Terms & Conditions
General Conditions Of Sale
V3d
Content
5 FORCE MAJEURE (EXCUSABLE DELAY)
8 PATENT AND COPYRIGHT INDEMNIFICATION
9 SOFTWARE LICENSE FOR EQUIPMENT-SPECIFIC SOFTWARE
10 BUYER’S ASSISTANCE OF SUPPLIER’S ON-SITE ACTIVITIES
11.1 Assignment of Receivables (Factoring)
11.4 Liability and Notification
14 DISCLAIMER AND LIMITATION OF LIABILITY
Definitions
In this document:
· “Supplier” means either Bohemia Market CZ s.r.o., BM Global a.s., or any of its Affiliates;
· “Agreement” means the binding contract formed between the Buyer and the Supplier;
· "Goods" means both tangible and intangible goods, including software and related documentation and packaging;
· “Intellectual Property Rights” (or “IPRs”) means patents, utility certificates, utility models, industrial design rights, copyrights, database rights, trade secrets, any protection offered by law to information, applications, renewals, extensions, combinations, divisions, continuations or reissues of any of the preceding or which otherwise arises or is enforceable under the laws of any jurisdiction or any bi-lateral or multi-lateral treaty regime;
· “Services” means the services to be performed by the Supplier for the Buyer under the Agreement;
· “Buyer” means each person or entity (including, where relevant, its AAiliates) that enters into the Agreement;
· “Work Product” means all deliverables (including future deliverables) and other data, reports, works, inventions, know-how, software, improvements, designs, devices, apparatus, practices, processes, methods, drafts, prototypes, products and other work products or intermediate versions thereof produced or acquired by the Supplier, its personnel or its agents for the Buyer in the performance of Services under the Agreement.
1 TAXES
Except as otherwise specified, the prices stated do not include any state, federal, or local sales, use, or excise taxes applicable to the sale, delivery, or use of equipment sold hereunder, including, as appropriate, associated software delivered with such equipment (Work Products).
The Buyer expressly agrees to pay the Supplier, in addition to the prices stated, the amount of any such taxes, domestic or foreign, which may be imposed upon or payable by the Supplier.
2 PURCHASE ORDER (PO)
The Buyer agrees that for each offer received from the Supplier, the Supplier must receive a Purchase Order (PO) and any payment in advance (see “3. PAYMENT TERMS below) from the Buyer by the dates specified in the offer for the Supplier to initiate any work on the delivery of the Work Product described in the offer.
If the Buyer fails to send the PO by the date specified in the offer, the Buyer agrees that any promises made by the Supplier in the offer regarding the date of any part of the delivery or for completing the delivery of the Work Product specified in the offer are forfeited, and that delivery of the Work Product will be given a lower priority by the Supplier and moved to an open Supplier delivery slot specified by the Supplier.
3 PAYMENT TERMS
Notwithstanding any statement of terms or time of payment to the contrary appearing on the face of the order, the Supplier reserves the right to require payment in advance of delivery.
Payment in advance must be made in full by the Buyer as specified in the offer —percent of offer value and final date of payment, for the Supplier to initiate any work on the delivery of the Work Product described in the offer.
If the Buyer fails to make the payment in advance in full as specified in the offer, the Buyer agrees that any promises made by the Supplier in the offer regarding the date of any part of the delivery or for completing the delivery of the Work Product specified in the offer are forfeited, and that delivery of the Work Product will be given a lower priority by the Supplier and moved to an open Supplier delivery slot specified by the Supplier.
Furthermore, if the Buyer fails to pay any invoice when due, in addition to any other right reserved hereunder, the Supplier reserves the right to suspend or limit performance until all past-due sums are paid.
Further, the Supplier reserves the right to charge interest at one and one-half percent (1.5%) per month or the maximum allowable by law, whichever is less, on any unpaid balance the Buyer owes from the date on which the outstanding balance was due to the Supplier.
It is agreed that title to any Work Product described herein not fully paid for at the time of delivery to the Buyer shall be retained by and remain with the Supplier until said purchase price is fully paid and if the purchase price is to be paid on an instalment basis, the Buyer will prior to the time of delivery execute a note, security agreement, and financing statement for such purchase price, all upon forms customarily used by the Supplier in similar transactions.
4 DELIVERY
Unless otherwise specified, delivery will be made DAP (Incoterms 2010) to the Buyer’s named location, according to the delivery schedule established.
Cancellation or rescheduling of the delivery by the Buyer may be subject to additional charges by the Supplier.
5 FORCE MAJEURE (EXCUSABLE DELAY)
The Supplier shall not be liable for default or for delay in deliveries due to causes beyond its control and without its fault or negligence, including but not limited to inability to obtain material, labour or manufacturing facilities, acts of God, or the public enemy, any preference, priority or allocation order issued by the Government, changes in applicable law or any other act of Government, fires, floods, unusually severe weather, epidemics, quarantine restrictions, strikes, freight embargoes, or delays of the Supplier’s suppliers. In the event of such delay, delivery dates shall be extended accordingly for a period equal to the time lost because of such delay.
The Supplier shall use its reasonable efforts to remove the cause of the delay, resume work as soon as possible, and mitigate delivery schedule delay.
In no event shall the Supplier be liable for any damages.
The Supplier reserves the right to provide, at no change in price, a substitute Work Product of equal or better capability provided, however, that such substitute Work Product maintains the form, fit, and functionality of the original Work Product.
6 SHIPMENT AND RISK OF LOSS
In the absence of a specific agreement, the Supplier will select the carrier to whom delivery will be made for shipment to the Buyer, except for its obligations under the sections hereof entitled "Warranty" and "Patent and Copyright Indemnification," all responsibility of the Supplier, including but not limited to the risk of loss for all items purchased hereunder by the Buyer, shall pass to the Buyer as per agreed INCOTERMS.
The Buyer shall make all claims for Work Products damaged or lost in transit to the carrier.
7 WARRANTY
The Goods sold and delivered hereunder are subject to the following warranties:
· The Supplier agrees to repair or replace, in coordination with the Buyer, without charge, any such hardware which is defective as to design, function, or material, and which is returned to the Supplier at its factory, transportation prepaid, provided:
o Notice of the claimed defect is given to the Supplier within one (1) year from the delivery date.
o Software shall not be deemed defective if the software or the host medium is exposed to any computer virus or condition exceeding those published in the applicable specification(s).
o The warranty stated in this Section 7(a) shall be void if such equipment is altered or repair is attempted or made by other than the Supplier or the Supplier’s authorized service center.
· The Supplier warrants that any software delivered hereunder, either embedded in equipment described herein or designed explicitly for use in or with such equipment, will substantially provide the functions(s) outlined in the applicable specification. The supplier will, at its option, without charge, revise or replace such nonconforming software provided:
o Notice of the claimed defect is given to the Supplier within one (1) year from the delivery date.
o Software shall not be deemed defective If the software or the host medium is exposed to any computer virus or condition in excess of those published in the applicable specification(s).
o The warranty stated in this Section 7(b) shall be void if such equipment is altered or repair is attempted or made by other than the Supplier or the Supplier’s authorized service center.
NO OTHER WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL BE APPLICABLE TO ANY EQUIPMENT SOLD, OR SOFTWARE DELIVERED HEREUNDER, AND THE PRECEDING SHALL CONSTITUTE THE BUYER’S SOLE RIGHT AND REMEDY UNDER THIS GENERAL CONDITIONS OF SALE.
8 PATENT AND COPYRIGHT INDEMNIFICATION
The Supplier agrees that it will defend, at its own expense, all suits against the Buyer for infringement of any patent or copyright covering, or alleged to cover, the Work Product described herein in the form sold by the Supplier, and the Supplier agrees that it will pay all sums which, by final judgment or decree in any such suits, may be assessed against the Buyer on account of such infringement, provided that the Supplier shall be given (i) immediate written notice of all claims of any such infringement and any suits brought or threatened against the Buyer and (ii) authority to assume the sole defense thereof through its counsel and to compromise or settle any suits so far as this may be done without prejudice of the right of the Buyer to continue the use, as contemplated, of the Work Product so purchased.
If in any such suit so defended, the Work Product is held to constitute an infringement and its use is forbidden, or if in the light of any claim of infringement, the Supplier deems it advisable to do so, the Supplier may either procure the right to continue the use of the same for the Buyer, or replace the same with a non-infringing Work Product, or modify said Work Product to be non-infringing or, if the preceding options are not reasonably available, take back the infringing Work Product and refund the purchase price less a reasonable allowance for use, damage or obsolescence.
9 SOFTWARE LICENSE FOR EQUIPMENT-SPECIFIC SOFTWARE
Software delivered hereunder, either embedded in equipment described herein or designed explicitly for use in or with such equipment, is copyrighted by the Supplier and shall remain the sole and exclusive property of the Supplier.
The Supplier grants the Buyer a perpetual, worldwide, non-exclusive license to use the software only in or with the equipment.
The Buyer shall not copy, modify, or disassemble the software or permit others to do so.
The Buyer shall not transfer the license granted at this moment or possession of the software except as part of or with the equipment, such transfer being subject to the restrictions contained herein.
The Supplier may terminate this license upon written notice for violation of any of the preceding license terms.
10 BUYER’S ASSISTANCE OF SUPPLIER’S ON-SITE ACTIVITIES
Wherever a sale of Goods and/or Services requires the Supplier to perform activities on the Buyer’s site, the Buyer shall support the Supplier in the preparation and execution of these activities as generally expected in such scenarios.
This support includes but is not limited to, obtaining the appropriate visas, access to the site, site work permits, and authority approvals.
11 FACTORING & FINANCING
11.1 Assignment of Receivables (Factoring)
The Supplier reserves the right to assign its receivables to a third-party financial institution through a factoringarrangement. This means that the Supplier may transfer its right to receive payments from the Buyer to a factoring company or financial institution to optimize cash flow and financial management.
Upon such an assignment, the Buyer shall be formally notified in writing, including specific payment instructions. From the date of notification, all payments related to the assigned receivables must be made exclusively to the designated factoring institution’s account. Payments made to any other account shall not be considered a valid discharge of the Buyer’s obligations under this Agreement.
11.2 Buyer’s Obligations
The Buyer acknowledges that the assignment of receivables does not alter the original contractual terms between the Buyer and the Supplier, except for the payment terms, which will be governed by the factoring arrangement. The Buyer remains fully responsible for fulfilling all obligations under this Agreement, including timely payment, regardless of the factoring assignment.
If the Buyer disputes any invoiced amounts, such disputes must be addressed directly with the Supplier. However, such disputes do not suspend or negate the Buyer’s obligation to make payments to the factoring institution as instructed.
11.3 Financing Arrangements
The Supplier may, at its discretion, offer financing options to the Buyer through third-party financial institutions. Such financing arrangements, if available, shall be offered as an alternative to the Supplier’s standard upfront payment terms and will be subject to separate agreements between the Buyer and the designated financing entity. The Supplier’s contracted financial institution might refuse to provide factoring services for any particular project at its discretion, in which case upfront payment is the fallback scenario.
11.4 Liability and Notification
The Supplier shall not be liable for any actions taken by the factoring or financing institution concerning the collection, enforcement, or administration of receivables. The Supplier will provide the Buyer with reasonable notice of any factoring or financing arrangement, including the identity of the involved financial institution and relevant payment details.
The Buyer agrees to acknowledge the assignment in writing if required by the factoring or financing institution and to comply with any reasonable administrative requirements necessary for processing payments under such arrangements.
12 GOVERNING LAW
This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by, the laws of the Czech Republic, specifically excluding the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
The Buyer agrees to abide by all applicable laws and export regulations, including without limitation those applicable to re-export.
The Buyer shall apply for the necessary and appropriate export licenses when required by such laws or regulations.
The Supplier shall, at no charge to the Buyer, promptly provide reasonable support and documentation if needed for such export license application.
13 NO WAIVER
No failure by either party to exercise and no delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or privilege hereunder preclude further exercise of the same right or the exercise of any right hereunder.
A waiver on one or more occasions of any of the provisions hereof shall not be deemed a continuing one.
14 DISCLAIMER AND LIMITATION OF LIABILITY
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL THE SUPPLIER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE ANY WORK PRODUCT, EQUIPMENT OR ASSOCIATED SOFTWARE DESCRIBED HEREIN EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER WORK PRODUCT, EQUIPMENT, SOFTWARE OR OTHER MATERIALS EVEN IF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES.
THE SUPPLIER SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF THE SUPPLIER HEREUNDER.
THE SUPPLIER’S TOTAL AGGREGATE LIABILITY HEREUNDER, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR WORK PRODUCTS SOLD HEREUNDER.
15 ENTIRE CONTRACT
These General Conditions of Sale shall comprise the exclusive terms, conditions, and agreements of the parties respecting the sale of Work Products described herein and supersede any provisions on the face and reverse side of the Buyer’s order or any prior agreement inconsistent with the provisions hereof.
Acceptance by the Buyer of such Work Products covered hereunder shall, absent a contrary agreement in writing signed by the Supplier, constitute acceptance of these General Conditions of Sale.
The invalidity of the whole or in part of any provisions hereof shall not affect the validity of any other provision.
The headings of the sections herein have been inserted for the convenience of reference only and shall not affect the interpretation of any of the provisions hereof.