Bosch Rexroth Corporation, United States
04.2026 Standard Terms & Conditions of Sale
Replaces: 04.2024 release and RA 09 859 all releases
1 DEFINITIONS AND SCOPE.
1.1 Definitions.
In these Standard Terms (as defined below), “BRUS” means Bosch Rexroth Corporation and “Customer”
means you, the customer to whom BRUS is providing Products, Software, Prototypes and/or Services (as
each such term is defined below) subject to these Standard Terms. BRUS and Customer are collectively
referred to herein as the “Parties” and individually, a “Party”. In addition to the terms defined in these
Standard Terms, the following terms have the following meanings:
“Affiliate” means an entity that directly or indirectly controls, is controlled by or is under common control
with a Party and as used herein, “control”, “controls” or “controlled” means: (a) fifty percent (50%) or
more ownership or beneficial interest of income or capital of such entity; (b) ownership of at least fifty
percent (50%) of the voting power or voting equity; or (c) the ability to otherwise direct or share
management policies of such entity.
“Customer Data” means all data, information or other content and materials (a) transmitted or provided
to BRUS by Customer or a third party on behalf of Customer, or (b) uploaded by or for Customer via the
Product and Processed by or for Customer using the Services.
“Documentation” means all BRUS user installation guides, data sheets, application notes and instruction
manuals published and generally made available by BRUS to Customer in writing that relate to the
performance conditions and limitations, installation requirements, use limitations and maintenance of the
Products, Software and/or Prototypes, including all updates, modifications and changes made thereto by
BRUS from time to time.
“Engineering Software” means Software which can be used to select, dimension and/or configure
Products, Software and/or Prototypes by Customer and may include a toolbox comprising Software
components and a development environment to support the Customer for such dimensioning and/or
configuring.
“Law” means (a) any and all laws, statutes, regulations, ordinances, or subordinate legislation in force
from time to time to which a Party is subject; (b) the common law; (c) any and all court orders, judgments,
or decrees that are binding on a Party; and (d) any and all directives, policies, rules, or orders that are
binding on a Party and that is made or given by a regulator, or other government or government agency,
of, in the case of items (a) - (d) above, any country, or other national, federal, commonwealth, state,
provincial, or local jurisdiction.
“Malicious Code” means code, configurations, files, scripts, agents or programs intended to cause
undesired effects, harm or damage, including, for example, viruses, worms, time bombs and trojan horses.
“Personal Data” means any information relating to (a) any identified or identifiable natural person, and,
(b) identified or identifiable legal entity (where such information is protected similarly as personal data or
personally identifiable information under applicable data privacy Laws), where for each (a) or (b), such
data is Customer Data.
“Process”, “Processing”, and “Processed” means any operation or set of operations performed upon
Customer Data, whether or not by automated means, such as collection, recording, organization,
structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination, erasure or destruction.
“Product(s)” means any physical good or Software provided by BRUS to Customer and identified in the
applicable Quotation or Purchase Order, excluding Prototypes.
“Prototype(s)” means the tangible results of Services performed under a Statement of Work and delivered
to Customer by BRUS, but excluding all Intellectual Property Rights (as defined below) associated with the
Prototype, unless otherwise mutually agreed to in writing by BRUS and Customer.
“Purchase Order” means an ordering document issued by Customer to BRUS that specifies the Product,
Software, Prototype and/or Service and which is acknowledged in writing by BRUS in accordance with
these Standard Terms.
“Quotation” means a quotation for Products, Software, Prototypes, and/or Services issued to Customer
by BRUS, which is subject to these Standard Terms.
“Service(s)” means any chargeable consulting services, repair services, implementation services,
configuration services, technical support services, and/or other professional services provided by BRUS
to Customer and identified in the applicable Quotation, Statement of Work or Purchase Order, which
relates to the Products, Software and/or Prototype provided by BRUS to Customer, and which are subject
to these Standard Terms.
“Specifications” means the design, performance, descriptions, parameters, requirements and other
technical specifications of the Product, Software and/or Prototype set forth in the Documentation, which
specifications may be amended or supplemented by BRUS in its sole and reasonable discretion, or other
specifications agreed to by the Parties in writing.
“Software” means the applications, methodologies or programs developed by BRUS or licensed to BRUS
by a Third Party Provider, available in source code, redistributable libraries or object code formats, and via
various means of delivery, and all new versions, updates, revisions, improvements and modifications of
any of the foregoing, that may be provided by BRUS to Customer and as identified in the applicable
Quotation, Statement of Work or Purchase Order. For the sake of clarity, Software may perform specific
functions related to accessing, enabling, developing, networking, configuring and maintaining BRUS
Products, Software, Prototypes and/or Services and may include standalone software, firmware,
Engineering Software and software tools provided by BRUS to Customer.
“Software Updates” means any Software release intended to fix or correct known problems and which
may provide new functionality or features.
“Software Upgrades” means any new version of the Software, which may include revisions,
improvements and/or modifications.
“Statement of Work” means a document that specifies in writing the Services or work that Customer may
purchase under these Standard Terms, and which may include, but is not limited to, any Specifications,
description of Services or work, service level agreements and/or acceptance criteria that are applicable to
the Services, and which document has been mutually agreed by both Parties in writing.
“Third Party Providers” means any and all licensors, suppliers, service providers and subcontractors of
BRUS or its Affiliates.
1.2 Scope of Agreement; Order of Precedence.
Sales of Products, Software, Prototypes and/or Services by BRUS to Customer are expressly subject to
and conditioned upon the terms and conditions contained in these Standard Terms & Conditions of Sale,
which include any provisions made available by BRUS via a hyperlink herein, and any terms set forth in
the Quotation, Statement of Work, or Purchase Order, which collectively constitute a sales agreement
entered into between BRUS and Customer (collectively, “Standard Terms”). If BRUS and Customer have
explicitly agreed in writing via a signed agreement, to terms and conditions applicable to the sale of
Products, Software, Prototypes and/or Services in exception or addition to these Standard Terms, then
those terms and conditions (“Independent Agreement”) will apply to the sale of Products, Software,
Prototypes and/or Services. In the event of a conflict, (a) the commercial terms (price, quantity, description
of goods, delivery dates, special terms) of the Purchase Order will take precedence over any Independent
Agreement, Quotation, or these Standard Terms; (b) the terms of an Independent Agreement shall take
precedence over any Quotation or these Standard Terms; and (c) any Quotation shall take precedence
over these Standard Terms.
2 ORDERS; CANCELLATION AND CHANGES.
2.1 Purchase Order.
BRUS’ acceptance of any offer or Purchase Order from Customer is expressly conditioned on Customer’s
consent to these Standard Terms, which are part of and incorporated in any Purchase Order, irrespective
of whether the Purchase Order references these Standard Terms. Any additional or different terms or
conditions, or warranties, whether in a Purchase Order or another communication, understanding, or
agreement, that in any way purport to modify these Standard Terms are expressly objected to and rejected
and will not be binding on BRUS, unless expressly agreed to in writing signed by an authorized
representative of BRUS; neither BRUS’ subsequent lack of objection to any terms, nor the delivery of the
Products, Software, Prototypes and/or Services, shall constitute an agreement by BRUS to any such terms.
Customer is hereby notified of BRUS’ express rejection of any terms inconsistent with Standard Terms or
to any other terms proposed by Customer. Trade custom, trade usage and past performance are
superseded by these Standard Terms, and shall not be used to interpret these Standard Terms.
Customer’s issuance of a Purchase Order or acceptance of, or payment for, the Products, Software and/or
Prototypes when delivered and/or Services when provided will be deemed conclusive evidence of, and
constitutes Customer’s acceptance of and assent to BRUS’ these Standard Terms. Customer’s
acceptance of any offer (or counter-offer) by BRUS is limited to these Standard Terms. BRUS may reject
a Purchase Order in whole or in part for any lawful reason in its sole discretion. A Purchase Order will be
deemed accepted by BRUS upon BRUS issuing a written order confirmation (“Order Acknowledgment”).
No Purchase Order will be binding upon BRUS until accepted by BRUS. BRUS may, from time to time,
specify a minimum order quantity and/or standard order increments for particular Products and Prototypes.
BRUS may also, from time to time, specify the intervals between Purchase Orders for particular Products.
If Customer requests Products and Prototypes in quantities, which do not meet BRUS’ minimum order
quantity, or standard order increment requirements, or Purchase Order interval requirements, BRUS may
invoice Customer the extra cost incurred by BRUS in complying with Customer’s request.
2.2 Cancellations/Changes by Customer.
Customer may cancel or change a Purchase Order within twenty-four (24) hours of issuance by Customer,
unless such Products have already been issued for fulfillment as determined by BRUS in its sole
discretion. Products and Prototypes supplied by BRUS that require pre-configuration and/or customization
may not be subject to cancellation as determined by BRUS in its sole discretion. All other Purchase Order
cancellations or changes require BRUS’ prior written consent. Without such required consent, a
cancellation of or change to the Purchase Order will entitle BRUS to all remedies available by law or equity
including, but not limited to, cancellation costs or increased prices. Customer shall indemnify BRUS
against any loss, damage, or expense incurred by BRUS in relation to any cancellation or change of the
Purchase Order by Customer in violation of this Section 2.2.
2.3 Cancellations/Changes by BRUS.
BRUS may cancel a Purchase Order or require full or partial early payment if: (a) the solvency or operation
of Customer is in question, (b) Customer becomes the subject of any bankruptcy proceedings, (c) there is
an appointment of a trustee or receiver for Customer, (d) Customer makes an assignment or other
arrangement for the benefit of its creditors, or (e) if the Purchase Order conflicts in any way with the
corresponding Quotation, or the Customer requirements on which the Quotation is based are no longer
valid or correct, each as determined by BRUS in BRUS’ sole discretion.
3 PRICES, PAYMENT TERMS AND TAXES.
3.1 Pricing.
Customer shall pay BRUS according to the prices made available by BRUS in writing or as set forth in the
applicable Purchase Order. All prices are published and/or quoted in USD and are subject to the delivery
terms defined in Section 4 below. All prices are subject to adjustment and/or surcharges by BRUS at any
time for changes in tariffs, economics, exchange rates, or Customer’s volume forecasts, as applicable, or
as otherwise provided in these Standard Terms, and which such adjustment and/or surcharges are
determined by BRUS in its sole discretion. Such adjustment will be retroactive to prior Purchase Orders,
even if already fulfilled by BRUS, if Customer's actual purchase volumes are below the Customer-provided
or Customer-agreed volume forecasts upon which BRUS based the prices for such Purchase Orders.
Unless otherwise expressly provided in these Standard Terms, fees paid are non-refundable. Unless
otherwise agreed by BRUS in writing, Customer shall reimburse BRUS for actual expenses (including
travel and mileage) incurred by BRUS in performing any Services. BRUS will provide a summary of such
expenses with the invoice for the associated Services.
3.2 Material Cost Increase.
If BRUS’ production or purchase costs for the Product or Prototype (including without limitation costs of
energy, tariffs, equipment, labor, regulation, transportation, raw material, feedstock, or supplies) increases
for any reason over BRUS’ planned costs for the Product or Prototype as of the date BRUS accepted the
applicable Purchase Order or Statement of Work, then BRUS may, by written notice to Customer of such
increased costs, request a renegotiation of the price of the Product or Prototype under these Standard
Terms. If the Parties are unable to agree on a revised Product or Prototype price within ten (10) business
days after BRUS issues such notice, then BRUS may terminate any impacted Purchase Order on ten (10)
business days’ written notice to Customer without further liability or obligation.
3.3 Invoicing.
Unless otherwise agreed upon between the Parties in writing, BRUS shall invoice Customer for the price
of the Products, Software, Prototypes and/or Services any time on or after the date that BRUS ships the
Products, Software, Prototypes and/or provides the Services, respectively. Any invoice errors must be
disputed in writing by Customer within thirty (30) days of the invoice date, and are subject to correction by
BRUS. Unless otherwise specified in writing, all remittances must be in a single payment in the full amount
of the invoices (adjusted for any debit memos) and must be in accordance with the following requirements:
(a) wire or electronic fund transfer (referencing the invoice number) and Customer must be the originator
of the wire; (b) Customer company check (drawn on company account with company name); or (c)
irrevocable letter of credit (referencing invoice number). Third-party checks, bank checks and foreign drafts
will be accepted only if approved in advance in writing by an authorized representative of BRUS and must
have accompanying documentation that references invoices being paid.
3.4 Payment Terms.
Unless otherwise agreed upon between the Parties in writing or specified in the Quotation or Statement of
Work, Customer shall pay BRUS for Products, Software, Prototypes and/or Services as invoiced by BRUS
within thirty (30) days from date of invoice, without offset, counterclaim, holdback, deduction, or discount
for early payment. Customer’s failure to pay any undisputed amount when due will be deemed a material
breach of these Standard Terms. Undisputed past due amounts will be subject to the maximum legal rate
of interest or one and one-half percent (1.5%) per month, whichever is less. Customer shall pay all costs
and expenses incurred by BRUS as a result of non-payment or delinquent payment by Customer, including
without limitation collection costs, interest, and reasonable attorneys' fees. When requested by BRUS,
Customer must promptly provide BRUS its most current financial statement information. If Customer
defaults on any payment obligation to BRUS, or fails to meet BRUS’ minimum credit standards, or if BRUS
has reasonable doubt as to Customer’s credit worthiness, BRUS may in its sole discretion take any of the
following actions: (a) refuse, alter or suspend credit terms; (b) require payment by cash in advance or on
delivery; (c) suspend production or shipment of the Products, Software, Prototypes and/or delivery or
performance of Services; (d) request adequate assurance; and/or (e) pursue any remedies available at
law or equity available to BRUS. If Customer becomes delinquent in payment on any BRUS invoice or
refuses to accept shipments in accordance these Standard Terms, BRUS will have the right, in addition to
all other available rights and remedies, to suspend performance, cancel any or all Purchase Orders,
withhold further deliveries, and declare all unpaid amounts for Products, Software, Prototypes previously
delivered and/or Services previously performed immediately due and payable. BRUS may cancel or modify
Customer’s credit terms at any time.
3.5 Set-Off.
Customer may not set-off or recoup any amounts due (or that may become due), or are allegedly due from
BRUS (or a BRUS Affiliate) to Customer, from its debts or amounts due to BRUS (or a BRUS Affiliate)
however and whenever arising.
3.6 Taxes.
BRUS’ pricing excludes all sales, use, excise, value-added, and other similar taxes, charges and duties
(including import and export duties). Customer will be solely responsible for all taxes imposed on Customer
based upon applicable governing Law. BRUS agrees that no tax for which a valid exemption exists, based
upon applicable governing laws, will be included in the pricing, nor subsequently charged. In order for valid
sales and use tax exemptions to exist, Customer agrees to properly document and provide BRUS with
applicable sales and use tax exemption certificates when requested by BRUS. Each payment to BRUS
shall be made without withholding for any taxes, unless required by Law. Customer shall inform BRUS of
any withholding tax obligation on payments due to BRUS under any invoice as soon as Customer becomes
aware of such withholding tax obligation. If BRUS believes that it is eligible for exemption from, or reduction
of, any U.S. withholding tax (or other withholding or similar tax of one or more other jurisdictions), BRUS
shall deliver to Customer a completed, duly executed IRS Form W-9 or Form W-8 (or other appropriate form
of all applicable jurisdictions as required under the Law of all applicable jurisdictions) valid through the date
of payment. Customer shall pay any withholding tax not eliminated or reduced to the relevant taxing
authority. Customer shall promptly deliver to BRUS a certificate evidencing the payment of any such
withholding tax. Each Party will solely be responsible for its applicable tax administration based upon the
legal responsibility of the tax per applicable Law.
3.7 Security Interest.
Customer hereby grants to BRUS and BRUS reserves, a purchase money security interest in all present
and future Products and Prototypes sold or delivered by BRUS to Customer under these Standard Terms,
and all profits and proceeds arising from or related to the Products and Prototypes. Any such security
interest shall be satisfied by payment in full of the invoiced amount. Customer must, on request from
BRUS, execute promptly any documents and perform any other acts, at Customer’s sole expense, that
BRUS considers necessary or advisable to confirm, continue and/or perfect the security interests granted
under these Standard Terms. Customer irrevocably authorizes BRUS to execute and file any financing
statements covering all Products and Prototypes subject to the security interest granted under these
Standards Terms. Notwithstanding the foregoing, a copy of the sale or channel agreement may be filed on
behalf of BRUS with the appropriate authorities at any time as and for a financing statement.
4 PACKAGING, DELIVERY AND RISK OF LOSS.
4.1 Packaging.
Unless otherwise agreed upon between the Parties in writing or specified in the Quotation, standard
packaging for continental United States domestic shipment is included in the agreed price. When special
domestic or export packaging is requested, Customer will be charged for any additional expenses.
Packages are clearly labeled to BRUS standards and labeled to conform to UN Model Regulations when
containing hazardous materials.
4.2 Delivery Terms.
All delivery dates are estimates only, and subject to prompt receipt of all necessary information from
Customer that is requested from BRUS. BRUS’ only obligation with respect to delivery dates is to make
reasonable efforts to meet such delivery dates. Unless otherwise agreed upon between the Parties in
writing, all shipments shall be in accordance to International Chamber of Commerce Incoterms 2020 rules.
Free carrier FCA with the place of delivery specified as BRUS plants/warehouses shall be the standard
rule of shipment without BRUS’ written agreement to an alternative. Partial deliveries are permitted. BRUS
may deliver Products and Prototypes in advance of the delivery schedule. If, for whatever reason, BRUS
experiences Product and Prototype shortages, BRUS may hold or allocate Products and Prototypes
among its customers as BRUS considers appropriate.
4.3 Risk of Loss – Delivery.
Risk of loss and title to the Products transfer upon completion of delivery of the Products per the applicable
delivery term specified in Section 4.2 above. Notwithstanding the applicable delivery terms, BRUS will
not be liable for any delays, breakage, loss or damage after having made delivery to the first transportation
carrier. All claims for loss or damage in transit are to be made by Customer directly to the transportation
carrier and the appropriate insurance carrier, if any, for such shipment. No deductions of any kind from
the invoice amount shall be made. Risk of loss and title to the Prototypes shall be agreed by the Parties
in the applicable Statement of Work.
4.4 Inspection and Acceptance.
Customer will inspect the Products within a reasonable period after shipment, such inspection of Products
not to exceed fifteen (15) business days (“Product Acceptance Period”). Products will be presumed
accepted unless BRUS receives written notice of rejection from Customer, explaining the basis for rejection
within the Product Acceptance Period (“Acceptance”). Rejection may be based solely upon the failure of
the Products to materially comply with the Specifications through no fault of Customer. All claims not made
by Customer in writing as specified above and received by BRUS within the Product Acceptance Period
will be deemed waived. Upon receipt of Customer’s written notice, BRUS will have the opportunity to
inspect, evaluate and test the Product at Customer’s premises or require Customer to send the Product or
adequate samples thereof to BRUS or to a person designated by BRUS for inspection, evaluation and
testing. All rightfully rejected Products shall be returned to BRUS in accordance with the provisions set
forth in Section 5.10. No inspection or any other actions by third-parties are authorized or will be paid for
by BRUS without BRUS’ prior written consent.
Customer’s sole and exclusive remedy, and the entire liability of BRUS and its Third Party Providers for
any rightful rejection of the Products during the Product Acceptance Period is, at BRUS’ sole option and
expense, (a) the repair or replacement of the Product and/or Software; or (b) a credit equal to the purchase
price of the Products in lieu of any obligation to repair or replace Products under this Section 4.4. BRUS
will not be responsible for any costs or charges for or related to labor and/or parts incidental to the handling
and attempted use of the Products.
4.5 Installation and Commissioning.
Customer is responsible for the proper handling, storage, installation and commissioning of Products and
Prototypes in accordance with the Documentation. Such services may be available by BRUS or Third Party
Providers, subject to and included in a Statement of Work or Purchase Order, or a mutual written
agreement between Customer and BRUS.
4.6 Acceptance, Installation and Testing.
Where applicable, the Parties may include in a Statement of Work, a Systems Acceptance Test (SAT)
process, including the time period(s) in which Customer will install, evaluate and test each Product and/or
Prototype provided under such Statement of Work (“SAT Acceptance Period”). If there is no SAT
process and SAT Acceptance Period set forth in a Statement of Work, the following acceptance testing
process shall apply to the Products and/or Prototypes provided (including any Software): upon shipment
of the Products, Customer shall evaluate and test such Products and/or Prototypes for a period of twenty
(20) business days (“System Acceptance Period”) to determine whether the Products and/or Prototypes
materially comply with the Specifications. Any extension to the System Acceptance Period requested by
Customer must be approved in writing by BRUS. If the Products and/or Prototypes materially meet the
Specifications and if required by BRUS, Customer will provide BRUS a written notice of acceptance
(“Systems Acceptance”). If the Products and/or Prototypes do not materially meet the Specifications,
through no fault of Customer, BRUS shall have the opportunity to inspect, evaluate and test the Products
and/or Prototypes and cure any non-compliance with the Specifications within sixty (60) days, after which
Customer shall evaluate and test such Products and/or Prototypes for an additional System Acceptance
Period of twenty (20) business days. If, through no fault of Customer, BRUS cannot remedy the material
non-compliance with the Specifications within the above-described timeframes, Customer may, by written
notice to BRUS (a “Final Rejection Notice”), reject the Products and/or Prototypes and terminate the
applicable Purchase Order or Statement of Work. In such event, Customer’s sole and exclusive remedy,
and the entire liability of BRUS and it Third Party Providers, will be to provide a credit to Customer within
sixty (60) days of BRUS’ receipt of the Final Rejection Notice equal to that portion of the purchase price of
the rightfully rejected Products which has been paid by Customer.
5 LIMITED WARRANTY.
5.1 Product Warranty.
With respect to a Product sold by BRUS to Customer hereunder (including firmware that is installed on,
delivered with and not separable from a Product but excluding Software or Software components, the
warranty for which is set forth in Section 5.3 below), and subject to Sections 5.5 through 5.10 of these
Standard Terms, BRUS warrants: the Product to be free from defects in material and workmanship under
normal operating conditions and proper application in accordance with the Specifications listed in the
Documentation or Data Sheet, which accompanies such Product or are otherwise made available by
BRUS in writing. The applicable warranty period is as follows (“Product Warranty Period”): Unless
otherwise specified in writing by BRUS in a Quotation, Statement of Work or Purchase Order, the warranty
period for all BRUS Products (excluding Software or Software components) shall be (i) eighteen (18)
months after date of shipment from BRUS facility, or (ii) twelve (12) months after the Product is placed in
service, whichever occurs first. BRUS may offer extended and/or conditional warranties for Products,
systems, assemblies and power units only as specified in writing in either a Statement of Work or an official
BRUS warranty program. Customer or Customer’s vendor-supplied items that are integrated or provided
with Product systems, assemblies or power units are warranted per original Customer or its vendor’s
original manufacturer’s warranty and warranty policy.
Customer’s sole and exclusive remedy and the entire liability of BRUS and its Third Party Providers for
breach of warranty within the Product Warranty Period under this Section 5.1 is, at BRUS’ option and
expense: (a) repair or replacement of Product; or (b) a credit equal to the purchase price (less a reasonable
depreciation for use, damages and obsolescence) of the Product in lieu of any obligation to repair or
replace the Product under this provision.
5.2 Prototype Warranty.
BRUS shall have no liability for claims related to Prototype, including any Prototype testing, including
Software contained in a Prototype and evaluation conducted by Customer. ALL PROTOTYPES ARE
PROVIDED BY BRUS TO CUSTOMER “AS IS” AND “WITH ALL FAULTS”; BRUS DISCLAIMS ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE
AND OR/FREEDOM FROM THIRD PARTY CLAIMS OR RIGHTS.
5.3 Software Warranty.
Subject to Sections 5.5 through 5.10 of these Standard Terms, BRUS warrants, that, commencing from
the date of first use of the Software license and for a period of ninety (90) days (the “Software Warranty
Period”), the Software as delivered (excluding Software related to Prototypes) will substantially conform
to and perform in accordance with the Documentation. This software warranty will apply unless BRUS
provides a different software warranty for the specific Software in the EULA or Documentation associated
with that Software, and such different software warranty shall solely apply. BRUS DOES NOT WARRANT
THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SOFTWARE WILL
BE UNINTERRUPTED OR ERROR-FREE, VIRUS-FREE, FREE OF MALICIOUS CODE OR THAT ANY
DEFECTS WILL BE CORRECTED. BRUS DOES NOT WARRANT THAT THE USE OF THE SOFTWARE
WILL NOT BE IMPAIRED BY DOWNTIME, MAINTENANCE ACTIVITIES, FURTHER DEVELOPMENTS,
UPDATES AND UPGRADES OR MALFUNCTIONS. BRUS DOES NOT WARRANT THE ACCURACY,
EFFECTIVENESS, OR SUITABILITY OF SOFTWARE FOLLOWING DEPLOYMENT, CONFIGURATION
OR OTHER CHANGES, MODIFICATIONS OR ADAPTATIONS BY CUSTOMER OR OTHER THIRD
PARTIES. IN ADDITION, BRUS DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT,
APPLICATIONS, OPERATING SYSTEMS OR NETWORK ON WHICH THE SOFTWARE IS USED WILL
BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK OR THAT SUCH SOFTWARE WILL
INTERACT WITH THIRD PARTY EQUIPMENT, DEVICES, APPLICATIONS, OPERATING SYSTEMS,
NETWORKS OR OTHER SOFTWARE.
Customer’s sole and exclusive remedy and the entire liability of BRUS and its Third Party Providers for
breach of warranty within the Software Warranty Period under this Section 5.3 will be, at BRUS’ option and
expense, (a) repair or replacement of the Product and/or Software, or (b) a credit for any licensing fees for
the Software.
5.4 Service Warranty.
Subject to Sections 5.5, 5.7 through 5.10 of these Standard Terms, BRUS warrants that the Service will
be performed in a professional and workmanlike manner, consistent with commercially reasonable
standards in the industry. For any breach of warranty under this Section 5.4, Customer must provide a
written claim within ten (10) business days after provision of the applicable Service specifying in reasonable
detail the nonconformity with such warranty, and Customer’s sole and exclusive remedy and the entire
liability of BRUS and its suppliers for breach of warranty under this provision is, at BRUS’ sole option and
expense to use commercially reasonable efforts to re-perform the identified nonconforming Service. If
BRUS concludes that re-performance of these nonconforming Service is impracticable for any reason,
then BRUS will refund the fees paid by Customer to BRUS allocable to those nonconforming Service.
5.5 Outside Warranty and Liability.
Customer expressly acknowledges that BRUS is not responsible or liable for: (a) products, software,
services, components or systems that BRUS has not supplied; (b) products, software, services,
components originating from third parties that are supplied by BRUS under or at the direction of Customer;
(c) any end product or software in which the Products or Software are installed or incorporated as a
component or subpart; (d) conditions, changes, alterations, additions or applications to or for Products,
Software or Services, unless made or specifically authorized in writing by BRUS; or (e) Customer’s failure
to perform maintenance to Product or Software (including firmware) as recommended by BRUS, or to
otherwise comply with the Specifications and/or industry practices. BRUS shall have no liability, obligation
or responsibility for components and systems over which BRUS has no control, including without limitation,
contamination, incorrect power supply, pressures in excess of recommended maximum, products
damaged or subject to voltage, humidity, or temperature outside of specified range, accident, abuse or
misuse after shipment from BRUS’ factory, Products or Software altered, disassembled or repaired by
anyone other than BRUS personnel, personnel or persons so designated in writing by BRUS’ Service
Department prior to commencement of said work. Types of failures and/or damages that are not
attributable to BRUS breach of warranty, and which are not considered by BRUS as part of its warranty
include, but are not limited to, the failures and/or damages that result from or are attributable to the
following:
5.5.1 Accident, abuse, neglect;
5.5.2 Customer’s improper storage or handling prior to installation and operation;
5.5.3 Improper alignment, connection, configuration, orientation, assembly work, and pre-conditioning
prior to or during Product’s operation;
5.5.4 Contaminants found in/on Product;
5.5.5 From the action of, or deterioration from, contaminants in the form of air and fluid borne particles,
solids, liquids, entrained gases, chemicals, and biological contaminants in Product’s connected
electrical, heating/cooling, flushing, lubrication, mechanical and fluid power systems;
5.5.6 Operating and maintaining Product or Software in a manner or under service conditions outside of
its Specifications or the Documentation without the prior written consent of BRUS, and then only in
strict accordance to any/all additional or modified Specifications or Documentation pertaining to
consent;
5.5.7 Modifications and repairs of Product except for those provided by BRUS Services or BRUS’
authorized Third Party Providers;
5.5.8 Pressurized cleaning or attributed to the use of excessive heat and force, aggressive abrasives,
cleaners and/or solvents during cleaning of Product;
5.5.9 Any kind from erosive or corrosive action of any gases or liquids evidently encountered by the
Product;
5.5.10 Excessive electrical potential, electrical current and magnetic fields emanating from Product’s
operating environment;
5.5.11 Product ordinary wear and tear.
5.6 Warranty Processing Procedure.
For any Product or Software breach of warranty brought within the applicable Product Warranty Period or
Software Warranty Period, as applicable, Customer shall promptly notify BRUS in writing and may request
authorization to return such Product. Customer must provide a written explanation of the breach of
warranty (the “Warranty Claim”) as such warranty is set out in this Section 5, subject to the provisions of
Section 5. Subsequently, BRUS through its inspection process must be satisfied that the claimed breach
of warranty exists. For Warranty Claims where physical inspections of the Product are required, Customer
must follow BRUS’ return instructions as set forth in Section 5.10 of these Standard Terms, to return the
Product to the designated BRUS’ service facility at Customer’s own risk and expense. BRUS shall have
the right to request reasonable evidence of and impose reasonable requirements for inspection and
evaluation of the Warranty Claim. Warranty repair or replacement by BRUS shall not extend or renew the
applicable Product Warranty Period or Software Warranty Period, unless expressly stated in writing by
BRUS. BRUS will not be responsible for labor and material costs of removal or reinstallation of Products
and Software. Returned Products that are not defective, that are not subject to warranty coverage as
described in this Section 5, or that contain missing or damaged parts, will be returned to Customer at
Customer’s sole expense, without credit, repair or replacement.
5.7 Other Limited Warranties and No Other Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, BRUS MAKES NO OTHER WARRANTY
OR REPRESENTATION TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AND TO THE FULLEST
EXTENT PERMITTED BY LAW, BRUS SPECIFICALLY AND EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY OTHER
WARRANTIES ARISING FROM OR OUT OF ANY COURSE OF DEALING, USAGE OF TRADE,
SPECIFICATION, PROPOSAL, PERFORMANCE OR CUSTOM, AND ANY STATUTORY WARRANTY
ON HIDDEN OR LATENT DEFECTS.
If Customer or BRUS agent grants to an end user any warranty which is greater in scope, time period or
labor allowance than the warranty stated herein, BRUS shall not be liable beyond the stated warranty.
Except as otherwise provided under Section 5.6 above, equipment and accessories not manufactured by
BRUS shall not be the responsibility of BRUS.
5.8 Exclusive Remedy.
EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, THIS SECTION 5 PROVIDES
CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ALL CLAIMS, DAMAGES, LOSS OR INJURIES
(WHETHER DIRECT, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL OR
INCIDENTAL) BASED ON OR ARISING FROM ANY DEFECT, FAILURE, MALFUNCTION, BREACH OF
WARRANTY OR ANY OTHER PERFORMANCE, NONCONFORMANCE OR NONPERFORMANCE OF
ANY PRODUCT, SOFTWARE OR SERVICE, WHETHER THE CLAIM IS IN CONTRACT, EQUITY,
INDEMNITY, INFRINGEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY)
OR OTHERWISE AND HOWEVER INSTITUTED.
5.9 Customer Warranty.
Customer warrants that (a) Customer has the corporate power and authority to enter into, and perform its
obligations under these Standard Terms; (b) Customer will not make any false, inaccurate, incomplete
representation, advertisement or warranty, whether written or oral, to any third party relating to any
Products, Prototypes, Software and/or Services and that it will not make a statement or reference related
to BRUS without BRUS’ express written permission and (c) Customer will perform all maintenance to
Software (and firmware), including Software Updates, as recommended or otherwise made available
without change by BRUS and (d) Customer shall be responsible and liable for all results generated through
the use of Engineering Software, including but not limited to, the life cycle monitoring and maintenance of
such results.
5.10 Return Goods Authorization Process.
The BRUS Return Authorization Process (“RGA Process”) shall apply to all Products and/or Prototypes
to be returned (collectively referred to as “Return Product”) to BRUS designated location or BRUS’
designated Third Party Provider, which RGA Process is available upon request by Customer by contacting
BRUS service at www.boschrexroth.com/en/us/contact or 1-800-REXROTH, and which is hereby
incorporated by reference. Customer agrees to the terms and conditions of the RGA Process, which
includes the requirement to obtain a Returns Good Authorization, provide a clear reason for the Return
Product (including for rejections or breach of warranty claims), and to properly identify the Return Product
itself. Customer is solely responsible for returning the Product free of contaminants, appropriately
packaged, properly identified, pre-paid and insured for delivery at the designated location and freight
method as instructed in the RGA Process. Title of Return Product remains unchanged, subject to the
provisions of Section 3.7, unless a transfer of title is executed through the RGA Process. Disposition of
the Return Product after receipt at the BRUS designated location shall be subject to the terms and
conditions of the RGA Process. For Products rightfully rejected per Sections 4.4 or 4.6 or breach of
warranty per Section 5, respectively, and returned by Customer, BRUS is responsible for shipping costs
to the BRUS designated location in an amount not to exceed normal surface shipping charges. If BRUS
reasonably determines that rejection or the return was improper, Customer will be responsible for all
expenses incurred by BRUS arising from the improper rejection or improper warranty claim, including all
BRUS costs for Product inspection, storage, shipping and disposal.
Customer is responsible for proper disposal of any Products, which shall be in accordance with the
considerations or recommendations listed in the Documentation, if any.
Customer will be responsible for all expenses incurred by BRUS arising from returns violating the
provisions of this Section 5.10.
5.11 Services and Repair.
Quotations may be requested for non-warranty Product repair services, including Software, which service
may be provided by BRUS or a Third Party Provider. The available scope of such services, the terms and
conditions of such services, including warranty, may vary by Product and the business entity providing the
services.
6 INTELLECTUAL PROPERTY RIGHTS/SOFTWARE.
6.1 Intellectual Property Rights – Ownership.
As between BRUS and Customer, BRUS exclusively owns and shall retain exclusive ownership of all right,
title and interest worldwide, including all inventions (whether patented or not), patent applications and
disclosures, patents, design rights, copyrights and copyrightable works (including, but not limited to, the
right to reproduce and make copies of an original work, the right to prepare derivative works, the right to
distribute copies to the public, the right to public performance, the right to public display and the right to
public performance of sound recordings), trademark, service marks, trade names, domain name rights,
mask work rights, know-how and trade secrets and all other forms of intellectual property and proprietary
rights (collectively, “Intellectual Property Rights”) in and related to: (a) the Products, Services, Software
and Prototypes and all updates, modifications, improvements and derivatives thereof; and (b) all other
ideas, inventions (whether patentable or not), concepts, designs, methods, processes, software (including
source code and object code), data (other than Customer Data) and works of authorship authored,
developed, conceived, reduced to practice or licensed by BRUS or an Affiliate thereof for or in connection
with any Products, Software, Prototypes or the Services. No rights are granted to Customer hereunder
other than as expressly set forth herein, and BRUS (and its licensors, where applicable) reserve all rights
not expressly granted herein. For the avoidance of doubt, no right, title or interest to any of the Software’s
source code is granted under these Standard Terms. Customer shall not itself or assist or instruct others
to attempt in any way to reverse engineer, copy/reproduce, decompile, disassemble, translate, fragment
parts or otherwise obtain or attempt to obtain in any way access to the Product, Prototype, Software or to
the Software’s source code provided by BRUS without BRUS’ prior written consent, except as required in
accordance with Section 6.4 below. Customer shall not remove, change, alter or otherwise render
unintelligible any designation of the Software, including copyright notices, trademarks, serial numbers and
the like. Unless expressly agreed in writing by BRUS, Software and Prototypes will be treated as
Confidential Information as defined in Section 9.
6.2 Third Party Intellectual Property Rights.
To the extent the Products, Prototypes or Services (including, but not limited to, any Software contained
therein) contain third party Intellectual Property Rights, BRUS only provides those rights which BRUS has
lawfully obtained from such third party. To the extent that Customer provides any software to BRUS or
directs BRUS to include any third-party software, Customer shall secure any and all third-party Intellectual
Property Rights necessary for BRUS to use such software and Customer shall indemnify BRUS for all
costs, expenses and damages caused by Customer’s failure to secure the necessary Intellectual Property
Rights in such software.
6.3 License Grant.
BRUS hereby grants to Customer a non-exclusive, irrevocable, non-transferable, non-sublicensable,
royalty free, perpetual license to utilize the Intellectual Property Rights contained in the Software delivered
as firmware in Products or Prototypes solely in connection with the normal and intended use of the
Products or Prototypes in accordance with all applicable Documentation and as authorized under these
Standard Terms and any applicable EULA (as defined below). This license shall be transferable only in
the event of the sale or transfer of Products to a third party resulting in Customer’s discontinuation of use.
BRUS hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to
utilize the Intellectual Property Rights contained in the Software (specifically excluding Software delivered
as firmware in Products or Prototypes) solely in connection with the normal and intended use of such
Software, which may include without limitation the ability to configure such Software, in accordance with
all applicable Documentation and as authorized under these Standard Terms and any applicable EULA.
Notwithstanding the foregoing grant, the Software is sold to Customer. Unless otherwise expressly agreed
in writing by BRUS, this Section 6.3 does not include a license or a right to use any Software Upgrades
which may be provided from time to time at BRUS’ discretion. Such Software Upgrades may be purchased
separately and will not be considered part of the Software delivery of a previous version. BRUS reserves
the right to make the availability of Software Updates and Software Upgrades conditional upon the
existence of a valid software maintenance agreement between BRUS and Customer. In the event any
Software contains a click-through, pop-up or other end-user license agreement (collectively, “EULA”),
BRUS will notify Customer of such EULA at the time of Software delivery and, upon acceptance of the
EULA or use of such Software by Customer, the terms of the EULA shall control over the terms of these
Standard Terms. In the event Customer does not accept the EULA at the time of delivery, Customer shall
not use the Product, Prototype and/or Services, and any use of the Software shall be considered an
unauthorized use. To the extent such Product, Prototype and/or Services contain free or open source
software, the OSS-Terms and Conditions (defined below) shall apply.
Subject to Customer’s compliance with these Standard Terms, BRUS hereby grants to Customer a limited,
non-exclusive license to copy, publish and transmit any Documentation provided to Customer by BRUS
with the Product or Prototype solely for Customer’s internal business purposes, and except as required in
accordance with Section 6.4 below.
6.4 Open Source Software.
To the extent such Product, Prototype or Services (including, but not limited to, any Software contained
therein) contain free or open source software (collectively, “OSS”), such OSS may be subject to separate
third-party OSS licensing terms and conditions (“OSS-Terms and Conditions”). Under such OSS-Terms
and Conditions, BRUS may be required to provide the OSS-Terms and Conditions to Customer and
Customer must comply with all of the applicable OSS-Terms and Conditions and fulfill all corresponding
obligations of the applicable OSS-Terms and Conditions, especially if Customer further distributes,
publishes or provides the Products, Prototypes or Services through sales or other transfer to third parties
(including an end user or customer). Such obligations may include, for example, documentation obligations
or obligations to provide the source code of any software in which the OSS has also been integrated. An
overview of all OSS-components contained in the Products, Prototypes and/or Services, as well as
corresponding license text of the OSS Terms and Conditions (of all originating OSS authors), are part of
or are included with BRUS’ Documentation, Products, Prototypes and/or Support Service. New or updated
Software component versions included in BRUS’ Products, Prototypes and/or Services may contain other
and/or additional OSS. For such other and/or additional OSS, the same terms and conditions as applicable
apply. Customer shall use commercially reasonable efforts to not combine or request BRUS to combine the
other any software, goods and/or services (including, but not limited to, any Products, Prototypes, or
Services, or any Software contained therein) with any OSS or other data in any manner, which would result
in the other Party’s software, goods and/or services becoming subject to the terms of an OSS license. For
any software provided to BRUS by or on behalf of Customer, Customer shall disclose in writing a list of all
applicable OSS -Terms and Conditions, and third party software included in such software, at the time of
delivery of such software to BRUS. Customer shall indemnify BRUS for all costs, expenses and damages
caused by Customer’s failure to disclose OSS-Terms and Conditions and/or third party license terms in
software provided by Customer, directed by Customer or on behalf of Customer.
6.5 Customer Feedback.
If Customer provides any ideas, suggestions or recommendations to BRUS regarding the Products,
Software, Prototypes, and/or Services (“Feedback”), Customer, on behalf of itself and its Affiliates and
their customers and end customers, hereby grants to BRUS and its Affiliates a non-exclusive, irrevocable,
paid-up, royalty-free, perpetual, worldwide license under and to all of Customer’s rights and interests that
are incorporated in any Feedback to make, have made, use, sell, offer to sell, import, reproduce, display,
perform or distribute any BRUS Products, Software, Prototypes and/or Services and such Feedback.
7 Data Protection and Privacy.
7.1 Customer Data.
Customer represents and warrants that: (a) all Customer Data it provides to BRUS hereunder is owned by
Customer or Customer has the right to provide such Customer Data to BRUS for use by BRUS in
connection with these Standard Terms; and (b) any authorized Processing of Customer Data by BRUS
does not and will not violate or infringe the intellectual property, privacy or publicity rights of any third party,
or any applicable data privacy and security Laws.
7.2 License to Customer Data.
Customer hereby grants to BRUS the right to use the Customer Data for the purposes of Processing such
Customer Data in conjunction with the Products, Software, Prototypes, and/or Services, and/or performing
all other obligations of BRUS under these Standard Terms. In addition, Customer hereby grants to BRUS
a limited, non-exclusive, perpetual, irrevocable, royalty-free, non-transferable, worldwide license to use,
and sublicense to Affiliates, agents, consultants and subcontractors within the same scope, the Customer
Data, for the following purposes (a) to improve and enhance the Products, Software, Prototypes, and/or
Services and for other development, diagnostic and corrective purposes in connection with the Products,
Software, Prototypes,, and/or Services; (b) the investigation of any accidents or claims related to a defect,
failure, or alleged defect or failure of BRUS’ Products, Software, Prototypes, and/or Services; (c) the
defense of any claim against BRUS brought by Customer or any third party; and (d) any other purpose as
mutually agreed in writing between the Parties.
7.3 Aggregated and Anonymized Data.
The Software may collect and compile data and information related to its use which may be aggregated
and anonymized, including compiling statistical and performance information related to the provision and
operation of the Software (“Aggregated and Anonymized Data”). Aggregate and Anonymized Data shall
only include data or information which (a) is anonymized and NOT identifiable to any person or entity; and
(b) which does not reveal Customer’s identity. As between BRUS and Customer, all right, title, and interest
in Aggregated and Anonymized Data, and all intellectual property rights therein, belong to and are retained
solely by BRUS. Customer acknowledges that BRUS may compile Aggregated and Anonymized Data
based on Customer Data collected, produced or otherwise processed by the Software. Customer shall
not, and shall not assist any third party to, oppose, contest, restrict or otherwise challenge BRUS’ rights
related to the Aggregated and Anonymized Data.
7.4 Protection and Privacy- Customer Data and Personal Information.
To the extent BRUS Processes Customer Data , BRUS has implemented and maintains commercially
reasonable administrative, physical, and technical safeguards designed: (a) to maintain the security,
confidentiality and integrity of such Customer Data; (b) to protect such Customer Data from known or
reasonably anticipated threats or hazards to its security and integrity, accidental loss, alteration, disclosure
and all other unlawful forms of processing, and (c) so that they do not constitute unfair, deceptive or abusive
acts or practices with respect to such Customer Data. The terms of the Data Protection Addendum at
https://www.boschrexroth.com/en/us/data-protection-notice are hereby incorporated by reference and
shall apply to the extent Customer Data includes Personal Data.
7.5 Protection and Privacy – Customer Requirements.
Customer is solely responsible for procuring and maintaining its network connections and Customer shall
be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to,
access or otherwise use the Products, Software, Prototypes, and/or Services including without limitation,
modems, hardware, servers, software, operating systems, networking and web servers (“Customer
Equipment”). Customer shall also be responsible for maintaining the security of the Customer Equipment,
Customer account, passwords (including, but not limited to, administrative passwords) and files, and for
all uses of Customer account or the Customer Equipment with or without Customer’s knowledge or
consent.
8 INDEMNIFICATION.
8.1 Indemnification – BRUS.
Except as set forth below in Section 8.2 and 8.3, BRUS will defend any third party lawsuit or action against
the Customer based on a claim that the Products, Software, Prototypes, and/or Services as delivered by
BRUS directly infringes a valid U.S. patent or copyright, and indemnify Customer for any final judgment
assessed against Customer resulting from such lawsuit, provided that Customer: (a) promptly notifies
BRUS at the time it is apprised of the third-party claim; (b) provides any and all relevant materials and
information related to the claim to BRUS; (c) cooperates and provides BRUS with reasonable assistance
for the defense and disposition of the claim; and (d) gives BRUS exclusive control over the defense and
resolution of the claim, using counsel of BRUS’ choice. Without BRUS’ prior written consent, BRUS will
not be responsible for: (x) any compromise or settlement made by Customer; and (y) any defense fees or
costs incurred by Customer or any expenses incurred by Customer for itself or on BRUS’ behalf.
8.2 Infringement Remedy.
Subject to Section 8.5 of these Standard Terms, if a Product, Software, Prototype, and/or Service is held
to constitute infringement or its use is enjoined, BRUS may, at its sole option and expense, and as
Customer’s sole and exclusive remedy: (a) procure for Customer the right to continue using the Product,
Software, Prototype and/or Service; (b) replace the Product, Software, Prototype, and/or Service with a
similar non-infringing product, software or service; (c) modify the Product, Software, Prototype or Service,
or any portion thereof, so that it is non-infringing; or (d) accept return of the Product and/or Prototype and/or
terminate Customer’s rights to use or make use of the Products, Software or Service, and grant a Customer
credit for the purchase price paid for the Product, Software or Service, less a reasonable depreciation for
use, damages and obsolescence as applicable. In the event that BRUS believes that any of the Products,
Software, Prototypes, or Service may be subject to a claim of infringement, BRUS reserves the right at its
sole discretion to stop delivering or providing Customer access to the Product, Software, Prototype,
Software or Service, and such stoppage will not be considered a breach by BRUS of these Standard
Terms. THIS SECTION 8.2 STATES BRUS’ ENTIRE LIABILITY, CUSTOMER’S SOLE RECOURSE AND
EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT. ALL WARRANTIES RELATED TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, IMPLIED
OR OTHERWISE, ARE HEREBY DISCLAIMED.
8.3 Limitation on Infringement.
BRUS will have no obligation or liability under this Section 8 and Customer shall indemnify, defend and
hold BRUS Indemnified Parties harmless to the extent that any claim for infringement arises out of or
results from any of the following: (a) Customer’s designs, changes, drawings or specifications; (b)
Products, Software, Prototypes, or Services used other than for the purpose for which BRUS intended; (c)
combining any Products, Software, Prototypes, or Services with any article, component, hardware, system
or software not provided by BRUS; (d) Customer’s failure to promptly update any Software previously
provided by BRUS or a third-party on its behalf; (e) the implementation of Standardized Technologies into
the Products, Software, Prototypes, or Services, to the extent BRUS’ indemnification obligation under this
Section 8 stems from Standardized Technologies ; (f) the application or use of any Products, Software,
Prototypes, or Services, which fail to comply with the specification or other written instruction from BRUS;
or (g) any alteration, customization, configuration or other modification of the Products, Software,
Prototype, or Services other than by BRUS even if such alteration, customization, configuration or other
modification is the result of using Engineering Software provided by BRUS. For the purposes of these
Standard Terms, (“Standardized Technologies”)means technical specifications or functions: (i) adopted
by a standards organization (e.g. ETSI or IEEE), or (ii) defined by research institutes, industrial companies
or market participants to ensure technical conformity or compatibility, or (iii) established by common
practice in a particular field)
8.4 Indemnification – Customer.
Customer shall, at Customer’s sole expense, indemnify, defend and hold BRUS and its Affiliates, and their
respective owners, shareholders, members, managers, directors, officers, employees, representatives,
agents, subcontractors, contractors, successors and assigns (collectively, “BRUS Indemnified Parties”)
harmless against all losses, claims, liabilities, damages, causes of action, judgments, settlement
payments, interest, awards, penalties, fines, costs and expenses (including without limitation reasonable
court costs, reasonable attorneys’ fees, and arbitration, mediation and expert fees and any recall costs
and expenses) arising out of or relating to Customer’s or Customer’s Affiliate’s, or their subcontractor’s,
supplier’s, integrator’s, end customer’s or representative’s: (a) negligent act or omission or willful
misconduct; (b) breach of these Standard Terms or violation of applicable Law; (c) misuse or improper
installation, storage, maintenance or use of the Products, Software, and/or Prototypes, including failure to
implement Software Updates made available to Customer by BRUS; (d) incorporation of the Products,
Software or Prototypes into another product or service; (e) changes, alterations or additions to Products,
Software, Prototypes, or Services, including the use of Engineering Software; or (e) Customer’s
relationship with any end user customer, including any dispute with an end user. Customer will be entitled
to control the defense of such claim for which it is providing indemnity to any BRUS Indemnified Parties
pursuant to this Section 8.4. At Customer’s expense, BRUS will reasonably cooperate in the defense of
the claim, including but not limited to promptly furnishing Customer with all relevant information within its
reasonable possession or control. BRUS may participate in the defense at its own expense and through
counsel of its choosing. Customer shall not admit liability or enter into any settlement without the prior
written approval of BRUS.
8.5 LIMITATION ON LIABILITY AND REMEDIES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE STANDARD TERMS
AND EXCEPT FOR BRUS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: BRUS AND ITS AFFILIATES, AND THEIR
RESPECTIVE OWNERS, SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS,
EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, CONTRACTORS,
SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY OF THE FOLLOWING LOSSES OR
DAMAGES: EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES,
LOST SALES, LOSS OR CORRUPTION OF DATA, LOSS OF PRODUCT USE, LOSS OF BUSINESS,
LOSS OF GOODWILL, DOWNTIME COSTS, DAMAGE TO ASSOCIATED EQUIPMENT, LOSS OF
REPUTATION, LOSS OF DATA, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, OR
CLAIMS OF CUSTOMER’S END USER CUSTOMERS, FOR SUCH DAMAGES OR LOSSES), EVEN IF
CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH
DAMAGES OR LOSSES WERE FORESEEN, FORESEEABLE, KNOWN OR OTHERWISE AND
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN
NO EVENT SHALL BRUS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF THESE STANDARD
TERMS AND CONDITIONS OF SALE, WHETHER UNDER TORT, CONTRACT, WARRANTY OR
OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO BRUS FOR THE PRODUCT
GIVING RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING NOTICE OF THE CLAIM.
THE LIMITATIONS OF LIABILITY CONTAINED IN THESE STANDARD TERMS ARE A FUNDAMENTAL
PART OF THE BASIS OF BRUS’ BARGAIN HEREUNDER AND BRUS WOULD NOT ENTER INTO
THESE STANDARD TERMS ABSENT SUCH LIMITATIONS. BRUS’ rights and remedies set forth herein
shall be in addition to any legal or equitable right or remedy available to BRUS. No waiver of any of BRUS’
rights or remedies shall be effective without BRUS’ express written consent.
9 CONFIDENTIAL INFORMATION.
9.1 Confidentiality Definitions.
Any non-public technical, financial or business information, trade secrets, content, or any other information
provided by one Party (the “Disclosing Party”) to the other party (the “Receiving Party”) directly or
indirectly, orally or in writing that is: (a) marked confidential or proprietary, or (b) given the nature of the
information or the circumstances surrounding its disclosure, reasonably should be deemed confidential
(“Confidential Information”) shall be held in confidence by the Receiving Party, not disclosed, and not
be used by such Party except to the extent necessary to carry out its obligations or express rights
hereunder, except as otherwise authorized by the Disclosing Party in writing. Confidential Information
includes, but is not limited to these Standard Terms, Purchase Orders, Quotations, Statements of Work
and any other agreements between BRUS and Customer relating to, and any information and data
concerning the Products, Prototypes, Software and the Services. The Disclosing Party or its licensors
retain all right in such Confidential Information. When applicable, all Specifications accompanying a
Quotation are considered confidential to BRUS, therefore they are to be solely reviewed by personnel of
the Customer on a need to know basis, unless otherwise authorized in writing by BRUS.
9.2 Obligations.
The Receiving Party will use Confidential Information only in connection with its performance under these
Standard Terms or any Quotation related thereto. The Receiving Party shall use the same degree of care
to avoid any disclosure or use of the Confidential Information as it uses for its own confidential, proprietary
and trade secret information, but in no case use less than a reasonable degree of care. The Receiving
Party agrees to limit disclosure of Confidential Information to employees, contractors or agents and
employees, contractors or agents of Affiliates having a specific need to know such Confidential Information
in furtherance of its performance under these Standard Terms.
9.3 Exceptions.
The confidentiality obligations under this Section 9 do not apply to any information that: (a) is generally
known, or readily ascertainable by proper means, by the public other than through the Receiving Party’s
fault; (b) was known by or in the possession of the Receiving Party or its Affiliate at the time of disclosure
as shown by the Receiving Party’s and/or its Affiliates’ files and records prior to the time of disclosure,
other than as a result of any improper act or omission of the Receiving Party or its Affiliate; (c) is rightly
received by the Receiving Party from a third-party not subject to any nondisclosure obligations with respect
to the Confidential Information; or (d) is independently developed by an employee, agent or consultant of
the Receiving Party or its Affiliates without reference to or use of the Disclosing Party’s Confidential
Information.
9.4 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent it is
requested, ordered or required by a regulatory agency or any other government authority or a court to do
so; provided the Receiving Party promptly notifies the Disclosing Party of such request, order or
requirement (to the extent legally permitted) and provides reasonable assistance, at the Disclosing Party’s
cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to
disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing
Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall
reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that
Confidential Information. If such protective order or other remedy is not obtained, the Receiving Party shall
furnish only that portion of the Confidential Information that is legally required and use commercially
reasonable efforts to obtain assurance that confidential treatment shall be accorded the Confidential
Information.
9.5 Reproduction and Return of Confidential Information.
The Confidential Information provided by the Disclosing Party shall not be copied or reproduced without
the Disclosing Party’s prior written consent, except for such copies as may reasonably be required by the
Receiving Party for its performance of its obligations under these Standard Terms. Upon the Disclosing
Party’s request, the Receiving Party shall promptly return to the Disclosing Party (or its designees) all
Confidential Information received from the Disclosing Party or certify that it has destroyed all Confidential
Information, in whatever form, including written or electronically recorded information and all copies thereof
(other than copies retained in automatic back-up and archive systems). Notwithstanding the foregoing, the
Receiving Party shall be entitled to retain one copy of the Confidential Information with its legal counsel or
other appropriate corporate representative to evidence the exchange of information hereunder and in
connection with legal or statutory requirements. All such retained copies shall be subject to the use and
disclosure restrictions set forth in this Section 9 of these Standard Terms for so long as the Confidential
Information is retained.
10 TERM AND TERMINATION.
10.1 Termination for Breach.
Either Party may terminate these Standard Terms, a Purchase Order, Statement of Work or an accepted
Quotation: (a) upon material breach of any material term of these Standard Terms by the other Party which
is not remedied within thirty (30) days after written notice of such breach is issued by the non-breaching
Party; or (b) if a Party becomes insolvent or makes an assignment for the benefit of creditors, or such Party
institutes any voluntary proceeding under bankruptcy, reorganization, arrangement, readjustment of debt
or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of the
Party’s property, then termination shall be automatic and immediate; however, in the event any such
proceeding is initiated by a third-party against such Party, termination shall be automatic if such proceeding
is not dismissed or cured by the Party within thirty (30) days after the filing thereof. Upon termination, all
rights, licenses, consents and authorizations granted by a Party hereunder will immediately terminate,
other than those expressly specified to continue after termination. The rights of termination provided herein
are not exclusive of other remedies that BRUS may be entitled to under these Standard Terms or in law
or equity.
10.2 Payment upon Termination.
In no event will termination relieve Customer of its obligation to pay any fees payable to BRUS for the
period prior to the effective date of termination.
10.3 Surviving Provisions.
Sections 1, 3.7 and 5 through 11 will survive any termination or expiration of these Standard Terms, any
Purchase Order, Statement of Work or Quotation.
11 MISCELLANEOUS PROVISIONS.
11.1 Posting Through BRUS Website.
BRUS may modify these Standard Terms from time to time by providing written notice and/or posting
revised Standard Terms to BRUS’ Website at www.boschrexroth.com/en/us/terms-and-conditions (as
revised from time to time, the “Updated Standard Terms”), which are hereby incorporated by reference.
Such Updated Standard Terms shall apply to all Purchase Order or Quotation revisions/amendments and
new Purchase Orders or Quotations issued on or after the effective date of such Updated Standard Terms.
11.2 Waiver.
No waiver of any provision of these Standard Terms shall be effective unless agreed to in a writing signed
by BRUS, nor shall BRUS’ waiver of a breach of any provision of this Agreement constitute a waiver of any
succeeding breach of the same or any other provision. No oral agreement, course of performance or other
means other than such written agreement signed by BRUS expressly providing for such waiver shall be
deemed to waive any provision of these Standard Terms. The failure of BRUS to require performance
under any provision of this Agreement shall in no way affect the right of BRUS to require full performance
at any subsequent time.
11.3 Compliance with Applicable Law.
Each Party shall, at all times and at its sole cost and expense, (a) strictly comply with all applicable Laws,
now or hereafter in effect, and other requirements relating to or affecting these Standard Terms, the
Products(including their sale, transfer, handling, storage, use, disposal, export, re-export and
transshipment), Prototypes, Services and/or Software; (b) pay all fees and other charges required by such
Laws; and (c) maintain in full force and effect all licenses, permits, authorizations, registrations and
qualifications from all applicable governmental departments and agencies to the extent necessary to
perform its obligations hereunder.
11.4 Interpretation and Headings.
These Standard Terms shall be read and interpreted according to their plain meaning and any ambiguity
shall not be construed against BRUS as the drafting Party. It is expressly agreed to by the Parties that the
rule of construction that a document should be more strictly construed against the drafter of an agreement
shall not apply to any provisions contained in these Standard Terms. Section headings are for convenience
or reference only and will not affect the meaning or interpretation of these Standard Terms.
11.5 Notice.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a
"Notice") shall be in writing and, for (a) Notices sent to BRUS, addressed to Bosch Rexroth Corporation,
12026 Carolina Logistics Drive, Pineville, NC 28134, Attention: Customer Service, and (b) Notices sent to
Customer, addressed to the address set forth for the Customer on the face of the Purchase Order, in each
case as such address may be updated from time to time by each Party in writing. All Notices shall be
delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified
or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided
in these Standard Terms, a Notice is effective only (x) upon receipt of the receiving party, and (y) if the
party giving the Notice has complied with the requirements of this Section 11.5.
11.6 Force Majeure.
In the event either Party is unable to fully perform its obligations hereunder (except for Customer's
obligation to pay for Products, Prototypes, the Software and/or Services ordered), or if performance is
delayed, hindered, or prevented, in whole or in part, directly or indirectly, due to causes or events beyond
its reasonable control, that by their nature could not have been foreseen, or, if it could have been foreseen,
was unavoidable, including but not limited to, labor strikes, lock-outs or other industrial or labor disputes
(whether involving its own workforce or a third party’s) that interfere with the production and/or
transportation of the Products or Services, accidents, acts of God, action by any governmental authority
(whether valid or invalid and including any change of law or regulation), regulations, restrictions, priorities
or rationing, national, state or municipal emergencies, epidemics, pandemics, quarantines, or other public
health risks and/or responses thereto, fires, floods, windstorms, earthquakes, or other severe weather
conditions or natural disasters (declared or undeclared), tariffs, economic or financial impact of increased
tariffs, embargoes, and/or governmental actions, interruption of transportation, explosions, riots, acts of
terrorism or sabotage, malicious damage, insurrections, wars (declared or undeclared), electronic viruses,
worms or corrupting microcode, cyberattacks, viruses, ransomware, failure or interruptions to network
systems, data breaches, or court injunction or order, unavailability, shortage of supply or delay in delivery
by BRUS’ vendors, breakdown of plant or machinery, default of suppliers or sub-contractors, inability to
obtain or secure: power, raw and other materials necessary for the creation of the Products, labor,
transportation and equipment, or any other cause, casualty, or excusable delay beyond a Party’s
reasonable control, whether similar or dissimilar to any of the foregoing (collectively, “Force Majeure
Event”), that Party shall be relieved of its obligations under these Standard Terms to the extent it is unable
to perform, and shall not be liable or in breach of these Standard Terms. Timely notice of such inability to
perform shall be given to the other Party. In the event of BRUS’ inability to perform due to a Force Majeure
Event, Customer shall be entitled to reduce its purchase obligations towards BRUS by the quantities
purchased from other sources, but shall not have the right to terminate the Purchase Order. Upon a Force
Majeure Event, BRUS shall have the right to allocate its inventory of Products and Prototypes to customers
as determined by BRUS in its sole discretion.
11.7 Assignment.
Customer may not assign any rights or delegate any of its obligations hereunder without the prior written
consent of BRUS, which consent will not be unreasonably withheld or delayed. Any purported assignment
or delegation in violation of this provision shall be null and void. An internal corporate reorganization, which
does not result in a change of control or beneficial owner, shall not be deemed an assignment under this
provision. Notwithstanding the foregoing, BRUS may assign any of its rights or delegate any of its
obligations to any Affiliate or to an entity acquiring all or substantially all of BRUS’ assets or in connection
with a transfer of BRUS’ equity interest without the consent of Customer.
11.8 Relationship of the Parties.
Customer and BRUS are independent contracting Parties and nothing hereunder or in the course of
performance of these Standard Terms shall grant either Party the authority to create or assume an
obligation on behalf or in the name of the other Party, or shall be deemed to create the relationship of
agency, joint venture, partnership, association or employment between the Parties.
11.9 Severability.
In the event that any provision or portion of a provision herein is determined to be illegal, invalid, or
unenforceable by a court of competent jurisdiction or by an arbitration panel in accordance with Section
11.10 below, the validity and enforceability of the remaining provisions shall not be affected, and in lieu of
such provision, a provision similar in terms as is legal, valid and enforceable shall be added hereto.
11.10 Dispute Resolution; Governing Law.
These Standard Terms, the Quotation, Statement of Work and/or Purchase Order and all disputes between
the Parties arising out of or related thereto shall be governed by the laws of the State of Michigan except
for its choice of law rules; the United Nations Convention on the International Sale of Goods shall not apply.
BRUS and Customer acknowledge that these Standard Terms, the Quotation, Statement of Work and/or
Purchase Order evidence transactions involving interstate commerce. Any and all disputes, controversies,
differences, or claims arising out of or relating to these Standard Terms (including the formation, existence,
validity, interpretation (including of this Arbitration clause), breach or termination thereof) shall be resolved
exclusively through binding arbitration, except that either Party shall have the right, at its option, to seek
interim injunctive relief at any time, under seal to maintain confidentiality to the extent permitted by Law,
(i) in either the Michigan Circuit Court for the County of Oakland or the United States Court for the Eastern
District of Michigan, or (ii) pursuant to the American Arbitration Association (“AAA”) Commercial Arbitration
Rules. A request by a Party to a court of competent jurisdiction for such interim measures shall not be
deemed incompatible with, or a waiver of, this agreement to arbitrate. The Parties agree that any ruling
by the arbitration tribunal on interim measures shall be deemed to be a final award for purposes of
enforcement. The arbitration proceedings shall be conducted in accordance with the Commercial
Arbitration Rules of the AAA as amended from time to time, except as modified by this clause or by mutual
agreement of the Parties, and shall be governed by the United States Federal Arbitration Act. Within 14
days after the commencement of arbitration, each Party shall select one person to act as arbitrator and
the two selected shall select a third arbitrator within 10 business days of their appointment. If the arbitrators
selected by the Parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be
selected by the AAA. The arbitration shall be conducted in Detroit, Michigan, USA, and the language of
the arbitration shall be English. The arbitrators’ award shall be final and binding. The arbitrators shall issue
a written opinion setting forth the basis for the arbitrators’ decision. The written opinion may be issued
separately from the award in the arbitrators’ discretion. Each Party shall bear its own attorney fees and
costs, and each Party shall bear one half the cost of the arbitration hearing fees and the cost of the
arbitrator, unless the arbitrators find the claims or defenses to have been frivolous or harassing, in which
case fees and costs may be assessed in the arbitrators’ discretion. Either Party may apply to have the
arbitration award confirmed and a court judgment entered upon it. Venue for confirmation of or any
challenge to the Arbitration Award shall be in either the Michigan Circuit Court for the County of Oakland
or the United States Court for the Eastern District of Michigan and shall be done under seal to maintain
confidentiality to the maximum extent permitted by law. The arbitrators shall have no authority to award
punitive damages or any other damages excluded herein, to the maximum extent permitted by law. Except
as may be required by Law, neither a Party, its counsel, nor an arbitrator may disclose the existence,
content, or results of any arbitration hereunder without the prior written consent of both Parties.
11.11 Limitation Period.
Except as provided in this Section 11.11, all claims must be made within the period specified by applicable
Law. If the law allows the Parties to specify a shorter period for bringing claims, or the law does not provide
a time at all, the claims must be made within eighteen (18) months after the cause of action accrues.
11.12 Export Control.
Activities undertaken by either Party pursuant to these Standard Terms shall at all times be consistent with
all import and export and national security laws or regulations of the United States and any applicable
foreign agency or authority. Neither Party shall import, export or re-export, or authorize the export or re?export of any product, technology, or information that it obtains or learns hereunder, or any copy or direct
product thereof, in violation of any of such laws or regulations without the required license or approvals
required thereunder.
11.13 Government Contracts.
If Products, Prototypes, the Software and/or Services are purchased under a government contract or sub?contract, Customer shall promptly notify BRUS in writing of the provisions of any government procurement
laws and regulations which are required to be included in the contract covering the Products, Prototypes,
the Software and/or Services ordered, which BRUS must agree upon in writing. If compliance with such
provisions increase BRUS’ costs or liability, or encumbers any BRUS Intellectual Property Rights, BRUS
shall be entitled, at its option, to adjust the prices accordingly, request separate payment of the additional
costs, or terminate these Standard Terms and/or the applicable Purchase Order, in which case Customer
shall be responsible for all costs incurred by BRUS prior to such termination. Subject to the provisions of
this Section 11.13, BRUS represents that its performance hereunder is in compliance with the following
provisions, as applicable, and as may be amended from time to time (and same are incorporated herein
by reference):
11.13.1 The Fair Labor Standards Act,
11.13.2 Executive Order 11246, including section 202,
11.13.3 The Vietnam Era Veterans Readjustment Assistance Act of 1974,
11.13.4 Worker’s Compensation, and
11.13.5 The Rehabilitation Act of 1973.
11.14 Entire Agreement.
These Standard Terms and all other agreements incorporating these Standard Terms constitute the sole
and entire agreement under, which BRUS will sell and Customer will purchase the Products, Software,
Prototypes and Services. Terms and conditions proposed by Customer that are different from or in addition
to the provisions of these Standard Terms (except for the quantity and Product description) are hereby
expressly rejected by BRUS and are not a part of these Standard Terms, any Purchase Order, accepted
Quotation or Statement of Work, and Customer’s acceptance is expressly limited to the terms of this
Standard Terms. These Standard Terms and all other agreements incorporating these Standard Terms
constitute the entire agreement between BRUS and Customer with respect to the matters contained
herein/therein and supersede all prior or contemporaneous oral or written agreements, understandings,
representations, negotiations, writings, memoranda and/or communications, either oral or written, with
respect thereto. These Standard Terms may only be modified by an amendment issued and signed by an
authorized representative of BRUS.
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