Welcome to qR Architects Ltd sub-contractor Terms and Conditions
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Definitions
The following definitions and rules of interpretation apply in these Terms and Conditions.
Architect: means qR Architects Ltd, registered in England and Wales with company number 8575064 and it's registered offices at 239 Kensington High Street, Kensington, London W8 6SN
Change Order: a document setting out the proposed changes and the effect those changes will have on (a) the Service; (b) payments; (c) the timetable for the Services; and (d) to these Terms and Conditions.
Client: means the Architect’s client as identified in the Work Authorisation.
Final Payment: means final payment for the Service and/or Work, as provided in clause 8.5.1.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Party: mean s either the Architect or the Subcontractor.
Parties: means both the Architect and the Subcontractor.
Prime Contract: means the contract between the Architect and its Client that is identified in the Work Authorisation and covers the project that is the subject of the Services and/or Work.
Schedule of Rates: means the rates to be paid by the Architect to the Subcontractor for the supply of the Services and/or Work as specified in the Work Authorisation.
Services: means the services to be provided by the Subcontractor which are set out the Work Authorisation, including services which are incidental or ancillary to such services.
Special Terms: means those additional terms imposed upon the Subcontractor to govern particular parts of the Services and/or Work and identified in the Work Authorisation.
Subcontract: means (i) these Terms and Conditions, (ii) the Work Authorisation, (iii) any Special Terms and Conditions expressly identified in the Work Authorisation, (iv) the Prime Contract; and (v) any Change Orders, as defined in clause 9, made properly in accordance with these Terms and Conditions.
Subcontractor: means the Structural Engineer entering into a Work Authorisation as subcontractor with the Architect.
Work: the work set out the Work Authorisation, including services which are incidental or ancillary to such Work.
Work Authorisation: means the document containing drawings, specifications, schedules, data or information listed or identified therein which is agreed by the Architect and the Subcontractor.
1.2 Interpretation
1.2.1 The headings and notes to the Terms and Conditions are for convenience only and do not affect interpretation. Words denoting natural persons include corporations and firms and vice versa.
1.2.2 A reference to a statute or statutory provision is a reference to it as amended or re- enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory position.
1.2.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.4 A reference to writing or written includes email.
1.2.5 The terms defined in these Terms and Conditions shall have the same meanings when used in the Special Terms and Conditions and Work Authorisation, unless a separate definition is used therein.
2. Applicability
2.1 These General Terms and Conditions (“Terms and Conditions”) shall apply to any work or service provided for on behalf of the Architect (as defined below), by a Subcontractor. By signing the Work Authorisation, (as defined below), the Subcontractor agrees to be bound by these Terms and Conditions. Each Work Authorisation constitutes a separate Subcontract incorporating these Terms and Conditions. These Terms and Conditions may be modified by the Architect from time to time, and the latest version of these Terms and Conditions posted the Architect’s website at: www.qrarchitects.co.uk
3. Effective Date
3.1 The effective date of the Subcontract is the date stated on the Work Authorisation (the “Effective Date”).
4. Scope of Work
4.1 The Subcontractor shall provide structural drawings and calculations, foundations details, underpinning details, and steel connections and reinforcement details and shall perform all drawings and details necessary for the complete, proper and safe completion of the Work as described in the Work.
5. Incorporation of Prime Contract
5.1 The Subcontractor agrees that it shall be bound by the Prime Contract, which is incorporated herein by reference.
5.2 With respect to the Work, without limiting any obligations otherwise set out in the Subcontract, the Subcontractor shall indemnity the Architect in full against all the obligations, risks and responsibilities that Architect, by the Prime Contract, assumes toward Client, including the obligation to comply with any Consent Order or Consent Decree incorporated and defined within the Prime Contract and all requirements relating to quality, timeliness of Service and/or Work.
5.3 The Architect shall have the benefit of all rights, remedies and redress against the Subcontractor that Client, by the Prime Contract, has against the Architect.
5.4 Where any provision of the Prime Contract conflicts with a provision of the Subcontract, the provisions most favourable to the Architects shall govern.
6. Obligations of the Subcontractor
6.1 The Subcontractor acknowledges that it has been given full opportunity to review the project and the Work and/or Services involved, and the Subcontractor warrants that it understands all of its obligations provided for under the Subcontract.
6.2 The Subcontractor shall be responsible for obtaining, maintaining and paying for all permits, licenses, certificates, insurance, fees, or notifications required by laws for the performance of the Service and/or the Work.
6.3 Prior to commencing Services and/or Work, the Subcontractor shall disclose the Architect in writing any collective bargaining (i.e., union) agreements applicable to performance of the Service and/or Work. The Subcontractor shall comply with any and all applicable collective bargaining agreements. Should any work stoppage occur due to non- compatibility of its employees, the Subcontractor shall replace such employees of proper affiliations so that such Services and/or Work will be continuous and uninterrupted.
6.4 The Subcontractor shall advise the Architect promptly, in writing, of any of its employee’s dispute or anticipated employee’s dispute that may be expected to affect the performance of the Service and/or Work.
6.5 If the Work Authorisation specifies certain named employees of the Subcontractor to perform tasks in connection with the Service and/or Work, no change will be made in such Subcontractor key project individuals without the Architect’s prior written approval, which approval shall not be unreasonably withheld or delayed.
6.6 By written notice, the Architect may require the Subcontractor to remove from participating in the Service and/or Work any employee who, in the Architect’s opinion, is incompetent, careless, or otherwise objectionable for any reason. Upon receipt of such written notice, the Subcontractor shall immediately remove that individual from participating in the Service and/or Work and shall replace him or her with a technically proficient and suitable employee.
6.7 The Subcontractor shall not be entitled to any additional compensation as a result of said removal and replacement of an incompetent employee.
6.8 The Subcontractor shall assure that each of its permitted lower tier subcontractors, if any, complies with the requirements given in this clause 6.
7. Invoicing
7.1 Unless otherwise provided specifically in the Work Authorisation, the Subcontractor shall invoice the Architect no later than the seventh (7th) day following completion of the Services and/or Work. Invoices must be in strict accordance with the Schedule of Rates and/or other fee and payment provisions set out in the Work Authorisation.
7.2 The Subcontractor shall seek to obtain discounts in connection with any Services and/or Work procured by it to the fullest extent possible. All such discounts provided to or available to the Subcontractor in connection with any Services and/or Work procured by the Subcontractor shall be passed through to the Architect.
7.3 The Architect shall have no duty to compensate a Subcontractor for any invoice that is not submitted in accordance with the timelines given in clause 8 of these Terms and Conditions.
8. Payment Terms
8.1 The Architect will submit an invoice to the Client covering the Subcontractor’s Services and/or Work. The Architect will pay the Subcontractor for undisputed amounts within seven days (7) days after its receipt of the Client’s payment.
8.2 Progress Payments.
8.2.1 The Subcontractor agrees that progress payments are subject to the absolute condition precedent that the Client and the Architect have approved the Service and/or Work as being in accordance with the Subcontract. Furthermore, the Architect shall not be required to pay the Subcontractor amounts in excess of those actually accepted and paid for by the Client relating to any Service and/or Work provided, and the Subcontractor expressly assumes the risk of non-payment by Client.
8.2.2 If the provision to pay the Subcontractor after payment by the Client is narrowed by judicial construction or otherwise, found to be invalid or is otherwise unenforceable, then the provision shall be reformed to provide that the Architect will pay the Subcontractor for undisputed amounts upon the earlier of (i) Fifteen (15) days after the Architect’s receipt of the Client’s payment’ or (ii) Thirty (30) days after the Architect’s receipt of the Subcontractor’s invoice, except to the extent that any failure of the Client to pay invoiced amounts is attributable to acts or omissions of the Subcontractor.
8.2.3 For the avoidance of doubt, a progress payment made by the Architect shall not constitute acceptance of the Services and/or Work which is not in accordance with the Subcontract.
8.3 Withholding Payments.
8.3.1 The Architect may withhold payment otherwise payable to the Subcontractor without payment of interest on account of: (i) faulty or defective Service and/or Work performed and not immediately remedied by the Subcontractor; (ii) the filing of claims or reasonable evidence indicating the probable filing of claims or fines against the Architect or the Client directly or indirectly relating to the Service and/or Work.
8.3.2 The remedy of withholding payment is not exclusive. If the Subcontractor fails or refuses to remedy or remove any cause for withholding payment, the Architect may take whatever steps necessary to remedy or remove such cause and may deduct the cost from the amounts owed to the Subcontractor. If such cost exceeds the balance of the amounts owed by the Architect to the Subcontractor, Subcontractor and its sureties, if any, shall be liable for and shall pay the difference to the Architect.
8.3.3 The Architect will have the right to set off, against amounts otherwise payable hereunder, any amounts owing from the Subcontractor to the Architect whether under the Subcontract or otherwise.
8.4 Expenses.
8.4.1 Except for the reasonable and actual cost of hard copies (limited to £4.00 + VAT each), the Architect will not pay: (i) expenses related to “secretarial overtime” “word processing” and/or “messenger services,” or (ii) any ancillary expenses such as “travel time and expenses” or meals, unless such expenses are pre-approved by the Architect.
8.4.2 The Subcontractor shall not be entitled to any mark-up on any third-party expenses, including, without limitation, lower tier subcontractors.
8.5 Final Payment.
8.5.1 The Subcontract must provide the Architect with a final invoice within seven (7) days of completing the Services and/or Work, and as a condition precedent to receiving the full and final payment (Final Payment).
8.5.2 Following the Architect’s receipt of said invoice, and the Subcontractor’s complete Services, details, connections and calculations and its obligations hereunder, the Architect will issue Final Payment to Subcontractor.
8.5.3 The Architect shall not be required to pay the Subcontractor in the Final Payment any amounts in excess of those actually accepted and paid by the Client with respect to the Service and/or Work and such payment by the Client to the Architect shall constitute an absolute condition precedent to the Architect’s obligation to make the Final Payment to the Subcontractor.
8.5.4 The Final Payment shall not constitute a waiver of any of the Architect’s claims under the Subcontract, but acceptance of Final Payment shall constitute a waiver of all of
the Subcontractor’s claims for further compensation and any other claims under the Subcontract.
9. Change Orders
9.1 Except as specifically provided in clause 9.3 below, any change in: (a) the Service and/or Work; (b) work outside the scope of the Work Authorisation; and (c) any adjustment in the compensation due or any time extension with respect to the Service and/or Work shall be authorised in advance by a mutually signed “Change Order.”
9.2 Except pursuant to clause 9.5 below, the Architect shall have no obligations to pay the Subcontractor for any unauthorised services and/or work if the Subcontractor performs any extra or different work without previous express written authorisation from the Architect.
9.3 Prior to the issuance of any Change Order, the Parties, through their authorised representatives, shall negotiate diligently, reasonably and in good faith to agree on the terms of the Change Order, including without limitation, any monetary amount by which the Subcontract compensation shall be increased or decreased as a result of the proposed Change Order, in accordance with the pricing methods specified in the Schedule of Rates or as otherwise described in the Work Authorisation.
9.4 The Subcontractor agrees that exercising flexibility to meet changing circumstances is an obligation undertaken by the Subcontractor to the Architect hereunder and agrees that the Subcontractor’s inability to respond reasonably to requested changes will result in irreparable harm to the Architect and a material breach of the Subcontract.
9.5 A change in the Services and/or Work, any adjustment in the compensation due or any time extension or extra of the Service and/or Work may occur without a Change Order agreed upon in advance under the following circumstances only:
9.5.1 In an emergency affecting the safety of persons or property, where it is impracticable for the Subcontractor to obtain immediate authorisation from the Architect, the Subcontractor shall act, at its discretion, as necessary to prevent threatened damage, injury, or loss, without the need for a Change Order. Any such Services and/or Work will be completed in accordance with all English laws, with the pricing methods specified in the Schedule of Rates or as otherwise described in the Work Authorisation.
9.5.2 Without notice to any surety, the Architect may, unilaterally by written order, make any change, including additions, reductions or deletions, in the Service and/or Work to be performed under this Subcontract by the Subcontractor, and order the Subcontractor to perform extra work or work outside the Work Authorisation, including but not limited to those circumstances where the Prime Contract allows the Client to impose changes unilaterally. Within seven (7) working days from receipt of the Architect’s notice, the Subcontractor shall submit to the Architect d a detailed estimate with supporting calculations and pricing together with any adjustments in the schedule reflecting any changes in the prices and time for performance as a result of the order. For changes other than those imposed by a change to the Prime Contract, pricing shall be in accordance with the pricing methods specified in the Schedule of Rates or as otherwise provided in the Work Authorisation; however, to the extent such pricing is inapplicable, the cost of the change or the amount of the adjustment shall be limited to direct material and direct labour costs. Direct labour for this purpose shall include applicable payroll taxes and direct
material shall include taxes and delivery charges. For changes due to a change in the Prime Contract, pricing shall be governed by clause 9.7 below. The additional Service and/or Work or change in the services and/or work, as applicable, and the impact on fees, and any other material considerations, shall be set out in a Change Order which shall be signed by both Parties at the earliest practical time after notice of the change.
9.6 The Subcontractor shall not suspend or delay proceedings with the original Services and/or Work or the changed or extra work pending discussion of the pricing of the Services and/or Work pursuant to the Change Order, and the Subcontractor is obligated to continue providing its Services and/or Work. Except pursuant to clause 9.5, no claim for additional compensation or time, whether for extra Service and/or Work, changes or otherwise, shall be due from the Architect in favour of the Subcontractor unless set out in a mutually signed Change Order.
9.7 If a Change Order is made pursuant to a change to the Prime Contract requiring additional work (whether unilateral pursuant to clause 9.5.2 or otherwise), the Architect shall not be liable for a sum greater than that obtained from the Client for such additional service and/or work, less the Architect’s overhead and profit, fees and costs, and expenses incurred by the Architect in the collection of any such sum. The recovery by the Subcontractor for the cost of the Services and/or Work shall be conditioned upon prior recovery by the Architect from the Client. In the event of a deduction resulting from a change under the Prime Contract, the deduction made by the Client shall be binding upon Subcontractor.
10. Force Majeure
10.1 For the purposes of these Terms and Conditions, a “Force Majeure Event” shall mean circumstances beyond the control of the Party thereby affected, including, but not limited to, fire, flood, windstorm, earthquake, explosion, riot, sabotage, war, terrorism, threat of terrorism and any resulting security measures, strikes or other concerted work stoppages, lockouts, injunctions, inability to obtain energy, unscheduled outages or shutdowns.
10.2 Any delay in or failure of performance of either Party caused by a Force Majeure Event shall not constitute a default under the Subcontract or give rise to any claim for damages.
10.3 The Party affected by a Force Majeure Event shall use reasonable efforts to minimise the effect and duration of such Force Majeure Event, and shall inform the other Party in writing as soon as possible, but no later than three (3) working days from the commencement of the Force Majeure Event. Provided such notice is given, the obligation affected by a Force Majeure Event shall be automatically and exclusively extended for a time equal to the delay caused by such Force Majeure Event, except that no extension shall be granted if such Party's performance would have been delayed by the Party’s fault or negligence.
10.4 The Subcontractor agrees that any extension of time shall constitute the Subcontractor’s sole remedy for the impact of a Force Majeure Event, and that under no circumstance shall the Subcontractor be entitled to any damages, direct or indirect, resulting from the Force Majeure Event.
10.5 Nothing in this clause 10 shall be construed as preventing the Architect from exercising its right of cancellation of this Subcontract.
11. Representations, Warranties and Responsibilities
11.1 The Subcontractor represents and warrants that all the Services and/or Work provided by it or any of its subcontractors shall (a) comply with all UK fully Building Regulations; (b) comply with the terms of the Subcontract; (c) be performed by the proper number of experienced, skilled, registered and licensed personnel, qualified by education and/or experience to perform the Service and/or Work; (d) conform to the standard of care, skill, and diligence exercised by other similar professionals performing the same or similar services; and (e) be in accordance with the best current technological practices, means, methods, procedures and techniques for projects similar to the Service and/or Work.
11.2 The Subcontractor represents and warrants that it is in compliance with all relevant laws.
11.3 The Subcontractor represents that it is fully able and qualified to provide the Services and/or perform the Work and that it has the expertise, experience and knowledge, as well as the necessary personnel and financial capability to provide the Services and/or perform the Work in accordance with the terms of the Subcontract.
11.4 In addition to and not in limitation of any other rights and remedies of the Architect in connection with the Services and/or Work, the Subcontractor agrees to promptly re- perform and correct at its expense any Service and/or Work that fails to conform to the standard of care and other warranties that the Subcontractor has promised pursuant to this clause 11.
12. Indemnity and Liability
12.1 To the full extent permitted by law, the Subcontractor agrees to indemnify, hold harmless, and defend (with counsel and in a manner reasonably satisfactory to the Architect) the Architect, Client, and their respective officers, directors, agents, employees, predecessors, successors, assigns, parent and subsidiary companies, related or affiliated companies, shareholders, partners and independent contractors (collectively "Indemnified Parties") from and against any and all claims, suits, losses, liabilities (including without limitation liabilities under any laws), penalties, fines, judgments, demands, forfeitures, damages (including without limitation consequential damages, lost profits, economic loss, property diminution, stigma damages, punitive damages, liquidated damages arising from delay claims Client makes against the Architects as a result of delays the Subcontractor caused, and the Architects’ increased costs to perform the Prime Contract as a result of delays or improper work caused by the Subcontractor), response costs, removal costs, remedial costs, investigation costs and natural resource damages, both on-site and off-site (including without limitation at off-site disposal locations), causes of action for personal injury, property damages, trespass, nuisance, negligence, strict liability, professional liability or malpractice, patent, trade secret, copyright or any other intellectual property right, and the costs and expenses incident thereto (including, without limitation, costs of defence, settlement, and solicitor' fees) of whatever kind and nature, whether at law or in equity, whether under state or English law, statutory or common law and contractual (collectively referred to as “Claims”) that any of the Indemnified Parties may hereafter incur, become responsible for, or pay out as a result of the Service and/or Deliverables, or
breach of any term of the Subcontract by, the Subcontractor, lower tier subcontractors, or their officers, directors, parent or subsidiary companies, affiliates, agents, employees or independent contractors, whether or not Consultant/Subcontractor was negligent, except to the extent such Claims are the direct result of the sole negligence of the Architect, its officers, directors, agents or employees.
12.2 The Indemnified Party shall notify the Subcontractor promptly in writing of any Claim that is subject to the Subcontractor’s indemnity under this clause 6. The Subcontractor shall have no authority to settle any Claim on behalf of an Indemnified Party without that party’s prior written consent, such consent not being unreasonably withheld. If the Subcontractor fails to defend an Indemnified Party against any such Claim, the Indemnified Party may defend itself and settle any matter as the Indemnified Party in its sole discretion deems appropriate, at the Subcontractor’s expense. Consultant/Subcontractor will further indemnify the Indemnified Party for all costs, including attorneys’ fees, which are attributed to the Indemnified Party’s defence against or settlement of such matter.
12.3 The provisions of this clause 12 shall survive the completion of the Services and/or Work or the expiration, cancellation, or termination of the Subcontract.
12.4 The Subcontractor agrees that it will communicate directly with the Client in the event that it is liable to the Client under the Subcontract.
12.5 To the extent that any liens may legally attach to any portion of the Client’s property or the project site identified in the Work Authorisation (the Project Site), the Subcontractor agrees to defend, indemnify and hold harmless the Architect and the Client from and against any and all mechanic’s liens or other liens, or claims or rights to enforce liens, including any related expenses and legal fees, against the Project Site or the improvements to be erected thereon arising out of any Services and/or Work to be performed or labour or materials to be furnished under the Subcontract. Neither Final Payment nor acceptance of the improvements erected hereunder shall constitute a waiver of this indemnity. If any such lien or claim for lien shall at any time be filed, the Subcontractor shall promptly cause the lien to be removed or shall reimburse the Architect in full for all costs it incurs or may be compelled to pay in discharging any such lien or satisfying any such claim, including all legal fees.
12.6 As to any claim made by an Indemnified Party under this clause 12, the Subcontractor expressly waives any insulation from liability or immunity from suit with respect to injuries to the Subcontractor’s employees which may be extended to the Subcontractor as a result of any payments made by the Subcontractor to any employees or under any applicable workers’ compensation statute or similar law or judicial decision.
12.7 The provisions of this clause 12 shall survive the completion of the Services and/or Work or the expiration, cancellation, or termination of the Subcontract.
13. Project Site
13.1 Duty to Conduct Investigation.
13.1.1 The Subcontractor represents that before executing the Subcontract it has examined thoroughly and by its own independent investigation the Project Site and has investigated and understands the conditions affecting the execution or cost of the Services and/or Work, including but not limited to, laws applicable to the Service and/or Work.
13.1.2 The Subcontractor has the sole responsibility of satisfying itself concerning the nature and location of the Service and/or Work and the local conditions at the Project Site and claims for additional compensation or extensions of time because of failure of Subcontractor to familiarise itself with local and special conditions at the Project Site will not be allowed.
13.2 Information provided by the Architect and the Client.
13.2.1 The Subcontractor shall have no right to rely on investigation of subsurface conditions of the Project Site conducted by the Architect and/or the Client. If the Architect or the Client provides records of any such investigation by the Architect and/or the Client to the Subcontractor, it shall be for informational purposes only. Neither the Architect nor the Client assumes any responsibility whatsoever in respect to the sufficiency or accuracy of such investigations, the records thereof, or any interpretations thereof and there is no warranty or guarantee, either express or implied, that the conditions indicated by such investigations or records thereof are representative of those existing at the Project Site, or any part thereof, or that unforeseen and unforeseeable conditions may not be encountered, or that the Subcontractor may not encounter materials, substances or obstacles other than, or in proportions different from, those indicated on any such records.
13.3 Concealed or Unknown Conditions.
13.3.1 If the Subcontractor encounters conditions at the Project Site at the time of Structural Survey that are subsurface or otherwise concealed physical conditions unknown to the Subcontractor, the Architect or the Client and that differ materially from those ordinarily found to exist and generally recognised as inherent in activities of the character provided for in the Subcontract, including without limitation, human remains, burial markers, archaeological sites, wetlands or hazardous materials or any wastes not identified in the Subcontract, the Subcontractor shall immediately suspend any operations that would affect them and shall notify the Architect.
13.3.2 Upon receipt of such notice, the Architect shall promptly take action to obtain Local Authority authorisation required to resume the operations.
13.3.3 The Subcontractor shall continue to suspend the Sutural Survey until otherwise instructed by the Architect but shall continue with all other Services and/or Work that does not affect those features.
13.3.4 Any additional services and/or work arising from the existence of such features shall be performed by the Subcontractor at its sole cost and expense.
14. Time for Performance
14.1 Time is of the essence in the performance of the Service and/or Work. The Subcontractor shall commence its Service and/or Work as prescribed in the Work Authorisation and shall perform diligently to completion of all Service and/or Work to the satisfaction of the Architect and the Client.
14.2 The Subcontractor shall at all times cooperate with the Architect and others engaged in the Service and/or Work and shall coordinate its efforts with those of all others so as to facilitate the efficient and timely completion of the Service and/or Work.
14.3 The Subcontractor is responsible, at its own expense, for providing all work forces, additional shifts, overtime, or expedited labour necessary to meet the agreed Service and/or Work schedule.
14.4 In addition to any other remedies the Architect may be entitled to seek, including without limitation those pertaining to Claims under clause 12.1, the Subcontractor shall be liable to the Architect for any and all penalties, fines, fees, damages (actual or liquidated), costs or other payments the Architect may be required to pay as a result of any delay in the Services and/or Work or schedule for performance caused by Subcontractor or its subcontractors.
15. Health and Safety; Other Requirements
15.1 Safe practices are a priority requirement in the performance of the Service and/or Work. The Subcontractor acknowledges and agrees that: (i) it is familiar with any inherent hazardous conditions of performing the site Services and/or Work; and (ii) it shall perform the Services and/or Work at its own risk; and (iii) it shall be solely responsible for the health and safety of its employees.
15.2 The Architect does not assume any responsibility whatsoever for the safety of the Subcontractor's personnel or operations. In the event that the Architect or the Client elect to provide emergency medical treatment or related services, the Subcontractor acknowledges and agrees that: (a) neither the Architect nor the Client has any obligation or duty to provide such treatment or services; (b) neither the Architect nor the Client shall have any liability arising from such treatment or services; and (c) the Subcontractor shall defend, indemnify and hold harmless the Indemnified Parties from any Claims arising from such treatment or services. Neither the Architect nor the Client shall have any liabilities from failure to provide such treatment or related services.
15.3 The Subcontractor shall comply with all applicable English health & safety laws, including any project-specific requirements, or other work rules or procedures, imposed by the Client or the Architect (whether safety-related or otherwise), whether or not the Subcontractor agrees that those requirements are necessary in order to comply with applicable law.
15.4 The Subcontractor shall not be entitled to any additional compensation for complying with any health and safety requirements imposed by laws, the Client or the Architect. If there is any conflict between any such provisions, the Subcontractor shall comply with the most stringent provision.
15.5 The Subcontractor shall formulate and implement its own safety rules and regulations to promote safe and orderly prosecution of the Service and/or Work.
15.6 Personal Protective Equipment.
15.6.1 The Subcontractor shall provide its own personal protective equipment (“PPE”) if required given the nature of the Services and/or Work.
15.6.2 The Architect does not endorse, warrant, or assume any responsibility whatsoever for the adequacy of regulatory standards for the selection of PPE in protecting users from adverse health effects arising from the exposure to hazardous wastes and/or toxic substances while performing any Services and/or Work pursuant to the Subcontract.
15.7 Emergencies.
15.7.1 In the event that in connection with the Subcontractor’s performance of the Service and/or Work, any work condition, incident, violation of English laws, event or occurrence, threatens the health or safety of any person, threatens to damage property or the environment, or results in a release to the environment (collectively, “Emergencies”), the Subcontractor shall: (i) determine, in the exercise of its reasonable judgment and in compliance with the health and safety requirements discussed herein and all laws, the need to cease work, evacuate the Project Site, initiate emergency procedures or notify government agencies or authorities; (ii) take all actions necessary to resolve the Emergency, protect health, safety and welfare and comply with all laws; and (iii) provide immediate telephone notice to the Architect followed by written notice within twenty-four (24) hours of the Emergency. The written notice shall describe the Emergency, the circumstances surrounding it, and all actions taken by the Subcontractor and any governmental agencies in connection with the Emergency.
16. Term and Termination
16.1 Unless earlier terminated, the Subcontract shall be effective for the period of performance under the Work Authorisation.
16.2 Termination for Convenience.
16.2.1 The Architect may, in its sole discretion, terminate the Subcontract for convenience at any time, whether or not the Subcontractor is in default, without penalty or obligation, upon giving three (3) days prior written notice to the Subcontractor, or immediately upon written notice in the case of termination of the Prime Contract.
16.2.2 The Subcontractor’s sole and exclusive remedy for termination for convenience shall be payment of: (i) mobilisation costs, but only to the extent that they represent actually incurred and documented costs paid for the transport, or similar tasks necessary to the commencement of the Service and/or Work; and (ii) for lump sum price items (other than the line item for mobilisation on any schedule of values), a percentage of the agreed lump sum price based on the reasonable value of the Service and/or Work properly performed up to the time of the termination.
16.2.3 A termination for convenience shall not relieve the Subcontractor of any responsibility it would otherwise have under the Subcontract to correct Service and/or Work that is not correct or otherwise not in conformity with the Subcontract, or to pay any costs arising from such defective or non-conforming Services and/or Work.
16.2.4 The Architect does not waive any right or claim to damage which it had under the Subcontract prior to termination and may pursue or continue to pursue any cause of action arising from actions or omissions of the Subcontractor before termination.
16.3 Termination for Default
16.3.1 The Subcontractor agrees that it materially breaches the Subcontract if the Subcontractor: (i) fails to provide the Service and/or Work satisfactorily; (ii) fails to pursue the Service and/or Work promptly, in accordance with the Subcontract and the schedules established by the Client or the Architect, or misses any milestones that have been established in the schedule; (iii) fails, due to strikes, picketing, boycotts, cessations of work; (iv) interferes with, disrupts, or threatens to interfere with or disrupt the Services of the Architect, the Client, or any other labourer, subcontractor, or other person working on the Project Site, whether due to technical disputes, boycotting, or any other reason; (v) has filed against it any lien for unpaid taxes; (vi) files a voluntary petition under any chapter of the Bankruptcy Code, has an involuntary petition filed against it, makes a general assignment for the benefit of its creditors, or has a receiver appointed; (vii) allows any insurance required under the Subcontract to lapse, has such insurance cancelled, or otherwise fails to maintain all required insurance coverages for the full term required by the Subcontract; (viii) fails, upon demand, promptly to remove liens that have been placed upon the Project Site or defend lien claims; (ix) fails to promptly indemnify the Architect against any payment bond claims asserted as a result of the Subcontractor’s failure to pay its lower tier Subcontractors or suppliers; or (x) fails to carry out the Service and/or Work in a proper and professional manner, and in full compliance with the Subcontract. This list is not intended to be exhaustive, and other breaches by the Subcontractor may also be material.
16.3.2 If the Subcontractor materially breaches the Subcontract, the Architect may terminate the Subcontract for default upon three (3) days’ written notice to the Subcontractor. The termination shall take effect three (3) days after the date of the
notice. However, the termination will not take effect if: (i) the Subcontractor cures the breach to the Architect’s satisfaction before the effective date of the termination, and the Architect so notifies the Subcontractor; or (ii) with respect to breaches that cannot reasonably be cured within three (3) days, the Subcontractor has, within the three (3) days, taken meaningful steps towards curing the breach and presented the Architect with a definite plan to cure the breach, which is acceptable to the Architect in its sole discretion.
16.3.3 All sub-subcontract agreements which the Subcontractor or the Client enters into to carry out the Service and/or Work shall include a provision that the Subcontractor agrees its agreement may be assigned, upon the termination of the Subcontractor for default,
to the Architect. The Architect shall have the right, but not the obligation, to accept assignment of any or all such contracts.
16.3.4 In case of termination for default, the Subcontractor shall not be entitled to receive any further payment until the Service and/or Work has been fully completed and accepted by the Architect. At such time, if any unpaid balance to Subcontractor, for Service and/or Work performed that is in accordance with the Subcontract, exceeds the expenses incurred by the Architect in completing the Service and/or Work, together with any additional costs or consequential damages occasioned by the Subcontractor’s default, the excess shall be paid to the Subcontractor. If any unpaid balance to the Subcontractor is less than the expense, the Architect incurred in completing the Work, together with any additional costs or consequential damages occasioned by the Subcontractor’s default, the Subcontractor shall pay the difference to the Architect.
17. Assignment; Contracting
17.1 Neither Party shall assign the Subcontract or any monies due or to become due to it hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld.
17.2 Notwithstanding the foregoing, the Architect may, without first obtaining Subcontractor's written consent, assign its rights and obligations hereunder to the Client, any direct or indirect parent or subsidiary of the Architect, now existing or hereafter created or acquired, or to any other affiliate of the Architect, or to a corporation that is the successor to all or substantially all of the Architect’s assets.
17.3 If the Architect permits the Subcontractor and the Client to sub-subcontract any of the Subcontractor’s obligations hereunder, the Subcontractor shall include in its contract with such further subcontractor, a provision whereby such further subcontractor agrees to be bound by the terms of the Subcontract.
18. Independent Contractor
18.1 The Subcontractor agrees that it is an independent Structural Engineer in the performance of the Service and/or Work and that neither the Subcontractor nor the Subcontractor's employees or sub-subcontractors are servants, agents, employees, or representatives of the Architect.
18.2 The Subcontractor will defend, indemnify and hold harmless the Architect and its affiliates and their respective officers, directors and employees, against any claim by any of the Subcontractor’s employees, subcontractors or any other independent contractors.
19. Notices
19.1 All notices, requests, demands, and other material communications hereunder shall be in writing. Any notice communicated verbally must be confirmed in writing. All notices required hereunder shall be given by email.
20. Confidentiality
20.1 Any and all information disclosed in any manner by the Architect and/or the Client to the Subcontractor relating to the Architect’s and/or the Client’s business or operations in whatever form, regardless of whether such information relates to the Subcontract, together with all information supplied by the Subcontractor to the Architect and/or the Client based on information provided by the Architect and/or the Client to the Subcontractor (“Information”) shall be and shall remain the property of the Architect and/or the Client.
20.2 Information shall: (i) not be reproduced or copied, in whole or part, except for use as authorised by the Architect to provide the Service and/or Work to the Architect; (ii) not be disclosed to any third party; and (iii) together with any full or partial copies thereof, be returned or destroyed upon the Architect’s request. The Subcontractor shall use Information solely for the purpose of providing the Service and/or Work to the Architect.
20.3 The Subcontractor will not disclose the Subcontract, in whole or in part, to any third party without the Architect’s prior written consent. The Subcontractor will not make any
disclosures concerning the Architect, the Client, the Subcontract or the Services and/or Work, to any third party or publicly, without the Architect’s prior written consent.
20.4 The Subcontractor agrees that the Architect will suffer irreparable harm if the Subcontractor breaches any of its covenants pursuant to this clause 20 and that monetary damages alone would be inadequate to compensate the Architect for such
breach. Accordingly, the Subcontractor agrees that, if the Subcontractor breaches or threatens to breach any provision of this clause 20, the Architect, in addition to and not in limitation of, any other rights, remedies or damages available at English law or in equity, shall be entitled to a temporary restraining order, preliminary injunction and permanent injunction in order to prevent or to restrain any such breach by the Subcontractor or the Subcontractor’s officers, directors, employees, agents, representatives and any and all persons directly or indirectly acting for, on behalf of, or with the Subcontractor.
21. Ownership of Intellectual Property
21.1 The Subcontractor agrees that any and all information, work product and other creations developed, produced or made by the Subcontractor or its subcontractors in performing the Subcontract (collectively, “Work Product”) shall be considered “works made for hire” under the copyright laws of the United Kingdom and shall be the sole and exclusive property of the Architect (which ownership may be assigned by the Architect to the applicable Client).
21.2 As between the Architect and the Subcontractor, the Architect shall exclusively own all right, title and interest in and to the copyrights and other Intellectual Property Rights for such Work Product.
21.3 If such creations are not deemed to be works made for hire under the copyright laws of the United Kingdom, the Subcontractor hereby transfers and assigns to the Architect, and the Architect hereby accepts all right, title and interest in and to all such copyrights and other intellectual property rights.
21.4 The Subcontractor hereby transfers and assigns to the Architect, and the Architect hereby accepts, all right, title and interest in and to any and all trade secrets, inventions, and other intellectual property developed hereunder.
21.5 The Subcontractor further agrees to give all further assurances and to execute all documents necessary for the Architect and/or the Client to evidence title and ownership in the Architect or Client.
21.6 If the assignment of rights by the Architect to the Client in the Prime Contract is more favourable to the Client, than the assignment of rights by the Subcontractor to the Architect in this clause 21 is favourable to the Architect, then the effect of clause 5.1 is that the Subcontractor’s assignment of rights to the Architect under this clause 21 shall be expanded to be consistent with such assignment of rights by the Architect in the Prime Contract. The foregoing clarifying sentence does not limit clause 5.1 as applies to other provisions of these Terms and Conditions which do not contain such a clarifying sentence.
21.7 The Architect or the Client, as applicable, shall retain sole ownership of all information, design and data provided to the Subcontractor.
22. Insurance
22.1 The Subcontractor and all lower tier subcontractors, at their expense and at no cost to the Architect, shall procure and continuously maintain the following insurance with the following coverage and minimum limits during the term of the Subcontract:
22.1.1 Professional Liability - £1,000,000 on an occurrence or claim basis, with an annual aggregate of £5,000,000, for professional error, act or omission arising out of the Subcontractor’s Services and/or Work. The policy form may not exclude coverage for Bodily Injury and Property Damage. Professional Liability insurance policy must include coverage for contractual liability. If coverage is provided on a claims made basis, then subcontractor must maintain coverage or purchase “tail” for a period of no less than three (3) years after the completion of the Subcontract.
22.2 The Subcontractor’s insurance policies required hereunder shall be primary and non-contributory. Any insurance maintained by Indemnified Parties shall be excess of the Subcontractor’s insurance and shall not contribute with it.
22.3 A current Certificate(s) of Insurance, and if required by the Architect any supplemental documents such as insurance summaries, insurance policies, binders and endorsements, must be provided to the Architect prior to initiation of any Service and/or Work, and the provision of such certificate(s) and supplemental documents is a condition precedent to the Subcontractor’s right to be paid under the Subcontract. Such Certificate(s) of Insurance shall reflect all of the above required coverages and endorsements and shall indicate that the Architect will be provided with thirty (30) days advance written notice of cancellation. Notwithstanding anything to the contrary contained herein, if the Prime Contract requires types of insurance coverage, endorsements and/or details as to certificates, not required hereunder, and/or requires minimum limits of liability greater than the limits required hereunder, the Certificate(s) of Insurance will include the additional insurance coverage, endorsements, certificate details and/or higher minimum limits of liability, and the Subcontractor will be required to maintain such additional insurance coverage, endorsements, certificate details and/or higher minimum limits during the term of the Subcontract without additional cost to the Architect or the Client, unless such cost is expressly allocated to the Architect in the mutually executed Work Authorisation. The Architect reserves the right to require higher limits of insurance for specific exposures, as set forth in the Work Authorisation or otherwise.
22.4 The Subcontractor’s liability shall not be limited to the minimum coverage amounts required, and lack of insurance applicable to a claim or incident shall not exclude the Subcontractor’s liability. The additional insured status of the Architect shall not be limited by the limits of liability specified in the Subcontract; all limits required herein are minimum requirements. The Subcontractor is responsible for all deductibles, and premium costs.
22.5 The Subcontractor shall require that any and all tiers of its subcontractors shall maintain insurance in like form and amounts as set forth in this clause 22 including additional insured and waiver of subrogation endorsements in favour of the Indemnified Parties.
23. Taxes
23.1 Except for any taxes that are expressly and specifically identified in the Work Authorisation as the responsibility of the Architect and that are then properly itemised and invoiced by the Subcontractor to the Architect.
23.2 The Architect reserves the right, as appropriate, to report, withhold and pay to the tax authorities any tax on account of the Subcontractor’s Services and/or Work based on the certifications or written representations provided by the Subcontractor and accepted by the Architect.
24. Non-Competition
24.1 The Subcontractor agrees that it will not actively participate in any other efforts that are competitive with the Architect’s efforts related to a project for which the Subcontractor is performing Service and/or Work. The term “actively participate,” as used herein, includes the interchange of technical data with the Architect’s competitors.
24.2 The foregoing restriction does not limit or restrict the rights of the Parties from quoting, offering to sell or selling to others any services that do not relate to a project for which the Subcontractor is performing Service and/or Work. The Subcontract is intended to protect services arising from the combined efforts of the Parties on a project, and proprietary information pursuant to the Subcontract.
25. The Architect’s Observation of the Subcontractor Service and/or Work
25.1 The Subcontractor understands that the Architect personnel have the right (but not the obligation) to inspect and check the Subcontractor's Service and/or Work.
26. Access to Project Site
26.1 The Architect and/or the Client shall be responsible for providing the Subcontractor with access and usage of the Project Site as necessary to permit performance of the Service and/or Work. The Subcontractor shall promptly provide any evidence of insurance, agreements or information as may be required by third parties to achieve such access.
27. The Architect’s Right to Stop the Subcontractor’s Services and/or Work.
27.1 If the Subcontractor: (i) fails to correct Service and/or Work that is not in accordance with the requirements of the Subcontract; (ii) fails to carry out Service and/or Work in accordance with the Subcontract; or (iii) fails to complete the Service and/or Work on schedule, the Architect may order the Subcontractor to stop the Service and/or Work, or any portion thereof, until the cause for such order has been eliminated.
27.2 The right of the Architect to stop the Service and/or Work under clause 27.1 shall not give rise to a duty on the part of the Architect to exercise this right for the benefit of the Subcontractor or any other person or entity. This right shall be in addition to, and not in restriction of, the Architect rights under clause 16 and any other rights available under law.
27.3 The Architect will not be responsible for any fees, costs or expenses as a result of such completion.
28. The Architect’s Right to Carry Out the Work
28.1 If the Subcontractor defaults or neglects to carry out the Service and/or Work in accordance with the Subcontract and fails within a three-day period after receipt of written notice from the Architect to commence and continue correction of such default or neglect with diligence and promptness, the Architect may, without prejudice to other remedies the Architect may have, correct such deficiencies or cause them to be corrected. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Subcontractor the reasonable cost of correcting such deficiencies, including the Architect’s expenses made necessary by such default, neglect or failure. If payments then or thereafter due the Subcontractor are not sufficient to cover such amounts, the Subcontractor shall pay the difference to the Architect. No action permitted to be taken by the Architect hereunder shall affect any of the other rights or remedies of the Architect granted by the Subcontract or by law or relieve Subcontractor from any consequences or liabilities arising from such deficiencies.
29. Miscellaneous
29.1 Applicable Disputes.
29.1.1 The Subcontract shall be construed and governed in accordance with (i) the laws of the jurisdiction specified in the Prime Contract, excluding choice of law rules; or (ii) if no jurisdiction is specified in the Prime Contract, in accordance with the laws of the jurisdiction in which the Architect is formed (the “Jurisdiction”), excluding choice of law rules.
29.1.2 For purposes hereof, the term “Court” shall mean a court of law, an agency or administrative body, or any arbitration or mediation proceeding. If the Architect is named as a defendant with respect to any claim arising out of the Services and/or Work, and the Architect in good faith believes that the Subcontractor is a necessary or desirable party to a resulting lawsuit or proceeding, the Subcontractor hereby consents to the jurisdiction of the Court wherein such lawsuit has been instituted or is pending, regardless of the geographic location of such Court. The Subcontractor agrees to appear in such Court and to waive any objection to the Court’s jurisdiction over the Subcontractor.
29.1.3 The Subcontractor agrees to cooperate with the Architect in defending any such claim, including, without limitation, participating in meetings relating to such defence. The Subcontractor further agrees to cooperate with the enforcement of any judgment rendered by a Court. Except as otherwise provided in this clause, the Architect and the Subcontractor agree to submit any dispute between the Architect and the Subcontractor to the Courts in and for the Jurisdiction, as selected by the Architect at its sole option.
29.1.4 In the event of any dispute, the Subcontractor, for itself and its subcontractors, as permitted herein, agrees that it will continue to prosecute the Service and/or Work diligently to meet the performance schedule and the time for completion.
29.2 Entire Agreement.
29.2.1 The Subcontract constitutes the entire agreement between the Architect and the Subcontractor, and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written with respect to the subject matter hereof.
29.2.2 The Subcontract may not be modified except in writing executed by the Parties.
29.2.3 Without limiting the foregoing, no terms contained in any proposal, invoice or other business form communicated by the Subcontractor to the Architect, whether prior to or after execution of the Work Authorisation, shall be of any effect, and no such terms shall modify or supplement the Subcontract.
29.3 Headings.
29.3.1 Paragraph headings are for the convenience of the Parties only and are not to be
construed as part of these Terms and Conditions.
29.4 Severability.
29.4.1 If any provision contained herein is held to be unenforceable by a court of law or equity, these Terms and Conditions shall be construed as if such provision did not exist and the unenforceability of such provision shall not be held to render any other provision of these Terms and Conditions unenforceable.
29.5 No Presumptions.
29.5.1 These Terms and Conditions shall be interpreted and construed only by the contents hereof, and there shall be no presumption or standard of construction in favour of or against either Party.
29.6 Waiver.
29.6.1 Any waiver by either Party of any provisions or conditions of the Subcontract shall not be construed or deemed to be a waiver or modification of any other provisions or conditions of the Subcontract, nor a waiver of a subsequent breach of the same provision or condition unless such waiver be expressed in writing by the Party to be bound.
29.7 Records.
29.7.1 The Subcontractor shall keep complete and accurate records concerning the Service and/or Work. For a period not to exceed five (5) years from the termination or expiration of this Subcontract, the Architect shall have the right to request all of the Subcontractor's drawings.
29.8 Third Party Beneficiary.
29.8.1 Nothing in the Subcontract shall be construed as creating third-party beneficiary rights in any person or entity, unless specifically provided otherwise, but the foregoing shall not limit the right of the Client, or any other party allowed by the Architect, to use and rely on the Subcontractor’s work product.
29.8.2 The Subcontractor specifically agrees and acknowledges that it is without privity of contract to the Client and that by entering into the Subcontract, the Subcontractor neither acquires or intends to acquire any rights against the Client pursuant to a third-party beneficiary theory or any other theory.
29.9 Survival.
29.9.1 Provisions which by their nature should reasonably survive the termination or expiration of the Subcontract shall so survive, including without limitation clauses 6, 11, 12, 16, 20, 21, 22 of these Terms and Conditions and any similar terms in applicable Special Terms and Conditions.