Building Construction Agreement - Template, Sample Form Pro · UK-law
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BUILDING CONSTRUCTION AGREEMENT
This Agreement is dated ________.
PARTIES
(1) ________, a company incorporated and registered in England and Wales with company number ________ whose registered office is at:
________
(the Client); and
(2) ________, a company incorporated and registered in England and Wales with company number ________ whose registered office is at:
________
(the Builder).
Each of the Client and the Builder is a Party and together they are the Parties.
BACKGROUND
(A) The Client is satisfied that the Builder possesses the necessary skill, experience and expertise required to carry out the works for which it is being engaged.
(B) The Builder carries on the business of:
________
(C) The Builder has agreed to provide the construction works to the Client on the terms and conditions set out in this Agreement.
AGREED TERMS
1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in this Agreement.
Agreement: this Building Construction Agreement, including its recitals and any schedules.
Applicable Laws: all applicable laws, statutes, regulations, regulatory policies, guidelines and industry codes from time to time in force, including (without limitation) the Construction (Design and Management) Regulations 2015, the Building Act 1984, the Building Regulations 2010, the Building Safety Act 2022, the Health and Safety at Work etc. Act 1974 and the Defective Premises Act 1972.
Business Day: a day (other than a Saturday, Sunday or public holiday) on which banks are usually open for business in England and Wales.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Building Site: the location where the building or construction works are to take place, situated at:
________
Change: an amendment to the scope, nature, volume or execution of the Works under this Agreement, or any other term of this Agreement.
Change Control: the process by which any request to vary the agreed nature of the Works or the Charges is recorded, evaluated and then approved or rejected, as set out in clause 7.
Change Order: a document recording the proposed changes to the Works.
Charges: the sums payable for the Works performed by the Builder, as set out in clause 8.
Client's Equipment: any equipment, including tools, machinery, cabling or facilities, provided by the Client and used directly or indirectly in the provision of the Works.
Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to the Builder in connection with the Works.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010.
Deliverables: any output of the Works (such as design drawings or proposals) to be provided by the Builder to the Client.
Milestones: the dates by which parts of the Works are to be completed, as set out in this Agreement.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
Works: the construction works set out in clause 3 and any further works agreed between the Parties.
1.2 Clause headings shall not affect the interpretation of this Agreement. A reference to a statute or statutory provision is a reference to it as amended or re-enacted, and includes all subordinate legislation made under it. Any words following the terms "including", "include", "in particular", "for example" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. COMMENCEMENT AND DURATION
2.1 This Agreement shall commence on ________ and shall continue until terminated in accordance with its terms or until the Works have been completed by the Builder, whichever is the earlier.
2.2 The Builder shall provide the Client with the Works in accordance with this Agreement.
3. DESCRIPTION OF WORKS
3.1 The Builder shall provide the Client with the following Works:
________
3.2 The Works may be extended to include any other tasks which the Parties may agree in writing.
3.3 The Builder shall carry out the Works at the Building Site.
3.4 The Works shall be carried out in line with the following Milestones:
________
4. BUILDER'S RESPONSIBILITIES
4.1 The Builder shall use the standards of skill, care and diligence reasonably expected of a competent contractor in its industry to perform the Works and deliver the Deliverables in all material respects. The Deliverables to be completed under this Agreement are:
________
4.2 The Builder shall use reasonable endeavours to meet any performance dates and Milestones, but such dates shall be estimates only and time shall not be of the essence for performance.
4.3 The Builder shall return all of the Client's Equipment provided to it and used directly or indirectly in the provision of the Works within ________ days of completion of the Works.
4.4 The Builder shall appoint a person to act as manager for the Works, namely ________. The Builder shall be contractually bound by the decisions and actions of the appointed person on all matters relating to the Works. The Builder may replace the appointed person from time to time where it is reasonably necessary in the interests of its business.
4.5 The Builder shall comply with all health and safety requirements applicable to the Building Site which have been communicated to it, and shall comply with its statutory duties under the Construction (Design and Management) Regulations 2015 and the Health and Safety at Work etc. Act 1974.
5. CLIENT'S OBLIGATIONS
5.1 The Client shall:
(a) co-operate with the Builder in all matters concerning the Works;
(b) appoint a person to act as manager for the Works, with authority to contractually bind the Client on matters concerning the Works, namely ________. The Builder shall have the right to approve or veto the person so appointed;
(c) provide the Builder and its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Building Site and such other facilities as are reasonably required by the Builder;
(d) provide the Builder, in a timely manner, with all documents and information reasonably required by it to perform the Works, and shall ensure that all such documents and information are complete and accurate;
(e) supply the Builder with the items and materials, owned by the Client or a third party, required by the Builder to perform the Works. The Client shall provide such materials on ________. If the Client fails to provide the materials on the specified date, the Parties shall agree a new date. The Builder shall not be liable for any delay to the provision or completion of the Works arising from the Client's failure to provide the required materials on the specified date. The Client shall bear the full cost of such items and materials. The materials to be provided by the Client are:
________
(f) provide the Builder with adequate information on the health and safety requirements applicable at the Building Site;
(g) obtain and maintain all necessary licences, permissions, planning consents and approvals required under Applicable Laws to enable the Builder to perform the Works, in each case before the Works start date. These consents are:
________
(h) provide the following Client's Equipment for use in the provision of the Works:
________
The Client's Equipment shall be provided in accordance with the following schedule:
________
(i) use reasonable endeavours to ensure that only the Builder's agents, employees, consultants and subcontractors are granted access to the area of the Building Site where the Works are being performed.
5.2 If the Builder's performance of any of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Builder shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
6. BUILDING SCHEDULE
6.1 The Builder shall commence the Works on ________ and shall complete the Works on or before ________.
7. CHANGE OF SCOPE (CHANGE CONTROL)
7.1 Either Party may propose changes to the Works, but no such change shall take effect unless and until both Parties have signed a Change Order. A valid Change Order shall record:
(a) the Works as amended;
(b) the Builder's revised Charges;
(c) the revised timetable for the Works; and
(d) any other amendments to the terms of this Agreement.
7.2 Where the Builder wishes to make a change to the Works, it shall provide the Client with a draft Change Order.
7.3 Where the Client wishes to make a change to the Works, it shall notify the Builder and give such detail as the Builder may reasonably require (including the timing expectations of the proposed change), and the Builder shall, as soon as reasonably practicable thereafter, provide the Client with a draft Change Order.
7.4 If the Parties agree a Change Order, each shall sign it and this Agreement shall be amended accordingly.
7.5 If the Parties are unable to agree a Change Order, either Party may refer the matter to the dispute resolution procedure in clause 28.
7.6 The Builder may, at its discretion, charge for the time reasonably spent preparing and negotiating Change Orders that implement changes proposed by the Client.
8. CHARGES AND PAYMENT
8.1 The Client shall pay the Charges for the Works provided by the Builder.
8.2 The Charges for the Works shall be £________ (________).
8.3 The Charges do not include the costs of travel or any other ancillary expenses reasonably incurred by persons engaged by the Builder in connection with the Works, which shall be charged in addition.
8.4 Upon giving ________ days' notice, the Builder may review the Charges upwards to reflect any change in the cost of materials, changes to the Works, or any other matter relating to the Works. The Client may negotiate the reviewed Charges with the Builder, and where a new charge is agreed it shall apply. Any increase to the Charges shall not exceed ________% in any period.
8.5 The Builder shall provide the Client with an invoice for the Charges for the Works performed, at the intervals set out in ________.
8.6 The Client shall pay each invoice submitted by the Builder within ________ days of receipt, by electronic transfer to the bank account nominated in writing by the Builder.
8.7 Without affecting any other right or remedy available to it, if the Client fails to pay any sum due under this Agreement on the due date:
(a) the Client shall pay interest on the overdue sum from the due date until payment (whether before or after judgment). Interest under this clause shall accrue each day at 4% per annum above the Bank of England base rate from time to time, but at 4% per annum for any period when that base rate is below 0%; and
(b) the Builder may suspend the provision of all or part of the Works until payment has been made in full.
8.8 All sums payable to the Builder under this Agreement:
(a) are exclusive of VAT, and the Client shall, on receipt of a valid VAT invoice, pay to the Builder such additional amounts in respect of VAT as are chargeable on the supply of the Works; and
(b) shall be paid in full and without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by law).
8.9 Nothing in this Agreement shall exclude or limit the Parties' rights under the Housing Grants, Construction and Regeneration Act 1996 (where applicable), including the right to refer disputes to adjudication and the entitlement to stage payments and to suspend performance for non-payment.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in or arising out of or in connection with the Works (other than Intellectual Property Rights in any Client Materials) shall be owned by the Builder.
9.2 The Builder grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement to use the Deliverables for the purpose of receiving and using the Works and the Deliverables in its business.
9.3 The Client grants to the Builder a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this Agreement for the purpose of providing the Works to the Client.
10. COMPLIANCE WITH LAWS AND POLICIES
10.1 In performing its obligations under this Agreement, the Builder shall comply with all Applicable Laws.
10.2 Where any change in Applicable Laws requires a change to the Works, that change shall be implemented through Change Control under clause 7.
10.3 Each Party shall comply with the Bribery Act 2010 and shall not engage in any activity which would constitute an offence under that Act.
11. DATA PROTECTION
11.1 Each Party shall comply with all applicable requirements of the UK GDPR and the Data Protection Act 2018 (together, the Data Protection Legislation) in connection with any personal data processed under or in connection with this Agreement. This clause is in addition to, and does not relieve, remove or replace, a Party's obligations under the Data Protection Legislation.
12. CONFIDENTIALITY
12.1 Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, except as permitted by clause 12.2.
12.2 Each Party may disclose the other Party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under this Agreement, provided that the disclosing Party ensures that such persons comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither Party shall use the other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
13. LIMITATION OF LIABILITY
13.1 The Builder maintains insurance cover in respect of its own legal liability for individual claims up to a maximum of £________ per claim. The Client shall be responsible, at its own discretion, for obtaining any further insurance to cover any excess loss.
13.2 References to liability in this clause include every kind of liability arising under or in connection with this Agreement, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 Notwithstanding clause 13.2, the following particular liabilities are covered by the Builder's insurance:
________
13.4 Nothing in this clause shall limit the Client's payment obligations under this Agreement.
13.5 Nothing in this Agreement shall limit or exclude any liability which cannot legally be limited or excluded, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) any matter in respect of which it would be unlawful to exclude or restrict liability.
13.6 Subject to clause 13.5, the Builder's total liability to the Client:
(a) for damage to property caused by the negligence of its employees and agents in connection with this Agreement shall not exceed £________ for any one event or series of connected events; and
(b) for all other loss or damage not falling within clause 13.6(a) shall not exceed £________.
13.7 Subject to clause 13.5, the Client's total liability to the Builder:
(a) for damage to the Builder's equipment or property caused by the negligence of its employees and agents in connection with this Agreement shall not exceed £________ for any one event or series of connected events; and
(b) for all other loss or damage not falling within clause 13.7(a) shall not exceed £________.
13.8 Any caps on a Party's liability shall not be reduced by amounts awarded by a court or arbitrator in respect of costs of proceedings or interest for late payment.
13.9 Subject to clause 13.5, neither Party shall be liable to the other for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of or damage to goodwill; or
(d) indirect or consequential loss.
13.10 Unless the Client notifies the Builder that it intends to make a claim in respect of an event within the notice period, the Builder shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of having grounds to make a claim in respect of the event and shall expire ________ from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14. TERMINATION
14.1 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
(a) the other Party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within ________ days after being notified in writing to do so;
(b) the other Party repeatedly breaches any of the terms of this Agreement in a manner that reasonably justifies the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(e) the other Party's financial position deteriorates to such an extent that, in the terminating Party's reasonable opinion, the other Party's ability to give effect to the terms of this Agreement is in jeopardy.
14.2 Without affecting any other right or remedy available to it, the Builder may terminate this Agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ________ days after being notified in writing to make such payment; or
(b) there is a change of Control of the Client.
15. CONSEQUENCES OF TERMINATION AND SURVIVAL
15.1 On termination of this Agreement the Client shall pay the Builder all Charges and other sums accrued and outstanding as at the date of termination.
15.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach existing at or before that date.
15.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry shall remain in full force and effect.
16. FORCE MAJEURE
Neither Party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for ________, the Party not affected may terminate this Agreement by giving ________ written notice to the affected Party.
17. ASSIGNMENT AND OTHER DEALINGS
17.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the Builder.
17.2 The Builder may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
18. VARIATION
Except as permitted under clause 7 (Change Control), no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
19. WAIVER
19.1 A waiver of any right or remedy under this Agreement shall only be effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.2 A failure or delay by a Party to exercise any right or remedy under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21. SEVERANCE
21.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted, and that shall not affect the validity and enforceability of the rest of this Agreement.
21.2 Where any provision or part-provision is deemed deleted under this clause, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. ENTIRE AGREEMENT
22.1 This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each Party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
23. NO PARTNERSHIP OR AGENCY
23.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
23.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
24. THIRD-PARTY RIGHTS
24.1 Except as expressly provided, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
24.2 The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.
25. NOTICES
25.1 Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or principal place of business; or
(b) sent by email to the following addresses (or an address substituted in writing by the Party to be served):
Client: ________
Builder: ________
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
(c) if sent by email, at the time of transmission, or, if that time falls outside Business Hours in the place of receipt, when Business Hours next resume.
25.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. COUNTERPARTS
26.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
26.2 No counterpart shall be effective until each Party has delivered to the other at least one executed counterpart.
27. DISPUTE RESOLUTION
27.1 The Parties shall attempt in good faith to resolve any dispute arising out of or in connection with this Agreement through negotiation between their respective managers within ________ days of written notice of the dispute.
27.2 Either Party may at any time refer a dispute arising under this Agreement to adjudication in accordance with the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts (England and Wales) Regulations 1998, where applicable.
27.3 Nothing in this clause shall prevent either Party from seeking interim or injunctive relief from a court of competent jurisdiction.
28. GOVERNING LAW
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
29. JURISDICTION
Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
This Agreement has been entered into on the date stated at the beginning of it.
Signed for and on behalf of the Client
Name: ________
Position: ________
Signature: _____________________
Date: ________
Signed for and on behalf of the Builder
Name: ________
Position: ________
Signature: ______________________
Date: ________
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