STANDARD CONTRACT TERMS
1.)
GENERAL CONDITIONS
The present Standard Contract Terms (hereinafter referred to as: SCT) is an elemental part of the Delivery Contract, from which Contracting Parties may differ
from exclusively in the form of a written and duly signed contract amendment. In
case of any inconsistency between present SCT and the Buyer's order, the terms
and conditions in present SCT hereof shall prevail.
The extent of the SCT will govern all other contracts concluded with the Buyer for
the delivery of any other goods and/or services.
2.)
THE ORDER AND ITS CONFIRMATION
a) Buyer may place his order via telex, facsimile, phone or sending specific
order to disposal;
b) Buyer has to confirm the order being placed by phone in written (facsimile)
form within 12 hours;
c) Buyer has to confirm the orders being placed by telex or facsimile in letter
form within 3 days.
Supplier has the right of refusing the order within 8 working days time from its
receipt. Provided Supplier would not refuse, the order is considered as accepted.
3.)
PRICES
Prices are excluding customs duties, taxes and other assessments payable by
reason of government order. All such costs and expenses in connection with the
transaction is paid by Buyer unless Supplier presents documentation providing
exemption accepted by the relevant authorities. Prices are excluding, so Buyer
shall pay all expenses in relation with special packaging, or expenses to cover
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specific expectations of shipment or storage unless specifically noted by Supplier
in his original offer in written form and being involved into the offer price.
4)
MODIFICATIONS
Any modification affecting the equipment, or influencing the contracted activity in
a different way, can be introduced exclusively with the mutual agreement of Contracting Parties in written form, such as price, delivery schedule, payment terms
or others.
Supplier shall consider any modification to a detailed written order of Buyer exclusively following to the written confirmation by Buyer.
5)
ASSIGNMENT OF PROPERTY RIGHT AND RISK MANAGEMENT
The ownership right of the equipment shall be transferred to Buyer following to
the full payment of contract price. Up to the acquisition of property rights, Buyer
shall keep the subject of delivery as a property of Supplier stored and insured (at
full replacement value) separately, and shall account to Supplier on all deals, also
including insurance procedures. Supplier maintains his right of revendication on
the subject of delivery in case of non-payment.
The risk management shall be determined in accordance with the INCOTERMS
in effect at the date of contract, provided the deal is a foreign trade deal.
In other cases the risk will pass to Buyer at the time oh goods take-over.
When no indication is given in the Contract on the take-over, it is considered that
the take-over of the subject of contract is at the manufacturing site.
6.)
DELIVERY
Data in Supplier's offer are estimated data based upon the information being
available at the time of order acceptance. The delivery term shall be agreed by
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Contracting Parties and fixed upon possessing all necessary information coming
from Supplier. Supplier reserves the right to make partial deliveries.
Provided the delay in delivery can be referable to Buyer's activity, or Buyer fails to
take over the subject of contract on due date for any reason, in spite of this, the
payment obligation will raise for Buyer according to the projected delivery term,
as if the delivery had been performed, or the obligation of paying an interest of
delay will raise, that is twice the amount of the Central Bank basic interest rate.
The base of the interest of delay is the full contract price, or a part of it, respectively, depending on the delivery, while the starting point is the projected delivery
date up to the full payment date.
Without the full listing of Supplier's rights and legal remedy options, Supplier may:
a) instruct for the proper storing of the subject of contract up to the actual
delivery and charge Buyer all reasonable costs for storage, insurance
and maintenance;
b) sell the subject of contract at the best available price level and (after
deducting all reasonable storage and sales costs) charge Buyer with
all the shortfall between the original contractual price and the actual
sales price.
7)
BUYER'S RESPONSIBILITY
Buyer will define the application process of the subject of contract according to
his process requirements, furthermore, will determine and specify the matching
hardware configuration. Buyer is responsible for any arising deficiencies at his
own site, including, but not limited to input signals, power and environmental
conditions out of specified limit values and improper application engineering.
Buyer shall be responsible for controlling the goods safe arrival and proper storage.
8)
INSPECTION, TESTING AND ACCEPTANCE
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The inspection of the subject of contract by Buyer on Supplier's premises shall be
scheduled in advance for normal working hours' period;
Provided the purchased product is a system, Supplier shall notify Buyer when
Supplier will conduct a standard acceptance test for Buyer prior to shipment.
Unless Buyer objects in writing within ten (10) days specifying the nature of his
objections, the successful completion of the acceptance test constitutes Buyer's
factory acceptance and authorises to shipment. The on-site acceptance test will
be performed by Supplier's qualified personnel, with the active participation of
Buyer's staff. The acceptance test is designed to verify that the supplied equipment is complete, fits to Buyer's systems, free of physical damage, ready for application. The acceptance test shall be performed within thirty (30) days from the
system arrival. The successful completion of the on-site acceptance test constitutes full and final acceptance of the subject of contract. If the acceptance test is
in delay for over thirty (30) days after its arrival at site due to Buyer, it is to be
considered as the Buyer has been accepted the product definitively.
9)
SOFTWARE LICENCE
Supplier in present contract grants to Buyer a client-specific, non-transferable
and non-exclusive licence to the limited use of the computer software packages
and related materials furnished hereunder (further on referred to as "Computer
Program Material", CPM), described herein. This licence shall remain in effect
until the exhaustion or decommissioning of the CPM, or the equipment provided
or being serviced by Supplier hereunder, respectively, unless terminated by Supplier due to Buyer's breach of provisions of this Contract. The legal rights to the
Computer Program Material and parts thereof being licensed hereunder, as well
as all involved rights, including hereto all rights in the area of patents, copy rights,
trade marks and business secrets shall remain in Supplier's competency. The
CPM shall be used only in connection with the Equipment as specified herein.
Buyer shall :
a) maintain the CPM in confidence,
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b) disclose CPM only to such third parties who have entered into confidential, contractual relation with Supplier;
c) not modify, or give permission to a third party to modify the CPM
package without Supplier's written consent, or
d) not print, copy, duplicate, merge or display to public the CPM;
e) not using the CPM, or a part of it, for purposes being in contradiction
with the contents of the contract.
In the event Buyer resells the Equipment or part thereof to an End-user, Buyer is
responsible to inform Supplier about this and to ensure that the End-user accepts
the conditions stated above.
10)
CONFIDENTIAL INFORMATION
All information and material having been submitted to Buyer herewith ("confidential Information") shall be treated by Buyer in confidence. Buyer shall not disclose
confidential information to third parties, nor shall re-use it in connection with other
devices being different from the one being delivered to Buyer, without the written
consent of Supplier.
The obligations of Buyer under this clause shall survive the termination of this
Contract from whatever reason, but shall not apply to any information that has
validly and properly come into the public domain.
11.)
PATENT INFRINGEMENT
Supplier shall protect Buyer and pay all indemnification being assessed against
Buyer in any lawsuit or other proceeding to the extent such damages are based
on any such claim when the Equipment or any installed part thereof (except of
equipment or specific programs being manufactures upon Buyer's specifications)
shall, in design or construction, infringe any patent when used for the purposes
for which they were sold for, provided Buyer gives Supplier prompt notice in writing of any such claim making this way possible to Supplier to establish his own
standpoint in process or settle the claim at its option by:
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a) securing to Buyer the right to further use of such Equipment;
b) modifying Equipment to avoid infringement, or
c) re-claiming and reimbursing such damage value to Buyer.
Buyer shall give Supplier all necessary authority and assistance to enable Supplier to comply with its obligations herein.
12.)
LIMITATION OF LIABILITY
Supplier's liability against any claim based upon contract, felonious attitude (including negligence), warranty (except of property right warranty), strict liability
configuration or any other, for any loss or damage arising from the performance
of the Equipment or its operation by Buyer, cannot exceed the 50% level of contract price, the limitation to be based upon Supplier's product liability insurance
and its amount.
13.)
CONSEQUENTIAL DAMAGES
Under no circumstances shall Supplier be liable for special, indirect, incidental or
consequential damages of any nature or kind, including, but not limited to, the
losses arising from use, data, loss of profit or incomes, loss of production or capital.
14.)
IMMUNITY
Buyer undertakes to indemnify and save Supplier harmless for all losses, expenses or damages including costs of lawsuits being incurred at Supplier as a
result of Buyer's negligence, or any other kind of infringement, or breach of the
provisions herein, respectively, as well as being caused by the enforcement of
Supplier's rights or Buyer's obligations hereunder, furthermore, arising from Buyer's use of Equipment or any part thereof in different manner or for different pur-
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pose than those for which the Equipment has been delivered, including modifications or use thereof in relation with items supplied by others.
15.)
EXPORT CONTROLS
If applicable, Supplier shall only file for export licence after the appropriate documentation for the licence application has been provided by Buyer. Buyer shall
furnish such documentation within a reasonable time after order acceptance. Any
delay in obtaining such licence shall suspend delivery dates of the Equipment
without liability to either party. Provided the export licence is not granted or is revoked by the appropriate authorities, the contract may be terminated by Supplier
without any liability for damages of any kind resulting from such termination. Buyer undertakes, in the process of the export or re-export, not to disclose, neither
directly, nor indirectly, any other information provided by Supplier or in connection
with the direct product thereof than being defined in the export regulations of the
country of origin, or in compliance with such regulations.
End-User Statement: Buyer confirms hereby that the equipment and technology
being delivered under this contract, as well as the direct product of this technology, are intended for civil industrial use only, and must not be used, directly or indirectly, for the production of chemical or biological weapons, or precursor chemicals for such weapons, or, directly or indirectly, for any kind of nuclear endusage, respectively.
16.)
ARBITRATION
Contracting Parties agree to resolve all their legal disputes by amicable settlement and, in case of its inefficiency, stipulate hereby the final exclusive authority
and competence of the Arbitration Court of the International Chamber of Commerce, following the rules of its procedure regulation.
17.)
GOVERNING LAW
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The regulation of the Hungarian substantial and adjective law are authoritative to
the contracts of Contracting Parties.
18.)
TERMS OF PAYMENT
Supplier will accept an irrevocable, confirmed letter of credit at sight being issued
by a top ranked bank. Payments are due in accordance with the payment schedule being stated in Supplier's tender, quotation or price offer, respectively. Different payment schedule may be defined in the contract by Contracting Parties.
Delayed Payment - Provided Buyer fails to make full payment on due date stipulated above, then, without prejudice to any right or remedy available to Supplier,
Supplier is entitled to suspend delivery and, at the same time, charge Buyer with
the interests of delayed payment (both before and after any optional decree of a
court). The interest rate of the delayed payment is the double amount of the central bank's interest rate, up to the date of full payment has been performed.
19.)
FORCE MAJEURE
Neither Buyer nor Supplier shall be responsible to each other in any manner
whatsoever in the event of failure or delays in performance due to events beyond
their reasonable control, including, but not limited to the followings: acts of government, governmental decrees or regulations, war (whether declared or not),
civil or military disturbances, acts of God (flood, earthquake, typhoon, epidemic,
conflagration), embargoes, sabotage, marine catastrophe, strike and labour disputes.
Provided any of the Contracting Parties is promptly notifying the other party in
writing about the supervention of such above event, being supported by reasonably sufficient evidence thereof, the due dates for the performance and execution
of Contract affected thereby shall be correspondingly extended by the period or
periods equal to the duration of such event.
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Should Buyer or Supplier be restricted to fulfil their respective contractual obligations by such event lasting for a period of more than three (3) months, either of
the parties may, in written notice to the other party, terminate this Contract. Provided the Contract is terminated this above described way, Buyer is obliged to
pay, as full and final compensation, the outstanding unpaid balance of the contracted sales price in such ratio, in which percentage Supplier has been completed his contractual obligations up to the date of such termination.
20.)
WARRANTY
Unless Supplier has not specified in writing in a different way, Supplier shall undertake a warranty to the Equipment manufactured by himself for a period of one
year from the date of shipment, subject to Buyer's compliance with the applicable
warranty conditions as provided by Supplier. Provided any accessories or spareparts of the Equipment may need repair or replacement in the course of the warranty period, the balance of the original warranty period will mean the warranty
period for the repaired or replaced accessories or spare-parts.
This warranty shall not apply to defects resulting from:
a) wilful damage or negligence,
b) normal wear-out,
c) installation and/or maintenance by Buyer or third party,
d) misuse or increased stress of Equipment,
e) modifications or transformations made by Buyer or third party on the
equipment without Supplier's written consent,
f) failure of Buyer to maintain environmental conditions in accordance
with Supplier's instructions, including, but not limited to, adequate electrical power, temperature and humidity control,
g) installation or mounting of customised equipment manufactured by
third parties into the ABB Equipment for re-sale to Buyer, except the
third party (manufacturer) will give warranty for his product and its
compatibility, and
h) reasons beyond Supplier's rational control.
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Supplier's obligation under the warranty herein shall be limited to:
a) in case of hardware, repairing or replacement of the defective parts
and components,
b) in case of software, to reprogramming or replacement of CPM (or part
thereof) in order to remedy software faults detected in fixed programs
on PROM fixed programs, diskettes, cassettes or similar media. A defect in the standard software is only to be corrected, if the equipment
concerned does not function as originally intended.
The foregoing warranties shall not include freight, import taxes/duties, costs of
labour or travel time and expense for performance of any warranty which takes
place at Buyer's site. Such costs will be paid by Buyer.
Supplier shall be under no liability under the above warranty if the total price for
the Equipment has not been paid by the due date for payment.
Supplier will not be charged with any other warranties being involved in or taken
upon any legislation, including, but not limited to, the warranty obligations in the
legislation relating to the merchantability and feasibility for particular purpose application.
21.)
WAIVER
Unless the Equipment has been shipped, Buyer may withdraw from the contract
by a unilateral written notice to Supplier, provided he will contribute to the following payment obligation:
a) within 0 - 15 days after the receipt of order, 10% amount of contract
price;
b) within 16 - 30 days after the receipt of order, 25% amount of contract
price;
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c) Over 30 days after the receipt of order, the higher of the followings:
 25% of contract price or
 the percentage of contract price that is in correlation with the
work already being completed.
Supplier's determination containing the payment obligation relating to the case of
waive shall be final and conclusive.
22.)
TERMINATION
This clause is to be applied if:
a) Buyer might breach any term of this Contract;
b) Buyer might cease or suspend its business;
c) Buyer becomes unable to meet his obligations as they have matured,
or if process of bankruptcy or legal execution is instituted against Buyer, or if the position of insolvency is existing, or a trustee in bankruptcy
or judicial executor is assigned, or their assignment is in process, or
any provision from Buyer's side becomes necessary to satisfy creditors, respectively;
d) that conclusion can be drawn from Buyer's financial position, that Buyer would be unable to pay for the Equipment at due date and is unable
to provide any necessary assurance concerning the payment for the
Equipment will duly be performed.
Provided this clause comes to application, without prejudice to any other right or
remedy available to Supplier being defined with the expectation of completeness,
Supplier shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to Buyer, and if the Equipment has
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already been delivered but not paid, the price shall become immediately due and
payable notwithstanding any previous agreement to the contrary.
Termination of this Contract for whatever reason shall not affect any rights or obligations accrued prior to such termination.
23.)
DISCLAIMER OF RIGHTS
No omission or delay on the part of any party in the course of exercising his rights
under this Contract shall be considered as a waiver thereof, nor shall any single
or partial practice of any such right by any party preclude the further or different
manner practice of law thereof, or the practice of any other possible right.
24.)
SEVERABILITY
Provided a part of the contract or certain provisions herein are proved to be invalid or unenforceable, respectively, the remainder of the contract or its provisions
will stay valid further on, if they are conforming to the requirements of the given or
different kind of contract, and the maintenance of the contract is not objected by
any of the Contracting Parties.
25.)
ASSIGNMENT
This Contract shall be binding on the legal successors of Supplier and Buyer and
will stay in effect between them. At the same time, the rights and obligations
hereunder shall be of personal responsibility to the parties, so, for the assignment
of rights and obligations, as well as the contract in its entirety, the other party's
prior written consent is necessary.
26.)
NOTICE
Any obligatory or required notice is to be delivered by either party to the other in
writing addressed to the other party's seat or address given by the other party,
with reference to the present contract.
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27.)
SPECIAL END-USER
Supplier is definitively requesting for prior information from Buyer in case of any
application intention in any nuclear power plant. Regarding to the fact that the
ABB group is strictly regulating the permissions for using their equipment in nuclear power plants, this permission process has to be respected with special
care. Any delivery of such equipment may only be performed following to the
permission process.
Buyer declares by the acceptance of present SCT that:
I.
in case of delivering to nuclear power plant indirectly:
a.)
he will not use (not install) the products into nuclear power plant;
b.)
provided the product will be installed into nuclear power plant,
Buyer will not sign any contract, upon which a counter-claim may
be vindicated against him for nuclear damage indemnification;
c.)
provided the market enforces Buyer to undertake nuclear damage
counter-claim for different reason, Supplier will undertake exclusively a limited responsibility towards Buyer, which responsibility
limitation will be determined in the price offer, or the order confirmation, respectively.
II.
in case of delivering to nuclear power plant directly, provided Supplier
will conclude delivery contract directly with Plant Owner, Plant Owner
will not be entitled to vindicate any claim on nuclear damage against
Supplier.
28.)
REQUISITION OF SUBCONTRACTOR
1. ABB lets his Subcontractor be aware of all those parts of the Main Contract contents that has impact to him. Subcontractor admits that his re-
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sponsibility to ABB as Contractor is of same measure as ABB's responsibility to the Client according to the definition in the Main Contract.
2. Buyer provides information about the specifics of the working site on security technique, fire protection and labour safety. Buyer provides training on
special security technique regulations and hints being applied only on the
given site. In case of the fulfilment of these conditions, following to the
take-over of the working site, Subcontractor is responsible for the observance and keeping of the regulation on security technique, fire protection and labour safety.
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