1. GENERAL
a. The following definitions shall apply in these
terms and conditions:
i.
“Company” shall
mean Tay-dal Surfacing Ltd
ii.
“Contract”
shall mean the contract under which the Company provides the Works. The
Contract is made up of these terms and conditions and the Tender
iii.
“Contract
Date” means the date on which a contract is established between the
Company and the Client in accordance with clause 1b.
iv.
“Contract Sum” shall be the price stated in the
Tender except as amended by negotiation and/or variation and/or additional
costs confirmed by the Company in writing
v.
“Client”
shall mean the business, firm, organisation or person specified in the Tender
who agrees to purchase the Works and the Goods from the Company on the terms of
the Contract
vi.
“Defect Liability
Period” shall mean the period of 3 months from the date of practical completion
of the Company’s Works
vii.
“Delivery
Date” shall mean those date/s for delivery confirmed in writing to Client
as fixed by the Company and defined as such in the Tender, and subject to
clause 4.
viii.
“Goods” means any
goods or materials specified in the Tender to be supplied to the Client
ix.
“Normal Working
Hours” shall mean 0800 to 1700 Monday to Friday (or such alternative hours
as may be specified in the Tender).
x.
“Site” shall mean the place or location
to which the Goods is to be delivered and/or the place or location at which the
Works are to be performed as described in the Tender
xi.
Specification –
any specification for the Goods and Services that is supplied by the Company to
the Client.
xii.
“Tender”
shall mean the Company’s tender quote for the Works
xiii.
“Us” or “We”
means the Company
xiv.
“Works” shall mean the works as set out
in the Tender or as a varied under this Contract.
b. These terms and conditions prevail over any
inconsistent terms or conditions contained or referred to in the Client’s order, confirmation of order, acceptance of
quotation or tender or specification or implied by trade custom or course of dealing.
The Client’s order or acceptance of a tender constitutes an offer by the Client
to purchase the Works on the terms of the Contract. No offer placed by the Client
shall be accepted by the Company other than by a written acknowledgement issued
and executed by the Company or (if earlier) by the Company starting the Works
when a contract for the supply and purchase of the Works on the terms of the
Contract will be established. The Client’s standard terms and conditions (if
any) attached to, enclosed with or referred to in any purchase order or other
document shall not govern the Contract.
c.
Further and without prejudice to the above,
in the event that the Company enters into any contract with the Client other
than the Contract, which nevertheless incorporates either these terms and
conditions and/or the Tender, the parties hereby expressly agree that by
incorporating the same, they are to be given precedence over all other terms of
that contract, including any clause(s) purporting to resolve discrepancies in
favour of any other terms. The parties
agree and acknowledge that the incorporation of these terms and conditions
and/or the Tender in any such contract is optional and the Client expressly
confirms that by purposefully opting to do so, it wishes and intends to be
bound by this clause in its entirety and in precedence to any and all other
clauses contained elsewhere in any of the contract documents. The Client acknowledges and accepts that if
it was unwilling to be bound by this clause it would have expressly excluded
these terms and conditions.
d. Nothing contained in this agreement shall be
construed as constituting any transfer of title to the Goods or any of them to
the Client at any time until such time as the Client has paid the Company all monies/consideration
due to the Company in accordance with the provisions of this agreement. Nevertheless,
the Client shall continue to bear all risk of loss or damage to the Goods and
shall indemnify and hold the Company harmless from and against any and all
actions, proceedings, claims, losses, damages and liabilities whatever arising
directly or indirectly out of the presence of the Goods in the Client’s
premises.
e.
No variation of
the Contract or any of the documents referred to in it shall be valid unless it
is in writing and signed by or on behalf of each of the parties.
f.
Unless defined
within the Tender, no allowance has been made for any discount, warranties or
bonds.
g. The Client is solely responsible for obtaining
any planning permission required for the Works and for any permits and licences
needed.
h. Should cancellation of the Works occur after
receipt of the Client’s order, but before the Company starts on Site, the
Client will be liable to pay a reasonable sum to the Company to cover any Works
already carried out by the Company including but not limited to design,
administration costs and any loss of profit on the Contract Sum.
i.
All Goods
supplied by the Company shall remain the Company’s property until full payment
of the Contract Sum and the Company shall be entitled and the Client hereby
irrevocably authorises and licenses the Company, in the event of the Client
failing to pay all or any part of the Contract Sum on the due date, without
prejudice to any other remedy in equity or at common law, in accordance with
the Contract to enter the Site or other premises where such Goods may then be
and disconnect, dismantle and remove the same in whole or in part. Any
disposition by the Client of any such Goods shall be made subject to the exercise
by the Company of such rights. For the avoidance of doubt this includes the
events in Clause 14b or where the Company reasonably believes that the Client
is about to become subject to the events listed in Clause 14b.
j.
A failure or
delay by the Company to exercise any right or remedy provided under this
Contract or by law shall not constitute a waiver of that or any other right or
remedy, nor shall it prevent or restrict any further exercise of that or any
other right or remedy. No single or partial exercise of any right or remedy
provided under the Contract or by law shall prevent or restrict the further
exercise of that or any other right or remedy.
k.
Any Specification
that is sent back to the Client by the Company shall be accurately checked by
the Client. The client is responsible for ensuring that the Specification is
correct. Any discrepancy identified after the event will be the responsibility
of the Client.
2. COMPANY OBLIGATIONS
a. The Company shall use reasonable endeavours to
complete the Works in accordance with the Tender.
b. All design (if any) and installation works
will be in accordance with the Contract and relevant legislation, codes of
conduct and British Standards.
3. OVERTIME/DAYWORK
a. Unless specifically stated to the contrary in
writing, the Tender is based on the assumption that the Works will be carried
out during Normal Working Hours. Work may be performed by the Company outside
Normal Working Hours subject to written agreement and for an additional charge.
b. Unless specifically stated to the contrary in
writing, the Tender and the Contract Sum are based on the assumption that the
Works will be carried out in one continuous unhindered visit; no allowance has
been made for interruptions. The Company reserves the right to increase the Contract
Sum to cater for any additional costs incurred in carrying out the Works if it
is unable to do so in one continuous unhindered visit.
c.
Any works carried
out on a daywork basis shall, unless otherwise stated in writing by the Company,
be charged for at the Company’s appropriate rates prevailing at the time. Such
rates are available on request.
4. DELIVERY & COMPLETION
a. Any times stated by the Company for delivery
and/or completion shall run from the later of (a) the Contract Date (b) payment
of any pre-agreed deposit on account of the Contract Sum
and (c) receipt of all information, drawings, licences, permits and approvals
as may be necessary to enable the Works to proceed. All such times are to be
treated as estimates only not creating any contractual obligation unless the
Company has specifically contracted in writing to deliver and/or complete the
Works within a specified time or by a specified date by defining such time or
date as a Delivery Date in the Tender or other contract document signed by the
Company.
b. The Contract Sum is determined on the
understanding that the Client shall at its own expense before the date of
commencement of any part of the Works ensure that the Site is ready in all
respects for the Works to commence and that all the attendances agreed to be
provided by the Client have been, or will be, provided free of cost to the
Company as and when required by the Company in order that the Works may
proceed.
c.
Should the
Company deliver material to the Site and the Site has not been adequately
prepared to the specified levels, the Company will charge a regulation charge.
The regulation charge will be determined by measurements if required.
d. The Company may deliver the Goods by way of
instalments.
5. DELAY IN DELIVERY OR COMPLETION
a. If, due to circumstances outside the control
of the Company, the Client cannot accept delivery of Goods comprised in the
Works upon the Delivery Date for such Goods, or is otherwise unable to grant to
the Company access to the Site for the purpose of commencement of the Works,
the Company will be entitled to recover from the Client any costs, losses or
expenses incurred by the Company as a result of or in connection with the delay
and/or to continue to manufacture the Goods and deliver all or any part of it
to storage in accordance with Clause 6. The cost of storage and transport into
and out of storage and any associated costs thereby arising shall be at the
entire cost of the Client.
b. The Company shall not be liable for any delay
or for any consequences of any delay in the production or delivery of any Goods
comprised in the Works or in the completion of the Works in circumstances where
an estimated time for completion of the Works has been given by the Company.
c.
In circumstances
where the Company has agreed a Delivery Date in accordance with Clause 4, it
shall not be liable for any delay or for any consequence of any delay if such
delay shall be due to fire, strike, lockout, dispute with work persons, flood,
accident, delay in transport, shortage of fuel, default of any sub-contractor,
inability to obtain material and/or labour, embargo, act or demand or requirement
of any government or government department or Local Authority, or as a
consequence of war or of hostilities (whether war be declared or not) or any
other cause whatsoever beyond the reasonable control of the Company. If any
such delay occurs, then (unless the cause thereof shall frustrate or render
impossible or illegal the performance of this Contract or shall otherwise
discharge the contracting parties from their obligations under the Contract)
the Company’s period for performing its obligations shall be extended by such
period (not limited to the length of delay) as the Company may reasonably
require to complete the performance of its obligations.
d. In circumstances where the Company has agreed
in writing a Delivery Date for completion of the Works in accordance with
Clause 4 and the Works are not so completed for reasons other than those
outlined in Clauses 5.a or 5.c above and other than those attributable to the Client,
the Company shall pay to the Client an amount equal to the 0.5% (zero point
five per cent) of the Contract Sum per week of delay up to an aggregate maximum
amount of £1,000.
e. The Company and the Client agree that the
liquidated and ascertained damages referred to in Clause 5.d represent a
commercially acceptable rate for the losses likely to be suffered by the Client
in the event of delay beyond the Delivery Date.
f.
The liquidated
and ascertained damages referred to in Clause 5.d shall be the only damages
payable by the Company for any failure to complete the Works before the
Delivery Date.
6. STORAGE
a. Where the Client is unable to accept delivery
of all or any of the Goods at the Site within three days after notification
that they are ready for dispatch, the Client shall find and pay for suitable
secure storage accommodation together with costs of delivery, offloading and
removal from store, maintenance, and insurance. If the Company’s facilities
permit, the Company may, at the Client’s written request, store the goods at
the Client ‘s risk and expense. The terms of payment defined in Clause 9 shall
continue to apply notwithstanding the contingencies described in this clause.
7. EXCLUSIONS & ASSUMPTIONS
a. Unless specified otherwise, the Company’s
exclusions/general assumptions are set out in the Tender.
8. PASSING OF RISK
a. As soon as any Goods is delivered either to
Site or into secure storage accommodation, the Client shall assume the sole
risk for any loss or damage to such Goods howsoever caused. If the Client is
unable to accept delivery of all or any part of the Goods within seven days
after notification that they are ready for despatch, risk in relation to such Goods
shall pass to the Client at the expiry of such seven-day period. Once the risk
has passed to the Client such risk shall in no circumstances whatsoever be
passed back to the Company.
9. TERMS OF PAYMENT
a. The Contract Sum is exclusive of Value Added
Tax or any similar or other taxes, levies or duties (which will be added to the
Contract Sum at the prevailing rate).
b. The Company will provide payment applications
to the Client on a monthly basis (on or before the last Friday of the month).
The Company’s payment applications (which may be in the form of an invoice
only) will specify the sum that the Company considers to be due to it on the
relevant due date and the basis on which it is calculated.
c.
The Client shall
be entitled to deduct any agreed retention (if applicable to the maximum of 5%)
from the Company’s payment applications. Notwithstanding the Client’s
entitlement to deduct retention, the Client shall only be entitled to hold
retention to the value £1,000.
d.
The payment due
date in respect of any payment application will be the date the Company has
sent the application for payment to the Client.
e. Should the Client issue a notice in accordance
with Section 111 (3) of the Housing Grants Construction and Regeneration Act
1996 (or equivalent statutory provisions which may be in place) it must serve
it on the Company 2 business days before the statutory prescribed period
defined under Section 111 (7b). It is a condition precedent to the validity of
any notice that it is issued to ryan@taydal.com with the Subject heading Important
Notice 111. Should the Client rely on multiple grounds for making any deduction
in the notice, it is required to set out the substantive evidence for each of
those grounds. Should the client fail to provide the substantive evidence for
each individual ground, any notice shall be deemed invalid.
f.
If the Company
has exercised its right under Section 112 of the Housing Grants Construction
and Regeneration Act 1996 to suspend performance of its obligations under this
Contract, the Client shall reimburse the Company in respect of any loss and/or
expense incurred by the Company during the period of the suspension including
the cost of demobilisation and remobilisation on the commencement and any
subsequent lifting of the suspension. If the Company has given a Delivery Date,
then the Client shall allow such extension of time as is necessary to cover the
full period of the suspension of the Works and for remobilisation on the
lifting of the suspension.
g. Interest shall accrue and become payable on
all overdue amounts of the Contract Sum and/or any other sums payable under
this Contract from the date when payment was due until the date when payment in
full is actually made in accordance with the terms of the Late Payments of
Commercial Debts (Interest) Act 1998 or such other Acts governing these matters
as may be in force from time to time.
h.
Notwithstanding
the foregoing, the Company reserves the right to require payment of the
Contract Sum in advance, or during and against pro-forma invoice at its
discretion.
i.
Where the
duration of the Works is stated in the Tender to be less than 45 days, the
final date for payment of any sum specified in the Company’s payment
application will be 30 days after the relevant due date. Where the duration of the Works is not stated
in the Tender to be less than 45 days, the final date for payment of any sum
specified in the Company’s payment application will be 30 days after the
relevant due date. In circumstances
where the Company provides the supply of goods only, the final date for payment
of any sum specified in the Company’s payment application will be 30 days after
the relevant due date.
j.
Following
Practical Completion of the Works, the Company Shall issue a Final Account. The
Final Date for Payment shall be 14 days from the due date.
k.
Without prejudice
to any other right or remedy that it may have, if the Client fails to pay any
part of the Contract Sum within the period set out in Sub-Clause 9, the Company
may suspend its further performance of any of its obligations under the
Contract until payment has been made in full.
l.
The Client will
be liable to pay the Company’s costs of and associated with recovering any sums
due under the Contract, including the fees of all professional advisors, on a
full indemnity basis.
m.
Following
Practical Completion, the Client shall immediately release 50% of any retention
sum held in accordance with clause 9c. The Remaining 50% of retention shall be
released at the end of the Defect Liability Period. For the avoidance of any
doubt, the Company is not required to issue an application for payment of
retention.
10. VARIATION
a. A variation shall be any change to the scope
of the Works, including, but not limited to, additions, and substitution of
work. Following a variation request, the Company shall issue an estimate of
costs which is binding on the Client if the variation is carried out by the
Company.
b. The Client is not entitled to omit works from
the Contract without the Company’s express written consent. Should any work be
omitted, the Company shall be entitled to loss of profit on the omitted Works.
11. PRICE FLUCTUATION
a. The Company shall be entitled to adjust the
Contract Sum to take account of any upward price fluctuation for Goods and/or
any increase in rates of exchange, taxes and duties that may relate to imported
Goods.
12. WARRANTY
a. The Company will not be obliged to give or
procure any collateral warranties.
b. The Company warrants the Works will be carried
out in a good and workmanlike manner and that all Goods will be of sound
manufacture and workmanship. Subject to (a) the Client having paid all amounts
due to the Company under the Contract and (b) the Client having ensured that all
Goods have been properly maintained (c) there having been no modifications or
interference with the Goods, the Company will make good any defects to the Goods
not due to ordinary wear and tear or to improper use or care which may develop
within the Defect Liability Period.
c.
Should the Client
become aware of any defects in the Works, the Client is required to notify the
Company within 7 days of becoming aware (or 7 days of when the Client ought to
have been aware following the element of Works being carried out). Should the
Client fail to notify the Company within the above mentioned time period, it is
at the Company’s sole discretion whether to carry out any necessary remedial
works.
d.
The Company’s
liability under the Warranty applies only to defects appearing before the Client
makes any modification or alteration to the Goods and while the Goods is being
properly used and maintained in accordance with the Company’s recommended
practice/instructions. In particular (without limitation) the Company shall not
be liable for defects arising from normal deterioration, or improper or faulty
handling, operation or maintenance by the Client or any third party.
13. LIMITATIONS OF LIABILITY
a. This Clause 13 sets out the Company’s entire
financial liability (including any liability for the acts or omissions of its
employees, agents and sub-contractors) to the Client in respect of (a) any
breach of the Contract; (b) any use made by the Client of any Goods installed
by the Company; and (c) any representations, statements or acts or omission
(including negligence) arising under or in connection with the Contract. All
warranties (other than those in Clause 12), conditions and other terms implied
by statute or applicable law are, to the fullest extent permitted by law,
excluded from the Contract.
b. The Company shall not under any circumstances
whatsoever be liable for any consequential loss including loss or damage
arising from a breach of contract, tort (including negligence), under statute
or any other basis in law or equity including, but without limitation, the
following: loss of profits; loss of revenue; loss of production; loss or denial
of opportunity; loss of access to markets; loss of goodwill; loss of business
reputation, future reputation or publicity; damage to credit rating; loss of
use; and indirect, remote, abnormal or unforeseeable loss, or any similar loss
whether or not in the reasonable contemplation of the contracting parties at
the time of execution of the Contract.
c.
Nothing in these
terms and conditions or the Tender, limits or excludes the Company’s liability
for:
i.
death or personal
injury resulting from negligence; or
ii.
any damage or
liability incurred by the Client as a result of the Company’s fraud.
iii.
any losses
arising out of a breach of the General Data Protection Regulation (GDPR).
d. The Company’s total liability in connection
with the Contract shall be limited to the Contract Sum.
e. Save as provided by statute, the Company shall
not be liable for and the Client shall indemnify and hold the Company harmless
against any claim for loss or damage to property directly or indirectly
occasioned by or arising from the use or operation (other than by the Company )
or possession of any of the Works and from negligence (including the use of any
part of the Works otherwise than in accordance with the Company’s operating
instructions and manuals) or default (including any non-compliance with any obligation
of this Contract, any delay, any wrong information and any lack of required
information) or misuse by or on the part of the Client or any persons other
than the Company.
f.
This indemnity
shall extend to any costs and expenses incurred by the Company and shall
continue in force notwithstanding the termination of the Contract.
g.
The Client shall
not use or permit to be used the whole or any part of the Works or Goods
forming the subject of the Contract before it has been completed, tested and
handed over by the Company and in the event of any such unauthorised use the
Company shall not be liable for any loss or damage arising therefrom.
14. TERMINATION
a. The Company may terminate the Contract
forthwith if the Client has committed a breach of this Contract and fails to
remedy such breach within five (5) days of receiving a written notice from the
Company requesting its remedy.
b. The Company may terminate the Contract if the Client
makes a proposal for a voluntary arrangement or is subject to an Administration
Order or has a Provisional Liquidator appointed or has a Winding Up Order made
or passes a resolution for voluntarily winding up (other than for amalgamation
or reconstruction) or is otherwise “insolvent” for the purposes of Section 113
(2) of the Housing Grants, Construction and Regeneration Act 1996 (as amended);
c.
Where the Client is
in breach of this Contract, the Company may at its election suspend performance
of the Contract (but without affecting the Client’s obligation to pay for work
executed up to the point of suspension) until such time as the breach is
remedied. Where the breach is default in payment of any part of the Contract Sum,
the Company shall be at liberty to demand security for payment before
performing or completing the Contract.
d. Notwithstanding and without prejudice to
subclauses 14a – 14c, the Company may terminate the Contract, for any reason,
with immediate effect and without liability, upon giving written notice to the
Client.
e. On termination of the Contract for any reason:
i.
the Client shall immediately
pay to the Company all outstanding sums due under the Contract in respect of
any part of the Works supplied or performed for which no payment application
has been submitted, the Company may immediately submit a payment application,
which shall be payable immediately on receipt;
ii.
the Client shall
within a reasonable time return all the Goods held or stored at the Site or
elsewhere. If the Client fails to do so, the Company may enter the Site or such
other premises and take possession of it. Until such Goods has been restored or
repossessed, the Client shall be solely responsible for its safekeeping;
iii.
the accrued
rights of the parties as at termination and the continuation of any provision
expressly stated to survive or implicitly surviving termination, shall not be
affected.
15. TESTING, ACCEPTANCE, COMPLETION AND HANDOVER
a. Once the Company has deemed itself to have
achieved practical completion of the Works/any section(s) of the Works, the Company
will at its discretion either request a handover meeting with the Client or
produce and send a handover document. Should the Client either not attend the
handover meeting within 3 days of the request or not sign/reply to the handover
document within the same period with valid, fair and reasonable explanations of
non-acceptance, the Client will be deemed to have agreed and accepted handover
of the defined Works, which will be deemed to be practically complete for the
purpose of the Contract and which will consequentially start the Defect
Liability Period and entitle the Company to payment in full.
16. PREVENTION OF FRUSTRATION
a. If the Contract becomes impossible to perform
or is otherwise frustrated, the Client shall be liable to pay the Company all
costs, expenses, overheads and any loss of profit which the Company, its
suppliers or sub-contractors have incurred or for which there is liability
under the Contract at the time of frustration or impossibility of performance.
b. The Company shall not be liable to the Client if
unable to carry out any provision of the Contract for any reason beyond its
control including (but without limitation) act of God, legislation, war, civil
commotion, fire, flood, drought, failure of power supply, lockout, strike,
stoppage, or other action by employees or third parties in contemplation or
furtherance of any dispute or owing to any inability to procure parts or
material required for the performance of the Contract.
17. HEALTH & SAFETY AT WORK
a. The Tender allows for compliance with the
Construction (Design and Management) Regulations 2015 (the “Regulations”)
insofar as they are applicable to the Works. The Tender has been prepared on
the basis that the Client agrees that the Company will become a Contractor and
not the CDM Co-ordinator or Principal Contractor (as such terms are defined in
the Regulations).
b. With regards to Asbestos, the Company has a
duty under the Health and Safety at Work Act to ensure we provide our employees
with information, instruction and training. The Company also has a duty to
complete risk assessments for all its employees’ working tasks. Thus, the Client
is obligated to advise the Company if the premises has been identified to have
or has the potential to have Asbestos Containing Materials and is to provide a
copy of the Asbestos Register. Should the Company’s employees require further
training/specialist training to be able to work on the applicable project, then
the Company is entitled to be reimbursed, by the Client, for any/all fees
incurred by it for any such further training that is required to complete the Works.
c.
If, during the
course of carrying out the production or delivery of any Goods or completion of
the Works, asbestos or any other hazardous or toxic material or environment is
discovered, either in the existing Goods, the Site, the building fabric, or any
other Goods associated with the Works or the vicinity thereof, the Company shall
stop work immediately to allow the Client to, and the Client shall, at its own
expense, promptly remove or neutralise the hazardous or toxic material or
environment and the programme shall be amended accordingly for the period of
any delay. The term “hazardous or toxic material or environment”
includes any hazardous or toxic material or environment, (which may if brought
into contact or close proximity to an employee of the Company have adverse
consequences to health) techniques or processes. Any costs, losses and/or other
expenses which the Company incurs as a result of the delay or removal or
neutralising the hazardous or toxic material or environment will be an
additional charge to the Contract Sum.
18. PATENTS/COPYRIGHT
a. The Client warrants that any design or
instruction furnished or given by it shall not be such as will cause the
Company to infringe any letter patent, registered design, trademark or other
intellectual property rights in the execution of the Contract.
b. The Company grants a license to the Client in
relation to any design carried out by the Company. The Company retains all
copyright unless written consent is provided by the Company.
19. ADJUDICATION/COURT PROCEEDINGS
a. Should any dispute arise between the parties
they will endeavour to resolve the dispute in good faith by senior level
negotiations. Such senior level negotiators will be chosen and appointed by
each party. Both the Client and the Company shall be entitled to refer any
dispute or difference arising under this Contract to adjudication at any time.
b. The adjudication shall be conducted in
accordance with the provisions of the Scheme for Construction Contracts
(England and Wales) Regulations 1998, subject to the following amendments:
i)
Where the Client refers a dispute to
adjudication, it must, when serving the Notice of Adjudication on the Company,
also serve a copy of the Referral on the Company;
ii)
Where the Client refers a dispute to
adjudication, the Company will be permitted a period of not less than 14 days
from the date the adjudicator first contacts the parties to confirm his
appointment, within which to issue its Response and the Client will have a
period of not more than 48 hours from the time the Company’s Response is issued
within which to serve any Reply;
iii)
Where the Company refers a dispute to
adjudication, the Client will be permitted a period of 3 days within which to
serve a Response and the Company will be permitted a period of 10 days from
service of the Response within which to issue any Reply.
c.
The Client shall
reimburse the Company in respect of any and all legal and professional costs
incurred in relation to any legal or professional advice required in relation
to the dispute prior to any advice received specifically in relation to
Adjudication. Such costs would have not necessarily been incurred but for the
dispute arising.
d. Without prejudice to the adjudicator’s power
to allocate his fees and expenses as between the parties, the Client
hereby
expressly agrees to fully and immediately indemnify and reimburse the Company
in respect of any fees or expenses that the adjudicator decides, when exercising
that power, that the Company should pay.
e.
The Client shall
pay any and all litigation costs incurred by the Company on the indemnity basis
including in relation to enforcement of an Adjudication Decision under Clause 19.
20. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
1999
a. Nothing in this Contract confers or purports
to confer on any third party any benefit or any right to enforce any term of
this Contract. The Contracts (Rights of Third Parties) Act 1999 is excluded.
21. CONFIDENTIALITY
a. The Client shall keep in strict confidence all
technical or commercial know-how, specifications, inventions, processes or
initiatives which are of a confidential nature and have been disclosed to the Client
by the Company, its employees, agents or sub-contractors and any other
confidential information concerning the Company’s business or its products
which the Client may obtain. The Client shall restrict disclosure of such
confidential material to such of its employees, agents or sub-contractors as
need to know the same for the purpose of discharging the Client ‘s obligations
to its employer, and shall ensure that such employees, agents or
sub-contractors are subject to obligations of confidentiality corresponding to
those which bind the Client.
b. All materials, Goods and tools, drawings,
specifications and data supplied by the Company to the Client shall, at all times, be and remain as between
the Company and the Client the exclusive property of the Company, but shall be
held by the Client in safe custody at its own risk and maintained and kept in
good condition by the Client until returned to the Company, and shall not be
disposed of or used other than in accordance with the Company’s written
instructions or authorisation.
c.
This Clause 21
shall survive termination of the Contract, however arising.
22. STATUS OF PRE-CONTRACTUAL STATEMENTS
a. The Client acknowledges and agrees that, in
entering into the Contract it does not rely on any undertaking, promise,
assurance, statement, representation, warranty or understanding (whether in
writing or not) of any person (whether party to these terms and conditions or
not) relating to the subject matter of the Contract, other than as expressly
set out in the Contract.
23. APPLICABLE LAW
a. This contract shall in all respects be subject
to and construed in accordance with English Law and the exclusive jurisdiction
of the English Court. The Company will
be entitled, in its sole discretion, to insist on any proceedings being issued
in, or transferred to, the Technology and Construction Court.
24. ATTENDANCES
a. The following attendances to be provided free
of charge to the Company by the Client
i.
Onsite appointed first
aid person.
ii.
All toilet,
welfare, temporary office and messing facilities;
iii.
Temporary
lighting and power to all work areas;
iv.
Any required
access Goods which the Company hasn’t included for within their tender.
v.
Fuel, power and
water for the execution of the works;
vi.
Removal and
disposal of all rubbish from an agreed point;
vii.
Secure storage
for Goods and materials that are left overnight
viii.
Security;
ix.
Protection of the
installation following incorporation into the works.
x.
Any required
skips – Whether specialist or otherwise.