SERVICE PROVIDER GENERAL TERMS & CONDITIONS FOR ENGAGEMENT

The Terms and Conditions of Engagement have come into effect on %s the %s day of %s in the year %s

Davis & Shirtliff Ltd., is a limited liability company in Kenya, having its registered office at, Dundori Rd and of P.O. Box 41762 - 00100 Nairobi, Kenya (hereinafter called “D&S”) of the one part

and

%s, of Tel. Number %s , D&S Vendor Number %s, Pin Number %s, Location and of P.O BOX %s, email address %s, (Hereinafter called “the Service Provider (or SP)”) of the other part:

WHEREAS

The SP has accepted to provide the services on the terms and conditions herein.

NOW THIS TERMS & CONDITIONS ENGAGEMENT WITNESSETH AS FOLLOWS:

1. In these Terms & Conditions, words and expressions shall have the same meanings as are respectively assigned to them in the LSO referred to.
2. D&S hereby covenants to pay the SP in consideration of the services rendered and the remedying of defects therein, the Engagement Price or such other sum as may become payable in the manner and under the provisions of documents forming the terms and conditions herein.
3. All provisions of these terms and engagement conditions shall be binding upon and to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns.

Article 1 Terms & Conditions for Engagement with SP
This document and any annexures hereto constitute the entire understanding and terms and conditions for engagement of the parties, and any, and all prior engagements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.

The documents in this section shall constitute an integral part of the terms and conditions for engagement and shall be interpreted in the following order of priority:

1. The General Terms and Conditions Document.
2. Supplier Information Form.
3. Local Service Order (LSO)

Article 2 Effective Date
The terms and conditions for engagement are effective from the date of signing and shall continue to be in force unless terminated by either party in writing in line with Article 16 and Article 17.

Article 3 Anti-corruption Undertakings
D&S and the SP each warrant and undertake to the other that in connection with these Terms & Conditions and the performance thereof, they will each respectively comply with any laws, regulations, rules, decrees and/or official government orders applicable to such party relating to anti-bribery or anti-money laundering and that they shall each respectively take no action that would subject the other to fines or penalties under such laws, regulations, rules or requirements.

D&S and SP each represent, warrant and undertake to the other that they shall not, directly or indirectly; pay, offer, give or promise to pay or authorize the payment of, any monies or other things of value to:

1. A D&S official, employee or any D&S representative.
2. Any D&S client or their representative.
3. Any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above- described persons and entities.

In particular, the SP represents and warrants to D&S that it has not made any payments or given anything of value to officials, officers or employees of D&S in connection with the SP services that are the subject of these Terms & Conditions.

D&S or SP may terminate their engagement forthwith upon written notice to the other at any time, if in their reasonable judgment the other is in breach of any of the above representations, warranties or undertakings.

Article 4 Reports Submission
The SP shall be required to submit reports for services rendered in the prescribed format and all other documentation that D&S would request from time to time.

Article 5 Quality of Works/Standards
The SP shall supply the services in accordance with industry standards or any other standards that may be set by D&S. If no standards are expressly mentioned, the SP shall comply with the standards which ensure the highest quality of workmanship, material and equipment as instructed by D&S in accordance with D&S's sole discretion.

All works rendered by the SP shall be of high standard and quality, free of, and not reported by third parties to suffer from, defects in design, material or workmanship, and shall perform in accordance with all of the requirements of the engagement. All calculations, designs, integration and drawings related to the works shall assure the reliability, efficiency, competency as well as the functionality of the same to D&S's fullest satisfaction.

Article 6 Communication with D&S Customer
Communication and interactions with the D&S customer regarding the specific assignment should be through D&S expressly i.e., any clarification or commitment should be referred to D&S. Nevertheless, when interacting with the customer this should be in a professional and courteous way. In case of queries or disagreements, communication should be escalated to D&S.

Article 7 Inspection of Works
D&S or its representative shall have the right to inspect and/or to verify that the works executed conform to the Engagement Specifications. D&S shall notify the SP in writing, in a timely manner, of the identity of any representatives retained for these purposes.

The inspections and tests may be conducted on the premises of the SP or its sub-SP (s), at the point of delivery, and/or at the works’ final destination. If conducted on the premises of the SP or its sub-SP(s), all reasonable facilities and assistance, including access to drawings and production data, shall be furnished to the inspectors at no charge to D&S.

Should any inspected or tested works fail to conform to the specifications, D&S may reject the works, and the SP shall either replace the rejected works or make alterations necessary to meet specification requirements at no additional costs to D&S.

D&S’s right to inspect, test and where necessary, reject the works after they are completed shall in no way be limited or waived by reason of the works having previously been inspected, tested, and passed by D&S or its representative prior to the delivery of the works.

Nothing in Article 7 shall in any way release the SP from any warranty or other obligations under this Engagement.

Article 8 Notices
All notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if sent by post or email. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand, or other communication is given by post, such notice shall be conclusively deemed given five days after deposit thereof or one day if sent via email. Any party hereto may change its address for purposes of this engagement by written notice given in the manner provided above.

Article 9 Payment
This shall be as per the payment terms as detailed in the Local Service Order (LSO). The SP shall at all times submit a payment application comprising of a valid Tax Invoice to D&S.

Article 10 Defects Liability Period (DLP)
The standard DLP for workmanship shall be 6 months, from the date of final handover and during this time there will be a retention of 10percent of the value of the works unless advised otherwise by D&S. If a defect becomes apparent during the DLP, the SP shall replace or repair the defect within a reasonable time at their own cost.

In the event that a defect becomes apparent after the expiry of the DLP, then the SP shall have no liability to D&S in respect of such defect.

Article 11 Prices
Prices charged by the SP for services delivered under the Engagement shall be fixed during the SP’s performance and shall not be subject to variation on any account except with the authorization of D&S.

Article 12 Delivery Period & Work Schedule
A delivery period and work schedule will be provided by the SP at the beginning of the work.

Article 13 Liquidated Damages
If the SP fails to complete the works within the period(s) specified in the Local Service Order , D&S shall, without prejudice to its other remedies under the Engagement, impose liquidated damages equivalent to 0.5percent of the undelivered price of the delayed services per day up to a maximum deduction of 10percent of the Engagement Price. After this, D&S may consider termination of the Engagement. The Liquidated Damages in these Terms & Conditions have been determined after due consideration of the damages the parties anticipate that D&S will suffer under the specific circumstances to which each specific type of liquidated damage applies, and therefore they shall not be regarded as a penalty. Payment of the Liquidated Damages shall not be conditioned on D&S having to present evidence of any loss.

Article 14 Variations
D&S and the SP shall be entitled to propose a variation to the Works. Any proposed variation must be in writing. If the variation is agreed upon in principle, any adjustment to the Engagement Price or timings under this Engagement or any other amends to the Engagement required as a result of the variation shall be as agreed between the Parties. A Party, at its sole discretion, shall be entitled to reject any variation that has been proposed by the other Party.

Article 15 Engagement Termination
D&S may terminate this engagement at any time by 10 working days written notice to the SP. In addition, if the SP is convicted of any crime or offence, fails or refuses to comply with the written policies or reasonable directive of D&S, he shall be guilty of serious misconduct in connection with performance hereunder, or materially breaches provisions of this engagement, D&S at any time may terminate the engagement of theSP immediately and without prior written notice to the SP.

Article 16 Breach
Breach by the SP of any of the provisions of this Engagement will cause irreparable injury and damage to D&S therefore the SP expressly agrees that D&S shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Engagement.

Article 17 Employee Disclaimer
This Engagement shall not render the SP an employee, partner, agent of, or joint venture with D&S for any purpose. The SP is and will remain an independent SP in his relationship to D&S. The SP shall have no claim against D&S for sick leave, retirement benefits, worker's compensation or employee benefits of any kind.

Article 18 Separation
The SP represents that he is free to enter this engagement and that this engagement does not violate the terms of any Engagement between the SP and any third party. Further, the SP, in rendering his duties shall not utilize any invention, discovery, development, improvement, innovation, or trade secret in which he does not have a proprietary interest. After being engaged by D&S the SP shall devote as much of his productive time, energy and abilities to the performance of his duties hereunder as is necessary to perform the required duties in a timely and productive manner. The SP is expressly free to perform services for other parties while performing services for D&S.

Article 19 Insurance of SP & Staff
The SP shall procure the relevant insurance policies necessary for the nature of work to be performed on behalf of D&S. The SP shall provide evidence of the insurance to D&S within three months from the date of signing this contract. No works shall be assigned to the SP if evidence of procurement of the insurance is not submitted to D&S as stated herein.

Specifically, the SP shall procure the following:

1. Work Injury Benefits Act Insurance (WIBA).
2. General liability insurance.
3. Professional liability insurance (errors and omissions)

Article 20 Sub-Engagement Restrictions
The SP shall not assign any of his rights under this Engagement, or delegate the performance of any of his duties hereunder, without the prior written consent of D&S.

Article 21 Force Majeure
In this Clause, "Force Majeure" means an exceptional event or circumstance:

1. Which is beyond a Party's control.
2. Which such Party could not reasonably have provided against before entering into the Engagement.
3. Which, having arisen, such Party could not reasonably have avoided or overcome, and
4. Which is not substantially attributable to the other Party.

Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied:

1. war, hostilities (whether war be declared or not), invasion, act of foreign enemies.
2. rebellion, terrorism, sabotage by people other than the SP's personnel, revolution,
3. insurrection, military or usurped power, or civil war,
4. riot, commotion, disorder, strike, or lockout by people other than the SP's personnel,
5. munitions of war, explosive materials, ionizing radiation, or contamination by radioactivity, except as may be attributable to the SP's use of such munitions, explosives, radiation, or radioactivity, and
6. natural catastrophes such as earthquakes, hurricanes, typhoon volcanic activity and pandemics.

If a Party is or will be prevented from performing its substantial obligations under the Engagement by Force Majeure, then it shall give notice to the other Party of the event or circumstances constituting the Force Majeure and shall specify the obligations, the performance of which is or will be prevented. The notice shall be given within Fourteen (14) Days after the Party became aware, or should have become aware, of the relevant event or circumstance constituting Force Majeure.

The Party shall, having given notice, be excused from the performance of its obligations for so long as such Force Majeure prevents it from performing them.

Notwithstanding any other provision of this Clause, Force Majeure shall not apply to obligations of either Party to make payments to the other Party under the Engagement.

Article 22 Health, Safety & Environment
The SP undertakes to comply with all Occupational and Safety requirements as provided by Occupational Safety and Health Act (OSHA) as well as those highlighted by D&S for a particular job. SP will ensure it has all the necessary Personal Protective Equipment for undertaking the work allocated to it and will also organize to clear all debris generated in the course of execution of the work responsibly as guided.

Article 23 Confidentiality & Intellectual Property
The SP acknowledges that during the course of this contract it shall have access to, be placed in possession of and become familiar with Confidential Information and other proprietary information of D&S. The SP undertakes that it shall neither disclose nor make use of, directly or indirectly, any Confidential Information that D&S discloses to the SP or its employees or to which the SP and its employees have access to or are placed in possession of or become familiar with, unless for purposes authorized in writing by D&S or its appointed representative.

The Parties agree that the terms of this contract and any Confidential Information shall be received and held in strict confidence and used only for the purposes of this contract. Each party shall use the same means as it uses to protect its own Confidential Information, but in any event no less than reasonable means, to prevent the disclosure and protect the confidentiality of all such information. The Receiving Party, its agents, representatives and or employees shall not disclose such Confidential Information, either directly or indirectly, without the prior written consent of the disclosing party. Nothing in this Agreement or any disclosure of Confidential Information to the SP, whether directly or
indirectly or by implication, any rights to infringe or make use of any patent, trademark, copyright, or other intellectual property of D&S, except only with the express prior consent of D&S.

Article 24
The SP acknowledges that during his engagement with D&S he will have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records and specifications owned Por licensed by D&S and/or used by D&S in connection with the operation of its business. The SP agrees that he will not disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the term of this Engagement or at any time thereafter, except as required in the course of this engagement with D&S. All files, records, documents, information, and similar items relating to the business of D&S, whether prepared by the SP or otherwise coming into his possession, shall remain the exclusive property of D&S. The SP shall not retain any copies of the foregoing without prior written permission. Upon the expiration or earlier termination of this Engagement, or whenever requested by D&S, the SP shall immediately deliver all such files, records, documents, specifications, information, and other items in his possession or under his control. The SP further agrees that he will not disclose his retention as an independent SP or the terms of this Engagement to any person without the prior written consent of D&S and shall at all times preserve the confidential nature of his relationship to D&S and of the services herein.

Inventions, discoveries and innovations conceived by the SP during any engagement shall be the exclusive property of D&S and the SP hereby assigns all right, title and interest in the same to D&S.

Article 25 Dispute Resolution
Any controversies arising out of the terms of this engagement, or its interpretation shall first be resolved by negotiations between the parties. If there is no agreement, the dispute shall be subject to the referred to a court of competent jurisdiction.

Article 26 Engagement Modification
No amendment, change or modification of this engagement shall be valid unless in writing signed by the parties hereto.

Article 27 Engagement Scope
If any provision of this Engagement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Engagement shall nevertheless remain in full force and effect.

All provisions of this Engagement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns.

Article 28 Data Consent Clause
Th SP hereby agrees to processing of their personal data in accordance with the terms of D&S Privacy Policy https://www.davisandshirtliff.com/privacy-policy 

Should the SP wish to contact D&S regarding use of their personal data, please use the following address:

Davis & Shirtliff Limited
Dundori Road, Industrial Area
P.O Box 41762-00100, Nairobi, Kenya
This email address is being protected from spambots. You need JavaScript enabled to view it., This email address is being protected from spambots. You need JavaScript enabled to view it.
+254 711 079 000

Article 29 Applicable Law
The laws of Kenya shall govern the validity of this Engagement, the construction of its terms and the interpretation of the rights and duties of the parties hereto. The language of the Engagement and the law governing the Engagement shall be English language and
the Laws of Kenya respectively unless otherwise stated.