Customer Terms of Service for the Avrios Platform (“Customer Terms”)
Effective date: Januar 01, 2024
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These General Terms and Conditions ("GTC") govern your rights, liabilities and obligations in connection with the use of Avrios Software as a Service solutions for fleet and mobility management (the "Avrios Platform"). Unless you have concluded an individual written user agreement with us, your access to – and use of – the Avrios Platform is subject to these GTC.
"Avrios", "we", "our(s)" and "us" stands for Avrios International AG, domiciled at Weststrasse 50, 8003 Zurich/Switzerland, registered in the commercial register under number CHE-480.579.000, and - where relevant - our affiliated companies.
A "customer" is a legal entity (represented by a person acting on behalf of that entity) who concludes a contract with us regarding access to – and use of – the Avrios Platform ("User Contract"). A contract of use is concluded when a "customer account" is opened on the Avrios Platform or an "order form" is signed and is subject to the provisions of these GTC. In the following, we also use "you" as a synonym for "customer".
By opening a customer account, taking out a subscription or signing an order form, you confirm that you have the necessary authority to conclude the contract of use on behalf of the customer you represent and to bind the customer to the GTC.
1. USE OF THE AVRIOS PLATFORM
A "customer account" is a prerequisite for using the Avrios Platform. You open a customer account either via our self-service portal or we set up a customer account for you and provide you with the login information.
You can add or delete "authorized users" to your customer account at any time at your own discretion. Authorized users are persons associated with your organization who are authorized by you to access and use the Avrios Platform.
Each Authorized User must accept our User Terms upon initial registration. We reserve the right to change or update the User Terms at any time at our discretion, provided that such changes do not unreasonably restrict the function of the Avrios Platform or your rights under the User Agreement. In the event of material changes, we may require all authorized users to re-accept the updated User Terms.
It is your responsibility to ensure that (i) your authorized users use the provisions of the User Agreement and the User Terms and that (ii) their access data is stored securely and updated regularly.
Authorized Users may upload content such as vehicle or driver details to the Avrios Platform ("Customer Data"). We are not liable for the content of Customer Data or the manner in which you or your Authorized Users use the Avrios Platform to store or process the Customer Data. You warrant that you have the legally required permission to process the Customer Data on the Avrios Platform.
It is your responsibility to manage the access of your authorized users to the Avrios Platform in such a way that only authorized persons are able to access or change your customer data.
1.2 Technical requirements
Access to the Avrios Platform requires (i) an Internet connection with sufficient bandwidth (this is not the subject of the license agreement and is outside our responsibility), as well as (ii) an Internet browser (information on the currently supported models and versions can be found on our website). Your drivers need a smartphone with an autofocus camera and an e-mail address or cell phone number to check their driver's license. To use our compliance tools, your drivers must have access to a computer with an internet connection.
1.3 Free plan
We provide a basic version of the Avrios Platform free of charge ("Free Plan"). We reserve the right to change the scope and specification of the Free Plan at any time and at our discretion and to terminate it without any liability or obligation to you. You may terminate your access to the Free Plan and close your account at any time by notifying us in accordance with the Contract.
1.4 Chargeable packages and services
1.4.1 Subscriptions and automatic renewal
Certain features of the Avrios Platform and related services and "Service Levels" are only available as part of a "Paid Plan". By booking a Paid Plan (via our Self Service Portal or by signing an "Order Form"), you enter into a contract that is regularly renewed ("Subscription") in accordance with the provisions of these GTC and the corresponding Paid Plan.
A subscription begins on the "subscription start date" according to the plan you have booked or as shown on the order form. If you do not cancel a subscription in due time or otherwise in accordance with the provisions of these GTC, it will be renewed at the end of a subscription period for a further 12 months (each a "renewal period") or as otherwise indicated on the order form; for our monthly plans, the renewal period is always only one month.
1.4.2. Onboarding services
Some of our fee-based plans include so-called "onboarding services", such as support with uploading your customer data to the Avrios Platform or training your employees. These are one-off services that we usually provide in the first few weeks of the initial subscription period.
1.4.3 Other services ("Professional Services")
If necessary, we agree to the provision of other services (e.g. customer-specific services) within the framework of an order form or, if applicable, within the framework of a separate agreement. These can include configuration, development or training services ("Professional Services").
In this case, we grant you a non-exclusive, non-transferable right to use the relevant intellectual property rights to the extent necessary for your use of the Avrios Platform during the term of your subscriptions.
1.4.4 User fees and terms of payment
Subscription fees and fees for the use of onboarding services, and – unless otherwise agreed – Professional Services are payable in advance. Payment obligations cannot be terminated and usage fees already paid are non-refundable, unless otherwise provided for in these GTC.
For some of our fee-based plans, we only accept payment by credit card or direct debit. In these cases, the usage fee is due on the subscription start date. For payments by bank transfer, a payment term of 14 days applies.
Even when switching from a fee-based plan to our Free Plan, outstanding payment obligations from the fee-based plan remain in place and the services under the fee-based plan are deemed to have been provided or utilized until the end of the respective subscription period.
We are entitled to adjust the prices for the contractual services subject to a charge by an appropriate amount each year to compensate for increases in personnel and other costs. In the event of such a price adjustment, we shall notify the customer of this and the effective date in text form. Any price adjustments shall not apply to periods for which the customer has already made payments. If the price increase amounts to more than 8% of the previous price, the customer may object to this price increase with a notice period of two weeks from notification. A change in the price resulting from a change in the scope of features or the number of licenses booked shall not be deemed a price adjustment within the meaning of this clause.
All our information on fees and prices is exclusive of taxes (including value-added, sales, use or withholding taxes), duties or customs duties; these are to be borne in full by you. If we are legally obliged to do so, we will invoice our services to customers based outside Switzerland using the reverse charge procedure.
1.4.5 Credit notes
Credits to your customer account expire at the end of the contract, have no currency or exchange value and are neither transferable nor refundable.
1.4.6 Blocking or restriction of your customer account due to late payment
If you are in arrears with payment obligations, we reserve the right, without limiting our other rights and remedies, to block your access – and/or the access of your authorized users – to your customer account or to restrict the scope of services of our Free Plan until the amounts due have been paid in full. This is subject to us giving you at least ten (10) days' notice and you not disputing the relevant payment obligation on reasonable grounds.
2. OUR WARRANTIES
We operate the Avrios Platform and provide any onboarding and professional services with reasonable care and in compliance with industry standards and practices.
We are continuously developing the Avrios Platform and strive to offer you new, innovative functions and services on an ongoing basis. You will always have access to the latest version of the Avrios Platform within the scope of the plan you have subscribed to.
It is in the nature of our business model that we update or modify individual components of the Avrios Platform from time to time, and we are entitled to make corresponding changes to the Avrios Platform at any time, or to discontinue functions before the end of the subscription period. The subscription fees already paid in advance will be refunded to the customer on a pro rata basis for the remaining subscription period in which the function can no longer be used. Avrios accepts no liability for this and the customer is not entitled to not entitled to any form of compensation. In this case, Avrios and the customer have an extraordinary special right of termination in relation to the discontinued function.
We provide the Avrios Platform "as is" and "as available" and we do not warrant that the Avrios Platform will be uninterrupted online or error free.
Our promises or warranties in these GTC are conclusive. Any further promises or warranties regarding the contract of use are excluded to the extent permitted by law.
Your exclusive remedy in the event that we breach any of the warranties in this section is for us to make reasonable efforts to remedy the breach or offer you a reasonable alternative.
3. OUR DUTIES
3.1 Availability of the Avrios Platform
We strive to ensure that the Avrios Platform is available 7 days a week, 24 hours a day (except during maintenance activities).
As a rule, we carry out maintenance work on the Avrios Platform outside normal business hours. You can register with our update service if you wish to be informed of planned maintenance work in advance. In exceptional cases, however, it may also be necessary for us to take the Avrios Platform offline at short notice and without prior notice in order to carry out emergency maintenance.
Some of our fee-based plans contain commitments regarding the minimum availability of the Avrios Platform or certain response times of our support team ("Service Levels"). We will only compensate for a breach of these Service Levels through corresponding (time) credits ("Service Credits") in accordance with the terms of the relevant plan.
We are not liable for the unavailability or failure of the Avrios Platform if they are related to
(i) customers or third parties (with the exception of our subcontractors); or
(ii) are due in whole – or in part – to force majeure events.
3.2 Data protection
You agree that we may analyze your customer data for the purpose of continuously improving the quality of the Avrios Platform and providing anonymized benchmarks and metrics for all users of the Avrios Platform.
3.3 Onboarding and support services
Our online and virtual support resources are available to all authorized users free of charge. Additional support services via chat, e-mail or telephone as well as individual onboarding services can only be used as part of a Paid Plan and in accordance with the terms and service specifications of the respective plan.
3.4 Third-party negligence
When using the Avrios Platform, there may be restrictions, delays or other problems due to failures or disruptions in data transmission via communication networks and facilities, including the Internet. We accept no responsibility for any such delays, failures or other losses or damages.
3.5 Third-party websites
4. CUSTOMER OBLIGATIONS AND WARRANTIES
You represent and warrant that the person who opens or applies for a customer account, accepts these GTC, and thus concludes the user contract on behalf of the customer, is legally authorized and duly empowered to do so.
You represent and warrant that you have all necessary consents and permissions to enter your Customer Data into the Avrios Platform and that you and your Authorized Users will use the Avrios Platform only in compliance with all applicable laws, the User Agreement and the User Terms.
You agree that you and your Authorized Users may not use the Avrios Platform to (i) commit or encourage any crime or violation of law, (ii) store, transmit or distribute viruses or other malware, (iii) store or distribute data that is malicious, technologically harmful, in breach of good faith or otherwise unlawful, offensive or obscene, (iv) hack the Avrios Platform, (v) corrupt data, (vi) disrupt or interfere with other users, (vii) infringe the intellectual property rights of third parties, (viii) send unsolicited advertising or marketing messages, and/or (ix) attempt to influence the performance or functionality of the Avrios Platform or other IT systems accessible via the Avrios Platform.
5. INTELLECTUAL PROPERTY RIGHTS
Right to use the Avrios Platform
During the term of the user contract, we grant you and your authorized users the non-exclusive, non-transferable, non-sublicensable, revocable right to access the Avrios Platform within the scope of the provisions of the User Agreement, the User Terms and the Free Plan or any Paid Plan to which you have subscribed. We expressly reserve all other rights. All intellectual property rights in connection with the Avrios Platform (including any future general or customized configurations, adaptations, modifications or enhancements - even if based on any feedback from your authorized users or other employees) remain with us.
You agree not to download, copy or modify the Avrios Platform code in whole or in part. You are not permitted to use our trademarks, trade names or logos. Copyright notices appearing on the Avrios Platform or in reports generated by the Avrios Platform may not be deleted or altered.
All rights (in particular intellectual property rights) to data or documents that you or your authorized users have made available to us or uploaded to the Avrios Platform (in particular your customer data) remain with you.
6. DURATION AND TERMINATION
6.1 Duration of contract
The user agreement shall remain in force until all subscriptions concluded under the user agreement have expired or the user agreement itself ends. Termination of the user agreement also means termination of all active subscriptions for fee-based packages and the right to use the Avrios Platform as part of the Free Plan.
6.2 Ordinary termination
As already explained under "Using the Avrios Platform", subscriptions to fee-based plans are automatically renewed unless you cancel them in good time. The notice period for ordinary termination or notification of non-renewal of a subscription is sixty (60) days to the end of the respective subscription period for both parties. For our Paid Plans that renew on a monthly basis, a shortened notice period of seven (7) days applies.
If you inform us that you do not wish to renew an active subscription and do not wish to take advantage of another Paid Plan or our Free Plan, we will close your customer account at the end of the last active subscription period.
6.3 Termination for good cause
Without prejudice to any other rights or remedies, either party may terminate the User Agreement and/or active subscriptions in writing at any time with immediate effect if the other party:
(i) materially breaches its obligations under the User Agreement (including any agreements in an order form) or the General Terms and Conditions of Use and, in the case of a remediable breach, fails to remedy such breach within thirty (30) days despite being requested to do so; or
(ii) files a petition for bankruptcy or insolvency proceedings – or bankruptcy or insolvency proceedings are instituted against all or part of the other party's assets; is placed under receivership; enters into a voluntary arrangement with its creditors; ceases or threatens to cease to carry on business; or becomes the subject of a similar event or proceeding under any applicable law.
6.4 Consequences of termination
Upon termination of the User Agreement, your right to use the Avrios Platform shall terminate. Your authorized Users will no longer be authorized to access the Avrios Platform and all fees owed in connection with the User Agreement and outstanding at the time of termination will become due for payment immediately.
6.5 Transmission and deletion of customer data
You can download your customer data from the Avrios Platform at any time during the term of the user contract.
After termination of the contract of use, we will grant you the following for a reasonable period of time and subject to the terms and conditions of the license agreement: limited access to the Avrios Platform to enable you to download your customer data from the Avrios Platform even after the end of the contract. This requires that you send us a corresponding request within fifteen (15) days of termination of the user contract. There are no further obligations on our part to support you in downloading your customer data or to export your customer data on your behalf.
Thirty (30) days after the end of the contract, we will delete your customer data from the Avrios Platform in accordance with our data retention policy (with the exception of data that we may be required to retain by law).
7. LIMITATION OF LIABILITY
Claims for damages by the customer are excluded. Also excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by Avrios International AG, its legal representatives or vicarious agents. Cardinal obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner may regularly rely and/or obligations whose breach jeopardizes the achievement of the purpose of the contract. In the present case, these are the obligations in the context of the provision of our products to the respective customer in accordance with section 3.
In the event of a breach of material contractual obligations (cardinal obligations), Avrios International AG shall only be liable for the foreseeable damage typical of the contract if this was caused by simple negligence, unless the user's claims for damages are based on injury to life, limb or health.
The restrictions according to the above points also apply in favor of the legal representatives and vicarious agents of Avrios International AG if claims are asserted directly against them.
The provisions of the German Product Liability Act (ProdHaftG) remain unaffected. Likewise, data protection claims are not covered by the aforementioned limitations of liability.
8.1 Confidential information
In our work together under the User Agreement, one party ("Disclosing Party") may disclose to the other party ("Receiving Party") "Confidential Information", which means anything that is reasonably considered confidential given the nature of the information and the circumstances of the disclosure, including non-public business, product, technology and marketing information. Your Confidential Information includes, in particular, your customer data. The designation "confidential" is a clear indication to the receiving party that the relevant data or documents are confidential. Notwithstanding the foregoing, Confidential Information shall not include any data or documentation that (i) is or is made generally available to the public without breach of any obligation to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party, (iii) was received from a third party without breach of any obligation to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
If either party discloses Confidential Information to the other party, the Receiving Party agrees to (i) keep the Confidential Information secret and confidential, (ii) use the Confidential Information solely to fulfill its obligations under the User Agreement, and (iii) disclose the Confidential Information only in accordance with this Section ("Disclosure") or with the written consent of the other party.
A Receiving Party may only disclose Confidential Information to its officers, employees, consultants and subcontractors who need to know the relevant Confidential Information for the purpose of performing its obligations under or in connection with the Contract, provided that the Receiving Party ensures that each such person to whom the Confidential Information is disclosed complies with the obligations set out in this Section ("Disclosure").
A Receiving Party may also disclose Confidential Information to the minimum extent required (i) by an order of a court of competent jurisdiction or any competent regulatory, judicial, governmental or similar authority or taxing authority or (ii) by the laws or regulations of any country to which the Receiving Party's affairs are subject.
8.3 Return of confidential information
A Receiving Party shall at all times destroy (or return to the Disclosing Party) any Confidential Information (or any part thereof in any form) provided to it immediately upon request of the Disclosing Party.
8.4 Continued existence
The obligations of the parties under this section "CONFIDENTIALITY" shall continue for a period of three (3) years from the end of the User Agreement.
9.1 Your indemnification by us
We agree to defend you from and against any and all third party claims, actions, suits, proceedings and demands alleging that your use of the Avrios Platform in accordance with this Agreement infringes the intellectual property rights of any third party or is unlawful (a "Claim Against You"), and we will indemnify you against all reasonable attorneys' fees and costs incurred by you in connection therewith and any judgment awarded against you by a court of competent jurisdiction.
Claims for damages, however, come with the proviso that we are not liable if the claim arises out of any modification, integration, or enhancement of the Avrios Platform not made by us or relates to your Customer Data. You agree to (i) promptly notify us in writing of any claim brought against you and permit us to assume the exclusive defense and control of the proceeding and (ii) cooperate with all reasonable requests to assist in our defense and settlement of the matter. With respect to any potential Claims Against You under this paragraph, our liability and your exclusive remedies are conclusively governed by the foregoing provisions.
9.2 Our indemnification by you
You agree to defend us from and against any and all third party claims, actions, suits, proceedings and demands arising out of or relating to any breach of the User Agreement or the User Terms by you or your Authorized Users (a "Claim Against Us"), and you will indemnify us for all reasonable attorneys' fees, damages and other costs incurred by us in connection with any Claim Against Us. We agree to (i) promptly notify you in writing of any claim made against us and allow you to assume the exclusive defense and control of the proceeding and (ii) cooperate with any reasonable requests to assist in your defense and settlement of the matter. With respect to any potential Claims Against Us under this paragraph, your liability in this regard and our exclusive remedies are conclusively governed by the foregoing provisions.
9.3 Limitation of the obligation to indemnify
Notwithstanding the provisions of the preceding two sections, (i) an Indemnified Party shall always be free to select its own counsel if it bears the cost thereof; and (ii) an Indemnified Party may not enter into a Settlement without the express written consent of the Indemnified Party (such consent not to be unreasonably withheld).
10. OTHER PROVISIONS
10.1 Electronic Communication
We communicate with you and your authorized users electronically, in particular via the messenger function of the Avrios Platform and by e-mail to the e-mail addresses you have provided.
Electronic communication channels are generally not secured against access by unauthorized third parties and therefore entail corresponding risks, e.g. lack of access by third parties.
Confidentiality, manipulation of content and sender data, misdirection, delay, viruses, etc. in the absence of gross misconduct on our part, we accept no responsibility for damage in connection with the use of electronic communication channels.
10.2 Force Majeure
Neither party is liable for failures or delays in the fulfillment of its obligations under the user contract due to events beyond the control of the party concerned, such as denial of service attacks, failure of third parties (hosting providers, energy suppliers, etc.), strikes, supply bottlenecks, riots, fires, war, terrorism, epidemics, pandemics, government measures or other cases of force majeure.
Neither party may assign or delegate its rights or obligations under the license agreement without the prior written consent of the other party (which may not be withheld without good cause). Notwithstanding the foregoing, the parties may transfer the license agreement as a whole to a group company without the consent of the other party; the same shall apply mutatis mutandis to a merger, acquisition or transfer, reorganization or disposal of all or a significant part of the assets of the transferring party. Our right to subcontract remains unaffected, provided that we remain responsible for our subcontractors as a whole.
We are entitled at any time to assign, pledge, encumber or otherwise deal with our claims arising from the contract of use for the purpose of collecting fees due. In this context, we are authorized at any time to make information relating to the contractual relationship available to other parties to the proceedings, whereby these parties are obliged to maintain confidentiality.
10.4 Severability Clause
Should individual provisions of the user agreement or the GTC be invalid, illegal or unenforceable, this shall not affect the validity of the remaining parts of the user agreement. The invalid, illegal or unenforceable provision shall be replaced by a provision whose meaning and purpose corresponds as closely as possible to the original provision in a commercially legally permissible manner.
Please send notifications concerning the GTC by e-mail to email@example.com.
We are authorized to send you communications to the email address(es) associated with your customer account or via the Avrios Platform.
We reserve the right to revise and adapt the GTC and other components of the user agreement from time to time as our business model develops. In this case, we will inform you with reasonable advance notice before any significant changes come into force.
Amendments to our GTC shall also enter into force on the date specified in our notification. Any continued use of the Avrios Platform by you or your Authorized Users after the effective date of the amended GTC constitutes your acceptance of the amended GTC.
In the event that you do not wish to continue using the Avrios Platform under the amended GTC and notify us of your objection within ten (10) days of our notification that we will amend the GTC, the user contract shall automatically end at the end of the contractually agreed subscription period without any further notification being required. In this case, the current version of the GTC at that time will remain applicable until the end of your contractually agreed subscription period.
The application of your GTC is excluded and no Avrios employee is authorized to agree to any changes to the GTC unless they have been recorded on a separate order form with precise reference to the provision to be changed.
10.7 Entire agreement
The contract of use comprises the entire agreement between the parties with regard to its subject matter and replaces all previous drafts, contracts, promises, assurances, warranties and agreements of any kind, whether written or verbal.
10.8 No Waiver
No failure or delay by a party in exercising any right or remedy provided for in this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.9 Enforcement of rights by third parties
With the exception of the parties to the contract of use, their legal successors and authorized assignees, no one has the right to enforce the provisions of the contract of use.
10.10 Continued existence
Provisions of the license agreement which, by their nature, are intended to termination of the contract of use, apply after termination or expiry of the contract of use. The User Agreement continues (including, but not limited to, the sections "CONFIDENTIALITY", "USER FEES AND PAYMENT CONDITIONS", "INTELLECTUAL PROPERTY RIGHTS" AND "LIMITATION OF LIABILITY").
10.11 Applicable law and place of jurisdiction
This contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and any application of private international law (IPR). The place of jurisdiction for all legal disputes arising from or in connection with this contract is Berlin.