BSB develops and markets an OSCAR system for maritime navigation assistance using OSCAR embedded systems and OSCAR applications allowing communication with the User in real time -depending on the version – of information on floating objects in front of the vessel. This system consists of:
1. Electronic equipment, including third-party equipment, to be physically installed on the ship by the Buyer, the seller or an authorised installer;
2. Proprietary software packages integrated in the electronic equipment and in OSCAR applications to be installed by the seller, an authorised installer or the User from a private server or online download platforms to access the various services provided by the OSCAR System.
The Buyer refers to any company or natural person who wishes to purchase an OSCAR System for use in a professional context or to distribute and resell it to its own customers, as end users of the OSCAR System.
It is hereby agreed that a Buyer is deemed to be a professional, as the concept is defined in the Austrian Consumer Code (Konsumentenschutzgesetz), when he/she/it is a natural or legal person, whether public or private, acting for purposes falling within the scope of his/her/its commercial, industlial, artisanal, liberal or agricultural activity or profession, including when acting on behalf or in representation of another professional.
Any End User of the OSCAR System must also enter into an End User Licence Agreement (hereinafter the “EULA”) with BSB upon first use. The download and/or use of the aforementioned OSCAR proplietary software packages are subject to specific additional costs and fees and fall within the scope of the EULA, which specifies the user conditions of these software packages.
The General Terms and Conditions of Sale constitute the sole basis of commercial negotiation. The placement of an order implies the full and unreserved acceptance by the Buyer of these GTCS. No special condition shall prevail against these general terms and conditions, except with the formal and written acceptance of BSB.
No contrary condition established by the Buyer shall be binding upon BSB, in the absence of its express written acceptance, regardless of the time at which it may have been brought to its attention. When a quote is issued by BSB, it constitutes special conditions amending or supplementing these general terms and conditions. Offers included in a quote are valid for two (2) months.
2. PRODUCT SPECIFICATIONS
The product specifications are those indicated by BSB in the various technical documents related to the OSCAR System.
BSB reserves the right to amend the specifications of the OSCAR System at any time (including all statements and data contained in the catalogues, data sheets and advertisements of BSBJ without prior notice.
Products shall be invoiced at the prices agreed between BSB and the Buyer (offers, quote, order confirmation) at the time of the order.
Unless otherwise indicated, all prices exclude taxes and other charges, like installation costs, import duties and transportation costs.
Prices are based on the economic and financial conditions prevailing on the date of BSB’s quote; they may be adjusted at any time to reflect changes in such conditions. All taxes, duties and services not stipulated in the purchase order shall be additionally borne by the Buyer, unless otherwise indicated in special agreements. In the event of a change by legislators of the nature or rate of applicable taxes, and in particular of VAT, such change shall, by express agreement, apply automatically to the Buyer.
The Buyer will be informed of additional costs and fees related to the EULA (licence fees) when ordering.
Delivery shall be performed by direct delivery of the product to the Buyer, or by simple notice of availability, or by delivery to a carrier from BSB’s warehouse. BSB reserves the right to assign production and deliveries among its different customers at its sole discretion and in all circumstances. The delivery or execution deadlines are stipulated in the special conditions (offers, quotes, order confirmation), as precisely as possible, but depend on the possibilities of supply, manufacture and transport. If the established terms, provided solely for reference purposes, are exceeded, this circumstance shall not give lise to the payment of damages, price deductions or cancellations of orders in progress.
The delivery period shall not begin until the Buyer’s file is deemed complete, which presupposes the following, among other factors: compliance with the agreed terms of payment (possibly including the payment of a deposit) and submission by the Buyer of all technical, commercial, financial, administrative information or documents necessary to execute the order.
5. FORCE MAJEURE
Changes in regulations related to the products sold shall also be deemed a force majeure event. Fulfilment of the obligations of each party shall resume as soon as the force majeure event is over. If the force majeure event lasts more than two (2) months or if it makes the sale impossible, the order shall be terminated at the request of either party, by registered letter with acknowledgement of receipt, without any compensation.
Claims for damages in transit or missing or lost products are to be made in a precise manner (indicating the missing or damaged products, product references, packaging conditions) upon delivery, with the carrier, a duplicate of which shall be sent immediately to BSB by registered letter. Claims regarding the characteristics of the equipment delivered, or any other non-compliance with the order form, must be sent by registered letter to BSB’s head office within 72 hours of the delivery. If no claim is filed within the established time period and as indicated, the Buyer shall be deemed to have accepted the goods without reservation, precluding any further recourse.
||7. TERMS OF PAYMENT
Unless otherwise indicated, all orders must be paid within fourteen (14) days after the date of receipt of the product. BSB shall issue the relevant invoices upon delivery of the products.
No discount shall be provided by BSB for eany payment.
Non-payment of a single invoice shall render all sums due by the Buyer immediately payable and shall result in the suspension of any new delivery, notwithstanding any other action that BSB may be entitled to bring.
In the event of non-payment by the Buyer on the invoice date, the latter shall be automatically liable, without prior notice or a reminder, to late payment penalties consisting of interest at the interest rate applied by the European Central Bank to its most recent refinancing operation, plus 10 percentage points. In addition, any delay in payment automatically entails the application of a fixed sum for collection costs of forty (40) euros. The actual costs of collection shall also be charged, with justification, if such costs are higher.
8. RETENTION OF TITLE
All products shall remain the property of BSB, regardless of their location, until full payment of the price, including additional costs, with payment meaning the actual collection of sums due. However, until such date and from the date of delivery, the Buyer shall be liable for any damage to the goods, or any damage that they may cause, for any reason whatsoever, including during transport. Therefore, the Buyer must take all necessary precautions, and in particular provide the required insurance on behalf of the person to whom it shall belong.
9. RESELLERS- CLIENT INFORMATION
Any Buyer wishing to purchase one or more OSCAR Systems for resale to his/her/its customers hereby undertakes to inform and advise the customers, in particular by providing them with the technical information supplied by BSB and to inform them of the additional costs and expenses related to the EULA (licence fees).
10. INTELLECTUAL PROPERTY
BSB is either the holder or authorised licensee of the intellectual property rights on the OSCAR System, including, but not limited to, the rights of invention, copyrights, trademarks, designs and models, software, databases, plans, business documents, technical documents, distinctive signs and graphic elements.
The Buyer hereby acknowledges the rights of BSB to these elements and undertakes not to seek to appropliate any of such rights, either directly or indirectly, in any territory whatsoever, by reproduction, attachment, imitation or use.
BSB shall not provide the Buyer with any guarantee whatsoever in this regard. BSB’s sole obligation in the event of proven infringement of the intellectual property lights of any third party by the OSCAR System that may be detnmental to the Buyer shall be the collection of the products sold at BSB’s expense, excluding any damages or compensation of any kind.
The Buyer hereby acknowledges and accepts that BSB and its affiliates, including BSB MARINE, shall remain the sole proprietors of the data that are automatically recorded by the OSCAR system. The Buyer of the OSCAR service unreservedly accepts these conditions.
BSB provides a warranty to the Buyer against manufacturing defects for twenty-four (24) months from the order date. Under the warranty, BSB shall replace the items deemed defective or provide a refund, at its discretion, of the relevant costs and technical possibilities. The cost of such items shall be free of charge, in addition to labour costs, excluding transportation and/or port expenses, which shall be borne by the Buyer, unless otherwise agreed in writing on a case-by-case basis. Under no circumstances shall the Buyer be entitled to reimbursement of incidental experses that may have been incurred, such as the transportation of equipment, handling, crane operation or other assembly/disassembly costs.
No warranty shall be provided when the Buyer has failed to comply with the conditions of use specified in the documentation provided during the sale of the OSCAR System or if he/she/it interfered or had a third party interfere with the OSCAR system. No warranty shall be provided:
BSB”s liability shall, in all cases, be limited to compensation for direct and foreseeable damage, excluding indirect damages (including, but not limited to: loss of turnover, sales margin, damage to the Buyefs image, damage resulting from any breach or failure alising from infringement or alleged breach of any patent or other intellectual property right, etc.). The maximum amount of compensation that may be provided by BSB shall be limited, for all causes, to the amount invoiced for OSCAR System orders over a calendar year.
The Buyer and his/her/its own customers should note that use of the OSCAR System does not exempt the User under any circumstance from strict compliance with international maritime regulations and applicable rules and good practice. The User hereby acknowledges that the OSCAR System does not replace compliance with navigation rules and the obligation of permanent vigilance.
13. APPLICABLE LAW – JURISDICTION
These General Terms and Conditions and the resulting sales are subject to Austrian law, excluding the Vienna Convention.
Any dispute concerning these General Terms and Conditions, including their validity, interpretation, performance or termination, shall be submitted to the exclusive jurisdiction of the Commercial Court of Linz, regardless of there being multiple defendants and of the introduction of third parties, including for urgent or preventive measures, in summary proceedings or by petition.
- – If the defect detected results from a case of force majeure or the normal wear and tear of the OSCAR System;
- – If the defect is the result of incorrect installation or use, or of intervention by an unauthorised third party, or lack of maintenance;
- – If the problem is caused by impact, negligence or malice, or lack of storage, preservation or maintenance;
- – In the event of immersion in sea water, or damage caused by lightning;
- – For wear and tear parts.