Terms you will be legally bound by them and at the point of acceptance a legally binding agreement between you and Honda shall be formed. If you do not agree to these Terms you will not be able to use the App.
1.5 These Terms include important information regarding your legal rights, obligations and remedies. Your attention is particularly drawn to the following clauses of these Terms: clause 7 (Warranties) and clause 9 (Limitation of Liability).
1.6 These Terms were last updated on: 13 July 2022.
2. CONTACTING US
2.1 If you have any questions about these Terms or the App you can:
2.1.1 view the frequently asked questions and answers section of the Honda website ("FAQ Pages") at https://global.honda/en/voice-control-system/EN/faq.html; and
2.1.2 contact us using the contact methods and contact details which are available on the FAQ Pages or otherwise notified to you by Honda.
2.2 Nothing in these Terms affects any legal rights you may have in law, such as under the Consumer Rights Act 2015, also known as "statutory rights". For more detailed information on your rights visit the Citizens Advice website www.citizensadvice.org.uk or call 03454 04 05 06.
3. USER ELIGIBILITY
3.1 Only legal residents of the United Kingdom are eligible and able to use the App and the Services.
3.2 In order to use the App you must be of at least the legal minimum age required to hold a driver’s license under the applicable laws in your country of residence or in the country where you use the App.
3.3 In addition to clause 3.2, if you are under the age of 18 (or under the applicable age of majority in your country or territory of residence), you may only use the App and the Services if you have the consent of your parent or guardian, including consent to these Terms.
4. THE APP
4.1 In order to download and install the App you must have a compatible smart phone with the required operating system installed and a sufficient amount of memory. These requirements will be subject to change from time to time and further information may be available in the relevant store you intend to download the App from (such as the Apple App Store or the Google Play Store) ("Appstore"). We do not sell the App to you, instead, you purchase and/or download the App from the relevant Appstore.
4.2 From time to time, updates to the App may be issued through the relevant Appstore. Please note that the App and the Services may have limited functionality where you do not have the most recent version of the App or operating system on your smart phone downloaded.
4.3 We license use of the App to you conditional upon you complying with these Terms and any rules or policies applied by the Appstore where you downloaded the App from. This license expires when these Terms are terminated by you or us in accordance with clause 12.
4.4 In order to download the App and use the full functionality of the Services you will require access to a mobile network and/or an internet connection, a Honda vehicle that is equipped with specific capabilities (such as Bluetooth), a mobile device (such as a smart phone or tablet), and other accessories (such as headsets, microphones or earphones) (collectively “Other Services”).
4.5 When you use Other Services, you must comply with the terms, conditions and instructions which are applicable to such Other Services. You are solely responsible for procuring any Other Services and paying all such fees and charges applicable for the Other Services. In particular, you may incur data fees and charges from third parties (such as a mobile network or internet provider) in connection with your use of the App and the Services. You are solely responsible for all such fees and charges. If you do not wish to incur such fees and charges then you should not use the App or the Services
4.6 We will not be responsible for any damage which results out of inaccurate or incomplete information or interrupted Services which have been caused by the Other Services (including any partially restricted reception and/or transmission of mobile network data).
4.7 The App may contain links to other independent third party websites, information, products or services (collectively, “Third Party Content”). Third Party Content is not under our control, and we are not responsible for and do not endorse any of it. Likewise, Honda does not guarantee that any information on the App which is provided by a third party (including as part of any Third Party Content) is up to date, complete or accurate. You will need to make your own independent judgement regarding your interaction with any information or content available through the App (including, but not limited to, traffic rules, police instructions, map data, traffic information, and directions).
4.8 Any arrangements entered into between you and a provider of Third Party Content shall be between you and the relevant provider only. We shall not be liable for the acts or omissions of any provider of Third Party Content (including, but not limited to, any issues relating to their functionality or availability or map data, traffic, and directions accuracy).
5. USE OF THE APP
5.1 While we try to make sure that the App is accurate, up-to-date and free from bugs, we cannot guarantee that it will be. Furthermore, we cannot guarantee that the App or the Services will be fit or suitable for any purpose. Therefore any reliance that you may place on the information on the App is at your own risk as that information constitutes an estimate only and could be inaccurate, incomplete or out of date.
5.2 In particular Honda does not warrant that the Services, or any information or content available through the App (including, but not limited to, map data, traffic and directions) (the “Contents”), are accurate. You acknowledge and agree that:
5.2.1 the actual road conditions may differ from the Contents;
5.2.2 the Contents are not intended to replace the information provided on the road, such as travel directions, time based restrictions, lane restrictions, road blockades, traffic signs, traffic lights, or police instructions; and
5.2.3 we are not responsible to you for any incorrect or dangerous map directions or other Contents.
5.3 Honda does not warrant that all the Services provided through the App are suitable or safe for use in all circumstances, or lawful in all countries. You agree that you are responsible for the safe use of the App and the Services and you agree at all times to use reasonable skill and judgement when using the App and the Services.
5.4 You must ensure that when you use the App and the Services you obey, follow and comply with all applicable road traffic laws and regulations. You acknowledge and agree that you will:
5.4.1 only use the remote commands available through the App (or the device on which the App is installed) when it is safe and legal to do so;
5.4.2 not use the App and the Services in a way that is unsafe or may cause a risk of injury to persons or damage to property; and
5.4.3 not use the device on which the App is installed whilst driving or operating a vehicle.
5.5 You agree that as a condition of your license to use the App and the Services (as set out in clause 6 below), you will not use the App or the Services contrary to what is stated in these Terms. In particular you agree not to:
5.5.1 reproduce, distribute, upload, sell, rent, lease, disassemble, decompile, reverse-engineer or create derivative works, make alterations or modifications of the whole or any part, or otherwise use or exploit all or part of the App or the Services other than as expressly permitted under these Terms;
5.5.2 use the App or the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses or harmful data, into the App;
5.5.3 infringe our intellectual property rights or those of any third party in relation to your use of the App or the Services;
5.5.4 use the App or the Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
5.5.5 collect or harvest any information or data from any aspect of the App or our systems or attempt to decipher any transmissions to or from the servers running the App;
5.5.6 provide us with false or incorrect information in connection with the App or the Services (including, but not limited to, using a third party’s user name, password, account information, name, or other attributes);
5.5.7 disclose, transfer or lend your accounts (including, but not limited to, any user ID and password associated therewith) to a third party or otherwise allow a third party to use your accounts;
5.5.8 bypass, modify, defeat, tamper with or circumvent any of the functions or protections of the App or the Services;
5.5.9 access, monitor or copy any element of the App or the Services using automated means (including, but not limited to, a robot, spider, or scraper);
5.5.10 destroy, obstruct, tamper with, or alter any system, data or network related to the App or Services;
5.5.11 transmit, store or attempt to do the same any data containing viruses or other harmful computer programs; or
5.5.12 damage, disable, overburden or impair the App or the Services.
5.6 The App has been programmed to allow us to remotely disable your use of the App and/or the Services if the term of your license to use the App and/or the Services has expired or has been terminated in accordance with these Terms. You acknowledge and agree that if your access to the App and/or the Services has been remotely disabled, the App and/or the Services will cease to function in some or all respects, and you may lose any data stored within the App.
5.7 You will be liable to pay us any reasonable costs, losses or other liabilities which we incur or suffer as a result of your breach of these Terms.
6. LICENSE AND OWNERSHIP
6.1 Subject to these Terms, we hereby grant to you a non-exclusive, limited, non-transferrable, revocable license to use the App and the Services only in accordance with these Terms and solely for personal use. This license does not include a license to reproduce, modify, or distribute the App.
6.2 Except for the license granted in clause 6.1, all rights, title and interest (including, but not limited to, all intellectual property rights) in and to the App and the Services are owned by Honda, its group companies and/or other licensors, and are protected by copyright laws, as well as other intellectual property laws and treaties. We, our affiliates, and our licensors reserve all of our and their intellectual property rights in connection with the App and the Services. This means, for example, that we and they remain owners of such intellectual property rights and are free to use them as we and they see fit.
6.3 Intellectual property rights means rights such as: copyright, trade marks, domain names, design rights, database rights, patents and all other intellectual property rights of any kind whether or not they are registered or unregistered (anywhere in the world).
7. WARRANTIES
7.1 We agree to provide the App to you with reasonable skill and care and will use our reasonable efforts to make the App available to you at all times.
7.2 You acknowledge and agree that the Services available through the App are provided on an “as is” basis and:
7.2.1 the App or the Services will not be error free, up to date or constantly available without any interruption. The availability, accuracy and functionality of the App or the Services may be dependant on the availability of your mobile network, an internet connection or GPS signal, or other factors relating to your vehicle or device;
7.2.2 certain functionalities within the App or the Services may not operate properly or at all if your vehicle or device has not been maintained and kept in a good working order;
7.2.3 the range of features and functionalities available within the App or the Services may differ depending on the operating system you are using (e.g. iOS or Android) such that all features and functionalities advertised from time to time may not be available to you;
7.2.4 the App or the Services may be subject to periods of unavailability or disruption during times where maintenance, updates and modifications are being carried out (this may also include instances where Third Party Content is being maintained, updated or modified by the relevant third party provider).
8. EVENTS OUTSIDE OUR CONTROL
8.1 We shall not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control, including but not limited to:
8.1.1 failure of public or private telecommunications networks;
8.1.2 failure of the App or any Services due to lack of GPS signal, lack of internet connection, adverse weather conditions, natural disasters, or change of law or any governmental directions or orders, each an “Event Outside Our Control”.
8.2 If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms:
8.2.1 our obligations under these Terms will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
8.2.2 we will use our reasonable endeavours to find a solution by which our obligations under these Terms may be performed despite the Event Outside Our Control.
9. LIMITATION OF LIABILITY
9.1 If we fail to comply with the Terms, we may be responsible for loss or damage you suffer that is a foreseeable result of our breach of the Terms or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it was an obvious consequence of our breach or if it was contemplated by you and us at the time you agreed to the Terms.
9.2 We only supply the App and the Services (including any messages, data, information, content, or other material provided in conjunction with the App or the Services) for domestic and private use. You agree not to use the App for any commercial, business or re-sale purposes, and we shall at all times have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
9.3 We do not in any way exclude or limit our liability for:
9.3.1 death or personal injury caused by our negligence;
9.3.2 fraud or fraudulent misrepresentation; or
9.3.3 any matter which it is not permitted by law to limit or exclude, or attempt to limit or exclude, our liability.
10. FEEDBACK
10.1 You acknowledge and agree that by submitting any feedback in relation to and concerning the functionality and performance of the App and/or the Services (“Feedback”), the Feedback:
10.1.1 does not contain any confidential, proprietary or personal information of third parties;
10.1.2 does not infringe any third party intellectual property rights; and
10.1.3 may be disclosed and used by Honda as decided from time to time.
10.2 By submitting the Feedback:
10.2.1 you grant to us a free, world-wide, perpetual, non-exclusive, assignable, transferable license to use the Feedback, including (without limitation) to improve or alter the App or the Services, and for such other commercial or non-commercial purposes as we may decide from time to time; and
10.2.2 you acknowledge that by granting such a license you irrevocably waive, and cause to be waived, any and all claims and assertions of any intellectual property rights or moral rights you may have in such Feedback.
11. PRIVACY
Your privacy and personal information are important to us. Any personal information that you provide to us will be dealt with in line with our Honda RoadSync Privacy Notice, which explains what personal information we collect from you, how and why we collect, store, use and share such information, your rights in relation to your personal information and how to contact us and supervisory authorities if you have a query or complaint about the use of your personal information.
12. SUSPENSION AND TERMINATION
12.1 You are entitled to stop using the App and/or the Services at any time.
12.2 We may, at our own discretion and without notice or liability to you, restrict, suspend, or terminate your use of, or access to, all or a part of the App and/or the Services, if: (i) we believe that you have breached any of these Terms; (ii) we are required to do so by law, a court of competent jurisdiction or any governmental or regulatory authority; (iii) any unexpected technical issues or problems occur; (iv) circumstances arise that constitute and Event Outside Our Control; or (v) we stop providing the App and/or the Services in your country or to our customers more generally for any reason.
13. CHANGES TO THESE TERMS
13.1 We may update these Terms and/or the App from time to time, for example, to comply with changes in the law, to take account of new products, services or apps we may offer, or for other reasons.
13.2 We may change these Terms at any time by notifying you a change when you next start the App or, where possible, sending a notification to the device on which the App is installed. You will be deemed to have accepted those changes if you continue to use the App but, where those changes are detrimental to you, you will be asked to agree to and accept the updated Terms by ticking digital acceptance boxes within the App.
13.3 If you do not agree to the updated Terms you may not be able to use the App. You understand that by accepting and agreeing to the updated Terms you will be legally bound by them.
14. GENERAL
14.1 When we use the words "writing" or "written" in these Terms, this will include email unless we say otherwise.
14.2 We may give any notices to you in connection with these Terms or the Services by (i) email to the last e-mail address provided by you, or (ii) posting a notice on the website associated with the App and the Services. You agree to provide and maintain accurate and complete contact information that we can use for any communications in connection to these Terms.
14.3 We may transfer our rights and obligations under these Terms to another organisation, but this will not affect your rights or our obligations under these Terms.
14.4 You may only transfer your rights or your obligations under these Terms to another person if we agree this with you in writing.
14.5 If any court or relevant authority decides that any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of the remaining provisions which shall remain in full force and effect.
14.6 If we fail to insist that you perform any of your obligations under these Terms or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
14.7 These Terms and the provisions referenced herein, constitute the entire agreement between you and Honda pertaining to the subject matter hereof and supersedes all prior or other arrangements, understandings, negotiations and discussions, whether oral or written.
14.8 These Terms are between you and us. No other person shall have any rights to enforce any of these Terms.
14.9 These Terms are governed by the laws of England and Wales. This means that your use of the App, and any dispute or claim arising out of or in connection with the App, will be governed by the laws of England and Wales. Please note that, if you are resident of another country within the United Kingdom you will retain the benefit of any mandatory protections given to you by the laws of that country.
14.10 Any dispute between you and Honda regarding these Terms will be subject to the non-exclusive jurisdiction of the courts of England and Wales. This means that you can choose whether to bring a claim in the courts of England and Wales or in the courts of another part of the United Kingdom in which you live.
15. DATA ACT
15.1 In accordance with Regulation (EU) 2023/2854 (the “Data Act”), we acknowledge and respect your rights regarding access to and use of data generated through your use of the App and related connected products or services.
15.2 The provisions set out in the Data Act Annex to these Terms form an integral part of your legally binding agreement with Honda Motor Europe Ltd. (“Honda”). Honda Motor Europe Ltd. and Honda Motor Co. Ltd, Japan, are the entities that collect, control, or manage data generated by the connected product and the App. These provisions outline your rights as a user, and Honda’s obligations as a Data Holder as applicable under the Data Act.
15.3 If you are entitled to request access to data generated by your use of the connected product and/ or the App from Honda, Honda Motor Europe Ltd, UK, will provide such access in a structured, commonly used, and machine-readable format, free of charge, subject to the Data Act Annex. This also applies for access requests directed towards Honda Motor Co. Ltd, Japan, in which case Honda Motor Europe Ltd. acts on behalf of Honda Motor Co Ltd., Japan.
15.4 Where applicable, Honda will ensure that any data access or sharing arrangements with third parties comply with the fairness, transparency, and interoperability requirements set out in the Data Act, including the prohibition of unfair contractual terms under Article 13.
15.5 In the event of any conflict between these Terms and the Data Act Annex, the provisions of the Data Act Annex shall prevail with respect to any matter governed by the Data Act.
Data Act Annex
1. Background and Parties
1.1 This Annex sets out commitments to meet the requirements of the EU Data Act.
1.2 Honda Motor Europe Ltd., Cain Road, Bracknell, Berkshire, RG12 1HL, UK, and Honda Motor Company Ltd., 2-1-1, Minami-Aoyama, Minato-ku, Tokyo 107-8556, Japan, are the entities that collect, control, or manage data generated by the connected product and the App. Both entities are data holders in the sense of the EU Data Act.
1.3 In this Annex:
1.3.1 Honda Motor Europe Ltd. is referred to as “HME” or “Data Holder” and Honda Motor Company Ltd., referred to as “Honda Japan”.
1.3.2 You are referred to as the “User”.
Data Holder and User are referred to collectively as the “Parties” and individually as a “Party” for purposes of this Data Act Annex.
Only Data Holder and User are Parties to these Data Act Terms. Whenever data access is requested from Honda Japan, Data Holder will provide such access on behalf of Honda Japan but in its own name subject to the terms and conditions of this Data Act Annex.
2. Product/Related Service
2.1 This Annex applies with respect to the User’s Honda motorcycles (referred to as “Product(s)”) and the Honda RoadSync App Services (including use of this App).
3. Data covered by the Annex
3.1 The data covered by this Annex (the “Data”) consists of any readily available Product Data or Related Service(s) Data relating to the User within the meaning of the Data Act.
4. Non-Personal Data: Data use and sharing by the Data Holder
Agreed use of non-personal Data by the Data Holder
4.1 The Data Holder may use and share with Honda affiliated group companies for their own use the Data that are non-personal Data for the following purposes:
4.1.1 Performing any agreement with the User or activities related to such agreement (e.g. issuing invoices, generating and providing reports or analysis, financial projections, impact assessments, calculating staff benefit);
4.1.2 Providing support, warranty, guarantee or similar services or to assess User’s, Data Holder’s or third party’s claims (e.g. regarding malfunctions of the Product) related to the Product or Related Service;
4.1.3 Monitoring and maintaining the functioning, safety and security of the Product or Related Service;
4.1.4 Improving the functioning of any product or related service offered by the Data Holder;
4.1.5 Developing new products or services, including artificial intelligence (AI) solutions, by the Data Holder, by third parties acting on behalf of the Data Holder (i.e. where the Data Holder decides which tasks will be entrusted to such parties and benefits therefrom), in collaboration with other parties or through special purpose companies (such as joint ventures);
4.1.6 Aggregating these Data with other data or creating derived data, for any lawful purpose, including with the aim of selling or otherwise making available such aggregated or derived data to third parties, provided such data do not allow specific data transmitted to the Data Holder from the connected product to be identified or allow a third party to derive those data from the dataset.
4.2 The Data Holder undertakes not to use the Data to derive insights about the economic situation, assets and production methods of the User, or about the use of the Product or Related Service by the User in any other manner that could undermine the commercial position of the User on the markets in which the User active, as relevant to the nature of the User. None of the Data uses agreed to under Section 4.1 may be interpreted as including such Data use, and the Data Holder undertakes to ensure, by appropriate organisational and technical means, that no third party, outside the Data Holder’s organisation or Honda group companies, engages in such Data use.
Sharing of non-personal data with third parties and use of processing services
4.3 The Data Holder may share with third parties Data which is non-personal data, if:
4.3.1 the Data is used by the third party exclusively for the following purposes:
(a) assisting the Data Holder in achieving the purposes permitted under Section 4.1;
(b) achieving, in collaboration with the Data Holder or through special purpose companies, the purposes permitted under Section 4.1; and
4.3.2 the Data Holder contractually binds the third party:
(i) not to use the Data for any purposes or in any way going beyond the use that is permissible in accordance with previous Section 4.3.1(a);
(ii) to comply with Section 4.2;
(iii) not to share these Data further save to the extent the Data Holder has the User’s consent to such further transfer or unless such Data sharing is required, in the interest of the User, to fulfil this Annex. Points (i) to (iv) above must be included in the contracts with recipients for further sharing.
4.4 The User hereby grants the Data Holder an irrevocable license to use and share the Data in accordance with Sections 4.1 and 4.3.
4.5 User grants the same rights to use and share (with Honda affiliated group companies) the Data that are non-personal data for the purposes set forth in Section 4.1. to Honda Japan and Honda Japan shall have the same rights to share the Data with third parties as set forth in Section 4.3. Data Holder shall procure that Honda Japan will comply itself with the obligations set forth in Section 4.3.2 above. The User hereby grants Honda Japan an irrevocable license to use and share the Data in accordance with Sections 4.1 and 4.3.
5. Personal data: Use and Sharing by the Data Holder
5.1 The Data Holder may use, share with third parties or otherwise process any Data that is personal data, provided it has a legal basis to do so. The Data Holder’s Privacy Notice Honda Global | Privacy Policy (Privacy Notice) provides further detail.
6. Data access by the User upon Request
Only to the extent the User cannot directly access the Data from the Product or Related Service in accordance with Article 3 (1) of the Data Act, the User is entitled to obtain access to the Data from the Data Holder upon request (via the App or such other method as communicated by the Data Holder), in accordance with the terms of this Annex and Article 4 of the Data Act.
7. Data characteristics and access arrangements
7.1 The Data Holder shall make the Data available to the User:
7.1.1 free of charge for the User; and
7.1.2 without any representation or warranty as to the quality or content of the data beyond what is required by Art. 4 (1) Data Act.
8. Unilateral changes by the Data Holder
8.1 Notwithstanding any changes as per clauses 4 or 13 of the Honda RoadSync Terms of Service, the Data Holder may, in good faith, unilaterally change the specifications of the Data or the access arrangements provided pursuant to this Annex, if this is objectively justifiable – for example a technical modification due to a security vulnerability in the Data Holder’s infrastructure or other legitimate reasons.
8.2 The Data Holder must give notice of the change to the User without undue delay. Where the change may negatively affect Data access and use by the User more than just to a small extent, the Data Holder must give notice to the User a reasonable period before the change takes effect (save where impossible or unreasonable in the circumstances, such as where immediate changes are required because of a detected security vulnerability).
9. Applicability of trade secret arrangements
9.1 The provisions below apply exclusively to Data or metadata included in the Data to be made available by the Data Holder to the User, which are protected as trade secrets (as defined in the Trade Secrets Directive (EU) 2016/943), held by the Data Holder or another Trade Secret Holder (as defined in said Directive).
9.2 The Data protected as trade secrets (“Identified Trade Secrets ”) and the identity of the Trade Secret Holder(s) shall be identified to the User by the Data Holder acting reasonably.
9.3 The obligations below remain in effect after any termination of the corresponding Product and/or Services contract, unless otherwise agreed by the Parties.
9.4 The obligations for Users in the context of Identified Trade Secrets shall also apply where a User obtains access to Data via direct access as per Art. 3 (1) EU Data Act.
Protective measures to be taken by the User
9.5 The User must apply the protective measures set out in the Appendix to this Annex (“User Protective Measures”).
9.6 If the User is permitted to make Data protected as Trade Secrets available to a third party, the User must (i) inform the Data Holder in advance, specifying the Data in question, and give the Data Holder the identity and contact details of the third party and (ii) must only share Identified Trade Secrets if the third party has signed an agreement that includes a commitment by the third party to comply with the User Protective Measures and ensures that such commitment has binding effect vis a vis the Data Holder.
9.7 In order to verify if and to what extent the User has implemented and is maintaining the User Protective Measures, the User shall if requested from time to time by the Data Holder provide evidence demonstrating such matters.
Protective measures taken by the Data Holder
9.8 The Data Holder may also apply technical and organisational protection measures to preserve the confidentiality of the shared and otherwise disclosed Identified Trade Secrets (e.g. making the data available via encrypted file transfer or storage methods). The Data Holder may unilaterally add further appropriate technical and organisational protection measures, in accordance with this section. All the foregoing measures together comprise the “DH Protective Measures”.
9.9 The User undertakes not to alter or remove such DH Protective Measures, unless otherwise agreed by the Parties.
10. Obligation to share and right to refuse, withhold or terminate
10.1 The Data Holder shall share the Data, including Identified Trade Secrets, in accordance with this Annex, and may not refuse, withhold or terminate the sharing of any Identified Trade Secrets, except as explicitly set forth below.
10.2 Where the User Protective Measures and the DH Protective Measures do not materially suffice to adequately protect a particular Identified Trade Secret, the Data Holder may, by giving notice to the user with a detailed description of the inadequacy of the measures:
10.2.1 unilaterally increase the protection measures regarding the specific Identified Trade Secret in question, in accordance with Section 9, or
10.2.2 request that additional protection measures be agreed. If there is no agreement on the necessary additional measures after a reasonable period of time and if the need of such measures is duly substantiated, e.g. in a security audit report, the Data Holder may suspend the sharing of the specific Identified Trade Secret by giving notice to the User and to the competent authority designated pursuant to Article 37 of the Data Act, with copy of this sent to the User.
The Data Holder must continue to share any Identified Trade Secrets other than these specific Identified Trade Secrets.
10.3 If, in exceptional circumstances, the Data Holder, Honda Japan and/or the Trade Secret Holder is highly likely to suffer serious economic damage from disclosure of a particular Identified Trade Secret to the User despite the User Protective Measures and the DH Protective Measures having been implemented, the Data Holder may withhold or suspend the sharing the specific Identified Trade Secret in question. They may do this only if they give a duly substantiated notice to the User and to the competent authority designated pursuant to Article 37 of the Data Act, with a copy being sent to the User. However, the Data Holder must continue to share any Identified Trade Secrets other than those specific Identified Trade Secrets.
10.4 If the User (i) fails to implement and maintain their User Protective Measures; or (ii) alters/removes the DH Protective Measures and if this failure is duly substantiated by the Data Holder, the Data Holder is entitled to withhold or suspend the sharing of the specific Identified Trade Secrets, until the User has resolved the incident or other issue as described in the following:
10.4.1 The Data Holder must, without undue delay, give duly substantiated notice to the User and to the competent authority designated pursuant to Article 37 of the Data Act.
10.4.2 On receiving this notice, the User must (i) address the incident/issue without undue delay; and (ii) resolve the issue in consultation with the Data Holder.
10.5 In the event the Data Holder withholds or suspend the sharing of data pursuant to Sections 10.3 or 10.4 above, without prejudice to any termination arising under clause 12 of the Honda RoadSync Terms of Service, the Data Holder may in any event terminate its corresponding contract with the User for providing the App service if:
10.5.1 all the conditions of, as applicable, Section 10.3 or Section 10.4 have been met;
10.5.2 no resolution has been found by Parties after, despite an attempt to find an amicable solution, including after intervention by the competent authority designated under Article 37 of the Data Act; and
10.5.3 the User has not been awarded by a competent court with court decision obliging the Data Holder to make the Data available and there is no pending court proceedings for such a decision.
10.6 In the event that the User makes false representations about its compliance with the terms of this Annex and if this failure is duly substantiated by the Data Holder, the Data Holder is entitled to withhold or suspend the sharing of data under this Annex and may terminate the Service in accordance with clause 12 of the Honda RoadSync Terms of Service.
11. End of production and destruction of infringing materials
11.1 Without prejudice to other remedies available to the Data Holder, if the User alters or removes technical protection measures applied by the Data Holder or does not maintain the technical and organisational measures taken by them pursuant to this Annex, the Data Holder may request the User:
11.1.1 to erase the data made available by the Data Holder or any copies thereof; and/or
11.1.2 end the production, offering or placing on the market or use of materials, derivative data or services produced on the basis of knowledge obtained through the Identified Trade Secrets, or the importation, export or storage of infringing materials for those purposes, and destroy any infringing materials, where there is a serious risk that the unlawful use of those data will cause significant harm to the Data Holder or the Trade Secret Holder or where such a measure would not be disproportionate in light of the interests of the Data Holder or the Trade Secret Holder; and/or
11.1.3 compensate any party suffering from the misuse or disclosure of such unlawfully accessed or used data.
12. Retention of Data protected as Identified Trade Secrets
12.1 Where under this Annex the Data Holder exercises the right to withhold, suspend or in any other way end or refuse the data sharing to the User, said Data will be made available to the User once the appropriate protections are agreed and implemented, provided that the data is then still readily available for the Data Holder.
12.2 The Data Holder shall retain the relevant data for a reasonable period, provided that such data remains readily available and retention does not impose a disproportionate burden. The retention obligation ends where a competent authority or court in a binding decision allows the deletion of such retained data or where the corresponding contract with the User terminates.
12.3 The Data Holder will bear the necessary costs for retaining the data under Section 12.2. However, the User will cover such costs in part or in full where and to the extent the withholding, suspension or refusal to provide data was caused by the User acting in bad faith.
13. Permissible use and sharing of data
13.1 The User may use the Data made available by the Data Holder upon their request for any lawful purpose and/or share the Data freely subject to the limitations below.
Unauthorised use and sharing of data
13.2 The User undertakes not to engage in the following:
13.2.1 use the Data to develop a connected product that competes with the Product, nor share the Data with a third party with that intent;
13.2.2 use such Data to derive insights about the economic situation, assets and production methods of the manufacturer or, where applicable the Data Holder;
13.2.3 use coercive means to obtain access to Data or, for that purpose, abuse gaps in the Data Holder’s technical infrastructure which is designed to protect the Data;
13.2.4 share the Data with a third-party considered as a gatekeeper under article 3 of Regulation (EU) 2022/1925 (being large technology platforms that act as crucial point of access for businesses to reach consumers, that can have a significant impact and lasting presence in a market);
13.2.5 use the Data they receive for any purposes that infringe EU law or applicable national law.
13.3 Data sharing upon the User’s request with a Data Recipient
Making Data available to a Data Recipient
13.4 The Data shall on request by the User be made available to a Data Recipient (the Data Recipient may be required to pay for such provision). This request:
13.4.1 shall be submitted via the Honda Data Services Portal or other method directed by the Data Holder;
13.4.2 must not benefit a third party considered as a gatekeeper under Article 3 of Regulation (EU) 2022/1925 and cannot be made in the context of the testing of new connected products, substances or processes that are not yet placed on the market;
14. Transfer of use and multiple users
Transfer of use
14.1 Where the User, on a basis permitted by its contract for the corresponding Product and/or Service, contractually transfers: (i) ownership of the Product; and/or (ii) their rights to use the Product and/or receive Related Services, to a subsequent natural or legal person (‘Subsequent User ’) and loses the status of a user after the transfer to a Subsequent User, the User must:
14.1.1 ensure that the Subsequent User cannot use the initial User’s account (by not allowing other/subsequent bike users to access/use the account by sharing log in details, for example),
14.1.2 notify the Data Holder of the transfer.
14.2 The rights of the Data Holder to use Product Data or Related Services Data generated prior to the transfer will not, for the period retained by the Data Holder pursuant to its applicable retention policy, be affected by a transfer.
Multiple users
14.3 Where the initial User grants a right to use of the Product and/or Related Service(s) to another party (“Additional User ”) while retaining their position as a user, or where there are multiple Users for any other reason, the Parties undertake to comply with the requirements set out in this provision.
14.4 The User must:
14.4.1 only request access to Data that is not related to those other users, save where the User has ensured that access to data from other users is covered by their consent or by a legal ground under GDPR, if applicable; and
14.4.2 ensure that the Additional User cannot use the initial User’s account;
14.4.3 act as a first contact point for the Additional User if the Additional User makes a request under Articles 4 or 5 of the Data Act or a claim regarding the use or making available of the Data by the Data Holder (as it is not possible for an Additional User to make such requests via the App themselves).
14.4.4 ensure that the Additional User agrees to the terms of this Annex or to terms substantially reflecting the content of this Annex with binding effect for the benefit of the Data Holder and Honda Japan, in particular
(a) the terms in Sections 4.1, 4.3 and 4.4 on the use and sharing of the Data by the Data Holder and
(b) Section 4.5. for rights granted to Honda Japan.
15. Compliance with laws protecting personal data
15.1 To the extent a request by the User to make available data to User or to a Data Recipient concerns Data which is personal data and the requesting User is not the data subject,
15.1.1 the request must only be submitted if there is a valid legal basis for making personal data available under Article 6 of Regulation (EU) 2016/679 (GDPR) and only, where relevant, the conditions set out in Article 9 of that Regulation and of Article 5(3) of Directive 2002/58/EC (Directive on privacy and electronic communications) are met.
15.1.2 The User must indicate to the Data Holder, in each such request, the legal basis for processing and is fully responsible for ensuring that making available personal data upon each request is covered by sufficient legal ground. The Data Holder may at any time require the User to provide documentation that proves the existence of the legal ground identified.
15.1.3 The User must inform Data Holder immediately whenever the legal ground identified is no longer available to cover the requested making available of data (e.g. where data subjects have withdrawn consent, data processing is no longer necessary for the performance of a contract or factors relevant for a balance of interest test have changed etc.).
15.1.4 The User must ensure that the data subject is adequately informed about the specific, explicit and legitimate purposes of the processing of the data made available to the user or other data recipient and how the data subject can effectively exercise his or her rights.
15.1.5 The User is solely responsible for agreeing the purposes and conditions with the Data Recipient and the Data Holder may not be held liable for the absence of such an agreement between the User and the third party.
15.2 The Data Holder may refuse and/or suspend the making available of data in case it has legitimate concerns about the existence and validity of the legal ground presented by the User or in case it has any other reason to believe that making the data available may not be in compliance with laws.
16. Indemnification by User for illegal use and sharing of Product or Related Services Data
16.1 If the User culpably breaches their obligations as set out in this Annex and such breach results in the illegal use and sharing of Product or Related Services Data by the Data Holder or Honda Japan, the User shall indemnify the Data Holder or Honda Japan against any claims (for damages, injunctions etc.) by the Subsequent or Additional User towards the Data Holder or Honda Japan arising directly from such breach. The indemnification obligation shall apply only to the extent that the User is responsible for the breach (i.e., in cases of intent or negligence). This shall not affect the Data Holder’s and Honda Japan’s obligation to mitigate damages.
17. Term and Termination
17.1 The rights and obligations under this Annex will cease applying:
17.1.1 when the Product or Related Service is no longer capable of generating the Data; or
17.1.2 upon the User transferring ownership of the Product or when the User’s rights with regard to the Product under a rental, lease or similar agreement or the user’s rights with regard to the Related Service come to an end; or
17.1.3 when both Parties so agree.
The second and third sub-paragraphs above shall be without prejudice to the terms of the Annex remaining in force between the Data Holder and any Subsequent or Additional User.
17.2 Expiry or termination of the User’s contract for a Product or Services:
17.2.1 releases both Parties from their related obligation to effect and to receive future performance under this Annex but does not affect the rights and liabilities that have accrued up to the time of termination;
17.2.2 does not affect any provision in this Annex which is to operate thereafter, which remain in full force and effect;
17.2.3 will have the effect that the Data Holder shall immediately cease to retrieve the Data generated or recorded as of the date of termination or expiry;
17.3 Notwithstanding termination or expiry of this Annex, the Data Holder remains entitled to use and share the Data generated or recorded before the date of termination or expiry as specified in this Annex and/or the contract concerned.
17.4 Section 17.3 applies equally for Honda Japan.
17.5 User acknowledges that if User decides to delete the App the Data will no longer be accessible.
18. Breach of this Annex, Specific Remedies and Limitation of Liability
Fundamental non-performance
18.1 Non-performance of an obligation by a Party is fundamental to this Annex if that non-compliance:
18.1.1 would cause significant harm to the other Party; or
18.1.2 the non-performance substantially deprives the aggrieved Party of what it was entitled to expect under this Annex, unless the other Party did not foresee and could not reasonably have foreseen that result; or
18.1.3 the non-performance is intentional.
Excuse of a Breach
18.2 A Party’s non-performance is excused to the extent it proves that it is due to an impediment beyond its reasonable control (including where caused the other Party’s non-performance of its duties) and that it could not reasonably have been expected to have avoided or overcome the impediment or its consequences. The non-performing Party must ensure that notice of the impediment and of its impact is received by the other Party within a reasonable time after the non-performing Party knew or ought to have known of the circumstances.
Damages
18.3 Where a Party claims damages for breach by the other Party of its obligations under this Annex, the breaching Party is liable only for loss which could reasonably have been foreseen at the time of entering into the corresponding contract for a Product and/or Service – unless the breach was intentional or grossly negligent.
Specific Remedies (without limiting any other remedies available under applicable law)
18.4 In the event the User has accessed or used Data in violation of this Annex or otherwise failed to comply with the terms of this Annex, the Data Holder may:
18.4.1 require that the User erases any Data accessed in violation of this Annex together with copies;
18.4.2 suspend the sharing of Data with the User, until the User complies with their obligations under this Annex, if the non-performance of User’s obligations is fundamental;
18.4.3 terminate the User’s access to the Data, provided (i) the non-performance of User’s obligations is fundamental; and (ii) it is reasonable and lawful in the circumstances for Honda to take that action.
18.4.4 The User may withdraw its permission granted to Honda use the Data, by giving notice to the Data Holder, if:
(a) the Data Holder’s non-performance is fundamental; or
(b) in the case of non-performance which is not fundamental, the User has notified the Data Holder and the breach has not been remedied within a reasonable period thereafter.
Withdrawal of the permission by the User may result in Honda no longer being able to provide the service.
19.5 Nothing in this clause shall limit liability for intent, gross negligence, or injury to life, body, or health and where such liability cannot be excluded under applicable law.
19. Confidentiality
19.1 The following information must be considered “Confidential Information”:
19.1.1 information referring to the trade secrets, financial situation or any other aspect of the operations of the other party, unless the other Party has made this information public;
19.1.2 information referring to the User and any other protected third party, unless they have already made this information public;
19.1.3 information referring to the performance of this Annex, including any related disputes.
19.2 Each Party agrees (i) to take all reasonable measures to store securely and keep in full confidence the Confidential Information; and (ii) not to disclose or make available such information to another, unless that recipient:
19.2.1 is under a legal obligation to disclose or make available the relevant information;
19.2.2 has to disclose or make available the relevant information to meet its obligations under this agreement, and the other Party (or the party providing the confidential information or affected by its disclosure) can reasonably be considered to have accepted this; or
19.2.3 has obtained the prior written consent from the other Party or the party providing the Confidential Information or affected by its disclosure.
19.3 These confidentiality obligations remain applicable after the termination of any applicable contract for Products and/or Services for a period of 10 (ten) years.
19.4 These confidentiality obligations do not remove any more stringent obligations: (i) under applicable law, including Regulation (EU) 2016/679 (GDPR); or (ii) (if applicable) the provisions of this Annex protecting Trade Secrets.
20. Entire agreement, modifications and severability
20.1 This Annex constitutes the entire agreement between the Parties with respect to its subject and supersedes all related prior agreements and understandings between the Parties, oral or written.
20.2 Subject to any modifications otherwise permitted under the express terms of this Annex, any modification of this Annex will otherwise be valid only if agreed to by the Parties in writing, including in any electronic form that is considered to meet the requirements of a written document (in line with good commercial practices).
20.3 If any provision of this Annex is found to be void, invalid, voidable or unenforceable for whatever reason, the remaining provisions will be unaffected and will continue to be valid and enforceable. Any resulting gaps or ambiguities must be dealt with according to the following provision.
20.4 This Annex is concluded by the Parties against the background of the Parties’ rights and obligations under the Data Act. Any provision in this Annex must be interpreted to comply with the Data Act and other EU law or national legislation adopted in accordance with EU law, as well as any applicable national law that is compatible with EU law and cannot be derogated from by agreement.
21. Dispute settlement and governing law
21.1 The Parties shall use their best efforts to resolve disputes relating to this Annex amicably and, before bringing a case before a court or tribunal, to submit their dispute to a dispute settlement body in a Member State that fulfils the conditions of Article 10 of the Data Act).
21.2 Submission of a dispute to a dispute settlement body in accordance with the above provision does not, however, affect the User’s right to lodge a complaint with the national competent authority designated in accordance with Article 37 of the Data Act, or the right of any Party to seek an effective remedy before a court or tribunal in an EU Member State.
Appendix to Data Act Annex:
Details of measures for the protection of trade secrets
Technical and Organisational Security Measures The Data must be protected by the application and operation of technical and organisational security measures, which (without limitation) should include: (1) Encryption: Data must be encrypted at rest and in transit using industry-standard algorithms (e.g. AES-256, RSA-4096, SHA-256); (2) Access Controls: Use of strong, multi-factor authentication, role-based access controls, and least-privilege policy; (3) Monitoring and Logging: Applying robust logging systems to monitor access, retention and use of the Data for audit purposes; (4) Secure Storage and Infrastructure: Technical and organisational measures related to network/storage security (e.g. firewalls), secure configurations (e.g. split storage), and regular vulnerability testing; (5) Data Processing Management: Where data is being edited, deleted or transmitted, such processes should be technically effective and auditable; (6) Remediation and Testing: Expedited resolution where any security omissions or vulnerabilities are identified, together with testing to verify resolution; (7) Training: The User should ensure it is suitably knowledgeable/trained in the implementation and operation of these protective measures; (8) Honda Security Requirements: On request by the Data Holder, annual completion of the Honda GITSP SDLC minimum standard check sheet provided to the User; (9) Data Incident Notification and Response: See further below.
Notes:
Data Incident Notification and Response Notification and response measures must be prepared and operated in case of misuse, unauthorised disclosure or other security incident relating to the Data (including, without limitation, where the User identifies that it is in breach of its obligations to apply the User Protective Measures), which (without limitation) should include: a) Immediate Notification: The Data Holder must be informed immediately (within one hour) of any such event, with a written outline of what has occurred. Further subsequent updates should be provided with details of the incident, measures taken and progress to resolve/mitigate; b) Clear escalation procedures: Escalation procedures, to ensure suitable response and mitigation of the incident, must be documented and implemented as required; c) Incident Management: Data incidents must be suitably managed and mitigated, including remediation steps, forensic investigation support, and cooperation with the Data Holder.
|
- END -