These General Terms and Conditions constitute the entire agreement („Terms„) between EnOcean and the buyer („Buyer„) with respect to switches, sensors, and other products, whether manufactured by EnOcean or a third party, for purchase by Buyer from EnOcean (collectively, „Products„), unless the parties have entered into a separate written agreement signed by authorized representatives of each party governing Buyer’s purchase of such Products (“Supply Agreement”) (in which case the Supply Agreement will apply in lieu of these Terms). THESE TERMS ALSO CONTAIN AN AGREEMENT TO ARBITRATE IN SECTION 13.2 BELOW WHICH WILL REQUIRE BUYER TO SUBMIT CLAIMS BUYER HAS AGAINST ENOCEAN TO BINDING AND FINAL ARBITRATION.Acceptance by Buyer of these Terms will be deemed made at the earlier of Buyer’s (1) acceptance or acknowledgment of receipt of these Terms without written objection thereto, (2) placement of a purchase order with EnOcean that refers to a valid EnOcean quotation or these Terms, or (3) failure to deliver to EnOcean written notice of its rejection of these terms within 5 days following receipt of these Terms. Capitalized terms used in these Terms shall have the meaning set forth where they are first used or in Section 18 below.
Unless Buyer and EnOcean have entered into a Supply Agreement, these Terms shall apply to all quotations, purchase orders, and acknowledgments relating to the Products, including future transactions for the purchase of Products by the same Buyer from EnOcean without EnOcean having to refer to these Terms in every single transaction. Acceptance of any Buyer order by EnOcean is made only on the express condition that the terms and conditions of these Terms shall govern. EnOcean’s failure to object to provisions contained in any order or communication from Buyer will not be deemed a waiver of any provision herein. Any additional or different terms proposed by Buyer shall be deemed material, are objected to, and are hereby rejected unless specifically accepted in a signed writing by an authorized representative of EnOcean.
All prices are exclusive of all withholding, excise, sales, use and similar taxes, fees, charges, duties, and assessments, in each case imposed by any governmental authority on the transactions, shipments, or amounts payable hereunder, except taxes on EnOcean’s income which shall be EnOcean’s responsibility, (collectively, „Taxes„). Buyer will reimburse EnOcean for all Taxes. Terms of payment are net 14 days from the date of the invoice unless otherwise agreed in writing by EnOcean. Buyer’s payment obligations to EnOcean under this section are independent of any delays or failure on the part of Buyer’s customers to pay Buyer. In case of late or non-payment, Buyer will automatically be in default without a notice to that effect (or a grace period) being required. All payments will be made in U.S. dollars, unless otherwise agreed in writing. EnOcean has the right to charge interest on overdue payments at the rate of 1.5% per month, or the maximum amount allowed by law, if lower, from the due date until paid. EnOcean may at any time change its payment terms, including requiring payment of the full amount or a portion thereof prior to delivery. If any proceeding is brought by or against Buyer under bankruptcy or insolvency laws, EnOcean has the right to cancel any outstanding orders. Until full payment has been received, EnOcean reserves a purchase money security interest in the Products sold hereunder and all proceeds thereof. Buyer agrees to execute any document appropriate or necessary to perfect the security interest of EnOcean, or EnOcean may file these Terms and/or any invoice as a financing statement and/or chattel mortgage. EnOcean reserves all rights granted to a secured creditor under the Utah Uniform Commercial Code or other applicable law, including the right to repossess the Products upon default by Buyer. Buyer agrees to assist in EnOcean’s repossession of the Products upon such default.
Upon acceptance by EnOcean, all orders shall be non-cancelable. Orders can only be rescheduled with the written acceptance of EnOcean in the form of an updated order acknowledgment reflecting the new delivery date. Products will be delivered ExWorks (Incoterms 2020) EnOcean’s warehouse or shipping point designated by EnOcean, at which point the following shall pass from EnOcean to Buyer: (i) title to the units of Products (other than the Embedded Software defined in Section 4 below) and (ii) risk of loss. Unless otherwise agreed by the parties, EnOcean will be entitled to decide on the manner of shipping (in particular the carrier, routing and packaging). Without limiting the foregoing, Buyer shall pay, or reimburse EnOcean, for all transportation and freight charges and charges for insurance against loss or damage. EnOcean may make partial shipments of the Products. Buyer acknowledges and agrees that all shipping dates are estimates only. All Products will be deemed accepted by Buyer upon delivery to the Buyer’s designated agent or common carrier and Buyer waives any right of revocation, unless and only to the extent Buyer notifies EnOcean in writing within 7 Business Days of receipt of any Product, and EnOcean finds, that the (a) Product shipped is different than the Product identified in the order confirmation; or (b) Product label or packaging incorrectly identifies its contents. Except as provided in these Terms, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under these Terms to EnOcean.
“Embedded Software” means firmware and software embedded in the Products, and any modified, updated, or enhanced versions of such firmware or software provided by EnOcean. Subject to Buyer’s compliance with these Terms, EnOcean grants to Buyer a non-exclusive, non-transferable, and limited license, to: (a) if Buyer is an End Customer, install, execute and use the Embedded Software solely on the applicable Product in accordance with the applicable Product Documentation, for the Buyer’s own business; (b) if Buyer is an installer, install, execute and use the Embedded Software solely on the applicable Product in accordance with the applicable Product Documentation for the purpose of installing and configuring the Product for the applicable End Customer and pass-through EnOcean’s license to End Customers to execute and use the Embedded Software solely on the applicable Product for their own business in accordance with the Product Documentation; (c) if Buyer is a reseller of the Product, permit installers purchasing the Product from Buyer or otherwise authorized by Buyer, to execute and use, the Embedded Software solely on the applicable Product in accordance with the applicable Product Documentation for the purpose of installing and configuring the Product for the applicable End Customer and pass-through EnOcean’s license to End Customers to execute and use the Embedded Software solely on the applicable Product for their own business in accordance with the Product Documentation. Buyer shall not, and Buyer shall use reasonable efforts to ensure that no third party shall, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Embedded Software for Products purchased by Buyer hereunder. If Embedded Software is separately licensed in writing by EnOcean (“Embedded Software License”), then the terms and conditions of such Embedded Software License shall control in the event of any conflict with these Terms but solely with respect to such Embedded Software.
If EnOcean makes available any software or applications for download and use with the Products, including any modified, updated, or enhanced versions of such software or applications made available by EnOcean (collectively, “Client Software”), Buyer agrees (and will inform its customers) that use of the Client Software is subject to the terms and conditions accompanying such Client Software (“Client Software License”). In the event of any conflict between these Terms and the Client Software License, the Client Software License shall control but solely with respect to the applicable Client Software.
If EnOcean provides an IoT-as-a-service, software-as-a-service or other web-based service in connection with any Products Buyer purchases (each, an „EnOcean Service„), Buyer agrees (and will inform its customers) that use of the EnOcean Service is subject to the terms and conditions made available by EnOcean during the online registration process for such EnOcean Service (“EnOcean Service Terms”). The applicable EnOcean Service may be subject to an additional charge. In the event of any conflict between these Terms and the applicable EnOcean Service Terms, the EnOcean Service Terms shall control but solely with respect to the applicable EnOcean Service.
EnOcean retains ownership of all intellectual property rights in the Products (including the Embedded Software), all Client Software, and the EnOcean Service. The Products are offered for sale and sold on the condition in every case that, except as expressly set forth in these Terms, the applicable software license, and the applicable EnOcean Service Terms, such sale does not convey any license, express or implied, under any intellectual property right of EnOcean, and all such rights are reserved. There are no implied licenses in these Terms.
EnOcean warrants to Buyer that the Products will be free of defects in material and workmanship for a period of 12 months from the date of shipment (the “Limited Warranty” and such period, the “Warranty Period”); provided the Products are used for the purpose intended and are maintained, handled, serviced and operated in accordance with the corresponding Product Documentation. If Buyer is not the End Customer, Buyer shall pass through the Limited Warranty to End Customers. EnOcean will, as the sole and exclusive remedy for any breach of the Limited Warranty, and EnOcean’s entire liability, have the right, at EnOcean’s sole option, either to: (a) repair the nonconforming Product to make it conform to the Limited Warranty, (b) replace the nonconforming Product with a conforming Product; or (c) credit or refund Buyer the amount paid by Buyer to EnOcean for such non-conforming Product. Any repaired or replaced Product under this section will not extend the original Warranty Period. The Limited Warranty shall not apply to consumables (such as, but not limited to, batteries), if any, provided with any Product or any Product rendered defective or non-conforming, in whole or in part, due to: (i) neglect or misuse; (ii) electrical or electromagnetic stress; (iii) excess humidity; (iv) accident, fire or other hazard; (v) alteration, modification or repair by anyone other than EnOcean or its authorized repair providers; (vi) installation of unauthorized parts or software; (vii) improper testing, handling, storage, transportation, operation, interconnection, or installation; (viii) failure to continually provide a suitable installation or operation environment; or (ix) any other cause beyond the range of normal use of the Product. Buyer acknowledges and agrees that EnOcean shall have no obligation to provide any remedy described herein unless the Product fails to conform with the Limited Warranty, Buyer notifies EnOcean of the non-conformance during the Warranty Period, and Buyer is otherwise in compliance with these Terms.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PRODUCT IS PROVIDED ON AN „AS IS“ BASIS WITHOUT ANY WARRANTY WHATSOEVER, AND ENOCEAN AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, TITLE, NON-INFRINGEMENT, COURSE OF DEALING OR USAGE OF TRADE. BUYER ACKNOWLEDGES AND AGREES THAT ENOCEAN SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES MADE BY MANUFACTURERS OR ANY THIRD PARTY. ENOCEAN DOES NOT WARRANT THAT USE OF ANY EMBEDDED SOFTWARE WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
Before requesting repair or replacement of any Product or returning any Product for any reason, Buyer must notify EnOcean by sending an email to Customer Support in accordance with Section 16.2 specifying Buyer’s issue with the Product. If EnOcean authorizes Buyer to return the Product, Buyer must comply with EnOcean’s return merchandise authorization („RMA„) process for the Product. Unless otherwise specified by EnOcean, Buyer must prepay any and all shipping charges for Product returned to EnOcean. EnOcean will not accept collect shipments. Any Products returned to EnOcean by Buyer or any third party other than in accordance with this section may be refused by EnOcean, at its sole discretion. Any approval by EnOcean to reimburse Buyer for shipping and handling expenses for non-conforming Products will be limited to reasonable third-party expenses actually incurred and paid by Buyer on a standard delivery basis, notwithstanding any express delivery requested by Buyer.
Products shall not be used within any life support system, nuclear equipment or facility, aircraft navigation or communication systems, air traffic control systems, weapons systems, or other systems where malfunction can reasonably be expected to result in personal injury or death, without the prior written consent of EnOcean approving the specific use of the Product.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ENOCEAN BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, OR FOR ANY LOST PROFITS, LOST DATA, LOST GOODWILL, LOST BUSINESS, COST OF COVER OR COST OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THESE TERMS OR THE PRODUCTS, EVEN IF ENOCEAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENOCEAN’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THESE TERMS OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID TO ENOCEAN HEREUNDER FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM. ENOCEAN DISCLAIMS ALL LIABILITY OF ANY KIND OF ENOCEAN’S SUPPLIERS RESULTING FROM THESE TERMS OR THE PRODUCTS THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THESE TERMS. ANY CLAIMS OR ACTIONS ARISING FROM OR RELATED TO THESE TERMS OR THE PRODUCTS BROUGHT BY BUYER AGAINST ENOCEAN, IF AT ALL, MUST BE BROUGHT WITHIN ONE (1) YEAR FROM THE DATE WHEN THE CAUSE OF ACTION OCCURRED.
Buyer will defend, indemnify, and hold EnOcean and its affiliates, and each of their respective directors, employees, and agents, harmless from and against all claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys‘ fees) brought by third parties (including any distributor, installer or other direct or indirect customer of Buyer) resulting from or relating to: (a) any acts or omissions of Buyer or its direct or indirect distributors or installers, or any of their respective employees or agents, in marketing, selling, distributing, or installing the Products; or (b) any unauthorized representations, warranties, or guarantees made by Buyer or its direct or indirect distributors or installers, or any of their respective employees or agents, relating to the Products. Under no circumstances shall Buyer enter into any settlement that involves an admission of liability, negligence or other culpability of EnOcean or its affiliates or requires EnOcean or its affiliates to contribute to the settlement without EnOcean’s prior written consent. EnOcean and its affiliates may participate and retain their own counsel at their own expense.
These Terms shall be governed by and construed in accordance with the laws of the State of Utah, U.S.A., without regard to any conflicts of laws principles that would require the laws of another jurisdiction to apply. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Before resorting to formal dispute resolution in accordance with this section, EnOcean encourages Buyer to first contact EnOcean directly to seek a resolution by sending an email to EnOcean’s Customer Support in accordance with Section 16.2. Except as otherwise provided in Section 13.3, Buyer and EnOcean agree that any and all disputes or claims that may arise between Buyer and EnOcean relating in any way to these Terms, any Product or service provided hereunder, shall be resolved exclusively through final, binding and confidential arbitration (“Agreement to Arbitrate”) in Salt Lake City, Utah. The arbitration shall be conducted under JAMS Comprehensive Arbitration Rules and Procedures, as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.
Notwithstanding anything in these Terms to the contrary, to the extent Buyer has in any manner violated or threatened to violate any of EnOcean’s intellectual property rights, EnOcean may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of Utah, United States of America, and Buyer consents to the personal jurisdiction and exclusive venue in the state courts in Salt Lake City, Utah, U.S.A., or the United States District Court for the District of Utah. Furthermore, if the Agreement to Arbitrate is held invalid or unenforceable for any reason, Buyer consents to the personal jurisdiction and exclusive venue in the state courts in Salt Lake City, Utah, U.S.A., or the United States District Court for the District of Utah.
Buyer will at all times comply with all applicable laws and regulations, including: (a) obtaining and complying with all reports, licenses, permits and authorizations required to perform hereunder, (b) obtaining and complying with all licenses and approvals required under all applicable export and import control laws and regulations including those of the U.S. Department of Treasury’s Office of Foreign Assets Control and the U.S. Bureau of Industry and Security, (c) complying with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act 2010 and similar applicable laws, and (d) not engaging in any unfair trade practice. Products and technical data delivered under these Terms are subject to U.S. export control laws.
EnOcean will not be liable for any failure, delay, or default in delivery or performance, if caused by (each, a “Force Majeure Event”): an act of war, terrorism, or revolution, civil unrest, hostility or sabotage; act of God or nature; fire, accidents, or floods; epidemic or pandemic; electrical, internet, data center, or telecommunication outage, government ordered restriction or cessation of activity, or any requirements of law; supply chain issues and delays in supplies to EnOcean and any other event outside the reasonable control of EnOcean. Buyer acknowledges and agrees that EnOcean may cancel any unfulfilled order in whole or in part at its option, whereupon EnOcean will refund Buyer the price paid for the cancelled portion of the applicable order. If EnOcean is affected by a Force Majeure Event, if practicable, EnOcean will use commercially reasonable efforts to inform Buyer of any delays in delivery or performance.
Buyer must provide EnOcean with a current email and physical address to which EnOcean may give Buyer any notice required or permitted to be given under these Terms. EnOcean may give Buyer notice under this Agreement by: (a) sending a message to the email address associated with Buyer; or (b) sending or posting an electronic message to Buyer via the applicable EnOcean Service subscribed by the Buyer; or (c) personal delivery or overnight courier, such as FedEx or UPS; or (d) registered or certified mail.
Any notice required or permitted to be given under these Terms to EnOcean shall be in writing and shall be deemed duly given when delivered personally, sent by registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier service, to the address specified below for the EnOcean from whom Buyer has purchased the applicable Product or service.
| EnOcean Invoicing/ Contracting Entity | Address | Customer Support Email |
| EnOcean, Inc. | 8184 S Highland Dr Ste C5 Sandy, UT 84093 USA | support.NA@enocean.com |
| EnOcean Edge, Inc. | 8184 S Highland Dr Ste C5 Sandy, UT 84093 USA | edge.support@enocean.com |
Notices provided in accordance with Section 16.1 or 16.2, as applicable, shall be effective upon receipt, provided that: (a) if the day of receipt is not a Business Day, the first Business Day following the day of receipt shall be considered the effective date of the notice, and (b) notices sent by email will be effective upon the date of receipt (subject to clause (a) hereof) so long as no bounce-back or undeliverable message is received by the sending party.
Buyer shall not assign or transfer these Terms or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of EnOcean. Any assignment in violation hereof shall be void. These Terms constitute the entire agreement between EnOcean and Buyer, and supersede all previous communications, course of dealing representations and agreements, whether oral or written, between Buyer and EnOcean with respect to the subject matter hereof. The Terms may not be modified, supplemented, qualified, or interpreted except in writing signed by an officer of Buyer and EnOcean, and no course of dealing or usage of trade may be invoked to modify these Terms. The failure by EnOcean to enforce at any time any of the provisions in these Terms will in no way be construed as a waiver of such provisions. If any provision of these Terms is unenforceable as written, the unenforceable provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of these Terms. The term „including“ means „including without limitation“.
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