General Terms and Conditions
1.1 These general terms and conditions apply to all deliveries and other services provided by t-matix solutions gmbh (hereinafter: ‘t-matix’) for suppliers and customers.
2.1 “Software”: A program or several programs which is/are operated on a computer, a processor or a controller. The software documentation is integrated into it as a utility program and forms an inseparable part of it. All provisions of these conditions relating to the software therefore also apply equally to the documentation.
2.2 “Software license”: Right to use the software in the sense described in Section 4.
2.3 “Device”: A device is a device created in the t-matix platform or a unit that transmits data to the platform.
2.4 “Goods”: hardware, software, and services.
2.5 “Order”: Contract for the delivery of hardware and/or software and/or the provision of other services. The subject of the delivery or other services is described exclusively by the information provided by t-matix in its offer. Delivery of software means the granting of a software license in accordance with point 4. The provisions for deliveries made in these terms and conditions also apply to other services, unless otherwise stipulated in writing in individual cases. In the event that the goods offered are not available and/or due to technical reasons, t-matix is entitled to use goods of equal value for the provision of services, provided that the goods have the properties that are usually considered to be contractually agreed due to the general perception or nature of the business.
2.6 “Platform usage fee”: The platform usage fee includes the use of the t-matix platform. The minimum term is 24 months and is automatically extended for a further 12 months.
2.7 “Device usage fee”: The device usage fee consists of 3 items, the license fee, the fee for data transmission and data storage. The minimum term is 12 months.
The contract between t-matix and the customer can be concluded in two ways:
3.1 If the scope of services is available in detail, t-matix will create an offer based on the information provided by the customer. The contract is concluded with the order (acceptance of the offer) by the customer. The exclusive content of the contract is the offer. The customer has to sign the offer (authorized company signature) and send it as a scan or photocopy to t-matix to the e-mail address firstname.lastname@example.org or send it printed out as a letter to the address t-matix solutions gmbh, Neuseiersberger Straße 157, 8054 Graz.
3.2 If the scope of services is not yet available in detail, t-matix will prepare an initial offer based on the information provided by the customer. After receipt of the order t-matix will carry out a detailed survey and determination of the costs. If the detailed definition and determination of the effort does not lead to a change in the initial offer, the contract is concluded with the order (acceptance of the initial offer) by the customer. The customer has to sign the initial offer (authorized company signature) and send it as a scan or photocopy to t-matix to the e-mail address email@example.com or printed out as a letter to the address t-matix solutions gmbh, Neuseiersberger Straße 157, 8054 Graz. Exclusive content of the contract is the initial offer. In the event that the detailed survey and definition of expenses leads to changes in scope, t-matix will send a final offer. In the final offer, the prices may differ from the initial offer. The exclusive content of the contract is the final offer. The customer has to sign the final offer (authorized company signature) and send it as a scan or photocopy to t-matix to the e-mail address firstname.lastname@example.org or send it printed out as a letter to the address t-matix solutions gmbh, Neuseiersberger Straße 157, 8054 Graz.
4. Software License and Copyrights
4.1 In return for payment of the agreed amount, t-matix grants the customer the non-exclusive and non-transferrable right to use the contractual software only to the extent specified in the offer and in appropriate use (software license). The software license exclusively includes the rights specified in §§ 40d and 40e of the Copyright Act as amended. It does not include any rights of the customer to updates, upgrades, improvements or the like.
4.2 The intellectual property of the software remains with t-matix. t-matix has the exclusive copyright to the software. The prohibition on transferring the software license includes the prohibition to pass on the software in whole or in part, against payment or free of charge, or to disclose it to a third party or to make it accessible in any other way.
4.3 The customer’s software license expires if the customer transfers the software license to a third party or if the order is terminated or cancelled. t-matix is entitled to withdraw the software license if the customer violates according to 9.1
4.4 The Customer shall lose the right to use the software both upon expiration and upon withdrawal of the software license. In these cases, the customer is obliged to delete the software from all data carriers inside and/or outside of all computers, to confirm this in writing to t-matix, and to grant t-matix access to all computers and data carriers to verify the compliance with this obligation.
4.5 If the customer violates one or more of the obligations in 4.1 to 4.4, t-matix is entitled to demand a no-fault contractual penalty in the amount of ten times the gross price of the software in question, with the right to assert any further claims for damages. These penalties are not subject to judicial moderation.
5.1 All prices quoted by t-matix are – without prejudice to explicit agreements to the contrary – in Euro and exclusive of VAT and are only valid for the respective offer. This does not apply to consumers.
5.2 The remuneration is value-secured according to the monthly consumer price index 2015 or an index replacing it , which is published by Statistik Austria and therefore not by t-matix. The starting point for the value protection calculation is the index number announced for the month in which the contract begins. The new index number is the starting point for the calculation of further changes. The consumer will be informed of the index adjustment in advance. No index adjustments will be made at the expense of the consumer before the expiry of two months after conclusion of the contract. It is expressly stated that the agreed value guarantee may result in both an increase and a decrease in the fee.
6. Order changes and cancellations
6.1 Order changes or cancellations by the customer are only possible with the written consent of t-matix. In the event of changes to the order, t-matix has the right to offset the related additional work with a processing fee of at least 5% of the original order value. When cancelling an order, t-matix is entitled to request or withhold any agreed down payment of at least 15% of the purchase price or, if the actual expenses caused or already caused by the cancellation is higher, then this amount.
7. Delivery, place of fulfilment, and default of acceptance by the customer
7.1 Information from t-matix about delivery dates is non-binding, unless t-matix explicitly confirms their commitment in writing (consumers are excluded from this). However, t-matix will make every effort to meet delivery dates as precisely as possible. In any case, t-matix is not liable for delays that are based on delays by its supplier or to causes which t-matix cannot influence with reasonable effort. Force majeure, labor disputes, natural disasters, etc. release t-matix from its delivery obligation or allow t-matix to set new delivery dates.
7.2 The place of fulfilment for all deliveries is the registered office of t-matix. Deliveries to the customer are made at their own risk and expense. Unless otherwise agreed with regard to the type of delivery, packaging, etc., t-matix is entitled to proceed at its own discretion. In any case, the customer agrees to the transport by t-matix or third parties. t-matix is not obliged to take out insurance for the goods.
7.3 In case of default of acceptance by the customer, t-matix is entitled to withdraw from the contract, if it is not yet completely fulfilled by both parties. In the event of withdrawal, if the customer is at fault, t-matix has the choice of claiming lump-sum damages of 15% of the gross invoice amount or compensation for the damage actually incurred.
7.4 t-matix can suspend the fulfillment of its obligations if the customer violates his contractual obligations.
7.5 t-matix is also entitled to make partial deliveries and to issue partial invoices.
8.1 Payments shall be made by means of standing orders set up by the customer, advance payment or on account. All invoice amounts are payable within 14 days without deduction.
8.2 If a monthly payment for the rental of software has been agreed upon, t-matix reserves the right, 10 days after the unsuccessful payment reminder, to block the respective software until it has been completely fulfilled, or to terminate the contract without notice and claim for damages.
9. Retention of ownership
9.1 t-matix reserves the right of ownership to delivered goods until the purchase price has been paid in full, including all ancillary claims. As long as the retention of title is in place, the customer can only dispose of the goods with the prior written consent of t-matix.
9.2 If the customer violates his contractual obligations, treats the goods, whose property is reserved, improperly or is in delay with payments, t-matix is entitled – even without withdrawal from the contract – to take back the goods and/or to withdraw software licenses at the expense of the customer until the contractual condition is restored. Moreover, the contractual obligations of the customer are not waived in these cases. The customer is obliged to enable t-matix to retrieve and/or withdraw the goods.
10. Warranty and damages
10.1 If the customer is a contractor, he shall inspect the delivered goods upon receipt for completeness, correctness and other freedom from defects, in particular the intactness of the packaging. If there are any defects, he must notify t-matix of these defects within a reasonable period of time, but no later than four working days after receipt of the goods by e-mail to email@example.com. Defects that become apparent at a later date must also be notified immediately, at the latest within four working days after they have been recognized. If the contractor has not detected and reported any defects within the notification period, the delivery is deemed to have been approved and all claims such as warranty, avoidance of errors or compensation for damages due to a deviation or defect alleged at a later date are void (§ 377 UGB – Austrian Commercial Code). This also applies to any incorrect deliveries or deviations in the delivery quantity.
10.2 There is no warranty for damages caused by improper use or treatment of the product. The same applies to normal wear and tear.
10.3 The existence of defects must be proven by the customer, who is a contractor. The presumption rule of § 924 ABGB (Austrian General Civil Code) is excluded.
10.4 The warranty period for customers who are contractors is 3 months from acceptance.
10.5 In the case of a warranty, t-matix is entitled to determine the type of warranty (improvement, exchange, price reduction or conversion) towards customers who are contractors.
10.6 t-matix is only liable for damages, with the exception of personal injury, in the event of intent or gross negligence. The compensation of consequential damages and financial losses, loss of profit and damages from claims of third parties against the licensee as well as a liability for data loss and delayed data processing is excluded in any case. The limitation of liability shall also apply to damages resulting from the violation of pre-contractual obligations, positive breach of contract, unlawful acts or any other legal reason. Furthermore, liability for the reconstruction of destroyed data requires that the customer has backup copies or keeps the data available in an otherwise machine-readable form and that the reconstruction of the data is possible with reasonable effort.
10.7 In all cases, liability is limited to a maximum of 10% of the order value per contract. The limitation period for all claims for damages by contractors is one year from the date of knowledge of the damage and the party causing the damage.
10.8 After becoming aware of any damage that has occurred, the customer must inform t-matix of this and take all necessary precautions to keep the damage to a minimum or to reduce it.
10.9 The customer is obliged to transfer the exclusions and limitations of liability in the present GTCs in their entirety to his customers and also to oblige them to transfer them to their customers. If the customer does not undertake the transfer described above, he will indemnify and hold t-matix harmless in this regard in the event of third-party claims.
10.10 In the case of a hardware installation in customer vehicles and/or devices, t-matix does not assume liability in case of loss of warranty by the manufacturer.
11. Applicable law and jurisdiction
11.1 All disputes arising from the contractual relations between the parties are subject to Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods. It is agreed that the competent court in Graz shall be the international and local court. In the case of consumers, this choice of law shall only apply to the extent that it does not supersede mandatory provisions of the law of the state in which the consumer has his habitual residence.
12.1 Changes or additions to the contract as well as ancillary agreements need to be confirmed in writing by t-matix to be effective; they are only valid to the extent stated in the confirmation and only for the respective business case. The agreement to refrain from the requirement of a written confirmation is also subject to the requirement of a written confirmation by t-matix.
12.2 The delivery of hardware and software shall not be regarded as a single entity. A lack of conformity in one area does not entitle the customer to terminate the contract in the other area, unless the inseparable connection has been expressly agreed in writing or the customer cannot reasonably be expected to use a part separately.
12.3 Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of the contract.
12.4 If the customer is a consumer within the meaning of the Consumer Protection Act as amended, the contractual provisions shall only apply to the extent that they do not violate mandatory provisions of the Consumer Protection Act.
12.5 The headings in the General Terms and Conditions of t-matix only serve as an overview and are not to be considered when interpreting regulations.
12.6 Offsetting against the claims of t-matix with counterclaims of any kind are excluded.
12.7 Any provisions or regulations deviating from or supplementing these GTC – in particular the GTC of contractual partners – shall only become part of the contract if this has been explicitly approved in writing by t-matix.