Bosch Software Maintenance Program Agreement En Us VMS Special 30979308939
User Manual: Bosch en-us Bosch Video Management System 7.5
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Bosch Security Systems B.V.
VMS Software Maintenance Agreement
_________________________________________________________________________________________________________________________
Bosch Security Systems B.V. ("Bosch") develops, markets and licenses Bosch Video Management System software for use in CCTV, intrusion, fire,
access control and security systems. This Bosch Software Maintenance Agreement (the “Agreement”) sets out the terms and conditions under which
Bosch will provide "Maintenance Services" (defined below). The provision of Maintenance Services by Bosch is subject to and conditioned on
Customer's acceptance of the terms of this Agreement, and the terms of the Service Level Agreement Supplement (the "Supplement"). By accepting
Maintenance Services Customer accepts the terms of this Agreement including the Supplement.
1.
Definitions.
1.1
“Agreement” means this Bosch Software Maintenance
Agreement, including the Service Level Agreements referred to herein.
1.2
“Bosch Video Management System Software” or the "Software"
means the Bosch Video Management System Software for which
Customer has purchased a license to use.
1.3
“Additional Features” means the expansions or optional features
to the Software that are not part of the standard Software modules
licensed by Customer at Effective Date, or that are added to the Software
configuration after the Effective Date.
1.4
“Effective Date” means the date on which the license activation
key for the Software is generated by Bosch.
1.5
“Installation Site” means the specific Customer location where the
Software is installed.
1.6
“MSLA” means the “Maintenance Service Level Agreement”,
which sets out the details of the Maintenance Services as applicable from
time to time. The MSLA is located on the Bosch Video Management
System page in the CCTV online product catalog, which can be found on
your local Bosch Security Systems website (follow the links from
www.boschsecurity.com).
1.7
“Maintenance Services” means the maintenance services as
described in this Agreement and in the MSLA.
1.8
“Maintenance Services Fee” means the fee to be paid annually by
Customer to receive the Maintenance Services.
1.9
“Major Release” means a major update or upgrade to the
Software which includes significant enhancements and/or a major
redesign of the Software, identified by Bosch by a change to the first digit
in the release number (e.g. change from version 2.0 to 3.0).
1.10
“Minor Release” means a minor update or upgrade to the
Software (including service releases or bug fixes), identified by Bosch by
a change in the second or following digit in the release number (e.g.
change from version 2.1 to 2.2 or 2.2.1 to 2.2.2.).
1.11
“Contract Year” means the period of one (1) year starting at
Effective Date of the first Software installation of a Customer, and each
subsequent
anniversary of the Effective Date.
Each Software
configuration only has one (1) Contract Year (e.g. from 1st May year A until
th
30 April year A+1), and adding Additional Features does not affect this
period.
2.
Start of the Maintenance Services.
2.1
Payment of the license fee for the Software by Customer
automatically includes one (1) initial Contract Year of Maintenance
Services, commencing on the Effective Date.
2.2
After each Contract Year, the term of this Agreement is only
extended if the Customer places a valid order therefor, and pays the then
current maintenance Services Fee for the next Contract Year.
3.
Description and coverage of the Maintenance Services
3.1
The Maintenance Services are comprised of the technical support
(bug-fixing) and technical updates (software maintenance through issuing
new Releases) of the Software. The details of the Maintenance Services,
which details may list, without limitation, included and excluded services,
duties of Customer, and service levels offered by Bosch, are described in
the MSLA, which is incorporated herein by reference.
3.2
The MSLA is subject to modification by Bosch via the posting of
an updated edition of the MSLA at the Bosch website referenced in
Section 3.1 above. Except as stated otherwise in the then current version
of the MSLA, a new version of the MSLA will be applicable to and
incorporated into this Agreement the earlier of (i) one (1) month after such
Bosch VMS Software Maintenance Agreement \\ Rv: 2009.08.11
MSLA version is posted on the Bosch website, or (ii) the start of the first
Contract Year following such posting on the Bosch website.
3.3
The Maintenance Services cover the Software configuration
licensed at Effective Date. Additional Features are added to the scope of
the Maintenance Services as from the Effective Date of such Additional
Feature, subject to Customer having paid the license fee for such
Additional Feature. The initial period of Maintenance Services for an
Additional Feature runs from the Effective Date of such Additional
Feature until the end of the running Contract Year during which the
Additional Features are added to the Software configuration.
4.
Customer Obligations.
4.1
Contact Information. Customer shall provide Bosch prompt
written notice of all changes to Customer’s contact information.
4.2
Customer duties under the MSLA. Customer shall comply with its
duties as set forth in the MSLA. In the event Customer does not comply
with such duties, then Bosch, without limiting other available remedies,
may terminate the Agreement upon written notice to Customer.
5.
Fees and Payments.
5.1
Maintenance Services Fee.
5.1.1 The Maintenance Services Fee for the initial Contract Year is
included in the license fee paid by Customer for the Software.
5.1.2 In the second and each subsequent Contract Year, Customer
must order a Maintenance Services renewal for the Software. The
Maintenance Services Fee for the second and each subsequent Contract
Year must be ordered by Customer. The price of the Maintenance
Service Fee shall be eighteen percent (18%) of the then current license
fee of the corresponding Software components, after deduction of the
license fee discount, if any, provided by Bosch to Customer.
5.2
Additional Features. Additional Features are invoiced at the start
of the first Contract Year following the Contract Year in which such
Additional Features are activated.
5.3
Reinstatement fee.
If Customer wishes to reinstate the
Maintenance Services after such Maintenance Services have been
terminated, Bosch will charge Customer a reinstatement fee. The
reinstatement fee covers the period of time between when the
Maintenance Services were terminated and the date the Maintenance
Services are to resume. The reinstatement fee will be equal to the then
current prevailing Maintenance Services Fees for covered Software
components for the lapsed period of time.
5.4
Maintenance Services Fee Changes.
Bosch may change
(increase or decrease) the Maintenance Services Fee upon written notice
at least sixty (60) days prior to the effective date of such change. Such
changes do not affect the Maintenance Services fee for the then current
Contract Year, but shall only apply as from the start of the next Contract
Year.
5.5
Payment.
5.5.1 All Maintenance Services Fee payments shall be in the currency
of the license fee paid for the Software.
5.5.2 Taxes. The Maintenance Services Fee is exclusive of all
applicable federal, state, provincial and local taxes including, without
limitation, sales, use, property, value added, goods and services, excise,
and similar taxes, and all such taxes shall be assumed and paid by
Customer, excluding taxes on Bosch’s net income. In the event that
Bosch determines that any such taxes are subject to withholding
requirements, Bosch may bill Customer for such taxes, and Customer
shall promptly pay the amount billed. If any such tax for which Customer
is responsible hereunder is paid by Bosch, Customer agrees to promptly
reimburse Bosch therefore.
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5.6
Terms. Failure of Customer to fully pay any fees within the period
specified in the applicable Bosch standard terms and conditions after the
applicable due date shall be deemed a material breach of this Agreement,
justifying suspension of the performance of Bosch’s obligations, and shall
be sufficient cause for immediate termination of this Agreement by Bosch.
Any termination or suspension of this Agreement does not relieve
Customer of paying past due fees plus interest. In the event of collection
enforcement, Customer shall be liable for any costs associated with such
collection, including, but not limited to, legal costs, attorneys’ fees, court
costs, and collection agency fees.
6.
Warranty and Remedies.
6.1
Warranty. Bosch warrants that the Maintenance Services shall be
performed in a professionally diligent manner. THE FOREGOING IS A
LIMITED WARRANTY AND BOSCH EXPRESSLY DISCLAIMS ANY AND
ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS
OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND
FITNESS
FOR
A
PARTICULAR
PURPOSE.
COMPANY
ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS
AGREEMENT IN RELIANCE UPON ANY BOSCH WARRANTY OR
REPRESENTATION.
6.2
Remedies. Bosch’s sole obligation and Customer’s sole remedy
under the limited warranty set forth above are strictly and exclusively
limited to re-performance of any Maintenance Services which were not
performed in accordance with the above warranty, and which are made
known to Bosch by written notice from Customer describing such failure in
performance in reasonable detail or, at the election of Bosch, a pro rata
refund of the Maintenance Services Fees paid by Customer for the portion
of the Maintenance Services which were the subject of Customer’s
warranty claim.
7.
Limitation of Liability.
7.1
THE LIABILITY OF BOSCH AND ITS AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS,
CONTRACTORS OR REPRESENTATIVES (COLLECTIVELY THE
“BOSCH-PARTIES”) FOR ANY CLAIM, REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, TORT OR NEGLIGENCE, FOR
ANY DAMAGES RESULTING FROM OR IN ANY MANNER
CONNECTED WITH THIS AGREEMENT OR THE MAINTENANCE
SERVICES PERFORMED HEREUNDER, SHALL BE LIMITED TO THE
LESSER OF (I) CUSTOMER’S ACTUAL DIRECT DAMAGES RELATED
THERETO, OR (II) THE AMOUNT OF THE MAINTENANCE SERVICE
FEES PAID BY CUSTOMER FOR THE PORTION OF THE
MAINTENANCE SERVICES WHICH ARE THE SUBJECT OF
CUSTOMER’S CLAIM. IN NO EVENT SHALL THE AGGREGATE
LIABILITY OF THE BOSCH-PARTIES EXCEED THE MAINTENANCE
SERVICES FEES PAID BY CUSTOMER HEREUNDER DURING THE
CONTRACT YEAR IN WHICH THE CLAIM ACCRUED.
7.2
IN NO EVENT SHALL ANY OF THE BOSCH-PARTIES BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO,
LOST BUSINESS, LOST PROFITS AND OTHER ECONOMIC
DAMAGES, WHETHER FORESEEABLE OR NOT, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
8.
Term and Termination.
8.1
Term. The term of this Agreement shall begin on the Effective
Date of the first Contract Year. It shall be renewed for a first and
subsequent renewals if Customer has confirmed for each Contract Year a
valid order in accordance with the provisions of Section 2.2 hereof.
8.2
Termination. Either party may terminate this Agreement at any
time upon written notice to the other party.
8.3
Upon the termination of this Agreement by Customer for any
reason Bosch shall have the right to retain all amounts paid by Customer
to Bosch prior to the effective date of such termination. If Bosch
terminates this Agreement for reasons other than a material breach by
Customer, Bosch will reimburse a prorated amount for the current
Contract Year and any future pre-paid Contract Years. In no event will
Bosch make any reimbursement related to the first Contract Year of
Maintenance Services.
to circumstances beyond its reasonable control, including, without
limitation, acts of God, acts of a public enemy, fires, wars, terrorist acts,
civil disturbances, sabotage, accidents, insurrections, blockades,
embargoes, explosions, labor disputes, acts of any governmental body,
failure or delay of third parties (including subcontractors) or governmental
bodies from whom a party must obtain approvals, franchises, or permits,
equipment failure or breakdown, or inability to obtain labor, materials,
equipment or transportation, power shortage or blackouts (the foregoing
collectively called “Excusable Delay”). Each party will use its best efforts
to minimize the duration and consequences of any failure of or delay in
performance resulting from an Excusable Delay.
9.2
Waiver. Any delay by a party in exercising its rights hereunder
will not constitute a waiver of its rights or its ability to enforce any such
rights.
9.3
Severability. If any provision of this Agreement is for any reason
held unenforceable or invalid, then this Agreement will be construed as if
such provision were not contained herein.
9.4
Survival. The terms and conditions of this Agreement regarding
payment, ownership of intellectual property, warranty, indemnification,
liability and all others that by their sense and context are intended to
survive the execution, delivery, performance, and termination of this
Agreement, survive and continue in effect.
9.5
Governing Law.. This Agreement shall be construed according to
the laws of the Switzerland. The provisions of the United Nations
Convention on Contracts for the International Sale of Goods shall not
apply. Any dispute will be subject to arbitration under the rules of the ICC
and shall take place in Zurich, Switzerland.
9.6
Relationship of the parties. The relationship of the parties created
by this Agreement is that of independent contractor and not that of
employer/employee, principal/agent, partnership, joint venture or
representative of the other. Neither party shall represent to third parties
that it is the representative of the other in any manner or capacity
whatsoever.
9.7
Section Headings. Section headings are for convenience only
and will not be construed as a part of this Agreement.
9.8
Notices. All notices, requests, demands or other communications
by the parties, other than routine operation communications under this
Agreement, required or permitted to be given by one party to the other
shall be given in writing by personal delivery or sent (postage prepaid with
return receipt or delivery confirmation requested) by registered mail,
certified mail, or by courier service (e.g. Federal Express, UPS, etc.), and
shall be delivered addressed (i) if to Customer, at the address specified in
Part 1 of this Agreement, (ii) if to Bosch, at the addresses specified in Part
3 of this Agreement, or at such other address as either party may notify
the other from time to time in accordance with this Section. Such notices,
requests, demands or other communications shall be deemed to have
been received: (a) if personally delivered, upon delivery; or (b) if sent by
registered, certified mail or express mail delivery, upon delivery thereof as
evidenced by such return receipt or delivery confirmation.
9.9
English Language. The parties hereto expressly required that this
Agreement be written in English. The English version of this Agreement
will govern in the event of any disagreement over any translation.
9.10
Entire Agreement. This Agreement, including the MSLA, any
Bosch Standard Terms and Conditions as applicable from time to time, as
well as all exhibits, schedules or appendices hereto, constitutes the
complete and exclusive statement of the terms hereof and supersedes all
prior oral and written statements of any kind made by the parties or their
representatives with respect to the subject matter hereof. Any Customer
purchase order or similar document issued by Customer shall not be part
of this Agreement and shall not add to or modify any of the terms hereof.
This Agreement may only be changed or supplemented by a written
amendment signed by authorized representatives of the parties.
9.
General.
9.1
Excusable Delay. Neither party will be liable for any failure of or
delay in performance of its obligations under this Agreement (other than
failure to pay money when due) to the extent such failure or delay is due
© 2009 Bosch Security Systems B.V. All rights reserved. | Updated August 2009 | Data subject to change without notice.
Bosch VMS Software Maintenance Agreement \\ Rv: 2009.08.11
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