1.Presentation - Definitions
1.1. PARKING ENERGY SERVICES s.à.r.l. is a company whose business is the marketing and installation of electric car charging stations and various accessories, as well as the provision of a management service for electric car charging stations, including user management, monitoring of electricity consumption and management of the charge;
1.2 Throughout these general terms and conditions of sale, PARKING ENERGY SERVICES s.à.r.l. is referred to as the 'Company' and any individual or legal entity using the Company's services is referred to as the 'Client', it being specified that for any work affecting all or part of a building, the owner of the building is in principle the Client and that if a request is made by a developer, the managing agent or a tenant of the building, the latter will be deemed to be duly authorised by the owner;
1.3 'Contract': any contract entered into between a Client and the Company for the provision of Products and/or Services by the Company and including, where necessary, additional agreements and details to these General Conditions;
1.4 'Personal Data': the personal data of the Client and/or any User processed by the Company in the context of a contractual relationship (e.g.: name, address, telephone number, etc.);
1.5 'Customer Facility': any infrastructure and/or physical element (e.g. building, internal building wiring, racks and boxes, charging stations, etc.) that does not belong to the Company but which may interact with / be necessary for the installation of Products / provision of Services or which is impacted in whole or in part in the course of carrying out works;
1.6 'Offer': any firm offer by the Company to enter into a Contract with the Customer, containing the essential elements of a Contract, such as quantity, main features, payment terms, availability of Products, installation date, etc. The Offer is communicated to the Customer in a written document (such as a quotation);
1.7 'Product': any tangible good (e.g. charging stations and various accessories necessary for the installation and proper functioning of the stations), when the sale of such good is the main object of the Contract concerned;
1.8 'Service': any service provided by the Company that is the subject of a Contract that authorizes the management of the electric car charging stations by the Company, including the management of the users and the electricity consumption;
1.9. 'Billing Service': any service provided by the Company under a Contract which authorises the Company to bill the Charging Right Holder and/or the End User for their electricity consumption on behalf of the Client, with the obligation to reimburse the Client for the amounts collected within a period agreed between the Company and the Client;
1.10. 'Installation Service': any service provided by the Company in connection with the installation of the Products;
1.11. 'Service: agreed level': indicators and their values agreed between the Client and the Company to measure the availability and proper functioning of the Service (see Appendix 1);
1.12. 'Monitoring Service': any of the Company's services related to continuous monitoring of the operation of the Products and Services after installation;
1.13. 'Licensee': any legal or natural person appointed by the Customer to use the Products / Services;
1.14. 'User': any natural person authorized by the Holder of the right to charge to use the Product / Service to charge an electric car.
2. Scope - Entire Agreement
2.1. These general terms and conditions of sale detail the rights and obligations of the Company in the context of all its services, sales of Products and Services, after-sales interventions and in general any written or oral contractual relationship with the Client, unless expressly waived by the Company in writing;
2.2. The Client expresses its understanding and agreement with the conditions stipulated in these general sales conditions and thereby waives the right to invoke its own conditions, whether general or specific, written or not, unless otherwise agreed in writing between the Client and the Company;
2.3. In the event that the Client appoints a Cargo Right Holder and authorizes him to use the Service(s), it is the Client's responsibility to ensure that the Cargo Right Holder complies with these terms and conditions;
2.4. In the event of any contradiction between the provisions of the various contractual documents, the provisions of the Agreement shall take precedence over these general terms and conditions.
3. Formation of a Contract
3.1. These general terms and conditions of sale may be modified or supplemented when the Company draws up an Offer, which then constitutes the special terms and conditions;
3.2. The Client declares that it has read the general terms and conditions of sale and has accepted them without reservation. The Client's signature on any document issued by the Company implies its agreement on the nature, consistency and price of the Products / Services, as well as on the conditions of delivery / installation;
3.3. The Contract is formed after acceptance of the Offer by the Client. In the event that no quotation has been issued, the Contract shall come into existence upon execution of the work requested by the Client. Any performance by the Company which is not contested in writing by the Client within three working days shall be deemed to have been accepted without reservation. The contract then formed is final and irrevocable.
4.1. The main obligation of each party, namely to perform the service for the Company and to pay for the service for the Client, arises from the moment when the Client has duly signed and returned by hand or by mail including electronic mail the Offer issued by the Company;
4.2. In case of cancellation of the order by the Client after the signature of the Offer and its acceptance by the Company for any reason whatsoever, except for force majeure, the deposit paid at the time of the order will be automatically acquired and will not be refunded. In addition, if the loss suffered by the Company is greater than the amount of the deposit paid, the Company may claim damages from the Client.
5. Prices - Pricing
5.1. Any Offer issued by the Company explicitly mentions the prices of the Products and Services offered to the Client in Euros. The validity date of the prices offered is the same as the validity date of the Offer;
5.2. The prices include all taxes due in the Grand Duchy of Luxembourg in respect of the Products / Services concerned, with the exception of the value added tax in force;
5.3. Additional costs of any nature whatsoever that the Company may incur as a result of a modification of the Contract by the Client or as a result of additional work carried out by the Company or its subcontractors with the Client's agreement, and which is not included in the initial Offer, shall be borne entirely by the Client and invoiced at the rates in force;
5.4. The Company reserves the right to unilaterally modify all or part of the price of the Products and/or Services insofar as these have not yet been supplied and such modification is objectively justified by factors beyond the Company's control, such as for example by an increase in an applicable tax, by an increase in the consumer price index in relation to the index in force on the day of conclusion of the Contract, as well as by the regulations in force or by the decision of a competent authority. The Customer shall be notified of any such change no later than one (1) month before it comes into effect and the Customer shall have no right of cancellation/termination due to such change in rates.
6. Invoicing - Terms of payment
6.1. Any Service contracted between the Customer and the Company is billed on a monthly basis. Products, installation fees or other one-off charges due under or in connection with the Services are invoiced within one (1) working day of the connection of the recharging equipment and/or other service provided by the Company;
6.2. The invoices issued by the Company shall be deemed authentic until proven otherwise for the purposes of settlement between the parties. The Client has a period of eight (8) working days from the notification of an invoice to dispute all or part of this invoice and to provide the reasons for its dispute;
6.3. Unless otherwise stated in the invoice, the payment term is 20 calendar days after the date of the invoice;
6.4. The Client agrees that the Company may issue electronic invoices;
6.5. The Company shall be entitled to request from the Client a deposit, advance payment, or even a guarantee, or to grant instalment payment terms;
6.6. In the event that the Company has not obtained payment of the amounts due on the due date, statutory interest for late payment shall be due as well as a lump sum compensation of forty-five (45) euros plus any other collection costs in addition to the said lump sum incurred as a result of the Client's late payment. The Company reserves the right to suspend all Services without prior notice and until such time as all overdue payments have been collected;
6.7. In the case of a Billing Service Contract, where the Company is mandated by the Client to bill the Charging Right Holder and/or User for electricity consumption, the amounts collected are refunded to the Client on a monthly, post-consumption basis. In the event of non-payment by the Right Holder and/or User, the Company declines all responsibility for collecting the payments due. Any action to recover unpaid amounts is entirely the responsibility of the Client.
7. Performance of the Contract by the Company
7.1. The Company shall provide the Products and/or Services as soon as possible and in accordance with its technical possibilities and resources, except where the Contract explicitly stipulates a predefined period or date of performance. However, the Company accepts no responsibility for any delay beyond its control, which shall in no case result in the cancellation of the Contract, the application of a penalty, or any other compensation by the Client;
7.2. The Company reserves the right to subcontract all or part of its obligations under the Contract. In such case, the Company shall remain fully responsible to the Client for the proper performance of the Contract;
7.3. The Company undertakes to take all reasonable steps to respect the condition of the Customer Facilities to which it may have to intervene or inspect or to which it may have access in the course of the performance of the Contract;
7.4. For any Installation Service, the Company and/or its subcontractors shall apply to the competent authority (CREOS) for the necessary authorisation before starting the installation work. The completion notification form shall be completed and the application for final acceptance by CREOS shall be made upon completion of the installation work by the Company and/or its subcontractors. The commissioning of a charging station shall only take place after CREOS has inspected and affixed a sticker;
7.5. The Company shall provide the Service including the monitoring Service via the Internet. It undertakes to provide the Customer with all the information required to use the Service, such as login, user manuals, etc.;
7.6. The Monitoring Service is provided 24 hours a day, 7 days a week;
7.7. The Company commits to an agreed level of Service: a minimum Service availability rate of 99.0% of the time on a monthly basis. Permitted downtime is set forth in Appendix 1 to this document. The Company will notify the Customer of any scheduled downtime in advance by means of e-mail or other suitable means;
7.8. In the event that the availability of the Service is less than 99.0% of the time on a monthly basis, the Company will refund to the Customer a portion of the price of the Service as set forth in Schedule 1 to this document. Any other compensation to the Client is excluded, except in the case of proof of intentional negligence or gross negligence of the Company;
7.9. For any question or request for technical support, the Client may contact the Company on working days from 9.00 to 17.00, at the number +352 28 99 96 74 or by email at email@example.com. The Company reserves the right to charge for technical support hours for any problem that is not attributable to the Company's Product / Service.
8. Customer's obligations
8.1. The Client declares and acknowledges that it has checked the technical and operational characteristics of the Products and/or Services and their compatibility with the Client Facilities concerned. The Customer shall ensure that the Customer Facilities are in a suitable technical and other condition to enable the Company to carry out its work in accordance with the Agreement and good practice and/or to enable the Service to function properly;
8.2. The Customer shall provide timely, unrestricted and safe access to the Customer Facilities and the right to inspect them to the extent that the Company deems such access and/or inspection necessary for the proper performance of the Contract. The Company shall also have the right to obtain information on the technical specifications of the Customer Facilities if such information may be useful for the proper performance of the Contract;
8.3. Where the Contract includes the Installation Service and requires work to be carried out in the Customer's building or in the immediate vicinity of such building, and where the Company carries out work on a Customer Facility, the Customer undertakes to:
8.4. In cases where the Installation Service is not covered by the Agreement and is the responsibility of Customer, Customer is deemed to have obtained all necessary authorisations from the competent authorities (CREOS) that may be required for the performance of the Agreement, prior to the commencement of the provision of the Service;
8.5. Customer undertakes to ensure permanent access to the Internet and/or 3G/4G network at the location of the Products;
8.6. The Customer undertakes to provide the Company with all information necessary for the provision of the Service, including information on Users and/or Right of Use Holders;
8.7. The Client undertakes to appoint a management administrator who will be responsible for all communication with the Company in relation to the Service in order to ensure the proper functioning of the Service;
8.8. The Client is responsible for keeping all information provided by the Company to ensure the proper functioning of the Service, such as login(s), security codes, etc., protected from unauthorized access. In the event that such information has been shared with an unauthorized external party, the Client shall immediately notify the Company;
8.9. The Client agrees to ensure that:
9.1. The Company will provide Products and/or Services corresponding to the features and/or functionality described in the Agreement;
9.2. The supply of a Product includes a 2 year manufacturer's warranty from the date of first use of the Product; the supply of a Service is subject to an agreed service level as per 7.7;
9.3. To be able to invoke the benefit of this warranty, the Customer must notify the Company without delay and in writing of the defects it attributes to the Product / Service, and provide any justification as to the reality of these;
9.4. The Company's warranty obligation is excluded if the defective Product originates from the Customer, if the malfunctioning is the result of normal wear and tear, incorrect installation by a third party or negligence or lack of maintenance by the Customer, or if the malfunctioning is the result of force majeure;
9.5. The Company shall have the discretion to decide on the remedy for any proven defect or non-conformity, including, if applicable, the replacement of all or part of the Products with equipment or material that is at least equivalent and in good working order, as well as the costs of labor and installation. The warranty period for the replaced Product will be equivalent to that of the replaced Product. This decision shall constitute the sole remedy for the Customer and shall exclude any other form of compensation, including financial compensation for any other damage to a third party, loss of revenue or otherwise, except in the cases covered by 7.8.
10.1. The Company retains ownership of the Products delivered to the Client from the date of delivery/installation until payment in full of the sale price. The risks of the Products shall nevertheless pass to the Client as soon as they are made available. In the event of non-payment, the Company is entitled to take back the Products or have them taken back at the Client's expense;
10.2. All intellectual property rights (in particular copyright, trademark, patent, design rights) or similar rights of any kind that may exist in the Products and/or Services shall remain the full and complete property of the Company or, where applicable, of the third party that has granted such rights to the Company. The provision of Services by the Company to the Client shall not be construed as a transfer, assignment or grant of any rights in such property;
10.3. The Client shall not remove any trademarks, logos and/or trade names, or any other distinctive signs that may be affixed to the Products;
10.4. Any creation of property rights in connection with the supply of Products or Services, including any intellectual property rights, even if the Customer has contributed to the creation of such rights, shall be deemed to have been acquired by the Company and/or transferred to it by operation of law and without consideration.
11. Contract Term
11.1. Unless otherwise stipulated in the Contract, Contracts for the provision of Service are entered into for an initial term of three (3) years. After this initial term, the Contract shall automatically be extended for an indefinite period and may be terminated upon one (1) month's notice as provided in 13.4. Contracts entered into without an initial term may be terminated upon one (1) month's notice as provided in 13.4;
11.2. Contracts for the supply of additional Products and/or services shall terminate upon the supply and connection of the additional Products and/or services, unless otherwise provided in the Contract; 11.3. Sections 6, 9, 10, 14, 15, 16 and 18 shall survive the termination of the Contract.
12. Modification during the term of the Contract
12.1. Without prejudice to Articles 5.4. and 12.2, the Agreement may not be modified unilaterally by either Party, and any modification shall require the written agreement of all Parties;
12.2. As an exception to Article 12.1, the Company reserves the right to unilaterally modify these General Conditions at any time, at its sole discretion, except for the modification of the subject matter of the Agreement, which remains subject to Article 12.1. The Customer (i) shall be informed by any means of such modification at the latest one (1) month before the entry into force of such modification and (ii) shall have no right of termination in respect of such modification.
13. Termination and Suspension of Agreement
13.1. In the event that the Company fails to comply with an essential obligation under the Agreement, the Customer may terminate the Agreement after giving notice of default to the Company specifying the breach, which notice shall have remained unsuccessful for more than one (1) month from the date of its receipt by the Company;
13.2. If the Agreement is terminated by the Customer as a result of the Company's breach of an essential obligation under the Agreement, the Customer shall be entitled to receive the communication protocol for the Product in the event that it is required for the continued use of the Product;
13.3. Customer shall have the right to terminate the Agreement with immediate effect if the Company becomes subject to bankruptcy, composition or other insolvency or dissolution proceedings or proceedings of equivalent effect; 1
3.4. The Customer may give one (1) month's notice of termination of the Agreement if it simultaneously pays in full all sums normally due until the end of the term of the Agreement;
13.5. The Company shall have the right to suspend or terminate the Contract with immediate effect, without any compensation being due as a result:
In the event of termination, the Customer shall be obliged to pay the invoices until the effective date of termination.
13.6. Any event of force majeure shall suspend the obligations under the Contract as from the date of notification by the Party so affected to the other Party and for the duration of its existence. However, in the event that such an event lasts for more than one (1) month, either Party shall be entitled to terminate the Contract by giving fifteen (15) days' notice, without compensation to the other Party. Force Majeure" shall mean any unforeseeable, irresistible event beyond the control of the Parties, including breakdowns and security incidents that are not attributable to the Company and/or its subcontractors, as well as any event generally recognized as such by jurisprudence.
14. Limitation of Liability
14.1 Notwithstanding Article 9, the Company's liability shall be limited to a total amount corresponding to the sums actually paid by the Customer under the Agreement during the twelve (12) months preceding the event giving rise to liability;
14.2. Except in the case of gross negligence and/or intentional misconduct attributable to the Company, the Company explicitly excludes its liability for any damage or loss:
15. Personal Data
The Company processes the Client's Personal Data in accordance with Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data
16. Notices between Parties
16.1 Any formal notice to be given in connection with the Contract shall be sent to the other Party in writing and shall be sent by registered letter or electronic mail;
16.2. The amendments to the Contract referred to in Articles 5.4 and 12.2 and invoices may be notified to Customer by any means;
16.3. Any notification with the direct or indirect purpose of terminating or suspending the Agreement may, however, only be made by registered mail with return receipt;
16.4. Any notice shall take effect on the Day of its receipt by the other Party. The date of receipt of an amendment to the Contract within the meaning of Articles 5.4 and 12.2 or of an invoice shall be deemed to be two (2) Days (excluding Saturdays, Sundays and legal holidays in the Grand Duchy of Luxembourg) after the date of issue mentioned on the invoice or of the notification of the amendment concerned.
17. Transfer of the Contract
Neither Party may transfer all or any part of its rights and obligations to another person without the prior written consent of the other Party.
18. Image rights
The Client authorizes the Company to take pictures of the Products inside and outside the building for advertising purposes.
19. Applicable Law
19.1. The Agreement and any matter relating thereto shall be governed by Luxembourg law;
19.2. any claim may be submitted to the Company by post, email (firstname.lastname@example.org) within fifteen (15) Days of the event giving rise to the Claim. The Company shall use its best efforts to respond to such Claim by any means within ten (10) business days of receipt;
19.3. In the event that a claim in relation to a Contract cannot be settled via the said exchange and as long as no dispute has been brought before a court of law, the dispute may be submitted to the Civil and Commercial Mediation Centre (www.cmcc.lu);
19.4. If none of the above procedures is initiated or does not result in an agreement between the Parties, the courts of the Grand Duchy of Luxembourg shall have exclusive jurisdiction.
SCHEDULE 1 SERVICE: AGREED LEVEL
Definitions: 'Agreed Service Hours' (ASH): every day from Monday to Sunday, including holidays, from 00:00 to 24:00 (Central European Time); 'Agreed Service Availability': 99% of the agreed service hours on a monthly basis; 'Service Availability': the log in is available to the Customer and the Customer is able to use the main functions of the Service;
Service Availability is measured on a monthly basis according to the following formula
D (%) = (SAH-HAP-HANP) / (SAH-HAP) x 100 where:
ETA = Enabled Downtime
HANP = Unenabled Downtime 'Unenabled Downtime Hours': the hours when the Service is not available to the Customer for any reason related to the Company's management of the Service and excluding Enabled Downtime Hours; 'Enabled Downtime Hours': the hours when the Service is not available to the Customer for any of the following reasons:
Deduction of fees:
In cases where the Service Availability is less than the agreed Service Availability the Customer shall be entitled to a deduction from the amount of the monthly charges due under the Contract in accordance with the following scheme:
The amount due will be deducted by the Company in the following month's invoice or, in the event the Agreement is terminated, refunded to the Customer within 30 days of termination. It is the Customer's responsibility to inform the Company of the non-permitted termination of the Service and to claim a deduction of the charges within 30 days from the date the Customer became aware of the lower level of agreed Service. The Company's liability for any unavailability of Service is limited to the amounts stipulated in this Schedule, except for gross negligence and/or intent attributable to the Company.