Terms and Conditions of Sale
The Parties Bosch Security Systems and Customer as defined agree upon the attached “General Terms & Conditions of Delivery” (herein referred to as “GTC”), with the following amendments (referred to as “Agreement”). In case of discrepancies or contradictions between the GTC and the ‘’ST Standard Customer Terms & Conditions of Sale’’, the ST Standard Customer Terms & Conditions of Sale shall prevail. This Agreement is applicable for the geographical coverage. Opportunities outside this region will be dealt with on case to case basis.
By acceptance of this Agreement, no other terms and conditions (whether contained in a purchase order or otherwise) shall be binding on Bosch Security Systems unless they are expressly agreed to in writing by Bosch Security Systems. The terms and conditions of the Agreement govern the sale of Products (as defined below) of Bosch Sicherheitssysteme GmbH or any of its affiliated companies (herein referred to as “Bosch Security Systems”) to direct Customers such as system integrator, certified dealer and distributor; (hereinafter referred to as “Customer”). This Agreement is not applicable for any indirect customers of Bosch Security Systems, such as end user or consumer; (hereinafter referred to as “End User”). End Users are all parties who have purchased the Product for their own needs (not for the purpose of resale).
Unless expressly withdrawn, the quotation of Bosch Security Systems is open for acceptance within the period stated therein, or when no period is stated within thirty (30) days only from the date thereof. Any order shall be subject to a confirmation in writing (including fax and e-mail) by Bosch Security Systems. The performance of any quote of Bosch Security Systems is conditional upon that no hindrances attributable to applicable national, US, EU or international rules of foreign trade law or any embargos or other sanctions exist. The Customer shall provide any information and documents required for export, transport and import purposes.
2. Order entry – confirmation - cancellation
After receipt of the order from the Customer, Bosch Security Systems will provide the Order Confirmation, containing information on the Products, the price, surcharges (if any) and the expected delivery date of the Products specified in the order. The Customer is not allowed to cancel orders or order lines without prior written consent of Bosch Security Systems. Costs related to order cancellations (amongst others make to order items) will be charged to the Customer.
3. Prices and surcharges
Unless otherwise agreed in writing, the price of the Products shall be the price set out in the published price list of Bosch Security Systems. Bosch Security Systems may communicate any modification of the price list.
Bosch Security Systems reserve the right to charge surcharges as specified within the Annual Price Agreement, in particular a small order charge or an express (air) freight charge or cross docking fee1 or document fee2 any other service charge for services requested by the Customer, like labelling or packaging or testing.
- Bosch ST offers default a daily shipment with multiple orders consolidated into one delivery (note) with combined packaging sent as one shipment to one ship-to address. If requested by the Customer we support back-to-back ordering by offering cross-dock support against a certain surcharge per order. This cross docking will provide order specific packaging including separate invoices and separate delivery notes against a defined surcharge per order regardless if consolidation took place or not.
- On request Bosch ST is able to send hardcopy documents by standard mail parcel services against a defined surcharge per parcel.
All technical information in relation to Products and their maintenance remains Bosch Security Systems property and, except where intended to serve as instructions for use or advertising matter, may not be utilized or copied, reproduced, transmitted or communicated to third parties without Bosch Security Systems prior written consent.
5. Trade terms
The latest edition of the Incoterms issued by the International Chamber of Commerce shall apply. Unless otherwise agreed, the prices are “Delivered at Place” (DAP Incoterms®2010) including packaging. DAP means that Bosch Security Systems delivers the Products placed at the disposal of the Customer by means of transport ready for unloading at the named place of destination. The Customer bears all risk of loss or damage to the Products from the time they have been delivered at the disposal of the Customer on the agreed unloading point.
The Products are carefully inspected and, where practicable, submitted to standard test at the factories before dispatch. If special tests in the presence of the Customer or his representative are required, these must be specified by the Customer at order entry and shall, if agreed by Bosch Security Systems, be made before dispatch; all costs connected with such tests will be charged to the Customer. In the event of any delay on the part of the Customer in attending such tests after fourteen (14) day’s notice that the Products are ready to be tested, the tests will proceed in the Customer’s absence and shall be deemed to have been made in his presence.
The Products shall be delivered to the Customer as set out in the relevant Order Confirmation, which shall specify whether the Products are to be delivered by Bosch Security Systems to the Customer or collected by the Customer from Bosch Security Systems.
In case of Incoterm FCA, the Customer shall collect the Products from Bosch's premises or such other location as may be advised by Bosch prior to delivery (the "Collection Location") within 3 Business Days of Bosch notifying the Customer that the Products are ready. If the Customer fails to take delivery of the Products, then Bosch Security Systems has the right to store the Products at Customer’s risk and cost until delivery takes place.
It is within the Customer’s financial obligation and responsibility to enable Bosch Security Systems to deliver the Products within 30 calendar days after the initial Order Confirmation. If this requirement has not been fulfilled within the before mentioned period, the reservation of the Products shall be lifted. Which implies a new delivery date will only be confirmed when before mentioned payment criteria are met.
8. Commercial returns
Bosch Security Systems is not obliged to accept any returns of Products other than a Product that is defective, subject to a recall or was not ordered in a Purchase Order by Customer. If a commercial return of a Product is agreed upon by Bosch Security Systems in writing by means of a return authorization notice, the Product shall be forwarded in accordance with Bosch Security Systems instructions; all Products returned must be consigned insurance and carriage prepaid by Customer and packed in their original unopened packing.
Products refusals at consignee do not constitute a commercial return authorization. Refused Products will be handled as unauthorized return. Unauthorized returns shall be subject to payment by the Customer. Transportation, taxes, duties and all other expenses incurred by Bosch Security Systems will be charged to the Customer. Authorization for each commercial return request is valid for 3 calendar weeks (i.e. 21 days after receiving the authorization number). The Products must have been shipped as defined in the return form. After this period the authorization for return automatically expires and returned Products will be handled as unauthorized returns.
On Customer request, Bosch Security Systems can also arrange the backward transportation for a return handling fee. All transportation costs including possible taxes and duties will be charged to the Customer.
The purchase price is payable at the moment of conclusion of contract (e.g. single order) or in advance. All amounts payable by the Customer under this Agreement are exclusive of value added tax. Except as otherwise agreed in writing, payment shall be effected as mentioned in the “Annual Price Agreement” without any deductions whatsoever. Bosch Security Systems is entitled to offset payments made against the oldest claim due.
In case of delayed payment
- Customer is in default, without any obligation for Bosch Security Systems of any warning or notice.
- Bosch Security Systems shall be entitled to charge default interest a certain percentage points above the base interest rate. The right to assert a claim on account of further damage is not excluded.
- Bosch Security Systems shall be entitled to demand immediate cash payment of all claims arising from the business relationship which are due and against which there is no defense.
- Pending or new orders of Customer will receive a credit hold status and will not be delivered for the time the Customer is in arrears.
- All costs, including administrative costs, judicial and extrajudicial costs are payable by Customer.
If the Customer fails to fulfill any agreement with Bosch Security Systems and/or if Bosch Security Systems - beforehand or after Order Confirmation - otherwise serious doubt exists about the payment capacity of the Customer, Bosch Security Systems is entitled to suspend its obligations under the Agreement until the Customer has provided (additional) surety for the performance of all agreements. The Customer shall only have the right to offset counterclaims insofar as the Customer’s counterclaims are undisputed, or ruled with res judicata effect by a court of law or are ready for a decision after pending suit. The Customer shall only be entitled to withhold payments to the extent that its counterclaims are undisputed, ruled with res judicata effect by a court of law or are ready for a decision after pending suit.
Bank Payment Guarantee
The fulfillment of Customer’s obligation under clause 9 relating to the Purchase Volume (as defined in Annual Price Agreement) shall be secured by a bank payment guarantee (“Bank Payment Guarantee”) [or first demand bank suretyship (“Bank Suretyship”)], substantially in the form attached hereto as “Bank Payment Guarantee Template’’, by a first class bank within the European Union to be delivered by the Customer to Bosch Security Systems not later than 10 days after the day of signing of the Agreement. The validity of the Bank Payment Guarantee [or Bank Suretyship] must be extended for the full term of the Agreement, plus 3 months.
Letter of Credit
The Customer shall, unless otherwise agreed upon, pay to Bosch Security Systems all amounts due hereunder in the currency as agreed upon out of a non-transferable and irrevocable letter of credit to which the prevailing Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce in Paris apply. The Customer shall arrange for the opening of the letter of credit by a first class bank in favor of the Bosch Security Systems, payable in cash, with and bearing the conformation of a bank within the European Union, acceptable to Bosch Security Systems, within twenty one (21) Days from the date of Bosch Security Systems order confirmation or prior to the delivery date, if the delivery date falls within said twenty one (21) day period. The letter of credit shall have a minimum validity equal to the delivery period and shall be extended upon Bosch Security Systems request. In case partial deliveries have been agreed upon the letter of credit shall provide for pro rata payments there under.
Claims on account of defects shall become time-barred after a period of 12 month. The foregoing provision shall not apply insofar as longer time bar periods are prescribed by mandatory law. The time bar period for defects commences upon delivery of the Product (date of transfer of risk). The Service Policies of Bosch Security Systems, available at Bosch Security shall apply to all products under the following brands: Bosch, Dynacord, Electro-Voice, RTS, and Telex (herein referred to as “Product”).
If Bosch Security Systems provides a voluntary product guarantee to End Users the guarantee period and related terms and conditions are described in a product guarantee statement available at Bosch Security under the service pages.
Any complaints of erroneous dispatch and/or apparent damage shall be made in writing within undue delay, but in any case not later than 7 days after receipt of the Products by the Customer.
Bosch Security Systems is liable to pay damages and compensation of abortive expenditure (hereinafter referred to as damages) on account of a violation of contractual and non-contractual obligations only in case of
- intent or gross negligence,
- in case of negligent or deliberate fatal injury, physical injury or injury to health,
- on account of assuming a quality or durability guarantee,
- in case of a negligent or deliberate breach of material contractual duties,
- on account of compulsory statutory liability pursuant to the applicable Product Liability Act or
- on account of any other compulsory liability.
The damages for a breach of material contractual duties are, however, limited to foreseeable damage, typical for the type of contract, except in the event of intent or gross negligence or on account of fatal injury, physical injury or injury to health or on account of assuming a quality guarantee.
Liability for damages exceeding that provided for in this clause 11 is excluded irrespective of the legal nature of the claim raised. This applies in particular to claims for damages arising from culpa in contrahendo (fault arising in conclusion of a contract), on account of other breaches of duty and to tort claims for compensation of property damage.
Insofar as liability for damages is excluded with respect to Bosch Security Systems, this also applies to the personal liability for damages of Bosch Security Systems ‘employees, representatives and of persons engaged by Bosch Security Systems in performance of obligations.
No change to the burden of proof to the detriment of the Customer is connected with the aforementioned rulings.
The Customer agrees to keep at all times strictly confidential any and all information concerning the technical, commercial and financial data in respect of the Products, including, without limitation, Software if applicable, and confidential data of Bosch Security Systems business and the contract (collectively “Confidential Information”), which may come to the knowledge of the Customer, and will return to Bosch Security Systems immediately upon first request all tangible Confidential Information. The Customer agrees (i) to use Confidential Information solely to the extent required to implement the Agreement, and (ii) to undertake all steps necessary to prevent any unauthorized use or disclosure of Confidential Information to any person and/or third party to whom such disclosure is not required to implement the Agreement.
Prices under this Agreement do not include applicable taxes or duties. Sales, use, excise or any other taxes will be added to the quoted price and will be shown as separate item on invoice. All taxes and duties shall be borne by Customer.
14. Export Control
Deliveries and services (contractual performance) shall be subject to the provision that there are no obstacles to performance due to national or international export control regulations, in particular embargos or other sanctions. The Customer undertakes to provide all information and documentation which is required for export and shipment. Delays due to export examinations or approval procedures render deadlines and delivery dates inapplicable. If necessary, approvals are not granted or if the delivery and service are not capable of being approved, the contract shall be considered not concluded with respect to the parts affected.
Bosch Security Systems has the right to terminate the Agreement without notice if such termination is necessary for Bosch Security Systems in order to comply with national or international legal provisions. In such event of termination, the Customer is excluded from raising a claim for any damage or other rights on account of the termination.
When passing on the Products delivered by Bosch Security Systems (hardware and/or software and/or technology and the respective documents, irrespective of the manner in which they are made available) and work and services performed by Bosch Security Systems (including technical support of all kinds) to third parties, the Customer must comply with the respectively applicable provisions of national and international (re-) export control law.
15. Term and termination right
This Agreement shall enter into force as of 1st January 2016 and shall continue to be in effect until 31st December 2016 unless terminated by either Party with three (3) month prior written notice. Thereafter, this Agreement shall be automatically extended for further one (1) year periods unless written notice is given by either Party three (3) month prior to the end of such period. In the event of the Customer’s acting in breach of contract, in particular in case of default of payment, Bosch Security Systems has the right, notwithstanding other contractual and statutory rights, to withdraw from the Agreement after expiry of a reasonable extended deadline. Bosch Security Systems has the right to withdraw from the Agreement without setting an extended deadline if the Customer suspends its payments or if the Customer files for insolvency proceedings or similar proceedings to be instituted with respect to its assets for debt settlement. Bosch Security Systems is also entitled to withdraw from the Agreement without setting an extended deadline if:
- The Customer’s asset position should deteriorate materially or threaten to deteriorate and, as a result, the performance of a payment obligation to us is jeopardized, or
- If the Customer is insolvent or over indebted.
After declaration of such withdrawal, the Customer shall immediately grant Bosch Security Systems or their agents, access to the Products to which Bosch Security Systems has retained title and surrender them. After respective notification in good time Bosch Security Systems may also otherwise market the Products to which Bosch Security Systems has retained title in order to satisfy due claims against the Customer. Statutory rights and claims shall not be restricted by the provisions contained in this clause 15.
16. Force Majeure
In the event of Force Majeure (as defined herein¬after) the party being delayed or damaged thereby shall inform the other party as soon as possible but in any event within seven (7) days after the start of such Force Majeure specifying the nature of the Force Majeure as well as the estimated duration thereof.
In the event the Force Majeure situation continues for more than thirty (30) days or is expected to last longer than thirty (30) days then a party is entitled to terminate this Agreement by simple notice in writing and without the other party being entitled to any claim for damages. Otherwise the parties’ rights and obligations will be suspended until renewed by a party in writing.
Force Majeure shall be understood to mean and include damage or delay caused by acts of God, acts or regu¬lations or decrees of any Government (de facto or de jure), natural phenomena, such as earthquakes and floods, fires, riots, wars, shipwrecks, freight embargoes, lockouts or other causes, whether similar or dissimilar to those enumerated above, unforeseeable and beyond the reasonable control of the parties and which prevent the total or partial carrying out of any obligation under this Agreement or purchase order.
17. Retention of title
17.1 Bosch Security Systems retain title to the Products delivered pending full performance of all claims to which Bosch Security Systems is entitled on the basis of the business relationship now and in future.
17.2 Insofar as maintenance and inspection work is required to the Products to which Bosch Security systems has retained title, the Customer must conduct such work punctually at its own expense.
17.3 The Customer is entitled to process the Products or connect them with other products within the due course of the Customer’s business. By way of security for claims of Bosch Security Systems set forth in clause 17.1 above Bosch Security Systems shall acquire joint ownership in the products created as a result of such processing or connection. The Customer hereby transfers such joint ownership to Bosch Security systems now already. As an ancillary contractual obligation the Customer shall store free of charge the Products to which Bosch Security Systems has retained title. The amount of our joint ownership share shall be determined by the ratio between the value of the Product (calculated in accordance with the final invoice amount including VAT) and the value of the product created by processing or connection at the time of such processing or connection.
17.4 The Customer shall be entitled to sell the Products in the normal course of business against cash payment or subject to retention of title. The Customer assigns to Bosch Security systems now already all claims in full together with all ancillary rights to which the Customer is entitled from the further sale of the Product, irrespective of whether the Product has been further processed or not. The assigned claims act as security for claims set forth in clause 17.1 above. The Customer is entitled to collect the claims assigned. Bosch Security Systems may revoke the rights of the Customer as set forth in this clause 17.4 if the Customer fails to duly comply perform its payment obligations with respect to Bosch Security Systems, in is in default of payment, suspends its payments or if the Customer files for insolvency proceedings or similar proceedings to be instituted with respect to its assets for debt settlement. Bosch Security Systems may also revoke these rights of the Customer pursuant to this clause 17.4 if the Customer’s asset position should deteriorate materially or threaten to deteriorate or if the Customer is insolvent or over indebted.
17.5 At request the Customer shall advise Bosch Security Systems immediately in writing of the parties to whom the Products to which Bosch Security Systems has retained title or joint title have been sold and of the claims to which the Customer is entitled on the basis of such sale and shall issue to us deeds officially authenticated at the Customer’s expense relating to the assignment of the claims.
17.6 The Customer is not entitled to effect any other disposals of the Products to which Bosch Security Systems has retained title or joint title or of the claims assigned to Bosch Security Systems. The Customer must notify Bosch Security Systems immediately of any attachments of or other impairments to the rights of products or claims belonging to Bosch Security Systems either in whole or in part. The Customer shall bear the entire costs which have to be expended in order to cancel the attachment of Bosch Security System retained property or security by third parties and to recreate the Product insofar as it is impossible to retrieve it from the third parties.
17.7 If the value of the security existing for Bosch Security Systems exceeds the amount of claims by a total of over 10 %, Bosch Security Systems shall release security to this extent at own discretion at the Customer’s request.
18. Intellectual property
18.1 Bosch Security Systems shall not be liable for claims arising from an infringement of third party intellectual or industrial property rights or copyright (hereinafter: “IPR”) if the IPR is or was owned by the Customer or by an enterprise in which the Customer holds, directly or indirectly, a majority of the shares or voting rights.
18.2 Bosch Security Systems shall not be liable for claims arising from an infringement of third party IPR unless at least one IPR from the property right family has been published either by the European Patent Office or in one of the following countries: Federal Republic of Germany, France, Great Britain, Austria or the USA.
18.3 The Customer must notify Bosch Security Systems immediately of (alleged) infringements of IPR and of risks of infringement in this respect which become known and, at request of Bosch Security Systems – insofar as possible – allow Bosch Security Systems to conduct the litigation (including non-judicial proceedings).
18.4 Bosch Security Systems is entitled, at own discretion, to obtain a right of use for a product infringing an IPR, to modify it so that it no longer infringes the IPR or to replace it by an equivalent substitute product which no longer infringes the IPR. If this is not possible subject to reasonable conditions or within a reasonable period of time, the Customer shall – insofar as the Customer allowed Bosch Security Systems to carry out a modification – be entitled to the statutory rights of rescission. Subject to the aforementioned preconditions Bosch Security Systems too shall have a right of rescission. Claims to recourse against Bosch Security Systems by the Customer shall only exist insofar as the Customer has not reached any agreements with its customer which are more far-reaching than statutory claims on account of defects, for instance accommodation agreements. Bosch Security Systems reserve the right to carry out the action at own disposal under the terms of sentence one of this clause 18.4 even if the infringement of the IPR has not been ruled on by a court of law with res judicata effect or recognized by Bosch Security Systems.
18.5 Claims by the Customer are excluded insofar as the Customer is responsible for the infringement of the IPR or if the Customer has not supported Bosch Security Systems to a reasonable extent in the defense against claims by third parties.
18.6 Claims by the Customer are also excluded if the Products were manufactured in accordance with the specifications or instructions of the Customer or if the (alleged) infringement of the IPR ensues from the use in conjunction with another product not stemming from Bosch Security Systems or if the Products are used in a manner which Bosch Security Systems were unable to foresee.
18.7 The obligation to pay damages in case of infringements of IPR is governed by clause 18 in all other respects.
18.8 Clause 18 apply mutatis mutandis to the time bar for claims based on infringements of IPR.
18.9 Further-reaching claims or claims other than those claims of the Customer governed by this clause 18 on account of an infringement of third party IPR are excluded.
If one of the provisions of these ST Standard Customer Terms & Conditions and the further contracts reached should be or become ineffective, this shall not affect the validity of the remainder of the ST Standard Customer Terms & Conditions. The contracting parties are obliged to replace the ineffective provision by a ruling approximating most closely the economic success intended by the ineffective provision.