General framework conditions for platform usage

Subject
1. These Platform GTC constitute a free framework agreement between TB Digital Services GmbH (“TBDS”) and its user (“the User”) (TBDS and the User shall be referred to individually as “the Party” and jointly as “the Parties”) on the use of the RIO platform (“the Platform”) at www.rio.cloud.
  
  The Platform enables the User to make use of paid and free services of TBDS (“the TBDS Services”) and/or of third-party providers (“Third-Party Services” including Third-Party Services of MAN Truck & Bus SE), (jointly referred to as “the Services”). The Platform GTC represent a framework agreement.
  
  Under this agreement, the “ServiceCare S” Third-Party Service of MAN Truck & Bus SE (accessible as part of the service description on the registration page of the RIO Platform as well as after registering on www.rio.cloud) can already be used free of charge, provided that vehicles with a RIO Box/TBM3 (“Connected Vehicles”) or other vehicle items (e.g. containers, trailers, etc.) with a RIO transmitter unit (“Mobile Device”) are registered on the Platform. In addition, individual TBDS Services and/or Third-Party Services may be used by the User free of charge for a period of three (3) months via the corresponding button in the RIO Marketplace to activate the Services for the purpose of the product test. If the User intends to register a Connected Vehicle and/or Mobile Device for a vehicle item belonging to a third party via the Platform, this shall only be permitted with the consent of the third party in question; proof of consent by the third party is to be provided to TBDS upon request.
  
  The use of a TBDS Service and/or a Third-Party Service after the expiry of the free trial period of three (3) months shall be based on contracts to be entered into separately with TBDS or the respective third-party provider, for which separate general terms and conditions shall be agreed upon in addition to these Platform GTC (the "Service GTC").
2. All Services offered via the Platform shall be provided within the countries specified in Annex 1 of these Platform GTC exclusively to entrepreneurs as defined in Section 14 of the German Civil Code, unless specific services and the associated Service GTC explicitly stipulate otherwise. The Services shall be provided only for Connected Vehicles and/or Mobile Devices that are physically located within the countries specified in Annex 1 of these Platform GTC.
3. Section 312i(1) sentence (1) numbers (1)-(3) and Section 312i(1) sentence (2) of the German Civil Code shall not apply with regard to the conclusion of these Platform GTC.
Conclusion of agreements for TBDS Services and Third-Party Services
1. The use of any TBDS Service takes place on the basis of an agreement that is to be entered into separately with TBDS online, whereby that agreement is based on our Service GTC. Should a User wish to make use of a TBDS Service, they must click on the appropriate button within the Platform to purchase the relevant TBDS Service. The User must then accept the corresponding Service GTC and click on the appropriate button to complete the ordering process. Completion of the ordering process does not immediately give rise to an agreement with TBDS; this simply results in the submission of an order by the User. The agreement concerning the TBDS Service in question shall only be concluded once acceptance has been confirmed by TBDS (the User shall be informed of this by email or via the Platform).
2. The use of any Third-Party Service takes place on the basis of an agreement that is to be entered into separately with the relevant third-party provider, based on the Service GTC of that third-party provider. The Service GTC for a Third-Party Service are concluded exclusively between the User and the third-party provider (i.e. not with TBDS). During the conclusion of such agreements, TBDS shall neither represent the third-party provider nor provide the service in question and shall therefore not be under any obligation with regard to the User.
  
  Should a User wish to make use of a Third-Party Service, it must click on the appropriate button within the Platform to purchase the relevant Third-Party Service. The User must then accept the corresponding Service GTC and click on the appropriate button to complete the ordering process. Completion of the ordering process does not immediately give rise to an agreement with the third-party provider; this simply results in the submission of an order by the User. The agreement concerning the Third-Party Service shall only be concluded once acceptance has been confirmed by the third-party provider (the User shall be informed of this in writing by email or via the Platform). Within the scope of this ordering and acceptance process, TBDS does not act as a representative of the third-party provider or the User; it simply acts as the recipient of the declarations of intent issued by the User and the third-party provider. Payments made in connection with the TBDS Services and Third-Party Services shall be handled in accordance with section ‎4.2 of these Platform GTC.
3. Section 312i(1) sentence (1) numbers (1)-(3) and Section 312i(1) sentence (2) of the German Civil Code shall not apply with regard to the conclusion of the Service GTC, unless otherwise provided for in the respective Service GTC.
Access to the Platform and usage rights for the Platform
1. The User shall be responsible for ensuring technical access to the Platform. The Platform is accessed remotely via the internet. Further details on this as well as other technical access requirements for the TBDS Services and/or Third-Party Services can be found in the technical access requirements. These can be viewed on the registration page for the RIO Platform and after logging onto www.rio.cloud.
2. Within the scope of these Platform GTC, TBDS shall be obliged to guarantee an availability level of 99% each year during operating hours. This will be reported by the Platform upon remote access. There is no obligation to guarantee an availability level beyond this. Individual Service GTC may include additional regulations. Maintenance windows between 10 pm CET Saturdays and 4 pm CET Sundays shall be excluded from the obligatory availability and operating hours specified in this section ‎2.
3. To enable the User to make use of the Platform, the content of the Platform and the apps that can be downloaded from the Platform, TBDS shall grant the User a non-exclusive, non-transferable, non-sublicensable and regionally unrestricted usage right, the validity of which shall be limited to the term of these Platform GTC. This right does not include editing rights.
4. The software may consist partly or entirely of open source components. These are subject to the relevant licensing conditions of the open source components used. The relevant licence conditions are an integral part of these Platform GTC and are available at DOWNLOAD.
  
  The current source text of the open source components of the RIO Box can be found at DOWNLOAD. This does not restrict TBDS’s obligations towards the User.
5. TBDS reserves the right to revoke the usage rights granted to the User in the event that the User in question wilfully damages the Platform, breaches these Platform GTC or uses the Platform in a manner that is not consistent with its assigned usage rights (see section ‎3 above).
Costs and processing of payments using a payment service provider
1. The use of the Platform under these Platform GTC is free of charge for the User. Costs for the Services that the User makes use of shall be determined in accordance with the content of the Service GTC, which are to be entered into separately.
2. If fees are payable to TBDS or to a third-party provider under the Service GTC, these shall be billed centrally to the User by TBDS and are payable by the User exclusively to the payment service provider Stripe Payments Europe Limited, The One Building, 1 Grand Canal Street Lower, Dublin 2, Co. Dublin, Ireland (the "Payment Service Provider") - with performance effect vis-à-vis TBDS and/or the third-party provider - i.e. all payments owed by the User to TBDS or the third-party provider under the respective Service GTC due to the use of TBDS Services or Third-Party Services shall be made to the Payment Service Provider (and not to the third-party provider and/or TBDS).
3. The prices and the aforementioned fees do not include statutory value-added tax (VAT) or comparable taxes. Taxes of this nature shall be charged to the User by TBDS in addition to the agreed payment.
  
  In the event that a reverse charge mechanism or a comparable simplification method is to be used (according to which the recipient of the supply or the service is obliged to submit a self-declaration or to deduct value-added tax or comparable taxes), the User must perform the self-declaration or submit the tax deduction to the competent tax authority within the prescribed period. In the event that a mechanism of this nature is to be used on an optional basis, the Parties shall agree upon the application of that mechanism. Irrespective of this, the prices and payments shall, in both cases, be calculated without value-added tax or comparable taxes, and payments made by the User to TBDS shall be equal to the contractually agreed price, without any deductions.
4. The User and TBDS shall each be responsible for their own income taxes based on their respective earnings.
  
  The prices and the aforementioned fees shall be understood to be exclusive of withholding tax and comparable taxes. Should the payment be subject to statutory withholding tax, the User shall not be permitted to deduct withholding tax deduction amounts, in accordance with the law of the country in which it is based, from the payment made to TBDS. In addition to the payment of the agreed amount to TBDS, the User must pay taxes of this nature from its own account to the appropriate authorities on behalf of TBDS.
  
  Should a Double Taxation Convention (“DTC”) exist between the countries in which TBDS and the User are based, the User shall be permitted to pay the maximum withholding tax contribution provided for in the applicable DTC to the appropriate authorities, provided the conditions for a reduction in withholding tax (where applicable to zero) are present. The User shall be responsible for fulfilling the formal requirements for a reduction in withholding tax (where applicable to zero). Upon conclusion of an agreement, TBDS shall provide the User with a tax residence certificate.
  
  The User shall undertake to provide TBDS with official proof of the tax paid on behalf of TBDS and to provide such proof immediately and without a request having to be made in that regard. In the event that official proof is not provided or is provided late, the User must hold TBDS harmless with regard to any damages resulting from the failure to provide proof or the late submission of that proof.
Changes to the Platform GTC, the Platform and the Service GTC
1. Changes to the Platform GTC require the agreement of both Parties, unless stipulated otherwise in this section ‎5.
2. TBDS shall be permitted to make appropriate technical modifications to the Platform, particularly to the extent that these are necessary to improve its functionality or to comply with legal requirements.
3. TBDS shall also be permitted to make changes to the content of the Platform, provided this does not reduce the range of services for the User with regard to the use of the Platform and provided the User has not objected to that change in accordance with section ‎4 below.
4. Reasonable changes to services included on the Platform shall be notified to the User, who shall be provided with the opportunity to object to a change within six (6) weeks. If no objection is made (in writing or by email) to a reasonable change to a service within that six (6) week period, the change to the service shall be deemed to have been accepted, provided the User was made aware of this legal consequence when it was notified of the change in question. Should the User object to a change to a service, TBDS shall have a right of extraordinary termination with regard to the User; in addition, the User shall be entitled to effect the ordinary termination of the Platform GTC at any time. Should the User use a TBDS Service or Third-Party Service with a fixed term, it shall have the right to extraordinary termination of the Platform GTC if services changes have a significant negative impact on the provision of the TBDS Service or Third-Party Service with a fixed term.
5. Changes to the respective Service GTC and the respective Services shall be subject to the regulations contained within the respective Service GTC.
Lack of exclusivity/lack of a purchase commitment
1. The TBDS Services and/or Third-Party Services shall be provided on a non-exclusive basis for all participants. Neither Party shall be subject to restraints on competition. The User shall not be subject to minimum purchase commitments for TBDS Services nor for Third-Party Services.
2. None of the Parties shall be obliged to enter into separate Service GTC on the basis of these Platform GTC.
Conclusion of the agreement, duration of the agreement and termination rights
1. Completion of the registration process by the User does not immediately give rise to an agreement with TBDS; this simply results in the submission of an order by the User. The agreement shall only be concluded once acceptance has been confirmed by TBDS (the User shall be informed of this by email). In addition, following the submission of an order by the User and prior to acceptance of that order by TBDS, the latter shall reserve the right to perform credit checks, sanction list checks and VAT ID checks with regard to the User. TBDS shall also reserve the right to perform VAT ID checks, credit checks and/or sanction list checks at regular intervals following acceptance of the order.
  
  Use of the Platform and the Services shall be subject to there being no impediments to fulfilment as a result of national or international provisions, particularly export control regulations or embargoes or other such legal restrictions. The User shall undertake to provide all information and documents that are required for the use of the Platform and/or the Services. Any delays resulting from export checks or approval procedures shall result in the temporary suspension of the Service. In the event that the necessary approvals are not granted, the Platform GTC and Service GTC shall be deemed to have not been concluded. Claims for compensation in this regard and in connection with missed deadlines as referred to above shall be excluded.
2. These Platform GTC between the User and TBDS shall enter into force as soon as TBDS has informed the User of its acceptance following completion of the registration process by the User (as described in section ‎1). The Platform GTC are entered into for an indefinite period.
3. The Platform GTC may be terminated ordinarily by the User at any time without notice unless the User uses a TBDS Service or Third-Party Service with a fixed term, in which case the regulations of the TBDS Service and/or Third-Party Service regarding the term and termination options of the relevant agreement shall also apply to the termination of the Platform GTC. After terminating the Platform GTC in accordance with the first sentence of this section ‎3, the User must wait at least ten (10) working days before entering into the Platform GTC once again. TBDS may ordinarily terminate the Platform GTC by giving three (3) months’ notice to the end of the month unless the User uses a TBDS Service or Third-Party Service with a fixed term, in which case the regulations of the TBDS Service and/or Third-Party Service regarding the term and termination options of the relevant agreement shall also apply to the termination of the Platform GTC.
4. In so far as the User intends to cease using a Connected Vehicle or a Mobile Device for which TBDS Services and/or Third-Party Services have been provided, the User must unsubscribe that Connected Vehicle or Mobile Device from the Platform. The TBDS Services and/or the Third-Party Services associated with that Connected Vehicle or Mobile Device will then be terminated for that Connected Vehicle or Mobile Device as soon as it is no longer in use. All retention times can be found in the relevant Service GTC. It is not possible to reregister a Connected Vehicle or Mobile Device that has been unsubscribed in accordance with the first sentence of this section ‎4 until at least four (4) working days have elapsed.
  
  If the User sells a vehicle, they shall be obliged to unsubscribe that vehicle from the Platform no later than the time at which the vehicle is handed over to the buyer.
5. The right of termination for good cause shall remain unaffected for both Parties. Examples of good cause include (i) a significant breach of obligations by one of the Parties that has not been remedied following the expiry of a deadline of thirty (30) days set by the other Party and that makes it unreasonable for the other Party to continue with the agreement, or (ii) the instigation of insolvency proceedings against a Party or the refusal of such proceedings due to a lack of assets.
6. Regulations concerning the term and termination of the TBDS Services or Third-Party Services that the User is making use of can be found in the respective Service GTC. In the event that the User or TBDS terminates the Platform GTC, this shall result in automatic termination of all Services and Service GTC with effect on the termination date.
User data and data protection
1. Order data
  from the User relating to transport orders from their customers (the “Order Data”), shall be used by TBDS only for the purposes of fulfilling the Platform GTC, for TBDS Services and/or Third-Party Services during the term of these Platform GTC. With the exception of the possible forwarding of Order Data to third-party providers to the extent required to enable the Third-Party Service to be performed, TBDS shall not forward Order Data of the User to any other third parties.
2. Aggregated data
  is data that cannot be traced back to a specific driver by TBDS and that relates to general aspects of Connected Vehicles or Mobile Devices, the use thereof (e.g. their charge level or brake lining wear) and/or the journeys they make (the “Aggregated Data)”. Such data is transmitted directly to the Platform from the Connected Vehicle or Mobile Device or by the User themselves and saved on the Platform. When the data are saved, the last six digits of the vehicle identification number and the driver ID are masked. Throughout the term of these Platform GTC and beyond, TBDS shall be permitted to use this Aggregated Data and to transfer it to third parties (i) for the purposes of fulfilling the Platform GTC and/or Service GTC concluded under it (ii) for the purposes of the performance of Third-Party Services between the User and the Third-Party Providers, (iii) for other internal purposes (e.g. increasing security, data analysis, tests or improving/expanding offers) by TBDS or affiliates of the TRATON GROUP or Volkswagen Group, and (iv) provided the User cannot be identified, to other third parties for marketing purposes.
3. Personal data
  TBDS complies with applicable data privacy laws. This includes the General Data Protection Regulation (EU) 2016/679 as well as the German Data Privacy Act in their respective applicable versions.
  1. Commissioned data processing with TBDS
    Personal data relating to the User and their employees (particularly their drivers) that is transmitted to the TBDS Platform or transferred by the Connected Vehicle, Mobile Device, User and/or a third-party provider (“Personal Data”) shall be collected, processed and used by TBDS on the basis of a commissioned data processing agreement (“CDP Agreement”) in accordance with Art. 28 of the General Data Protection Regulation to be concluded separately by the Parties and under which TBDS as contractor (commissioned data processor), shall process the Personal Data on behalf of and in accordance with the instructions issued by the User as customer (controller). Specific details can be found in the CDP Agreement to be concluded separately.
    
    The User shall remain responsible under data privacy law for data processing within the framework of the CDP Agreement and guarantees the permissibility of the processing of the Personal Data of the data subjects (drivers and other persons where applicable).
    
    In so far as the use of individual TBDS Services necessitates further commissioned data processing by TBDS, the provisions of the CDP Agreement shall be supplemented with additional regulations upon conclusion of the relevant Service GTC.
    
    The processing of Personal Data by TBDS within the scope of the CDP Agreement shall also include analysing the driving behaviour by the driver and the use of the Connected Vehicle or Mobile Device and, on the basis thereof, suggesting ways in which the User could increase efficiency (e.g. training, suggestions for improvement).
  2. Transfer to third-party providers and additional commissioned data processing with third-party providers
    To the extent that a transfer of Personal Data by TBDS to a third-party provider is required with regard to the use of Third-Party Services, TBDS is hereby instructed by the User under the CDP Agreement to transfer the Personal Data to the third-party provider or to grant the third-party provider access thereto. Where Personal Data is being transferred by the User and/or TBDS to a third-party provider, the User must enter into a separate data protection agreement or a CDP Agreement in accordance with Art. 28 of the General Data Protection Regulation with the third-party provider, where necessary, in connection with the conclusion of the Service GTC.
  3. Driver consent (Driver App)
    To enable the collection, processing, use and transfer of Personal Data relating to drivers by means of the Driver App on their smartphone for the purposes of this section ‎8, TBDS shall seek individual consent from the drivers directly within their Driver App. The User is aware and accepts that the granting of consent by the drivers is voluntary and that their refusal to grant consent (or withdrawal of consent) will result in the driver in question being unable to use the Driver App, which will result in the inability to provide the Services and/or Third-Party Services via the Driver App.
  4. Use for own purposes outside the CDP agreement
    Above and beyond its role as contractor (commissioned data processor) within the meaning of section ‎8.3.1, TBDS shall also process and use Personal Data for its own purposes as controller during the term of these Platform GTC and beyond as follows:
    1. Aggregating data (i.e. data relating to Connected Vehicles or Mobile Devices, whereby the last six digits of the vehicle identification number are masked and the driver ID removed) in order to evaluate and analyse the data and, where necessary, forward it to third parties (external or group companies of the TRATON GROUP and/or Volkswagen Group), even after the termination of these Platform GTC, and
    2. Analysing driving profiles, without the last six digits or the driver ID, for the continuous further development and quality improvement of the service offering, for fault diagnosis, fault prevention and/or testing by TBDS and group companies of the TRATON GROUP or Volkswagen Group.
  5. Ensuring the permissibility of the processing of Personal Data
    The User is informed that, as the controller of Personal Data, they are subject to a comprehensive obligation to provide information to the persons affected by the data processing. The data subjects must be furnished with all information in this regard in an accurate, transparent, understandable and easily accessible form, using clear and simple language.
    
    Users must further ensure that the processing of Personal Data is carried out in a legally compliant way – meaning that it is carried out on the basis of data privacy law.
    
    Please note that if a User has a works council, depending on the TBDS Service and/or Third-Party Service being used by the User, it may be necessary to trigger the participation rights of the works council and to conclude a works agreement concerning the appropriate processing of Personal Data relating to employees.
    
    Users must further ensure that as a result of setting up the services employees’ Personal Data is processed solely in order to administer the employment relationship.
4. Licence
  The User hereby grants TBDS the necessary non-exclusive, global, sublicensable usage and exploitation rights for the purposes of the collection, processing, use and forwarding of relevant data, as described in this section ‎8 for the term described in this section ‎8. This right shall include the right to edit, enhance, duplicate and – to the extent described above – distribute and market the data. This assignment of usage rights does not constitute consent under data privacy law.
5. Indemnity
  If the User sells a vehicle and fails to unsubscribe it in good time as described in section ‎7.4 above, they shall indemnify TBDS against damage due to any inadmissible processing of data pertaining to the buyer and/or its employees unless the User is not responsible for this.
Liability and warranty
1. Liability
  1. TBDS shall be liable for loss or damage that is attributable to intentional acts and/or gross negligence on the part of TBDS or its vicarious agents. TBDS shall only be liable for loss or damage resulting from ordinary negligence on the part of TBDS or its vicarious agents if a cardinal obligation has been breached. Cardinal obligations are essential contractual obligations that ensure due implementation of the contract in the first place and the observance of which the User has relied upon and was entitled to do so. In the event of a breach of these cardinal obligations caused by ordinary negligence, TBDS’s liability shall be limited to typically foreseeable loss or damage.
    
    Insofar as a TBDS Service and/or Third-Party Service is provided free of charge, the following applies: In the event of a breach of these cardinal obligations caused by ordinary negligence, given the fact that the TBDS Service is provided free of charge, TBDS shall also only be responsible for exercising a degree of care that TBDS itself applies to its own affairs.
  2. In all other cases, TBDS’s liability for ordinary negligence shall be excluded.
2. Other exclusions
  1. TBDS shall not be liable for the proper condition of vehicles belonging to the User for which the Service is being provided. The Service is intended purely to support the User. Responsibility for complying with legislation and for the use and condition of the vehicles shall remain with the owner or driver.
  2. The provision of RIO Boxes and/or RIO transmitter units is not an integral part of these Platform GTC. No warranty shall be provided and/or no liability assumed under the terms of these Platform GTC in this regard.
  3. Likewise, no warranty shall be provided and/or no liability shall be assumed under these Platform GTC for defective services (particularly missing or incorrect data) and/or damage resulting from malfunctions and/or breakdowns of vehicles, RIO Boxes and/or RIO transmitter units or from the entry of incorrect data by the User.
  4. In accordance with these Platform GTC, TBDS shall also provide no warranty and shall accept no liability for Third-Party Services provided by third-party providers. Warranty claims and claims for liability for proprietary TBDS Services shall be governed exclusively by the Service GTC that are to be concluded in each case.
Confidentiality
1. TBDS and the User shall each undertake to refrain from disclosing confidential information regarding the other Party and to only use such information for the purposes of implementing these Platform GTC and for the objective they are intended to achieve. This obligation shall continue to exist for a period of three (3) years following the termination of the agreement. Section ‎8 shall remain unaffected by the above.
2. The confidentiality requirements set out in section ‎1 above shall not apply in the event that the confidential information (i) was already known to the other Party at the time that the Platform GTC were entered into, and evidence can be provided of this, or was disclosed at a later date by a third party without any breach of the confidentiality agreement having taken place, (ii) was already in the public domain at the time that the Platform GTC were signed or entered into the public domain at a later date, provided this did not occur as a result of a breach of these Platform GTC, (iii) may be used by a Party with the prior consent of the other Party for purposes that are not covered by these Platform GTC, or (iv) must be disclosed as a result of a legal obligation or an order issued by a court or a public authority; where permissible and possible, the Party obliged to disclose the information must inform the other Party of this in advance and provide them with the opportunity to take action to prevent the disclosure.
Other provisions
1. In the event that the Platform becomes unavailable as a result of force majeure, TBDS shall be released from its obligation to ensure the availability of the Platform for the duration and within the scope of the impact of the case of force majeure, provided TBDS has taken appropriate steps to prevent the consequences of this. Force majeure shall mean any event beyond the control of TBDS that prevents TBDS from fulfilling its obligations in whole or in part, including fire damage, floods, strikes, lawful lockouts, and business disruptions or governmental orders for which TBDS is not responsible.TBDS shall immediately notify the User of the occurrence and cessation of the force majeure and use its best efforts to remedy the force majeure and limit its effects to the extent possible.
2. Should individual provisions of these Platform GTC be or become invalid, either in whole or in part, this shall not affect the validity of the remaining provisions. In such cases, the Parties shall substitute the invalid or unenforceable provision with a valid one which comes as close as possible to the Parties’ original understanding and economic intentions. Any loopholes in these Platform GTC shall be closed accordingly.
3. Any amendments and supplements to these Platform GTC must be effected in writing. The same shall apply with regard to any agreement to cancel this requirement for the text form.
4. These Platform GTC are available in several languages. In the event of discrepancies, the original German version shall prevail.
5. These Platform GTC are subject to and construed in accordance with the laws of Germany, to the exclusion of rules on conflict of laws and the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for any disputes arising from or in connection with these Platform GTC shall be Munich, Germany.

Annex 1 Countries in accordance with section 1.2 of these Platform GTC

Annex 1:

List of countries in accordance with section 1.2 of the General Framework Conditions for Use of the Platform

European Union Member States:
Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark (except overseas territories), Estonia, Finland, France (except overseas territories), Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands (except overseas territories), Poland, Portugal (except overseas territories), Romania, Slovakia, Slovenia, Spain (except overseas territories) and Sweden

Other countries:
Iceland, Liechtenstein, Norway (except overseas territories), South Korea (Republic of Korea), Switzerland and the United Kingdom of Great Britain & Northern Ireland (excluding overseas territories)

Last updated: 19th September 2022