1 Meanings, Definitions, and Clarifications
1.1 For the purpose of these Terms and Conditions, the following definitions apply:
1.1.1 – These Terms and Conditions (hereinafter referred to as “the Conditions”) comprise the Terms and Conditions of Soilutions Limited.
1.1.2 – Soilutions Limited is hereinafter referred to as the “Specialist Contractor”.
1.1.3 – The “Quotation” shall mean the Specialist Contractor’s price quotation.
1.1.4 – The “Works” shall mean the works as described within the Quotation.
1.1.5 – The party commissioning the Specialist Contractor to carry out the Works is hereinafter referred to as the “Contractor”.
1.1.6 – Where the Specialist Contractor and the Contractor are referred to as a collective, they are hereinafter referred to as the “Parties” or when as a singular they are referred to as a “Party”.
1.1.7 – Subsidiaries of the Contractor (excluding the Specialist Contractor) including consultants, subcontractors (be they domestic, named or nominated including their associated sub-subcontractors), suppliers or any other affiliate(s) or agent(s) of the Contractor and inclusive of any third parties who are not under the direction or control of the Contractor are hereinafter referred to as ‘Others’.
1.1.8 – The Contractor’s employer is hereinafter referred to as the “Employer”.
1.1.9 – “Variations” shall mean an alteration or modification to the Quotation in terms of the quality, quantity, and/or alteration or amendment to the design information priced upon by the Specialist Contractor, either through verbal or written instruction from the Contractor, or via a Contractor imposition or restriction that either impedes the Specialist Contractor or alters the Specialist Contractor’s sequencing, for which the Specialist Contractor is entitled to recover from the Contractor the associated costs.
1.1.10 – The Housing Grants, Construction and Regeneration Act 1996 (as amended), shall hereinafter be referred to as the “Act”.
1.1.11 – Reference to days within these Conditions are ‘calendar days’.
1.1.12 – Any government agency or regulating body that presides over the Specialist Contractor’s Works shall hereinafter be referred to as the “Regulator”.
1.2 These Conditions shall be governed by and construed in accordance with Scottish law and the Parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland.
1.3 The Contractor commissioning the Specialist Contractor to carry out any part of the Works or the Works (including pre-construction activities such as the procurement of materials), signifies unreserved and full acceptance by the Contractor of these Conditions, for which these Conditions will constitute a binding contractual agreement being in place between the Parties at the point the Specialist Contractor either acknowledges acceptance in writing or by through their action. For the avoidance of doubt, the Contractor admitting the Specialist Contractor onto site to carry out the Works, constitutes the Contractor having commissioned the Specialist Contractor to carry out the Works and thereby causes these Conditions to become binding on the Parties.
1.4 These Conditions are exclusively the only terms and conditions that apply to the provision of the Works, unless expressly agreed otherwise in writing by the Specialist Contractor. Any previous terms and conditions presented by the Contractor to the Specialist Contractor or otherwise, are deemed superseded, extinguished and void and these Conditions are deemed to indisputably take precedence.
1.5 Where the Contractor hereafter presents any form of contract, purchase order, sub-contract documentation or agreement (hereinafter referred to as the “Order”) to the Specialist Contractor, and for which the Specialist Contractor executes or agrees to the Order, these Conditions are deemed incorporated mutatis mutandis therein and take precedence over any implied or express terms as are contained within the Order.
1.6 No Order based upon the Quotation will be valid, unless the Order has been acknowledged and accepted by the Specialist Contractor in writing.
1.7 The Quotation is complete in its terms and shall not be deemed to have included for anything other than that expressly described therein. If the Contractor considers the Quotation to be missing anything specifically or to be incomplete in any regard, clarification is to be sought by the Contractor prior to acceptance. Upon the Contractor accepting the Quotation, the Contractor relinquishes any entitlement to make any such contention.
1.8 Any form of acceptance perceived to have been made by the Specialist Contractor to the Contractor does not infer nor constitute acceptance to any of the Contractor’s purported terms and conditions and no such perceived acceptance changes, alters nor undermines these Conditions nor are any of these Conditions deemed waived or superseded in any way unless expressly agreed by the Specialist Contractor in writing to the Contractor as being so.
1.9 Any typographical or clerical error(s) in any sales literature, Quotation, invoice or any other documentation issued by the Specialist Contractor, may be subject to amendment by the Specialist Contractor as may be required. For the avoidance of doubt, no such amendment alters, modifies nor signifies any waiver of any of these Conditions unless expressly agreed otherwise by the Specialist Contractor in writing.
1.10 The Quotation remains open for acceptance for 30 days from formal issuance (provided the Specialist Contractor has not withdrawn it at any juncture). After the expiration of this period, the Specialist Contractor reserves the right to revisit and alter their pricing entirely at their discretion.
1.11 The Quotation is exclusive of Value Added Tax (unless specified otherwise therein), which will be applied at the prevailing rate at the point the Specialist Contractor submits their invoice(s) concerning the Works.
1.12 The Works are exclusive of any Landfill Tax or any other applicable tax which the Contractor shall pay in addition when it is due to pay for the Works, unless otherwise stated within the Quotation. In the event of any tax, duty or levy being imposed on, or any existing tax, duty or levy being increased, in respect of the management of the Works (or any category thereof) then the Contractor shall bear such tax, duty or levy (or increase thereof) in its entirety.
1.13 The rates within the Quotation are current at the point of issuance and the Specialist Contractor reserves the right to recover from the Contractor increases in costs associated with price fluctuations premised upon the London Interbank Offer rate, for which the base date is deemed to be the month the Quotation was issued within. For the avoidance of doubt, the Contractor does not retain entitlement to recover decreased costs from the Specialist Contractor.
1.14 The Quotation is inclusive of any discount as noted therein. For the avoidance of doubt, no other discount can be applied. Any discount provided will only remain applicable, where the Contractor adheres to the agreed payment terms. In the event that agreed payment terms are breached, any applicable discount will be removed retrospectively and without giving rise to any claim(s) by the Contractor.
1.15 Retention does not apply in any regard and is not to be deducted at any time.
1.16 The Quotation is based solely upon the Works being undertaken between Monday to Friday within the hours of 08:00 – 16:00. Should the Contractor require the Specialist Contractor to carry out overtime working, the Specialist Contractor reserves the right to charge time and a half for overtime working during working days and double time for weekend working. The Specialist Contractor reserves the right to reject overtime and weekend working at their sole discretion. Where the Specialist Contractor is carrying out desk-based reports, these will be carried out between the hours of 09:00 and 17:30.
1.17 Office, canteen and general welfare facilities are to be provided for use by the Specialist Contractor, unless stated otherwise in the Quotation.
1.18 Connection and/or disconnection of services and any temporary services are to be provided free of rent/charges, unless stated otherwise in the Quotation.
1.19 Materials storage, laying down, compound, haul roads and other infrastructure are to be provided for the Specialist Contractor’s use free of rent/charges unless stated otherwise in the Quotation.
1.20 No allowance has been made (unless stated otherwise in the Quotation) for traffic management, watching and lighting.
1.21 No allowance has been made in the Quotation (unless specified otherwise therein) for disconnecting, reconnecting or locating services.
1.22 The Contractor warrants that it has the unencumbered right to authorise the Specialist Contractor to provide the Works.
1.23 The Specialist Contractor’s tender is conditional upon and subject to review/approval by the Specialist Contractor of credit references being provided by the Contractor. The Contractor is considered to have agreed and provided consent to the Specialist Contractor to obtain such credit references and that:
1.23.1 – The Specialist Contractor’s credit insurers are permitted to retain records of data/information, for which it may be transferred by them to other customers.
1.23.2 – The Specialist Contractor’s credit insurers may transfer data/information to credit reference agencies and/or other information providers, who may retain a record of such information and transfer it to their other customers.
1.23.3 – Data/information can be used for the purposes of credit risk assessment and insurance and other corollary functions.
1.23.4 – The Specialist Contractor’s credit insurers are permitted to supply the Specialist Contractor with data that they have obtained concerning the Contractor from sources other than the Specialist Contractor.
1.24 For the avoidance of doubt e-mail is an effective means of communication, for the purposes of these Conditions, in accordance with Section 115(3) of the Act.
1.25 No failure or delay by the Specialist Contractor in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by the Specialist Contractor of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision. A waiver will only be deemed to have occurred where the Specialist Contractor expressly confirms as such in writing to the Contractor.
1.26 For the avoidance of doubt, the Specialist Contractor’s liability to the Contractor, for any breach and/or series of breaches (whether by act or omission), howsoever arising (be it under these Conditions, in common law or otherwise), is in the aggregate under this agreement expressly limited to 5% of the value of the Works.”
1.27 It is herein agreed by the Parties that no form of liquidated damages applies to the Works.
1.28 For the avoidance of doubt, these Conditions expressly apply to the Quotation.
1.29 In the event of any conflict between these Conditions and the Quotation, the Quotation will take precedence.
1.30 Any condition or sub-condition of these Conditions which is held by any Court or prevailing authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable, to which the other conditions and sub-conditions of these Conditions shall remain unaffected.
2 Provision of The Works
2.1 The Specialist Contractor requires a minimum of two weeks’ notice to commence (or such other period as may be stated in an Order), such that adequate planning and mobilisation can be affected.
2.2 Any proposal or Quotation tendered by the Specialist Contractor is based specifically and only upon any information, data, drawings, specifications, reports, surveys and/or any other information inputs provided to the Specialist Contractor by the Contractor and for which the Specialist Contractor has relied upon the documentation as being a true, correct and accurate representation of what it purports to convey. Should any piece of information from which the Specialist Contractor has relied upon for either pricing purposes or for the performance of the Works, not be an accurate representation or is factually incorrect in any way, the Specialist Contractor reserves the right to revalue any constituent part of the Works that is resultantly effected and shall have entitlement to recover reasonable loss and/or expense, delay and direct or indirect costs associated with any such occurrence.
2.3 The Specialist Contractor is not deemed to have carried out site investigations nor satisfied themselves as to the condition of the site. Any site/project specific conditions (including, without prejudice to the foregoing generality, ground conditions, access restrictions, stop/start requirements, delays by others, lack of information, Contractor/Employer based training etc.) which was not specifically brought to the Specialist Contractor’s attention and referred to in the Quotation, have not been taken into account nor have they entered into the Specialist Contractor’s contemplation in the preparation of the Quotation and by extension any contract or Order based upon the Quotation.
2.4 In the carrying out of the Works, any information, reports, and/or any documentation will be issued in the Specialist Contractor’s standard format (electronically in PDF format via e-mail or via a temporary hyperlink embedded within said e-mail) unless specifically requested otherwise by the Contractor in their tender enquiry. Should the Contractor request for specific formatting to be adhered to in the provision of documentation associated with the Works which was not made known by the Contractor to the Specialist Contractor when the tender enquiry was provided to the Specialist Contractor, the Specialist Contractor reserves the right to advise of this variance and to claim for any such additional costs incurred resultant from complying with any such requirement.
2.5 The Specialist Contractor has only made provision for the Works specifically referenced within the Quotation and no further inferences can be derived by the Contractor concerning any other alleged supplementary provisions unless otherwise expressly agreed in writing by the Specialist Contractor.
2.6 For the avoidance of doubt, the Works have been priced by the Specialist Contractor upon the premise that Works will progress in the sequencing identified within the Quotation or as agreed between the Parties, and where no sequence is specifically identified or agreed, the Works are priced upon the basis that the Works will proceed regularly and in an efficient and logical manner. No provision has been made by the Specialist Contractor for their Works being impeded, nor for alterations to sequencing of the Works, nor fragmented/piecemeal delivery of the Works. For the avoidance of doubt, the Specialist Contractor has provided for carrying out the Works in one continuous visit (or as otherwise referenced within the Quotation) and return or multiple visits therefore constitute a Variation under these Conditions.
2.7 Any dates or durations specified by the Specialist Contractor in relation to the Works are an approximation only and could be liable to change. Should this be the case, the time-related charges for extended durations to the Works within the Quotation will apply.
2.8 Where and to the extent that the Contractor has given programme information or works durations as part of their tender enquiry, this information is deemed for the purposes of these Conditions to be indicative and should the Specialist Contractor complete the Works later than the period(s) or duration(s) specified, the Contractor will have no entitlement to charge nor offset against the Specialist Contractor for any purported cost(s) resulting therefrom.
2.9 No allowance has been made in the Quotation for providing samples or testing unless specified otherwise therein. Any such requirement in this regard will be deemed to be a Variation for the purposes of these Conditions.
2.10 The Specialist Contractor during the discharging of the Works (and through consultation with the Contractor), reserves the right to alter their personnel involved at any time to suit the operational requirements of the Specialist Contractor. The Specialist Contractor also reserves the right to sublet or sub-contract the Works howsoever required.
2.11 Should the performance of the Works be impeded as a result of any of the following events, the Specialist Contractor will reserve entitlement to cost recovery:
2.11.1 – An act of God, war (whether declared or not), civil war, acts of terrorism, civil commotion/riot, legal restraint, governmental or like interference, sabotage, strikes, lock-outs, labour shortage, flood, lightning, droughts, earthquake, fire, explosion, blight, epidemic/disease, or any other event or circumstance beyond the control of the Specialist Contractor and / or the Contractor (including lack of availability of labour, plant & materials).
2.11.2 – Variations, instructions or directions (be they verbal or in writing) from the Contractor to the Specialist Contractor.
2.11.3 – Deferment of giving possession to the Specialist Contractor of the required area for them to carry out the Works.
2.11.4 – Opening up for inspection or testing any of the Works.
2.11.5 – Suspension by the Specialist Contractor of the Works in accordance with Section 112 of the Act, namely where the Contractor has not paid part or all of the notified sum by the final date for payment.
2.11.6 – Suspension by the Contractor of the Works for any reason, howsoever arising.
2.11.7 – Any impediment, imposition, restriction or default, whether by act or omission by the Contractor or by Others.
2.11.8 – Statutory undertaker’s delaying the carrying out of their operations or their functional operations impeding or preventing the Specialist Contractor from carrying out their Works.
2.11.9 – Adverse weather conditions preventing the Specialist Contractor from carrying out the Works.
2.11.10 – Any force majeure event not described within clause 2.11.1.
2.11.11 – Delay in the issue of permits and/or delay in consents being provided to the Specialist Contractor or delay by a Regulator in checking the Works, or delay in acquiring sign-off or approval from a Regulator.
2.11.12 – Any impediment, imposition, restriction or mandate from a Regulator.
2.11.13 – Delay as a result of loss of laboratory samples or incorrect laboratory results (which are subsequently found to be flawed).
2.11.14 – Encountering or striking unidentified services.
2.11.15 – Any unforeseen circumstances that materially affect the Works.
In the event the Works are delayed or frustrated by any of the causes within clauses 2.11.1 – 2.11.15, then the Specialist Contractor shall be entitled to any associated loss and/or expense resultant from the associated delay.
2.12 The Specialist Contractor under no circumstances will be held liable for damage caused by the Contractor or Others to the Works.
2.13 The Contractor unreservedly retains all responsibilities and liabilities associated with site security. Should theft of the Specialist Contractor’s materials, tools, plant and/or goods (as retained on site) occur, the Contractor will reimburse the Specialist Contractor to the equivalent value of the materials, tools, plant and/or goods in question.
2.14 The Contractor indemnifies the Specialist Contractor against any and all costs having arisen out of the Works not being permitted to commence, howsoever arising, or from the Contractor or Others having impeded, suspended or prohibited the Works from progressing.
3 Price, Payment, Valuation and Change
3.1 Where the Quotation is comprised using unit rates and where either the nature, quantity, scope or scale of the Works or requirements of the Works are varied in any regard from that which was originally priced upon, the Specialist Contractor will duly notify the Contractor, following which the unit rate originally utilised may be subject to change at the discretion of the Specialist Contractor. This same principle of the Specialist Contractor’s right to revalue the Works as a result of alteration to the nature, quantity, scope and scale, also applies where the Works were priced upon a lump sum basis.
3.2 Where the phasing or timing of the Works varies or has been varied from that set out in the tender information provided by the Contractor or as referenced in information provided by Others, or varies in relation to specific phasing methodology referred to within the Quotation, the Specialist Contractor reserves the right to revalue the Works accordingly to account for such variance.
3.3 Any requirements of Statutory bodies (including, without prejudice to the generality of the foregoing, any Acts of Parliament, Statutory Instruments, Regulations, Codes of Practice or regulations or codes or practice issued by any professional bodies having authority over us) which are put in place or enforced after the date of the Quotation, will be deemed as variation(s) to the information on which the Quotation was based, and therefore to these Conditions or any Order based upon the Quotation. The Specialist Contractor retains entitlement to associated recovery of loss and/or expense, howsoever arising.
3.4 Should the Contractor desire the Specialist Contractor to carry out Variation works:
3.4.1 – The Contractor will request of the Specialist Contractor a quotation for the proposed Variation works.
3.4.2 – Upon receipt of the corresponding quotation, should the Contractor wish to proceed with the Variation works, they will instruct the Specialist Contractor formally in writing of their acceptance of the quotation provided, requesting them to proceed accordingly. Where the Contractor does not agree to the sum within the quotation provided but instructs the Specialist Contractor to undertake the Variation works, such instruction will constitute agreement to the corresponding Variation quotation.
3.4.3 – Where the proposed Variation works in question are urgent and the Specialist Contractor agrees to carry them out without having priced the Variation works, the Contractor herein agrees for the Variation works to be carried out on a cost-plus basis with a mark-up of 30%.
3.4.4 – Where and to the extent that the Parties agree for Variation works to be valued utilising daywork, the following prevailing rates apply for the Specialist Contractor’s personnel, along with the percentage mark-up for plant/materials:
Directors, Engineers, Supervisors and operatives mark up – 30%
plant mark up – 30%
materials mark up – 30%
3.4.5 – Where the Contractor either through imposition or restriction causes the Specialist Contractor’s Works to be impeded or for the Specialist Contractor’s sequence to be altered, this is deemed for the purposes of these Conditions to be Variation works, for which the Specialist Contractor will notify the Contractor of the material effect and cost of any such occurrence.
3.4.6 – The Specialist Contractor maintains the indisputable right to reject the provision of Variation works and the decision to undertake or reject any Variation works is entirely at the Specialist Contractor’s discretion.
3.5 Any customs duties, sales or other taxes payable by the Specialist Contractor or its personnel and/or affiliates in respect of the carrying out of the Works (including but not limited to the procurement or supply of materials), will be correspondingly notified to the Contractor, so that the Specialist Contractor may be appropriately reimbursed by the Contractor.
3.6 Unless notified otherwise in the Quotation, applications for payment / invoices will be submitted monthly.
3.7 The following provisions apply in relation to all applications for payment:
3.7.1 – The Specialist Contractor will submit an application for payment or invoice to the Contractor towards the end of each calendar month including for any materials on or off site. The application will state the sum the Specialist Contractor considers to be due and the basis on which the sum is calculated.
3.7.2 – The first application for payment or invoice will be submitted by the Specialist Contractor at the end of the month in which the Works were commenced.
3.7.3 – The Due Date is 7 days after the date of the Specialist Contractor’s application for payment or invoice as the case may be.
3.7.4 – A Payment Notice shall be issued by the Contractor to the Specialist Contractor not later than 5 days after the Due Date, the Payment Notice will state the sum the Contractor considers to be due and the basis on which the sum is calculated.
3.7.5 – The Final Date for Payment is 14 days after the Due Date.
3.7.6 – In the event that the Contractor finds reasonable and just cause to issue a Pay Less Notice to the Specialist Contractor, such Pay Less Notice is to be issued not later than 5 days prior to the Final Date for Payment. The Pay Less Notice shall state the sum the Contractor considers to be due and the basis on which the sum is calculated.
3.7.7 – Where the Contractor fails to render payment to the Specialist Contractor by the Final Date for Payment, the Specialist Contractor has the right to suspend performance of the Works in accordance with the provisions of Section 112 of the Act, through the Specialist Contractor giving written notice to the Contractor notifying of their intention to suspend performance of the Works 7 days from the date of the notice, should the Contractor persist in non-payment until expiration of that period.
3.7.8 – Notwithstanding any of the Specialist Contractor’s materials having been delivered to site, or having been partially or fully/finally fixed into place, or notwithstanding any other provision within these Conditions, the property and legal title remains vested in the Specialist Contractor and will not pass to the Contractor until such time that the Contractor has rendered payment in full for the goods in question and for which cleared funds have been received by the Specialist Contractor, including VAT where appropriate.
3.8 Failure by the Contractor to render payment by the Final Date for Payment, gives entitlement to the Specialist Contractor to charge interest on a daily basis at 8% above the base-lending rate of the Bank of England (lending rate current at date of application for payment1), in accordance with the Late Payment of Commercial Debts [Interest] Act 1998, as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002 or any amendments of the Act or Regulations that follow.
3.9 The Contractor at no juncture has the right to enforce any form of set-off against the Specialist Contractor, be it in relation to itself or Others, howsoever arising. The Contractor is also not entitled to withhold nor offset payments for a dispute on any other contract between the Contractor and the Specialist Contractor, regardless of any purported condition to the contrary in an Order or any other document.
3.10 Should the Contractor seek to reduce or omit an element of the Works, to the extent that such omission or reduction materially effects the Specialist Contractor, the Specialist Contractor reserves the right to recover the associated loss and expense and/or loss of profit in relation to such an occurrence.
3.11 Where and to the extent that any samples sent by the Specialist Contractor to an external laboratory for analysis are lost by the laboratory, any resultant costs are deemed to be a Variation for the purposes of these Conditions.
3.12 Where and to the extent that the Specialist Contractor receives laboratory results/reports that are later found to be incorrect, any such costs required to remedy such occurrences will be deemed to be a Variation for the purposes of these Conditions.
3.13 Where the Specialist Contractor encounters and is required to work around unidentified services or where and to the extent that services drawings are not accurate, the associated disruption and additional costs incurred as result will be borne by the Contractor and shall be deemed to be a Variation for the purposes of these Conditions.
3.14 In the event that the Specialist Contractor strikes unidentified services (or services not accurately plotted by the Contractor or Statutory Undertakers, the Contractor shall remain liable for the associated remediation costs and such an occurrence shall be deemed to be a Variation for the purposes of these Conditions.
3.15 Site meetings, Zoom/Teams Meetings which are not identified within the Quotation are deemed to be a Variation for the purposes of these Conditions.
3.16 Where and to the extent that the Specialist Contractor encounters any unforeseen circumstances that materially affect the Works and/or for which the Specialist Contractor has not made provision for addressing nor remediating, any such occurrence is deemed to be a Variation for the purposes of these Conditions.
4 Insurances and Indemnities
4.1 The Specialist Contractor cannot be held liable nor responsible in any respect for consequential loss, howsoever arising, in relation to the rendering of the Works. The Contractor therefore indemnifies and holds harmless the Specialist Contractor from any such claim.
4.2 The Specialist Contractor carries Public Liability Insurance to the value of £5M, the particulars of which can be viewed upon request.
4.3 The Specialist Contractor carries Employer’s Liability Insurance to the value of £10M, the particulars of which can be viewed upon request.
4.4 The Specialist Contractor carries Professional Indemnity Insurance to the value of £1M, the particulars of which can be viewed upon request.
4.5 In the event that any insurance provided can no longer be acquired at viable market rates, the Specialist Contractor will notify the Contractor and should the Contractor continue to require the insurance concerned, they will reimburse the Specialist Contractor for the difference in the premium, the valuation of which is derived by deducting the Specialist Contractor’s premium in place at the time of the Specialist Contractor having quoted for the Works, from the most recent premium sought by the Specialist Contractor.
4.6 The Contractor or Employer will take out and maintain project related insurance(s), for which this is expressly not a Specialist Contractor requirement.
4.7 The Contractor shall indemnify the Specialist Contractor and keep it indemnified in full against all liability, loss, damages, costs and expenses (including legal expenses on an indemnity basis and any necessary expenses arising from remediation works) which the Specialist Contractor may suffer or incur as a result of or arising out of or in connection with:-
4.7.1 – Any negligence by the Contractor in connection with the Works or an Order or breach of these howsoever arising by the Contractor;
4.7.2 – Handling, storage and treatment of any material by the Contractor prior to completion of the Works (or thereafter as the case may be) at the site;
4.7.3 – Any action or omission of the Contractor resulting in:-
4.7.3.1 – Any personal injury to or death of any of the Specialist Contractor’s employees, agents or sub-contractors or any third party; or
4.7.3.2 – Any damage to or loss of any property of the Specialist Contractor, its employees, agents or sub-contractors or any third party;
4.7.3.3 – Any claims or actions brought or threatened against the Specialist Contractor by any third party (including without limitation, the Scottish Environment Agency or other similar competent body or authority) resulting from or arising out of or in connection with;
4.7.3.3.1 – Any breach of any agreement, contract or Order by the Contractor; or
4.7.3.3.2 – Any failure by the Contractor to comply with any laws, regulations and/or statutory bodies.
5 Dispute Resolution
5.1 In the event of a dispute of any nature arising between the Specialist Contractor and the Contractor, both Parties will endeavour to resolve the matter first through mediation, however, either Party reserves the right to refer a dispute to adjudication at any time.
5.2 In the event that a dispute is referred to adjudication, the adjudicator will be nominated by UK Adjudicators.
5.3 Any determination reached by an adjudicator shall be binding and enforceable, with the only means for appeal being via litigation.
5.4 Where and to the extent a dispute arises between the Parties, these Conditions are deemed to take precedence over all others.
5.5 The Adjudication provisions that apply to these Conditions are the Scheme for Construction Contracts (England and Wales) Regulations 1998.
6 Intellectual Property / Confidentiality
6.1 All intellectual property and/or inventions of the Specialist Contractor remain vested solely and exclusively in the Specialist Contractor.
6.2 The Contractor shall treat all information provided by the Specialist Contractor in the rendering of the Works as confidential and shall not disclose any such information without prior written consent of the Specialist Contractor.
6.3 The Specialist Contractor is entitled take photographs of the Works and their respective involvement on the project and utilise these for the purpose of their own publicity, case studies, blogs etc.
7 Assignment/Third Parties/Warranties
7.1 The Specialist Contractor may assign, license or sub-contract all or any part of its rights and/or obligations under this agreement without the Contractor’s consent.
7.2 The Contractor may not assign, license or sub-contract all or any of its rights and/or obligations under this agreement without the Specialist Contractor’s prior written consent.
7.3 This agreement is solely limited to the Parties and does not confer any right on any third party, nor does it impose any liability on any third party.
8 Termination
8.1 If during the course of carrying out the Works, either Party breaches the terms of this agreement, the opposing Party may deliver a written notice to notify the Party who committed the breach, following which, if the offending Party persists in and does not remedy the breach in question within a period of 14 days, the Party whom the breach was committed against may by a further written notice to the offending Party advise them that this agreement will terminate with immediate effect.
8.2 Upon termination, the Specialist Contractor will provide an assessment to the Contractor of the value of the Works provided up to and including the date of termination, for which the Specialist Contractor will provide an invoice to the Contractor within 60 days of termination having occurred, payment of which will become due 14 days thereafter. The same late payment provisions of clause 3.8 equivalently apply to this clause.
8.3 The Specialist Contractor may also terminate this agreement forthwith upon written notice to the Contractor upon the happening of any one or more of the following occurrences:
8.3.1 – The Contractor is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Contractor ceases to trade.
8.3.2 – Any changes to Environmental Laws from time to time or any changes (including without limitation variation, suspension or revocation) to any waste management licence (or any other relevant authorisation or consent) of the Specialist Contractor from time to time in force, result in the Specialist Contractor being no longer able to provide the Works pursuant to this agreement.
8.3.3 – A material breach having been committed by the Contractor.
