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Insurance
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7.1
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Duty to insure
The Purchaser and the Supplier will each maintain the respective insurance
cover recorded in the Purchase Order for the respective periods set out
in the Purchase Order.
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7.2
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Evidence of insurance
Evidence that the above insurances remain in force and that the appropriate
premiums have been paid will be provided by either party to the other
whenever reasonably requested.
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Liability
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7.3
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Direct costs, losses and expenses incurred by the Purchaser
The Supplier will make good to the Purchaser all direct costs, losses
and expenses incurred by the Purchaser which are due to the act, omission
or default of the Supplier under or in connection with the performance
of the Services.
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7.4
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Direct costs, losses and expenses incurred by the Supplier
The Purchaser will make good to the Supplier all direct costs, losses
and expenses incurred by the Supplier which are due to the act, omission
of default of the Purchaser under or in connection with the performance
of the Services.
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7.5
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Limitation on liability
Where the Purchase Order provides for a limit on the liability of the
Supplier, the aggregate liability of the Supplier arising under or in
relation to the Contract (including any liability with respect to statutory
duty or tort) will not exceed that limit.
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Information and drawings
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7.6
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Provision of information
The Purchaser and the Supplier will co-operate with the other members
of the Project Team in the provision of information with a view to ensuring
that relevant information is provided to all Project Participants needing
this information in a timely fashion and with a view to ensuring that
all relevant dates in the Project Programme will be met.
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7.7
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Copies of designs
The Supplier will ensure that copies of all designs having, or likely
to have, an effect on the appearance, standard or functionality of the
Project are supplied to the Purchaser in a form that the Purchaser can
readily understand (accompanied by any additional explanation by the Supplier
that may be necessary, or as may be reasonably requested by the Purchaser
in the particular circumstances). The Supplier will allow the Purchaser
a reasonable time for commenting on any designs.
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7.8
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Identification of ambiguities and discrepancies
If the Supplier identifies any ambiguities or discrepancies in any information
provided by the Purchaser or any other member of the Project Team, the
Supplier will agree how to resolve them after consultation, if appropriate,
with the Project Team.
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Completion and defects liability period
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7.9
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Certifying completion
The Supplier will give to the Purchaser at least 7 days notice of its
intention to request a certificate from the Purchaser certifying the Completion
Date. After satisfactory inspection and completion of any final tests,
the Purchaser will certify the Completion Date, being the date when in
the reasonable opinion of the Purchaser, the Services were, or any relevant
stage or section of the Services was, completed.
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7.10
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Liquidated damages
Where a rate for liquidated damages for any delay in the completion
of the Services or any section is specified in the Purchase Order, the
Supplier will be liable for liquidated damages for delay at the rate or
rates specified if it fails to complete the Services or any relevant section
by the relevant Date for Completion.
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7.11
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Bonus for early completion
Where a bonus for early completion of the Services or any section is
specified in the Purchase Order, the Purchaser will pay the bonus to the
Supplier if the Services or relevant section(s) are completed in accordance
with clause 7.9 before the relevant Date for Completion.
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7.12
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Payment of liquidated damages and bonuses
The Supplier will pay the Purchaser liquidated damages due to the Purchaser
within 28 days of the amount being notified to the Supplier, and the Purchaser
will be entitled to deduct any unpaid liquidated damages from amounts
owing to the Supplier. The Purchaser will pay the Supplier any bonus due
to the Supplier within 28 days of the Date for Completion by reference
to which the bonus is calculated.
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7.13
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Defects liability period
The defects liability period, during which all defects notified to the
Supplier will be remedied at its expense, will be 12 months (unless otherwise
stated in the Purchase Order) commencing on the relevant Completion Date
unless otherwise stated in the Purchase Order.
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Copyright and patents
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7.14
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Copyright
The Supplier grants (or will procure that any relevant member of its
Supply Chain grants) to the Purchaser an irrevocable, assignable, royalty
free licence to use, copy and reproduce all designs and/or related documents
prepared in connection with the Services. However, these documents are
only to be used by the Purchaser in connection with the Project or any
project that replaces and/or encompasses the Project and not for any other
purpose and the Purchaser shall not be entitled to reproduce the designs
or related documents for an extension of the Project or any part of it.
Copyright will remain with the Supplier or the relevant member of the
Supply Chain (as the case may be).
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7.15
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Payment of royalties
Any royalties payable in respect of any patents, processes or inventions
will be the sole responsibility of the Supplier. Further, the Supplier
will make good to the Purchaser all claims, proceedings, costs and damages
incurred by the Purchaser on account of any patent or other intellectual
property right infringed by the Supplier, any subcontractors of the Supplier
or other person for whom the Supplier is responsible.
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Ownership of, and risk in, materials
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7.16
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Property in materials
Materials being incorporated into the Supplier’s work will become
the property of the Purchaser when any part of their value is included
in any payment by the Purchaser to the Supplier or (if earlier) when they
become incorporated in the Supplier’s work.
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7.17
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Risk in materials
The risk of loss or damage to any materials provided by the Supplier
(and to any free issue materials provided by the Purchaser) will remain
with the Supplier until the relevant Completion Date
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Assignment and subletting
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7.18
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Assignment
Neither the Purchaser nor the Supplier may assign or transfer any right
or obligation under the Contract without the prior written consent of
the other.
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7.19
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Subletting
The Supplier will not sublet the whole of the Services. The Supplier
may sublet parts of the Services with the prior written consent of the
Purchaser (which consent will not be unreasonably withheld or delayed).
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7.20
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Liability of the Supplier following subletting
Notwithstanding the subletting of any part or parts of the Services,
the Supplier will remain solely responsible to the Purchaser for the performance
of the Services.
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7.21
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Form of subcontract
Unless otherwise agreed by the Purchaser, the Be Collaborative Construction
Terms (either those relating to the supply of construction related services
or those relating to the supply of construction related products, as appropriate)
will be used for the appointment of all subcontractors. The Supplier acknowledges
that terms imposing unduly onerous obligations on members of the Supply
Chain are to be avoided.
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Termination
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7.22
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Termination by the Purchaser
Where stated in the Purchase Order, the Purchaser may terminate the
Contract at any time by giving not less than 2 months’ notice to
this effect. Otherwise, the Purchaser may give notice to terminate the
Contract:-
-
if the Purchaser has given notice to the Supplier of a breach of
the Contract and the Supplier has failed to remedy the breach within
14 days from the date of that notice; or
-
if the Supplier becomes insolvent or has a liquidator, receiver,
manager or administrative receiver appointed; or
-
(where the Supplier is a subcontractor) if the Purchaser’s
Contract is terminated.
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7.23
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Termination by the Supplier
The Supplier may give notice to terminate the Contract:-
-
if the Purchaser is overdue in making any payment by more than 28
days after a written demand for payment has been made by the Supplier
following the final date for payment in accordance with clause 6;
or
-
if the Supplier has given notice to the Purchaser of any other breach
of the Contract by the Purchaser that adversely affects the ability
of the Supplier to perform its obligations under the Contract and
the Purchaser has failed to remedy the breach within 14 days from
the date of that notice ; or
-
if the Purchaser becomes insolvent or has a liquidator, receiver,
manager or administrative receiver appointed.
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7.24
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Purchaser's instructions following termination
Upon termination of the Contract by the Purchaser, the Supplier will
promptly comply with all the Purchaser’s instructions relating to
the protecting, securing and vacating of the Site and the transferring
to the Purchaser of any goods or materials in the course of preparation
or ready for delivery to the Site.
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7.25
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Payment following termination by the Supplier
Upon termination of the Contract by the Supplier, the Purchaser will
promptly make payment of all amounts properly due to the Supplier in respect
of the Supplier’s performance up to the date of termination, including
payment in respect of any additional work carried out by the Supplier,
at the Purchaser’s request, following termination.
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7.26
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Payment following termination by the Purchaser
If the Contract is terminated on account of the Supplier’s default
or insolvency, the Purchaser may retain all equipment and goods on the
Site and withhold any payments due to the Supplier until the extra costs
of completing the Services have been ascertained. Those extra costs may
be deducted from any further payments due to the Supplier. Where the option
for the Purchaser to terminate on notice has been included under the Purchase
Order and the Purchaser exercises this option, the Purchaser will promptly
make payment of all amounts properly due to the Supplier in respect of
the Supplier's performance up to the date of termination, including payment
in respect of any additional work carried out by the Supplier, at the
Purchaser's request, following termination plus a reasonable sum to reimburse
the Supplier for any unavoidable costs to the Supplier of demobilisation.
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Dispute resolution
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7.27
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Notification of anticipated disputes
The Purchaser and the Supplier will endeavour to notify each other of
any anticipated dispute so that it can be avoided by negotiation between
them.
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7.28
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Negotiation between senior executives, mediation and involvement of
the Project Team
The Purchaser and the Supplier will endeavour to resolve any dispute
which does arise by direct negotiations in good faith between senior executives.
Each of them will give serious consideration to any request by the other
to refer the dispute to mediation if it cannot be resolved by direct negotiation.
Where either the Purchaser or the Supplier is a member of the Project
Team, that party will notify the Project Team of any dispute that is not
swiftly resolved by negotiation and will keep the Project Team informed
of the progress and/or settlement of the dispute. The Purchaser and the
Supplier will give serious consideration to any recommendation of the
Project Team for the resolution of the dispute.
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7.29
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Adjudication
Any dispute may be referred by the Purchaser or the Supplier to adjudication
in accordance with the Scheme for Construction Contracts. The adjudicator,
in the absence of agreement between the parties, will be appointed by
the adjudicator appointing body referred to in the Purchase Order. Where
a dispute raises issues which are substantially the same as those in a
dispute under another contract entered into by one of the parties relating
to the Project, that party may require that the same person is appointed
as adjudicator to decide both disputes (unless the adjudicator would have
a conflict of interest or is unwilling to act).
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7.30
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Litigation
The decision of any adjudicator will be binding on, and implemented
by, the Purchaser and the Supplier pending final determination of the
relevant dispute by the English courts.
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7.31
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Notices
All notices will be in writing, except in an emergency, in which case
an oral notice will be confirmed in writing by either party within 3 days.
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7.32
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Law
English law governs the Contract.
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7.33
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Collateral warranties from the Supplier
The Supplier will, within 14 days of any request, execute and deliver
to the Purchaser a collateral warranty deed in the form contained in Appendix
7 of the Purchase Order up to the maximum number specified in the Purchase
Order. The Purchaser will inform the Supplier of the name and address
of each beneficiary to whom the Purchaser delivers an original or certified
copy of a collateral warranty deed.
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7.34
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Collateral warranties from sub-suppliers
If stated in the Purchase Order, the Supplier will procure the provisions
of collateral warranty deeds in the form contained in Appendix 7 of the
Purchase Order from specified sub-suppliers in favour of the organisations
or types of organisations specified in the Purchase Order.
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7.35
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Rights of Third Parties
Without affecting the rights of third parties under collateral warranty
deeds, the Contracts (Rights of Third Parties) Act 1999 does not apply
to the Contract.
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