1. STANDARD TERMS

These terms and conditions for professional engineering services are the sole terms and conditions to which JSpec Engineering (the "Company"), with the principal place of business in Johannesburg, agrees. No other terms shall form a part of the agreement between Client and the Company unless the additional terms are set forth in a writing by the Company or the Client, in which the Company and Client expressly agree to additional or modified terms and conditions.

 

2. NATURE OF ENGINEERING SERVICES

It is understood and agreed that: 

2.1  The Company will use current design methods for all aerodynamic, structural, or other analyses.

2.2  Such calculations invariably involve current understanding, and all areas of engineering are subject to continued evolution and further refinement.

2.3  All engineering analyses are by their basic nature incomplete in the sense that they can be revised and refined at later times with further analysis resulting from further advances in the field of work.

2.4  The Company will use technical data available in the open literature and proprietary Company internal data.

2.5  No data which are considered proprietary to third parties shall be considered in any way for application to a project unless proper written permission is obtained by the Client from the owner of the proprietary information.

2.6  The Company shall have no responsibility or liability beyond the obligation to carry out the work commissioned from the company by the client, as agreed upon in a signed quotation prior to the commencement of said work. The company commits to doing so to the highest standards of quality and professionalism.

2.7 The Company requires final designs/calculations/specifications for commissioned work to be supplied by the client in order for any work to commence, except in the instance that the client has commissioned the Company to complete any designs/calculations/specifications on the Client's behalf. 

In both instances, the Company will require the Client to provide a final approval on any and all designs/calculations/specifications, in the form of a signed Job Card before any work may commence. 

Once approval has been obtained, any changes to the designs/calculations/specifications will be billable to the Client's account. 

Any deviation from the final and approved designs/calculations/specifications due to avoidable mistakes or negligence by the Company shall entitle the client to the sole recourse of obtaining finished work according to the correct, approved designs/calculations/specifications from the Company. 

There shall be no other recourse in this instance.

2.8 The Company’s liability for damages in the performance of these services, regardless of whether said damages arise as a breach of warranty, breach of contract, tort, infringement, or otherwise, shall in no event exceed the amount paid to the Company by Client for the Company’s performance of services hereunder. In no event will the Company have any liability of any nature for any incidental, special, indirect, consequential, multiplied, exemplary or punitive damages. The pricing of the Company’s proposal for performance of professional engineering services has been predicated on the Company’s and Client’s agreement on the foregoing limitation of liability. Unless Client has advised the Company of its objection to this limitation of liability clause and has obtained a signed amendment deleting that clause and adjusting the price of this contract, Client agrees that it will not seek to recover damages in excess of the limitation of liability clause and that it will not contest the validity or enforceability of that clause.

 

3. DELIVERY

3.1    Engineering services delivery dates shall be interpreted as estimated, and in no event shall such dates be construed as falling within the meaning of "time is of the essence. "While the Company attempts to take into account external factors such as the current power situation in South Africa, high-level predictive accuracy is almost impossible. The company commits to open communication and reprioritisation of schedule in order to best deliver to all Clients.

3.2    The Company shall not be held liable to Client for any costs or damages due to nonperformance under this Agreement arising out of any cause or event not within the reasonable control of the Company and without its fault or negligence including, but not limited to: riots, wars or hostilities between any nations, Acts of God, fires, storms, floods or earthquake, strikes, labour disputes, shortages or curtailments of raw materials, labour, power or other utility services, governmental restrictions, or other contingencies.

 

4. INCORPORATION OF DESIGN AND DEVELOPMENT SERVICES INTO PRODUCT

It is understood and agreed that:

4.1    Any of the design and development services conducted by the Company are preparatory to the inclusion of the resulting components or stages in a full product system by the Client.

4.2    The Company can never be fully cognisant of the entire range of conditions to which the product will ultimately be subjected.

4.3    The Company shall not be responsible for the ultimate application of these components or stages in any industrial product.

4.4 The Client is responsible to properly integrate design and development services and resulting components into the Client’s product and continuously to examine and reevaluate the appropriateness of the individual components for each application. 

4.5   The Company makes no warranty concerning the marketability or appropriateness of the stages of components for any particular commercial application.

4.6   The commercialisation of each component or stage design and the final design worthiness are the sole responsibility of the Client.

4.7   The Company shall use its best efforts in the performance of services hereunder, but makes no guarantee or warranty of any nature with regard to the use, performance, or operation of any results of any such services.

4.8   The Company requires that all machining jobs that are not designed by the Company require accurate drawings and/or 3D Models to be provided by the Client before the commencement of the job. The Client is to provide final approval on all provided drawings/models before the commencement of work. The final responsibility for the accuracy and correctness of any supplied drawings and the liability for the function of any instrumentation, hardware, apparatus, equipment, mechanism, device, software, or the like delivered by the Company shall rest solely with the Client. 

4.9   Client hereby indemnifies the Company and holds the Company harmless from any and all actions arising from Client’s use of the instrumentation, hardware, advice, data, designs, devices, software, or other information provided by the Company under this agreement.

4.10 Except as provided herein, all warranties are excluded. IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED.

4.11 The Company claims ownership rights to all inventions, patents, copyrights, trademarks, trade secrets and know-how, including proprietary design and manufacturing technology, (Intellectual Property) which have been previously developed by the Company at the Company’s expense and which will be used as a basis for the engineering services to be provided to the Client. All Intellectual Property developed as a result of the engineering services provided hereunder shall be owned by the Company. These terms and conditions apply solely to the provision of engineering services under this agreement. 

 

5. COST OF ENGAGEMENT and DEFAULT

It is understood and agreed that:

5.1 If a commissioned project (including design, programming, machining, and/or finishing) is completed within the first hour of work the project will be charged at a minimum of 1 hour of work as quoted by the Company regardless of how quickly the commissioned work is completed. 

5.2   In the case of outstanding invoices, the Company reserves the right to refuse further service to the Client.

5.3 In the case of invoices that are overdue by more than 15 days the Company reserves the right to charge monthly interest starting from the date that the invoice was due unless an agreement has been made in writing and signed by both the Client and the Company to waive this clause.

5.4  Default Due to Work Stoppage – in the event of a work stoppage called by or caused by the Client lasting more than five (5) working days, the contract may be declared by the Company to be in default. An extension may be applied to this clause if agreed to in writing by the company.

5.5  A contract in default concludes all work efforts.

5.6  Default Remedies – in the event of a contract default, both parties shall negotiate in good faith to resume work as soon as possible. Work shall be resumed as soon as all issues are resolved, and an amended contract is put in place. It is understood that resumption is on a "time available basis", as other commitments may have been made in the interim.

 

6. DISPUTE RESOLUTION

6.1  If any dispute arises between the parties, then the parties shall negotiate in good faith to resolve such dispute. If the parties are unable to resolve the dispute to their mutual satisfaction within thirty (30) days after one party gives written notice to such effect to the other party, then either party may initiate litigation to resolve the dispute. Notwithstanding the foregoing, either party is authorised to seek preliminary relief without seeking to resolve the dispute through negotiations to the extent necessary to avoid irreparable harm. In the event of litigation between the parties with respect to rights or responsibilities arising under this Agreement, the substantially prevailing party in such litigation shall be entitled to recover, in addition to any other provable damages, reasonable attorney fees and expenses.