Customer Terms of Service for the Avrios Platform

(“Customer Terms”)

Effective date: December 7, 2020

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”).

Introduction

“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

1.1 Access

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

The access and use of the Avrios Platform requires (i) an internet connection with sufficient bandwidth which is outside the scope of the Agreement and not our responsibility and (ii) an internet browser (information on the currently supported browsers and versions can be found on our website). To use Driver License Check, it is required that drivers have both a smartphone with a camera featuring autofocus and an email address or mobile phone number. To access our compliance tools, drivers need a computer with internet connection.

1.3 Free Plan

We offer a basic version of the Avrios Platform free of charge (“Free Plan”). We are entitled to change the scope and specifications of the Free Plan any time and at our discretion, including the discontinuation of the Free Plan, without any liability to you whatsoever. You may terminate your access to the Free Plan and close your Customer Account at any time by notifying us in accordance with this Agreement.

1.4 Paid Plans and Services

1.4.1  Subscriptions and auto-renewal

Certain features of the Avrios Platform and related services and service levels are subject to a fee and require you to purchase one of our “Paid Plans”. By signing up for a Paid Plan (through our self-service interface or by signing an “Order Form”) you enter into a “Subscription” as per the provisions of this Agreement and the respective Paid Plan. Subscriptions commence on the “Subscription Start Date” as determined by the Paid Plan you have chosen to subscribe to or as agreed upon in an Order Form. Unless terminated in accordance with the applicable notice period or otherwise in accordance with this Agreement, a Subscription automatically renews at the end of a subscription period and continues for another subscription term (each a “Renewal Term”) of twelve (12) months or as otherwise agreed in an Order Form, save that any Subscriptions under our monthly Plans renew on a month by month basis.

1.4.2. Onboarding services

Some of our Paid Plans include certain “Onboarding services” such as assistance with uploading your Customer Data to the Avrios Platform or user training as further specified in the provisions in the respective Paid Plan. Onboarding Services are a non-recurring one-off service and typically performed during the first weeks of an initial Subscription term.

1.4.3 Professional Services

We may agree under an Order Form or separate “Statement of Work” for you to purchase certain Professional Services (including configuration, implementation, customisation, and training services) as set out in that applicable Order Form or Statement of Work.

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

Unless stated otherwise in an Order Form or Statement of Work, any fees for Subscriptions, Onboarding Services, or Professional Services must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees paid are non-refundable.

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.

1.4.5 Credits

Any credits that may accrue to your Customer Account, will expire following expiration or termination of the Agreement, will have no currency or exchange value, and will not be transferable or refundable.

1.4.6 Account Suspension or Downgrade for non-payment

If any fees owed to us by you (excluding amounts disputed reasonably and in good faith) are not paid on the due date for payment, we may, without limiting our other rights and remedies, suspend your and your Authorized Users’ access to your Customer Account or downgrade any Paid Plan to our Free Plan until those amounts are paid in full, so long as we have given you ten (10) or more days’ prior notice that we intend to take such action.

2. Our warranties

We will operate the Avrios Platform and perform any applicable Onboarding Services and Professional Services under the Agreement using reasonable care and skill, in accordance with good industry practice and in a good workmanlike manner.

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 use commercially reasonable efforts to ensure that the Avrios Platform is available for use 24 hours a day, 7 days a week, excluding downtime for maintenance purposes.

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 following definitions apply:
  1. 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
  2. “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
  3. “Customer Personal Data” means any personal data provided by or on behalf of Customer and as included in Customer Data.
Each party to the Agreement will comply with the provisions and obligations imposed on it by the Data Protection Laws when processing Personal Data in connection with this Agreement.

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.

To the extent that we obtain and control Personal Data relating to your staff and/or representatives outside of Customer Data, we shall process such Personal Data in accordance with our Privacy Policy.

3.2.2 Analytics

You acknowledge that we will, from time to time, undertake analysis of Customer Data to constantly improve the quality of our Avrios Platform and for the purpose of providing anonymous aggregate benchmarks and comparisons to all of its users.

3.3 Onboarding and Support Services

Our online and virtual support resources are available to all Authorized Users free of charge. Additional Support Services (like chat, email, phone) and individual Onboarding Services are only available to subscribers to a Paid Plan and subject to the provisions and service level commitments of the respective plan.

3.4 Third-party failure

We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Avrios Platform may be subject to limitations, delays and other problems inherent in the use of such communication facilities.

3.5 Third-party websites

Links to third party websites may be presented to Authorized Users through the Avrios Platform and cause an Authorized User to leave the Avrios Platform when activating such a link. We have no responsibility for the content of those third-party websites and it is your responsibility to check the terms of those third-party websites.

4. Customer obligations and warranties

You represent and warrant that the individual creating a Customer Account and accepting this Agreement has the legal capacity to enter into this Agreement and is duly authorised to do so. You represent and warrant that you have all necessary licences and permissions to enter Customer Data into the Avrios Platform and that you and your Authorized Users shall use the Avrios Platform in accordance with all applicable laws, this Agreement and the User Terms.

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

For the duration of the Subscription, we grant you and your Authorized Users the non-exclusive, non-transferable, non-sublicensable, revocable right to access, interact with, and use the Avrios Platform subject to compliance with the terms of the Agreement and the User Terms and any limitations set out in the Free Plan or any applicable Paid Plan. We expressly reserve all other rights. In particular, we own and will continue to own the Avrios Platform, including all related intellectual property rights (including any customisations, configuration or modifications to the Avrios Platform whether for a specific customer or not, and any feedback on the Avrios Platform provided by your Authorized Users or other staff).

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

The Agreement remains effective until any Subscription under the Agreement has expired or the Agreement itself terminates. Termination of the Agreement will terminate any active Subscription under a Paid Plan and the right to use the Avrios Platform under the Free Plan.

6.2 Termination without cause

As outlined in section “Use of the Avrios Platform”, a Subscription to a Paid Plan automatically renews if you do not take action ahead of time.

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

Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement and/or a Paid Plan or the Free Plan without liability to the other at any time with immediate effect upon written notice if the other party:

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

Upon termination for any reason, your rights of use granted under this Agreement shall immediately terminate, your Authorized Users shall immediately cease the use of the Avrios Platform, and you shall promptly pay all fees due under this Agreement.

6.5 Transfer and deletion of Customer Data

You may at any time download your Customer Data from the Avrios Platform during the term of this Agreement.

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 any liability for (i) death or personal injury caused by negligence, (ii) damages caused intentionally or by gross negligence, or (iii) liability that, by applicable law, cannot be limited.

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. Confidentiality

8.1 Confidential Information

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labelled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

8.2 Disclosure

Should either party to the Agreement disclose any Confidential Information to the other, the Receiving Party undertakes that it shall (i) keep the Confidential Information secret and confidential, (ii) not use or exploit the Confidential Information in any way, except for in connection with the performance of its obligations under the Agreement, and (iii) only disclose the Confidential Information in accordance with this section “Disclosure” or with the written consent of the other party.

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

If requested by a Disclosing Party at any time, the Receiving Party shall immediately destroy (or return to the Disclosing Party) all documents and other records of Confidential Information (or any of it in any form) that have been supplied to it.

8.4 Survival

Notwithstanding the termination of this Agreement, the obligations of the parties under this section “CONFIDENTIALITY” shall continue for a period of 2 (two) years from the date of termination of the Agreement.

9. Indemnification

9.1 Our indemnification of you

We will defend you from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Avrios Platform as permitted under the Agreement infringes or misappropriates a third party’s intellectual property rights (a “Claim Against You”), and will indemnify you for all reasonable attorney’s fees incurred and court-awarded damages finally awarded against you in connection with, a Claim Against You; provided, however, that we will have no liability if a Claim Against You arises from Customer Data or any modification, combination or development of the Avrios Platform that is not performed by us. You must provide us with prompt written notice of any Claim Against You and allow us the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting our defence and settlement of such matter. This section states our sole liability with respect to, and your exclusive remedy against us for, any Claim Against You.

9.2 Your indemnification of us

You will defend us from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to your or your Authorized Users’ violation of the Agreement or the User Terms (a “Claim Against Us”), and will indemnify us for all reasonable attorney’s fees incurred and damages and other costs incurred by us in connection with a Claim Against Us. We must provide you with prompt written notice of any Claim Against Us and allow you the right to assume the exclusive defence and control, and cooperate with any reasonable requests assisting your defence and settlement of such matter. This section states your sole liability with respect to, and our exclusive remedy against you for any Claim Against Us.

9.3 Limitations on indemnifications

Notwithstanding anything contained in the two preceding sections, (i) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (ii) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld).

10. Miscellaneous provisions

10.1 Electronic Communication

We shall be entitled to communicate with you and your Authorized Users via email to the email addresses provided to us by you and other electronic communication channels, including the Avrios Platform itself. 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. Unless there is gross misconduct on our part you shall not be entitled to hold us liable for damage incurred in connection with the use of electronic communication channels.

10.2 Force Majeure

A party shall not be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of that party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, epidemics, pandemics, or governmental action.

10.3 Assignment/Transfer

Neither party may assign or delegate any of its rights or obligations under the Agreement, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the above, Avrios may subcontract its obligations under this Agreement, provided that it remains responsible for all subcontractors.

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

Should individual provisions of the Agreement be invalid, illegal or unenforceable this will not affect the validity of the remaining parts of the Agreement. The invalid/illegal/unenforceable provision shall be replaced by a provision the meaning and purpose of which approximates to the original provision as closely as possible in commercial terms in a legally permissible way.

10.5 Notices

Notices from you to us must be submitted by eMail to legal@avrios.com. We may give you notice by email to the email address(es) associated with your Customer Account or by messaging you through the Avrios Platform.

10.6 Amendments

As our business evolves, we may change these Customer Terms and the other components of the Agreement. If we make a material change to the Agreement, we will provide you with reasonable notice prior to the change taking effect.

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

The Agreement constitutes the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral.

10.8 No Waiver

No failure or delay by a party to exercise any right or remedy provided under 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 such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

10.9 Third Parties

No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

10.10 Survival

Clauses that by their nature are intended to survive termination of the Agreement, will survive any termination or expiration of the Agreement (including but not limited to the sections entitled
CONFIDENTIALITY, FEES AND PAYMENT, OWNERSHIP AND PROPRIETARY RIGHTS AND LIMITATION ON LIABILITY).

10.11 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) and any application of the conflict of laws (IPR). The legal venue for all legal disputes arising from or in connection with this Agreement is Zurich, Switzerland, save that we shall have the right to institute legal action against you at your general place of jurisdiction, at our discretion.

General Terms and Condition

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 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”).
2. APPLICATION SERVICE PROVIDING 2.1. Prerequisites 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 (e.g. by installing an app on a mobile device). 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 and a common software package, is usually adequate in terms of system requirements. For most commonly used browsers the last 3 versions are supported. Additional information on the currently supported browsers and versions can be found at https://www.avrios.com/en/terms-and-conditions. To use driver’s license check, it is recommended that drivers have both a smartphone with camera incl. autofocus function and an email address or mobile phone number. 2.3. Storage 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 license 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. 2.6. Availability Avrios ensures at least 99.5% average availability of the Avrios-Platform and endeavors to the best of its abilities to remedy disruptions to the use of the Avrios-Platform as quickly as possible. Avrios may suspend use of the Avrios-Platform at any time without consultation with the Customer for the purposes of maintenance. Avrios makes every effort to carry out such maintenance at off-peak times. 2.7. Registration / Account 2.7.1. Registration 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. 2.7.2. Account 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 Customer shall ensure that the respective employees are informed of and comply with these rights of use. 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 (in principle and as far as necessary in accordance with the attached agreement on order-data processing). The Customer undertakes to ensure that driving license image files from third parties are only collected and uploaded in sufficient resolution to the Avrios-Platform after obtaining the corresponding data protection declarations of consent. The driving license image files stored on the Avrios-Platform will be automatically deleted 3 years after the third party is deactivated on the Avrios-Platform. This does not affect information on the person of the third party which is stored for other purposes, in particular on the basis of statutory storage obligations. Any other provisions of the agreement on order-data processing take precedence over these provisions. 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. 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 is in no way responsible for the content of these websites. 2.12. Application Programming Interface (API) and Updates To the extent covered by the contractually agreed scope of services, Avrios shall provide the customer with an API interface for connecting customer’s own or third party software. Avrios is entitled to all rights to the API interface. The customer is only granted a right to use the API interface to the contractually agreed extent. Avrios shall continue to develop the Avrios-Platform on an ongoing basis and shall improve it by means of ongoing updates, insofar as this is reasonable taking into account the interests of the customer. If an update by Avrios impairs the functionality of the customer’s own or third party software connected via the API interface, the customer shall be responsible for adapting the connected software. Avrios shall announce relevant updates in reasonable time in advance. If the adaptation of the connected software is unreasonable or impossible for the customer, customer shall be entitled to terminate the use of the API interface for good cause. Avrios has the right to partially or completely restrict access to the API interface at any time for good cause. An important reason shall be deemed to exist in particular if the use of the interface should lead to an impairment or overload of the Avrios-Platform. 2.13. Usage fee 2.13.1. Amount 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. 2.13.2. 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. 2.14. Warranty 2.14.1. 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. 2.14.2. 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. 2.14.3. 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. 2.14.4. 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 3.1 Support 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. 3.3. Consultancy 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 AvriosPlatform 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. 5. LIABILITY Avrios is liable for direct damage only up to an amount equivalent to the annual usage fee for all services purchased by the Customer. 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 6.1. Term 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. In the event of effective termination by the Customer without notice, Avrios shall reimburse the Customer for all prepaid usage fees for the remaining term of the agreement after the effective date of termination. Avrios will also reimburse the Customer for proven costs incurred by the Customer as a result of the extraordinary termination of the license agreement or the attached agreement on order-data processing as a result of termination by the Customer without notice. The reimbursement of costs is limited to the amount of an annual usage fee for all services purchased by the Customer. 7. MISCELLANEOUS PROVISIONS 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 economic 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) and any applicable of the conflict of laws (IPR). The exclusive legal venue for all legal disputes arising from or in connection with this agreement is Zurich, Switzerland. Zurich, dated 1st March 2020
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