The following DalinYebo “Standard Conditions For Professional Services” shall be referred to as Part B Additional or Amended Clauses*
Our engineering services are generally undertaken on the basis of the General Conditions of the Client/Consultant Model Services Agreement (The White Book) published by the Fédération Internationale des Ingénieur – Conseils (FIDIC), whilst our trade agreements are based on e.g. ICC Model Contracts. The following Particular Conditions augment and modify the General Conditions. References to clause numbers refer to the clauses in the General Conditions. References to Appendices 1 (was A in previous editions), 2 (was B), 3 (was C), 4 (new) and 5 (new) in the General Conditions refer to the terms in the DalinYebo proposals or contracts. The documents which shall form part of any contract are listed in the following order of priority:
(1) The signed proposal/letter of acceptance or Form of Agreement and its Particular Conditions (Part A).
(2) DYTD’s Standard Conditions For Professional Services (see below).
(3) FIDIC General Conditions.
Duration of Liability
The duration of Consultant’s liability shall be limited in terms of Clause 17 to twelve months from the completion or termination of the Services or handover of the Works to the care, custody and control of the Client whichever occurs first.
Limit of Compensation
The maximum amount of compensation payable by either party to the other in respect of liability under Clause 16 is limited to 5% of the fees payable to the Consultant.
Liability of the Consultant
The Consultant will perform the Services in accordance with the standards of care and diligence normally practised by recognised consulting, project management and engineering design firms in performing services of a similar nature. The Consultant’s liability is limited to the provision of free corrective services of the type performed under this Agreement to correct errors solely of the Consultant’s making. The Consultant has no liability at contract or at law for any consequential loss or indirect damage or loss of profits, no matter howsoever occurring.
Law of the Agreement
The Agreement is subject to South African law. English is the language of the Agreement and the ruling language.
Rules for Arbitration
The arbitration shall be conducted in accordance with the Uncitral Arbitration Rules for the settlement of international and commercial disputes as adopted by the General Assembly of the United Nations. The arbitration shall be administered by the Arbitration Foundation of South Africa (AFSA) and the standard AFSA administrative procedures and schedule of costs in force at the time of arbitration shall apply. Unless otherwise agreed between the parties the place of arbitration shall be in KwaZulu Natal, Republic of South Africa.
At the commencement of any construction works by Contractors, the Client will effect and maintain insurance for adequate third party liability, marine transit and contract works all risks in respect of the Works, with an excess (deductible) of not more than R10 000 in the joint names of the Client, the Consultant and all Contractors.
Employment of Employees
For the duration of the Services and for twelve months following the termination or completion of the Services, the Consultant and the Client shall not persuade, induce, encourage or procure any employee employed by the other party to terminate his employment with the other party.
All the Consultant’s prices are exclusive of Value Added Tax and any other government imposed taxes or duties which, where applicable, would be invoiced separately for payment by the Client. All prices are fixed and applicable until the end of next February (refer to C1). Thereafter all prices, including man-hour rates, fees and business mileage shall be adjusted in proportion to the annual increase in the Consultant’s average salary levels and costs.
Information Supplied by the Client
In the performance of the Services, the Consultant will be supplied with information and data by the Client. The Consultant is entitled to rely on the correctness, completeness and accuracy of such information and data. The Client warrants that any design, information or instructions furnished by the Client will not cause the Consultant to infringe any Letter of Patent, Registered Design, Trade Mark or Copyright in the execution of the Client’s instructions.
Ownership of Information
In the performance of the Services, the Consultant will receive Client and/or third party information and use it in addition to and/or in conjunction with the Consultant’s own information. Ownership of new information, developed as a result of the Consultant’s intervention, shall vest solely and exclusively in the Consultant.
1 August 2019
* used to be referred to as Appendix D (in our 24 July 2001 T&Cs)