ABB E-Mobility – General Terms and Conditions of Wallbox Sales via Smart Platform

These General Terms and Conditions of Wallbox Sales via Smart Marketplace (“GTC”) apply to sales to consumers and entrepreneurs as follows:

  • For sales to consumers, the provisions in Part A of these GTC apply. “Consumer” in the sense of these GTC means a natural person who, when placing an order, is not acting in the course of a commercial or independent professional activity, but for private purposes.
  • For sales to entrepreneurs, the provisions in Part B of these GTC apply. “Entrepreneur” in the sense of these GTC means a natural or legal person or a partnership with legal capacity who, when placing the order, acts in the exercise of its commercial or independent professional activity. For the purposes of these GTC, legal entities under public law shall also be deemed to be entrepreneurs in the aforementioned sense.
  • “ABB” in the sense of these GTC means ABB E-mobility B.V., a company registered under the laws of the Netherlands, with establishment number 24000504, having its principal place of business at Heertjeslaan 6, 2629 JG Delft, the Netherlands.

PART A: PROVISIONS FOR SALES TO CONSUMERS

1. GENERAL

1.1 These GTC apply to the sale and purchase and, if applicable, the installation of the AC Wallbox and any accessory (“Wallbox”) by ABB via the marketplace where the Wallbox is purchased by the Customer (“Marketplace”) to end-customers (“Customer(s)”) and to the sales agreement (“Sales Agreement”) concluded by ABB and the Customer for this purpose. This Part A (Sections 1-15) of these GTC apply to Customers that are Consumers as defined above.

1.2 By placing an order with ABB, the Customer agrees to the application of these GTC.

1.3 Deviations, amendments and supplements to these GTC and other specific agreements must be made in text form (including email) to be effective. This also applies to the cancellation of this formal requirement.

1.4 Delivery and installation of the Wallbox is limited to the territory of Germany (“Territory”).

1.5 For any questions and issues arising in connection with orders of Wallboxes via the Marketplace, the Customer may contact the smart customer support center (“smart CSC”) under https://e-mobility.abb.com/smart-charge-at-home/ for support.

2. OFFERS/ORDERS/AGREEMENT

2.1 Any presentation of ABB goods and service options on the Marketplace and any other websites is indicative and does not constitute a legally binding offer from ABB but is for information and illustration purposes only. The actually obtainable charging power of the Wallbox will depend on the technical specifications of the Customer’s existing power supply installation and may thus be below the technical capabilities of the Wallbox.

2.2 To complete the order the Customer must fill in all required information in the Marketplace, choose an available payment method, and confirm acknowledgement of these GTC. Before completing the order process the Customer will be able to review and amend its information or to cancel the order process. The Customer will place a binding order with ABB by accepting the  “obligation to pay button”. ABB will then by email confirm receipt of the order without undue delay.

2.3 ABB is only bound and a binding Sales Agreement is only concluded once ABB declares acceptance of the order in text form (including email) or executes the delivery. The Customer is responsible and liable for any unclear or incorrect details in the order process.

2.4 The Wallbox requires the installation by a qualified technician or installer only. The Customer may during the order process elect that installation of the Wallbox will be done by one of ABB’s local installation partners (“Installation Partner”) against charge. Upon ABB’s confirmation of receipt of the order, the Customer will be required to conduct a pre-installation check in the event that the Customer elected installation. With respect to the ordered installation, ABB’s acceptance of the order will be subject to the outcome of the pre-installation check as will be notified by ABB to the Customer. As a result of the pre-installation check, ABB will determine whether installation is feasible at all and, if so, whether the standard installation ordered is sufficient in the Customer’s case or whether the installation requires additional costs beyond the costs of the standard installation already paid on the Marketplace by the Customer, for example, if additional parts and services are required for installation to be effected (“Additional Installation Costs”). In this case, ABB shall inform the Customer by email accordingly and shall offer the Customer the modalities of the additional requirements for installation (including Additional Installation Costs). If installation requires measures beyond the installation services offered by ABB, the Customer may seek a separate installation offer from the Installation Partner or other qualified service provider. Such offer will not be part of the Sales Agreement.

2.5 ABB will not store the relevant contractual information for the benefit of the Customer.

3. PRICE

3.1 All prices to be paid by the Customer as indicated on the Marketplace  and order documentation include the applicable statutory VAT (gross price) and include delivery costs unless specified otherwise.

3.2 In the event that the Customer elected installation, the costs of the standard installation are added to the purchase price of the Wallbox.

3.3 The Customer will receive an offer for any Additional Installation Costs which the Customer may accept. The Customer will receive a separate invoice from ABB for the Additional Installation Costs. The Additional Installation Costs are based on the information provided by the Customer during the pre-installation check. Should this information be incorrect or incomplete, there may be additional costs to be borne by the Customer. If the Customer does not accept these conditions or is not prepared to pay the Additional Installation Costs, the Customer may cancel the order in relation to the purchase of the Wallbox and installation, and will receive a full refund of any payments made by the Customer on the Marketplace.

3.4 The delivery of the Wallbox will be executed upon payment of the Wallbox, and any installation costs if applicable, as ordered by the Customer.

4. PAYMENT

4.1 Payment methods accepted by ABB are displayed on the Marketplace  and/or, in the event of Additional Installation Costs, ABB will display the accepted payment methods in the applicable App. Payment will be collected via the Marketplace  (excluding any Additional Installation Costs). Upon full payment on the Marketplace, the Customer is fully discharged of its obligation under the Sales Agreement to pay the price for the Wallbox and, if applicable, the standard installation as ordered on the Marketplace (excluding any Additional Installation Costs). ABB reserves the right to reject certain payment methods in individual cases and to refer to other payment methods.

4.2 For the avoidance of doubt, ABB shall not be responsible for the application and eligibility for, or approval of, any subsidy or any other incentive programs the Customer may intend to take part in and benefit from.

5. DELIVERY PERIOD/DELIVERY

5.1 Delivery and handover of the Wallbox will take place only in the Territory and after full payment by the Customer of the purchase price and of any additional costs as agreed.

5.2 The Wallbox will only be delivered to and, if applicable, installed at the delivery address in the Territory specified by the Customer in the order. ABB does not deliver and/or, if applicable, install the Wallbox outside the Territory. ABB will inform the Customer of the delivery details for the Wallbox, and ABB and/or the Installation Partner will contact the Customer to arrange an appointment for the installation of the Wallbox.

5.3 Information on availability, shipping, delivery periods or delivery dates are only approximate and not binding, unless they are expressly designated as binding. If the delivery and/or, if applicable, installation of the Wallbox has not taken place within thirty (30) days  after an originally indicated approximate delivery and installation date, the Customer can request ABB by contacting the smart CSC under https://e-mobility.abb.com/smart-charge-at-home/ to arrange for delivery and installation within a reasonable period. After such reasonable period ABB will be in delay in delivery, unless ABB is not responsible for the delay.

5.4 The Customer shall, in connection with the Wallbox to be delivered, strictly comply with the terms of use and any related restrictions.

6. RISK/TRANSFER OF OWNERSHIP

6.1 The risk of loss, damage or destruction of the Wallbox to be supplied by ABB is borne by the Customer from the moment that the Wallbox is delivered in accordance with Section 5.

6.2 ABB retains ownership of the Wallbox until the purchase price has been paid in full.

7. INSTALLATION

7.1 If the installation of the Wallbox is included in the Sales Agreement and after ABB has received full payment from the Customer, installation will be carried out by the Installation Partner on site at the Customer’s premises in the Territory. The Customer shall grant the Installation Partner access to its premises as necessary for the installation. The Customer confirms that it has all necessary authority and permissions for having the installation of the Wallbox carried out (e.g., as the case may be, permission from its landlord or other third-parties). The Customer shall further give power of attorney to enable ABB and/or the Installation Partner to apply for necessary registration of the Wallbox installation (if such registration is necessary under local regulations and agreed to be handled by ABB and/or the Installation Partner on behalf of the Customer).

7.2 The Customer shall at all times comply with the installation requirements set out by ABB in the AC Wallbox manual (available under: https://e-mobility.abb.com/smart-charge-at-home/).

7.3 Installation of the Wallbox will at all times require the presence of the Customer or a third party authorised by the Customer at the premises during the appointment and access to the fuse box, as well as to all other necessary areas relating to the installation.

7.4 If the installation cannot be completed due to a circumstance for which the Customer is responsible, particularly in the case that the Customer does not comply with the requirements set out in this Section 7, the Customer shall bear any additional costs incurred as a result of this, including the costs for a new installation appointment.

7.5 The Customer shall at all times be responsible for the repair of changes and alterations made to the building in which the Wallbox was placed. This includes any holes that have been drilled in any bricks, plastering, concrete, paining or similar work, extra earthworks, wall break-throughs, cabling etc. In this respect it may not be possible to completely restore the former state.

7.6 In the event that the Wallbox is returned to ABB (e.g. in the event of withdrawal), the Customer shall ensure that any de-installation of the Wallbox is carried out only by a qualified technician or installer. The Customer shall bear the associated costs of any de-installation of the Wallbox, unless the return results from the Wallbox being defective.

7.7 In the event that the Customer does not order installation from ABB, ABB shall not be liable for any issues in connection with the Wallbox resulting from the Customer’s or a third party’s installation of the Wallbox (e.g. due to the use of unqualified personnel).

8. WARRANTY

8.1 Within the scope of the statutory warranty rights the Customer may have the right to request subsequent performance, to rescind the contract or to reduce the purchase price. The Customer may also have damage claims due to defects, but these are subject to Section 10. Claims for defects of the Wallbox are generally subject to a limitation period of two (2) years after delivery of the Wallbox or, if applicable, installation of the Wallbox by the Installation Partner. Any subsequent performance will be made without acknowledgement of a legal obligation. In the event of subsequent performance in the form of rectification, the remaining part of the original limitation period shall start upon the return of the rectified Wallbox; the same shall apply in the event of subsequent performance in the form of subsequent delivery.

8.2 In the event that the Customer claims that the Wallbox is defective and asserts warranty rights and the following inspection of the Wallbox proves that the alleged defect of the Wallbox is attributable to the Customer, e.g. due to improper or faulty (de-)installation (particularly as a result of involving non-qualified personnel performing (de-)installation) or any other improper use of the Wallbox (including the Customer’s failure to install necessary updates), ABB has the right to claim reimbursement of any expenses incurred in investigating the alleged defect from the Customer.

9. USE OF APPLICATION

9.1 The relevant application(s) (“App(s)”) in connection with the sales and/or installation process for the Wallbox shall be made available to the Customer.

9.2 The Customer shall ensure that any information provided by the Customer in connection with the App is accurate, current and complete and ABB will treat the information in accordance with the ABB Privacy Policy (available under: https://e-mobility.abb.com/smart-charge-at-home/). The Customer shall ensure that the logon details are not made available to any other persons. The Customer shall be responsible for any actions taken through its account and logon details.

9.3 The customer agrees to install the updates that ABB provides. If the Customer does not install such updates, including firmware updates to the Wallbox, the App and/or Wallbox may no longer be in conformity and interoperable and the services may malfunction or be interrupted. ABB will not be liable for any lack of conformity of the App and/or Wallbox resulting from the Customer’s failure to install the relevant update.

9.4 ABB does not warrant or guarantee that the functions contained in the App will be uninterrupted or error-free or that any defect will be corrected.

9.5 The Customer shall be responsible for a secure connection between the App and the Customer’s network or any other network. The Customer shall further be responsible for taking and maintaining all necessary measures in respect of this connection in order to protect the App and the network against any kind of security breach, unauthorized access, interference, hacking, leakage and/or theft of data or information. The Customer shall inform ABB immediately of any indication that there is or has been a breach of security, access by unauthorized persons, interference, hacking, leakage and/or theft of data or information.

9.6 ABB reserves the right to do any of the following, at any time, at ABB’s sole discretion:

(a) modify, suspend, or terminate operation of the App or the Customer’s access to the App, or any portion of the App as a result of:

(i)          the Customer’s breach of these GTC;

(ii)         as required by law, government agency or another competent authority; or

(iii)        due to unexpected technical or security issues or problems; or

(b)         interrupt the regular operation of the App, or any portion of the App, as necessary to perform routine or non-routine maintenance, to correct any error, or to make any other change to the App, which may include the termination of any feature, functionality, or component of the App, subject to what is permissible under applicable laws and in particular subject to maintaining the conformity of the App.

9.7 ABB shall not be responsible for any mobile application(s) offered by any third party in connection with the use of the Wallbox.

10. LIABILITY

10.1 ABB shall be liable for intent and gross negligence in accordance with applicable statutory laws and without further limitation.

10.2 In cases of ordinary negligence, ABB shall only be liable for damages arising from the breach of essential contractual obligations, the fulfilment of which is a prerequisite for the proper execution of the respective contract and on the observance of which the Customer normally relies and may rely; in this case, however, liability shall be limited to the typical foreseeable damage.

10.3 The above limitations of liability shall not apply to liability (a) for damages resulting from injury to life, body or health, (b) for fraudulently concealed defects, (c) arising from the assumption of a guarantee of quality (in this respect the liability provisions resulting from the guarantee shall apply, if applicable), and (d) for claims under mandatory product liability laws.

10.4 The above limitations of liability shall also apply to claims for damages of the Customer against legal representatives, executives, employees and vicarious agents of ABB.

10.5 Unless agreed otherwise, ABB does not warrant that any Wallbox delivered by ABB is interoperable or compatible with any other software or connectivity services other than the applicable App.

11. RIGHT OF WITHDRAWAL

The Customer has a statutory right of withdrawal. The following withdrawal policy is addressed to the Customer and will be sent to the Customer in text form as part of the processing of the Customer’s order. For the exercise of the withdrawal right, the Customer can use the model withdrawal form reproduced below or simply contact the smart CSC.

Information on the Right of Withdrawal

Right of Withdrawal

You have the right to withdraw from this contract within 14 days without giving any reason.

The withdrawal period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires physical possession of the goods.

To exercise your right of withdrawal, you must inform us

ABB e-Mobility BV

Postfach 201101

48092 Münster

Germany

of your decision to withdraw from this contract by an unequivocal statement (e.g., a letter sent by post, fax or email). You may use the attached model withdrawal form, but it is not obligatory.

You can also electronically fill in and submit the model withdrawal form or any other unequivocal statement on our website https://e-mobility.abb.com/smart-charge-at-home/. If you choose this option, we will acknowledge receipt of such a withdrawal on a durable medium (e.g., by email) without delay.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of Withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.

You shall send back the goods or hand them over to us in accordance with the return label to be provided by us upon request, without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.

You will bear the cost of returning the goods. You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.

If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.

Model withdrawal form

(Complete and return this form only if you wish to withdraw from the contract)

  • To ABB E-Mobility B.V., Postfach 2011, 48092 Munster, Germany;
  • I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*);
  • Ordered on (*)/received on (*)
  • Name of consumer(s)
  • Address of consumer(s)
  • Signature of consumer(s) (only if this form is notified on paper)
  • Date

(*) Delete as appropriate

12. DATA PROTECTION

ABB processes any personal data collected in connection with these GTC for purposes of performing its rights and obligations under these GTC and other legitimate business purposes. The details relating to the processing of personal data by ABB can be found in the ABB Privacy Policy (available under: https://e-mobility.abb.com/smart-charge-at-home/ which informs about the processing of personal data in connection with the execution and performance of these GTC and the related data subject rights.

13. DIVISIBILITY

If one or more provisions of these GTC be or become partially or fully invalid, illegal or unenforceable in whatever respect in accordance with the applicable legislation, the validity, legality and enforceability of the other provisions of these GTC shall not be affected in any way.

14. DISPUTES/APPLICABLE LAW

14.1 All legal relations in connection with the Sales Agreement between ABB and the Customer shall be governed by the laws of the Netherlands to the exclusion of the “United Nations Convention on Contracts for the International Sale of Goods” (CISG) (the Vienna Convention).

14.2 If the Customer’s usual place of residence is in a country other than the Netherlands, mandatory national consumer protection laws and regulations of such country will remain unaffected and continue to apply.

14.3 The European Commission provides a platform for online dispute resolution under http://ec.europa.eu/consumers/odr/. ABB does not participate in any alternative dispute resolution proceedings before a consumer arbitration board.

15. CHANGES

ABB may later change these GTC (and also the other documents referred to herein) as follows:

  • At any time if the changes are essentially to the Customer’s advantage. ABB will notify the Customer in advance if this happens.
  • In all other cases ABB will inform the Customer about the intended changes by email at least two (2) months before the date from which the changes shall apply to the respective Sales Agreement. If the Customer does not object by that date, the changes will be deemed accepted by the Customer; ABB will remind the Customer of this when informing about the intended changes.

PART B: PROVISIONS FOR SALES TO ENTREPRENEURS

16. GENERAL

This Part B (Sections 16 et seqq.) of these GTC apply to the sale and purchase and, if applicable, the installation of the Wallbox by ABB via the Marketplace to Customers that are Entrepreneurs (as defined above) and to the Sales Agreement concluded by ABB and the Customer for this purpose. Part A of these GTC shall apply mutatis mutandis to cases under this Part B with the exception of Sections 8.1-8.2, 10.1-10.4, 11, 14.2 and 14.3 which shall not apply.

17. PAYMENT/GUARANTEE

17.1 The Customer relinquishes any right to set off any amounts mutually due. Payment guarantees and/or other agreements made by the Customer and/or third parties do not suspend the Customer’s payment obligation.

17.2 If the Customer fails to pay any amount due to it based on the above, it is legally in default without prior notice of default. As soon as the Customer is in default with any payment, all other claims of ABB against the Customer are due and payable and the Customer is by operation of law and without any prior notification of default also immediately in default in relation to those claims. With effect from the day on which the Customer is in default, it must legally pay ABB default interest of 1% of the value of the Sales Agreement, per month in proportion to the part of a month over which the default continues, by operation of law and without prior notice of default.

17.3 Failure to make payment or delay in payment also gives ABB the right to suspend its performance and/or to legally rescind the Sales Agreement and/or to claim payment for all loss and damage it has suffered as a result of failure on the part of the Customer, by operation of law and without prior notice of default. The same also applies if the Customer fails to observe the concluded Sales Agreement or if the solvency of the Customer comes under threat, regardless of what deed or circumstance forms the basis of this, even if this is in no way linked to the execution of the Sales Agreement.

18. FORCE MAJEURE

18.1 Force majeure and other unforeseeable and severe circumstances for which ABB is not responsible, e.g., outbreaks, strikes or lawful lockouts, operational or transport disruptions, difficulties in procuring raw materials or lack of supply by subcontractors or suppliers and other market volatility, availability and cost of raw materials and commodities and market fluctuation of logistic/transportation availability, costs and capacities, war, terrorism, civil unrest, riots, natural disasters, fire, pandemics or epidemics, government regulations and acts of governmental authorities, may impact ABB’s normal business activity and cost of performance, the agreed delivery periods and fulfilment of contractual obligations.

18.2 If as a result of any of the events as per Section 18.1, ABB is prevented from fulfilling its contractual obligations, ABB shall be excused from the respective affected contractual obligations and the agreed delivery periods shall be extended in each case by the duration of the hindrance plus a reasonable start-up period and ABB or the Installation Partner will agree upon a new installation appointment with the Customer. ABB shall inform the Customer of the beginning and the expected end of such circumstances as soon as possible.

18.3 If as a result of any of the events as per Section 18.1, the costs of ABB’s fulfilment of contractual obligations increase or ABB’s contractual obligations are affected and/or delayed, ABB and the Customer shall work together in good faith and within a reasonable time after the invocation of such circumstances, to negotiate alternative contractual terms in the sense of equitable adjustments of the contractual obligations.

18.4 In the event that the force majeure situation as per Section 18.1 lasts longer than three (3) months, ABB and the Customer may each rescind the Sales Agreement in writing, without any liability or compensation for any loss or damage.

18.5 The Customer waives any claim against ABB either for direct damages and/or loss of profits and/or indirect and/or intermediate and/or consequential and/or punitive damages, penalties and/or liquidated damages arising from or anyhow connected with any of the events as per Section 18.1.

18.6 If any dispute arises between ABB and the Customer relating to any of the events as per Section 18.1, ABB and the Customer shall endeavor to settle such dispute amicably.

18.7 Section 18.1-18.6 shall apply accordingly to the effects of the coronavirus (COVID-19 / SARS-CoV-2), including its recurrence, Russia’s war in the Ukraine, the general shortages of raw materials, electronic components and elements worldwide, as well as market fluctuations in the availability and cost of other raw materials, commodities, other critical components and transportation capacities. This shall apply irrespective of whether ABB or the Customer were aware of the causes and (potential) effects at the time the Sales Agreement was concluded or not.

19. WARRANTY

19.1       ABB shall deliver and, if applicable, install the Wallbox free of defects. In the case of defects of the Wallbox, the Customer will have warranty rights in accordance with Dutch law, unless otherwise stipulated in these GTC, and provided that the Customer fulfills its statutory obligations to inspect the Wallbox and give timely notice of defects in text form (including email). Inspection of the Wallbox by the Customer shall take place before start of the performance of any installation services by the Installation Partner.

19.2       ABB may choose the form of subsequent performance (subsequent delivery or rectification). Claims for damages due to defects of the Wallbox are subject to Section 20 of these GTC (Part B). Any subsequent performance will be made without acknowledgement of a legal obligation.

19.3       Claims for defects of the Wallbox are subject to a limitation period of one (1) year after delivery of the Wallbox; this shall not apply in the case of (a) fraudulently concealed defects, or (b) the assumption of a guarantee of quality (in this respect, the limitation period resulting from the guarantee shall apply, if applicable). In the event of rectification, the remaining part of the original limitation period shall start upon the return of the rectified Wallbox; the same shall apply in the event of subsequent delivery.

19.4       ABB shall not be liable for any defects attributable to any of the following:

(a)         the Customer or any third party engaged by the Customer has not followed the instructions and/or specifications that are provided by ABB regarding the Wallbox or has otherwise improperly used the Wallbox or has not used the Wallbox in accordance with the agreed or usual use;

(b)         the Wallbox has not been installed and implemented correctly (except where the Customer has ordered the installation from ABB and if and to the extent Customer fully complied with ABB’s installation instructions);

(c)         the Wallbox has been customized, modified, enhanced or altered by the Customer or any third party;

(d)         any amendments, repairs, replacement of spare parts, modifications, alterations to the Wallbox has been made without the prior written approval of ABB;

(e)         the Customer is not using the most recent version and/or update of the software which was offered by ABB to the Customer;

(f)         any error or defect has arisen as a result of drawings, designs or specifications provided by the Customer or has otherwise been caused by the Customer or a third party;

(g)        normal wear and tear; and

(h)         incorrect or non-compliant existing electrical installations at the Customer’s premises.

19.5       In the case of a defect claim, the Customer shall provide, at its cost, working access to the Wallbox, shall disassemble and/or re-assemble any third-party equipment and/or third-party software, and provide transportation to or from any repair facility allocated by ABB.

19.6       Except as otherwise provided herein, ABB makes no representations or warranties of any kind, either express or implied, with respect to the Wallbox, including but not limited to any implied warranties of merchantability, fitness for a particular purpose or non-infringement, and ABB expressly disclaims any such warranties. This warranty replaces, to the extent permitted by law, all warranties that are implied by law and constitutes the entire liability of Contractor with regard to the quality of the delivery.

20. LIABILITY/INDEMNIFICATION

20.1       To the extent permitted under Dutch law, ABB and the Customer agree that ABB will not be liable for indirect and/or consequential losses, including, but not limited to: loss of profit, loss of revenues, interruption of operations and/or operational losses, costs relating to the replacement of the supply of energy, loss of data, increase in costs, loss of expected savings, overhead costs, loss of business, loss of electrical connection, damage caused by usage and/or cost of capital or any other specific, indirect or consequential losses of any nature whatsoever.

20.2       Notwithstanding any contrary or deviating provision(s) in the Sales Agreement and insofar as permitted under Dutch law, ABB and the Customer agree that ABB’s total liability (including its employees, agents, subcontractors and customers) resulting from the performance or non- performance of its obligations under the Sales Agreement, or any non-contractual obligation, indemnity or otherwise, shall not exceed the corresponding value of the Sales Agreement.

20.3       ABB will not, under any circumstances, be required to pay alternative or additional damages, except if and insofar as the damage suffered has been caused by intent (opzet), gross negligence (grove schuld) or fraud on the part of ABB or its employees.

20.4      Any representative of ABB employed by ABB for the execution of the Sales Agreement may invoke against the Customer all defenses arising out of the Sales Agreement as if they are party to the Sales Agreement.

20.5      The Customer shall indemnify ABB (including its employees and its representatives) against any third-party claims in connection with the performance or non-performance of the Sales Agreement by ABB, to the extent that the damages exceed the limitations of liability as set out above.

21. UNFORESEEN CIRCUMSTANCES

21.1       ABB and the Customer agree that if ABB proves after the Sales Agreement has been concluded that:

(a)         the ongoing execution of the contractual obligations has become unreasonably difficult as a result of a circumstance outside of ABB’s reasonable control, of which it can be reasonably expected that ABB should have taken it into account when the Sales Agreement was concluded if ABB would have known about the circumstance; and that

(b)         ABB could not have reasonably prevented or adequately restricted the circumstance and/or the consequences of such,

ABB and the Customer are required, within a reasonable period after this Section 21 has been invoked by ABB, to negotiate alternative contractual conditions that reasonably take into account the consequences of the circumstance.

21.2       If ABB and the Customer fail to agree on alternative contractual conditions within a reasonable period after this Section 21 has been invoked by ABB, ABB has the right to rescind the Sales Agreement.

22. RIGHT OF RETENTION

The Customer is not entitled to exercise a right of retention against ABB.

23. DISPUTES/JURISDICTION

23.1       ABB and the Customer agree that they shall aim to settle amicably and in good faith (and possibly through mediation) any disputes ensuing from or relating to this Sales Agreement within thirty (30) days.

23.2       ABB’s registered office is the exclusive place of jurisdiction for all disputes arising from and in connection with the Sales Agreement. ABB may however sue the Customer also at the latter’s registered office.