MIDLAND HEART LIMITED

and

COMPANY XXX

SCHEDULE OF AMENDMENTS TO THE JCTMEASURED TERM CONTRACT 2011 EDITION

Relating to

CONTRACT TITLE

Signed on behalf of the parties:

Employer …………………………

Dated …………………………

Contractor …………………………

Dated …………………………

SCHEDULE OF AMENDMENTSTO JCT MEASURED TERM CONTRACT 2011

This Contract comprises the JCT Measured Term Contract 2011 published by Sweet & Maxwell Limited but subject to the following amendments:

Contents – after Schedule Supplemental Provisions add the following Schedules:Schedule 1 Schedule of RatesSchedule 2 Specifications Schedule 3 Key Performance Indicators (KPI’s) Schedule 4 Invoicing & payment requirementsSchedule 5 Contractors Induction ChecklistSchedule 6 Health & Safety Code of Conduct for Contractors & SubcontractorsSchedule 7 TUPE Schedule 8 Contractors Duty Form Schedule 9 Rectification & Remedial SystemSchedule 10 Property List Schedule 11 Midland Heart Repairs HandbookSchedule 12 PreambleSchedule 13 Customer Care PolicySchedule 14 Asbestos BookletSchedule 15 Asbestos Procedure

ARTICLES OF AGREEMENTInsert new Articles 9 to 15 as follows:

Article 9: Schedule of Amendments

“The Employer and the Contractor hereby agree that the modifications set out in the Schedule of Amendments which is attached hereto and has been initialled for and on behalf of both parties shall be incorporated into this Contract."

Article 10: Entire Contract

"This Contract will govern all Orders carried out by the Contractor whether such orders were or are carried out before or after the date of this Contract including any orders carried out under a letter of intent between the parties. The Employer and the Contractor respectively acknowledge that this Contract and the documentation referred to within the Contract form the entire contract between the Employer and the Contractor in relation to the Orders to the exclusivity of any antecedent statement, agreement or representation."

Article 11: Policies and Procedures

The Contractor acknowledges that it has received, read and accepted the Employer’s Policies and agrees to perform his obligations under this Contract in such a manner and at such times that no act, omission or default of the Contractor shall breach the said Policies

Article 12: Hot Works Permits

Prior to commencing any works under this Contract the Contractor shall produce for inspection adequate documentary to evidence that it has all of necessary Hot Work Permits required for the carrying out of all Orders.

Article 13: Performance Bond

Not used

Article14: Parent Company Guarantee

The Contractor shall provide a Parent Company Guarantee in the format specified in Schedule 4 to this Contract.

Article 15: Key Performance Indicators

The Contractor shall carry out the works and all Orders under this Contract in accordance with the Key Performance Indicators as set out in Schedule 3 to this Contract with only such amendments as the Employer may approve.

RECITALS

Delete Fourth Recital and insert “Not Used”

ARTICLES

Article 4 heading Delete ‘CDM Co-ordinator’ and insert ‘Principal Designer’

Article 4 Delete ‘CDM Co-ordinator’ and insert ‘Principal Designer’;Delete ‘or, if he ceases to be the CDM Co-ordinator, such other person as the Employer shall appoint pursuant to regulation 14(3) of those regulations’ and insert ‘or such other person as the Employer at any time appoints to fulfil that role either in relation to all Orders or for specific Orders’

Article 5Delete ‘or, if he ceases to be the Principal Contractor, such other contractor as the Employer shall appoint pursuant to regulation 14(3) of those regulations’ and insert ‘or such other contractor as the Employer at any time appoints to fulfil that role either in relation to all Orders or for specific Orders’

Footnote [2]Delete the existing text and insert the following:‘Insert the name of the Principal Designer in Article 4 if the Contract Administrator is not to fulfil that role and that of the Principal Contractor in Article 5 if that is to be a person other than the Contractor.

Under the CDM Regulations 2015, regardless of whether or not a project is notifiable, there is a requirement to appoint a principal designer and a principal contractor in all cases where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on a project at any time. For these purposes, the term ‘contractor’ is broadly defined by the regulations and treats the Contractor’s sub-contractors as separate contractors.’

CONTRACT PARTICULARS

4 Arbitration Delete “do not apply”.

10 Responsibility for Measurement & Valuation Delete “do not apply”.

11 Schedule of Rates Delete from “subject to

adjustment” to the end of 11.2.

12 Daywork Delete “do not apply”.

13 Overtime Work Delete “do not apply”.

Attestation

Contract to be executed under hand

CONDITIONS

SECTION 1 DEFINITIONS AND INTERPRETATION

1.1 Definitions

Word or phrase MeaningAmend “Conditions” At the end of the definition insert “and as amended

and supplemented by the Schedule of Amendments”.

Add “Confidential Information” “means any information concerning, comprising or relating to the business affairs of the other part, this contract, any other service provider involved in cost sharing arrangements and all related documents and personal information or details in respect of any employee of either party, or any tenant or any Customer of the Employer.”

Add “Contractor Default” “means any of the circumstances set out in clause 8.4.1 (Default by Contractor)”

Amend definition of “Contract Documents” by replacing “Contract Documents” with “Contract”. Delete existing definition and replace as follows :“means the Agreement, the Conditions, the Schedule of Amendments to JCT Measured Term Contract and all documents attached thereto (which for the avoidance of doubt includes the Specification, Key Performance Indicators (KPI), Schedule of Rates, Contractors Technical Response, Health & Safety Code of Conduct for Contractors & Subcontractors, TUPE, Contractors Duty Form, Rectification & Remedial System, Invoicing and payment requirements, H&S induction checklist, Repairs handbook, Preambles, Customer care policy, Asbestos Booklet & procedure and Property List”

Amend definition of "Contractor's IT System" “means the information technology system (being

software, hardware, any interfaces, and any combination of them) used by the Contractor in connection with the Works.”

Add “Designated Officer” Head of Contracts

Amend definition of "Employer" Before the full stop insert:"which expression shall include all permitted assigns or transferees under this Contract and successors in title".

Add “Force Majeure” means any event or occurrence which is outside of the control of the party concerned and which is not attributable to any act or failure to take reasonable preventative action by that Party, including but not limited to fire; flood; violent storm; exceptionally adverse weather; pestilence; explosion; malicious damage; armed conflict; acts of terrorism; nuclear, biological or chemical warfare; or any other disaster, natural or man-made, but excluding:(a) Any industrial action occurring within the

Contractors or sub-contractors organisation, or (b) The failure by any sub-contractors to perform its

obligations under any sub-contract.

Add “Hot Works Permits” permits provided by the Employer authorising the Contractor to carry out hot works as described in and on the terms stated in the Hot Works Permit or Permits.

Amend definition of "Interest Rate" Before the full stop insert:

"which the Parties hereby agree shall be a substantial remedy within the meaning of the Late Payment of Commercial Debts (Interest) Act 1998."

Add “KPI or Key Performance Indicator” “means a Key Performance Indicator by which the

Contractors performance of the Works is measured as set out in Schedule 3”

Add “Law” “means any :• Act of Parliament• Subordinate legislation (as defined in Section

21(1) of the Interpretation Act 1978)• Exercise of the Royal Prerogative• Enforceable community right (as defined in

Section 2 of the European Communities Act1972) and any Determination, direction or statutory guidance having the force of law”

Add “Malicious Software”, Means any software used to disrupt computer operation, gather sensitive information, or gain access to private computer systems. Malicious Software includes computer viruses (including worms, Trojan horses), ransom ware, spyware, adware, scareware, and other malicious programs

Amend definition of “Order” Insert at the beginning of the definition:“Electronic instructions given by a Designated Officer to the Contractor quoting the Unique Property Reference Number, Unique Contractor Reference Code and a description of the property providing”Delete “and/or the supply…and/or goods” and “on written…Administrator,”

Add “Policies” Midland Heart’s Health & Safety Code of Conduct for Contractors and Sub-Contractors as described in Schedule 6, and all other Midland Heart policies listed in Schedule 2.

Add “Post Inspection Form” Midland Heart’s bespoke ‘Final Inspection/Completion Authorisation’ form

Add “Probity Policy” “means in the case of an Employer that is a Registered Provider the Employer’s policy for ensuring that it complies with all the Regulatory Requirements and good practice in relation to avoiding conflicts of interest between its board members and employees and its contractors and suppliers”

Add “Property/Properties” “means the dwellings, blocks, sheltered schemes, hostels, like properties and related common and communal areas, environs and assets within any area specified in the Contract Particulars or such other area as the Employer specifies by written notice to the Contractor that are included in the property portfolio owned or managed by the Employer and in relation to which the Employer is responsible for maintenance, also referred to as Properties.”

Add “Registered Provider” “means a non-profit organisation registered as a provider of social housing registered or deemed to be registered under the Housing and Regeneration Act 2008”

Delete the definition of ‘CDM Co-ordinator’;

‘CDM Regulations’: delete ‘2007’ and insert ‘2015’;

‘Construction Phase Plan’: delete the existing text and insert ‘the plan referred to in regulation 2 of the CDM Regulations, including any updates and revisions.’;

‘Principal Contractor’: delete the existing text and insert ‘the Contractor or such other contractor as is either named in Article 5 or appointed by the Employer in relation to any Order.’;

After the definition of ‘Principal Contractor’, insert the following new definition:‘Principal Designer: the Contract Administrator or such other person as is either named in Article

‘Principal Designer: the Contract Administrator or such other person as is either named in Article 4 or appointed by the Employer in relation to any Order.’

1.5 Contracts (Rights of Third Parties) Act 1999

Delete and insert a new clause as follows:

“Save as expressly provided for in this Contract a person who is not a party to this Contract will have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.”

SECTION 2 CARRYING OUT THE WORKS

2.1 After ‘Construction Phase Plan’, delete ‘(where applicable) and other’ and insert ‘and’

2.1 Re-number clause 2.1 as 2.1.1 and insert the following new clauses:

2.1.2 The Contractor shall at all times prevent any public or private nuisance (including, without limitation, any such nuisance caused by noxious fumes, noisy working operations or the deposit of any material or debris on the public highway) or other interference with the rights of any adjoining or neighbouring landowner, tenant or occupier or any statutory undertaker arising out of or in the course of or caused by the carrying out of the Works save only where such nuisance or interference is the consequence of an instruction of the Employer (which is not itself the result of any negligence, default or breach of contract by or on behalf of the Contractor or any sub-contractor or supplier) and could not have been avoided by the Contractor using all reasonable and practical means. For the avoidance of doubt, the Employer may issue to the Contractor such instructions as he considers necessary if any injunction is granted or Court order is made in consequence of any such nuisance or interference, but (save as aforesaid) no such instruction shall be construed as a Variation.

2.1.3 Without prejudice to the Contractor’s obligations under clause 2.1.2, the Contractor shall ensure that there is no trespass on or over any adjoining or neighbouring property arising out of or in the course of or caused by the carrying out of the Orders or of any obligation pursuant to clause 2.12. If the carrying out of the Orders or of any obligation pursuant to clause 2.12 is likely to necessitate any interference with the rights of adjoining or neighbouring owners or occupiers, which for the avoidance of doubt shall include party wall matters, then the Contractor shall, at no cost to the Employer, obtain the prior written agreement of such owners and/or occupiers thereto, and such agreement shall be subject to the approval of the Contractor before execution. The Contractor shall comply in every respect with any conditions contained in any such agreement”.

2.1.4 Policies

2.1.4 The Contractor shall perform his obligations under this Contract in such manner and at such times that no act, omission or default of the Contractor shall breach the Policies or shall cause the Employer to be in breach of the Polices.

2.1.5 Hot Works Permit

2.1.5.1The Contractor shall obtain and maintain all necessary Hot Works Permits required for the carrying out of the Orders instructed under this Contract and shall perform his obligations in accordance with the permits.

2.1.5.2The Contractor shall immediately inform the Employer if his Hot Works Permits are breached in any way and shall provide the Employer with details of the breach, who and how it will be remedied and with copies of all permits required on receipt of each new Order.

2.1.6 Hazardous materials

2.1.6.1The Contractor shall not use, generate, dispose of or transport to the Site any Hazardous Substances otherwise than in accordance with Environmental Laws.

2.2.1 Replace “Schedule of Rates” with “Services Specification”

2.2.4 – Insert at the end of the clause “In any event the Contractor shall ensure that all Contractor’s personnel working on the delivery of the Orders shall be sufficiently skilled and qualified to complete the Orders in a competent, safe and professional manner.”

2.3.1 After clause 2.3.1.2 insert new clause 2.3.1A as follows:

2.3.1A.1The Contractor shall use all reasonable endeavours not to interfere with or impede the progress of any works being carried out by the Employer and/or any person authorised or licensed by the Employer to carry out works and shall observe all reasonable requirements of the same in relation to the carrying out of such works.

2.3.1A.2 The Employer and/or any person authorised or licensed by the Employer to carry out works pursuant to clause 2.3.1 shall discuss any access requirements and the extent and location of such works with the Contractor and the Contractor shall advise the Employer of the information it shall require in order to carry out of the Orders.

2.3.1A.3 The Contractor undertakes and agrees to co-operate fully with the Employer and/or any person authorised or licensed by the Employer and if directed by the Employer, with any other service provider with regard to the programming of access for such works as are referred to in this clause 2.3.1.1, the co ordination of the same with regard to the carrying out of the Orders and the shared use (if necessary) of facilities.

2.3.1.1 reword as follows – “to place orders for similar or the same work in whole or in part with other contractors or his own labour within the Contract Area;”

Delete Clause 2.3.6 and insert new clause

2.3.6 The materials and goods supplied by the Employer for any Order shall be at the sole discretion of the Employer.

Delete Clause 2.5 and insert new clause

2.5 The Employer is not obliged to provide the Contractor with any Orders nor does the Employer give any warranty or undertaking as to the actual amount of work that will be ordered and no variance in the actual value of the work ordered shall give rise to a change in any rate, price or percentage adjustment. For the avoidance of doubt, the Employer shall not be liable for any loss of profits, loss of contracts or other costs, expenses or losses suffered or incurred by the Contractor as a result of the Contractor not being awarded any Orders under this Contract. For the

avoidance of doubt, the Employer may engage other service providers to carry out other work to the Properties at the same time the Contractor undertakes the work under this Contract.

Delete Clause 2.6 and insert new clause

2.6 Unless covered by a priority coding referred to in Item 7 of the Contract Particulars and/or the Specification Schedule each order shall state a commencement date and a reasonable date for its completion. The Contractor shall ensure that all of the work covered by and included in the Order shall be completed in full by the date for its completion specified in the Order.

2.6 After ‘commencement date’, delete ‘[18]’ and footnote [18]

Delete entire Clause 2.10 and insert new clause

2.10 Extension of time

2.10.1 If at any time during the course of completing an Order, the Contractor shall establish that the progress of the works under the Order are being affected by reason of Force Majeure the Contract Administrator shall allow such extension of time as is fair and reasonable in the circumstances upon written application by the Contractor to the Contract Administrator. Such application shall be made immediately after the Contractor becoming aware that such delay has or might occur and shall include any documentation the Contractor may wish to provide in support of its application and the period of extension it seeks. To the extent that any extension of time is granted a revised date for completion for the Order shall be fixed by the Contract Administrator and notified to the Contractor. For the avoidance of doubt, there shall be no increase in the price of any Order in the event an extension of time is granted.

2.12 Clause 2.12 on the first line delete “6” and replace with “12” and add the following to the end of the clause:

On or before issuing such certificate in accordance with clause 2.11 or within a reasonable time thereafter, the Contract Administrator may deliver to the Contractor as an instruction of the Employer a Schedule of defects, shrinkages, faults or any incomplete items of work outstanding at the Order Completion Date which he requires to be completed or made good by a date reasonably set by the Contract Administrator. Unless the Contract Administrator shall otherwise instruct, the Contractor shall at no cost to the Employer complete or make good all defects, shrinkages, faults and any outstanding items of work referred to in the said Schedule by the date set by the Contract Administrator and if the Contract Administrator so instructs then an appropriate deduction in respect of any such defects, shrinkages, faults and incomplete items of work not made good or completed shall be made from any sums owing to the Contractor. If the Contractor fails to rectify the defects, shrinkages and faults or does not complete the outstanding items of work under this clause by the date set by the Contract Administrator the Employer may instruct another service provider to carry out the required works, and the cost of such works shall be deducted from any sums owing to the Contractor.

SECTION 3 CONTROL OF THE WORKS

3.1 Assignment

3.1 Delete existing wording and substitute with the following:

3.1.1 The Employer shall be entitled to assign all rights and benefits under this Contract or any interest herein without the consent of the Contractor. The Contractor hereby consents to the assignment of this Contract by the Employer and agrees to enter into such documentation as may be required to effect such assignment.

3.1.2 The Contractor shall not be entitled to assign this Contract or interest herein without the prior written consent of the Employer.

3.2 Sub-Contracting

3.2 Re-number clause 3.2 to 3.2.1 and insert new clause 3.2.2

Delete the second sentence of clause 3.2.1 and add the following:

3.2.1 In the event that the Employer consents to any works under this Contract being carried out by a sub-contractor, the Contractor shall ensure that all work carried out by any sub-contractor are carried out in accordance with the terms of this Contract, the CDM Regulations and all relevant health & safety requirements. Any application by the Contractor to sub-contract the work must indicate the identity of the sub-contractor, the extent of the works that is to be sub-contracted, and the terms of the sub-contract. The Contractor shall indemnify the Employer against all costs, losses and expenses that arise from the Contractor not complying with this clause.

3.2.2 The Contractor must include the following terms in all sub-contracts and supply contracts relating to this Contract:

.1 that the sub-contract or supply contract must terminate automatically on the termination of this contract unless the Employer notifies the Contractor that the Employer wishes to take over that sub-contract in accordance with Clauses 7.1.6, 8.12.6 and 8.13.3,

.2 that if the Employer requires the sub-contractor will novate the sub-contract to the Employer and will enter into a deed of novation to that effect;

.3 that the sub-contractor or supplier may not further sub-contract without the prior written consent of the Employer;

.4 that the Contractor will pay all undisputed sums due from the Contractor to the sub-contractor or supplier within no more than 30 (thirty) days from the receipt of a valid invoice under the sub-contract;

.5 Not used

.6 that the sub-contractor must either provide product warranties to the Employer or permit the Contractor to assign to the Employer any product warranties the sub-contractor has provided to them; and

.7 that the sub-contractor or supplier will comply with all the terms and conditions of this Contract.

Amend clause 3.4.2 as follows : Insert “as above” after “Contract Administrator’s instructions”

Delete entire text after “he shall forthwith notify the Contract Administrator”

Delete clause 3.4.3

Insert new clause 3.5.2.1 as follows:

3.5.2.1“Any work carried out and/or materials supplied in addition to an Order which has not been authorised by the Contract Administrator shall be at the Contractor’s expense.”

3·9 heading Delete ‘Undertakings to comply’ and insert ‘CDM Regulations’

3.9 Delete the existing text and footnote [19] and insert the following: ‘Each Party undertakes to the other that in relation to each Order and Site he will duly comply with applicable CDM Regulations. In particular but without limitation:

·1 the Employer shall in each case ensure that the Principal Designer carries out his duties and, where the Contractor is not the Principal Contractor, shall ensure that the Principal Contractor carries out his duties under those regulations;

·2 the Contractor shall comply with regulations 8 and 15 and, where he is the PrincipalContractor, with regulations 12 to 14;[20]

·3 whether or not the Contractor is the Principal Contractor, compliance by the Contractor with his duties under the regulations, including any such directions as are referred to in regulation 15(3), shall be at no cost to the Employer and shall not entitle the Contractor to an extension of time;

·4 if the Employer appoints any other person as the Principal Designer or Principal Contractor either in relation to all Orders or for specific Orders, the Employer shall immediately upon that appointment notify the Contractor with details of the new appointee.’

Footnote [20] Delete the existing text and insert the following:‘Where the Employer is a domestic client, as defined in regulation 2, the Principal Contractor may also be responsible for carrying out certain of the client’s duties under regulations 4, 6 and 8.’

3.10 heading Delete ‘Appointment of successors’ and insert ‘Replacement of Contract Administrator’

3.10.1 Renumber as 3·10

3.10.2 Delete the sub-clause number and text

Insert new clause 3.11 as follows

3.11 .1 The Contract Administrator may delegate some or all of the Contract Administrator’s duties to one or more officers of the Employer (each an “Authorised Officer”)..2 The Contract Administrator must give written notice of any delegation under Clause 3.11.1 to the Contractor. The notification must state:

.1 the identity of the Authorised Officer;

.2 contact details for the Authorised Officer; and .3 the duties delegated.

.3 The Contractor shall not recognise any Authorised Officer until notified in writing of a delegation to that Authorised Officer under Clause 3.11.2.

Insert new clause 3.12 as follows:

3.12 Publicity

.1 The Contractor must not and must ensure that its sub-contractors do not give any information about the work carried out under this Contract for publication in the press or on radio, television, via the internet, or for any other media without the prior written consent of the Employer.

.2 The Contractor must not, and must ensure that its sub-contractors do not take photographs of any Properties or any works without the prior consent of the Employer, other than as required as part of the delivery of this Contract.

4. Payment

Insert new clause 4A at the start of section 4 as follows:

4A All payments made under this Contract shall NOT be subject to a percentage increase or decrease in accordance with the KPI’s as detailed in Schedule 3.

Insert new clause 4B as follows: “The Employer shall pay the Contractor for all Orders completed in line with the Invoicing and Payment Mechanism in Schedule 4. Work pursuant to all Orders shall be charged by the Contractor in line with the Schedules of Rates in Schedule 1.”

Mark Clauses 4.3 and 4.4, 4.5, 4.6.1, 4.6.3 and 4.6.4 as “Unused”

Section 5 Mark clauses 5.3.2, 5.4, 5.5, 5.6.3, 5.6.4, 5.6.5, 5.7 and 5.8 and as “Unused”

In clause 4.6.2 delete the word “certificate” at the end of the clause and replace with the word “invoice”.

In clause 4.6.5 delete the words “certificate or application” in the first and second line of the clause and replace with the word “invoice”.

In clause 4.6.8 delete the word “certificate” and replace with the word “invoice”

Clause 5.2 – Amend to read as follows: “All work carried out pursuant to an Order apart from work in relation to Service and Repair included in the Price per Property as detailed in Schedule 1 (but including any Variations required by the Contract Administrator or subsequently sanctioned by him) shall be valued in accordance with the Schedule of Rates (Schedule 1). Such valuation of an Order shall be undertaken by the Contractor as detailed in the Contract Particulars (Item 10) and unless other wise agreed by the Contract Administrator and the Contractor work on such Order shall commence only after prior express authorisation by the Employer. All work carried out on Orders which require valuation in accordance with this clause that has not been authorised by the Employer in accordance with this clause and Schedule 4 shall be at the cost of the Contractor.

Clause 5.3.1 – Amend as follows: delete references to clauses 5.4.1 and 5.5. Also delete the wording “insofsar as such rates or prices apply, subject to adjustment by the Adjustment Percentage.”

SECTION 6 INJURY, DAMAGE AND INSURANCE

6.1 Liability of Contractor – personal injury or death

6.1 In line 3 after "Order" insert "or of any obligation pursuant to clause 2.12".

6.2 Liability of Contractor – injury or damage to property

6.2 In line 3 after "Order" insert "or of any obligation pursuant to clause 2.12".

In line 5, after the words “clause 6.3” add the words “and clause 6.3A”.

Amend heading to read “Liability of Contractor – injury or damage to property; nuisance.” and add new paragraph to the end of the Clause as follows:

“And the Contractor shall at all times prevent any public or private nuisances (including without limitation any such nuisance caused by noxious fumes, noisy working operations or the deposit of any materials or debris on the public highway) or other interference with the rights of any adjoining or neighbouring landowner, tenant or occupier or any statutory undertaker arising out of an Order or of any obligation pursuant to clause 2.12 and shall defend or, at the employer’s option, assist the Employer in defending any action or proceedings which may arise as a result of any breach by the Contractor of its obligations under this Contract.”

After clause 6.3 insert new clause 6.3A as follows: Limitation of Liability

“6.3A      Notwithstanding clauses 6.1 and 6.2 and any other provision of the Contract, the following sets out the Contractor’s liability in respect of this Contract, whether in contract or tort, including but not limited to negligence:

6.3A.1     the Contractor will accept full liability for death or personal injury resulting from its negligence, for fraud or for fraudulent misrepresentation, and for any other liability which cannot be excluded by law;

6.3A.2    except as provided for in Clause 6.3A.1 above and subject to Clause 6.3A.3 below, the Contractor’s total liability for loss or damage in respect of any liability for which the Contractor is required to maintain insurance under this Contract shall not exceed the relevant minimum level of insurance cover the Contractor is required to maintain in respect of such liability under this Contract as specified in clause 14 of the Particulars and clause 6.16 of the Conditions, and shall not exceed twenty six million in respect of all other liabilities;

6.3A.3    except as provided for in Clause 6.3A.1 above, the Contractor will be responsible only for direct losses of the Employer arising from any breach of this Contract and will not be liable for: (i) loss of business, profits, anticipated savings (even where the same arise directly from a breach of this Contract) or (ii) special, indirect or consequential loss, even if such loss is foreseeable by or in the contemplation of the Contractor.

6.7 Insurance of existing structures

6.7.2 Delete clause

Insert a new clause 6.16 as follows:

6.16 Contractors All Risk, Employers Liability, Public & Product Liability Insurance

“Without limiting his other obligations under this Contract or otherwise at law, the Contractor shall maintain Contractors All Risk insurance with a limit of indemnity not less than £5,000,000 in respect of each and every claim, employers liability not less than £5,000,000 in respect of each and every claim, public and product liability not less than £5,000,000 in respect of each and every claim which may incur under this Contract, provided that such insurance continues to be available in the European Union market on reasonable terms and at commercially reasonable premium rates to service providers of similar standing to the Contractor."

Delete clause 7.1 and replace with the following

7.1.1 Each Party shall have the right to terminate this Contract before the end of the Contract Period by giving the other Party not less than 6 months written notice to that effect (Termination Notice).

7.1.2 For the avoidance of doubt, in the event that the Contract is terminated by either

Party under clause 7.1 (Break Provisions) subject to and without prejudice to clause 7.1.5, the Employer shall not be liable for any loss of profit, loss of contracts or other costs or losses suffered or incurred by the Contractor as a result of the Contract coming to an end.

7.1.3 If this Contract is terminated by either Party exercising the break provision under clause 7.1 the Employer may require the Contractor to novate any sub-contract and/or supply contracts to the Employer by serving notice to that effect on the Contractor at least 15 business days before the date of termination.

7.1.4 In the event that the Employer exercises the right to terminate the Contract the amount due to be paid to the Contractor upon termination under this clause includes:

7.1.4.1 The amount assessed as due for work properly and fully completed;

7.1.4.2 Set up cost (if any) where that has been separately identified in the Contractor’s tender and which is subsequently independently validated as genuine costs incurred that are wholly abortive as a result of the Employer’s early termination insofar as they have not been recovered through charges made up to the point of termination. For the avoidance of doubt, this does not include loss of profit, contributions and any costs associated with the preparation and submission of the original tender;

7.1.4.2.1 The Contractor is under a duty to reduce the costs detailed in

7.1.4.2 so far as is practicable to do so;

7.1.4.2.2 Payment will be due for actual works undertaken and not paid for to the point of termination with regards to the servicing element;

7.1.5. In the event that the Contractor exercises the right to terminate the agreement pursuant to clause 7.1:

7.1.5.1 The Contractor shall pay the Employers costs related to re-procurement of this Contract and

7.1.5.2        The amount due to the Contractor upon termination will include:7.1.5.2 (a)  The amount assessed as due for work properly and fully completed;

SECTION 8 TERMINATION FOR DEFAULT ETC.

Insert new clause 8.4.4 as follows:

8.4.4. A material breach shall include, but not be limited to the following by the Contractor:

a the Contractor purports to assign, novate or appoint an agent to deliver this Contract without the prior written consent of the Employer;

b the Contractor is unable to comply with its obligations under this Contract for a period of more than 10 business days because of any action taken by any Statutory Authority in relation to the Contract due to any breach of Law or suspected breach of Law by the Contractor;

c the Contractor failing to comply with an instruction of the Contract Administrator within the period for doing so as set out in Clause 2.12;

d the Contractor or a sub-contractor breaching any Law in connection with this Contract (other than a minor breach which does not give rise to any risk of prosecution and which is remedied immediately after the Contractor becomes aware of it);

e the Contractor failing to provide an Ultimate Parent Company Guarantee within the period specified in this Contract;

f the Contractor having had 2 default remedial plans rejected by the Employer under Clause 22.3 provides a further draft remedial plan that is also rejected under that Clause;

g any other breach of this Contract which, in the reasonable opinion of the Employer, is sufficiently serious to entitle the Employer to terminate this Contract if it is not remedied; and

h the Contractor commits a breach of this Contract and the Contractor has committed the same or a similar breach two or more times in the 3 (three) months preceding the breach.

Insert new clause 8.4.5 as follows:

8.4.5 If the Contractor commits a material breach as defined in 8.4.4. of this Contract the Employer will have the right to terminate the Contract following the process detailed in this clause::

a) The Employer shall notify the Contractor in writing of the material breach and give details of the material breach specifying the material breach

b) The Employer shall give the Contractor a period to rectify the material breach (which may not be less than 30 business days or any shorter period set by the Contract Administration acting reasonably); and shall warn the Contractor of its intention to terminate the Contract with immediate effect if the material breach is not rectified within the specified period.

d) If the Contractor fails to rectify the material breach as requested by the Employer pursuant to this clause 8.4.5 the Employer shall have the right to terminate the Contract with immediate effect.

Insert new clause 8.5A:

8.5A Restructuring of Contractor

8.5A If the Contractor intends to merge or amalgamate with any other company or undertaking or acquire directly or indirectly any interest in any shares or other security convertible into shares of any other company or form or acquire any subsidiary, the Contractor must give 21 days prior written notice to the Employer and the Employer may at any time by notice to the Contractor terminate the Contractor’s employment under this Contract.”

8.5 Insolvency of Contractor

8.5.3.1 In the end of the clause add the following wording:“ and the Employer shall not be bound by any provisions of this Contract to

make any further payment.”

Insert new clause 8.6.1, 8.6.2 & 8.6.3 as follows:

8.6.1 “The Contractor must incorporate obligations in every sub-contract and supply contract that enable the Contractor to terminate the sub-contract or supply contract because of any corrupt gift consideration or financial or other advantage offered or paid by the sub-contractor or supplier or on its behalf in connection with this Contract.”

8.6.2 “Where the Employer is a registered provider the Contractor must not do and must procure that each sub-contractor and supplier does not do anything which would place the Employer in breach of any restriction in its Probity Policy on making a payment or granting a benefit to a business trading for profit.”

8.6.3 Within 5 business days of being so instructed by the Employer, the Contractor must repay to the Employer any payments made in breach of Clause 8.6.3.

8.9 Termination by Employer – valuation, certificate and payment

8.9.3.1Delete “properly” from line 1.

8.9.3.2 After “direct loss” insert “(including for the avoidance of doubt loss of rental income)”.

Insert new clause 8.11 as follows:

8.11 Termination by either Party – Obligations of the Contractor

8.11.1 Upon any termination of the Contractor’s employment under this Contract the Contractor shall immediately vacate the Site and shall comply with all instructions of the Employer for the protection of any works and any goods and materials and the safe and orderly removal of all plant equipment and other items belonging to the Contractor and shall immediately deliver to the Employer possession of the Site and any works in a neat and tidy condition.

8.11.2 Upon termination of the Contractors employment under this Contract, the provisions of clause 20 and Schedule 7 shall apply”

insert new clause 8.12 as follows:

8.12 “Termination for Force Majeure

8.12.1 If Force Majeure results in the suspension of all or a substantial majority of the work for more than 20 (twenty) Business Days, either Party may terminate this Contract by giving 10 (ten) Business Days’ written notice to the other.

8.12.2 If this Contract is terminated for Force Majeure:.1 to the extent possible in the light of the Force Majeure the Contractor must continue to carry out and complete all Orders;.2 the Contractor must notify the Contract Administrator of any Order that the Contractor is not able to complete;

8.12.3 the Employer must pay the Contractor for all Orders completed up to the Termination Date in accordance with Section 4 of the Conditions (Payment);

8.12.4 the Employer must pay the Contractor a fair and reasonable amount for all uncompleted Orders up to the date of termination;

8.12.5 the Employer must pay the Contractor the market value on the date if termination of any equipment or materials owned by the Contractor which are to be transferred to the Employer on termination;

8.12.6 the Employer may require the Contractor to novate any sub-contracts and/or supply contracts to the Employer by serving notice to that effect on the Contractor

a at the same time as the notice of termination where the notice of termination is served by the Employer; orb within 5 (five) Business Days of the date of service of the notice of termination where the notice of termination is served by the Contractor;

8.12.7 except as provided above neither Party is to have any claim against the other as a result of termination for Force Majeure, but this is without prejudice to:

a any amounts due under Clause 4 (Payment) for Orders completed before the Termination Date

Clause 8.13 – insert a new clause 8.13 as follows:

8.13 “Expiry of the Contract Period”

8.13.1 During the three months preceding the date of expiry of the Contract Period or any extensions period the Contractor must continue to carry out and complete Orders except as set out below:

8.13.1.1 need not carry out any Order instructed during those 3 (three) months which cannot be reasonably completed before the expiry date unless the Contract Administrator and Contractor agree otherwise The Contractor must notify the Contract Administrator that of any Orders which cannot be completed before the expiry date immediately on receipt of such Orders; and8.13.1.2 must complete all Orders instructed before the start of such three months period, even if such Orders cannot be completed before the expiry date.

8.13.2 Where the Contractor completes Orders under Clause 8.13.1 the Expiry Date will be the date of completion of the last Order to the reasonable satisfaction of the Contract Administrator.

8.13.3 Where the Contract is terminated under Clause 7.1 (Break Notice) the Employer may require the Contractor to novate any sub-contracts and/or supply contracts to the Employer by serving notice to that effect on the Contractor at least 25 (twenty five) Business Days before the Expiry Date.”

Clause 8.14 – insert a new clause 8.14 as follows:

8.14 “Obligations to co-operate on handover

8.14.1 On termination of this Contract the Contractor must co-operate fully with the Employer in relation to the legal and operational handover of responsibilities between the Contractor and the Employer.

8.14.2 The Contractor must use all reasonable endeavours to procure that the benefit of any guarantees, warranties, documentation and service agreements which are in force on the date of expiry or earlier termination of the Contract Period and are related to any work, materials and items supplied in relation to Orders are assigned to the Employer or as the Contract Administrator may instruct.

8.14.3 Except where this Contract is terminated for default by the Contractor , and subject to the Contractor obtaining permission from any of the Employer’s customers occupying the affected Properties, the Contractor may enter any of the Properties in the five Business Days after the date of expiry or earlier termination of the Contract Period to remove any materials or equipment which owned or hired by the Contractor or its subcontractors and which are not to be transferred to the Employer after the date of termination or expiry of the Contract Term.

8.14.4 The Contractor must deliver all materials and equipment paid for by the Employer to the Employer or as the Contract Administrator directs within five Business Days of:

.1 the date of termination or expiry of the Contract Period, where the reason for termination is any reason other than default by the Employer

.2 the date on which the Contractor receives payment for such materials and equipment where the termination is for default by the Employer under Clause 8.7 (Default by Employer).

8.14.5 The Contractor must ensure that all rubbish, debris, and site waste have been removed from the properties within five Business Days of the termination of this Contract but the Contractor’s attendance at any such properties for the purpose of such removal is subject to:

.1 any direction of the Contract Administrator; and

.2 the Contractor obtaining permission for access to the properties from any customers occupying those Properties.

8.14.6 If the Contractor fails to remove all rubbish, debris and site waste from the Properties within five Business Days of the Termination Date the Employer may do so and recover its reasonable costs of doing so from the Contractor.

8.14.7 Within five Business Days of the date of termination, the Contractor must return to the Employer all keys, passes, door entry codes and other information relating to the Properties.

8.14.8 Following the later of the rectification of Defects and final payment made pursuant to this Contract, the Contractor must delete all copies of all Documents and data relating to this Contract from the Contractor’s IT System except:

.1 those required to be kept under Clause 8.15 (Post Termination); and

.2 any in which the Contractor has the Intellectual Property Rights under Clause 11(Copyright Licence and Proprietary Material)”

Clause 8.15 – insert a new clause 8.15 as follows:

8.15 “Post Termination or Expiry

8.15.1 For a period of 12 (twelve) years after the expiry or termination of this Contract the Contractor must maintain full records of:

.1 this Contract;

.2 the Orders completed under this Contract;

.3 all payments received from the Employer pursuant to this Contract; and

.4 any expenditure of the Contractor that the Employer reimburses.”

Insert new clause 8.168.16 Termination due to modification

The Employer is entitled to terminate the contract immediately in accordance with Regulation 73 of the Public Contracts Regulations 2015 in the following circumstances –

(a) Where there has been a substantial modification which would have required a new procurement procedure in accordance regulation 72(9) of the Public Contracts Regulations 2015.

(b) Where the Contractor has, at the time of award, been in one of the situations referred to in regulation 57(1) of the Public Contracts Regulations 2015, including as a result of the application of regulation 57(2), and should therefore have been excluded from the procurement procedure; or

(c) The contract should not have been awarded to the Contractor in view of a serious infringement of the obligations under the Treaties and the Public Contracts Directive that has been declared by the Court of Justice of the European Union in a procedure under Article 258 of TFEU.

SECTION 9 SETTLEMENT OF DISPUTES

9.1 Mediation

Delete existing text and replace with the following:“If a dispute arises out of or in connection with this Agreement, the parties will, with the help of the Centre for Effective Dispute Resolution (CEDR), seek in good faith to resolve it by Alternative Dispute Resolution.”

9.2 Adjudication

Add to the end of the clause:

"The Adjudicator shall be required to give written reasons for his decision."

10. Confidential Information

10.1 During the Contract Period and after its expiry or earlier termination , each of the parties undertakes to the other to keep the Confidential Information confidential, except to the extent that:a) the Confidential Information was already lawfully known, or became lawfully known to the relevant party independently;b) the Confidential Information is in or comes into the public domain other than due to wrongful use or disclosure by the relevant party;c) disclosure or use is necessary in connection with entry into this Contract or for the proper and effective performance of the parties’ obligations under this Contract (including disclosure by either party to his insurers and professional advisers); ord) disclosure is required by law to any government, governmental department, agency, regulatory or fiscal body or authority (whether national or foreign).

11. DBS Checks

11.1 The Contractor must ensure that in respect of all its current and potential members of staff or persons carrying out work pursuant to this Contract (each a “Named Employee”) before a Named Employee entering a Property :

a) are questioned as to whether they have any convictions; and b) the results are obtained of a basic disclosure check c) where the role of the Named Employee meets the definition within

the “Rehabilitation of Offenders Act 1974 (ROA) (Exceptions Order) 1975 (the Exceptions Order)” a Standard disclosure check should be carried out

d) where the role of the Named Employee meets the definition within “Rehabilitation of Offenders Act 1974 (ROA) (Exceptions Order) 1975 (the Exceptions Order)” and “Police Act 1997(Criminal Records) Regulations 2002 and the post is one where “Regulated Activity” takes place an Enhanced DBS plus barring lists check must take place.

12. Data Protection

12.1 For the purposes of this clause 12 the terms “Data Processor”, “Data Controller”, “Personal Data” shall have the meaning given to them in the Data Protection Act 1998.

12.2 The parties shall ensure that they shall at all times during the Contract Period comply with the provisions and obligations imposed by the Data Protection Act 1998 (“DPA”) and the Contractor shall indemnify the Employer and keep the Employer indemnified against all actions, claims, demands, proceedings, damages, costs, charges and expenses (including reasonable legal expenses) whatsoever in respect of any breach of this clause 12.

12.3 Each of the parties shall ensure that, to the extent that it stores and processes Personal Data in connection with this Contract, it shall comply with the provisions and obligations imposed on it by the DPA.

12.4 As a Data Processor the Contractor shall at all times in respect of data for which the Employer is Data Controller:-

a) comply with the seventh principle and all other principles in Schedule 1 of the DPA; and shallb) process data only in connection with the work carried out in relation

to completion of Orders in accordance with the lawful and reasonable instructions of the Employer unless the Contractor is of the opinion that to act on such instructions would be unlawful.

12.5 The Contractor shall also comply fully with all applicable Guidelines and Codes of Practice issued by the Information Commissioner in the UK from time to time.

12.6 The Employer shall on giving reasonable notice to the Contractor be entitled to audit the procedures of the Contractor (which shall include the right to enter the Contractor’s premises and/or view the Contractor’s systems) for the purposes of ensuring compliance with this clause 14 and to take any reasonable steps to satisfy itself that the Contractor is so complying.

12.7 In the event that the Contractor becomes aware that or any of the Contractor’s staff, agents or sub-contractors is processing data in

contravention of this clause, the Contractor shall promptly give written notice to the Contract Administrator and Employer with full details of such contravention.

12.8 The Contractor will provide all personal data in its possession as requested by the Employer or Contract Administrator from time to time in accordance with the timescale specified by the Employer or Contract Administrator on the occasion of an access request. Where the Employer or Contract Administrator requests personal data for the purpose of complying with a request, including a data subject access request under the DPA, the Contractor will retrieve the relevant data and provide a full copy of such to the Employer or Contract Administrator as soon as is possible but in any event within five (5) Working Days of such a request being made.

12.9 The Contractor will co-operate and provide reasonable assistance with any proceedings or inquiry by the Employer or Contract Administrator, of an affected data subject and/or the Information Commission or other body authorised by statute which are concerned with the DPA.

12.10 The Contractor will on termination or expiry of this Contract and at the request of the Employer or Contract Administrator either return to the Employer or Contract Administrator or destroy the data (and all copies of such data) in the Contractor’s possession or other as directed by the Employer or Contract Administrator.

13. Notification by Contractor of claims

13.1 Notwithstanding the Contractor’s obligations the Contractor immediately upon becoming aware of the same or likelihood of the same shall notify the Contract Administrator and appropriate insurance companies of any:-(i) accident involving a member of the public within the Contract Area or an employee of any Contractor or any Sub-contractor;(ii) damage caused by the Contractor or any sub-contractor or any of their employees;(iii) breach of any relevant statutory provision by the Contractor or any sub-contractor or any of their employees;(iv) investigation, enquiry or adverse report or comment by the Health and Safety Executive or any successor or comparable agency in relation to the Contractor;(v) any legal proceedings notified to or commenced against the Contractor in relation to any event or occurrence within the Contract Area; (vi) any enforcement action of whatever nature notified to or commenced against the Contractor;

13.2 any other matter which may in the Contractor’s opinion result in any claim of whatever nature against the Employer or which might reasonably be expected to damage public confidence in the Employer or adversely affect the Employer’s reputation.

13.3 If requested to do so by the Contract Administrator, the Contractor shall provide the Contract Administrator with any relevant information in connection with any of the matters referred to in clause 15 or any legal inquiry, arbitration or court proceedings in which the Employer may become involved or any relevant disciplinary hearing internal to the Employer and shall give evidence in any such inquiry or proceedings or hearing.

13.4 Except for any claims made by third parties, the Employer shall, if so requested by the Contractor, provide the Contractor with any relevant

information in connection with any of the matters referred to in clause 15 for the purposes of any legal inquiry, arbitration or court proceedings in which the Contractor may become involved.

14. Contractor’s Staff

The Contractor shall ensure that its staff, servants and agents carrying out any work under the Contract shall confine themselves to the locality of their work, cause as little interference as possible to the Employer’s tenants and/or to the Properties where work is carried out, and shall ensure that all works are carried out with the least possible inconvenience to occupants of the Properties, the Employers tenants and the occupants of neighbouring properties and in line with the Customer Care Policy and the Contractors Code of Conduct as referred to in Schedule 2 and updated from time to time.

15. Contractor’s Assets

15.1 The Contractor shall at all times during the contract period provide and maintain all equipment, vehicles, materials and all other physical resources, (“Assets”), as may be necessary from time to time for the carrying out of the Contractor’s obligations under this Contract.

15.2 The Contractor shall be responsible for the maintenance and repair of all Assets, and shall maintain all Assets at all times in good and serviceable repair and in such condition as is required for the proper performance by the Contractor of its obligations under this Contract. The Contractor shall at all times be responsible for any necessary licensing and for the payment of all licensing fees, taxes and insurances as may be required in connection with the possession of or use of any of the Assets.

15.3 All Assets used by the Contractor shall conform to any applicable minimum standards as set by Law.

15.4 The Contractor shall only keep such hazardous materials or equipment as are necessary for the carrying out of the Contractor’s obligations under this Contract and are approved in writing by the Contract Administrator, such approval not to be unreasonably withheld or delayed, and such materials or equipment shall at all times be kept under proper control and the Contractor shall ensure that all such materials or equipment and their usage, storage and transportation comply with all applicable Law.

15.5 For the avoidance of doubt, the Contractor shall be responsible for the replacement cost of any Assets, deployed in carrying out work by the Contractor’s obligations under this Contract.

16. Security

16.1 The Contractor shall issue to all of its personnel who shall at any time have access to any of the Employer’s properties identification badges in such form as the Employer may from time to time determine.

16.2 The Contractor shall be responsible for the safekeeping of any keys, passes and other means of access provided to the Contractor by the Employer and shall only permit such keys, passes and other means of access to be given to those of the Contractor’s employees, agents or sub-contractors whose names and addresses have been given to the Employer and then only to the extent required for the purpose of carrying out the Contractor’s obligations under this Contract. In addition, the Contractor

shall ensure that the Contract Administrator is informed immediately of the loss of any keys, passes and other means of access and shall reimburse the Employer any cost of replacement and/or any reasonable security measures implemented as a result of such loss.

17. Claims for damage and loss of tenant’s goods, chattels etc

The Contractor shall expeditiously investigate all claims for damage or loss to any Employer’s tenant’s goods, chattels, possessions and personal property and reimburse the tenant where the circumstances would indicate that such loss or damage may have been caused by the Contractor, it’s operatives or it’s sub-contractor.

18. Equal Opportunities

18.1 In all its activities carried out pursuant to the Contract, the Contractor shall comply with and shall ensure that its employees, agents, sub-contractors and their employees and agents comply with the Equality Act 2010 as well as statutory and other official guidance and codes of practice and any amendments to each of the same, including, without limitation the Code of Practice for the elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment and will indemnify the Employer for any loss, expense or damage incurred as a result of any breach of such obligations.

18.2 The Contractor agrees that it will provide the Employer with all information reasonably requested by the Employer to allow it to monitor compliance with the Equality Act 2010 and any code of practice issued thereunder and to discharge its own obligations.

19. Co-operation with contractors/service providers

The Contractor shall co-operate with all other contractors and service providers appointed by the Employer to undertake works and services in relation to the Employer’s properties.

20. Transferring Employees

The terms at Schedule 7 shall apply.

Section 21 Relief from obligations

21.1 Early Warning

21.1.1 Where due to exceptional circumstances such as but not limited to Force Majeure either party is unable to comply with its obligations under this Contract it must notify the other in writing (copied to the Contract Administrator) of any matter they become aware of which could lead to either Party being unable to comply with its obligations under this Contract applies.

21.1.2 Following a notification under Clause 21.1.1 the Contract Administrator may require the Contractor to attend a risk reduction meeting to consider:

.1 the likely impact of the matter that has been notified;

.2 the steps that should be taken for managing avoiding or reducing the effect of it; and

.3 The likely cost of those steps and who should bear that cost.

Change in Law risk

21.2 .1 Changes in the Law are to be at the Contractor’s risk. The Contractor will not be entitled to claim for any increase to the price of Orders, extension to the response periods, or additional payment under this Contract that results from a change in Law.

.2 Where a change in Law was not foreseeable on the date of this Contract and has a significant impact on the rates in the Schedule of Rates at Schedule 1, the Employer and Contractor may (but are not required to) agree a change to these rates or an additional payment due to the Contractor to reflect the Contractor’s additional costs due to that change in Law.

Section 22 Monitoring, KPI’s, breaches and remedies

Monitoring and KPI’s

22.1 .1 The Employer or Contract Administrator shall monitor the performance of the Orders and any activities undertaken by the Contractor in connection with this Contract.

.2 The Contractor must grant access to the Employer and Contract Administrator to any premises from which work under this Contract is undertaken or administered (subject to them complying with reasonable health and safety requirements associated with those premises).

.3 The Contract Administrator may “shadow” the Contractor at any time and for any Orders. This may entail visit without notice by the Contract Administrator to accompany the Contractor’s staff to the Property, or meet them at the Property, to watch the works on Orders being undertaken.

.4 The Employer may undertake an audit of the Contractor’s procedures in relation to the Contract at any time.

.5 The Contractor’s delivery of work under this Contract will also be monitored by the Employer through the KPIs as set out in Schedule 3 (KPI’s). .6 If the Contract Administrator is concerned about the accuracy of any KPI monitoring data the Contract Administrator may arrange for independent monitoring or verification of such data. If monitoring data obtained by the Contractor is found to have been inaccurate the Employer may recover from the Contractor the costs of the independent monitoring.

.7 The Employer may at any time monitor or direct the Contractor to monitor the Contractor’s performance in relation to any KPI over such period of no less than 1 (one) month as the Employer determines.

.8 If there is any dispute over the data collected to monitor the Contractor’s KPI performance or any discrepancy between the KPI data collected by the Employer and that collected by the Contractor the decision of the Contract Administrator over which data is valid will be final and binding. This applies unless the Contractor formally disputes that data under the Dispute Resolution Procedure within 1 (one) month of the Contract Administrator confirming in writing to the Contractor which data is to be used.

22.2 Not used

Remedial Plan

22.3 .1 The Employer may (but is under no obligation to do so) by written notice require the Contractor to produce a Remedial Plan inline with the Rectification & Remedial System identified in Schedule 9 if the Contractor:

.1 fails to achieve any KPI Performance Target for any KPI for(three monthly Measurement Periods or one quarterly Measurement Period.2 fails to achieve the KPI Performance Targets for three KPIs during

any Measurement Period; or.3 the Contractor is in breach of this Contract.

.2 A Remedial Plan must demonstrate to the satisfaction of the Employer how (as applicable):

.1 the Contractor will achieve performance above the KPI Performance Targets for the KPIs where performance was below the KPI Performance Target; or.2 such a breach will be avoided in future.

.3 The Contractor must provide a draft of the Remedial Plan within 20 (twenty) Business Days of the Employer’s written notice under Clause 22.3.1 unless the Employer (acting reasonably) considers that the nature of the breach means that a draft Remedial Plan should be provided within a shorter period and states this period in the notice.

.4 Within 10 (ten) Business Days of the receipt of the draft Remedial Plan under Clause 22.3.3 (or such longer period as the Employer and Contractor agree) the Employer must by written notice to the Contractor:

.1 approve the draft Remedial Plan;

.2 approve the draft Remedial Plan subject to the Contractor making specific changes to it that are set out in the notice;.3 reject the draft Remedial Plan and inform the Contractor of the contents of it that need to be changed to secure the Employer’s approval; or.4 reject the draft Remedial Plan and inform the Contractor of the Employer’s reasons for doing so.

.5 Where the Employer approves the draft Remedial Plan under Clause 22.3.4, the Contractor must implement that Remedial Plan.

.6 Where the Employer approves a draft Remedial Plan under Clause 22.3.4 subject to amendments being made by the Contractor, the Contractor must indicate by written notice to the Employer within 5 (five) Business Days whether those amendments are acceptable. Where the Contractor’s notice indicates that the amendments are:

.1 acceptable, the Contractor must implement that Remedial Plan within the timescales set out in that Remedial Plan;.2 not acceptable, clause 22.3.7 will apply

.7 Where the Employer rejects the draft Remedial Plan:.1 the Contractor must provide the revised Remedial Plan within 10 (ten) Business Days of the date of rejection or such shorter period stated in the notice of rejection within which the Employer (acting reasonably) considers that it should be provided having regard to the nature of the breach; and

.2 Clauses 22.3.2 to this Clause 22.3.7 will apply to the revised Remedial Plan and any further revisions to it.

Employer step-in

22.4 .1 If the Employer reasonably believes that it needs to take action in connection with any Orders to discharge a statutory duty, then the Employer may take action in accordance with this clause.

.2 If the Employer wishes to take such action, the Employer must notify the Contractor in writing of the following:

.1 the action it wishes to take;

.2 the reason for such action;

.3 the date it wishes to commence such action;

.4 the time period which it believes will be necessary for such action; and

.5 to the extent practicable, the effect on the Contractor and the type of work during the period when such action is being taken.

.3 In a disaster or civil emergency the Employer must notify the Contractor verbally of the matters referred to in Clause 22.4.2 and confirm such notification in writing as soon as reasonably possible.

.4 Following the service of a notice under Clause 22.4.2 or the giving of a verbal notification under

Clause 22.4.3, the Employer may take such action as has been notified and any consequential action as the Employer reasonably believes is necessary. The Contractor must give all reasonable assistance to the Employer while it is taking such action.

.5 If the Contractor is not in breach of its obligations under the Contract, then for so long as and to the extent that the Employer takes action under Clause 22.4.4 and this prevents the Contractor from undertaking any part of the Works the Contractor must:

.1 be relieved of its obligation to provide such part of the Works throughout the period in which the Employer is taking such action; and.2 provide such assistance as the Contract Administrator directs (such assistance to be paid for at the Daywork Rates in Schedule 1 (Schedule of Rates).

.6 If action is taken by the Employer under Clause 24.4.4 as a result of a breach of this Contract by the Contractor for so long as and to the extent that the action is taken and this prevents the Contractor from providing any part of the Works:

.1 the Contractor must be relieved of its obligation to provide such part of Works throughout the period in which the Employer is taking such action; and.2 the Contractor must pay to the Employer any additional costs (over and above the amount the Employer would have paid the Contractor for those Works) if any Works are undertaken by the Employer or by a Employer Party as part of the action taken by the Employer under Clause 22.4.4.

Remedies cumulative

22.5 The rights and remedies given by this Contract are cumulative and do not exclude any other rights or remedies given by Law or under this Contract.

Section 23 General Provisions

Third party rights and groups

23.1 .1 Where the Employer requires the Contractor to undertake Works for a subsidiary or group organisation that organisation may rely on this Contract under the Contracts (Rights of Third Parties) Act 1999.

.2 Subject to Clauses 23.1.1, nothing in this Contract confers any benefit on any person or Organisation who is not a Party or gives any such person or Organisation any right to enforce it.

Waiver and severability

23.2 .1 A failure by the Employer in enforcing any rights, powers or privileges under this Contract must not be construed as a waiver of that provision. Such waiver must not affect the validity of the Contract or the Employer’s right to enforce it in accordance with its terms.

.2 The single or partial exercise of any right, power or privilege under the Contract does not prevent any other exercise of that right, power or privilege or the exercise of any other right, power or privilege (whether arising out of the same factual situation or otherwise).

.3 Any waiver of a breach of this Contract is not to be effective unless given in writing signed by the Party waiting its entitlement.

.4 No waiver is to be deemed a waiver of any subsequent breach or default nor it is to affect the other terms of this Contract.

.5 The receipt of money does not prevent the Party receiving it questioning the correctness of the amount of any other statement in respect of money.

.6 If any term of this Contract is illegal, void or unenforceable the remainder of this Contract will continue in force as though that term had not been included in it.

Entire agreement

23.3 .1 Subject as provided in Clause 23.3.3, this Contract sets out the whole agreement between the Parties in relation to the Orders. It supersedes and invalidates all other commitments, representations and warranties relating to its subject matter which either Party has made orally or in writing.

.2 Each Party warrants that it has not entered into this Contract in reliance on any representation made by the other except to the extent that such representation is expressly included in it.

.3 Nothing in this Clause 23.3 excludes any liability for fraudulent misrepresentation.

Extent of obligations and further assurance

23.4 .1 Where the Employer is a charity and/or a registered provider of social housing , nothing in this Contract requires the Employer to act in any way which is inconsistent with its obligations as such.

.2 Each Party undertakes (subject to Clause 23.4.1) to do all things and execute all further documents that the other may reasonably require to give effect to this Contract.

.3 Nothing in this Contract is to constitute or be deemed a partnership within the meaning of the Partnership Act 1890, the Limited Partnerships Act 1907, the Limited Liability Partnerships Act 2000 or any other Law concerning partnerships or limited liability partnerships.

.4 Neither Party must hold itself out as the agent of the other or have any authority to bind the other except to the extent that this Contract expressly provides otherwise.

Variations of the Contract

23.5 .1 No variation of this Contract is to bind either Party and no person has authority on behalf of either Party to agree to any variations to this Contract except where the amendment is agreed in writing by both Parties.

.2 No consents to any variation to this Contract are required from any person who is not a Party.

Counterparts

23.6 This Contract may be executed in counterparts each of which is deemed to be an original and the counterparts together constitute the same agreement.

Legal costs

23.7 Each Party is to bear their own costs in relation to the negotiation and completion of this Contract.

Anti Virus & Protection of data

23.8 .1 The Contractor shall not delete or remove any proprietary notices contained within or relating to the Employers data.

.2 The Contractor shall preserve the integrity of the Employer’s data and prevent the corruption or loss of the Employers data at all times when the Employers data is under the Contractors control or the control of any sub-contractor.

.3 The Contractor shall perform secure back-ups of all the Employers data and shall ensure that it holds at any one time up-to-date back-ups of such data. The Contractor shall ensure that such back-ups are available to the Employer (or to such other person as the Employer may direct) at all times upon request.

.4 If either Party’s data is corrupted, lost or sufficiently degraded as a result of the other party’s actions or omissions party so as to be unusable, the party who suffered may:

.1 Require the other party (at their expense) to restore or procure the restoration of the data to the extent & in accordance to either parties specification. Either party shall do so as soon as practicable but not later than 5 working days from the date of receipt from the either parties notice.

.2 Itself restore or procure the restoration of the data and shall be repaid by the relevant party who caused the data corruption, loss or degradation.

.5 If at any time the Parties suspects or has reason to believe that either parties data has become corrupted, lost or sufficiently damaged in any way for any reason due to the fault of either Parties, the relevant party shall notify each other immediately so that remedial action can take place.

.6 The Parties shall, as an enduring obligation throughout the Contract Duration and any agreed Extension period, use the latest versions of anti-virus definitions and software available from an industry accepted anti-virus software vendor (unless otherwise agreed in writing between the parties) to check for, contain the spread of, and minimise the impact if Malicious Software in the IT Environment (or otherwise agreed by the parties).

.7 Notwithstanding clause 6, if Malicious Software is found, the Parties shall co-operate to reduce the effect of the Malicious Software and, particularly if Malicious Software causes loss of operational efficiency or loss or corruption of the parties data, assist each other to mitigate any losses and to restore the Services to their desired operating efficiency.

.8 Any cost arising out of the actions of the Parties taken in compliance with the provisions of Clause 23.8.7 shall be borne by the Parties as follows:

.1 By the Contractor where the Malicious Software originates from the Contractor Software, the Third Party Software supplied by the Contractor (except where the Employer has waived the obligation set out in Clause 6) or the Employer data (whilst the Employer data was under the control of the Contractor) unless the Contractor can demonstrate that such Malicious Software was present and not quarantined or otherwise identified by the Employer when provided to the Contractor; and .2 Otherwise by the Employer.

Ethical Trading

23.9 The Employer expects the Contractor and its Sub-Contractors to adhere to the following ethical conduct guidelines which reflects the principles set out in the Ethical Trading Initiative Base Code and International labour Organisation (ILO) Conventions:

(a) contractors must not use any form of forced, bonded or involuntary labour, and workers must not be obliged to lodge identity papers or pay any deposit as a condition of work;(b) workers must not be subject to physical or verbal abuse or threats or intimidation of any description;(c) workers must not be required to work extreme hours or work without adequate rest periods;(d) contractors must not use workers under the age of 15, or the minimum legal working age in the country in question, if higher than 15. Contractors must accept the principles of remediation of child and under age workers, and where such labour is discovered Contractors must establish and implement appropriate remediation for such workers and introduce effective systems to prevent the use of child labour in the future;(e) factories and work sites used by Contractors must be safe and hygienic with an adequate number of safe and accessible fire exits from all

buildings including living accommodation and workers must have access to drinking water;(f) workers’ life or limb must not be endangered due to the use of dangerous machinery, unsafe building structure or layout, or hazardous chemicals. Where serious or fatal accidents have occurred Contractors must demonstrate to the satisfaction of the Employer that all appropriate steps have been taken to prevent similar accidents occurring in the future;(g) living accommodation, where provided, must be in buildings that are separate from other areas of the workplace and have an adequate fire alarm system;(h) contractors must pay wages that meet the minimum requirements of the country in which they are operating from and that are sufficient to meet basic needs and to provide some discretionary income;(i) contractors must maintain proper and accurate employment records including calculation of pay and hours worked and Contractors must be transparent and cooperative as regards the inspection of employment records;(j) contractors must not engage in bribery, corruption or other similar unethical practices in order to gain competitive advantage;(k) no discrimination is practised; andthe Employer reserve the right to audit this at any time during the contract period, in the event that the Employer considers that a Contractor is not in compliance with the ethical conduct guidelines the Contractor must take all such appropriate remedial actions as requested by the Employer to address any areas of concern.

[Please remove this section if Rebates do not apply]

Rebates

23.10 The Client will be entitled to an annual volume incentive rebate based on the total annual spend on works covered by the Agreement. Based on the annual reports to be provided to the Midland Heart contract manager, the Contractor and the Midland Heart contract manager will work together to calculate the volume incentive payable on account on such total purchases by multiplying total purchases by the incentive percentage payable indicated on the volume incentive schedule set forth below.

Total purchases Rebate percentage*£0.1-6.0m 0%Amend as appropriate 3%Amend as appropriate 4%Amend as appropriate 5%Amend as appropriate 6%Amend as appropriate 7%Amend as appropriate 8%

* at the start of this agreement, the annualised total purchases will become the starting base, and at the end of year 1, business growth above this starting base and within the guidelines illustrated above will be subject to the rebate. The new total purchases, which include both the initial starting base and the business growth, will become the next years starting base and business growth above this starting base and within the guidelines illustrated above will be subject to the rebate. However, in the event that total purchases drop or experience negative growth, then the next years starting base remains the same as the previous years starting base as opposed to the new amount.

23.10.1 The Client or the Contractor must not offer or expect any favourable positioning of works in return for a rebate.

23.10.2 In the event of any rebate payable to the Client by the Contractor the Contractor shall pay the Client the Agreed sum within 30 days of the end of each contract year.

23.10.3 For the Duration of the Agreement the rebate structure mention in 1.1 shall remain in full force and the Contractor shall adhere to said rebate structure.

23.10.4 For the duration of this Agreement, the Contractor shall remain competitive in the UK market place.

Modern Slavery Act 2015

23.11 Modern Slavery Act 2015 Adherence

23.11.1 The Client expects the Contractor and its Sub-Contractors to use reasonable endeavours to ensure that its employees or agents and/or supply chain shall, at all times act in a way which is compliant with the Modern Slavery Act 2015.

23.11.2 The Client reserves the right to carry out spot checks on the Contractors supply chain. The Contractor and its supply chain must produce, on an annual basis, statements and current policies about modern slavery which comply with the principles of the Act.

23.11.3 The Client reserves the right, upon reasonable notice, to audit this at any time during the contract period. In the event that the Client considers that a Contractor is not in compliance with the Modern Slavery Act 2015 the Contractor must take all such appropriate remedial actions as requested by the Client to address any areas of concern. 

23.11.4 Subject to Section 6 the Contractor agrees to indemnify and keep indemnified the Client against all loss, costs, proceedings or damages whatsoever arising out of or in connection with any breach by the Contractor of its obligations under the Modern Slavery Act 2015.

Principle Contractor CDM Regulations 2015

24.0 Where there is more than one contractor involved, xxxxxxx will be appointed by the client as the principal contractor to manage health and safety risks during the construction phase.  The principal contractor must, in accordance with the provisions of the Construction (Design and Management) Regulations 2015:

.       demonstrate they have the skills, knowledge, experience and organisational capability to carry out this work;.       plan, manage, monitor and coordinate the entire construction phase;.       take account of the health and safety risks to everyone affected by the work (including members of the public), in planning and managing the measures needed to control them;.       liaise with the client and principal designer for the duration of the project to ensure that all risks are effectively managed;.       prepare a written construction phase health and safety plan before the construction phase begins, implement, and then regularly review and revise it to make sure it remains fit for purpose;

.       have ongoing arrangements in place for managing health and safety throughout the construction phase;.       consult and engage with workers about their health, safety and welfare;.       ensure suitable welfare facilities are provided from the start and maintained throughout the construction phase;.       check that  anyone they appoint has the skills, knowledge, experience and, where relevant, the organisational capability to carry out their work safely and without risk to health;.       ensure all workers have site-specific inductions, and any further information and training they need;.       take steps to prevent unauthorised access to the site;.       liaise with the principal designer to share any information relevant to the planning, management, monitoring and coordination of the pre-construction phase.

Principle Designer CDM Regulations 2015

24.1 Where the client appoints xxxxxxxx as the principal designer and where the construction phase involves more than one contractor, to manage health and safety risks during the pre-construction phase, the principal designer must, in accordance with the provisions of the Construction (Design and Management) Regulations 2015:

.       demonstrate they have the skills, knowledge, experience and organisational capability to carry out this work;.       plan, manage, monitor and coordinate health and safety in the pre-construction phase, taking account of relevant information that might affect design work carried out both before and after the construction phase has started;.       help and advise the client in bringing together pre-construction information, and provide the information designers and contractors need to carry out their duties;.       work with any other designers on the project to eliminate foreseeable health and safety risks to anyone affected by the work and, where that is not possible, take steps to reduce or control those risks;.       ensure that everyone involved in the pre-construction phase communicates and cooperates, coordinating their work wherever required;.       liaise with the principal contractor, keeping them informed of any risks that need to be controlled during the construction phase

Schedule X – Form of Contractor’s Collateral Warranty

DATED                                                         200

[CONTRACTOR]

[BENEFICIARY]

[[EMPLOYER]]

DEED OF COLLATERAL WARRANTY

relating to a project at[                                      ]

DATEDPARTIES1 Contractor [                              ] (company no [          ]) whose

registered office is at [                                                    ]

2 Beneficiary [                              ] (company no [          ]) whose registered office is at [                                                    ]

[3 Employer [                                     ] (company no [              ]) whose registered office is at [                                             ]]1

RECITALSA By the Contract, the Employer has employed the Contractor to carry out

and complete the Orders.B [The Beneficiary has agreed to provide finance for the Orders.

orThe Beneficiary has agreed to purchase [part of] the Property.

orThe Beneficiary has agreed to take a lease of [part of] the Property.

orThe Beneficiary has agreed to take an interest in [part of] the Property.]2

C As a condition of and in consideration of the Beneficiary’s agreement the Contractor has agreed to enter into this deed for the benefit of the Beneficiary.

OPERATIVE PROVISIONSDefinitions and interpretation

Unless the contrary intention appears, the following definitions apply:

Beneficiary includes any person to whom the benefit of this deed and/or any rights arising under it have been validly assigned in accordance with clause [7];

Contract the contract dated [                               ] between the Employer (1) and the Contractor (2) (and any further agreement varying or supplementing it) under which the Contractor has agreed to carry out and complete the Orders;

Contract Period the Contract Period more particularly described in the Contract;

Employer [[insert name of Employer] and]3 includes any person to whom the benefit of the Contract has been validly assigned;

[Fund [insert name of Fund];]4

Orders the written description and/or drawings of any work and/or the supply of labour, plant,

1 Delete if Beneficiary does not have step-in rights.2 Delete and/or amend as appropriate.3 Insert if Employer is not a party to the warranty.4 Include only if Beneficiary has step-in rights which are sub-ordinated to the Fund.

materials and/or goods to be carried out under the Contract.

Property the property at [                                           ];

Proprietary Material all drawings, details, plans, specifications, Schedules, reports, calculations, software and other work (and any designs, ideas and concepts contained in them) prepared, conceived or developed by or on behalf of the Contractor in the course of or as a result of carrying out the Orders;

Statutory Requirements

any requirements imposed by:(a) any Act of Parliament;(b) any instrument, rule or order made under

any Act of Parliament;(c) any regulation or byelaw of any local

authority, statutory undertaker or other body which has jurisdiction with regard to the Orders or to whose systems the Orders are or will be connected; or

(d) any planning permission, building regulation approval or other consent or approval required for the execution of the Orders; and

Any obligation on a party to this deed to do an act includes an obligation to procure that it is done.

If a party is placed under a restriction in this deed, the restriction includes an obligation on the party not to permit the infringement of the restriction by any person.

References to liability include, where the context allows, claims, demands, proceedings, damages, losses, costs and expenses.

Words importing the singular meaning shall include, where the context so admits, the plural meaning and vice versa.

Words denoting the masculine gender shall include the feminine and neuter genders and words denoting natural persons shall include corporations and firms and all such words shall be construed interchangeably in that manner.

The clause headings in this deed are for ease of reference only and are not to be taken into account in the construction or interpretation of any provision to which they refer.

Unless the contrary intention appears, references in this deed to numbered clauses are references to the relevant clause in this deed.

References in this deed to any statutes or statutory instruments include any statute or statutory instrument amending, consolidating or replacing them respectively from time to time in force, and references to a statute include statutory instruments, regulations and codes of practice made under it.

Contractor’s warranties

The Contractor warrants to the Beneficiary that it has observed and performed and will continue to observe and perform all its obligations under or arising out of the Contract in accordance with the terms of the Contract, provided always that:

the Contractor shall owe no greater obligations to the Beneficiary under this deed than it owes to the Employer under the Contract;

the Contractor shall be entitled in any proceedings under this deed to rely on any limitation in the Contract and to raise the equivalent rights in defence of liability (but excluding set-offs or counterclaims) as if the Beneficiary had been named as a joint employer with the Employer under the Contract; and

the Contractor shall not be liable to the Beneficiary in respect of any delay to the completion of the Orders [unless and until the Beneficiary has given notice to the Contractor under clause 4.1 or clause 4.3]5.

Without limiting clause 2.1, the Contractor warrants to the Beneficiary that:

it has exercised and will continue to exercise, in the performance of its obligations under the Contract, all the skill, care and diligence which may reasonably be expected of a qualified and competent design and build contractor experienced in carrying out work of a similar size, scope, nature and complexity to the Orders;

the Orders as completed will comply with any performance specification or requirement included or referred to in the Contract;

the Orders have been and will be carried out and completed in a good, sound, substantial and workmanlike manner using good quality and appropriate materials and in all respects in accordance with the Contract;

unless otherwise instructed or authorised by the Employer or the Contract Administrator on his behalf under the Contract, none of the materials referred to in clause [       ] of the Contract has been or will be used in the completion of the Orders; and

the Orders as completed will in all respects comply with the Statutory Requirements.

The Contractor extends to the Beneficiary the benefit of all warranties on the part of the Contractor contained in the Contract.

The Contractor acknowledges that the Beneficiary shall be deemed to have relied and shall continue to rely upon the warranties given by the Contractor under this clause 2.

The Contractor acknowledges to the Beneficiary that, at the date of this deed, the Contract remains in full force and effect and the Employer has paid all sums properly due to the Contractor under the Contract.

[Obligations prior to determination of the Contractor’s employment6

5 Delete if Beneficiary does not have step-in rights.6 Delete clauses 3 and 4 if Beneficiary does not have step-in rights.

The Contractor shall not exercise nor seek to exercise any right to determine its employment under the Contract for any reason, including any breach on the part of the Employer, without giving to the Beneficiary not less than [21] days’ notice of its intention to do so and specifying the grounds for the proposed determination.

Any period stipulated in the Contract for the exercise by the Contractor of a right of determination shall be extended, as necessary, to take account of the period of notice required under clause 3.1.

Compliance by the Contractor with clause 3.1 shall not be treated as a waiver of any breach on the part of the Employer giving rise to the right of determination, nor otherwise prevent the Contractor from exercising its rights after the expiration of notice, unless the right of determination shall have ceased under the provisions of clause 4.

“Step-in” right

The right of the Contractor to determine its employment under the Contract shall cease if, within the period of [21] days referred to in clause 3.1, the Beneficiary [(which expression shall for the purposes of this clause 4 include any receiver, administrative receiver or other appointee (in each case a “Nominee”) appointed by the Beneficiary)]7 shall give notice to the Contractor:

requiring it to continue its obligations under the Contract;

acknowledging that the Beneficiary is assuming all the obligations of the Employer under the Contract; and

undertaking to the Contractor to discharge all payments which may subsequently become due to the Contractor under the terms of the Contract and to pay to the Contractor within 7 days any sums which have become due and payable to it under the Contract but which remain unpaid[.][;]

[provided that:in this proviso and in clause [4.8] Fund Warranty means a deed made or

to be made between the Contractor, the Fund and the Employer in respect of the Orders under which the Fund has a right equivalent (with the appropriate changes) in all material respects to the right granted by clause 4.1 to the Beneficiary, save that the period for the exercise of that right by the Fund shall expire 14 days after service of the Contractor’s simultaneous notices on the Beneficiary and the Fund of its intention to determine its employment under the Contract;

any notice served by the Contractor on the Beneficiary pursuant to clause 3.1 shall be invalid unless a similar notice has been simultaneously served upon the Fund;

the Beneficiary shall have no power to give notice to the Contractor under clause 4.1 within the period of 14 days referred to in clause 4.1.4 unless the Fund shall previously have notified the Beneficiary that it will not exercise its equivalent right under the Fund Warranty;

the Beneficiary shall have no power to give notice to the Contractor 7 Include only where Beneficiary is a bank providing finance.

under clause 4.1 in response to a notice under clause 3.1 if the Fund has already exercised its equivalent right under the Fund Warranty in response to the Contractor’s simultaneous notice to the Fund; and

any notice given by the Beneficiary which is in breach of clause 4.1.6 or clause 4.1.7 shall be invalid.]8

Upon compliance by the Beneficiary with the requirements of clause 4.1, the Contract shall continue as if the right of determination on the part of the Contractor had not arisen and as if the Contract had been entered into between the Contractor and the Beneficiary to the exclusion of the Employer.

Notwithstanding that as between the Employer and the Contractor the Contractor’s right of determination of its employment under the Contract may not have arisen, the provisions of clause 4.2 shall apply if the Beneficiary gives notice to the Contractor and the Employer to that effect and the Beneficiary complies with the requirements on its part under clause 4.1[, provided that the Beneficiary may only give notice under this clause 4.3 if it shall first have given the Fund and the Contractor notice of its intention to do so and the Fund has consented expressly to the exercise of such right by the Beneficiary]9.

[Any notice given by the Beneficiary which is in breach of clause 4.3 shall be invalid.]10

The Contractor shall be bound to assume that, as between the Employer[the Fund]11 and the Beneficiary, circumstances have occurred which permit the Beneficiary to give notice under clause 4.3.

The Contractor, acting in accordance with the provisions of this clause 4, shall not incur any liability to the Employer.

[If the Beneficiary appoints a Nominee to exercise its rights under this clause 4, the Nominee shall act on behalf of the Employer and shall have no personal liability to the Contractor, but the Beneficiary shall be liable to the Contractor as guarantor for the payment of all sums from time to time due to the Contractor from the Nominee.]12

[If the Fund exercises its equivalent right under clause 4.1 or clause 4.3 of the Fund Warranty, the provisions of clauses 3 and 4 shall have effect as if all references to the Fund and the Fund Warranty had been deleted and as if all references to the Employer were references to the Fund.]13]

Use of Proprietary Material

The copyright in the Proprietary Material shall remain vested in the Contractor, but the Contractor grants to the Beneficiary an irrevocable royalty-free non-exclusive licence to use and to reproduce any or all of the Proprietary Material for any purpose connected with the Orders and/or the Property, including (without limitation) the execution and completion of the Orders and the subsequent maintenance, letting, occupation, management, sale,

8 Include if Beneficiary has step-in rights which are sub-ordinated to the Fund.9 Include if Beneficiary has step-in rights which are sub-ordinated to the Fund.10 Include if Beneficiary has step-in rights which are sub-ordinated to the Fund.11 Include if Beneficiary has step-in rights which are sub-ordinated to the Fund.12 Include only where Beneficiary is a bank providing finance.13 Include if Beneficiary has step-in rights which are sub-ordinated to the Fund.

advertisement, extension, alteration, reinstatement and repair of the Property.

The licence referred to in clause 5.1 carries the right to grant sub-licences and shall be transferable to third parties and shall subsist notwithstanding the determination (for any reason) of the Contractor’s employment under the Contract.

Insofar as the Contractor is the author (as defined in the Copyright, Designs and Patents Act 1988) of the Proprietary Material and/or of the Orders, the Contractor waives any moral rights which it might otherwise be deemed to possess under Chapter IV of that Act in respect of them.

The Contractor shall procure for the Beneficiary a waiver corresponding to that in clause 5.3 from any sub-contractor employed by the Contractor who is an author (as referred to in the Copyright, Designs and Patents Act 1988) of any part of the Proprietary Material and/or of the Orders in respect of them.

The Contractor shall provide a complete set of copies of the Proprietary Material to the Beneficiary without charge within one month of the end of the Contract Period and shall provide further copies of any or all of the Proprietary Material to the Beneficiary on request and upon payment by the Beneficiary of the Contractor’s reasonable copying charges.

The Contractor shall not be liable for the consequences of any use of the Proprietary Material for any purpose other than that for which it was prepared.

[Insurance14

Without limiting its other obligations under this deed or otherwise at law, the Contractor shall maintain professional indemnity insurance to cover each and every professional liability which it may incur under this deed, with a limit of indemnity of not less than £[                  ] in respect of each and every claim, provided that such insurance continues to be available in the European Union market on reasonable terms and at commercially reasonable premium rates to contractors of similar standing to the Contractor.

The insurance referred to in clause 6.1 shall:

be subject only to such conditions and excesses as may be usual in the European Union market at the time; and

be maintained with reputable insurers with a place of business in the United Kingdom, from the date of this deed and for a period expiring not less than 12 years after the end of the Contract Period and notwithstanding the determination (for any reason) of the Contractor’s employment under the Contract.

As and when reasonably required to do so by the Beneficiary, the Contractor shall produce documentary evidence that the insurance required by this clause 6 is being properly maintained.

The Contractor shall promptly notify the Beneficiary if at any time it is unable to obtain insurance as required by this clause 6 on reasonable terms and at

14 Delete clause 6 if the Contractor does not have a significant design responsibility.

commercially reasonable premium rates or at all or if there is any material reduction in the scope or level of cover offered by such insurance.

The Contractor shall not compromise, settle or waive any insurance claim which it may have in respect of any professional liability under this deed without the prior consent of the Beneficiary, provided that nothing in this clause precludes the Contractor’s insurers from taking over (in the name of the Contractor) the defence of any claim made by the Beneficiary under this deed and (in that capacity) from conducting and settling it as they see fit.]

Assignment

The Beneficiary may at any time assign the benefit of this deed and/or any rights arising under it by way of absolute legal assignment [to any further person providing finance or re-finance in connection with the Orders]15 [to any subsequent purchaser of Beneficiary’s interest in the Property (subject to a maximum of two such assignments) and/or by way of charge to any mortgagee of the Property]16 on notice to the Contractor, without the consent of the Contractor being required.

Third parties

Any holding or subsidiary company of the Beneficiary or any company associated with it may in its own right enforce any term of this deed.

Except as provided in clause 8.1, it is not intended that any third party (other than the Beneficiary) should have the right to enforce a provision of this deed pursuant to the Contracts (Rights of Third Parties) Act 1999.

The parties may rescind or vary this deed without the consent of a third party to whom an express right to enforce any of its terms has been provided.

[Warranties in favour of others

The Contractor shall, within 14 days of being requested so to do by the Beneficiary, execute and deliver to the Beneficiary a deed of collateral warranty (in terms substantially similar to this deed but excluding clauses 3, 4 and 9) in favour of any person who acquires an interest in the Property from the Beneficiary and/or any first person who has entered into a lease or an agreement for lease for any part of the Property, provided that a collateral warranty in favour of such person has not already been requested by the Employer under the Contract.]17

Other remedies

Nothing in this deed shall in any way limit or affect any other rights or remedies (whether under any contract, at law, in equity or otherwise) which the Beneficiary would have against the Contractor in the absence of this deed.

The liability of the Contractor under this deed shall not be released, diminished or in any other way affected by:

the appointment by the Beneficiary of any person to survey the Property or to monitor the carrying out of the Orders or to inspect any documents relating to them on behalf of the Beneficiary or the failure to appoint such a person;

15 Use where Beneficiary is a Fund.16 Delete if Beneficiary is a Fund.17 Consider for inclusion if Beneficiary is a fund or purchaser.

any approval or consent given or withheld or purported to be given or withheld by or on behalf of the Beneficiary; or

any other independent inquiry into any relevant matter which the Beneficiary may make or fail to make.

Limitation

No action or proceedings for any breach of this deed shall be commenced against the Contractor after the expiry of 12 years following the end of the Contract Period.

Notices

Any notice or other communication required under this deed shall be given in writing and shall be deemed to have been properly given if compliance is made with section 196 of the Law of Property Act 1925 (as amended by the Recorded Delivery Service Act 1962).

Governing law and disputes

The application and interpretation of this deed shall in all respects be governed by English law and any dispute or difference arising under this deed shall be subject to the jurisdiction of the English courts.Delivered as a deed on the date of this document.

Schedule X - Form of Sub-Contractor’s Collateral Warranty

DATED                                                            200

[SUB-CONTRACTOR]

[EMPLOYER/BENEFICIARY]

DEED OF WARRANTY

relating to a project at

[                                        ]

DATED PARTIES1 Sub-Contractor [                                          ] (company no

[          ]) whose registered office is at [                                    ]

2 [Employer/Beneficiary] [                                          ] (company no [          ]) whose registered office is at [                                    ]

RECITALSA By the Contract, the Employer has employed the Contractor to carry out

and complete the Orders.B Pursuant to the provisions of the Contract, the Contractor with the consent

of the Employer has employed the Sub-Contractor under the Sub-Contract to carry out and complete the Sub-Contract Works.

[C Recite nature of the Beneficiary’s interest in the Property.]18

D In consideration of the foregoing the Sub-Contractor has agreed to enter into this deed in favour of the [Employer/Beneficiary].

OPERATIVE PROVISIONS

1. DEFINITIONS AND INTERPRETATION1.1 Unless the contrary intention appears, the following definitions apply:

19[Beneficiary includes any person to whom the benefit of this deed and/or any rights under it have been validly assigned in accordance with clause 5.1;]

Contract the contract dated [                        ] between the Employer (1) and the Contractor (2) (and any further agreement varying or supplementing it) under which the Contractor has undertaken to carry out and complete the Orders;

Contract Period the Contract Period more particularly described in the Contract;

Contractor [                                              ] (company no [             ]) whose registered office is at [                                          ];

20[Employer includes any person to whom the benefit of this deed and/or any rights under it have been validly assigned in accordance with clause 6.1;]

21[Employer [                                              ] (company no [             ]) whose registered office is at [                                        ];]

Orders the written description and/or drawings of any work and/or the supply of labour, plant, materials and/or goods to be carried out under the Contract.

Property the property at [                                                    ];18 Omit from Employer warranty.19 Omit from Employer warranty.20 Include in Employer warranty only.21 Omit from Employer warranty.

Proprietary Material

all drawings, details, plans, specifications, Schedules, calculations, software and other work (and the designs contained in them) prepared or to be prepared by or on behalf of the Sub-Contractor in connection with the Orders;

Sub-Contract the sub-contract dated [                             ] between the Contractor (1) and the Sub-Contractor (2) (and any further agreement varying or supplementing it) whereby the Sub-Contractor has undertaken to carry out and complete the Sub-Contract Works;

Sub-Contractor the person named as the second party above;

Sub-Contract Works

the work and/or those parts of the Orders to be carried out by the Sub-Contractor as more particularly defined and described in the Sub-Contract; and

1.2 The clause headings in this deed are for the convenience of the parties only and do not affect its interpretation.

1.3 Words importing the singular meaning shall include, where the context so admits, the plural meaning and vice versa.

1.4 Words denoting the masculine gender shall include the feminine and neuter genders and words denoting natural persons shall include corporations and firms and all such words shall be construed interchangeably in that manner.

1.5 Where the context so admits, references in this deed to a clause are to a clause of this deed.

1.6 References in this deed to any statute or statutory instrument shall include and refer to any statutory amendment or re-enactment thereof from time to time and for the time being in force.

2. SUB-CONTRACTOR’S WARRANTIES

2.1 The Sub-Contractor warrants and undertakes to the [Employer/Beneficiary] as follows:

2.1.1 that he has exercised and will continue to exercise all reasonable skill, care and diligence:

2.1.1.1 in the performance of his duties and responsibilities pursuant to and within the scope of his employment under the Sub-Contract;

2.1.1.2 in relation to the design of the Sub-Contract Works insofar as the Sub-Contractor is responsible therefor pursuant to the terms of the Sub-Contract;

2.1.1.3 in the selection of materials and goods insofar as the same have been or will be selected by the Sub-Contractor,

his sub-contractors or suppliers in accordance with the Sub-Contract; and

2.1.1.4 in the satisfaction of any performance specification or requirement included or referred to in the documents comprising the Sub-Contract;

2.1.1.5 that the Sub-Contract Works have been and will be carried out and completed in a good, sound, substantial and workmanlike manner using good quality and appropriate materials and in all respects in accordance with the Sub-Contract;

2.1.2 that he has observed and performed and will continue to observe and perform all the terms and obligations on his part to be observed and performed under the Sub-Contract; and

2.1.3 that none of the materials referred to in clause [       ] of the Contract has been or will be used in the Sub-Contract Works.

2.2 The Sub-Contractor acknowledges that the [Employer/Beneficiary] shall be deemed to have relied and to continue to rely upon the warranties and undertakings given by the Sub-Contractor under this clause 2, provided always that:

2.2.1 the Sub-Contractor shall owe no greater obligations to the [Employer/Beneficiary] under this deed than he owes to the Contractor under the Sub-Contract; and

2.2.2 no action or proceedings for any breach of this deed shall be commenced against the Sub-Contractor after the expiry of 12 years after the end of the Contract Period.

3. [DETERMINATION AND NOVATION OF THE SUB-CONTRACT

3.1 The Sub-Contractor shall not, without first giving to the Employer not less than 21 days’ prior notice, exercise any right he may have to determine his employment under the Sub-Contract or treat the same as having been repudiated by the Contractor or withhold performance of his obligations thereunder.

3.2 In the event that the employment of the Contractor under the Contract is determined for any reason whatsoever, the Sub-Contractor shall continue to carry out and complete his obligations under the Sub-Contract and shall within 7 days of the Employer’s request so to do execute a deed of novation in such form as the Employer may reasonably require transferring the rights and obligations of the Contractor under the Sub-Contract to the Employer (in which event the Sub-Contractor shall not thereafter unreasonably withhold his consent to a further novation of the Sub-Contract by the Employer) or to any person nominated by the Employer. Provided always that the provisions of this clause 3.2 shall not apply if the Employer shall so notify the Sub-Contractor within 14 days of the date of determination as aforesaid.

3.3 If the Employer shall notify the Sub-Contractor under clause 3.2, the Sub-Contractor shall have no claim whatsoever against the Employer for any damage, loss or expense howsoever arising out of or in connection with such notification or this deed.]22

22 Include in Employer warranty only.

4. USE OF PROPRIETARY MATERIAL

4.1 The copyright in the Proprietary Material shall remain vested in the Sub-Contractor, but the Sub-Contractor grants to the [Employer/Beneficiary] an irrevocable royalty-free non-exclusive licence to use and to reproduce any or all of the Proprietary Material for any purpose whatsoever connected with the Orders and/or the Property, including (without limitation) the execution and completion of the Orders and the subsequent maintenance, letting, occupation, management, sale, advertisement, extension, alteration, reinstatement and repair of the Property.

4.2 The licence referred to in clause 4.1 carries the right to grant sub-licences and shall be transferable to third parties and shall subsist notwithstanding the determination (for any reason) of the Sub-Contractor’s employment under the Sub-Contract.

4.3 The Sub-Contractor shall provide copies of any or all of the Proprietary Material to the [Employer/Beneficiary] upon request and upon payment by the [Employer/Beneficiary] of the Sub-Contractor’s reasonable copying charges.

4.4 The Sub-Contractor shall not be liable for the consequences of any use of the Proprietary Material for any purpose other than that for which it was prepared.

5. INSURANCE

5.1 The Sub-Contractor undertakes to the [Employer/Beneficiary] to maintain with a reputable insurance company with a place of business in the United Kingdom, from the date hereof and for a period expiring no earlier than 12 years after the end of the Contract Period and notwithstanding the determination for any reason of the Sub-Sub-Contractor’s employment under the Sub-Contract, [professional indemnity/product liability] insurance without unusual or onerous conditions or excesses to cover its liabilities under this deed, with a limit of indemnity of not less than £[              ] [in respect of each and every claim/in the aggregate in any period of insurance], provided always that such insurance continues to be available in the European Union market upon reasonable terms and at commercially reasonable premium rates.

5.2 As and when he is reasonably required to do so by the [Employer/Beneficiary], the Sub-Contractor shall produce for inspection by the [Employer/Beneficiary] documentary evidence that such insurance is being properly maintained.

5.3 The Sub-Contractor shall forthwith notify the [Employer/Beneficiary] if such insurance ceases to be available upon reasonable terms and at commercially reasonable premium rates or if for any other reason the Sub-Contractor is unable to continue to maintain such insurance.

6. ASSIGNMENT AND THIRD PARTIES

6.1 The [Employer/Beneficiary] may at any time assign, charge or transfer the benefit of this deed and/or any rights arising hereunder to any person acquiring an interest in the whole or any part of the Property upon notice to the Sub-Contractor provided that (save in the case of an assignment to any company or other body corporate which is a subsidiary or associated company of the [Employer/Beneficiary] or which is wholly owned directly or indirectly by the [Employer/Beneficiary]) not more than two such

assignments shall be permitted without the consent of the Sub-Contractor being required.

6.2 Unless the right of enforcement is expressly granted, it is not intended that any third party should have the right to enforce a provision of this deed pursuant to the the Contracts (Rights of Third Parties) Act 1999.

7. OTHER REMEDIES

7.1 Nothing in this deed shall in any way prejudice or affect any other rights or remedies (whether under any contract, at law, in equity or otherwise) which the [Employer/Beneficiary] would have against the Sub-Contractor in the absence of this deed.

7.2 The liability of the Sub-Contractor under this deed shall not be released, diminished or in any other way affected by:

7.2.1 the appointment by the [Employer/Beneficiary] of any person to survey the Property or to monitor the carrying out of the Orders or to inspect any documents relating to them on behalf of the [Employer/Beneficiary] or the failure to appoint such a person;

7.2.2 any approval or consent given or withheld or purported to be given or withheld by or on behalf of the [Employer/Beneficiary]; or

7.2.3 any other independent inquiry into any relevant matter which the [Employer/Beneficiary] may make or fail to make.

8. NOTICES

Any notice or other communication required under this deed shall be given in writing and shall be deemed to have been properly given if compliance is made with section 196 of the Law of Property Act 1925 (as amended by the Recorded Delivery Service Act 1962).

9. GOVERNING LAW AND DISPUTES

The application and interpretation of this deed shall in all respects be governed by English law and any dispute or difference arising hereunder shall be subject to the jurisdiction of the English courts.

Delivered as a deed on the date of this document.

Schedule X – Form of Performance Bond

DATED                                                                 201

[EMPLOYER]

[CONTRACTOR]

[SURETY]

PERFORMANCE BOND

relating to a project at[                                               ]

DATEDPARTIES1 Employer [                                     ] (company no             ) whose

registered office is at [                                                        ]

2 Contractor

[                                     ] (company no             ) whose registered office is at [                                                        ]

3 Surety [                                     ] (company no             ) whose registered office is at [                                                        ]

RECITALSA The Employer and the Contractor have entered into a contract

(“Contract”) for the [design,] carrying out and completion of certain orders (“the Orders”) as more particularly therein described.

OPERATIVE PROVISIONS1 The Contractor and the Surety are held and firmly bound unto the

Employer (which expression shall include the Employer’s successors in title, transferees and assigns under the Contract (as hereinafter defined)) in the sum of £[                     ] for the payment of which sum the Contractor and the Surety bind themselves their successors and assigns jointly and severally by these presents.

2 The conditions of this deed are such that if:

2.1 the Contractor shall duly perform and observe all the terms, provisions, conditions and stipulations of the Contract on his part to be performed and observed according to their true purport, intent and meaning;

2.2 on default by the Contractor the Surety shall satisfy and discharge the damages sustained by the Employer thereby up to the amount of this deed;

2.3 in the event of the Contractor committing or suffering any of the following:

2.3.1 a composition or arrangement is made with all or any of his creditors;

2.3.2 a voluntary arrangement for a composition in satisfaction of his debts or a scheme of arrangement of his affairs is approved under part I of the Insolvency Act 1986;

2.3.3 an order is made for his bankruptcy or compulsory winding-up;

2.3.4 a resolution is passed for his voluntary winding-up (otherwise than for the purposes of reconstruction or amalgamation);

2.3.5 an administration order is made under the provisions of part II of the Insolvency Act 1986;

2.3.6 a receiver or administrative receiver is appointed over all or part of his undertaking or assets;

2.3.7 possession is taken by or on behalf of the holders of any debentures secured by a floating charge of any property comprised in or subject to the floating charge; or

2.3.8 he makes any arrangement for the benefit of his creditors or takes or suffers any similar action in consequence of debt

the Surety shall satisfy and discharge the damages sustained by the Employer thereby up to the amount of this deed; or

2.4 upon the date that is 12 months after the end of the Contract Period (save to the extent of any claims notified by the Employer to the Surety in writing prior to such date);

this obligation shall be null and void but otherwise shall remain in full force and effect.

3 No alteration in the terms of the Contract made by agreement between the Employer and the Contractor or in the extent or nature of the Orders and no allowance of time by the Employer or the Contract Administrator under the Contract nor any forbearance or forgiveness in or in respect of any matter or thing concerning the Contract on the part of the Employer or the Contract Administrator shall in any way release the Surety from any liability under this deed.

Delivered as a deed on the date of this document.Executed under the common seal of[CONTRACTOR] in the presence of:

))

Director

Director/Secretary

Executed under the common seal of[SURETY] in the presence of:

))

Director

Director/Secretary

Schedule x - Form of Parent Company GuaranteeDATED                                          200

[EMPLOYER]

[GUARANTOR]

PARENT COMPANY GUARANTEE

relating to a project at[                                             ]

DATED PARTIES1 Employer [                                                     ] (company no

[              ]) whose registered office is at [                                                 ]

2 Guarantor [                                                     ] (company no [              ]) whose registered office is at [                                                 ]

RECITALSA By the Contract, the Employer has employed the Contractor to carry out

and complete the Orders.B The Guarantor is the ultimate parent company of the Contractor.C The Guarantor has agreed to guarantee the due performance by the

Contractor of his obligations under the Contract in the manner set out in this deed.

OPERATIVE PROVISIONS1. Definitions and interpretation

1.1 Unless the contrary intention appears, the following definitions apply:

Contract the contract dated [                          ] between the Employer (1) and the Contractor (2) whereby the Contractor has undertaken to carry out and complete the Orders;

Contractor [                                                ] (company no [              ]) whose registered office is at [                                             ];

Employer includes any person to whom the benefit of the Contract has been validly assigned, charged or transferred pursuant to clause [       ] of the Contract; and

Orders the written description and/or drawings of any work and/or the supply of labour, plant, materials and/or goods to be carried out under the Contract.

1.2 The clause headings in this deed are for the convenience of the parties only and do not affect its interpretation.

1.3 Words importing the singular meaning shall include, where the context so admits, the plural meaning and vice versa.

1.4 Words denoting the masculine gender shall include the feminine and neuter genders and words denoting natural persons shall include corporations and firms and all such words shall be construed interchangeably in that manner.

1.5 Where the context so admits, references in this deed to a clause are to a clause of this deed.

1.6 References in this deed to any statute or statutory instrument shall include and refer to any statutory amendment or re-enactment thereof from time to time and for the time being in force.

2. Guarantee

In consideration of the Employer agreeing to enter into the Contract with the Contractor, the Guarantor irrevocably and unconditionally guarantees and undertakes to the Employer that:

2.1 the Contractor will perform and observe all his obligations under the Contract on the days and at the times and in the manner provided in the Contract; and

2.2 in the event of any breach of such obligations by the Contractor, the Guarantor shall procure that the Contractor makes good the breach or shall otherwise cause it to be made good and shall indemnify and hold harmless the Employer against any loss, damage, demands, charges, payments, liability, proceedings, claims, costs and expenses suffered or incurred by the Employer arising from or in connection with it;

provided that (subject to clause 5) any limitation or defence which would have been available to the Contractor in an action under the Contract shall likewise be available to the Guarantor in a corresponding action under this deed.

3. Guarantor’s liability

3.1 The obligations of the Guarantor under this deed shall be in addition to and shall be independent of any other security which the Employer may at any time hold in respect of the Contractor’s obligations under the Contract and may be enforced against the Guarantor without first having recourse to any such security.

3.2 The liability of the Guarantor under this deed shall in no way be discharged, lessened or affected by:

3.2.1 the bankruptcy, insolvency, liquidation, reorganisation, dissolution, amalgamation, reconstruction or any analogous proceeding relating to the Contractor or any change in the status, function, control or ownership of the Contractor;

3.2.2 any time given or forbearance or other indulgence shown by the Employer to the Contractor;

3.2.3 the assertion or failure to assert or delay in asserting any rights or remedies of the Employer or the pursuit of any right or remedy of the Employer;

3.2.4 the giving by the Contractor of any security or the release, modification or exchange of any such security or the liability of any person; or

3.2.5 any other act, event, omission or circumstance which but for this provision might operate to discharge, lessen or otherwise affect the liability of the Guarantor.

4. Variations to the Contract

The Guarantor authorises the Contractor and the Employer to make any addition or variation to the Contract, the due and punctual performance of which shall likewise be guaranteed by the Guarantor in accordance with the terms of this deed. The liability of the Guarantor under this deed shall in no way be discharged or lessened by any such addition or variation.

5. Liquidation of Contractor

The Guarantor covenants with the Employer that if the Contractor shall go into liquidation and the liquidator shall disclaim the Contract or if the Contractor’s employment under the Contract shall be determined for any reason the liability of the Guarantor under this deed shall remain in full force and effect.

6. Waiver

The Guarantor waives any right to require the Employer to pursue any remedy (whether under the Contract or otherwise) which it may have against the Contractor before proceeding against the Guarantor under this deed.

7. Rights of Guarantor against Contractor

The Guarantor shall not by any means or on any ground seek to recover from the Contractor (whether by instituting or threatening proceedings or by way of set-off or counterclaim or otherwise) or otherwise to prove in competition with the Employer in respect of any payment made by the Guarantor under this deed nor be entitled in competition with the Employer to claim or have the benefit of any security which the Employer holds for any money or liability owed by the Contractor to the Employer. If the Guarantor shall receive any monies from the Contractor in respect of any payment made by the Guarantor under this deed, the Guarantor shall hold such monies in trust for the Employer for so long as the Guarantor shall remain liable or contingently liable under this deed.

8. Continuing guarantee

The terms of this deed shall be a continuing guarantee and shall remain in full force and effect until each and every part of every obligation of the Contractor under the Contract shall have been performed and observed and until each and every liability of the Contractor under the Contract shall have been satisfied in full. Provided that the liability of the Guarantor under this deed shall cease on the expiry of 12 years following the end of the Contract Period under the Contract save to the extent of any claims notified by the Employer to the Guarantor in writing prior to the expiry of such period.

9. Third party rights

Unless the right of enforcement is expressly granted, it is not intended that any third party should have the right to enforce any provision of this deed pursuant to the Contracts (Rights of Third Parties) Act 1999.

10. Notices

Any notice or other communication required under this deed shall be given in writing and shall be deemed to have been properly given if compliance is made with section 196 of the Law of Property Act 1925 (as amended by the Recorded Delivery Service Act 1962).

11. Governing law

The application and interpretation of this deed shall in all respects be governed by English law.

Delivered as a deed on the date of this document.Executed as a deed by [GUARANTOR]in the presence of:

))

Director

Director/Secretary