DATED (1 [ ] - and - (2 [ ] SUB-CONTRACTOR'S DEED OF WARRANTY relating to the construction and delivery of the Edge Lane West Highway and Environmental Improvements Scheme Halliwells LLP The Plaza 100 Old Hall Street Liverpool L3 9TD Base Draft
CONTENTS 1. DEFINITIONS AND INTERPRETATION... 1 2. STANDARD OF CARE... 3 3. MATERIALS... 3 4. INTELLECTUAL PROPERTY... 4 5. PROFESSIONAL INDEMNITY INSURANCE... 4 6. ASSIGNMENT... [ ] 7. LIABILITY OF THE SUB-CONTRACTOR... [ ] 8 EXPIRY OF DEED... [ ] 9. NOTICES... [ ] 10. RIGHTS OF THIRD PARTIES... [ ] 11. JURISDICTION AND LAW... [ ]
THIS DEED is made on BETWEEN (1 [ ] (Company Number: [ ] whose registered office is at [ ] ("Sub-Contractor"; (2 [ ] whose address is [ ]] ("Beneficiary" which term shall include its successors and permitted assignees; WHEREAS A By the Sub-Contract entered into between the Contractor and the Sub-Contractor the Sub- Contractor has agreed with the Contractor to carry out and complete the Sub-Contract Works upon the terms and conditions therein contained. B By an agreement in writing made or intended to be made between the Beneficiary and the Employer, the Beneficiary has agreed to [ ]. C It is a term of the Sub-Contract or has otherwise been agreed that the Sub-Contractor shall enter into this deed with the Beneficiary in relation to the Works. WITNESSES as follows: By this deed and in consideration of the sum of 10 paid by the Beneficiary (receipt of which the Contractor hereby acknowledges the Sub-Contractor agrees to enter into the obligations set out in this deed. 1. DEFINITIONS AND INTERPRETATION In this deed: 1.1 the following words and expressions shall have the following meanings, unless the context requires otherwise: "Appointee" means the Beneficiary or any appointee or nominee of the Beneficiary notified in writing by the Beneficiary to the Sub-Contractor; "Completion" means completion of the Sub-Contract Works in accordance with the Sub-Contract; "Employer" means Liverpool City Council whose office is at Municipal Buildings, Dale Street, Liverpool 4L29 2DH;
Funder means each person, firm, company or bank or the like with whom the Employer has entered into or proposes to enter into an agreement for the provision of finance in any connection whatsoever with the Site and/or the Project; Intellectual Property means intellectual property of all descriptions including (without limitation copyright, copyright licences, patents, design rights, registered designs, entitlement to royalties or similar fees or charges, and trade marks, and any right to restrain or claim in respect of passing off ; "Project" means the construction and delivery of the Edge Lane West Highway and Environmental Improvements Scheme; "Site" has the same meaning as appears in the Sub-Contract; "Sub-Contract" means the sub-contract in the form of the [NEC 3 Engineering and Construction Sub-Contract dated [ ] made between the Contractor and the Sub-Contractor; Sub-Contract Works means the works and services to be undertaken by the Sub- Contractor under the Sub-Contract. Technical Documents means without limitation all drawings, designs, details, surveys, reports, models, specifications, bills of quantities, calculations and other documents and information prepared either by the Sub-Contractor or on the Sub- Contractor s behalf in connection with the Project; 1.2 Unless the context requires otherwise: 1.2.1 words importing: 1.2.1.1 the singular include the plural and vice versa; and 1.2.1.2 one gender include all other genders; 1.2.2 a reference to: 1.2.2.1 persons includes firms, companies, corporations, partnerships, trusts, authorities and other incorporated and/or unincorporated bodies; and 1.2.2.2 a recital, clause or schedule is a reference to a recital, clause or schedule of or to this deed;
1.3 the list of contents and clause headings are included for convenience only and shall not affect its interpretation. 2. STANDARD OF CARE The Sub-Contractor warrants and undertakes to the Beneficiary that: 2.1 it has carried out and will hereafter carry out its duties and obligations under the Sub- Contract subject to and in accordance with the terms thereof; and 2.2 in addition to and without derogation from clause 2.1: 2.2.1 it has carried out and will continue to carry out and complete the Sub- Contract Works in a good and workmanlike manner; 2.2.2 the Sub-Contract Works will on completion comply in all respects with the requirements of the Sub-Contract. 2.3 To the extent that under the terms of the Sub-Contract the Sub-Contractor has any responsibility for the design of the Sub-Contract Works or for the selection of goods, materials, plant or equipment for incorporation into the Sub-Contract Works, the Sub- Contractor warrants and undertakes to the Beneficiary that it has exercised and will continue to exercise in such design or selection, the skill, care and diligence reasonably to be expected of a properly qualified and competent professional design engineer or, as the case may be, other appropriate professional designer experienced in the design of works of a similar size, scope and complexity to the Sub- Contract Works. 3. MATERIALS 3.1 The Sub-Contractor further warrants and undertakes to the Beneficiary that the Sub- Contract Works shall not, when completed, incorporate any goods, materials or equipment which are (or which incorporate substances which are stated in the Sub- Contract to be prohibited or which are generally known at the time of use to be deleterious to health and safety or the durability of the Sub-Contract Works in the particular circumstances in which they are to be used or are otherwise not in accordance with British Standards, Codes of Practice or good building practice or techniques. 3.2 For the purposes of clause 3.1 the term deleterious includes a combination of materials that would or might have the effect of reducing the normal life expectancy:
3.1.1 of the materials themselves; 3.1.2 of any materials to which they are affixed; 3.1.3 of the structure in which they are incorporated or to which they are affixed; or 3.1.4 of the Sub-Contract Works or any part thereof to a period of less than that which has been specified or would normally be expected. 4. INTELLECTUAL PROPERTY 4.1 To the extent that the Sub-Contractor agrees to take responsibility for all or part of the design of the Sub-Contract Works, the Intellectual Property in the Technical Documents prepared by the Sub-Contractor or his sub-sub-contractors shall remain vested in the Sub-Contractor or his sub-sub-contractors, as the case may be. The Sub-Contractor hereby grants to the Beneficiary an irrevocable, royalty-free, nonexclusive licence to reproduce and use the Technical Documents prepared by or on behalf of the Sub-Contractor for any purpose whatsoever relating to the Project including, but without limitation the construction, completion, maintenance, letting, promotion, advertisement, reinstatement, refurbishment and repair of the Project, the Sub-Contract Works and the Site provided always that the Sub-Contractor shall have no liability for the use of such Technical Documents for purposes other than that for which the same was prepared.. The Sub-Contractor hereby undertakes to procure from his sub-sub-contractors the grant of the necessary licences in favour of the Beneficiary to give effect to this clause 4.1. Such licences shall be capable of sublicence and shall be transferable to third parties. 5. PROFESSIONAL INDEMNITY INSURANCE 5.1 To the extent that the Sub-Contractor agrees to take responsibility for all or part of the design of the Sub-Contract Works, the Sub-Contractor warrants that it has and shall maintain during the performance of its obligations under the Sub-Contract and for a period of 12 years from the date of Completion of the Sub-Contract Works pursuant to the Sub-Contract professional indemnity insurance with a limit of indemnity of not less than [ ] million pounds ( [ ],000,000 for any one claim in respect of any negligence on the part of the Sub-Contractor in the performance of its design obligations under the Sub-Contract provided always that such insurance is available at commercially reasonable rates (but disregarding the extent to which such insurance is not available at commercially reasonable rates on account of the insurance record of the Sub-Contractor. Such insurance shall be with a reputable insurance office or underwriter carrying on business in the United Kingdom.
5.2 As and when required by the Beneficiary, the Sub-Contractor shall produce for inspection documentary evidence that such insurance is being properly maintained. 5.3 The Sub-Contractor shall immediately inform the Beneficiary if such insurance is not or ceases to be available at commercially reasonable rates or otherwise is not being maintained in accordance with this deed or for any reason is or becomes void or unenforceable, in order that the Sub-Contractor and the Beneficiary can discuss the means of best protecting the interest of the Sub-Contractor and Beneficiary in the absence of such insurance. 6. ASSIGNMENT 6.1 The benefit of this deed may be assigned by way of absolute legal assignment without requiring the consent of the Sub-Contractor provided always that notice of such assignment is given to the Sub-Contractor. 6.2 The Sub-Contractor shall not assign the benefit of this deed or in any way transfer the obligations arising under this deed without the prior written consent of the Beneficiary. 7. LIABILITY OF THE SUB-CONTRACTOR 7.1 Nothing herein shall operate to exclude any obligation or liability which would otherwise be implied whether by the law of contract, tort, equity or otherwise. 7.2 The responsibility of the Sub-Contractor under this deed shall not be reduced or in any way released or limited by any enquiry or inspection by or on behalf of any person notwithstanding that such enquiry or inspection may give rise to a claim by the Beneficiary against a third party. 7.3 The rights and benefits conferred upon the Beneficiary by this deed are in addition to any other rights and remedies that the Beneficiary may have against the Sub- Contractor including (without prejudice to the generality of the foregoing any remedies in negligence. 7.4 The Sub-Contractor shall have no greater liability to the Beneficiary under the foregoing provisions of this deed than the Sub-Contractor would have had if the Beneficiary had appointed the Sub-Contractor and been named as the "Contractor" in the Sub-Contract save that the Sub-Contractor shall not be entitled to any right of set off or counterclaim against the Beneficiary to which the Sub-Contractor may be entitled as against the Contractor.
8. EXPIRY OF DEED This deed shall cease to have effect 12 years after Completion save so far as concerns any matter in respect of which legal proceedings shall have been commenced against the Sub- Contractor prior to the expiry of such period. 9. NOTICES 9.1 Any notice required to be given under this deed shall be hand delivered or sent by prepaid special or recorded delivery post to the party concerned at its address set out in this deed or to such other addresses as may be notified by such party for the purposes of this clause. 9.2 Any notice given pursuant to this clause shall, if sent by special delivery or recorded delivery, be deemed to have been received 48 hours after being posted. 10. RIGHTS OF THIRD PARTIES A person who is not a party to this deed shall have no right under the Contracts (Rights of Third Parties Act 1999 to enforce any term of this deed. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act. 11. JURISDICTION AND LAW This deed shall be governed by and construed according to English law and the parties submit to the non-exclusive jurisdiction of the English Courts. IN WITNESS WHEREOF the parties have executed and delivered this document as a deed the day and date first before written EXECUTED (but not delivered until the date hereof as a deed by the Sub-Contractor acting by two directors or a director and its secretary: Director Director/Secretary