General Contract | Conditions For Commissioned Contracts |
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| Written by Administrator | |
| Tuesday, 21 August 2007 | |
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Standard Conditions for Commissioned Contracts These Conditions of Contract are the basis upon which Rob Wooding & Associates (“RW&A”) undertakes commissioned work for the “Customer” in relation to any aerial remote sensed earth image, mapping, survey or spatially referenced data product (the “Product”). 1. PRODUCT The nature of the “Product” is defined by a specification. The specification shall describe :- o The nature of the work to be performed o The extent and/or magnitude of the work o The accuracies that are to be achieved o The delivery times for the work o The payment amount and terms The specification will normally be embodied in the standard RWA quotation form. A specification and quotation may also, from time to time, be in the nature of a letter or proposal. Any specification may, in whole or in part, refer to further documents or third party specifications as the case may be. In many cases, creation of the Product is dependant on weather, bureaucratic controls and force majeure that are beyond the control of RW&A. Therefore all quoted delivery times or dates are estimates unless they unambiguously incorporate the words “firm delivery”. All accuracies or tolerances listed in a specification are RMS (Root Mean Square) error values unless stated to the contrary. RW&A reserves the right to sub-contract or purchase services or products from any outside parties or firms as it sees fit in order to create the Product. 2. CUSTOMER The “Customer” is the individual or entity that signs acceptance of a quotation or issues a letter of appointment or purchase order referring to a quotation. Upon receipt of any one of the foregoing, a contract is deemed to exist between RW&A and Customer. The specification embodied in the quotation then becomes an “Agreed Specification” and is fixed unless amended in writing and the amendment is signed by both Customer and RW&A. Customer is responsible for payment in the amounts and on the terms that were quoted. This responsibility may not be transferred to third parties and invoices for the Product will not be directed to third parties. If payment for the Product is made by a third party on behalf of Customer, such third party does not become the Customer. Customer may at any time give RW&A written notice of the wish to cancel or prematurely withdraw from a contract. Upon receipt of such a notice RW&A will desist from further work on the Product. Under these circumstances RW&A has sole and absolute discretion to decide what portion of the quoted price shall be payable for any work completed to that date. Until payment for such partially completed work has been received by RW&A, Customer remains liable for the full contract amount. 3. ADVANCE PAYMENTS Distant jobs or work undertaken outside the borders of South Africa, usually require an initial down payment to cover overheads. Considerable effort is made to ensure that photographic flights on these distant jobs are achieved successfully on the first attempt. Equipment is tested to be in perfect working order, weather predictions are monitored for likely slots before setting off and as far as possible all permissions and clearances are sought and paid for in advance. However failures to acquire imagery can and do happen. The following conditions apply. a. Prior to the aircraft leaving for site, Customer has the option (subject to 10 days written notice) to cancel the contract and in such an event any amount paid in advance will be refunded in full. b. If, for whatever reason, the aircraft fails to position on site for the photography, any amount paid in advance will be refunded in full. c. If the aircraft positions on site but is unable to execute the aerial photography within four days (be it due to weather, bureaucracy or any other reason) it may at the crews discretion, return to base. In such an event the photography will be attempted again at a later date at no extra charge. The timing for the return trip will be as soon as practical but at the discretion of RW&A to fit in to other work. d. If it appears that the aircraft will be forced to return to base without completing the photography, Customer will be contacted prior to the event and given the option of having it remain on site for a longer period but for an additional daily demurrage charge which will be defined. This applies to both the first and second attempts. e. If the photography has not been achieved after two attempts the contract is considered cancelled. Any refund in such an instance is limited to the aerial photography portion of the quote or such proportion of it that remained outstanding at the time. 4. LIMITED WARRANTY AND LIABILITY. RW&A warrants (a) that it has sufficient ownership rights in the Product to make the Product available to Customer under the terms hereof, free from the adverse claims of third parties; and (b) that the Product will, for thirty (30) days from the date of delivery, substantially conform to the Agreed Specification when used on suitable computer hardware and/or for appropriate purposes; and (c) in the particular case of a firm delivery date, that Product will be shipped to Customer on or before that date. RW&A warrants further that Customer will be held free from any claims arising from the process of gathering the information required to build the Product unless itemized to the contrary in the Agreed Specification, This includes but is not restricted to, medical and travel expenses for RW&A personnel, direct and indirect consequences of accidents involving RW&A vehicles or aircraft and claims from any employees, sub-contractors or data providers used by RW&A. The process of verifying that the Product conforms to the Agreed Specifications is the obligation of Customer and Customer is advised to make explicit efforts to do this within the 30-day warranty period. The Products are complex and may contain some non-conformities, defects or errors. RW&A does not warrant that the Products will meet Customer’s needs or expectations, that operations of the Products will be error free or uninterrupted, or that all non-conformities can or will be corrected. Customer must notify RW&A within the 30-day warranty period of any warranty claim. RW&A’s SOLE OBLIGATION and Customer’s SOLE REMEDY under this Limited Warranty is that RW&A, in its discretion, either shall: (a) use reasonable efforts to repair or replace the Product within a commercially reasonable time so that the Product substantially conforms to the Agreed Specification, or (b) refund the amount of any payment previously paid by Customer for the non-conforming Product. If RW&A fails to achieve a delivery date that was agreed to be firm, Customer may demand from RW&A a reduction in the contract price for that portion of the work that remains outstanding. This reduction will be calculated at 10% of the price of the outstanding portion per week, rising to an absolute maximum of 100% of the quoted price for that outstanding portion. This Limited Warranty is void if any non-conformity has resulted from accident, abuse, misuse, misapplication, or modification by someone other than RW&A. The Limited Warranty is for Customer’s benefit only, and is non-transferable. RW&A is not liable for any incidental or consequential damages associated with Customers possession and/or use of the Product. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF FITNESS OR MERCHANTABILITY GIVEN IN CONNECTION WITH THE SALE OR USE OF THIS PRODUCT. RW&A DISCLAIMS ALL OTHER WARRANTIES NOT EXPRESSLY GIVEN IN THIS SECTION. 5. CONFIDENTIALITY & COPYRIGHT Both Customer and RW&A agree to keep confidential, during and after the period of this contract, all information concerning the trade or business or affairs of the other party unless such information is already in the public domain or said information is obviously not susceptible to being considered proprietary information. RW&A retains exclusive ownership and rights to the Product until payment has been received in full and in conformity with the specified terms. After payment has been received, a sale is deemed to have taken place and Customer then owns and has exclusive rights to the Product. Customer does not acquire and does not obtain rights to any source data such as imagery, survey information or calculations that may have been acquired, generated or used in the process of creating the Product. RW&A retains the right of continued use of such source data providing that RW&A shall not, within a period of thirty (30) months after date of delivery, use this data to create a product that is substantially the same, in whole or in part, to the Product that Customer has purchased. 5. MISCELLANEOUS. This is the exclusive and entire statement of Conditions of Contract between RW&A and Customer regarding the Product. This Contract shall be governed by the internal laws of South Africa. Any dispute of whatsoever nature arising out of this contract concerning any of the rights and/or obligations of any party thereto, either during the currency of the contract or after the completion thereof, including any dispute as to the validity of the contract, shall be referred to a single arbitrator and the parties agree to accept his or her award as final and binding upon them. The arbitrator shall be selected by agreement between the parties, or failing such agreement, appointed at the request of either party by the Chairman for the time being of the Southern African Association of Arbitrators. Customer shall pay all taxes arising out of or related to the Customer’s purchase or other acquisition of the Product. If any provision of these Conditions of Contract is declared invalid or unenforceable, the remaining provisions shall remain in effect. |
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| Last Updated ( Wednesday, 22 August 2007 ) |