Schedule 10 Part 2 from Subcontractors to Beneficiaries DATED [ ] [NAME OF BENEFICIARY] (1) and [NAME OF SUBCONTRACTOR] (2) DEED OF WARRANTY in relation to the NEC3 OPTION A TERM SERVICE CONTRACT FOR INTEGRATED FACILITIES MANAGEMENT SERVICES AT THORNHAUGH STREET, RUSSELL SQUARE, GORDON SQUARE AND MALET STREET, LONDON
THIS DEED is made on [ ] BETWEEN: (1) [NAME OF BENEFICIARY] (company number [ ]) whose registered office is at [ ] (the Beneficiary which expression shall include its successors in title and its assigns and those deriving title under it or them); (2) [NAME OF SUBCONTRACTOR] (company number [ ]) whose registered office is at [ ] (the Subcontractor ). WHEREAS: (A) (B) [Define the relationship between the Employer and the Beneficiary if applicable] [Define Employer if the Beneficiary is not the Employer] (C) The Employer has entered into a contract ( Contract ) with [ ] (the Contractor ) for the carrying out and completion of services defined in the Contract. (D) The Contractor has entered into a subcontract dated [ ] (the Subcontract ) with the Subcontractor for the carrying out and completion of services defined in the Subcontract (the Subcontract Services which expression shall include any additional services carried out by the Subcontractor under the Subcontract in connection with any modifications or variations made thereunder). NOW in consideration of the payment of one pound by the Beneficiary to the Subcontractor (the Beneficiary agreeing to pay to the Subcontractor the sum of one pound if demanded) THIS DEED WITNESSES as follows: 1 The Subcontract Services 1.1 The Subcontractor warrants to the Beneficiary that: 1.1.1 the Subcontractor has carried out and completed the Subcontract Services and/or shall carry out and complete the Subcontract Services in accordance with the Subcontract; 1.1.2 the Subcontractor has complied with and/or shall comply with all the obligations of the Subcontractor under the Subcontract; and 1.1.3 in relation to any design carried out by the Subcontractor, that it has exercised and shall continue to exercise in the performance of the design, the reasonable skill, care and diligence as would be expected of a competent and appropriately qualified contractor experienced in carrying out services of a similar nature, scope, size and complexity as the Subcontract Services. 1.2 In proceedings for breach of this clause 1, the Subcontractor may: 1.2.1 rely on any limit of liability or other term of the Subcontract; and 1.2.2 raise equivalent rights of defence as it would have had if the Beneficiary had been named as a joint employer, with the Contractor, under the 1
Subcontract (for this purpose not taking into account any set-off or counterclaim against the actual employer under the Subcontract). 1.3 Notwithstanding any other provision of this Deed, the Subcontractor agrees that it shall not be entitled to contend in defence of proceedings under this Deed or otherwise that its liability to the Beneficiary is reduced or affected by virtue of the fact that the Employer/Contractor has suffered no loss or a different loss from the Beneficiary as a consequence of any breach by the Subcontractor. 2 Deleterious materials 2.1 Notwithstanding and without prejudice to the terms and conditions of the Subcontract, the Subcontractor confirms to the Beneficiary that (unless otherwise authorised or instructed by or on behalf of the Beneficiary: 2.1.1 the Subcontractor has not used and/or specified, selected and/or approved and will not use, specify, select and/or approve for use; and 2.1.2 (consistent with the Subcontractor s duties under the Subcontract) the Subcontractor has exercised and will continue to exercise the duty of reasonable skill, care and diligence in clause 1.1.3 above to ensure that none of the following shall be used in the Subcontract Services: any material, substance, building practice or technique which is: 2.1.3 prohibited by the Subcontract; and/or 2.1.4 not in accordance with British Standards and/or relevant European Standards and/or Codes of Practice; and/or 2.1.5 generally known within the facilities maintenance and construction industries at the time of specification, selection, approval or use (as the case may be) to be deleterious or hazardous to health and safety or to the durability of the Affected Property (defined in the Contract) in the particular circumstances in which such materials, substances, building practices or techniques are used and taking into consideration, as and where applicable, the guidance and comment contained in the British Council for Offices' publication "Good Practice in the Selection of Construction Materials 2011". 3 Documents 3.1 The Subcontractor shall provide to the Beneficiary within fourteen days of written demand and on payment of the Subcontractor s reasonable costs of producing the same copies of any and all bills of quantities, Building Information Modelling (BIM) documents, Building Information Modelling (BIM) materials, brochures, budgets, CAD materials, calculations, data, design details, designs, diagrams, drawings, graphs, minutes, models, notes of meetings, photographs, plans, programmes, reports, schedules, sketches, specifications, surveys and other similar materials whether in hard copy, on computer disk, stored electronically on a computer or in a virtual cloud, in any other computer-generated format or on any magnetic or optical storage medium prepared by or on behalf of the Subcontractor (whether in existence or to be created) in connection with the Subcontract Services ( Documents ). 2
3.2 The Subcontractor hereby grants to the Beneficiary an irrevocable royalty-free nonexclusive licence to copy and use the Documents and to reproduce the Documents, designs and content of them for any purpose relating to the Subcontract Services/Affected Property and/or the Beneficiary s interest in the Subcontract Services/Affected Property including, without limitation, the construction, reconstruction, use, completion, maintenance, advertisement, letting, sale, alteration, extension, promotion, advertisement, reinstatement, refurbishment, demolition, tendering, re-tendering and repair of the Subcontract Services/Affected Property. Where any design for the Subcontract Services/Affected Property for which the Subcontractor is responsible under the Subcontract is vested in any person other than the Subcontractor (including any design consultant, subcontractor or supplier) the Subcontractor procures a like right in respect of such designs for the Beneficiary and the Beneficiary is able to grant licences of all such rights to third parties. Such licence shall carry the right to grant sub-licences and shall be transferable to third parties. 3.3 The Subcontractor shall not be liable for any use of such designs or documents for any purpose which was not within the contemplation of the Subcontractor at the time the same are or were prepared. 4 Insurance 4.1 Without prejudice to its obligations under this Deed and/or at law or otherwise, the Subcontractor shall take out and maintain, until twelve years after the expiry of the service period (defined in the Contract), with a well-established insurance company or underwriter of repute, appropriate [professional indemnity] [product liability] insurance with a limit of indemnity of not less than [ ] million pounds [ ]) [in the aggregate (with [ ] automatic reinstatement per policy year)] OR [each and every claim] provided that such insurance continues to be available in the insurance market at reasonable premium rates and on reasonable terms. 4.2 The Subcontractor shall, as and when it is reasonably required to do so by the Beneficiary, make available for inspection by the Beneficiary documentary evidence that such insurance is being properly maintained. The Subcontractor shall immediately inform the Beneficiary if such insurance ceases to be available at reasonable premium rates and on reasonable terms. 5 Assignment 5.1 The Beneficiary may at any time assign or transfer all or any of its rights under this Deed to any party without the Subcontractor s consent on two occasions. The Subcontractor s consent (which shall not be unreasonably withheld or delayed) is required for any further such assignments. 5.2 The Subcontractor shall not contend that any person to whom the benefit of this Deed is assigned under clause 5.1 may not recover any sum under this Deed because that person is an assignee and not the named Beneficiary to this Deed. 6 Subcontractor s tender 6.1 Nothing in the order or tender for the Subcontract Services shall operate to exclude or limit the liability of the Subcontractor under this Deed. 3
7 Independent inspection 7.1 The liability of the Subcontractor under this Deed shall not be released, diminished or in any other way affected by any independent inspection, investigation or enquiry into any relevant matter which may be made or carried out by or for the Beneficiary, nor by any failure or omission to carry out any such inspection, investigation or enquiry, nor by the appointment by the Beneficiary of any independent firm, company or party whatsoever to review the progress of or otherwise report to the Beneficiary in respect of the Subcontract Services, nor by any action or omission of any such firm, company or party whether or not such action or omission might give rise to any independent liability of such firm, company or party to the Beneficiary. Provided always that nothing in this clause shall modify or affect any rights which the Subcontractor might have but for the existence of this clause to claim contribution from any third party whether under statute or at common law. 8 Notices 8.1 Any notice or confirmation in writing provided for in this Deed shall be duly given if delivered by hand or sent by Royal Mail special delivery to a party at its address set forth above or such other address as each party may specify from time to time by written notice to the other party. 8.2 Such notice shall be deemed to have been received on the day of delivery if delivered by hand on the second working day after posting if sent by Royal Mail special delivery. 9 Law 9.1 The construction validity and application of this Deed is subject to English law and to the non-exclusive jurisdiction of the English Courts. 10 Third Party Rights 10.1 Subject to clause 5 of this Deed the application of the Contracts (Rights of Third Parties) Act 1999 to this Deed is hereby excluded. 11 Execution as a deed 11.1 This instrument is executed as a deed and was delivered when it was dated. Signed as a deed by [NAME OF CONTRACTOR] acting by either a director and its secretary or two directors: ) )...... Director...... Director/Secretary 4