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Terms and Conditions for the Purchase of Deliveries and Services
Updated February 13th, 2019.
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 Order together with Supplier’s acceptance of the Order.
1.3 “Contract Manufacturer” means a sub-contractor of TT for the manufacturing of TT products or parts of them, but in no case a distributor of TT.
1.4 “Deliveries” means the works and goods that TT agrees to buy from Supplier, as set out in the RFQ or Order (including any part or parts of them).
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 “Order” means TT’s purchase order for Deliveries and/or Services. Order shall be deemed to include these Terms.
1.7 “RFQ” means TT’s request for quotation for Deliveries and/or Services.
1.8 "Services" means the performance of services that TT agrees to buy from Supplier, as set out in the RFQ or Order (including any part or parts of them).
1.9 “Supplier” means the person or organization that after receipt of an Order enters into Contract with TT.
1.10 "Terms” means these Terms and Conditions for the Purchase of Deliveries and Services together with any special provisions set out by TT in RFQ or Order.
2 SCOPE AND CONCLUSION OF CONTRACT
2.1 These Terms apply to Deliveries and Services purchased by TT and supplied by the Supplier. These Terms shall govern each Contract to the entire exclusion of all other terms or conditions. Terms or conditions endorsed upon, delivered with or contained in Supplier’s quotation, acknowledgement or acceptance of Order, 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 Supplier's acceptance of the Order shall be made in writing within fourteen (14) days from the receipt of the Order. The acceptance of the Order shall contain all material Order data, in particular the exact description of the ordered Deliveries and Services, the Order date and the delivery date. The Supplier is responsible for any delays, which result from the breach of these Terms by the Supplier. Any variation to these Terms shall have no effect unless expressly agreed in writing. Amendments or changes to Orders are subject to prior written confirmation by TT.
2.3 Dispatch or delivery of Deliveries or performance of Services by Supplier to TT shall be deemed conclusive evidence of Supplier’s acceptance of these Terms.
3 PRICE AND PAYMENT
3.1 The price for Deliveries and Services shall be stated exhaustively in the Order, in euros and shall be exclusive of value added tax but inclusive of all other taxes and charges. The agreed prices are fixed prices and exclude subsequent claims or price increases of any kind.
3.2 Subject to Supplier’s compliance with Order and TT's invoice verification, TT will effect payments by electronic bank transfer to the Supplier's bank account as notified by the Supplier. TT will only make payments for those Deliveries and Services which are accepted by TT as delivered and performed in accordance with the Order and the agreed time schedule.
3.3 Payments shall be made forty-five (45) days from the date the invoice is issued. All payments payable are gross amounts and exclusive of any value added tax (VAT).
3.4 Without prejudice to any other right or remedy, TT reserves the right to set off any amount owing at any time from Supplier to TT against any amount payable by TT to Supplier under the Contract.
4.1 Supplier warrants to TT and it is a condition of the Contract that Deliveries and Services shall:
(i) be without fault and comply with any requirements, specifications and any drawings, descriptions or samples supplied by TT to Supplier;
(ii) be of good design, quality, material and workmanship, safe and fit for their purpose;
(iii) be made in a workmanlike manner and with due professional diligence and skills, in compliance with all applicable laws and regulations;
(iv) as far as any software is concerned, not contain any viruses and not in any way corrupt or have other malicious effects on any software or hardware of TT or third parties; and
(v) comply with all laws and industry standards applicable to the nature of Deliveries and/or Services supplied.
4.2 Supplier warrants that it shall not, and the Deliveries or Services provided shall not, violate or infringe upon any intellectual property rights of any third party.
4.3 TT’s rights under the Contract shall be in addition to any statutory conditions by applicable legislation.
4.4 TT shall have the right but no obligation at any time to inspect and test Deliveries and/or Services.
4.5 If the results of such inspection or testing cause TT to be of the opinion that Deliveries and or Services do not conform with the Contract or to any specifications supplied or advised by TT to Supplier, TT shall inform Supplier and Supplier shall immediately and free of charge take such action as is necessary to ensure conformity. Non-conforming Deliveries and/or Services shall be considered as delayed Deliveries and/or Services, and TT shall be entitled to liquidated damages as set forth in section 5 ("DELIVERY") of these Terms.
4.6 Notwithstanding any inspection or testing by TT, the Supplier shall remain fully responsible for Deliveries and/or Services and any inspection or testing shall not diminish or otherwise affect the Supplier’s obligations under the Contract.
5.1 Deliveries and/or Services shall be delivered on media and in form specified by TT, carriage paid, to TT’s place of business or to such other place of delivery as is agreed by TT in writing prior to delivery of Deliveries and/or Services.
5.2 The date for delivery shall be specified in the Order, or if no such date is specified then delivery shall take place within twenty eight (28) days of the Order.
5.3 Supplier shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
5.4 Unless otherwise stipulated by TT in the Order, deliveries shall only be accepted by TT during normal business hours.
5.5 Time for delivery is of the essence. If Deliveries and/or Services are not delivered on the due date then, without prejudice to any other rights which it may have, TT reserves the right to:
(i) demand for liquidated damages in the amount of half (0,5) percent of the agreed price for the respective Deliveries and/or Services for each commenced day of delay, up to maximum twenty (20) percent of the agreed price for the respective Deliveries and/or Services. The liquidated damages shall be without prejudice to any other rights of TT in the event TT becomes entitled to terminate the Contract or in case the actual damages are higher than the amount of liquidated damages.
(ii) cancel the Contract in whole or in part in case the delay is considered a material breach of contract;
(iii) recover from Supplier any expenditure reasonably incurred by TT in obtaining Deliveries and/or Services in substitution from another supplier.
5.6 TT is not obliged to accept partial Deliveries and/or Services. Where TT agrees in writing to accept delivery by instalments, the Contract shall be construed as a single contract in respect of each instalment. Nevertheless, failure by Supplier to deliver any one instalment shall entitle TT at its option to treat the whole Contract as repudiated.
5.7 If Supplier requires TT to return any packaging material to Supplier, it must be clearly stated on any delivery note delivered to TT and any such packaging material shall only be returned to Supplier at the cost of Supplier.
5.8 If Deliveries and/or Services are delivered to TT in excess of the quantities ordered, TT shall not be bound to pay for the excess and any excess shall be and remain at Supplier’s risk and shall be returnable at Supplier’s expense.
5.9 Deliveries and/or Services shall remain at the risk of Supplier until delivery to TT is complete (including off-loading and stacking) when ownership of Deliveries and/or Services shall pass to TT.
6.1 The Order and the Contract are considered to be confidential information of TT.
6.2 Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives that have been disclosed to Supplier by TT or any of its affiliated companies, or by its agents. Similarly Supplier shall keep in confidence any other confidential information concerning TT’s business or its products which Supplier may obtain or be exposed to and Supplier shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging Supplier’s obligations to TT and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind Supplier.
6.3 If the parties have entered into a Non-disclosure Agreement applying to the subject matter of the Contract, such NDA shall apply instead of section 6.2.
7 TT PROPERTY
7.1 All information, documents and objects provided by TT to the Supplier shall at all times be and remain the exclusive property of TT or its licensors. Such TT furnished items shall be exclusively used for providing the Deliveries and/or Services as instructed by TT in writing. Any such items shall be held by Supplier in safe custody at its own risk and maintained and kept in good condition by Supplier until returned to TT and shall not be disposed of other than in accordance with TT’s written instructions.
8 INTELLECTUAL PROPERTY RIGHTS
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 be the sole and exclusive property of TT from the creation thereof.
8.2 The Supplier shall not include in the Deliveries any proprietary material, including IPRs, of the Supplier or its licensors, unless specifically so agreed by TT in writing.
8.3 Unless otherwise agreed in the respective Order, Supplier hereby grants to TT a worldwide, perpetual, non-exclusive, royalty free, sub-licensable and transferable license to use, modify, sell, distribute and make derivative works of the Supplier proprietary Items if and insofar as they are embodied in the Deliveries.
8.4 TT will own exclusively all IPRs and all other rights in any copy, translation, modification, adaptation or derivation of any Deliveries (save as otherwise stated with respect to Supplier proprietary Items under section 8.3) produced by Supplier under Contract, and Supplier warrants that TT will own all such rights likewise with respect to any work performed by Supplier's subcontractors. Accordingly, TT shall have the exclusive right, in its absolute discretion, to copy, amend, modify, further develop, prepare derivative works of, sublicense, distribute and assign the Deliveries (save as otherwise stated with respect to Supplier proprietary items under section 8.3) or rights related thereto.
8.5 Without limiting the generality of the foregoing, it is expressly understood that the Supplier shall not include any open source software in the Deliveries without an express prior written approval of such software and thereto related terms and conditions on a case by case basis by TT in the Order and Contract.
9 IPR INDEMNITY
9.1 Supplier shall defend, indemnify and hold TT harmless against any damage, liabilities, losses, costs or claims (including reasonable attorneys’ fees) incurred to TT or any of its customers as a result of any infringement or alleged infringement of IPRs of a third party by Services performed or Deliveries made under the Order and Contract, or exploitation of Deliveries and/or Services by TT or its customers. TT shall have the right, at its own expense, to select its own counsel to participate in such defence. The Supplier shall not have a right to enter into any settlement agreement or consent any judgment without the prior written consent of TT.
9.2 If the above-mentioned claim or action alleging infringement is brought or in the reasonable opinion of the Supplier is likely to be brought, the Supplier shall, at its own cost, modify or replace the Deliveries and/or Services or a part thereof so as to make it non-infringing while maintaining the agreed functionality and compliance with the Contract. In the event the modification or replacement of the Deliveries and/or Services or a part thereof is not possible, the Supplier shall obtain with no additional costs to TT the necessary license for TT to continue to use the Deliveries and/or Services.
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.
11 CONTRACT MANUFACTURERS
11.1 If TT appoints or has appointed a Contract Manufacturer to manufacture TT products in which Deliveries are used, the following shall apply:
(i) Supplier shall on TT’s request deliver Deliveries to any such Contract Manufacturer in accordance with the Contract, provided however that Supplier shall be entitled to refuse this if such Contract Manufacturer is not creditworthy or if such Contract Manufacturer is not complying with the terms of the Contract;
(ii) Such Contract Manufacturers shall be clearly designated by TT in writing and agreed to by Supplier;
(iii) Contract Manufacturer shall be entitled to independently order and have delivered Deliveries in accordance with the Contract;
(iv) the terms of the Contract and these Terms may be disclosed by TT to such Contract Manufacturer, provided that such Contract Manufacturer shall have undertaken the same kind of confidentiality obligations as TT;
(v) Supplier hereby expressly agrees that the Contract shall in its entirety be applied between Supplier and TT also to and regarding any Deliveries delivered by Supplier to such Contract Manufacturer, provided however that the parties may agree upon a separate payment term for such Contract Manufacturer.
11.2 Notwithstanding the above mentioned:
(i) Contract Manufacturer shall in all aspects be an independent party in relation to TT;
(ii) TT undertakes no liability for the performance and non-performance of such Contract Manufacturer's contractual or other obligations towards Supplier;
(iii) Supplier is expected to enforce all such Contract Manufacturer's undertakings and use Supplier’s own rights only against such Contract Manufacturer directly and not against TT;
(iv) TT shall at all times maintain its own rights in accordance with the Contract; and
(v) TT shall give its reasonable assistance to Supplier in cases of a dispute between Supplier and such Contract Manufacturer.
11.3 The parties agree that this section 11 reflects the fact that any Contract. Manufacturer appointed by TT orders Deliveries from the Supplier solely in order to manufacture TT products for TT. Therefore, any event relating to Deliveries, which event may jeopardize the possibilities of TT to obtain TT products, has a direct effect on TT.
12 LIMITATION OF LIABILITY
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 TT to Supplier thereunder.
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”), section 8 ("INTELLECTUAL PROPERTY RIGHTS") and section 9 ("IPR INDEMNITY").
12.4 Nothing in these Terms shall limit the legal rights of TT to a reduction in price in the event of deficiencies in the Deliveries and/or Services that are not remedied by Supplier.
13.1 Supplier 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 Supplier’s approval.
13.2 TT reserves the right to defer the date of delivery or payment 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, acts of God, 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 Supplier 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 Order.
14 APPLICABLE LAW AND DISPUTE RESOLUTION
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.