B&R Headquarters: Concord, ON
B & R INDUSTRIAL AUTOMATION INC.
2501 Rutherford Road
Unit 42 & 43
Phone:+1 / 905 417 - 9500
Fax:+1 / 905 417 - 9509
email: office.ca@ br-automation.com
For all legal transactions with the company B&R Industrial Automation Inc. (B&R) the following conditions shall be exclusively authoritative, unless different agreements are to be made in writing with the customer. Orders shall be accepted only if confirmed in writing by B&R. Verbal agreements shall be effective only if confirmed in writing by B&R. Different conditions of the customer shall be effective only if recognised in writing by B&R. If individual agreements were made with the customer deviating from these conditions, the validity of the terms of business not concerned shall not be affected. If guidelines with a view to processes and safety, standards and conditions exist for the business area of the customer, they shall be obliged to communicate these guidelines, standards and conditions even when not explicitly requested by B&R. In case of violation of this obligation of communication the customer shall be responsible vis-à-vis B&R for all disadvantages accruing therefrom. Should individual stipulations of the terms of business be or become invalid, they shall be substituted, on the basis of these terms and conditions and legal stipulations, by provisions which correspond to the purpose of the contract. The validity of the other provisions shall thus not be affected. Notices in writing shall be deemed received by the customer according to the regular course of mail if sent to the last known address of the customer. This shall also be applicable if the envelope was processed as undeliverable. The receipt shall be deemed effected if a print or a signed copy of the document sent is in possession of B&R which shows the despatch. The rights of the customer resulting from the legal transaction concluded with B&R shall be non-assignable. A cancellation, modification or supplement of the agreement with the customer shall require the written form and signature by both parties to the contract. This shall also be applicable for renouncing this formal requirement.
Photos and data in business documents, catalogues, brochures etc. only contain approximate values. They shall be binding only if this is agreed explicitly in writing. B&R shall be entitled to modify models, designs or their equipment. All documents of offer, including these drawings and sketches etc. shall be returned immediately to B&R in case an order is not placed, without the customer being entitled to make copies or transcripts. In case of violation of this obligation the customer shall pay a conventional fine of 10 % of the order sum. Subsequent requirements not contained in the original offer (basic offer) of the customer shall necessitate a new offer by B&R. Only if this offer is accepted, shall B&R be obliged to carry out the additional requirement. This shall also be applicable in case of subsequent modifications of the original offer. B&R shall reserve in any case the right to make a new offer for the entire work including the original offer.
The prices of B&R shall be valid as from the principal office of the company. The prices do not include costs of dispatch, packaging and transport insurance. All prices indicated in the business documents of B&R are net prices. In case of hardware and standard software the prices valid on the respective day of delivery shall be applicable. In case of development software B&R shall be entitled with projects of major duration (more than six months) to adjust the prices for services to the hourly rates as applicable by B&R.
All orders are subject to acceptance by B&R at its home office in Concord, Ontario by an authorized B&R representative. Acceptance may be made by delivery of the ordered goods/services or by written confirmation. Acceptance is, in all cases, conditional upon the customer’s agreement to the terms and conditions set forth in this Agreement. The order must be a firm commitment to purchase goods/services giving complete 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, the customer may not cancel its purchase order without the written consent of B&R. B&R may cancel and not complete its obligations under the customer’s purchase order if, at any time, in B&R’s opinion, all terms and conditions of this Agreement are not complied with by the customer, a force majeure event has occurred, or B&R has reasonable grounds for insecurity with respect to performance by the customer. Following such cancellation, B&R shall refund to the customer any portion of the purchase price the customer had paid for unshipped goods, and the 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.
Payment shall be made as set forth on the front of this Agreement. If payment terms are not set forth there, payment shall be by certified funds, bank wire, or bank draft due within 30 days of B&R’s invoice. No cash payments will be accepted. If all of the goods/services are not delivered at one time, the customer shall pay the unit price applicable to the goods/services delivered. Each shipment shall be considered a separate and independent transaction. All shipments, deliveries and performance of work shall be subject to credit approval by B&R. B&R may, at any time, decline to make any shipments or deliveries, or perform any work, or extend additional credit, except upon receipt of payment. If in B&R’s opinion, the customer’s financial condition or payment history makes B&R insecure as to payment for the goods, 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. All payments shall be made in Canadian dollars to B&R’s Concord, Ontario address. The full purchase price set forth for the goods/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 the customer may be accepted and applied by B&R against any indebtedness or obligation owed by the 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 the customer. The 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/services or otherwise under this Agreement. Without prejudice to any other remedies, B&R shall be entitled to immediate repossession of any goods delivered by B&R if the customer fails to timely pay for such goods in full, and the customer hereby permits B&R entry to the 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 sales, use, excise, import, duty, value added, and similar taxes applicable to the goods/services, not measured by the income of B&R, shall be paid by the customer unless the customer provides B&R with a valid tax exemption number or certificate acceptable to the applicable taxing authorities in advance of delivery or performance.
Unless otherwise stated on the front of this Agreement, prices and shipments are F.O.B. B&R’s Concord, Ontario facility and do not include taxes, crating, freight, delivery, insurance, dismantling, loading, unloading, or installation. Such additional charges shall be paid by the customer. If delivery is delayed upon request of the customer, B&R shall be entitled to charge the customer a warehouse fee of 1% of the invoice amount per month. Shipment of the goods will be as stated on the front of this Agreement, 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 damage or loss, or failure of or delay in performance, for any reason, including but not limited to, acts of God, natural disaster, 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 control, including delays due to the customer’s acts, omissions or rush circumstances. 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 the customer at the point of origin, B&R’s facility. Claims for goods lost or damaged in transit are the customer’s responsibility. If the customer requests in writing and B&R agrees, B&R, at the customer’s expense, will endeavor to obtain insurance covering losses which are at the customer’s risk such as theft, breakage, fire and water damage, and such other insurable casualties as the customer and B&R may agree. B&R retains title to the goods until the full purchase price has been paid in full. The reservation of title with a view to the subject goods shall be applicable also for claims from other deliveries and thus shall remain until all claims to which B&R is entitled vis-à-vis the customer are paid entirely, irrespective from which delivery they are derived. The customer shall only be entitled to sell the goodsin the ordinary course of business. Each seizure or chattel mortgage of these goods in favour of third parties is prohibited without the consent of B&R. The customer shall immediately notify B&R of the seizure of any of the customer’s goods. In the event of the customer’s insolvency or event of bankruptcy or of the customer’s breach of these terms and conditions, the customer shall return the goods to B&R. Such a return of goods to B&R shall not be construed as a rescission of these terms and conditions.
The customer hereby grants a security interest to B&R in all products or equipment sold or delivered to the customer, including any and all proceeds therefrom and any related or ancillary parts or attachments and acknowledges that B&R shall have the right to file a financing statement, fixture filing or similar registration with respect to such products or equipment at anytime, including without limitation a purchase money security interest. To the extent permitted by law, the customer waives the requirement of being provided with a copy of any financing or verification statement or renewal thereof. The 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 customer shall inspect the goods within two (2) business days after delivery. Failure of the customer to inspect the goods and/or failure to notify B&R in writing of any noncompliance, shortage or other reason for the customer’s rejection of any of such goods within such period and the specific grounds for rejection shall constitute irrevocable acceptance of the goods.
B&R is not responsible for unloading, installation, start-up or documentation unless the customer and B&R enter into a separate contract for such services. B&R shall carry out the installation and start-up of the devices and equipment supplied by B&R against refund of the travel and subsistence expenses as well as the expenses for working times. Travelling and idle times shall be calculated as working time. The permits required by authorities for installations and the operation of plants shall be provided by the customer. During all work, experts of the customer shall be present for surveillance.
The 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. The customer shall not remove or modify any safety device, guard, label, or warning. The customer shall comply with these requirements and all applicable safety and health laws, standards and regulations. B&R shall have no liability for, and the customer shall indemnify and hold B&R harmless from, any damage, obligation, loss, and expense related to the customer’s use. The 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. The customer has the sole duty to warn and protect users and other persons with respect to the dangers of the goods. It is the customer’s responsibility to ensure electrical code compliance of the goods. No electrical schematics will be furnished for any proprietary equipment.
B&R warrants that the goods purchased hereunder that were manufactured by B&R or Bernecker+Rainer Industrie-Elektronik GesmbH are 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 the customer has met its obligations under this Agreement including all payments, B&R’s sole obligation under this warranty and the 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 the 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 Industrie-Elektronik GesmbH. For goods manufactured by others, the customer may request B&R in writing to assign to the 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS WARRANTY, B&R MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The 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 30% 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.
IN NO EVENT SHALL B&R BE OBLIGATED OR LIABLE TO BUYER OR ANY OTHER PERSON, IN TORT OR CONTRACT OR OTHERWISE, BASED UPON NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR OTHERWISE, FOR ANY DAMAGE OR LOSS OF ANY KIND (EXCEPT FOR THE SOLE REMEDIES PROVIDED IN THE WARRANTY SECTIONS OF THIS AGREEMENT WHERE APPLICABLE) AND SHALL NOT BE LIABLE FOR DAMAGES 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 BUYER 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/services covered hereby exceed the net amount received by B&R for the goods/services sold hereunder. Any action or suit by the customer against B&R relating to this Agreement or the goods/services covered hereby must be brought within one (1) year of the date of invoice for such goods. This is a commercial transaction.
Any software or documentation in connection with an order is delivered under a nonexclusive, non-transferable license to use and execute the same only in connection with the goods delivered hereunder. The customer may not modify, reproduce, decompile, reverse engineer or transfer software or documentation without our prior written consent. The customer agrees not to sublicense, rent, lease, sell or otherwise transfer the software or documentation except with our express written consent. Moreover, the 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. The customer acknowledges and agrees that nothing herein gives any right, title or interest in the software or documentation except for its limited express rights set forth above. Additionally, the 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. The 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
Unless expressed and agreed in writing in the contract, B&R shall not be obliged to instruct or train the purchaser (ordering party) in the use of the software. If the purchaser (ordering party) requests instruction and training for the software delivered, the costs derived therefrom shall be borne separately by the ordering party. The training/instruction shall be carried out in the company facilities of B&R
Unless agreed differently in these conditions, the general conditions of delivery of the Austrian electrics and electronics industry and the software conditions of the Austrian electrics industry, as applicable, shall apply to this contractual relationship.
The laws of the Province of Ontario and the laws of Canada applicable therein shall govern this Agreement and any related dispute between B&R and the customer. The Ontario courts shall have sole and exclusive jurisdiction with respect to any matter related to this Agreement or goods covered hereby.
B&R Industrial Automation Inc, CANADA, March 2012