These terms and conditions of service apply to all tenders, proposals and submissions made by or requested from Sound Mining Solution (Pty) Limited (“Sound Mining”) and shall be in addition to any subsequent conditions agreed by the parties, and may not be waived except by written consent signed on behalf of Sound Mining by duly authorised officials.
- All services provided by Sound Mining on this project will be subject to the latest published version of the PROCSA Form of Agreement for Consulting Engineering Services as distributed from time to time by Consulting Engineers South Africa (CESA) as amended by and subject to the specific provisions set out in this document. The onus rests upon the Client to obtain a copy of such and the client is deemed to have read and understood the PROCSA Agreement.
- These Terms and Conditions, the Commercial Schedule, the Client’s Acceptance and any other documents attached hereto evidence an agreement (the “Agreement”) for the provision by Sound Mining for the Client of the Services on the terms and conditions further set out below. Where any ambiguity or discrepancy exists between the Terms and Conditions and any attached document, these Terms and Conditions shall take precedence.
- In performing the Services, Sound Mining shall exercise the degree of skill, care and diligence which could reasonably be expected of it as a consulting engineer and in the circumstances.
- The Client shall provide to Sound Mining in a timely manner all information and assistance reasonably required by Sound Mining to perform the Services. The Client shall have no claim against Sound Mining for any liability, loss or damages suffered either, directly or indirectly, or for any reason whatsoever where Sound Mining utilised incorrect confidential Information supplied by the Client.
- The Client shall not assign, sublet or transfer any right or obligation under the Agreement without the written consent of Sound Mining.
Fees for Services
- In consideration of Sound Mining’s performance of the Services, the Client shall pay Sound Mining fees due which will be charged on a percentage of contract value, lump sum or time basis.
Should the Services proposed be conducted beyond the borders of the Republic of South Africa, the Client shall be liable for any and all taxes associated with the scope of work offered including but not limited to Value Added Tax, general Sales Tax, With-Holding Taxes, Airport taxes and any other taxes and levies legally payable in terms of the laws and legislation of the country of work or the laws and legislation governing the execution of the Services contemplated.
- Sound Mining reserves the right to re-negotiate changes of scope if large differences in the anticipated knowledge base or assumed design status materialises. More specifically, should the work required change to the point where it may increase the cost by more than 15%, then the scope of work will be re-negotiated.
- The Client may require Sound Mining to increase, decrease or omit any part of the Services or to provide additional Services (“Variation”), in which case the time for completion of the Services may be adjusted by Sound Mining to reflect such Variation. Any charges and expenses incurred in connection with Services provided by way of Variation, shall be payable in accordance with the terms of payment.
Terms of Payment
- Sound Mining shall invoice the Client on a monthly basis for all work completed up to and including the invoice date (unless agreed otherwise). Accounts are payable within 14 (fourteen) days of the date of invoice, unless otherwise agreed. Overdue accounts shall bear interest at the prime overdraft rate charged by Nedbank Limited from time to time, calculated at the date of invoice.
- The Client shall not be entitled to make any deduction from or set off against any payment due to Sound Mining. In particular, non-payment by the Client’s principal shall not be a reason to withhold payment to Sound Mining.
- The applicable proposal is based on the assumption that Sound Mining’s scope of work will be performed in the offices in Rivonia. It excludes disbursements such as travel, accommodation, communications and reprographics.
- Any incidental costs incurred in the completion of the work will be invoiced at cost +10% with full documentation provided to substantiate the expenditure.
- Any local RSA travelling will be reimbursed at R4.50/km. This is applicable to trips to sites in excess of 50kms from Sound Mining’s offices in Rivonia.
- Where international travel is required – the Client is responsible for:
a) the arrangement of and payment for all air tickets, visas, local travel, accommodation and meals for the duration of such travel; and
b) the safety and wellbeing of visiting consultants.
- A project administration, communications and reprographics fee of 3% of services rendered will be levied.
- This proposal is valid for acceptance for a period of
60 days from the date hereof.
Confidentiality and Copyright
- This proposal is confidential to you, the Client, and copyright in this proposal vests in Sound Mining. No part of this proposal, or any appendices to it, may be transmitted to any other party, in whole or in part, without the written permission of Sound Mining.
Copyright and other property in all information, documentation and materials (including in electronic format) provided by Sound Mining in connection with the Services shall remain with Sound Mining and her JV partners as appropriate. Subject to payment being made for the Services, Sound Mining shall grant the Client a licence to use the respective information, documentation and materials for the sole purposes of the project to which the Services relate.
- As mentioned in the latest published version of the Form of Agreement for Consulting Engineering Services, if circumstances arise for which Sound Mining is not responsible and which make it impractical or impossible for Sound Mining to perform the services in the normal manner as contemplated by the parties in accordance with the agreement in whole or in part, then Sound Mining shall promptly notify the Client.
If in those circumstances certain services have to be suspended, the time for their completion shall be extended by the extent of the delay plus a reasonable period for their resumption or, if the speed of performing certain services has to be reduced, the time for their completion shall be extended as may be necessary due to the circumstances. The Client shall pay Sound Mining such additional fees and expenses as may be agreed as appropriate to the work undertaken by Sound Mining in providing the necessary additional services.
- Either party may terminate this Agreement:
a) if the other is in material breach of its obligations hereunder which breach has not been remedied within twenty eight (28) days of written request to remedy the breach or has failed duly to pay money outstanding to the other within twenty eight (28) days; or
b) in the case of the Client, upon giving Sound Mining forty five (45) days notice of its intention to do so; or
c) in the case of Sound Mining, if it discovers that Client has made any material misrepresentation connected with the Services, the project to which they relate, or the circumstances in which they may be performed; or
d) if the other becomes insolvent or an order is made or resolution passed for its winding up or a receiver or administrator is appointed to it or any of its assets or it takes steps with a view to any compromise or arrangement with its creditors; or
e) it becomes unlawful for a party to perform its material obligations under this Agreement, in each case such termination to take effect without prejudice to accrued rights and obligations.
- Any Services provided by Sound Mining in connection with circumstances outside its control shall be treated as Services by way of Variation.
- The liability of Sound Mining to the Client and any third party in contract, or otherwise for all delays, losses, damages and liabilities whatsoever and howsoever arising which are suffered or incurred in connection with this Agreement and Services shall be the lesser of the fees received against the order number provided when acceptance of the proposal was signed and delivered to Sound Mining’s offices or R5 million and for a period of five years from the earlier of completion of Sound Mining of the services or the date of termination or completion of the agreement. Sound Mining shall not be liable for any claims whatsoever not notified in reasonable detail to it by the Client within six (6) months following completion of these services or termination of services
Should the Client require additional cover, this can be arranged at the request of the Client. Any additional cost to pay for this will be for the Client.
- Sound Mining shall not be liable to the Client or any third party for any kind of indirect or consequential loss or damage such as but not limited to loss of use, loss of profit, loss of production or business interruption which is connected with the Services of this Agreement.
- This Agreement is governed by the laws of the Republic of South Africa.
- Any dispute arising in connection with the Services shall first be referred to mediation for settlement. Unresolved disputes shall be referred to arbitration. The arbitrator shall be appointed by the Engineering Council of South Africa.
- No set-off, counterclaim, deduction or extension of time that is not expressly provided for in this Agreement shall be available to or asserted by Client in relation to amounts owed to it by Sound Mining or otherwise in connection with this Agreement.
- Any notice sent in connection with this Agreement shall be in writing and delivered by hand or registered mail to a party at its address specified in this Agreement or otherwise duly notified for the purposes.
- Sound Mining’s electronic contact shall be firstname.lastname@example.org for all correspondence in respect of this project unless otherwise notified by Sound Mining