TERMS & CONDITIONS OF PURCHASE ORDER
1.1 In this document the following capitalised words shall have the following meanings:
“Agreement” means these Terms and Conditions (clauses 1-37) together with any express terms contained in an applicable Purchase Order from the Buyer;
“Buyer” means Clarke Construction Services, registered address: Crestacre Barracks Lane, Brownhills WS9 9DL;
“Supplier” means the organisation or person who supplies goods and/or services to the Buyer;
“Supplier Personnel” means any employee or contractor supplied by the Supplier to provide services.
“Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
“Purchase Order” means the standard Buyer document which includes or is attached to a statement of work describing the goods and/or services to be provided by the Supplier and which provides the value payable by the Buyer to the Supplier;
“Sub-Contract Documents” means the Purchase Order; these Terms & Conditions; requirements and/or specifications of any superior contract, the works of which this Sub-Contract forms part; the Sub-Contract Sum Analysis, the Programme, Drawings & Reports; RAMs checklist; and site operating procedures, including any written agreed amendments or changes to these documents.
“Variation” means an instruction issued by the Buyer to the Supplier altering, amending, adding to, omitting, substituting or otherwise varying the Works.
“Retention” means the sum, as specified in the Purchase Order, which may be deducted from payment(s) due to the Supplier and retained by the Buyer in accordance with the terms specified in these Terms & Conditions and the Purchase Order.
“Works” means the works described in the Purchase Order, that are to be executed by the Supplier.
“Confidential Information” means all information in respect of the business of the Buyer including, but not limited to, know-how or other matters connected with the Works, and information concerning the Buyer’s relationships with actual or potential clients or suppliers and the needs and requirements of the Buyer and of such persons and any other information which, if disclosed, will be liable to cause harm to the Buyer.
“Force Majeure” means acts of God, strikes, lock outs, accidents, war, fire, flood, pandemics or industrial disputes and Government responses to these events or circumstances.
2.1. This Agreement shall apply to all contracts for the supply of goods and/or services by the Supplier to the Buyer, pursuant to one or more Purchase Order and takes precedence over any terms and conditions contained or referred to in any quotations or similar documents issued by the Supplier. Any Supplier who provides an offer of goods and/or services is deemed to have allowed for the inclusion of all of the terms and conditions detailed in this Agreement.
2.2. Where it is agreed that the Supplier shall supply goods and/or services, the goods and/or services to be supplied, the price payable and any other special terms agreed between the parties shall be set out in the Purchase Order. All Purchase Orders shall be subject to these Terms and Conditions.
2.3. No changes or variations to these Terms and Conditions or any Purchase Order shall be effective unless agreed in writing by a Director of the Buyer.
3. Relationship of Parties
3.1. Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in this Agreement shall be deemed to construe either of the parties as the agent of the other.
4.1. The Supplier shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Buyer.
5.1. No failure by the Buyer to enforce any of these Terms and Conditions shall constitute a waiver of its rights hereunder.
6.1. Any notice to be given by either party to the other may be served by email, personal service or by post to the address of the other party given in the Purchase Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if given by personal service shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered according to the published timescales relevant to the type of postage used.
7.1. For the purposes of reverse VAT, each Purchase Order shall set out whether the Buyer is an End User/Intermediary Supplier for the purposes of section 55A of the VAT Act 1994. In the absence of this confirmation, the Supplier shall assume that the Buyer is not an End User/Intermediary Supplier and shall not charge VAT to the Buyer.
8.1. The Supplier will not engage in any Modern Slavery Practice.
8.2. The Supplier will:
8.2.1. comply with Anti-Slavery Laws, the Anti-Slavery Policy and the Supplier Code of Conduct at all times and will procure that its officers, employees, agents, sub-contractors and any other persons who perform services for or on behalf of it in connection with this Agreement will comply with the same at all times;
8.2.2. not commit any act or omission which causes or could cause the Buyer to breach, or commit an offence under, any Anti-Slavery Law;
8.2.3. conduct proper and adequate checks on any agency or person used by the Supplier to provide labour, employees, contractors or other persons to undertake tasks for the Supplier (in each case whether on a permanent or temporary basis) to ensure that any such agency or person does not engage in any Modern Slavery Practice;
8.2.4. not knowingly appoint or contract with any person who has been convicted of or prosecuted in any jurisdiction in relation to an offence or alleged offence under any Anti-Slavery Law;
9. Bribery and Corruption
9.1. The Buyer shall be entitled, by written notice sent to the Supplier, to immediately terminate the Supplier’s engagement under this Agreement or any other contract with the Supplier if, in relation to this agreement or any other contract, the Supplier or any person acting on its behalf or associated with it, shall have committed an offence under the prevention of corruption acts 1889 to 1916, the bribery act 2010, or, where the employer under the main contract is a local authority has committed an offence under any applicable legislation or at common law in respect of corrupt or fraudulent acts. For the purposes of this clause, whether a person is associated with another person shall be determined in accordance with section 8 of the Bribery Act 2010.
10. Severance and amendment
10.1. If any term or condition of these Conditions is for any reason held to be invalid or otherwise unenforceable by law it shall be severed and deemed to be deleted from the Conditions and the validity and enforceability of the remainder of the Conditions shall not be affected in any way and shall remain in full force and effect. If any provision of the Conditions is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted or modified, the provision shall apply as if with such modification as may be necessary to make it valid.
10.2. No amendment to these Conditions shall be binding unless agreed in writing and authorised by the Buyer.
11. Legal Proceedings
11.1. These Conditions are subject to the laws of England and Wales and all disputes arising out of these Conditions are subject to the exclusive jurisdiction of the courts of England and Wales. SUPPLY OF GOODS
12. Goods - Price and Payment
12.1. The price and any taxes and expenses for the goods and/or services shall be as specified in the Purchase Order.
12.2. An invoice shall be produced by the Supplier to the Buyer in accordance with the terms set out in the Purchase Order. The Buyer shall pay for the goods at the end of the month following the month in which the goods and/or services are supplied or in which the invoice is received, whichever is the later. In no circumstances shall the time for payment be of the essence of the Agreement.
12.3. The Buyer shall not be responsible for any expenses, charges or price other than those set out in the Purchase Order.
12.4. If the parties agree that the Supplier is to provide goods in addition to those specified in a Purchase Order, then such agreement will be reflected in a further Purchase Order, which will be deemed incorporated into this Agreement.
12.5. Once a Purchase Order has been agreed by the Buyer the price for the goods and/or services shall be fixed.
13. Goods - Warranty
13.1. The Supplier warrants and guarantees that all goods and materials supplied under this Agreement shall be free from any defects, patent or latent, in material and workmanship, conform to applicable specifications and drawings and, to the extent that detailed designs were not provided to the Buyer, will be free from design defects and in every aspect suitable for the purposes intended by the Buyer, as to which the Supplier hereby acknowledges that it has had due notice. The approval by the Buyer of any designs provided by the Supplier shall not relieve the Supplier of its obligations under any provision contained in this section 13.
13.2. The Supplier’s obligations under this section 13 shall extend to any defect or non-conformity arising or manifesting itself within the manufacturer’s warranty period from the date of delivery.
13.3. Where there is a breach of the warranty contained in this section 13 by the Supplier, the Buyer, without thereby waiving any rights or remedies otherwise provided by law and/or elsewhere in this Agreement, may require the Supplier to repair or replace the defective goods at the Supplier’s risk and expense or repay the price or part of the price relating to the defect to the Buyer.
13.4. Items repaired or replaced shall be subject to these Terms and Conditions in the same manner as those originally delivered under this Agreement. If the Supplier refuses or fails promptly to repair or replace items when requested under this provision, the Buyer may itself, or through an agent or sub-contractor, or otherwise, repair or replace any item itself and the Supplier agrees to reimburse the Buyer for any costs or expenses incurred.
14. Goods - Delivery
14.1. Delivery of the goods shall be made to such location as the Buyer shall direct. Any time agreed between the parties for such delivery shall be of the essence of the Agreement and the Buyer shall be entitled to cancel, without notice, the whole or any part of this Agreement if the Supplier fails to comply with this clause 14.
14.2. Where the Buyer cancels the whole or part of the contract in accordance with clause 14.1:
14.2.1 All sums payable by the Buyer in relation to the whole or part of the contract cancelled shall cease to become payable;
14.2.2 all sums paid by the Buyer in relation to the whole or part of the contract cancelled shall be repaid by the Supplier immediately; 14.2.3 the Buyer shall be entitled to recover damages from the Supplier for any loss caused as a result of the Supplier’s failure to deliver the goods and/or as a result of the cancellation of the whole or part of the contract.
15. Goods - Title
15.1. The Supplier warrants that it has good title to the goods and that it will transfer such title as it may have in the goods to the Buyer pursuant to Clause 15.2.
15.2. Title in the goods will pass to the Buyer when the goods are unconditionally appropriated (by either party or by, or with the consent of, either party) to this Agreement, or on delivery to the Buyer, whichever happens first.
16. Goods - Risk
16.1. The goods will be and shall remain at the Supplier’s risk until such time as they are delivered to the Buyer (or at his direction), and are found to be in accordance with the requirements of this Agreement. It shall be the duty of the Supplier at all times until the goods are delivered to the Buyer (or at his direction) to maintain a contract of insurance over the goods and, on request from the Buyer, to assign to the Buyer the benefits of such insurance.
17. Goods - Inspection
17.1. The Buyer shall inspect the goods upon delivery.
17.2. Where goods are damaged the Buyer shall notify the Supplier. The Buyer may reject the damaged goods and the following provisions shall apply:
17.2.1 the Supplier shall collect the damaged goods from the Buyer at the Supplier’s expense;
17.2.2 during the period between delivery of the goods to the Buyer and collection by the Supplier, the Buyer shall not be liable for any loss or further damage caused to the damaged goods;
17.2.3 all sums payable by the Buyer in relation to the damaged goods shall cease to become payable;
17.2.4 all sums paid by the Buyer in relation to the damaged goods shall be repaid by the Supplier immediately;
17.2.5 the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer as a result of the goods being damaged.
17.3. Where there are shortages in the order the Buyer shall notify the Supplier and the following provisions shall apply:
17.3.1 all sums payable by the Buyer in relation to the missing goods shall cease to become payable;
17.3.2 all sums paid by the Buyer in relation to the missing goods shall be repaid by the Supplier immediately;
17.3.3 the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer as a result of the shortages. 17.4. If the Buyer so requests, the Supplier shall immediately replace damaged goods or supply goods which are missing, at the Supplier’s expense or the Buyer shall be entitled to cancel, without notice, the whole or any unexecuted part of the order and the rights referred to in clause 17.2 shall apply.
17.5. Where there is an excess of goods in relation to the order the Buyer may reject the excess goods by notice in writing to the Supplier and the following provisions shall apply:
17.5.1 the Supplier shall collect the excess goods from the Buyer at the Supplier’s expense;
17.5.2 during the period between delivery of the goods and collection by the Supplier, the Buyer shall not be liable for any loss or damage caused to the excess goods;
17.5.3 no sum shall be due to the Supplier for the excess goods and in the event that sums are paid to the Supplier for the excess goods, the Supplier shall repay such sums to the Buyer immediately.
17.6. The Buyer may accept excess goods by notifying the Supplier of such acceptance and the price of the excess goods shall be payable by the Buyer.
17.7. The Supplier shall repair or replace free of charge, goods damaged or lost in transit upon receiving notice to that effect from the Buyer.
17.8. The Buyer’s signature on any delivery note of the Supplier is evidence of the number of packages received only and not evidence of the correct quantity of goods received or that the goods are in a good condition or of the correct quality.
18. Goods - Force Majeure
18.1. Neither party shall be liable for any delay or failure to perform any of its obligations under this Agreement if the delay or failure results from Force Majeure, and both parties shall be entitled to a reasonable extension of its obligations.
SUPPLY OF SERVICES
19. Services - Supplier Obligations
19.1. The Supplier shall commence the agreed services at such time(s) as set out in the Purchase Order and shall carry out and complete the whole of the services within the period(s) set out in the Purchase Order.
19.2. Where the Supplier has given notice to the Buyer as soon as it became reasonably apparent that the progress of the Works is likely to be affected by Force Majeure, exceptionally adverse weather conditions, Variations, delay in carrying out of work by a local authority or a statutory undertaker, the carrying out of work by other sub-contractors engaged by the Buyer at the site (other than in connection with the Works) or an act of prevention by the Buyer (other than in accordance with the Terms and Conditions) then, upon application by the Supplier, the Buyer shall make such extension to the Works completion date as is in its reasonable opinion necessary.
19.3. The Supplier shall at all times use its best endeavours to prevent or reduce delay to the progress of the Works.
19.4. Unless otherwise specified in the Purchase Order, the Supplier shall provide all material, labour, plant, equipment, storage and transport necessary for the carrying out of the agreed services.
19.5. The Supplier shall keep the site clear of all debris arising out of its own works and handle disposal of waste in accordance with the waste management plan for the site. The site must at all times be left clear and tidy. The Supplier shall remove all debris arising out of its own works from the site at its own expense. In the event that the Supplier fails to comply with this clause
19.5, the Buyer shall be entitled without notice to arrange for the removal of all such debris at the expense of the Supplier, such expense may be offset against any sum due to the Supplier under this Agreement.
19.6. Material stacks and stores must be kept neatly at all times.
19.7. Stores must be closed and protective coverings replaced wherever disturbed. All materials are to be stacked by the Supplier in the correct manner in accordance with the manufacturer’s recommendations.
19.8. The Supplier shall comply with all statutes, other legislation and bylaws in force insofar as they affect the agreed services.
19.9. The Supplier shall comply with all applicable site safety rules as current at the time of the execution of the agreed services and shall ensure that all Supplier Personnel comply with such rules and also with their responsibilities under health and safety legislation. 19.10. Subject to clause
19.11, all materials and goods for agreed services shall, so far as procurable, be of the kinds and standards requested by the Buyer and, if so requested, will be specified in the Purchase Order or other Sub-Contract Document.
19.11. The Supplier warrants to the Buyer that he shall exercise the standard of reasonable skill and care not to specify and/or use in the construction of the agreed services any goods, materials or substances that are:
19.11.1 prohibited by the Buyer’s Requirements;
19.11.2 not in accordance with applicable British Standards and/or Codes of Building Practice;
19.11.3 generally known within the construction industry at the time of use to be deleterious or hazardous to health and safety or detrimental to the structure, fabric or durability of the Works in the particular circumstances in which the material, substance, building practice or technique is used; and
19.11.4 not in accordance with the guidance contained in the edition of "Good Practice in the Selection of Construction Materials" published by the British Council for Offices in 2011; and he shall immediately notify the Buyer if he becomes aware of any such use.
19.12. If and to the extent that the Supplier is responsible for the design or specification of any part of the agreed services it hereby warrants that it has exercised or will exercise all reasonable skill and care in the design and/or specification of the services or part thereof; the selection of the kinds of materials and goods; and the satisfaction of any performance specification where applicable.
19.13. The Supplier shall use reasonable endeavours to provide information, documentation and the like to the Buyer so as to permit his compliance with The Construction (Design and Management) Regulations 2015 and any other statutory obligations.
19.14. The Supplier shall provide the Buyer with such progress reports, evidence or other information concerning the services as may be requested by the Buyer from time to time.
19.15. The Supplier warrants, represents and undertakes that:
19.15.1 all services performed under this Agreement shall be performed with all due skill and care, in a good and workmanlike manner and otherwise in line with best practice within its industry (“Best Industry Practice”);
19.15.2 the Supplier Personnel will possess the qualifications, professional competence and experience to carry out such services in accordance with Best Industry Practice;
19.15.3 the services will not in any way infringe or violate any Intellectual Property Rights, trade secrets or rights in proprietary information, nor any contractual, employment or property rights, duties of non-disclosure or other rights of any third parties; and
19.15.4 it has full capacity and authority to enter into this Agreement and that it has or will obtain prior to the commencement of the services, any necessary licences, consents and permits required of it for the performance of the services.
20. Services - Supply of Plant Equipment Materials and Tools
20.1. The Contractor shall supply, furnish, unload and store on site all items necessary for the carrying out of the Works including materials, tools, tackle plant, transport, temporary accommodation and equipment necessary for the completion and satisfactory performance of its obligations under the Purchase Order except for such items as the Buyer shall agree in writing to supply or furnish for the use of the Supplier. Heavy plant and/or other equipment (specifically PPE to comply with Health and Safety obligations or identification requirements on sites where other contractors are present) may be supplied by the Buyer from time to time under its health and safety procedures.
20.2. Use by the Supplier of any items supplied by the Buyer shall be at the sole risk of the Supplier. The Supplier shall be responsible for any acts, loss or damage whatsoever resulting therefrom and no warranties or other liabilities shall be created or given either expressly or impliedly on the part of the Buyer by the reason of such supply. The Supplier shall make good at its own expense any loss or damage to any such items.
20.3. The Supplier at its own expense is to make all provision for transporting, loading, sorting, storage, protection and insurance of its items brought on to the site and for their subsequent handling on site. The Buyer is not liable for loss or damage to the same however so arising.
21. Services - Use of Plant, Equipment and Material
21.1. The Supplier warrants when using any items of plant, equipment, scaffolding, materials and the like supplied by the Buyer that its employees, servants or agents have the necessary skills and experience to use such items and will be responsible for any loss or theft thereof or damage incurred to the same.
21.2. In using its own plant, equipment and materials and the like, the Supplier shall be fully responsible for the same and the Buyer shall not be responsible for any loss or damage thereto.
22. Services - Welfare Facilities
22.1. Where the Buyer provides welfare facilities the Supplier shall be liable for any damage caused to the facilities by its operatives and shall reimburse the Buyer accordingly.
23. Services - Health and Safety
23.1. Notwithstanding the generality of clauses 19.8 and 19.9, the Supplier shall comply with the following requirements:
23.1.1 ensure that all employees, agents and other persons engaged by the Suppliers are provided with the appropriate protective clothing, equipment and footwear and that the same are actually worn/used as appropriate;
23.1.2 report to the Buyer all reportable injuries, diseases and dangerous occurrences as specified under the relevant legislation;
23.1.3 provide proper supervision and training at all times of all employees and agents of and other persons engaged by the Supplier on the site so as to ensure that all such persons comply at all times with health and safety legislation;
23.1.4 ensure that any obstacle, hole, trench or other excavation or hazard created, placed or constructed during the course of the Works is adequately closed off, fenced and lit at the end of each working day;
23.1.5 in relation to all persons affected or likely to be affected by the execution of the Works take such steps as are reasonably practicable to ensure the health and safety of all such persons;
23.1.6 carry out such tests and examination of equipment, plant and materials as may be necessary to ensure the health and safety of anyone who is in, or is likely to come into contact with, or otherwise be affected by the use of such items;
23.1.7 make available for inspection by the Buyer’s site manager at all times all registers, records and any other documentation concerning health and safety and/or environmental matters and relating to the Works.
24. Services – Dayworks
24.1. Any dayworks will only be paid for if first authorised in writing by the Buyer at an agreed rate or rates provided that the Supplier notifies the Buyer of such dayworks within 14 days of the Supplier becoming aware of the need for such dayworks. Where the Supplier fails to notify the Buyer within 14 days of becoming aware of the need for dayworks then dayworks will not apply.
25. Services - Payment
25.1. The Due Date for each payment shall be specified in the Purchase Order or, if not there specified, shall be the last business day of each valuation month.
25.2. No later than 5 days before the Due Date and as a precondition to payment, the Supplier shall submit an invoice or an application for payment in accordance with the stages set out in the Purchase Order for the value of work completed and for which the Supplier has not previously submitted an invoice or made an application, but excluding the value of unfixed materials on site. Invoices or applications for payment shall specify what the amount relates to and the basis upon which the amount has been calculated.
25.3. Not later than 14 days after the Due Date the Buyer shall give a written payment notice to the Supplier specifying:
25.3.1. the amount of the payment proposed to be made;
25.3.2. the Works or part thereof to which the payment relates; and
25.3.3. the basis on which the payment is calculated. 25.4. If the notice is not given in accordance with clause
25.3, the amount of the payment to be made by the Buyer shall, subject to any notice given under clause 25.6, be the sum stated in the Supplier’s invoice or application for payment.
25.5. If the Supplier issues an Application for Payment that is not a VAT invoice, the Supplier must issue a VAT invoice no later than 3 days before the Final Date for payment, failing which may cause delay in payment.
25.6. The Final Date for each payment shall be specified in the Purchase Order or, if not there specified, shall be the last business day of the calendar month following the Due Date.
25.7. The Buyer reserves the right to pay less and/or set off from any payment due to the Supplier from the Buyer an amount equal to the value of the Buyer’s reasonable assessment of the value of any liabilities of the Supplier to the Buyer. Prior to making any such lesser payment and/or set-off, the Buyer shall give a written Pay Less Notice to the Supplier not later than 14 days after the Due Date. The said notice shall specify the amount the Buyer considers to be due to the Supplier as at the date of such notice and the basis upon which that amount has been calculated.
25.8. Subject to the provision of clause
25.5, If the Buyer fails properly to pay the amount or any part thereof due to the Supplier by the Final Date for its payment, the Buyer shall pay to the Supplier in addition to the amount not properly paid simple interest thereon for the period until such payment is made. The rate of interest payable shall be 2% over the Base Rate of the Bank of England, which is current at the Final Due Date. The parties agree that this clause
25.8 is a substantial remedy for late payment of any sum payable under this Appointment in accordance with section 8(2) Late Payment of Commercial Debts (Interest) Act 1998.
25.9. Payment shall not be held to signify approval by the Buyer of the whole or any part of the Works executed nor shall any final payment and/or the release of any retention prejudice any claim which the Buyer may have against the Supplier.
26. Services – Variations
26.1. The Buyer may from time to time issue a Variation but no such Variation shall invalidate any Purchase Order or this Agreement.
26.2. Variations and agreement/disagreement thereof shall be in notified in writing. If, due to urgent health and safety considerations a Variation is authorised verbally by the Buyer, it shall be confirmed in writing as soon as practicable thereafter.
26.3. Where the Supplier considers that any work to be undertaken by it will constitute a Variation then the Supplier shall within 7 days of becoming aware of such Variation issue a written notice to the Buyer of all such Variations and the effect upon the programme for the Works prior to the execution of any work that may constitute a Variation. The Buyer shall within 7 days of such notification authorise or disagree such Variation as the case may be. Where the Supplier fails to issue a written notice to the Buyer within 7 days of becoming aware of a Variation then such work will not constitute a Variation.
26.4. All Variations shall be valued at the rates specified in the Purchase Order or, where no rates are specified or such rates are not applicable to the work proposed to be undertaken, at such rate that is fair and reasonable in all the circumstances. The amount to be paid in respect of any Variation shall be agreed wherever possible before any such work is carried out or, in default of agreement, shall be fixed by the Buyer, having regard to existing rates in the Sub-Contract Documents and what is fair and reasonable. 27. Services - Completion of the Works and Retention
27.1. A Retention may be deducted at the rate of 5% or such other amount as may be stated on the Purchase Order from the gross amount of any payment proposed to be made.
27.2. When the Buyer considers (in its absolute discretion acting reasonably) that the services provided by the Supplier have achieved satisfactory completion, the Buyer shall issue a certificate to that effect.
27.3. Half of any Retention will be released upon the Buyer certifying satisfactory completion of the services in accordance with this Agreement. The balance of the Retention will be released 12 months later provided that any defects, shrinkages or other faults in the Works notified to the Supplier have been made good to the satisfaction of the Buyer save in the case of road and sewer works when the balance will be released upon the adoption of such works.
27.4. The payment of any part of the Retention will be subject to written application from the Supplier and to the prior rectification by the Supplier at its own expense of any defects, shrinkages or other faults in the Works identified by the Buyer and notified to the Supplier.
27.5. Should the Supplier fail to make good any such defects, shrinkages or other faults within the Works upon notice from the Buyer, the Buyer may provide that others carry out such remedial work and deduct any reasonable monies, expenditure or expenses from the outstanding sum due to the Supplier.
28. Services – Loss and expense
28.1. Any expense, liability or loss incurred by the Buyer which is attributable to any negligence, breach of this agreement or statutory duty omission or default by the Supplier, may be deducted or set-off by the Buyer from payments otherwise due to the Supplier under this or any other contract between the parties.
28.2. If in the opinion of the Buyer reasonable progress in the performance of the Works is not being maintained the Buyer may (without prejudice to any other rights) accelerate the progress of the Works by the employment of its own labour or of other sub-contractors and any additional expense so incurred by it shall be recoverable from the Supplier and deducted from any payment due to him under this Agreement.
28.3. If the Supplier fails to complete the Works or any part thereof within the period specified in the Purchase Order or any extended period granted by the Buyer the Supplier shall be liable to the Buyer for any loss or damage suffered or incurred by the Buyer or the level of liquidated and ascertained damages specified in the Works Order (if applicable) and caused by such failure of the Supplier and any sum in respect of such liability shall be paid to the Buyer by the Supplier. The Buyer shall at the earliest reasonable opportunity give notice in writing to the Supplier that such loss or damage is being or has been suffered or incurred.
28.4. The Buyer shall pay to the Supplier any expense or loss incurred by the Supplier which is attributable to any negligence, breach of this agreement or statutory duty, omission or default by the Buyer.
28.5. The Buyer may at any time, without notice to the Supplier, offset any liability of the Supplier to the Buyer against any liability of the Buyer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement or otherwise including, but not limited to, under any other Agreement between the parties. 28.6. Any exercise by the Buyer of its rights under Clause 28 shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
29. Services - Status and Supplier personnel liabilities
29.1. It is expressly understood that neither the Supplier nor the Supplier Personnel have the authority to act as agent for the Buyer or to contract on the Buyer’s behalf;
29.2. The Supplier Personnel shall at no time be deemed to be employed or otherwise engaged by the Buyer. 29.3. The income tax (Construction industry scheme) Regulations 2005 No. 2045 ("CIS") apply to this Agreement.
29.4. The Supplier shall be responsible for paying the Supplier Personnel and for making any deductions required by law in respect of income tax and National Insurance contributions or similar contributions relating to the provision of the services, including CIS deductions where appropriate. The Supplier agrees to indemnify the Buyer in respect of any claims that may be made by the relevant authorities against the Buyer in respect of tax demands or National Insurance or similar contributions, including CIS deductions where appropriate, relating to the provision of the services by the Supplier.
29.5. The Supplier shall, and shall procure that the Supplier Personnel shall, comply with all applicable statutes, rules and regulations in providing the services, including all immigration and employment requirements imposed by any applicable jurisdiction, and the Supplier shall indemnify and hold harmless the Buyer from damages arising out of any failure to do so.
29.6. The Supplier shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery, anti-slavery and anti-corruption practices, and the Supplier shall indemnify and hold harmless the Buyer from damages arising out of any failure to do so. 29.7. The Supplier shall procure that the Supplier Personnel take all reasonable steps to safeguard their own safety and the safety of any other person who may be affected by their actions, and the Supplier shall indemnify the Buyer and in addition will adequately insure against all and any liabilities, obligations, costs and expenses whatsoever arising from any loss, damage or injury caused to the Buyer or any third party by the Supplier or the Supplier’s Personnel.
30. Services - Indemnity and insurance
30.1. The Supplier agrees to indemnify the Buyer against all claims, costs and expenses which the Buyer may incur and which arise, directly or indirectly, from the Supplier’s breach of any of its obligations under this Agreement.
30.2. Without prejudice to the Supplier’s obligation to indemnify the Buyer, the Supplier shall for the duration of the service take out and maintain the following insurances:
30.2.1 Insurance in respect of claims for personal injury to or the death of any person under a contract of service or apprenticeship with the Supplier arising out of and in the course of that person’s employment. Such insurance shall comply with the requirements of the Employer’s Liability (Compulsory Insurance) Act 1969 and any amendment or re-enactment thereof. The level of insurance shall be set out in the Purchase Order, or if not set out therein, will be a minimum indemnity of not less than five million pounds (£5,000,000) in respect of any one occurrence. The Buyer’s interest must be noted by the insurance provider.
30.2.2 Insurance in respect of claims for personal injury to or death of any other person or in respect of loss or theft of or damage to any property. Such insurance is to be for a limit of indemnity of not less than the level set out in the Purchase Order for each and every claim and if not set out in the Purchase Order, no less than five million pounds (£5,000,000) in respect of any one occurrence. The number of claims is to be unlimited in the period of insurance and the Buyer is to be named as joint insured.
30.2.3 Insurance against loss or theft of or damage to the Works shall be to their full reinstatement value, unfixed materials and goods delivered to, placed on or adjacent to the site and for use in connection therewith. Such insurance shall also extend to insurance of the Supplier’s site huts, plant and equipment and in all cases shall be taken out in the joint names of the Supplier and the Buyer. The Supplier shall maintain such insurance from the commencement of the service until the Buyer certifies satisfactory completion of the Works.
30.2.4 Where the Works either in whole or in part involve the Supplier in design, specification, ground investigation or the provision of similar services, professional indemnity insurance with a limit of indemnity of not less than the level specified in the Purchase Order, or, where such level is not specified, at a reasonable and proper level having regard to the value of the Works. The Supplier shall maintain such insurance from the commencement of the Works until 12 years after the Buyer certifies satisfactory completion of the Works.
30.3. The Supplier shall produce such evidence as the Buyer may reasonably require that the insurances referred to in clause 30.2 have been taken out and are in force at all material times.
31. Services – Default
31.1. The Buyer may terminate this Agreement by providing written notice to the Supplier if any of the following events occur, such events shall be treated as default:
31.1.1 the Supplier or the Supplier Personnel commit any material or persistent breach of this Agreement;
31.1.2 The Supplier, without reasonable cause makes default by failing to proceed diligently with the Works or by wholly or substantially suspending the carrying out of the Works before satisfactory completion or by failing to comply with the requirements of the CDM Regulations;
31.1.3 the Supplier fails to or refuses to procure that the Supplier Personnel provide the services properly required of them in accordance with this Agreement;
31.1.4 the Supplier or any person employed by him or acting on his behalf, in relation to this or any other such contract, shall have committed an offence under the Bribery Act 2010 or, where the superior contract is with a public authority, shall have given any fee or reward the receipt of which is an offence under s.117 (2) of the Local Government Act 1972;
31.1.5 the Supplier passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
31.1.6 the Supplier ceases to carry on its business or substantially the whole of its business;
31.1.7 the Supplier or Supplier’s Personnel uses against the Buyer or any person employed by him actual or threatened violence or behaviour which provokes violence; or
31.1.8 the Supplier is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
31.2. In the event of clauses 31.1.1 to 31.1.3, the Buyer may give notice to the Supplier specifying the default and requiring it to be rectified. If the default is not rectified within three (3) days of the receipt of the notice the Buyer may by further notice to the Supplier terminate the employment of the Supplier under the Purchase Order. Such termination shall take effect on the date of the receipt of this further notice.
31.3. In the event of clauses 31.1.4-31.1.6 the Buyer may by notice to the Supplier immediately determine the employment of the Supplier under the Purchase Order. Such determination shall take effect on the date the Buyer gives such notice.
31.4. In the event of clause 31.1.7 the Buyer may give notice to the Supplier specifying the incident and requiring that the Supplier immediately take action to remove the person(s) who used actual or threatened violence or provocative behaviour from the site. The said person shall not be allowed to return to site without the consent of the Buyer. The employment of the Supplier shall be determined with immediate effect if the response of the Supplier is not in accordance with that specified in this clause 31.4.
31.5. Upon determination of the employment of the Supplier under this clause 31 the Supplier shall prepare an account setting out the total value of work properly executed and materials and goods properly brought to the site for the purpose of the Works, such value to be ascertained in accordance with this Agreement.
31.6. After taking into account amounts previously paid to the Supplier under this Agreement, and subject to clause
31.7 and any Retention provisions, the Buyer shall pay to the Supplier the full amount properly due in respect of this account within thirty days of the later of its submission by the Supplier, the completion of the Works or the making good of any defects therein.
31.7. The Buyer may recover from the Supplier the additional costs of completing the Works, any expenses properly incurred by the Buyer and any direct loss and/or damage caused to the Buyer, as a result of determination under clause 31. Such costs and expenses may be offset against any sums due to the Supplier under this Agreement.
31.8. In the event of the Supplier’s insolvency:
31.8.1 the Supplier’s obligations under the Purchase Order shall be suspended and the Buyer may take reasonable measures to ensure that the sub-contract works and materials are adequately protected and retained on site. The Supplier shall allow and shall not hinder or delay the taking of those measures;
31.8.2 the Buyer may employ and pay other persons to carry out and complete the Works and/or design and to make good any defects and he and they may enter upon and take possession of the Works and, subject to obtaining any necessary third party consents, may use all the Supplier’s temporary buildings, plant, tools, equipment and site materials for these purposes. Such buildings, plant, tools, equipment and materials shall be removed from site by the Supplier if the Buyer so requires, and not before;
31.8.3 The Supplier shall provide copies of all design documents to the Buyer;
31.8.4 The Supplier shall assign, so far as is assignable and so far as he may lawfully be required to do, to the Buyer, the benefit of any agreement for the supply of materials or goods and/or the execution of any work for the purposes of the Purchase Order, without charge to the Buyer.
31.9. The provisions of this clause 31 are without prejudice to any other rights and remedies that the Buyer may possess.
32. Services - Sub-Contracting and Assignment
32.1. The Supplier will not sub-contract the design (if applicable) or construction of the Works or any part thereof nor assign the benefit of this Agreement or any part thereof without first obtaining the written consent of the Buyer.
32.2. Notwithstanding any other provision of this Agreement or any provision implied by law the Supplier will remain liable under this Agreement for all design and/or work sub-contracted and for any act, default or neglect of any Supplier or any Supplier’s personnel, agents or servants.
33. Services - Intellectual Property Rights
33.1. All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Buyer, and the Supplier shall do all that is reasonably necessary to ensure that such rights vest in the Buyer by the execution of appropriate instruments or the making of agreements with third parties.
34. Services - Advertisements and Confidentiality
34.1. The Supplier undertakes that it will keep confidential and will not, at any time during the provision of services and for 6 years after the date on which the Agreement terminates for whatever reason, disclose to any person any Confidential Information except as permitted by this clause 34.
34.2. The Supplier will ensure that its employees, officers, representatives or advisers to whom it discloses Confidential Information comply with this clause.
34.3. The Supplier will not use confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
34.4. The Supplier may disclose Confidential Information:
34.4.1 to its employees, officers, representatives or advisers to the extent that they need to know such information for the purposes of performing the Supplier’s obligations under the Agreement; or 34.4.2 as may be required by applicable laws, a court of competent jurisdiction or any governmental or regulatory authority.
34.5. Advertisements and/or other sign boards will not be displayed at the site by the Supplier without the Buyer’s written authority and then only of a size and in a position as directed by the Buyer. 3
4.6. The Supplier shall not, without the prior written approval of the Buyer take or permit to be taken any photographs of the Works for use in any publicity or advertising or publish alone or in conjunction with any other person, any articles, photographs or other illustrations relating to the Works or any part thereof. The Supplier shall not, without the prior written approval of the Buyer, impart to any publication, journal or newspaper or radio or television programme any information regarding the Works.
35. Services – Third Parties
35.1. The Supplier shall enter into collateral warranties with third parties in accordance with the Buyer’s requests in so far as and to the extent that such requests are notified to the Supplier.
35.2. The Buyer and Supplier hereby agree that, notwithstanding any other provision of the Agreement, the Agreement shall not purport to confer on any third party any right to enforce any term of the Agreement for the purpose of the Contracts (Rights of Third Parties) Act 1999. 36. Services – Limitation
36.1. The provisions of Section 5 of the Limitation Act 1980 do not apply to this agreement and neither the Supplier nor the Buyer will rely upon a defence pleading Section 5 of the Limitation Act 1980 in any proceedings commenced under this agreement nor will they contend in any proceedings or otherwise that this agreement is subject to a limitation period of 6 years.
36.2. Further to clause
36.1, this agreement however signed takes effect as a deed. For the avoidance of doubt the time for bringing proceedings in respect of this agreement is extended to 12 years from the date of satisfactory completion or abandonment of the Works.
37. Services - Dispute Resolution and Adjudication
37.1. If any dispute shall arise between the Buyer and the Supplier either party shall give notice to the other specifying the nature of the dispute and the parties shall agree a date and time to meet and seek to resolve the issue(s). 37.2. If following the steps referred to in clause.
37.1 the dispute has not been resolved, either party may refer the dispute to the adjudication of such person as the parties may agree to appoint as adjudicator, or failing such agreement, as may be appointed by the Royal Institution of Chartered Surveyors.