Terms and Conditions of Sale

L’Hospitalet de Llobregat on 30 March 2024.

I. SCOPE

1.1. These Terms and Conditions of Sale (“TCS”) will govern any sale and supply of equipment and performance of services by FlooxChargers, S.L. (“Floox” or the “Supplier”). Any alterations to or departures from these terms and conditions are to be agreed In Writing and will be considered special terms and conditions.

II. DEFINITIONS

2.1. In these TCS, the following terms have the meanings given to them below:

  • “Product”: any equipment, device and/or accessory to be supplied by Floox under the Contract or Order including software and related documentation.
  • “Customer”: the company, individual or entity that acquires the Products and/or services from Floox as concluded by means of a Contract or Order.
  • “Contract”: the agreement In Writing between the Customer and Floox relating to the supply of the Product and/or provision of services together with all addenda, including any amendments and additions agreed In Writing to such documents. The Contract sets a timeframe with a start and end date in which the Customer undertakes to place orders for a specified quantity of Products or services.
  • “Order”: the agreement In Writing between the Customer and Floox relating to the supply of the Product and/or provision of services and all addenda including any amendments and additions agreed In Writing to such documents. The Customer orders a specified quantity of Products or services for specified dates and for an agreed amount. The Order may refer to an official offer issued by Floox, valid in due time and form.
  • “FAT”: Factory Acceptance Test is the series of tests which are conducted in order to verify and document that the manufacturing process and the finished product have been performed and obtained in compliance with the quality standards stipulated by Floox.
  • “SAT”: Site Acceptance Test is the series of tests which are conducted during the commissioning process of the Product once it has been installed at the final site where the Product is to operate.
  • “Gross Negligence”: intentional or reckless failure to exercise due care required by the circumstances to avoid serious consequences for the other party.
  • “In Writing”: notice by means of a document signed by both parties by letter, email, fax or any other means agreed by them.
  • “Contract or Order Price”: the agreed price which will be a fixed price or, if the parties have specifically agreed a price review clause, the revised price. The prices specified in the Contract or Order will be net prices excluding any taxes, duties or fees which will be added at a later date.

III. PRODUCT INFORMATION AND INSTRUCTIONS

3.1. All information and data in general product documentation and price lists, irrespective of their form, will be binding only to the extent that they are expressly included by reference In Writing in the Contract or Order.
3.2. The Supplier will provide free of charge and at the latest on the delivery date all the information and drawings needed to enable the Customer to install, commission, use and maintain the Product properly. Such information and drawings will be supplied in hard copy and in electronic form. The Supplier will not be obliged to provide manufacturing drawings of the Product or spare parts.

IV. INTELLECTUAL PROPERTY

4.1. All intellectual property rights in the Product (including any embedded software and any technical information relating to the Product) will vest in the Supplier or any third party who has authorised the Supplier to sub-license these rights. Notwithstanding any restrictions which may have been agreed between the third party and the Supplier, the Customer will acquire a non-exclusive, perpetual and transferable right to use these intellectual property rights, albeit limited to the extent required by the subject matter of the Contract. This grant will in no case entail any transfer of ownership to the Customer and Floox will retain exclusive ownership of these rights. The Supplier will not be obliged to provide the Customer with the source code or updates of any embedded software. This clause will also apply when the Product and/or software has been developed specifically for the Customer unless otherwise agreed In Writing.

V. DATA PROTECTION

5.1. The parties undertake to strictly comply with Regulation (EU) 2016/679 on Data Protection and applicable Spanish legislation such as the Data Protection Act 3/2018 of 5 December.

VI. CONFIDENTIALITY

6.1. Technical, commercial and financial information, or any other information which has been declared confidential or which by its very nature must be considered confidential, disclosed In Writing or orally by one of the parties to the other will be treated as confidential.
6.2. Confidential Information may not be used for purposes other than those for which it was provided without the consent of the disclosing party In Writing. Furthermore, without the consent of the disclosing party In Writing, this information may not be transmitted, communicated or disclosed to third parties except to employees, contractors or agents who have a need to know for the purposes of the Contract and provided that they are subject to equivalent confidentiality obligations.
6.3. On termination of the relevant Contract or on written request by the disclosing party, whichever occurs first, the receiving party will at the option of the disclosing party either return or destroy all confidential information of the disclosing party.
6.4. The parties agree that Confidential Information will be kept strictly confidential during the term of the Contract or Order and will remain confidential after the expiry or termination of the Contract or Order as long as such information remains confidential.

VII. ACCEPTANCE TESTING

7.1. If the Contract or Order does not specify the technical requirements, the FAT will be carried out in accordance with general practice at Floox’s premises and laboratories authorised for this purpose. The Customer may ask to attend the FAT at a place, date and time agreed by both parties.
7.2. Floox will provide the FAT at the Customer’s express request In Writing.
7.3. If the FAT demonstrates that the Product does not conform to the Contract or Order, Floox will remedy any deficiency without delay in order to ensure that the Product does comply with the Contract or Order. Further testing will then be carried out at the Customer’s request unless the deficiency was insignificant.
7.4. Floox will bear all costs of FAT testing conducted at the place of manufacture. However, the Customer will bear all travel and living expenses of its representatives in connection with such tests.

VIII. DELIVERY. TRANSFER OF RISK

8.1. Any agreed commercial terms will be construed in accordance with the INCOTERMS®. If no commercial terms have been specifically agreed, delivery will be Ex Works – EXW at Floox’s warehouse.
8.2. The Customer may cancel undelivered orders and/or contracts without penalty during the first two weeks after confirmation of the Order and/or Contract. However, the Customer will pay 40 per cent of the value of the Order and/or Contract in case of cancellation of the Order and/or Contract during the following four weeks. Floox will not accept any cancellation of the Order and/or Contract six weeks after confirmation of processing.

IX. DELIVERY PERIOD. DELAY

9.1. If instead of a delivery date the parties have specified a period in which delivery is to be made, this period will start to run as soon as the Contract or Order has been concluded and all agreed preconditions to be met by the Customer, such as official procedures, payments due on conclusion of the Contract or Order and securities, have been fulfilled.
9.2. If the Supplier anticipates that it will not be able to deliver the Product at the agreed time of delivery, it will immediately notify the Customer In Writing stating the reason and, where possible, the time at which delivery can be expected.
9.3. If the delay in delivery is due to any of the circumstances referred to in Clause 16.1, to an act or omission on the part of the Customer, including suspension under Clauses 11.3 and 17.1, or to any other circumstances attributable to the Customer, the Supplier may extend the delivery period without penalty for such time as may be required taking into account all the circumstances of the case. This will apply irrespective of whether the reason for the delay occurs before or after the agreed delivery period.
9.4. The Customer will be entitled to indemnification for late delivery only when the terms of such indemnification are defined and accepted by both parties In Writing in the Contract or Order and it is for reasons attributable to the Supplier. Indemnification will be payable on demand In Writing by the Customer, although not before delivery has been completed or the Contract or Order has been terminated pursuant to Clause 9.5.
9.5. If the Supplier fails to deliver within 120 days after the confirmed delivery date and this is not due to circumstances attributable to the Customer, by notice In Writing to the Supplier the Customer may terminate the Contract or Order in respect of that part of the Product which as a result of the Supplier’s failure to deliver cannot be used as intended by the parties.
9.6. Indemnification under Clause 9.4 and termination of the Contract or Order with limited indemnification under Clause 9.5 will be the only remedies available to the Customer in the event of delay by the Supplier. All other claims against the Supplier based on such delay will be excluded unless the Supplier has been guilty of Gross Negligence.

9.7. If the Customer anticipates that it will not be able to accept delivery of the Product at the time of delivery, it will immediately notify the Supplier In Writing stating the reason and, where possible, the time at which it will be able to accept delivery.
9.8. If the Customer does not accept delivery at the scheduled time for a reason not attributable to the Supplier, the Customer will pay the part of the Contract Price which is due at that time as if delivery had taken place. The Supplier will store the Product at the Customer’s risk and expense. In addition and at the Customer’s request, the Supplier will insure the Product at the Customer’s expense.

9.9. Unless the Customer’s failure to accept delivery is due to any of the circumstances referred to in Clause 16.1, the Supplier may by notice In Writing require the Customer to accept delivery within 60 calendar days. If the Customer fails to accept delivery within such period due to a reason not attributable to the Supplier and not resulting from any of the circumstances referred to in Clause 16.1, the Supplier may by notice In Writing terminate the Contract or Order in whole or in part. In such a case, the Supplier will be entitled to indemnification for any loss incurred by it as a result of the Customer’s non-performance, including consequential and indirect loss. The indemnification will not exceed that part of the Contract Price for the part of the Product in respect of which the Contract or Order is terminated.

X. INDEMNIFICATION

10.1. The Customer undertakes to indemnify and hold the Supplier harmless from and against any and all causes of action, claims, liabilities, losses, damages and expenses relating to injury, illness or death of any person arising out of or resulting from the Customer’s purchase, ownership, transport, receipt, handling, storage, modification, use or resale of the Product.
10.2. The Customer will be liable for any use of the Floox Product in a way not allowed by the terms and conditions of the Contract or the TCS and/or any documentation relating to the Product provided by the Supplier and also for any breach of contractual obligations, including the obligation to maintain an appropriate security program and the timely installation of updates to the Product as required.
10.3. The Customer will be liable for any damage to or loss of property, including that of the Customer or third parties, resulting from the above activities.
10.4. The Customer will pay all damage and expenses incurred by the Supplier in connection with any claim, suit, action or other proceeding arising out of the activities mentioned above.

XI. PAYMENT

11.1. Unless otherwise agreed, payment will be made within thirty days of the date of the invoice. Thirty per cent of the Price will be invoiced at the time of conclusion of the Contract or Order and the remaining 70 per cent at the time of delivery of the Product.
11.2. Payment of the due amount of the Price will be deemed to have been made when it has been irrevocably credited to the Supplier’s bank account.
11.3. If the Customer fails to pay on the agreed date, the Supplier will be entitled to interest from the day on which payment is due together with indemnification for recovery costs. The applicable interest rate will be the rate agreed between the parties or, failing that, 8 percentage points above the interest rate of the European Central Bank for main refinancing operations (MRO). Indemnification for recovery costs will be 1 per cent of the amount for which interest for late payment accrues.
11.4. In the event of late payment, after giving notice In Writing to the Customer the Supplier may suspend performance of the Contract or Order until payment is received.
11.5. If the Customer has not paid the amount due within two months, the Supplier may terminate the Contract or Order by notice In Writing to the Customer, claim interest and indemnification for recovery costs pursuant to this clause and also claim indemnification for any costs and losses it incurs including indirect and consequential losses.

XII. RETENTION OF TITLE

12.1. The Supplier expressly reserves title to the products supplied until the Customer has made full payment of all amounts due under the Contract or Order including the purchase price, applicable interest and any additional costs.
12.2. The retention of title will not affect the transfer of risk specified in Clause 8.1.

XIII. LIABILITY FOR DEFECTS

13.1. The Product is to conform to the Contract or Order. Pursuant to this clause and Clauses 13.2 to 13.5, the Supplier will remedy any defect or non-conformity of the Product (hereinafter referred to as defect) resulting from defective design, materials or workmanship.
13.2. The Supplier will not be liable for defects arising from any design, materials or production methods provided, stipulated or specified by the Customer.
13.3. The Supplier will only be liable for defects which emerge under the operating conditions stipulated in the Contract or Order and when the Product is used properly.
13.4. The Supplier will not be liable for defects caused by circumstances occurring after the risk has been transferred to the Customer, for example defects due to faulty or incorrect installation, maintenance or repair or any alteration carried out by the Customer or by a third party on the Customer’s behalf. The Supplier will not be liable for normal wear and tear or deterioration.
13.5. The Supplier’s liability will be limited to defects emerging within three years of delivery. If the use of the Product exceeds that agreed, this period will be reduced proportionately.
13.6. When a defect in a part of the Product has been remedied, the Supplier will be liable for defects in the repaired part or the replaced part on the same terms and conditions as those applicable to the original Product for a period of one year.
13.7. The Supplier will not be liable for defects in any part of the Product for more than one year from the end of the period of liability referred to in Clause 13.5 or from the end of any other period of liability agreed by the parties.
The Supplier in particular will not be liable for defects in any parts subject to wear and tear, transient overvoltage protection, magneto-thermal and differential protection, AC disconnectors, fuses, AC and DC contactors, power modules, filters and fans.
13.8. The Customer will notify the Supplier In Writing and without undue delay of any defect which becomes apparent. The notice will contain a description of the defect. Such notice will in no case be given later than two weeks after the expiry of the period referred to in Clause 13.5 or the extended period(s) under Clause 13.6 where applicable.
If the Customer fails to notify the Supplier In Writing of a defect within the time limits specified in paragraph one of this clause, the Customer will forfeit its right to have the defect remedied and any other rights in respect of the defect.
Where the defect is such as to cause damage, the Customer will immediately notify the Supplier In Writing.

The Customer will bear the risk of damage to the Product arising from its failure to notify the Supplier. The Customer will take all reasonable steps to mitigate any damage and will follow the Supplier’s instructions in this respect.
13.9. On receipt of the notification pursuant to Clause 13.8, the Supplier will remedy the defect without undue delay at its own cost as stipulated in Clauses 13.1 to 13.5. The time for the repair work will be chosen in such a way that it does not unnecessarily disrupt the Customer’s operations.

The repair work will be carried out at the place where the Product is located, unless the Supplier considers it more appropriate for the Product to be sent to it or to a place specified by it.

If the defect can be remedied by replacing or repairing a defective part and if the disassembly and reinstallation of the part does not call for special expertise, the Supplier may require that the defective part be sent to it or to a place specified by it. In such a case, the Supplier will have met its obligations in respect of the defect when it delivers a duly repaired part or a replacement part to the Customer.
13.10. The Customer will at its own expense provide access to the Product and arrange for any intervention in equipment other than the Product to the extent necessary to remedy the defect.
13.11. Unless otherwise agreed, any transport of the Product or parts thereof to and from the Supplier in connection with remedying defects for which the Supplier is liable will be at the Supplier’s risk and expense. The Customer will follow the Supplier’s instructions concerning such transport.
13.12. Unless otherwise agreed, the Customer will bear any additional costs incurred by the Supplier when remedying any defect caused by the Product being in a place other than the one specified in the Contract or Order for commissioning the Product, or if not specified, at the place of delivery.
13.13. Defective parts which have been replaced will be given to the Supplier and become its property.
13.14. If the Customer has given the notice referred to in Clause 13.8 and no defect is found for which the Supplier is liable, the Supplier will be entitled to indemnification for any costs it has incurred as a result of the notice.
13.15. If the Supplier fails to comply with its obligations under Clauses 13.9 or 14.4, the Customer may by notice In Writing ask for a reasonable final period for the Supplier to meet its obligations and which may not be less than one month.
If the Supplier fails to comply with its obligations within such reasonable final period, the Customer may arrange for itself or employ a third party to perform the necessary remedial work at the Supplier’s risk and expense subject to the Customer’s notice In Writing to the Supplier and the Supplier’s consent In Writing to the Customer.
When repair work has been successfully performed by the Customer or a third party, the Supplier’s reimbursement of any reasonable costs incurred by the Customer will be limited to a maximum settlement value of 10 per cent of the selling price of the equipment and will constitute full settlement of the Supplier’s liabilities for such defect.
13.16. When the defect has not been successfully remedied pursuant to Clause 13.15:

a) The Customer will be entitled to a reduction in the Contract or Order Price in proportion to the reduced value of the Product, although in no circumstances may such reduction be greater than 10 per cent of the Contract or Order Price.
b) Notwithstanding the foregoing, where the defect is so substantial as to significantly deprive the Customer of the benefit of the Contract or Order in respect of the Product or a substantial part thereof, the Customer may terminate the Contract or Order by notice In Writing to the Supplier in respect of such substantial part thereof.
13.17. Except as specified in Clauses 13.1 to 13.16, the Supplier will not be liable for any defects. Accordingly, the Supplier will not be liable for any other loss that the defect may cause, including loss of production, loss of profit and other indirect losses.

XIV. LIABILITY FOR BREACH OF INTELLECTUAL PROPERTY RIGHTS

14.1. Unless otherwise agreed, pursuant to this clause and Clauses 14.2 to 14.5 the Supplier will be liable to the Customer for any breach of patents, copyright or any other intellectual property rights of a third party in the Customer’s country. In such a case, the Supplier will indemnify and hold the Customer harmless against third party claims provided that such claims are confirmed as valid by a final award or a settlement approved by the Supplier. However, the Supplier will not be liable for any loss of production, loss of profit, loss of use and loss of Contract or Orders of the Customer.

14.2. The Supplier will have no liability for any breach of intellectual property rights arising from:

• using the Product in a place other than the Customer’s country;
• using the Product other than as agreed or in a way that the Supplier could not have foreseen;
• using the Product in conjunction with equipment or software not provided by the Supplier; or
• any design or construction stipulated or specified by the Customer.

14.3. The Supplier will only be liable if the Customer notifies it In Writing without delay of any claim referred to in Clause 14.1 which it receives and allows the Supplier to decide how the claim is to be addressed.

14.4. Breach of intellectual property rights will be cured at the Supplier’s discretion by:
• granting the Customer the right to use the Product;
• adjusting the Product so that the breach ceases; or
• replacing the Product with another product which can be used without breaching the applicable intellectual property rights.

14.5. If the Supplier fails to cure the breach pursuant to Clause 14.4 without undue delay, Clauses 13.15, 13.16 and 13.17 will apply.

XV. ALLOCATING LIABILITY FOR DAMAGE CAUSED BY THE PRODUCT

15.1. The Supplier will not be liable for any damage to property caused by the Product after its delivery and while it is in the Customer’s possession. The Supplier will also not be liable for any damage to products manufactured by the Customer or to products of which the Customer’s products form a part.

If the Supplier incurs liability to a third party for such property damage as described in the preceding paragraph, the Customer will indemnify and hold the Supplier harmless.

If a third party brings a claim for damage as described in this clause against one of the parties, the latter party will immediately inform the other party In Writing.

The Supplier and the Customer are mutually obliged to allow each other to be summoned before the court or arbitration tribunal examining claims for damages brought against one of them on the basis of damage purportedly caused by the Product. However, any liability between the Supplier and the Customer will be settled in accordance with Clause 20.2.

XVI. FORCE MAJEURE

16.1. Either party may suspend performance of its obligations under the Contract or Order to the extent that such performance is prevented or rendered unreasonably burdensome by force majeure, i.e. any of the following circumstances: labour disputes and any circumstances beyond the control of the parties such as fire, war, extensive military mobilisation, insurrections, requisitions, seizures, embargoes, restrictions on the use of power, currency and restrictions on imports or exports, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by subcontractors caused by any of the circumstances referred to in this clause.

Any circumstance referred to in this clause whether occurring before or after the conclusion of the Contract or Order will only afford entitlement to suspension if its effect on the performance of the Contract or Order could not have been foreseen at the time of the conclusion of the Contract or Order.

16.2. The party claiming to be affected by force majeure will notify the other party In Writing without delay about the intervention and the cessation of such circumstance. If a party fails to give such notice, the other party will be entitled to indemnification for any additional costs it incurs and which it could have avoided if it had received such notice.

If force majeure prevents the Customer from meeting its obligations, it will indemnify the Supplier for any costs the Supplier incurs to store, insure and safeguard the Product and to avoid unreasonable disruption of its other operations.

16.3. Notwithstanding anything in these TCS, either party will be entitled to terminate the Contract or Order by notice In Writing to the other party if performance of the Contract or Order is suspended under Clause 16.1 for more than six months.

XVII. SUSPENSION

17.1. Each party may suspend performance of its obligations under the Contract or Order when it is clear from the circumstances that the other party will not perform its obligations. The party suspending the performance of the Contract or Order will immediately notify the other party In Writing.

XVIII. TERMINATION

18.1. If the Customer decides to terminate the Contract for reasons beyond the control of the Supplier, the Customer will agree on a plan for the orderly termination of the Contract, specifying the procedure and deadlines to prevent disruption or damage. The Customer will also indemnify the Supplier for any loss and damage caused by the termination.

XIX. CONSEQUENTIAL LOSSES

19.1. Except as otherwise stated in these TCS or in the case of Gross Negligence, neither party will be liable to the other for any loss of production, loss of profit, loss of use, loss of Contract or Orders or for any other consequence or indirect loss whatsoever, whether or not the loss was foreseeable.

XX. JURISDICTION AND GOVERNING LAW

20.1. These TCS will be governed by Spanish law.

20.2. The parties will seek to reach an amicable solution to any disputes between them in relation to the Contract or Order. If the disagreement cannot be resolved amicably, the parties waive any other venue to which they may be entitled and agree to submit any disputes arising from these TCS to the courts and tribunals of the city of Barcelona.

20.3. The Contract or Order will be governed by the substantive law of the Supplier’s country.