General Terms and conditions

GENERAL TERMS AND CONDITIONS OF SALE AND SUBSCRIPTION

GENERAL
1. These general terms and conditions of sale and subscription (”GTC”) applies to all sales, subscriptions (as applicable) and deliveries made by The Warming Surfaces Company Oy, registration no. 3324358-6, a company organized and existing under the laws of Finland, with its principal office at Valtatie 67 T 3, 90500 Oulu or any of its affiliates (“TWSC”) of its products (the “Products”) to a business end-customer (the “Customer”) when referred to in a frame agreement between TWSC and the Customer or in a quotation or purchase confirmation (“Order Confirmation”) from TWSC. A frame agreement or an Order Confirmation or a Subscription Agreement together with these GTC and other referred to appendices are hereinafter all together defined as the “Agreement”. In the event the Customer refers to its own conditions of purchase or equivalent and such conditions are in conflict with any provisions in these GTC’s, these GTC’s shall supersede the Customer’s own conditions regardless of whether TWSC previously has objected to the Customer’s conditions or not.
2. TWSC may from time to time unilaterally amend/make general updates of these GTC’s. The Customer undertakes to familiarize itself with the latest version of these GTC’s available and published on TWSC’s website or otherwise made available to the Customer as per TWSC’s routines from time to time.
DOCUMENTATION
1. If a party provides the other party with documentation, drawings or technical information related to the Products, delivery, site or similar prior to or following the conclusion of the Agreement, such information shall remain the property of the submitting party or its Documentation, drawings or technical information received by one party may not, without the written consent of the submitting party, be used for any other purpose than for which it was provided or otherwise be used, copied, reproduced or communicated to a third party.
2. Documentation, drawings and technical information regarding the Products or the delivery is provided to the Customer “as is” meaning that TWSC shall have no obligation to provide other documentation than such documentation obtained from the relevant sub-suppliers of TWSC and TWSC cannot be held liable for any claims, loss or damages as a result of or related to such documentation.
DELIVERY AND DELAY
1. TWSC shall deliver the Products in accordance with the delivery dates/periods and/or time schedules stipulated by the Agreement and, if the Customer is a restaurant or similar, install the Products as agreed between the parties.
2. TWSC shall use its best efforts to ensure timely deliveries, however delivery times are to be understood as approximate and never binding. TWSC shall notify the Customer in writing of any anticipated delay in meeting the estimated delivery dates/periods, stating the reasons for the delay and its best estimate of when the delivery can be made. In the event delivery has not taken place within 10 weeks from estimated delivery dates/periods, either party shall be entitled to terminate the delayed order.
3. No further specific remedies (including damages or remuneration for incurred cost/losses) are available to the Customer in the event an estimated delivery date/period is not met. TWSC will notify the Customer in writing when the ordered Products are in transit and estimated to be delivered at the agreed location.
4. Customer purchasing the Products may not return delivered non-defective Products without TWSC’s prior written approval. Unless otherwise explicitly agreed in the Agreement, delivery of Products shall be made DDP (Incoterms 2020) by TWSC for restaurant customers or similar. TWSC shall be responsible for the installation of the Products when the Customer is a restaurant or similar.
5. Unless otherwise explicitly agreed in the Agreement, delivery of Products shall be made DAP (Incoterms 2020) by TWSC if the customer is an event organiser. Event organisers shall unload, move to desired location, and install the Products.
6. If the Customer purchasing the Products for any reason shall return any Products to TWSC such Products shall be delivered DDP to the above stated address (Incoterms 2020). TWSC is responsible for retrieving the Products from Subscription Customers if the subscription is terminated.
FOR SALES/PURCHASES - PURCHASE ORDERS AND ORDER OF PRIORITY
1. The Customer shall purchase the Products by placing separate written purchase orders specifying the Products ordered (“Purchase Order”). No contract of sale shall arise, except by TWSC’s written acceptance/approval of each purchase order (Order Confirmation). Notwithstanding the provisions in the Purchase Order, each contract of sale shall be subject to the terms contained in this Agreement.
2. In the event of conflicting information in the different contractual documents, the documents shall have the following order or priority: 1) Frame Agreement (if any) 2) Order Confirmation, 2) these GTC’s, and 3) other appendices (e.g. Product specifications).
FOR SUBSCRIPTIONS - SUBSCRIPTION OF SERVICE
1. The Customer shall subscribe for a service where the Products are provided by TWSC to the Customer on a monthly subscription basis by signing a separate written subscription agreement specifying the service ordered with TWSC (“Subscription Agreement”). Notwithstanding the provisions in the Subscription Agreement, each contract of subscription shall be subject to the terms contained in this Agreement.
2. In the event of conflicting information in the different contractual documents, the documents shall have the following order or priority: 1) Frame Agreement (if any) 2) Subscription Agreement, 2) these GTC’s, and 3) other appendices (e.g. Product specifications).
DEFECTS IN PRODUCTS
1. If a Products is defective, TWSC shall remedy and correct (or if decided by TWSC, replace the Products) such non-conformity or fault at its own cost and expense.
2. When a Product is delivered, the Customer shall immediately check quality and quantity and check that any packing is undamaged and any seals unbroken. If a defect can be assumed to have occurred during transport of the Product both TWSC and the forwarder shall immediately be informed to this effect.
3. If no defect in the Products is found for which TWSC is liable, TWSC shall be entitled to compensation for all costs and expenses (including reasonable attorney and other professional fees) it has incurred due to the Customer’s faulty notification.
4. Warranty
  1. TWSC warrants that the Products will be free from defects in materials and workmanship under normal use and service for a period of one (1) year from the date of delivery to the Customer.

This warranty covers:

Defects in manufacturing or materials that affect the performance of the heating functionality.
Electrical components, including the heating element and control systems, under normal usage conditions.
Structural integrity of the table frame and surface under proper use.

This warranty does not cover:

Normal wear and tear, scratches, dents, or cosmetic damages.
Damage resulting from improper use, misuse, negligence, or failure to follow the provided instructions.
Modifications, repairs, or alterations made by unauthorized parties.
Damage caused by excessive load, exposure to liquids, extreme temperatures, or external environmental conditions.
Power surges, voltage fluctuations, or use with incompatible electrical sources.
1. Defects in Sales
  1. In addition to what has been stated above in 6, in order for TWSC to be liable for a defect in the sale/purchase model, the purchasing Customer shall notify TWSC in writing of any defects in the Products no later than ten (10) days from the date when the Customer discovers or should have reasonably discovered a defect in the Products. Complaints made by the Customer, shall comply with such instructions, requirements and processes stipulated by TWSC from time to time. The notice shall contain a thorough description of the alleged defect in the Product and shall, upon TWSC’s request, be accompanied with a sample of such allegedly defective Product. If the Customer does not notify TWSC in accordance with this clause 6.5, TWSC shall have no liability whatsoever for any defect in the Products.
  2. If not otherwise specified for a Product in the Product specification/data sheet, TWSC is liable for defective Products notified by the Customer within one (1) year from the delivery date.
  3. In the event TWSC does not remedy a confirmed defective Product within a reasonable period of time from written notice by Customer, the Customer is entitled to terminate the purchase as regards the defective delivery. If terminated, the Customer is entitled to compensation for its direct cost.
2. The remedies stipulated by this clause 6 are the exclusive remedies available to the Customer in event of defective Products.

PRICES AND PAYMENT
1. The Customer shall pay the prices specified in the Agreement. Payment shall be made no later than 14 days from the invoice date. In case of late payment, TWSC may charge interest in accordance with applicable law in country of sales.
2. All prices under the Agreement shall be excluding VAT or other similar local taxes.
SUBCONTRACTORS
1. TWSC is entitled to appoint and use sub-contractors or other intermediaries for fulfilment of, or work related to, this Agreement without Customer’s prior written consent. An appointment of a sub-contractor or other intermediaries shall have no implication to TWSC’s obligations under the Agreement and TWSC shall be responsible towards Customer for all sub-contractors as well as for any other intermediaries appointed by TWSC.
RETENTION OF TITLE
1. The Products shall remain the property of TWSC until fully paid for and TWSC reserves the right to recover the Product in case of non-payment. Until the transfer of ownership, Customer is not entitled to transfer, use, dispose of the Products or otherwise use the Product as collateral.
2. Notwithstanding what is stated above in section 9.1, if the Customer subscribes the Products as a service the Products shall remain the Property of TWSC.
INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
1. All right, title and interest in any intellectual property rights in or to the Products, shall belong to TWSC and the Customer acquires no rights whatever nature under this Agreement to any intellectual property rights in the Products.
2. Each party shall without undue delay inform the other party if it has reason to believe that the Products infringe third-party intellectual property rights or that an infringement of TWSC’s or its sub-suppliers intellectual property rights may take or has taken place.
3. The ownership of the purchased Products shall pass to Customer upon full payment.
INFRINGEMENTS
1. If an infringement suit is brought by a third party against the Customer, TWSC is to reimburse the Customer for its reasonable and verified direct costs thus incurred and indemnify the Customer against all third party claims based on the allegation that TWSC’s intellectual property rights, including trademarks, infringe on the rights of said third party, provided that: (i) TWSC had been responsible for such an infringement had it marketed and sold the Products itself; (ii) and TWSC was notified by the Customer in accordance with clause 10.2 above; and (iii) that TWSC has been entitled to participate in the defence as set out in clause 11.2.
2. TWSC shall be entitled to participate in all negotiations or judicial proceedings in respect of such infringement, and the Customer shall, at its own cost, render such assistance to TWSC, as may reasonably be required. The Customer shall not settle any claims or proceedings without the prior written consent of TWSC.
TRADEMARKS AND MARKETING
1. Any logotypes and trademarks of TWSC, its affiliates or its sub-suppliers shall be the sole property of TWSC and/or its affiliates/sub-suppliers (as the case may be). The Customer’s use of TWSC’s logotypes and trademarks shall always be in strict compliance with the explicit instructions and requirements of TWSC as communicated from time to time.
DATA PROTECTION
1. The parties shall at all times comply with applicable data protection laws and regulations and shall, if applicable, enter into a data processing agreement provided by TWSC.
LIMITATION OF LIABILITY
1. Neither party shall be liable for any indirect and/or consequential loss or damage, including loss of profit or loss of goodwill or loss of business opportunity.
2. TWSC’s maximum aggregate liability for any and all claims under or relating to this Agreement shall be limited to the total amount actually paid by the Customer under the relevant Agreement based on which the liability arose.
3. The limitations of liability set out above in this clause shall not apply with respect to damages caused by gross negligence or wilful misconduct.
PRODUCT LIABILITY
1. TWSC shall indemnify and hold the Customer harmless from and against reasonable and verified direct claims and liabilities, costs, and expenses incurred by, or threatened against, arising out of a defective Product having caused personal injury or property damages unless such damage has been caused due to the Customer’s use or misuse, services, installations, instructions, modifications, adaptations or the like (product liability).
2. The Customer shall indemnify and hold TWSC harmless to the extent that TWSC incurs liability towards any third party in respect of loss or damage relating to or due to the use of a non-defective Product.
3. TWSC shall not be liable to the Customer in respect of loss that a non-defective Product cause the Customer or third parties. TWSC shall thus not be liable for damage caused by such Product to real or movable property while the Product are in the Customer’s or a third party’s possession.
PREMATURE TERMINATION
1. If a party breach any of its obligations under the Agreement, the other party may by written notice to the breaching party terminate the Agreement partly or in its entirety with immediate effect, provided (i) that the breaching party has failed to cure the breach within 14 days after written notice of the breach, or (ii) if the breach is of material and essential importance to the affected party. A party’s right to terminate with immediate effect shall also apply if the other party should enter into liquidation, become insolvent or similar.
2. Notwithstanding the above in section 16.1, Customers subscribing the Products as a service may terminate the Agreement as agreed in the Subscription Agreement.
3. All documents and materials related to the Products, as well as any document or information provided or owned by TWSC, shall be returned to TWSC upon request.
INSURANCE
1. The Customer shall upon request from TWSC verify its insurance coverage by submitting an insurance certificate and/or produce written confirmation to TWSC that such insurances are procured and maintained.
FORCE MAJEURE
1. A party shall be discharged from liability for a failure to perform an obligation under the Agreement due to a circumstance beyond the party’s control. Circumstances giving rise to such discharge are war or warlike acts, restrictions by public authorities, fire, strike, blockade, prohibition, global pandemics or other similar events, provided that the affected party immediately gives written notice to the other party of such event (“Force Majeure Event”).
2. If performance of significant parts of the Agreement is prevented for more than three (3) months due to a Force Majeure Event, the other party shall be entitled to terminate the Agreement with immediate effect. Neither party shall have any liability to the other party as a consequence of termination of the Agreement due to a Force Majeure Event.
CONFIDENTIALITY
1. A receiving party shall keep all information, g., information relating to a party’s business operations and know-how, disclosed by the other party, with regard to the disclosing party’s business, in confidence (“Confidential Information”) during the term of the Agreement and for five (5) years afterwards and the receiving party shall use such Confidential Information only for the purposes set out in the Agreement and shall not disclose such Confidential Information to third parties except to those of the receiving party’s consultants, employees and subcontractors who are required to have access thereto for the purposes set out in the Agreement, and then only if such consultants, employees or subcontractors are obligated to observe the confidentiality of such information.
2. The restrictions in clause 19.1 does not apply to the extent a party is required to disclose Confidential Information by law or regulation or pursuant to any order of court or other competent authority or tribunal, if the information was public knowledge at the time of its disclosure or has become public knowledge thereafter through no fault of the receiving party or if the information was already known to the receiving party prior to disclosure by the other party.
3. Regardless of what is set forth in this clause 19, TWSC is entitled to disclose Confidential Information with its affiliates, partners and consultants. Additionally, TWSC may use the Customer’s name and logo in its marketing materials, case studies, and public references to indicate the Customer as a client, provided that no specific confidential details of the agreement are disclosed.
MISCELLANEOUS
1. The Agreement constitutes the entire agreement between the parties regarding all the issues set forth in the Agreement. Any and all written or verbal undertakings or agreements prior to the Agreement are substituted by the Agreement.
2. Any amendments to the Agreement shall, in order to be binding, be made in writing and duly executed by both parties hereto.
3. Neither party may, without the prior written consent of the other party, assign any of its rights and obligations under the Agreement to a third party.
DISPUTES AND GOVERNING LAW
1. The Agreement shall be governed by and construed in accordance with the laws of Finland, excluding its conflict of law rules.
2. Any dispute, controversy or claim arising out of or relating to the Agreement or these GTC’s, 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. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be Finnish.
3. The parties undertake, indefinitely, not to disclose the existence or contents of any judgment or decision related to or in connection with the Agreement or any information regarding negotiations, arbitral proceedings or mediation in connection therewith.