general terms and conditions of use
SMATRICS DIRECT.PLUS NET
SMATRICS GmbH & Co KG 1150 Vienna, Europaplatz 2 / Stairway 4 / 4th floor
DPR No.: 4010021; CN 386728 v (Commercial Court of Vienna)
Telephone: +43 (0) 1 53 22 400
(Mon-Thu 09:00-17:00 and Fri 09:00-15.00)
24 hr customer hotline: +43 (0) 5 03 13 51 855
GTC for “SMATRICS DirectPlus NET”
As of 30 April 2020
1. Components of contract and changes to the GTC
1.1 The contractual provisions of the contract form and the SMATRICS “DirectPlus NET” General Terms and Conditions (GTC) apply. These regulations are collectively referred to as the “Contract” or the “DirectPlus NET 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 4. (subject of the contract), 5. (service description), 9. (Fees [tariffs, processing fees], changes to fees), 10. (billing, payment, default of payment) and 15. (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 9 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, 24h customer hotline, addresses, contact partners, bank details) and other information required for contract execution or specified in the contract should be communicated to the respective other contractual party in writing.
2. Cancellation and withdrawal rights of consumers
2.1 The cancellation and withdrawal rights contained in the contract are only open to customers who match the definition of consumers within the meaning of KSchG.
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.
For the payment by credit card the client has to announce the credit card number, the date of expiry and the cvc code of the credit card. The client acknowledges that SMATRICS is entitled to forward this data without saving to their contractual partner (currently Wirecard Central Eastern Europe GmbH). This partner checks the validity of the credit card and the accuracy of the data disclosed and processes the payment.
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 referred to in Section 1 above.
SMATRICS provides all further information regarding data protection rights on its homepage at https://smatrics.com/datenschutz.
4. Subject matter of contract and conditions for contract performance
4.1 The subject against payment of the DirectPlus Net Contract is exclusively “SMATRICS NET – charging”, in accordance with the service specifications in Point 4. In addition, the “24h customer hotline” and the “SMATRICS mobile app” are made available free of charge.
4.2 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 13.1 GTC).
5. Service description “SMATRICS NET – Charging”
5.1 “SMATRICS Net – Charging” enables the customer to charge the contract vehicle at all available and free public SMATRICS charging stations. Energy consumption from charging stations for other purposes than the charging of the contract vehicle is not permitted.
5.2 The customer shall be entitled to identify himself online (using the SMATRIC mobile app or the SMATRICS website) and charge the contract vehicle at any available public SMATRICS charging station;
5.3 SMATRICS shall be entitled to terminate the charging process remotely and unlock plugs as well as charging station sockets remotely if the vehicle is no longer being charged. In any event this will be assumed if the maximum charging period for the contract vehicle as specified by the manufacturer has been exceeded. SMATRICS shall be furthermore entitled terminate the charging process and unlock remotely if the charging rules are not being adhered to. The customer shall be obliged to observe the following charging rules:
The park and /street) traffic rules must be observed.
- The SMATRICS stand must be vacated within no more than 15 minutes once the contract vehicle is fully charged, and not otherwise used inappropriately.
- The SMATRICS charging guide must be adhered to.
- The SMATRICS charging stations and charging cables may not be damaged; the customer must inform SMATRICS without delay of any damage to SMATRICS charging stations or charging cables.
- Charging cables at all SMATRICS charging stations must be handled so that there is no risk to other persons or objects; in particular, a fixed charging station cable must be properly replaced in the designated place after charging.
- SMATRICS shall not be liable for any cables, connectors or adapters, etc. owned by the customer; furthermore, SMATRICS shall not be liable for the proper functioning of the charging process if non-standard cables, connectors and adapters are used;
- The SMATRICS customer password for the SMATRICS mobile app and/or the SMATRICS website must be kept safely. The customer must ensure that the SMATRICS customer password are only used by the customer for the vehicle.
6. ”24 hr customer hotline”
6.1 A 24 hour customer hotline is available for customers (+43 (0) 5 03 13 51 855). The support staff provide assistance in the case of technical issues and information such as:
- Use or misuse of charging stations or wallboxes;
- notification of the address of the nearest public SMATRICS charging station;
- non-functioning, forgotten, lost SMATRICS customer cards;
- information on contracts and invoices
- products and offers
- remote activation
Written enquiries may also be sent at any time to firstname.lastname@example.org and will be processed during normal working hours.
7. ”SMATRICS mobile app”
7.1 Customers can find the following services on their smartphones using the SMATRICS app for Android and iOS, which is available in the App Store and on Google Play:
Anzeige der SMATRICS Ladestationen in der Umgebung bzw. in ganz Österreich;
- display the SMATRICS charging stations in the surrounding area or across Austria;
- detailed information on the SMATRICS charging stations, such as precise location, opening times, charging speed etc.;
- product information and news about SMATRICS;
- charging guide for charging at the SMATRICS charging stations.
7.2 SMATRICS is also working on improving the SMATRICS app for customers, and offers voluntary extra services, such as:
- route planning and navigation for the selected charging station
- information about availability and status of SMATRICS charging stations (free/occupied)
- activation of charging station by customer from personal customer zone
8. Public SMATRICS charging stations
8.1 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.
8.2 The customer shall only be entitled to use a free SMATRICS stand to charge the vehicle. The blocking of SMATRICS charging stations and/or SMATRICS stands is not permitted. Reservations shall only be permitted through SMATRICS.
9. Fees (tariffs, processing fees), changes to fees
9.1 All stated fees are gross prices (inclusive of 20 % VAT) and the fees for the services pursuant to the service description.
9.2 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.
- The tariff consists of the starting fee and the charging fee to be billed for the charging time. The starting fee is charged per charging process (regardless of the charging time and regardless of the maximum available charging capacity of the charging point in use). The charging fee is charged according to charging time consumed and depends on the maximum available charging capacity of the charging point in use.
- SMATRICS charging stations may have different technical options (plugs, sockets, etc.) with different maximum electrical capacities available. Each of these technical charging options is referred to as a charging point. The maximum charging capacity available at each charging point can be found in the SMATRICS mobile app or on the SMATRICS website www.smatrics.com, or can be requested from the 24h customer hotline.
- Starting fees and charging fees for each individual charging process are billed on a monthly basis. SMATRICS shall be entitled to charge a charging fee for each minute of charging commenced; to-the-second billing, which is more favourable for the customer, is permitted. The charging process begins when the customer starts charging. The charging process ends when charging is terminated by the customer (pressing the stop button on the charging station, removing the charging plug, termination by an action on the vehicle), automatically by the vehicle, or remotely by SMATRICS.
- The customer shall bear the costs charged by their telecommunications provider (mobile phone rates, data rates).
9.4 Administration fees
- For each remote activation by SMATRICS: €15.00.
- For each reminder concerning late payment for consumers within the meaning of the Consumer Protection Act: €5.00.
- For each reminder concerning late payment for companies within the meaning of the Consumer Protection Act: €40.00.
- Refund charges caused by customer: SMATRICS shall pass the refund charges actually charged by the bank on to the customer (without applying a surcharge).
- Costs for collection: In the case of appointing a lawyer, the customer must pay the costs in accordance with the applicable Rechtsanwaltstarifgesetz [Lawyers’ Fees Act] plus VAT. If appointing a collection agency, this should be settled at cost, and the costs may not exceed the maximum rates of the respective applicable Inkassogebührenverordnung [Austrian Ordinance on Collection Fees], Austrian Federal Law Gazette No. 141/1996, as amended.
9.5 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. Should the customer notify SMATRICS in writing within two weeks of receiving the notification that they do not agree to the new fees, the contract will be terminated at the end of the month following a period of two weeks from receipt of the objection. If the customer does not object within the period of two weeks, the fees will become effective from the date specified in the notification – which may not be before the issue date of the notification – and the contract will be continued with the revised fees. Customer shall be informed separately in the written notification of the meaning and legal consequences of their actions.
10. Billing, payment, offsetting, payment default
10.1 SMATRICS will send the customer a monthly bill in arrears. The monthly payments will be debited from the customer's credit card.
10.2 Upon termination of the contract, any credits / debts will be refunded / become due for payment. SMATRICS is entitled to charge the customer for services used by the customer or a person assigned to it (such as the user of a customer password or end device provided by the customer) following the expiry of the contract (such as charging from public SMATRICS charging stations). The customer must pay at least an amount which corresponds to the fees (prices) / administration fees for these services as publicly offered by SMATRICS at the time the services were used. If the service used is not or no longer available, the publicly offered fees (prices) / administration fees for services which come as close as possible to the services used shall apply. SMATRICS is entitled to charge the customer for damages over and above these fees (prices) / administration fees if these are the fault of the customer.
10.3 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.
10.4 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.
10.5 The customer can pay by credit card (MasterCard or VISA). To check the validity of the credit card, an amount of 10 cent will be requested from the credit card company during the registration process of the customer. However, the credit card is not actually charged with this amount.
10.6 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.
11. Customer data, consent to email communication
11.1 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).
11.2 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.
12. 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.
13. Liability and compensation
13.1 Liability shall only exist – with the exception of personal injury – in the case of gross negligence or intent. The liability of SMATRICS for slight negligence – with the exception of personal injury – is limited to EUR 1.500,-- per claim. 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). 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).
13.2 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. 13.3 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.
13.4 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.
14. Force majeure
14.1 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.
15. Contract term, termination
15.1 The contract is concluded for an indefinite period and may be terminated by either party in observance of a two-weeks period of notice at the end of the respective month.15.2 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 bank details provided by the customer are invalid, the customer is not the account holder or at least an authorised signatory, or the account holds insufficient funds;
- the initiation of insolvency proceedings concerning the customer’s assets is refused due to lack of assets, or proceedings which have commenced are terminated;
- the permissions / authorisations necessary for fulfilment of the contract expire through no fault of the terminating party;
- the customer ignores the charging rules, particularly if the customer does not leave the SMATRICS stand 15 minutes after the end of the charging process;
- the customer uses installations or equipment in an improper or irregular way.
16. Final provisions
16.1 SMATRICS may use authorised professionals and representatives to fulfil this contract.
16.2 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. Customer statements sent by e-mail to the address email@example.com and statements sent by SMATRICS to the customer’s last known e-mail address shall meet this requirement for the written form. Furthermore, the written requirement is considered fulfilled if the customer transmits input information to SMATRICS via the SMATRICS mobile app (in particular by pressing buttons and/or adding a confirmation mark such as a tick or cross) or via another software application made available by SMATRICS and/or signs on a touchscreen of an end device (smartphone, laptop, etc.). The digitised version of the customer’s signature and the reproduction of such a signature shall be recognised by the customer as proof of their signature. Statements transmitted by SMATRICS or its representatives to customers who are consumers within the meaning of the Consumer Protection Act (§ 10 para. 3 KSchG) which do not fulfil the requirement for the written form shall apply only if these statements are advantageous for consumers.
16.3 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.
16.4 Both contracting parties are – except for customers who are consumers in terms of the Consumer Protection Act (KSchG) – entitled and obliged to impose their rights and obligations from this contract or the contract itself upon third parties effectively and with discharging effect. The contracting parties shall undertake to impose all rights and obligations arising from this contract on their respective successors.
16.5 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).
16.6 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.