General Terms and Conditions
1. Avrios Platform
1.1. Overview / Description of functions
With the Avrios-Platform, Avrios offers its customers a cloud-based software solution (software as a service) which allows them to manage and analyse a large amount of information about their vehicle and/or machine park by way of a Dashboard in easily comprehensible and clearly structured form. The Dashboard is design to help Avrios’ customers to improve their understanding of their cost structure. The aim is to produce a digital representation of the entire back office of the vehicle or machine park management, namely the administrative functions of incoming invoices accounting, cost centre accounting, purchasing and sale of vehicles or machines and the associated controlling (financial and partially with regard to compliance) via the Dashboard, and to a large extent to automate the associated processes.
1.2. Subject of the agreement
The parties agree by way of these contractual conditions that Avrios provides the customer with the opportunity to use the required software applications, accessed via a telecommunications connection, and storage space for its application data.
|Account||Personalised access to the user interface of Avrios-Platform.|
|Provider||Service provider whose offer is transmitted via the Avrios-Platform, e.g. insurance company, vehicle manufacturer, bank. etc.|
|Avrios||Avrios International, Inc.|
|Avrios-Platform||Software developed by Avrios (also referred to as “software”).|
|Dashboard||(Graphical) user interface.|
|Customer||User of the graphical user interface of the Avrios-Platform, e.g. operator or owner of utility vehicles and/or vehicle or machine parks (cars, lorries, construction machinery, etc.).|
|Customer data||Data uploaded to the Avrios-Platform by the customer, and/or data concerning a particular individual customer, its vehicles/machines, or its employees.|
|Management report||Report compiled from the customer’s data, and externally procured data. These usually include key performance indicators (KPI).|
|User interface||Part of the Avrios-Platform on which the collected data are displayed to the customer in graphically edited form (also referred to as “Dashboard” or “Management Dashboard”).|
|Software||Computer programme developed by Avrios in machine-readable object code, including the associated user documentation (also referred to as “Avrios-Platform”).|
2. APPLICATION SERVICE PROVIDING
The Avrios-Platform may only be used by persons who have read, understood and agreed to all provisions contained in this agreement.
By activating the “Agree” button the customer declares to have read and understood this agreement, and to agree to its contents. Each use of the Avrios-Platform is confirmation by the customer that it is in agreement with all provisions and conditions of this agreement.
The Avrios-Platform website is not intended for use by persons who are subject to a jurisdiction that prohibits or otherwise restricts access to the website or the distribution, publication, provision or use of the information it contains (due to the nationality or domicile of the respective person or for other reasons). Persons who are subject to such restrictions are not permitted to access the Avrios-Platform.
2.2. Right of usage
Avrios grants the customer the non-exclusive, non-transferrable, freely revocable right to use the Avrios-Platform subject to compliance with the following terms for a specified period via a telecommunications connection (hereinafter referred to as “contractual use”). Avrios expressly reserves all other rights.
Contractual use of the Avrios-Platform includes the right to use the user documentation.
The customer is under obligation to use the most current version of the Avrios-Platform at any one time, provided this may reasonably be expected to be acceptable. Where Avrios provides new versions, updates, upgrades or other new provisions with regard to the Avrios-Platform during the term of the agreement the aforementioned rights apply to the same.
The Avrios-Platform is operated from a server in Switzerland and/or the countries of the European Union and provided for use by the customer. These contractual terms apply also to any temporary use of the Avrios-Platform on hardware provided by the customer. The software will only be installed on hardware provided by the customer if this has been expressly agreed in exceptional cases. Avrios is in this case under no obligation to render any services with regard to the hardware. In particular, it is not liable for faults and defects which occur due to the customer providing defective hardware and/or failing to comply with the hardware recommendations and requirements provided by Avrios.
Access software is required to use the functions of the Avrios-Platform. This is the respective current version of the common internet browsers. This access software is not provided by Avrios. On the customer side, a normal PC in accordance with the current state of technology, equipped with an internet browser (only Firefox, Google Chrome) and a common software package, is usually adequate in terms of system requirements.
Avrios provides storage space on the servers for data generated by the customer through use of the Avrios-Platform, and/or necessary data. Further details on the scope of storage space provided and on the storing of user data are contained in a services specification to be provided separately where required.
The Avrios-Platform and the user data will be saved regularly on the servers, at least once every calendar day. The customer is responsible for compliance with retention duties under commercial and taxation law. The customer is responsible for ensuring in good time that data are backed up independently of Avrios.
2.4. Ownership of Avrios-Platform, trademark rights/copyrights
The customer is only entitled to the rights to contractual use of the Avrios-Platform expressly granted in the context of this agreement. All other rights, in particular copyrights, trademark and other rights and other usage and exploitation rights remain with Avrios and/or the respective owner of the property rights. The elements of the Avrios-Platform are therefore freely available for use only for browsing and/or the agreed purposes.
No element of the Avrios-Platform is designed so as to grant a licence or a right to use a picture, a registered trademark or a logo. Saving or printing individual pages and/or sections of the Avrios-Platform is permitted, provided neither the copyright notices nor any other legally protected designations are removed. No rights are granted in relation to software or elements on the Avrios-Platform by downloading or copying the Avrios-Platform or parts thereof. The (complete or partial) reproduction, transmission (electronic or by other means), modification, linking or use of the Avrios-Platform for public or commercial purposes are prohibited, unless this is expressly agreed otherwise below or Avrios has agreed in advance in writing. All property rights remain with the original rights holder. Avrios reserves the entire rights in respect of all elements on the website.
2.5. Fair use
The Avrios-Platform may not be used to commit crimes or violations of legal provisions or to promote the same; to transmit or disseminate a virus or to send other material which is malicious or technologically damaging or contrary to the principle of good faith or is otherwise offensive or obscene; to hack into parts thereof; to corrupt data; to cause disruption to other users; to violate the rights of another protected under copyright; to send unsolicited advertising or marketing material or to try to influence the performance or functionality of computer systems of Avrios-Platform or computer systems accessible through Avrios-Platform.
A violation of the fair use rule may lead to immediate suspension or closure of the account and/or legal consequences. The customer is liable for all damage incurred in connection with the violation of the fair use rule, in particular the costs of inspection and clear-up of computer systems.
Avrios endeavours to the best of its abilities to remedy disruptions to the use of the Avrios-Platform as quickly as possible. However, Avrios does not provide any guarantee with regard to the availability of the Avrios-Platform.
Avrios may suspend use of the Avrios-Platform at any time without consultation with the customer for the purposes of maintenance.
2.7. Registration / Account
Registration as a customer is required in order to use the Avrios-Platform. Registration is carried out by opening an account, agreeing to these terms and conditions.
All information required upon registration must be provided correctly and completely. Any later changes must be notified immediately to Avrios.
Where an account is opened for a legal entity the opening person must confirm that s/he is authorised to represent the legal entity and, in particular, to create an account for the same on the Avrios-Platform.
An Avrios-Platform allows access to the Dashboard and therefore to the services of Avrios.
A company’s account may be used via the website or a mobile app by one or several of its employees who are authorised to use the functions of Avrios in the name of, for the account of, and at the responsibility of the company.
The password must be stored safely and must not be disclosed to third parties.
The customer is solely responsible for all activity on the Avrios-Platform transacted via its account. Avrios is not liable for damage which may be incurred due to any unauthorised access of the customer’s account.
2.8. Types of processed data
A large range of different types of data may be uploaded and processed on the Avrios-Platform.
2.9. Data import and export
2.9.1. Data import
The data may be uploaded to the Avrios-Platform from a large number of different sources and by a number of different technological means.
2.9.2. Data export
The customer may call up the data stored and processed on Avrios-Platform in its web browser and from there copy it in text format (copy & paste). In addition, particular downloads are provided which allow the export of partial data sets to the required extent and in a number of different formats (e.g. CSV, Excel, etc.). Individual Dashboards may also be viewed in print view.
2.10. Data storage/processing
The imported data are stored by Avrios and otherwise combined with existing customer data and additional data, and processed.
Avrios enables the customer to manage and analyse its own data in easily comprehensive and clearly structured form. In addition, the anonymised comparison of data enables the recognition of “industry benchmarks”.
The data are stored in one or several split data banks, with readout being restricted to Avrios employees and the Avrios-Platform.
2.11. Data privacy
2.11.1. Personal customer data
Where the customer processes personal data on the Avrios-Platform (e.g. concerning its employees) it is solely responsible for compliance with data protection laws.
Avrios processes all data transmitted by the customer only on behalf of the same and within the scope of the customer’s instructions.
2.11.2. No forwarding of customer data
Avrios does not disclose the customer data imported by it in connection with the performance of its services, nor the individual management reports compiled by it.
Exceptions are transmissions of customer data in connection with providing additional services pursuant to Section 3, following consent having been given by the customer.
2.11.3. Processing of customer data by third parties
Customer data, in particular also personal data, may be processed by third parties on behalf of Avrios domestically and abroad (Switzerland and countries within the EU) for the purposes of monitoring conclusion and maintenance, implementation and processing of this agreement, manual editing of machine-read customer data and for collection purposes. The Avrios-Platform is currently operated on servers of third-party providers in Frankfurt, Germany and Dublin, Ireland.
All bodies which process data on behalf of another are under obligation to keep the data secret, to ensure adequate data protection and to process the data exclusively in the interest (for the purposes of) the Avrios. If the body which processes the data on behalf of another involves further contractors these obligations transfer also to the additional data processing contractor.
However, customer data processed abroad are not subject to Swiss law but are subject to the provisions of the respective national legal order, and may not benefit from the same level of protection as they would under Swiss law.
2.11.4. Data protection / Data security
Data protection is very important to Avrios and personal information is handled with confidentiality.
When transmitting information via the Avrios-Platform Avrios uses the security standard common for browsers worldwide.
However, any information transmitted over a public network such as the internet or an email service is potentially accessible by third parties. Avrios cannot guarantee the confidentiality of messages or documents transmitted via such open networks.
During your visit to the Avrios-Platform, Avrios automatically collects IP addresses and usage data. For the purposes of general improvement of the Avrios-Platform, so-called cookie technology may be used on the Avrios-Platform. A cookie is an information file, which by being stored on the hard drive ensures that your computer is recognised upon a subsequent visit to the Avrios-Platform. Avrios hereby informs you that, depending on your settings, your browser will inform you when it receives a cookie.
By means of optional activation of the appropriate interfaces by the customer, data is also sent to other platforms (e.g. Autoscout), which are not within the sphere of influence of Avrios.
2.11.5. Links to other websites
Avrios offers links to other websites on the Avrios-Platform. Activating such a link may cause the customer to leave the Avrios-Platform and to be forwarded to the website of a third party. Avrios has not conducted any checks on the websites connected with the Avrios-Platform through links and is not in any way responsible for the content of such websites. Any connection to or consultation of such third-party websites is carried out at the customer’s own risk.
2.12. Usage fee
A monthly usage fee is payable by the customer in accordance with the provisions of the individual agreement for all services provided by Avrios under Section 2.
2.12.2. Payment modalities
The usage fee is invoiced to the customer by Avrios plus any VAT and other taxes or charges. Avrios’ invoices are payable by the customer within 14 (fourteen) days with no discount and without any offsetting of counterclaims. Upon expiry of this time period the customer will be deemed in default without warning.
In the event of defaulting the customer will be liable to paying default interest of 5% and Avrios may immediately suspend all services and block access to the Avrios-Platform. This will not release the customer from the duty to render payment.
2.13.1. Extent of warranty
Avrios warrants that upon contractual use the Avrios-Platform will fulfil the functions described in the individual agreement. Otherwise there will be a defect covered by the warranty.
The customer acknowledges that the possibility of malfunction of the Avrios-Platform may not be entirely excluded and that no guarantee can be undertaken for the uninterrupted functioning of the Avrios-Platform.
2.13.2. Complaint obligations
The customer must issue a written complaint to Avrios regarding a defect within 30 calendar days of its ascertainment, and must provide adequate documentation.
2.13.3. Rectification of defects
Defects in the Avrios-Platform are rectified, at Avrios’ choice, by way of remedial works or replacement supply. Circumventions or suppressions of a defect are deemed permissible remedial works.
Where the remedial works or the replacement supply fail repeatedly the customer is entitled to withdraw from this agreement. Exercising the right to withdraw from the agreement ends the customer’s right to use the Avrios-Platform.
Any further warranty claims of the customer (including the right to reduction of the usage fee and to damages) are expressly excluded.
2.13.4. Limitation of the warranty for material defects
Avrios is released from its warranty obligations to the extent that a defect of the Avrios-Platform is due to circumstances for which Avrios is not responsible.
3. Additional/Optional Services of Avrios
A support phone number, which may change at any time and which is published on the Avrios-Platform, is available to the customer during office hours. Support is typically delivered by email and with the help of tools for screen sharing and where required, by way of remote access to the customer’s computer.
3.2. Setup and adjustments
Individual agreements may be concluded with the customer regarding the setup and adjustment of the Avrios-Platform where the typical amount of work required which is included in the remuneration for use of the Avrios-Platform is exceeded.
Individual consultancy mandates may be agreed with the customer on the basis of the data contained in the Avrios-Platform. Avrios supports the customer in the optimisation of its processes and business practices and strategies and will, where requested, use the analyses available in the Avrios-Platform as an aid. Such analysis of the data for consultancy purposes is only undertaken upon express instruction by the customer.
4. NO ADVICE SERVICE
Avrios does not provide advice services and the information provided is not to be interpreted in that manner. (Business) decisions should not be taken without seeking prior independent and professional advice on the basis of the information provided by Avrios. Exceptions are consultancy services provided to customers on the basis of consultancy mandates agreed separately in writing pursuant to Section 3.3.
Avrios is liable for direct damage only up to an amount equivalent to the annual usage fee. Any liability on the part of Avrios for indirect damage is herewith excluded. Limitations and exclusions of liability apply to both contractual and extra-contractual or quasi-contractual claims.
Liability on the part of Avrios for damage caused by intentional or grossly negligent conduct by Avrios is unaffected.
6. TERM AND TERMINATION
The term of use and the contractual term are one year, or a period individually agreed, from the date of account opening. It extends by a further year unless cancelled by the customer or Avrios subject to a notice period of two calendar months prior to the expiry of the fixed contract term and a year of extension.
Deletion of data must be applied for separately.
6.2. Termination for cause
Either party is entitled to terminate the agreement at any time without notice for cause. Cause is given especially in the event of a fundamental breach of contract which is not remedied within 30 calendar days.
7. Miscellaneous Provision
7.1. Electronic communication
Avrios is entitled to communicate via electronic channels (e.g. email, SMS) to the user addresses explicitly stated by the customer. Avrios may transmit data electronically if the customer has consented to the disclosure of its data to third parties.
Electronic communication channels are generally not secured against access by unauthorised third parties and therefore carry certain risks, e.g. lack of confidentiality, manipulation of contents and sender data, misdirection, delay, viruses etc.
Avrios is not liable for damage incurred in connection with electronic communication unless there is gross misconduct on the part of Avrios.
7.2. Assignment / Transfer
Avrios is entitled to transfer or assign the entire contractual relationship with all securities and ancillary rights to a third party domestically or abroad, such as for the purposes of outsourcing. Further assignments or return transfers are reserved. In this context, Avrios is also entitled at any time to make information related to the contractual relationship accessible to such a third party and other parties involved, with these parties being obligated to observe confidentiality.
Avrios is entitled to assign claims from the contractual relationship to third parties for collection purposes.
Any assignment of rights on the part of the customer is only permitted with the prior written authorisation of Avrios.
7.3. Severability clause
Should individual provisions of this agreement be invalid or incomplete or their performance become impossible this will not affect the validity of the remaining parts of the agreement. The invalid/impossible provision will be replaced by a provision the meaning and purpose of which approximates to the original provision as closely as possible in economical terms in a legally permissible way. The same applies to any gaps in the agreement.
7.4. Amendments to these provisions
Avrios reserves the right to amend these terms and conditions at any time and without giving reasons.
The amended provisions will be sent to the customer by email or post at the latest 14 calendar days prior to their coming into force. If the customer does not object within 14 calendar days by email or post the amended terms and conditions will be deemed accepted.
7.5. Applicable law and legal venue
This agreement is governed by Swiss law to the exclusion of the UN convention on the international sale of goods (CISG). The exclusive legal venue for all legal disputes arising from or in connection with this agreement is Zurich.