General terms of purchasing

General terms and conditions for procurement of products

1. Scope of General Terms

These General Terms and Conditions for Procurement of Products (“General Terms”) of Tokmanni Group shall apply to procurement of any Products by Tokmanni Oy and/or any of its Affiliated Companies (“Buyer”), unless otherwise expressly agreed in the Agreement concluded between the Buyer and the Supplier. For the sake of clarity, if the Supplier’s standard terms and conditions or other similar general terms are included in the Agreement, these General Terms and other terms shall prevail over such Supplier’s terms in a case of conflict.

By concluding the Agreement the Buyer does not grant any exclusivity to the Supplier for the delivery of the Products, nor does the Agreement restrict in any way the Buyer’s possibilities to conclude agreements with third parties. The Buyer shall not have any minimum purchase commitments for the Products or obligations to order Products, unless otherwise agreed in the Agreement.

The Supplier and the Buyer are also referred to individually as a “Party” and collectively as “Parties”.

2. Definitions

“Affiliated Company” means any legal entity that is (a) directly or indirectly controlling the Party; or (b) under the same direct or indirect control as the Party; or (c) directly or indirectly controlled by the Party for so long as such control lasts. Control shall exist through direct or indirect ownership of more than fifty percent (50 %) of the nominal value of the issued equity share capital or more than fifty percent (50 %) of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions.

“Agreement” means a confirmed or otherwise accepted Purchase Order together with these General Terms or a purchase agreement made between the Parties together with these General Terms and other Appendices specified in the purchase agreement.

“Confidential Information” means any information and material in whatever form disclosed to one Party by the other Party and either marked as confidential or should be understood to be confidential.

“Force Majeure Event” means any failure by a Party to perform its obligations under the Agreement caused by an impediment beyond its control, which it could not have taken into account at the time of the conclusion of the contract, and the consequences of which could not reasonably have been avoided or overcome by such Party. Such impediments may include, but are not limited to, acts of government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, lock-outs, and industrial disputes, and riots, acts of terror or specific threats of terrorist activity, transportation or energy. Strike, lock-out, boycott and other industrial action shall constitute a Force Majeure Event also when the Party concerned is the object or a party to such an action.

“Intellectual Property Right” means patents, petty patents, utility models, designs (whether or not capable of registration), design patents, inventions, database rights, protection of works of authorship or expression, including copyrights and future copyright, domain names, trademarks, trade names, brands and any other industrial and intellectual property rights, whether or not specifically recognized or perfected under applicable laws and whether registered or not and applications, divisions, continuations, renewals, re-exams and reissues for any of the aforementioned respectively as well as any trade secrets, and the rights to prosecute, enforce and obtain remedies.

”Products” means any Products to be delivered by the Supplier to the Buyer as specified in the purchasing agreement or the Purchase Order.

“Purchase Order” means a document or other similar request issued by the Buyer where the Buyer requests the Supplier to deliver the Product(s).

“Specification” means in the Agreement or otherwise mutually in writing agreed qualitative, technical, functional or other specification or description of the Products.

”Supplier” shall mean the contracting party of the Buyer who has concluded the Agreement with the Buyer concerning the delivery of Products.

3. Order and Order Confirmation

The Supplier’s offers shall be binding. Any Purchase Order that the Buyer wishes to place with the Supplier shall be submitted by electronic mail, post, telefax or any other manner agreed in the Agreement. Unless otherwise agreed in the purchasing agreement or mentioned in the Purchase Order the Supplier shall send its written confirmation of each order at the latest within seven (7) days from the date of the Purchase Order. If no such confirmation is received by the Buyer, the Purchase Order shall be deemed accepted as such. Each Party shall have the right to require correction of obvious calculation and typing errors.

4. Delivery

The delivery term (Incoterms 2010) as well as the place and time of delivery are specified in the purchasing agreement or in the Purchase Order.

The risk to the Products passes to the Buyer in accordance with the agreed delivery term (Incoterms 2010).

The ownership to the Products transfers to the Buyer on the delivery date. In case Products are returned to the Supplier for reasons attributable to the Supplier, and/or in case the Supplier delivers repaired or replacement products to the Buyer, the Supplier shall be responsible for the damages incurred during the transportation.

No delivery should be performed prior the agreed time of delivery without prior written consent of the Buyer.

If the Supplier finds that a delay will occur or is likely, the Supplier shall without delay inform the Buyer in writing of the delay and of the effects of the delay on the Agreement. If the delivery is delayed and the Buyer has not cancelled the order, the Supplier shall deliver the Products in the first instance to the Buyer and the Buyer is entitled to liquidate damages. The delayed delivery of information and documentation needed for use of the Products for their intended purpose shall be regarded as a delay of a part of the delivery.

Unless otherwise agreed in the Agreement, the amount of liquidated damages payment shall be five percent (5%) of the price of the delayed part of the delivery for each beginning week of delay.In addition to the liquidated damages, the Buyer shall be entitled to a compensation of further damages incurred due to the delay exceeding the sum of liquidated damages. In the event the delivery remains delayed for four (4) weeks the Buyer shall be entitled to cancel the order with immediate effect and shall be entitled to the damages incurred because of the cancellation in addition to the liquidated damages.

The Buyer shall not be obliged to prove actual damage in order to be entitled to the liquidated damages.

5. Packaging and Labeling

The packages and labeling of the Products shall conform to the requirements of the EU and other legal regulations and Specifications and always having such qualities and properties that ensure safe and proper transportation and storage of the Products. The Products shall also be packaged and labeled properly and in accordance with any potential instructions given by the Buyer. In the event that the packaging and/or labeling do not conform the legal EU-regulations or the Specifications or the instructions given by the Buyer the Supplier shall compensate the Buyer for any costs, damage or loss resulting from the non-conformity packaging and/or labeling. In addition to the abovementioned compensation the Buyer is entitled to liquidated damages agreed in the Agreement. The Buyer shall not be obliged to prove actual damage in order to be entitled to the agreed liquidated damages.

6. Quality of the Products

The Products shall be and the Supplier is responsible for that the Products are in accordance with the Specifications and quality agreed on by the Parties and information, samples and models provided by the Supplier. In addition the Products shall fulfill the requirements and the Supplier shall be in compliance of the EU legislation and the local laws, regulations, orders and commissions issued by authorities and standards effective in Finland.The Supplier must have knowledge of product specific EU legislation and local specific requirements in Finland, if any. The product specific EU legislation and/or the local specific requirements in Finland can be presented separately in the purchasing agreement, the Purchase Order or the Specification. Product specific quality acceptance levels and tolerance values are defined in the Specification.

The Products shall at the time of delivery be free from defects and suitable for intended purposes to the extent known to the Supplier, and otherwise in compliance with what has been agreed on their quality, type, amount, packaging and other features.

The Supplier shall together with the Products deliver to the Buyer all instructions, manuals and drawings etc. required for the installation, use and maintenance of the Products.

The Products’, the Supplier’s and/or its sub-contractors’ quality acceptance and rejection process, if any, is separately agreed in the purchasing agreement or in the Purchase Order.

7. Warranty for the Products

Possible warranty for the Products shall be agreed in the Agreement. If the Parties have not agreed on terms for the warranty given by the Supplier in the Agreement the terms for the given warranty shall be following:

The Supplier warrants that for a warranty period the Products will be free from defects and suitable for the intended purpose.
The warranty period shall be two (2) years from the date of delivery to the end customer.
In the event any defects arise within the warranty period, Supplier shall either at the Buyer’s choice (i) replace all defective Products free of charge, or (ii) refund the Buyer corresponding the defect of the Product, or iii) compensate the Buyer for any costs, damage and loss resulting from the Products being unusable, defective or damaged. If the Products are exchanged or repaired, the full guarantee period commences with a delivery of the repaired or replaced Products to the end-customer

8. Product Liability, Product Safety, Indemnifications and Insurance

Unless otherwise agreed in the Agreement, the Supplier is, in accordance with the applicable legislation, liable for a personal injury and/or any other damage caused by a Product supplied by the Supplier. The Supplier is responsible for the Products in accordance with the laws and other regulations regarding product safety and product liability.

Unless otherwise agreed in the Agreement, the Supplier shall indemnify the Buyer against and hold the Buyer harmless from any and all liabilities, damages, costs, expenses or loss incurred by the Buyer and its customers related to and /or arising from product liability, product safety, personal injury and/or death, loss of and/or damage to property, which may be attributable to the Products or the use there of.

The Supplier shall have and maintain in force with an adequate product liability insurance policy including possible product recall coverage. The Supplier shall provide the Buyer with an insurance certificate upon the Buyer’s request. Should the liability insurance of the Supplier not cover the damage, the Supplier shall not be discharged from liability.

9. Prices and Payment Terms

The prices shall be agreed in the Purchase Order or in the purchasing agreement or otherwise in writing. Unless otherwise agreed in writing, the prices shall be all inclusive of i.e. the Products’ packaging, any rights granted to the Buyer and all Supplier’s obligations hereunder and all public charges, taxes, levies, imposts, duties and fees determined by the authorities to the Supplier and effective on the effective date of the Agreement, with the exception of value added tax. Any applicable value added tax shall be added to the prices in accordance with the then current regulations. The Supplier may not charge any additional amounts unless otherwise expressly agreed in writing.

Both parties will take care of their own local bank charges.

The term of payment shall be agreed in the Purchase Order or in the purchasing agreement or otherwise in writing.

The Supplier shall send the invoice after the Products have been delivered in accordance with the terms of the Agreement.

Interest on overdue payments shall accrue in accordance with the Interest Act of Finland.

10. Compliance

The Supplier agrees to comply with applicable laws and regulations and conduct its business in accordance with high ethical standards.

The Supplier agrees to acquaint itself with the codes, guidelines, policies and commitments represented on the Buyer’s website The Supplier agrees to honor, follow and operate in accordance with these codes, guidelines, policies and commitments. The Supplier also agrees to follow operational instructions relating to the abovementioned given by the Buyer.

11. Intellectual Property Rights

The Supplier warrants that the Products shall not infringe any Intellectual Property Rights of third parties. In case of infringement, the Supplier shall indemnify and hold the Buyer harmless from every suit or claim brought against the Buyer or its customer and to pay all costs, damages and expenses incurred by the Buyer.

Unless otherwise expressly agreed in writing, the Agreement has no effect on the Party’s Intellectual Property Rights existing on the date when the Agreement comes into force. The Buyer does not assign any Intellectual Property Rights to the Supplier. All drawings, designs, models, technical documents, data or other material disclosed or provided by the Buyer to the Supplier shall vest in and be deemed to be Confidential Information of the Buyer.

12. Limitation of Liabilities

In no event will the Buyer be liable for any indirect, incidental or consequential damages or expenses, including but not limited to loss of profits and lost savings even if the Buyer has been advised of the possibility of such damages.The total liability of the Buyer towards the Supplier in respect of any cause of action relating to or arising out of this Agreement shall not exceed EUR 100 000.

The said limitation of liability shall not apply to damages caused by gross negligence or willful misconduct or for any liability which cannot be excluded or limited under applicable law.

13. Confidentiality

The Supplier shall keep in confidence all Confidential Information and the Buyer’s designs, models and other Intellectual Property Rights and shall not disclose them to any third party or use them for any purpose other than for the purpose of the Agreement.

The Supplier shall have the right to disclose Confidential Information, the Buyer’s designs, models and other Intellectual Property Rights to the extent such disclosure is required pursuant to a law, decree, or other order issued by the authorities or judicial order provided that the Supplier shall inform the Buyer prior to such disclosure and shall use all reasonable endeavors to protect the Confidential Information, the Buyer’s designs, models and other Intellectual Property Rights to the extent possible.

The rights and obligations under this section shall survive the termination or expiration or cancellation of the Agreement and shall remain in force for a period of five (5) years from the date of disclosure.

14. Termination

Each Party shall have the right to terminate the Agreement with immediate effect upon written notice to the other Party if

a) the other Party commits a material breach of any of the terms and conditions of the Agreement and fails to remedy such a breach within 30 days of the other Party’s written notice thereof, or

b) the other Party is insolvent, declared bankrupt, is put into liquidation, sells all of its assets, ends its business or it otherwise ceases with its payments.

The Buyer shall be entitled, at its sole discretion, to terminate the Agreement with immediate effect in whole or in part by a written notice to the Supplier in the event if

a) the delivery of the Products is repeatedly delayed or if the Products are of poor quality or do not conform to the Specifications or are otherwise repeatedly defective

b) the Supplier repeatedly neglects or breaches its contractual obligations,

c) the Supplier is not able or based on the Buyer’s assessment will likely not be able to deliver the Products to the Buyer in accordance with the Agreement, or

d) there is a material change in control or ownership of the Supplier. A change is deemed material if control or ownership is acquired by a competitor of the Buyer. The Supplier shall notify the

Buyer of such material changes in the ownership or control without undue delay.

If the Agreement is terminated, the Buyer has the right to receive Products in accordance with already made orders in accordance with the terms of the order and the Agreement, or at the Buyer’s sole discretion, the right to cancel already made orders, provided that the Buyer at cancellations compensates the Supplier with reasonable and verifiable costs for the made order.

15. Force Majeure

Save for the obligation to pay money properly due and owing, neither Party shall be liable for delays and damages caused by a Force Majeure Event. A Party shall notify the other Party in writing without delay of a Force Majeure Event. The Party shall correspondingly notify the other Party of the termination of a Force Majeure Event. If an event of Force Majeure results in delay or non-performance of thirty (30) days or longer, the Buyer shall have the right to unilaterally terminate the Agreement with an immediate effect.

16. Applicable Law and Dispute Resolution

These General Terms, the Agreement and all matters arising out of or in connection with them shall be interpreted, construed and governed exclusively in accordance with the laws of Finland without reference to its choice of law rules.

Any dispute, controversy or claim arising out of or relating to these General Terms or the Agreement, 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 take place in Helsinki, Finland. The arbitration shall be conducted and the arbitration award shall be given in the English language. The Parties agree that the arbitration procedure and all related material and information shall be treated as Confidential Information. The award shall be final and binding on the Parties. Nothing in these General Terms shall be deemed to limit the Parties’ rights to seek interim injunctive relief or to enforce an arbitration award in any court of law.

17. Other Provisions

Unless otherwise agreed in the Agreement or otherwise on writing the Supplier shall not have the right to subcontract its obligations under the Agreement without the prior written consent of the Buyer. The Supplier shall ensure that its agreements with its sub-contractors are consistent with the Agreement and that its sub-contractors comply with such agreements. The Supplier shall be liable for the performance of its subcontractor as for its own.

The Supplier shall not have the right to assign the Agreement or any of its rights or obligations hereunder to any third party without the prior written consent of the Buyer. The Buyer may transfer the Agreement and the rights and obligations hereunder to such a third party to which the business activities related to this Agreement has been transferred.

A failure of a Party to insist upon the performance of any or more of the terms or conditions of these General Terms or the Agreement or a waiver of any term or condition of these General Terms or the Agreement will not be deemed to be a waiver of any rights or remedies the Party may have in subsequent similar situations.

If any provision in these General Terms or in the Agreement is found or becomes invalid, unlawful, or unenforceable to any extent, the provision in question will be severed from the remaining provisions of the General Terms or the Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law. The Parties undertake to amicably negotiate replacement of such a provision with a valid and enforceable provision.

No modification of the Agreement or these General Terms shall be valid, unless in writing and signed by duly authorized representative(s) of both Parties.