Terms & Conditions – Supply and Installation of Chargers

1.1 Mer shall supply, and the Customer shall purchase the Charger and Services in accordance with the Quotation and these terms and conditions (the “Contract“).

1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any such Quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by Mer.

In this Contract, unless the context otherwise requires, the following expressions have the following meanings:

“Business Day” means any day other than a Saturday, Sunday or bank holiday in England;

“Business Hours” means Monday to Friday, 9am to 5pm

“Charger(s)” means the electric vehicle charger(s) which Mer UK will supply in accordance with this Contract and (if applicable) all associated hardware required for the operation of such electric vehicle charger as specified in the Quotation;

“Commencement Date” means the date the Quotation was accepted by the Customer

“Confidential Information” means information which is disclosed by Mer UK to the Customer, or by the Customer to Mer UK,  in connection with this Contract (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential, or marked as such);

“Contract” has the meaning in clause 1.1;

“Contract Price” means the price stated in the Quotation payable for the Charger and the Installation Services. For the avoidance of doubt any prices in the Quotation which do not relate to the price for supply of the Charger or the Installation Services provided under this Contract shall not form part of the Contract Price;

“Customer” means the person who accepts a Quotation from Mer UK for the sale of Charger and supply of the Installation Services;

“Delivery Date” means the date on which the Charger is to be delivered as stipulated in clause 5.2;

“DNO” means the Site’s local distribution network operator;

“Mer UK” means Mer UK Ltd, a company registered in England under 09002413 of Unit 52. Derwentside Business Centre, Consett, County Durham, DH8 6BN and includes all employees and agents of Mer UK Ltd;

“Force Majeure Event” means any circumstance not within a party’s reasonable control including, without limitation: (a) acts of God, flood, fire, storm, tempest, drought, earthquake, or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical, or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition; (f) collapse of buildings, fire, explosion or accident; (g) interruption or failure of utility service such as a power failure, internet service provider failure; (h) any labour or trade dispute, strikes, industrial action or lockouts; and/or (i) any supply interruptions, import delays or customs issues. “Installation Date” means the date that the Charger is to be installed at the Site as specified in the Quotation or otherwise agreed in writing between Mer UK and the Customer, if different from the Delivery Date;

“Installation Services” means the installation of each Charger;

“Month” means the calendar month;

“Postponement Fee” means a fee payable by the Customer if the Delivery Date is postponed by three months or more following written notice by the Customer. This fee is stipulated at Mer UK’s discretion;

“Quotation” means the quote document attached to the EV charging proposal document provided to the Customer along with these terms and conditions which sets out the Contract Price;

“Site” means the site where the Charger is to be installed as specified in the Quotation.

“Specification” has the meaning in clause 4.2.

“Workplace Charging Scheme“ is a grant provided by the Office of Zero Emission Vehicles that reduces the purchase and installation costs of a workplace charge point.

2.1 Unless the context otherwise requires, each reference in this Contract to:

(a) “writing”, and any cognate expression, includes a reference to any communication effected by electronic or similar means;

(b) a statute (meaning a written law passed by the government) or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

(c) a clause is a reference to a clause of this Contract; and

(d) “Party“, “the Parties” or “Each Party” refers to the parties to this Contract.

2.2 The headings used in this Contract are for convenience only and shall have no effect upon the interpretation of the Contract.

3.1 Mer UK will supply the Charger and provide the Installation Services in accordance with the terms of the quotation.

3.2 This Contract shall take effect and become binding on the Parties on the Commencement Date.

3.3 Mer UK’s employees or agents are not authorised to make any representations concerning the Charger or Services unless confirmed by Mer UK in writing. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not in this Contract.

3.4 Mer UK may amend sales literature, price lists and other documents issued by Mer UK in relation to the Charger and Services without notice and these documents will not constitute offers to sell the Charger which are capable of acceptance.

3.5 Any typographical, clerical or other accidental errors or omissions in any sales literature, proposal document, Quotation, price list, acceptance of offer, invoice or other document or information issued by Mer UK shall be subject to correction without any liability on the part of Mer UK.

4.1 Mer UK will ensure each Charger:

(a) complies with any requirements specified in the Quotation;

(b) is new at the point of installation;

(c) is not the subject of any security interest or adverse title, other than any security interest approved by the Customer (not to be unreasonably withheld or delayed);

(d) complies with all applicable laws, regulations, standards, grid and communication requirements as set out in this Contract;

(e) is compatible with software provided by third parties and is compliant with OCPP 1.6J+ – and shall maintain industry-standard minimum versions which can be used with any network provider;

(f) is ISO 15118 compliant;

(g) has the capability for ad-hoc pay as you go contactless card payment or magnetic strip payment card payment, without the requirement for a membership scheme; and has simple and clear information describing how to use the Charger clearly displayed on the Charger.

4.2 Illustration, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by Mer UK are intended as a guide only and shall not be binding on the Parties.

4.3 Mer UK reserves the right to make any changes to the Specification which are required to conform with any applicable safety or other statutory or regulatory requirements or which do not materially affect the Charger’s quality or performance.

5.1 Mer UK shall deliver the Charger to the Site specified.

5.2 The Delivery Date will be approximately 4 – 6 weeks’ following the Commencement Date unless otherwise specified in the Quotation or this Contract. If Mer UK is unable to arrange a Delivery Date within six weeks of the Commencement Date due to import delays, this will be considered a Force Majeure Event and clause 18 will apply. Time for delivery shall not be of the essence unless previously agreed by Mer UK in writing. The Charger may be delivered by Mer UK in advance of the Delivery Date upon giving reasonable notice to the Customer.

5.3 If the Customer fails to take delivery of the Charger or any part of it on the Delivery Date and/or fails to provide any access, instructions, documents, licences, consents or authorisations required to enable the Charger to be delivered on the Delivery Date, Mer UK shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Charger. If the Charger is stored in these circumstances, risk in the Charger shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall reimburse Mer UK for all Mer UK’s reasonable costs and expenses including storage and insurance charges arising from such failure.

6.1 If Mer UK fails to deliver the Charger on the Delivery Date other than for reasons outside of Mer UK’s reasonable control or it is Mer UK’s fault or the carrier’s fault and seven (7) days following receipt of written notice from the Customer reporting such failure Mer UK still fails to deliver the Charger within seven (7) Business Days after receiving such notice, the Customer may terminate the Contract and Mer UK shall return to the Customer any advance payment made by the Customer to Mer UK under this Contract. Mer UK shall have no further liability for failure to deliver by the Delivery Date.

The Customer shall:

(a) ensure that the terms of the Quotation are complete and accurate;

(b) co-operate with Mer UK in all matters relating to the Charger and Installation Services;

(c) provide Mer UK, its consultants and subcontractors, with access to the Site and other facilities as reasonably required by Mer UK to provide the Charger and Installation Services during Business Hours;

(d) prepare the Site for the supply of the Charger and Installation Services. Such preparations include but are not limited to:

 (i) cleaning and tidying the working area ahead of installation;

 (ii) making available electricity supply as detailed in the pre-installation survey carried out by Mer UK in accordance with clause 7.4. Mer UK its consultants and subcontractors, will not be responsible for any increase in electrical capacity required for the Chargers, save for when any increase is expressly included in the Quotation, If Mer UK arrives on Site to provide the Installation Services and the required electrical capacity for the Chargers is not available, Mer UK, may charge the Customer for its costs incurred obtaining the suitable electrical capacity; and

(iii) ensuring there will be no restrictions placed on Mer UK, its consultants and subcontractors by any neighbours, local authorities or otherwise;

(e) provide Mer UK, its consultants and subcontractors with such information and materials as Mer UK may reasonably require in order to supply the Charger and Installation Services and ensure that such information is complete and accurate in all material respects. Such information and materials include but are not limited to any (i) working restrictions (ii) mandatory Site and safety inductions (iii) Site restrictions or (iiii) special conditions which may impact the efficient installation of the Charger and Installation Services;

(f) if a Force Majeure Event occurs which materially impacts the provision of the Installation Services, Mer UK reserves the right to recover any additional costs incurred in continuing to provide the |nstallation Services, whether during or after any such Force Majeure Event, or for any lost labour costs incurred by Mer UK as a result of delay due to such Force Majeure Event;

(g) obtain and maintain all necessary licences, permits, permissions and consents which may be required for the Charger and Installation Services before the Installation Date. These include but are not limited to any (i) permits to work (ii) agreements with any contractors which may be required before entering the Site; or (ii) grid connection agreements (unless otherwise specified in the Quotation);

(h) reimburse Mer UK for any lost labour costs incurred by Mer UK if Mer UK its consultants or subcontractors (as applicable) are unable to access the Site on the Installation Date due to the Customer’s failure to comply with its obligations under this clause;

(i) be responsible for any costs:

   (i) imposed by National Grid or the DNO in relation to connection of the Charger and the Site to the grid and for any grid reinforcement works associated with the Chargers; and/or

  (ii) imposed in relation to connection of the Charger and Site to a telecommunications network;

(j) comply with all applicable laws, including health and safety laws; and

(k) comply with any additional obligations as set out in the Quotation.

9.1 Mer UK reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the Contract Price to reflect any increase in the cost to Mer UK which is due to any factor beyond Mer UK’s control. The includes, without limitation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Charger and Installation Services which are requested by the Customer, or any delay caused by any of the Customer’s instructions or the Customer’s failure to give Mer UK adequate information.

9.2 Except as otherwise stated under the terms of the Quotation and unless otherwise agreed in writing between the Parties, all prices are inclusive of the charges for packaging and delivery.

9.3 The Contract Price is inclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature in respect of the Charger and Installation Services, which the Customer shall be additionally liable to pay to Mer UK.

10.1 Subject to any conflicting terms in the Quotation, Mer UK shall invoice the Customer on or at any time:

(a) after delivery of the Charger and/or the provision of the Installation Services (as applicable); or

(b) in the case of the supply of a Charger, after the date for delivery agreed in the Quotation if the Customer is not available to take delivery on such date and the Customer fails to give Mer UK at least twenty four (24) hours’ notice that the Customer will no longer be available to take delivery on such date.

10.2 Installation Services will be invoiced in full following completion of the Installation Services and payment will be due within twenty eight (28) days of the date of the invoice.

10.3 All payments shall be made to Mer UK and means of payment will be set out in the Quotation. Receipts for payment will be issued only upon payment.

10.4 Mer UK is not obliged to enter into a Contract with the Customer unless the Customer has supplied Mer UK with satisfactory credit references. If at any time Mer UK is not satisfied with the Customer’s creditworthiness, Mer UK may give notice in writing to the Customer that no further credit will be allowed and in which event no further Charger or Services will be delivered or provided other than against cash payment. All amounts owed by the Customer shall be immediately payable in cash.

10.5 If the Customer fails to make any payment on the due date without reasonable excuse then, without prejudice to any other right or remedy available to Mer UK, Mer UK shall be entitled to:

(a) cancel the order or suspend any further deliveries or provision of Chargers and Services to the Customer without liability to the Customer;

(b) appropriate any payment made by the Customer to such of the Charger; and/or

(c) charge the Customer interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%. Part of a month shall be treated as a full month for the purpose of calculating interest.

10.6 Where the Customer wishes to take advantage of the Workplace Charging Scheme, Office of Zero Emission Vehicle certificate numbers must be provided before the order is processed and an Installation Date is confirmed. As authorised installers under the Workplace Charging Scheme, an authorised representative of Mer UK will sign the term sheet ahead of order confirmation for the Customer to submit to the Office of Zero Emission Vehicles

11.1 Risk or damage to or loss of the Charger shall pass to the Customer immediately following delivery.

11.2 Notwithstanding delivery and the passing of risk in the Charger, or any other provision of this Contract, legal and beneficial title to the Charger shall not pass to the Customer until Mer UK has received in cash or cleared funds payment in full of the price of the Charger.

11.3 Mer UK reserves the right to repossess any Charger in which Mer UK retains title without notice. The Customer irrevocably authorises Mer UK to enter the Site during normal business hours for the purpose of repossessing the Charger in which Mer UK retains title.

11.4 The Customer’s right to possession of the Charger in which Mer UK maintains legal and beneficial title shall terminate if:

(a) the Customer commits or permits any material breach of the Customer’s obligations under this Contract; or

(b) the provisions of any of clauses 14.1 (b) – (e) apply.

12.1 If on delivery any part of the Charger is defective in any material respect and either (i) the Customer lawfully refuses delivery of the defective Charger due a defect apparent on inspection or (ii) the Customer gives written notice of such defect to Mer UK within seven (7) Business Days of such delivery, Mer UK (on completion of tests confirming that the Charger or parts thereof are defective) shall replace the defective Charger within twenty (20) Business Days of receiving the Customer’s notice and Mer UK shall have no further liability to the Customer in respect thereof.

12.2 Mer UK shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow Mer UK’s instructions (whether given orally or in writing), misuse or alteration of the Charger without Mer UK’s prior approval, or any other act or omission on the part of the Customer or any third party.

13.1 Nothing in this Contract excludes or limits the liability of Mer UK:

(a) for death or personal injury caused by Mer UK’s negligence;

(b) for any matter which it would be illegal for Mer UK to exclude or attempt to exclude its liability; or

(c) for fraud or fraudulent misrepresentation.

13.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

13.3 The Customer shall indemnify Mer UK against all damages, costs, claims and expenses suffered by or arising from loss or damage to any equipment (including that of third parties) caused by the Customer, its agents or employees.

13.4 Mer UK shall not be liable to the Customer or be deemed to be in breach of this Contract by reason of any delay in performing, or any failure to perform, any of Mer UK’s obligations if the delay or failure was due to any cause beyond Mer UK’s reasonable control.

13.5 Mer UK’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price and Mer UK shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

14.1 Mer UK may terminate this Contract with immediate effect if:

(a) the Customer fails to perform or observe any of its obligations hereunder and fails to remedy such failure within seven (7) days of receipt of written notice regarding such failure from Mer UK;

(b) the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;

(c) an encumbrancer takes possession, or a receiver is appointed, of any part of the Site or assets of the Customer;

(d) the Customer ceases, or threatens to cease, to carry on business; or

(e) Mer UK reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

14.2 The Customer may terminate this Contract with immediate effect:

(a) in accordance with clause 6.1;

(b) if Mer UK fails to perform or observe any of its obligations hereunder and fails to remedy such failure within seven (7) days of receipt of written notice regarding such failure from the Customer;

(c) if Mer UK becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;

(d) if an encumbrancer takes possession, or a receiver is appointed, of any part of the assets of Mer UK; or

(e) if Mer UK ceases, or threatens to cease, to carry on business.

14.3 Other than in accordance with clause 14.2 above, the Contract may not be terminated by the Customer except with the agreement in writing of Mer UK on the terms that:

(a) the Customer shall indemnify and reimburse Mer UK in full against all reasonable and properly incurred losses (including loss of profit), costs (including the cost of all labour, equipment and materials used), damages, charges and expenses incurred by Mer UK whether incurred starting to perform the Services prior to the cancellation date, any time lost in planning the Installation Services or as a result of such cancellation;

(b) promptly pay any outstanding unpaid invoices and interest (where applicable) in respect of the Charger and Installation Services;

(c) if an invoice has been submitted in accordance with clauses 10.1(a) or (b) and the Customer fails to pay within seven (7) Business Days of the date of the invoice, Mer UK may enter the Site and take possession of the Charger and any ancillary equipment. Until the Charger and/or ancillary equipment has been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

15.1 Each Party undertakes that, except as provided by sub-clause 15.2 below or as authorised in writing by the other Party, it shall, at all times during the continuance of the Contract and or twenty four (24) Months after its termination:

(a) keep confidential all Confidential Information;

(b) not disclose any Confidential Information to any other person;

(c) not use any Confidential Information for any purpose other than as contemplated by and subject to this Contract;

(d) not make any copies of, record in any way or part with possession of any Confidential Information; and

(e) ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses (a) to (d) above.

15.2 Either Party may:

(a) disclose any Confidential Information to:

(i) any sub-contractor or Mer UK of that Party;

 (ii) any governmental or other authority or regulatory body; or

 (iii) any employee or officer of that Party or of any of the aforementioned persons, parties or bodies,

to such extent only as is necessary for the purposes contemplated by this Contract, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-clause 15.2(a) (ii) above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this clause 15, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

(b) use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.

15.3 The provisions of this clause 15 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.

16.1 All notices under this Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

16.2 Notices shall be deemed to have been duly given:

(a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or

(b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or

(c) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

(d) on the tenth business day following mailing, if mailed by airmail, postage prepaid.

16.3 All notices under this Contract shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

17.1 Mer UK may assign or subcontract the Contract or any part of it to any person, firm or company without the Customer’s prior consent.

17.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Mer UK.

8.1 Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, pandemic, epidemic or any other event that is beyond the control of the Party in question.

18.2 Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from a Force Majeure Event. Data protection

Mer UK will only use the Customer’s personal information as set out in Mer UK’s Privacy Policy

19.1 This Contract constitutes the entire agreement between the Parties relating to the supply and installation of Chargers at the Site and supersedes any previous agreement between the Parties relating to the supply and installation of Chargers at the Site.

19.2 A person who is not a party to this Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

19.3 No variation to this Contract shall be binding unless agreed in writing between the authorised representatives of the Customer and Mer UK.

19.4 If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected.

19.5 Nothing in this Contract is intended to, or shall operate to, create a partnership between the parties.

19.6 This Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

19.7 Any dispute, controversy, proceedings or claim between the Parties relating to this Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.