Privacy Notice | Switch Property Group

SWITCH PROPERTY DEVELOPMENTS LIMITED’S – TERMS AND CONDITIONS

DEFINITIONS AND INTERPRETATION
The following definitions and rules of interpretation apply in these Terms.
1. Definitions:
  Additional Charges: the charges payable in respect of the Additional Works, in line with clause 8.
  Applicable Laws: any statute, statutory instrument, order or other regulations of England and Wales, which are applicable to the Contract, the Services and the Works, as may be amended from time to time.
  Additional Works: any additional works required by the Employer, which are additional to the Works stated in the Contract Particulars, as notified to Switch Property in accordance with clause 8.1 of these Terms.
  Building Regulations: the Building Regulations 2010.
  Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  Business Hours: the hours of 09:00 to 17:00 on a Business Day.
  CDM Regulations: the Construction (Design and Management) Regulations 2015 (SI 2015/51).
  Commencement Date: means the date set out in the Contract Particulars.
  Confidential Information: any confidential information concerning the business, affairs, customers, customers of the other party, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers, whether or not marked as confidential.
  Contract: the contract between Switch Property and the Employer for the supply of Services and the Works, in accordance with these Terms and the Contract Particulars.
  Contract Particulars: means the contract particulars issued to the Employer in accordance with these Terms.
  Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR (as defined in section 3(10) (as supplemented by section 205(4)) of the DPA; the DPA 2018; the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
  Deemed Employment: an engagement to which section 61M(d) of the Income Tax (Earnings and Pensions) Act 2003 applies.
  Deleterious: materials, equipment, products or kits that are generally accepted, or generally suspected, in the construction industry at the relevant time as:
  1. posing a threat to the health and safety of any person;
  2. posing a threat to the structural stability, performance or physical integrity of the Works or
    any part or component of the Works;
  3. reducing, or possibly reducing, the normal life expectancy of the Works or any part or component
    of the Works;
  4. not being in accordance with any relevant British Standard, relevant code of practice, good
    building practice or any applicable agrément certificate issued by the British Board of
    Agrément.
  Design Documents: means any drawings and/or design documents to be used in accordance with the Works and the Reports.
  Documentation: means any warranties and other documentation provided by Switch Property during the course of the Project.
  Employer: the person or firm who purchases the Works from Switch Property as outlined in the Contract Particulars.
  Employer Default: shall have the meaning given to it as set out in clause 6.5.
  Engagement: the engagement of Switch Property by the Employer on the terms of the Contract, and Engage and Engages shall be construed accordingly.
  Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Switch Property, and used directly or indirectly in the Works.
  Fees: the fees due for the Services and the Works, as set out in the Contract Particulars and in each successive version of the Switch Budget Report, including any Additional Charges where applicable.
  Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control (including in the case of Switch Property, its subcontractors and/or consultants) including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic or similar event, any law guidance restriction or other action taken by a Government or a public authority including without limitation imposing an export or import restriction quota or prohibition, the collapse of buildings, fire, explosion or accident, or failure of telecommunications utilities.
  Funder: means the party identified as such in the Contract Particulars.
  Good Industry Practice: means using the standards, guidance, practices, methods and procedures conforming to the Applicable Laws and exercising the degree of skill and care, which would reasonably be expected from a contractor.
  Insurance Policies: means the required insurance policies to be taken out by the Employer, as set out in the Contract Particulars.
  Loss: means actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.
  Materials: to the extent that it is applicable, all equipment, documents and other property of Switch Property, as further set out in clause 6.1(m).
  NIC: National Insurance contributions.
  Practical Completion: means that the Works have been completed such that the Works have been completed with only minor items or snags remain to be addressed which do not adversely impact on the Employer’s use of the completed Works.
  Programme: means the timetable by which the Services and the Works shall be performed, as set out within the Reports as updated from time to time within the Reports.
  Project: the building project set out in the Contract Particulars, in relation to which Switch Property will provide the Services and, subject to the Employer approving the initial Switch Project Report and the Switch Budget Report, the Works.
  Project Meetings: means the project meetings between the Employer and Switch Property’s Representative(s).
  Reports: the Switch Project Report, Switch Budget Report and Switch Completion Report documents issued by Switch Property in respect of the Project and the Works (as amended and updated from time to time).
  Request: means the Employer’s request in writing to Switch Property.
  Services: as set out within the Reports from time to time and may include surveying, feasibility studies, design, cost management, project management and construction management.
  Site: means the site(s) of the Project which is the subject of the Services and/or the Works and which Switch Property may need to access for the purpose of performing its obligations under the Contract, as outlined in the Contract Particulars.
  Site Material: means any equipment, plant, machinery, tooling, systems, cabling or facilities, provided by or purchased on behalf of the Employer which is used directly or indirectly in the performance of the Works or incorporation within.
  Site Rules: any rules, regulations or guidance supplied by Switch Property to the Employer relevant to the Site.
  Specification: any specification for the provision of the Works, as agreed between the parties in writing within the Reports.
  Supplied Personnel: means the personnel supplied by Switch Property to the Employer for the purposes connected with the Works.
  Switch Budget Report: the document issued by Switch Property in respect of the Fees and the relation of Fees to the Works (as amended and updated from time to time).
  Switch Property’s Representative: means the representative nominated by Switch Property to the Employer in writing, and Switch Property’s Representatives shall be construed accordingly.
  Switch Team: means any other professional consultants, engineers, contractors, and/or sub-contractors that are engaged on the Project by Switch Property.
  Terms: these terms and conditions.
  VAT: value added tax.
  Works: means the works to be provided and performed by Switch Property in relation to the Project for the Employer, as further detailed within the Contract Particulars and identified in the Switch Project Report and the Switch Budget Report.
2. Interpretation:
  1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to a party includes its personal representatives, successors and permitted assigns.
  3. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
  4. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
  5. A reference to writing or written includes emails.
TERM OF ENGAGEMENT – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. The Employer shall Engage Switch Property, and Switch Property shall provide the Services and/or the Works on the terms of the Contract.
2. The Engagement shall commence on the Commencement Date and shall continue until such time that the Works have been provided to the Employer, unless terminated as provided by the terms of the Contract.
3. If there is any ambiguity, conflict or inconsistency in or between the documents comprising the Contract, the priority of the documents is in accordance with the following sequence:
  1. the Terms; and
  2. the Contract Particulars.
4. These Terms shall prevail over any other terms of business issued by, or relied upon,
  by the Employer or
  and any other terms which are implied by trade, custom, practice or course of dealing.
PROVISION OF THE WORKS – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. Switch Property will carry out the Services and the Works as directed by the Employer and in accordance with the Programme and any applicable Specification.
2. Switch Property shall, to the extent required by the Contract Particulars, provide the Services, carry out the Works and provide all labour, materials, constructional plant, temporary works, transport to and from (and around) the Site, and (except to the extent otherwise provided for in the Contract Particulars), everything required in and for such carrying out of the Services and the Works.
3. Switch Property shall exercise reasonable skill and care to:
  1. perform the Works in accordance with:
    1. Good Industry Practice; and
    2. all Applicable Laws;
  2. co-operate with, and act in accordance with the reasonable instructions of the Employer;
  3. and any Works shall, conform with any particulars or Specification; and
  4. perform the Works in a timely way in a proper and workmanlike manner and in accordance
    with the Programme.
4. The Employer agrees and acknowledges that the dates agreed in the Programme are estimates only, and that time for Switch Property’s performance of the Works shall not be of the essence.
5. Prior to entering into the Contract, Switch Property shall be deemed to have visually inspected the Site. If, in the opinion of Switch Property (acting in accordance with Good Industry Practice), the ground of the Site (including any private access road or track) is unsuitable for the Works to be performed at or travelled over (as the case may be), Switch Property shall take all necessary steps at the Employer’s reasonable cost and risk to ensure such suitability.
6. Where Switch Property requires access to any sites, premises, or additional facilities for the performance of the Works in addition to the Site, Switch Property shall notify the Employer in writing, and the Employer shall facilitate such access, at the Employer’s cost.
7. Switch Property will use its reasonable endeavours to see that, at all times, it (and its Supplied Personnel) shall provide the Works in a professional manner and without uncooperative, abrasive, rude, foul mouth and/or aggressive behaviour towards any of the Employer’s employees or any other third party.
8. In the event that Switch Property becomes aware of any issues or circumstances which may prejudice the performance of the Works, Switch Property shall within a reasonable timeframe notify the Employer and take no further action until such time as the Employer directs. In the case of any emergency and/or in the absence of any express instructions from the Employer, Switch Property shall be permitted to take further action, insofar as the issue or circumstance relates to Applicable Law or matters of health and safety, exercising Good Industry Practice at all times.
9. Any documents/ design document issued are to be taken as draft and must not be relied upon by the Employer until the Employer gives approval to the Switch Project Report.
10. Where any Reports contain a suggestion or proposal issued by Switch Property which are marked as subject to the advice of a third party, the Employer acknowledges and undertakes that it shall be solely responsible for arranging and obtaining that third party advice and verifying the accuracy and completeness of the same at the Employer’s sole cost.
11. In order to provide the Works, Switch Property may liaise with third party subcontractors and consultants, and/or appoint the provision of a member of the Switch Team at the Employer’s sole cost.
DESIGNS
1. Where the Services and/or the Works compromise the completion of design works, Switch Property shall exercise reasonable skill and care to:
  1. carry out and complete the design, including the selection of any specification for the kinds and standards of the goods, materials and workmanship to be used in the Works in accordance with Good Industry Practice;
  2. integrate the design of any Works with any other works as required and in accordance with any Specification;
  3. carry out the duties of a designer and principal designer under the CDM Regulations and the Building Regulations;
  4. subject to the Employer approving the initial Switch Project Report and the Switch Budget Report, carry out the duties of a principal contractor under the CDM Regulations and the Building Regulations; and
  5. complete such design works in accordance with the Programme.
2. Without derogating from any other provision in these Terms, Switch Property shall be responsible in all respects for the design of the Works that it has prepared or had prepared on its behalf.
3. The Employer warrants, represents and undertakes to Switch Property that it has fully reviewed any pre-existing designs and any Specification that has been prepared by or on behalf of the Employer and confirms the accuracy of such design and that the Works are capable of being performed to the standard set out in these Terms in accordance with that design.
4. In the event that Switch Property discovers any error, inaccuracy, discrepancy or divergence in or between any Design Documents, that is likely to affect the proper and timely carrying out and completion of the Services and/or the Works or compliance with the requirements of any Specification or Applicable Laws, it shall notify the Employer in writing of the error, inaccuracy, discrepancy or divergence and its proposal for the resolving the same and will comply with the Employer’s decision at the Employer’s sole cost.
GOODS, MATERIALS AND LABOUR
1. Unless otherwise agreed in writing, Switch Property shall be required to provide Switch Property’s Material and labour in connection with its supply of the Works.
2. In respect of any Supplied Personnel, Switch Property, will use its reasonable endeavours to see that:
  1. they will be appropriately qualified to carry out the Works that they are required to perform;
  2. any Supplied Personnel are healthy, fit for work (i.e. not under the influence of any drugs and/or alcohol) and are able to provide the Works in accordance with the provisions of the Contract; and
  3. they are contractually obliged to perform the Works in accordance with Applicable Laws and the terms contained in the Contract.
3. Without prejudice to the foregoing, the Employer shall not specify in the course of providing the Works (including the provision of any Site Materials), anything which is Deleterious at the time of such specification or use.
4. If Switch Property becomes aware of the existence of any Deleterious materials and/or goods at the Site (whether or not such has been supplied by Switch Property), it shall when notify the Employer in writing as soon as reasonably practicable.
5. The Employer shall at all time retain title to the Site Materials. Any Site Materials shall not be removed from Site without the express prior written consent of the Employer.
EMPLOYER’S OBLIGATIONS – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. The Employer shall:
  1. ensure that the terms of the Contract Particulars and any Specification(s) are full, complete and accurate;
  2. co-operate with Switch Property, and its agents, associates, subcontractors, consultants and employees in all matters relating to the Works;
  3. prepare the Site for the provision of the Works;
  4. comply with any Site Rules;
  5. ensure that the Equipment is kept and operated in a suitable environment;
  6. provide Switch Property with such additional information and/or materials as Switch Property may reasonably require in order to supply the Works and ensure that such information is complete and accurate in all material aspects;
  7. take any steps reasonably necessary to ensure the safety of Switch Property’s personnel when attending the Site(s);
  8. provide Switch Property and all of its employees, contractors and agents with adequate, safe and unobstructed access to, egress from and movement around the Site;
  9. not specify or use anything which may result in Switch Property to be in breach of the CDM Regulations and/or the Building Regulations;
  10. not allow any person other than Switch Property to access or perform any Works at the Site, and/or use or adjust the Equipment without the prior written approval of Switch Property.
  11. obtain and maintain all necessary licences, consents, authorisations, and permissions as are required to enable Switch Property to perform the Works, in all cases prior to their commencement;
  12. comply with all Applicable Laws;
  13. keep all materials, equipment, documents and other property of Switch Property (‘the Materials’) at the Site in safe custody at its own risk, maintaining the Materials in good condition until returned to Switch Property, and not dispose of or use the Materials other than in accordance with Switch Property’s written instructions or authorisation; and
  14. comply with any additional obligations as set out in the Contract Particulars or as notified by Switch Property to the Employer in writing in respect of the Works.
2. The Employer warrants, represents and undertakings that it is responsible for complying with the relevant planning rules and building regulations applicable to the Project and shall ensure it complies with clause 6.1(k) in doing this.
3. The Employer warrants, represents and undertakes that the Site is free from all substances which could reasonably be deemed to be hazardous, noxious, poisonous or otherwise dangerous (Substances) including but not limited to asbestos and that Switch Property or any of its Supplied Personnel shall not come into contact with any Substances in performing its obligations in accordance with these Terms.
4. The Employer is responsible for providing and otherwise for the protection of, and liable for any damage to, any underground, surface or above ground services and utilities including, but not limited to cables, ducts, water pipes and gas lines, and the Employer shall liaise as necessary and comply with all requirements of the relevant statutory authority or similar body.
5. If Switch Property’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Employer or failure by the Employer to perform any relevant obligation, including adhering to the payment schedule issued in the Switch Budget Report (“Employer Default”):
  1. without limiting or affecting any other right or remedy available to it, Switch Property shall have the right to suspend performance of the Works until the Employer remedies the Employer Default, and to rely on the Employer Default to relieve it from the performance of any of its obligations in each case to the extent the Employer Default prevents or delays the Employer’s performance of any of its obligations;
  2. Switch Property shall not be liable for any Losses suffered or incurred by the Employer arising directly or indirectly from Switch Property’s failure or delay to perform any of its obligations under the Contract; and
  3. the Employer shall indemnify Switch Property, keep it indemnified and hold it harmless for any Losses suffered or incurred by Switch Property arising directly or indirectly from the Employer Default.
QUALITY & INSPECTIONS
1. Switch Property shall permit the Employer or its authorised representatives, on reasonable written notice, to make any inspections it or they may reasonably require in relation to the Works and Switch Property shall afford all reasonable facilities and assistance free of charge.
2. If subsequent to any inspection permitted in clause 7.1, or during any relevant Project Meeting, the Employer notifies Switch Property in writing that it considers that the Works do not conform with the terms of the Contract and/or any agreed Specification, the Employer agrees to provide Switch Property with the opportunity to examine the provision and progress of the Works, together with any further data, documentation, or materials reasonably requested by Switch Property.
3. Where Switch Property, in its sole opinion (acting reasonably), agrees that the Works do not comply with the terms of the Contract and/or any applicable Specification, Switch Property may at its option:
  1. as applicable, repair or replace any defective products, goods, Equipment or materials; and/or
  2. reperform any defective Works; and/or
  3. otherwise refund a proportionate amount of the Fees to the Employer.
SCOPE OF WORKS
1. Where the Employer request modifications, alternations or extensions to the Works during the course of
  the Project (including but not limited to any Design Documents and/or the Specification), the Employer
  shall submit a Request. The Employer acknowledges that the Request will constitute a change of scope of
  the Specification, and that this will require additional works and/or services which are not included
  within the scope of the Works.
2. Switch Property may, at its sole discretion, accept or reject any Request and, in the event that Switch
  Property accepts the position in any Request, it shall supply the Employer with an updated Programme and
  budget via the Reports enclosing the details of the Additional Works to be provided and any Additional
  Charges that will be payable. This will be presented and updated in the relevant issue of the Reports.
3. If the Employer accepts the position in the updated version of the Reports, then it shall be required to
  inform Switch Property of such acceptance in writing, following which Switch Property shall supply such
  Additional Works to the Employer in accordance with these Terms, which shall prevail over any terms that
  the Employer seeks to incorporate.
SWITCH TEAM
1. During the performance of the Works, Switch Property shall (where applicable) use its reasonable
  endeavours to:
  1. co-ordinate the services of the Switch Team;
  2. give instructions to the Switch Team as necessary to co-ordinate the services of the Switch Team
    and completion of the Project;
  3. schedule the activities of the Switch Team as necessary to facilitate the progress and
    completion of the Project; and
  4. notify the Employer if the Project is delayed or is likely to be delayed by a member of the
    Switch Team, setting out the cause of the delay and its likely duration.
HEALTH AND SAFETY
1. The Employer shall inform the Switch Property in a timely manner of any matters (including health, safety or security requirements) which may affect the provision of the Works.
2. Switch Property shall:
  1. where reasonably practicable, prior to the commencement of the Works, carry out a risk assessment to identify (and where possible eliminate) risks in connection with the provision of the Works at the Site to control residual health and safety risks identified in the following risk assessment;
  2. follow Good Industry Practice at the Site and where possible; and
  3. comply with all Applicable Laws, including but not limited to the Health and Safety at Work Act 1974 and the Environmental Protection Act 1990.
PROGRESS AND PRACTICAL COMPLETION
1. Switch Property shall (and shall ensure that its Supplied Personnel shall), co-operate with the Employer in relation to the Works as may be required.
2. Switch Property and the Employer shall hold Project Meetings on the frequency set out within the Reports in order to:
  1. monitor the progression of the Works and/or Project in accordance with the Programme;
  2. review and approve the ongoing Reports;
  3. discuss and resolve any issues that have arisen since the last meeting; and/or
  4. approve any Design Documents.
3. For the purposes of the Contract, any reference to “approval” to be given by the Employer shall mean the Employer giving approval by one of the following methods:
  1. e-mail from the Employer or an authorised representative of the Employer; or
  2. acceptance of the Reports without comment or return within 7 days of its issue.
4. Any approval to be provided by the Employer under the Contract shall not be unreasonably withheld or delayed. In the event that the Employer does not provide its approval of any Report and/or Design Documents it shall notify Switch Property of its reasons for disapproval within seven (7) Business Days (or other such period of time as Switch Property notifies the Employer in writing) of Switch Property’s request. If the Employer does not notify Switch Property of its disapproval in accordance with this clause 11.4, that version shall be deemed approved.
5. Switch Property shall make available Switch Property’s Representative at the Site at regular intervals during the performance of the Works to ensure that the Works are being performed in accordance with the Specification and/or Programme.
6. Notwithstanding clause 11.2 where reasonable and relevant to the performance of the Works and timely completion of the Programme, Switch Property’s Representative shall co-operate and communicate the progress of the Works to the Employer, including providing details of resources and allocated time to the Works required by the Employer, at reasonable time and intervals determined by Switch Property.
7. Practical Completion of the Works (or each relevant stage of the Programme) shall be deemed to have occurred on the date that
  Switch Property issues the Switch Completion Report to the Employer confirming that the Works (or relevant stage of the Works) have achieved Practical Completion.
8. If it becomes apparent that the progress of the Works is likely to be delayed, Switch Property shall provide notice to the Employer of this, including the cause of the delay and provide an estimate of any expected delay here. The estimated date of Practical Completion will be amended accordingly within the Reports.
9. Following Practical Completion in accordance with clause 11.7, any items identified within the snagging list in the Switch Completion Report at Practical Completion, Switch Property will complete and/or make good such items within a reasonable period after the Practical Completion.
PRICE AND PAYMENT – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. The Fees for the Works shall be set out in the Contract Particulars and the Switch Budget Report and will be payable in accordance with the Payment Schedule shown in the most recent issue of the Switch Budget Report. In the absence of any Payment Terms and a Payment Schedule, the provisions within this clause 12 shall apply.
2. Prior to the Works commencing, the Employer will be required to provide proof of funds to Switch Property in respect of the Fees, within seven (7) days of signing and returning the Contract Particulars. The Employer acknowledges that Switch Property shall have no liability for any delays in completion of the Works arising out of the Employer’s failure to comply with this clause 12.
3. The Employer authorises Switch Property to deduct any properly incurred Fees from any money paid by the Employer in accordance with the Payment Schedule. Switch Property shall, on a weekly basis, submit to the Employer the Switch Budget Report with a statement of account setting out any deductions made and/or monies held on account by Switch Property in relation to the Works.
4. The Employer undertakes to make payment to Switch in accordance with the Payment Schedule the due date for each payment is set out in the Payment Schedule and the final date for each payment is 14 days after the due date. Any payment shall be made to the bank account nominated to the Employer it in writing. Time for payment shall be of the essence.
5. On termination of the Contract, or following Practical Completion of the Works (as applicable), where Switch Property determines that the total Fees paid by the Employer exceed the final Project cost, Switch Property shall, within seven (7) days from the date of termination or completion (as applicable) return to the Employer any sums or monies held on account for the Employer which have not been (or will not) be incurred.
6. All amounts payable by the Employer under the Contract:
  1. shall be paid in full without any set-off, counterclaim, deduction, or withholding; and
  2. are exclusive of amounts in respect of value added tax chargeable from time to time (VAT).
7. If the Employer fails to make a payment due to Switch Property under the Contract by the final date for payment, then, without limiting Switch Property’s remedies under clause 18:
  1. Switch Property may, if applicable, suspend all or part of the Works until payment has been made in full in accordance with clause 12; and
  2. the Employer 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 12.7(b) will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is at or below 0%.
  3. Switch Property may terminate the contract if any payment shown on the payment schedule of the latest issue/version of the Switch Budget Report remains unpaid more than 30 days past the final date for payment.
SUSPENSION – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. Switch Property may, acting reasonably, at any time, suspend performance of all or part of the Works by giving written notice to the Employer. Switch Property shall resume performance of the Works as soon as reasonably practicable after receiving a written notice to do so from the Employer, provided the Employer complies with clause 13.2 and all payments are up to date in line with the payment plan within the latest issue/version of the Switch Budget Plan.
2. In the event of a suspension in accordance with the Contract, the Employer shall pay Switch Property:
  1. a reasonable amount in respect of costs and expenses reasonably and unavoidably incurred by Switch Property as a result of any exercise of its right referred to in clause 13.1; and
  2. any increase to the Fees due under clause 12.
3. Switch Property may terminate its Engagement under the Contract at any time by giving 5 Business Days written notice to the Employer if:
  1. a suspension of the Works in accordance with clause 13.1 continues for a continuous period of 30 days or more; and
  2. the Employer does not instruct Switch Property to resume the Works within two Business Days of a request by Switch to do so.
CONFIDENTIALITY
1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2.
2. Each party may disclose the other party’s confidential information:
  1. to its employees, officers, representatives, contractors or subcontracts 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14; and
  2. 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 the Contract.
COPYRIGHT
1. All copyright in or arising out of or in connection with the Works and any associated Reports, Materials, and/or Design Documents shall be owned by Switch Property.
2. Each party undertakes that Switch Property retains ownership over any Reports, Materials, and/or Design Documents produced in accordance with the Contract.
3. Switch Property makes no warranty and provides no assurances that the Materials, the Reports and/or Design Documents will not infringe rights of any third party.
4. Switch Property grants to the Employer of, a non-exclusive, royalty-free, revocable licence to copy and use the Reports and/or Design Documents (excluding materials provided by the Employer) for the purpose of receiving and using the Work, the Reports and the Design Documents during the Project.
5. The Employer shall not sub-license, assign or otherwise transfer the rights granted by clause 15.4.
6. The Employer grants Switch Property a fully paid-up, non-exclusive, royalty-free, irrevocable, non-transferable licence to copy and modify and materials provided by the Employer to Switch Property for the duration of the Contract for the purpose of providing the Works to the Employer. The Employer warrants that the granting of such licence does not infringe the rights of any third party.
DATA PROTECTION
1. Both parties will comply with all applicable requirements under Data Protection Legislation. This clause 16 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under applicable Data Protection Legislation.
2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Employer is the Controller and Switch Property is the Processor.
3. Without prejudice to the generality of clause 16.2, the Employer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Switch Property and/or lawful collection of the Personal Data by Switch Property on behalf of the Employer for the duration and purposes of the Contract.
4. Any Personal Data provided to Switch Property under the Contract shall be processed in accordance with its Privacy Policy.
LIMITATION OF LIABILITY & INDEMNITY – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. Nothing in the Contract shall limit or exclude either party’s liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
  2. fraud or fraudulent misrepresentation;
  3. any matter in respect of which it would be unlawful to exclude or restrict liability.
2. Switch Property’s total liability to the Employer in respect of all other Losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 20% of the Fees paid by the Employer to Switch Property for the Project.
3. The Employer shall indemnify Switch Property, keep Switch Property indemnified and hold Switch Property harmless from and against any and all Losses (including for the purpose of this clause 17.3 loss of profit, loss of contract, loss of business opportunity and special, indirect and consequential Losses) suffered or incurred by Switch Property arising under or in connection with:
  1. any alleged or actual breach by the Employer, its agents, employees or permitted sub-contractors of any term of the Contract;
  2. any infringement or alleged infringement of any third party rights arising out of, or in connection with, the supply or use of the Works and the Design Documents;
  3. in the event of delays or default (whether directly or indirectly) as a result of the Employer’s Default;
  4. additional costs of management time and other personnel costs, and additional costs of materials arising as a result of the Employer’s breach;
  5. any damage, Loss or downtime for failing to provide accurate information to Switch Property where required for providing the Works; and/or
  6. the Employer’s negligence or misconduct.
4. If a payment due from the Employer under this clause 17 is subject to tax (whether by way of direct assessment or withholding at its source), Switch Property shall be entitled to receive from the Employer such amounts as shall ensure that the net receipt, after tax, to Switch Property in respect of the payment is the same as it would have been were the payment not subject to tax.
5. This clause 17 shall survive termination of the Contract.
TERMINATION – SPECIAL ATTENTION IS DRAWN TO THIS CLAUSE
1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  2. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
  3. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for its solvent amalgamation with one or more other companies or its solvent reconstruction;
  4. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen days;
  5. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
  6. the holder of a floating charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
  7. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  8. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 18.1(a) to 18.1(h) (inclusive);
  9. the other party suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business; or
  10. the other party’s financial position deteriorates to such an extent that in the notifying party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
2. Without affecting any other right or remedy available to it, Switch Property may suspend the supply of Works under the Contract or any other contract between the Employer and Switch Property if the Employer fails to pay any amount due under the Contract on the due date, (shown on the latest issue of the Switch Budget Report) for payment and further a further seven (7) days after the due date for payment if the Employer becomes subject to any of the events listed in clause 18.1, or Switch Property reasonably believes that the Employer is about to become subject to any of them.
CONSEQUENCES OF TERMINATION
1. On termination of the Contract:
  1. the Employer shall immediately pay to Switch Property all of Switch Property’s outstanding unpaid invoices and interest and, in respect of Works supplied but for which no invoice has been submitted, Switch Property shall submit an invoice, which shall be payable by the Employer immediately on receipt;
  2. the Employer shall return all of Switch Property’s Materials which have not been fully paid for. If the Employer fails to do so, then Switch Property may enter the Employer’s premises and take possession of them. Until they have been returned, the Employer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
  3. Switch Property shall cease the Works and vacate the Site;
  4. the Employer shall return, or procure Switch Property’s removal from the Site of any Equipment; and
  5. return any Design Documentation to Switch Property (including any additional materials or copies) or any other documentation relating to the Specification.
2. Termination or expiry of the Contract shall not affect any 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 the Contract which existed at or before the date of termination or expiry.
3. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry of the Contract shall remain in full force and effect.
STATUS
1. The relationship of Switch Property to the Employer will be that of independent contractor and nothing in this agreement shall render it or any of its personnel (including any Supplied Personnel) an employee, worker, agent or partner of the Employer and Switch Property shall not hold itself out as such.
2. Switch Property shall promptly give to the Employer all such information and documentation as it may reasonably require from time to time in order for the Employer to determine whether the Engagement is or will be within the rules in Chapter 10 of Part 2 of ITEPA and is or will be Deemed Employment and, if the Employer determines the Engagement is Deemed Employment, in order to comply with any obligation on the Employer to deduct and account for tax or national insurance contributions from the fees due. Switch Property shall promptly inform the Employer of any material change to any information or documentation previously provided in compliance with this clause 20 and shall also promptly provide any other information or documentation that it considers (or ought to reasonably consider) to be materially relevant to determining whether the Engagement is Deemed Employment.
INSURANCE
1. During the Contract and for a period of six years following Practical Completion of the Works, Switch Property shall, maintain in force professional indemnity insurance as set out in the Contract Particulars.
2. During the Contract and for a period of six years afterwards the Employer shall, unless Switch Property otherwise notifies the Employer in writing, maintain in force the Insurance Policies with reputable companies for the amounts set out in the Contract Particulars for any one occurrence, or series of occurrences.
COLLATERAL WARRANTIES
Within five Business Days of receiving a written request from the Employer, Switch Property shall enter into a collateral warranty in favour of any Funder with an interest in the Works, in the form agreed between the parties in writing.
FORCE MAJEURE
Neither party shall be in breach of the Contract or otherwise liability for any delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay of non-performance continues for six (6) months, the party not affected may terminate the Contract by giving 0 days’ written notice to the affected party.
GENERAL
1. Assignment and other dealings.
  1. Switch Property may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
  2. The Employer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Switch Property.
2. Notices.
  1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
    1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or principal place of business; and
    2. sent by email to the email addresses provided for in the Contract Particulars.
  2. A notice or other communication shall be deemed to have been received, if delivered:
    1. personally, when left at the address referred to in clause 24.2(a);
    2. by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
    3. by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
    4. by email, on the second Business Day after transmission.
  3. The provisions of this clause 24.2 shall not apply to the service of any proceedings or other documents in any legal action.
3. Rights and Remedies. The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
4. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 24.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
5. Waiver.
  1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  2. A delay or failure to exercise, or the single or partial excuse of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
6. Further Assurance. At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to the Contract.
7. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
8. Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
9. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10. Disputes.
  1. Subject to either party’s right to adjudicate at any time, the parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation or mediation.
  2. Notwithstanding any other provision of the Contract either party may refer a dispute arising under the Contract to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations, which Part shall take effect as if it was incorporated into the Contract.
  3. The adjudicator shall be appointed by the President of Royal Institution of Chartered Surveyors in default of agreement between the parties (the ‘President’), to determine such dispute upon such manner and upon such terms as shall be agreed between the parties or in default of agreement, then as determined by the President.
11. Variation. Except as set out in these Terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12. Governing law. The Contract, 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.
13. 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 the Contract or its subject matter or formation.