We are ubitricity, a company registered in Germany under the name ubitricity Gesellschaft für verteilte Energiesysteme mbH. Our company registration number is HRB113258B, and our registered office is at EUREF-Campus 7 – 8, 10829 Berlin, Germany. You can contact us using the details set out in section 5.1.5 below. The following GT&C apply exclusively to the provision of goods and services by ubitricity as part of “Electric Vehicle Charging Infrastructure Framework” in the UK only. Please note that the following conditions apply to contracts concluded under English law, including mandatory consumer laws.
1 Conclusion of contract
1.1 Conclusion of contract using the web shop
1.1.1 The presentation of goods and services by us online or in a web shop does not constitute an offer to conclude a contract.
1.1.2 The customer is deemed to have made a binding offer once the order process has been completed. The customer is bound to this offer for seven days from receipt of the offer by ubitricity.
1.1.3. Once ubitricity receives the customer’s offer, the customer will receive an order confirmation via e-mail. This confirmation does not constitute acceptance of the offer by ubitricity.
1.1.4 ubitricity shall accept the customer’s offer by either (i) shipping the relevant goods or providing the relevant services, and notifying the customer electronically of such shipment and/or provision within a reasonable time or by (ii) explicit written or electronic declaration within reasonable time.
1.2 Conclusion of contract by using the pre-printed form
1.2.1 The customer shall receive a pre-printed form, either in writing or in electronic form. The provision of the form by ubitricity does not constitute an offer to conclude a contract.
1.2.2 The customer is deemed to have made a binding offer by completing and returning the form to ubitricity, either by mail or via e-mail. The customer is bound to the offer for seven days from receipt of the offer by ubitricity.
1.2.3 Once ubitricity receives the customer’s offer, the customer will receive an order confirmation via e-mail. This confirmation does not constitute acceptance of the offer by ubitricity.
1.2.4 ubitricity shall accept the customer’s offer by either shipping the relevant goods or providing the relevant services, and notifying the customer of such shipment and/or provision within a reasonable time.
1.3 Conclusion of contract on the basis of an offer made by ubitricity
1.3.1 When requested in writing by the customer, ubitricity may make a temporary offer to customer, which shall be expressly acknowledged as an offer by ubitricity at the time of making such offer.
1.3.2 The customer shall be entitled to accept this offer by placing an order within thirty (30) days of receiving the offer. An order that is not made within thirty (30) days will be regarded as a new offer from the customer. ubitricity is not obliged to accept this new offer from the customer.
2 Purchase of Hardware components. This section 2 applies only to customers who order Hardware components.
2.1 Terms of delivery
2.1.1 If ubitricity is unable to meet delivery deadlines for reasons beyond ubitricity’s control (including, but not limited to, the non-availability of goods and/or services), ubitricity will notify the customer and inform him/her of the expected new delivery deadline as soon as reasonably practicable. If ubitricity cannot meet the new delivery deadline, ubitricity will inform the customer immediately and the customer shall then be entitled to withdraw from the contract in whole or in part. Non-availability of goods and services for the purposes of this section includes, without limitation, a delayed or incorrect delivery to ubitricity by ubitricity’s suppliers for which neither ubitricity nor the supplier is responsible. The customer’s right to withdraw from this agreement due to non-availability of goods and services remains unaffected. If the customer is a consumer, any consideration already provided by customer will be reimbursed immediately if the customer withdraws from this agreement. Any further claims, especially for compensation, shall be excluded to the fullest extent permitted by applicable law, unless otherwise stated in section 9.
2.1.2 ubitricity will deliver the ordered goods and services within a reasonable time. ubitricity shall have the right to extend the delivery period – except for those cases under section 2.1.1 – in the event of force majeure. If a force majeure event last for more than 4 weeks, the customer has the right to withdraw from this agreement. Any further claims, especially for compensation, shall be excluded, unless otherwise stated in section 9.
2.1.3 Insofar as the customer has the right to withdraw from this agreement due to non-availability of goods and services or under section 2.1.2, he/she shall also have the right to withdraw from any other contingent or related contract, such as agreements on installation, mobile electricity and billing.
2.2 Shipment, retention of title
2.2.1 The customer shall bear any and all shipment costs incurred by ubitricity in relation to goods ordered by the customer.
2.2.2. If the components are available, and where customer makes payment via SEPA direct debit, on account, credit card or PayPal, the term of delivery is 10 – 12 days from conclusion of the contract. If the customer pays in advance via bank transfer, the term of delivery is 12-14 days from the day upon which the payment order has been made.
2.2.3 If the parties agree on a fixed date for the delivery, the delivery period described in section 2.2.2 above starts on that day.
2.2.4 If the last day of a delivery period falls upon a non-working day, the period shall expire at the end of the following working day.
2.2.5 All delivered goods and components shall remain the property of ubitricity until the customer has made complete payment.
2.3 Warranty rights and short-term right to reject
2.3.1 ubitricity agrees to provide a three-year goodwill warranty for the delivered goods and components to be free from defects. The warranty period begins on the conclusion of contract for the purchase of the goods and components. If a warranty claim is made, ubitricity can choose between repair and subsequent delivery at its own discretion. Warranty repairs may be executed by engineers authorized by ubitricity only. Costs for repairs that are not executed by an authorized engineer will not be reimbursed. The warranty does not cover repairs or damages caused by unauthorized repair.
2.3.2 The warranty does not cover damages caused by anything other than defects in material or workmanship.
2.3.3 Under the warranty, ubitricity is not liable for loss of profits, business interruptions, pecuniary loss or travel expenses nor for any indirect or consequential loss or damage of any kind.
2.3.4 Any repairs or replacements of components within the term of warranty will not expand or restart the warranty period.
2.3.5 The customer’s statutory rights of withdrawal and warranty remain unaffected by these terms. The warranty applies in addition to applicable statutory provisions, unless otherwise stated in section 9. Mandatory legal provisions related to consumer rights remain unaffected. If you exercise your short-term right to reject, customer must return the goods to ubitricity at its own expense. For the avoidance of doubt, this does not affect customer’s statutory rights under applicable law, and ubitricity shall be responsible for return shipping costs for faulty, mis-described or otherwise non-confirming goods.
3.1 Use of SimpleSockets
3.1.1The successful and safe operation of SimpleSockets requires expert installation, and the initial operation and inspections must be conducted by an installer authorized by ubitricity. In order to prevent personal injury or damage to property, the customer shall comply with the installation manual (or checklist) provided by ubitricity.
3.1.2 The use of SimpleSockets for withdrawal of energy requires entry into a separate billing agreement between ubitricity and the connection user, whose connection will be used to supply the SimpleSocket with power (usually the tenant or owner of the installation site, although this might be the customer as well).
3.1.3 The software of SimpleSockets is protected by copyright. The customer shall not be entitled to modify or replace it with third-party software. Decompiling of the software is only permissible within the limits of applicable law. Any further decompiling is excluded. The customer shall comply with any reasonable update and recovery processes.
3.2 Use of SmartCables
3.2.1 Before initial operation, the customer shall follow the instruction manual and the safety instructions (see www.ubitricity.co.uk/manual) to prevent personal injury or damage to property. If the customer allows a third party to use the SmartCable, customer must ensure that the third party is also familiar and complies with the instruction manual and safety instructions.
3.2.2 The customer is responsible for ensuring the safe use of the SmartCable and especially must ensure that the SmartCable does not interfere with traffic.
3.2.3 The withdrawal of energy at SimpleSockets requires entry into a separate mobile electricity contract, unless the SimpleSocket allows for charging processes on an ad hoc basis (Direct Access Charging). Direct Access charging processes are not part of these Terms and Conditions.
3.2.4 The software of SmartCables is protected by copyright. The customer shall not be entitled to modify or replace it with third-party software. The customer shall comply with any reasonable update and recovery processes.
4 Installation of SimpleSockets.
This section 4 only applies to customers who are also charge point providers.
4.1 The customer commissions ubitricity to install the SimpleSockets as set out in the applicable offer. The installation includes: (i) the affixing of the SimpleSocket at a power cabling point, which shall conform to any applicable standards at the designated location; (ii) the set-up of the SimpleSocket; and (iii) initial testing of the SimpleSocket. The customer shall be responsible for the audited standard power cabling (as described in the installation manual) from the distribution box to the installation site. Further details are to be found in the installation manual.
4.2 The successful and safe operation of SimpleSockets requires expert installation, and the initial operation and inspections must be conducted by an installer authorized by ubitricity. The customer must not install, relocate or uninstall the SimpleSockets independently. This shall be done by the authorized installer only. The customer shall inform ubitricity of a desired installation, relocation or uninstallation no less than two weeks in advance.
4.3 The customer shall ensure that rooms, facilities and systems are accessible at the agreed time of installation, relocation or uninstallation, and that there is free supply of electricity as far as necessary to carry out the works properly. If the works cannot be carried out due to the customer’s fault, the customer must bear the costs of the failed attempt.
4.4 Once the SimpleSocket has been installed, the customer shall be legally responsible for ensuring the safe use of the SimpleSocket. He/she shall also be responsible for any maintenance and safety inspections concerning the SimpleSockets.
4.5 The software of SimpleSockets is protected by copyright. The customer shall not be entitled to modify or replace it with third-party software. The customer shall comply with any reasonable update and recovery processes.
5 Mobile Electricity Supply.
This section 5 only applies to customers who are (also) mobile electricity customers.
5.1 Charging electricity at SimpleSockets, availability, accessability
5.1.1 The customer can charge his/her electric vehicle (EV) at SimpleSockets using an authorised, activated SmartCable. Except when otherwise communicated, the SmartCable will be activated at the time of receipt.
5.1.2 SimpleSockets are operated by public or private charge point providers. The SimpleSockets can only be used with authorization of the charge point provider. If the charge point is installed on the customer’s premises, the customer has to grant access to the charge point provider when necessary. The charge point provider can remove its charge points if this is required. ubitricity does not assume responsibility for the availability, functioning or accessibility of SimpleSockets. Customer shall not have the right to use a specific SimpleSocket. SimpleSockets shall be used for charging EVs only.
5.1.3 When using the SmartCable, the customer shall charge his/her EV at parking spots with sufficient network coverage on a regular basis (and in any case no less than once a month) to ensure a proper data transfer. Customer shall avoid consecutive charging processes without sufficient network coverage. The customer shall not use the mobile radio unit for any other purpose than the transfer of measurement data.
5.1.4 Before the exchange or shut down of the SmartCable, the customer shall carry out a charging process at a charging spot with sufficient network coverage.
5.1.5 The customer shall notify ubitricity immediately by phone (+44 800 024 6279) or via e-mail (email@example.com) in the event of disruptions, damage or loss of the SmartCable. ubitricity shall lock the SmartCable as soon as reasonably practicable after receiving such notification. Customer shall be liable for any charging processes that are conducted before such notification. If the locking of the SmartCable is delayed due to ubitricity’s fault, the customer shall not be liable for charging processes conducted by unauthorized third parties, unless the customer is also at fault. The customer shall also be liable for offline-charging processes after the locking. To mitigate this risk, the customer can elect to notify ubitricity upon signing the contract that no offline-charging shall be possible.
5.2 Supply and billing of the withdrawn electricity
The SimpleSocket is directly connected to the distribution grid, and the customer’s mobile electricity supplier (whether ubitricity or another) provides electricity at the SimpleSocket. ubitricity shall measure the withdrawn electricity and either invoice such amounts to the customer, or forward the usage data to the respective supplier for billing purposes.
5.3.1 ubitricity measures the electricity withdrawn by the customer via the SmartCable, and ubitricity shall determine the way such measurements are calculated (consumption measuring, meter readings etc.).
5.3.2 Customer shall allow ubitricity or a third party access to the SmartCable, insofar as this is necessary for: (i) billing purposes; (ii) the fulfillment of the contract; (iii) compliance with any legal duties; or (iv) the management of energy business processes. Prior notice of such required access shall be given at least one week in advance. If the customer is unable to provide access on the requested date, customer shall offer a prompt alternate date.
5.3.3 The customer must not open the enclosure of the SmartCable. The opening of the enclosure may lead to the loss of the calibration validity. The customer shall notify ubitricity immediately of an suspected opening or severe damage.
5.3.4 Once the calibration validity (usually 8 years) has expired, the SmartCable will be deactivated. ubitricity will inform the customer of the impending expiry in advance. Customer has the right to terminate the mobile electricity contract at the time the calibration validity expires. If customer does not terminate the contract, the contract shall remain in force, including all payment obligations. Customer shall be responsible for restoring the calibration validity of the SmartCable, or to purchase another calibrated SmartCable.
5.4 Online platform
5.4.2 The customer is able to access his personal data via the password-protected ubitricity information portal (available at https://www.ubitricity.co.uk/mobile-electricity-portal.
5.4.2 The customer shall protect his/her access data and ensure that third parties do not obtain such access data. Any actual, pending or suspected loss of the access data shall be reported to ubitricity immediately either by phone (+44 800 024 6279) or via e-mail (firstname.lastname@example.org). The customer must then change his/her password immediately.
5.5 Release from obligation
5.5.1 If a force majeure event occurs, ubitricity shall not be liable for failing to providing any services for the duration of the force majeure event. ubitricity shall also not be obliged to provide, or held liable for failure to provide, the services if prevented by reasons beyond ubitricity’s control.
5.5.2 The indicated charging capacity for each charging point is the maximum charge power. ubitricity is entitled to reduce or interrupt the charge power temporarily to the extent that ubitricity considers it reasonably necessary for reasons of public safety, statutory compliance, safety of network operation (especially at high grid utilisation in the network peripherals of the charging point), or for maintenance of the grid integrity. In these cases, ubitricity is not liable for any damage or financial losses that occur from the lower charging capacity.
5.5.3 ubitricity is released from any liability for failure to provide the services in the event of electricity cuts or blackouts that ubitricity is not responsible for, to the extent that they result from a disturbance of the network operation, network connection or the charge point provider’s customer system. At the customer’s request, ubitricity will immediately provide such information about the cause of damage as it is aware of or which ubitricity can reasonably discover.
5.5.4 If ubitricity is unable to provide the services for reasons described in sections 5.5.1, 5.5.2 or 5.5.3 for more than 4 weeks, the customer is entitled to terminate the contract without prior notice. Any further claims, including for compensation, are excluded, unless otherwise stated in section 9.
5.6 Prices and price changes
5.6.1 The net invoice amount for the supply of mobile electricity (before VAT) consists of (1) the monthly base price, (2) the electricity price per kWh, multiplied by the actual withdrawal and (3) the amount of charging processes, multiplied by the transaction price per charging process.
5.6.2 The price for mobile electricity per kWh includes the purchasing and sales costs, all costs paid to grid operators, costs of billing, concession fee as well as sales and electricity tax.
5.6.3 VAT due and payable on the amounts applicable from time to time will be added to the prices described above.
5.6.4 Other changes in cost may be made unilaterally by ubitricity at its reasonable discretion upon prior notice to customer. The customer can request judicial review of these price changes.
5.6.5 If ubitricity changes costs unilaterally, only the costs described in section 5.6.2 may be taken into account. Price changes will be based on balancing the changes in cost (increases and reductions) of each price component by applying a uniform standard (factual and temporal). ubitricity will examine the costs annually. If ubitricity’s costs of providing the services have increased, ubitricity may adjust the prices payable by customer accordingly. If the costs have decreased, ubitricity will also adjust the prices accordingly. Due to the fact that cost reductions are made in the same way as cost increases (factually and temporarily), cost reductions affect the prices at least as much as increases. Cost reductions will not be passed on later than cost increases.
5.6.6 Sections 5.6.4 and 5.6.5 also apply to future taxes, dues or other state-imposed additional burdens or reliefs concerning procurement, generation, grid usage (transmission and distribution) or consumption of electricity.
5.6.7 Any changes in pricing or charges will be notified to the customer no less than six weeks in advance. The notification will describe the changes, compare the increased or decreased price with the current price, state when the change will start, explain why the change is happening and state what actions the customer can take.
5.6.8 If ubitricity changes the prices to the customer’s disadvantage, ubitricity may ask the customer to explicitly agree to the increase in price. ubitricity will give advance notice as described in section 5.6.7 of the proposed change. Any ordinary termination rights remain unaffected.
6 Use of data, data transfer and data protection.
6.1 At the end of each charging process, the SmartCable will transfer the measurement data via mobile radio technology to ubitricity. If there is no sufficient network coverage, the SmartCable secures the data and transfers it as soon as there is a connection.
6.2 The SmartCable collects the following data with each charging process at a SimpleSocket: starting and ending time, initial, final and in-between readings every 15 minutes as far as they are relevant for the billing regarding the connection user and the grid operator, the ID of the SmartCable and the SimpleSocket used and the electronic signature of the data set. There will be no data collection by ubitricity for charging processes at charging spots other than SimpleSockets.
6.3 The collection, processing and use of measurement data of the mobile electricity customer will be executed by Power Data Associates Ltd, Wrest Park, Silsoe, Bedfordshire, MK45 4HR.
6.4 if the customer has entered his/her email address during the roaming app registration process, that email address will be stored in order to generate an App-EVCO-ID and assign it to the customer for the purpose of contract implementation.
7 Data transfer from charge points in London to the relevant Local Authority, Transport for London (TfL), London Councils and Greater London Authortity
7.1 Regarding charge points in London, ubitricity is entitled to share customer data under terms of confidentiality with the relevant Local Authority regarding the charge points, and other applicable authorities, bodies or public entities (including, but not limited to TfL, London Councils and Greater London Authority) (“Authorised Entities”). If the data is personal data, it will be anonymised before transmission.
7.2 Anonymised data will be used by the Authorised Entities mentioned above under terms of confidentiality for purposes of:
Operating and managing their charging point scheme, research and policy purposes to reduce carbon emissions, improve air quality and reduce congestions such as the impact of EV-charging on the grid, informing the development of the scheme or a new scheme, transfer the service to a different charge point provider, compliance and regulation duties, reporting on the scheme, marketing of other government and mayoral programmes, subject to the requirements of the privacy and Electronic Communications Regulations 2004, as may be amended or replaced, and identifying fraudulent use of their scheme. The Authorised Entities may share such data under terms of confidentiality with third parties acting on their behalf, if they concluded a contract regarding commissioned data processing.
7.3 The relevant Local Authority, Authorised Entities and TfL may share the anonymised data and other data that is not personal data under terms of confidentiality with third parties acting on their behalf for the purposes set out in section 7.2.
7.4 If any customer data is not anonymised, ubitricity shall first obtain the customer’s consent in order to share personal data for the purposes mentioned above. Such declaration of consent has to be given separately by the customer and is not part of this contract. Such consent can also be revoked by customer at any time. Unanonymised data will not be published.
8 Quotation, payment, default in payment
8.1 Invoice amounts and credits regarding the mobile electricity supply are due at the end of each month.
8.2 If the customer is not a consumer and, provided nothing to the contrary has been agreed upon, all prices are net prices.
8.3 Payments will be made at the discretion of the customer either via SEPA direct debit mandate, on account, via credit card or via Paypal. If payment is supposed to be made via SEPA direct debit mandate, the customer shall give ubitricity a SEPA direct mandate with the offer. Invoice amounts due will be collected from the account specified in the mandate. ubitricity shall notify the customer of the mandate reference immediately after conclusion of the contract. ubitricity is entitled to charge the customer for any costs that result from a reversal caused by the customer in breach of the customer’s duties under this agreement. If payment is made on account, payment has to be made by the due date. The date upon which payment is deemed to have been made shall be the date that the payment is actually received into ubitricity’s account, as determined by reference to ubitricity’s relevant bank account statement. ubitricity is entitled to charge an extra fee per month for payments by bank transfer.
8.4 ubitricity is entitled to offset receivables due against amounts owed to the customer.
8.5 Where payment on account has been agreed upon individually, the customer is obliged to pay the invoice on maturity (14 days after receipt of the bill). If the customer does not fulfill this obligation, he/she shall receive a reminder from ubitricity at no charge. In the event of ongoing default, ubitricity is entitled to claim dunning costs in the amount of £2.00 for any further reminder or final reminder. The customer’s right to prove that ubitricity’s actual damage caused by the default is lower than the claimed costs for pursuing the outstanding debt shall be unaffected.
8.6 ubitricity is entitled to claim delay damages in accordance with applicable statutory provisions.
9.3 ubitricity is liable without limitation for: (i) fraud and fraudulent misrepresentation; and (ii) personal injury or death caused by ubitricity’s negligence.
9.4 In all other cases, to the fullest extent permitted by applicable law, ubitricity’s total aggregate liability to customer arising from or in connection with this agreement will be limited to the greater of: (i) £100; or (ii) all sums paid by customer to ubitricity in the 12 months prior to the event giving rise to the liability.
9.5 For the avoidance of doubt, nothing in this agreement undermines any statutory rights that the customer may have under applicable law.
10 Open Source Software
Certain components of the software for the SmartCables and SimpleSockets are subject to so-called open source licences. This open source software is not subject to the restrictions in sections 3.1.3 and 3.2.4 above, but is subject to the terms of the applicable open source licence instead. The customer is free to use, modify and distribute open source software in accordance with the terms of the applicable open source licence. ubitricity shall inform the customer of which open source licences apply (if any) in the documents which come with the components, as well as where the customer can find any modifications in source code form.
11 Modification of Terms and Conditions
11.1ubitricity may need to modify these Term and Conditions to reflect changes to our customers’ needs and our business priorities. ubitricity will inform the customer about planned modifications of these Terms and Conditions no less than six weeks before the modified terms and conditions shall enter into force. The information shall be given in writing or via e-mail. ubitricity will inform the customer about the specific modifications, and will provide a version of the complete modified terms and conditions. The customer may agree or object to the modified terms and conditions. When giving notice about the planned modifications, ubitricity shall also inform the customer about where any objections can be sent to. Customer is deemed to have accepted the modified terms if customer has not objected to the modifications within six weeks from the time of notification. ubitricity shall remind customer explicitly of this deemed consent when notifying customer of the planned modifications.
11.2 If the customer objects to a planned modifications that is mandatory due to a legislative or legal change, an administrative order or crucial change in ubitricity’s economic circumstances, either party may terminate the contract without prior notice from the time that ubitricty receives the customer’s objection.
11.3 If the customer is a consumer and the modifications would cause a substantial disadvantage to him/her, the consumer has the right to terminate the contract. ubitricity shall inform the customer about this right when notifying the consumer of the planned modifications.
12 Final Provisions
12.1 This agreement shall govern the relationship between the parties. Any terms and conditions or other agreements provided by the customer shall not be valid or binding on ubitricity, even if ubitricity does not explicitly object to them.
12.2 Amendments and additions to this contract including this section shall only be valid when made in writing or by e-mail. For the avoidance of doubt, any amendments made to this contract will not affect the terms of any individually negotiated agreement between ubitricity and customer, the terms of which shall take precedence unless otherwise agreed.
12.3 If ubitricity is obliged to adjust these terms and conditions due to applicable laws and regulations, ubitricity will adjust these terms and conditions and inform the customer. The customer may object to the adjustment within a time period of 6 weeks after receipt of such notice. If customer does not do so, the adjusted version of the terms and conditions supersedes the former and becomes part of the customer’s contract. ubitricity will remind the customer of these rights se when providing notice of the adjustment.
12.4 For the settlement of disputes, consumers can request arbitration proceedings at the applicable conciliation body,
Omdusman Services: Energy
PO Box 966
Phone: 0330 440 1624
Fax: 0330 440 1625,
if the consumer has contacted ubitricity beforehand and no mutually satisfying solution has been found. ubitricity is obliged to participate in the arbitration proceeding.
12.5 ubitricity is entitled to assign, subcontract and/or otherwise transfer its rights and obligations under this agreement as a whole to a third party. If ubitricity exercises this right, the customer has the right to terminate the contract without prior notice within two weeks of receipt of the notification. However, ubitricity is also entitled to assign, subcontract and/or otherwise transfer any or all of its rights and obligations under this agreement to a member of its group, and customer shall not be entitled to terminate the contract if ubitricity exercises this right. For the purposes of this section 12.5, ‘group’ means any subsidiary or holding company of ubitricity, and any subsidiary of a holding company of ubitricity.
12.6 This agreement and all disputes arising out of or in connection with it shall be governed by English law, and the parties agree that the courts of England and Wales shall have jurisdiction over this agreement.
13 WARNING: Pacemakers
Charging points may generate electro-magnetic fields which may be harmful to pacemaker wearers. If you have a pacemaker and are unsure about whether it is safe for you to use a Charging Point, please do not use the Charging Point. If you have a pacemaker and you use a Charging Point, maintain as much distance as possible from the Charging Point. If you feel uncomfortable at any time while using a Charging Point, please stop using the Charging Point immediately. ubitricity shall not be liable for any loss, damage or harm suffered as a result of your use of a Charging Point if you wear a pacemaker, provided that nothing in these terms and conditions shall limit or exclude ubitricity’s liability for death or personal injury caused by its negligence.