The Contract contains the following defined terms:
- means the party named as the Client in the Agreement;
- means the contract between the Client and the Service Provider comprising of the Agreement signed on behalf of the Client and the Service Provider, these Terms & Conditions and the numbered Schedules and any documents identified in the Schedules as being comprised in the Contract;
- “Contract Price”
- means the fees and expenses payable for the Services in accordance with the Contract;
- “Initial Period”
- means the initial period of the Contract specified in the Agreement;
- “Intellectual Property”
- means all and any rights and interests in registered or unregistered trademarks, patents, designs, copyright, inventions, applications, know-how, formulae, processes, software programmes or other intellectual property (in whatsoever form including written or digital form);
- “Ordered Services”
- means Services not included in Routine Services that are carried out by the Service Provider at the request of the Client;
- “Routine Services”
- means the Services of a routine nature described in Part 1 of Schedule 1 (as from time to time varied by agreement);
- means the services (including Routine Services and Ordered Services) to be provided by the Service Provider under the Contract;
- means any property owned or controlled by the Client where Services are to be performed.
2. SCOPE OF CONTRACT
2.1 – The Service Provider shall carry out the Services in accordance with the Contract.
2.2 – In consideration of the Service Provider performing the Services, the Client shall pay the Service Provider the Contract Price in accordance with the Contract.
2.3 – The Services comprise: (a) Routine Services details of which at the date of the Contract are set out in Schedule 1 and (b) Ordered Services which shall be provided on a call off basis and for which a Purchase Order in the form contained in Schedule 4 shall be issued and signed on behalf of the parties.
2.4 – Whenever the Client requires any Ordered Services it shall comply with the procedure in Clause 8.3 and any variation to any Services shall be dealt with in accordance with Clause 9.
3.1 – The Contract shall commence on the commencement date specified in the Agreement for a 12 month period, after which time the service will continue to rollover on a month by month basis.
4. SERVICE PROVIDER’S GENERAL OBLIGATIONS
4.1 – The Service Provider shall carry out the Services to the reasonable satisfaction of the Client.
4.2 – The Service Provider shall comply with all reasonable directions given by the Client or its duly authorised representative.
4.3 – The Service Provider shall throughout the performance of the Services have full regard for the safety of all persons lawfully on the Site.
4.4 – The Service Provider shall take appropriate steps to ensure that the goods, equipment, consumables and materials used by it or any sub-contractor in connection with the provision of the Services are:
(a) Maintained in a safe, serviceable and clean condition in accordance with Good Industry Practice; and
(b)In compliance with any relevant rules, regulations, codes of practice and/or British or European Standards.
5.1 – The Service Provider shall take reasonable steps to ensure that personnel engaged by it on the Services are suitably qualified, experienced and competent to perform the tasks entrusted to them.
5.2 – The Service Provider shall take reasonable steps to ensure that its employees and sub-contractors comply with all legislation, regulations and directives relating to health and safety, welfare, pollution and noise (including health and safety policies and procedures which have been prepared by or on behalf of the Client and made available to the Service Provider).
5.3 – If any of the Service Provider’s personnel or sub-contractors commit any breach of any law, regulations or code of conduct or misconduct themselves in any way, the Service Provider shall take appropriate disciplinary measures. If required by the Client, the Service Provider shall promptly remove any such individual and engage a replacement at the Service Provider’s expense.
6. CLIENT OBLIGATIONS
6.1 – The Client shall give the Service Provider and all personnel engaged by it access to each Site in order to enable the Services to be performed in accordance with the Contract.
6.2 – The Client acknowledges that, as between the Client and the Service Provider, the Client has primary responsibility for the conduct of the residents and other occupiers at each Site and will ensure that where necessary the Service Provider has:
(a)Uninterrupted access so far as practicable for the performance of the Services,
(b)Secure arrangements for storing equipment and materials and
(c)Access to an on-site manager to deal with any problems that might arise.
6.3 – To the extent that the Service Provider is disrupted or delayed in the performance of any scheduled Services, the Client may be liable for additional fees for the extra time and expense incurred by the Service Provider.
6.4 – The Client shall provide the Service Provider in good time with all information reasonably required by the Service Provider to enable it to perform its duties including, but not limited to, copies of any rules, regulations and codes of conduct applying at each Site. Further, the Client shall immediately notify the Service Provider of any event or circumstances which may delay or disrupt any of the Services.
7. REPRESENTATIVES AND CO-OPERATION
7.1 – The Service Provider and the Client shall each designate an individual as its representative and principal point of contact for the purposes of the Contract. The names of the first representatives are in Schedule 3.
7.2 – The parties and their representatives shall act in a co-operative manner in good faith and in the spirit of mutual trust and respect. To this end the Client and the Service Provider agree they will each give to, and welcome from, the other, feedback on performance and will draw each other’s attention to any difficulties and will share information openly, at the earliest practicable time. They will support collaborative behaviour and confront behaviour that does not comply with these principles.
8. PURCHASE ORDERS
8.1 – Ordered Services. If the Client requires any Services of a non-routine nature not included in the Routine Services it shall notify the Service Provider by completing a draft Purchase Order using the form in Schedule 4 and send this to the Service Provider. Within 5 working days of receipt the Service Provider shall return the draft Purchase Order with any changes that it requires. If these are not acceptable to the Client the parties shall endeavour to reach agreement and, once this is achieved, the Purchase Order in the agreed terms shall be signed on behalf of both parties. If the Service Provider is unwilling or unable to provide the services requested in the draft Purchase Order it shall so inform the Client as soon as possible and in any event within five working days of its receipt. In those circumstances the Client may engage another contractor to perform the requested services but the Client shall ensure that that contractor does not disrupt any of the Services under the Contract.
8.2 – In an emergency, the Service Provider may, if so instructed by the Client or its representative, carry out necessary additional services without a Purchase Order and within three days either the Client or the Service Provider shall confirm the instruction in writing and a Purchase Order will be signed retrospectively.
8.3 – To avoid doubt (a) all Ordered Services shall be priced using the rates in Schedule 2 (as from time to time adjusted) unless otherwise agreed in writing and (b) any change to any Ordered Services shall be dealt with applying the procedure in clause 9.
8.4 – If any categories of work are identified as ‘exclusive’ in Part 2 of Schedule 1, the Client shall give the Service Provider a first option to provide such work as an Ordered Service in accordance with Clause 8.1 before appointing another contractor.
9.1 – If the Client wishes to alter, add to or reduce any of the Routine Services or change any of the Ordered Services it will give notice to that effect to the Service Provider.
9.2 – The Service Provider shall, within five 5 working days of receiving the notice, provide the Client with a statement in writing showing any proposed change to the Contract Price and the effect (if any) upon the programme for the Services. The Client will then notify the Service Provider whether or not it accepts the Service Provider’s proposal. The Client may require further information from and/or negotiations with the Service Provider before making its decision. No change shall be put into effect by the Service Provider unless a written instruction is given to the Service Provider by the Client. If the instruction is issued without agreement on any change to the Contract Price, the matter will be finally resolved under Clause 21.
9.3 – The Service Provider shall notify the Client if it encounters any difficulties beyond its reasonable control which either (a) are attributable to any act or omission of the Client (or any third parties for which the Client is responsible) or (b) it could not have reasonably foreseen when entering into the Contract or any Purchase Order and in those circumstances, the Service Provider will be entitled to a fair and reasonable adjustment to the Contract Price and/or programme.
9.4 – To avoid doubt, any reduction in the scope of Routine Services will entitle the Service Provider to recover any reasonable costs and expenses (including but not limited to redundancy payments and cancellation fees) that it incurs as a consequence of the reduction. However, the Client may not reduce the Routine Services by more than 25% in monthly value without also paying a reasonable amount as compensation to the Service Provider for loss of anticipated profit.
10. INSPECTION AND REPORTS
10.1 – The Client may from time to time inspect the Routine Services and any deficiencies will be reported initially to the parties’ representatives for consideration and rectification by the Service Provider.
10.2 – When any Ordered Services are completed and ready for inspection, the Service Provider shall notify the Client who shall inspect the same. If any errors or defects are found by the Client, the Service Provider will, if required by the Client, promptly re-perform the relevant part of the Services at its own cost. Pending acceptance, the Client will not be obliged to pay the final invoice for those Ordered Services unless the Service Provider objects, in which case the matter will be resolved under Clause 21.
10.3 – Any incident that affects or is likely to affect any of the Services shall promptly be notified by each party to the other and the representatives shall then meet at the request of either of them to review and resolve any difficulties.
10.4 – Any incident involving personnel of the Service Provider and/or any resident, visitor or staff at any Site shall be reported in full and investigated by both parties as a matter of urgency.
11. PRICE AND PAYMENT
11.1 – Services shall be paid for in accordance with Schedule 2. Unless otherwise stated in Schedule 2, Routine Services shall be invoiced and paid monthly in arrears. Ordered Services shall be paid on completion of the Services unless otherwise shown in the relevant Purchase Order.
11.2 – At the appropriate times the Service Provider shall submit an invoice to the Client for the amount due in respect of the Services to which the invoice relates. The statement shall be accompanied by relevant supporting documents as reasonably required by the Client (including, when relevant, time records of personnel and receipts or vouchers for recoverable expenses).
11.3 – The date for payment of each invoice shall be 28 days after the receipt of the invoice unless otherwise stated in Schedule 2 (or relevant Purchase Order).
11.4 – The Client shall not be entitled to make any deduction from any amount properly invoiced. If the Client considers it has grounds for refusing to pay any invoice in full, it shall give notice to the Service Provider within 7 days of receipt of the invoice together with the reasons. If agreement is not reached by the payment date, the matter will be resolved in accordance with Clause 21 and pending resolution, the Client will pay the invoiced amount in full.
11.5 – Prices in the Contract are exclusive of VAT unless otherwise stated and, when applicable; VAT will be included in the Service Provider’s invoices and paid by the Client.
11.6 – If the Client is more than 14 days late in making any payment that is properly due to the Service Provider, the Service Provider will be entitled to charge interest on the outstanding sums at the rate of 4% p.a. above the Bank of England base rate calculated on a daily basis from the due date until the date of actual payment.
11.7 – The rates and prices set out in Schedule 2 shall be subject to adjustment on each anniversary of the commencement date of the Contract applying the formula in Schedule 2 but no downward adjustment shall be made using that formula.
12.1 – The Service Provider warrants to the Client that it will exercise reasonable skill and care in performing the Services.
12.2 – All Services provided by the Service Provider shall meet the reasonable requirements of the Client as identified in the Contract.
13.1 – The Client has the right to suspend all or part of the Services at any time if it is impractical for them to be continued. Upon receipt of the Client’s written notice of suspension (with reasons) the Service Provider shall immediately cease work on the suspended Services. The Service Provider will be entitled to invoice for work carried out up to the date the Services are suspended and to charge the Client for any costs and expenses incurred during the period of suspension to the extent that these cannot be avoided or mitigated by the Service Provider.
13.2 – The Client may at any time require the suspended work to be resumed by giving written notice to the Service Provider and the Service Provider shall then promptly resume execution of the Services on receipt of the notice.
13.3 – If suspension of all or most of the Services continues for more than three months, either party may give 14 days notice to terminate the Contract.
14.1 – The Client may terminate the Contract at any time by giving three (3) months written notice to the Service Provider if the Service Provider commits a material breach of the Contract and, in the case of a breach capable of remedy, fails to remedy the breach within 21 days of being required to do so in writing.
14.2 – The Service Provider may terminate the Contract by giving 3 (three) months written notice to the Client, if the Client fails to make any payment properly due under the Contract within 30 days of the due date or commits any other material breach of the Contract.
14.3 – Either party may terminate the Contract if the other party becomes insolvent or goes into liquidation (except for purposes of reconstruction while solvent) or becomes unable to pay its debts or has a receiver or administrative receiver appointed over any of its business or any comparable action is taken in relation to the Client or the Service Provider in any jurisdiction.
14.4 – Upon termination the Service Provider shall cease all Routine Services and arrange an orderly hand-over to the Client or to another contractor appointed by the Client. If at the termination date there are any uncompleted Ordered Services, the Client may either require the Service Provider to complete them in accordance with the Purchase Order or may appoint another contractor to do so.
14.5 – Upon termination the Service Provider shall be entitled to be paid for all Services carried out up to the termination date and (unless the Contract was terminated by the Client under Clause 14.1 or 14.3) a reasonable sum for its costs and expenses in handing over the Services and for any demobilisation costs it incurs. In addition, termination by the Service Provider under Clause 14.2 or 14.3 will entitle the Service Provider to loss of profit for the unexpired Contract period.
14.6 – If the Contract is terminated by the Client under Clause 14.1 or 14.3, the Client may withhold any money owing to the Service Provider until the Services have been completed by the Client or another party and may deduct from any such amount all additional costs reasonably incurred by the Client.
14.7 – Termination shall be without prejudice to the accrued rights and remedies of the parties at the termination date.
15. INTELLECTUAL PROPERTY
15.1 – The Intellectual Property in the documents, designs, applications, data and software provided by the Client or the Service Provider shall remain the sole property of that party and the other party shall have a licence to use the same solely for the purposes of the Services while the Contract continues.
16.1 – Each of the parties shall take out and maintain their own insurances for the duration of the Contract.
16.2 – The Service Provider shall ensure that it has in place at all times suitable and valid insurances which shall include, but not be limited to, public liability insurance and employer’s liability insurance
16.3 – The Client shall ensure that it has in place at all times suitable and valid insurances which shall include, but not be limited to, public liability insurance and employer’s liability insurance
16.4 – Evidence of such insurances shall be provided by each party to the other whenever reasonably requested
17. LIABILITY AND INDEMNITY
17.1 – The Service Provider is not liable for any loss or damage suffered by the Client which results from the Client’s failure to follow any specific instructions given by the Service Provider in relation to the services provided.
17.2 – Nothing in these Terms and Conditions shall limit or exclude liability in the case of fraud by the defaulting party nor in the case of personal injury or death for which a party is responsible.
17.3 – Neither party shall be liable to the other in contract, tort or otherwise for any loss of profit, loss of contracts or for any indirect or consequential loss or damage which may be suffered by the other party in connection with the Contract except as expressly provided.
17.4 – The Service Provider shall indemnify the Client against any costs, liability, damages, loss, claims or proceedings arising out of the Service Provider’s negligent provision of the Services, or the failure to render them, or any other breach of these Terms and Conditions.
17.5 – The Client shall indemnify the Service Provider against any costs, liability, damages, loss, claims or proceedings arising out of the Client’s failure to meet any of its obligations or any other breach of these Terms and Conditions.
18. FORCE MAJEURE
18.1 – Neither party shall be liable for any failure or delay in performance to the extent caused by causes beyond its reasonable control, including, without limitation, labour disputes, fire, flood, weather or natural disasters, terrorism, riot, damage to facilities, epidemics or the conduct of third parties (“Force Majeure”).
18.2 – If Force Majeure continues for more than 90 days, either party may give 30 days written notice to terminate the Contract.
19. CONFIDENTIALITY AND PUBLICITY
19.1 – Neither party shall disclose to any third party any confidential, trade secret or proprietary information belonging to the other party, whether the information is disclosed orally or in writing or in digital form. The parties acknowledge that all information relating to their respective businesses shall be treated as confidential information as shall the terms and conditions of the Contract. The obligations in this Clause will survive the expiry or termination of the Contract
19.2 – The confidentiality obligations shall not extend to information which:
(a)Becomes public knowledge other than through a breach of clause 19.1; or
(b)Is already in the possession of the recipient; or
(c)Is required to be disclosed to any regulatory authority, order of the court or by law.
19.3 – The Service Provider shall not make public or issue any press release or information relating to the Contract or the Services without the prior written consent of the Client, not to be unreasonably withheld.
20. ASSIGNMENT AND SUB-CONTRACTING
20.1 – Neither party shall assign any of its interests under the Contract without the prior written consent of the other party.
20.2 – The Service Provider shall be entitled to sub-contract any of the Services but subcontracting shall not relieve the Service Provider of any of its obligations to the Client under this Contract.
21. DISPUTES & GOVERNING LAW
21.1 – The parties will endeavour to settle any dispute that arises by direct negotiation between their managing directors or similar senior executives but if direct negotiation does not result in a resolution of the dispute, either Party may require that it be referred to mediation in accordance with the CEDR (Centre for Effective Dispute Resolution) Mediation Rules.
21.2 – To the extent that any of the Services comprise ‘construction operations’ within the meaning of Part Two of the Housing Grants Construction and Regeneration Act 1996 (or any revised legislation) a dispute may on the application of either party be referred to adjudication in accordance with the CEDR (Centre for Effective Dispute Resolution) Adjudication Rules. The decision of the adjudicator will be final and binding on the parties unless a notice of dissatisfaction is served by either party on the other within 28 days of the decision. Further, the parties may agree to refer any other dispute to adjudication in accordance with this Clause.
21.3 – Any dispute that is not settled by mediation within 45 days of a reference to mediation (or any longer period agreed by the parties) or by adjudication shall be finally determined by the courts of England and Wales.
21.4 – The Contract shall be governed by and interpreted in accordance with English law.
22.1 – Any notice under the Contract shall be delivered by hand, by facsimile, or by first class recorded delivery mail to the other party.
22.2 – Notice delivered by mail shall be treated as delivered 2 (two) working days after posting. Notice delivered by hand or by facsimile shall be treated as delivered on the day of delivery unless this is after the normal working hours of the recipient, in which case delivery shall be treated as occurring on the next working day.
22.3 – The address of each party for service of notices is the address shown in Schedule 3 unless this is changed by notice given under this clause.
22.4 – Day-to-day communications may be made by e-mail but any notice referred to in these Terms and Conditions, if sent initially by e-mail, must be confirmed by hand delivery, facsimile or recorded delivery mail as set out in Clause 22.1 and 22.2.
23.1 – Entire Agreement – The Contract constitutes the entire agreement between the parties in respect of its subject matter and supersedes all previous agreements, understandings and negotiations between them.
23.2 – Non-Waiver – No waiver by either party of any breach of contract by the other shall be considered as a waiver of any subsequent breach.
23.3 – Validity – If any provision of the Contract becomes void or unenforceable, it shall not affect the validity of the other provisions of the Contract. The parties shall replace the part affected with one expressing similar legal and economic intent, insofar as possible.