GENERAL TERMS OF BUSINESS OF ROBERT BOSCH AG
(as of 1.1.2002)
1. Validity:
All deliveries and other services of Robert Bosch AG, hereinafter referred to as BOSCH, shall take place exclusively on the basis of these General Terms of Business. Varying rules, in particular the terms of business of contracting partners, shall only apply provided BOSCH has explicitly confirmed them in writing before contract conclusion. BOSCH shall not be obliged to oppose contract forms or terms of business of contracting partners, even if such terms of business declare their validity to be explicit conditions for contract conclusion. BOSCH declares that it is only prepared to contract on the basis of these General Terms of Business. These General Terms of Business shall apply both to this transaction and to all future transactions.
2. Offer and contract conclusion
2.1.
All offers shall be non-binding and subject to change without notice, and shall be subject to the reservation of delivery to BOSCH, inasmuch as BOSCH offers components that are manufactured by non-group third parties.
2.2.
Contracts shall not materialize until BOSCH has given its order confirmation in writing or until the goods have been delivered. In the latter case, the invoice shall also count as an order confirmation.
2.3.
The information relating to BOSCH services that appears in price lists, catalogues and advertising media does not constitute an offer and contains no information determining the performance.
The object of purchase offers only the certainty that can be expected on the basis of authorisation regulations, operational, installation and usage instructions, BOSCH regulations relating to the handling of the object of purchase (in particular in relation to any prescribed reviews), and other information.
2.4.
Verbal information, supplementary agreements and commitments shall only be valid provided BOSCH has confirmed its agreement to these in writing prior to contract conclusion or together with the order confirmation. BOSCH employees, with the exception of the fitters undertaking maintenance/repair work in the Junkers/thermoengineering division in relation to the repair/maintenance charges, and of sales staff holding a written collection authority, shall not have the right to take receipt of monies on BOSCH's behalf.
2.5.
Amendments or supplements to the agreement, including to these General Terms of Business, shall only be legally valid provided they are set down in writing. The same shall apply to any variation from this written form requirement.
2.6.
If import and/or export licences, foreign exchange approvals or similar approvals are required for performance of the contract, the contracting partner who is responsible for procurement shall be obliged to make all reasonable efforts to obtain the requisite licences or approvals in good time.
3. Prices:
3.1.
The BOSCH prices valid on the date of delivery, plus VAT at the statutory rate, shall be charged. Agreed prices shall apply subject to a change in prime costs of non-group third parties.
The details in relation to weight, dimensions, capacity, price, service and the like that are contained in catalogues, prospectuses, circulars, advertisements, illustrations and price lists and the like or that are evident from samples, shall only apply if explicit reference is made to them in the offer and/or the order confirmation.
3.2.
The prices specified shall be ex the central warehouse, excluding incidental, packaging, shipping and/or customs costs, that shall be invoiced separately. BOSCH reserves the right to alter the prices accordingly, if cost reductions or increases, in particular as a result of wage cost changes, e.g. due to collective agreement resolutions, or material price changes, should arise. Evidence of these shall be provided to the orderer upon request.
3.3.
Services, in particular installation, maintenance and/or repair work, and training, shall be charged on the basis of BOSCH's currently valid hourly rates for scheduled work.
4. Delivery:
4.1.
Delivery periods shall be non-binding and shall not commence until all the technical details of the order have been clarified. Delivery delays shall not therefore give the contracting partner the right to assert claims, irrespective of their legal title. BOSCH shall have the right to effect part deliveries. Operating problems and all events that are outside BOSCH's sphere of influence, in particular delivery delays on the part of upstream suppliers, shall give BOSCH the right to extend delivery periods or to cancel the contract, to the exclusion of warranty, avoidance on account of error and/or damages claims. This shall also apply if the events occur at a time when BOSCH is already in default.
4.2.
Transportation shall be at the expense and risk of the contracting partner, even in the case of part deliveries. This shall also apply if deliveries free of charge have been agreed.
Freight costs shall not be disbursed in advance. Transportation shall be via a carrier/haulage contractor of our choice, and we shall not be bound to arrange the cheapest shipment.
4.3
Risk shall transfer from BOSCH to the contracting partner at the time of delivery to the carrier, even in the case of merchandise that is delivered free to the construction site, unloaded, at BOSCH's expense.
4.4.
The merchandise shall only be insured in response to a written instruction by the contracting partner and for its account.
4.5.
Vienna shall be agreed as the contracting partner's place of performance, irrespective of the place of delivery and/or service and responsibility for any transport costs.
4.6.
In the event of export of the merchandise purchased, the contracting partner shall be obliged to arrange for necessary export and customs approvals and the like at its own expense. BOSCH shall not be liable for the admissibility of the export of the merchandise and its compliance with the regulatory and technical regulations of the country of import, nor for the fact that it is in line with the state of the art in the country of import. The contracting partner shall hold BOSCH harmless with respect to any shipping or customs expenses that may arise.
If the contracting partner fails to accept the merchandise or service provided in accordance with the contract at the contractually agreed location or at the contractually agreed time, and if the delay is not caused through an act or omission on BOSCH's part, then BOSCH may either call in the agreed price and demand performance, or else insist on payment of a reasonable withdrawal or cancellation charge. It is explicitly agreed that such a charge may be up to 50% of the value of the merchandise.
5. Warranty and liability:
5.1.
The contracting partner shall be obliged to immediately examine merchandise of which delivery is taken and services provided to ensure that they are not defective, and to also assert any defects immediately in writing, at the latest however within a week of receipt of the merchandise or provision of the service, subject otherwise to exclusion of the right to claim. Transport damage or deficiencies in quantity must be asserted in writing within 24 hours of delivery, subject otherwise to loss, including precise specification of the loss that has arisen and/or the number and precise product designation of the defective or missing merchandise. Complaints in relation to defects shall not give rise to partial or full retention of invoice amounts.
5.2.
The warranty period to consumers shall be 2 years, as laid down in the Consumer Protection Act, and shall otherwise be 6 months. It shall not be extended or interrupted by repairs or by attempted repairs, in particular if these take place outside the warranty period agreed hereunder. Any extension of the warranty period shall relate only to the repaired part. In the event of part deliveries, the warranty period shall commence at the time of delivery of the part concerned. This obligation shall only apply to defects that arise during a period of two years from delivery.
BOSCH must be granted the opportunity to check the defect asserted and to acknowledge it as such. BOSCH shall have the right to decide whether to make good the defect itself or to arrange for it to be made good by an authorised third party, and additionally to arrange to have the defective merchandise or the defective parts returned to it for repair, to repair the defective merchandise in situ, or else to replace the defective parts or the defective merchandise.
The warranty obligation shall only apply for defects that arise subject to adherence to the envisaged operating conditions and during normal use. Exceptions shall be defects that are due to poor set-up by the contracting partner or its agent, poor maintenance, poor repairs, or repairs undertaken without BOSCH's written approval, or changes effected by a party other than BOSCH or its agent, or to normal wear and tear.
The warranty shall not cover the elimination of defects that arise through external influences, operating defects or the operation of the contractual merchandise together with other equipment or accessories that do not originate from BOSCH, where their compatibility with the contractual merchandise has not explicitly been guaranteed.
BOSCH shall only be required to bear the costs of a fault repair undertaken by the contracting partner itself, provided such fault repair has been approved in writing by BOSCH in advance.
5.3.
In the event of a justified complaint in relation to a defect, BOSCH shall have the right to avert any price reduction claim via improvement or replacement delivery. In the case of an ongoing business relationship, BOSCH shall also have the right to issue a credit note for the purchase price.
5.4.
The contracting partner shall only have the right to arrange for a third party to repair the defect if BOSCH refuses to do so despite being set a reasonable period for this purpose.
No more extensive warranty claims, in particular for a price reduction, withdrawal and annulment, may be brought.
5.5.
Damages claims and claims for and arising out of avoidances through error, that result from any deficient delivery or service, shall be explicitly excluded, unless employees of BOSCH gave rise to such claims intentionally or through gross negligence.
Any damages claims of the contracting partner shall in any event be restricted to the simple net value of the merchandise or net charge for the service, and otherwise to a maximum amount of EUR 5,000.00. Liability for the contracting partner's lost profit shall in any event be excluded.
5.6.
If the contracting partner claims damages against BOSCH, then it shall be obliged to provide evidence both with respect to BOSCH's causal involvement and to its fault.
5.7.
The assignment of warranty and damages claims and the like shall be inadmissible.
5.8.
In the event of the assertion of warranty claims, the contracting partner must reimburse BOSCH a reasonable payment for use and compensation for the reduction in value of the service, at least 25% each of the agreed net purchase price or the agreed repair charge, plus the costs for return, transport and any handling costs, if the merchandise/service was usable or has been used by the contracting partner despite the defect.
5.9.
The contracting partner explicitly waives the right to assert damages claims for material damage caused under the terms of the Product Liability Act, that it suffers during its business. Inasmuch as the contracting partner sells on to other companies the merchandise that is the subject of the contract, it shall be obliged to require its contracting partner and any further corporate contracting partners to also accept such a waiver. Inasmuch as it fails to do so, the contracting partner shall be obliged to hold BOSCH harmless and to accept all costs arising in conjunction with such liability. If the contracting partner should in turn be held liable under the terms of the Product Liability Act, it waives any recourse against BOSCH.
5.10.
BOSCH's liability towards the contracting partner for consequential losses shall be excluded with respect to any kind of financial damage, in particular to lost profit.
5.11.
Within the meaning of Section 933 b of the Austrian General Civil Code (ABGB), the contracting partner shall have the right to have recourse against Bosch, however only if such a claim is asserted through the courts at the latest within 3 years of delivery.
5.12.
Plans, sketches, cost estimates and other technical documents, which may also be constituents of the offer, together with samples, catalogues, prospectuses, illustrations and the like shall remain BOSCH's intellectual property at all times. Any sale, copying, reproduction, dissemination and delivery to third parties, publication or demonstration shall require BOSCH's explicit approval.
6. Installation rules:
6.1.
The contracting partner must observe installation, operating and other technical regulations and information during use of the delivered merchandise. It shall also be obliged to inform any of its own contracting partners of their validity.
6.2.
BOSCH shall in particular accept no liability for losses of any kind that arise as a result of inappropriate treatment, operation, installation, fitting or the like. No liability or warranty shall be accepted in relation to compatibility with other products or systems or for a specific contractual purpose.
6.3.
Installation, maintenance and/or repair sites are to be kept accessible, failing which the contracting partner shall be in default in acceptance, whereupon the BOSCH claim shall fall due.
The scope of the warranty obligations towards the contracting partner, such as they would have applied in the event of the delivery of merchandise alone, shall not be altered in any way through commissioning of an item of equipment by BOSCH itself or by a company authorised by BOSCH.
6.4.
If the contracting partner desires an acceptance test, this is to be explicitly agreed in writing with BOSCH at the time of conclusion of the contract. If no differing rules have been laid down, then BOSCH may decide where this is to take place, either at the place of manufacture or at a location to be determined by BOSCH. This must in any event be undertaken during the normal working hours of BOSCH staff. The general practice of the industrial sector concerned shall be applied for the purposes of the acceptance test.
7. Reservation of ownership and right of retention:
7.1.
The merchandise shall remain our property until payment in full of all claims, irrespective of their legal basis, irrespective of whether they relate to this transaction or to earlier transactions. In the case of an open account, the reserved ownership shall act as collateral for the outstanding balance.
7.2.
The assertion of the reservation of ownership shall not require withdrawal, shall not be considered as withdrawal from the contract, and shall not release the contracting partner from its obligations, in particular from the obligation to pay the purchase price or a repair charge. Resale, processing or pledge, transfer of ownership by way of security or other disposal of the purchased or repaired merchandise to a third party shall be inadmissible whilst a reservation of ownership subsists. We must be immediately informed by the contracting partner of any change to BOSCH's legal status with respect to the merchandise that is subject to reservation of ownership, i.e. in particular of attachments or deteriorations in its condition. The contracting partner must reimburse all costs and measures intended to eliminate the intervention, in particular those associated with proceedings for restitution of third-party property. The contracting partner shall be obliged to ensure that the merchandise that is subject to reservation of ownership is kept in a fully resaleable condition whilst the ownership remains intact.
7.3.
If BOSCH asserts its reserved ownership, the contracting partner shall be obliged, irrespective of fault, to pay for any reduction in the value of the merchandise that is subject to reservation of ownership, plus a reasonable payment for its use.
7.4.
If the contract merchandise is sold to a third party despite the agreed reservation of ownership, then the contracting party hereby assigns to BOSCH by way of security all claims arising therefrom against its purchaser, up to the amount of the balance of any outstanding claim. The irrevocably declared assignment shall take effect if it is accepted within a year of the date on which the sale of the merchandise that is subject to reservation becomes known.
7.5.
If the contracting partner fails to comply with its obligations towards BOSCH, BOSCH shall have the right to call in the entire outstanding residual debt, even if a subsequent maturity date has been agreed with respect to individual invoices or a negotiated bill of exchange.
7.6.
In this case, BOSCH shall have the right to immediately request delivery of the sold or repaired merchandise, to the exclusion of any right of retention of the contracting partner.
After it has taken back the merchandise, BOSCH shall be obliged either to sell the goods or to credit the sales price realised, less its own expenses, to the contracting party, against its own outstanding obligations, or else to take back the merchandise at the invoice price less any reduction in value, and to debit the contracting partner a reasonable payment for the period of its use, at least however 25% of the purchase price or the agreed repair payment.
7.7.
For these outstanding claims, and also in order to secure claims arising out of other legal transactions, BOSCH shall have the right to retain the items handed to it for repair until settlement of all outstanding claims. BOSCH shall be exempted from its obligation to undertake warranty work for as long as the contracting partner is in arrears of payment.
8. Payment terms
8.1.
If no different payment date is stated in the order confirmation, invoices shall fall due for payment on the date of their receipt, without discount or other deductions. BOSCH shall have the right to only deliver goods against cash payment in advance, if the contracting partner is a new customer or if it should prove after contract conclusion that the contracting partner is not adequately solvent. This must in any event be assumed if the contracting partner's credit rating with the credit protection association is or exceeds Code 400.
8.2.
BOSCH shall have the right to credit payments against accrued interest, its own reminder costs, and third party collection and legal costs. Payments may also be credited against the oldest debt, even if they are earmarked otherwise by the contracting partner. Any differently worded comments, for example on payment vouchers, shall be invalid.
8.3.
In the event of default in payment, the contracting partner undertakes to pay default interest in the amount of 1% per month.
8.4.
The contracting partner further undertakes to bear our own reminder costs up to EUR 20.00 per reminder plus VAT, the reminder costs of any creditor protection association in accordance with the currently valid version of the ordinance of the Federal Minister for Economic Affairs in relation to the maximum rates of payments due to the collection institutions, Bundesgesetzblatt BGBl. [Federal law gazette] 141/1996, and the costs of lawyers who are involved, inasmuch as these were expedient and necessary.
8.5.
The contracting partner shall not have the right to offset against claims of any kind, if these have not been explicitly acknowledged in writing by BOSCH or finally determined in court.
8.6.
In the case of export transactions, the contracting partner shall be obliged to return the originals of all export and customs papers to BOSCH, failing which it shall be obliged to pay any prescribed duties.
8.7.
If there are several contracting partners, they shall be jointly liable.
8.8.
Notes on payment vouchers that do not originate from BOSCH shall not be read, due to the fact that these are processed electronically, and shall therefore be invalid.
9. Place of jurisdiction, choice of law
9.1.
Austrian law shall apply between the contracting parties, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
9.2.
If individual provisions of the General Terms of Delivery and Payment or of the other contract concluded with the contracting partner should be invalid, this shall not affect the validity of the remaining provisions of the contract. A provision that comes as close to the invalid provision and corresponds most closely to it shall apply in its place.
9.3.
The General Terms of Business shall apply to consumers (within the meaning of the Consumer Protection Act), inasmuch as no compelling rules of the Consumer Protection Act, Fed. law gazette no. 140/1979, oppose them.
9.4.
The court in Vienna with subject matter competence is agreed as place of jurisdiction for legal disputes between BOSCH and corporate contracting partners, with BOSCH however having the right to also institute legal proceedings with other courts which constitute a legal place of jurisdiction of the contracting partner.
9.5.
BOSCH shall have the right to store and process data relating to the contracting partner during the business, in accordance with the Data Protection Act.
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