Terms & Conditions
Our Standard Terms AND CONDITIONS.
Means McArthur and Dippenaar Associates Pty Ltd, registered under South African law, Reg. no. 2015/227393/07, at 2 Flint Road, Parkwood, 2193.
Means a piece of work to be undertaken by M&D as described in the agreed Engagement contract signed by both Parties.
Means all information about the Parties, including:
- Means all information about the Parties, including:- any information which may give a commercially competitive advantage to any other person.
It includes among other things:
- information about staff, including performance and personal information,
- data or information relating to suppliers, product plans, marketing strategies, finance, performance, operations, customer relationships, customer profiles, sales estimates, business plans;
- information about the Intellectual Property and all aspects of the technology of a Party;
- information created or arising from this agreement;
- information owned by a third Party and in respect of which a Party has an obligation of non-disclosure.
- It does not include information that it is reasonably necessary to disclose to a customer or other person in the usual course of business so far as that information is disclosed in those circumstances.
Means a specification of work to be done under the Engagement contract.
Means all money payable by the Client to M&D, however described, for work on the Engagement. “Intellectual Property” or “IP”
“Intellectual Property” or “IP”
Means IP and associated rights of every sort, whether or not registered or register-able in any country, including IP coming into existence after today.
In this agreement unless the context otherwise requires:
2.1. a reference to one gender shall include all genders, singular may be interpreted where appropriate as a reference to the plural and vice versa.
2.2. a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of any re-organisation involving that person.
2.3. the headings to the paragraphs to this agreement are inserted for convenience only and do not affect the interpretation.
2.4. any agreement by any Party not to do or to omit to do something includes an obligation not to allow some other person to do or to omit to do that same thing.
2.5. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified Party.
2.6. all money sums mentioned in this agreement are calculated net of VAT, which will be charged when payment is due.
2.7. this agreement is made only in the English language, and where interpretation conflicts exist the English language version shall prevail.
3. Entire Agreement
3.1. This agreement contains the entire agreement between the Parties and supersedes all previous agreements and understandings between the Parties.
3.2. Each Party acknowledges that, in entering into this agreement, it does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
3.3. Conditions, warranties or other terms implied by statute or common law in any country, are excluded from this agreement to the fullest extent permitted by law.
3.4. This agreement has been drawn with reference to a single Engagement. However, the Parties intend, and now agree that all the terms shall apply so far as reasonably possible to any series of Engagements which the Parties agree under these terms.
3.5. In order to apply these terms to further Engagements a reference to this agreement shall be made in the Engagement document.
4. Warranties for Authority
4.1. Each Party warrants that it has power to enter into this agreement and has obtained all necessary approvals to do so.
4.2. Both Parties warrant and undertake that they are not aware of anything within their reasonable control which might or will adversely affect their ability to fulfil their obligations under this agreement including financial obligations.
5. M&D’S status
5.1. M&D’S consultants are not a partner, agent or employee of the Client and do not have authority to enter into any commitment on behalf of the Client;
5.2. M&D agrees that it will be responsible for its own income and other tax liability in respect of its fees and it hereby agrees to indemnify the Client in respect of any claim that may be made by any tax authority against the Client in respect of income or other tax relating to M&D’S services.
6. Contract summary and payment
6.1. The Client will pay for work done in accordance with fee rates set out in the Detailed Specification.
6.2. The invoice shall include whatever reasonable expenses M&D has incurred in working on any Engagement.
6.3. M&D may charge for any reasonable costs incurred as a result of any delay caused by the Client or any circumstance controlled by the Client.
6.4. Payment of the sum specified in the invoice will be made by the Client within 30 days of date of sending the invoice. Failure to make timely payment shall entitle M&D to stop all work for the Client, including work regulated by any other agreement.
6.5. M&D shall be entitled after 28 days’ notice to the Client and not more than once in every 12 months to increase the rates for work charged in line with local inflation (average CPI for the last 12 months) +3%.
6.6. M&D reserves the right to charge the Client interest in respect of the late payment of any money due under this agreement (both before and after judgment) at the rate of 5% above the repo rate set by the South African Reserve Bank from the due date until receipt of payment.
6.7. Banking charges by the receiving bank on payments to M&D will be borne by M&D. All other charges relating to payment in a currency other than Rand will be borne by the Client.
6.8. Services rendered outside of Republic of South Africa (RSA): In the event that the work or the services are required to be rendered outside of RSA, and as a result of which additional taxes or levies become due which are not offset by credits from any revenue authority having authority in RSA, then, subject to this being permissible under the tax legislation of RSA and the country where the services are rendered, the fee shall be increased by the amount of such additional taxes or levies.
6.9. Exchange rate fluctuations: To the extent that any fees, expenses or the VAT thereon are dependent on currencies other than South African Rand (ZAR), fluctuations in any applicable exchange rates shall not affect the fees, expenses or VAT thereon, unless such fluctuations are greater than 5%, in which instance the Parties agree to share any exchange rate gains or losses greater than 5%.
7. Representative liaison
7.1. M&D and the Client will each nominate a representative who will be authorised to make decisions relating to the Engagement and who will be responsible for:
- 7.1.1 organising regular meetings at which they will review the progress of the Engagement;
- 7.1.2 providing all information and documentation reasonably required by the other to enable completion of the Engagement.
7.2. M&D will prepare progress reports in intervals as agreed with the Client in the Detailed Specification.
7.3. M&D will provide a document setting out practical requirements as required from time to time. The Client agrees to do its utmost to comply with the requirements of that document.
8. Client obligations
8.1. The Client shall:
- 8.1.1 be responsible for determining that the scope of the services is appropriate and adequate for its needs;
- 8.1.2 co-operate fully with and assist M&D to enable it to render the services;
- 8.1.3 provide M&D with all the information that is necessary for the performance of the services even if such information has previously been supplied to M&D for another Engagement;
- 8.1.4 provide to M&D information which is true, accurate, complete, relevant, current and not misleading
- 8.1.5 provide M&D with full, prompt, reasonable and fit for purpose access to its personnel, suppliers, contractors, administrative support, premises and facilities and those of its entities associated with the Engagement;
- 8.1.6 promptly obtain all and any approvals, licences and security clearances (including any relating to third Parties or personnel) reasonably required by M&D in rendering the services; and
- 8.1.7 keep M&D promptly informed of any new strategies, updates, proposals, developments or material changes to its business or the information relevant to the provision of the services.
- 8.1.8 remain solely responsible for managing all aspects, for taking all decisions, for making all enquiries, conducting all processes and operating all accounting, internal control or management information systems necessary to conduct its own business;
- 8.1.9 apply its independent business judgement to evaluate the work including any decisions related to the outcomes of the work;
- 8.1.10 assess the work in the context of its business and make an independent decision on whether it wishes to rely on, implement or act on such work, including the actions necessary to realise any expected benefits;
- 8.1.11 where it is using third Parties to provide Information or assistance in support of the services, or it is using third Parties whose work or products may affect the ability of M&D to deliver the services, the Client shall be responsible for the management of such third Parties and their performance, including their attendance at meetings and the timeliness and quality of their input and work;
- 8.1.12 fulfil its obligations and honour its responsibilities by the dates specified in the Detailed Specification;
- 8.1.13 be responsible for the acts, omissions and performance of its personnel;
- 8.1.14 designate a competent Engagement manager to oversee the services;
- 8.1.15 not interfere with or impede the relationship between M&D and its own personnel.
8.2. M&D shall not be liable to the Client for any delay or failure to render the services either at all or in a timely manner, where such delay or failure is attributable to a breach of this Agreement or delay by the Client in performing its obligations in terms of this Agreement.
9. M&D’S obligations
9.1. M&D shall:
- 9.1.1 ensure that any personnel appointed to assist M&D in rendering the services or any part thereof, performs its duties and functions as agreed under this Agreement;
- 9.1.2 ensure that the services are rendered with due professional skill and care and comply with the standards and service levels as specified in the Detailed Specification; and
- 9.1.3 where required, cooperate with third Parties appointed by the Client in relation to the services, provided that M&D shall owe no duty to such third Parties in terms of this Agreement.
9.2. M&D agrees to provide staff of an appropriate level of skill and experience to work on the Engagement.
9.3. Each Engagement will be completed in accordance with the timetable set down in the Detailed Specification.
9.4. M&D agrees that whilst engaged in any Engagement on the premises of the Client, it will comply with:
- 9.4.1 all laws and regulations relating to employment of staff and health and safety at work;
- 9.4.2 the specific regulations of the Client as applicable to its employees.
10.1. M&D shall, provided that it shall remain responsible to the Client for the fulfilment of its obligations in terms of this Agreement, have the right to make use of subcontractors to assist it in rendering the services.
10.2. The Client acknowledges that M&D is the prime service provider to the Client and shall be the prime interface with the Client in respect of the Engagement.
10.3. Save for communication and interaction required for purposes of the day to day rendering of the services, the Client undertakes to only communicate with M&D in relation to all rights, obligations and other material matters relating to this Agreement.
10.4. The Client will not interfere with or impede the relationship between M&D and its subcontractors, or suggest or cause the subcontractors to modify, cancel, fail to renew or extend their agreements with M&D.
10.5. M&D shall assume full responsibility for making payment to its subcontractors, and no subcontractor will be entitled to seek payment directly from the Client for goods and/or services rendered to M&D.
11.1. The Parties are aware that in the course of the performance of the Engagement they will each have access to and be entrusted with confidential information of the other. Accordingly, they
undertake in respect of confidential information of the other of them, that both during and after completion of the Engagement, they will:
- 11.1.1 except as provided in this agreement, not divulge to any person whatever, or otherwise make use of (and will use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information;
- 11.1.2 not use the confidential information in any way except as authorised by this agreement or by the proper authority of the other of them;
- 11.1.3 not store, copy, or use the confidential information in any place or in any electronic form which may be accessible to any other Party.
11.2. Make all relevant employees agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all steps necessary to ensure compliance by those people with these provisions.
11.3. M&D agrees that before it permits any employee or contractor or other person to have access to any confidential information, it will enter into an agreement, binding any such person to the matters of confidentiality provided for in this agreement.
12. Non-solicitation of employees:
The Parties agree not to directly or indirectly make any offer of employment to their respective personnel, either during the term of the Agreement or for a period of six months after its termination.
13. Intellectual Property (IP)
13.1. This agreement shall have no effect on the ownership of IP existing at the date of this agreement.
13.2. M&D may use whatever IP of the Client that the Client sees fit to provide.
13.3. M&D shall use and contribute to the Engagement such IP as is appropriate and reasonable in the context of the Engagement.
13.4. During and after completion of the Engagement and unless otherwise specified in this agreement, ownership of IP arising out of the Engagement, shall be as follows.
- 13.4.1 IP concepts created by M&D belong to M&D. This applies even when the Client has paid M&D for production of such IP.
- 13.4.2 IP work incorporated in any goods, service or system of the Client, belong to the Client.
- 13.4.3 IP elements previously developed by M&D belong to it even if incorporated into any goods, service or system of the Client.
13.5. If either Party believes that any third Party is infringing any IP rights it shall notify the other Party of such belief. If either Party wishes to take action against any third Party for infringement of any of that Party’s IP rights it shall give notice of such proposed action to the other Party.
13.6. M&D’S obligations set out in this paragraph shall continue after this Engagement has closed or has been terminated.
14. Limitation of liability
14.1. M&D shall not be liable to the Client for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this agreement.
14.2. M&D gives no warranty that any particular result or outcome is achievable or attainable by a given date or at all.
14.3. M&D shall not be liable to the Client for any loss or expense which is:
- 14.3.1 indirect or consequential loss; or
- 14.3.2 economic loss or other loss of turnover, profits, business or goodwill; or
- 14.3.3 loss or damage suffered by the Client as a result of an action brought by a third Party.
The above provisions apply even if such loss was reasonably foreseeable or M&D had been advised of the possibility of the Client incurring it.
14.4. Except in the case of death or personal injury, the total liability of M&D under this agreement, however it arises, shall not exceed the sum of R 10,000. This applies whether your case is based on contract, tort or any other basis in law.
14.5. This paragraph (and any other paragraph which excludes or restricts the liability of M&D) applies to M&D’S directors, officers, employees, subcontractors, agents and affiliated companies as well as to consultants.
15. Duration and termination
15.1. Work on the Engagement shall commence on the date agreed in the Detailed Specification and shall continue until terminated:
- 15.1.1 by completion of the Engagement and payment to M&D; or
- 15.1.2 by one Party giving  days’ notice of termination to the other; or
- 15.1.3 immediately by M&D if the Client fails to pay any sum due within 30 days of the date of submission of an invoice having been notified of non-payment by M&D; or
- 15.1.4 immediately by either Party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within  days of a written request to remedy it; or
- 15.1.5 immediately by either Party if a trustee / administrative receiver or similar officer is appointed in respect of winding up of either Party or bankruptcy order
15.2. Notwithstanding termination of this agreement for whatever reason, all the provisions that are intended to operate or have effect after termination or expiration shall continue in full force and effect.
15.3. Without regard to the reason why this agreement ends, the Client will pay M&D for all expenses incurred and work done to the time the notice of termination is received by M&D, including all work or expenses required until the Engagement can be fully closed.
16. Engagement of this agreement
16.1. Neither Party may assign, delegate, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written consent of the other Party.
17. Mutual indemnity
17.1. Each Party agrees to indemnify the other against all costs, claims and expense arising directly or indirectly from:
- 17.1.1 its failure to comply with the law of any country;
- 17.1.2 its breach of this agreement;
- 17.1.3 any act, neglect or default by any agent, employee, consultant or customer of that Party;
- 17.1.4 a breach of the intellectual property rights of any person by that Party;
17.2. For the purpose of this paragraph it is agreed that the cost of management and technical time is properly recoverable and can reasonably be valued at R 1500 per hour without further proof.
18. Uncontrollable events
18.1. If either Party cannot perform this agreement for any reason beyond its reasonable control for a continuous period of more than one month then either Party may, at its discretion, terminate this agreement by notice in writing at the end of this period.
18.2. A termination notice is irrevocable unless both Parties agree to re-instate this agreement.
18.3. If the agreement is terminated, all money due from one Party to the other becomes due immediately;
18.4. Costs arising from the delay or stoppage will be borne by the Party incurring those costs;
18.5. The Party claiming the uncontrollable event will take all necessary steps to perform this agreement despite the uncontrollable event.
19. Publicity / Announcements
19.1. Neither Party shall make any public announcement; or disclose any information; or allow expressly or by default, any other person to disclose information; about this agreement without having first obtained the approval in writing of the other Party.
19.2. By way of exception to the last previous sub paragraph, a Party may disclose whatever information is necessary to comply with any law or the regulations of a recognised stock exchange.
20. Miscellaneous matters
20.1. The Parties undertake to provide to the the other their current land address, e-mail address and telephone number as often as they are changed.
20.2. No amendment or variation to this agreement is valid unless in writing, signed by each of the Parties or its authorised representative.
20.3. The Parties acknowledge and agree that this should not be construed strictly against either Party.
20.4. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
20.5. The rights and obligations of the Parties set out in this agreement shall pass to any permitted successor in title.
20.6. Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.
20.7. No failure or delay by any Party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
20.8. The Parties agree that electronic communications satisfy any legal requirement that such communications be in writing.
20.9. Any communication to be served on either of the Parties by the other shall be delivered by e-mail and occasionally also by hand. Delivery shall be to the address from which the receiving Party has last sent e-mail: and shall be considered received within 24 hours if no notice of non-receipt has been received by the sender.
20.10. In the event of a dispute between the Parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
20.11. This agreement does not give any right to any third Party.
20.12. In the event of any conflict between any term of this agreement and the provisions of the memorandum of incorporation of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
20.13. This agreement may be executed in multiple counterparts each of which shall be considered an original and all or anyone of which constitute one and the same instrument.
20.14. The validity, construction and performance of this agreement shall be governed by the laws of the Republic of South Africa and the Parties agree that any dispute arising from it shall be litigated only in the Republic of South Africa.