(FN 111651 v, A-5142 Eggelsberg)
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B&R Industrial Automation GmbH, Reg.No. FN 111651 v, B&R Straße 1, A-5142 Eggelsberg, Austria.
Background Intellectual Property (BIP):
Intellectual property owned or controlled by either of the Parties at the date of commencement of their business relationship.
Standard and/or customized services/products from B&R’s portfolio (hardware, software, services) to be provided due to an Individual Order.
One year from the beginning of the business relationship (contract) between the Parties, in case of doubt from the first Order (and thereafter one additional corresponding year each time).
These General Terms and Conditions of B&R.
Individual contract (Offer, Order, Order Confirmation) on the delivery of Contract Products.
B&R’s nonbinding request to submit an Order.
Purchaser’s request to accept an Individual Order based on an Offer.
Acceptance of an Order by B&R. It may deviate from the Order.
Order Validity Period:
5 working days within which Purchaser is bound to its Order.
B&R and Purchaser.
Production Site of B&R:
Site of B&R in Austria.
All immaterial rights (in particular industrial property rights and copyrights).
B&R’s contractual partner, even before concluding an Individual Order (agreement).
Any Contract Product from B&R’s respectively valid product catalog (www.br-automation.com).
These GTC govern the legal, commercial and technical modalities for the supply of Contract Products to Purchaser on the basis of Individual Orders. In case a provision of these GTC is primarily aimed at hardware, such provision is nevertheless applicable to software or services accordingly.
These GTC apply to all Offers made by and all Orders submitted to B&R and will become content of each Individual Order.
B&R rejects the applicability of any terms and conditions of Purchaser.
Any deviations from and amendments to these GTC and from/to an Individual Order only apply if and insofar as they have been accepted by B&R in writing.
The following descending order of precedence shall apply: (i) these GTC; (ii) any written supplements to or deviations from these GTC or from or to any Individual Order; (iii) Individual Order; (iv) Order Confirmation.
The Parties will comply with all mandatory legislation in their sphere.
In case B&R shall - in each case - accept an affiliated company of Purchaser as authorized to put an Order, Purchaser shall hold B&R fully harmless for fulfilling all contractual obligations of such third party. Besides, these GTC shall apply accordingly with respect to any such third party.
The Parties shall comply with applicable safety and environmental regulations, including regulations, instructions and directions relating to order, safety, environment and control that apply locally in each respective case.
Even when not explicitly requested by B&R, Purchaser assesses, evaluates and communicates any safety risk with regard to the equipment and/or systems to which the execution of services or delivery of Contract Products may relate, including respective in-house regulations or guidelines of Purchaser. Internal regulations will not have a restrictive effect on these GTC. Purchaser shall be responsible vis-à-vis B&R for all disadvantages accruing therefrom.
If (i) Purchaser fails to meet any of his obligations or fails do so in time or properly, (ii) Purchaser is declared bankrupt, (iii) Purchaser requests suspension, (provisional) suspension and/or postponement of payment, (iv) Purchaser starts liquidation of his company, (v) the majority of the shares in Purchaser is transferred to a competitor of B&R, (vi) a competitor of B&R otherwise gains control of Purchaser, (vii) if Purchaser’s assets are entirely or partially seized, or (viii) Purchaser is in breach of B&R’s Code of Conduct (cf para 17), B&R may to its own discretion and at all times preserving any right to payment of costs, damage and interests suspend execution of any existing contractual relationship/duty (in particular Individual Order) or to legally terminate and/or dissolve it in whole or in part without prior notice of default by means of a written declaration.
The specification of each Standard Product is usually shown in B&R’s respectively valid product catalog (www.br-automation.com). In case specifications are not stated there, any specifications for Contract Products have to be agreed upon by mutual signature.
Contract Products are suitable for laws applicable at Production Site.
Purchaser will be responsible for the proper use of the Contract Products. Purchaser shall implement adequate training, instruction and documentation measures, following at least the guidelines set forth in any B&R’s manuals. B&R is not obliged to test and/or provide warning with regard to special purposes or conditions of use for the Contract Products. Purchaser will be responsible for compliance with all industry-specific standards, safety requirements, conditions of service, patents in his sphere.
Machine safety is and stays the full responsibility of Purchaser. This in particular includes (i) risk assessment of the machine, (ii) specification of the needed safety functions, (iii) ensurance that the requirements as stated in the user manual are followed, (iv) validation of any safety function of the machine, and (v) identification and prohibition of any foreseen misuse of the Contract Products.
Machine safety is in no way included in B&R's scope of services. Any potential support provided by B&R in this regard shall be understood as non-binding recommendations only and shall not entail any responsibility whatsoever on the part of B&R.
In no event will B&R, its officers, directors, representatives, assigns, suppliers or subcontractors assume any responsibility or liability for the machine safety or work performed by B&R’s application engineers on request of the Purchaser. Purchaser herewith confirms and agrees that B&R will have no liability for personal injury, death, direct or indirect damages, consequential damages of any type including but not limited to, operational interruption, loss of profit, loss of information and data. Further, Purchaser will hold B&R harmless and indemnify against any claims from third parties for any and all claims for damages for whatsoever reason in conjunction with machine safety or any services B&R provided to Purchaser.
In case of software development or similar services provided by B&R, Purchaser 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 Purchaser; (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 Purchaser to work productively; and (iv) promptly notifying B&R of any issues, concerns or disputes with respect to the services.
Purchaser 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.
Purchaser acknowledges and agrees that B&R’s performance is dependent upon the timely and effective satisfaction of the Purchaser’s responsibilities hereunder and timely decisions and approvals of the Purchaser in connection with the services. B&R shall be entitled to rely on all decisions and approvals of the Purchaser.
Purchaser 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 that services 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 Purchaser.
Purchaser acknowledges 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, and/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 equal or similar to those produced as a result of the services. B&R therefore has the right to use the outcome of the services in any way it sees fit to its full discretion.
Unless otherwise expressly agreed, the source code shall remain the sole property of B&R. The Purchaser shall receive a non-exclusive right to use the results of the services.
Any use or installation of whatever kind of Contract Products in or in connection with applications (systems) that could be used for military purposes and/or armaments - including, but not limited to, nuclear, biological or chemical weapons or space launchers – is not permitted without the verifiable prior consent of B&R.
B&R is not required to accept an Order.
Purchaser is bound to any placed Order with B&R until expiration of the Order Validity Period. Any deviation in an Order from these GTC shall be null and void.
Purchaser must submit its Orders to B&R’s affiliates in the Purchaser’s country. If B&R is not represented in such country, the Order shall be submitted to B&R.
The Individual Order becomes effective when the Order is accepted. B&R may accept the Order through Order Confirmation or delivery. B&R may also accept an Order after the expiration of the Order Validity Period, unless Purchaser has cancelled its Order.
Purchaser must examine each Order Confirmation without undue delay. When an Order Confirmation deviates from the Order, Purchaser must object within 5 working days of receipt, otherwise the Order Confirmation shall be deemed accepted.
If delivery is not accepted by Purchaser, the risk shall in any case pass to Purchaser and acceptance shall be assumed.
Only upon accepted request of Purchaser, B&R shall carry out the installation and start-up of the Contract Products against refund of all adequate (i) travel expenses, (ii) subsistence expenses and (iii) all adequate expenses for working times (including travelling and waiting times) as per the Offer. All and any permits required by authorities for installations and the operation of plants shall be provided by Purchaser.
Unless otherwise agreed in writing, B&R shall not be obliged to instruct or train Purchaser in the use of the delivered Contract Products. If Purchaser requests respective instruction and training, the adequate costs derived therefrom shall be borne separately by Purchaser as per the Offer. If not otherwise specified in the Offer, the training/instruction shall be usually carried out in the company facilities of B&R.
Basic delivery periods, which may be reasonably exceeded by B&R, result from the indicative values separately provided by B&R in the Offer and/or the Order Confirmation. B&R shall in any event have the right to make partial deliveries and/or delivery.
Deliveries are made according to the Incoterms 2020 rules, FCA.
Contract Products will be packed reasonably and properly.
In case of (i) an agreed binding delivery date/period and (ii) a delay in delivery by more than one month, a penalty equivalent to 0.5 % for each full week following the agreed delivery date will be charged, in total limited to a maximum of 5 % of the relevant delivery value. No further claims will be permitted.
Force majeure is any event inside and outside the organization and/or any circumstance that is not foreseeable and reasonably preventable; including, but not limited to, acts of God such as fire, earthquake, landslide etc. but also war or warlike circumstances, revolution, epidemics, pandemics, unrest, business disruptions, official measures, labor dispute, blackout, delay in delivery by upstream suppliers and similar comparable circumstances.
Force majeure events do not give rise to an event of default and entitle the Parties to either extend the deadlines accordingly or to withdraw from the Individual Order due to incomplete performance; any legal claims are excluded.
The COVID-19 pandemic may have adverse effects on the normal business activities and the performance of each Individual Order. B&R will be entitled to cost reimbursement, adequate extension of time limits or other contract modifications reasonably needed when any consequences directly or indirectly related to the outbreak and spreading of the COVID-19 virus lead to delays in the performance of an Individual Order or otherwise negatively affect the contractual obligations of B&R. Notwithstanding the aforesaid, B&R shall in any event have the right to terminate any Individual Order without notice when the circumstances that prevent B&R from performing the Individual Order as originally planned persist longer than 90 days.
Prices and terms of payment are determined by the Offer. In the event that the basis for price calculation changes for reasons beyond B&R’s control – e.g. relevant legislative changes, rises in the cost of raw materials, other relevant changes on the market and the like – B&R may unilaterally adjust the prices appropriately. B&R shall explain the change in circumstances.
In case and insofar that no terms of payment are specified in the Offer, payment shall be made by bank transfer to B&R’s bank account within five (5) working-days of receipt of B&R’s (pro-forma) invoice. Any payment shall be made at the expense and risk of Purchaser. Any assistants of B&R shall only be entitled to collect payments due to a separate written power of attorney of B&R. In any case B&R shall have the right of upfront payment by Purchaser, even before acceptance of an Order or any delivery.
All work shall be subject to credit approval by B&R. If Contract Products are not delivered at one time, Purchaser shall pay the unit price applicable to the Contract Products delivered.
Each shipment of Contract Products shall be considered a separate and independent transaction. B&R may, at any time, decline to make shipments or deliveries of Contract Products, 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 Contract Products or any other service or support before receiving respective payments.
If in B&R’s opinion Purchaser’s financial condition or payment history makes B&R insecure as to payment for the Contract Products 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 % per month (12 % per year) from the date due.
The full purchase price set forth for the Contract Products shall not be subject to any set-off, deduction or counterclaim of any kind. Purchaser shall pay for all of B&R’s costs of enforcing any claims (including reasonable attorneys’ fees), including collection of amounts due for Contract Products. If Purchaser 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 Contract Products that have been confirmed by B&R, but not yet filled, shall in such cases become cancellable at the sole discretion of B&R.
Ownership over the Contract Products remains with B&R until the full payment agreed has been received.
Without prejudice to any other remedies, B&R shall be entitled to immediate repossession of any Contract Products delivered by B&R if Purchaser fails to timely pay for such Contract Products, and Purchaser hereby permits B&R entry to Purchaser’s premises for such purpose and waives any and all rights to notice or hearing prior to seizure of the Contract Products following default in payment.
B&R warrants that at the time when the risk passes the Contract Products (i) meet the agreed specifications (due to clause 5.1) and (ii) are in accordance with the state of the art when first marketed and are insofar free from defects.
The warranty period is 12 months from the date of delivery (passing of risk). After any improvement or replacement of the Contract Products, the original warranty period does not begin anew.
The exclusive place of performance for the elimination of defects under the warranty shall be B&R’s headquarter in A-5142 Eggelsberg or the B&R service center (https://www.br-automation.com/en-gb/about-us/locations/) nearest to the Purchaser. Purchaser shall return defective Contract Products at its own expense. Returns shall travel on the risk of Purchaser.
B&R will under no aspects whatsoever not be liable for (i) suitability of the Contract Products for the use intended by Purchaser; (ii) normal wear and/or tear; (iii) improper handling, use, operation, storage, shipment or lack of maintenance, (iv) errors, including, but not limited to, software errors that are common without impairment of use and (v) functionality and/or performance of the Contract Products with respect to Purchaser´s applications.
Purchaser must inspect the Contract Products as follows: Upon delivery samples shall be picked and inspected without undue delay; if any defects are identified, the complete shipment must be inspected. Written notice of defects must be given within 7 working days from date of receipt at the latest. If a functionality problem or other defects are only identifiable at a later date, written notice of defects must be given no later than 7 working days from date of detection. Purchaser must provide evidence of the date the defect was detected.
If notice is not given or not given within the specified period of time, the Contract Products delivered shall be deemed accepted, and Purchaser can make no claims based on defects.
In particular with respect to any services provided by B&R - including recommended change orders, intermediate and final milestone deliverables (including B&R produced plans, drawing, specifications and other work details), and any work products – such services (work products) shall be deemed accepted by Purchaser 7 working days after completion and submission thereof to Purchaser for acceptance or comment, unless objections from Purchaser are provided to B&R in writing within such 7 working days period.
The warranty covers free improvement (repair) or replacement of the defective Contract Products by flawless Contract Products according to B&R´s choice. Purchaser is not entitled to any further claims for defect, in particular claims for avoidance of contract, price reduction or damages. Substitute performance by third parties is not permitted. The warranty obligations are fulfilled at B&R’s expense (excluding cost of transport to B&R); expenses incurred by Purchaser in connection with the warranty will not be refunded.
Insofar as B&R may provide any consultancy services (such as implementation/installation of hardware and/or software etc.), B&R shall not assume any liability therefore to the extent legally possible; in particular, B&R shall not be liable for the functionality of its software in customer-specific applications.
With respect to software development or similar services provided by B&R, B&R warrants that it shall perform the services in good faith and in a professional manner. B&R disclaims all other warranties, either express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. The Purchaser’s exclusive remedy for any breach of this warranty shall be for B&R, upon receipt of written notice given within 7 working days, to use diligent efforts to cure such breach, or, failing any such cure in a reasonable period of time, the refund of fees paid to B&R hereunder with respect to the services giving rise to such breach. B&R shall not assume any liability therefore to the extent legally possible.
B&R’s liability to Purchaser is unlimited (i) for any personal injury, (ii) willful acts, and (iii) where unlimited liability is compulsory by law (e.g. product liability).
Subject to submission of proof of the actually incurred expenses B&R is liable to pay the following amounts: (i) In the case of slight negligence, B&R shall not be liable. (ii) In the case of gross negligence, B&R shall be liable to pay per contract year a maximum of 10 % of the net revenue between the Parties, which result from the Individual Orders of the last 12 calendar months before the month in which the damage event occurs, with the amount to be paid to a maximum of EUR 50,000.00 per contract year, depending on the expenses actually incurred.
Any liability for indirect damage, consequential damage, operational interruption, loss of profit, loss of information and data is excluded. Loss of profit includes the loss of a commercial opportunity that already constitutes a distinct asset for Purchaser at the time of the damage (e.g. due to an already existing agreement between Purchaser and a third party). B&R will not be liable for financial losses of Purchaser in connection with work carried out and expenses incurred by Purchaser in the context of warranty.
Claims for damages and reimbursement for expenses against B&R have a limitation period of 12 months after delivery of the Contract Products, or in the case of liability in tort from the date of knowledge or grossly negligent ignorance of the circumstance giving rise to the claim or the person liable to pay damages.
Where the liability of B&R is excluded and/or limited, the same shall apply to its representatives, employees and other subcontractors.
Purchaser acquires ownership in physical Contract Products (e.g. hardware, user manuals etc.).
B&R will grant Purchaser all necessary Property Rights so that Purchaser is able to use the Contract Products. In case of an Individual Order, Purchaser must comply with the license terms that are applicable to the Contract Products at the time when the risk passes to Purchaser; the terms will be provided to Purchaser upon request. Applicable license terms are set forth under www.br-automation.com/eula.
Without prejudice to the aforesaid, B&R remains the owner and/or sole holder of all Property Rights relating to the Contract Products. The licenses for use granted to Purchaser are covered by the agreed payment, unless otherwise agreed. Purchaser does not acquire any exclusive rights.
B&R warrants that the Contract Products do not infringe any Property Rights of third parties in the countries of the European Union and in Australia, Brazil, China, India, Iceland, Japan, Canada, Mexico, Norway, Russian Federation, Switzerland, Singapore, South Korea, Turkey, United Kingdom and USA. All other countries have not been checked in this respect by B&R; clause 14.5. shall apply accordingly. Purchaser will support, at its own expense, B&R in this regard.
Purchaser shall inform B&R of any (potential) infringement of property rights that becomes known to Purchaser. In this case and where infringement of third-party Property Rights is claimed, the Parties will, each at their own expense, cooperate and do everything to ward off such claims without undue delay. Such defense measures will be coordinated by B&R. Lawsuits will be pursued by B&R, unless this is impossible or unless otherwise agreed. If Purchaser pursues the lawsuit, constant coordination with B&R will be required, and B&R’s decisions must be adhered to. Purchaser shall not recognize any third-party claims or enter into settlements independently. If Purchaser does that, he must fully indemnify and hold B&R harmless in this respect. The Parties shall always inform one another, without undue delay, of any infringement claims and the resulting consequences.
If according to a legally binding judgement the Contract Products infringe third-party Property Rights, and the use of the Contract Products is thereby impaired or made impossible, the following shall apply: (i) The Parties, under the coordination of B&R, shall initially endeavor to keep the necessary usage rights in effect. Any costs arising therefrom (including, but not limited to, license fees) shall be borne by B&R. (ii) If the usage rights cannot be obtained or can be obtained only on unreasonable conditions, B&R shall, at its own expense, change the relevant Contract Products in such a way or replace them by other (similar) products that there is no infringement of the relevant Property Right. This will enable the Purchaser to use the Contract Products (and/or other similar products). The agreed specifications shall be complied with in all material respects as far as possible. Insignificant deviations causing no functional problems shall each be considered B&R's BIP. (iii) B&R may also exempt the Purchaser from any license fees payable to a third party for use of the Contract Products. (iv) Should all this be impossible, B&R will take the Contract Products back and refund the payment.
B&R accepts no liability for changes to the Contract Products made by Purchaser or its customer. Nor will B&R accept liability for infringement of third-party Property Rights where the Contract Products are based, even partially, on Purchaser specifications or user-specific use of the Contract Products.
Any claims of Purchaser other than those set forth in this clause 14. are excluded. B&R’s liability is as set forth in clause 13.
In all cases, BIP shall remain the property of the originating party. All inventions, discoveries, developments and improvements made or conceived in whole or partly (i) by B&R on it’s own or (ii) by B&R in conjunction of any service performance for Purchaser or with any input from Purchaser, shall each be considered B&R's BIP.
B&R shall not be liable in any way whatsoever in case that the Purchaser infringes intellectual property rights of third parties due to or as a result of the specific use the Contract Products provided by B&R. The Purchaser shall fully indemnify and hold B&R harmless in this respect, in particular with regard to any claims of third parties in this respect.
The Contract Products are subject to foreign trade restrictions, including dual-use trade controls.
The Parties undertake to comply with all applicable export controls and laws on economic sanctions with regard to their provisions relating to the Contract Products and to obtain all the necessary licenses and/or permits from the competent authorities for the import or export of Contract Products. In particular, Contract Products that are subject to the U.S. Export Administration Regulations ("EAR") must not be exported without obtaining the valid licenses/authorizations of the competent US authorities, including non US items with controlled US content above the permitted de-minimis level and non US items with controlled US content for which there is no de-minimis level.
If a Party notices that it has acted in infringement of applicable export controls or laws on economic sanctions in connection with these GTC, the Party must notify the other Party thereof within 14 days. In the event of breach of the obligations mentioned above, the other Party shall have the right to terminate existing agreements for cause.
The Parties shall maintain the confidentiality of both the existence and content of their contractual relationships as well as all know-how, data and other information of which they become aware in whatsoever form and shall only make use thereof in such context.
The Parties shall deal with the know-how etc. belonging to the other Party with the same care with which they deal with their own confidential information and restrict publication of the know-how etc. to employees, other auxiliary persons or third parties who are required to be aware of such know-how etc. The Parties shall not provide know-how etc. to others and/or make it public in another way, unless they have obtained prior written consent to do so. This requirement for consent does not apply to passing on know-how etc. to group companies, to the extent permitted by law.
The Parties shall ensure that employees and third parties, including group companies, are subject to and comply with similar confidentiality obligations that are no less stringent than the obligations that apply to the Parties in accordance with these GTC. This confidentiality obligation survives the termination of the respective Individual Order with a period of five (5) years. Know-how etc. that is publicly accessible or that becomes publicly accessible without being attributable to the receiving party, is not considered confidential information. The Parties shall identify confidential information as such as much as possible.
Purchaser must comply with the Code of Conduct of B&R’s Group, which is retrievable at global.abb/group/en/about/integrity/standards/abb-code-of-conduct
Each contractual relationship between the Parties, in particular each Individual Order, shall be governed exclusively by the substantive laws of Austria, giving no effect to the conflict of laws rules of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for any dispute shall be the competent court of Linz.
The written form requirement will be met by the Parties transmitting the identical documents, each signed by them in the original, by telefax or in a digital format as scanned documents to the other Party.
Individual Orders must be transferred via trusted electronic systems (such as Electronic Data Interchange or the like) or in writing to be effective. Statements made in electronically transmitted documents - e.g. by telefax or email - will be sufficient for the written form.
No modification and supplement of any contractual relationship shall be binding unless it is in writing and signed by all Parties. This written form requirement is also met by the Parties transmitting the identical documents, each signed by them in the original, by telefax or in digital format as scanned documents to the other Party.
The written form requirement can only be waived in writing. Subsidiary agreements made orally shall not come into effect.
If any individual provision of these GTC and/or the Individual Orders is invalid in whole or in part, the validity of the remaining provisions shall not be affected in any way. The Parties shall replace the invalid provision by a valid provision coming as close as possible to the economic purpose of the invalid provision. The same shall apply if these GTC and/or an Individual Order contains a loophole that needs to be closed.
The headings to the clauses of these GTC are for ease of reference only and shall not affect the clauses’ interpretation.
Each Party may, after obtaining written approval, display the name and the logo of the other Party in reference lists.
Each Party shall process personal data under these GTC only in compliance with the provisions of the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Directive – “GDPR”) as well as applicable national data protection law. For the avoidance of doubt, each Party is deemed independent controller as defined by Article 4 para 7 GDPR. The Privacy Notice of B&R can be found here.