ABB E-MOBILITY – GENERAL TERMS AND CONDITIONS OF WALLBOX SALES VIA SMART MARKETPLACE – SPAIN

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 PartA 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 PartB 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

  • These GTC apply to the sale and purchase and, if applicable, the installation of the Terra AC Wallbox and any accessory (“Wallbox”) by ABB via the smart marketplace (“smart Marketplace”) where the Wallbox is purchased by end-customers (“Customer(s)”), and to the sales agreement (“Sales Agreement”) concluded by ABB and the Customer for this purpose. This Part A (Sections 1-14) of these GTC apply to Customers that are Consumers as defined above.
  • By placing an order with ABB, the Customer agrees to the application of these GTC.
  • 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.
  • Delivery and installation of the Wallbox is limited to the territory of Spain (“Territory”).

2.  Offers/Orders/Agreement

  • Any presentation of ABB goods and service options on the smart 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.
  • To complete the order the Customer must fill in all required information in the smart 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 clicking “order with obligation to pay”.  ABB will then by email confirm receipt of the order without undue delay.
  • 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.
  • The Wallbox must be installed by a qualified technician. The Customer may during the order process choose a Wallbox bundle that includes installation of the Wallbox by one of ABB’s local installation partners (“Installation Partner”) against charge.  In the case that the Customer selects a Wallbox bundle that includes installation, then the “Standard Installation” is the default installation package in the Wallbox bundle that offers installation.  Upon ABB’s confirmation of receipt of the order, the Customer is guided to a separate digital environment operated by ABB and referred to as “Platform”.  Once onboarded on this Platform, the Customer will be required to conduct a pre-installation check in the event the Customer has selected a Wallbox bundle that includes installation.  The Installation Partner may request an online check by videocall during the pre-installation check process for further explanation.  With respect to the ordered Wallbox bundle that includes 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, the Installation Partner will determine whether installation is feasible at all and, if so, whether the Standard Installation is sufficient given the circumstances of the Customer’s location where the Wallbox is to be installed.  Additional parts and services may  be required for the installation of the Wallbox to be effected which may result in additional costs for the installation of the Wallbox for the Customer (“Extra Installation”).  If this is the case, ABB shall inform the Customer by email accordingly and shall offer the Customer which additional costs will incur for the Extra
  • ABB will not store the relevant contractual information for the benefit of the Customer.

3.  Price

  • All prices to be paid by the Customer as indicated on the smart Marketplace and order documentation include the applicable statutory VAT (gross price) and include delivery costs unless specified otherwise in the smart Marketplace.
  • In the event that the Customer selects a Wallbox bundle that includes installation, the costs of the Standard Installation are included in the purchase price of the Wallbox bundle.
  • The costs of the ExtraInstallation, if applicable to the Customer, are not included in the purchase price of the Wallbox bundle that includes installation. The costs of the Extra Installation will be stated separately on the invoice after the Customer has accepted the offer for the Extra Installation.
  • The Customer will receive an offer for the ExtraInstallation which will only become binding once the Customer has accepted the offer. The costs for the ExtraInstallation are based on the information provided by the Customer during the pre-installation check process as referred to above.  Should this information be incorrect or incomplete, there may be additional costs to be borne by the Customer.  If the Customer does not accept the conditions of sor is not prepared to pay these additional costs for the Extra Installation, the Wallbox bundle  that includes installation may be cancelled and any amounts already paid will be credited and fully refunded to the Customer.
  • The delivery of the Wallbox will be executed upon payment of the full purchase price (including, if applicable, payment of costs for the Extra Installation).

4.  Payment

  • Payment methods accepted by ABB are displayed on the smart Marketplace and/or, in the event of Extra Installation, ABB will display the accepted payment methods in the offer or in the Platform on which the Customer may accept the offer for Extra Installation. ABB reserves the right to reject certain payment methods in individual cases and to refer to other payment methods.
  • 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

  • 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 applicable and agreed.
  • 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 or the Installation Partner will contact the Customer to arrange an appointment for the delivery and, if applicable, installation of the Wallbox.
  • 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 six (6) weeks after an originally indicated approximate delivery and installation date, the Customer can request ABB by text form (including email) 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.  ABB shall not be responsible for the delay of delivery of the Wallbox if the delay is due to reasons attributable to the Customer (e.g., in the event that the Customer does not take delivery of the Wallbox; if the Customer does not accept the offer for Extra Installation; or if the Customer does not provide the information as asked during the pre-installation check process).
  • In the event that delivery and/or, if applicable, installation of the Wallbox is delayed by more than four (4) weeks after a binding delivery and installation date due to unavailability of required material or component supplies from (sub-)suppliers, and provided that ABB is not responsible for such unavailability and has entered into appropriate purchase agreements with its (sub-)suppliers and/or, if applicable, the Installation Partner to secure the supply of the required materials or components, ABB will inform the Customer without undue delay in text form (including email). In this case ABB may rescind the Sales Agreement and, upon rescission, ABB shall without undue delay refund any payments already made by the Customer.
  • 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

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

7.  Installation

  • 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).
  • The Customer shall at all times comply with the installation requirements set out by ABB in the AC Wallbox manuals – Terra AC Wallbox | The Superior EV Home Charger | ABB (available under https://e-mobility.abb.com/smart-charge-at-home/).
  • 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 areas relating to the installation.
  • 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.
  • The Customer shall at all times be responsible for the 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, painting or similar work, extra earthworks, wall break-throughs, cabling etc.  In this respect it may not be possible to completely restore the former state.
  • 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.
  • 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

  • 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 applicable statutory laws.  Within the scope of the statutory warranty rights the Customer may have the right to request  subsequent performance (by way of replacement or repair of the Wallbox), to rescind the Sales Agreement or to reduce the purchase price.  The Customer may also have damage claims as a result of defects, and these damages may only be claimed in accordance with Section 9. In the event that a Wallbox is replaced or repaired the Customer shall make the Wallbox available to ABB.  Claims for defects of the Wallbox are generally subject to a limitation period of three (3) years after delivery of the Wallbox, or, if applicable, the date upon which the installation of the Wallbox is effected.  Any subsequent performance will be made without acknowledgement of a legal obligation.  In the event of subsequent performance, the remaining part of the original limitation period shall commence upon the return of the repaired or replaced Wallbox.
  • ABB shall supply the Customer with updates, including security updates, which are necessary to keep the Wallbox and its digital elements in conformity, to the extent that this is required by mandatory law. ABB shall, however, not have an obligation to provide updates beyond such necessary updates, for example, to upgrade versions of the digital elements or to improve or extend the functionalities beyond the conformity requirement.  The Customer will be informed of any necessary updates in advance.  If the Customer does not install the updates that ABB provides, the Wallbox may no longer be in conformity and the services of the digital elements may malfunction or be interrupted.  ABB shall not be liable for any lack of conformity of the Wallbox resulting from the Customer’s failure to install the relevant update which is supposed to maintain conformity.
  • In the event that the Customer claims that the Wallbox is defective and asserts warranty rights and the following inspection by ABB 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 may claim reimbursement of any expenses incurred in investigating the alleged defect from the Customer. In the event that the Customer requests subsequent performance, but ABB is prevented from carrying out subsequent performance or if subsequent performance otherwise fails due to reasons which are attributable to the Customer, ABB may claim reimbursement of any expenses incurred.

9.  Liability

  • ABB shall be liable for intent and gross negligence in accordance with applicable statutory laws.
  • 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 Sales Agreement 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.
  • 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.
  • 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.
  • Unless agreed otherwise, ABB does not warrant that any Wallbox delivered by ABB is interoperable or compatible with any software other than smart software, or connectivity services other than the smart application for the use of the Wallbox (“smart App”).

10.           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.

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 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 BV, Postfach 201101, 48092 Münster, 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

11.    Data Protection

ABB processes 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 Notice (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.

12.    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.

13.    Disputes/Applicable Law

  • 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).
  • 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.
  • 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.

14.    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

 

15.    General

This Part B (Sections 15 et seqq.) of these GTC apply to the sale and purchase and, if applicable, the installation of the Wallbox by ABB via the smart 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, 9.1-9.4, 10, 13.2 and 13.3 which shall not apply.

16.    Payment/Guarantee

  • The Customer does not have any right to set off against any amounts due. Payment guarantees and/or other agreements made by the Customer and/or third parties do not suspend the Customer’s payment obligation.
  • If the Customer fails to pay any amount due to 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.
  • 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.

17.    Force Majeure

  • 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.
  • If as a result of any of the events as per Section 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.
  • If as a result of any of the events as per Section 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.
  • In the event that the force majeure situation as per Section 1 lasts longer than three (3) months, ABB and the Customer may each terminate the Sales Agreement in writing, without any liability or compensation for any loss or damage.
  • 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 1.
  • If any dispute arises between ABB and the Customer relating to any of the events as per Section 1, ABB and the Customer shall endeavour to settle such dispute amicably.
  • Section 1 – 17.6 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.

18.    Warranty

18.1 Wallbox Warranty (excluding Spare Parts and Services, which are covered in Sections Error! Reference source not found. and 18.2).

(a)  Warranty.  ABB warrants that the Wallbox supplied by ABB under the Sales Agreement shall be delivered free of defects in material and workmanship and conforms with the published specifications of the Wallbox (“Wallbox Warranty”).  The Wallbox Warranty shall end after twenty-four (24) months after the date of delivery of the Wallbox (“Wallbox Warranty Period”).  ABB shall, however, not have any obligation to provide any updates, including security updates, for the Wallbox other than such necessary updates as required to comply with applicable mandatory regulatory laws.  If the Customer does not install the updates that ABB provides, the Wallbox may no longer be in conformity and the services of the digital elements may malfunction or be interrupted.  ABB shall not be liable for any lack of conformity of the Wallbox resulting from the Customer’s failure to install the relevant update which is supposed to maintain conformity.

(b)  Claiming Wallbox Warranty service.  To obtain the Wallbox Warranty service, the Customer must promptly notify the smart customer engagement centre by calling the number provided by smart or in text form (including email) stating the nature of each defect and provide all available evidence thereof and evidence of purchase such as a receipt or invoice within five (5) days after first taking notice of such defect and in no case later than five (5) days after the expiration of the Wallbox Warranty Period.  The obligation of the Customer to inspect the Wallbox in accordance with applicable laws remains unaffected.  Upon verification by ABB that the defect is covered by the Wallbox Warranty, ABB will at its cost and at its discretion, either (i) repair the Wallbox or any defective part therein, (ii) replace the Wallbox with a new or refurbished Wallbox with substantially similar functionality, (iii) refund the portion of the price applicable to the non-conforming portion of the Wallbox, or (iv) in respect of firmware, ABB will correct the nonconformity by, at its option, either modifying or making available to the Customer instructions for modifying the firmware or making available to the Customer necessary corrected or replacement of the firmware.  The replacement service costs at the site of the Customer is included if the Wallbox bundle purchased by the Customer includes installation.  The subsequent performance does not initiate a new Wallbox Warranty Period.  The remedies set forth herein shall be the Customer’s sole and exclusive remedy for breach of the Wallbox Warranty.  ABB reserves the right to charge the Customer, and the Customer shall pay, for any repair that is not covered under the Wallbox Warranty.

(c)  Return and Access.  If ABB offers repair, the Customer shall deliver the non-conforming Wallbox (minus any third-party equipment or software) to a repair facility designated by ABB at cost of ABB.  If ABB chooses to check and repair the Wallbox at the Customer’s site, the Customer shall provide access to the Wallbox at the Customer’s site during normal business hours.  The Customer shall ensure that the site meets all relevant health, safety and environmental guidelines.  ABB may refuse to service the Wallbox if conditions at the Customer’s site are dangerous or not in line with ABB’s HSE guidelines.

(d)  Exclusions.  The Wallbox Warranty shall not apply for defects caused by the following: (a) ordinary wear and tear, (b) fault, negligence, misuse by the Customer, (c) the Wallbox has not been properly installed (unless installation is ABB’s responsibility), (d) the Wallbox has not been properly stored, operated and maintained in compliance with ABB’s published specifications and instructions, (e) the Wallbox has been customized, modified, enhanced or altered by the Customer or a third party, (f) the Wallbox has been damaged by the Customer or its end users, (g) the firmware has not been timely updated by the Customer to the most recent version and the defect was caused by the failure to timely update, (e) drawings, designs or specifications provided by the Customer, (h) power outages, loss of network connectivity, or disruptions to the electrical supply, (i) excessive dirt accumulation, corrosion, ingress of foreign substances, vermin/insect infestation or vandalism, (j) cyber security intrusion including virus and hacking, or (k) hazards including fire, flood, storm earthquake, lightning, spillage or leakage of chemicals or harmful substances, excessive voltage or mechanical shock, or water damage.

(e)  Further exclusions.  The Wallbox Warranty also excludes:  (a) damages arising due to the fact that the use of the Wallbox for the intended purpose is no longer possible or only possible with restrictions as a result of amendments to the statutory provisions applicable to the operation of the Wallbox made after the delivery of the Wallbox, (b) compensation for any consequential damages related to loss of electric vehicle charging operations or any expenses incurred by customer towards repair & replacement of the Wallbox (including but not limited to labor, any transportation costs,  in and out costs, temporary charging at another location), or (c) costs or damages arising from changes to existing electrical systems, building installations or other site changes.

18.2 Service Warranty.  If ABB provides any paid services (i.e. installation services) in relation to the Wallbox under the Sales Agreement (“Service(s)”), ABB shall perform the Services in a professional manner consistent with industry standards and free of any defects in workmanship (“Service Warranty”).  The Service Warranty shall end ninety (90) days after the completion of the Services before which the Customer shall notify ABB of the non-conforming Services (“Service Warranty Period”).  Upon confirmation that the Services failed to meet the Service Warranty, ABB will re-perform the non-conforming Services up to the value of the respective Services.  The re-performance does not initiate a new Service Warranty Period.

18.3 No other warranties.  Except as otherwise provided herein, ABB makes no representations or warranties of any kind, either express or implied, with respect to the Wallbox, Spare Parts, and/or Services provided by ABB including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement, and ABB expressly disclaims any such warranties.  This Section 18 replaces, to the extent permitted by law, all warranties that are implied by law and constitutes the entire liability of ABB with regard to the quality and guarantee of the Wallbox, Spare Parts, and/or Services.

19.    Liability/Indemnification

  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • Section 19 shall also apply for any warranty as per Section 18.

20. Unforeseen Circumstances

  • ABB and the Customer agree that if ABB proves after the Sales Agreement has been concluded that:
    • 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
    • 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 20 has been invoked by ABB, to negotiate alternative contractual conditions that reasonably take into account the consequences of the circumstance.

  • If ABB and the Customer fail to agree on alternative contractual conditions within a reasonable period after this Section 20 has been invoked by ABB, ABB has the right to rescind the Sales Agreement.

21. Right of Retention

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

22. Disputes/Jurisdiction

  • 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 the Sales Agreement within thirty (30) days.
  • 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.