General conditions of sale and delivery

1 General

1.1 In these General Conditions of Sale and Delivery (the “Conditions”), the term “TKE” means TKE Sweden AB; “Buyer” means any person or entity purchasing Deliverables from TKE; “Contract” means any agreement, request, quotation, order, order confirmation, and delivery concerning any sale or licensing of the Deliverables by TKE to the Buyer. “Product(s)” means any hardware, (including firmware); “Software” means any software (including any software embedded in the Products and any stand-alone software or any related solutions such as API); “Deliverables” shall mean the Products and Software sold or licensed by TKE.

1.2 These Conditions shall apply to any Contract and any reference to the Contract (in these Conditions or otherwise) shall include a reference to these Conditions as well. Terms deviating from these Conditions shall not be valid unless TKE has confirmed them expressly in writing.

1.3 Any orders by the Buyer are binding on the Buyer. By accepting these Conditions (including, where applicable, clicking “accept” or similar), the Buyer confirms and warrants that the representative performing the acceptance has all necessary authority to accept these Conditions and conclude the Contract on behalf of the Buyer.

1.4 A Contract is deemed concluded only after TKE has confirmed the order in writing or upon carrying out the order. Unless TKE has given its prior acceptance in writing, Deliverables are not returnable (unless being faulty) nor may a Contract be cancelled. If the period of validity of an offer made by TKE has not been explicitly set, its validity is limited to ten (10) days from the date of issuance.

2 Price and payment

2.1 Prices for the Deliverables are set out in the Contract. Prices include packaging and package for the Products. Prices for the Deliverables do not include any customs, duties, value-added tax, income tax or other taxes nor does it include any other assessment levied by authorities in the Buyer’s country. Any such amounts levied, whether withheld at source or otherwise, will be added to the price for the Deliverables and shall be paid by, or for the account of, the Buyer.

2.2 TKE shall be entitled to invoice either upon order (for orders made in TKE’s online store) or at the latest upon delivery in accordance with the agreed delivery term. Payment term is thirty (30) days from the date of the delivery of the invoiced. Deliverables unless otherwise agreed. Interest for late payment shall be 12% per annum.

2.3 After a Contract has been concluded and up until delivery of the Deliverables, TKE may, at its sole discretion, cancel any credit granted to the Buyer and request pre-payment or any other appropriate security arrangements.

2.4 Title to the Products shall remain with TKE and shall not pass to the Buyer until payment in full has been received by TKE. Software is never sold to the Buyer but merely licensed and hence, as regards any Software, the title shall remain at all times with TKE (or the third party from whom its right to license has derived).

2.5 If the Buyer is delayed in making any payment, TKE may postpone the fulfilment of its obligations under any Contract until such payment is made. Furthermore, if the Buyer has not paid the amount due within thirty (30) days from the due date, TKE shall be entitled to terminate the Contract with immediate effect, recover the Deliverables and claim compensation for any loss and damage incurred.

3 Delivery

3.1 The delivery term for the Products is EX Works TKE’s premises Vaasa, Finland (INCOTERMS 2020). The risk of loss shall pass to the Buyer in accordance with the delivery term. Software (that is not embedded into the Products) shall be delivered to the Buyer by providing the Buyer with a website link, from where the Software can be downloaded,
or via other means as decided by TKE from time to time. The Buyer is responsible for the installation of the Software.

3.2 The Deliverables will be delivered on the agreed delivery date set out in the Contract. If no delivery date is agreed in the Contract, then TKE shall deliver the Deliverables within reasonable time, which shall be at least thirty (30) days. Should TKE discover that the delivery date cannot be met, TKE shall immediately notify the Buyer in writing, stating the cause for the delay and its best estimate of when the delivery can be made. If a delay occurs due to any action or omission by the Buyer or other reasons not attributable to TKE, the delivery date will be moved forward as considered reasonable in view of all circumstances at hand.

3.3 In case of a delayed delivery, where the delay is due to reasons attributable solely to TKE, the following shall apply:

(i) the Buyer has the right to liquidated damages in the amount of one (1) per cent of the price for the delayed part of the Deliverables per completed two (2) weeks of delay. The amount of liquidated damages shall not exceed a total of five (5) per cent of the price for the delayed part of the Deliverables.. The delivery shall not be considered delayed and the liquidated damages shall not apply should less than five (5) per cent of the Deliverables in the entire delivery be delayed.

(ii) If the delay in delivery is such that the Buyer is entitled to maximum liquidated damages and if the Deliverables are still not delivered, the Buyer may in writing demand delivery within a final reasonable period, which shall not be less than two (2) weeks.

If TKE does not deliver the Deliverables within such final period, the Buyer shall be entitled to terminate the Contract for such part of the delivery that has still not been delivered. Where TKE is in delay and such delay is prolonged due to circumstances caused by the Buyer or other reasons not attributable to TKE, liquidated damages shall not be imposed upon TKE for the period of additional delay caused by the Buyer or such other reasons.

3.4 The remedies for late delivery set out herein shall be the full and exclusive remedy available to the Buyer. All other claims against TKE based on any delay in delivery shall be excluded.

4 Warranty

4.1 TKE warrants that the Deliverables are materially in compliance with the specifications set out in the Contract and free from any defects caused by faulty design, materials or workmanship. For clarification, as regards any Software, TKE does not give any warranties for the Software to be error-free or not to subject to any downtime. The warranty period is twelve (12) months from delivery of the Deliverables. Under the warranty, TKE shall repair or replace any Deliverable (or part thereof) found to be faulty. However, should the Deliverable or a part thereof, not be feasible to repair or replace TKE may, at its sole option, decide that the Deliverable shall be returned – instead of being repaired or replaced – and the price for the Deliverable will be refunded. Any repair or replacement shall be made at TKE’s option and cost and with reasonable expedience. The warranty period for any replaced or repaired Deliverables shall not extend the original warranty period. In order for the warranty to apply, the Buyer must notify TKE of a defect without undue delay after noticing the defect and provide TKE with a report stating the defect. Defective Deliverables, where applicable, shall be delivered to TKE at TKE’s expense and risk, provided that the Buyer follows TKE’s instructions.

4.2 This warranty does not apply if the defects are due to: (i) normal wear or tear; (ii) the Deliverables being submitted to abnormal conditions; (iii) faulty maintenance or operation; (iv) modifications, repairs or adjustments not carried out by TKE; (v) external reasons (vi) or otherwise without the fault of TKE (including without limitation where defects are due to or relate to any third-party Software). The warranty stated in this Section 4 does not apply as regards any third-party Software, but such Software is provided on “as is” basis. Furthermore, certain Deliverables shall be used together with software and hardware not provided by TKE. TKE’s information concerning the capability, capacity and performance of such Deliverables shall not constitute a commitment or guarantee of any kind when such results are dependent upon software and hardware not provided by TKE.

4.3 The foregoing warranty obligations sets forth the entire liability of TKE for defects in the Deliverables and is in lieu of any and all other warranties and conditions, express or implied, including, without limitation, merchantability and fitness for a particular purpose. All other claims against TKE based on defective Deliverables and their delivery shall be excluded.

5 Intellectual property and license

5.1 All rights, interest and title in all patents, copyrights, trademarks and all other intellectual property relating to the Deliverables (including potential customizations, manuals and all other such derivatives of the Deliverables) (“IPR”), belongs to TKE (or a third party from whom its right to use has derived) and the Buyer shall not acquire or receive any title or interest in the IPR of the Deliverables, except for the limited license set below.

5.2 The Buyer shall not copy, reverse engineer, decompile or create derivative works of or modify the Deliverables or any part thereof.

5.3 Subject to compliance with these Conditions and the Contract, TKE hereby grants to the Buyer a limited, nonassignable, non-transferable and non-exclusive license to use the Software for the internal purposes of the Buyer only. As regards Software that is embedded in the Products, the license may be transferred or assigned in connection with the transfer and/or assignment of Products and such Software shall be used only for the purpose of enabling the Products to perform in accordance with their specifications.

5.4 The foregoing in Section 5.3 shall not apply in case of any third-party Software but any third-party Software is provided, and its license is, subject solely to the terms and conditions of that third party. For avoidance of doubt, the Buyer shall conclude a separate license agreement with the respective third party for the use of the third-party Software.

5.5 The Buyer shall only use the Deliverables in a manner that complies with any and all applicable laws in the jurisdiction in which the Deliverables are used. The Buyer shall have no right
to use the Software in any manner to provide access to the Software to any third party or for other purposes than those set out in these Conditions. The Buyer shall not grant any other
party any conflicting right with this Section 5.

5.6 All rights not expressly granted in the Contract are reserved by TKE.

6 Software updates and maintenance

6.1 TKE may (but is not obliged to) provide updates (including any new versions, modifications, enhancements or other developments) to the Software during the warranty period included in the price of the Software. Any possible technical support provided by TKE (at its discretion) to the Buyer related to the Software shall be subject to the terms of the Contract.

6.2 After the warranty period, any updates require that the parties conclude a separate maintenance agreement related to Software. Such updates and their price and availability are subject to the terms of the maintenance agreement. If there is no maintenance agreement and TKE still provides updates at its discretion after the warranty period, then the terms of the Contract shall apply.

6.3 The foregoing stated in this Section 6 shall not apply to any third-party Software or Software embedded in the Product, unless otherwise agreed by the Buyer and TKE.

7 Confidentiality

7.1 TKE may (but is not obliged to) provide updates (including any new versions, modifications, enhancements or other developments) to the Software during the warranty period included in the price of the Software. Any possible technical support provided by TKE (at its discretion) to the Buyer related to the Software shall be subject to the terms of the Contract.

8 Limitation of liability

8.1 The parties shall not, under any circumstances, be liable for any incidental, indirect, punitive, or consequential damages, including but not limited to, loss of production, loss of profit, loss of use, loss of data, damage to property or loss of contracts. The total liability of the parties in connection with the Contract shall not exceed 50% of the purchase price of the Deliverables in question. For clarification, TKE shall have no liability for any damage resulting from the use of the Deliverables in connection with hardware, products or software not provided by TKE.

9 Termination

9.1 A party may terminate the Contract with immediate effect by written notice to the other party in the event that the other party commits a material breach of the Contract and fails to remedy such breach within thirty (30) days after having been given a written notice thereof.

10 Other terms and conditions

10.1 These Conditions and the Contract may be amended only in writing and by mutual agreement.

10.2 Neither party has the right to transfer the Contract. Notwithstanding the foregoing, TKE is entitled to transfer or assign its receivables from the Buyer to any financial institution at its own discretion.

10.3 The parties shall comply with all applicable export and import control laws and regulations and sanctions and embargoes including but not limited to those imposed by the United Nations, the European Union, the United States, and any other relevant jurisdiction. Furthermore, a party warrants that it or its beneficiaries (including without limitation direct and indirect owners, board members and managing director) are not subject, directly or indirectly, to any sanctions imposed by the aforementioned entities. The Customer agrees not to directly or indirectly export, re-export, transfer, or use the Deliverables in violation of the foregoing laws and regulations.

10.4 Circumstances that may be designated as force majeure shall be considered as grounds for relief from a Contract, provided that the circumstance at hand could not have been foreseen when the Contract was made, that it was not caused by the party seeking relief and is beyond the reasonable control of the party and that it impedes the performance of a party according to the Contract and fulfilment of the performance in question therefore would be unreasonably onerous.

10.5 These Conditions and any Contract shall be governed and construed by Finnish substantive law, excluding its choice of law provisions. Any dispute, controversy or claim arising out
of or relating to these Conditions or a 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 number of arbitrators shall be one and the seat of arbitration shall be Helsinki, Finland. The language to be used in the arbitral proceedings shall be Finnish.