BRAMSHAW® GENERAL SALES TERMS for Supply and Delivery
of Products and Services.
DEFINITIONS. BRAMSHAW shall mean Audience Response Systems Pty Ltd
trading as Bramshaw® ICS Conference Communications (Bramshaw)
ABN 57 101 099 398. The PURCHASER shall mean the person,
firm or company, including any servants or agents negotiating or contracting
with BRAMSHAW.
I Scope of supplies or services
1.
The scope of supplies or services shall be governed by mutual
declaration in writing. Where an
agreement has been entered into without such mutual declaration either the
written order confirmation by the Bramshaw or Performer (in the following the
Bramshaw) shall govern, or where such order confirmation has not been issued
the written order of the Purchaser.
2.
Protective devices will be supplied to the extent required by
law or expressly agreed upon.
3.
All supplies or services shall be governed by the rules of the
Verband Deutscher Elektrotechniker (Association of German Electrical Engineers)
insofar as safety of supplies or services is concerned. Deviations are permissible if the same
safety standard will be achieved by different means.
4.
Bramshaw reserves all titles and property rights and rights
originating from copyright on cost estimates, drawings and other documents; such
may bot be disclosed to third parties without the prior consent of
Bramshaw. All drawings and other
documents pertaining to quotations shall immediately be returned on request if
the order is not placed with the bidder.
Foregoing sentences 1 and 2 shall apply accordingly to documents of
Purchaser. They may, however, be
made available to those third parties, which perform services of supplies for
the Bramshaw in cases where this is permitted.
5.
Additional agreements shall not be binding unless confirmed in
writing.
II.
Prices
Where supply offered does not include erection or
installation, prices quoted are ex works, excluding packing.
III.
Retention of Title
Title to all goods is retained by Bramshaw until each and
every claim of Bramshaw against Purchaser originating in the business relations
has been duly satisfied. Prior to
this event goods may not be pledged or given as security and may only be
re-sold by resellers in the normal course of business, against payment from
their Customers. Any costs
incurred in connection with interventions following this Section shall be borne
by Purchaser.
If the value of the sureties
accruing to the Bramshaw in performance of sentence 1 exceeds the value of all
privileged claims by more than 25%, Bramshaw shall upon request release a
respective part of the sureties.
IV.
Conditions of Payment
1.
Payments shall be made free paying-office of Bramshaw.
2.
Purchaser may set off only such claims as are undisputed or
finally determined.
V.
Period for Supply of
Deliveries or Services
1.
The period for supply of deliveries and services shall be
governed by the mutual written declarations. Section 1 No.1 Sentence 2 shall apply accordingly. Timely supply is conditioned upon
timely receipt of all documents to be furnished by Purchaser, necessary
licences and releases, timely clarification and approval of plans and
observance of the terms of payment agreed upon and all other obligations.
If these conditions are not timely fulfilled, the
period for supply shall be appropriately extended.
2.
Above period shall be deemed to have been met:
a.
Where supply does not include erection or installation, if the
goods, ready for operation, have been delivered to the carrier or picked up
within the agreed period. If
delivery is delayed for reasons for which the Purchaser is responsible supply
shall be deemed timely if notice that the goods are ready for shipment has been given within the agreed
period.
b.
Where supply includes erection or installation, if such
erection or installation has been completed within the agreed period.
3.
If the period for supply of deliveries or services can be
proven to have been exceeded because of mobilisation, war, riot, strike,
lockout, or in the event of unforeseeable circumstances, such period shall be
adequately extended.
If such period is exceeded for reasons other than
those stated in sub-section 3 para 1. the Purchaser - insofar as he can
establish credibly that he has suffered damage owing to the delay - may claim
liquidated damages of .5% for every completed week’s delay up to an overall
total of 5% of the value of that part of supplies or services which could not
be taken into useful operation owing to individual components thereof not
having been furnished in time.
Purchaser shall likewise be entitled to liquidated
damages in case of circumstances as described under sub-section 3 para 1
arising only after period of supply of deliveries or supplies originally agreed
upon has been culpably exceeded by Bramshaw. All further damages for delay as may be claimed by Purchaser
exceeding the margin of 5% as ruled under para 2. are expressly excluded even
if an additional period of time as may have been granted to Bramshaw has
expired. This does not apply where
in cases of intent or gross negligence Bramshaw’s liability is enforced
by law.
The right of Purchaser to cancel the Contract after an
additional period of time granted to the Bramshaw has ineffectively expired,
shall remain unaffected.
4.
If shipment or delivery is delayed at Purchaser’s
request, storage costs to the sum of .5% of the invoiced amount may be charged
for every month commenced beginning one month after notice has been given that
goods are ready for shipment. Such
charge shall be limited to an overall total of 5% unless costs incurred can be
proven to be higher.
VI.
Transfer of Risk
Risk shall pass to Purchaser, even if freight delivery
paid has been agreed upon:
1.
Where supply offered does not include erection or
installation: whenever goods ready for operation have been delivered to carrier
or picked up. Every care shall be
taken in packing. Shipment shall
be carried out to the best of Bramshaw’s judgement. At the request and expense of
Purchaser, goods shipped will be insured by Bramshaw against breakage, damages
in transit or fire.
2.
Where supply offered includes erection or installation: the
day Purchaser has taken over goods for operation; insofar as a test run has
been agreed upon, whenever such run has been satisfactorily completed. Assumption hereto is that the test run
or taking over for operation shall take place immediately following erection or
installation declared ready for operation.
If Purchaser fails to accept the offer of a test run
or to take over for operation, risk for the period of delay arising therefrom
shall pass to Purchaser after a period of 14 days following such offer.
3.
If shipment, delivery, commencement or execution of erection
or installation is delayed at the request of Purchaser or for reasons within
Purchaser’s responsibility, risk shall pass to Purchaser for such period
of delay, Bramshaw however undertakes to effect at Purchaser’s expense
such insurances as requested by Purchaser.
VII.
Erection and Installation
- A
Insofar as nothing to the contrary has been agreed upon in
writing the following provisions shall apply to erection and installation of
any kind.
1.
Purchaser shall provide at his expense and in due time:
a.
in sufficient number, auxiliary personnel such as labourers
and, if necessary, bricklayers, carpenters, fitters, crane operators and other
skilled labour along with the required tools;
b.
all earth work, foundations, civil engineering, morticing,
scaffolding, plastering, painting and other work not usual in Bramshaw’s
trade including the necessary materials.
c.
such objects and materials as are necessary for erection and
putting into operation, eg. props, wedges, bases, cement, cleaning and sealing
materials, lubricants, fuel etc., furthermore scaffolds, lifting gear and other
devices.
d.
power and water including the necessary connections up to
point of use, heating and general lighting;
e.
suitable and dry rooms of sufficient size at the site which
can be locked for storage of machinery-parts, equipment, materials, tools etc.
as well as adequate working rooms and accommodation for Bramshaw’s personnel including
reasonable sanitary installations.
Furthermore Purchaser must follow the same provisions for safeguarding
the property of Bramshaw and erection personnel at the site as he would for his
own;
f.
protective clothing and protective devices which are necessary
owing to particular conditions at site and which are not usual in
Bramshaw’s trade.
2.
Before commencement of erection work, Purchaser must make
available of his own accord necessary information concerning all concealed
electric cabling, gas- or water-pipes and the like as well as necessary
information on statics.
3.
Before commencement of erection or installation, the parts
required for initiating the work must be at hand and all masonry, carpentry and
other preparatory work must be so far advanced that erection of installation
may begin immediately upon arrival of erection or installation personnel and
proceed without interruption. In
particular, the approach roads and the site for erection or installation itself
must be level and clear, foundations must be dry and set, foundation walls
erected and backfilled, and in the case of indoor work, the rendering of walls
and ceilings must be complete and especially, doors and windows must have been
fitted.
4.
If installation, erection or commencement of operation is
delayed owing to circumstances particularly at the site the Bramshaw may not be
held responsible for, Purchaser shall bear the reasonable costs for stand-by time and any
additional travelling expenditures of erection or installation personnel.
5.
Working hours shall be certified at weekly intervals to
erection or installation personnel by Purchaser to the best of his
knowledge. Moreover, Purchaser
shall immediately confirm in writing to erection or installation personnel
completion of erection or installation work.
6.
Bramshaw shall not be liable for any work executed by his
erection or installation personnel or other agents that is not related to
supplies and erection or installation or insofar as it has been initiated by
Purchaser.
Erection and Installation - B
If Bramshaw has undertaken to provide erection or
installation on an actual cost basis, the following conditions shall apply in
addition to those as under A:
7.
Purchaser shall make payments to Bramshaw according to rates
of charge for working hours agreed upon at time of order together with premiums
for overtime-, night-, Sunday- or holiday work, work under unusually difficult
conditions, planning and supervision.
8.
Moreover, the following costs shall be paid separately:
a.
Travelling expenditures, costs for transport of tools and
personal luggage.
b.
Daily allowance for working hours as well as for off-days and
holidays.
VIII. Acceptance
1.
Goods delivered shall be accepted by Purchaser even if they
show minor defects.
2.
Partial deliveries are admissible.
IX.
Liability for Faults
The Bramshaw shall be liable for faults including
failure to achieve assured characteristics as under:
1.
The Bramshaw shall at his discretion repair or replace such
part of perform anew such services free of charge as have become of no use or
markedly impaired in usefulness within 12 months after transfer of risk - regardless
of actual operating time - owing to circumstances prior to transfer of risk,
particularly such as faulty design, materials or workmanship.
Bramshaw must be
informed in writing of such faults immediately after they have been noticed.
2.
Purchaser has to comply with his contractual obligations, in
particular with the agreed conditions of payment. If complaint in respect to a fault is made, Purchaser may
withhold payments to an extent, which is fair and reasonable in respect to the
faults occurred.
However, if the Contract is entered into in pursuance
of Purchaser’s line of business payments may only be withheld under the condition that the complaint
in respect to a fault is justified beyond any reasonable doubt.
3.
Purchaser shall grant the Bramshaw such adequate time and
opportunity as Bramshaw deems reasonable to remedy the faults, in case of
refusal Bramshaw’s liability shall be waived.
4.
If Bramshaw lets expire an adequate extension of time as set
by Purchaser without remedying the fault, Purchaser shall have the right to
cancel the Contract (cancellation) or claim a reduction of price (reduction).
5.
Right of Purchaser to lodge claims owing to faults shall in
any case be barred after a period of 12 months has expired beginning from the
date of above complaint. If no
agreement is reached within this period of time, Bramshaw and Purchaser may
agree to an extension of said period.
6.
Liability for faults does not cover natural wear and tear nor
damage arising after transfer of risk owing to faulty of negligent handling,
excessive strain, unsuitable materials for operation, deficient civil
engineering work, unsuitable solid conditions, and such chemical,
electrochemical or electrical influences as were not assumed at the time of the
Contract.
7.
All liability for consequences of any inexpert alterations or
repairs carried out by Purchaser or a third party shall be waived.
8.
Period of liability for faults in repairs shall be 3 months,
for replacements or renewals 6 month.
However, above period shall run at least until expiry of warranty period
as originally provided for in respect of the contractual goods.
If parts of supplies cannot be put into efficient operation owing to an interruption of
work caused by repairs, replacements or corrected services, period of liability
for faults for such parts shall be extended by same period of interruption.
9.
The provisions concerning periods of liability for faults
under paras 1, 5 and 8 shall not apply where longer periods are enforced by
law.
10.
Bramshaw or Bramshaw’s agents shall in no event be
liable to Purchaser for any further claims, particularly claims for damages not
affecting the goods themselves.
This shall not apply where liability is enforced by law in cases of
intent, gross negligence or failure in assured characteristics.
11.
Sub-section 1 to 10 shall apply accordingly to claims of
Purchaser concerning repair, replacement or damages originating from proposals
or advice given within the scope of the Contract or originating from a breach of secondary contractual
obligations.
X.
Impossibility of
Performance; Adjustment of Contract
1.
If Bramshaw or Purchaser are unable to perform their supplies
or services, general legal principles shall apply subject to the following
conditions:
If Bramshaw may be held responsible for inability,
Purchaser is entitled to claim damages.
However, liability of Bramshaw shall be limited to 10% of value of that
part of services or supplies which, owing to the inability, cannot be put into
useful operation. Damages of
Purchaser exceeding said margin of 10% are excluded. This does not apply where liability is enforced by law in
cases of intent or gross negligence.
The right of Purchaser to cancel the Contract shall remain unaffected.
2.
Insofar as unforseen events as described under Section V,
Subsection 3 para 1 materially affect the economic consequences of substance of
the supplies or services or have a major effect on Bramshaw’s business,
the Contract shall be adjusted reasonably within good faith. If this is not justifiable from an
economic point of view Bramshaw may cancel the Contract. If he wishes to exercise this right of
cancellation, he shall inform Purchaser of such intention immediately after
recognising the significance of the event; this shall apply even where in the
first instance an extension of delivery period has been agreed upon with the
Purchaser.
XI.
Further Claims for
Damages
Claims for damages on the part of the Purchaser
arising from breach of secondary contractual obligations, obligations during
the stage of contractual negotiations and tort are excluded. This does not apply where liability is
enforced by law in cases of intent or gross negligence by Bramshaw, his legal
representatives or agents. This limitation
shall apply accordingly in respect of the Purchaser.
XII.
Place of Jurisdiction
1.
Whether the purchases is a company or person, exclusive place
of jurisdiction in case of all litigations arising directly or indirectly out
of the Contract shall be at the discretion of Bramshaw the domicile of
Bramshaw’s head or branch office.
2.
Contractual relations shall be governed by Australian law.
XIII.
Validity of Contract
If any provision of this Contract is void the
remaining part of the Contract shall remain unaffected. This shall not apply if adherence to
the Contract should mean an unreasonable hardship to any one Party.
XIV. Credit
Check Authority
Bramshaw may, at its discretion, check the credit rating of potential customers
and as a result change contract conditions before, during or after contract negotiations.
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