These terms and conditions (“Conditions”) are to be read in conjunction with the RSK Orbital Proposal.
Definitions and interpretation
1. In these Conditions:
“RSK Orbital” means any company within the RSK Orbital Group of companies identified in the Proposal;
“Client” means the contracting party for whom Work is performed by RSK Orbital and the party responsible for payment of the Fee;
“Dispute” means any dispute or claim arising out of or in connection with the Contract or its subject matter;
“Fee” means the amount payable by the Client to RSK Orbital for the Work in accordance with the Proposal or as otherwise agreed in writing between RSK Orbital and the Client;
“Work” means the scope of work detailed in the Proposal;
“Proposal” means the written Proposal prepared as an offer by RSK Orbital for carrying out the Work for the Client on the basis of the scope of work, set of rates and associated budget estimate or lump sum price, and the time frame for undertaking that work, all as detailed in the proposal, and includes any amendments to the original proposal that RSK Orbital may propose or accept in writing prior to commencement of the Work;
“Deliverable” means any advice, document, report, map, plan, system, data or software produced or provided pursuant to the Work;
“Payee” means RSK Orbital;
“Payer” means the Client;
“Indirect Loss” means loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any other special, indirect, consequential or purely economic loss, costs, damages, charges or expenses;
“Notice of Adjudication” means a notice served by either party on the other to refer a dispute to adjudication;
Headings in these Conditions shall not affect their interpretation. A reference to a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it. Where the words “include(s)”, “including” or “in particular” are used in these Conditions, they are deemed to have the words “without limitation” following them. The singular includes the plural, unless the context otherwise requires.
Contract
2. The Client’s purchase order or the Client’s acceptance of the Proposal constitutes acceptance by the Client to purchase the delivery of the Work by RSK Orbital, as specified in the Proposal on these Conditions, or (if earlier) by RSK Orbital starting to perform the Work, when a contract for the supply and purchase of the Work on these Conditions will be established (the “Contract”). No counter-offer placed by the Client shall be accepted by RSK Orbital other than by a written acknowledgement issued and executed by RSK Orbital. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract. In the event of any conflict between the provisions of these Conditions and the provisions of the Proposal, the provisions of the Proposal shall prevail.
3. The Proposal is given on the basis that no contract shall come into existence except in accordance with Condition 2.
RSK Orbital obligations4. RSK Orbital will exercise reasonable skill, care and diligence in the performance of the Work and in accordance with the provisions of the Proposal. RSK Orbital will undertake the Work in accordance with current health, safety and environmental legislation available at the time the Contract is agreed.
Insurance5. RSK Orbital will maintain adequate insurance cover for statutory insurances and professional indemnity to the value of £1 million during the course of the Work, and for one year after completion, providing such insurance is available at commercially reasonable rates. If such insurance ceases to be available at commercially reasonable rates then RSK Orbital will promptly notify the Client.
Liability limitation
6. This Condition 6 sets out the entire financial liability of RSK Orbital (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of any breach of the Contract; any use made by the Client of the Work, the Deliverables or any part of them; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
6.1. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.2. Nothing in these Conditions limits or excludes RSK Orbital’s liability for death or personal injury resulting from negligence, or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by RSK Orbital.
6.3. Subject to Conditions 6.1 and 6.2:
(a) RSK Orbital shall not be liable for Indirect Loss;
(b) The total liability of RSK Orbital under or in connection with the Contract for all claims, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will be limited to the lesser of (i) £1 million; or (ii) the amount recoverable by RSK Orbital under professional indemnity insurance maintained in accordance with these Conditions and in force at the time the claim, or (if earlier) circumstances that may give rise to the claim is, or are, reported to the insurers in question;
(c) RSK Orbital’s liability to the Client shall be limited to such proportion of the Client’s loss and damage as it would be just and equitable for RSK Orbital to pay having regard to the extent of its responsibility for the loss and damage and on the assumption that (i) all other consultants, contractors, subcontractors, project managers and advisers engaged in connection with the project have provided contractual undertakings on terms no less onerous than those set out in this Contract to the Client in respect to their obligations in connection with the project; and (ii) all the parties referred to in this clause have paid to the Client such proportion of the loss or damage that it would be just and equitable for them to pay, having regard to the extent of their responsibility for the loss or damage;
(d) Subject to the other limitations contained in this Condition 6, if RSK Orbital is in breach of its obligation under Condition 4 to exercise reasonable skill, care and diligence in the performance of the Work, RSK Orbital’s liability will be limited to the reasonable cost of correcting or completing the relevant part of the Work or, if necessary, the cost of obtaining replacement work of equivalent standard as that provided for in the scope of the Work.
6.4. No action or proceeding for any breach of this Contract will be commenced against RSK Orbital after the expiry of six years from the date of the completion of the Work, as indicated by the provision of the final Deliverable.
Client obligations
7. The Client must ensure that RSK Orbital is fully briefed and provided with all necessary documentation and equipment to be able to perform the Work as detailed in the Proposal. In accordance with the Construction Design and Management Regulations (“CDM”), the Client shall provide all existing information, including any health and safety files, service location drawings and contact details for all other companies involved with the project, especially the principal designer and principal contractor.
8. The Client will give written confirmation to RSK Orbital of all variations or instructions. RSK Orbital will confirm in writing as soon as practicable any variation to the cost of the Work arising from variations or instructions issued by the Client. RSK Orbital will not materially alter the scope of the Work without the written agreement of the Client.
9. To the extent (if any) which RSK Orbital is required to act as agent for the Client in the course of the proper performance of the Work, the Client shall indemnify RSK Orbital against all claims in respect of, or arising out of, such agency except where and to the extent that the loss or damage claimed, results from RSK Orbital’s negligence.
Remuneration and payment
10. When consultancy services are included in the Proposal, the fees charged will cover all consultant time spent on the project, whether at the premises of the Client or elsewhere, including travelling. Unless otherwise stated in the Proposal or agreed in writing with the Client, disbursements and out-of-pocket expenses will be charged at cost plus a 10% handling charge.
11. The Client will be responsible for paying all the relevant taxes, including VAT or equivalent where applicable. Any amount expressed as payable to RSK Orbital under the Contract is exclusive of VAT, unless stated otherwise. Where payments are made by credit card a card transaction fee of up to 2.50% will be added to any sums due. [Note: We are unable to show the transaction fee on invoices due to accounting practices applicable to the billing method used by credit card operators].
12. The Fee shall be calculated and paid in instalments in accordance with the Proposal. If not set out in the Proposal, the Fee shall be invoiced at intervals of not more than one month, beginning no more than one month after RSK Orbital begins performing the Work.
13. RSK Orbital will forward an invoice to the Client for each instalment of the Fee. The invoice will specify the sum that RSK Orbital considers will become due on the Payment Due Date and the basis on which that sum is calculated. The “Payment Due Date” is the date of issue of the invoice and will be the tax point date. The invoice will constitute the “Payee Notice” and the invoice value shall be the “Notified Sum”. The final date for payment (“Final Payment Date”) will be 28 calendar days after the Payment Due Date. If the Client fails to pay an amount due to RSK Orbital by the Final Payment Date and fails to give a Pay Less Notice, interest shall be added to the unpaid amount from the Final Payment Date until the actual date of payment, which will be calculated on a daily basis at the annual rate of 8% over the annual base rate of HSBC Bank Plc or at the statutory interest rate, whichever is the greater. Compensation for late payment of each debt will also be due at the following fixed sums £40 (for debts up to £999.99), £70 (for debts £1,000–£9,999.99) or £100 (for debts over £10,000) in accordance with the Late Payment of Commercial Debts Regulations 2013 or as stated in any revisions of these regulations. Except as expressly, or by necessary implication, provided otherwise in these Conditions (and in particular in these conditions 12 and 13) or in the Proposal, the payment procedure under Part II of the Scheme shall be deemed incorporated into this Contract, even if the Contract is not a “construction contract” for the purposes of the Act.
14. Unless the Client has served a Pay Less Notice, it shall pay the Notified Sum on or before the Final Payment Date. Not less than 14 days before the Final Payment Date, the Payer may give to the Payee notice of the Payer’s intention to pay less than the Notified Sum (“Pay Less Notice”). A Pay Less Notice must specify the sum the Payer considers to be due on the date the Pay Less Notice is served and the basis on which that sum is calculated.
15. If the Client fails to pay in full a Notified Sum by the Final Payment Date and the Client has not given a Pay Less Notice, RSK Orbital has the right (without prejudice to any other right or remedy) to suspend performance of all or part of the Work by giving not less than seven days’ notice to the Client of its intention to do so and stating the ground(s) on which it intends to suspend performance (“Notice of Suspension”). Performance will be resumed when the Notified Sum (together with any interest payable thereon) has been received. RSK Orbital shall be entitled to claim payment of its reasonable costs and expenses in accordance with Section 112(3A) of the Act and the provisions of Section 112(4) of the Act shall apply to any relevant time limits for the performance of the Work. No liability will be accepted by RSK Orbital for any loss, damage or consequential loss, delay or disruption, however suffered, by virtue of the suspension of the Work in accordance with this Condition.
Material default and termination
16. The Client may notify RSK Orbital of a material default at any time during the Work. RSK Orbital shall, within 30 days of receiving written notification, investigate the complaint, determine if a material default has occurred and agree any remedy with the Client.
17. RSK Orbital may terminate the Work in the event of a material default by the Client. The material default must have continued without remedy for seven days after written notification by RSK Orbital.
18. In the event of a material default by the Client, the Client will be liable for fees up to the date of termination. An additional charge will be made by agreement with the Client as compensation for the recovery of costs for the demobilisation, reassignment of personnel and equipment, and any associated loss of profit.
19. On termination of the Contract for any reason, the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
Dispute resolution
20. Subject to either party’s right to adjudicate a Dispute at any time, the parties shall use their reasonable endeavours to resolve any Dispute through negotiation or mediation, and if the same cannot be settled amicably within 28 days of the Dispute arising and either party notifies the other that it desires this next step, the Dispute will be referred to the managing director in the case of RSK Orbital, and, in the case of the Client, the managing director or equivalent of the relevant division of the Client, who will attempt to resolve the Dispute within 28 days of the Dispute being referred to them.
21. Notwithstanding any other provision in the Contract, either RSK Orbital or the Client may, by giving to the other a Notice of Adjudication, refer a Dispute to adjudication at any time under Part 1 of the Scheme, and such Part 1 shall take effect as if it were incorporated into this Condition. The adjudicator will be a member of the Association of Independent Construction Adjudicators (“AICA”) selected by the parties or, if they are unable to agree within 7 days of the Notice of Adjudication or their selected person is unable or unwilling to act, by nomination by the AICA.
Sub-contracting
22. RSK Orbital will be entitled to subcontract any part of the Work to another consultant, adviser or contractor (the subcontractor). RSK Orbital will remain responsible for the performance of any services performed by the subcontractor.
Confidentiality and data protection
23. The details of the Proposal and any supporting information shall remain confidential and not be shared with any third party. During the Work, RSK Orbital shall not publish any articles, photographs or other illustrations relating to the project without the written agreement of the Client.
24. All information provided to RSK Orbital by a client and not already in the public domain will remain confidential unless the Client authorises its release in writing to specifically named parties in conjunction with assignments, collateral warranties or requirements of a regulatory body.
25. Where RSK Orbital or the Client receives any personal or financial data as defined by the Data Protection Act 1998, (“DPA”) they both shall ensure that they fully comply with the provisions of the DPA and only deal with the data to fulfil their obligations under the Contract.
Copyright and ownership of documents26. Any document prepared for the Client, on acceptance, can be used by the Client solely for the purposes of the Work (“Permitted Purpose”). Unrestricted reproduction and use for the Permitted Purpose is granted to the Client but copyright of all documents and drawings remains with RSK Orbital. Without prejudice to the generality of Condition 29, RSK Orbital accepts no liability for claims from third parties to whom the Client has made known document contents. The Client will indemnify RSK Orbital against any such claims arising from such third parties.
27. RSK Orbital will retain all intellectual property rights and proprietary rights it may have in all information and data reproduced in any Deliverable.
Assignment and third parties
28. The Client shall not without the prior written consent of RSK Orbital assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. Without prejudice to the foregoing, if the Client requests RSK Orbital to consent to an assignment of some or all of the Client’s rights, or requests RSK Orbital to provide a collateral warranty or letter of benefit, the Client acknowledges that RSK Orbital is free to give or withhold on reasonable grounds its consent, and that RSK Orbital shall be entitled to charge an additional fee, if not specifically identified in the Proposal, for such assignment, collateral warranty or letter of benefit.
29. Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of this Contract under the Contracts (Rights of Third Parties) Act 1999.
Waste
30. RSK Orbital will hold any hazardous substances or wastes, including samples and contaminated equipment, arising from the Work as agent for the Client, whose property such materials will remain. RSK Orbital will make all reasonable efforts to assist the Client with the safe handling and disposal of such material; however, the Client will be responsible for this disposal and all associated costs if not included in the Proposal.
Force Majeure
31. RSK Orbital will not be liable to the Client if the provision of the Work is delayed or prevented by force majeure, meaning any one or more circumstance beyond the reasonable control of RSK Orbital, including, but not restricted to, a failure of the Client to provide facilities, access or information; acts or omissions of the Client’s other suppliers or contractors; fire, flood or storm; unavailability of labour, materials or services; process shutdown; breakdown of plant or machinery; acts of God or the public enemy; riot or civil commotion or war; malicious damage; strikes or labour disputes or industrial action; act or regulations of any government or other agency; failure of a utility service, communications network, or transport network; and the presence of unusually high levels of ionising radiation or radioactive substances.
32. If force majeure continues for more than 90 days, either RSK Orbital or the Client may terminate the Work by notice to the other. RSK Orbital will be entitled to charge the Client for work done prior to the force majeure on the basis provided in the Contract. Work done and reasonable and proper fees and disbursements accruing during the force majeure event will be charged at the standard rates for RSK Orbital, unless agreed otherwise in writing.
Notices
33. Any notice to be given under the Contract must be in writing and shall be delivered by hand or sent by pre-paid first class (or airmail) post or recorded delivery post to the business address of the party, as stated in the Contract or as otherwise last notified in writing by the other party. A notice delivered by hand is deemed to have been received when delivered (or if delivery is not in business hours, 9.00 am on the first business day following delivery). A notice sent by post will be deemed to have been received on the next business day following that on which the notice was posted to an address in the United Kingdom and after five days in the case of an overseas letter sent by air mail.
RSK Orbital personnel
34. The Client agrees not to solicit, either directly or indirectly (including by way of head hunter, employment agency, press advertisement or through related companies), any employee of RSK Orbital for the purpose of offering them full-time, part-time, temporary or contract employment of any kind. In the event the Client offers employment to any member of staff at RSK Orbital and that employee chooses to leave RSK Orbital as a result of the offer received, the Client agrees to pay to RSK Orbital a sum which is the greater of £50,000 or 20% of the total employment cost of that member of staff. This condition shall remain in full force both during and for a period of six months after the end of the most recent contract with the Client, and applies to all RSK Orbital staff whether involved in contracts with the Client or not. Upon receipt of the employee’s resignation, RSK Orbital will issue an invoice to the Client and that invoice will be due and payable upon receipt.
General
35. If any provision in these Conditions is or becomes invalid, illegal or unenforceable in any respect, the remaining parts will remain in force and will not in any way be impaired.
36. The Contract and any Dispute will be governed by and construed in accordance with English law and the parties irrevocably agree that the English Courts shall have exclusive jurisdiction to settle any Dispute (subject to the parties having first attempted resolution under conditions 20 and/or 21, if relevant).
37. No variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
38. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on and shall have no right or remedy in respect of any statement, representation, assurance or warranty (whether made negligently or innocently) that is not set out in this Contract.
39. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
40. The Client shall permit RSK Orbital to undertake a credit assessment following acceptance of the Proposal and vary the payment terms, should the result be insufficient for the payment sums required. In certain circumstances, payment may be required before commencement of the Work.
Definitions and interpretation
1. In these Conditions:
“RSK Orbital” means any company within the RSK Orbital Group of companies identified in the Proposal;
“Client” means the contracting party for whom Work is performed by RSK Orbital and the party responsible for payment of the Fee;
“Dispute” means any dispute or claim arising out of or in connection with the Contract or its subject matter;
“Fee” means the amount payable by the Client to RSK Orbital for the Work in accordance with the Proposal or as otherwise agreed in writing between RSK Orbital and the Client;
“Work” means the scope of work detailed in the Proposal;
“Proposal” means the written Proposal prepared as an offer by RSK Orbital for carrying out the Work for the Client on the basis of the scope of work, set of rates and associated budget estimate or lump sum price, and the time frame for undertaking that work, all as detailed in the proposal, and includes any amendments to the original proposal that RSK Orbital may propose or accept in writing prior to commencement of the Work;
“Deliverable” means any advice, document, report, map, plan, system, data or software produced or provided pursuant to the Work;
“Payee” means RSK Orbital;
“Payer” means the Client;
“Indirect Loss” means loss of profits; loss of business; depletion of goodwill and/or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any other special, indirect, consequential or purely economic loss, costs, damages, charges or expenses;
“Notice of Adjudication” means a notice served by either party on the other to refer a dispute to adjudication;
Headings in these Conditions shall not affect their interpretation. A reference to a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it. Where the words “include(s)”, “including” or “in particular” are used in these Conditions, they are deemed to have the words “without limitation” following them. The singular includes the plural, unless the context otherwise requires.
Contract
2. The Client’s purchase order or the Client’s acceptance of the Proposal constitutes acceptance by the Client to purchase the delivery of the Work by RSK Orbital, as specified in the Proposal on these Conditions, or (if earlier) by RSK Orbital starting to perform the Work, when a contract for the supply and purchase of the Work on these Conditions will be established (the “Contract”). No counter-offer placed by the Client shall be accepted by RSK Orbital other than by a written acknowledgement issued and executed by RSK Orbital. The Client’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract. In the event of any conflict between the provisions of these Conditions and the provisions of the Proposal, the provisions of the Proposal shall prevail.
3. The Proposal is given on the basis that no contract shall come into existence except in accordance with Condition 2.
RSK Orbital obligations4. RSK Orbital will exercise reasonable skill, care and diligence in the performance of the Work and in accordance with the provisions of the Proposal. RSK Orbital will undertake the Work in accordance with current health, safety and environmental legislation available at the time the Contract is agreed.
Insurance5. RSK Orbital will maintain adequate insurance cover for statutory insurances and professional indemnity to the value of £1 million during the course of the Work, and for one year after completion, providing such insurance is available at commercially reasonable rates. If such insurance ceases to be available at commercially reasonable rates then RSK Orbital will promptly notify the Client.
Liability limitation
6. This Condition 6 sets out the entire financial liability of RSK Orbital (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of any breach of the Contract; any use made by the Client of the Work, the Deliverables or any part of them; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
6.1. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.2. Nothing in these Conditions limits or excludes RSK Orbital’s liability for death or personal injury resulting from negligence, or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by RSK Orbital.
6.3. Subject to Conditions 6.1 and 6.2:
(a) RSK Orbital shall not be liable for Indirect Loss;
(b) The total liability of RSK Orbital under or in connection with the Contract for all claims, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will be limited to the lesser of (i) £1 million; or (ii) the amount recoverable by RSK Orbital under professional indemnity insurance maintained in accordance with these Conditions and in force at the time the claim, or (if earlier) circumstances that may give rise to the claim is, or are, reported to the insurers in question;
(c) RSK Orbital’s liability to the Client shall be limited to such proportion of the Client’s loss and damage as it would be just and equitable for RSK Orbital to pay having regard to the extent of its responsibility for the loss and damage and on the assumption that (i) all other consultants, contractors, subcontractors, project managers and advisers engaged in connection with the project have provided contractual undertakings on terms no less onerous than those set out in this Contract to the Client in respect to their obligations in connection with the project; and (ii) all the parties referred to in this clause have paid to the Client such proportion of the loss or damage that it would be just and equitable for them to pay, having regard to the extent of their responsibility for the loss or damage;
(d) Subject to the other limitations contained in this Condition 6, if RSK Orbital is in breach of its obligation under Condition 4 to exercise reasonable skill, care and diligence in the performance of the Work, RSK Orbital’s liability will be limited to the reasonable cost of correcting or completing the relevant part of the Work or, if necessary, the cost of obtaining replacement work of equivalent standard as that provided for in the scope of the Work.
6.4. No action or proceeding for any breach of this Contract will be commenced against RSK Orbital after the expiry of six years from the date of the completion of the Work, as indicated by the provision of the final Deliverable.
Client obligations
7. The Client must ensure that RSK Orbital is fully briefed and provided with all necessary documentation and equipment to be able to perform the Work as detailed in the Proposal. In accordance with the Construction Design and Management Regulations (“CDM”), the Client shall provide all existing information, including any health and safety files, service location drawings and contact details for all other companies involved with the project, especially the principal designer and principal contractor.
8. The Client will give written confirmation to RSK Orbital of all variations or instructions. RSK Orbital will confirm in writing as soon as practicable any variation to the cost of the Work arising from variations or instructions issued by the Client. RSK Orbital will not materially alter the scope of the Work without the written agreement of the Client.
9. To the extent (if any) which RSK Orbital is required to act as agent for the Client in the course of the proper performance of the Work, the Client shall indemnify RSK Orbital against all claims in respect of, or arising out of, such agency except where and to the extent that the loss or damage claimed, results from RSK Orbital’s negligence.
Remuneration and payment
10. When consultancy services are included in the Proposal, the fees charged will cover all consultant time spent on the project, whether at the premises of the Client or elsewhere, including travelling. Unless otherwise stated in the Proposal or agreed in writing with the Client, disbursements and out-of-pocket expenses will be charged at cost plus a 10% handling charge.
11. The Client will be responsible for paying all the relevant taxes, including VAT or equivalent where applicable. Any amount expressed as payable to RSK Orbital under the Contract is exclusive of VAT, unless stated otherwise. Where payments are made by credit card a card transaction fee of up to 2.50% will be added to any sums due. [Note: We are unable to show the transaction fee on invoices due to accounting practices applicable to the billing method used by credit card operators].
12. The Fee shall be calculated and paid in instalments in accordance with the Proposal. If not set out in the Proposal, the Fee shall be invoiced at intervals of not more than one month, beginning no more than one month after RSK Orbital begins performing the Work.
13. RSK Orbital will forward an invoice to the Client for each instalment of the Fee. The invoice will specify the sum that RSK Orbital considers will become due on the Payment Due Date and the basis on which that sum is calculated. The “Payment Due Date” is the date of issue of the invoice and will be the tax point date. The invoice will constitute the “Payee Notice” and the invoice value shall be the “Notified Sum”. The final date for payment (“Final Payment Date”) will be 28 calendar days after the Payment Due Date. If the Client fails to pay an amount due to RSK Orbital by the Final Payment Date and fails to give a Pay Less Notice, interest shall be added to the unpaid amount from the Final Payment Date until the actual date of payment, which will be calculated on a daily basis at the annual rate of 8% over the annual base rate of HSBC Bank Plc or at the statutory interest rate, whichever is the greater. Compensation for late payment of each debt will also be due at the following fixed sums £40 (for debts up to £999.99), £70 (for debts £1,000–£9,999.99) or £100 (for debts over £10,000) in accordance with the Late Payment of Commercial Debts Regulations 2013 or as stated in any revisions of these regulations. Except as expressly, or by necessary implication, provided otherwise in these Conditions (and in particular in these conditions 12 and 13) or in the Proposal, the payment procedure under Part II of the Scheme shall be deemed incorporated into this Contract, even if the Contract is not a “construction contract” for the purposes of the Act.
14. Unless the Client has served a Pay Less Notice, it shall pay the Notified Sum on or before the Final Payment Date. Not less than 14 days before the Final Payment Date, the Payer may give to the Payee notice of the Payer’s intention to pay less than the Notified Sum (“Pay Less Notice”). A Pay Less Notice must specify the sum the Payer considers to be due on the date the Pay Less Notice is served and the basis on which that sum is calculated.
15. If the Client fails to pay in full a Notified Sum by the Final Payment Date and the Client has not given a Pay Less Notice, RSK Orbital has the right (without prejudice to any other right or remedy) to suspend performance of all or part of the Work by giving not less than seven days’ notice to the Client of its intention to do so and stating the ground(s) on which it intends to suspend performance (“Notice of Suspension”). Performance will be resumed when the Notified Sum (together with any interest payable thereon) has been received. RSK Orbital shall be entitled to claim payment of its reasonable costs and expenses in accordance with Section 112(3A) of the Act and the provisions of Section 112(4) of the Act shall apply to any relevant time limits for the performance of the Work. No liability will be accepted by RSK Orbital for any loss, damage or consequential loss, delay or disruption, however suffered, by virtue of the suspension of the Work in accordance with this Condition.
Material default and termination
16. The Client may notify RSK Orbital of a material default at any time during the Work. RSK Orbital shall, within 30 days of receiving written notification, investigate the complaint, determine if a material default has occurred and agree any remedy with the Client.
17. RSK Orbital may terminate the Work in the event of a material default by the Client. The material default must have continued without remedy for seven days after written notification by RSK Orbital.
18. In the event of a material default by the Client, the Client will be liable for fees up to the date of termination. An additional charge will be made by agreement with the Client as compensation for the recovery of costs for the demobilisation, reassignment of personnel and equipment, and any associated loss of profit.
19. On termination of the Contract for any reason, the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
Dispute resolution
20. Subject to either party’s right to adjudicate a Dispute at any time, the parties shall use their reasonable endeavours to resolve any Dispute through negotiation or mediation, and if the same cannot be settled amicably within 28 days of the Dispute arising and either party notifies the other that it desires this next step, the Dispute will be referred to the managing director in the case of RSK Orbital, and, in the case of the Client, the managing director or equivalent of the relevant division of the Client, who will attempt to resolve the Dispute within 28 days of the Dispute being referred to them.
21. Notwithstanding any other provision in the Contract, either RSK Orbital or the Client may, by giving to the other a Notice of Adjudication, refer a Dispute to adjudication at any time under Part 1 of the Scheme, and such Part 1 shall take effect as if it were incorporated into this Condition. The adjudicator will be a member of the Association of Independent Construction Adjudicators (“AICA”) selected by the parties or, if they are unable to agree within 7 days of the Notice of Adjudication or their selected person is unable or unwilling to act, by nomination by the AICA.
Sub-contracting
22. RSK Orbital will be entitled to subcontract any part of the Work to another consultant, adviser or contractor (the subcontractor). RSK Orbital will remain responsible for the performance of any services performed by the subcontractor.
Confidentiality and data protection
23. The details of the Proposal and any supporting information shall remain confidential and not be shared with any third party. During the Work, RSK Orbital shall not publish any articles, photographs or other illustrations relating to the project without the written agreement of the Client.
24. All information provided to RSK Orbital by a client and not already in the public domain will remain confidential unless the Client authorises its release in writing to specifically named parties in conjunction with assignments, collateral warranties or requirements of a regulatory body.
25. Where RSK Orbital or the Client receives any personal or financial data as defined by the Data Protection Act 1998, (“DPA”) they both shall ensure that they fully comply with the provisions of the DPA and only deal with the data to fulfil their obligations under the Contract.
Copyright and ownership of documents26. Any document prepared for the Client, on acceptance, can be used by the Client solely for the purposes of the Work (“Permitted Purpose”). Unrestricted reproduction and use for the Permitted Purpose is granted to the Client but copyright of all documents and drawings remains with RSK Orbital. Without prejudice to the generality of Condition 29, RSK Orbital accepts no liability for claims from third parties to whom the Client has made known document contents. The Client will indemnify RSK Orbital against any such claims arising from such third parties.
27. RSK Orbital will retain all intellectual property rights and proprietary rights it may have in all information and data reproduced in any Deliverable.
Assignment and third parties
28. The Client shall not without the prior written consent of RSK Orbital assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. Without prejudice to the foregoing, if the Client requests RSK Orbital to consent to an assignment of some or all of the Client’s rights, or requests RSK Orbital to provide a collateral warranty or letter of benefit, the Client acknowledges that RSK Orbital is free to give or withhold on reasonable grounds its consent, and that RSK Orbital shall be entitled to charge an additional fee, if not specifically identified in the Proposal, for such assignment, collateral warranty or letter of benefit.
29. Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of this Contract under the Contracts (Rights of Third Parties) Act 1999.
Waste
30. RSK Orbital will hold any hazardous substances or wastes, including samples and contaminated equipment, arising from the Work as agent for the Client, whose property such materials will remain. RSK Orbital will make all reasonable efforts to assist the Client with the safe handling and disposal of such material; however, the Client will be responsible for this disposal and all associated costs if not included in the Proposal.
Force Majeure
31. RSK Orbital will not be liable to the Client if the provision of the Work is delayed or prevented by force majeure, meaning any one or more circumstance beyond the reasonable control of RSK Orbital, including, but not restricted to, a failure of the Client to provide facilities, access or information; acts or omissions of the Client’s other suppliers or contractors; fire, flood or storm; unavailability of labour, materials or services; process shutdown; breakdown of plant or machinery; acts of God or the public enemy; riot or civil commotion or war; malicious damage; strikes or labour disputes or industrial action; act or regulations of any government or other agency; failure of a utility service, communications network, or transport network; and the presence of unusually high levels of ionising radiation or radioactive substances.
32. If force majeure continues for more than 90 days, either RSK Orbital or the Client may terminate the Work by notice to the other. RSK Orbital will be entitled to charge the Client for work done prior to the force majeure on the basis provided in the Contract. Work done and reasonable and proper fees and disbursements accruing during the force majeure event will be charged at the standard rates for RSK Orbital, unless agreed otherwise in writing.
Notices
33. Any notice to be given under the Contract must be in writing and shall be delivered by hand or sent by pre-paid first class (or airmail) post or recorded delivery post to the business address of the party, as stated in the Contract or as otherwise last notified in writing by the other party. A notice delivered by hand is deemed to have been received when delivered (or if delivery is not in business hours, 9.00 am on the first business day following delivery). A notice sent by post will be deemed to have been received on the next business day following that on which the notice was posted to an address in the United Kingdom and after five days in the case of an overseas letter sent by air mail.
RSK Orbital personnel
34. The Client agrees not to solicit, either directly or indirectly (including by way of head hunter, employment agency, press advertisement or through related companies), any employee of RSK Orbital for the purpose of offering them full-time, part-time, temporary or contract employment of any kind. In the event the Client offers employment to any member of staff at RSK Orbital and that employee chooses to leave RSK Orbital as a result of the offer received, the Client agrees to pay to RSK Orbital a sum which is the greater of £50,000 or 20% of the total employment cost of that member of staff. This condition shall remain in full force both during and for a period of six months after the end of the most recent contract with the Client, and applies to all RSK Orbital staff whether involved in contracts with the Client or not. Upon receipt of the employee’s resignation, RSK Orbital will issue an invoice to the Client and that invoice will be due and payable upon receipt.
General
35. If any provision in these Conditions is or becomes invalid, illegal or unenforceable in any respect, the remaining parts will remain in force and will not in any way be impaired.
36. The Contract and any Dispute will be governed by and construed in accordance with English law and the parties irrevocably agree that the English Courts shall have exclusive jurisdiction to settle any Dispute (subject to the parties having first attempted resolution under conditions 20 and/or 21, if relevant).
37. No variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
38. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on and shall have no right or remedy in respect of any statement, representation, assurance or warranty (whether made negligently or innocently) that is not set out in this Contract.
39. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
40. The Client shall permit RSK Orbital to undertake a credit assessment following acceptance of the Proposal and vary the payment terms, should the result be insufficient for the payment sums required. In certain circumstances, payment may be required before commencement of the Work.
