GTC for SMATRICS Hardware
General Terms and Conditions (As of 14 May 2018)
1. Scope of application and conclusion of the contract
These conditions (GTCs) shall only apply to the sale of wallboxes, wallbox equipment and charging cables by SMATRICS.
The customer is making a binding purchase offer when SMATRICS receives an order form signed by the customer. The contract with SMATRICS is concluded when SMATRICS expressly accepts this offer in writing and/or when SMATRICS ships the product(s) ordered to the customer.
2. Data Processing for Contract Fulfilment
2.1. By concluding this contract, the client acknowledges that SMATRICS, as the controller within the meaning of the General Data Protection Regulation (EU) 2016/679 (“GDPR”), is entitled to process the personal data collected within the context of the business relationship for the purposes of fulfilling the contract, and is entitled to pass on said data, either in whole or in part, to suppliers, IT service providers, customer service, banks, accounting, tax consultants and, if necessary, insurance companies, collection agencies and legal representatives in connection with the performance of this contract. This includes first name, surname, title, address, delivery address, installation location, email contact, telephone number and date of birth.
Failure to provide the data outlined in this clause will result in the non-performance of the contract.
2.2 Duration of Data Processing and Rights of Data Subject
All data is stored for the duration of the contract, and thereafter for as long as is necessary for the performance of the contract, for any disputes which arise, or to fulfil reporting and burden of proof obligations.
Pursuant to the GDPR, data subjects have a right to obtain information from the controller about the processed personal data, as well as a right to rectify, delete or restrict data processing, to object to data processing and a right to data portability (Art. 15 to 21 GDPR). Data subjects also have a right to lodge a complaint with a supervisory authority (Art. 77 GDPR). To safeguard their rights under the data protection law, any data subject may use the SMATRICS contact details (e-mail to firstname.lastname@example.org, mail to SMATRICS GmbH & Co KG, Europaplatz 2 / stairway 4 / 3rd floor, 1150 Vienna, or phone nr. 01 / 53 22 400).
3. Payment, default in payment, offsetting
In the event of customer default in payment, SMATRICS is entitled to request compensation for the actual damage suffered or the statutory rate of default interest. SMATRICS’ claims cannot be offset against the customer’s counterclaims. The consumer’s right under the Act on Consumer Protection (KSchG) to balance their liabilities by offsetting remains unaffected in the event of SMATRICS becoming insolvent and for counterclaims that are legally associated with the consumer’s liability, are judicially determined or were recognised by SMATRICS.
Objections relating to the correctness of invoices shall be submitted to SMATRICS in writing within one month from receipt of invoice, otherwise the invoice amount shall be deemed to have been accepted. SMATRICS shall inform the customer separately of the period and of the legal consequences that result in the event of non-compliance with the same. Objections do not affect when the total invoice amount falls due; the failure to raise objections on time does not have any impact on the customer asserting claims.
4. Reminder and collection expenses
In the event of default in payment, the customer undertakes to reimburse the contractor for the reminder and collection expenses incurred, provided that they are necessary for taking appropriate legal action. In any case, when business is conducted with contractors, this includes a flat-rate amount of EUR 40 per reminder. The assertion of further rights remains unaffected by this.
5. Terms of delivery
SMATRICS is only obligated to deliver and hand over goods once the customer has met all of their obligations. Unless personal handover has been agreed, SMATRICS shall ship the object purchased within 2 working days following orders receipt. SMATRICS is entitled to exceed the agreed deadlines and delivery periods by up to one week. Only once this period has elapsed is the customer entitled to withdraw from the contract after setting an appropriate grace period.
6. Default in acceptance
If the customer has not taken delivery of the goods as agreed (default in acceptance), after setting a grace period SMATRICS is entitled to either put the goods into storage on its premises (for which SMATRICS can charge a storage fee of 0.1% of the gross invoice amount per calendar day started) or put them into storage in an authorised commercial warehouse at the customer’s expense and risk. SMATRICS is also entitled either to insist on performance of the contract or, after setting an appropriate period, to withdraw from the contract and use the goods elsewhere. The customer shall bear all the costs and expenses associated with the return remittance of the (remaining) purchase price.
7. Compensation for damages
All claims for damages are excluded in cases of slight negligence. This does not apply to cases of personal injury or – if the customer is the consumer under the Act on Consumer Protection (KSchG) – to damages to objects taken over for processing. If the customer is not the consumer under the Act on Consumer Protection (KSchG), the act of slight and gross negligence shall be proven by the aggrieved party. The provisions on compensation for damage contained in these GTCs or otherwise agreed upon shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
8. Consumer’s right of withdrawal as per § 11 of the FAGG
Customers who are consumers under the Act on Consumer Protection (KSchG) may withdraw from a contract concluded outside of the contractor’s commercial premises or from a distance selling contract within the withdrawal period without stating any reasons. The withdrawal period is fourteen calendar days. In the case of contacts governing the delivery of goods, it starts on the day on which the consumer (customer) or a third party designated by the same who is not the carrier has taken possession of the goods. In the case of a contract governing multiple goods ordered in a single order and delivered separately, it starts as of the day on which the consumer (customer) or a third party designated by the same who is not the carrier has taken possession of the last article. It is sufficient if the consumer (customer) has posted the notice of withdrawal within the period.
Withdrawal can be declared informally – using a sample cancellation form that can be downloaded from www.smatrics.com/muster-widerrufsformular – or by sending the cancellation form to SMATRICS as per Appendix 2.
If the consumer (customer) withdraws from the contract, concurrently
i. the contractor shall refund the payments made by the consumer (customer), including the delivery costs, and reimburse the consumer (customer) for the necessary and useful expenses incurred in this matter;
ii. the consumer (customer) shall return the received goods and pay the contractor appropriate remuneration for use, including indemnification for the associated reduction in the goods’ perceived value;
iii. the consumer shall bear the direct costs of returning the goods himself.
SMATRICS may withhold the reimbursement either until it has received the goods back or the consumer has provided it with proof that the goods have been sent back.
9. Consumer’s right of withdrawal as per § 3 of the KSchG
Customers who are consumers under the Act on Consumer Protection (KSchG), have not issued their contractual declaration on SMATRICS’ premises or at a trade fair and have not initiated the business relationship themselves are entitled to conclude the contract from a binding offer (offer of contract) or to withdraw from the contract. Withdrawal can be declared up until such time that the contract is concluded or within fourteen days thereafter. There is no right of withdrawal in the case of contracts that are subject to the Remote and External Business Act (FAGG).
The date on which notices of withdrawal are posted is applicable for compliance with the period. The notice of withdrawal is not restricted to a specific form.
10. Disposal of waste electrical and electronic equipment
This point only applies to customers who are not consumers under the Act on Consumer Protection (KSchG). Customers purchasing electrical / electronic equipment for commercial purposes who are based in Austria assume the obligation to finance the collection and handling of waste electrical and electronic equipment as defined by the Ordinance Regulating the Handling of Waste Electrical Equipment should they themselves be the users of the electrical / electronic equipment. If the customer is not the end user, he shall fully assign the financing obligation to his customers by means of an agreement and provide proof of this to the seller.
Customers who are based in Austria must ensure that the seller is provided with all the information so it can meet its obligations as a manufacturer / importer, particularly as per Sections 11 and 24 of the Ordinance Regulating the Handling of Waste Electrical Equipment and the Waste Management Act.
Customers who are based in Austria are liable vis-à-vis the seller for all damages and other financial disadvantages incurred by the seller due to the customer’s failure to meet or fully meet the financing obligation and any other obligations as per the present Point 9. The burden of proof for meeting this obligation lies with the customer.
11. Crediting as an energy efficiency measure
The customer transfers to SMATRICS free of charge the energy efficiency measure implemented through the purchase and/or use of SMATRICS’ products and services and proof of the same for crediting under the Federal Energy Efficiency Act (“EEffG”). The customer agrees that the energy efficiency measure and proof of the same is used and further transferred for crediting as an end energy efficiency measure. The customer undertakes to give any necessary declarations of consent for further transfer and/or crediting. The customer undertakes not to transfer the energy efficiency measure and proof of the same to anyone other than SMATRICS.
12. Consent to email communication
The customer agrees to messages / notices / invoices being transmitted by SMATRICS in electronic format to the email address provided by him. The customer agrees to forego delivery in paper format by post or fax.
13. Change of address
The customer is obligated to immediately inform SMATRICS of any changes to his address as long as the purchase has not been fully completed by both parties. If such information is not provided, notices shall then be deemed to have been received if they were sent to the last known address.
14. Applicable law, place of jurisdiction
Only substantive Austrian law shall be applied to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods and the non-mandatory reference norms of international private law; onward or backward references are excluded. If the matter is not a consumer transaction, the place of jurisdiction for all disputes arising from this contract is the court that is legally responsible for the First District of Vienna.
15. Partial invalidity
Should provisions of this contract be legally ineffective, invalid and/or void or become so during the term of the contract, this shall not affect the legal effectiveness and the validity of the remaining provisions. In this case, the contracted partners undertake to replace the legally ineffective, invalid and/or void provision by one that is legally effective, valid and – if possible and legally permissible – reflects the economic impact of the replaced provision.
16. Written form
No verbal agreements have been made. Modifications or amendments to this contract must be made in writing to be legally valid. This also applies to the abolition of the written form requirement or to any modifications made to the written form requirement.