Background

1.             The Letter and these Terms and Conditions and any appendices thereto together form the contract between the Employer and the Contractor (“Contract”).

2.             These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Employer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

Contractor’s Obligations

3.             The Contractor will upon and subject to the conditions and documents referred to in the Contract provide everything which is necessary for the proper and timeous execution and completion of the works set out in the Letter (“Works”) in accordance with all drawings, specifications, requirements and/or instructions and deliver up the Works to the Employer.

4.             Any tender quotation or estimate issued by the Contractor is subject to acceptance by the Employer.

5.             Any conduct of the Employer in relation to the execution of all or part of the Works shall be deemed to be an acceptance of the willingness to comply with these Terms and Conditions and in any event no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

6.             The Contractor shall carry out and complete the Works in a proper and workmanlike manner and in compliance with any plans and/or specification produced in respect of the Works and shall select suitable materials that comply with any higher specifications of materials or workmanship contained in the description of the Works.

Access and Carrying out the Works

7.             The Contractor, his staff and all sub-contractors shall comply with the Employer’s policies with regard to areas of work, security, fire, safety, evacuation, smoking, lifting, manual handling (copies of which shall be provided to the Contractor prior to commencing the Works) whilst carrying out the Works.

8.             The Contractor’s hours of working are 8.00am - 5.00pm Monday to Friday. Working outside these hours will be by agreement only. Any additional cost for working outside of these hours shall be agreed in advance with the Employer.

9.             The Contractor shall keep noise and vibration to a minimum. The positions of all fixed plant and equipment shall be agreed with the Employer before installation on the Site.

10.           The Contractor warrants that it has not used and/or specified and shall not use and/or specify for use in relation to the Works any products or materials which do not conform to British and European Standards or Codes of Practice; or are generally known within the industry to be deleterious, in the particular circumstances in which they are specified for use, to health and safety and/or durability of the building or structure; or contravene the recommendations of British Council for Offices publication “Good Practice in the Selection of Construction Materials” current at the date of the Letter.

11.           Where the Contractor has been involved in any design aspects of the Works or has selected materials for incorporation therein, the Contractor shall use the reasonable skill and care as may be expected of a competent designer of the appropriate discipline with experience in carrying out works of a similar size, scope and complexity to the Works.

12.           The Contractor shall comply with any statute, statutory instrument, regulation, rule or order made under any statute or directive having the force of law which affects the Works or performance of any obligations under the Contract together with any regulation or bye-law of any local authority or statutory undertaker which has jurisdiction with regard to the Works or with those systems the Works are, or are to be, connected, including any statutory provisions and/or any decision of a relevant local authority which control the right to develop the Site.

13.           Each party acknowledges that he is aware of and undertakes to the other that in relation to the Works and/or the Site he will duly comply with the Construction (Design and Management) Regulations 2015.

14.           On completion of the Works the Contractor shall leave the area of the Works clean and tidy.

15.           The Contractor shall advise the Employer in writing of all work involving an addition to the Works within 7 days of such addition becoming apparent and at the same time submitting detailed and priced calculations based upon the contract price showing such price and programme adjustments, if any. The Contractor shall not be obliged to undertake, and the Employer shall not be obliged to pay for, the additions to the Works unless and until the parties agree the price and programme implications.

Commencement and Completion of the Works

16.           The Contractor shall commence the Works on the start date set out in the Letter and shall thereafter proceed with the same without delay.

17.           The Contractor shall complete the Works by the completion date specified in the Letter (the “Completion Date”), or if sectional completion applies, each section shall be completed by the relevant sectional completion date specified within the Letter (the “Sectional Completion Date”). If it becomes apparent that the Works will not be completed by the Completion Date, or if applicable, a section of the works shall not be completed by the relevant Sectional Completion Date, for reasons beyond the control of the Contractor, including compliance with any instructions of the Employer, and the Contractor can evidence that the cause of the delay is not his, then the Contractor shall thereupon in writing so notify the Employer and the parties shall agree such extension of time for completion as may be reasonable.

18.           If the Contractor does not complete the Works, or if applicable a section of the Works, by the Completion Date, or Sectional Completion Date as applicable, (as adjusted by any extension of time that may have been granted), then Employer shall be entitled to withhold or deduct liquidated damages at the rate stated in the Letter.

Title and risk

19.           The risk in any Goods shall pass to the Employer on delivery to site.

20.           Title to any Goods shall not pass to the Employer until the Contractor has received payment in full for the Goods and any other goods that the Contractor has supplied to the Employer.

21.           Until title to the Goods has passed to the Employer, the Employer shall:

(a)            store the Goods separately from all other goods held by the Employer so that they remain readily identifiable as the Contractor’s property;

(b)            not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c)            maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Contractor's behalf from the date of delivery;

(d)            notify the Contractor immediately if it becomes subject to any event of insolvency; and

(e)            give the Contractor such information relating to the Goods as the Contractor may require from time to time.

22.           If before title to the Goods passes to the Employer the Employer becomes subject to any event of insolvency then, without limiting any other right or remedy the Contractor may have:

(a)            the Employer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

(b)            the Contractor may at any time require the Employer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product and if the Employer fails to do so promptly, enter any premises of the Employer or of any third party where the Goods are stored in order to recover them.

Defects

23.           The defects rectification period shall be 12 months from the date of completion of the Works in accordance with the Letter (“Practical Completion”), (the “Defect Rectification Period”).

24.           If any defects or other faults in the Works appear within the Defect Rectification Period these shall be specified in a schedule of defects produced and delivered to the Contractor by the Employer requiring such defects or other faults to be made good.

25.           The Contractor shall, within a reasonable time after receipt of such schedule of defects, at no cost to the Employer make good any such defects or other faults identified and notify the Employer when such defects have been rectified.

26.           The Employer shall issue a notice of completion of making good when all defects or other faults notified during the Defects Rectification Period have been remedied.

Insurance

27.           The Contractor confirms that adequate insurance is in place to cover the Works including Employers Liability, Public Liability, and Contractors All Risk (where appropriate) insurance policies for such amounts as may be detailed in the Letter.

28.           As and when reasonably required by the Employer, the Contractor shall produce for inspection satisfactory documentary evidence that such insurance is being maintained.

29.           The Contractor shall be liable for any expense, liability, loss, claim or proceedings whatsoever in respect of personal injury or death of any person arising out of or in the course of or caused by the carrying out of the Works.

30.           The Contractor shall be liable for any expense, liability, loss, claim or proceedings in respect of any loss, injury or damage whatsoever to any property real or personal in so far as such loss, injury or damage arises out of or in the course of or by reason of the carrying out of the Works and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the Contractor, its sub-contractors or suppliers.

Liability and Third Party Rights

31.           The Contractor’s liability for any breach of the terms of the Contract shall cease upon the expiry of 6 years after the date of Practical Completion, or Sectional Completion of a section, of the Works except where proceedings have been commenced before the expiry of that period in respect of any such breach.

32.           Subject to clause 29:

(a)            the Contractor shall under no circumstances whatsoever be liable to the Employer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b)            the Contractor's total liability to the Employer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the sum equal to one half of the contract sum for the Works.

33.           Notwithstanding any other provision of the Contract, nothing in the Contract confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it.

Payment Obligations

34.           If the duration of the Works will be, or is estimated to be, less than 45 days, the following clauses 35(a) to 35(g) shall not apply and the Contractor shall be paid on completion of the Works.

35.           Payment shall be made to the Contractor by monthly instalments in accordance with the provisions of this clause 35.

(a)            The Contractor shall submit an application for payment to the Employer in respect of each instalment. The application for payment shall be supported by all relevant documentary evidence including a statement showing how the total amount claimed in the application has been calculated. The application for payment shall set out in full the name of the contract and the contract order number. An application for payment will only be effective to the extent that the information accompanying the application is sufficient for the Employer to validate the accuracy of the amount claimed.

(b)            The first application for payment shall be made on the day of the month, as stated in the Letter, in the month during which the Works were commenced on Site. Thereafter applications for payment shall be made at monthly intervals.

(c)            The payment due date shall be 7 days from the date of the application for payment (“Due Date”).

(d)            The final date for payment shall be 21 days from the Due Date.

(e)            Not later than 5 days after the Due Date the Employer shall notify the Contractor of the sum he considers to have been due at the payment due date (or “zero” if no payment is due), and the basis on which that sum if calculated (“Payment Notice”)

(f)             Unless the Employer has served a notice under clause (g)35(g), he shall pay the Contractor the sum referred to in the Payment Notice or if the Employer has not served a Payment Notice, the sum referred to in the Contractor’s application (“Notified Sum”) on or before the final date for payment.

(g)            Not less than 5 days before the final date for payment (“Prescribed Period”), the Employer may give the Contractor notice that it intends to pay less than the Notified Sum (“Pay Less Notice”). Any Pay Less Notice shall specify the sum the Employer considers to be due on the date the notice is served; and the basis on which the sum if calculated.

(h)            The contract sum is exclusive of VAT and in relation to any payment to the Contractor under the Letter, the Employer shall in addition pay the amount of any VAT properly chargeable in respect of it.

36.           The final date for payment to the Contractor of any retention shall be as to one half on the date of Practical Completion, or the date of Sectional Completion as applicable, and as to the remaining half thereof the final date shall be on the expiry of Defects Rectification Period.

37.           If the Employer fails to make any payment due to the Contractor under the Contract by the final date for payment, the Employer shall pay to the Contractor interest at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest to accrue on a daily basis from the final date for payment until payment in full has been received.

Termination and Suspension

38.           Where the Employer has failed to pay a Notified Sum by the final date for Payment, the Contractor may suspend all or part of its performance of his obligations under the Contract but not before first giving the Employer at least 7 days’ notice of his intention to suspend performance, stating the ground or grounds on which it is intended to suspend performance.

39.           The right to suspend ceases where the Employer makes payment in full of the amount due.

40.           Without limiting its other rights or remedies, either party may terminate the Contact by giving the other party 10 working days written notice.

41.           Either party may without prejudice to any other of its rights or remedies terminate the Contract with immediate effect if:

(a)            Either party, or any persons employed, engaged or connected to either party commits an offence under the Bribery Act 2010;

(b)            The Contractor suspends the Works or any part thereof (otherwise than by way of a valid suspension under clause 38 herein) or fails to proceed diligently with the Works;

(c)            The Contractor fails forthwith upon notice from the Employer to commence work to remedy any defective workmanship and/or materials or incomplete work or fails to proceed with such remedial work with due diligence or to complete such remedial work within a reasonable time;

(d)            Either party becomes aware of any cessation of trading, intention to cease operations, notice of Insolvency (as defined by s.113 of the Housing Grants Construction and Regeneration Act 1996, as amended or re-enacted), Administration or Receivership;

(e)            The other party commits a material breach of any term of the Contract and (if such breach is capable of being remedied) fails to remedy that breach within 10 working days of that party being notified in writing to do so.

42.           Upon termination of the Contract for any reason:

(a)            The Employer shall immediately pay to the Contractor all of the Contractor’s unpaid invoices and interest and, in respect of the Works undertaken but for which no application has been submitted, the Contractor may submit an invoice, which shall be payable immediately on receipt;

(b)            The rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall be unaffected.

Notices.

43.           Any notice or other communication given to or by a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax.

A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 44; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery

1.             receipt is signed; or, if sent by fax, one Business Day after transmission.

2.             The provisions of clause 43 and 44 shall not apply to the service of any proceedings or other documents in any legal action.

Disputes and Governing Law

3.             If any dispute or difference arises under the Contract, then either party may refer it to adjudication. The adjudication procedures and the agreement for the appointment of an Adjudicator shall be as set out in the Scheme for Construction Contracts (England) Regulations 2011.

4.             The Contract shall be governed by and construed in accordance with the laws of England and Wales and the parties irrevocably agree to submit to the exclusive jurisdiction of the Courts of England and Wales.

5.             If any term or condition of the Contract is for any reason held to be illegal, invalid, ineffective, inoperable or otherwise unenforceable, it shall be severed and deemed to be deleted from the Contract and the validity and enforceability of the remainder of the Contract shall not be affected or impaired thereby.

General

6.             Assignment. Neither party shall assign the Contract in full or in part without written consent first being obtained from the other party.

7.             Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(a)            waive that or any other right or remedy; or

(b)            prevent or restrict the further exercise of that or any other right or remedy.

8.             Entire Agreement.  The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.