Everest 2020 Limited ("Everest") – General Scaffolding Services Terms and Conditions
1. Definitions and Interpretation
1(1) For the purposes of the Contract (as defined in this sub-clause 1(1)) the following words and expressions shall, unless the context otherwise requires, have the following meanings:
(a) "Contract" means the legally binding agreement entered into by Everest and the Contractor comprising the Purchase Order and the documents mentioned or referred to therein.
(b) "Contractor" means the person, firm or company so named in the Contract.
(c) "Day" means a calendar day.
(d) "Everest" means the Company so named in the Contract, its successors in title and, subject to sub-clause 7(1), its assigns.
(e) "Everest's Representative" means the person identified in the Contract who is authorised by Everest to accept the Scaffolding and give directions and instructions to the Contractor.
(f) "Force Majeure" means acts of God such as earthquake, storm, tempest, lightning and/or flood; acts of government or state; war, civil war, riot, civil commotion and/or insurrection; fire, explosion, protestor action and/or any other prevention from or material hindrance in obtaining essential raw materials, energy or other supplies; labour dispute (other than one solely confined to the Contractor's own employees, servants, agents and/or sub-contractors); and/or any other reason or cause entirely beyond the control or influence of either party and which does not arise out of particular circumstances which are or should have been in the contemplation of the party relying upon the event of Force Majeure at the time of entering into the Contract. Shortage of labour, materials or utilities shall not constitute Force Majeure unless caused by circumstances which are themselves Force Majeure.
(g) "Hire Period" means the period as defined in Clause 5.
(h) "provide" shall have the meaning set out in sub-clause 2(1) which shall apply equally to "provision", "providing" and "provided".
(i) "Purchase Order" means the document of that name issued by Everest to the Contractor and forming part of the Contract.
(j) "Scaffolding" means both the scaffolding and the associated materials that are the subject of the Contract.
(k) "Site" means the location or locations at which the Scaffolding is to be erected pursuant to the Contract.
(l) "Week" means a calendar week commencing each Monday and ending the following Sunday.
1(2) Words importing the singular also include the plural and vice versa where the context requires.
1(3) "Person" includes firms, companies and any other entities having legal capacity in English Law.
1(4) Any terms importing gender shall include any other gender.
1(5) Any reference to a Clause, sub-clause, part, schedule or appendix is, unless stated to the contrary, a reference to a Clause, sub-clause, part, schedule or appendix of or to this Contract.
1(6) The headings in these conditions shall not be deemed to be part thereof or to be taken into consideration in the interpretation or construction thereof or of the Contract.
2. General Obligations
2(1) The Contractor shall provide the Scaffolding in accordance with the requirements of the Contract and the instructions of Everest's Representative. For the avoidance of doubt and for the purposes of this Contract, "provide" shall include, but not be limited to, the erection, maintenance, alteration, adjustment, modification and dismantling of the Scaffolding. The Contractor shall, with due expedition and safety, provide the Scaffolding to the reasonable satisfaction of Everest's Representative. In discharging its obligations under the Contract, the Contractor shall use the reasonable skill, care and diligence expected of a properly qualified and competent contractor experienced in providing scaffolding of similar scope, nature and complexity to the Scaffolding. To achieve the objectives of this Contract, the Contractor shall, without prejudice to the requirements of Clauses 4 and 8:
(a) ensure that the Scaffolding is of satisfactory quality and fit for its intended purpose;
(b) ensure that the Scaffolding is free from defects in design, materials and workmanship;
(c) comply with the reasonable instructions of Everest which shall include, but not be limited to, any variation, addition or omission to the Contractor's obligations under the Contract;
(d) guarantee the availability of any materials that may be required for maintaining the Scaffolding during the duration of the Contract;
(e) provide all labour, plant, equipment and materials necessary for the performance of its obligations.
2(2) To enable the Contractor to fulfil its obligations above, Everest shall:
(a) allow the Contractor full access to the Scaffolding at all reasonable times at the request of the Contractor; and
(b) provide suitable working space and such other facilities
2(3) The Contractor shall ascertain and conform in all respects with the provisions of any general or local Act of Parliament and the Regulations and Bye-laws of any local or other statutory authority which may be applicable to the provision of the Scaffolding and with such rules and regulations of public bodies and companies whose property or rights are or may be affected in any way thereby and shall keep Everest indemnified against all penalties and liability of every kind for breach of any such Act, Regulation or Bye-law. Provided always that:
(a) the Contractor shall not be required to indemnify Everest against the consequences of any such breach which is the unavoidable result of complying with the Contract or the instructions of Everest; and
(b) if the Contract or instructions of Everest shall at any time be found not to be in conformity with any such Act, Regulation or Bye-law Everest shall issue such instructions as may be necessary to ensure conformity with such Act, Regulation or Bye-law.
3. Design of Scaffolding
3(1) Unless Everest specifies to the contrary, the Scaffolding shall be designed and provided by the Contractor for the purposes of access, platforms and work areas in connection with construction, building and maintenance work.
3(2) The Contractor shall, if requested by Everest, provide Scaffolding designed for purposes other than for those defined in sub-clause 3(1) and shall ensure that such Scaffolding shall be safe and of adequate strength to support the loading and fulfil the purpose specified by Everest.
3(3) The Contractor shall retain all drawings and design calculations relating to the Scaffolding and shall produce the same to Everest on request. All records shall be retained for a period of six years from the date of the Contract
4. Commencement and Site Responsibilities
4(1) Delivery of materials and erection of Scaffolding shall commence upon the date stated in the Contract or on such other date notified in writing by Everest.
4(2) The Contractor shall make prior arrangements for and subsequently effect the off-loading and proper storage of all plant, materials and equipment delivered to the Site, unless otherwise agreed and stated in the Contract.
4(3) The Contractor is deemed to have understood the nature and extent of the Scaffolding to be provided pursuant to the Contract and to have visited the Site and shall make no claim founded on its failure so to do. Everest shall, at the request of the Contractor, grant such access to the Site as may be reasonable for this purpose.
4(4) The Contractor shall satisfy itself that the information provided by Everest whether contained within the Contract or otherwise provided by Everest is accurate and sufficient and will not prejudice the performance of any of the Contractor's obligations under the Contract. The Contractor shall inform Everest immediately of any inaccuracy, discrepancy or insufficiency in such information and Everest shall reconcile such inaccuracy or discrepancy and/or provide further information/data to the reasonable satisfaction of the Contractor within a reasonable time of being requested so to do but in any event after no less than 5 days.
4(5) The Contractor shall carry out its obligations so as not to interfere unnecessarily or improperly with the convenience of the public or with any other activities of Everest, its contractors, servants or agents on the Site.
4(6) The Contractor shall ensure that a competent and qualified supervisor is in attendance at the Site at all times during erection, maintenance, alteration, adjustment, modification or dismantling of the Scaffolding.
5. Hire Period
5(1) At the end of the Hire Period, the Contractor shall be responsible for dismantling and removing the Scaffolding from the Site. If the Contractor fails to remove the Scaffolding within 14 days of the end of the Hire Period. Everest shall have the right, after giving written notice of its intention so to do, to dismantle the Scaffolding and return it to the Contractor's premises during normal business hours. All costs associated with the dismantling and removal of the Scaffolding by Everest shall be recoverable from the Contractor as a debt.
6. Contractor’s Conditions
6(1) No general or printed conditions submitted with or referred to in the Contractor's tender, estimate or quotation, or submitted or referred to at any other time shall form part of the Contract unless expressly agreed to in writing by Everest.
7. Assignment and Sub-Contracting
7(1) The Contractor shall not sub-contract any part of its obligations under the Contract without the prior written consent of Everest.
8. Site Regulations and Safety
8(1) The Contractor shall have proper regard to the safety of all persons and comply with all applicable laws and regulations in the provision of the Scaffolding.
8(2) The Contractor shall be responsible for the suitability and safety of the Scaffolding. No Scaffolding shall be provided which may be unsuitable, unsafe or liable to cause damage or injury. Without lessening the responsibility of the Contractor in regard to the Scaffolding, if in Everest's reasonable opinion it is unsuitable, unsafe or liable to cause damage or injury, it shall not be used and it shall be replaced or adjusted with the minimum of delay at the Contractor's cost.
8(3) The Contractor shall ensure that its employees, servants, sub-contractors and agents shall comply with all applicable rules and regulations when attending the Site.
8(4) Everest shall have the right at any time to require the removal of any person and for an immediate replacement to be provided.
9. Payment
9(1) The Contractor shall be paid for the provision of the Scaffolding at the rates set out in Purchase Order.
10. Indemnity
10(1) For the purposes of Clauses 10 and 11 the following expressions shall have the following meanings: "damage" shall mean actual physical damage or loss to property and any pecuniary losses resulting therefrom; "injury" shall mean any bodily or mental injury to persons including sickness and disease; "Everest’s Liability Insurance" shall mean insurance required pursuant to employers Liability/Compulsory Insurance Act 1969 or any statutory amendment or re-enactment thereof in force from time to time.
10(2) The Contractor shall indemnify and keep Everest indemnified against all losses and claims for death or injury to persons or loss of or damage to any property whatsoever which may arise out of or in consequence of the use of the Scaffolding and against all claims demands proceedings damages costs charges and expenses whatsoever in respect thereof or in relation thereto subject to sub-clauses 10(3) and 10(4).
10(3) The liability of the Contractor to indemnify Everest under sub-clause 10(2) shall be reduced proportionately to the extent that the act or neglect of Everest its servants, agents or other contractors not employed by the Contractor may have contributed to the said loss injury or damage.
10(4) The Contractor shall not be liable for or in respect of or to indemnify Everest against any compensation or damage for or with respect to death or injury to persons or loss of or damage to property resulting from any act or neglect or breach of statutory duty done or committed by Everest his agents servants or other contractors (not being employed by the Contractor) or for or in respect of any claims demands proceedings damages costs charges and expenses in respect thereof or in relation thereto.
10(5) Everest shall save harmless and indemnify the Contractor from and against all claims demands proceedings damages costs charges and expenses in respect of the matters referred to in sub-clause 10(4). Provided always that Everest's liability to indemnify the Contractor under sub-clause 10(4) shall be reduced proportionately to the extent that the act or neglect of the Contractor or its sub-contractors, servants or agents may have contributed to the said injury or damage.
11. Insurances
11(1) The Contractor shall have in force and shall require any sub-contractor employed by it to have in force the following insurances at all times:
(a) Insurance against damage loss or injury for which it is liable under sub-clause 11(2). Such insurance shall be for such amount as Everest deems necessary, but in any event for not less than £2,000,000 (two million pounds sterling) for each and every incident.
(b) Employers Liability Insurance as defined in Clause 11.
11(2) Upon request the Contractor shall provide satisfactory evidence to Everest that the insurances required under the Contract have been effected and shall if so required produce the insurance policies for inspection. The terms of all such insurances shall be subject to the prior approval of Everest (which approval shall not be unreasonably withheld). The Contractor shall upon request produce to Everest receipts for the payment of current insurance premiums.
12. Identification
12(1) The Scaffolding shall at all times remain the property of the Contractor who shall mark it in such a manner as to make it or any part thereof easily identifiable. Such identification shall not be removed, defaced or covered up by Everest.
13. Confidentiality
13(1) All information in whatsoever form relating to the Contract or to Everest's business (whether provided under the Contract or otherwise) which comes into the Contractor's possession (the "Information") shall be regarded as secret and confidential and shall not be disclosed by the Contractor except to the extent that it becomes necessary to furnish Information to others solely for the purpose of the provision of the Scaffolding. The Contractor shall impose the same obligations of secrecy and confidentiality upon any authorised third party to whom the Information is passed. These obligations will continue in full force and effect notwithstanding the termination of the Contract, but shall not in any event apply to any part of the Information which the Contractor can show:
(a) was already in the Contractor’s possession prior to its disclosure by Everest; or
(b) was lawfully acquired by the Contractor at any time from a third party who holds such information free of any obligation of confidentiality; or
(c) is or comes into the public domain otherwise than through the fault of the Contractor.
13(2) The Contractor and its agents, servants and workmen shall keep secret and shall not disclose to any third party (except sub-contractors accepting like obligations as to secrecy and then only to the extent necessary for the performance of the sub-contract in question) any matters relating to the existence or to the performance, variation, cancellation or termination of the Contract (either actual or projected) except with the prior written consent of Everest.
14. Term and Termination
14(1) This Contract becomes effective when fully executed by all parties hereto and shall continue being valid for a period of 12 months from the execution date. At the end of the initial 12 months period the Contract shall renew automatically, unless either party serves termination notice 30 days prior to the expiration date.
14(2) If the Contractor is in material and persistent breach of its obligations under the Contract and shall fail to remedy the same after receiving a 30 day notice from Everest specifying the breach and requiring its remedy then Everest shall be entitled forthwith by written notice to terminate the Contract.
14(3) Following any termination of the Contractor's engagement the Contractor shall immediately take all necessary steps to remove the Scaffolding from the Site. If the Contractor fails, within a reasonable time, but in any event not less than 14 days to remove the Scaffolding, Everest shall have the right to dismantle the Scaffolding and return it to the Contractor's premises during normal business hours. All costs associated with the dismantling and removal of the Scaffolding by Everest 2020 Limited shall be recoverable from the Contractor as a debt.
15. Force Majeure
15(1) Neither party shall be liable for any failure to perform its duties, obligations and/or responsibilities hereunder or any failure to provide the other party with the opportunity to comply with its duties, obligations and/or responsibilities hereunder if and to the extent that such failure arises as a direct and unavoidable consequence of Force Majeure.
15(2) In the event that either party seeks to rely upon the relief granted by sub-clause 15(1), it shall submit to the other party written notice of the happening of the event of Force Majeure together with reasonable proof of the nature of the event and of its effect upon the performance of the party’s obligations under the Contract.
15(3) The parties shall use all reasonable endeavours to prevent and mitigate the effects of any delay occasioned by, or other consequence of, any event of Force Majeure.
15(4) Should one event of Force Majeure last continuously for more than 3 months then the parties shall endeavour to agree any modifications to the Contract which may be equitable having regard to the nature of the event.
15(5) If the parties have failed to reach agreement as described in sub-clause 15(4) within 6 months of the commencement of the event in question, either party may at any time thereafter, and provided the event still subsists, by notice to the other terminate the Contract. The provisions of Clause 14 will apply to any such termination.
16. Limitation of Contractor’s Liability
The Contractor shall not be liable to Everest by reason of any breach of the Contract for:
16(1) any loss of production or of any contract that may be suffered by Everest; or;
16(2) any loss or damage arising from any design or information which Everest has specifically instructed the Contractor to use; except to the extent that recoveries in respect thereof are obtained under insurance effected pursuant to Clause 11 (Insurances).
17. Law
The construction validity and performance of the Contract shall be governed by the Laws of England and Wales to whose jurisdiction both parties hereby agree to submit.