General Terms and Conditions
These general conditions shall apply to all legal transactions between Quintessence Development Solutions (QDS) and the Client, as well as to all future contractual relationships, i.e., including those cases in which such is not expressly stated in the supplementary agreements.
Our offers are not binding. The contract shall be validly concluded only upon our sending a contractual confirmation.
Scope of the Contract, Place and Time of Performance
The scope of the services actually to be rendered and the consulting expenses shall be specified in each individual case separately in the contract.
The place and time of performance of the services delivered by the advisors of QDS shall be agreed upon under consideration of the actual order for services as well as the Client's requirements as to timing with the contact person defined by QDS. Generally, the services are executed and fulfilled mainly at Client's business location.
Client's Duty to Disclose
The Client must ensure that QDS is informed of all relevant facts to the extent they are useful and/or necessary with regard to this contract, and that QDS receives, in a timely manner, all documents necessary to ensure the fulfilment and implementation of this contract, if these are important or may be important to ensure the implementation of this contract. This also applies to all documents, procedures, circumstances and information that may not become known until the activity of QDS has commenced.
QDS shall grant Client an irrevocable, absolute and permanent right to use and utilize the documents produced by QDS within the framework of fulfilling this contract in any manner the Client deems appropriate, in consideration of the contractual obligation of secrecy.
Both the Client and QDS may exercise the right to terminate the respective contract at any time, in writing with immediate effect, without giving any reason for doing so.
Expenses, Cash Expenditures and Travel Times
All expenses and expenditures of QDS are due for reimbursement by the Client within 14 days after the submission of the written claim and presentation of the usual documents (receipts).
Remuneration in Case of Early Termination of the Contract
In case of an early termination of this contract, QDS is entitled to receive remuneration for the services rendered in coordination with Client, irrespective of the causes of such termination. In this case, only the advisor work days accruing up to the termination of the contract, plus VAT and expenses, will be charged. If the agreed remuneration is not based on the above work day rates, (e.g. lump-sum fee), in the event of an early termination of this contract by the Client (or for reason attributable to the Client), the remuneration of QDS for work performed until termination shall however be calculated on the basis of the work days actually performed by QDS at the above work day rates (clause Rate per Work Day / Consultant).
Terms of payment
Fees and remuneration for rendered consulting services, plus VAT, will be invoiced in monthly instalments except for a follow up assessment fee, where the initial assessment, by QDS is provided for free.
The due date for payments of fees and remuneration free of any deductions is 14 days after receiving the respective invoice. If the payment date is exceeded, default interest of eight percent above the base interest rate p.a. will be charged. QDS is also entitled to reimbursement of all costs that it incurred after the default in connection with demands for payment, debt collection, requests, investigations, and legal advice ("Additional Costs").
All payments are to be paid into the account last made known by QDS. Payment made by bill of exchange requires the prior express consent of QDS. Bills of exchange shall be accepted as means of payment exclusively subject to the receipt by QDS from the Client of the corresponding amount plus the reimbursement of any interest, expenses, and costs incurred thereby directly or indirectly.
The place of fulfilment for all payment obligations to QDS shall be the business location of QDS.
If, within 4 weeks, no justified objection is raised against an invoice presented by QDS, such receipt shall be deemed approved.
Any payment deferral granted to Client by QDS may be changed or cancelled at any time. A cash discount has to be agreed upon explicitly in writing in order to be valid.
Client may assert the right to offset only if the respective counterclaim (which is to be offset) has a legal connection with the corresponding liability of QDS and is acknowledged by QDS or has been established by virtue of a final court order.
If Client is in delay of the payment of any contractual amount due, QDS is entitled to cease the performance agreed upon in this contract, or in any other form of agreement between Client and QDS, after expiry of a time-limit of 14 days after the respective notification to the Client until the due payment, together with Additional Costs, is effected free of any deduction. In case of a default payment, QDS is, according to this contract, furthermore entitled to terminate such contract after granting Client a reasonable grace period of at least fourteen days. In addition, QDS may request the immediately payment of all outstanding invoices incurred in connection with this contract and all agreements between QDS and Client, including deferred invoice amounts or invoice amounts not yet due. All other claims of QDS remain unchanged, in particular the right to damages.
Warranty, Liability, Time Limits
Apart from the performance of services agreed upon in this contract (see above), QDS is not liable for any specific results of the project, particularly concerning restructuring, cost savings, or increases in productivity, unless otherwise specified in an agreement signed between the parties.
QDS furthermore excludes any liability or responsibility to the extent permitted by law – for the realisation of any particular results of the Client (unless such results have been expressly promised [and are numerically verifiable]), in particular for any savings expected, but not achieved, and excludes any liability – to the extent permitted by law – for any lost profits, and indirect and consequential damages.
Non-Poaching-, Non-Competition Clause
The parties shall not either directly or indirectly employ or make an offer of employment (by means of an employment contract or other contractual relationship) to employees and auxiliary persons of the other party. The Hiring Prohibition is limited to the period of time starting from the signing of the contract and ending one calendar year after the termination of the contract. In case of any infringement, the contractual parties agree to pay a contractual penalty for each and every breach in the amount of one annual income (incl. maximum attainable bonus) of the employee in question. The right to raise claims for damages remains reserved.
Notwithstanding payment of the penalty, the parties are not released from their duty to observe this Hiring Prohibition.
Obligation of Secrecy, Protection of Data Privacy
All information received by one party from the other – any records as well as all information passed orally or in writing (of an economic, financial or technical nature, and regardless of whether or not they were expressly designated as confidential) shall be held by the receiving party as confidential. Without the previous written consent of the disclosing party, such records and information may neither be disclosed to a third party nor shall copies be made thereof, except for disclosures to companies related to one of the parties. The parties may use, respectively copy such records and information, solely to perform services according to this contract.
QDS is further obliged to use any knowledge earned and any trade secrets disclosed under the framework of this contractual relationship (of an economic, financial or technical nature, if the information was classified as confidential) solely to perform contractual services and not to disclose them to third parties.
The aforementioned obligations do not apply to:
information already publicly known (i.e. common knowledge) when passed on to the receiving party or information that later becomes publicly known due to no fault of the receiving party; or
information already known to the receiving party before it was passed on by the disclosing party, as long as a written record of this is available; or
information rightly obtained by the receiving party from a third party who received this information from the disclosing party neither directly nor indirectly.
The obligations contained in the above clause are binding for both parties and will continue to be binding for a period of three years following termination or fulfilment of the contract. In the event of a breach of the above-specified provisions, the party that commits such a breach either intentionally or through an act of blatant gross negligence, or that uses a person who intentionally or blatantly grossly negligently commits such a breach while performing the service, must compensate the other party for all damage resulting therefrom.
The contractual relationship shall exclusively be governed by and construed in accordance with substantive law, excluding the rules of private international law regarding the referral to another jurisdiction.
The place of jurisdiction for all disputes arising from this contractual relationship, including questions of validity, termination or nullity of this contract, shall be the South African court system.
Before a court proceeding is initiated, the contractual parties shall attempt to settle the dispute out of court by means of negotiation. If despite such negotiations no settlement is possible, each contractual party is entitled to initiate a court proceeding. If a contractual party does not observe the obligation to assume negotiations prior to initiating a court proceeding, the party in question shall in any case – except in the event of imminent danger - bear the full costs of the court proceeding itself, in particular the costs of his own representation, irrespective of the outcome of the court proceeding, and shall reimburse the opposing party for the reasonable costs it incurred (including the costs of representation in court).
Unless otherwise provided herein, this contract contains all of the terms agreed upon by the parties governing the legal relationship between QDS and the Client. Oral supplemental agreements of any kind are non-existent as of the signing of the contract.
These general terms and conditions may be amended only if in writing and signed by all parties. This applies, in particular, to the amicable deviation from this writing requirement.
Should any term hereof be or become wholly or partially invalid or should any regulatory gap occur, this will not affect the validity of the remaining terms. In such a case, both parties shall agree upon valid terms that most closely reflect the intended purpose, so that the invalid terms or regulatory gaps are replaced.
Our contractual partner agrees that, in the event of the application of general business conditions by the contractual partner the present General Terms and Conditions of QDS shall apply nonetheless, even if such general business conditions of the contractual partner remain undisputed.