The following definitions and rules of interpretation apply in these Terms and Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
CDM Regulations: the Construction (Design and Management) Regulations 2015.
Charges: has the meaning set out in clause 15.1.
Client: the person for whom KCL is carrying out the Main Contract Works.
Commencement Date: has the meaning given in clause 2.2.
Terms and Conditions: these terms and conditions as amended from time to time in accordance with clause 27.8.
Contract: the contract between KCL and the Supplier for the supply of Goods and/or Services in accordance with the Purchase Order, these Terms and Conditions, the Mandatory Policies, any Design Pack, any Scope of Works and any Programme of Works.
KCL: Kensa Contracting Limited registered in England and Wales with company number 08166502.
KCL Materials: has the meaning set out in clause 5.4(i).
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Completed Works: the end result of the Services once carried out by the Supplier in accordance with the Purchase Order, Scope of Works and/or Design Pack.
Delivery Location: has the meaning given in clause 4.2(b).
Design Pack: the design pack (if any) supplied by KCL to the Supplier for the purposes of supplying the Goods and/or Services., including any plans, drawings, specifications and schematics.
Goods: the goods (or any part of them) (if any) set out in the Purchase Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by KCL and the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
Main Contract: the contract between KCL and the Client for the Main Contract Works.
Main Contract Works: the work that KCL is undertaking for the Client pursuant to which KCL has entered into the Contract with the Supplier for the supply of the Goods and/or Services.
Mandatory Policies: the business policies and codes listed in the Annex.
Practical Completion: the fulfilment by the Supplier of all works attributed to the Supplier in the Design Pack, Scope of Works and Purchase Order, as determined by KCL’s project manager (acting reasonably).
Purchase Order: KCL's purchase order for the supply of Goods and/or Services, in KCL’s purchase order form and/or as attached to these Terms and Conditions, as the case may be.
Programme of Works: the programme of works supplied by KCL to the Supplier which sets out the timescales for the supply of the Goods and/or Services, as amended by the parties from time to time.
Scope of Works: the scope of works supplied by KCL to the Supplier which sets out details of material specifications and the responsibilities of each party in relation to the different aspects of the Services, as amended or added to from time to time.
Services: the services, including any Completed Works, to be provided by the Supplier under the Contract.
Site: the location to which any Goods will be supplied and where any Services will be supplied, as identified in the Purchase Order or otherwise communicated to the Supplier by KCL.
Sub-Contractor Approval Form: the sub-contractor approval form the Supplier may have been required to complete in order to be considered for employment under the Contract.
Supplier: the person or firm from whom KCL purchases the Goods and/or Services and as identified in the Purchase Order.
Supplier’s Persons: the Supplier’s employees and agents and all other persons employed or engaged on or in connection with the Services or any part of them.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) 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 provision.
(d) 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.
(e) A reference to writing or written includes email but not fax.
2. Basis of contract
2.1 The Purchase Order constitutes an offer by KCL to purchase Goods and/or Services from the Supplier in accordance with these Terms and Conditions.
2.2 The Purchase Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing written acceptance of the Purchase Order; or
(b) any act by the Supplier consistent with fulfilling the Purchase Order,
at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 All of these Terms and Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3. Supply of goods
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Goods Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by KCL, expressly or by implication, and in this respect KCL relies on the Supplier's skill and judgement;
(c) where they are manufactured products, be free from defects in design, materials and workmanship; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 Where any Goods (or part of them) were not manufactured or produced by the Supplier, the Supplier hereby assigns to KCL (and shall use reasonable endeavours to procure any such assignment) the benefit of any third party warranties provided in relation to such Goods.
3.3 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.4 KCL may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
3.5 If following such inspection or testing KCL considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at clause 3.1, KCL shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.6 KCL may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. Delivery of goods
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Purchase Order, the Purchase Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c) it states clearly on the delivery note any requirement for KCL to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Purchase Order or, if no such date is specified, in the Programme of Works;
(b) to such location as is set out in the Purchase Order, Programme of Works or as instructed by KCL before delivery (Delivery Location); and
(c) during KCL's normal hours of business on a Business Day, or as instructed by KCL.
4.3 Subject to clause 4.4, delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Where Goods are to be installed, converted or otherwise used by the Supplier as part of Services, delivery of the Goods shall be completed on the completion of the Services.
4.5 The Supplier shall not deliver the Goods in instalments unless provided for in the Programme of Works or KCL gives prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle KCL to the remedies set out in clause 6.1.
4.6 Title and risk in the Goods shall pass to KCL on completion of delivery.
5. Supply of services
5.1 The Supplier shall from the Commencement Date and for the duration of the Contract supply the Services to KCL in accordance with the terms of the Contract.
5.2 The Services shall include the provision of labour, plant, materials, design, installation, supervision of the Supplier’s own operatives, works co-ordination, delivery, unloading, distribution, works access (excluding agreement of access rights and coordination of arrangements), protection of the Services, cleaning and clearing away rubbish and debris arising from the Supplier’s own works, method statements, risk assessments, bonds, warranties, guarantees, drawings, manuals and commissioning as required by KCL unless specifically stated in the Contract.
5.3 The Supplier shall meet any performance dates for the Services specified in the Purchase Order and Programme of Works or that KCL notifies to the Supplier.
5.4 In providing the Services, the Supplier shall:
(a) co-operate with KCL in all matters relating to the Services, and comply with all reasonable instructions of KCL;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services will conform with all descriptions, standards and specifications set out in the Purchase Order, Scope of Works and Design Pack (as applicable), and that the Completed Works shall be fit for any purpose that KCL expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) where relevant specifications are not stated in the Design Pack and/or Scope of Works, use the appropriate quality goods, materials, standards and techniques, and ensure that the Completed Works, and all goods and materials supplied and used in the Services or transferred to KCL, will be free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(h) comply with (at no cost to KCL):
(i) all health and safety rules and regulations and any other security requirements that apply at the Site;;
(ii) all reasonable directions from KCL aimed at ensuring compliance with clause 5.4(h)(i); and
(iii) within the time reasonably required, any request by KCL for information reasonably necessary to demonstrate compliance with clauses 5.4(h)(i) and 5.4(h)(ii);
(i) hold all materials, equipment and tools, drawings, specifications and data supplied by KCL to the Supplier (KCL Materials) in safe custody at its own risk, maintain any KCL Materials in good condition until returned to KCL, and not dispose or use any KCL Materials other than in accordance with KCL's written instructions or authorisation;
(j) not do or omit to do anything which may cause KCL to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that KCL may rely or act on the Services;
(k) comply with any additional obligations as set out in the Purchase Order, Scope of Works and Design Pack;
(l) familiarise themselves, comply with and ensure that the Completed Works comply with the requirements of the latest versions of Microgeneration Certification Scheme (MCS) and relevant installation standards, including MCS001 and MIS 3005;
(m) not cause delay to any other work on the Site; and
(n) the Supplier’s Persons must be registered cardholders under the Construction Skills Certification Scheme (CSCS) or qualified under an equivalent recognised qualification scheme.
6. KCL’s remedies: supply of goods
6.1 If the Supplier fails to deliver the Goods by the applicable date, KCL shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights and remedies:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by KCL in obtaining substitute goods and/or services from a third party;
(d) to require a refund from the Supplier of sums paid in advance for Goods that it has not delivered; and
(e) to claim damages for any additional costs, loss or expenses incurred by KCL which are in any way attributable to the Supplier's failure to meet such dates.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, KCL shall have one or more of the following rights and remedies, whether or not it has accepted the Goods:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by KCL in obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by KCL arising from the Supplier's failure to supply Goods in accordance with clause 3.1.
The governing law of the Contract shall be the law of England Wales.
7. KCL’s remedies: supply of services
7.1 If the regular progress of the Main Contract Works or any part of them is materially affected by any act, omission or default of the Supplier or any Supplier’s Person, KCL shall within a reasonable time of such material effect becoming apparent notify the Supplier giving reasonable particulars of the effects or likely effects on the regular progress and shall give such details of the resultant loss and/or expense as the Supplier reasonably requests.
7.2 Any amount agreed by KCL and the Supplier as due in respect of any loss and/or expense thereby caused to KCL may be deducted from any sums due or to become due to the Supplier or shall be recoverable by KCL from the Supplier as a debt.
7.3 The provisions of clauses 7.1 and 7.2 shall not limit or affect any other of KCL’s rights or remedies.
7.4 If the Supplier:
(a) without reasonable cause wholly or substantially suspends the carrying out of the Services; or
(b) fails to proceed regularly and diligently with the Services; or
(c) refuses or neglects to comply with a direction from KCL requiring it to remove any work, materials or goods not in accordance with the Contract and by such refusal or neglect the Main Contract Works are materially affected; or
(d) fails to comply with clauses 13.1 or 27.1(b); or
(e) fails to comply with clause 11,
KCL may give a notice to the Supplier specifying the default or defaults (a Specified Default or Defaults).
7.5 If the Supplier continues a Specified Default for 10 days from receipt of the notice under clause 7.4, KCL may on, or within 21 days from, the expiry of that 10 day period by a further notice to the Supplier, terminate the Contract.
7.6 If KCL does not give the further notice referred to in clause 7.5 (whether as a result of the ending of any Specified Default or otherwise) but the Supplier repeats a Specified Default (whether previously repeated or not) then, upon or within a reasonable time after repetition, KCL may by notice to the Supplier terminate the Contract.
7.7 If the Contract is terminated under clause 7.5 or 7.6:
(a) KCL may engage and pay other persons to carry out and complete the Services and to make good any defects of the kind referred to in clause 5.4(f) and it and they may enter upon and take possession of the Completed Works and (subject to obtaining any necessary third party consents) may use all the Supplier’s temporary buildings, plants, tools and equipment for those purposes;
(b) the Supplier shall:
(i) when required in writing by KCL to do so (but not before), remove or procure the removal from the Site of any temporary buildings, plant, tools, equipment, goods and materials belonging to the Supplier or Supplier’s Persons;
(ii) if so required by KCL within 14 days of the date of termination, assign (so far as assignable and so far as he may lawfully be required to do so) to KCL, without charge, the benefit of any agreement for the supply of materials or goods and/or for the execution of any work for the purposes of the Contract;
(c) no further sum shall become due to the Supplier under the Contract other than any amount that may become due to him under clause 7.7(d) and KCL need not pay any sum that has already become due;
(d) upon completion of the Services and the making good of defects of the kind referred to in clause 5.4(f) or earlier termination of the Contract, however arising, the Supplier may apply to KCL and KCL shall pay to the Supplier the value of any work executed or goods and materials supplied by the Supplier to the extent not included in previous payments. Without prejudice to its rights, KCL may deduct therefrom the amount of any direct loss and/or damage caused to KCL as a result of the termination and any other amounts payable to KCL under the Contract. To the extent that the amounts due to KCL exceed the amounts due to Supplier the balance shall be recoverable from the Supplier as a debt.
8. KCL’s remedies: general
8.1 These Terms and Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
8.2 KCL's rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
9. KCL's obligations
9.1 KCL shall:
(a) provide such necessary drawings or information for the provision of the Services as the Supplier may reasonably request;
(b) provide free of charge to the Supplier the items as mentioned in the Contract (if any). All other items required for the Services shall be provided by the Supplier;
(c) pay the Supplier in accordance with clause 14 to 16 (as applicable); and
(d) immediately notify the Supplier if KCL’s engagement by the Client in relation to the Main Contract Works is terminated.
10. Supplier’s remedies
10.1 If KCL:
(a) without reasonable cause wholly or substantially suspends the carrying out of the Main Contract Works; or
(b) without reasonable cause fails to proceed with the Main Contract Works so that the reasonable progress of the Contract is seriously affected; or
(c) fails to make payment in accordance with the Contract,
the Supplier may give to KCL a notice specifying the default or defaults (a Specified Default or Defaults).
10.2 If a Specified Default continues for 10 days from receipt of notice under clause 10.1, the Supplier may on, or within 21 days from, the expiry of that 10 day period by a further notice to KCL terminate the Contract.
10.3 If the Supplier for any reason does not give the further notice referred to in clause 10.2 but (whether previously repeated or not) KCL repeats a Specified Default, then, upon or within a reasonable time after such repetition, the Supplier may by notice to KCL terminate the Contract.
10.4 If the Contract is terminated in under 10.3:
(a) no further sums shall become due to the Supplier otherwise than in accordance with this clause 10.4;
(b) the Supplier shall with all reasonable dispatch remove or procure the removal from the Site of any temporary buildings, plant, tools and equipment belonging to the Supplier and Supplier’s Persons and, subject to the provisions of clause 10.4(d), all goods and materials;
(c) the Supplier shall with reasonable dispatch prepare and submit to KCL an account setting out the amounts referred to in clauses 10.4(c)(i) and 10.4(c)(ii) and, if applicable, clause 10.4(c)(iii), namely:
(i) the total value of work properly executed at the date of termination of the Contract, ascertained in accordance with the Terms and Conditions as if the Contract had not been terminated, together with any other amounts due to the Supplier under the Terms and Conditions (whether ascertained before or after the date of termination);
(ii) the cost of materials or goods properly ordered for the Services for which the Supplier than has paid or is legally bound to pay; and
(iii) any direct loss and/or damage caused to the Supplier by the termination;
(d) after taking into account amounts previously paid to the Supplier under the Contract, KCL shall pay to the Supplier the amount properly due in respect of the account within 28 days of its submission by the Supplier to KCL, without deduction of any retention. Payment by KCL for any such materials and goods as are referred to in clause 10.4(c)(ii) shall be subject to those materials and goods thereupon becoming KCL’s property.
11. CDM requirements
Each of KCL and the Supplier undertake to the other that in relation to the Main Contract Works and the Site they will duly comply with applicable CDM Regulations.
12.1 If the Main Contract Works are affected by strike, lock-out or local combination of workmen affecting any trade employed by them or engaged in preparation, manufacture or transportation of any goods or materials required for them:
(a) neither KCL nor the Supplier shall have any claim on the other for any loss and/or expense resulting from such action;
(b) KCL shall take all reasonably practicable steps to keep the Site open and available for the Supplier’s use; and
(c) the Supplier shall take all reasonably practical steps to continue with the Contract.
Nothing in this clause shall affect any other right of either KCL or the Supplier under the Contract if such action occurs.
13.1 The Supplier shall not without KCL’s consent sub-contract the whole or any part of the Services or supply of Goods. The Supplier shall remain wholly responsible for carrying out and completing the Services and/or supply of Goods in accordance with the Contract notwithstanding any such sub-contracting.
13.2 It shall be a condition of any sub-subcontract that:
(a) the sub-subcontractor’s employment under the sub-subcontract shall terminate immediately upon the termination (for any reason) of the Contract;
(b) the sub-subcontract shall provide that:
(i) each party to the sub-subcontract shall comply with applicable CDM Regulations;
(ii) if by the final date for its payment stated in the sub-subcontract the Supplier fails to pay a sum, or any part of it, due to the sub-subcontractor, the Supplier shall, in addition to any unpaid amount that should properly have been paid, pay simple interest on that amount at a rate of 5% a year above the Bank of England's base rate from time to time (but at 5% a year for any period when the base rate is below 0%) for the period from the final date for payment until such payment is made; and
(iii) where documents or information or the grant of licences are or may be required from a sub-subcontractor under a BIM Protocol or the CDM Regulations, the sub-subcontractor shall supply and grant and (where applicable) be entitled to all information and licences reasonably necessary for that purpose; and
(c) the work undertaken by the sub-subcontractor shall be to the same standards as are required of the Supplier (as set out in clause 5.4)
14. Charges and payment: goods
14.1 The price for the Goods:
(a) shall be the price set out in the Purchase Order, or if no price is quoted, the price set out in the Supplier's published price list in force at the Commencement Date; and
(b) shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by KCL.
14.2 In respect of the Goods, the Supplier shall invoice KCL on or at any time after completion of delivery.
15. Charges and payments: services
15.1 The total charges for the Services shall be set out in the Purchase Order and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services (Charges). The Charges include all travel, accommodation, subsistence and other reasonable expenses incurred in connection with the provision of the Services.
15.2 Where the Charges are calculated on a time and materials basis, the Supplier shall ensure that all the Supplier’s Persons complete time sheets to record time spent on the Services, and the Supplier shall indicate the time spent per individual in its invoices.
15.3 The Supplier may on the 20th day of each calendar month or the nearest Business Day within that month make an application in respect of an interim payment to KCL stating the sum that the Supplier considers is due to it based on clause 15.4 and the basis on which that sum has been calculated (Payment Application).
15.4 The sum due to the Supplier in respect of each interim payment shall be the applicable percentage set out in clause 15.5 of the following amount:
(a) the proportion of the Charges equal to the proportion of the Services that have been properly executed since the last Payment Application or, where there have been no previous Payment Applications, the Commencement Date; less
(b) any amounts due to KCL under the Contract.
15.5 The applicable percentages referred to in clause 15.4 are:
(a) where Practical Completion has not occurred, 95%; and
(b) where Practical Completion has occurred, 97.5%.
15.6 No later than 5 Business Days after the Payment Application has been made, KCL shall give a notice to the Supplier which specifies the sum that KCL considers due to the Supplier under clause
15.4 and the basis on which that sum has been calculated (Payment Notice).
15.7 The Supplier shall invoice KCL no later than 3 Business Days before the end of each calendar month for the interim payment amount as specified in the Payment Notice or, if no Payment Notice has been served in accordance with clause 15.6, the interim payment amount as specified in the Payment Application.
15.8 The Supplier shall invoice KCL on the date which is 12 months following the date on which Practical Completion occurs for the difference between the amounts that have already been invoiced in accordance with clause 15.7 and the Charges.
16. Charges and payment: general
16.1 Each invoice raised under the terms of the Contract shall include such supporting information required by KCL to verify the accuracy of the invoice, including but not limited to the relevant Purchase Order number.
16.2 In consideration of the supply of Goods and/or Services by the Supplier, KCL shall pay the invoiced amounts by the end of the month following the month in which they were received to a bank account nominated in writing by the Supplier.
16.3 All amounts payable by KCL under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to KCL, KCL shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
16.4 If KCL disputes any invoice:
(a) KCL shall notify the Supplier in writing within 5 Business Days of the date of receipt of the invoice, specifying the reasons for disputing the invoice;
(b) the Supplier shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
(c) KCL shall pay to the Supplier all amounts not disputed by KCL on the due date as set out in clause 16.2;
(d) the parties shall negotiate in good faith to attempt to resolve the dispute promptly; and
(e) if the parties have not resolved the dispute within 20 days of KCL giving notice to the Supplier, the dispute shall be resolved in accordance with clause 26 (Dispute resolution procedure).
16.5 KCL may at any time, without notice to the Supplier, set off any liability of the Supplier to KCL against any liability of KCL to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, KCL may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by KCL of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
16.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date at 5% a year above the Bank of England's base rate from time to time, but at 5% a year for any period when the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from the day after the dispute is resolved until payment. The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow KCL to inspect such records at all reasonable times on request.
17. Intellectual property rights
17.1 All KCL Materials are the exclusive property of KCL.
18.1 The Supplier shall indemnify KCL against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by KCL arising out of or in connection with:
(a) any negligence or breach of duty on the part of the Supplier, his employees or agents (including any misuse by him or them of scaffolding or other property belonging to or provided by KCL);
(b) any claim made against KCL by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Completed Works; and
(c) any claim made against KCL by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.
18.2 This clause 18 shall survive termination of the Contract.
During the term of the Contract and for a period of two years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the KCL's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance (which shall be at least the same level of the insurance the Supplier disclosed as having in place in section 5 (‘Insurance Levels’) of the Sub-Contractor Approval Form).
20.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 20.2.
20.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 20; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
20.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
21. Compliance with relevant laws and policies
21.1 In performing its obligations under the Contract, the Supplier shall:
(a) comply with all applicable laws, statutes, regulations from time to time in force; and
(b) comply with the Mandatory Policies.
22. Data protection
22.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 22 in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 22, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
22.2 The parties acknowledge that for the purposes of the Data Protection Legislation, KCL is the controller and the Supplier is the processor.
22.3 Without prejudice to the generality of clause 22.1, KCL will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
22.4 Without prejudice to the generality of clause 22.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of KCL unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify KCL of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying KCL;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by KCL, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of KCL has been obtained and the following conditions are fulfilled:
(i) KCL or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by KCL with respect to the processing of the personal data;
(e) assist KCL, at KCL's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify KCL without undue delay on becoming aware of a personal data breach;
(g) at the written direction of KCL, delete or return personal data and copies thereof to KCL on termination of the Contract unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 22 and allow for audits by KCL or KCL's designated auditor and immediately inform KCL if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
22.5 KCL does not consent to the Supplier appointing any third party processor of personal data under the Contract.
22.6 Either party may, at any time on not less than 30 days' notice, revise this clause 22 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
23.1 If the Main Contract is terminated, the Contract shall automatically terminate and KCL shall notify the Supplier of such termination.
23.2 Without affecting any other right or remedy available to it, either KCL or the Supplier may terminate the Contract with immediate effect by giving written notice to the other party if the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction, or the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
23.3 Any notice of termination in accordance with the Contract shall not be given unreasonably or vexatiously, and such termination shall take effect on receipt of the relevant notice.
24. Consequences of termination
24.1 On termination of the Contract, the Supplier shall immediately deliver to KCL all Completed Works whether or not then complete, and return all KCL Materials. If the Supplier fails to do so, then KCL may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
24.2 Termination or expiry of the Contract shall not affect the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
24.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
25. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.
26. Dispute resolution procedure
26.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (Dispute), then, except as expressly provided in this agreement, the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, KCL’s contracts manager and a person of equivalent seniority at the Supplier shall attempt in good faith to resolve the Dispute;
(b) if KCL’s contracts manager and the person of equivalent seniority at the Supplier are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to KCL’s operations director and a person of equivalent seniority at the Supplier who shall attempt in good faith to resolve it; and
(c) if the KCL’s operations director and the person of equivalent seniority at the Supplier are for any reason unable to resolve the Dispute within 14 days of it being referred to them, the parties agree to refer the Dispute to adjudication in accordance with the Scheme for Construction Contracts (England and Wales) Regulations 1998. To initiate the adjudication, a party must serve notice in writing (ADR Notice) to the other party to the Dispute, referring the dispute to adjudication. Unless otherwise agreed between the parties within 14 days after service of the ADR Notice, the adjudicator shall be nominated by The Royal Institution of Chartered Surveyors.
26.2 No party may commence any arbitration proceedings under clause 26.3 in relation to the whole or part of the Dispute until 90 days after service of the ADR Notice, provided that the right to issue proceedings is not prejudiced by a delay.
26.3 If the Dispute is not resolved within 90 days after service of the ADR Notice, the Dispute shall be finally resolved by arbitration in accordance with the JCT 2016 edition of the Construction Industry Model Arbitration Rules (CIMAR). The arbitrator shall be an individual agreed by KCL and the Supplier or, failing such agreement within 14 days after the notice of arbitration is served, appointed by The Royal Institution of Chartered Surveyors.
27.1 Assignment and other dealings.
(a) KCL may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.
(b) The Supplier shall not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of KCL.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to firstname.lastname@example.org (in respect of notices sent to KCL) or the email address to which the Purchase Order was sent (in respect of notices sent to the Supplier), or such other email address as may be notified by a party to the other party for such purpose from time to time .
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post next working day delivery service, at 9.00 am on the second Business Day after posting; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 27.2(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 27.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
27.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
27.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
27.6 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
27.7 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
27.8 Variation. Except as set out in these Terms and Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.
27.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
The Mandatory Policies are:
Modern Slavery and Human Trafficking Policy - https://www.gov.uk/government/publications/anti-slavery-and-human-trafficking-policy
Equality and Diversity Policy - https://www.gov.uk/guidance/equality-act-2010-guidance
Anti-Bribery Policy - https://www.kensacontracting.com/terms-conditions