Commercial Terms & Conditions

APPENDIX 1

TERMS & CONDITIONS

Contract means this Contract between the Employer and the Contractor comprising:

(a) these terms and conditions (Appendix 1);

(b) Schedule 1;

and in the event of any conflict or inconsistency between the documents the order of precedence shall be as set out at (a) to (c) above.

Business Day means a day (other than Saturday or Sunday) on which clearing banks are open for domestic business in the Republic of Ireland;

Force Majeure means any event or circumstance which affects the progress of the Works beyond the reasonable control of the affected party including without limitation war, natural disaster, inclement weather or any pandemic or epidemic;

Law means any laws applicable in Ireland (without further enactment) and shall include without limitation, common law (including the law of equity), statute, regulation, directives, decision or, proclamation and any delegated or subordinate legislation (including any rule, order, notice, bye-law, decision or instruments) and further including any code of practice or code of conduct which is enforceable by law;

Material means all models, drawings, plans, reports, specifications, bills of quantities, schedules, designs, calculations and other documents (whether electronic or otherwise) and other similar documents;

Parties mean the parties hereto;

Practical Completion means that (i) the Works have been substantially completed such that they can be taken over and used by the Employer for their intended purpose and that any items then outstanding or any defects then patent are of a trivial nature only and are such that their completion or rectification does not interfere with or interrupt such use; and (ii) the Works have been commissioned in accordance with the commissioning procedure outlined at Appendix attached hereto;

All other defined terms not defined in the Terms and Conditions have the meaning ascribed to them in Schedule 1.

(a) Any reference to a Clause shall (unless otherwise specifically provided) be to a Clause of this Contract.

(b) Any reference to the plural shall include the singular and vice versa.

(c) Any reference to any person shall include natural persons and partnerships, firms and other such unincorporated bodies, companies and corporate bodies and all other legal persons of whatever kind and howsoever constituted.

(d) Any reference to “writing”, “written” or similar shall (unless otherwise specifically provided) include facsimile transmission (fax), email and comparable means of communication.

(e) Any reference in this Contract to “week” shall (unless the context otherwise requires) be a calendar week.

(f) Save where otherwise expressly stated herein reference to a statute or act or a provision of a statute or act or subordinate legislation issued under any act shall include any statute or act or subordinate legislation or provision of a statute or act or subordinate legislation amending, consolidation or replacing it for the time being in force.

(a) The Employer shall grant the Contractor non-exclusive possession of the Project Location on the Date for Possession. The Contractor shall thereupon design, carry out and complete the Works on or before the Date for Completion using the reasonable skill and care to be expected of a contractor experienced in carrying out work of a similar type, nature and complexity and:

i. in a good and workmanlike manner with good quality robust materials fit for their purposes;

ii. in compliance with all laws.

(b) If any of the materials required to achieve completion of the Works are not obtainable within a reasonable time or at a reasonable cost the Contractor may at its discretion substitute such other materials as are of equivalent or superior standard and which are so obtainable.

(a) The Employer shall pay or allow to the Contractor such sums of money as shall from time to time become due by virtue of these Conditions.

(b) The Employer shall issue any information necessary for the proper design and carrying out of the Works, and shall issue all directions, instructions and certificates required by virtue of these Conditions.

(c) The Employer shall issue written instructions as to the expenditure of any Provisional Sums. A Provisional Sum shall be any amount Included in the Contract Sum and so described, to be expended on the direction of the Employer. Provisional Sums not expended shall be deducted from the Contract Sums.

(d) The Employer shall carry out periodic inspections of the Works to satisfy himself that the Works are proceeding generally in accordance with the Contract. These inspections shall not in any way relieve the Contractor of his sole obligation to carry out the Works in accordance with the Contract. The Contractor shall attend on such inspections and shall provide all facilities required for this purpose.

(a) Without invalidating the Contract, the Employer may from time to time in writing request the Contractor to investigate both the cost and time impact of any variation proposed by the Employer or the Contractor and the Employer shall provide sufficient details of the proposed variation to enable the Contractor to investigate same.

(b) The Contractor shall within 10 Business Days of receipt of such written request, furnish to the Employer a fully detailed quotation of the proposed variation together with any extension of time required.

(c) If, following receipt of the Contractor’s quotation and propose extension of time, the Employer wishes to proceed with the proposed variation, the Contractor shall perform and carry out or procure the performance and carrying out of the variation on the basis of the cost and any extension of time submitted in accordance with clause 4(b), and the Contract Sum and Date for Completion shall be adjusted accordingly PROVIDED ALWAYS that prior to the carrying out of a Variation any drawings, plans, specifications or other documents produced by the Contractor for the variation shall be approved in writing by the Employer. The Employer shall notify in writing the Contractor of its approval or disapproval of the drawings, plans or specifications within a reasonable time and in any event within a period not more than 10 Business Days from receipt of same by him.

(d) If the Employer does not consider that the cost estimate or quotation or any time extensions required are reasonable, the Employer’s Representative shall be entitled to instruct the Contractor to undertake the carrying out of the variation subject to the Contractor’s right to be paid for the variation at reasonable rates based upon the Schedule of Rates (or if no appropriate rate is provided in the Schedule of Rates then at rates based on a fair valuation for work of a similar type in the locality) and to be granted such extension of time as may be reasonable and appropriate in which event the Contractor shall implement the variation immediately or as agreed or directed. In the event of the Employer’s Representative instructing the Contractor to carry out the variation pursuant to this sub-clause, then the amount to be paid to the Contractor shall be certified by the Employer’s Representative and the Contract Sum and the Date for Completion shall be adjusted, as may be appropriate.

(e) Oral Instructions shall not constitute instructions for the purposes of valuation unless confirmed to the Contractor in writing within seven working days of the verbal instruction.

i. by Force Majeure;

ii. because possession of the Project Location was not given to the Contractor in accordance with the terms of clause 2(a);

iii. by reason any exceptionally inclement weather;

iv. by reason of civil commotion, local combination of workmen, strike or lockout affecting any of the trades employed on the Works;

v. by reason of an instruction given pursuant to clause 4(b);

vi. because the Contractor has not received in due time necessary instructions from the Employer for which the Contractor has specifically applied in writing;

vii. because the Contractor or any subcontractor has been unable for reasons beyond the control of the Contractor or its subcontractor to secure such labour and materials as may be essential to the proper execution of the Works;

viii. by delay on the part of other contractors, artists or tradesmen engaged by the Employer executing work not forming part of this Contract; and/or

ix.by reason of any act or default of the Employer causing delay in the progress of the Works,

then the Contractor shall be entitled to make a claim for a fair and reasonable extension of time to the Date for Completion. Upon the happening of any such event causing delay, the Contractor shall give notice thereof in writing to the Employer within twenty (20) Business Days of the commencement or occurrence of the event or circumstance giving rise to the delay with full particulars of the effect and duration of the delay but its shall nevertheless use constantly its reasonable endeavours to prevent and minimise any such delay and to proceed with the Works. If the event causing delay is continuing the Contractor shall provide the above listed information to the Employer within twenty (20) Business Days of the event or circumstance giving rise to the delay ceasing or ceasing to delay the Works. The Employer shall, as soon as reasonably practicable after receipt of the Contractor’s claim notice, consider all the circumstances known to it at that time and make an assessment of the extension of time (if any) to which it considers the Contractor is entitled to the Date for Completion and shall, by notice in writing to the Contractor, grant such extension of time.

(a) The Contractor shall complete forthwith (but in any event no later than 4 weeks after the date of receipt by the Contractor of the Employer written instructions) any snagging works outstanding at the date of Practical Completion.

(b) Any defects or faults which appear in the Works before the expiration of the Defects Liability Period which are in the reasonable opinion of the Employer due to materials or workmanship not in accordance with Contract shall within a reasonable time after receipt of the Employer’s written instructions (which must be received by the Contractor prior to the expiry of the Defects Liability Period) be made good by the Contractor.

(a) On completion of the Milestones the Employer shall on the written application of the Contractor, certify the applicable Milestone Payment to the Contractor and the Employer shall pay to the Contractor the amount so certified within 10 days of receipt of its invoice.

(b) Practical Completion. Within 5 days of the date of Practical Completion of the Works, the Contractor shall issue a Practical Completion Certificate, and the Employer shall pay to the Contractor the amount so certified within 10 days of receipt of its invoice.

(c) Final Certificate. The Contractor shall within three months from the date of Practical Completion supply to the Employer all documentation reasonably required for the computation of the amount to be finally certified by the Employer. The Employer shall immediately following the end of the Defects Liability Period or when work arising out of the Contractor’s obligations under Clause 8 of these conditions has been carried out, whichever date ls later, give notice to both parties in writing of his intention to issue a Final Certificate stating the amount due . Save where notice of a dispute has been given pursuant to Clause 23 of these Conditions, the Employer shall after 14 days from the date of such notice forthwith issue a certificate for the total amount due less any previous amounts certified and the Employer shall pay to the Contractor the amount so certified within 14 days of the date of the Certificate. The Final Certificate shall be conclusive in any proceedings that the final cost of the Works has been computed properly in accordance with the terms of this Contract.

planning contributions;
any additional grid connection charges above the standard application fees;

(a) The Contractor shall be liable for and shall indemnify the Employer against

(i). any properly mitigated, directly incurred and legally enforceable liability, loss, claim or proceedings or any injury or damage whatsoever to any property real or personal insofar as such injury or damage arises directly out of the execution of the Works by the Contractor and is due to any negligence omission or default of the Contractor or any person for whom the Contractor is responsible, and

(ii). any properly mitigated, directly incurred and legally enforceable liability, loss, claim or proceedings whatsoever in respect of personal injury, disease or death sustained by any person whomsoever arising directly out of the execution of the Works by the Contractor.

(b) Without prejudice to the foregoing liability the Contractor shall prior to the commencement of the Works take out with a Registered Insurance Company and shall for the duration of the Works and until the date of the Final Certificate, maintain Public Liability Insurance in the minimum sum of €6,500,000 each and every claim and the Employers Liability insurance, in the minimum sum of €13,000,000 each and every claim.

If the required professional indemnity insurance ceases to be available at commercially reasonable rates (provided that any increase in the premium rates is not due to any act, claim, notice of claim or otherwise of or against the Contractor):

(d) the Contractor shall immediately inform the Employer so that the Contractor and the Employer can discuss how best to protect the respective positions of the Employer and the Contractor regarding the Works and the Project Location, without that insurance or with the next best level of cover procured under (a) above.

(a) If the Contractor without reasonable cause fails to proceed diligently with the Works or wholly suspends the carrying out of the Works before completion then if such default shall continue for 20 Business Days after written notice specifying the default has been given to the Contractor by the Employer, the Employer may, thereupon and at latest within 10 Business Days by notice delivered to the Contractor terminate the employment of the Contractor under this Contract.

(b) In addition, the Employer shall be entitled to terminate this Contract on giving to the Contractor not less than 5 Business Days’ notice in writing if:

i. the Contractor becomes bankrupt, or if a receiver, liquidator or examiner is appointed; or

ii. the Contractor commits any material breach of any of the provisions of this Contract and, in the case of such a breach which is capable of remedy, fails to remedy the same within 45 days after receipt of a written notice giving reasonable particulars of the breach and requiring it to be remedied; or

iii. the Contractor ceases or threatens to cease to carry on business or is unable to pay its debts as they fall due within the meaning of the Companies Act 2014.

i. such termination shall be without prejudice to any other right or remedy the parties may have in respect of any breach of the terms of this Contract;

ii. the Employer may employ another contractor to complete the Works; and

iii. the Contractor shall be entitled to be paid such part of the Contract Sum as is reasonable at the date of termination having regard to the Works properly executed, materials at the Project Location and the cost of removal of all plant, tools and equipment less (i) any such amounts previously paid and (ii) any reasonable additional costs incurred by the Employer pursuant to Clause 21(c)(ii) above.

(a) The Contractor may, following seven days’ notice in writing by registered post or recorded delivery to the Employer of his intention to exercise its right of determination under this clause, forthwith determine the employment of the Contractor under this Contract if the Employer shall make default in any one or more of the following respects:

i. if the Employer fails to make any payment due within 10 days of such payment being due, unless such payment has been referred as a dispute in accordance with this Contract; and/or

ii. if the Employer shall materially fail to perform or observe any term or condition of this Contract and fails to remedy the breach after notice in writing specifying the breach and requiring it to be remedied within 30 days; and/or

iii. if the Employer becomes bankrupt, or if a receiver, liquidator or examiner is appointed.

(d) In the event of the Contractor determining his employment under this Contract as aforesaid

i. such termination shall be without prejudice to any other right or remedy the parties may have in respect of any breach of the terms of this Contract; and

ii. the Employer shall pay to the Contractor such part of the Contract Sum as is reasonable at the date of termination having regard the value of Works properly executed, materials at the Project Location and the cost of removal of all plant, tools and equipment less any such amounts previously paid. Provided always that the right of determination shall be without prejudice to any other rights or remedies which the Contractor may possess.

(a) Without prejudice to the entitlement of either party to this Contract to refer a dispute relating to payment to adjudication at any time in accordance with the provisions of the Construction Contracts Act 2013 (as may be amended or replaced from time to time), if any dispute or difference arising out of or in connection with this Contract (a “Dispute”) arises between the parties to this Contract or their respective assigns then a party shall deliver by hand or send by registered post to the other party a notice of the Dispute in writing adequately identifying and providing details of the Dispute.

(b) Within 7 (seven) days after the service of the notice of the Dispute, the parties shall confer at least once to attempt to resolve the Dispute or to agree to methods of resolving the Dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the Dispute.

(c) If the Dispute has not been resolved within 21 (twenty one) days of the service of the notice of the Dispute, or such other time as may be mutually agreed by the parties prior to the expiry of 21 (twenty one) days of the service of the notice of the Dispute, then any such Dispute shall be and is hereby referred to arbitration and the final decision of such person as the parties may agree to appoint as arbitrator or failing agreement as may be appointed upon the application of either party to the President for the time being of the Engineers Ireland provided that either party may by written notice require that such nomination be to an arbitrator that has legal qualifications and with construction dispute experience (and the President shall be obliged to limit his nomination to a person with such qualifications and experience). Every or any such reference shall be deemed to be a submission to Arbitration within the meaning of the Arbitration Act 2010 or any Act amending same. The award of the arbitrator shall be final and binding on the parties. The language of arbitration shall be English and the venue shall be Dublin.

For the avoidance of doubt, any works forming part of the Works undertaken prior to the date of this Contract shall be deemed to have been carried out pursuant to this Contract and the Contractor warrants and confirms that all Works carried out prior to the date hereof are in compliance with all requirements set out in this Contract.

(b) Where there are two or more person’s party to this Contract as Contractors their liabilities hereunder shall be joint and several.

(c) Nothing in this Contract shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the Parties. The relationship of the parties is that of independent contractors.

(d) This Contract contains the entire Contract and understanding between the Parties and supersedes any previous Contracts or understandings between the Parties with respect to the arrangements contemplated by or referred to in this Contract. Each Party acknowledges and agrees that that in entering this Contract, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made), or understanding of any person (whether party to this Contract or not) which is not expressly set out in this Contract and the only remedy available to it for breach of any statement, representation or other term that is expressly set out in this Contract shall be for breach of contract under the terms of this Contract. Nothing in this clause or otherwise shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.

(e) No variation to this Contract shall be effective unless made in writing and signed by an authorised representative of both Parties.

(f) The rights and remedies of each Party shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time or by any failure or delay by it in asserting or exercising its rights or remedies.

(g) If any provision of this Contract is held by any Court or other competent authority of be void or unenforceable in whole or in part, this Contract shall continue to be valid as to the other provisions thereof and the remainder of the affected provision provided that the invalidity or unenforceability of the said provision shall not prevent performance of this Contract.

(h) Any waiver by either Party of a breach of any provision of this Contract must be in writing and shall not be considered as a waiver of any subsequent breach of the same or any other provisions.

(a) The Contractor warrants that it owns all intellectual property rights (including copyright) in the Material prepared by the Contractor for any purpose relating to the Works and the Contractor grants or shall procure the grant to the Employer, with immediate effect, a licence (or sub-licence) to copy and make use of the Material for any purpose relating directly to the Works or the Project Location only. For the avoidance of doubt, the licence in this clause 25(a) does not permit the Employer to use the Material in connection with any other project or for any other purpose than the Works or the Project Location.

(b) The Contractor shall not be liable for use of the Material for any purpose other than that for which it was prepared and/or provided.

(a) The Contractor shall at all times during the continuance of this Contract and after its termination keep all information supplied to it by the Employer or Contractor relating to the business affairs of the Employer (including without limitation the terms of this Contract) confidential.

(b) Without limiting the above any information supplied to the Contractor by the Employer may not be disclosed to any consultant or third party appointed by the Contractor to act on the Contractor’s behalf without the prior written consent of the Employer. If such consent is given, then it will be restricted to those named in the consent and the purposes specified in the consent. The Contractor shall be fully liable for ensuring that any consultant or third party appointed by it keeps information concerning the Employer confidential and makes no independent use of it whatsoever.

(a) The Contractor’s maximum liability under this Contract shall be limited to the 10% of the total value of the Contract Sum in the aggregate (the “Cap”) save that the Cap shall not apply to liability for any claim for death or personal injury.

(a) No action or proceedings under or in respect of this Contract shall be brought against the Contractor after the expiration of a period of six years from the date of Practical Completion of the Works.