Terms & Conditions
1. Definitions and interpretation
The following terms shall have the following meanings for the purposes of this agreement:
- ‘Base Rate’ means the Bank of England’s base rate applicable at the relevant date
- ‘CDM Regulations’ means the Construction (Design and Management) Regulations 2015.
- ‘Commencement Date’ means the date set out in the Purchase Order
- ‘Completion Date’ means the date as set out in the Purchase Order, as may be revised from time to time;
- ‘Construction Phase Plan’ means the construction phase plan for this Contract as attached to the Purchase Order
- ‘Contract’ shall mean the contract between Createability and the Contractor, which comprises the following documents: the Purchase Order, these terms and conditions, the Programme, the Site Protocol and all attachments schedules drawings and specifications referred in the Purchase Order and terms and conditions of Createability. Inconsistencies between the attachments schedules drawings and specifications, Purchase Order, and the terms and conditions of Createability shall result in the terms of the Purchase Order and terms and conditions of Createability taking precedence.
- ‘Contractor’ means the person, firm or company set out in the Purchase Order and its employees, agents or consultants
- ‘Createability’ means the firm set out in the Purchase Order
- ‘Date of Practical Completion’ means the date certified by the Project Manager that all the Works are completed other than minor matters, which the Contractor puts right during the defects liability period.
- ‘Defects Liability Period’ means the period of 12 months following the Date of Practical Completion
- ‘Insolvency Event’ means becoming insolvent, bankrupt or entering into or making a proposal to enter into an arrangement for the benefit of creditors, or any similar arrangement, or where any distress or execution is levied on goods
- ‘Notice’ means a notice in writing, which is delivered personally or sent by first class or airmail prepaid post or by telex, cable or facsimile transmission ;
- ‘Programme’ means the schedule (if any) for the completion of the stages of the Works and the scheme of Payments at the intervals as set out or attached to the Purchase Order
- Project Manager: means the project manager appointed by Createability to administer and manage the Contract and the Works. ‘
- ‘Purchase Amount’ means the sum in sterling payable to the Contractor for completion of the Works exclusive of Value Added Tax as set out in the Purchase Order, as may be revised from time to time
- ‘Purchase Order’ means the purchase order sent by Createability to the Contractor stating the Works required and together with these terms and conditions forming the basis of the Contract
- ‘Payments’ means the amounts listed in the Schedule set out in the Purchase Order Documentation
- ‘Retention’ means the percentage of sums due withheld as set out in the Purchase Order
- ‘Site’ means the location where the Works are to be performed as set out in the Purchase Order
- ‘Site Protocol’ means the Createability site protocol currently in existence at the time of the Contract
- ‘Stages’ means each individual stage of the Programme usually (but not necessarily) indicative of a milestone event in the completion of the Works
- ‘Stage Completion Date’ means the date for completion for an individual Stage as specified in the Programme, as may be revised from time to time
- ‘Term’ means the period which starts on the Commencement Date and ends on the last day of the Defects Liability Period
- ‘Works’ means the provision of all services and/or materials (as specified) to comply with the Works set out in the Purchase Order
Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the clauses to which they relate.
Where either party comprises more than one person or entity, each member shall be joint and severally liable.
The neuter singular gender throughout this agreement shall include all genders and the plural and the successor in title to the parties.
2. Appointment of Contractor
- Createability appoints the Contractor to perform the Works by the Completion Date in return for the Purchase Amount.
- Insofar as the parties are bound by the Housing Grants, Construction and Regeneration Act 1999 (as amended), they agree that this Contract complies with its minimum terms on payment and adjudication.
- Payment for the works is made in accordance with the value of works complete The Contractor shall submit to Createability an invoice on completion of each stage of the Programme, together with any supporting documents that are reasonably necessary to check the invoice. The invoice and supporting documents (if any) shall specify the sum that the Contractor considers will become due on the payment due date in respect of the instalment of the price, and the basis on which that sum is calculated. The Contractor to submit an application for payment prior to the end of each calendar month for the works that have been completed in that month.
- Payment shall be due on the date Createability receives each invoice (the “Due Date for Payment”).
- No later than five (5) days after payment becomes due, Createability shall notify the Contractor of the sum that Createability considers to have been due at the payment due date in respect of the payment and the basis on which that sum is calculated (“Payment Notice”)
- Createability shall notify the Contractor of any lesser sum no later than 1 day before the Final Date for Payment as defined in clause 3.6 below (“Pay Less Notice”). Any Pay Less Notice shall specify:
(a) the sum that Createability considers to be due on the date the Pay Less Notice is served; and
(b) the basis on which that sum is calculated.
- The final date for payment shall be 30 days net after the Due Date for Payment (“Final Date for Payment”).
- Unless Createability has served a Pay Less Notice under clause 3.6, it shall pay the Contractor the sum referred to in Createability’s notice under clause 3.5 (or, if Createability has not served notice under clause 3.5, the sum referred to in the invoice referred to in clause 3.3) (in this clause 3, the notified sum) on or before the Final Date for Payment of each invoice. If Createability fails to pay an amount due to the Contractor on or before the Final Date for Payment and fails to give a Pay Less Notice, simple interest shall be added to the unpaid amount from the final date for payment until the actual date of payment, calculated on a daily basis at the annual rate of 5% above the Base Rate. The parties acknowledge that Createability’s liability under this clause 1.8 is a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998.
- Createability reserves the right to withhold, and release, Retention as set out in the Purchase Order.
4. The Works
- The Contractor shall carry out and complete the Works for Createability and in relation to a Contract for the supply of services and/or materials only and/or goods and services together with all necessary works.
- The Contractor shall carry out and complete its work in accordance with this Contract, in a good and thorough and workmanlike manner and diligently, using new materials of a good and suitable quality complying with any applicable consents or regulatory body’s requirements, legislation, standards or codes of practice, and any plans and / or specifications or other documents annexed to this Contract. Where and to the extent that approval of quality of materials and standards of workmanship is a matter for the opinion of the Project Manager such materials and workmanship shall be to the reasonable satisfaction of the Project Manager.
- Within 14 days of completion of the Works, the Contractor shall provide a full set of as built drawings, instruction manuals, guarantees and similar to Createability If the Contractor fails to do this, Createability will be entitled to withhold the relevant percentage of any sums due until such time as the full set of required documents is provided as may be set out in the Purchase Order.
- The Contractor shall attend any progress meeting requested by Createability on 72 hours’ notice unless noted otherwise in the Purchase Order in order to discuss and resolve any potential issues concerning the Works, resourcing / labour or progress,
- The Contractor shall attend any emergency meetings requested by Createability on 24 hours’ notice where the situation demands an urgent response, whether for a matter of safety or otherwise.
- The Contractor shall not at any time during or after the Term without the prior written consent of Createability:
divulge or allow to be divulged to any person or make use of any confidential information relating to the business or affairs of the Createability other than to persons who have signed a secrecy undertaking in a form approved by the Createability or to disclose the existence of the Contract in any publicity material or other similar communication to third parties
- permit any person to assist in the provision of the Works unless such person has signed such an undertaking.
- photograph Createability’s equipment, installations or property or the Site or the Works without Createability’s prior written consent.
- The Contractor agrees that during the Works and for a period of 12 calendar months after Practical Completion it shall not compete with Createability, or solicit or accept any order for the provision of works or services, which are the same as, or similar to any service to which the Contract relates without Createability’s written consent.
- The Contractor agrees to procure that any sub-contract it enters into shall include an equivalent term to clause 5.2 or such lesser restrictions, which will (in the opinion of Createability’s legal advisers) ensure that such agreements are valid and enforceable.
6. Intellectual property
The Contractor agrees not to cause or permit anything, which may damage or endanger the intellectual property of the Createability or Createability’s title to it or assist or allow others to do so.
7. Subcontracting and collateral warranties
- The Contractor shall seek Createability’s prior written consent before sub-contracting any duties or obligations arising under this Contract.
- Within 14 days of Createability’s request, the Contractor shall if required by the Purchase Order provide a collateral warranty in favour of any third party for whom Createability is obliged to procure such a collateral warranty. If the Contractor fails to do this, Createability will be entitled to withhold 10% of any sums due until such time as any collateral warranty is provided.
- The Contractor agrees to indemnify and keep indemnified Createability from and against any and all loss damage or liability (whether criminal or civil) suffered and legal fees and costs incurred by Createability resulting from a breach of this agreement by the Contractor including:
- any act neglect or default of the Contractor’s employees or agents; or
- breaches in respect of any matter arising from the supply of the Works resulting in any successful claim by any third party.
The Contractor agrees to maintain at its own cost:
- employer’s liability insurance in the minimum sum of £10,000,000
- public liability insurance in the minimum sum of £5,000,000
in both cases to cover the liability of the Contractor in respect of any act or default for which it may become liable to indemnify Createability under the terms of this Contract.
- The Contractor shall insure the Works where specified in the Purchase Order to the full replacement cost in the joint names of Createability and the Contractor and all materials, goods and equipment required in relation to the Works against risks of loss or damage by fire, storm, tempest, earthquake, lightning, explosion, riot, civil commotion, malicious damage, impact by vehicles and by aircraft and articles dropped from aircraft (other than war risks, flood damage and bursting and overflowing of water pipes and tanks) and such other risks, whether or not in the nature of the foregoing, as Createability acting reasonably may request
- The Contractor shall produce to Createability a copy of these insurance policies together with evidence of payment of premiums within 7 days of request by Createability. Any failure to do shall result in Createability retaining 25% of any sums assessed to be due and Createability shall be entitled at its absolute discretion to take out the required cover and deduct the costs from any sums due to the Contractor.
10. Notice by Contractor
The Contractor agrees:
- To comply with the terms of any Notice specifying a breach of the provisions of this agreement and requiring the breach to be remedied so far as it may be but nothing in this clause is intended to require Createability to serve notice of any breach before taking action in respect of it.
- To give immediate notice to Createability once the Contractor is aware of any accident or damage that is likely to be the subject of a claim under the Contractor’s insurance policies or such insurance policy of Createability (irrespective of whether the Contractor is aware of the existence of such policies of insurance).
11. Site Obligations
- The Contractor shall comply with the Site Protocol, including any client required protocols/rules.
12. Completion of the Works
- The Contractor shall start the Works on the Commencement Date and complete the Works on or before the Completion Date.
- The Contractor undertakes to use its best endeavor’s to complete each Stage on or before the relevant Stage Completion Date.
- If it becomes apparent that any Stage will not be completed on or before the Stage Completion Date and the reason for the delay is beyond the control of the Contractor, including compliance with any instruction of Createability under this Contract whose issue is not due to the default of the Contractor, then the Contractor shall notify Createability who shall make, in writing, such an extension of time for completion of any Stage and/ or the Works as may be reasonable subject to the Contractor’s duty to reasonably mitigate the effect of the delay
- If any Stage is not completed by the Stage Completion Date and the reason for the delay is within the control of the Contractor the Contractor shall pay to Createability, or allow Createability to set off or withhold from any sums due, liquidated damages as stated in the Purchase Order for the period starting with the first day after the Stage Completion Date and ending on the date of actual completion of the Stage, provided that Createability has first served a Notice informing the Contractor of the intended deduction. Reasons within the control of the Contractor include any default of the Contractor or others employed or engaged by or under him or in connection with the Works or any supplier of goods or materials for the Works.
- Createability reserves the right to change the Commencement Date, the Completion Date and any Stage Completion Date without any liability for loss or inconvenience but giving the equivalent extension of time to the Contractor where such change is necessitated by the actions or omissions of any third party or any circumstances outside the control of Createability.
- Createability shall be entitled to terminate the contract at any time pursuant to a Notice and in such event shall pay to the Contractor its reasonable costs by way of sums due as may be ascertained by the Project Manager but such costs shall not include any element of loss of profit.
- If the Contractor fails to complete any Stage within 7 days after the Stage Completion Date and/ or the Works by the Completion Date or fails to comply with a Notice or an Insolvency Event occurs, Createability shall be entitled to terminate this Contract forthwith on giving a Notice to the Contractor and to recover from the Contractor the amount of all damages and loss suffered by Createability resulting from such failure including the cost of engaging a new contractor to complete the Works.
- In the event of termination pursuant to clause 13.2, Createability may employ a third party to complete the Works using all materials, plant and equipment on Site belonging to the Contractor and Createability shall not be obliged to make any payments to the Contractor for such materials and plant until the Works have been completed in accordance with this Contract.
- Either party shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of this Contract and the determination of this Contract shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under this Contract notwithstanding that the other may have exercised one or more of the rights and remedies against it.
- Any right or remedy to which either party is or may become entitled under this agreement or in consequence of the other’s conduct may be enforced from time to time separately or concurrently with any right or remedy given by this agreement or now or afterwards provided for and arising by operation of law so that such rights and remedies are not exclusive of the other or others but are cumulative.
- Createability may, at any time, suspend performance of all or part of the Contract by giving a Notice to the Contractor. The Contractor shall resume performance of the Contract as soon as reasonably practicable after receiving a Notice to do so from Createability.
(a) Createability fails to pay in full the notified sum to the Contractor under this agreement by the Final Date for Payment under clause 3; and
(b) Createability has not given a Pay Less Notice, the Contractor may suspend performance of the Contract upon giving not less than seven days’ Notice to Createability of its intention to do so and stating the ground or grounds on which it intends to suspend performance.
- In the event of suspension in accordance with clause 14.2, Createability shall pay the Contractor’s demobilization and remobilization costs and expenses reasonably incurred as a result.
- The Contractor and his sub-contractors (if any) shall pay their respective employees on the Site the rates of wages, and observe hours and conditions of working, recognized by the national agreements for the industries or trades applicable to the Contractor’s work. In the absence of such Agreements the Contractor and his sub-contractors shall observe rates and conditions approved by Createability.
- In relation to a Contract for the supply of services and/or materials only and/or goods and services hours of working, including overtime, shall be agreed with Createability.
- Before the placing of the Contract, the Contractor shall have obtained for himself and his sub-contractors (if any) the approval of Createability for the arrangements covered in clauses 15.1 and 15.3 above. The Contractor and his sub-contractors (if any) shall not introduce or commence to negotiate any changes in these arrangements without the written consent to Createability. The Contractor shall give a Notice to Createability of the implementation of any national awards affecting these arrangements.
- The Contractor shall not offer employment to any person employed by Createability or by other contractors employed by Createability during the Term and for the period of 12 months thereafter.
16. Works, Plant & Materials
- The Purchase Amount includes all materials, labour, plant, equipment, transport, handling of materials, waste removal and plant, tools and appliances and all other things necessary for the Works, except where specifically excluded and stated on the Purchase Order. If the Contractor does not promptly remove its waste, Createability shall be entitled to do so and to deduct the costs from any sums due.
- Save as provided for under clause 4 the Purchase Amount shall be a firm price unless otherwise agreed between the parties when the Purchase Order is placed.
- The Contractor shall not vary any of the Works, except as directed in writing by Createability.
- Createability reserves the right by Notice to modify the quality or quantity of the Works and any alteration to the Purchase Amount arising by reason of such modification shall be agreed between the parties.
- In relation to a Contract for the supply of services and/or materials only and/or goods and services where Createability for the purposes of the contract issues materials free of charge to the Contractor such materials shall be and remain the property of Createability. The Contractor shall maintain all such materials in good order and shall use such materials solely in connection with the Contract. Any surplus materials shall be disposed of at Createability’s discretion. Waste of such materials arising from bad workmanship or negligence of the Contractor shall be made good at the Contractor’s expense. Without prejudice to any other of the rights of Createability, the Contractor shall deliver up such materials whether further processed or not to Createability on demand.
- All defects, excess shrinkages or other faults to the Works which are found discovered or suspected during the Defects Liability Period to be within 12 months of the Date of Practical Completion due to materials and workmanship not being in accordance with the Purchase Order shall be made good by the Contractor entirely at its own cost, and should it fail to do so reasonably then Createability shall be entitled to attend to the matter itself and use the Retention for such purpose and if the Retention should be inadequate then to seek additional sums from the Contractor by way of contribution.
- At any date after the Defects Liability Period until the end of the limitation period, Createability may require the Contractor to return to site to investigate or inspect any part of its Works, which is found, discovered or suspected to be not in accordance with the Purchase Order. Such visit, inspection or investigate or similar shall be at no cost to Createability. Should the Contractor fail reasonably to do so, then Createability shall be entitled to attend to the matter itself and recover the costs from the Contractor.
- In relation to a Contract for the supply of services and/or materials only and/or goods and services the inclusion of this clause does not imply that Createability assumes any obligations to provide “Loaned Plant”, which means plant or equipment owned by Createability and used by or on behalf of the Contractor by agreement. Where Loaned Plant is operated by a servant of Createability:
- The operator shall not become the servant of the Contractor but shall carry out with the Loaned Plant such work as he may be directed to do by the Contractor.
- The Contractor shall be liable for any damage to the Loaned Plant caused by misdirection or misuse of it due to negligence on the part of the Contractor, his servants or agents.
- Createability shall be liable for any damage to the Loaned Plant caused by a defect in or faulty operation of the plant.
- Where Loaned Plant is operated by a servant of the Contractor or an independent contractor, the Contractor shall be liable for all damage to the Loaned Plant unless he can show that it was caused by a defect in the plant at the commencement of the loan and he shall be liable for any loss (including loss by theft) of the said plant.
- Createability shall have the right to withdraw Loaned Plant at any time and shall be under no liability whatever in connection with Createability failing to lend plant at any time.
- The Contractor shall satisfy himself that any Loaned Plant is suitable for the purpose intended.
- All sums payable under this agreement unless otherwise stated are exclusive of VAT and other duties or taxes.
- Any VAT or other duties or taxes payable in respect of such sums shall be payable in addition to such sums upon receipt of a valid VAT receipt.
- The Works shall be carried out with the proper regard to safety and the Contractor shall observe and conform to all statutory enactments and regulations and any by-laws and/or regulations of local or other authorities applicable to the Works or generally to the Site.
- The Contractor shall observe through his staff and work people the works rules (as set out in appended to the Construction Phase Plan) applicable to the Site. Createability shall have the right to require the Contractor immediately on receipt of notice in writing to remove from the Site any employee or subcontractor who has failed to comply with the works rules or who in the opinion of Createability has misconducted himself, or been negligent or incompetent.
- In relation to a Contract for the supply of services and/or materials only and/or goods and services the Contractor shall be responsible for the suitability and safety of the equipment used by him and no equipment shall be used which may be unsuitable, unsafe or liable to cause damage. Without lessening the absolute responsibility of the Contractor in regard to such equipment Createability shall have the right to inspect such equipment and if in Createability’s opinion it is unsuitable it shall not be used on the Works, and no extra time or money shall be allowed to the Contractor as a result of having to replace such equipment.
- The Contractor shall keep its work areas clean and tidy and free from debris and rubbish at all times so as to prevent fire risk and health and safety hazards. Should the Contractor not do this, in Createability’s reasonable opinion, then Createability shall be entitled to take such steps as it considers prudent and deduct the costs from any sums due.
All sums due from either of the parties to the other which are not paid on the due date shall bear interest from day to day at the annual rate of 3 % over the Base Rate.
- Force majeure
Both parties shall be released from their respective obligations in the event of national emergency war prohibitive governmental regulation or if any other cause beyond the control of the parties or either of them renders the performance of this Contract impossible whereupon all money due under this agreement shall be paid immediately.
If any provision of this agreement is declared by any judicial or other competent authority to be void voidable illegal or otherwise unenforceable or indications to that effect are received by either of the parties from any competent authority, the remaining provisions of this agreement shall remain in full force and effect unless Createability in Createability’s discretion decides that the effect of such declaration is to defeat the original intention of the parties in which event Createability shall be entitled to terminate this Contract upon Notice to the Contractor.
- Whole agreement
- Each party acknowledges the documents which comprise this Contract and they together contain the whole agreement between the parties and that neither party has relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all relevant matters.
- The terms of the Purchase Order and these Terms and Conditions shall apply to the Contract to the exclusion of all other terms and conditions.
- Any step taken by the Contractor to fulfill its part of the Contract shall be deemed conclusive evidence of the Contractor’s acceptance of these Terms and Conditions.
- Supersedes prior agreements
This Contract supersedes any prior agreement between the parties whether written or oral and any such prior agreements are cancelled as at the date of this Contract but without prejudice to any rights, which have already accrued to either of the parties.
20. Service of documents
Service of documents is effected by the sending of the document by first class post or hand delivery to Createability at Bridger’s Farm, Nursling Street, Southampton, SO16 0YA or faxed to 03450 704320. It should not be personally addressed and should clearly show the document type (i.e. Invoice, Credit Note, Application for Payment). Service by email or other means is not effective.
21. Dispute Avoidance and Resolution
- Subject to either party’s right to adjudicate at any time, the parties shall use their reasonable endeavors to resolve any dispute or difference between them through negotiation or mediation.
- Notwithstanding any other provision of this agreement, either party may refer a dispute arising under this agreement to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations (as amended), which Part shall take effect as if it was incorporated into this clause.
- The adjudicator shall be nominated by the President or Vice President of the Royal Institute of Chartered Surveyors
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