Terms & Conditions

GENERAL TERMS AND CONDITIONS OF BUSINESS AND DELIVERY 

 

I. Scope and contractual partner

1. The customer’s contractual partner within the meaning of these General Terms and Conditions of Business and Delivery (hereinafter these Terms and Conditions) is The Mobility House LLC, 545 Harbor Blvd, Belmont, CA 94002, incorporated in Delaware, USA (hereinafter referred to as TMH).
2. The business relationship between TMH and the customer is governed exclusively by these Terms and Conditions which contain the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter hereof. Any orders placed by the customer shall be solely governed by these Terms and Conditions. No general terms and conditions of the customer referred to in purchase orders, order confirmations or elsewhere shall apply, unless expressly agreed in writing by TMC.
3. Third-party independent contractors who perform services for TMH but are not employees of TMH are not authorized to reach agreements that deviate from these Terms and Conditions or to give warranties. This also applies in case of subsequent changes and amendments.

II. General
1. Formation of contract
TMH provides the customer with a written offer/proposal/quote (hereinafter “Offer”) for products and/or services mentioned in clause III. The contract comes into effect when the offer is accepted by the customer in writing within the time limit stated on the offer and/or if the customer avails itself of services offered by TMH.

2. Scope of service
The content and scope of the service to be provided by TMH are based on the description of services provided by TMH in the offer. TMH shall not be obliged to carry out any work that exceeds the contractually agreed service (e.g., passthroughs, adjustment work and/or extra work, particularly if the existing electric installation is insufficient and/or no utility-scale power connection is provided). This work shall be the sole responsibility of the customer.

3. Delivery, shipment
a. The goods will be shipped ex works to the delivery address indicated by the customer. For cross-border delivery or service, the customer must pay the customs duties, fees, and other charges incurred. The transfer of risk is determined by Subsection II.4 below.
b. The delivery period for goods and services shall be agreed upon on an individual basis or shall be indicated by TMH upon acceptance of the order. Unless a binding date is expressly agreed, TMH makes no guarantees for a specific delivery period. If the customer fails to be present on the delivery date despite prior announcement and the customer did not communicate this absence in advance with a notice period of 3 days, TMH is entitled to compensation for all extra costs incurred as a result, particularly for additional delivery attempts or storage costs.
c. The customer is entitled to withdraw from the purchase if TMH fails to comply with a bindingly agreed deadline and the customer subsequently sets an appropriate grace period for TMH to provide the service that elapses unsuccessfully.
d. TMH reserves the right to refrain from carrying out an installation service due to unforeseen reasons or reasons for which TMH is not responsible. TMH shall communicate this to the customer by email explaining the undue delay. Any payment already made will be refunded to the customer.
e. TMH reserves the right to make partial deliveries if agreed to by the customer.

4. Transfer of risk
a. The risk of accidental destruction, accidental deterioration, or accidental misplacement of the purchased goods is transferred to the customer upon handover of goods, or in the case of a purchase involving shipment, the risk shall transfer to the customer upon delivery of the goods to the forwarder, hauler or other entity designated to ship the goods.
b. The transfer of risk shall be deemed to have taken place, even is the event the customer delays in accepting the goods.

5. Performance of services by third parties 
TMH reserves the right to appoint third parties to provide the services contracted for, either their entirety or in part.

6. Prices, payment, and maturity
a. Prices are applicable as stated in the respective offer. All prices are listed in US-Dollars and exclude sales tax, unless stated otherwise. Where applicable, delivery and shipping costs will be listed separately. Extra or special services are billed separately.  

b. For non-consulting projects, the customer shall be invoiced for the one-time fees immediately upon receipt of the purchase order by TMH. The remaining cost of ordered goods and services are invoiced on the first day of the next full month following the installation. Consulting projects will be invoiced upon completion of Work Packages, which serve as milestones for consulting projects. Work packages must be defined in the scope of work for all consulting projects equal to or larger than $10,000. For consulting projects smaller than $10,000 without Work Packages, 100% of the project cost will be invoiced upon completion of the work. If a consulting project smaller than $10,000 contains Work Packages, invoices will be issued after the completion of each Work Package. Payments terms are NET 30 unless otherwise indicated on the invoice.

c. TMH reserves the right to impose a late charge of 0.5% per month (6% annual) on the unpaid balance if an invoice is not paid by the due date indicated on the invoice. TMH will send a courtesy reminder of late payment before imposing any late charges.  

7. Retention of title
Until payment is made in full, the delivered goods shall remain the property of TMH. The customer shall be obliged to properly insure the reserved goods that are still the property of TMH (i.e. theft, fire, water and low-voltage insurance). Proof of relevant insurance must be provided to TMH upon request. In the event of damage, the customer’s insurance claim shall be deemed assigned to TMH. The customer will be responsible for any liability amounts that exceed insurance coverage and that may be included within policy deductible limits.

8. Duty of the customer to cooperate
a. The customer is responsible for procuring all public and private permits necessary for the installation, connection, and operation of the charging infrastructure.
b. If the assembly and connection of the charging infrastructure are carried out by an installer not engaged by TMH, the customer must ensure that the installation is carried out within 3 months after the delivery of goods and the handover certificate is sent to TMH according to the latest template
c. If it is not possible to perform the services at the agreed time due to breach of the customer’s cooperation, obligations or other reasons for which the customer is responsible, a new date and time will be agreed upon and TMH is entitled to separately charge the extra costs for the delay of services or interruption of services (e.g. additional travel required).
d. If other parties are contracted by the customer that require cooperation with TMH in order for successful operation of the charging infrastructure, the customer is responsible for coordination and planning of other parties, unless specific duties are outlined and agreed in writing by TMH. TMH is not responsible for acts or omissions other parties that result in project delays.
e. If the customer or contractor engaged by customer is responsible for purchase of the charging stations, then it is the customers responsibility to ensure the following conditions are met:
(1) Firmware and configuration on the charging station must meet the most recently approved operating versions, defined by TMH, prior to commissioning of goods and services by TMH.
(2) TMH recognizes that periodically, new versions of firmware are made available from the charger manufacturer. Before uploading any new firmware versions to charger hardware, the customer must seek TMH approval. The customer acknowledges that if a firmware version is uploaded without TMH approval, TMH is not liable for any adverse impacts that may occur due to the unapproved changes.
(3) To receive TMH approval of new firmware versions, the firmware version must be one that is in use at other sites with TMH software or it must be tested and approved. Approval of new versions shall be communicated via email between the customer and TMH.
(4) The customer must provide at least three (3) weeks’ notice that new firmware should be tested. Within such three (3) weeks, TMH will test the new firmware and determine whether any additional work is needed for TMH software to be fully functional with the new version of the firmware. If TMH functionality, as outlined in the Scope of Services, has been met then there shall be no guarantee of timeline for development work as it relates to firmware updates. If TMH functionality, as outlined in the Scope of services, has not been met, a reasonable timeline for development work as it relates to firmware updates will be determined between the customer and TMH.

9. Warranty; DISCLAIMER 
a. TMH shall make the Software available free from material defects and defects of title. Hardware components that are a part of the ChargePilot solution are sold with a warranty of 24 months from the date of purchase.
b. DISCLAIMER: EXCEPT FOR THE EXPRESS WARRANTIES IN THESE TERMS AND CONDITIONS, TMH MAKES NO WARRANTIES WITH RESPECT TO ANY PRODUCTS, LICENSE OR SERVICE, AND HEREBY DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TMH DOES NOT WARRANT THAT THE SOFTWARE OR ANY ASSOCIATED HARDWARE SHALL MEET ANY END USER REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR ANY ASSOCIATED HARDWARE SHALL BE UNINTERRUPTED OR ERROR-FREE.
c. TMH is not liable for indirect or consequential damages such as loss of profit, unrealized savings, interruption of operation, third party claims and damages due to loss of data.
d. Temporary disruptions, restrictions and/or interruptions of the ChargePilot web portal (e.g. due to maintenance work) are possible and are not considered a technical defect. They do not entitle the customer to damages and/or compensation claims.
e. The services owed by TMH under contract rely in part (see also Clause III.) on necessary communications infrastructure such as mobile or cable-based internet connections. TMH is not liable for damages that occur as a result of a disruption to the communications infrastructure and/or power supply. The same applies if the customer engages third parties to install and/or configure the components and/or the vehicle contains defects that make proper charging impossible at least temporarily. The Smart Charging Controllers acquired by TMH only work in conjunction with the software provided by TMH. The charging infrastructure acquired by the customer only works subject to the presence of additional conditions that TMH is unable to influence, in conjunction with the software provided by TMH.
f. In case of loss of data for which TMH is responsible, the liability of TMH is restricted to the expense required for data recovery.
g. No liability is accepted for consequences arising due to changes made by the customer or a third party to the software and/or charging infrastructure or due to improper handling or incorrect use of the software and/or charging infrastructure.

10. Claim for defects 
a. The customer must inspect the goods promptly after delivery. If possible, the goods shall also be subjected to a functional test. If the inspection or functional test reveals defects, TMH shall be informed in writing without undue delay. The customer agrees to handle goods with due care. If defects are not reported, the customer shall be liable for the defective goods. The quality of the goods is deemed as approved if no defect report is received by TMH within 14 days after delivery of the goods. Concealed defects that cannot be discovered within the above period can only be asserted against TMH if the notice of defects is received within one year after the handover of the goods.
b. TMH does not assume responsibility for warranty promises of equipment manufacturers.
c. If the installation of a product is not carried out by TMH or a third party authorized by TMH, TMH is not liable for faulty installation or defects or damages that can be attributed to the faulty installation, in particular failure to comply with the applicable installation regulations.
d. The customer must describe defects in as much detail as possible and report them to TMH in writing.

11. Indemnities
a. TMH shall indemnify, defend, and hold harmless the customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) incurred by the customer resulting from any third-party claim, suit, action, or proceeding that the Software and/or related documentation, or any use of the Software or documentation in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights.
b. The customer will indemnify, defend and hold harmless TMH from and against any and all claims, damages and expenses (including reasonable attorneys’ fees and costs of litigation) by any third party resulting from any negligent acts or omissions of the customer relating to its activities in connection with these Terms and Conditions, the customer’s breach of these Terms and Conditions, or the customer’s misrepresentations relating to TMH, the Software, the related hardware, or these Terms and Conditions, regardless of the form of action.

12. Limitations 
a. Limitation of liability. TMH’s aggregate liability under these Terms and Conditions is limited to the price paid by the customer for the Software and hardware which gives rise to the claim; provided, however, for damages caused by third-party product liability claims or for foreseeable contractually typical loss or damage arising from the breach of material contractual obligations, where such breach would jeopardize the goal of the contract, TMH’s aggregate liability to the customer under this these Terms and Conditions is limited to the two times (2x) the price paid by the customer for the Software and hardware which gives rise to the claim.
b. Limitation period for claims for defects. Defect claims for the manufacture and delivery of new goods become time-barred after one year.

13. References 
The customer agrees to be mentioned as a reference by The Mobility House LLC after placing an order. The Mobility House LLC is also entitled to use the customer’s logo on its own website and in marketing documents. This agreement can be withdrawn at any time by the customer without indicating reasons.

14. Assignment
Neither these Terms and Conditions nor any obligations of either party hereunder will be assignable, delegable or transferrable by a party without the prior written consent of the other party, which consent shall not be unreasonably withheld.

15. Service and support 
Customer inquiries (e.g. questions about operation, reports of technical malfunctions etc.) can be made by email and/or phone from Monday to Friday from 8:00 a.m. to 6:00 p.m PST, excluding public holidays. Inquiries are generally answered within two working days.

16. Force majeure
In case of obstacles to performance that are caused by force majeure or similar unforeseen events for which neither party is responsible, either contracting party is entitled to suspend the services owed under this contract for the duration of the impediment for as long as fulfillment is impossible due to this situation, provided that one contracting party receives notification of these circumstances from the other contracting party within two weeks after the occurrence of the force majeure event. This does not apply for payments owed under the respective contractual relationship.

1. Data protection/Confidentiality
   TMH shall ensure its employees to comply with TMH privacy policy outlined here: https://www.mobilityhouse.com/usa_en/privacy-policy.
   Furthermore, the contracting parties will treat as confidential any business and trade secrets of the other contracting party of which they obtain knowledge during the business relationship and after the end of the business relationship, unless one party releases the other party in writing from this obligation of secrecy.
   The contracting parties are obliged and commit to obliging its employees through appropriate contractual provisions, to maintain secrecy concerning all documents handed over by the other party, information exchanged and knowledge obtained concerning these Terms and Conditions and its performance, even if they were not expressly designated as secret or confidential. The confidentiality obligation of the parties and their employees continues to apply after the end of the term. This does not apply for disclosure to a court or an authority insofar as this disclosure occurs due to statutory obligations or based on the order of a court or an authority. Nor does this apply for those documents, information and knowledge obtained if and insofar as the disclosing party consented in writing to their publication.
   This obligation does not apply to information
   a. that was demonstrably known to the recipient when concluding the contract or subsequently became known due to a third party without any breach of a confidentiality agreement, statutory regulations, or official orders;
   b. that was public knowledge when concluding the contract or subsequently became public knowledge as long as this is not due to a breach of this contract; or
   c. was developed by employees or agents of the receiving party who had no access to any confidential information of the disclosing party

18. Amendment of these General Terms and Conditions
Unless otherwise specifically provided, TMH is entitled to amend or supplement these Terms and Conditions for continuing contractual relationships in the following manner:
TMH will notify the customer of any amendments or additions in writing within four weeks prior to such amendments or additions taking effect. If the customer disagrees with the amendments or additions to the contractual terms and conditions, the customer may object to the amendments or additions with one week’s notice to the date on which the amendments or additions are intended to take effect. The objection must be made in writing and must be sent The Mobility House LLC, 545 Harbor Blvd, Belmont, CA 94002, United States, [email protected] via mail or email. If the customer does not object, the amendments or additions to the contractual terms and conditions will be considered to have been approved by the customer. TMH is obliged to inform the customer of the changes or amendments to the contractual terms and conditions and of the consequences of the customer’s conduct.

III. TMH Services
1. ChargePilot charging and energy management system
a. Scope of service, operation, use 
(1) Based on a separate agreement, TMH also offers the customer the service ChargePilot – the charging and energy management system from TMH. This involves the sale of a service consisting of hardware and software.
(2) The contracting partner must protect the access rights granted to the customer - in particular the access details required for the use of ChargePilot - from access by third parties and must not pass this data on to unauthorized third parties. If the contracting partner incurs the risk of improper or unauthorized use of the certificate and/or access rights, e.g. due to staff turnover or organizational change, the contracting partner must inform TMH in writing without undue delay and ensure that the access rights are changed without undue delay.
(3) With the exception of the non-exclusive rights of use for the software granted to the customer during the term of the contractual relationship, the ownership and all rights including (to the extent existing under applicable law) industrial property rights and supplementary ancillary copyrights in ChargePilot will remain the property of TMH or the relevant rights holders. The contracting party is not entitled to provide third parties access to the ChargePilot services and/or to enable third parties to use ChargePilot without the prior written consent of TMH. In addition, any other use of ChargePilot, beyond non-exclusive rights of use, is not permitted.
(4) TMH is authorized to suspend the access of the customer to ChargePilot immediately, if:
(a.) the client breaches the data or information security safeguards and/or the confidentiality of access rights;
(b.) the customer breaches the confidentiality agreed under
III.1.a(2);
(c.) the customer unlawfully breaches the access rights granted under III.1.a(3);
(d.) the customer seeks to gain access to the intellectual property of TMH, such as the source code of ChargePilot;
(e.) a risk of damage to or interference with the systems of TMH or a risk of injury to other project participants or the general public exists;
(f.) the processes or data transmitted by the contracting party via shared IT interfaces are in breach of applicable legal provisions or violate the rights of third parties; or
(g.) circumstances exist which entitle TMH to terminate the contract without notice (cf. Section III. 1. b(4)).
TMH will inform the customer about the suspension of access, specifying the reasons for such decision. TMH retains the right to assert a claim for damages in addition to this. The customer is obliged to continue paying the contractually agreed fee for the duration of the suspension.
b. Formation of contract, duration, default of payment, price adjustment, termination
(1) The contract for the services offered under Clause III. 1. is concluded as a subscription for a period of 1 year, 5 years or another time period specified in the offer. Upon conclusion of the contract, the customer must complete a one-off payment to be agreed individually with TMH.
(2) The contract commences when the customer uses the service for the first time, unless otherwise agreed between TMH and the customer, but no later than 3 months following the delivery of the goods, or if the commencement of the contract is delayed after the expiry of these 3 months due to a breach of the customer’s duty to cooperate or other reasons for which the customer is responsible, irrespective of the services not yet rendered by TMH. The above does not apply, if this has been agreed otherwise in writing between TMH and the user. Upon commencement of the contract term, the costs specified under Section III. 1© apply in full.
(3) If the contract has been concluded as a subscription contract, the contract will automatically be extended for a period of twelve months following the initial contract period, subject to Section III. 1. b(3) unless the contract has been terminated by either party by the end of the initial contract period (cf. Section III. 1. b(3)).
(4) If the customer defaults on payment, TMH is authorized to suspend the services agreed under the contract until the customer has complied with its payment obligations in full or until the parties have concluded a separate written agreement.
(5) TMH is entitled to adjust the applicable price list to changing market conditions, if there are significant changes in procurement costs, changes in tax or procurement prices, provided that the contract is extended. In the event of price changes, which substantially exceed the regular increase of the cost of living, the customer will be granted a special right of termination, which must be exercised by the customer within two weeks after written notification to TMH in writing.
(6) Both parties can terminate the contractual relationship after the end of the first contract period in writing by e-mail subject to a notice period of one month to take effect from the end of the next quarter. The decisive date for termination by the customer is the date that the written notice is received by TMH. Termination of contract is to be made in writing by email to the email address [email protected], complete with details of the customer’s name and customer address, and desired date of termination.
(7) Both TMH and the customer are entitled to terminate the contractual relationship without notice for good cause. TMH is considered to have good cause for terminating the contract if the customer is late in making payments for more than 14 business days or if collection of claims from the customer is not possible and TMH set a grace period of 8 business days for the customer to remedy the situation. Good cause also applies if TMH is not able to continue providing the service. In case termination without notice is due to the fault of the customer, TMH reserves the right to demand compensation for the damages caused to TMH as a result of prematurely ending the contractual relationship and not properly performing the contract up to the earliest possible ordinary date of termination.
c. Costs 
The customer must pay TMH for the costs of the service offered under Clause III. 1. based on a separated agreement.

3. Updates
TMH will provide the customer with updates for TMH software as needed during the contract term. These generally involve enhancements of the standard products and ensure contractual functionality. The customer will not be charged any additional fees for such updates.

4. Upgrades 
Where relevant, TMH may offer upgrades of the originally acquired software to the customer during the contract term in exchange for a fee. These generally involve additional product modules and packages that can be separately ordered or acquired by the customer.

IV. Final provisions

1. These General Terms and Conditions are subject to the laws of the state of California, without application of it conflict of laws provisions.
2. English is the sole contract language.
3. The place of jurisdiction for all disputes concerning contractual relationships between the customer and TMH is the state and federal courts located in San Francisco, California.
4. In the event that any provision of these Terms and Conditions is determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect and enforceable.

Version: January 2022