Information about offers and prices, delivery terms, packaging, payment, arrears, taxes, force majeure, guarantees, intellectual property, limitation of liability and compliance with the law.
Unless otherwise agreed in writing, the following terms and conditions apply without exception to all sales by Ademco CZ s.r.o., with a registered branch Ademco CZ s.r.o. - Security Products o.z. (“Supplier”) to Buyer.
SOLE TERMS.Supplier’s sale is expressly limited to the terms herein and any additional or different terms or conditions on Buyer's purchase order or any other contract or arrangement in the form of telephone communication, e-mail, fax, etc. are completely replaced by the Parties with these Terms and Conditions, which are the sole binding document for the Buyer's purchase order. By sending a purchase order or by accepting a delivery, the Buyer expressly agrees with those conditions unreservedly and unconditionally.
QUOTE/ PRICES.Supplier may change the prices and specifications of all goods at its sole discretion and without any notice, with the exception that Supplier's quotation is firm only if Buyer enters an order within the time specified on the quote or, if none be mentioned, 30 days. Unless explicitly stated, prices do not include installation, start-up, commissioning or maintenance. All tooling, designs, drawings, and other intellectual property produced or delivered hereunder are owned by the manufacturer of the relevant goods. If, at any time, Supplier’s costs of materials have increased by 5% or more, then Supplier may increase the price on all affected goods accordingly with respect to existing and future Supplier quotations and/or Buyer purchase orders. The Supplier shall inform the Buyer about such an increase in the purchase price. If the Buyer does not withdraw from the relevant contract within 3 days, it is assumed that it agrees with the increase.
PAYMENT.Unless otherwise stated by Supplier, all payments are to be in Czech Koruna (CZK) if Buyer is invoiced in the Czech Republic or euro (EUR) if Buyer is invoiced outside of the Czech Republic and are due in Supplier’s account within 14 days from date of invoice. Supplier at all times reserves the right to evaluate Buyer’s credit standing, and, if Buyer fails to qualify for credit under Supplier’s criteria, Supplier may modify or withdraw credit terms without notice and require guarantees, security or payment in advance for further deliveries of goods. If any invoices remain unpaid after their due date, Supplier may refuse to make further deliveries and the invoices will be subject to an interest charge of 7% per year above the actual interest rate of Czech National Bank. Buyer will pay all costs of collection on unpaid amounts, including attorneys’ fees.
DELIVERY.Delivery terms are EXWORKS (Incoterms 2010) Supplier’s facility with all risk of loss or damage to goods passing to Buyer upon making the goods available to carrier for shipment. All delivery dates are estimates unless agreed otherwise by Supplier in writing. Any claims for shortage must be reported in writing to the Supplier immediately after receiving the goods, within 7 days of the date of acceptance of the goods, otherwise all goods will be deemed delivered and accepted without any defects. Buyer shall be liable for any delays or increased costs incurred by Supplier caused by or related to Buyer’s acts or omissions. Title to the goods shall pass to Buyer when it has paid the full price for the goods, and until such time as full payment is made, Buyer shall comprehensively insure the goods for the benefit of Supplier, keep them free from all charges and security interest and give appropriate notice of reservation of ownership to third parties.
TAXES.The amount of any and all applicable taxes will be added to the price and paid by Buyer, unless Buyer has provided Supplier with exemption certificates acceptable to the taxing authorities.
FORCE MAJEURE.Supplier is not liable for any delay in production or delivery of goods if due to a force majeure event, which includes, among other things, , inability or refusal by third party suppliers to provide Supplier goods, parts, services, manuals or other information necessary to the goods to be delivered, delays or refusals to grant an export license or the suspension or revocation thereof, or any other acts of any government that would limit Supplier’s ability to perform, fire, earthquake, flood, severe weather conditions, or any other acts of God, quarantines, epidemics, pandemics or other regional medical crises, labour strikes or lockouts, riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war (or imminent threat of same), or any other cause whatsoever beyond Supplier's reasonable control. If the force majeure event continues for longer than 90 days, either party may terminate Buyer’s purchase order and Buyer will pay Supplier for work performed prior to termination and all reasonable expenses incurred by Supplier as a result of such termination. In the event of delays in delivery or performance caused by force majeure or Buyer, the date of delivery or performance shall be extended by the period of time Supplier is actually delayed or as mutually agreed. If, for reasons other than the foregoing, Supplier should default or delay or not deliver goods, Buyer's sole remedy against Supplier is an option to cancel Buyer’s purchase order, through prior written notice to Supplier. Supplier may make deliveries under any order in one or more shipments.
TERMINATION.No Buyer purchase order may be terminated without Supplier’s prior written consent. If Supplier does consent, Buyer is nonetheless, liable for termination charges, which may include (a) a price adjustment based on the quantity of goods delivered, (b) all costs, direct and indirect, incurred and committed for Buyer's terminated purchase order, (c) the full cost of all unique materials required for custom goods, and (d) a reasonable allowance for prorated expenses and anticipated profits consistent with industry standards. The Supplier may change the terms of delivery, i.e. the form of payment of the purchase price, delivery date, etc. upon Buyer’s breach of these terms and conditions or Buyer’s bankruptcy, insolvency, dissolution, or receivership proceedings. The Buyer shall be informed of such a change.
COMPENSATION FOR LOSS DUE TO INFRINGEMENT OF RIGHTS.
(a) Supplier agrees to (i) defend or settle any claim, suit, or proceeding brought against Buyer based solely upon a claim that any goods manufactured by affiliates of Supplier and provided solely by Supplier under these terms directly infringe intellectual property of a third party, and (ii) to pay costs and damages finally awarded to the third party, provided that: (A) Supplier is notified promptly in writing of such claim, (B) Supplier is provided sole control of such defence or settlement using counsel of Supplier’s choice, and (C) Buyer provides Supplier with all available information and assistance. Because Supplier has exclusive control over resolving infringement claims under these terms, in no event will Supplier be liable for Buyer’s attorneys’ fees, if any. Supplier shall have no liability in respect of any such claims that relate to goods that are not manufactured by an affiliate of Supplier, but Supplier will make available to Buyer any indemnity given by the manufacturer of such goods to the extent that Supplier has the right to such indemnity.
(b) Supplier shall not be responsible for any settlement or compromise of any such third party claim made without Supplier's written consent. Supplier has no obligation and this Section 8 will not apply to any claim of infringement of any intellectual property right of a third party (i) by goods not manufactured by an affiliate of Supplier, (ii) by the combination of any goods with other elements if such infringement could have been avoided but for such combination, (iii) by goods that have been modified if such infringement would have been avoided by the unmodified goods, (iv) by goods not used for their ordinary purpose, or (v) by software if such software is other than the latest version of the software released by the relevant affiliate of Supplier. Buyer agrees to defend, indemnify, and hold harmless Supplier from and against any claims, suits, or proceedings whatsoever arising from such exclusions identified in this Section 8 (b).
(c) At any time after a claim has been made or Supplier believes is likely to be made, or a court of competent jurisdiction enters an injunction from which no appeal can be taken, Supplier will have at its option the discretion to (i) procure for Buyer the right to continue using such goods, (ii) replace or modify such goods, or (iii) accept the return of such goods and refund the purchase price less 20% annual depreciation from shipment date. The foregoing states Supplier’s entire liability and Buyer’s exclusive remedy for any actual or alleged infringement of intellectual property rights. This section 8 is in lieu of and replaces any other express, implied or agreed warranty relating to the aforementioned infringements.
SOFTWARE.Software, whether sold separately from the goods or installed on a good, is governed by the following terms unless a software license agreement is included with such software. Buyer may only transfer its license of the software to a third party in conjunction with the sale by Buyer of the good on which the software is installed or the re-sale of the separate item of software as part of its distribution or product installation business. Software is hereby licensed and not sold. Subject to Buyer’s compliance with these terms and conditions, and save as provided above, Supplier grants a personal, limited, nonexclusive license to use the object code of the software solely for Buyer’s internal purposes. The license is limited to such goods and/ or location(s) (if any) as are specified on Buyer’s purchase order for which this instrument serves as either a quotation or acknowledgment. No other use is permitted. Supplier retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder, all of which contains confidential and proprietary information and which ownership includes, without limitation, all rights in patents, copyrights, trademarks, and trade secrets. Buyer shall not attempt any sale, transfer, sublicense, reverse compilation, disassembly, or redistribution of the software except as expressly permitted herein. Nor shall Buyer copy, disclose, distribute, or display any such software, or otherwise make it available to others (except as Supplier authorizes in writing) or allow any unauthorized use of the software. Supplier may at any time terminate this license with immediate effect if Buyer defaults under these terms and conditions.
Supplier warrants that the goods shall in all material respects be free of defective materials and faulty workmanship and conform to the manufacturer’s applicable specifications and/or drawings, for a period of 24 months from the delivery date, or such other period as Supplier shall have notified the Buyer in writing, or which is stated in the Supplier’s product catalogue, packing list, invoice or on a separate warranty statement. Buyer shall have the right to return goods that are non-compliant within the warranty period at its expense. If the Buyer does not immediately choose the direct method of resolving the complaint, the Supplier shall make the appropriate selection. The Supplier reserves the right to change the method of resolving the complaint selected by the Buyer, if the proposed solution is substantially disproportionate to the value of the complaint in question. In the event of a material defect, i.e. a defect, due to which the goods cannot be used at all, the Supplier may replace or repair the goods, refund part of the purchase price corresponding to the price of the claimed goods in the form of credit or grant a discount on the purchase price in the form of credit. In the case of a minor defect, which means all defects that are not essential, the Supplier shall repair or replace the Goods or give a credit for the price of the goods. The goods will be shipped back to the Buyer at lowest cost, transportation prepaid. No goods will be accepted for a complaint without an authorization number (RMA) obtained in advance of shipment to Supplier. The Supplier accepts no responsibility for any product programming or data on any goods that are returned under warranty. The Supplier’s process for handling products that are returned under warranty is available on request from the Supplier. Replacement or repaired goods will be warranted for the remainder of the warranty period originally applicable to the returned good, plus the time it takes to repair or replace the good. Notwithstanding the foregoing, goods subject to contamination, wear and tear or burnout through usage shall not be deemed defective because of such contamination, wear and tear or burnout. No warranty shall apply if, in the sole opinion of Supplier or the manufacturer, the defect or damage was caused by or related to installation, combination with other parts and/or products, modification to or repair of any goods other than by Supplier, or resulted from Buyer’s acts, omissions, misuse, or negligence. The warranty shall also not apply if warranty labels, serial numbers or batch identification numbers have been damaged. As the Supplier is a distributor of products manufactured by third parties, the Supplier’s liability for the warranties and indemnities in respect of the goods shall be no greater than that accepted by the manufacturer of the goods.
Software, whether sold separately from the goods or installed in the goods will, be furnished on a medium that’s free of defect in materials or workmanship under normal use for so long as the hardware and/or system is under warranty. During this period, Supplier will replace without charge any such medium it finds defective. As for the quality or performance of any software or data, they are supplied in aggregate in accordance with Section 1918 of the Civil Code.
If Supplier provides any services to the Buyer, including but not limited to training or assistance with configuration and installation of the goods, Supplier shall provide such services in accordance with reasonable industry practice at such rates as may be specified by Supplier in its price list from time to time. Supplier accepts no liability to the Buyer arising out of the provision of such services unless the Buyer has paid for such services, in which case the Supplier warrants the services to have been provided in accordance with reasonable industry practice for a period of 6 months from the date of performance.
These warranties and conditions are sole and exclusive and no other warranties and obligations of any kind, express or implied, including those of satisfactory quality and fitness for particular purpose, shall apply to the goods. It is Buyer’s responsibility to ensure that the goods are fit for the application in which they are used. Supplier does not represent or warrant that the goods may not be compromised or circumvented or that the goods will prevent any personal injury or property loss, burglary, robbery, fire or otherwise; or that the goods will in all cases provide adequate protection. Buyer understands that a properly installed and maintained alarm may only reduce the risk of burglary, robbery, fire or other events occurring without an alarm sounding, but it is not an insurance or guarantee that such will not occur or that there will be no personal injury or property loss as a result.
These warranties are for the benefit of the Buyer only and are not assignable or transferable.
LIMITATION OF LIABILITY.
a) Supplier shall not be liable for (i) any indirect, incidental, consequential loss; (ii) any loss arising from business interruption; (iii) loss of profits; (iv) loss of revenue; (v) loss of use of any property or capital; (vi) loss of anticipated savings; or (vii) loss of data. Supplier shall not be liable for any loss or damage where that liability arises as a result of its knowledge (whether actual or otherwise) of the possibility of any such loss or damage.
b) Supplier’s liability in respect of any purchase order, or otherwise under these terms and conditions or caused under the contract or in connection with the contract, from its performance or non-performance, from the manufacture, sale, delivery, resale, repair, or use of any goods, software, and service provided by Supplier under or in connection with the contract, shall in no case exceed the contract price of the specific goods or services that give rise to the claim.
c) These exclusions and limitations on damages shall apply regardless of how the loss or damage may be caused and against any theory of liability, whether based in contract, tort, indemnity or otherwise.
d) Neither party seeks to exclude or restrict its liability for: (i) death or personal injury resulting from negligence; (ii) fraud; or (iii) any matter in respect of which, by law, it is not permitted to restrict its liability under the laws of the Czech Republic.
e) The Buyer shall indemnify Supplier against claims, damages, losses, costs and expenses incurred by Supplier as a result of either claims made against Supplier by third parties arising out of the combination or use of the goods with any incompatible ancillary products that may be connected to the goods or any other matter for which Supplier would not be liable to Buyer under these terms and conditions.
RECOMMENDATIONS.Any recommendations or assistance provided by Supplier concerning the use, design, application, or operation of the goods shall not be construed as representations or warranties of any kind, express or implied, and such information is accepted by Buyer at Buyer’s own risk and without any obligation or liability to Supplier. It is the Buyer’s sole responsibility to determine the suitability of the goods for use in the Buyer’s application(s). The failure by Supplier to make recommendations shall not give rise to any liability to Supplier.
a) Buyer will comply with all applicable laws, regu¬lations, and ordinances of any governmental authority in any country having proper jurisdiction, including, without limitation, those laws of the United States or other countries that regulate the import or export of the goods provided by Supplier and shall obtain all necessary import/export licenses in connection with any subsequent import, export, re-export, transfer, and use of all goods, technology, and software purchased, licensed, and received from Supplier. Unless otherwise mutually agreed in writing, Buyer agrees that it will not use the goods in connection with any activity involving nuclear fission or fusion, any use or handling of any nuclear material, or any nuclear, chemical, or biological weapons.
b) Goods and services delivered by Supplier hereunder will be produced and supplied in compliance with all applicable laws and regulations applicable in the Czech Republic. Buyer confirms that it will ensure that all goods are properly installed and used in accordance with applicable laws and more precisely with Part five of the Labour Code, and Buyer will indemnify Supplier in respect of any costs, claims, actions or liability arising out of these laws, or otherwise arising out of the supply by Buyer or use by others of the goods.
PRECLUSION AGAINST SETOFF.Buyer shall not set off any invoiced amount against any amount due or to become due from Supplier to Buyer or its affiliates.
a) Prices do not include the costs of recycling goods covered by the European WEEE Directive 2002/96/EC and such costs may be added to the prices quoted.
b) Unless a charge has been made therefore under section 15 a) above, if the provisions of the WEEE Directive 2002/96/EC as implemented in any local jurisdiction apply to goods, the financing and organisation of the disposal of the waste electrical and electronic equipment are the responsibility of the Buyer who herewith accepts this responsibility, and Buyer will indemnify Supplier in respect of all such liabilities. The Buyer will handle the collection, processing and recycling of the goods in accordance with all applicable laws and regulations, and shall pass on this obligation to the final user of the goods. Failure by the Buyer to comply with these obligations may lead to the application of criminal sanctions in accordance with legal regulations.
APPLICABLE LAW.These terms and conditions are governed by the Czech law, excluding its provisions on conflict of laws. These terms and conditions are excluded from the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto. The Czech courts will have exclusive jurisdiction to adjudicate any dispute related to these terms and conditions.
INDEMNIFICATION.Buyer shall indemnify Supplier for all costs and damages, including attorneys’ fees, suffered by Supplier as a result of Buyer’s breach of these terms and conditions.
The parties may exchange business secrets (“confidential information”) during the performance or fulfilment of any purchase order. All confidential information shall remain the property of the disclosing party and shall be kept confidential by the receiving party for a period of 10 years following the date of disclosure. These obligations shall not apply to information which is: (a) publicly known at the time of disclosure or becomes publicly known through no fault of recipient, (b) known to recipient at the time of disclosure through no wrongful act of recipient, (c) received by recipient from a third party without restrictions similar to those in this section, or (d) independently developed by recipient. Each party shall retain ownership of its confidential information, including without limitation all rights in patents, copyrights, trademarks and trade secrets. A recipient of confidential information may not disclose such confidential information without the prior written consent of the disclosing party, provided that Supplier may disclose confidential information to its affiliated companies, employees, officers, consultants, agents, and contractors.
These terms and conditions (including those stated on the face hereof) constitute the entire agreement of Supplier and Buyer, superseding all prior agreements or understandings, written or oral, and cannot be amended except by a mutually executed writing. Buyer may not assign any rights or duties hereunder without Supplier's written prior consent. Supplier may subcontract its obligations hereunder without Buyer’s consent. No representation, warranty, course of dealing, or trade usage not contained or expressly set forth herein will be binding on Supplier. Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of these terms and conditions. Except for application of provisions of the Commercial Code on prescription, no failure by Supplier to enforce the provisions hereof shall be construed as a waiver of such provision or of the right of Supplier to enforce thereafter each and every provision. In the event any provision herein is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions shall not be affected and, in lieu of such provision, a provision as similar in terms as may be legal, valid, and enforceable shall be added hereto. Provisions herein which by their very nature are intended to survive termination, cancellation, or completion of Buyer’s order after acceptance by Supplier shall survive such termination, cancellation, or completion. All stenographic and clerical errors are subject to correction. These terms and conditions shall confer no benefit on any third party.
LANGUAGE.The Czech language version of these terms and conditions will prevail in case of conflict with any translations provided for convenience purposes.