General Terms and Conditions for Hardware Sales

1. Definitions

In these General Terms and Conditions of Sale, the ”Seller” or “Casambi” shall mean Casambi Technologies Oy (Business ID 2418753-5), a company organized and existing under the laws of Finland, and the “Buyer” shall mean the firm, person or company specified in the Agreement (defined below). Seller and Buyer are referred to collectively as the “Parties” and individually as a “Party”.

The Products contain Casambi’s software components as embedded software. The “Embedded Software” means Casambi’s software that is embedded into the system on chip and loaded into each individual Product (as defined below), in object code form only, and notwithstanding anything in these General Terms and Conditions to the contrary, all Embedded Software is licensed by Seller to Buyer and not sold. The Embedded Software is part of the Casambi technology ecosystem, which consists of certain hardware and software components, including but not limited to the Embedded Software, applications, platforms and tools, application programming interfaces (APIs),  mesh network software, SOC firmware programming/flashing support and the cloud server system (collectively, the “Casambi Technology”).

2. Applicability

These General Terms and Conditions applies to all sales of the products, which Seller has agreed to sell, and Buyer has agreed to buy (the “Products”), as specified in a separate written agreement, quote issued by Seller and accepted by Buyer and/or order issued by Buyer and accepted by Seller (the “Agreement”). 

In the case of any conflict between the Agreement and these General Terms and Conditions, the Agreement shall take precedence over the General Terms and Conditions.

3. Formation of Agreement

A legally enforceable agreement shall arise upon the signing of the Agreement by both Parties, or when Seller has accepted in writing an  offer to purchase the Products in the form of a purchase order, or Buyer’s acknowledgement of Seller’s quote, whichever occurs first, provided however, Seller hereby rejects all provisions contained in communications from Buyer that conflict with or are inconsistent with or in addition to the terms contained herein, and none of such terms shall be binding on Seller.  Seller’s failure to object to any of the provisions contained in Buyer’s documentation shall not be deemed a waiver of these provisions. 

5. Order and Delivery

Buyer shall place its order for the Products in writing in accordance with this Section 4. The order shall include an itemized description and number of the ordered Products. The order shall be sent to the following address of Seller by e-mail, facsimile or mail:

e-mail:               orders@casambi.com

mail:                 Casambi Technologies Oy / Orders

                        Bertel Jungin Aukio 1 C, 02600 Espoo, Finland.

In case Seller has provided Buyer other contact details than the ones listed above, the order may be sent by using such contact details.

Seller may, in its sole discretion, either accept or reject any order made by Buyer. Seller will not be held contractually liable, to any extent, to deliver the Products before Seller has explicitly accepted the order in writing.

After Seller has accepted the order, Seller shall provide to Buyer an estimated delivery time for the Products. All delivery dates and times are estimates only, and Seller shall not be held liable for, and hereby disclaims any liability for failure to deliver the Products within such delivery time estimates.  Orders and delivery dates may not be canceled or rescheduled without Seller’s prior written consent.

Upon the delivery of the Products, Buyer shall inspect the delivered Products immediately, and must inform Seller of any defect or deficiency in writing within fourteen (14) days from the date of delivery.  Upon Seller’s receipt of Buyer’s notice asserting any defect or deficiency, Seller shall determine if such defect or deficiency actually exists, and if it does, shall use commercially reasonable efforts to resolve such defect or deficiency.  If Seller has not received any notice from Buyer within the fourteen (14) day period, the delivery shall automatically be deemed accepted by Buyer.

The term of the delivery of the Products is Ex Works (Incoterms 2020) Finland. Buyer shall bear all risks of loss of, or damage to the Products from the time the Products have been placed at Buyer’s disposal.

5. Payment Terms

The prices payable by Buyer shall be, if not otherwise agreed in the Agreement, those applied by Seller from time to time at the time the order is accepted by Seller. Unless otherwise agreed, the prices are subject to change at any time. The prices do not include costs and expenses of packing, transportation, insurance, duties, taxes, VAT, or any other costs or expenses, and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on Seller’s income) and expenses.

Unless otherwise agreed by the Parties, all prices are presented in EUR.

Unless otherwise agreed between the Parties in writing, the payments shall be made as prepayments, and the Products will not be shipped by Seller before receiving the relevant payment. The payment term shall be 7 days net from the date of the invoice. Any late payments are subject to a finance charge of the lesser of 11 percent per annum or the maximum rate permitted by applicable law.

Buyer agrees to accept partial shipments in satisfaction of a single order; when partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment.  If Seller accepts partial payment in an amount less than the full amount of any invoice, such acceptance shall neither constitute a waiver of Seller’s right to collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument.  In the event of Buyer’s bankruptcy or insolvency, Seller shall be entitled to cancel any order then outstanding without waiving any claims in law or equity.  If Buyer fails to comply with these payment terms, Seller reserves the right to withdraw credit, suspend or cancel performance under any or all purchase orders or agreements and all Buyer’s obligations to Seller shall become immediately due and payable.

Title to the delivered Products shall not pass to Buyer until Seller has received full payment of the Products.

6. Intellectual Property Rights

As between Buyer and Seller, all Intellectual Property Rights in and to the Products and the Casambi Technology contained therein shall remain the exclusive property of Seller or its licensors. “Intellectual Property Rights” means proprietary methods, discoveries, inventions, patents, trade secrets, copyrights, moral rights, trademarks, service marks, trade dress, compositions, products, procedures, know-how, data, reports, programs, processes, writings, illustrations, images, designs, and any other form of intellectual property or proprietary rights, now known or hereafter recognized in any jurisdiction. Buyer recognizes the distinctiveness, validity, originality, value, goodwill and ownership by Seller of any Intellectual Property Rights related to the Products and the goodwill of Seller’s business, and goodwill associated with the Products and Seller’s business shall exclusively inure to the benefit of Seller.

Subject to Buyer’s compliance with the terms and conditions contained in the Agreement and these General Terms and Conditions, Seller hereby grants to Buyer, during the term of the Agreement, a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to use the Embedded Software, solely as embedded in and for execution on the Products, and solely for the internal business purposes of Buyer or Buyer’s end users.  Customer’s sole interest in the Embedded Software is the license and right to use the Embedded Software as embedded in the Products, during the term of the Agreement, and in accordance with these Terms.

Notwithstanding anything else in the Agreement, these General Terms and Conditions, or otherwise, Buyer acknowledges and agrees that Casambi may compile anonymous statistical data and other information related to the performance, operation and use of the Casambi Technology, and may use such data in aggregated form for security and operations management, to create statistical analyses, and for research, development and commercial purposes. As between Buyer and Casambi, all right, title and interest in such data and all Intellectual Property Rights therein belong to and are retained solely by Casambi. The right to compile any such statistical or analytics data relating to the performance, use or operation of any Casambi Technology components or the functionalities thereof shall be exclusive to Casambi.

6. Restrictions of use

Buyer shall not:

8. Limited Warranty

Seller warrants that the Products shall conform in all material respects to the technical specifications as set out at Casambi.com (https://casambi.com/products.html) under normal use and service for a period of twenty-four (24) months from the date of delivery. Deviations from published specifications which do not materially affect performance of the Products covered hereby shall not be deemed to constitute defects of material or workmanship or a failure of the Products to comply with such specifications. Seller shall have the right to modify the technical specifications in its sole discretion.  The terms of this warranty do not apply to any specification required by Buyer or any Product which has been subject to misuse or neglect, or damaged by accident (including fall, fire, exposure to water and abnormal electrical exposure), that has been modified by anyone without Seller’s authorization.  The warranties contained herein shall extend only to Buyer and shall not apply to Buyer’s affiliates or customers. Buyer shall return defective Products at its own expense to Seller. Seller’s sole and exclusive obligation, and Buyer’s sole and exclusive remedy for the defective Products shall be limited to the replacement of the defective Products within a reasonable period of time after their receipt by Seller from Buyer, in accordance with the term of delivery under the Agreement or these General Terms and Conditions.

BUYER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS CONTAINED IN THIS WARRANTY CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO IT WITH REGARD TO THE PRODUCTS.  EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION,  SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL ADDITIONAL OR OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM OR TRADE AND INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCTS FURNISHED BY SELLER HEREUNDER. Certain jurisdictions do not permit the disclaimer of certain warranties, so this limitation may not apply to Buyer. 

Buyer shall ensure that any Products are used in compliance with all requirements and standards imposed by any applicable rules, regulations and guidelines including without limitation any requirements and standards regarding instructions for use of the Products and manuals. Seller expressly disclaims that the Products fulfill any requirements or standards, other than those set out in applicable laws (such as CE marking laws), standards, codes, rules and regulations, and safety approvals, as defined from time to time in the Products technical specifications. Notwithstanding the foregoing, if Buyer intentionally orders Products with specifications that do not fulfill some or all of the requirements and standards in force in the European Community, Seller expressly disclaims any liability for conformance of such Products with the requirements and standards in force in any jurisdiction.

9. Limitation of Liability

IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOST PROFITS, LOSS OF BUSINESS, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER RESULTING FROM SELLER’S PERFORMANCE OR FAILURE TO PERFORM UNDER THE AGREEMENT OR THESE GENERAL TERMS AND CONDITIONS OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE. The maximum total liability of Seller under the Agreement and the General Terms and Conditions of whatever nature and for any and all causes shall be limited to EUR 50,000.00. THE DAMAGE LIMITATIONS PROVIDED HEREIN AND THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE BUYER’S SOLE REMEDY.  THIS LIMITATION ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE. Certain jurisdictions do not permit the limitation of certain types of liability, so this limitation may not apply to Buyer.

10. Indemnity

If Buyer (or any third party at the direction of Buyer) integrates, incorporates, or otherwise combines the Products with any other products or components, and Seller becomes the subject of a claim or faces any liability related to such combined product, Buyer shall defend, indemnify, and hold Seller harmless from any such claim and all damages, losses, and expenses related thereto.  

Furthermore, in the event of a claim by a third party of infringement of proprietary rights, trademarks, or patents, resulting from (i) compliance with Buyer’s designs, specifications, or instructions or (ii) Buyer’s modification of the Products, or (iii) Buyer’s combination, integration, or incorporation of the Products with other products, Buyer will defend, indemnify and hold Seller harmless against any expense or loss ensuing from such a claim.

11. No Assignments

Buyer may not assign or transfer its rights or obligations under the Agreement or these General Terms and Conditions, in whole or in part to any third party without prior written consent of Seller.

12. Partial Invalidity

Any provision hereof which is prohibited or unenforceable shall, as to such jurisdictions, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of such provision in any other jurisdiction.

13. Confidentiality

Buyer shall keep Seller’s confidential information strictly confidential and shall not disclose it to any third party and shall not use it for anything other than the purposes of the Agreement. For sake of clarity, any information made available by Seller or its affiliates not available to the general public, is deemed to be confidential information.

Buyer shall take all reasonable steps, as well as treat Seller’s confidential information at least in the same manner as its own confidential information, to safeguard Seller’s confidential information against unauthorized disclosure and use.

At Seller’s request or at the termination of the Agreement, Buyer shall promptly cease to use and return or destroy Seller’s confidential information.

The obligation of confidentiality shall remain valid until ten (10) years after the termination of the Agreement.

14. Force Majeure

Neither Party shall be liable for failure to fulfill or for delay in fulfilling its obligations when such event is unforeseeable and due to causes beyond its reasonable control, including but not limited to acts of war, riots, civil commotion, strikes or other concerted action of workmen, lockouts, acts of nature, fire, accidents, prohibition of imports or other acts of government, discontinuance or disruptions of adequate means of internet and telecommunication, transport or discontinuance of distribution of energy, epidemic or pandemic or some other unusual event, which is independent of any action of either Party, and which prevents the fulfillment of the Agreement or these General Terms and Conditions, and which could not be avoided or overcome without unreasonable expense. The Party whose performance is prevented or delayed by an event of Force Majeure, shall inform the other Party of the event of Force Majeure as well as of the termination of the event of Force Majeure, in writing as soon as reasonably possible, and shall do all things reasonably possible to mitigate any loss being caused to the other Party due to the event of Force Majeure. In the event that the delay or non-performance of Seller continues for a period of sixty (60) days due to reasons of Force Majeure, Seller shall have the right to cancel the order of Products affected by such Force Majeure with immediate effect without liability.

15. No Agency or Partnership

Nothing in the Agreement or in these General Terms and Conditions is intended by either Party to create a joint activity or partnership in any form between the Parties. Neither the Agreement nor the General Terms and Conditions or any performance thereunder shall be construed as establishing an employment or agency relationship between Buyer or Buyer’s employees on the one hand, and Seller on the other hand.

16. Governing Law and Disputes

The Agreement and these General Terms and Conditions shall be governed by and construed in accordance with the laws of Finland, however, under the exclusion of its conflict of laws rules and the United Nations Convention on International Sale of Goods.

Any dispute, controversy or claim arising out of or relating to the Agreement or these General Terms and Conditions, or the breach, termination or invalidity thereof, shall be first intended to be settled amicably by negotiations between the Parties, and if not amicably settled, finally settled in arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce. The place of arbitration shall be Helsinki, Finland. The arbitral tribunal shall be composed of one (1) arbitrator. The arbitration shall be conducted in the English language unless otherwise agreed.

17. General

Any notice or report required or permitted by these terms and conditions shall be in writing and shall be deemed given if delivered personally or if sent by either party to the other by confirmed overnight delivery or by certified or registered mail, return receipt requested, postage prepaid, addressed to the other party to its address as set forth on the order form or at such other address as such party shall designate by notice hereunder.  Where Buyer is giving notice to Seller, all notices shall be sent to the attention of Seller’s account representative or customer service representative.  No modifications to these terms and conditions herein shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein.  No waiver of any breach of any provision of these terms and conditions shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.  The terms and conditions contained herein and the Agreement constitute the entire agreement between Buyer and Seller with respect to the Products purchased, and supersede all prior or contemporaneous negotiations, understandings and agreements.

18. Export Restrictions

(1) Buyer shall not sell, export or re-export, directly or indirectly, to the Russian Federation and/or the Republic of Belarus or for use in the Russian Federation and/or the Republic of Belarus any goods supplied under or in connection with the Agreement that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014 and Article 8g (EC) 765/2006, both as amended.

(2) Buyer shall undertake its best efforts to ensure that the purpose of paragraph (1) is not frustrated by any third parties further down the commercial chain, including by possible resellers.

(3) Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (1).

(4) Any violation of paragraphs (1), (2) or (3) shall constitute a material breach of an essential element of this Agreement, and Seller shall be entitled to seek appropriate remedies, including, but not limited to: (i) termination of this Agreement; and (ii) a penalty of 30% of the total value of the Agreement or price of the goods exported, whichever is higher.

(5) Buyer shall immediately inform Seller about any problems in applying paragraphs (1), (2) or (3), including any relevant activities by third parties that could frustrate the purpose of paragraph (1). Buyer shall make available to Seller information concerning compliance with the obligations under paragraph (1), (2) and (3) within two weeks of the simple request of such information.