B&R Industrial Automation Inc.
2830 Argentia Road | Suite 1 | Mississauga , ON L5N 8G4 | Canada
Phone: +1 (905) 567 9500
Fax: +1 (905) 286 9509
email: office.ca@ br-automation.com
This Terms and Conditions of Sale and Services Agreement (“Agreement”) shall govern the sale of all products (“Goods”) and the provision of all services (including but not limited to consultation, design, programming and testing of application software developed for Customer) (the “Services”) provided by B&R Industrial Automation Inc. (“B&R”) to its customer (“Customer”). To the extent that any purchase order or sales order issued by Customer (“Order”) contains any terms and conditions that conflict with this Agreement, this Agreement shall control, and such conflicting terms are deemed rejected by both parties. Similarly, any terms contained in an Order that supplement this Agreement are rejected unless contemplated by this Agreement (e.g., description of ordered Goods, price, and estimate time and place of delivery) or a statement of work describing the Services to be provided, price, applicable milestones or date of Services (each a “SOW”). Any Order or SOW issued hereunder shall expressly reference this Agreement (and the Customer hereunder shall be the entity to which such Order or SOW is addressed), but such reference shall not be a requirement to the application of this Agreement. Any deviation from this Agreement shall be only pursuant to an express written document executed by both parties that expressly references this Agreement and the deviation therefrom. Orders or SOWs submitted by Customer to B&R are not binding upon B&R unless accepted as provided in Section 2.1 or 3.1 below, as applicable.
All Orders for Goods are subject to acceptance by an authorized B&R representative from B&R's order processing department. Acceptance may be made by delivery of the ordered Goods or by written confirmation. The Order shall include the following information including, but not limited to, purchase order number, billing address, quantities, model numbers or descriptions, price and requested shipment dates. After B&R’s acceptance, Customer may not cancel its Order without the written consent of B&R. B&R may cancel and not complete its obligations under Customer’s Order if, at any time, in B&R’s opinion, all terms and conditions of this Agreement are not complied with by Customer, a Force majeure event has occurred, or B&R has reasonable grounds for insecurity with respect to performance by Customer. Following such cancellation, B&R shall refund to Customer any portion of the purchase price Customer had paid for unshipped Goods, and Customer shall have no other rights against B&R with respect to such cancellation including, but not limited to, damages as a result of such cancellation.
Unless otherwise agreed by B&R in writing, prices and shipments are delivered Ex Works (Incoterms 2020) point of shipment in Canada and do not include taxes, demurrage or detention charges, crating, freight, delivery, insurance, dismantling, loading, unloading, or installation. Such additional charges shall be paid by Customer. Shipment of the Goods will be as agreed by B&R in writing, or if none is specified, then, B&R will use its discretion in selecting the transportation method. Any designated date of shipment is not a guaranteed date of shipment. B&R shall not be liable for any damages or loss, or failure of or delay in performance, for Force majeure. In the event of delay due to any such cause, the date of delivery will be extended by a period equal to the delay plus a reasonable time to resume production. If acts or omissions of the Customer or its contractors or suppliers cause the delay, B&R shall be entitled to an equitable price adjustment and schedule adjustment. B&R reserves the right to make deliveries in installments. The delivery of part of an order shall not obligate B&R to make further deliveries. B&R reserves the right to allocate inventories and production when, in its opinion, such allocation is necessary. Risk of loss and damage to the Goods shall pass to Customer at the point of shipment, B&R’s facility. Claims for Goods lost or damaged in transit are Customer’s responsibility. If Customer requests in writing and B&R agrees, B&R, at Customer’s expense, will endeavor to obtain insurance covering losses which are at Customer’s risk such as theft, breakage, fire and water damage, and such other insurable casualties as Customer and B&R may agree. B&R retains title to the Goods until the full purchase price has been paid in full.
Customer shall inspect the Goods within two (2) business days after delivery. Failure of Customer to inspect the Goods and/or failure to notify B&R in writing of any noncompliance, shortage or other reason for Customer’s rejection of any of such Goods within such period and the specific grounds for rejection shall constitute irrevocable acceptance of the Goods. In cases of any Goods manufactured to Customer’s specification (“Special Orders”) and unless otherwise agreed to in writing, all tools, models, plans, blueprints or other devices and/or documents used and/or developed by B&R (the “Tools”) in order to fulfill any Special Order are the property and Confidential Information (as defined herein) of B&R, even if the cost of development and/or manufacturing of such Tools was wholly or partially borne by Customer.
B&R is not responsible for unloading or installation unless Customer and B&R enter into a separate contract for such services.
B&R warrants that the Goods purchased hereunder that were manufactured by B&R or B&R Industrial Automation GmbH will be free from material defects in workmanship and materials for a period of 12 months from the date of shipment by B&R. Any claim for warranty for such covered Goods must be made in writing to B&R promptly after discovery of the defect and within the warranty period. If B&R determines the conditions of this warranty are met and that Customer has met its obligations under this Agreement including all payments, B&R’s sole obligation under this warranty and Customer’s sole and exclusive remedy is the repair or replacement, at B&R’s option, of the defective component, free of charge. All replacement components are warranted for the remaining term of the original warranty period for the replaced component or 90 days, whichever is greater. This warranty shall not cover, and B&R shall have no responsibility for, any defect not existing prior to manufacturer’s shipment or resulting directly or indirectly from disaster or other force majeure, accident, abuse, misuse, negligence, vandalism, improper handling, modification, failure to properly maintain or operate in accordance with manufacturer instructions, failure to use proper materials and consumables, excess load, damage from external sources, repair attempts by persons not authorized by the manufacturer or B&R, or any defect cause by Customer or any third party. This warranty does not cover normal wear and tear. This warranty does not cover Goods not manufactured by B&R or B&R Industrial Automation GmbH. For Goods manufactured by others, Customer may request B&R in writing to assign to Customer such rights, if any, as B&R may have with respect to defects in those Goods, but, B&R has no warranty responsibility as to those Goods. This warranty is not transferable. With respect to Special Orders, any defects of the Goods caused by or as a result of compliance with the Customer’s specifications are excluded from the warranty set forth in this Section 2.5. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 2.5, B&R MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES WITH RESPECT TO THE GOODS SOLD HEREUNDER, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Customer may only return Goods to B&R in accordance with B&R’s return policy as in effect from time to time. Such policy includes the following requirements: Returns must receive written authorization from B&R on B&R’s Material Return Authorization form. B&R has no obligation to accept returned Goods, and under no circumstances will B&R accept returned Goods after 60 days from the date of B&R’s shipment. B&R may charge a restocking fee of 40% of the purchase price on any return Goods accepted by B&R. No used, damaged, obsolete, or customized Goods are returnable. Only the original purchaser may be eligible to return Goods. Goods must be returned in their original packaging. Shipping is paid by the Customer.
To secure the payment of purchase price and any other amounts due B&R from Customer, Customer hereby grants to B&R a continuing and first priority security interest in the Goods covered by this Agreement and any and all proceeds thereof. Such security interest shall remain in force until payment in full of the entire purchase price for the Goods covered by this Agreement and any amounts due to B&R by the Customer. B&R shall have all of the rights and remedies available to a secured party, which shall be cumulative with all other rights and remedies afforded a seller of goods by law. Customer hereby designates B&R as its attorney in fact to sign any financing statements required by B&R to perfect this security interest. The Goods shall be and remain personal property and not fixtures whether or not attached to real property.
Any software or documentation delivered in connection with an Order of Goods is delivered under a nonexclusive, non-transferable license to use and execute the same only in connection with the Goods delivered hereunder. Customer may not modify, reproduce, decompile, reverse engineer or transfer such software or documentation without B&R’s prior written consent. Customer agrees not to sublicense, rent, lease, sell or otherwise transfer such software or documentation except with the express written consent of B&R. Moreover, Customer shall not obscure or cover any copyright notice, mask work notice or other proprietary legends placed on or embedded in the software or documentation or otherwise appearing in or on the Goods. Customer acknowledges and agrees that nothing herein gives it any right, title or interest in the software or documentation except for its limited express rights set forth above. Additionally, Customer acknowledges and agrees that B&R maintains exclusive ownership of and to all aspects of design of the Goods, and in and to the software and documentation, in all forms, all copies thereof, and all derivative works and compilations, including without limitation, any and all worldwide copyrights, patents, trade secrets, mask works and proprietary and confidential information rights associated therewith. Customer may be required to enter into a separate license agreement which will supersede this section with regard to the subject of such license agreement.
All SOWs are subject to acceptance by an authorized B&R representative from B&R's order processing department. Acceptance may be made by performance of the requested Service or by written confirmation.
Unless terminated sooner in accordance with its terms, each engagement for Services to be performed by B&R shall terminate on the completion of such Services. Each engagement may be terminated by Customer at any time, with or without cause, by giving not less than fifteen (15) days prior written notice to B&R; provided that if such termination is for cause, the Customer will so state in its notice of termination and B&R shall have the right to cure the breach within the notice period and thereby avoid such termination. Each Services engagement may be terminated by B&R, with or without cause, by giving not less than fifteen (15) days prior written notice to Customer; provided that if such termination is for cause, B&R will so state in its notice of termination and Customer shall have the right to cure the breach within the notice period and thereby avoid such termination. Upon termination of an engagement, the Customer will compensate B&R under the terms of the engagement for the Services performed and expenses incurred through the effective date of termination.
The Customer shall cooperate with B&R hereunder, including, without limitation, (i) providing B&R with reasonable facilities and timely access to hardware, supplies, information, and personnel of the Customer; (ii) providing experienced and qualified personnel having appropriate skills to perform their assigned tasks and duties in a competent and timely fashion; (iii) providing a stable, fully functional environment which will support the Services and allow B&R and Customer to work productively; and (iv) promptly notifying B&R of any issues, concerns or disputes with respect to the Services. The Customer shall be responsible for the performance of its personnel and agents and for the quality of the work provided to B&R for purposes of the performance of the Services. The Customer acknowledges and agrees that B&R’s performance is dependent upon the timely and effective satisfaction of the Customer’s responsibilities hereunder and timely decisions and approvals of the Customer in connection with the Services. B&R shall be entitled to rely on all decisions and approvals of the Customer. The Customer shall be solely responsible for, among other things: (i) making all management decisions and performing all management functions; (ii) designating a competent management member to oversee the Services; (iii) evaluating the adequacy and results of the Services; and (iv) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities. It is understood and agreed the SOW may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, the Customer.
Recommended change orders, intermediate and final milestone deliverables (including B&R produced plans, drawing, and specifications, and other work details), and work products will be deemed acceptable by the Customer five days after they are completed and submitted to the Customer for acceptance or comment, unless objections are provided to B&R in writing within this five day period.
The price or fees for the Services shall be as set forth in the SOW, or if the price or fees are not set forth therein, B&R's standard rates and fee schedule shall apply. Unless otherwise expressly agreed by the parties in writing expenses reasonably incurred by B&R, its agents and subcontractors in performing Services shall be invoiced to and subject to reimbursement by Customer, including, but not limited to, materials, supplies, use of specialized equipment, travel and subsistence costs, including mileage, cellular and non-local telephone and other communication charges, express delivery, postage and freight charges, word processing, computer processing and reproduction and printing charges required in providing Services, and technical services by others, plus permit fees, taxes, charges and assessments on Services.
The parties acknowledge that B&R shall have the right to (i) provide consulting or other services of any kind or nature whatsoever to any person or entity as B&R in its sole discretion deems appropriate, or (ii) use any works of authorship or other intellectual property that may be included in the deliverables, to develop for itself, or for others, materials or processes that may be similar to those produced as a result of the Services.
B&R warrants that it shall perform the services in good faith and in a professional manner.
Certain Services covered by a SOW include the creation of software for the Customer, referred to as “Application Software”. This is separate and distinct from software supplied by B&R as part of its platform sale, which is referred to as “System Software”. Examples of System Software include, but are not limited to, operating systems, programming libraries, compilers and development tools. If a SOW includes the development of Application Software for the Customer, then upon full and final payment to B&R, and subject to all other terms and conditions herein, B&R hereby grants to the Customer a nonexclusive, perpetual license to use such Application Software solely for (i) its internal use (which includes the integration of such Application Software into finished products manufactured and sold by Customer), and (ii) the operation of any finished products manufactured and sold by Customer that contain the same. All Application Software created for a Customer, even Application Software created, made or developed at the request of Customer, shall be and shall remain the property of B&R.
B&R warrants that, except as specified below, the Application Software will, when properly installed, execute in accordance with B&R's published specification. If a nonconformity to the Application Software is discovered during the Software “Warranty Remedy Period” ending one (1) year after the date of shipment and written notice of such nonconformity is provided to B&R promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, B&R shall, at its option, correct the nonconformity by, either (i) modifying or making available to the Customer instructions for modifying the Application Software; or (ii) making available at B&R's facility necessary corrected or replacement programs. B&R shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Application Software or (ii) Customer-supplied software or interfacing. B&R does not warrant that the functions contained in the Application Software will operate in combinations which may be selected for use by the Customer, or that the Application Software products are free from errors in the nature of what is commonly categorized by the computer industry as "bugs".
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. . THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY SHALL BE FOR B&R, UPON RECEIPT OF WRITTEN NOTICE GIVEN WITHIN THE TIMEFRAME SPECIFIED IN SECTION 3.4, TO USE DILIGENT EFFORTS TO CURE SUCH BREACH, OR, FAILING ANY SUCH CURE IN A REASONABLE PERIOD OF TIME, THE RETURN OF FEES PAID TO B&R HEREUNDER WITH RESPECT TO THE SERVICES GIVING RISE TO SUCH BREACH.
Payment for Goods shall be as agreed by B&R in writing. Payment for Services shall be made as set forth in the applicable SOW. If payment terms are not separately agreed upon in writing by B&R or in the applicable SOW, payment shall be by certified funds, bank wire, or bank draft due in Canadian dollars within thirty (30) days of B&R’s invoice. No cash payments will be accepted. All work shall be subject to credit approval by B&R. If all of the Goods or Services are not delivered at one time, Customer shall pay the unit price applicable to the Goods or Services delivered. Each shipment of Goods shall be considered a separate and independent transaction. B&R may, at any time, decline to make shipments or deliveries of Goods, or extend additional credit, except upon receipt of payment. Without limiting its rights or remedies, B&R shall have the right to halt or terminate the Services entirely if payment is not received within thirty (30) days of the invoice date. Subject to written notice to Customer, in the event that B&R’s performance is suspended due to untimely payment(s) by Customer, for each day of suspension, B&R shall be entitled to a matching extension and Customer shall pay all reasonable expenses incurred by B&R in connection with a suspension. If in B&R’s opinion, Customer’s financial condition or payment history makes B&R insecure as to payment for the Goods or Services, B&R may require full or partial payment in advance. Any payment or charge not received when due will bear interest at the rate of 1.5% per month (18% per year) from the date due. The full purchase price set forth for the Goods or Services shall not be subject to any set-off, deduction or counterclaim of any kind. Any check or remittance received from or for the account of Customer may be accepted and applied by B&R against any indebtedness or obligation owed by Customer without prejudice to or discharge or accord and satisfaction of the remainder of any such indebtedness or obligation, regardless of any condition, provision, statement, legend, notation, document or writing appearing on, referring to, or accompanying such check or remittance. Any bank charges for drafts, wire transfers, and bad checks shall be paid by Customer. Customer shall pay for all of B&R’s costs of enforcing this Agreement (including reasonable attorneys’ fees), including collection of amounts due for Goods or Services or otherwise under this Agreement. If Customer fails to make a payment on or before the due date for such payment, or becomes insolvent, all balances then due and owing to B&R shall become due immediately, notwithstanding any agreed upon payment periods. Any Orders for Goods that have been confirmed by B&R, but not yet filled, shall in such cases become cancelable at the sole discretion of B&R. Without prejudice to any other remedies, B&R shall be entitled to immediate repossession of any Goods delivered by B&R if Customer fails to timely pay for such Goods, and Customer hereby permits B&R entry to Customer’s premises for such purpose and waives any and all rights to notice or hearing prior to seizure of the Goods following default in payment.
All fee and price quotations do not include and Customer shall be responsible for all personal property, sales, use, excise, import, duty, value added, and similar taxes applicable to the Goods sold or Services rendered, not measured by the income of B&R, or Customer shall provide B&R with a valid tax exemption number or certificate acceptable to the applicable taxing authorities.
IN NO EVENT SHALL B&R BE OBLIGATED OR LIABLE TO CUSTOMER OR ANY OTHER PERSON, IN TORT OR CONTRACT OR OTHERWISE, BASED UPON NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR OTHERWISE, FOR ANY DAMAGES OR LOSSES OF ANY KIND (EXCEPT FOR THE SOLE REMEDIES PROVIDED IN SECTIONS 2.5 AND 3.7 OF THIS AGREEMENT WHERE APPLICABLE) WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONTRIBUTORY, INCLUDING BUT NOT LIMITED TO THOSE BASED UPON ANY LOSS OR DAMAGE RESULTING FROM GENERAL OR PARTICULAR REQUIREMENTS AND NEEDS OF CUSTOMER OF WHICH B&R MAY HAVE HAD REASON TO KNOW, LOST PROFITS OR REVENUE, ANTICIPATED SAVINGS, GOODWILL, FACILITY OR PRODUCTION DOWNTIME, LOSS OR DAMAGE OF MATERIALS, INJURY TO PERSON OR PROPERTY OR DEATH, OR OTHERWISE. Without limiting the foregoing, B&R shall have no liability or responsibility for damage or loss of use of Goods from accident, misapplication, abuse, misuse, improper or substandard unloading or installation, negligence, failure to properly maintain, extra loads, external sources, or repair attempts by unauthorized persons. Under no circumstances will the aggregate liability of B&R for any cause of action related to this Agreement or the Goods or Services covered hereby exceed the net amount received by B&R for the applicable Goods and/or Services giving rise to such claim. Any action or suit by Customer against B&R relating to this Agreement or the Goods or Services covered hereby must be brought within one (1) year of the date of invoice for such Goods or Services giving rise to such action or suit. This is a commercial transaction. If Customer is supplying Goods or Services to a third party, or using Goods or Services at a facility or site owned by a third party, Customer shall either (i) indemnify and defend B&R from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this Article 6, or (ii) require that the third party agree, for the benefit of and enforceable by B&R, to be bound by the limitations included in this Article 6.
Customer agrees to indemnify and hold harmless B&R, its affiliates, employees and agents, from and against any and all actual or threatened liabilities, damages, losses, demands, judgments, causes of action, claims (including intellectual property infringement claims), expenses and costs which arise from or relate to Customer’s or a third party’s actual or intended use the Goods, of any software of other item to which the Goods or Services relate, or as a result of B&R’s compliance with Customer’s specifications for the Goods or Services.
It is understood and agreed that each party is an independent contractor and that neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venturer, co-owner or representative. Neither party shall act or represent itself, directly or by implication, in any such capacity or in any manner assume or create any obligation on behalf of, or in the name of, the other.
9.1 “Confidential Information” of B&R means any and all non-public information relating to B&R’s business, including all technical, marketing, financial, personnel, planning, the deliverables provided hereunder, the Application Software, the System Software, certain trade secrets and other proprietary information related thereto, and the pricing disclosed pursuant to this Agreement, any Order or SOW. “Confidential Information” of the Customer means any and all non-public written or other documentary information that is marked “Confidential” or “Proprietary” or bears a marking of like import when disclosed to B&R pursuant this Agreement. Furthermore, the Confidential Information of each party includes the terms of this Agreement, but not the existence and general nature of this Agreement. To the extent that, in connection with this Agreement, either party (each, the “receiving party”) comes into possession of Confidential Information of the other (the “disclosing party”), it will not disclose such information to any third party without the disclosing party’s written consent.
9.2 The disclosing party hereby consents to the receiving party disclosing such information (i) as expressly set forth in this Agreement or a SOW or to subcontractors, whether located within or outside of Canada, that are providing services in connection with this engagement and that have agreed to be bound by confidentiality obligations similar to those in this Section, (ii) as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining hereto, or (iii) to the extent such information (A) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure in breach hereof, (B) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party which the receiving party believes is not prohibited from disclosing such information by obligation to the disclosing party, (C) is known by the receiving party prior to its receipt from the disclosing party without any obligation of confidentiality with respect thereto, or (D) is developed by the receiving party independently of any disclosures made by the disclosing party to the receiving party of such information. In satisfying its obligations under this Section, each party shall maintain the other’s trade secrets and proprietary or confidential information in confidence using at least the same degree of care as it employs in maintaining in confidence its own trade secrets and proprietary or confidential information, but in no event less than a reasonable degree of care. Notwithstanding anything to the contrary herein, the Customer acknowledges that B&R, in connection with the sale of Goods or the performance of the Services, may develop or acquire experience, skills, knowledge and ideas that are retained in the unaided memory of its personnel. The Customer acknowledges and agrees that B&R may use and disclose such experience, skills, knowledge and ideas.
9.3 Except as otherwise provided in this Agreement or any Order or SOW, the Customer further agrees that the Services and deliverables shall not be disclosed, in whole or in part, to any person or entity other than the Customer and other contractors of the Customer, to whom the Customer may disclose the deliverables solely for the purpose of providing services to the Customer, provided that such other contractors shall not disclose the deliverables to any person or entity. The Customer shall indemnify, defend, and hold harmless B&R, its subcontractors and their respective personnel from all claims arising from the Customer’s disclosure of the deliverables to any third party.
9.4 Inventions and Information. Unless otherwise agreed in writing by B&R and Customer, all right, title and interest in any inventions, developments, improvements or modifications of or for Goods and Services shall remain with B&R. Any design, manufacturing drawings or other information submitted to the Customer remains the exclusive property of B&R. Customer shall not, without B&R’s prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Goods and not for any other purpose, including the duplication thereof in whole or in part.
9.5 As to any individual item of Confidential Information, the restrictions under this Article 9 shall expire five (5) years after the date of disclosure.
Customer shall use, and shall require its employees and agents to use, safety devices, guards, and proper safe operating procedures as set forth in the applicable manuals, instructions, and labels. Customer shall not remove or modify any safety device, guard, label, or warning. Customer shall comply with these requirements and all applicable safety and health laws, standards and regulations. B&R shall have no liability for, and Customer shall indemnify and hold B&R harmless from, any damages, obligation, loss, and expense related to Customer’s use of the Goods or any item to which B&R’s Services relate. Customer is solely responsible for damage to the Goods from use of qualities, grades and quantities of materials which adversely affect the operation of the Goods. Customer has the sole duty to warn and protect users and other persons with respect to the dangers of the Goods. It is Customer’s responsibility to ensure electrical code compliance of the Goods. No electrical schematics will be furnished for any proprietary equipment.
B&R shall not be liable for any damages or loss, or failure of or delay in performance, for any reason, including but not limited to, acts of God, terrorism, natural disaster, outbreaks, epidemics and pandemics, fire, flood, explosion, war, strike, riot, sabotage, embargo, law, regulation, ruling, order or requirement of any government or government agency or court or tribunal, military authority, shortage or failure of appropriate materials, equipment or labor, or any other cause beyond B&R’s reasonable control, including delays due to Customer’s acts, omissions or rush circumstances.
This Agreement constitutes the entire agreement and final, complete, and exclusive written expression by B&R and Customer with respect to the Goods and Services that are the subject hereof and may not be changed, amended, supplemented, or waived (by course of dealing, usage of trade or course of performance, or otherwise) except by written agreement or change order signed by Customer and an authorized representative of B&R specifically referring to being an amendment or waiver to this Agreement. Any representation, warranty, quote, confirmation, statement, price, drawing, description, data, specification, agreement, or undertaking (oral or written) not expressly set forth in this Agreement shall be superseded by this Agreement and shall not be effective or enforceable or relied upon. The terms of this Agreement are independent and severable so that if one provision is not enforceable, that does not affect the remainder of the provisions. No additional or different terms or conditions (including but not limited to Customer’s purchase or service order form) shall become part of this Agreement, any new or different terms being hereby expressly rejected. Customer’s retention of any Goods, deliverables, granting of access for Services to be performed, or payment of any portion of an invoice for Goods or Services constitutes Customer’s acceptance of the terms of this Agreement with respect to such Goods, deliverables or Services. The failure or delay in enforcing any provision of this Agreement shall not be deemed a waiver of such provision or right. No waiver of any term of this Agreement shall be effective unless made in writing and signed by the party against whom the waiver is asserted. No such waiver shall be a continuing waiver or waiver of any other term or breach or default. The rights and obligations of B&R and Customer under this Agreement are binding upon and inure to the benefit of each of their respective successors, permitted assigns, trustees, and legal representatives. Customer may not assign its rights under this Agreement without the prior written consent of B&R. Customer shall at all times comply with all applicable federal, provincial and local laws and regulations. Export of deliverables and any Goods that are the subject of Services covered by this Agreement may be subject to export license control by the Canadian government.
It is Customer’s responsibility to obtain any licenses which may be required under the applicable laws of Canada,. ) Customer represents and warrants that the Goods and Services provided hereunder and the "direct product" thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by B&R or the "direct product" thereof as defined in A Guide to Canada’s Export Controls list, except in compliance with such regulations.
The parties agree that the protection of Personal Information (as defined by applicable law) is very important. If Customer discloses Personal Information to B&R, B&R shall comply with all applicable data protection laws and regulations. Customer shall comply with all applicable data protection laws and regulations in respect of any Personal Information it receives from B&R in the course of receiving the Goods or Services. The parties agree that neither will withhold or delay its consent to any changes to this clause which are required to be made in order to comply with applicable information protection laws and regulations and/or with guide-lines and order from any competent supervisory authority, and their application to the Goods or Services from time to time, and agrees to implement any such changes at no additional cost to the other party. The parties acknowledge that the processing of Personal Information in accordance with this Agreement may require the conclusion of additional data or information processing agreements or additional data or information protection agreements. If and to the extent such additional data processing agreements or additional data protection agreements are not initially concluded as part of the order, the parties shall, and shall ensure that their relevant affiliates or subcontractors shall, upon the other’s request promptly enter into any such agreement with an affiliate, as designated by the other party and as required by mandatory law or a competent data protection or other competent authority.
The laws of the Province of Ontario, Canada shall govern this Agreement and any related dispute between B&R and Customer. The courts of the City of Toronto shall have sole and exclusive jurisdiction with respect to any matter related to this Agreement or the Goods and Services covered hereby. The application of the Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.