Updated April 4th, 2023.
1.1. “TT” means TactoTek Oy (business identity code 2410512-2), a limited liability company duly incorporated and organized under the laws of Finland, with its registered address at Automaatiotie 1, 90460 Oulunsalo, Finland.
1.2 “Contract” means the Quotation together with Customer’s acceptance of the Quotation.
1.3 “Customer” means the person or organization that after receipt of a Quotation enters into Contract with TT.
1.4 “Deliveries” means the works and goods that Customer agrees to buy from TT and TT agrees to sell to Customer, as set out in the Quotation.
1.5 “IPRs” means any rights existing under patent law, copyright law, trade name and trade dress law, data and database protection law, trademark and trade secret law, designs rights law (whether or not the design is capable of registration), mask work and chip topography protections, petty and design patents and all similar industrial or intellectual and proprietary rights and rights to exclude.
1.6 "Services" means the performance of services that Customer agrees to buy from TT, as set out in the Quotation.
1.7 "Terms” means these Terms and Conditions for the Sale of Deliveries and Services together with any special provisions set out by TT in Quotation.
1.8 ”Quotation” means TT’s quotation for Deliveries and/or Services. Quotation shall be deemed to include these Terms.
2.1 These Terms apply to Deliveries and Services purchased by Customer and supplied by TT. These Terms shall govern each Contract to the entire exclusion of all other terms or conditions. Terms or conditions endorsed upon, referred to, delivered with or contained in Customer’s purchase order, request for quotation, acknowledgement or acceptance of Quotation, specification or similar document are non-binding on TT and shall not form part of the Contract even if TT does not object to them explicitly.
2.2 Customer's acceptance of the Quotation shall be made in writing within the validity of the Quotation. The acceptance of the Quotation shall constitute an acceptance of the Quotation ”as is”, meaning, that the exact description of Deliveries and Services described in the Quotation are accepted by the Customer. The Customeris responsible for any delays, which result from the breach of these Terms by the Customer. Any variation to these Terms shall have no effect unless expressly agreed in writing. Amendments or changes to Quotations, meaning, without limitation, changes to Deliveries, Services, or delivery terms are subject to prior written confirmation by TT. For the avoidance of any doubt, TT is not required to accept any Customer purchase orders made based on Quotation.
2.3 Dispatch or delivery of Deliveries or performance of Services by TT to Customer shall be deemed conclusive evidence of Supplier’s acceptance of these Terms.
3.1 The price for Deliveries and Services shall be stated exhaustively in the Quotation, in euros, and shall be exclusive of taxes, including value added tax, sales tax or other similar taxes or duties, which shall be additional to the prices at the current statutory rates. The agreed prices are fixed prices as per the date of the Quotation and for the validity of the Quotation, however, TT reserves all rights to price changes.
3.2 TT will invoice Customer according to completion of milestones as defined in the respected Quotation. Invoices are to be paid within thirty (30) days from the date of the invoice. Interest on overdue payments shall accrues at a rate of ten percent (10%) per annum.
3.3 Without prejudice to any other right or remedy, TT reserves the right to set off any amount payable at any time by TT to Customer against any amount payable by Customer to TT under the Contract.
4.1 Unless otherwise agreed in writing between TT and Customer, the agreed delivery term is Ex Works (EXW) at TT’s premises at Oulunsalo, Finland (INCOTERMS 2010). Deliveries shall be safely packaged and appropriately labeled by TT. All freight, insurance, and other shipping expenses, as well as any special packing expenses shall be added to the price and invoiced to the Customer (where applicable). Risk of loss and damage shall transfer to Customer upon deliver at TT’s premises. 4.2 Deliveries and/or Services shall be delivered according to the time schedule agreed upon in writing between TT and Customer, however, Customer acknowledges that the dates specified therein are estimates only.
4.2 Customer is obliged to accept partial delivery of Deliveries and/or Services, where TT deems it necessary for the proper provision of Deliveries and/or Services. Where TT deems partial delivery necessary, the Contract shall nevertheless be construed as a whole, instead of as a single contract in respect of each instalment.
4.3 Customer is responsible for the disposal and/or recycling of any TT packaging material at its own expense and undertakes to dispose of and/or recycle the packaging material in accordance with all laws, regulations and/or any other provisions which Customer is obliged to comply with.
5.1 TT warrants to Customer that Deliveries and Services shall be of good quality, material and workmanship, and be made in a workmanlike manner and with due professional diligence and skills and in compliance with all applicable laws and regulations. Otherwise, the Deliveries and Services are provided by TT on “AS IS” basis and without any warranty, including without limitation any implied warranties or merchantability or of fitness, each of which are hereby disclaimed to the extent permitted by the applicable law, with respect to any defect or deficiency applicable to or resulting directly or indirectly from Deliveries or Services provided by TT.
5.3 The warranties under this Section shall not extend to any defects which are attributable to misuse, alterations, or modifications by a party other than TT or which are due to normal wear and tear, accidental incidents, or any negligence in use.
6.1 The Quotation and the Contract are considered to be confidential information of TT.
6.2 Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives that have been disclosed, directly or indirectly to Customer by TT or any of its affiliated companies, or by its agents and shall not use them to any other purpose than what is stated in the Quotation. Similarly Customer shall keep in confidence any other confidential information concerning TT’s business or its products which Customer may obtain or be exposed to and Customer shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging Customer’s obligations to TT and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind Customer.
6.3 Further confidentiality obligations included in the Quotation apply. In the event of any controversy in the confidentiality related clauses of the Quotation and these Terms, the Quotation shall prevail.
6.4 In case TT and Customer have agreed on a separate non-disclosure agreement, such agreement shall remain in force and is unaffected by these Terms.
7.1 All promotional documents, promotional models, or similar information (“Promotional Material”), provided by TT to the Customer for the purpose of promoting TT Deliveries/Services, shall at all times be and remain the exclusive property of TT or its licensors (when applicable). Such Promotional Materials shall be exclusively used for providing information of the Deliveries and/or Services exclusively to Customer. Any Promotional Materials shall be held by Customer in safe custody at its own risk and maintained and kept in good condition by Customer until returned to TT and shall not be disposed of except in accordance with TT’s written instructions. For the sake of clarity, the further transfer of Promotional Materials by Customer to any third parties is strictly prohibited.
8.1 All rights, title and interest in and to all IPRs in or related to any and all Deliveries and/or Services under the Contract shall remain the sole and exclusive property of TT.
8.2 Unless otherwise agreed in the respective Quotation, TT hereby grants to Customer for the term set out in the Quotation a non-exclusive license to use, solely for the purpose defined in the Quotation, TT’s IPRs insofar as they are embodied in the Deliveries and/or Services. For the sake of clarity, this grant of license to use applies to any software contained in the Deliveries and/or Services, when applicable. For the avoidance of the doubt, any commercial use of TT IPRs shall be separately agreed by the Parties. All rights are reserved to TactoTek unless expressly granted in the Quotation.
8.3 Customer agrees not to violate TT’s IPRs by copying, reverse engineering the Deliveries and/or Services, or in any other way. Customer shall not make any changes to the Deliveries and/or Services hereunder or reverse engineer, copy, disassemble, decompile, translate, or adapt the Deliveries and/or Services unless expressly agreed in writing by TT. Customer shall not delete or in any manner alter the trademarks or any copyright, trademark, or other proprietary rights notices of TT and its licensors appeared on or in the Deliveries and/or Services delivered to Customer.
8.4 Further IPRs related rights and obligations included in the Quotation apply. In the event of any controversy between the IPRs related clauses of the Quotation and these Terms, the Quotation shall prevail.
8.5 For the sake of clarity, these clauses apply to any and all software contained in the Deliveries and/or Services.
9.1 TT shall defend, indemnify and hold Customer harmless against any awarded damages, liabilities, costs or claims (including reasonable attorneys’ fees) incurred to Customer as a result of any infringement or alleged infringement of IPRs of a third party solely by Services performed or Deliveries made under the Quotation and Contract, or exploitation of Deliveries and/or Services by Customer. For the sake of clarity, “awarded” means, that the above damages, liabilities, costs or claims have been awarded by a competent court or arbitration tribunal.
9.2 However, TT shall have no liability under this Section to the extent that any such items under the indemnification are caused by: (i) the negligence or willful misconduct of Customer, its employees, agents or representatives or contractors; (ii) any third party; (iii) use of Deliveries and/or Services in combination with equipment or software not supplied by TT where the Deliveries and/or Services would not itself be infringing; (iv) use of the Deliveries and/or Services in an application or environment for which it was not designed; or (v) modifications of the Deliveries and/or Services by anyone other than TT without TT’s prior written approval.
9.3 Customer shall provide TT prompt written notice of any third-party claim covered by the TT’s indemnification obligations hereunder. TT shall have the right to assume exclusive control of the defense of such claim or, at the option of TT, to settle the same. Customer agrees to cooperate reasonably with TT in connection with the performance by TT of its obligations in this Section.
9.4 If the above-mentioned claim or action alleging infringement is brought or in the reasonable opinion of the Customer is likely to be brought, TT shall have the right, but not the obligation to take one or more of the following actions, at TT’s option, and TT’s infringement related indemnification obligations shall be extinguished and relieved if TT, at its discretion and at its own expense: (i) procures for Customer the right, at no additional expense to Customer, to continue using the Deliveries and/or Services; (ii) replaces or modifies the Deliveries and/or Services so that it becomes non-infringing, provided that the modification or replacement remain in all material aspects in compliance with the agreed technical specifications of the Deliveries and/or Services; or (iii) in the event (i) and (ii) are not practical, refund to Customer the amounts paid by the Customer with respects thereto. With respect to any part of the Deliveries and/or Services furnished hereunder that is not manufactured by TT, only the patent indemnity of the manufacturer, if any, shall apply. The foregoing indemnification provision states TT’s entire liability to Customer for the claims described herein.
10.1 Without prejudice to its other rights, each party may terminate the Contract in whole or in part with immediate effect by a written notice by the non-defaulting party in the event that (i) the other party commits a material breach of Contract and fails to remedy such breach within ten (10) days after having been given written notice in respect thereof; or (ii) the other Party suffers distress or execution or seeks or is adjudicated in liquidation, bankruptcy or corporate restructuring (or corresponding legal proceedings). Additionally, TT has the right to terminate the Contract at any time prior to the completed delivery of Deliveries and/or Services in accordance with the Contract on one (1) month’s prior written notice. The termination of the Contract, however arising, shall be without prejudice to the rights and duties of TT accrued prior to termination. The conditions that expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
10.2 Upon termination or expiration of a Contract, the following terms shall become applicable: (i) all undelivered Deliveries and/or Services shall be automatically cancelled; (ii) all outstanding invoices shall become due and payable by Customer on the effective date of termination; and (iii) all rights granted to Customer hereunder shall expire.
12.1 Neither party shall be liable to each other for any indirect, consequential, special or punitive loss or damage or expense.
12.2 Notwithstanding anything to the contrary, the total aggregate liability of TT arising out of or in connection with the Contract shall be limited to an amount equal to fifty per cent (50%) of the price paid by Customer to TTthereunder.
12.3 The limitations of liability in this section 12 shall not be applicable with respect to a party’s liability under section 6 (“CONFIDENTIALITY”) and section 8 ("INTELLECTUAL PROPERTY RIGHTS"), or in case of gross negligence or intentional misconduct.
12.4 Nothing in these Terms shall limit any other rights TT may have under any law, regulation, or other provision, nor prevent TT from invoking them and exercising its rights under them.
13.1 Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of TT. TT may assign the Contract or any part thereof without Customer’s approval.
13.2 TT reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of Deliveries and/or Services ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of TT including, without limitation, natural disasters and similar phenomena, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13.3 Each right or remedy of TT under the Contract shall be without prejudice to any other right or remedy of TT whether under the Contract or not.
13.4 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. Failure or delay by TT in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by TT of any breach of, or any default under, any provision of the Contract by Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 Notices shall be addressed to the addresses set out in the Quotation.
14.1 The Contract is governed by, and shall be construed in accordance with, the laws of Finland, excluding its choice of law provisions.
14.2 Any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The arbitration shall be held in Helsinki, Finland in the English language.