1250 Northmeadow Parkway, Suite 100, 30076 Roswell
Phone:+1 / 770 772 - 0400
Fax:+1 / 770 772 - 0243
email: office.us@ br-automation.com
Means all companies of the ABB Group.
The general terms and conditions of B&R contained herein, together with any additional or different terms contained in B&R’s offer, quotation and/or invoice, if any, submitted to Purchaser, constitute the entire agreement between the Parties with respect to the Order and supersede all prior communications and agreements regarding the Order.
Certain services covered by a statement of work which includes the creation of software for the Purchaser.
B&R Industrial Automation Corporation, 1250 Northmeadow Pkwy, Suite 100, Roswell, Georgia 30076
Background Intellectual Property (BIP):
Intellectual property (including all inventions, discoveries, developments and improvements) conceived of, developed, owned or controlled by either of the Parties before the execution date of each Order based on the Agreement.
Standard and/or customized services/products from B&R’s portfolio (hardware, Software, services) to be provided due to an 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).
Purchaser’s written request for Contract Products based on B&R’s offer.
Acceptance of an Order by B&R. It may deviate from the Order.
Order Validity Period:
Five (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 intellectual property rights and copyrights).
B&R’s contractual partner, even before concluding an Order (agreement).
System Software and Application Software collectively referred to herein.
Software supplied by B&R as part of its platform sale which may include, but are not limited to, operating systems, programming libraries, compilers and development tools.
Any Contract Product from B&R’s respectively valid product catalog (www.br-automation.com).
2.1. The Agreement governs the legal, commercial and technical modalities for the supply of Contract Products to Purchaser on the basis of Orders. In case a provision of the Agreement is primarily aimed at hardware, such provision is nevertheless applicable to software or services accordingly.
2.2. The Agreement applies to all B&R’s offers made by and all Orders submitted to B&R and will become content of each Order.
2.3. B&R rejects the applicability of any terms and conditions of Purchaser.
2.4. Any deviations from and amendments to the Agreement and from/to an Order only apply if and insofar as they have been accepted by B&R in writing.
2.5. The following descending order of precedence shall apply: (i) the Agreement; (ii) any written supplements to or deviations from the Agreement or from or to any Order; (iii) Order Confirmation.
2.6. B&R does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Contract Products is the sole responsibility of the Purchaser. All laws and regulations referenced herein shall be those in effect as of the B&R’s offer date. In the event of any subsequent revisions or changes thereto, B&R assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change per Section 25. Nothing contained herein shall be construed as imposing responsibility or liability upon B&R for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Contract Product
2.7. 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, the Agreement shall apply accordingly with respect to any such third party.
3.1. B&R warrants that the Contract Products will comply with the relevant standards of the Occupational Safety and Health Act of 1970 ("OSHA") and the regulations promulgated thereunder as of the date of B&R’s offer. Upon prompt written notice from the Purchaser of a breach of this warranty, B&R will replace the affected part or modify it so that it conforms to such standard or regulation. B&R’s obligation shall be limited to such replacement or modification. In no event shall B&R be responsible for liability arising out of the violation of any OSHA standards relating to or caused by Purchaser's design, location, operation, or maintenance of the Contract Products, its use in association with other equipment of Purchaser, or the alteration of the Contract Product by any party other than B&R.
3.2. 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 or guidelines will not have a restrictive effect on the Agreement. Purchaser shall be responsible vis-à-vis B&R for any and all liabilities resulting or arising therefrom.
4.1. If (i) Purchaser fails to meet any of its obligations or fails to 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 its 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) Purchaser’s assets are entirely or partially seized, or (viii) Purchaser is in breach of ABB’s Code of Conduct of (Section 17), B&R may in 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 Order) or to legally terminate and/or dissolve it in whole or in part without prior notice of default by means of a written notice.
4.2. No termination by Purchaser for material breach shall be effective unless, within fifteen (15) working days after receipt by B&R of Purchaser’s written notice specifying such default, B&R shall have failed to initiate and pursue with due diligence correction of such specified default.
4.3. If in the event of termination for a material default, B&R shall reimburse Purchaser the difference between that portion of the Order price allocable to the terminated scope and the actual amounts reasonably incurred by Purchaser to complete that scope, and Purchaser shall pay to B&R the portion of the Order price allocable to Contract Products completed.
5.1. 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 mutually agreed upon in a signed writing by the Parties.
5.2. 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 its sphere.
Safety is the full responsibility of Purchaser. This includes, but is not limited to, (i) risk assessment, (ii) safety protocols, (iii) understanding of requirements as stated in the user manual, (iv) validation and inspection of any safety function, and (v) prohibition and prevention of misuse of the Contract Products.
Safety is not included in B&R's scope of services. B&R may provide technical assistance which is understood as non-binding recommendations.
In no event will B&R, its officers, directors, representatives, assigns, suppliers or subcontractors assume any responsibility or liability for the safety or services performed by B&R’s application engineers at the request of the Purchaser. Purchaser agrees that B&R shall 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 safety or any services B&R provided to Purchaser.
5.3. 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 to in a mutual signed writing, 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.
5.4. Contract Products sold hereunder are not intended for use in connection with any nuclear facility or activity, and Purchaser warrants that it shall not use or permit others to use Contract Products for such purposes, without the advance written consent of B&R. If, in breach of this, any such use occurs, B&R (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, including without limitation any physical damage to a nuclear facility itself, resulting from a nuclear incident and, in addition to any other rights of B&R, Purchaser shall indemnify and hold B&R (and its parent, affiliates, suppliers and subcontractors) harmless against all such liability including, but not limited to, any physical damage to the nuclear facility or surrounding properties, if any. Consent of B&R to any such use, if any, will be conditioned upon additional terms and conditions that B&R determines to be acceptable for protection against nuclear liability including limited to the requirement that the Purchaser and/or its end user customer shall have complete insurance protection against liability and property damage including without limitation physical damage to a nuclear facility itself or any surrounding properties, if any, resulting from a nuclear incident and shall indemnify B&R, its subcontractors, suppliers and vendors against all claims resulting from a nuclear incident including, but not limited to, any physical damage to the nuclear facility.
6.1. B&R is not required to accept an Order.
6.2. Purchaser is bound to any placed Order with B&R until expiration of the Order Validity Period. Any deviation in an Order from the Agreement shall be null and void, unless agreed to by B&R in writing.
6.3. 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.
6.4. The Order becomes effective when the Order is accepted by B&R. 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.
6.5. Purchaser must examine each Order Confirmation without undue delay. When an Order Confirmation deviates from the Order, Purchaser must object within five (5) working days of receipt, otherwise the Order Confirmation shall be deemed accepted.
7.1. Only upon B&R’s acceptance of Purchaser’s request, will B&R carry out the installation and start-up of the Contract Products. Purchaser shall refund all B&R’s adequate (i) travel expenses, (ii) subsistence expenses and (iii) all adequate expenses for working times (including travelling and waiting times) as per B&R’s offer. Any and all permits required by applicable law 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 B&R’s offer. If not otherwise specified in B&R’s offer, the training/instruction shall be carried out in the company facilities of B&R.
9.1. Basic delivery periods, which may be reasonably extended by B&R, result from the indicative values separately provided by B&R in B&R’s offer and/or the Order Confirmation. B&R shall in any event have the right to make partial deliveries.
9.2. Unless otherwise mutually agreed in writing, deliveries are made according to the Incoterms 2020 rules, FCA B&R point of shipment.
9.3. If the scheduled delivery of Contract Products is delayed by Purchaser or by force majeure (as specified in Clause 10.2), B&R may move the Contract Products to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered.
9.4. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage with respect to the sale of Contract Products shall pass from B&R to Purchaser at delivery as defined in the Agreement.
9.5. Contract Products will be packed reasonably and properly.
10.1. B&R shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by force majeure conditions beyond its reasonable control; including, but not limited to, acts of God such as fire, earthquake, landslide etc. but also war (declared or undeclared) or warlike circumstances, revolution, delays attributable to outbreaks, epidemics and pandemics, unrest, business disruptions, official measures, labor dispute, compliance with government regulations, shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources, blackout, and similar comparable circumstances. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate B&R for such delay.
Force majeure events and delays in delivery by upstream suppliers of at least eight (8) weeks arising out of such event do not give rise to an event of default and entitle the Parties to either extend the deadlines accordingly or to withdraw from the Order due to incomplete performance; any legal claims are excluded. B&R must inform the Purchaser immediately after becoming aware of the reasons about the reasons for the withdrawal or the extension of the deadlines.
10.2. Both Parties are aware of the global supply chain and related uncertainties from outbreaks, pandemics, epidemics, war (declared or undeclared), government regulations and acts of governmental authorities (including sanctions), civil unrest, and general shortages of electronic components and availability and cost of other raw materials that may impact the cost of both Parties and/or delivery dates. Notwithstanding anything in the Agreement to the contrary, the Parties agree that in the event of the occurrence of any of the above aforementioned challenges, in the spirit of cooperation they will work together in good faith to make an equitable adjustment to delivery dates, pricing and/or possible reductions of the contractually owed quantity of the products to be delivered to the Purchaser, with a view to employing reasonable efforts to ensure that the Order can be at least fulfilled in part. In the event the Parties are unable to reach a mutually acceptable equitable adjustment within fifteen (15) working days (which shall start when a Party provides written notice to the other Party that the previous negotiations failed) for any of the foregoing, then the Parties shall be excused from performance under the Order, in case it is terminated by one Party under written notice.
Each party waives any claim against the other Party either for direct damages and/or loss of profits and/or indirect and/or intermediate and/or consequential and/or punitive damages, penalties and/or liquidated damages arising from or anyhow connected with the excusable events provided hereto.
10.3. In case of termination of the Order as to Clause 10., B&R will be entitled to reimbursement for all costs incurred, in particular for customer-specific material already produced.
10.4. If any dispute or difference arises between the Parties, the Parties hereto shall endeavour to settle such dispute amicably.
10.5. Any contract, order acceptance or order confirmation by B&R is entered into and made subject and conditioned to the above terms, which the Parties recognize as fundamental conditions of any such agreement within the Parties.
11.1. Prices and terms of payment are determined by B&R’s 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.
11.2. In case and insofar that no terms of payment are specified in B&R’s 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.
11.3. 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.
11.4. 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.
11.5. 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.
11.6. Unless otherwise agreed or prohibited by law, any payment or charge not received when due will bear interest at the rate of one percent (1.5 %) per month (18 % per year) from the date due.
11.7. 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.
11.8. Ownership over the Contract Products shall transfer to Purchaser upon delivery according to the applicable freight term.
11.9. 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.
12.1. 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 in material and workmanship.
12.2. The warranty period is twelve (12) months from the date of shipment. After any improvement or replacement of the Contract Products, the original warranty period does not begin anew.
12.3. 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 shall not be responsible for providing temporary power, removal, installation, reimbursement for labor costs or working access to the nonconforming Contract Products, including disassembly and re-assembly of non-B&R supplied equipment, or for any other expenses incurred in connection with the repair or replacement, all of which shall be at Purchaser’s risk and expense.
12.4. B&R will under no aspects whatsoever be liable for (i) suitability of the Contract Products for the use intended by Purchaser; (ii) normal wear and/or tear; (iii) improperly repaired or altered Contract Products; (iv) improper handling, use, operation, storage, shipment or lack of maintenance contrary to B&R instructions, (v) errors, including, but not limited to, software errors that are common without impairment of use (vi) functionality and/or performance of the Contract Products with respect to Purchaser´s applications; (vii) Contract Products subjected to misuse, negligence or accident; and (viii) Contract Product comprised of materials provided by or a design specified by Purchaser.
12.5. Contract Products delivered shall be deemed accepted upon delivery.
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 five (5) 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 five (5) working days period.
12.6. 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 costs identified in Clause 12.3 above); expenses incurred by Purchaser in connection with the warranty will not be refunded.
12.7. There is no obligation for B&R to update (improve/repair) software provided to the Purchaser.
12.8. 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.
12.9. 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.
12.10. The Purchaser’s exclusive remedy for any breach of this warranty shall be for B&R, upon receipt of written notice given within five (5) 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.
12.11. 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 REMEDIES STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND B&R’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
13.1. B&R’s aggregate liability for all claims whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from the Order or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under the Order, or from any services rendered in connection therewith, shall in no case (except as provided in the clause entitled "Intellectual Property Rights") exceed the Order price.
13.2. In no event shall B&R, its suppliers or subcontractors be liable for indirect damage, consequential damage, operational interruption, loss of profit, loss of information and data, whether in contract, warranty, tort, negligence, strict liability or otherwise. 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.
13.3. Claims for damages and reimbursement for expenses against B&R arising out of the Order have a limitation period of twelve (12) months after delivery of the Contract Products.
14.1. Purchaser acquires ownership in physical Contract Products (e.g. hardware, [reproduced] user manuals etc.), but not the underlying intellectual property rights unless otherwise specified in the Agreement. In all cases, BIP shall remain the property of the originating party. B&R shall own and continue to own all intellectual property relating to the Contract Products, as well as any new intellectual property created or developed in the course of B&R delivering on any Order related to the Agreement, including intellectual property developed: (i) by B&R on it’s own or (ii) by B&R in conjunction of any service performed for Purchaser or with any input from Purchaser.
Furthermore, B&R will grant Purchaser the non-exclusive right, unlimited in time, to use the training materials as provided (tutorial videos, text files, etc.) for internal training purposes. In particular, Purchaser shall be entitled to cut training materials itself and to transmit, send, perform and make available these training materials on the hardware/final product for internal training purposes by wireless or wired means. In this case, Purchaser guarantees that the cut training materials does not create a misleading impression about the use and application of the contractual products and that no essential information is lost. Otherwise, Purchaser shall be liable for all damages, costs and losses (including all reasonable costs for legal prosecution and defense) incurred in this connection.
14.2. B&R will grant Purchaser all necessary Property Rights (non-exclusive rights only, royalty free and fully paid up) so that Purchaser is able to use and maintain the Contract Products as intended. In case of an 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.
14.3. B&R shall indemnify and defend Purchaser from all claims, suits, actions, awards, liabilities, damages, costs and attorneys' fees arising directly out of actual or alleged infringement, misappropriation or wrongful use of a third party’s intellectual property. Purchaser shall timely notify B&R of any such claim, suit or action. B&R shall, at its own expense, defend such claim, suit or action on behalf of Purchaser provided that Purchaser has given B&R prompt written notice of such action, provides assistance in the defense thereof and the right to control aspects of the defense thereof including the right to settle or otherwise terminate such action on behalf of Purchaser. Notwithstanding the foregoing, Purchaser may participate at its own expense in the defense and any settlement discussions, and will have the right to approve or reject any settlement agreement that involves an admission of fault by the Purchaser or imposes non-monetary obligations on the Purchaser.
14.4. If, in any such action, the Contract Products are held to constitute an infringement, or the practice of any process using the Contract Product as intended is finally enjoined, B&R shall, at Purchaser’s option and B&R’s expense, procure for Purchaser the right to continue using said Contract Product; or modify or replace the Contract Product with non-infringing equipment or, with Purchaser’s assistance, modify the Contract Product or process to use it so that it becomes non infringing; or remove it and refund the portion of the price allocable to the infringing Contract Products.
14.5. The obligations in Clause 14.4 above shall not apply to and B&R accepts no liability for: (i) changes or modifications to the Contract Products made by Purchaser or its customer; (ii) any other equipment or processes, including Contract Products, which have been modified or combined with other equipment or process not supplied by B&R; (iii) any Contract Products or processes supplied according to a design, other than a B&R design, required by Purchaser; (iii) any products manufactured by the Contract Products or process; (iv) any use of the Contract Products or process contrary to B&R instructions; (v) any patent issued after the date hereof; or (vi) any action settled or otherwise terminated without the prior written consent of B&R. 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.
14.6. Any claims of Purchaser other than those set forth in this Clause 14 are excluded.
14.7. To the extent that said Contract Products or any part thereof is modified by Purchaser, or combined by Purchaser with equipment or processes not furnished hereunder (except to the extent that B&R is a contributory infringer) or said Contract Products or any part thereof is used by Purchaser to perform a process not furnished hereunder by B&R or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against B&R, Purchaser shall defend, indemnify and hold B&R harmless in this respect, in the same manner and to the same extent that B&R would be obligated to indemnify Purchaser under this Clause 14.
14.8. THE FOREGOING PARAGRAPHS STATE THE EXCLUSIVE LIABILITY OF B&R AND EQUIPMENT MANUFACTURER FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT.
15.1. The Contract Products are subject to foreign trade restrictions, including dual-use trade controls.
15.2. 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.
15.3. If a Party notices that it has acted in violation of applicable export controls or laws on economic sanctions in connection with the Agreement, the Party must notify the other Party thereof within fourteen (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.
16.1. B&R and Purchaser (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information in connection with the Order. “Confidential Information” means (a) information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written disclosure, and (b) information that is orally designated as “confidential” or “proprietary” by Disclosing Party at the time of oral or visual disclosure and is confirmed to be “confidential” or “proprietary” in writing within fifteen (15) days after the oral or visual disclosure or (c) information by its nature or the circumstances surrounding disclosure is or reasonably should be understood to be confidential or proprietary to the Disclosing Party or its Affiliates. In addition, prices for Contract Products and services shall be considered B&R’s Confidential Information. The Parties shall also maintain the confidentiality of both the existence and content of their contractual relationships.
16.2. The Receiving Party agrees: (i) to use the Confidential Information only in connection with the Order, (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party. Notwithstanding these restrictions, each party shall permit access to the other’s Confidential Information only to its employees who: (i) reasonably require access to Confidential Information for purposes approved by the Agreement, and (ii) have undertaken a binding obligation of confidentiality with respect to the confidential information of others entrusted to him or her, and (iii) have been apprised of the confidentiality obligations hereunder. B&R may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the purchase order. A Receiving Party may only disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized use or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Order entitles Receiving Party to retain an item of Confidential Information. B&R may also retain one archive copy of Purchaser’s Confidential Information.
16.3. The obligations under this Clause 16 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party; (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information. As to any individual item of Confidential Information, the restrictions under this Clause 16 shall expire five (5) years after the date of disclosure. This Clause 16 does not supersede any separate confidentiality or nondisclosure agreement signed by the Parties.
Purchaser must comply with the Code of Conduct of ABB, which is retrievable at global.abb/group/en/about/integrity/standards/abb-code-of-conduct
18.1. Each contractual relationship between the Parties, in particular each Order, shall be governed exclusively by the substantive laws of the State of New York, USA , 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).
18.2. The exclusive place of jurisdiction for any dispute shall be the competent court of the State of New York, Manhattan County and the parties waive the defense of inconvenient forum in respect to any such litigation.
19.1. 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.
19.2. 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.
19.3. If any individual provision of the Agreement 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 the Agreement and/or an Order contains a loophole that needs to be closed.
19.4. The headings to the clauses of the Agreement are for ease of reference only and shall not affect the clauses’ interpretation.
19.5. Each Party may, after obtaining written approval, display the name and the logo of the other Party in reference lists.
19.6. Any assignment of the Order or of any rights or obligations under the Order without prior written consent of B&R shall be void.
Each Party shall process personal data under the Agreement 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: www.br-automation.com/en-gb/about-us/privacy-notices/.
Special order, custom designed, and made-to-order Contract Products are non-cancelable. Any other Order may be cancelled by Purchaser only upon prior written notice and payment of termination charges as set forth in the cancellation schedule included in B&R’s offer or payment of, including but not limited to, the purchase price of the work performed prior to the effective date of notice of termination, the costs identified to the purchase order incurred by B&R for work not completed, and all expenses incurred by B&R attributable to the termination, plus a fixed sum of ten (10) percent of the final total price to compensate for disruption in scheduling, planned production and other indirect costs.
Purchaser may only return Contract Products 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 Contract Products, and under no circumstances will B&R accept returned Contract Products after sixty (60) days from the date of B&R’s shipment. B&R may charge a restocking fee of forty percent (40%) of the Order price on any return Contract Products accepted by B&R. No used, damaged, obsolete, or customized Contract Products are returnable. Only the original purchaser may be eligible to return Contract Products. Contract Products must be returned in their original packaging. Shipping is paid by the Purchaser.
23.1. Purchaser hereby warrants that it will not, directly or indirectly, and it has no knowledge that other persons will, directly or indirectly, make any payment, gift or other commitment to its customers, to government officials or to agents, directors and employees of B&R or any other party in a manner contrary to applicable laws (including but not limited to the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act (United States) and, where applicable, legislation enacted by member States and signatories implementing the OECD Convention Combating Bribery of Foreign Officials) and shall comply with all relevant laws, regulations, ordinances and rules regarding bribery and corruption.
23.2. Nothing hereunder shall render B&R liable to reimburse Purchaser for any such consideration given or promised.
23.3. Purchaser’s material violation of any of the obligations contained in this Clause 23 may be considered by B&R to be a material breach hereunder and shall entitle B&R to terminate this Order with immediate effect and without prejudice to any further right or remedies on the part of B&R hereunder or applicable law. Purchaser shall indemnify B&R for all liabilities, damages, costs or expenses incurred as a result of any such violation of the above-mentioned obligations and termination of this Order.
23.4. Purchaser understands that ABB’s Code of Conduct is available for consultation online as indicated in Clause 17. Purchaser agrees to perform its contractual obligations hereunder with substantially similar standards of ethical behavior as those found in ABB’s Code of Conduct.
23.5. B&R has established the following reporting channels where Purchaser and its employees may report suspected violations of applicable laws, policies or standards of conduct:
Web portal: www.abb.com/integrity
Telephone: number specified on the above Web portal
Mail: address specified on the above Web portal
24.1. This Clause 24 applies only if the Order is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government.
24.2. Purchaser agrees that all Contract Products and services provided by B&R meet the definition of “commercial-off-the-shelf” (“COTS”) or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. Purchaser agrees, consistent with FAR 12.212, that commercial computer software and commercial computer software documentation are licensed under B&R’s Software License. To the extent the Buy America(n) Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Agreement, the country of origin of Contract Product is unknown unless otherwise specifically stated by B&R in this Agreement. Purchaser agrees any services offered by B&R are exempt from the Service Contract Act of 1965 (FAR 52.222-41). The version of any applicable FAR clause listed in this Clause 24 shall be the one in effect on the effective date of the Order.
24.3. If Purchaser is an agency of the U.S. Government, then as permitted by FAR 12.302, Purchaser agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with the Agreement. Purchaser further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Order price.
24.4. If Purchaser is procuring the Contract Products or services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Purchaser agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the purchase order price.
25.1. B&R owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to Purchaser under this Agreement. As part of the sale made hereunder Purchaser hereby obtains a limited license to use the Software, subject to the following: (i) the Software may be used only in conjunction with equipment specified by B&R; (ii) the Software shall be kept strictly confidential; (iii) the Software shall not be copied, reverse engineered, or modified; (iv) the Purchaser's right to use the Software shall terminate immediately when the specified equipment is no longer used by the Purchaser or when otherwise terminated, e.g. for breach, hereunder; and (v) the rights to use the Software are non-exclusive and non-transferable, except with B&R’s prior written consent.
25.2. Nothing in this Agreement shall be deemed to convey to Purchaser any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to designate the Software a "work made for hire" under the Copyright Act, nor to confer upon any person who is not a named party to the Order any right or remedy under or by reason of this agreement. In the event of termination of this License, Purchaser shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to B&R the Software and all copies thereof and shall remove all machine-readable Software from all of Purchaser's storage media.
26.1. Any changes requested by Purchaser affecting the ordered scope of work must first be reviewed by B&R and any resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change.
26.2. B&R may, at its expense, make such changes in the Contract Products as it deems necessary, in its sole discretion, to conform the Contract Products to the applicable specifications. If Purchaser objects to any such changes, B&R shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.
The remedies of the Purchaser as set forth in the Agreement are exclusive and are its sole remedies for any failure of B&R to comply with its obligations hereunder.