1. Definitions
1.1“Agreement” means the Letter and the terms and conditions set out herein;
1.2 “Business Day” means any day (excluding a Saturday or Sunday and recognised public holidays in England).
1.3 “Change Notice” means an adjustment to the Completion Date and/or the Contract Price to which the Contractor is entitled under clause 6.
1.4 “Company” means the party engaging the Contractor to undertake the Works as set out in the Letter.
1.5 “Company Consents” all consents required for the Works (including any planning permission required for the Works), save for the Contractor Consents.
1.6 “Company’s Design” has the meaning given to it in clause 4.5.
1.7 “Completion Date” means the date the Contractor specifies in the Letter that it intends to complete the Works by, if any, as may be adjusted in accordance with the terms of this Agreement.
1.8 “Contract Date” means the date the Contractor confirms it will proceed with the Works in the Letter.
1.9 “Contractor” means Ingenious Power Engineering Limited (registered number 10447099) whose registered address is 2nd Floor, Stanford Gate, South Road, Brighton, East Sussex, United Kingdom BN1 6SB.
1.10 “Contractor Consents” means the consents for the Works the Letter identifies the Contractor will be responsible for obtaining.
1.11 “Contractor’s Documents” means the drawings, charts, specifications, plans and any other documents or materials in any medium created and/or developed by or for the Contractor in relation to the Works.
1.12 “Contract Price” means the price for the Works agreed between the Parties as specified in the Letter, as may be increased under this Agreement.
1.13 “Costs” means all expenses and costs incurred including overheads and profit thereon.
1.14 “Defect” means any defect, failure or fault in the Works, if and to the extent attributable to:
1.14.1 design for which the Contractor is responsible, if any (which for the avoidance of doubt shall not include the Company’s Design), or
1.14.2 materials or workmanship supplied or carried out by the Contractor not being in accordance with this Agreement.
1.15 “Defects Correction Period” means a time period which is reasonable in all the circumstances allowing for the time required to procure any parts, materials or equipment which may be required in order to rectify the relevant Defect.
1.16 “Defects Notification Period” means a period of twelve (12) months commencing on the date of completion of the Works, unless an alternative period is stated in the Letter.
1.17 “Due Date for Payment” means the date on which a Payment Application is received by the Company in accordance with clause 8.2.
1.18 “Final Date for Payment” means the date that is twenty-one (21) days after the Due Date for Payment unless an alternative period is stated in the Letter.
1.19 “Force Majeure” means an event or circumstance:
1.19.1 which is beyond a Party’s control,
1.19.2 which such Party could not reasonably have provided against before entering into this Agreement,
1.19.3 which, having arisen, such party could not reasonably have avoided or overcome, and
1.19.4 which is not substantially attributable to the other Party.
Force Majeure may include, but is not limited to, events or circumstances of the kind listed below:
1.19.5 act of God;
1.19.6 war (whether declared or not), hostilities, invasion, act of foreign enemies, civil war, insurrection, riot, rebellion, revolution, military or usurped power, civil commotion, act or threat of terrorism, sabotage or piracy;
1.19.7 lightning, earthquake, fire, explosion, flood, storm;
1.19.8 adverse weather conditions;
1.19.9 theft, malicious damage;
1.19.10 any labour disturbance such as boycott, strike, lockout, industrial dispute;
1.19.11 any destruction, breakdown or failure of equipment;
1.19.12 any inability to obtain or delay in obtaining supplies or materials;
1.19.13 any prolonged breakdown of transport, telecommunications, information or energy systems; or
1.19.14 epidemic or pandemic.
1.20 “Insolvent” means in respect of the relevant Party:
1.20.1 any voluntarily commenced bankruptcy, insolvency, reorganisation (other than solvent reorganisation), stay, moratorium, voluntary arrangement or scheme of arrangement with creditors or similar debtor relief or business rescue proceedings, or shall have become insolvent or is unable to pay its debts as they become due, or admits in writing its inability to pay its debts or makes an assignment for the benefit of its creditors;
1.20.2 has insolvency, receivership, reorganisation (other than solvent reorganisation), business rescue or bankruptcy proceedings brought against it, or any steps being taken by any person with a view to any of those things, and the petition commencing such proceedings is not controverted and the proceedings dismissed or effectively stayed within thirty (30) days of such commencement;
1.20.3 the making of an order for the winding up or otherwise confirming the bankruptcy or insolvency of such person, which order has not been set aside or stayed within thirty (30) days of such making; or
1.20.4 suffers any event or circumstance analogous to the events or circumstances set out in (1.20.1) to (1.20.3) above in any jurisdiction in which it is incorporated or resident.
1.21 “Intellectual Property” means all copyright and all neighbouring and database rights and moral rights, registered designs, registered and unregistered design rights, or similar rights or property in any part of the world whether registered or unregistered together with the right to apply for the registration of such rights in any part of the world and the rights to current applications for registration of any such intellectual property.
1.22 “Letter” means the quotations, letters, offers and proposals issued by the Contractor to the Company;
1.23 “Limitation Period” means a period of [six (6)]1 [twelve (12)]2 years commencing on the date of completion of the Works.
1.24 “Payment Application” means an application for payment addressed to the Company and submitted in writing by the Contractor to the Company which will be in the form of a valid VAT invoice and will state:
1.24.1 the instalment of the Contract Price for which the application is made and the basis upon which such instalment is calculated; and
1.24.2 the amounts of any additional sums payable by the Company to the Contractor in accordance with this Agreement.
1.25 “Pay Less Notice” means a notice in writing specifying the sum that the Company considers is due to the Contractor at the date that this notice is served and the basis upon which that sum has been calculated.
1.26 “Variation” means any change to the Works (including changes to the quantity, character, kind or execution of the Works, the manner or order in which the Works are to be executed or the imposition of any restrictions on the carrying out of the Works) or any part thereof.
1.27 “Works” means the works and/or services to be performed by the Contractor as set out in the Letter.
1.28 “Works Commencement Date” means the date the Contractor notifies the Company in writing that it has or that it will commence the Works.
1.29 “Site” means the area in which the Contractor will undertake the Works as identified in the Letter.
2. Interpretation
2.1 In this Agreement:
2.1.1 unless the context otherwise requires:
2.1.1.1 the headings are inserted for convenience only and are to be ignored for the purposes of construction;
2.1.1.2 references to any gender include every gender;
2.1.1.3 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality); and
2.1.1.4 references to a “Party” or to the “Parties” will mean the Company and/or the Contractor as the context requires and references to a third party will mean any person other than the Parties;
2.1.2 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation; and
2.1.3 references to “in writing” or “written” include e-mail but no other methods of electronic messaging.
3. General
3.1 The terms of this Agreement shall come into full force and effect on the Contract Date.
3.2 The Contractor shall commence the Works on the Works Commencement Date.
3.3 The Company shall submit, within seven (7) days after receiving any request from the Contractor, reasonable evidence that financial arrangements have been made and are being maintained which will enable the Company to pay the Contract Price in accordance with this Agreement. If the Company intends to make any material change to his financial arrangements, the Company shall give notice to the Contractor with detailed particulars.
4. Contractor’s obligations
4.1 The Contractor shall exercise reasonable skill and care in the performance of the Works. The Contractor gives no warranty (whether express or implied) as to the fitness for purpose of the Works.
4.2 The Contractor shall carry out the Works in accordance with:
4.2.1 this Agreement;
4.2.2 applicable law; and
4.2.3 reasonable instructions of the Company.
4.3 If the Letter identifies a Completion Date, the Contractor shall carry out the Works by the Completion Date otherwise the Contractor shall complete the Works as soon as reasonably practicable.
4.4 The Contractor shall obtain and maintain all Contractor Consents.
4.5 In the event that the Letter identifies that the Contractor will undertake any design as part of the Works, the Contractor shall be responsible for the design it undertakes only and shall not be responsible for any other design undertaken by or on behalf of the Company (the “Company’s Design”).
5. Company’s obligations
5.1 The Company shall provide to the Contractor all necessary or relevant data and/or information in a timely manner. The Company warrants that all information (including any design) provided to the Contractor is correct, complete, accurate and sufficient and can be relied upon by the Contractor for the purposes of carrying out the Works and complying with its obligations under this Agreement.
5.2 The Company is responsible for the Company’s Design.
5.3 The Company agrees to pay the Contract Price in accordance with clause 8.
5.4 The Company shall grant to the Contractor unobstructed pedestrian and vehicular access (including the provision of any load bearing surfaces required by the Contractor) to and within the Site and shall provide for the Contractor site facilities, including provision of main services and utilities required for the Works (including gas. electricity, water, telecoms and internet), site huts, parking, storage and a secure facilities compound on the Site,
as may be required to enable the Contractor to complete the Works in accordance with this Agreement.
5.5 The Company shall be responsible for the security of the Site, the Works and the Contractor’s equipment (and that of its subcontractors) whilst on the Site.
5.6 At the Contractor’s request, the Company shall operate free of charge for the purposes of the Works any suitable lifting equipment belonging to or under the control of the Company, that may be at the Site. The Company shall retain control of and be responsible for the safe working of the lifting equipment.
5.7 The Company shall obtain and maintain all Company Consents in a timely manner so as to allow the Contractor to proceed with the Works in accordance with this Agreement.
5.8 The Company shall be responsible for any and all contamination at the Site. The Contractor shall be entitled to suspend the whole or any part of the Works if any contamination is discovered and recover from the Company any Costs it incurs as a result of such suspension in addition to the Contract Price and an adjustment to the Completion Date in accordance with clause 6.
6. Additional Cost and Extensions of Time
6.1 The Company shall issue a Change Notice if the Contractor has suffered delay and/or incurred Costs as a result of any of the following:
6.1.1 any breach of this Agreement by the Company;
6.1.2 any impediment, prevention or delay by the Company or any third party;
6.1.3 any error, omission or discrepancy in the data and/or information (including design) provided by the Company;
6.1.4 a change in law after the Works Commencement Date;
6.1.5 an amendment to a Company Consent or a Contractor Consent after the Works Commencement Date;
6.1.6 receipt of a new Company Consent or Contractor Consent after the Works Commencement Date;
6.1.7 any event of Force Majeure under clause 14;
6.1.8 any restrictions imposed on the Site or any shortage of labour, plant, equipment or materials to carry out the Works as a result of a pandemic (including COVID-19);
6.1.9 suspension under clause 5.8 and/or clause 8.5;
6.1.10 any adverse weather conditions; or
6.1.11 any adverse ground conditions.
6.2 Where the Company issues (or should have issued) a Change Notice pursuant to this clause 6, the Contractor will be entitled to such adjustment to the Contract Price and/or the Completion Date as are fair and reasonable taking into account all relevant factors.
6.3 This clause 6 shall be in addition to any other rights and remedies of the Contractor under this Agreement.
7. Variations
7.1 Either Party may at any time propose a Variation by notice in writing to the other Party, provided that the Company shall not be entitled to propose the omission of any part of the Works. No Variation shall be effective unless agreed by both Parties in writing.
7.2 If the Company has requested a proposal for a Variation from the Contractor, the Contractor shall prepare and submit such a proposal to the Company within thirty (30) days of its receipt of the Company’s request, provided always that the Contractor shall not be obliged to submit a proposal for a Variation that:
7.2.1 would put the Contractor in breach of this Agreement;
7.2.2 would be illegal to undertake; and/or
7.2.3 the Contractor does not have the expertise to undertake.
7.3 The Contractor shall include in each proposal for a Variation (whether requested by the Company or proposed by the Contractor):
7.3.1 any proposed increase to the Contract Price; and
7.3.2 any proposed adjustment to the Completion Date.
7.4 The Costs incurred by the Contractor in preparing a proposal for a Variation requested by the Company shall be recoverable from the Company on demand by the Contractor, whether or not the Contractor is instructed to proceed with the Variation.
7.5 If the Contractor has submitted a proposal for a Variation under clause 7.2, the Company shall notify the Contractor within five (5) Business Days of receipt of such notification, whether the Variation is agreed.
7.6 If a Variation and the consequences thereof are agreed between the Parties under clause 7.5, the Contract Price and/or the Completion Date shall be adjusted accordingly.
7.7 No Variation shall constitute or be construed as a waiver of any of the terms of this Agreement or obligations of either of the Parties.
8. Payment
8.1 In consideration of the satisfactory performance by the Contractor of the Works, the Company will pay the Contractor the Contract Price at the times set out in the Letter.
8.2 The Contractor will submit to the Company a Payment Application in respect of each instalment of the Contract Price plus any additional sums which the Contractor has become entitled to claim under this Agreement.
8.3 The Company will pay each instalment of the Contract Price not later than the Final Date for Payment provided that the Company may, not later than seven (7) days prior to the Final Date for Payment, submit a Pay Less Notice to the Contractor. The Company shall not be entitled to withhold payment to the Contractor unless it has issued a Pay Less Notice in accordance with this clause 8.3.
8.4 If any sum payable under this Agreement is not paid by the Final Date for Payment then, without prejudice to the Contractor’s other rights under this Agreement, that sum will bear interest from the Final Date for Payment until payment is made in full, both before and after any judgment, at eight (8) per cent per annum in excess of the rate set from time to time by the Bank of England's monetary policy committee or any successor of it.
8.5 If the Company fails to make any payment to the Contractor in accordance with this Agreement, the Contractor shall be entitled, by giving seven (7) days’ notice to the Company, to suspend performance of the Works until this failure has been remedied. Prior to the Contractor being obliged to resume the Works, the Company shall pay to the Contractor the Costs incurred as a result of such suspension, including the Costs of demobilisation, remobilisation and of the resumption of the Works.
8.6 If a suspension of the Works pursuant to clause 8.5 continues for more than twenty-one (21) days, the Contractor shall be entitled to terminate this Agreement immediately by notice to the Company.
8.7 All amounts due and payable under this Agreement shall be exclusive of Value Added Tax which shall be payable in addition thereto and at the rate prevailing at the date upon which payment is due.
8.8 All payments to be made by the Company to the Contractor under this Agreement will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
9. Defects
9.1 The Contractor warrants that it shall perform the Works in accordance with the provisions of this Agreement and that at completion the Works shall be free from Defects (save for minor snagging items).
9.2 In the event that the Company notifies the Contractor of any Defects in the Works during the Defects Notification Period, the Contractor shall rectify such Defects within the Defects Correction Period.
9.3 On expiry of the Defects Notification Period, the Contractor shall have no further liability to the Company (whether under this Agreement, tort (including negligence) common law or otherwise) in respect of Defects and the Company may not commence any claim against the Contractor in respect of any Defects after the expiry of the Defects Notification Period.
10. Working Hours
The Contractor may (in its sole discretion) carry out the Works outside normal working hours (08.00-16.30 Monday to Friday, public holidays excepted) if, in the circumstances, it shall be practicable to do so and, where it has been requested to do so by the Company, subject to the Company paying to the Contractor the Costs suffered or incurred in so doing (such Costs to be added to the Contract Price and paid by the Company in advance of the Contractor undertaking such work). If the Contractor incurs Costs that are in excess of the Costs paid in advance, the Contractor shall notify the Company of the increase to the Costs and the Company shall pay such additional Costs before the Work proceeds further.
11. Limitation of Liability
11.1 The Contractor’s total liability to the Company whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to [fifty percent (50%)]3 [twenty-five percent (25%)]4 of the Contract Price unless a lower sum is stated in the Letter.
11.2 If the Contractor is considered to be jointly liable with third parties, the Contractor’s liability shall be limited to that proportion of liability which is attributable to the Contractor’s breach.
11.3 The Contractor shall not be liable to the Company, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
11.3.1 loss of profits;
11.3.2 loss of revenue;
11.3.3 loss of sales or business;
11.3.4 loss of agreements or contracts;
11.3.5 loss of anticipated savings;
11.3.6 loss of or damage to goodwill; or
11.3.7 any indirect or consequential or analogous loss.
11.4 Nothing in this Agreement limits or excludes the Contractor’s liability for:
11.4.1 death or personal injury caused by its negligence; or
11.4.2 fraud or fraudulent misrepresentation.
11.4.3 any liability or loss which is recoverable under any of the policies of insurance maintained by the Contractor under this Agreement.
11.5 The terms implied by sections 3 to 5 of the Supply of Goods and Works Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
11.6 Notwithstanding anything else in this Agreement or any legal requirement, the Contractor shall not be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made against the Contractor by the Company before the expiry of the Limitation Period.
12. Insurances
The Contractor shall maintain (from the Commencement Date until completion of the Works) the insurance(s) set out in the Letter at the rates set out in the Letter, subject to the Contractor being able to obtain such insurances at rates that are, in the Contractor’s reasonable opinion, commercially reasonable.
13. Copyright
13.1 As between the Parties, all Intellectual Property in the Contractor’s Documents shall at all times remain vested in and be the property of the Contractor. The Contractor shall be entitled to use photographs and images of the Works in connection with the sale or marketing of any of the works provided or sold or services rendered by the Contractor.
13.2 The Company shall be entitled to use, copy and communicate the Contractor’s Documents solely for the purposes of completing, operating, maintaining, repairing and demolishing the Works. The Contractor’s Documents shall not, without the Contractor’s prior written consent, be used, copied or communicated to a third party by (or on behalf of) the Company for purposes other than those permitted under this clause 13.2.
13.3 The Contractor shall not be liable for any use by the Company of the Contractor’s Documents for any purpose for which the Contractor’s Documents were not intended.
13.4 The Contractor shall be entitled to use, copy and communicate the documents provided to the Contractor by the Company for the purposes of complying with its obligations under this Agreement.
14. Force Majeure
14.1 The Contractor shall be excused from the performance of any of its obligations affected by an event of Force Majeure for as long as such Force Majeure event prevents it from performing those obligations.
14.2 If the Contractor is affected by an event of Force Majeure, the Company shall continue to pay the Contract Price in respect of any part of the Works which the Contractor continues to perform notwithstanding the occurrence of the Force Majeure.
14.3 If the execution of all or a material part of the Works is prevented for a period of more than ninety (90) days (whether consecutive or in the aggregate), the Contractor shall be entitled to terminate this Agreement by giving not less than fourteen (14) days’ notice to the Company.
15. Termination
15.1 If:
15.1.1 the Company cancels an order placed on the Contractor after a 14 day cooling period from the date of acceptance of the Contractor’s offer.
15.1.2 the Company is Insolvent;
15.1.3 the Company is in material breach of its obligations under this Agreement and fails to remedy the same after receiving thirty (30) days’ written notice from the Contractor specifying the breach and requiring its remedy; or
15.1.4 the Works have been suspended for the period referred to in clause 8.6,
then the Contractor will be entitled by written notice to the Company immediately to terminate this Agreement.
15.2 If the Contractor is:
15.2.1 the Contractor cancels an order placed upon the Company after a 14 day cooling period from the date of acceptance of the Company’s offer.
15.2.2 Insolvent; or
15.2.3 in material breach of its obligations under this Agreement and fails to remedy the same after receiving thirty (30) days’ written notice from the Company specifying the breach and requiring its remedy, then the Company will be entitled by written notice to the Contractor immediately to terminate this Agreement.
15.3 In the event of termination under clause 15.1 or 15.2, the Company will pay the Contractor:
15.3.1 25% of the accepted total order value or the first payment milestone/payment instalment, whichsoever is greater, plus all disbursements made on behalf of the client up to the point of termination along with a 15 percent handling charge.
15.3.2 any instalments of the Contract Price and other sums which have become due to the Contractor prior to the date of such termination and which remain unpaid (in respect of which the Final Date for Payment shall apply); and
15.3.3 a fair and reasonable proportion of the next following instalment of the Contract Price commensurate with the Works which the Contractor has performed up to the date of such termination, including the Contractor’s costs of protecting and securing the Works and any turnover of completed Works (the due date for which will be the later of the date of termination and the date of issue of the Contractor’s valid VAT invoice for such proportion and the final date for which will be twenty eight (28) days after the due date for such proportion);
15.3.4 for orders that were completed up to the date of termination plus any committed costs connected to that part of the order(s) which was not completed up to the date of termination;
15.3.5 all fees, costs and expenses incurred by the Contractor and relating to the demobilisation of its subcontractors, and the demobilisation/repatriation of the Contractor’s staff and labour employed in connection with the Works at the date of the abovementioned notification; and
15.3.6 the cost of any executed work, services or materials up to the date of termination the contractor has already obtained from its subcontractors, plus any committed costs connected to that part of the work, services or materials to be provided by the subcontractors, which were not completed up to the date of termination.
15.4 In the event of termination under clause 15.1, the Company will pay the Contractor the sums below, in addition to the amounts payable under clause 15.3:
15.4.1 any early termination fees the Contractor incurs in terminating its subcontractors; and
15.4.2 a sum equal to the agreed profit rate, being twenty-five percent (25%), on any costs mentioned in clause 15.3 and clause 15.4.1.
16. Assignment
16.1 The Company shall not be entitled to assign, novate or transfer its rights or obligations under this Agreement without the Contractor’s prior written consent.
16.2 The Contractor shall be entitled to assign the benefit of this Agreement without the Company’s prior written consent. The Contractor shall not be entitled to novate or transfer any of its obligations under this Agreement without the Company’s prior written consent.
17. Rights of Third Parties
The Parties do not intend that any of the terms of this Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
18. Notices
Any notice to be given by either Party under this Agreement will be sufficiently served if sent by hand or by post to the registered office or if there is none the last known address of the Party to be served or by e-mail to the e-mail addresses stated in the Letter. Any notice sent by hand will be deemed to be served on the date of delivery provided that if any notice sent by hand is sent after 4.45pm on a Business Day or at any time on a day that is not a Business Day, it will be deemed to be served on the next Business Day. Any notice sent by post will be deemed to have been duly served at the expiration of 48 hours after the time of posting if the end of that period falls before 4.45 pm on a Business Day and otherwise on the next Business Day. Any notice sent by e-mail will be deemed to have been duly served on the date of delivery provided that (i) where delivery is after 4.45pm on a Business Day or at any time on a day that is not a Business Day, it shall be deemed served on the next Business Day, and (ii) the sender does not receive a notification that the e-mail has not been received or of delivery failure.
19. Disputes
19.1 Subject to either Party’s right to adjudicate at any time, the Parties will use their reasonable endeavours to resolve any dispute or difference between them through negotiation.
19.2 The Housing Grants, Regeneration and Construction Act 1996 provisions for adjudicating disputes shall be deemed to apply to disputes under or in connection with this Agreement.
20. Governing Law and Jurisdiction
20.1 This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by English Law.
20.2 The courts of England have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including in relation to any non-contractual obligations).
21. Miscellaneous
21.1 No amendment or modification of this Agreement will be valid or binding on any Party unless the same is made in writing and is signed by the Parties or their duly authorised representatives.
21.2 If any provision or portion of this Agreement is adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, such provision or portion of this Agreement shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect. In such event, the Parties shall use their best endeavours to replace such invalid provision by another appropriate valid provision as close as possible to the original provision in meaning and effect.
Jason Johnson, Managing Director
Reviewed: January 2022