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1.1 In these Conditions the following shall have the meaning stated or referred to:
Any required standard of any competent authority in relation to any part or parts of the Services which are to be adopted by such authority after completion.
The conditions set out in this document.
The party to whom the Order is addressed.
Lioncourt Homes Limited (company number: 05733989) whose registered office is at Lioncourt House, 3 Apex Park, Wainwright Road, Warndon, Worcester, WR4 9FN and/or any group company and/or subsidiary of Lioncourt Homes Limited, or any holding company or subsidiary of that holding company of Lioncourt Homes Limited as identified in the Order.
The National House Building Council or any other equivalent body providing similar insurance within the house building industry.
The order issued by the relevant Lioncourt Homes company (as identified in the order) in conjunction with these Conditions which sets out the Services to be provided by the Contractor and the Price to be paid and which shall include these Conditions and any other documents attached to or referred to in the order.
The schedule issued by Lioncourt Homes setting out the, Submission Dates, Due Dates and Payment Dates (all as defined in the Payment Schedule) for each of the 12 monthly periods of the financial year of Lioncourt Homes and including any re-issued schedule for any subsequent financial year and which schedule is issued in compliance with the requirements of the Housing Grants, Construction & Regeneration Act 1996 as amended by the Local Democracy Economic Development and Construction Act 2009, and any reference to Submission Dates, Due Dates and Payment Dates shall be to the relevant periods and dates shown on the Payment Schedule or any modifications agreed between the parties in writing.
The price of the Services stated in the Order or such other sum as shall become payable pursuant to these Conditions.
All the work including any additional work provided by the Contractor including labour, plant and materials and any design carried out by the Contractor.
The construction site or location where the Services are to be carried out.
Any statute, statutory instrument, regulation, rule or order made under any statute or directive having the force of law which affects the Works or the performance of any obligations under the Order and any regulation or by-law of any local authority or statutory undertaker which has any jurisdiction with regard to the Works or with whose systems the Works are, or are to be, connected.
The instruction of additional or omitted Services in writing by Lioncourt Homes.
The works being carried out by Lioncourt Homes (whether by itself or other contractors) on the Site and including the Services.
2.1 The Order and the Conditions are to be read as a whole but nothing contained in the Order or any other document issued in connection with the Services whether by Lioncourt Homes or the Contractor shall override or modify these Conditions and in the case of any conflict between these Conditions and the Order and/or any other document then these Conditions shall prevail.
2.2 No variation or waiver of these Conditions shall be effective unless agreed in writing between the authorised representatives of Lioncourt Homes and the Contractor.
2.3 In these Conditions and the Order any reference to legislation is to such legislation as amended and in force from time to time including any legislation which re-enacts or consolidates it with or without modification.
2.4 In the Conditions, any headings are of convenience only and shall not affect the interpretation of the Order and the singular includes the plural and vice versa.
2.5 Nothing in this Order confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it.
2.6 A notice or other document can be served by any effective means and if it is addressed, pre-paid and delivered by post shall be deemed to be served 48 hours after posting.
2.7 These Conditions and the Order contain the entire agreement between the parties and supersede any other agreement between the parties whether written or oral.
2.8 The Price shall be deemed to be inclusive of all fees, charges, delivery, overheads, profit and the like, but exclusive of VAT which shall be paid in addition by Lioncourt Homes as applicable but subject to receipt of a VAT invoice.
2.9 Lioncourt Homes is a ‘contractor’ for the purposes of the Construction Industry Scheme and any payment under this Order is subject to its provisions.
2.10 If any provision of the Order or the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Order and Conditions and the remainder of the provision in question shall not be affected.
2.11 This Order shall be governed and construed in accordance with the laws of England and subject to the exclusive jurisdiction of the English Courts.
3.1 The Contractor will carry out and complete the Services in accordance with the Order, any applicable Statutory Requirements, any applicable NHBC requirements and any applicable adoptable standards with due diligence and in a good and workmanlike manner.
3.2 The Contractor shall provide goods and materials of the standard stated in the Order or, where no standard is stated, of a satisfactory quality in relation to the Services and the Works and in accordance with any applicable British Standards or their equivalent.
3.3 The Contractor shall provide everything required to carry out and complete the Services except for any attendances expressly set out in the Order which Lioncourt Homes have agreed to provide free of charge to the Contractor.
3.4 The Contractor shall not make any assignment of the benefit of this Order or sublet any of the Services without the prior written consent of Lioncourt Homes.
3.5 The Contractor shall comply with and give all notices required by any Statutory Requirement.
3.6 The Contractor shall carry out and complete the Services in accordance with any programme details stated in the Order or issued from time to time and in addition or otherwise reasonably in compliance with the progress of the Works.
3.7 The Contractor is deemed to have visited the Site and to have full knowledge of all circumstances relating to the Site.
4.1 Lioncourt Homes may issue written instructions to the Contractor. The Contractor shall carry out any such instructions forthwith. If such instructions are given orally, the Contractor shall confirm those instructions in writing within five working days.
4.2 Unless an instruction is a Variation, and complies expressly with the requirements of clause 4.1, the Contractor shall not be entitled to any additional payment.
4.3 Lioncourt Homes may issue a written notice requiring compliance with an instruction and if the Contractor does not comply within seven days then Lioncourt Homes may employ and pay other persons to carry out the work and all costs incurred by Lioncourt Homes shall be paid by the Contractor or may be recovered from the Contractor as a debt.
5.1 Lioncourt Homes may issue Variations to the Contractor.
5.2 All Variations shall be valued by Lioncourt Homes with reference, where applicable, to rates and prices in the Order or otherwise on a fair and reasonable basis.
5.3 Where any Variation is an omission of a part of the Services then, apart from any valuation in accordance with clause 5.2, there shall be no claim or payment for loss of profit or the like.
6.1 The Contractor shall make his first application for payment (‘Application for Payment’) so that it is received by Lioncourt Homes on or before the Submission Date for the next period as shown on the Payment Schedule following the period in which the Contractor commences the Services on site and an interim payment shall be due to the Contractor on the Due Date for that next period. An Application for Payment shall state the sum which the Contractor considers to be due to him and the basis upon which that sum has been calculated. Thereafter, the Contractor may make an Application for Payment so that it is received by Lioncourt Homes on or before the Submission Date in each subsequent period and any payments will become due on the applicable Due Date for that period.
6.2 The Application for Payment shall be sent to Lioncourt Homes both by email (firstname.lastname@example.org) and by post to 3 Apex Park, Wainwright Road, Warndon, Worcester, WR4 9FN. If the application for payment is not received on or before the relevant Submission Date shown in the Payment Schedule then it shall not be a valid Application for Payment for that period, the Contractor shall be deemed to have made no Application for Payment for that period and the Application for Payment shall be treated as the Application for Payment for the period in which it was received.
6.3 Not later than 5 days after the relevant Due Date Lioncourt Homes shall give a written notice to the Contractor specifying the amount (if any) of the payment to be made and the basis on which that amount was calculated (a ‘Remittance Advice’). The final date for payment will be the Payment Date for the relevant period.
6.4 The amount of an interim payment shall be the value of work properly carried out in the relevant period by the Contractor determined in accordance with the details of the Order, less the retention as per clause 6.12, any amount agreed in respect of any discount for Lioncourt Homes, the amounts due in any previous payments and any other deductions permitted under these Conditions.
6.5 If no Remittance Advice is issued, then Lioncourt Homes shall, subject to any Pay Less Notice, pay the Contractor the amount stated in the Application for Payment.
6.6 Lioncourt Homes shall be entitled to deduct from any payment, including from any retention pursuant to clause 6.12, due to the Contractor whether under this Order or under any other order or contract between the parties and whether on the Site or any other site any sums owing to it by the Contractor on the Site and/or any other site.
6.7 If Lioncourt Homes intends to pay less than the sum stated in either the Remittance Advice or the Application for Payment (as applicable) it shall, not later than one day before the Payment Date, give notice to the Contractor of its intention to pay less (the ‘Pay Less Notice’). The Pay Less Notice shall specify the amount to be paid by Lioncourt Homes to the Contractor and the basis on which that sum is calculated.
6.8 In relation to the requirements for the giving of notices under Clauses 6.1 and 6.3, it is immaterial that the amount then considered to be due may be zero.
6.9 If Lioncourt Homes fail to pay any sum due to the Contractor by the Payment Date, and no Pay Less Notice has been served in accordance with clause 6.7, then the Contractor may give a written notice of his intention to suspend the performance of any or all of his obligations under the Order. If Lioncourt Homes’ failure to make payment continues for 7 days after the giving of such notice then the Contractor may suspend such performance until payment in full occurs.
6.10 Where the Order provides for the purchase of materials from a specified person or company the Contractor shall provide, when requested by Lioncourt Homes with each application for payment, receipted invoices showing that such person or company has been paid. In the event that the Contractor fails to provide such receipted invoices, the Contractor agrees that Lioncourt Homes may pay any sums due direct to such person or company and that such sums will not therefore be due to the Contractor and/or Lioncourt Homes may by written notice to the Contractor omit the supply of such materials from the Order as a Variation.
6.11 Following completion of the Services, Lioncourt Homes may issue to the Contractor a certificate setting out the Price for the Services as fully adjusted taking into account the performance of the Services, any Variations and any other amounts claimed by or owing to either the Contractor or Lioncourt Homes arising out of or in connection with the Services and the Order and such certificate shall be final and conclusive unless the Contractor commences any adjudication or legal proceedings within 28 days of the date of such notice.
6.12 A retention of up to 5% may be deducted by Lioncourt Homes from all payments. The retention will be released no later than the expiry of the 2 years from completion of the Services subject to satisfactory rectification by the Contractor of any defects.
7.1 If Lioncourt fail to pay a sum properly due to the Contractor under these conditions by the Payment Date, Lioncourt Homes shall, in addition to the amount not properly paid, pay simple interest at a rate of 3% above the Bank of England Base Rate applicable when the sum fell due to for payment. The interest shall be for the period from the Payment Date until payment is made by Lioncourt Homes.
8.1 The Contractor shall remedy any defects that arise in the Services, either during the carrying out of the Services or arising following completion of the Services, in a timely manner commensurate with both the nature of the defect and also the knowledge that the Services are in relation to domestic dwellings.
8.2 Without prejudice to clause 8.1, Lioncourt Homes may issue a written notice to the Contractor requiring a defect to be remedied in a specified timescale and if the Contractor does not so remedy the defect Lioncourt Homes may either employ other contractors to or itself remedy the defect.
8.3 Where the Contractor causes damage to the Works other than the Services then Lioncourt Homes may immediately instruct other contractors to repair that damage.
8.4 All additional costs incurred by Lioncourt Homes under this clause 8, including any expenses, management charges and loss and/or damage, shall be paid by the Contractor to Lioncourt Homes or may be recovered by Lioncourt Homes from the Contractor as a debt.
9.1 The risk for damage to or loss of the Services and all materials bought to the Site for incorporation in the Works shall be at the sole risk of the Contractor until the same are fully and finally incorporated in the Works.
9.2 All plant and temporary materials bought to the Site by the Contractor shall be at the sole risk of the Contractor.
9.3 Title in materials for incorporation in the Works shall pass to Lioncourt Homes upon payment in respect of those materials by Lioncourt Homes to the Contractor.
9.4 The Contractor hereby indemnifies Lioncourt Homes in respect of any expense, liability, loss, claim or proceedings in respect of any loss, injury or damage whatsoever to any property real or personal arising out of the carrying out of the Services to the extent that the same is due to any act or default of the Contractor or anyone for whom the Contractor is responsible.
9.5 Without prejudice to the indemnity in clause 9.4, the Contractor shall take out and maintain insurance for a sum of not less than £5M in respect of all claims and matters referred to in clause 9.4.
9.6 The Contractor hereby indemnifies Lioncourt Homes in respect of any expense, liability, loss, claim or proceedings whatsoever in respect of personal injury to or death of any person arising out of or caused by the carrying out of the Services to the extent that the same is due to any act or default of the Contractor or anyone for whom the Contractor is responsible.
9.7 Without prejudice to the indemnity in clause 9.6, the Contractor shall take out and maintain insurance complying with the Statutory Requirements for a sum of not less than £10M in respect of all claims referred to in clause 9.6.
10.1 If the Contractor: (a) enters into an arrangement, compromise or composition in satisfaction of his debts (excluding a scheme of arrangement as a solvent company for the purposes of amalgamation or reconstruction); or (b) without a declaration of solvency, passes a resolution or makes a determination that he be wound up; or (c) gives notice of or convenes a meeting for the purpose of proposing a resolution for the voluntary winding up of it or his creditors do so; or (d) has a petition filed against it or a notice is given for or in connection with the winding up or bankruptcy of him; or (e) has a winding up order or bankruptcy order made against him; or (f) has appointed to him an administrator, administrative receiver or receiver; or (g) is a partnership and each partner is the subject of an individual arrangement or any other event or proceedings referred to in this clause; then Lioncourt Homes may terminate the Contractor’s employment by serving a written notice and such termination shall take effect upon receipt of the notice.
10.2 If the Contractor: (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) fails to comply with any of the requirements of clause 3, clause 4, clause 8 and/or clause 9; then Lioncourt Homes may give a written notice to the Contractor specifying the default. If the Contractor does not remedy the default within seven days of the issue of the said notice, Lioncourt Homes may terminate the Contractor’s employment by issue of a further written notice and termination shall take place upon receipt of such further notice.
10.3 If for any reason Lioncourt Homes does not issue a further written notice under Clause 10.2 terminating the Contractor’s employment and the Contractor repeats the specified default then, upon or within a reasonable time after such repetition, Lioncourt Homes may forthwith terminate the Contractor’s employment.
10.4 Upon termination of the Contractor’s employment under this clause 10, Lioncourt Homes shall not be obliged to make any further payment to the Contractor until after completion of the Services by either itself or other contractors. The Contractor shall pay to Lioncourt Homes all additional costs incurred by Lioncourt Homes in completing the Services plus any expenses and loss and/or damages incurred by Lioncourt Homes as a result of the termination or such monies may be recovered by Lioncourt Homes from the Contractor as a debt.
10.5 In the alternative to clause 10.2, if the Contractor fails to proceed regularly and diligently with the Services then Lioncourt Homes may, at its sole discretion, supplement the Contractor’s workforce with other labour. Lioncourt Homes may then take into account its costs so incurred in determining the amounts due under clause 6.
10.6 Without prejudice to clauses 10.1, 10.2 and 10.3, Lioncourt Homes may terminate the Contractor’s employment for any reason by giving seven days written notice and such termination shall take effect upon expiry of the seventh day following issue of such notice. Where the employment of the Contractor is terminated under this Clause 10.6, Lioncourt Homes shall pay the Contractor for all its costs up to the date of termination properly incurred in accordance with this Order but the parties agree that the Contractor will have no claim for loss of profit or the like.
11.1 Either party may at any time refer any dispute or difference arising under this Order to adjudication and the provisions of Part I of The Scheme for Construction Contracts (England and Wales) Regulations 1998 as amended by The Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011 shall apply.