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), provided that nothing herein shall prevent TMH from assigning any contract to its affiliate, PowerFlex Systems, LLC (or to any other PowerFlex affiliate).
2. The business relationship between TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 a writing executed by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable).
3. Third-party independent contractors who perform services for TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) but are not employees of TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) are not authorized to reach agreements that deviate from these Terms and Conditions or to provide any warranties on behalf of TMH (or its affiliate, PowerFlex Systems, LLC, as applicable). This also applies in case of subsequent changes and amendments.

II. General
1. Formation of contract
TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 (or its affiliate, PowerFlex Systems, LLC, as applicable).

2. Scope of service
The content and scope of the service to be provided by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) are based on the description of services provided by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) in the Offer. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) 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, at customer’s sole cost and expense.

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 (or its affiliate, PowerFlex Systems, LLC, as applicable) upon acceptance of the order. Unless a binding date is expressly agreed, TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 (or its affiliate, PowerFlex Systems, LLC ‘as applicable) fails to comply with a bindingly agreed deadline and the customer subsequently sets an appropriate grace period for TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) to provide the service that elapses unsuccessfully.
d. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) reserves the right to refrain from carrying out an installation service due to unforeseen reasons or reasons for which TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) is not responsible. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) shall communicate this to the customer by email explaining the undue delay. Any payment already made will be refunded to the customer.
e. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 (or its affiliate, PowerFlex Systems, LLC, as applicable) 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. The customer shall be invoiced for the one-time fees immediately upon acceptance of the customer’s purchase order by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable), provided for the avoidance of doubt that no general terms and conditions of the customer referred to in such purchase order or elsewhere shall apply, unless expressly agreed in a writing executed by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable). The remaining cost of ordered goods and services are invoiced on or following the first day of the next full month following the installation.

c. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) reserves the right to impose a late charge of 0.5% per month (6% annual) on the unpaid balance if an invoice is not timely paid.

7. Retention of title
Until payment is made in full, the delivered goods shall remain the property of TMH (or its affiliate, PowerFlex Systems, LLC, as applicable).

8. Duty of the customer to cooperate
a. Unless agreed otherwise in a writing signed by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable), the customer is responsible for procuring all public and private permits necessary for the installation, connection, and operation of the charging infrastructure, as applicable.
b. If the assembly and connection of the charging infrastructure are carried out by an installer not engaged by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable), 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 (or its affiliate, PowerFlex Systems, LLC, as applicable).
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 (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 a signed writing by TMH (or its affiliate, PowerFlex Systems, LLC as applicable). TMH (or its affiliate, PowerFlex Systems, LLC as applicable) 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 customer’s 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 (or its affiliate, PowerFlex Systems, LLC, as applicable), prior to commissioning of goods and services by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable).
(2) TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 (or its affiliate, PowerFlex Systems, LLC, as applicable) approval. The customer acknowledges that if a firmware version is uploaded without approval by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable), TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) is not liable for any adverse impacts that may occur due to the unapproved changes.
(3) To receive approval from TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) of new firmware versions, the firmware version must be one that is in use at other sites with software provided by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) or it must be tested and approved. Approval of new versions shall be communicated via email between the customer and TMH (or its affiliate, PowerFlex Systems, LLC, as applicable).
(4) The customer must provide at least three (3) weeks’ notice that new firmware should be tested. Within such three (3) weeks, TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) will test the new firmware and determine whether any additional work is needed for software provided by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) to be fully functional with the new version of the firmware.

f. Site Access.

(1) To the extent an Offer includes installation services or other services requiring site access, the customer shall provide TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) and its or their subcontractors, agents, and representatives with full, unrestricted access to the project site, including all areas reasonably necessary for mobilization, staging, ingress and egress, installation, and construction of the System (collectively, "Site Access"). Site Access shall be provided at no cost to TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) and shall commence on or before the date required by the Project Schedule.

(2) Access to and performance of work on the project site by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) is conditioned on the project site being in the condition represented by the customer and free of concealed or unknown conditions not disclosed to TMH (or its affiliate, PowerFlex Systems, LLC, as applicable). TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) shall have no liability for delays, damages, or additional costs arising from site conditions not caused by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable).

9. Warranty; DISCLAIMER
a. For Offers that explicitly include Installation Services, TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) warrants that Installation Services performed by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) pursuant such Offer will be performed (i) in a good and workmanlike manner, (ii) in accordance with the requirements of the applicable Offer; (iii) in accordance with applicable laws, and (iv) in accordance with generally accepted industry standards (collectively, the “Workmanship Warranty”).

b. For the avoidance of doubt, the Workmanship Warranty does not apply to Work performed under an Offer other than Installation Services.

c. Except as otherwise required by applicable law, the liability of TMH (or its affiliate, PowerFlex Systems, LLC) with respect to the Workmanship Warranty shall terminate on the date that is six (6) months following the Final Completion Date.

d. Other than the warranties provided by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) with respect to components of the local controller or Nexus hardware (if applicable under the Offer), TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) shall assign and pass through to the customer any warranties that were provided by the original manufacturer(s) of the goods or by any other third-party insurer or warranty provider (collectively, the “OEM or Third-Party Warranty Provider”), solely as and to the extent permitted by the terms and conditions of such warranties provided by the OEM or Third Party Warranty Provider (the “OEM or Third Party Warranty”). TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) shall use commercially reasonable efforts to assist in the administration of the customer’s requests for warranty service under an OEM Warranty or Third Party Warranty (including under any OEM Warranty or Third Party Warranty explicitly listed in an Offer), but TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) shall not be directly liable for, and shall not be required to expend or incur any out-of-pocket costs in connection therewith.

e. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) does not guarantee approval of any plans, applications, or petitions submitted for review by a project’s permitting authorities, any utility, or other third parties, as applicable. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) makes no assurance that any agreement, instrument, or other document submitted to a third party for approval, acceptance, execution and delivery, or other action, will be approved, accepted, executed and delivered, or otherwise acted on within the timeframe or in the manner requested.

f. TMH (or its affiliate, PowerFlex Systems, LLC) 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.
g. Temporary disruptions, restrictions and/or interruptions of the ChargePilot by PowerFlex web portal or any other web portal owned by PowerFlex Systems, LLC (or its affiliates, as applicable) (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.
h. The services owed by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) under contract rely in part (see also Clause III.) on necessary communications infrastructure such as mobile or cable-based internet connections. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) 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 (or its affiliate, PowerFlex Systems, LLC, as applicable) only work in conjunction with the software provided by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable). The charging infrastructure acquired by the customer only works subject to the presence of additional conditions that TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) is unable to influence, in conjunction with the software licensed hereunder and provided by TMH (or its affiliate, PowerFlex Systems, LLC, as applicable).

i. 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.

j. THE WARRANTIES SET FORTH ABOVE IN THIS SECTION 9 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, FOR PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHERWISE. THERE ARE NO OTHER WARRANTIES, AGREEMENTS, OR UNDERSTANDINGS WHICH EXTEND BEYOND THOSE SET FORTH IN THESE TERMS AND CONDITIONS WITH RESPECT TO THE WORK UNDER ANY OFFER. FOR THE AVOIDANCE OF DOUBT, TMH AND POWERFLEX SYSTEMS, LLC (AND ITS AND THEIR AFFILIATES) DO NOT ASSUME RESPONSIBILTIY FOR WARRANTY PROMISES OF ORIGINAL EQUIPMENT MANUFACTURERS OR ANY OTHER THIRD PARTIES WHICH MAY PROVIDE WARRANTIES ON THE GOODS.

10. Terms of Use

a. Each Offer and the customer’s use of the proprietary cloud enabled application software including ChargePilot by PowerFlex or the driver application, payments processing, energy management capabilities, adaptive charging functionality and the “Axcess” web-access portal and all related data and documentation (collectively, the “PowerFlex Platform”) are subject to applicable law and to the PowerFlex’s standard terms of use set forth at https://www.powerflex.com/powerflex-platform-terms-of-use/ (the “Terms of Use”) applicable to “User” (as defined therein), which are hereby incorporated by reference into these Terms and Conditions. By signing an Offer, the customer affirms that it has read and agrees to be bound by these Terms and Conditions including the Terms of Use.

b. PowerFlex may include PowerFlex trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations on any deliverable provided under an Offer by TMH or PowerFlex Systems, LLC (or any of its or their affiliates), including any charging stations installed as part of any project.

c. PowerFlex (and TMH, to the extent applicable) hereby grants to the customer a royalty-free, non-assignable, non-transferable, and non-exclusive license to use information made available by PowerFlex (directly or indirectly through TMH) to the customer solely in accordance with these Terms and Conditions and each Offer, and solely to the extent necessary for the customer to access, use and receive the PowerFlex Platform as permitted herein during the term of software services. Solely as and to the extent needed by PowerFlex (or TMH, as applicable) to perform the work under an Offer, the customer hereby grants to PowerFlex (and TMH, as applicable) a royalty-free, non-assignable, non-transferable, and non-exclusive license to use the customer’s trademarks, logos and domain names, and any content or services that a customer provides or makes available to project end-users in connection with the PowerFlex Platform (which may include customer’s site names or similar customer-provided information for use, e.g., in distinguishing among multiple customer sites).

11. Indemnities & Insurance
a. Each of TMH (or PowerFlex Systems, LLC, as applicable) and the customer agrees, to the fullest extent permitted by law, to indemnify the other party and its members, employees, agents, representatives, affiliates, successors and permitted assigns from any liability, damages, or costs (including reasonable attorneys' fees, collectively “Damages”) that arise out of claims or demands that are brought by unrelated third parties and that result from personal injury, death or property damage, to the extent caused by such indemnifying party’s negligent acts or omissions, or willful misconduct during the course of its performance of an Offer.

b. Notwithstanding anything to the contrary contained herein, the obligation of a party (the “Indemnifying Party”) to indemnify, defend and hold harmless the other party and its members, employees, agents, representatives, affiliates, successors and permitted assigns (collectively, the “Indemnified Party”), under an Offer is expressly conditioned on the Indemnified Party (i) promptly notifying the Indemnifying Party in writing concerning the claim or liability, (ii) promptly furnishing to the Indemnifying Party a copy of each communication, notice or other action relating to the claim or liability, and (iii) granting the Indemnifying Party the sole authority to defend or settle the claim or liability (at the Indemnifying Party’s expense).

c. If any liability, damages, or costs (including reasonable attorneys’ fees and costs of defense) result from the fault or comparative fault of the Indemnified Party, the indemnification obligation of the Indemnifying Party shall only apply to the extent of such Indemnifying Party’s proportional responsibility.

d. Insurance. During the term of the applicable Offer, each party shall maintain, at its own expense: (i) workers’ compensation insurance as required by applicable law; and (ii) commercial general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) shall also maintain umbrella/excess liability insurance with limits of not less than $3,000,000 per occurrence and in the aggregate. Upon reasonable request, either party shall provide evidence of such insurance coverage.

12. Limitations
a. Limitation of Liability. Each party’s aggregate liability with respect to an Offer shall not exceed an amount equal to the amount of compensation owed for the goods and work under such Offer; provided, however, that to the extent that an Offer involves the provision of goods, installation services, design & permitting services or support & software services, each party’s aggregate liability for each type of goods or work shall not exceed the compensation owed for such type of goods or work (as applicable) under the Offer, provided that with respect to Support & Software Services, each party’s aggregate liability shall not exceed the compensation owed for the first year of the Initial Support & Software Services Term. The foregoing limitations shall not relieve either party to the extent liability arises from its willful misconduct or fraud.

b. EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER TMH OR POWERFLEX SYSTEMS, LLC ON THE ONE HAND, AND THE CUSTOMER, ON THE OTHER HAND, BE LIABLE TO THE OTHER FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY.

13. References
The customer agrees to be mentioned as a reference by TMH (or PowerFlex Systems, LLC, as applicable) after placing an order. TMH (or PowerFlex Systems, LLC, as applicable) is also entitled to use the customer’s logo on its own website and in marketing documents. This agreement can be withdrawn in writing at any time by the customer.

14. Assignment
Neither these Terms and Conditions nor any obligations of either party hereunder will be assignable, delegable or transferrable by the customer without the prior written consent of TMH (or PowerFlex Systems, LLC, as applicable) 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 PT, excluding public holidays. Inquiries are generally answered within twenty-four hours.

16. Force majeure
a. Neither TMH (or PowerFlex Systems, LLC, as applicable) or the customer shall be considered in default or breach of the performance of their respective obligations hereunder to the extent that performance of any such obligation is prevented or delayed by Force Majeure. The affected party’s obligation to perform the subject obligation hereunder shall be suspended during the tenure of the subject Force Majeure and such party shall not be liable in damages or otherwise for a failure to perform, if and only to the extent that such party is unable to perform, or prevented from performing by such Force Majeure.

b. “Force Majeure” means the occurrence of any act or event that delays or prevents a party from timely performing obligations under these Terms and Conditions or any Offer or from complying with conditions required under these Terms and Conditions or any Offer if such act or event, despite the exercise of reasonable efforts, cannot be avoided by, and is beyond the reasonable control of, the party relying thereon as justification for such delay, nonperformance, or noncompliance. Force Majeure includes an act of God, explosion, fire, epidemic, pandemic, government action, sabotage, terrorism, earthquake, flood, or similar cataclysmic event, an act of public enemy, war, riot, civil disturbance, or labor difficulty and labor disputes that are national in scope.

17. Confidentiality. If the customer and TMH (or its affiliate, PowerFlex Systems, LLC or any of its or their affiliates, as applicable) have entered into a confidentiality agreement (a “Confidentiality Agreement”) which has not by its terms expired or been terminated, then non-public or proprietary information exchanged by the customer and TMH (or its affiliate, PowerFlex Systems, LLC, as applicable) pursuant to the performance of services (“Confidential Information”) shall be subject to the provisions of such Confidentiality Agreement. If no such Confidentiality Agreement is effective, then, except as required to perform the Services, Confidential Information of one party shall not be disclosed or used by the other party without consent of the former.

18. Amendment of these General Terms and Conditions
These Terms and Conditions may be amended or modified from time to time by TMH (or PowerFlex Systems, LLC, as applicable).

III. ChargePilot by PowerFlex Services
1. ChargePilot by PowerFlex charging and energy management system
a. Scope of service, operation, use

(1) Based on the Offer, TMH (or its affiliate, PowerFlex Systems, LLC), may provide the service ChargePilot by PowerFlex – the charging and energy management system governed by these Terms and Conditions and the TMH Terms of Service.
(2) The contracting partner must protect the access rights granted to the customer - in particular the access details required for the use of ChargePilot by PowerFlex - 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 (or its affiliate, PowerFlex Systems, LLC) 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 by PowerFlex will remain the property of TMH (or its affiliate, PowerFlex Systems, LLC) or the relevant rights holders. The contracting party is not entitled to provide third parties access to the ChargePilot by PowerFlex services and/or to enable third parties to use ChargePilot by PowerFlex without the prior written consent of TMH (or its affiliate, PowerFlex Systems, LLC). In addition, any other use of ChargePilot by PowerFlex, beyond non-exclusive rights of use, is not permitted.
(4) TMH (or its affiliate, PowerFlex Systems, LLC) is authorized to suspend the access of the customer to ChargePilot by PowerFlex immediately, if:

(a.) the customer 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 (or its affiliate, PowerFlex Systems, LLC), such as the source code of ChargePilot by PowerFlex;
(e.) a risk of damage to or interference with the systems of TMH (or its affiliate, PowerFlex Systems, LLC) 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 (or its affiliate, PowerFlex Systems, LLC) to terminate the contract without notice (cf. Section III. 1. b(4)).
TMH (or its affiliate, PowerFlex Systems, LLC) will inform the customer about the suspension of access, specifying the reasons for such decision. TMH (or its affiliate, PowerFlex Systems, LLC) 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 (or its affiliate, PowerFlex Systems, LLC).
(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. as set forth in the Offer.

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 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. Any dispute, claim or controversy arising out of or relating to these Terms and Conditions or any Offer, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California before one arbitrator appointed by JAMS in accordance with its rules. The arbitration shall be administered by JAMS pursuant to its Engineering and Construction Arbitration Rules and Procedures for Expedited Arbitration, and the parties shall maintain the confidential nature of the arbitration proceeding. Judgment on any arbitration award may be entered in any court having competent jurisdiction. This provision shall not preclude parties from seeking equitable relief or provisional remedies in aid of arbitration from a court of competent jurisdiction located in Santa Clara County, California.
4. Relationship of Parties. TMH (or PowerFlex Systems, LLC, as applicable) is an independent contractor and is in no way a legal or implied agent, employee, or officer of the customer and has no authority whatsoever to bind the customer. No acts or assistance given by the customer will be construed to alter this relationship.
5. Subcontractors. TMH (or PowerFlex Systems, LLC, as applicable) may utilize licensed subcontractors to perform the work hereunder; provided, however, that TMH (or PowerFlex Systems, LLC, as applicable) shall remain fully responsible for all work performed by such subcontractors. Subject to full payment to TMH (or PowerFlex Systems, LLC, as applicable) of all fees due under an Offer, TMH (or PowerFlex Systems, LLC, as applicable) shall cause its subcontractors not to create or place any liens, security interests or other encumbrances on any project or any project site other than mechanic’s liens or similar liens or security interests arising by operation of law for the sole purpose of securing TMH’s (or PowerFlex Systems, LLC’s, as applicable) obligation to pay a subcontractor for work performed hereunder.
6. Representations; Assignment; Counterparts; Severability.

a. Each party hereby represents and warrants that (i) it has full power and authority to enter into an Offer that incorporates these Terms and Conditions and to perform its obligations hereunder, and (ii) its true and correct Federal EIN is set forth on the cover page of each Offer.

b. The provisions of these Terms and Conditions shall inure to the benefit of and be binding upon each party’s successors and permitted assigns.

c. Each Offer may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together with these Terms and Conditions (and the Terms of Service, as applicable) shall constitute one agreement.

d. Severability. Each provision of these Terms and Conditions is independent, separate, and divisible, and if any provision of these Terms and Conditions is found by the final order of a court of competent jurisdiction to be invalid, unenforceable, or in contravention of any applicable federal or state law or regulation, such provision shall be deemed not to be a part of these Terms and Conditions and shall not affect the validity or enforceability of the remaining provisions, which shall be given full effect without regard to the invalid portion.

e. Entire Agreement. Unless explicitly stated otherwise on the Offer, the Offer (1) shall incorporate these Terms and Conditions (and the Terms of Service, as applicable), (2) represents the entire agreement between the parties with respect to the subject matter set forth in these Terms and Conditions and (3) supersedes all prior and contemporaneous oral and written agreements, communications, representations, commitments, and understandings of the parties with respect to the subject matter of each Offer.

Version: October 2026