Conditions of Trading
Contract for the Supply of Goods and Services
THIS AGREEMENT is made on date between [full company name] (whose registered office is at [office address], and company registration number is [company number]) (“the Client”), and Lindsey Group (whose registered office is at Brunel Way, Severalls Park, Colchester, CO4 9QW, and company registration number is 11063837 (“the Contractor”).
Definitions Unless the context otherwise requires or this Agreement otherwise specifies, the following words and phrases in this Agreement shall have the meaning given to it below: *“Attendance Items” means the items of attendance provided by the Client to the Contractor as specified in the Schedule.
*“Commencement Date” means the commencement date specified in the Schedule.
*“Contract Date” means the date this Agreement is entered into as specified in the Schedule.
“Contract Hours” means the Contractor’s working hours specified in the Schedule.
“Contract Sum” means the price for the execution of the Works specified in or determined by the provisions contained in the Schedule, or such other sum as shall become payable under any provision of this Agreement.
“Contract Sum Fluctuation” means the fluctuation provision specified in the Schedule.
“Daywork” means the definition current at the date of tender and issued by the Royal Institute of Chartered Surveyors and the Building & Engineering Services’ Association together with such percentage additions to each section of prime cost as specified in the Schedule.
“Documents” means all designs, drawings, models, plans, specifications, design details, photographs, brochures, reports, notes of meetings, calculations and any other information provided in connection with the Works and all updates, amendments, additions and revisions to them.
“Excluded Items” means the following items which are excluded from the Contract Sum:
building, plumbing and electrical work or the associated work of other trades, or
the supply and erection of scaffolding, ladders, moveable platforms, hoisting and/or lowering gear necessary for the execution of the Works, or
the cost of operating any part of the Works, or
the cost of any fuel, water or electricity used on Site.
“Insolvent” means that either party:
makes a composition or arrangement with its creditors or becomes bankrupt, or
being a company makes a proposal for a voluntary arrangement for a composition of debts or scheme of arrangement to be approved in accordance with the Companies Act 2006 or the Insolvency Act 1986 as the case may be, or any amendment or re-enactment thereof, or
has a provisional liquidator appointed, or
has a winding-up order made, or
passes a resolution for voluntary winding-up (except for the purpose of amalgamation or reconstruction), or
has an administrator or an administrative receiver appointed under the Insolvency Act 1986.
“Law” means statute, order-in-council, regulation or direction, bye-law or other lawful requirement or instruction.
“Overtime” means work undertaken by the Contractor outside Contract Hours in accordance with clause 4.
“Percentage Uplift” means the uplift specified in the Schedule.
“Site” means the place where the Works are to be carried out, as specified in the Schedule.
“Tax Items” means types and rates of contributions, taxes, levies and duties payable by the Contractor in connection with the Works.
“Variation” means the addition, omission, substitution or any other alteration or modification of the design, quality or quantity of the Works including the alteration of the kind or standard of any of the materials or goods used.
“Works” means the works more particularly described in the Schedule.
Duty of Care
The Contractor undertakes to the Client to exercise and continue to exercise all the reasonable skill, care and diligence, which may reasonably be expected of a professional person acting in the capacity of the Contractor in relation to the Works and any design carried out by the Contractor thereof, under this Agreement.
Any goods/materials supplied by the Contractor under this Agreement will be of a satisfactory quality.
The Contract Sum
The Contract Sum is conditional on the Client providing the relevant documents to enable the Contractor to make a reasonable estimate of the cost of the Works and the time for its completion.
A reasonable adjustment shall be made to the Contract Sum:
to take account of any costs incurred by the Contractor for inadequate or inaccurate Documents
to take account of the Contract Sum Fluctuation (unless a fixed-price has been agreed), and
to take account of any change, cessation or introduction of a Tax Item(s) after the Contract Date.
Where the parties agree to a fixed price for the Works, the Contract Sum shall be based upon the types of Tax Items that are current on the Contract Date.
The Client may reasonably request in writing that the Contractor work Overtime. If the Contractor agrees to such a request, the Contractor shall be entitled to remuneration for any additional cost and expense incurred by the Contractor, to be calculated in accordance with Daywork.
Variations and Instructions
The Contractor shall, within a reasonable period, comply with any reasonable instruction issued (in writing or otherwise) by the Client.
If any variation is instructed otherwise than in writing, the Contractor shall submit a notice confirming the Client’s instruction within 5 days of the instruction. If the Contractor’s notice confirming the instruction is not disputed by the Client within 5 days of receipt, then such notice confirming the instruction and its contents, shall be deemed accepted by the Client as a Variation.
The Contractor shall include within its notice confirming the instruction, a quotation for carrying out any Variation.
Variations shall be valued by the Contractor based on the agreed Daywork and the Percentage Uplift (where applicable).
Effect shall be given to the Variation by means of addition or deduction to the Contract Sum.
If neither the Client nor the Contractor confirms a Variation in the manner and the time stated under clause 5.2, but the Contractor nevertheless complies with it, the Client may, at any time prior to the final payment under this agreement, confirm it with retrospective effect. For the avoidance of doubt, the Contractor shall not be entitled to any additional payment in respect of instructions issued by the Client except as provided for in clause 5.2. Title and Risk Risk in goods and/or materials shall pass to the Client on delivery. Ownership of the goods and/or materials shall not pass to the Client until the Contractor has received in full (in cash or cleared funds) all sums due to it in respect of: the goods and/or materials, and all other sums which are or which become due to the Contractor from the Client under this or any other agreement between the parties. Until ownership of the goods and/or materials has passed to the Client, the Client shall: hold the goods and/or materials on a fiduciary basis as the Contractor’s bailee store the goods and/or materials (at no cost to the Contractor) separately from all other goods of the Client or any third party in such a way that they remain readily identifiable as the Contractor’s property not destroy, deface or obscure any identifying mark or packaging on or relating to the goods and/or materials, and maintain the goods and/or materials in satisfactory condition and keep them insured on the Contractor’s behalf for their full price against all risks to the reasonable satisfaction of the Contractor. The Client shall produce the policy of insurance to the Contractor on request. The Client may resell the goods and/or materials before ownership has passed to it solely on the following conditions: any sale shall be effected in the ordinary course of the Client’s business at full market value any such sale shall be a sale of the Contractor’s property on the Client’s own behalf and the Client shall deal as principal when making such a sale, and the proceeds of any sale shall be held on trust by the Client for the benefit of the Contractor until all debts under this or any other agreement between the parties have been satisfied. The Client’s right to possession of the goods and/or materials shall terminate immediately if the Client is Insolvent or the Client encumbers or in any way charges any of the goods and/or materials. The Contractor shall be entitled to recover payment for the goods and/or materials notwithstanding that ownership of any of the goods and/or materials has not passed from the Contractor. The Client grants the Contractor, its agents and employees an irrevocable licence at any time to enter any premises where the goods and/or materials are or may be stored in order to inspect them, or, where the Client’s right to possession has terminated, to recover them. Where the Contractor is unable to determine whether any goods and/or materials are the goods in respect of which the Client’s right to possession has terminated, the Client shall be deemed to have sold all goods of the kind sold by the Contractor to the Client in the order in which they were invoiced to the Client. On termination of the Contract, howsoever caused, the Contractor’s (but not the Client’s) rights contained in this clause 6 shall remain in effect. Payment The Client shall pay to the Contractor the Contract Sum together with any other sums payable under any other clause of this Agreement in accordance with the terms set out below and the Schedule. The Contractor shall be entitled to payment by instalments. The first and all subsequent interim payments shall become due at the intervals set out in the Schedule. If none are so stated, interim payments shall become due at monthly intervals calculated from the Commencement Date.
The Contractor shall, 7 days before the due date of each interim payment, submit an invoice to the Client identifying the sum that the Contractor considers to be due to him and the basis on which that sum has been calculated including: the total value of the work properly executed (including the value of any materials or goods intended for incorporation into the works provided the same had been delivered to or adjacent to the Site or in respect of which the Contractor has paid his supplier or is legally bound to make such payment) Variations, if any, carried out pursuant to clause 5.2 of this Agreement any adjustments to the Contract Sum under clause 3.2 of this Agreement amounts due in respect of direct loss and/or expense in accordance with clause 10 of this Agreement any Value Added Tax properly chargeable, and any other amounts properly due to the Contractor under this Agreement.
No later than 5 days after the due date, the Client shall issue a notice to the Contractor setting out the amount of payment proposed to be made on the final date for payment and the basis upon which that amount is calculated. The Client will issue the aforesaid notice regardless of if the amount then considered by the Client to be due, is zero or negative. The final date for payment shall be 14 days after the due date. Where the Client fails to give a payment notice in accordance with clause 7.4, the amount of the interim payment to be made by the Client, subject to any pay less notice under clause 7.6, shall be the sum identified as due in the invoice submitted by the Contractor under clause 7.3. If the Client intends to pay less than the sum stated as due from him in the relevant notice issued by him under clause 7.4, or in the absence of such a notice, the sum stated in the relevant invoice submitted by the Contractor under clause 7.3, the Client shall, not later than 7 days before the final date for payment, give the Contractor notice of that intention which shall specify both the sum that he considers to be due to the Contractor at the date the notice is given and the basis on which that sum has been calculated. Where such a notice is given, the payment to be made on or before the final date for payment shall not be less than the amount stated due in that notice. Without prejudice to any other rights and remedies which the Contractor may possess, if the Client fails to pay the Contractor in full by the final date for payment, then subject to clause 7.6, the Contractor shall be entitled to suspend the Works subject to the prior issue, by the Contractor, of a 7-day notice specifying the ground(s) for suspension. Where the Contractor exercises its right of suspension under clause 7.7, it shall be entitled to a reasonable amount in respect of costs and expenses reasonably incurred by him as a result of the suspension. If the Employer fails to pay the amount due, or any part thereof, by the final date for payment, then subject to clause 7.6 and in addition to clause 7.8, the Employer shall pay in addition to the amount not properly paid, simple interest thereon at a rate of 8% above the Base Rate of the Bank of England current at the date the payment became overdue, for the period until such payment is made. Any outstanding payment shall be owed and enforceable as a debt. Value Added Tax The Contract Sum does not include any Value Added Tax properly chargeable to the Contractor in respect of the execution of the Works. The net amount of such tax shall be reimbursed to the Contractor in accordance with clause 7. Upon receipt of the amounts referred to in clause 7 (including any Value Added Tax), the Contractor shall immediately issue to the Client an invoice (complying with the requirements of Regulation 14 of the Value Added Tax Regulations 1995) unless alternative arrangements are made between the parties. Disputes Any dispute or difference arising under this Agreement may be referred to an Adjudicator at any time by either party, in accordance with the Scheme for Construction Contracts (England & Wales) Regulations 1998 (Amendment) (England) Regulations 2011 relevant to the jurisdiction in which the Site(s) are located. The Adjudicator shall be the person so named by the parties. If a person is not so named, the Adjudicator shall be such a person as the parties agree, or, in the absence of such an agreement, a person appointed by the President, for the time being, of the Royal Institute of Chartered Surveyors. Extension of Time for Completion Upon it becoming reasonably apparent that the progress of the Works are delayed, the Contractor shall give written notice of the delay to the Client stating the cause and, where reasonably practicable, the extent of the delay. Upon receipt of the said notice and where the delay is due to circumstances beyond the Contractor’s control, the Client shall grant the Contractor a fair and reasonable extension of the time for completion of the Works. Where the progress of the Works are delayed or materially disrupted by any act, omission or default of the Contractor or Client or those for whom they are respectively responsible, then the party at fault shall pay or allow to the other the agreed amount of direct loss and/or expense (including direct costs, overheads and loss of profit) as may be attributable to such delay or disruption. The Contractor shall constantly use its reasonable endeavours to prevent or minimise any delay in the progress of the whole or any part of the Works. Termination Either party may immediately terminate this Agreement by giving written notice to the other party if: the other party is in material breach of its obligations and fails to remedy that breach within 10 days of receiving written notice requiring it to do so, or the other party becomes Insolvent. The Contractor may immediately terminate this Agreement by giving written notice to the Client if: a suspension of the Works in accordance with clause 7 continues for a continuous period of 10 days, and the Client does not instruct the Contractor to recommence the Works within 10 days of receiving a written notice from the Contractor requiring it to do so. In the event of a termination under clause 11.1 and clause 11.2, the Contractor shall immediately leave the Site and the terminating party shall be entitled to recover from the other party the amount of any reasonably and directly incurred loss, damage and/or expense which he would not have incurred had the Agreement been duly performed in full. The Client may deduct from amounts payable to the Contractor under this Agreement any reasonably and directly incurred loss and/or damage resulting from termination. To the extent that the amounts due to the Client exceed the amount due to the Contractor, the balance shall be recoverable from the Contractor as a debt. Where the amounts already paid to the Contractor exceed those due to him, then the balance shall be returned to the Client. Insurance The Client shall, for the benefit of himself and the Contractor, take out and maintain a joint names policy for all risks insurance for the full reinstatement value of the Works and the cost of any professional fees or services and shall maintain such joint names policy up to and including the completion of the Works or up to the date of termination of the employment of the Contractor (whichever is earlier), referred to in clause 11 of this Agreement. The Contractor shall maintain or cause to be maintained public liability insurance of not less than the amount stated in the schedule, in respect of any one event or number of events in any insurance year unlimited. Client’s Obligations The Client shall ensure that sufficient access to the Site is given to the Contractor to perform its obligations under this Agreement and shall in no way hinder or prevent the Contractor, whether by act or omission, from the performance of such obligations. The Client shall at its own cost supply to the Contractor the Attendance Items stated in the Schedule. All other items of attendance shall be provided by the Contractor at its own cost. The Client shall be responsible for security of the Site and shall provide adequate storage for the Contractor’s materials, equipment, tools or plant during and for a reasonable period after completion of the Works. Intellectual Property The intellectual property rights in the Documents shall vest in the issuing party unless agreed otherwise. Subject to the Contractor having received any and all outstanding payments owed to it under this Agreement, the Contractor grants to the Client, with immediate effect, an irrevocable, non-exclusive, non-terminable, royalty-free licence to copy and make full use of any Documents prepared by, or on behalf of, the Contractor for any purpose relating to the Works. This licence carries the right to grant sub-licences and is transferable to third parties without the consent of the Contractor. The Contractor shall not be liable for use of the Documents for any purpose other than that for which it was intended. The Client may, at any time (whether before or after completion of the Works or after termination of the Contractor’s engagement under this Agreement), request a copy or copies of (some or all of) the Documents from the Contractor and the Contractor shall provide the copy (or copies) to the Client on payment of the Contractor’s reasonable charges. Limitation of Liability Subject to clauses 15.2 to 15.6, if any part of the Works is performed negligently by the Contractor or in breach of the provisions of this Agreement, the Client may for a period of up to 1 year from the date of expiry or termination of this Agreement serve written notice on the Contractor requiring him to remedy any defects at the Contractor’s cost. In the event that the Contractor fails to carry out remedial works within a reasonable period of request or to the Client’s reasonable satisfaction, the Client shall be entitled to carry out such works and reclaim its reasonably and properly incurred costs from the Contractor (by set-off or debt). Except in the case of death or personal injury caused by the Contractor’s negligence, the Contractor’s liability under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the sums paid to the Contractor under this Agreement. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty nor otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. Except as expressly provided in this Agreement, no warranty, condition, undertaking or term expressed or implied, statutory or otherwise, as to the condition, quality, performance, durability or fitness for purpose of the Works, executed and/or parts provided and/or installed under this Agreement is given by the Contractor. This Agreement shall not be invalidated by way of infringement of the Client’s statutory rights. Should it be ruled that any part of the Client’s statutory rights are infringed by any clause, sub-clause or sub-clauses of this Agreement, the remainder of the Agreement shall remain in force and only the sub-clause or sub-clauses within which such infringement or infringements occur may be deleted. The limitation period in respect of this Agreement shall be 6 years from the date of expiry or termination of this Agreement. Assignment This Agreement shall not be assignable or transferable in whole or in part by either party without the express written consent of the other party, such consent not to be unreasonably withheld or delayed. Compliance with Law and Regulations The Client and the Contractor shall each respectively comply with applicable Law and good practice. Any fees incidental to the execution of the Works which are payable by reason of any Laws are to be paid by the Client and the Client shall obtain every licence, permit or authority that may be required in connection with the Works. Notices All notices under or in respect of this Agreement shall be deemed to be duly given or made when sent by recorded delivery. All other communication shall be sent by email or facsimile as specified in the Schedule. Severance, Illegality and Waiver If any term or provision in this Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or Law, that term or provision or part shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected. No single or partial exercise, or failure or delay in exercising, any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise. Headings The headings used herein are for ease of reference only and are not to be used as a means of interpretation or construction of this Agreement. References herein to persons include references to bodies corporate and un-incorporate. References herein to statutes or statutory instruments include references to any modification, extension or re-enactment of them from time to time. Entire Agreement All documents, letters and schedules expressly referred to in this Agreement are hereby deemed to be incorporated herein and are to be regarded as having the same effect as if they were set out in full in the text of this Agreement. This Agreement constitutes the entire agreement between the parties and the Client does not regard as binding nor do they form any part of this Agreement, any statements, promises, opinions or representations contained in the Client’s promotional literature and/or expressed by the Client or any of its representatives or dealers during the course of the Client’s dealings with the Contractor prior to or after this Agreement coming into force. Amendments This Agreement may only be altered or amended by the mutual consent of both parties. Such alterations or amendments will be in writing and will only become part of this Agreement if duly agreed and signed by both parties. Lack of observation, compliance with or waiver of, any clause or clauses of this Agreement by either party will not under any circumstances are taken to mean that this Agreement is altered or amended in any way. Contracts (Rights of Third Parties) Act 1999 Notwithstanding any other provision of this Agreement, nothing in this Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it. Law and Jurisdiction Subject to the parties agreeing otherwise within the Schedule, whatever the nationality, resident or domicile of the Client or the Contractor and wherever the Site(s) are situated, the law of England and Wales and the exclusive jurisdiction of their courts shall be the law and courts applicable to this Agreement and the parties irrevocably submit to their jurisdiction.