STANDARD CONDITIONS OF CONTRACT OF T.SULLIVAN ENGINEERING LIMITED Agreement to be read as a whole This Agreement and these Conditions are to be read as a whole but nothing contained in the contract drawings, the contract specification, the works schedules or any other document shall override or modify this Agreement or these Conditions.
The following terms shall have the following meanings: “Quote” means our quote to you to carry out our works to which these Conditions are incorporated. “Pricing Document” means the agreed quotes, schedule of rates and/or priced bill of quantities. “Site” means the location(s) stated in the Quote and, if not stated, the location(s) where our works are to be performed. “Contract” means the contract between T. Sullivan Engineering Limited and you for the carrying out of our works in accordance with this Agreement and these Conditions. “Contract Sum” means the amount stated in the Quote and any adjustment thereto which is accepted by you as being the value of our works. “Works” means the works that we shall undertake as specified in the Quote.
- Our Obligations
1.1. We shall carry out and complete the Works in accordance with the Quote and this Agreement with due diligence, in a good and workmanlike manner and to British Standards. 1.2. We shall provide labour and plant of the standard stated in the Quote or, where no standard is stated, of a satisfactory quality. 1.3. In circumstances where you provide plant, specialist tools or equipment for use by us it shall be a condition precedent to such provision by you that the following requirements are complied with:
- We shall confirm in writing our acceptance of the rate or rates to be charged by you for the provision of such plant, specialist tools or equipment for our sole use.
- We shall be responsible for the care and safety of such plant, specialist tools or equipment whilst it is on hire to us.
- We shall notify you as soon as reasonably practicable when such plant, specialist tools or equipment are no longer required by us.
1.4. We shall provide all reasonable resources reasonably required to carry out and complete the Works to a satisfactory standard. 1.5 Where the Works include any element of design by us, such design shall be carried out exercising the reasonable skill, care and diligence to be expected of a competent designer. 1.6 We shall exercise reasonable skill and care to see that any design and any selection of materials or goods by us shall be such that they are safe and inaccordance with this Agreement. 1.7 We shall comply with any Act of Parliament any Instrument, rule or order made under any Act of Parliament or any regulation or bye-law of any Local Authority or of any Statutory Undertaker or Public Utility which has any jurisdiction with regard to the Works. 1.8 We shall comply with the Construction (Design and Management) Regulations 2015 and any Site safety policy notified to us and all reasonable directions of the Principal Contractor and the Principal Designer (both as defined by the CDM Regulations 2015) on health and safety matters. 1.9 Our status shall be that of an independent sub-contractor and the relationship of the parties including any personnel shall not be that of partners, principal and agent, or employer and employee.
- Commencement Progress and Completion
2.1. We shall commence the Works within an agreed period of days from receipt of your written instruction to do so or within a reasonable period of time following receipt of an instruction to proceed. 3.2. We shall proceed with the Works regularly and diligently to achieve practical completion within the period for completion set out in the Quote. 3.3. We shall advise you in writing when the Works are practically complete, and you shall certify practical completion. 3.4. After practical completion of the Works, we shall at our own expense, make good defects which are apparent in the Works and made known to us in writing during the defects liability period / rectification period (such period shall be 6 months unless otherwise stated in the Quote). 3.5 You shall take all necessary measures to protect the Works during defects liability period / rectification period until the Works are accepted.
- Contract Sum
4.1 The Contract Sum is exclusive of VAT and in relation to any payment to us under this Agreement; you shall, in addition to the Contract Sum, pay the amount of any VAT properly chargeable in respect of it. 4.4 Any payment made under this Agreement is subject to the provisions of Construction Industry Scheme (CIS) as and when applicable.
- Your Instructions
5.1. You may, without invalidating this Agreement, issue instructions, order additions to or omissions from or other change in the Works which we shall carry out once we have confirmed written acceptance of the instruction to you. 5.2. Verbal instructions must be confirmed by you in writing to us within five working days of the verbal instruction. 5.3 Within 10 working days of receipt of a written instruction we may give notice to you, stating that we consider that performance of such instruction, addition to or omission from or other change in the Works will require an adjustment to the Contract Sum. We shall then, acting reasonably, seek to agree the amount to be added to the Contract Sum in respect of such instruction, addition or omission from or other change in the Works and any agreement so reached shall be binding upon us. 5.4 If, agreement on the adjustment to the Contract Sum cannot be reached or such instruction, addition to or omission from or other change in the Works are otherwise carried out then you shall pay to us a fair and reasonable amount in respect of the performance of such instruction, addition to or omission from or other change in the Works (using existing rates and prices, insofar as it is reasonable to do so) and such fair and reasonable amount shall be added to the Contract Sum. 5.5 We may, without invalidating the Agreement, refuse instructions, order addition or omission from or other changes in the Works if we consider the proposed works and/or your requirements to be unreasonable.
6.1. We shall carry out any reasonable variation of the Works as instructed in writing by you (Variation). 6.2. A Variation shall be valued in accordance with the rates and prices in the Pricing Document or, where there are no applicable rates and prices, on a fair and reasonable basis. 6.3. We may claim direct loss and/or expense incurred by us due to the regular progress of the Works being affected by compliance with any Variation. You shall determine the amount of such direct loss and/or expense and it shall be included in our valuation of the Variation. 6.4. We shall not make any alteration of the Works other than pursuant to clauses 5 and 6 herein.
- Extension of Time
7.1. If we are delayed in completing the Works within the period for completion due to the ordering of any Variation of the Works or for other reasons outside of our reasonable control, we shall notify you in writing. Thereafter, you shall promptly assess and award a fair and reasonable extension of time. 7.2. Our notice referred to in clause 7.1 above shall include the cause or causes of any such delay and give reasonable particulars of the effects, including the expected delay in completion of the Works. 7.3 We shall use our reasonable endeavours to prevent or minimise any delay in the progress of the whole or any part of the Works.
8.1 Payment will be made in accordance with the Quote and (as appropriate) this Agreement. If applicable, we shall be entitled to payment by instalments as agreed between us. Unless otherwise stated on the Quote, the first interim payment shall be due one month after the end of the month following the month of commencement of the Works. Interim payments shall be due at one-month intervals calculated from the date when the first payment was due. 8.2 In relation to interim payments, we may, not less than 5 days before the due date, make an application to you stating the sum that we consider will become due to us at the relevant due date and the basis on which that sum has been calculated. 8.3 You shall, not later than three (3) days after the due date, issue a written notice of payment (“Payment Notice”) to us, specifying:
- the amount of payment to be made in respect of the amount stated in the application for payment, less any money previously paid and less any deductions and/or other sums to be deducted as agreed between us; and
- subject to clause 8.3.a, the amount payable for the Works shall be calculated in accordance with the following:
(i) The value of work carried out by us, determined in accordance with the rates and prices specified in the pricing document or buy reference to the Contract Sum if there are no rates and prices. (ii) The valuation of any Variation under Clause 6 herein less any discount, retention at the percentage stated in Clause 9 and any amount previously paid. (iii) Value Added Tax properly chargeable. (iv) Any other amounts properly due to the us under this Agreement. 8.4 In default of a Payment Notice from you, we may apply for a payment (“Payee Default Notice”) and any such application shall state the same detail referred to above in clause 8.3.b. 8.5 The final date for payment shall be 14 calendar days after the due date unless otherwise stated in the Quote. 8.6 You may, not later than five (5) calendar days before the final date for payment of the amount due pursuant to clause 8.2, give notice (“Pay Less Notice”) to us specifying:
- the amounts proposed to be withheld and/or deducted from the amount due under clause 8.3; and
- the basis of calculation for each amount proposed to be withheld and/or each deduction.
8.7 Where you fail to give a written notice pursuant to clause 8.3 then, subject to a Pay Less Notice, you shall pay us the amount due pursuant to clause 8.3 or 8.4 as the case may be. 8.8 We shall, without prejudice to any of the rights or remedies which we may otherwise possess, have the right to suspend the Works until payment of the amount due under clause 8.2 or 8.3, subject to any notice issued pursuant to clause 8.6, provided that:
- you have failed to pay us the amount properly due in accordance with clause 8.3 or 8.4; and
- such failure has continued for 7 days after we have given you written notice of our intention to suspend the performance of his obligations under this Agreement and the ground or grounds upon which it is intended to suspend performance.
8.9 If you fail to discharge payment of the amount due under clause 8.3 or 8.4 on the final date for payment, and subject to any notice pursuant to clause 8.6, then without prejudice to any other rights or remedies exercisable by us under this Agreement or otherwise, you shall pay to us, in addition to the amount not properly paid, simple interest thereon for each period until such payment is made. The rate payable shall be three percent (3%) over the base rate of the Bank of England which is current at the date the payment by you became overdue. This interest is deemed to include all costs of financing, borrowing and the use of the aforesaid amount. 8.10. We shall submit a fully detailed and substantiated statement of final account as soon as practicable.
You may retain a retention percentage of monies due to us from each interim payment as the Works progress. When the Works reach practical completion, we shall apply for release of half of the retention. At the end of the maintenance defects liability period for the Works (see clause 10), we shall apply for release of the second tranche of retention (the due date). The final date for payment of the second tranche of retention shall be 14 calendar days from the due date. The retention percentage shall be 3% unless otherwise stated in the Quote. 10. Maintenance
The maintenance defects liability period / rectification period for the Works is 6 months and begins upon acceptance by you (by means of certification or otherwise) of practical completion of the Works unless otherwise stated in the Quote. 11. Liability and Insurance 11.1We shall keep in force insurances to cover our liabilities hereunder or at common law or under any statute or regulation in respect of:-
- injury or death of any person or loss of or damage to any property arising out of, or in the course of, or caused by or in connection with the carrying out of the Works, and
- all risks insurance in our joint names (as required by you) for the Works for no less than the full reinstatement value of the Works,
and shall maintain such insurances up to practical completion of the Works. 11.2Our maximum aggregate liability to you under or in connection with this Agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise, shall in no circumstances exceed the Contract Sum. 11.3Without prejudice to Clause 11.2, our liability to you shall be limited to such sum as it would be fair and equitable to pay having regard to the extent of our responsibility for your loss or damage and on the assumption that there are no joint insurance or co-insurance arrangements between you and any third party who is responsible to any extent for that loss or damage. 11.3We shall not be liable to you for any loss of profit, loss of business, loss of production or any indirect or consequential loss. 11.4Our insurance covering our liability for injury to other persons or death or loss or damage to property shall have a limit of indemnity of not less £5 million or such higher sum stated in the Quote. 11.5Where the Works include any element of design by us professional indemnity insurance shall be maintained by the us at a limit of cover of no less than £1 million or such sum stated in the Quote for a period of no less than 6 years from practical completion of the Works (or termination of this Agreement, whichever is earlier). 11.6We shall produce for inspection, on reasonable demand by you, reasonable evidence that such insurance is being maintained. 11.7Subject to all sums due and payable under this Contract having been paid, we grant to you a non-exclusive, non-terminable, royalty-free licence to copy and make full use of any material prepared by, or on behalf of, us for any purpose relating to the Works. 12. Termination
12.1 If we: a. become insolvent; and/or
- have a provisional liquidator appointed; and/or
- have a winding up order made; and/or
- pass a resolution for voluntary winding up (except for the purposes of amalgamation or reconstruction); and/or
- have an administrator appointed under The Insolvency Act 1986 (or any amendment or re-enactment of the Act),
then you may terminate our employment by serving a written notice. The termination shall take effect when the notice is received by us or two calendar days later, whichever is the earliest. 12.2 If our employment is terminated, we shall leave the Site. 12.3 If your employment under the Main Contract is terminated, our employment under the Contract may also be terminated and we shall leave the Site. 12.4 In respect of clause 12.2 and 12.3, we shall be entitled to a reasonable period of time to complete Site clearance and remove our equipment and goods. 12.5 If your employment under the Main Contract is terminated for any reason, we shall be entitled to be paid the value of the Works properly carried out and be reimbursed for our losses. 12.6 If you: a. become insolvent; and/or
- have a provisional liquidator appointed; and/or
- have a winding up order made; and/or
- pass a resolution for voluntary winding up (except for the purposes of amalgamation or reconstruction); and/or
- have an administrator appointed under The Insolvency Act 1986 (or any amendment or re-enactment of the Act);
then we may terminate our employment by serving a written notice. The termination shall take effect when the notice is received by you or two calendar days after posting, whichever is the earliest. 12.7 If you: a. without reasonable cause or wholly or substantially suspend the carrying out of the Works; or b. without reasonable cause fail to proceed with the Works so that the reasonable progress of the Works is seriously affected; or c. fail to make a payment in accordance with this Agreement, we may give you a notice specifying the default or defaults (the “Specified” default or defaults). 12.8 If a Specified default continues for 10 days from receipt of a notice under clause 12.7. we may on, or within 21 days from, the expiry of that 10-day period by a further notice to you terminate our employment under this Agreement. 12.9 If we for any reason do not give a further notice referred to in clause 12.8 but (whether previously repeated or not you repeat a Specified Default), then, upon or within a reasonable time after such repetition, we may by notice to you terminate our employment under this Agreement. 12.10 Without affecting any other right or remedy available to us, we may terminate this Agreement on giving not less than 1 month’s written notice (email being sufficient) to you. 12.11 Upon termination we shall be entitled to be paid the value of the Works properly carried out on the date of termination and be reimbursed for our losses. 13 Service of Notices
13.1 Subject to clause 13.2, a notice or other document may be served by any effective means (including email, providing it is to a notified email address). 13.2 A termination notice under clause 12 shall be treated as effectively served if it is addressed, pre-paid and delivered by post to the addressee’s last known principal residence, or if it is or they have been carrying on a trade, profession or business, their last known principal business address, or where the addressee is a body corporate, to the body’s registered or principal office. 14 Reckoning Periods of Time
Where an act is required under this Agreement to be done within a specified period of time after or from a specified date, the period begins immediately after that date. Where such period includes a bank holiday that day shall be excluded.
15 Third Party Rights and Assignment Nothing in this Agreement shall confer or purport to confer upon any third party any benefit or right against us. Neither party shall be entitled to assign its rights under this Agreement without the prior written consent of the other party to it.
16.1 If a dispute or difference arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this Agreement, we shall follow the procedure set out in this clause:
a. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, your representative and our site manager shall attempt in good faith to resolve the Dispute;
b. if we are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to the Managing Director or Chief Executive of each party who shall attempt in good faith to resolve it (or such other persons notified in writing to the other party from time to time); and
c. if the Managing Director or Chief Executive (or their replacements) are for any reason unable to resolve the Dispute within 14 days of it being referred to them, we shall refer the Dispute to a mediator for resolution. We shall attempt to agree upon the appointment of a mediator upon receipt by either of them of a written notice to concur in such appointment. Should we fail to agree within seven days, either party upon giving written notice may apply to the President or the Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of a mediator. 16.2 Notwithstanding clause 16.1, either of us may at any time refer any dispute arising under this Agreement to adjudication in accordance with the provisions of The Housing Grants, Construction and Regeneration Act 1996 (or any amendment or re-enactment of that Act). 16.3Should the mediation fail, in whole or in part, either of us may refer the dispute to arbitration, to be determined by the appointment of a single arbitrator to be agreed between us, or failing Agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Deputy President of the Chartered Institute of Arbitrators. 17 Exclusion of Terms
Any Terms or Conditions exclusions amendments and the like expressed by you shall not apply to this Agreement unless agreed and confirmed in writing by us.