§1 Contractual Subject
The E-Mobility Provider (hereafter “EMP”) allows E-Mobility Users (hereafter “EMU”, the end-customer) to access charging stations operated by the EMP or by third parties. The EMU gets access to these charging stations and can charge their electrically powered vehicle at these charging stations for a fee. For operation and billing, the EMP uses products and services from has·to·be gmbh, including, among others, the “be.ENERGISED COMMUNITY" solution (hereafter “Voucher System”) for billing of charging operations. This voucher system is a rechargeable card and accounts based voucher system. The EMU can purchase charging vouchers via the EMP's web portal and then redeem them for charging operations carried out at the EMP or third party devices.
§2 Composition of the contract of sale
§3 Right to withdraw according to the Austrian Distance Selling Act – FAGG
According to § 11ff. of the Austrian Distance Selling Act (FAGG), the EMU is entitled to withdraw from the concluded contract within 14 calendar days (date of the charging of the balance account). The withdrawal period begins with the transfer or payment of the first top up of the account. If you wish to exercise your right of withdrawal, your withdrawal request must be expressly stated to has·to·be gmbh, Salzburg Street 20, A-5550 Radstadt. If you do not exercise your right to withdraw, the contract will end in accordance with the termination and term periods specified in §8.
We would also like to point out that within the withdrawal period, the fulfilment of the contract may not begin until your express consent has been obtained. In this case, we are entitled to demand the agreed fees and rates for services provided by has·to·be before the expiry of the withdrawal period to which you are entitled.
§4 Services from has·to·be gmbh
has·to·be gmbh performs payment processes and payment bookings to the EMU's credit account as part of the recharge of the credit account within the recharging framework. In addition, has·to·be gmbh issues a proof of transaction for the purchase of the voucher. The EMU may consume the credit on the voucher, based on their individual contractual relationship with the EMP, at charging stations to which the EMP allows access. After charging operations, has·to·be will reduce the EMU's balance by the gross amount of the charging process and transfer the amount of money to the EMP. The EMP sends to the EMU an invoice for the services used in a bilaterally defined period of time.
§5 EMU Obligations
When carrying out charging operations, the EMU ensures that there is either sufficient credit in the credit account to carry out the charging process, or that a payment method for making automated bookings has been configured on the balance account which enables the automated recharge of charging credits. If, after carrying out a charging balance, the available account balance is insufficient, the credit account will be suspended by has·to·be and will no longer be available for further charging operations. The EMU is required to carry out the account recharge for a positive amount within 7 calendar days or to deposit a payment method that allows the account to be automatically charged. Should the balance reach a negative balance, has·to·be will transfer the successfully paid amounts to the EMP, whereby the remaining claim to the EMP's invoice amount from the EMU will remain in place and may be subject to legal process by the EMP on the basis of the legal framework and the contract between the EMP and EMU.
The EMU also undertakes not to cancel or recall any credit transactions made to the credit account with their credit card provider.
§6 Liability of has·to·be gmbh
has·to·be is liable to EMU for carrying out the payments to the EMP of the charging related services used by the EMU and the amounts contained in the credit account. has·to·be ensures that the amounts of credit acquired by the EMU are available on their credit account and can be used for charging operations according to the contractual relationship. has·to·be is not liable for the disbursement of amounts to the EMP if the EMU's credit account is overdrawn and is not adequately covered. has·to·be is also not liable for the correct performance of charging operations at charging stations from the EMP or third parties. Any liability for damage to the EMU vehicle is excluded. The liability of has·to·be for slight negligence is excluded.
To the extent permitted by law, has·to·be’s liability for damages is limited under the basic value of the contract. The sum of the claims for damages of all claimants resulting from a single, time-related, rendered, definable and, in this respect, uniform performance is considered to be a single claim for damages. Liability for consequential damages, including the loss of profits and indirect damages, is excluded.
Any claim for damages by the EMU shall be statute-barred for twelve months, after the EMU’s knowledge of said damage.
has·to·be is not liable for the occurrence of a force majeure event that makes the fulfilment of the contract impossible, delayed or otherwise difficult. If such an event occurs on the side of a contracting partner, this must be communicated to the other contracting party without delay. Force majeure is tantamount to industrial action and similar circumstances.
§7 Charging and discharging, refund of credit
The EMU can load up vouchers to a total of € 400 Euros. This is the maximum limit for a voucher account.
has·to·be allows the EMU to refund existing credit. The refund of funds can only be refunded to the means of payment used by the EMU when purchasing the voucher (credit card, bank transfer, PayPal). If the payment medium no longer exists at the time of the desired refund or if its validity has expired (for example, with credit cards), a refund of the balance is not possible. The refund of purchased vouchers is subject to a fee and will be charged to the EMU with a one-off processing fee of € 6.00 Euros. The amount to be refunded will be reduced by has·to·be by the processing fee and refunded to the payment method used by the customer. The refund of funds must take place within the time limits according to “§8 Term and termination."
There is no interest on the outstanding credits.
§8 Term and termination
The contract between the EMU and has·to·be is concluded with the execution of the first charge of the voucher, runs for at least 24 months and ends automatically after the expiry of the validity of a voucher. An acquired voucher is valid for 24 months from the time of the acquisition and automatically loses its validity after the expiry of this period if no recharge with credits to this voucher has been made during this period. By recharging this voucher, the validity period is automatically extended for a further 24 months.
§9 Statute of limitations
In any case, the entitlement to a repayment of the balance of a voucher expires after one year from the date of the voucher's invalidity.
§10 Suspension and abuse
The EMU is obliged to suspend the credit account via the EMP’s web portal in the event of loss or theft of the charging card. If the EMU fails to comply with their obligation, the liability of has·to·be for an abusive use of the credit account shall lapse.
If has·to·be notices an abuse of the credit account, has·to·be is entitled to suspend the account without warning in the sense of protecting the EMU. In the event of an account suspension, the EMU will be informed of the reason for the suspension and will have the opportunity to comment on it. If the abuse allegations prove incorrect, has·to·be will release the account again for further use.
If has·to·be can prove an attempt at abuse by the EMU beyond any reasonable doubt, has·to·be is entitled to terminate the voucher account without notice. The suspension of the account is charged with a processing fee of € 100.00 Euros by has·to·be. The EMU may, in the event of a lawful suspension, request in writing a repayment of the balance minus the handling fee of € 100.00 Euros within 14 calendar days after the suspension. If this time limit is not adhered to, this claim shall be statute-barred.
Warning: The balance in the EMU's voucher account can be used within the contract relationship with the EMP as if it were cash. The loss of the debit card connected to the voucher account can, without additional security measures, lead to charging operations which must be paid for. Therefore, look after the debit card associated with the voucher account as carefully as if it were cash.
§11 Disagreements between EMP and EMU
The EMU has to address and clarify disagreements concerning the basic business (for example, complaints about invoice content, invoice amount or warranty claims) exclusively to their EMP. has·to·be assumes no liability and does not provide communication in connection with the basic business that has taken place between the EMP and EMU.
§12 Costs and fees
The purchase of the voucher as well as the carrying out of charging operations is free of charge for the EMU. has·to·be will bill the EMU for the repayment of credit according to § 7.
§13 Data Protection
has·to·be undertakes to use data and processing results exclusively as part of the operation of the voucher account of the EMU and to return it exclusively to the EMU or to transmit only after the EMU’s written confirmation. The EMU expressly entitles has·to·be to disclose to the EMP the data required to fulfil the contract.
has·to·be legally binding declares that they have obliged all persons entrusted with data processing to maintain data secrecy within the meaning of § 15 DSG 2000 before taking up the activity. In particular, the obligation to maintain confidentiality by the persons entrusted with data traffic remains intact even after the termination of their activities and the departure of has·to·be.
has·to·be legally binding declares that they have taken sufficient security measures within the meaning of § 14 DSG 2000 to prevent data from being used unlawfully or made accessible to unauthorised third parties.
has·to·be will comply with the provisions of § 26 (right of information) and § 27 (right to rectification or deletion) DSG 2000 to the person concerned at any time within the legal time limits.
has·to·be will store EMU personal data electronically for at least 7 years and process it electronically in order to carry out invoices and transactions within the meaning of the DSG 2000. has·to·be guarantees data protection according to registration with the Austrian Data Processing Register under the registration number DVR 4015073.
§14 Other provisions
The communication language between has·to·be and the EMU is German. The contract language is German. Exclusively Austrian law applies, with the exception of reference standards of the IPRG. The application of the United Nations Convention on International Purchase of Goods (UNCITRAL Purchase Rights Convention) is excluded. In case of dispute, the disputed value will be declared exclusively to the responsible Salzburg Court.
Important communications are made, insofar as no other single rules exist, in writing or by fax and must be addressed to a qualified contact person of the recipient. Notifications are deemed to have been sent on time if the document was given to the post office before the expiry of the relevant time limit (date of the postmark).
Verbal side agreements to these general provisions and this contract do not exist. Changes and additions to these general provisions or the contract require written form and must be explicitly referred to as amendments to the general provisions or contract.
The irrefutable presumption applies that the written form can never be deviated from by verbal agreement. The written form requirement is also maintained by use of a fax.
Multiple EMU’s are liable to has·to·be for an undivided hand.
Both parties undertake to transfer the rights and obligations to legal successors, whether through organisational changes, reorganisation measures or other measures, as a result of and in connection with this contract.
Should provisions of this contract be invalid, the remaining contract points shall remain unaffected. The parties undertake to agree on a provision as economically close to the invalid provision as possible, but which is, however, admissible.
Status: March 2016