Generall Terms and Conditions of use
GTC for “SMATRICS Net” Tariffs
GTC for “SMATRICS NET” tariffs
As of 30 April 2020
1. Components of the contract and changes to the GTC
1.1 The provisions of the contract form and the annexes shall apply, as well as any written agreements in individual cases and the current General Terms and Conditions (GTC) of SMATRICS. These regulations shall also be collectively referred to as the “Contract”.
Any general terms and conditions of business and/or contract of the customer (entrepreneur) are not valid. With the conclusion and execution of a contract concluded on the basis of these contract, the application of the general terms and conditions of business and/or contract of the customer is excluded.
1.2 SMATRICS shall be entitled to change the contract in relation to customers who are consumers in terms of the Consumer Protection Act (KSchG). Changes to points 2. (subject of the contract), 6. (fees, prices), 7. (billing, payment, default of payment, contractual penalty, blocking of online access) and 12. (contract term, termination) are only permissible, if they exclusively benefit the customer or are made with the express consent of the customer or on the basis of corresponding legal authority or official requirements.
Changes will be notified to the customer in writing. Should the customer give notice to SMATRICS that the change is not accepted within two weeks after being notified, the contract shall end at the end of the month following a period of two weeks following the submission of the objection. If the customer does not object within this period, the new contract shall become effective on the date specified in the notice, which must not precede the date on which the notice was sent. The customer shall be informed of the significance of their conduct and the legal consequences in the written notice. However, in case of an objection, the customer shall still be obliged to fulfil all obligations until the end of the contract period.
1.3 SMATRICS shall be entitled to change the contract for customers who are not consumers (entrepreneurs) in terms of the Consumer Protection Act (KSchG). Changes to the prices are permissible within the scope of point 6 of the GTC and are regulated there.
Changes to the contract shall be notified to the customer in writing with a simultaneous notice of change by SMATRICS. Should the customer give notice to SMATRICS that the change is not accepted within two weeks after being notified, the contract shall end at the end of the month following a period of two weeks following the submission of the objection. If the customer does not object within this period, the new contract shall become effective on the date specified in the notice, which must not precede the date on which the notice was sent. The customer shall be informed of the significance of their conduct and the legal consequences in the written notice. However, in case of an objection, the customer shall still be obliged to fulfil all obligations until the end of the contract period.
1.4 Changes to contact information (such as, in particular, 24 hr customer hotline, addresses, contact partners, bank details) and other information specified in the contract for contract processing are not changes to the GTC and/or the contract. Such changes can be disclosed to the contract partners in writing. Changes in roaming partners or in their tariffs shall not constitute changes to the contract either.
2. Subject of the contract and requirements for contractual fulfilment
2.1 The mobility packages described in section II. of the contract form pursuant to the service descriptions in section III of the contract form are the subject of the contract.
2.2 The provision of network services and / or power supply activities and / or telecommunications services are not the subject of the contract. The customer is responsible for complying with the network conditions and other relevant contracts and applicable technical standards relating to the provision of services by SMATRICS. The services of SMATRICS require valid network access, a valid power supply, and – for the SMATRICS mobile app – a valid internet connection. SMATRICS shall not assume any liability (inadequate performance and/or non-performance, compensation, etc.) for lack of power supply, network service or telecommunications services (see also section 10.1 GTC).
3. Data Processing for Contract Fulfilment
3.1 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 (including, in particular, data collected from public SMATRICS charging stations and/or wall boxes and/or charging stations owned by SMATRICS partners) 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, roaming partners, partner station operators, 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 and last name, academic title, postal address, email contact, telephone number, date of birth, billing data, account data, customer ID number, number of charge card code, charging location, charging start time, charging end time, charging point used, roaming partner, end-device identification when using the SMATRICS APP, consumption data, vehicle charging performance, registration number of contract vehicle, make, model and year of the vehicle.
To bill charging transactions carried out at the charging stations of SMATRICS roaming partners and partner station operators, SMATRICS will only send to them the number of the charge card code. In this way, roaming partners do not gain access to further personal data stored by SMATRICS.
Failure to provide the data outlined in this clause will result in the non-performance of the contract.
3.2 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 email@example.com, mail to SMATRICS GmbH & Co KG, Europaplatz 2 / stairway 4, 1150 Vienna.
SMATRICS provides all further information regarding data protection rights on its homepage at https://smatrics.com/datenschutz.
4. Consumer revocation and withdrawal rights
Only customers who are consumers in terms of the Consumer Protection Act (KSchG) are entitled to the contract revocation and withdrawal rights governed in Annex IV.
5. Public SMATRICS charging stations
5.1 SMATRICS reserves the right to change the number and local positioning of the public SMATRICS charging stations for compelling economic/technical reasons.
Information about the current locations of the SMATRICS charging stations is available online (www.smatrics.com), on the SMATRICS Mobile App for Android and iOS and via the 24 hr customer hotline number +43 (0) 5 03 13 51 855.
5.2 The customer shall only be entitled to use a free SMATRICS stand to charge the contract vehicle. The blocking of SMATRICS charging stations and/or SMATRICS stands is not permitted. Reservations shall only be permitted through SMATRICS.
6. Prices (fees) and price changes
6.1 All stated fees are gross prices (inclusive of 20 % VAT) and the fees for the services pursuant to the service description (section III of the contract form).
6.2 The specified fees do not include other taxes, duties, surcharges, fees, contributions and other costs, which are unavoidable in connection with the fulfilment of the contract, and which SMATRICS is and/or will be obliged to pay and/or bear due to statutory or regulatory provisions (such as costs from the Federal Energy Efficiency Act). SMATRICS shall be entitled to charge the customer for these costs – regardless of the existence / amount upon conclusion of the contract.
6.3 Fee changes shall be disclosed to customers who are not consumers (entrepreneurs) in terms of the Consumer Protection Act (KSchG) in writing with a simultaneous notice of change by SMATRICS. Fee changes shall only be permissible for a period after the expiry of the waiver of termination rights (expiry of the minimum term). Should the customer give notice to SMATRICS that the new prices are not accepted within two weeks after being notified, the contract shall end at the end of the month following a period of two weeks following the submission of the objection. If the customer does not object within a period of two weeks, the price changes shall become effective on the date specified in the notice, which must not precede the date on which the notice was sent, and the contract shall continue at the changed prices. The customer shall be informed of the significance of their conduct and the legal consequences in the written notice.
7. Billing, payment, offsetting, default in payment
7.1 SMATRICS shall send a monthly invoice to the customer in arrears for the tariff(s). The calculation of tariffs begins on the date on which SMATRICS informs the customer of the activation. The monthly tariff payments shall be due for payment by the deadline specified in the invoice, which must not be less than 14 days from receipt of the invoice.
7.2 The monthly network fee is billed pro rata per day for the period between delivery and the first day of the following month, provided the contract does not start on the first day of a month.
7.3 Upon termination of the contract, any balances or deficits shall be refunded or become due for payment. SMATRICS shall be entitled to charge the customer for the services that they, or a person attributable to them (such as the user of a SMATRICS customer card transferred by the customer or the user of the SMATRICS Wallbox), use after the end of the contract (such as charging at public SMATRICS charging stations and / or SMATRICS Wallboxes). The customer must at least pay the amount that corresponds to the public prices / costs specified by SMATRICS at the time of the use of services. If the utilised service is not or no longer offered, the public prices / costs of the services that come as close as possible to the utilised services shall apply. SMATRICS shall be entitled to charge the customer for damages beyond these prices / costs without regard to a contractual penalty in accordance with point 7.8 GTC if these are the fault of the customer.
7.4 Objections relating to the accuracy of invoices must be submitted in writing to SMATRICS within a month from receipt of the invoice, otherwise the invoice amount shall be considered to be accepted. Objections must be made in writing, and, in respect of the individual charges listed in the invoice, must designate the specific charge that is contested by the customer. The customer undertakes to help in clarifying any objections. Objections shall not affect the due date of the total invoice amount, and the omission of timely objections shall not affect the enforcement of claims by the customers.
7.5 The offsetting of SMATRICS claims with counterclaims of the customer shall be excluded. The consumer right to offset their liabilities in terms of the Consumer Protection Act (KSchG) shall remain unaffected in the event of the insolvency of SMATRICS or for counterclaims which are legally connected to the liability of the consumer, which have been established by court or recognised by SMATRICS.
7.6 The customer can pay by SEPA Direct Debit Mandate to a payment or credit institution with their registered office in Austria (see Annex II) or payment by bank transfer to the bank account specified in the invoice. The costs for the bank transfer shall be borne by the customer. Customer payments received without any indication of their purpose are allocated to the liabilities due first.
7.7 In case of a culpable default in payment by the customer, who is a consumer in terms of the Consumer Protection Act (KSchG), SMATRICS shall be entitled to charge default interest amounting to 5 percentage points per year. In case of a default in payment by contractors, 9.2 percentage points above the respective base rate shall be charged. SMATRICS shall be entitled to charge the customer for culpable damage caused by default beyond this default interest.
7.8 If, contrary to this contract, a vehicle other than the contract vehicle is using the online access provided for this contract (via SMATRICS mobile-app or the SMATRICS website) and/or customer card (e.g. because the customer passes on his charge card without authorisation or does not report a loss immediately), SMATRICS is entitled to charge a contractual penalty amounting to three times the network charge in the amount applicable to the selected tariff (contractual penalty).
7.9 If, contrary to this contract, a vehicle other than the contract vehicle is loaded with the online access provided for this contract (via SMATRICS Mobile-App or the SMATRICS website) and/or customer card (e.g. because the customer passes on his loading card without authorisation or does not report a loss immediately), SMATRICS is entitled to block the online access via the SMATRICS mobile app and the SMATRICS website for the duration until payment of a further network fee in the amount applicable to the selected tariff (point 7.8 GTC). SMATRICS shall inform the Customer immediately before blocking the online access and shall notify the Customer under which conditions, in particular payment of a further basic fee in accordance with section 7.8 GTC, the online access via the SMATRICS mobile app and the SMATRICS website will be reactivated.
8. Customer data, consent to email communication
8.1 The customer shall undertake to immediately inform SMATRICS in writing of changes to his company name, name, address, invoice address, bank details, telephone number, email address, registration number for the contract vehicle, brand and trade name of the contract vehicle, the vehicle charging performance as well as all other data required for contract processing. The delivery of notices and statements from SMATRICS to the customer can be legally effective if it corresponds to SMATRICS‘ latest available customer data from the customer (address and / or email address and / or fax number).
8.2 The customer agrees to the transmission of notices / statements / and invoices from SMATRICS in electronic form to their specified email address. The customer waives the right to delivery in paper form by post or fax.
9. Consideration as energy efficiency improvement measure
The customer hereby transfers to SMATRICS, free of charge, the energy efficiency improvement measure and proof thereof for consideration under the Federal Energy Efficiency Act (“EEffG”), as derived from the purchase and use of the SMATRICS products and services. The customer hereby agrees that the energy efficiency improvement measure and its proof for consideration as an end-use energy efficiency measure will be used and transferred. The customer agrees to provide any necessary declarations of consent for the transfer and/or the consideration. The customer agrees not to transfer the energy efficiency measure and proof thereof to anyone but SMATRICS.
10. Liability and compensation
10.1 Liability shall only exist – with the exception of personal injury – in the case of gross negligence or intent. Liability for consequential damage, loss of profits, foregone interest income, production losses, operational standstill and all indirect damage shall be excluded – except for customers who are consumers in terms of the Consumer Protection Act (KSchG). These regulations shall also apply for the conduct of vicarious agents. Network operators, telecom service providers and electricity suppliers are not vicarious agents of SMATRICS. Thus, SMATRICS shall not be liable for overvoltages from the power supply (transmitted).
10.2 Claims for compensation shall expire – with the exception of claims of customers who are consumers in terms of the Consumer Protection Act (KSchG) – after the expiry of one year from the date on which the damaged party became aware of the damage. Claims for compensation shall be limited to € 1,500 per event, except for customers who are consumers in terms of the Consumer Protection Act (KSchG).
10.3 Any interference with the electrical equipment provided by SMATRICS is prohibited. SMATRICS shall not be liable for damages which are caused by the customer or third parties through the improper or incorrect use of the installations and devices and/or through the manipulation of the equipment provided by SMATRICS. Damages caused by wallboxes, installations and devices shall be excluded for the period after the termination of the contract.
10.4 The customer is responsible for the technical safety of the cables, sockets, adapters and spacers used. Only parts that meet technical safety standards may be connected to SMATRICS charging stations.
11. Force majeure
If the contracting party(ies) is/are fully or partially prevented from fulfilling the contract as a result of force majeure, the obligations which are (partially) unfulfillable as a result of force majeure shall be suspended until the hindrances, errors or faults and their consequences are corrected. The contracting parties shall undertake to inform each other of known cases of force majeure and the expected duration and extent of the hindrance to performance in a suitable form. Force majeure particularly includes faults or maintenance of the power supply, official orders and other circumstances which are not attributable to the fulfilling contracting party.
12. Contract term, Termination
12.1 Fixed-term contracts shall end at the end of the agreed term. Indefinite contracts may be terminated by either contracting party in observance of a two-weeks period of notice at the end of the respective month.
12.2 Each contracting party shall be entitled to immediately prematurely terminate the contract in writing for good cause without observing a period of notice. Good cause exists if, in particular:
- the customer fails to meet their payment obligations in spite of a written warning and the expiry of a grace period;
- the initiation of insolvency proceedings over the assets of the customer is rejected for insufficiency of assets and/or initiated proceedings are terminated;
- the authorisations / approvals required for the fulfilment of the contract expire through no fault of the affected contracting party;
- SMATRICS cannot economically implement the “SMATRICS Wallbox Service” after performing the installation check
- the customer flouts the charging rules, especially by not vacating the SMATRICS stand 15 minutes after the end of the charging procedure or if a vehicle other than the contract vehicle is loaded;
- the customer uses the installations or equipment improperly or incorrectly.
13. Final provisions
13.1 SMATRICS may use authorised professionals and representatives to fulfil this contract.
13.2 Amendments or supplements to this contract must be made in writing to be legally effective. This shall also apply to the waiver or changes to the written form requirement. Declarations via email to the email address firstname.lastname@example.org shall fulfil this written form requirement. The written form requirement shall also be considered met if the customer sends data to SMATRICS using the SMATRICS mobile app or other software provided by SMATRICS and/or signs such on a touchscreen of a terminal (smartphone, laptop, etc.). The digital form of the customer’s signature and the reproduction of such a signature shall be acknowledged by the customer as proof of his/her signature. Non-written declarations from SMATRICS or their representatives to customers who are consumers in terms of the Consumer Protection Act (KSchG), shall only apply if these declarations are beneficial to the consumers (§ 10 (3) of the Consumer Protection Act (KSchG)).
13.3 Should a provision in this contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions in this contract. In fact, the contracting parties shall undertake to replace the invalid or unenforceable provision with a valid and enforceable provision which is as close as possible in effect for the contracting parties. This shall also apply for any loopholes in this contract.
13.4 SMATRICS shall be entitled – except for customers who are consumers in terms of the Consumer Protection Act (KSchG) – to impose their rights and obligations from this contract or the contract itself upon third parties effectively and with discharging effect. Both contracting parties are – except for customers who are consumers in terms of the Consumer Protection Act (KSchG) – entitled and obliged to impose all rights and obligations arising from this contract on their respective successors.
13.5 The place of jurisdiction for all disputes arising from this contract shall be the competent court for Vienna, Innere Stadt. The place of residence, habitual residence or the place of employment pursuant to § 14 of the Consumer Protection Act (KSchG) shall apply as place of jurisdiction for claims against customers who are consumers in terms of the Consumer Protection Act (KSchG).
13.6 Austrian substantive law shall apply exclusively, but not the provisions of the UN Sales Convention and the non-mandatory reference norms of private international law; further references or cross-references shall be excluded.