Terms and Conditions
General Terms and Conditions (GTC) of NexOpt GmbH
Effective Date: October 17, 2023
Effective Date: October 17, 2023
I. Preamble
NexOpt GmbH, FN 517885b (hereinafter referred to as "NexOpt"), has developed a Telematics and Fleet Management System (hereinafter referred to as "TFMS") capable of managing and optimizing an entire company's fleet. The use of this TFMS is subject to the following General Terms and Conditions (hereinafter referred to as "GTC").
II. Scope
These General Terms and Conditions apply to all contracts concluded between NexOpt and the customer in connection with the acquisition of TFMS, in their respective valid version at the time of the order. Any general terms and conditions of the customer or the supplier shall not apply.
III. Subject Matter of the Contract
(1) NexOpt is the inventor and copyright holder of TFMS and grants the customer the non-exclusive and non-transferable right to use TFMS upon payment of a license fee. The current scope of licenses and packages can always be found in the current monthly invoices.
(2) Additionally, the customer will receive a hardware module for the telematics system in a quantity corresponding to the ordered licenses, which will be installed in each vehicle at the customer's expense.
IV. Conclusion of Contract
Offers made by NexOpt do not constitute a legally binding offer but rather an invitation to the customer to submit an offer. Acceptance occurs through written confirmation by NexOpt of the customer's offer or by execution of the customer's submitted offer.
V. Payment
(1) All prices are in Euro, excluding VAT, taxes, and other incidental costs.
(2) The customer shall pay a license fee for the use of TFMS monthly by the 5th of each month. All payments are made without granting any discounts.
(3) The license fee is expressly agreed to be inflation-adjusted. The calculation of the inflation adjustment is based on the monthly Consumer Price Index 2020 (base year 2020) published by Statistics Austria or any replacement index. An adjustment can be made once a year. The reference index is the index number calculated for January 2023. Fluctuations of the index upwards or downwards up to and including 3% shall be disregarded.
(4) In case of non-compliance with the agreed payment deadlines, NexOpt is entitled to suspend ongoing services and terminate the contract. The resulting costs shall be borne by the customer.
(5) In case of late payment, default interest of 8% above the base rate will be charged.
(6) Force majeure does not relieve the customer from the obligation to fulfill its payment obligations. Remedies necessitated by cases of force majeure are not covered by the paid fee and will be invoiced separately.
VI. Delivery and Installation
(1) NexOpt delivers and installs the necessary hardware for using TFMS. The installation of the software and hardware is at the customer's expense. Training is also at the customer's expense. Access to TFMS is provided via an email invitation.
(2) NexOpt endeavors to adhere to the agreed delivery deadlines as accurately as possible.
(3) The customer undertakes to provide all necessary work and documents for fulfillment and to fulfill its obligation to cooperate to the necessary extent. NexOpt shall not be responsible for delivery delays and cost increases caused by incorrect, incomplete, or subsequently changed information and documents provided. The resulting additional costs shall be borne by the customer.
(4) NexOpt is entitled to make partial deliveries and issue partial invoices if necessary for the execution of the order.
(5) Circumstances beyond NexOpt's control (force majeure, labor disputes, natural disasters, etc.) entitle NexOpt to reasonably reschedule the delivery time.
VII. Data Processing
Data read through TFMS is transmitted to a server via mobile communication or an equivalent mode and stored there. In case of a data connection interruption, the data is cached until transmission is possible again. Initially, the data server for storage will be located at NexOpt but may be transferred to the customer at a later date. Nevertheless, data sovereignty remains with the customer at all times. All data, calculated data, or aggregated data are the property of the customer.
VIII. Intellectual Property and Use
• (1) NexOpt grants the customer a non-exclusive, non-transferable, non-sublicensable, and time-limited right to use TFMS to the extent of the licenses acquired according to Section III. (2) for simultaneous use on multiple motor vehicles and to use all work results created for its own internal purposes. All other rights remain with the contractor.
• (2) The customer is not granted the right to modify (even for error correction purposes), adapt, or translate the software, engage in reverse engineering, or develop derivative works therefrom.
• (3) The customer undertakes to refrain from any damage and impairment of NexOpt's intellectual property and to refrain from any behavior detrimental to NexOpt's business or marketing of NexOpt products.
• (4) If the customer is provided with software whose licensor is a third party, the granting of usage rights is subject to the license terms of this licensor.
• (5) The customer undertakes to use TFMS appropriately to ensure use by all NexOpt customers. NexOpt reserves the right to notify the customer of inappropriate use and to partially or completely suspend their services or terminate the contract by means of a written declaration.
• (6) The hardware module may only be used for the telematics system and for the customer's own purposes and is limited to the duration of the active contractual relationship. Ownership of the hardware module remains with NexOpt.
(7) The customer shall ensure that the use of TFMS does not violate or restrict other legal regulations or contractual agreements.
(8) The customer shall keep TFMS and all access data provided by NexOpt in a secure place protected against unauthorized access by third parties. The customer shall fulfill its obligations under this contract regarding the use, protection, and security of TFMS against its employees and other individuals to whom access to the programs is granted with NexOpt's consent.
(8) The customer shall keep TFMS and all access data provided by NexOpt in a secure place protected against unauthorized access by third parties. The customer shall fulfill its obligations under this contract regarding the use, protection, and security of TFMS against its employees and other individuals to whom access to the programs is granted with NexOpt's consent.
IX. Right of Withdrawal
(1) In the event of the agreed delivery time being exceeded solely due to NexOpt's fault, the customer is entitled to withdraw from the relevant order by registered letter if the agreed performance is not substantially provided within a reasonable grace period (at least 14 days) and the customer is not at fault.
(2) Customer cancellations require NexOpt's approval. In this case, NexOpt has the right to charge a cancellation fee of 25% of the remaining order value for services already provided and costs incurred.
X. Warranty
(1) NexOpt warrants that TFMS fulfills the functions described in the accompanying documentation if used in accordance with the instructions.
(2) NexOpt does not warrant that TFMS is completely error-free, but for any defect reported within six months of delivery, NexOpt will either replace it with a defect-free copy or rectify the defect, provided that:
a. The customer sufficiently describes the error in an error report and it is identifiable for NexOpt.
b. The customer provides NexOpt with all documents necessary for rectifying the error.
c. The customer or a third party attributable to them has not made any alterations to the TFMS software.
d. TFMS is operated under the intended operating conditions according to the documentation.
Costs for assistance, misdiagnosis, error correction, and troubleshooting caused by the customer as well as other corrections, changes, and additions will be charged by NexOpt. The legal notification of defects according to § 377 of the Austrian Commercial Code (UGB) remains unaffected.
• (3) The presumption of defectiveness according to § 924 is excluded.
• (4) NexOpt is not liable for errors, malfunctions, or damages resulting from improper operation, altered operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, deviations from installation and storage conditions, and transport damages.
• (5) NexOpt is not responsible for third-party services (e.g., GPS providers, mobile communication, cloud storage) necessary for the functionality of TFMS.
• (6) If TFMS is modified by the customer or persons attributable to them, any warranty by NexOpt is void.
• (7) Warranty claims expire six months after delivery.
• (8) Warranty claims are limited to an amount of six license fees. Additional expenses for improvements or replacements are to be borne by the customer.
XI. Liability
• (1) NexOpt is liable, including its assistants, only for gross negligence. This excludes personal injury and mandatory liability under product liability law.
• (2) There is no liability for indirect damages, such as loss of profit, costs related to business interruption, data losses, or claims by third parties, and especially not for damages to recorded data and not for the expenses for the recovery of lost data.
• (3) Temporary unavailability during maintenance windows does not entitle the customer to claim damages.
(4) Damage claims expire within one year after knowledge of the damage and the damaging party.
XII. Duration and Termination
(1) The contract for the provision of TFMS is concluded for a limited period of 2 years and subsequently converts into an open-ended contractual relationship.
(2) After the initial 2 years, the contract can be terminated by both parties with a notice period of three months to the end of the month by registered letter.
(3) Termination for cause remains unaffected. NexOpt may terminate the contract at any time, particularly for the following important reasons:
a. Serious or repeatedly minor breaches of contract by the customer, which are not remedied despite a warning with a reasonable deadline.
b. Opening of insolvency proceedings against the assets of the licensee.
c. If insolvency proceedings concerning the assets of the customer last longer than six months.
d. Rejection of the opening of insolvency proceedings due to lack of cost-covering assets.
XIII. Maintenance Agreement
The maintenance of TFMS is carried out based on a separately concluded maintenance agreement.
XIV. Non-Solicitation
The contracting parties commit to mutual loyalty. They shall refrain from any solicitation and employment, even through third parties, of employees who have worked on the implementation of the orders of the other contracting party during the term of the contract and for 12 months after termination of the contract. The contracting party violating this obligation shall be obliged to pay damages in the amount of one year's gross salary of the employee.
XV. Confidentiality
The parties are obliged to treat the content of their legal relationship, all information obtained about each other in the course of using the products provided by NexOpt, and all information obtained in this context about the other party, strictly confidential and to effectively protect them from third-party access.
XVI. Data Protection
• (1) The parties undertake to comply with data protection regulations within the scope of their sphere of influence.
• (2) In the course of using TFMS, data is stored. The customer expressly agrees that NexOpt may use this data for product development, technical diagnostics, and fraud prevention.
• (3) NexOpt will ensure that personal data within the meaning of the GDPR are anonymized and are no longer considered as such.
XVII. Applicable Law / Jurisdiction
Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods, shall be deemed agreed upon. For disputes arising from this contract, the local jurisdiction of the competent court for NexOpt's registered office shall apply exclusively.
XVIII. Amendment of General Terms and Conditions
NexOpt is entitled to unilaterally amend these General Terms and Conditions as far as necessary to eliminate subsequent equivalence disturbances or to adapt to changed legal or technical conditions. We will inform the customer about any changes, including the content of the modified provisions, to the last known email address of the customer. The amendment becomes part of the contract if the customer does not object to its inclusion in the contractual relationship within six weeks after receiving the notification of the change, in written or text form, to us.
XIX. Severability Clause
Should individual provisions of these GTC be or become invalid or contestable, the remaining provisions shall remain unaffected. These provisions shall be replaced by valid and enforceable regulations that come closest to achieving the intended economic purpose.