General Terms and Conditions
of EV-Box BV
shall mean the agreement between the Customer and EV-Box for the delivery of Equipment, Software and/or Services.
shall mean any natural person or business entity with whom EV-Box and its employees deal in the course of its business, including partner(s), representative(s), agent(s), successor(s) and including visitors of the EV-Box website.
shall mean any substantive failure of the Equipment, Software and/or Services to comply with functional or technical specifications specified in the applicable “product specsheet” to Customer by EV-Box.
shall mean EV-Box BV
shall mean an authorized EV-Box installer of Equipment.
1.6. Party or Parties:
shall mean EV-Box and Customer, individually or collectively.
shall mean the cables which are necessary for the functioning of the base-station.
shall mean the EV-Box products provided pursuant to the Agreement, including but not limited to computer equipment and/or other equipment, charging stations, supplies, goods, parts relating to charging station systems, and energy systems.
shall mean the full assortment of EV-Box’s services, including but not limited to consulting, research, application service provision, software as a service and/or computer services.
shall mean computer software, with accompanying documentation and specifications, including embedded software, non-final and/or uncompleted software and materials.
1.11. Terms and Conditions
shall mean these General Terms and Conditions of EV-Box BV.
2.1. These Terms and Conditions apply to all offers of EV-Box and exclusively govern the relationship between EV-Box and Customers, and any Agreement or other agreements between EV-Box and Customers, and any subsequent amendment to any agreement or the Agreement. These Terms and Conditions shall be applicable even if EV-Box uses third parties to deliver Equipment, Software and Services.
2.2. No other terms and conditions shall be binding upon EV-Box unless accepted by it in writing. EV-Box expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind EV-Box.
2.3. EV-Box reserves the right to amend these Terms and Conditions at any time. New or amended general terms and conditions shall be applicable upon thirty (30) days notice to Customer.
2.4. In case of inconsistencies between the terms of an Agreement and those contained in these Terms and Conditions, those in the Agreement shall control.
3. Offers and Acceptance
3.1. All offers of EV-Box are non-binding and may be revoked at any time, unless EV-Box stated otherwise in writing. Any amendments made by EV-Box in writing shall entail a new offer, automatically revoking the previous offer. Any amendments by Customer of an EV-Box offer will be deemed a new offer by Customer, which EV-Box may accept or reject in its sole discretion. Offers will only be deemed accepted by EV-Box if it does so in writing.
3.2. All information, data or undertakings provided verbally or in documentation, price lists or other material related to Equipment, Software and/or Services, whether in electronic or any other form, are binding only to the extent that they are by reference expressly included and confirmed in writing in the Agreement with EV-Box.
3.3. All offers are based on the information and documentation provided by Customer, and EV-Box may rely on the accuracy thereof. Customer warrants the accuracy, completeness and reliability of the information and documentation, even if it originates with or is acquired from third parties.
3.4. Customer hereby understands and accepts that all samples, drawings, models, figures, dimensions, weights or any other specifications for Equipment, Software and/or Services are estimates only, although EV-Box will use best efforts to ensure their accuracy.
4. Customer Obligations
4.1. Customer must, in an appropriate and timely manner, provide EV-Box personnel and Installer access to charging stations, facilities, Equipment, Softare, Cables, resources and information which EV-Box or the Installer necessarily needs for the proper execution of the Agreement, without charging EV-Box any fees. Customer shall cooperate with EV-Box or the Installer for the proper execution of any Agreement necessary and appropriate, without charging EV-Box any fees.
4.2. Customer shall timely provide EV-Box with all details and information required by EV-Box for the delivery of Equipment and/or the delivery of Services, specifications for which will be set forth by EV-Box in writing.
4.3. Customer shall solely be responsible for instructions or training given to, and use by users of the Equipment, Software and/or Services.
4.4. If Customer does not adequately meet the standards in this Article 4, then EV-Box retains the right to suspend the Agreement, and charge Customer for any extra costs and expenses caused by Customer’s failure.
5. Prices and Taxes
5.1. Unless stated in writing by EV-Box otherwise, all prices are based on Ex Works EV-Box’s Dutch warehouse, and do not include packaging, transport, insurance, and administrative costs and expenses, if any.
5.2. Configurations and prices of Equipment, Software and/or Services are subject to change at any time, and EV-Box shall at all times be entitled to modify price lists, brochures, printed matter, quotations and other documents.
5.3. All prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on EV-Box or Customer by any taxing authority (other than taxes imposed on EV-Box’s income), related to Customer’s order, unless Customer has provided EV-Box with an appropriate resale or exemption certificate for the delivery location, which is the location where Equipment and/or Software are used or Services are performed. In case of changes in law such that a tax is levied that is or becomes irrecoverable with a consequent increase to the costs to EV-Box of delivering the Equipment, Software and/or Services, whereby and to such an extent EV-Box is entitled to increase its prices accordingly and retro-actively.
5.4. The prices or fees quoted are in Euro’s, or in another currency if stated by EV-Box in writing. Customer shall bear any exchange rate risk, unless otherwise agreement in writing.
5.5. All Agreements for the delivery of Equipment, Software and/or Services to Customer shall be treated as separate agreements.
6.1. Customer agrees to pay, without the right to set-off any amount, all invoiced amounts within fourteen (14) days of the invoice date, unless stated otherwise in the Agreement or on the invoice. However, all amounts will be due immediately, in case Customer terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Customer under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Customer of its properties and/or interest for the benefit of creditors.
6.2. Where payment is not made within the terms set forth in this article, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in this article; part of a month shall be considered a full month.
6.3. Payments made by Customer shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Customer specifies that the payment relates to another claim.
6.4. Customer shall not be entitled to refuse to discharge or to suspend the discharge of its payment obligations on account of alleged disturbance of, defect or Error in the Equipment, Software and/or Services or on any other account whatsoever.
6.5. If EV-Box believes that Customer’s financial position and/or payment performance justifies such action, EV-Box has the right to demand that Customer immediately furnish security in a form to be determined by EV-Box and/or make an advance payment. If Customer fails to furnish the desired security, EV-Box has the right without prejudice to its other rights, to immediately suspend the further execution of the Agreement, and that which Customer owes to EV-Box for whatever reason will become immediately due and payable.
6.6. Customer shall be liable for amounts which EV-Box incurs to collect payment, including without limitation, collection agency fees, reasonable attorneys’ fees and arbitration or court costs.
7. Lead Times, Implementation, Risk of Loss
7.1. EV-Box shall deliver the Equipment, Software and/or Services in accordance with the Agreement. Delivery and/or development times and dates are merely estimates, as well as lead times or any other deadlines, and EV-Box cannot be held liable for any damages as a result of delay in delivery of the Equipment, Software and/or Services. Unless otherwise agreed in writing, failure to meet delivery times or delivery dates stated shall never be considered fatal, and if the time for delivery is exceeded, Customer shall not be entitled to cancel or terminate the Agreement, or to claim any damages.
7.2. If any delivery period or lead time risks to be exceeded, EV-Box will inform Customer as soon as reasonably possible and the Parties will enter into consultations in order to determine a new delivery period.
7.3. EV-Box is entitled to engage the services of third parties for the execution of an Agreement. EV-Box is entitled to make partial deliveries.
7.4. Unless agreed in writing differently, delivery of Equipment shall be made Ex Works EV-Box’s Dutch warehouse, as forth in the Agreement, The Netherlands, as this term is specified in the Incoterms 2010. Customer must accept delivery of Equipment during normal business hours, failing which all costs arising thereof (including storage charges and freight charges) shall be charged in conformity with EV-Box’s rates or local charges.
7.5. If Customer does not accept delivery within ten (10) days of the agreed delivery date, EV-Box may at its sole discretion resell any Equipment, Software and/or Services ordered by Customer, at a public or private sale without notice to Customer and without affecting EV-Box’s rights to hold the Customer liable for any loss or damage caused by breach of contract by Customer.
7.6. Claims in connection to shortages or errors in shipping must be reported in writing to EV-Box within three (3) business days of receipt of such shipment. If Customer fails to report timely, EV-Box will have no obligation to correct such shipments, unless Customer bears all the expenses thereof.
7.7. Immediately upon receipt of the Equipment, Software, and Services, Customer shall inspect it for defects and non-conformance with the Agreement and will notify EV-Box in writing within eight (8) days of receipt, of any defects or non-conformance. After such eight (8) day period, Customer shall be deemed to have irrevocably accepted the Equipment, Software, and Services, if not already previously accepted. After acceptance, Customer shall have no right to reject the Equipment, Software, or Services, for any reason or to revoke acceptance. Customer hereby agrees that an eight (8) day period is a reasonable amount of time for inspection and revocation.
7.8. In the case of any alleged shortage, errors, defects or non-conformance with the Agreement, Customer shall allow EV-Box to inspect the Equipment, Software and the results of Services, subject to the alleged defect.
7.9. Notwithstanding the above, EV-Box will have no obligation to replace or repair any Equipment if the Equipment have been handled, processed or stored improperly by the Customer, or if the Customer has not fully met its obligations under these Terms and Conditions.
7.10. The risk of loss or damage of Equipment shall pass to Customer at the moment of delivery Ex Works, or when the Customer, or an agent or subcontractor acting on its behalf, has effectively assumed control of the Equipment, whichever is sooner, even if EV-Box has not yet transferred ownership thereof. Any damage to the Equipment, or any loss related thereto, shall be for the account of the Customer.
7.11. The sole and exclusive remedy for allegedly defective equipment is the replacement or repair of such equipment,, or parts thereof, at no costs for customer.
8. Intellectual Property Ownership and Right of Use
8.1. Customer will have a personal non-exclusive, non-transferable and non-sub-licensable license to use the Equipment and the Software provided to Customer, solely for Customer’s personal use, while the Customer complies with the terms of the Agreement and these Terms and Conditions. If Customer is an EV-Box authorized partner, Customer will be authorized to provide a similar limited sub-license as set forth in the Agreement and these Terms and Conditions, only to its customers who have purchased Equipment directly from Customer.
8.2. Customer is not allowed to modify, or to make any additions to the Equipment and Software. Customer is not allowed, and will not allow third parties, to lease Equipment to third parties, or allow third parties to commercialize the Equipment in any way.
8.3. Customer understands and hereby accepts that the source code related to the Software shall not be available to the Customer. Unless otherwise agreed in writing, EV-Box shall not be required to provide Customer any program or data libraries, even if these are required for the use and/or maintenance of the Software and the Equipment.
8.4. EV-Box shall have the right to change Software and/or to discontinue Software from time to time and shall not be liable for any loss or damage of whatever kind or nature suffered or incurred by Customer as a result thereof.
8.5. EV-Box may implement upgrades and/or updates available from time to time with regard to the Software, but is under no obligation to do so. Customer is required to always use the latest upgrades and updates of the Software.
8.6. All hardware, software and items used by EV-Box in providing the Services shall remain the property or the intellectual property of EV-Box or its own suppliers, even if the Customer pays a fee in respect of the development or purchase of these by EV-Box.
8.7. All intellectual property rights, e.g., patents, copyrights, trademarks, designs, models, know-how and all proprietary and/or commercial rights and trade secret rights, tools, documentations, etc., in relation to the Equipment, Software and/or Services, including modifications thereto, delivered and/or used by EV-Box, are owned by EV-Box or its licensor(s). No transfer or other grant of rights is given to Customer, unless explicitly stated in writing. This applies even if Equipment, Software and/or Services have been specifically designed, developed or complied for Customer.
8.8. Unless otherwise agreed in writing, Customer may not make repairs or modifications to the Equipment, Software and/or Services, nor allow or enable any third parties to do so. Customer may not, nor may enable and/or allow third parties to copy, translate, or reverse engineer any Equipment, Software and/or Services.
8.9. EV-Box, in its sole discretion, may implement technical measures aimed at protecting the Equipment, Software and/or Services, and Customer is prohibited from attempting to remove or circumvent such protections.
8.10. Unless agreed upon in writing by EV-Box otherwise, Customer shall not be permitted to affix any other trademark to the Equipment, Software and/or Equipment, or to remove any copyright, trademark or other proprietary rights notices on same, or to use the relevant mark in any other way, or to register it in Customer’s own name, and specifically Customer shall not be permitted to register any patent involving, based upon, or for any of the Equipment, Software and/or Services.
8.11. If a third party threatens to infringe any of the intellectual property rights of EV-Box and Customer has knowledge of it, Customer is obliged to alert EV-Box immediately and to take all measures necessary to prevent the infringement, and Customer shall lend its full cooperation to any investigation to be conducted by or on behalf of EV-Box in relation to the Customer’s compliance with the agreed restrictions of use and at first request of EV-Box, Customer shall grant EV-Box or its representatives access to Customer’s buildings and systems.
9. Confidential Information
9.1. Confidential Information means (i) the existence and terms of any agreement between the Parties and (ii) any non-public, confidential or proprietary information relating to a disclosing Party, whether or not technical in nature, including any that is designated by the disclosing Party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving Party; (ii) is rightfully obtained by the receiving Party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving Party at the time of disclosure by the disclosing Party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing Party; or (v) is developed independently and separately by either Party without use of the disclosing Party’s Confidential Information.
9.2. Each Party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other Party and that it will observe the same due care with respect to such information as it would observe with respect to its own Confidential Information. The other Party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without disclosing Party’s prior written consent, which consent may be granted or withheld in such Party’s sole and absolute discretion.
9.3. Each Party agrees that it will restrict the circle of employees or third parties it retains who have access to the other Party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in these Terms and Conditions.
9.4. Immediately following the receipt of a written request to this effect by the disclosing Party the receiving Party will return any and all Confidential Information received from the disclosing Party or destroy such Confidential Information, if the disclosing Party so requests.
10. Duration, Termination and Suspension of Performance
10.1. The duration of the Agreement for a recurring, subscription or periodic Equipment, Software and/or Services is one (1) year, unless otherwise agreed in writing by the Parties. Such an Agreement shall automatically renew for subsequent one (1) year periods unless one Party notifies the other Party in writing, with a notification period of three (3) months before the expiration date of the initial or extended period that it will terminate the Agreement.
10.2. Any Agreement for a certain project will end after completion of such project.
10.3. Customer cannot terminate the Agreement for convenience, exception in accordance with the provisions above.
10.4. If Customer believes that EV-Box has failed to perform under the Agreement, it must notify EV-Box in writing and allow two (2) weeks for EV-Box to cure if it has failed to perform.
10.5. If Customer fails to make payment of any amount due on the due date or Customer otherwise fails to perform its obligations under the Agreement or these Terms and Conditions, or if EV-Box reasonably expects that Customer will not fulfill its obligations, EV-Box may in its sole and absolute discretion suspend performance under its Agreement with Customer and/or terminate the Agreement (in whole or part), with immediate effect, without being liable for any damages to Customer.
10.6. Notwithstanding the above and without any obligation to return any service fee or prepaid expenses, EV-Box may terminate its relationship with Customer, or may terminate or suspend EV-Box’s delivery of Equipment, Software and/or Services at any time, or terminate or suspend Customer’s use of the Software and/or Services at any time: (i) if Customer is in breach of these Terms and Conditions and/or the Agreement; (ii) if EV-Box reasonably suspects that Customer is using Equipment, Software and/or Services to breach the law or infringe third party rights; (iii) if EV-Box reasonably suspects that Customer is trying to unfairly exploit or misuse the complaint policy, or any of EV-Box’s policies; (iv) if EV-Box reasonably suspects that Customer is using Equipment, Software and/or Services fraudulently, or that Equipment, Software and/or Services provided to Customer are being used by a third party fraudulently; (v) for a force majeure event that continues for more than ten (10) days upon notice; (vi) if Customer fails to pay any amounts due to EV-Box; (vii) if required due to change in laws/regulation by a regulator or authority with a lawful mandate, or by any of EV-Box’s partners; (viii) in respect to a particular EV-Box product, Software and/or Service, upon thirty (30) days’ notice if EV-Box decides to cease offering that Equipment, Software and/or Service; (ix) the bankruptcy of the Customer has been applied for; (x) an attachment is levied on the goods of Customer; (xi) Customer is liquidated or discontinued; and/or (xii) Customer is in violation of any applicable laws or regulations.
10.7. Upon suspension and/or termination, all invoiced sums will become immediately due and payable. In the event of suspension of performance by EV-Box, EV-Box may at its sole discretion resell any Equipment, Software and/or Services ordered by Customer, at a public or private sale without notice to Customer and without affecting EV-Box’s rights to hold the Customer liable for any loss or damage caused by breach of contract by Customer.
11.1. EV-Box warrants its Equipment and Software against Errors and defects in materials and workmanship for twenty four (24) months from the date of delivery, during which time it will use its best efforts to repair any Errors, if any. However, any such problems encountered out of any causes that are not attributable to EV-Box, shall be for Customer’s risk and account.
11.2. At its sole discretion, EV-Box will repair or replace any Errors and/or defective Equipment during the warranty period. EV-Box may conduct warranty services at any location, at its sole discretion, and EV-Box may apply temporary patches, solutions, and or restrictions relating to the Equipment and Software as part of the warranty services.
11.3. The warranties hereunder do not cover faults or damages arising from faulty, careless, or improper treatment, faulty and unauthorized commission, improper storage or unloading and unauthorized modifications, incorrect use or misuse of Equipment and Software, and improper or defective environmental circumstances, or a failure caused by a product for which EV-Box is not responsible. EV-Box does not warrant that Equipment and Software will operate without interruption or error.
11.4. Warranty claims are only allowed and EV-Box will only be obligated to conduct warranty services, provided Customer is not breaching any of its obligations towards EV-Box, and EV-Box has been informed of the warranty claim in detail, within ten (10) days of date on which the defect first occurred.
11.5. Unless stated by EV-Box in writing otherwise, discounted Equipment and Software are not covered by any warranty.
11.6. To the maximum extent permitted by applicable law, EV-Box, its licensors, third party suppliers, and affiliates hereby disclaim all warranties, conditions, claims or representations with respect to the EV-Box equipment, software and/or services whether express, implied or statutory or otherwise, including, but not limited to implied warranties or conditions of merchantability, quality, non-infringement, compatibility or of fitness for a particular purpose. No advice or information, whether oral or written, obtained from EV-Box or elsewhere will create any warranty or condition not expressly stated in these terms and conditions.
11.7. Customer warrants not to: (i) copy, modify, translate, or reverse engineer any portion of the Equipment, Software and/or Services; (ii) use any robot, spider, other automated device, or manual process to monitor or copy the Software or parts thereof; (iii) reformat or frame any portion of the Software; (iv) interfere with the access of any other users of the Software; (v) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature through the Software; (vi) use the Software to violate the security of any computer network, crack passwords or security encryption codes; or (vii) use any device, software or routine that interferes with the proper working of the Software.
12. Maintenance, Support and Other Services
12.1. Any maintenance, support and other services can only be conducted by EV-Box, if and when a proper working EV-Box sim-card is installed in the Equipment. If the EV-Box sim-card is not installed or not working properly, regardless of the cause, EV-Box may refuse to conduct, terminate or suspend services, at its sole discretion, without incurring any liability in connection thereto, until a proper working EV-Box sim-card is installed.
12.2. Maintenance is not included in any Agreement unless explicitly stated in writing. If installation and/or maintenance is provided for in the Agreement, Customer shall provide EV-Box, or a party designated by EV-Box to conduct maintenance services, access to all materials relevant to the installation and maintenance of the Equipment, Software and/or Services and must provide for adequate working space and facilities, and access to and use of information, and Customer’s resources and facilities as reasonably determined necessary by EV-Box. If Customer fails to provide such access, resulting in EV-Box’s inability to install or maintain or service the Equipment, Software and/or Services, EV-Box shall be entitled to charge Customer its standard rates for all related travel time and time EV-Box personnel, including third party personnel, is present at the Customer’s premises. Customer must notify EV-Box in advance if Customer’s premises, or parts thereof, might pose a health or safety hazard to EV-Box’s employees or subcontractors. EV-Box may postpone installation, service or maintenance until Customer remedies such hazards, without being liable to Customer for any damages. Customer will always have a representative present when EV-Box provides services or maintenance or installation at Customer’s site
12.3. All support and other services will be performed in a professional and workmanlike manner by or on behalf of EV-Box by persons with appropriate knowledge and skills. All services are conducted during normal business hours.
12.4. Support services are services relating to charging stations as set forth in the Agreement, which services may be conducted locally on site, or remotely.
12.5. EV-Box may make adjustments to the content and scope of any of its services. If such adjustments result in a change in the procedures or fees that apply to Customer, EV-Box shall notify Customer as soon as possible.
12.6. In case of questions or problems with Equipment, Customer must first attempt to find a solution by reviewing the “Frequently Asked Questions” list on EV-Box’s website. Only if and when this does not answer the question, or solve the issue, Customer may contact the Support Desk of EV-Box, as described in the Agreement. The services of the EV-Box Support Desk will be charged to Customer, as set forth in the Agreement.
12.7. EV-Box may, at its sole discretion, conduct preventive maintenance of Equipment to avoid possible errors or defects. Customer must allow and provide EV-Box the opportunity to perform such preventive maintenance, without any charges to EV-Box. EV-Box will not charge Customer for preventive maintenance, unless agreed upon otherwise in the Agreement.
12.8. In case of on-site support or maintenance services, a representative of Customer must be present at all times and disconnect any power lines at EV-Box’s request, and furthermore Customer shall provide any assistance, and follow any instructions, as reasonably required by EV-Box, without any charges to EV-Box.
12.9. All costs and expenses in connection to any services by or on behalf of EV-Box, including but not limited to travel-costs, costs of replacement parts, and cost for labor, will be as set forth in the Agreement.
12.10. EV-Box will respond within two (2) days of any malfunction of the charging station. In case of an emergency, to be determined solely by EV-Box, EV-Box will respond within one (1) day.
12.11. Customer understands and agrees that downtime or inaccessibility may result from EV-Box’s implementation of updates, upgrades, or other services related to the Equipment and Software, and EV-Box shall not be liable for any damages relating to such downtime or inaccessibility.
12.12. At Customer’s request, EV-Box will provide an annual report showing per Customer location, all malfunction events during the preceding 12 month period, and how these were resolved.
12.13. EV-Box will not provide any services in connection to:
12.13.1. Equipment, including charging stations, located outside of the territory of The Netherlands.;
12.13.2. Vehicles, which may or may not make use of a charging station connector;
12.13.3. The electrical installation connected to Equipment, including but not limited to, the distribution unit and power supply;
12.13.4. Equipment not installed by or on behalf EV-Box or by Installer
12.13.5. Equipment that has been tampered with, or has been modified in any way without authorization of EV-Box, or charging stations disconnected from power supply;
12.14. Unless specifically agreed upon in writing by EV-Box, EV-Box will not provide any services in connection to damages or errors caused by unauthorized. or faulty use, or misuse of any Equipment, or damages or errors caused by other external causes, such as weather damage, earthquakes, or other natural causes, acts of governmental authorities, acts of war or other causes not attributable to EV-Box.
13. Liability, Limitation of Damages and Indemnification
13.1. EV-Box disclaims any and all responsibility or liability in relation to EV-Box’s equipment, software and/or services. Neither EV-Box nor its officers or affiliates may be held liable whether in contract, warranty, tort (including negligence), or any other form of liability for any claim, damage, or loss, (and customer hereby waives any and all such claims or causes of action), arising from or relating to all such equipment, software and/or services.
13.2. The EV-Box software and/or EV-Box’s website, including all content, software, functions, materials, services, and information available on or accessed by means thereof, is provided “as is.” To the fullest extent permissible by law, EV-Box makes no representations or warranties of any kind whatsoever for (1) the currency, accuracy, or completeness of any information available by means of the software and/or its website (2) for any information provided by third parties and accessible on or through the software and/or services, (3) for any “viruses” or malicious computer code transmitted on or through the software and/or its website, (4) for any breach of security or unauthorized access to the software and/or website or customer information. Ev-box further does not represent or warrant that the EV-Box software and/or website will always be secure, uninterrupted, timely, accurate, complete, error-free or free from viruses nor does EV-Box warrant any quality of the software and/or its website. Ev-box is not responsible for the conduct of any user of the software and/or its website.
13.3. Customer is solely responsible and liable for all activities conducted through equipment and/or software by users, even if such activities were to occur without customer’s permission. Ev-box disclaims any and all responsibility or liability in relation to the acts and omissions of users through EV-Box’s equipment and/or software. Neither EV-Box nor its officers or employees or affiliates may be held liable whether in contract, warranty, tort (including negligence), or any other form of liability for any claim, damage, or loss, (and customer hereby waives any and all such claims or causes of action), arising or relating to all such acts and omissions.
13.4. In no event shall EV-Box, its affiliates or its licensors be liable, however caused and whether arising under contract, warranty, tort (including negligence), product liability or any other form of liability, for any indirect, incidental, special, punitive or consequential damages, or any loss of income, business, sales, profits (whether actual or anticipated), loss of or corruption to data, or interruption of business.
13.5. Notwithstanding anything else in this agreement to the contrary, EV-Box’s aggregate liability for all claims of any kind shall not exceed the total of fees paid to EV-Box, or fifty thousand usd ($50,000), wichever is less.
13.6. The limitations on EV-Box’s liability above shall apply whether or not EV-Box, its employees, licensors or its affiliates have been advised of the possibility of such losses or damages arising.
13.7. Customer must provide written notice no later than ten (10) days after damage/injury has occurred, or after customer received knowledge of such damage/injury. If such notice has not been received, EV-Box cannot be held liable for the damage/injury.
14. Indemnification customer
14.1. Customer agrees to indemnify, defend and hold EV-Box, its present and future officers, directors, shareholders, employees, agents and its affiliates harmless from and against any and all claims, demands, losses, damages, penalties, liability and costs, including reasonable attorneys’ fees, in connection with or arising out of any breach of the agreement or these terms and conditions by customer or its users.
14.2. Customer agrees to indemnify, defend and hold EV-Box, its present and future officers, directors, shareholders, employees, agents and its affiliates harmless from and against any and all claims and threatened claims by any third party, including employees of customer arising out of, under or in connection with (1) the death or bodily injury of any third party, including any agent, employee, customer, business invitee or business visitor of customer, or, (2) the damage, loss or destribution of any tangible personal or real property at customer’s premises, both only to the extent that such was not a result of gross negligence by EV-Box or its personnel.
EV-Box and Customer shall pay all necessary costs to maintain sufficient insurance policies to cover its personnel and premises for activities contemplated by or performed in connection with the Equipment, Software and/or Services.
If any provision of these Terms and Conditions, the Agreement or any other agreement between the Parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
17. Force Majeure
EV-Box will not be liable for any delay in performing or failure to perform any of its obligations under these Terms and Conditions or the Agreement caused by events beyond its reasonable control. EV-Box will notify Customer promptly in writing of the reasons for the delay or stoppage (and the likely duration) and will take all reasonable steps to overcome the delay or stoppage.
Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. EV-Box is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
19. Entire Agreement
The Agreement and these Terms and Conditions contain the entire agreement between EV-Box and Customer regarding Customer’s purchase of the Equipment, Software and/or Services, and supersedes and replaces any previous communications, representations or agreements, or Customer’s additional or inconsistent terms, whether oral or written.
20. No Waiver
The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or these Terms and Conditions or by law shall not constitute a waiver of that right, power or remedy. If EV-Box waives a breach of any provision of these Terms and Conditions or the Agreement, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
21. No Beneficiaries
Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.
22. No Partnership
Nothing contained in any agreement between the Parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the Parties. Neither of the Parties may pledge or purport to pledge the credit of the other Party or make or purport to make any representations, warranties, or undertakings for the other Party.
23. Injunctive Relief
Customer acknowledges that EV-Box shall suffer irreparable injury in case of breach of the obligations under Articles 8 and 9. Accordingly, in the event of such breach, Customer acknowledges that EV-Box will be entitled to injunctive relief in any federal court of competent jurisdiction The Netherlands. Customer further submits to the personal jurisdiction of such courts for the purposes of any such action.
24. Governing Law and Arbitration
Unless stated otherwise in writing, any and all agreements between the Parties shall be governed by and construed in accordance with the laws of The Netherlands, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. The language of the arbitration shall be English or Dutch. Any award, verdict or settlement issued under such arbitration may be entered by any party for order of enforcement by court Amsterdam, unless both parties mutually agree to another court. Any cause of action against EV-Box, regardless whether in contract, tort or otherwise, must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.