Customer Terms of Service for the Avrios Platform
These Customer Terms of Service (the “Customer Terms”) describe your rights, responsibilities, and obligations when using the Avrios software-as-a-service solutions for fleet and mobility management (the “Avrios Platform”). Unless you have entered into an individual written agreement with us, your access to and use of the Avrios Platform is governed by these Customer Terms.
All “Authorized Users” who access and use the Avrios Platform on your behalf (e.g. fleet managers) must comply with our User Terms of Service (the “User Terms”).
“Avrios”, “we,” “our” and “us” means Avrios International AG, a limited company with registered office at Weststrasse 50, 8003 Zurich, Switzerland, and registered number CHE-480.579.000, and, where appropriate, our affiliate companies within our group.
A “Customer” is a legal entity, represented by an individual who works for that entity, that enters into a legally binding contract with us (by way of creating an account or signing an “Order Form” subject to the Customer Terms) regarding the access to and the use of the Avrios Platform as further described below (the “Agreement”). We may use “you” as a synonym for Customer.
Any individual creating a Customer Account, subscribing to a Paid Plan, or signing an Order Form, hereby represents to have the required authority to enter into and bind the Customer to these Customer Terms.
1. Use of the avrios platform
Each Customer requires a “Customer Account” in order to access and use the Avrios Platform. You either create a Customer Account through our self-service interface or we set up a Customer Account on your behalf and provide you with the login information.
You may add or remove “Authorized Users” to or from your Customer Account at any time and at your discretion. Authorized Users are individuals associated with your organisation who are authorized by you to access and use the Avrios Platform on your behalf.
We require each Authorized User to agree to the User Terms upon initial log-in and whenever we have made material changes to the User Terms. We reserve the right to amend or update the User Terms at our discretion at any time, provided that those changes do not unreasonably limit the functionality of the Avrios Platform or your rights under this Agreement.
It is your responsibility to ensure that (i) your Authorized Users comply with the Agreement and the User Terms and that (ii) all login details are kept secure and updated when Authorized Users are changed.
Authorized Users may upload content to the Avrios Platform, such as information about vehicles or drivers (“Customer Data”). We are not responsible for the content of any Customer Data or the way your or your Authorized Users choose to use the Avrios Platform to store or process such Customer Data. You warrant that you have all permissions required by law to process the Customer Data within the Avrios Platform.
It is your responsibility to set the controls in the Avrios Platform so that particular Customer Data is accessible only by, and may be changed only by, those individuals whom you intend to have access to or to be able to change it.
1.2 Technical Requirements
1.3 Free Plan
1.4 Paid Plans and Services
1.4.1 Subscriptions and auto-renewal
1.4.2. Onboarding services
1.4.3 Professional Services
To the extent required to use the Avrios Platform, we grant you a non-exclusive, non-transferable right to use the relevant intellectual property rights related to the Professional Services during the Subscription term.
1.4.4 Fees and payment terms
For some of the Paid Plans available via our self-service interface, we only accept credit card or direct debit as a payment method. In these cases, payments are due upon the Subscription Start Date. Where we accept bank transfers, payments are due within fourteen (14) days of the invoice date.
If you choose to downgrade from a Paid Plan to our Free Plan, you will remain responsible for any unpaid fees under the Paid Plan, and services under the Paid Plan will be deemed fully performed and delivered upon expiration of the active Subscription term of the Paid Plan.
All fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes (collectively, “Taxes”), which, if applicable, shall be payable by Customer in addition. Where required by law we will reverse charge any value-added tax (VAT) to our non-Swiss Customers.
1.4.6 Account Suspension or Downgrade for non-payment
2. Our warranties
We are constantly improving and updating the Avrios Platform and strive to provide you with new and innovative features and services. You will always have access to the latest version of the Avrios Platform within the scope of any Paid Plan you may have subscribed to.
We may from time to time update or modify certain elements of the Avrios Platform and you agree that a key characteristic of our service is that changes to the Avrios Platform will take place over time and this is an important basis on which we grant you access to the Avrios Platform.
We provide the Avrios Platform on an “as is” and “as available” basis and we do not warrant that the Avrios Platform will operate uninterrupted or error-free.
The express undertakings and warranties given by us in this Agreement are in lieu of all other warranties, conditions, terms, undertakings and obligations on the part of Avrios, whether express or implied by statute, common law, custom, trade usage, course of dealing or in any other way. All of those are excluded to the fullest extent permitted by law.
If the services carried out by us under the Agreement do not comply with the warranties in this section, we will use reasonable endeavours to re-perform the affected service or will provide you with an alternative means of carrying out the task. That successful re-performance or the provision of the alternative means shall be your sole and exclusive remedy for any breach of the warranties in this section.
3. Our obligations
3.1 Availability of the Avrios Platform
We will usually plan and carry out maintenance of the Avrios Platform outside of business hours. You may register with us to stay informed about any scheduled maintenance activities, but it may be necessary from time to time to suspend use of the Avrios Platform at any time to carry out emergency maintenance.
Some of our Paid Plans include certain uptime commitments. If we fall short of any uptime commitment as set out in a Paid Plan, you agree that your sole and exclusive remedy for our failure to operate the Avrios Platform as per the committed availability level shall be “Service Credits” as defined in such Paid Plan.
We exclude any liability for unavailability or downtime of the Avrios Platform due to (i) customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by Avrios to support the operation of the Avrios Platform), or (ii) outages or disruptions attributable in whole or in part to force majeure events.
3.2 Processing of Customer Data
3.2.1 Personal Data
- the terms “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Processing” bear the respective meanings given them in EU Regulation 2016/679 (“GDPR”); and
- “Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) The Swiss Federal Act on Data Protection (ii) GDPR; (iii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR (including, in the UK, the Data Protection Act 2018 and (to the extent in force) the UK GDPR as defined in The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“UK GDPR“)); and (iv) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) (including, in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003); in each case, as updated, amended or replaced from time to time; and
- “Customer Personal Data” means any personal data provided by or on behalf of Customer and as included in Customer Data.
Where we process Customer Personal Data, we will: (i) comply with the provisions and obligations imposed on a Processor by the GDPR, including the stipulations set out in Article 28(3)(a)-(h) which form a part of, and are incorporated into, this Agreement as if they were set out in full, and the reference to “documented instructions” in Article 28(3)(a) will include the provisions of this Agreement; and (ii) not disclose any Personal Data to a third party other than at your written request or as expressly provided for in this Agreement.
If we receive any complaint, notice, or communication which relates to the processing of Personal Data by us in connection with this Agreement, or to either party’s compliance with the Data Protection Laws, or if any Personal Data processed in connection with this Agreement is subject to a personal data breach (as defined in the GDPR), we will notify you without undue delay and provide you with reasonable cooperation and assistance in relation to any such complaint, notice, communication, or personal data breach.
We may engage Avrios´ affiliates and third parties as sub-processors to process Personal Data for the purpose of performing the services under this Agreement. A current list of our third party sub-processors is available on our website. We have entered into a written agreement with each sub-processor containing data protection obligations and processing of Personal Data not less protective than those stipulated by this Agreement.
We may engage new third party sub-processors, and will provide notice and details of any such third-party sub-processor in advance of any changes. You are required to register with us to receive such notifications.
You will have 14 days from our notification to you, to notify us of any grounds for objection to such change. If you do not notify us of any objection within that 14 day period, you will be deemed to have accepted the new third party sub-processor. If you have reasonable grounds for objection, we will in good faith discuss and agree on a way to provide the services without the offending sub-processor. If we cannot agree on a way forward, you may terminate this Agreement with 30 days’ written notice to us without penalty.
3.3 Onboarding and Support Services
3.4 Third-party failure
3.5 Third-party websites
4. Customer obligations and warranties
You agree that you and your Authorised Users shall not use the Avrios Platform to (i) commit crimes or violations of legal provisions or to promote the same; (ii) to store, transmit or disseminate a virus; (iii) to store or send material which is malicious or technologically damaging or contrary to the principle of good faith or is otherwise illegal, offensive or obscene; (iv) to hack into parts of the Avrios Platform; (v) to corrupt data; (vi) to cause disruption to other users; (vii) to violate the intellectual property rights of others; (viii) to send unsolicited advertising or marketing material; or (ix) to try to influence the performance or functionality of the Avrios Platform or other IT systems accessible through the Avrios Platform.
5. Ownership and proprietary rights
You agree not to download, copy, or modify the software comprising the Avrios Platform or parts thereof.
You are not allowed to use our trademarks, trade names, or logos. Any copyright notices displayed via the Avrios Platform or reports produced through its use must not be removed or altered.
You retain all rights including intellectual property rights in any material or data provided by you or your Authorized Users to Avrios under this Agreement, including Customer Data.
6. Term and termination
6.1 Term of the Agreement
6.2 Termination without cause
Either party may give the other party notice of non-renewal at least sixty (60) days before the end of the applicable subscription term, such notice to take effect at the end of the applicable subscription term. For our Paid Plans that renew on a month-by-month basis the notice period for non-renewal is seven (7) days.
If you give us notice of non-renewal for an active Subscription and choose not to subscribe to a different Paid Plan or not to downgrade to our Free Plan, we will close your Customer Account upon expiration of the then active Subscription term.
6.3 Termination for Cause
i) is in material breach of any of its obligations under this Agreement, the User Terms and/or an Order Form and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days following notice of the breach; or
ii) voluntarily files a petition under bankruptcy or insolvency law; shall have a receiver or administrative receiver appointed over it or any of its assets; or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business; or is subject to any analogous event or proceeding in any applicable jurisdiction.
6.4 Effect of Termination
6.5 Transfer and deletion of Customer Data
Upon termination of the Agreement we will grant you limited access to the Avrios Platform for a reasonable period and subject to the terms of this Agreement for the sole purpose of you downloading all Customer Data held within the Avrios Platform, provided that you submit a respective request within fifteen (15) days of the effective date of termination. Except as set out above, we are not obliged to support you in the downloading of your Customer Data or export your Customer Data on your behalf.
Thirty (30) days after the effective date of termination of the Agreement we will delete all Customer Data from the Avrios Platform in line with our data retention policy (save any data that we may be required to retain by law).
7. Limitation on liability
No provision of the Agreement limits your liability for breach of the sections “OWNERSHIP AND PROPRIETARY RIGHTS’ or “YOUR INDEMNIFICATION OF US”.
Subject to the preceding two paragraphs, neither party shall be liable to the other in respect of the following losses: (i) loss of profits, (ii) loss of sales or business, (iii) loss of anticipated savings, (iv) loss of use or corruption of software, data or information, and (v) indirect or consequential loss or damages.
Subject to the foregoing provisions, our total liability (in contract, tort (including negligence), breach of statutory duty or otherwise) to you arising under or in connection with the Agreement shall not exceed the total fees paid by you to us in the twelve months prior to the occurrence of the event giving rise to the claim.
8.1 Confidential Information
A Receiving Party may disclose Confidential Information to any of its officers, employees, advisers and sub-contractors that need to know the relevant Confidential Information for the purpose of the performance of obligations under or in connection with the Agreement only, provided that the Receiving Party procures 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 by (i) any order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or taxation authority of competent jurisdiction, or (ii) the laws or regulations of any country to which that Receiving Party’s affairs are subject.
8.3 Return of confidential information
9.1 Our indemnification of you
9.2 Your indemnification of us
9.3 Limitations on indemnifications
10. Miscellaneous provisions
10.1 Electronic Communication
10.2 Force Majeure
We may at any time assign, mortgage, charge, or deal in any other manner with our rights to collect fees under the Agreement. In this context, we shall be entitled at any time to make information related to the contractual relationship accessible to such third parties and other parties involved, with these parties being obliged to observe confidentiality.
10.4 Severability Clause
Any revision of our Customer Terms will become effective on the date set forth in our notice. If you or any Authorized User accesses or uses the Avrios Platforms after the effective date set out in such notice, that use will constitute your acceptance of the revised Customer Terms.
If you do not want to continue to use the Avrios Platform under the revised Customer Terms, and raise such objection within 10 days of being notified of the new Customer Terms, then the Agreement will automatically terminate at the end of the contractually committed Subscription Term without the need for notice. In this case, the then current version of the Customer Terms will continue to apply until the end of your then contractually committed Subscription term.
No terms provided by you to us shall form part of this Agreement, and no staff of Avrios has any authority to agree on amendments to Customer Terms unless agreed by way of separate Order Form referencing the precise term to be amended.
10.7 Entire agreement
10.8 No Waiver
10.9 Third Parties
CONFIDENTIALITY, FEES AND PAYMENT, OWNERSHIP AND PROPRIETARY RIGHTS AND LIMITATION ON LIABILITY).
10.11 Applicable law and legal venue
General Terms and Condition1. 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 aim is to produce a digital representation of the entire back office of the vehicle or asset management, driver management and corporate car sharing 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. 1.3. Definitions
|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).|
|Provider||Service provider whose offer is transmitted via the Avrios-Platform, e.g insurance company, vehicle manufacturer, Bank, etc.|
|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 program developed by Avrios in machinereadable object code, including the associated user documentation (also referred to as “Avrios-Platform”).|