General Terms and Conditions
1. Contract Conclusion and Basic Terms
1.1 These conditions apply to all deliveries and other services of T-MATIX solutions GmbH, Hallerschlossstrasse 3, 8010 Graz (T-MATIX) for suppliers and clients, even if specific reference is not made to them in each individual case. Modifications or additional agreements must be confirmed in writing by T-MATIX; they shall be considered part of the contract only to the extent that they are consistent with the scope specified and the relevant business case. Also, the agreement to abandon the requirements of the written confirmation is legally binding only under the conditions referred to in the previous sentence.
1.2 Offers from T-MATIX are not binding in the sense that T-MATIX has the right to withdraw the order even after receiving the acceptance. The order will be deemed as accepted if T-MATIX confirms the commitment in writing to the Customer or makes the delivery.
1.3 Deviating terms of the contractual partners shall be waived and thus not enter into force if they remain unchallenged on our part. With regard to the validity of the Terms and Conditions of our contractual partner in this respect, no explanation is needed regarding any actual behavior on our part. By the conclusion of the contract the other party recognizes the validity of our General Terms and Conditions.
2.1 "Software": A program (or multiple programs) which is operated on a computer, a processor or controller. The documentation of the software is available as an integrated utility and forms an integral part thereof. All the regulations of these conditions relevant to the software apply equally to the documentation
2.2 "Software License": Usage rights of the software for the purpose described in 3.
2.3 “OBU”: An On-board Unit (OBU) is a device installed in a vehicle for the receiving and forwarding of vehicle data as well as the monitoring and controlling thereof.
2.4 "TCU": A T-MATIX Control Unit (TCU) is a device used for the recording and transferring of electronically transmitted data from any device, as well as the management and controlling thereof. An OBU certified by T-MATIX is called a TCU.
2.5 "Hardware": TCU, OBU, telematics and electronic devices, telematics and electronic accessories and other peripherals for information technology.
2.6 "Goods": Hardware, Software and Services.
2.7 "Contract": Agreement for the supply of hardware and/or software and/or provision of other services. The object of the delivery or other services will be described in the offer solely by the terms of T-MATIX. Delivery of software means the granting of a software license in accordance with 3. The provisions made in these conditions for delivery also apply to other services, unless an individual case has been negotiated in writing.
2.8 “Portal Usage Fee”: The portal usage fee includes unrestricted use of the T-MATIX Portal Designer and the selected data plan for data transfer between the TCU and Portal Designer. The portal usage fee is charged when buying a TCU and automatically renewed after one year. An upgrade to a higher data plan is possible at any time.
3. Software License and Copyright
3.1 T-MATIX grants the Customer, against payment of the agreed amount, a non-exclusive and non-transferable right to use the contractual software only to the extent specified in the offer (Software License). The software license includes only those copyright law rights specified in §§ 40d and 40e. This does not include rights for the Customer to update, upgrade, improve, or the like. The intellectual property of the software remains with T-MATIX, who owns the exclusive copyrights of the software. The exclusion of transfer of the software license includes the prohibition, entirely or partly, against payment or free of charge, to pass the software on or to disclose the software to a third party or to make it accessible in any other way.
3.2 The Customer's software license expires if he transfers the software license to a third party or if the contract is dissolved or suspended. T-MATIX is entitled to revoke the software license, if the Customer acts in violation of 8.1.
3.3 In the event of either expiration or withdrawal of the software license, the Customer loses the right to use the software and is obliged to delete the software from any internal or external computer storage devices. He is obliged to confirm this in writing to T-MATIX and give T-MATIX access to all computers and storage mediums to verify compliance with this obligation.
3.4 In the event of violation of one or more of the obligations mentioned in 3.1 and 3.3, T-MATIX is authorized to issue a penalty for breach of contract in the amount of ten times the gross price of the software. This contractual penalty applies as the minimum compensation.
4.1 All prices stated by T-MATIX are in Euros and exclude value added tax (unless explicitly stated otherwise). Prices are only valid for the relevant order. Price changes due to exchange rate fluctuations are possible.
4.2 The Hardware and Software prices quoted do not include any additional services, e.g. organizational consulting, support for migration, installation, training, maintenance, telephone support, etc.
5. Order Amendments and Cancellations
5.1 Order amendments or cancellations by the Customers are subject to written consent by T-MATIX. In the event of an order amendment, T-MATIX has the right to charge a minimum handling fee of 5% of the original order value for the additional expenses incurred.
5.2 For order cancellations, T-MATIX is entitled to claim a deposit of at least 15% of the purchase price, and in the event that costs incurred directly due to the cancellation of the order or accrued expenses are higher, T-MATIX is entitled to demand or retain this payment as a penalty.
6.1 Information provided by T_MATIX about expected delivery dates is non-binding unless explicitly confirmed in writing by T-MATIX. T-MATIX will however do its utmost to respect delivery deadlines wherever possible. In any case, T-MATIX shall not be liable for delays due to late deliveries from suppliers or any other act beyond their control. In the event of force majeure, labor disputes, natural disasters or other unforeseen supply problems, T-MATIX is released from delivery obligations and is entitled to extend the delivery date by an appropriate period.
6.2 The place of performance for all deliveries shall be the registered office of T-MATIX. All deliveries to the Customer take place at their own expense and risk. With regard to packaging and type of delivery, if nothing else is agreed upon, T-MATIX is shall be entitled to proceed at their own discretion. In any case, the Customer is in agreement with the transporting of the goods by T-MATIX or other third party. T-MATIX is not obligated to provide insurance cover. Failure by the Customer to take delivery of the goods in due time shall entitle T-MATIX to treat the whole contract as repudiated by the Customer and – regardless of an error on the part of the Customer - to claim a deposit of at least 15% of the purchase price, or in the event that the actual costs incurred or accrued expenses are higher, T-MATIX is entitled to demand or retain this payment as a penalty.
6.3 T-MATIX may suspend the fulfilment of its obligations when the Customer is in breach of their contractual duties.
6.4 T-MATIX is also entitled to make partial deliveries and to submit partial invoices.
7. Conditions of Payment
7.1 Customer payments are made by means of a standing order set up by the customer, an advanced payment or on account. All invoiced amounts are to be paid in full without deduction within 21 days.
7.2 If a monthly payment schedule is agreed upon for the leasing of software and 10 days have passed with unsuccessful payment reminders being sent out to the customer, T-MATIX reserves the right to lock the software until such time as all the obligations from this Agreement have been fulfilled or terminate the contract without notice and assert a claim for damages.
8. Title of Ownership
8.1 T-MATIX reserves title of ownership of all goods until the purchase price and any additional expenses are paid in full. As long as the reservation of title is in existence, the Customer may only have access to the goods with the prior written consent of T-MATIX.
8.2 Should the Customer be in breach of their contractual obligations due to delayed payments or mishandling of goods, T-MATIX is entitled to take possession of the reserved property at the customer's expense and/or withdraw the software license without cancelling the contract. The Customer´s contractual obligations are not repealed in this case and the Customer is obliged to facilitate in the retrieval or withdrawal of the property.
9. Product Liability
9.1 The goods have been prepared, inspected and tested to the best of our knowledge. However, potential product errors cannot be completely excluded. The Customer is obliged to examine the goods at the time of delivery. T-MATIX does not take responsibility for damage caused through use of their products.
9.2 The shift of the burden of proof is excluded as well as the supplier's duty to prove its innocence in respect of the damages.
10. Compensation for Damages
10.1 T-MATIX shall be liable for damage only to the extent that such damage can be proven to have occurred due to willful intent or gross negligence and only in accordance with legal provisions. This limitation of liability also applies to damages arising from violation of any pre-contractual obligations, affirmative breach of contract, unlawful acts or any other legal grounds. The liability for the reconstruction of destroyed data also requires that the Customer has ensured that the data can be restored at a reasonable cost by keeping the data in computer-readable form or providing backup copies. T-MATIX shall not be held liable for indirect damages, legal costs, savings and profits not made, loss of interest, or damages caused due to similar reasons. In all cases, liability shall be restricted to the amount of 10% of the order value at the time when the contract was concluded. The time limit for bringing all actions in respect of claims for damages shall be 12 months. To minimize the damage as far as possible, the Customer shall immediately notify T-MATIX if damage has occurred, or the claim shall be excluded.
10.2 The Customer shall be obliged to impose the liability exclusions and limitations mentioned in 10.1 completely to each of its further customers, and to obligate their customers to effect this waiver to their customers in turn. Should the Customer fail to further impose the aforementioned regulations, they will in this case indemnify T-MATIX and not hold them responsible for anys damage arising from claims made by third parties.
11.1. Under the title “References”, T-MATIX is authorized to use for its own purposes the basic business case information, in particular the contractors name as well as the use of Company Logos, proposed objectives (benefits) and services rendered (Portfolio).
12.1 The delivery of hardware and software is not considered a single entity. Lack of conformity in one area does not justify annulment in another area, unless an inseparable connection is expressly agreed in writing or a separate use of a part cannot reasonably be expected by the Customer.
12.2 Should individual terms of this Agreement be ineffective or lose their effectiveness, the legal effectiveness of the other provisions is not affected (Severability clause). The contractual provisions apply to the Customer, who is a consumer under the terms of the Consumer Protection Act, only as far as they are in compliance with the legal provisions of the Consumer Protection Act.
12.3 Headings contained in these Terms and Conditions merely serve as an overview and should not be considered as an interpretation of the provisions.
13. Applicable Law and Jurisdiction
All disputes arising from the contractual relationship between the parties are subject to Austrian law. As an internationally and locally competent court, the competent court in Graz is agreed.
as at May 2015