B&R Industriële Automatisering B.V.
KVK 20055684, 4817 BZ Breda
Means all companies of the ABB Group.
B&R Industriële Automatisering B.V. KvK 20055684, Hoge Schouw 1, 4817 BZ Breda, The Netherlands.
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).
Restricted Person means any entity or person included on a list (including U.S. and EU lists) of targeted parties, blocked parties, or persons subject to asset-freezing or other restrictions introduced under any applicable Trade Control Laws (and includes any entity that is directly or indirectly owned fifty (50) percent or more, in the aggregate or individually, or otherwise controlled by any Restricted Person).
Sanctions Agency means any governmental or regulatory body, instrumentality, authority, institution, agency or court that promulgates or administers Trade Control Laws including, but not limited to, the aforementioned governmental and regulatory bodies of (i) the United Nations, (ii) the United States of America (including the U.S. Department of Treasury Office of Foreign Assets Control, U.S. Department of State and U.S. Department of Commerce), (iii) the European Union or (iv) Switzerland.
Any Contract Product from B&R’s respectively valid product catalog (www.br-automation.com).
2. Scope and Applicability
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 or guidelines 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 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 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 ABB’s Code of Conduct of (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.
5. Specification and Use of Contract Products • Machine Safety • Services
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. The availability of the Contract Products and spare parts is defined by the provisions of the respectively valid B&R product lifecycle (https://www.br-automation.com/en/about-us/br-lifecycle).
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.
6. Orders, Individual Orders and Quantities
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.
7. Delivery, Installation and Start-Up
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.
9. Delivery Periods (Delivery Dates) • Terms of Delivery • Packing
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.
10. Delay in Delivery • Force Majeure• Shortage of Goods
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, and similar comparable circumstances.
Force majeure events and delays in delivery by upstream suppliers of at least eight 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 Individual 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.
Both Parties are aware of the global supply chain and related uncertainties from outbreaks, 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 these GTC 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 Individual Order can be at least fulfilled in part. In the event the Parties are unable to reach a mutually acceptable equitable adjustment within 15 working days (as a final negotiation period starting from the day, where at least one Party declares in writing the previous negotiations failed) for any of the foregoing, then the Parties shall be excused from performance under the Individual Order, in case it is terminated by one Party under written notice.
Each Party waives any claim against the other Party – regardless of whether the Individual Order is terminated or not – 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.
In case of termination of the Individual Order as to clause 10., B&R will be entitled to reimbursement for all costs incurred, in particular for customer-specific material already produced.
If any dispute or difference arises between the Parties, the Parties hereto shall endeavor to settle such dispute amicably.
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. Prices (Payment) • Terms of Payment • Credit Approval • Retention of Title
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.
12. Warranty (Liability For Defects)
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 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.
There is no obligation for B&R to update (improve/repair) software provided to the Purchaser.
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.
Insofar as permitted by applicable law, the warranties and remedies in the Individual Order (agreement) shall replace all statutory, implicit and/or explicit guarantees and form the full liability of B&R with regard to the quality and warranty of the delivered Contract Products.
13. Other Liability (Damages)
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.
Chain liability and/or joint and several liability for social and fiscal obligations: In case third parties shall be engaged by B&R with regard of production and/or delivery of the Contract Products, the Purchaser undertakes to lend its full cooperation to enable B&R to comply with all applicable law with respect to chain liability and hirer’s liability (keten- en inlenersaansprakelijkheid), including all governmental laws, decisions and decrees relating thereto.
14. Industrial Property Rights
Purchaser acquires ownership in physical Contract Products (e.g. hardware, [reproduced] user manuals etc.).
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.
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.
15. Export Regulations • Dual Use
The Contract Products are subject to foreign trade restrictions, including dual-use trade controls. The Parties will comply with all applicable Sanction and Trade Control Laws in connection with these GTC. Sanctions and Trade Control Laws and regulations include any applicable laws, regulations, or administrative or regulatory decisions or guidelines that sanction, prohibit or restrict certain activities including, but not limited to, (i) import, export, re-export, transfer, or trans-shipment of goods, services, technology, or software; (ii) financing of, investment in, or direct or indirect transactions or dealings with certain countries, territories, regions, governments, projects, or specifically designated persons or entities, including any future amendments to these provisions; or (iii) any other laws, regulations, administrative or regulatory decisions, or guidelines adopted, maintained, or enforced by any Sanctions Agency on or after the date of the Individual Order (collectively, “Trade Control Laws”).
The Parties confirm that they have not violated, shall not violate, and shall not cause the other Party to violate, any applicable Trade Control Laws. Each Party represents and warrants that, to the best of its knowledge, at the date of the Individual Order neither it, nor any of their respective directors or officers are a Restricted Person. Each Party agrees that it shall promptly notify the other Party if it becomes a Restricted Person.
If, as a result of (i) Trade Control Laws are issued or amended after the date of the Individual Order, (ii) the Purchaser or the end-user is/becomes a Restricted Person, or (iii) any necessary export license or authorization from a Sanctions Agency is not granted, the performance by B&R or by any affiliates becomes illegal or impracticable, B&R shall, as soon as reasonably practicable, give written notice to the Purchaser of its inability to perform or fulfil such obligations. B&R shall be entitled to either immediately suspend the performance of the affected obligation under the Individual Order until such time as B&R may lawfully discharge such obligation or unilaterally terminate the Individual Order in whole or in part from the date specified in the said written notice or from any subsequent date thereafter. B&R will not be liable to the Purchaser for any costs, expenses or damages associated with such suspension or termination of the Individual Order.
The Parties undertake 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.
The Purchaser represents and warrants that the Contract Products are for civil use only and that it will not directly or indirectly sell, export, re-export, release, transmit or otherwise transfer any Contract Products received from B&R to any third party or country in violation of Trade Control Laws.
If a Party notices that it has acted in infringement of applicable Trade Control Laws in connection with the Individual Order, the Party must notify the other Party thereof within 14 days. In the event of infringement of applicable Trade Control Laws in connection with the Individual Order or breach of the obligation to notify, the Parties shall have the right to terminate the Individual Order for cause. Neither Party will be liable for any costs, expenses or damages associated with such termination of the Individual Order.
For the avoidance of doubt, no provision in these GTC shall be interpreted or applied in a way that would require any Party to do, or refrain from doing, any act which would constitute a violation of, or result in a loss of economic benefit under, applicable Trade Control Laws.
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.
17. Code of Conduct
Purchaser must comply with the Code of Conduct of ABB, which is retrievable at https://global.abb/group/en/about/integrity/standards/abb-code-of-conduct
18. Governing Law • Dispute Resolution • Place of Jurisdiction
Each contractual relationship between the Parties, in particular each Individual Order, shall be governed exclusively by the substantive laws of The Netherlands, 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 Breda, The Netherlands.
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.
With regard to EU-Directive 2012/19/EU (regarding the collection and processing of discarded electrical and electronic equipment), B&R and Purchaser agree that Purchaser shall be solely liable for the collection, processing and/or environmentally friendly removal (together: "Processing") of discarded electrical and electronic equipment belonging to users other than private households ("B2BAEEA") and for all obligations or costs of or in connection with this. B&R is not required to set up facilities for the return of B2B-AEEA. Purchaser shall impose upon his customers (i) corresponding obligations and restrictions and (ii) the obligation to impose such obligations and restrictions upon their customers in the chain of the sale of such products. Purchaser shall indemnify B&R against all such obligations and/or costs.
20. Data Protection
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: https://www.br-automation.com/en-gb/about-us/privacy-notices/