Terms & Conditions...

Terms & Conditions

Commercial Contract Terms and Conditions

1. Contractor’s obligations, documents

1.1 Execution of Work – the Contractor shall provide everything necessary for and shall carry out the Works in accordance with the “Contract Documents”.

1.2 Responsibility – the Contractor shall be responsible for the proper execution of the Works, as defined in clause 1.1, “Execution of Work”.

1.3 Statutory requirements – the Contractor shall serve all notices, comply with all legal and statutory requirements, and pay all fees and charges legally demandable.

1.4 Any notice given pursuant to this Contract must be in writing and must be delivered by hand or, sent by pre-paid first class post, or registered post or by any other means permitted by the Contract. A correctly addressed notice sent by pre-paid first class post will be deemed to have been delivered at the time at which it would have been delivered in the normal course of the post.

1.5 Extras – no extra work shall be carried out or additional cost incurred unless authorised in writing by the Client.

2. Workmanship, Plant

2.1 Materials, workmanship – the materials and workmanship shall be in accordance with the qualities and details described in the “Contract Documents”.

3. Progress, Defects

3.1 Progress, completion – the Contractor shall proceed diligently with the Works, unless delay is bought about by matters beyond the Contractor’s control.

Works may commence on …………………………………………. (date)

The Contractor shall notify the Client of the cause and extent if it becomes apparent that the Works will not be completed by the due date. The Client shall act reasonably in granting an extension of the time in writing if the circumstances warrant it.

3.2 Despite the agreement of commencement as shown in clause 3.1 the Contractor shall not commence work on site until such time as he has written confirmation from the Client that  satisfactory information under the Construction (Design and Management) Regulations 2007 exists (or such other Regulations as may from time to time be enacted in their stead) with a Construction Phase Plan, if appropriate and that the Client has obtained all consents needed under all laws including from the owner, occupier or neighbour of the Works site or,  planning department or other relevant bodies for the carrying out of the Works.

3.3 Practical completion – the date of practical completion shall be approved by the Client, from which date the Defects Period of 6 months shall commence.

3.4 Defects – any defects, shrinkages, and any other faults occurring during the work or within the Defects Period due to defective materials or workmanship, shall be made good properly by the Contractor at his expense.

3.5 Force Majeure – Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Contractor’ control:

3.5.1 Act of God, explosion flood tempest fire or accident

3.5.2 War or threat of war sabotage insurrection civil disturbance or requisition

3.5.3 Act restrictions byelaws prohibition of measures of any kind on the part of any government parliamentary or local authority

3.5.4 Import or export regulations or embargoes

3.5.5 Strikes lockouts or other industrial actions or trade disputes (whether involving employees or the Contractor, a sub-contractor or third party).

3.5.6 Difficulties in obtaining raw materials labour fuel parts or machinery

3.5.7 Default of suppliers or sub-contractors

3.5.8 Poor or adverse or inadequate ground conditions

3.5.9 Adverse weather conditions

3.6 Disputes – If the Contractor disagrees with the assessment of defects he may make his views known to the Client and the Client will take account of the Contractor’s submissions in a re-assessment of the defects.

3.7 Adverse weather – in the event of adverse weather causing delay the Works commencement date may be postponed by the Contractor and likewise the dates for completion of stages may be adjusted where necessary due to adverse weather conditions.

4. Sub-Contracting

4.1 The Contractor may assign this Contract or sub-contract all or any part of the Works

4.2 The Client may not assign or otherwise dispose of this Contract.

4.3 Subject to the Client’s rights to validly terminate in accordance with the terms of this Agreement the Client may not engage any sub-contractor nor any entity other than the Contractor at the Works site during the period of this Agreement and up to 6 months after the date of Practical Completion in relation to works described in the Specification and variations or additions to the Works.

5. Financial Matters

5.1 Deposit – The Client shall pay a non-returnable deposit in the amount stated in this Agreement on the date of signing this Agreement.

5.2 Single payment – if there is to be a single payment the Contract Sum shall be made to the Contractor on Practical Completion of the Works.

5.3 Interim Payments – if there are to be interim payments these shall be made at the times set out in the Form of Agreement by the Client and Contractor with the Contract Sum to be paid in full on Practical Completion.

5.4 Payment – payment shall be made by the Client within 7 days of presentation of an invoice.

5.5 Retention – the Client shall retain no more than 2.5% of the gross valuation for the Works and hold this in trust as money due to the Contractor pending completion of minor outstanding items. If the Client intends to withhold all or part of a payment requested, it will notify the Contractor at least 5 days prior to the due date identifying the amounts, reasons and contractual basis for withholding as well as any necessary remedial measures.

5.6 VAT – the charge or recovery of VAT by or from the Client or the Contractor shall be in addition to and separate from the Contract Sum, and in accordance with the relevant Acts of Parliament, and within the rules and regulations of Customs and Excise.

5.7 Right to stop work – In addition to the other remedies the Contractor may stop work if the Client fails to pay for any amount due.

6. Variations, Fluctuations

6.1 Variations – no variations to the Works shall vitiate the Contract. Instructions for variations (extra work, changes, or omissions) may be issued by the Client subject to agreement on how the variation is to be costed.

6.2 The Contractor may propose and carry out variations to the extent that they are in accordance with the intent of the contract and do not materially or adversely affect the Works.

6.3 The Contractor may propose and carry out variations where the ground conditions are more difficult than previously foreseen.

6.4 Variation Cost – any of the following methods shall be used to evaluate the variation cost, which is to be added or deducted from the Contract Sum as appropriate:

6.4.1 At a price in accordance with the priced Schedule of Works /rates where this is available under the Contract;

6.4.2 At rates to be approved by the Client and Contractor before the Works proceed;

6.4.4 By daywork, which will only be approved by the Client (in writing) if the work cannot be assessed otherwise. The value shall be calculated as defined in the RICS “Definition of prime cost of daywork”. Daywork vouchers of daily time and materials used in the work shall be sent to the Client within seven days of it being done, for verification.

7. Insurance

7.1 Insurance (existing buildings) – all existing structures, contents, also the Works, and unfixed materials and goods (except Contractor’s plant tools and equipment) shall be at the sole risk of the Client as to loss or damage by fire, storm, tempest, lightning, explosion, flood, subsidence, weakening or removal of support, bursting or overflowing water tanks apparatus or pipes, earthquakes, aircraft or other aerial devices or articles dropped therefrom, riot, civil commotion or criminal loss or damage. The Client shall maintain insurance against those risks for the full reinstatement value concerned.

7.2 Insurance, injury or death, property – The Contractor shall put in place insurance against losses arising by common law or statute, in respect of death or injury to persons, of damage to property, real or personal arising during the course of the Works, caused by the Works.

7.3 Period of Insurance – the aforementioned insurances shall be maintained until the Works have been taken over by the Client (practical completion) and thence sufficient insurance until the defects period work is completed.

7.4 Policies – policies and premium receipts must be kept available for inspection on request.

8. Termination

8.1 Determination by Client – the Client may determine (but not unreasonably or vexatiously) by registered post the employment of the Contractor under this Contract if the Contractor:

8.1.2 Subject to clause 8.1.4 wholly suspends the works before completion for 10 days without reasonable cause;

8.1.3 Becomes bankrupt, or, being a company, enters into liquidation (except for the purposes of reconstruction);

8.1.4 In the case of suspension under clause 8.1.2 the Client shall give notice in writing of its intention to terminate. If the Contractor does not provide a reasonable response within 10 working days of such notice the Client shall have the right to terminate the Contract forthwith;

8.1.5 If the contract is validly terminated in accordance with this section 8.1 the Contractor shall at once give up the Works, and another Contractor may be employed and paid to complete the Works at the Client’s cost and the Contractor shall be paid for the Works or part thereof completed by the Contractor and materials properly purchased for the Works, and cost of removal of plant and equipment.

8.1.6 If the Client terminates this Contract other than in accordance with clauses 8.1 to 8.1.4 then the Client shall pay the Contractor for the sum of all interim payments due preceding the date of termination and the next interim payment due following such termination whether or not the Works relating to the next interim payment have been completed. If the Contract is terminated prior to the work commencing on site but after execution of the Contract then the Client shall pay the sum stated as payable for the first interim payment (or if only one payment is due the entire Contract Sum) whether or not the relevant Works or part thereof have been completed.

8.2 Determination by Contractor – the Contractor may determine (but not unreasonably or vexatiously) by registered post his employment under this Contract if the Client;

8.2.1 Delays access to the Works site to carry out the Works for four weeks or longer at its insistence, except by previous agreement;

8.2.2 Becomes bankrupt, or, being a company, enters into liquidation (except for the purposes of reconstruction) or in the case of another organisation, is dissolved or otherwise ceases to exist.

8.2.3 In any such case the Contractor shall at once give up the Works, and another Contractor may be employed and paid to complete the Works at the Client’s cost and the Contractor shall be entitled to payment for the value of the work executed and materials properly purchased for the Works, and cost of removal of plant and equipment

8.2.4 In the case of termination pursuant to 8.2.1 the Contractor shall additionally be entitled to the next interim payment due following such termination whether or not the Works relating to the next interim payment have been completed. If the Contract is terminated pursuant to 8.2.1 prior to the work commencing on site but after execution of the Contract then the Client shall pay the sum stated as payable for the first interim payment (or if only one payment is due the entire Contract Sum) whether or not the relevant Works or part thereof have been completed.

8.2.5 The right of determination shall be without prejudice to any other rights or remedies which the Contractor may possess.

8.2.6 The Contractor shall not be liable for any loss of profit or any consequential losses incurred by the Client in relation to this Contract.

8.3 This Contract may be determined, at the option of either Party by notice (by recorded delivery) within 28 days of the occurrence of an event of frustration, subject to a request within 7 days of receipt thereof for arbitration on this matter. Upon such determination sub-clause 8.2.3 shall apply as to payment.

9. Disputes

9.1 Claims, disputes  Any claim, dispute or other query relating to this Contract shall be discussed between the most senior personnel of each of the parties prior to legal action or alternative dispute resolution.

9.2 Adjudication – Any such unresolved dispute relative to this Contract arising between the parties may, upon the agreement of both parties, be referred to an Adjudication.

9.3 Third party rights  A person who is not a party to this agreement will not have any rights under or in connection with it.

10. Notes:

10.1 Practical Completion means when the Works are finished and ready for hand-over to and for use by the Client, with only acceptable minor items to be completed.

10.2 Projects are usually notifiable under the Act if the Project involves more than 30 days of construction work or more 500 person days of construction work.

10.3 The Defects Period starts on the Date of Practical Completion and ends 6 months thereafter.

 

Domestic Contract Terms and Conditions

1. Contractor’s obligations, documents

1.1 Execution of Work – the Contractor shall provide everything necessary for and shall carry out the Works in accordance with the “Contract Documents”.

1.2 Responsibility – the Contractor shall be responsible for the proper execution of the Works, as defined in clause 1.1, “Execution of Work”.

1.3 Statutory requirements – the Contractor shall serve all notices, comply with all legal and statutory requirements, and pay all fees and charges legally demandable.

1.4 Any notice given pursuant to this Contract must be in writing and must be delivered by hand or, sent by pre-paid first class post, or registered post or by any other means permitted by the Contract. A correctly addressed notice sent by pre-paid first class post will be deemed to have been delivered at the time at which it would have been delivered in the normal course of the post.

1.5 Extras – no extra work shall be carried out or additional cost incurred unless authorised in writing by the Client.

2. Workmanship, Plant

2.1 Materials, workmanship – The materials and workmanship shall be in accordance with the qualities and details described in the “Contract Documents”.

3. Progress, Defects

3.1 Progress, completion – The Contractor shall proceed diligently with the Works, unless delay is bought about by matters beyond the Contractor’s control.

Works may commence on …………………………………………. (date)

The Contractor shall notify the Client of the cause and extent if it becomes apparent that the Works will not be completed by the due date. The Client shall act reasonably in granting an extension of the time in writing if the circumstances warrant it.

3.2 Despite the agreement of commencement as shown in clause 3.1 the Contractor shall not commence work on site until such time as he has all consents needed under all laws including from the owner, occupier or neighbour of the Works site or, planning department or other relevant bodies for the carrying out of the Works.

3.3 Practical completion – The date of practical completion shall be approved by the Client.

3.4 Defects – Any defects, shrinkages, and any other faults occurring during the work or due to defective materials or workmanship, shall be made good properly by the Contractor at his expense.

3.5 Force Majeure – Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Contractor’ control:

3.51 Act of God, explosion flood tempest fire or accident

3.5.2 War or threat of war sabotage insurrection civil disturbance or requisition

3.5.3 Act restrictions byelaws prohibition of measures of any kind on the part of any government parliamentary or local authority

3.5.4 Import or export regulations or embargoes

3.5.5 Strikes lockouts or other industrial actions or trade disputes (whether involving employees or the Contractor, a sub-contractor or third party).

3.5.6 Difficulties in obtaining raw materials labour fuel parts or machinery

3.5.7 Default of suppliers or sub-contractors

3.5.8 Poor or adverse or inadequate ground conditions

3.5.9 Adverse weather conditions

3.6 Adverse weather – in the event of adverse weather causing delay the Works commencement date may be postponed by the Contractor and likewise the dates for completion of stages may be adjusted where necessary due to adverse weather conditions.

4. Sub-Contracting

4.1 The Contractor may assign this Contract or sub-contract all or any part of the Works

4.2 The Client may not assign or otherwise dispose of this Contract.

4.3 Subject to the Client’s rights to validly terminate in accordance with the terms of this Agreement the Client may not engage any sub-contractor nor any entity other than the Contractor at the Works site up until 6 months after the date of Practical Completion in relation to works described in the Specification and variations or additions to the Works.

5. Financial Matters

5.1 Single payment – if there is to be a single payment the Contract Sum shall be made to the Contractor on Practical Completion of the Works.

5.2 Interim Payments – if there are to be interim payments these shall be made at the times set out in the Form of Agreement by the Client and Contractor with the Contract Sum to be paid in full on Practical Completion.

5.3 Payment – payment shall be made by the Client within 7 days of presentation of an invoice.

5.4 VAT – the charge or recovery of VAT by or from the Client or the Contractor shall be in addition to and separate from the Contract Sum, and in accordance with the relevant Acts of Parliament, and within the rules and regulations of Customs and Excise.

5.5 Right to stop work – In addition to the other remedies the Contractor may stop work if the Client fails to pay for any amount due.

6. Variations, Fluctuations

6.1 Variations – No variations to the Works shall vitiate the Contract. Instructions for variations (extra work, changes, or omissions) may be issued by the Client subject to agreement on how the variation is to be costed.

6.2 The Contractor may propose and carry out variations to the extent that they are in accordance with the intent of the contract and do not materially or adversely affect the Works.

6.3 The Contractor may propose and carry out variations where the ground conditions are more difficult than previously foreseen.

6.4 Variation Cost – any of the following methods shall be used to evaluate the variation cost, which is to be added or deducted from the Contract Sum as appropriate:

6.4.1 At a price in accordance with the priced Schedule of Work /rates where this is available under the Contract;

6.4.2 At rates to be approved by the Client and Contractor before the Works proceed;

6.4.4 By daywork, which will only be approved by the Client (in writing) if the work cannot be assessed otherwise. The value shall be calculated as defined in the RICS “Definition of prime cost of daywork”. Daywork vouchers of daily time and materials used in the work shall be sent to the Client within seven days of it being done, for verification.

7. Insurance

7.1 Insurance (existing buildings) – All existing structures, contents, also the works, and unfixed materials and goods (except Contractor’s plant tools and equipment) shall be at the sole risk of the Client as to loss or damage by fire, storm, tempest, lightning, explosion, flood, bursting or overflowing water tanks apparatus or pipes, earthquakes, aircraft or other aerial devices or articles dropped therefrom, riot civil commotion or criminal damage. The Client shall maintain insurance against those risks for the full reinstatement value concerned.

7.2 Insurance, injury or death, property – The Contractor shall put in place insurance against losses arising by common law or statute, in respect of death or injury to persons, of damage to property, real or personal arising during the course of the Works.

7.3 Period of Insurance – the aforementioned insurances shall be maintained until the Works have been taken over by the Client (practical completion).

7.4 Policies – policies and premium receipts must be kept available for inspection on request.

8. Termination

8.1 Determination by Client – The Client may determine (but not unreasonably or vexatiously) by registered post the employment of the Contractor under this Contract if the Contractor:

8.1.2 Subject to clause 8.1.4 wholly suspends the works before completion for 10 days without reasonable cause;

8.1.3 Becomes bankrupt, or, being a company, enters into liquidation (except for the purposes of reconstruction);

8.1.4 In the case of suspension under clause 8.1.2 the Client shall give notice in writing of its intention to terminate. If the Contractor does not provide a reasonable response within 10 working days of such notice the Client shall have the right to terminate the Contract forthwith;

8.1.5 If the contract is validly terminated in accordance with this section 8.1 the Contractor shall at once give up the Works, and another Contractor may be employed and paid to complete the Works at the Client’s cost and the Contractor shall be paid for the Works or part thereof completed by the Contractor and materials properly purchased for the Works, and cost of removal of plant and equipment.

8.1.6 If the Client terminates this Contract other than in accordance with clauses 8.1 to 8.1.4 then the Client shall pay the Contractor for the sum of all interim payments due preceding the date of termination and the next interim payment due following such termination whether or not the Works relating to the next interim payment have been completed. If the Contract is terminated prior to the work commencing on site but after execution of the Contract then the Client shall pay the sum stated as payable for the first interim payment (or if only one payment is due the entire Contract Sum) whether or not the relevant Works or part thereof have been completed.

8.2 Determination by Contractor – the Contractor may determine (but not unreasonably or vexatiously) by registered post his employment under this Contract if the Client;

8.2.1 Delays access to the Works site to carry out the Works for four weeks or longer at its insistence, except by previous agreement;

8.2.2 Becomes bankrupt, or, being a company, enters into liquidation (except for the purposes of reconstruction) or in the case of another organisation, is dissolved or otherwise ceases to exist.

8.2.3 In any such case the Contractor shall at once give up the Works, and another Contractor may be employed and paid to complete the Works at the Client’s cost and the Contractor shall be entitled to payment for the value of the work executed and materials properly purchased for the Works, and cost of removal of plant and equipment

8.2.4 In the case of termination pursuant to 8.2.1 the Contractor shall additionally be entitled to the next interim payment due following such termination whether or not the Works relating to the next interim payment have been completed. If the Contract is terminated pursuant to 8.2.1 prior to the work commencing on site but after execution of the Contract then the Client shall pay the sum stated as payable for the first interim payment 9or if only one payment is due then the entire Contract Sum) whether or not the relevant Works or part thereof have been completed.

8.2.4 The right of determination shall be without prejudice to any other rights or remedies which the Contractor may possess.

8.2.5 The Contractor shall not be liable for any loss of profit or any consequential losses incurred by the Client in relation to this Contract.

8.3 This Contract may be determined, at the option of either Party by notice (by recorded delivery) within 28 days of the occurrence of an event of frustration, subject to a request within 7 days of receipt thereof for arbitration on this matter. Upon such determination sub-clause 8.2.3 shall apply as to payment.

9. Disputes

9.1 Claims, disputes Any claim, dispute or other query relating to this Contract shall be discussed between the parties prior to legal action or alternative dispute resolution.

9.2 Adjudication – Any such unresolved dispute relative to this Contract arising between the parties may, upon the agreement of both parties, be referred to an Adjudication.

9.3 Third party rights A person who is not a party to this agreement will not have any rights under or in connection with it.

10. Notes:

10.1 Practical Completion means when the Works are finished and ready for hand-over to and for use by the Client, with only acceptable minor items to be completed.

10.2 Projects are usually notifiable under the Act if the Project involves more than 30 days of construction work or more 500 person days of construction work.

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