EU Data Act

Data Act for product data and related services data (ver. 3.0)

DATA ACT: USE ANNEX

1. Background

  • 1.1 In the event Client is purchasing, renting or leasing Connected Products and/or Related Services from Mitsubishi Electric Europe B.V., Italian branch (“MEU-IT”) pursuant to an existing contract between the parties (“Agreement”), the provisions of this annex (“Annex”) may apply.
  • 1.2 This Annex:
    • 1.2.1 covers non-personal data generated by the use of a Connected Product or Related Service that MEU-IT obtains or can lawfully obtain (without disproportionate effort going beyond a simple operation) from Connected Product(s) and/or Related Service(s) that are subject to the Agreement, irrespective of whether MEU-IT is the manufacturer or provider of such Connected Product and/or Related Service; (hereinafter the “Data”)
    • 1.2.2 does not cover data that is not subject to EU Data Act (in particular inferred or derived data), and the MEU-IT’s obligations are limited in accordance with the provisions of the EU Data Act when it is not a Data holder.
    • 1.2.3 records the agreed scope of the Client’s rights to access and use that Data and MEU-IT’s rights to use, transfer and share that data where and to the extent MEU-IT requires such a grant of use from Client (subject to any other rights provided under applicable law). The expression “use” should be read as including all forms of use and exploitation, such as to store, duplicate, modify, integrate, combine and otherwise process, as well as to develop into products, licence and/or otherwise commercially exploit.
    • 1.2.4 does not apply to personal data subject to GDPR.
  • 1.3 All intellectual property rights in and in relation to the Data belong to MEU-IT, and MEU-IT may transfer and/or sublicense its rights under this Annex in respect of the Data.
  • 1.4 Client acknowledges and agrees that on or before the execution of the Agreement it has accessed and reviewed Mitsubishi Electric’s EU Data Act website, found here at https://europe.mitsubishielectric.com/en/privacy/data-act/ and, in particular, has ascertained the respective Connected Product(s) and/or Related Service(s)’ technical information sheet(s). Client further acknowledges and agrees, that in the event it is unable to find or understand the technical information sheet(s) for the applicable Connected Product(s) and/or Related Service(s)’ data format, type, frequency and estimated volume of collection; Client undertakes that it shall immediately contact the MEU-IT supplier for clarification regarding any such information including, but not limited to, the provisions of Article 3 of the EU Data Act, before executing the Agreement.

2. Definitions

  • 2.1 Connected Product means an item that obtains, generates, or collects data concerning its use or environment and that is able to communicate product data via an electronic communications service, physical connection, or on-device access (e.g., a connected vehicle or motorcycle).
  • 2.2 Product data is data generated by the use of a connected product that is designed to be retrievable, via an electronic communications service, physical connection, or on-device access.
  • 2.3 Related Service means a digital service that can be linked to the operation of a connected products (resulting in a two-way/bidirectional exchange of data) and that affects the functionality, behavior or operation of this connected product (in such a way that its absence would prevent the connected product from performing one or more of its functions). Typical example is an app that is connected to a connected product.
  • 2.4 Related service data means data representing the digitization of user actions or of events related to the connected product, recorded intentionally by the user, or generated as a by-product of the user’s action during the provision of related service by the provider.
  • 2.5 User is a person that owns a connected product or has the right to use that connected product or that receives related services.
  • 2.6 Data holder means a natural or legal person that has the right or obligation to use and make available data, including, where contractually agreed, product data or related service data which it has retrieved or generated during the provision of a related service.
  • 2.7 Regarding the terms used, we also refer to the definitions in Art. 2 EU Data Act.

3. Client Rights and Obligations

  • 3.1 Client represent and warrant that following execution of the Agreement Client shall be:
    • 3.1.1 the owner of the Connected Product;
    • 3.1.2 contractually entitled to use the Connected Product or
    • 3.1.3 contractually entitled to receive the Servizio Correlato.
  • 3.2 At MEU-IT’s request (acting reasonably) Client will provide documentation and other information to evidence the commitments in clause 3.1.
  • 3.3 Client acknowledge and agree that MEU-IT may use, share and transfer EU Data Act applicable Connected Product/Related Service Data for the Permitted Purposes recorded in this Annex.
  • 3.4 MEU-IT acknowledges and agrees to make Data available to Client upon reasonable request (or on request from an authorised party acting on your behalf) in accordance with Article 4(1) of the EU Data Act (a “Request”). Requests can be made by accessing https://europe.mitsubishielectric.com/en/privacy/data-act/.
  • 3.5 Pursuant to receiving a valid Request, MEU-IT will make the Data available to Client (or the party acting on its behalf):
    • (a) with at least the same quality as it becomes available to it;
    • (b) free of charge; and
    • (c) in a comprehensive, structured, commonly used format.
    MEU-IT may, at its discretion (acting reasonably), amend the specifications of Data or access arrangements, including by reason of a security vulnerability or a change in its infrastructure.

4. Data sharing with a Data Recipient upon User Request

  • 4.1 This applies where Client (or an authorised party acting on its behalf) acting as “User” in accordance with the terms of the EU Data Act makes a request, in accordance with Article 5(1) EU Data Act, to MEU-IT to make Data available to a third party (“Data Recipient”) (together a “User Request”).
  • 4.2 Pursuant to receiving a valid User Request, MEU-IT shall make Data available to a Data Recipient:
    • with at least the same quality as it becomes available to MEU-IT and in any case a comprehensive, structured, commonly used and machine-readable format;
    • easily and securely; and
    • at no cost to Client.
  • 4.3 Pursuant to receiving a valid User Request, MEU-IT shall use reasonable efforts to agree with the Data Recipient contractual arrangements for making the Data available.
  • 4.4 Client represents and warrants, per Article 5(3), that the Data Recipient it specifies in its User Request is not a ‘gatekeeper’ under Article 3 of Regulation (EU) 2022/1925 (‘Digital Markets Act’).

5. Data Use by User

  • 5.1 Client may use the Data you receive from MEU-IT pursuant to a Request subject to the limitations in clause 5.2.
  • 5.2 Client shall not:
    • 5.2.1 use the Data to develop a Connected Product that competes with the Connected Product, nor share the Data with a third party with that intent;
    • 5.2.2 use such Data to derive insights about the economic situation, assets and production methods of MEU-IT;
    • 5.2.3 use coercive means to obtain access to Data or, for that purpose, abuse gaps in MEU-IT technical infrastructure which is designed to protect the Data;
    • 5.2.4 share the Data with a third-party that is a gatekeeper under Article 3 of the Digital Markets Act; or
    • 5.2.5 use the Data they receive for any purposes that infringe applicable law.

6. Non-Personal Data: Use by MEU-IT

  • 6.1MEU-IT may use, collect, interpret, transfer, assign and/or convert into alternative formats the non-personal Data that is in scope of this Annex for the following purposes:
    • 6.1.1 Performing any agreement with Client or related activities (e.g. issuing invoices, generating and providing analysis reports);
    • 6.1.2 Providing support, warranty, guarantee or similar services or to assess Client, MEU-IT or third party’s claims (e.g. regarding apparent defects) related to the Connected Product or Related Service;
    • 6.1.3 Monitoring and seeking to maintain the functioning, safety and security of the Connected Product or Related Service;
    • 6.1.4 Improving the functioning of any MEU-IT product or service;
    • 6.1.5 Developing new products or services, including web 3.0 applications, blockchain, quantum computing and artificial intelligence (AI) solutions. Such development activity to include the transfer of the non-personal Data in scope of this Annex to any applicable Mitsubishi Electric companies and/or third parties;
    • 6.1.6 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. Save that such data must not allow Client, the Connected Product or Related Service to be identified or allow a third party to derive those data from the dataset;
    These are each and together the “Permitted Purposes”.
  • 6.2 MEU-IT will not use the Data to derive insights about Client’s economic situation, Client’s assets and/ or Client’s production methods, or about Client’s use of the Product or Related Service in any other manner that could undermine Client’s position on the markets in which Client are active, as may be relevant to Client as a user. None of the Permitted Purposes should be interpreted as including such Data use.

7. Non-Personal Data: Sharing With Third Parties

  • 7.1 Save to the extent otherwise expressly agreed between Client and MEU-IT, MEU-IT may share non-personal Data with third parties in particular but not limited to purposes of:
    • 7.1.1 assisting MEU-IT in achieving the Permitted Purposes;
    • 7.1.2 achieving, independently or in collaboration with MEU-IT or through special purpose companies, the Permitted Purposes.
  • 7.2 MEU-IT contractually binds the third party:
    • 7.2.1 not to use the Data for anything falling within the scope of Section 2.2 or otherwise outside the scope of the Permitted Purposes;
    • 7.2.2 to apply protective measures which it itself is obliged to apply; and
    • 7.2.3 not to share these Data further save to the extent such further sharing is subject to contractual terms reflecting this Section.

8. Personal Data: Use and Sharing

MEU-IT may use, share with third parties or otherwise process any Data that is personal data, provided it has a legal basis to do so. MEU-IT Privacy Notice is available upon request at the company’s office.

9. Multiple Users and Transfer of Use

  • 9.1 If Client, on a basis permitted by Client contract for the corresponding Connected Product and/or Related Service, permits use by another natural or legal person (“Additional User”) while retaining Client’s position as a user, Client must:
    • 9.1.1 ensure the Additional Users have provided the necessary consents and permissions to allow use of Data as envisaged in this Annex; and
    • 9.1.2 act as the contact point for the Additional User for any matter regarding the use of the Data pursuant to this Annex.
  • 9.2 If Client, on a basis permitted by Client contract for the corresponding Connected Product and/or Related Service, transfer: (i) ownership of the product, or (ii) rights to use the product, and/or (ii) rights to receive Related Services, to a subsequent natural or legal person (“Subsequent User”), Client must:
    • 9.2.1 notify MEU-IT of the transfer;
    • 9.2.2 ensure the Subsequent User agrees to the terms of this Annex for the benefit of MEU-IT with regard to the Data produced subsequent to the transfer.
    The rights of MEU-IT to use Data generated prior to the transfer will not be affected by a transfer.
  • 9.3 If Client fails to comply with the above obligations and this leads to the illegal use and sharing of Data by MEU-IT or by any third party that may have received the Data on the basis of clause 7.1 above, Client must indemnify MEU-IT and / or the third party and hold it harmless in respect of any claims by the Subsequent or Additional User towards MEU-IT or the third party.

10. Termination / Expiry

  • 10.1 [OPTION 1: Annex to Purchase Agreement]: Two years after agreement on these terms Client may terminate this Annex at any time by giving MEU-IT a notice of 30 days.
  • 10.2 [OPTION 2: Annex to a Service Agreement with limited/unlimited term] Expiry and/or Termination of the Agreement will include termination of this Annex.
  • 10.3 Termination and/or expiry in accordance with clause 10.1 and 10.2 will not affect MEU-IT’s rights to use the Data as granted under this Annex to the extend generated prior to the effective date of termination/expiry.
  • 10.4 Regardless of the foregoing clauses, the following conditions shall enable immediate termination:
    • 10.4.1 upon the destruction of the Connected Product or permanent discontinuation of the Related Service, or when the Connected Product or Related Service is otherwise put out of service or loses its capacity to generate Data in an irreversible manner; or
    • 10.4.2 upon Client ceasing to qualify as a User within the meaning of Article 2(12) of the EU Data Act (i.e. losing ownership of the Connected Product or when the User’s rights with regard to the Connected Product under a rental, lease or similar agreement or the User’s rights with regard to the Related Service come to an end); or
    • 10.4.3 either party commits a material breach of any term of the Data Act Provisions and (where such breach is remediable) fails to remedy that breach within 60 days upon being notified in writing by the affected party to do so.

11. Liability

  • 11.1 In regard to the subject matter of this Annex, neither parties shall be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any:
    • 11.1.1 loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
    • 11.1.2 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
    • 11.1.3 other indirect loss or liability.
  • 11.2 In regard to the subject matter of this Annex, MEU-IT total aggregate liability arising out of or in connection with the Data Act Provisions EU Data Act whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise shall not exceed an amount equal to 2% of the Agreement.

12. Governing law and interpretation

  • 12.1 This Annex is governed by the Italian law.
  • 12.2 Any provision in this Annex must be interpreted so as to comply with 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.

13. Miscellaneous

13.1 Additional details and further information with regard to EU Data Act can be found at https://europe.mitsubishielectric.com/en/privacy/data-act/

14. Reseller Clause for insertion into contracts with Resellers

14.1 Where this Annex refers to an Agreement entered into between MEU-IT and a reseller of Products and or Related Services, it is understood that the reseller undertakes to ensure that the terms set forth in Annex will be integrated into the agreements with End Customers in the context of distribution of the products and/or related services to End Customers and that such terms are directly enforceable by MEU-IT itself vis a vis the End Customer.