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General Terms and Conditions of Sale and Delivery Switzerland

B&R Industrie-Automation AG

8500 Frauenfeld, Langfeldstrasse 90, phone: +41 (0)52 / 728 56 00, fax: +41 (0)52 / 728 56 01, e-mail: office.ch@br-automation.com

1. Application

These General Terms and Conditions of Sale and Delivery shall apply whenever they are acknowledged, either expressly or implicitly, by the parties. To be effective, all amendments and modifications hereto shall be approved by us in writing. Any general terms and conditions of our contractual partners are expressly excluded by us.

2. Scope, Execution and Place of Delivery

The scope and method of delivery shall be as set out in the order confirmation.

Products shall be supplied in their standard trim, and software in a machinereadable form, in its latest release as at the time of delivery.

For products that we manufacture, either entirely or in part, to customised specifications, we shall follow the statement of work, where the customer shall specify what result is sought to be obtained and under what conditions.

Modifications to the order confirmation shall be permitted for products with the same functions only. We are not obliged, however, to incorporate such modifications into products that have already been manufactured or supplied.

If no special place of delivery has been agreed upon between the parties or can be inferred from the nature of the transaction, products shall be deemed to be delivered at our premises.

3. Software and Know-How

Software, know-how, data carriers and documentation that may be provided to the customer should be used by it on its own and to an agreed extent only, and not passed to any third party whatsoever. The title thereto and the right for further use thereof remains with us or our licensors, even if software programs or know-how records are subsequently modified by the customer.

Any software extension or modification to be made by the customer needs to be approved in writing.

The customer may make not more than three copies of software for security and archive purposes. Making a larger number of copies or using them for any other purpose whatsoever requires our express permission to be obtained.

All modifications and copies shall be provided by the customer with the same copyright information as the original.

4. Documentation

The customer shall have the right to one copy of our standard documentation. Additional copies or documentation in languages that are not available yet may be invoiced by us separately.

Differences in documentation, especially those regarding descriptions and illustrations, shall be permitted provided that the documentation continues to serve its purpose.

5. Confidentiality

Neither party shall disclose to any third party any information concerning the business of the other which is not generally available or publicly known, and both shall make every effort to prevent third parties from accessing such information. On the other hand, either party may use in its own activities knowledge that such a party may develop as part of its operations.

The parties may also impose this obligation on their respective employees.

6. Customer’s Obligation to Provide Information

The customer shall bring to our attention in a timely manner any special technical requirements as well as all statutory, official or any other regulations that may be in force at the destination provided that they are significant for the completion and use of products.

7. Deadlines

Only dates agreed in writing shall be binding. Such dates may be reasonably postponed,

a) if we do not receive on time information that we need to complete a product or such information is subsequently modified by the customer,

b) if the customer has a backlog of works to be done or is in default of its contractual obligations, in particular if the customer fails to meet the terms of payment,

c) if events beyond our reasonable control occur, such as acts of God, mobilisation, war, revolt, epidemics, accidents, major business disruptions, industrial disputes, late or short delivery of supplies, government actions, etc. We may make partial deliveries.

In case of delay, the customer shall grant us a grace period for subsequent performance. If we do not deliver by the end of such a grace period, the customer may either waive the subsequent performance or withdraw from the contract provided that the customer makes such a statement within three days.

If we are demonstrably to blame for delay, the customer, in addition to subsequent performance, waiver or withdrawal from the contract, shall have the right to claim compensation of actual damage, but only up to twenty per cent of the late delivery value. All other late delivery claims shall be excluded.

8. Acceptance

If no special acceptance procedure is agreed, the customer shall check products and report any shortcomings therein in writing on its own. If the customer fails to report the same within eight days after delivery, all features shall be deemed to have been completed and the delivery accepted.

Should any defect that may not have been discovered even despite close examination subsequently occur within the warranty period, then the customer shall report it to us in writing immediately. Otherwise the delivery shall be deemed to have been accepted in spite of such defects.

9. Warranty

We warrant the good working order of delivered products.

As part of warranty we undertake to rectify defects or replace all parts that due to material, structural and workmanship faults are demonstrably defective or useless. The warranty shall exclude defects and malfunctions that we cannot be held liable for, such as normal wear and tear, force majeure, inappropriate handling, interference by the customer or any third party, excessive use, unsuitable operating materials or extreme environmental factors.

We provide warranty services at our discretion either at our premises or those of the customer, who shall give us free access thereto. Dismantling, assembly, transport, packaging, travel and accommodation costs shall be borne by the customer. Replaced parts shall become our property.

If a defect cannot be fixed, the customer shall be entitled to a price reduction and compensation of proven direct damage, but only up to twenty per cent of the total value of defective products. Any further warranty claims shall be excluded, in particular the customer may not withdraw from the contract or claim compensation of consequential damage.

The warranty period shall be twelve months from delivery.

10. Further Liability

As part of our third-party liability insurance we shall assume liability for all further personal injury or property damage that is demonstrably caused through our fault. Other claims shall be excluded.

11. Pricing and Terms of Payment

Unless noted otherwise, prices shall be deemed to be denominated in Swiss francs and exclude value added tax, charges, levies, dues, transport, packaging, insurance, installation, commissioning, training and application support. They shall become due and payable within thirty days net of the invoice date.

The customer may set off its counterclaims, even if they originate from the same contract or an appeal brought against it, only if our written permission is obtained or the relevant court judgement has become final.

Should the customer fail to meet payment terms, then the customer shall pay, without having to be reminded thereof, default interest to be calculated from the payment date, which shall be four percentage points above the relevant discount rate of the Swiss National Bank.

12. Export

The customer shall be liable for complying with national and foreign export regulations.

Re-export of certain products of foreign origin as declared to one of the Export and Import Sections of the Swiss Federal Department of Economic Affairs shall be permitted with this authority’s licence only. In our quotations and invoices we clearly identify for which products this obligation passes to the customer.

13. Resale

If not prevented by agreement between the parties or the nature of the transaction, the customer may resell products, either in changed or unchanged form.

If the customer is going to resell products, the customer shall make sure that all software licence, confidentiality and permission obligations, if any, pass to the respective buyer.

14. Retention of Title

Delivered goods shall remain our property until the total purchase price has been received. We shall be entitled to have the retention of title registered under article 715 of the Swiss Civil Code.

15. Choice of Law and Jurisdiction

This legal relationship shall be governed by Swiss law.

Delivery and payment shall be subject to the law and jurisdiction of the courts in Frauenfeld.

We may also appeal, however, to the court of the place where the customer is domiciled.

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