For all legal transactions with the company B&R Industrial Automation GmbH (B&R) the following conditions shall be e x c l u s i v e l y 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 e 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 for despatch, 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.
In case of hardware the payment has to be effected entirely upon delivery; in case of software 30 % shall be paid upon acceptance of the order, 50 % upon delivery and 20 % upon official acceptance.
Invoices sent by B&R shall be payable without deduction within 30 days following the date of invoice. In case of receipt of payment within 14 days following the date of invoice and/or after the readiness to deliver is notified, B&R shall grant a discount of 2 %, similarly also in case of payment by direct bank debiting. For payments received late default interest of at least 4 % above the discount rate, as applicable, of the Austrian National Bank shall be charged subject to further claims. Delays in payment or founded doubts with a view to the creditworthiness of the customer shall entitle B&R to resign from obligations of delivery not yet carried out or to request advance payment. For installations with a value of more than € 20,000.— net the following conditions of payment shall apply in deviation of item 3 par. 3: 1/3 of the order value upon receipt of the confirmation of order without deduction, the remaining amount 14 days after delivery date or readiness of delivery notified with 2 % discount or within 30 days net.
Bills of exchange shall be accepted for collection only after previous agreement and only on behalf of payment. The bill of exchange tax, bank discount and other collection expenses shall be charged separately by B&R unless these expenses are charged or set off elsewhere.
If the delivery cannot be carried out for reason of which the customer is responsible, the payment period shall not be prolonged. The payment term in this case shall start with the notification of the readiness for delivery by B&R.
If the customer does not pay the invoice or just one of various invoices in time, the loss of the due date with a view to the entire and payable claim of B&R occurs in such a way that the entire unsettled claim shall become immediately payable, irrespective of which payment terms were granted with a view to individual partial sums by agreement or by acceptance of bills of exchange.
The retention of payments due to damages, claims or set-off with counterclaims of the customer due to or with counterclaims not explicitly accepted by B&R shall be excluded, in any case an eventual right of retention on claims of the customer shall be limited to the coverage capital required for the elimination of defects.
If the customer has difficulties in payment (loss of value, decrease of property, means of payment without coverage, protest of bill of exchange or cheque carried out, seizure, insolvency proceeding, bankruptcy etc.) the entire amount of the invoice from the subject delivery plus any other pending claims shall be due for immediate payment without B&R having to set the customer in delay. In such cases B&R shall be entitled any time to take back the goods delivered at the expense of the customer and to utilise them in the best possible way without releasing the customer in such a way from the obligation to fulfil the agreement or without the customer being able to claim damages due to non-compliance.
Prior to the delivery carried out, B&R shall be entitled to terminate the contract, if the customer's solvency appears to be reasonably doubtful. The same holds true if B&R receives negative information from a reliable party on the creditworthiness of the customer. In case of new customers B&R shall reserve despatch by cash on delivery.
Furthermore, in case of delay the customer shall pay, except for the collection charges accruing in our company, all costs, expenditures, cash expenses and in particular also the lawyer's costs accruing due to the delay of payment in accordance with the tariff for the out-of-court lawyer dunning procedure as a supplement of the autonomous tariff of the Upper Austrian Chamber of Lawyers. Irrespective of any declarations of dedication with different wording, B&R shall be entitled in case of a title of execution or during an execution procedure to use incoming amounts of money at their own discretion to cover at first dunning charges, lawyer's expenses etc. and only finally for interest and principal amounts.
The agreed payment terms are valid as long as the economical circumstances of the customer dont change. In case the rating of the credit insurance company of B&R gets worse the payment terms have to be renegotiated.
The goods delivered shall remain the property of B&R until the complete payment of the purchase price (work remuneration), including all ancillary costs and/or until the redemption of any bills of exchange or cheques given for payment. The acceptance of cheques or bills of exchange thus shall not affect the reservation of a title agreed. 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 be entitled to sell the goods within the framework of a regular business operation. Each seizure or chattel mortgage of these goods in favour of third parties is excluded without the consent of B&R. The seizure of the goods must be notified immediately to B&R. In case of sale the following supplement shall be applicable: The goods delivered shall remain the property of B&R until the full payment of all claims of B&R vis-à-vis the customer. The authorisation to sell the goods during regular business operation shall be cancelled upon the suspension of payment of the customer and/or the application to open a bankruptcy or settlement procedure on the property of the customer. In such a case, the customer shall be entitled to hand over the goods under reservation upon first request of B&R. The revocation or the request for handing over the goods under reservation by B&R shall not mean a rescission of the contract. The customer thus assigns their claims from a resale of the goods under reservation to B&R. B&R shall not collect the claim assigned as long as the customer is in compliance with their obligations of payments. However, the customer shall be obliged to notify third-party debtors to B&R upon request and to notify to them the assignment. The customer shall also be obliged to record the assignment in their books. The customer shall be entitled to collect by himself the claims vis-à-vis third-party debtors as long as the former is in compliance with the payments and no instruction to the contrary was given to the former by B&R. A seizure or chattel mortgage of the goods under reservation or the claims assigned shall not be admissible. The reservation of property shall also exist if individual claims are included in a current invoice and the balance is drawn and recognised, unless the balance is equilibrated. The customer shall notify immediately the suspension of payment and at the same time send a list of goods under reservation of title and a list of claims to third parties of the resale of the goods under reservation.
The delivery time indicated shall not be binding. If delivery has been agreed to be binding, B&R shall be in delay only if the customer has set in writing a period of grace of a minimum of 8 weeks. The customer shall be entitled to a right of rescission in case of delay in delivery only if B&R cannot give a binding promise of delivery within the period of grace. Claims against B&R for delays in delivery cannot be derived against B&R. Force majeurs of any kind, lack of raw materials, unforeseen difficulties, also those caused by the specific manufacturing process, delivery delays of the sub-suppliers, operational restriction, authority measures and other unforeseen obstacles during manufacturing or delivery, including strike or lock-out at B&R or the resuppliers, shall entitle B&R to exceed the delivery times or rescind the contract entirely or in part without the customer having a claim to redelivery or damages. B&R shall reserve the right to make partial deliveries.
In case of delay in acceptance of the customer, B&R shall have the right to rescind the contract or request damages after setting a period of grace of a maximum of 30 days.
If prerequisites to be complied with by the customer for the delivery are not established as required by the contract, any delivery terms shall not elapse and any agreements on conventional or other contractual fines shall be null and void.
If, during the implementation of a project, delays result for which B&R is not responsible, B&R shall be informed immediately of them by the customer. In such a case, delivery times shall be agreed again; delivery terms agreed up until then shall be null and void.
If an installation cannot be terminated within a foreseeable period of time due to process, mechanical, electrical or other reasons for which B&R is not responsible, B&R shall be entitled to request the full fund of the expenses carried out until then according to the agreement with the customer. Furthermore, B&R shall in such a case be entitled to declare the rescission of the contract if the problems occurred cannot be solved within an adequate period of time.
The risk shall pass to the customer at that point of time in which the despatch leaves the B&R location or one of B&R's distribution centers.
If the despatch or the delivery is delayed upon request of the customer, B&R shall be entitled to charge, starting one month after the readiness for delivery was notified, the customer a warehouse fee amounting to ½% of the invoice for each month started. Further claims by B&R shall not be affected by this.
The risk during delivery or installation, once the consignment ready for operation has left the company of B&R, shall pass to the customer, also if a delivery with freight paid was agreed. Packaging shall be carried out with utmost care. Despatch shall be at the discretion of B&R. The consignment shall be insured by B&R against breakage, transport and fire damage at the expense of the customer.
The goods shall be checked immediately for transport damage.
If the goods arriving at the customer have been damaged during the transport, the customer shall record this damage on the proof of delivery and inform B&R within 5 work days.
The time for notifying within 5 days shall also be applicable for hidden transport damage.
The installation and the trial operation by B&R of the goods delivered is subject to a provision to be stipulated separately. In this case item 7 par. 3 shall be applicable for the passing of risk.
If the despatch or the delivery is delayed upon request by the customer, the risk for the time of delay shall be passed to the customer in both cases as from the day of the readiness for delivery, however B&R shall be obliged to arrange for insurance on the customer's request and at their expenses.
If an official acceptance of the work is to be carried out, the acceptance shall be without formalities. The work is deemed accepted unless, during trial operation and/or use during 30 days, the customer communicates concrete defects in writing within 30 days as from the written notice of completion by B&R.
Upon request of the customer, 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 waiting 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.
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.
The customer takes note that, according to the state-of-the-art, it is not possible to create software so that it works without defects in all applications and combinations. Thus, the subject of the contract only includes software which is usable in general according to the program description and the instructions for use. Thus, B&R shall not be liable for the absence of defects of the software. B&R assumes that the respective safety provisions at the plant are complied with by the customer; that cabling was tested and is completely operative; that the plant is mechanically and electrically ready, tested and operative; and that for all work at the plant by the customer only qualified personnel is used. The customer shall make arrangements to ensure that regular times are available during which B&R is able to work at the plant. The customer shall also ensure that B&R is able to carry out work at the plant outside the regular operating times of the customer, if this is required for the progress of the project.
Unless agreed explicitly, B&R is not the general contractor for an overall project and thus shall not be liable for the functioning of the overall project (work) and/or for the overall coordination, particularly not for procedural techniques, cablings, mechanical or electrical processes.
B&R shall take over liability only for the fact that the electronic control part to be provided by them is in accordance with the state-of-art and fully operative according to par. 1 of this item of the agreement.
The place of the fulfilment of the warranty shall always be the place of business of B&R and/or a company location of B&R. Expenses and travelling costs in connection with the fulfilment of warranty claims shall therefore be borne by the customer.
Within 12 months after the day of delivery and/or acceptance and/or passing of risk, B&R shall provide warranty for detectable and hidden defects, or for the lack of properties promised in such a way that, according to the discretion of B&R, the goods shall be improved subsequently, or defect-free goods shall be subsequently supplied free of charge. Any claims exceeding such measures of the customer for any legal reason whatsoever, particularly for conversion or reduction, shall be excluded.
If defects concern manufacturing or material parts not produced in B&R's own production, the warranty of B&R is limited to claims to which B&R is entitled due to the respective agreement with the respective producer or supplier. Other claims of the customer in such cases shall be excluded.
The goods shall be examined immediately after delivery. The customer shall communicate defects within 30 days as from the receipt of the goods, indicating the details in writing otherwise the claim for warranty shall be lost.
A complaint in respect of hidden defects shall be filed immediately after their discovery. If the complaint in respect of defects is not filed or not filed in time, the goods shall be deemed approved. The assertion of warranty or damage claims as well as the right to avoidance on the ground of error due to defects shall be excluded in such cases.
The customer shall always prove that the defect existed during the time of hand-over.
B&R shall be obliged to make subsequent improvement or redelivery within the warranty stipulated only if the customer has fulfilled their own contractual obligations.
Damage claims of the customer shall expire in all cases if the customer, without consulting B&R previously and without having a written permission by B&R, has carried out manipulations in the hardware. This shall also be applicable if the customer has changed, treated or processed the goods inadequately. Warranty is not provided for used goods. Accordingly, this provision is also applicable for software.
Goods delivered regularly by B&R shall generally not be taken back. If a return is agreed against provision of a credit, a return slip with the following data is to be attached to the consignment: article number, designation of article, invoice number and invoice date at which the delivery was carried out originally.
Return consignments have to be carried out free of charge for B&R. The return shall not entitle the customer to reclaim the invoice amount. Rather, the customer shall wait for B&R to credit their account. In case of a return according to the contract, B&R shall calculate a processing rate based on 3 % of the goods value for checking the goods returned. A return of the goods possibly agreed shall always be carried out under the proviso that the goods are undamaged and without defects. Any necessary repair work shall be borne by the customer.
The liability for material damage suffered by a businessman from a product error shall be excluded for all parties participating in the production and distribution of the contractual product. When passing on this product, the customer shall be obliged to transfer this exclusion from liability. If they fail to do so, they shall be liable vis-à-vis B&R for all disadvantages accruing therefrom.
Claims for damages of any kind (damage of non-fulfilment, damage of delay, damage of consequential defects, damage due to contractual liability and liability in tort) as well as recourse claims of any kind shall be excluded unless the circumstances causing the damage were caused by intention or gross negligence on the part of B&R.
Excluded from the product liability are claims for damages or consequential damages for delivered goods which are have been used as a part of /as fitting of/as equipment of aircrafts.
If any damage occurs during the start-up of a plant in which, in addition to B&R, other work contractors also participate, this damage is to be attributed to B&R only if B&R is definitely the party causing it. This also applies correspondingly if B&R is the only professional, particularly if on the part of the customer not all measures were taken to exclude cases of damage.
If the plant has already been accepted, the customer shall prove, in the case of subsequent occurrence of defects, that these defects had already existed during delivery.
This provision of the onus of proof shall also be applicable accordingly with possible warranty claims of the customer.
As far as B&R have developed hardware or software at the order of the customer, B&R shall be entitled to also disclose this hardware and software to other persons if the customer has borne the expense for development.
In lack of an agreement to the contrary, software shall be granted only in the form of a license.
B&R shall reserve all rights, particularly the copyright in the hardware and software developed by them.
The offer drafted by B&R as well as all documents in this connection (drawings, sketches etc.) shall remain the property of B&R and shall be treated confidentially by the customer as a business secret of B&R. Hand-over to third parties is not allowed. In case of violation, the customer shall pay a conventional fine of 10 % of the order sum.
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.
Austrian law shall apply for legal relationships from this contract.
For disputes resulting from this contract, the provincial court of Ried is agreed according to the value under dispute. The place of performance shall be Eggelsberg.
Version dated July 1st 2003