The following DalinYebo “Standard Conditions For Professional Services” shall be referred to as Part B Additional or Amended Clauses*
Introduction
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 e.g. ICC Model Contracts.
In the case of FIDIC, the Particular Conditions (Part A) and Additional or Amended Clauses (Part B) augment and modify the General Conditions. The documents which shall form part of any contract are listed in the following order of priority:
(1) DYTD Non-Disclosure and Non-Circumvention Agreement (NDA-NCA)
(2) The signed proposal/letter of acceptance or Form of Agreement
(3) The Client/Consultant Model Services Agreement, incl.
(3.1) Particular Conditions (Part A) and Additional or Amended Clauses (Part B) – see below.
(3.2) General Conditions
(4) Appendices 1 to 5**
Part B. Additional Clauses – DYTD Standard Conditions of Contract
Note: References relate to the clause numbers of the General Conditions
Ownership of Information (ref. 1.7)
In the performance of the Services, the Consultant may obtain and use third party information in addition to and/or in conjunction with the Consultant’s own information, i.e. the Background Intellectual Property. Ownership of new information, i.e. Foreground Intellectual Property, developed as a result of the Consultant’s intervention, shall vest solely and exclusively in the Consultant.
Information Supplied by the Client (ref. 2)
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, Trademark or Copyright in the execution of the Client’s instructions.
Employment of Employees (ref. 3.6)
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.
Liability of the Consultant (ref. 9)
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.
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.
Insurances (ref. 10)
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 R10,000.00 (Then Thousand South African Rands, only) in the joint names of the Client, the Consultant and all Contractors.
If required and at an additional costs, Professional Indemnity and/or Public Liability insurances, respectively, can be arranged
Pricing (ref. 5.2)
All the Consultant’s prices are exclusive of Value Added Tax and any other government-imposed taxes or duties. Where applicable, any other taxes or duties payable by the Consultant would be invoiced separately for payment by the Client. All manhour rates and fees are fixed and applicable until the end of next February. 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.
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 either by Association of Arbitrators of Southern Africa or the Arbitration Foundation of South Africa in accordance with their respective administrative procedures. Their 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.
1 August 2020
* used to be referred to as Appendix D (in our 24 July 2001 T&Cs)
**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.
