Agreed terms

1. Interpretation

   1. Definitions:
   • After Report: Detailed report of all works completed and pictorial evidence
   • Anticipated Completion Date: such date as set out in the Order Form or otherwise agreed in writing between the parties from time to time.
   • Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
   • Bribery Laws: the Bribery Act 2010, all other applicable UK legislation, regulations and codes in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction.
   • CDM Regulations: the Construction (Design and Management) Regulations 2015
   • Change Order: has the meaning given in clause 11.
   • Charges: the charges payable by the Customer for the supply of the Services and/or Works by the Supplier, as set out in the Order Form.
   • Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 22 (General) (inclusive).
   • Confidential lnformation: means any and all:

   (a) information whether technical, operational commercial, financial or otherwise (including without limitation data, know-how, formulae, processes, designs, photographs, audio or videotape, CD ROMs, drawings, specifications, samples, finances, programmes, records, business plans, consumer research, analysis or experience) of whatever nature and whether disclosed orally, pictorially, In writing, by demonstration, by viewing, in machine readable form or other means (including on electromagnetic or CD media or via telephone lines or radio or microwave) and whether stored electronically or otherwise which relates to a person's business, operations, products, developments, Services and/or Works, trade secrets, know-how, personnel, supplies, customers, victims, employees, police officers or the Services and/or Works;

   (b) notes, reports, analysis and reviews of, and any other information derived from, any information referred to in paragraph (a) above or which contains or is based in whole or in part upon such information; and

   (c) information designated as confidential, commercially sensitive or politically sensitive or which ought reasonably to be considered as such; and all materials belonging to another person in respect of which the Parties owe obligations of confidentiality.

   • Consequential Losses means:

   (a) Indirect loss or damage;

   (b) Special loss or damage;

   (c) Consequential loss or damage;

   (d) Loss of profits (whether direct or indirect);

   (e) Loss of turnover (whether direct or indirect);

   (f) Loss of business opportunity (whether direct or indirect);

   (g) Damage to goodwill (whether direct or indirect);

   And in each case, even if that Party was aware of the possibility of such loss or damage to the other.

   • Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
   • Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
   • Data Protection Legislation: means

   (i) the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the General Data Protection Regulation (EU 2016/679 for so long as it is directly applicable in the United Kingdom) and any applicable national implementing laws as amended from time to time

   (ii) the Data Protection Act 2018;

   (iii) any laws substituting, re-enacting or replacing any of (i) or (ii) from time to time.

   • Data Subject: has the meaning set out in the Data Protection Legislation.
   • Defects: means defects, shrinkages or other faults due to materials or workmanship not in accordance with the Order Form and these Conditions.
   • Defects Liability Period: means any Defects which appear within 24 months of the Works Completion Date.
   • Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
   • Initial Period: means the date from the Services and/or Works Start Date to the Services and/or Works Expiry Date.
   • Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, 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.
   • Main Contract: shall mean such agreement or contract of which the Customer is a party for in respect of or for such purpose in connection with the Services and/or Works.
   • Mandatory Policies: the Customer's Code of Conduct, the Modern Slavery Policy, Anti-Money Laundering Policy, Anti-Fraud, Bribery and Corruption Policy, Anti Facilitation of Tax Evasion Policy and the Privacy Notice and any regulations or policies that the Customer may notify to the Supplier in writing including any health and safety policies and security arrangements, as amended by notification to the Supplier from time to time.
   • New Supplier Application Form: shall mean the application form to which these Conditions shall be annexed.
   • Order Form: means the completed Order Form, template of which is set out in Schedule 1.
   • Persistent Breach: means repeated breaches of any of the terms of these Conditions in such a manner as to reasonably justify the Customer's opinion that the Supplier's conduct is inconsistent with it having the intention or ability to give effect to these Conditions
   • Personal Data: has the meaning set out in the Data Protection Legislation.
   • Premises: means the premises set out in the Order Form.
   • Services and/or Works: the Services and/or Works set out in the Order Form to be provided by the Supplier pursuant to these Conditions. Services and Works shall be construed accordingly.
   • Services and/or Works Start Date: the day on which the Supplier is to start provision of the Services and/or Works, as set out in the Order Form.
   • Services and/or Works Expiry Date: the day on which the Supplier is to end provision of the Services and/or Works, as set out in the Order Form.
   • Supplier IPRs: all Intellectual Property Rights of the Supplier necessary or desirable to enable a Customer to receive and use the Services and/or Works.
   • Works Completion Date: as described in clause 8.3

   2. Interpretation

      (a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.

      (b) 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.

      (c) A reference to writing or written includes email.

2. Commencement and term

   These Conditions shall apply from the date of completion of a New Supplier Application Form by both parties and shall continue, unless terminated earlier in accordance with its terms, until the Services and/or Works Expiry Date, and may be extended thereafter by the Customer, at its sole discretion, giving written notice to the Supplier not less than three (3) months before the end of the Initial Period.

3. Supply of Services and/or Works

   1. The Supplier shall not supply any Services and/or Works to the Customer until the Order Form has been agreed and correctly completed by both parties. The Customer shall be under no obligation comply with clause 7.3 below without a correctly completed Order Form.

   2. The Supplier shall supply the Services and/or Works to the Customer from the Services and/or Works Start Date in accordance the Order Form and these Conditions.

   3. In performing the Services and/or Works the Supplier shall meet any performance dates set out in the Order Form.

   4. In supplying the Services and/or Works, the Supplier shall:

      (a) perform the Services and/or Works with the highest level of care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;

      (b) co-operate with the Customer in all matters relating to the Services and/or Works, and comply with all reasonable instructions of the Customer;

      (c) appoint a manager, who shall have authority to contractually bind the Supplier on all matters relating to the Services and/or Works. The initial manager shall be the Supplier's representative;

      (d) only use personnel who are suitably skilled and experienced to perform the tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled;

      (e) ensure that it obtains, and maintains all consents, licences and permissions (statutory, regulatory, contractual or otherwise) it may require and which are necessary to enable it to comply with its obligations pursuant to the Order Form and these Conditions;

      (f) ensure that the Services and/or Works shall conform in all respects with the service description set out in the Order Form;

      (g) provide all equipment, tools, vehicles and other items required to provide the Services and/or Works;

      (h) ensure that all goods, materials, standards and techniques used in providing the and/or Works are of the best quality and are free from defects in workmanship, installation and design;

      i. Comply with:

      i. the CDM Regulations, all applicable laws, statutes, regulations and codes from time to time in force; and

      ii. the Mandatory Policies.

      (j) observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Premises from time to time and are notified to the Supplier;

      (k) hold all Customer Materials in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose of or use the Customer Materials other than in accordance with the Customer's written instructions or authorisation;

      (l) not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business; and

      (m) notify the Customer in writing immediately upon the occurrence of a change of control of the Supplier.

4. Customer's obligations

   1. The Customer shall:

      (a) co-operate with the Supplier in all matters relating to the Services and/or Works;

      (b) provide such access to the Premises and data and other facilities as may reasonably be requested by the Supplier and agreed with the Customer in writing in advance, for the purposes of providing the Services and/or Works;

      (c) provide such necessary information for the provision of the Services and/or Works as the Supplier may reasonably request; and

      (d) notify the Supplier in writing promptly upon the occurrence of a change of control of the Customer.

   2. A failure by the Customer to comply with the terms of these Conditions can only relieve the Supplier from complying with its obligations under these Conditions with effect from the date on which the Supplier notifies the Customer in writing and in reasonable detail of the Customer's failure and its effect or anticipated effect on the Services and/or Works.

5. Title to Customer Materials

   1. Title to any goods or materials transferred to the Customer as part of the Services and/or Works shall pass to the Customer on the earlier of their delivery to the Customer or payment of the Charges for them. The Supplier transfers all such goods and materials to the Customer free from all liens, charges and encumbrances.

   2. All Customer Materials are the exclusive property of the Customer.

6. Intellectual property

   1. The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.

   2. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the purpose of providing the Services and/or Works to the Customer in accordance with the Order Form and these Conditions.

   3. The Supplier shall, subject to clause 11.3 , indemnify the Customer 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 the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt of the Services and/or Works by the Customer. This clause 6.3 shall survive termination of these Conditions.

7. Charges and payment

   1. The payment provisions in Part II of the Scheme for Construction Contracts 1998 are implied.

   2. The Charges include the Supplier’s provision of all services, consumables, materials, supervision, tools, plant & equipment and transportation as necessary including all of the Supplier’s overhead, costs and profit.

   3. In consideration for the provision of the Services and/or Works, the Customer shall pay the Supplier the Charges in accordance with this clause 7.

   4. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT) which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

   5. The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer upon the Works Completion Date, or at such other intervals agreed by the parties in writing. Each invoice shall include all supporting information (including but not limited to applicable worksheets) reasonably required by the Customer. The date of the invoice shall be the due date (the ‘due date’).

   6. The Customer shall pay each invoice which is properly due and submitted to it by the Supplier for the proper performance of the Works, within thirty (30) days of receipt (the ‘final date for payment’), to a bank account nominated in writing by the Supplier.

   7. If the Customer fails to make any payment due to the Supplier pursuant to the Order Form and these Conditions by the due date for payment, then, without limiting the Supplier's remedies under clause 13 (Termination), the Customer 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 day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

   8. The Customer may at any time, without notice to the Supplier, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these Conditions. If the liabilities to be set off are expressed in different currencies, the Customer may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under these Conditions or otherwise.

   9. Without prejudice to Customer’s other rights and remedies, if the Supplier is in breach of its obligations under these Conditions, the Supplier shall pay or allow to Customer such sum as is fair and reasonable in respect of any losses, damages, costs and expenses which the Customer has suffered or may become liable for by reason thereof. Such amount may be deducted from any amount, which would otherwise be due to the Supplier pursuant to the Order Form and these Conditions. As and when the amount of any such loss or damage is known, the Customer shall issue a statement in relation thereto.

8. Works Completion Date (relevant to Works only)

   1. The Supplier shall notify and provide a written After Report to the Customer’s Representative the date when in his reasonable opinion acting in accordance with best industry practice the Works have been completed and/or supplied in accordance with the Order Form.

   2. The Customer’s Representative (or appointed colleague) and Supplier’s Representative will organise to inspect the relevant Works within 10 Business Days (Works Visit).

   3. If the Customer’s Representative does not dissent by notice, giving reasons, within 7 days of the relevant Works Visit, the date so notified shall for all the purposes of these Conditions be the date when the Works were completed and/or supplied pursuant to the Order Form (each, the Works Completion Date).

   4. If the Customer’s Representative dissents, then, as soon as it is satisfied that the Works have been duly completed and/or supplied, it shall as soon as practicable notify the Supplier and, unless otherwise agreed or determined in accordance with clause 21 the Works Completion Date shall be the date stated in the Customer’s Representative notice.

   5. If the Supplier fails to complete the Works by the last Anticipated Completion Date, the Customer shall be entitled to demand 5% of the Charges by way a refund from the Supplier on or after the last Anticipated Completion Date.

9. CDM Regulations

   1. For the purposes of the CDM Regulations, the Supplier shall be the Principal Contractor and/or the Principal Designer for the purposes of the Works.

   2. Each party undertakes to the other that it has complied and will comply with its statutory duties under the CDM Regulations in relation to the Works.

   3. On or before completion of the Works, the Supplier is to prepare and provide the Customer, without charge, with an updated health and safety file conforming to the requirements of the CDM Regulations.

   4. On or before completion of the Works, the Supplier is to prepare and provide the Customer, without charge, with an updated health and safety file conforming to the requirements of the CDM Regulations.

10. Defects

    1. The Supplier shall make good any Defects at no cost to the Customer during the Defects Liability Period.

11. Change control

    1. Either party may propose changes to the scope or execution of the Services and/or Works but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

       (a) the Services and/or Works;

       (b) the Supplier's existing charges;

       (c) the timetable of the Services and/or Works; and

       (d) any of the terms of this agreement.

    2. If the Supplier wishes to make a change to the Services and/or Works it shall provide a draft Change Order to the Customer.

    3. If the Customer wishes to make a change to the Services and/or Works:

       (a) it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and

       (b) the Supplier shall, as soon as reasonably practicable after receiving the information at clause.

    4. If the parties:

       (a) agree to a Change Order, they shall sign it and that Change Order shall amend this agreement; or

       (b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 21 (Multi-tiered dispute resolution procedure).

12. Limitation of liability

    1. Nothing in these Conditions limits any liability which cannot legally be limited, including but not limited to liability for:

       (a) death or personal injury caused by negligence;

       (b) fraud or fraudulent misrepresentation; and

       (c) breach of the terms implied by section 2 of the Supply of Goods and Services and/or Works Act 1982 (title and quiet possession).

    2. Subject to clause 12.1, neither Party will be liable to the other Party for Consequential Losses.

    3. The Supplier shall be liable for and shall fully and promptly indemnify the Customer, its employees, agents and other contractors, against any and all claims, fees, costs, expenses (including without limitation reasonable legal costs on a solicitor and own client basis), loss, damages, demands, and liabilities arising directly from, or in relation to, any third party liabilities out of or in connection with:

       (a) the Supplier’s failure to provide all or any part of the Services and/or Works in accordance with these Conditions;

       (b) any breach by the Supplier of any of the provisions of these Conditions.

    4. Subject to clause 12.1 and clause 12.2, the Customer's total liability to the Supplier in any year (other than in relation to the payment of the Charges themselves) shall not exceed an amount equal to one hundred percent (100%) of the Charges payable in that year. The Customer’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these Conditions.

    5. Neither Party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

    6. The rights of the Customer under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by common law.

13. Insurance

    During the period from the Services and/or Works Start Date and the Services and/or Works Expiry Date and for a period of twelve (12) years thereafter, the Supplier shall maintain in force, with a reputable insurance company:

    1. Product Liability Insurance coverage of not less than five million pounds sterling (£5,000,000) for any one, or series of claims that may arise; and

    2. Professional Indemnity Insurance coverage of not less than five million pounds sterling (£5,000,000) for any one, or series of claims that may arise; and

    3. Public Liability Insurance coverage of not less than five million pounds sterling (£5,000,000) for any one, or series of claims that may arise; and

    4. Employer Liability Insurance coverage of not less than ten million pounds sterling (£10,000,000) for any one, or a series of claims that may arise; to cover the liabilities that may arise under or in connection with the Services and/or Works set out in the Order Form, and shall produce to the Customer on request both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.

14. Termination

    1. Without affecting any other right or remedy available to it, the Customer may terminate the supply of Services and/or Works in whole or in part with immediate effect by giving written notice to the Supplier if:

       (a) there is a change of control of the Supplier; or

       (b) the Supplier's financial position deteriorates to such an extent that in the Customer's reasonable opinion the Supplier's capability to adequately fulfil its obligations under these Conditions has been placed in jeopardy; or

       (c) the Supplier commits a breach of clause 3.4(i), 3.4(l) or 13; or

       (d) the Main Contract terminates.

    2. Without affecting any other right or remedy available to it, either Party may terminate the supply of Services and/or Works with immediate effect by giving written notice to the other Party if:

       (a) the other Party commits a material breach or Persistent Breach of any term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;

       (b) 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

       (c) 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.

    3. The Customer may terminate the supply of Services and/or Works at any time on 30 days’ prior written notice.

    4. Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Conditions shall remain in full force and effect.

    5. Termination or expiry of these Conditions shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these Conditions which existed at or before the date of termination or expiry.

15. Exit arrangements

    1. On termination of the supply of Services and/or Works for whatever reason:

       (a) the Supplier shall immediately return all Customer Materials. Until they have been delivered or returned, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with these Conditions; and

       (b) the Supplier shall, if so requested by the Customer, provide all assistance reasonably required by the Customer to facilitate the smooth transition of the Services and/or Works to the Customer or any replacement supplier appointed by it.

16. Equality, Diversity and Compliance

    1. The Supplier shall not unlawfully discriminate either directly or indirectly on such grounds as race, colour, ethnic or national origin, disability, sex or sexual orientation, religion or belief, or age and without prejudice to the generality of the foregoing the Supplier shall not unlawfully discriminate within the meaning and scope of the Human Rights Act 1998, the Equality Act 2010 or other relevant or equivalent laws from time to time in force (including any equivalent legislation in force in any other jurisdiction in which any activities are carried out under or in connection with these Conditions by the Supplier or any of its employees or sub-contractors or its employees), or any statutory modification or re-enactment thereof.

    2. The Supplier undertakes, warrants and represents that it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy. It shall notify the Customer immediately in writing if it becomes aware or has reason to believe that it or any of its officers, employees, agents subcontractors or any other member of its supply chain have breached or potentially breached its obligations under this clause 13.2.

    3. The Supplier must comply with applicable Bribery Laws and the Anti-Bribery Policy including ensuring that it has in place adequate procedures in place to ensure compliance.

17. FOIA and EIR

    1. The Supplier acknowledges that by virtue of the Main Contract the Customer may be subject to the requirements of the Freedom Of Information Act 2000, (FOIA), and the Environmental Information Regulations 2004 (EIR) and the Supplier agrees to assist and cooperate with the Customer (at the Supplier’s expense) in relation to these laws. Any requests received by the Supplier shall be forwarded to the Customer immediately.

18. Confidential Information

    1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers or the other party, except as permitted by clause 18.2.

    2. Each party may disclose the other party's confidential information:

       (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 17; and

       (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

    3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

19. Data Protection

    1. Each Party shall comply with its respective obligations under the Data Protection Legislation and to the extent it applies, the Main Contract.

20. Main Contract Obligations

    1. The Supplier shall by agreeing to these Conditions be deemed to have notice of the contents of the Main Contract to the extent relevant to the Services and/or Works and the obligations of the Supplier.

    2. The Supplier hereby acknowledges and agrees that the extent of the Customer’s obligations, risks and liabilities under the Main Contract are in the actual contemplation of the Supplier pursuant to these Conditions.

    3. Save where specifically otherwise provided in these Conditions, the Supplier shall ensure that no act or omission on its part (or on the part of any of its agents, sub-contractors, any statutory undertakers, utility providers or other of its visitors to the Premises) shall (save where any act or omission arises out of a breach by the Customer of its obligations under these Conditions or any instruction given by the Customer) cause, contribute or otherwise give rise to any breach by the Customer of any of its obligations pursuant to the Main Contract, provided that where any such instruction given by the Customer will or is likely to have such effect the Supplier shall forthwith notify the Customer in writing in which case such instruction may be withdrawn.

    4. The Supplier acknowledges that any entitlement to relief, benefit or payment under these Conditions shall not arise until the Customer is entitled to an equivalent entitlement to such relief, benefit or payment under the Main Contract, whether or not expressly referenced as such in these Conditions. line-height

21. Multi-tiered dispute resolution procedure

    1. If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then 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, a senior member of the management team of the Customer and a senior member of the management team of the Supplier shall attempt in good faith to resolve the Dispute; and

       (b) if the senior members of the management teams of the Customer and of the Supplier are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 21 days after the date of the ADR notice.

    2. If the Dispute is not resolved within 60 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 60 days, or the mediation terminates before the expiration of the said period of 60 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 22.11 (Jurisdiction).

22. General

    1. Force majeure. Neither party shall be in breach of these Conditions nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 90 days, the party not affected may terminate supply of Services and/or Works by giving 30 days' written notice to the affected party.

    2. Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under these Conditions without the prior written consent of the Customer. If the Customer consents to any subcontracting, the Supplier shall remain responsible for all acts and omissions of its subcontractors as if they were its own.

    3. Entire agreement. These Conditions 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.

    4. Variation. Subject to clause 10 (Change control), no variation of these Conditions shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

    5. Waiver.

       (a) A waiver of any right or remedy under these Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

       (b) A failure or delay by a Party to exercise any right or remedy provided under these Conditions 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 these Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.

    6. Severance . If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.

    7. Notices.

       (a) Any notice or other communication given to a Party under or in connection with these Conditions 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 the address notified to the parties from time to time.

       (b) Any notice or communication 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; and

       ii. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; 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 22.7(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.

    8. Publicity.

       (a) Unless expressly permitted in writing by the Customer, the Supplier shall not publish or permit to be published either alone or in conjunction with any other person any information, articles, photographs or other illustrations (including any such reference made in any form or written, pictorial or audible advertising campaign, marketing sales or promotional campaign) relating to or connected with these Conditions.

       (b) These Conditions shall not entitle the Supplier or any of their agents or employees to endorse its Services and/or Works with any reference to the Customer and the Supplier shall not exhibit for advertising or any other reason any Services and/or Works supplied under these Conditions which can be identified with the Customer without the prior written consent of the Customer.

    9. Third party rights.

       (a) Unless it expressly states otherwise, these Conditions does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions.

       (b) The rights of the parties to rescind or vary these Conditions are not subject to the consent of any other person.

    10. Governing law.

        These Conditions, 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.

    11. Jurisdiction.

        Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Conditions or its subject matter or formation.