LICENSE AGREEMENT

 

Renault Trucks SAS  (“Licensor”)

 

and Independent Operator (“Licensee”)

 

 

Background

 

The Licensee is an independent operator as defined in Regulation (EC) 595/2009 of the European Parliament and of the Council of 18 June 2009 on type-approval of motor vehicles and engines with respect to emissions from heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information and amending Regulation (EC) No 715/2007 and Directive 2007/46/EC and repealing Directives 80/1269/EEC, 2005/55/EC and 2005/78/EC and subsequent amendments thereof (hereafter “the Legislation”) and is as such involved directly or indirectly in the repair and maintenance of Vehicles (as defined herein).

 

Via the Portal (as defined herein), or as otherwise agreed between the Parties, the Licensor provides, to the extent required by the Legislation, access to Repair and Maintenance Information (as defined herein) to independent operators.

 

This Agreement sets forth the terms and conditions according to which the Licensor provides Repair and Maintenance Information to the Licensee via the System (as defined herein) to be accessed on the Portal.

 

 

 

1.      Parties

 

1.1.            Licensor

 

Renault Trucks, a company incorporated pursuant to the laws of France, 99 route de Lyon, 69000 Saint Priest, France with official registration number 954 506 077.

 

1.2.            Licensee

 

The company identified with corporate name, address and/or VAT number on the Portal.

 

 

2.      Formation of contract

 

2.1.            By clicking on the “I ACCEPT THE TERMS AND CONDITIONS” button on the Portal the Licensee confirms having read and accepted the terms and conditions set out in this Agreement. Thereby, the Licensee confirms that it has entered into an agreement between the Licensor and the Licensee pursuant to the terms and conditions of this Agreement.

 

2.2.            These terms and conditions are limited to the use as set out under Article 5.1 below. Any other use of the System is permitted only to the extent as provided under Article 5.2 below.

 

 

3.      License and scope

 

3.1.            The Licensor grants the Licensee, for the duration of this Agreement, a non-exclusive, non-assignable, limited right to access the System to the extent covered by the Packages to which the Licensee has subscribed at the Portal and to use such access for the purposes as described under Article 5.1 and 5.2 below.

 

3.2.            The Licensee is not allowed to sublicense its access to or use of the System or parts thereof to any third party. The Licensee is not allowed to lease, lend, sell or in any other way assign to any third party its access to or the use of the System or parts thereof.

 

 

4.      License fee and other charges

 

4.1.            The Licensee shall pay the Licensor a license fee as well as any other charges as stated in the price list located at the Portal, as amended by the Licensor from time to time, or –as regards prices for training– in local price lists (hereafter jointly the “Price List”). This Price List shall be considered part of this Agreement.

 

4.2.   Payment shall be effected in accordance with the Licensor’s payment instructions, including payment terms. Unless otherwise agreed, payment shall be made by way of a credit card accepted by the Licensor. In case of late payment and subject to prior notice, it will be applied, , (i) late payment interests amounting to the Euribor rate +12% calculated on the net amount (tax excluded) still outstanding on the due date (ii)  a compensation for recovery costs  amounting to 40 euros. The Licensor may claim an additional compensation when the recovery costs incurred are higher than 40 euros.

 

4.3.            The Licensor may appoint an affiliated company within the Volvo Group to invoice and collect fees due under this Agreement, in which case such affiliated company will issue invoices in accordance with the fees payable according to this Agreement.

 

4.4.            All amounts are net of any taxes, VAT, customs duties, delivery costs and such like which the Licensee shall pay to the Licensor in addition to the fees and charges set out in the Price List.

 

 

5.      Licensee’s permitted use

 

5.1.            The Licensee may use the System only for its own use, for the repair and maintenance work of the Vehicles as provided for under the Legislation and on the locations duly registered on the Portal. The Licensee may not otherwise sell, copy, transfer, assign, publish, distribute or otherwise permit access to and use of the Repair and Maintenance Information obtained through the System or parts thereof.

 

5.2.            Any use that is not in line with the wording of Article 5.1 is permitted only if and to the extent that the Parties have entered into a separate licensing agreement in writing.

 

 

6.      Licensor’s obligations

 

6.1.            The Licensor will provide helpdesk functions for the System as well as technical support for which the Licensee shall pay the prices, where applicable, set out in the Price List.

 

6.2.            To the extent that the Licensor has agreed to provide support free of charge, the Licensee shall nevertheless pay a reasonable price for such support if any failures or defects to the System are caused

 

6.2.1.           by the Licensee’s incorrect use of the System or other equipment and/or accessories used together with the System;

6.2.2.           by the Licensee as a result of modifications to or updates of the System carried out by the Licensee without any instruction hereto by the Licensor;

6.2.3.           by the Licensee’s use of the System in another way than prescribed in the user documentation;

6.2.4.           through negligence by the Licensee, its employees, third party or otherwise outside the control of the Licensor.

 

6.3.            After receipt of a request for training by the Licensee, the Licensor shall provide training in respect of the Repair and Maintenance Information from time to time. Such training is subject to availability as well as to local terms and conditions.

 

6.4.            The Licensor may provide updates and/or upgrades in respect of the System but assumes no responsibility for the implementation thereof by the Licensee, and assumes in particular no responsibility for the incorrect functioning of the System if the Licensee does not implement such updates and/or upgrades in a timely manner.

 

 

7.      Licensee’s obligations and responsibilities

 

7.1.            The Licensee is responsible for its use of the System and any loss of or damage to the System and shall maintain the System including, but not limited to, the Software.

 

7.2.            The Licensee is responsible for ensuring that the hardware and software (other than provided by the Licensor as part of this Agreement) meet the System requirements set out at the Portal, which System requirements shall be considered part of this Agreement.

 

7.3.            Any defect in the System shall be reported to the Licensor in the format and according to the procedures established by the Licensor. If the Licensee does not comply therewith, the Licensor shall assume no liability for the System. Any costs related to the repair, service or transport of the System shall be borne by the Licensee.

 

7.4.            The password that should be used by the Licensee to access the System is intended for the personal use only of the persons specifically empowered by the Licensee to access and use the System in accordance with this Agreement. The Licensee shall be responsible for all actions taken by any persons empowered by the Licensee to use its passwords in order to access and use the System.

 

7.5.            The Licensee (at its own cost) is responsible for ensuring that its personnel participates in adequate training in the use, maintenance and operation of the System. It is agreed and understood, however, that the Licensor sets no minimum training requirements as a condition under this Agreement. The Licensee shall indemnify and hold harmless the Licensor for any damages, expenses or costs arising from the lack of adequate training by the Licensee or its personnel.

 

7.6.            The Licensee is responsible for obtaining the necessary information in order to be able to assess which Packages are required for its service and repair activities. Such Packages may be described in the Packages’ descriptions or elsewhere in the repair and maintenance instructions issued by the Licensor. The Licensee bares sole responsibility as regards its decision to which Packages it subscribes. The Licensee shall indemnify and hold harmless the Licensor for any damages, expenses or costs arising from the failure to subscribe to the required Packages by the Licensee.

 

7.7.            To the extent requested by the Licensor, the Licensee shall in a timely manner inform Vehicle customers about recalls and campaigns in respect of the Vehicles, which are provided by Volvo Group free of charge to the customers.

 

 

8.      Licensor’s warranty

 

8.1.            In case of a defect in the System, the Licensee shall immediately contact the helpdesk. If the System is impaired by a defect (which also includes missing or incorrect information) for which the Licensor is responsible, the Licensor shall remedy the defect. If the Licensor is unable to remedy a defect within a reasonable period of time, the Licensee has the right to terminate this Agreement with immediate effect. The Licensee shall have a right of reimbursement of the licensee fee on a pro rata temporis basis, but has no right to compensation or other remedies in case of any such defects.

 

 

9.      Licensee’s warranties

 

9.1.            The Licensee warrants and represents:

 

9.1.1.           that it fulfils the criteria to be an independent operator pursuant to the Legislation, and

9.1.2.           the accuracy and completeness of all information provided to the Licensor in connection with this Agreement.  

 

 

10.  Property Rights

 

10.1.        The System and documentation related thereto is the property of the Licensor and, as the case may be, its licensors. Title in and to the System and all rights to patents, copyright, trademark and proprietary information therein shall remain with the Licensor and, as the case may be, its licensors. For the avoidance of doubt, the Licensee accepts that this Agreement does not give it any right to use any trademark that belongs to or is used by any company in the Volvo Group.

 

10.2.        Through payment of the license fee as set out in the Price List the Licensee is solely granted a non-exclusive right to access and use the System according to the conditions set forth in this Agreement.

 

10.3.        The Licensee may not reverse, compile, decompile, disassemble, alter, modify or take any similar action to the Software. Software may only be copied for security purposes. Any copies shall be subject to the conditions of this Agreement.

 

10.4.        Written Software documentation may not be reproduced. Additional copies of Software documentation are supplied on demand against a fee to be agreed upon.

 

 

11.  Infringements

 

11.1.        The Licensor shall defend any claim by any third party against the Licensee based on the allegation that the use by the Licensee of the System constitutes an infringement of any intellectual property rights or application thereof and shall  indemnify the Licensee for costs and damages awarded against the Licensee as a result of any such claim. As a condition of this indemnity the Licensee shall:

 

11.1.1.       notify the Licensor promptly in writing of any allegation of infringement;

11.1.2.       make no admission relating to the infringement or the alleged infringement; and

11.1.3.       allow the Licensor to conduct all negotiations and proceedings and give the Licensor all reasonable assistance in connection herewith.

 

 

12.  Disclaimer / Limitation of liability

 

12.1.        The Licensor reserves the right to make any change to the System. The Licensor shall have no responsibility for any damages, cost, loss of business or other liability which the Licensee may suffer as a result of any change to the System or for the malfunction, defect or disturbance hereof.

 

12.2.        The Licensee shall be solely responsible for the use of the System and shall do so at its own risk and liability. The information and functionalities covered by the System are based on the Licensor’s best knowledge at the time it was published or provided. The System is accordingly provided “as is” and the Licensee is aware of and accepts that the Licensor does not guarantee the correctness, timeliness, sequence, accuracy or completeness thereof.

 

12.3.        In no event shall the Licensor be liable to the Licensee (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever arising out of or in connection with this Agreement.

 

 

13.  Confidentiality

 

13.1.        The Licensee shall observe secrecy in respect of any information relating to the Licensor’s past, present or future research, development or business activities which is disclosed in writing or orally or in any other way and which is of a confidential nature. The Licensee shall refrain from divulging such information to third parties without the explicit written consent of the Licensor. Said information may only be used by the Licensee for the purposes as provided for under this Agreement and be made known solely to employees and sub-contractors on a need-to-know basis. The Licensee shall ensure that such employees and sub-contractors are made aware of and adhere to these contractual obligations regarding the confidentiality of such information.

 

13.2.        The obligations of confidentiality set out in this Agreement shall survive the termination or expiration of this Agreement for 5 years therefrom, unless such information has been disclosed to the public by the Licensor or by a third party authorized to do so by the Licensor or shall become public knowledge other than by breach of this obligation.

 

 

 

 

 

 

14.  Term and termination

 

14.1.        This Agreement enters into force upon acceptance of this Agreement by the Licensee (by clicking the “I ACCEPT THE TERMS AND CONDITIONS” button on the Portal) and remains in force for the subscription period selected on the Portal.

 

14.2.        The Licensor reserves the right to terminate this Agreement with immediate effect if:

 

14.2.1.       The Licensee is declared bankrupt, composes with its creditors, enters into liquidation proceedings, or loses the right to manage its business.

 

14.2.2.       The Licensee fails to comply with its obligations under this Agreement or any of the termination events stipulated in this Agreement occurs.

 

14.2.3.       The Licensee does not fulfil the payment of the fees payable pursuant to this Agreement according to the applicable payment terms.

 

14.2.4.       The Licensee undertakes illegal activities in relation to the Vehicles, including, but not limited to, tampering with emission control devices or security or safety related features.

 

 

15.  Consequences of termination

 

15.1.        Upon termination or expiry of this Agreement, for whatever reason, access to the System will be shut down and the Licensee’s right to use the System shall cease with immediate effect.

 

15.2.        Upon termination of expiry of this Agreement, for whatever reason, the Licensee must return any documents and other materials obtained through the System or from the Licensor in the possession of the Licensee to the Licensor, or otherwise dispose of the same as the Licensor may instruct.

 

15.3.        Any obligation hereunder which by virtue of its nature is intended to be valid after the termination or expiry of this Agreement shall accordingly survive the termination or expiry of this Agreement. Such obligations include, but are not limited to, Article 10 (Property Rights) and Article 13 (Confidentiality).

 

 

16.  Indemnification by the Licensee for breach and other activities

 

16.1.        If loss of or damage to the Software occurs the Licensee shall immediately notify the Licensor. Further, the Licensee shall indemnify and hold the Licensor harmless from any damage caused by the Licensee’s (including the Licensee’s employees, consultants and sub-contractors, if any) use of the Software in a way not permitted under this Agreement.

 

 

17.  Data Privacy

 

17.1.                The Licensee permits the Licensor to store information, provided or available to the Licensor, in a central database and to update such database when the Licensee connects to the Licensor’s System. Pursuant to the French Data Protection Act no. 78-17 of 6 January 1978, the Licensee is  informed that the Licensee have at any time the right to access, amend, correct, update or delete personal data supplied to the Licensor. To exercise this right, Licensee shall contact in writing [•], RENAULT TRUCKS.

 

17.2.        The Licensee is responsible for (and the Licensor assumes no responsibility for) the compliance with all applicable data privacy protection laws, regulations and obligations in respect of any data emanating from the Licensee’s use of the System.

 

17.3.        The Licensee accepts to enter into such additional agreements or consents that may be required for the administration of data if and to the extent requested by the Licensor. The refusal by the Licensee to enter into such agreements or consents gives the Licensor the right to terminate this Agreement if, in the Licensor’s reasonable judgement, such refusal results in the Licensor not being able to access or process certain data or risks committing a breach of data privacy legislation in doing so without the Licensee’s consent.

 

 

18.  Governing law and disputes

 

18.1.        This Agreement shall be governed by the laws of France. Any dispute, controversy or claim arising out of or in relation to this Agreement, shall be finally settled by the Commercial court of Lyon.  ,

 

 

19.  Notices and contact information

 

19.1.        Notices under this Agreement shall be sent by registered mail to the Licensor’s address stipulated from time to time on the Portal and to the Licensee’s address as registered on the Portal. The Licensee shall immediately update the information on the Portal in case of any change of address.

 

 

20.  Entire agreement, modifications and conflicts between documents

 

20.1.        The Licensee accepts that this Agreement constitutes the entire agreement between the Parties in respect of the subject matter covered herein and consequently waives the application of any terms and conditions issued by the Licensee, including, but not limited to, the Licensee’s purchase conditions.

 

20.2.        This Agreement replaces any previous version of this Agreement with effect from the approval thereof by the Licensee in accordance with Article 2.1 or 2.2 above, whichever is the case.

 

20.3.        In case of conflicts between documents forming part of this Agreement, the documents shall have priority in the following order

 

20.3.1.       The main part of this Agreement

20.3.2.       The appendices (if any) in the order they are numbered herein.

20.3.3.       Any other document referred to herein whereby a more recent document or version shall have precedence over a document issued at an earlier date.

 

 

21.              Severability

 

21.1.        In the event that any clause or provision of this Agreement should under applicable law be held to be illegal or void, or both, such clause or provision shall be considered severable and the remaining clauses and provisions shall continue in full force and effect. In such case, the Licensor shall provide a valid and enforceable clause or provision in lieu of the ineffective provision, which will ensure the same or as approximate an effect as possible as the clause or provision which has become ineffective, and the Licensee shall be deemed to have accepted such new version of this Agreement pursuant to the procedure for modifications set out in Article 20 above.

 

 

22.  Definitions

 

22.1.        “Agreement” shall mean this license agreement including the appendices (if any) as well as other documents explicitly referred to herein.

 

22.2.        “Package(s)” shall mean the packages as defined at the Portal that each contain different subjects of the Repair and Maintenance Information and which can be licensed separately. The description of the Packages located at the RMI Webshop on the Portal forms part of this License Agreement.

 

22.3.        “Portal” shall mean the following website www.independentoperator.eu.

 

22.4.        “Repair and Maintenance Information” shall mean any repair and maintenance information which the Licensor should provide to independent operators under the provisions of the Legislation.

 

22.5.        “Software” shall mean the software provided and specified in the System, as part of the Repair and Maintenance Information as defined under the Legislation, including the updates thereof delivered and licensed according to this Agreement.

 

22.6.        “System” shall mean the systems created by the Licensor in view of the Legislation which contain the Repair and Maintenance Information including Software, as divided into different Packages.

 

22.7.        “Vehicles” shall mean trucks marketed under the Renault brand.

 

22.8.        “Volvo Group” shall mean AB Volvo (publ), a company incorporated pursuant to the laws of Sweden, and any company which is directly or indirectly controlled by AB Volvo (publ).’