PROFESSIONAL SERVICES CONTRACT - wavehub.co.uk...enactment and includes any statute, statutory...

1 WHL Professional Services Contract Version 3

PROFESSIONAL SERVICES CONTRACT

in relation to Pembrokeshire Demonstration Zone Feasibility Study []

WAVE HUB LIMITED

[]

(1)

(2)


CONTENTS

1 Definitions ......................................................................................................................... 3

2 The Services ..................................................................................................................... 6

3 The Term .......................................................................................................................... 6

4 The Contractor's Obligations ............................................................................................ 6

5 Representatives................................................................................................................ 8

6 The Contract Sum ............................................................................................................ 8

7 Payment ........................................................................................................................... 9

8 Liability and Insurance ................................................................................................... 10

9 Sub-Contracting.............................................................................................................. 10

10 Copyright .................................................................................................................... 1110

11 Termination ..................................................................................................................... 12

12 Suspension ................................................................................................................. 1312

13 Force Majeure ................................................................................................................ 13

14 Confidentiality ................................................................................................................. 13

15 Third Party Rights ....................................................................................................... 1413

16 Data Protection Act .................................................................................................... 1413

17 Freedom of Information Act ............................................................................................ 14

18 Audit and Document Retention ...................................................................................... 14

19 Conflict of Interest ...................................................................................................... 1514

20 Governing Law ........................................................................................................... 1514


THIS DEED is dated 20172

PARTIES

(1) WAVE HUB LIMITED incorporated and registered in England and Wales with company

number 07875270 whose registered office is at Chi Gallos, Hayle Marine Renewables

Business Park, North Quay, Hayle, Cornwall TR27 4DD ("Client").

(2) [] incorporated and registered in England and Wales with company number [] whose

registered office is at [] ("Contractor").

BACKGROUND

(A) The Client is the seabed leaseholder for the Pembrokeshire Wave Energy

Demonstration Zone off the coast of West Wales.

(B) The Client wishes to understand how feasible it is to develop the Pembrokeshire

Demonstration Zone as a site for testing multiple offshore renewable energy arrays of

up to 30MW each.

(C) The Client wishes to appoint the Contractor on the terms of this Contract to undertake a

[ ● ] study into development of the Pembrokeshire Demonstration Zone.

AGREED TERMS

1 DEFINITIONS

1.1 In this Contract, except where the context otherwise requires, the following words and

expressions have the following meanings:

"Applicable Law" means the laws of England, the European Union and any other laws

or regulations, regulatory policies, guidelines or industry codes which apply to the

provision of the Services (including for the avoidance of doubt, in the case of any part of

the Services taking place outside of the territorial limits of the United Kingdom, the

relevant national laws, international laws and treaties that apply to that territory) and

which are legally binding on a party hereunder.

"Background IPR" means:

(a) any Intellectual Property Rights owned by a party before the date of this

Contract, for example those subsisting in the party’s know how or generic

business methodologies; and/or

(b) Intellectual Property Rights created by a party independently of the Contract.


“Business Days” means a day (other than a Saturday, Sunday or public holiday in

England) when banks in London are open for business.

"Confidential Information" means technical data, know-how, designs, plans,

specifications, methods, processes, controls, systems, trade secrets, recipes, formulae,

research and development data, product complaint and testing information, lists of

customers and suppliers, all other proprietary information relating to development,

engineering, manufacturing, marketing, distribution or accounts, financial statements,

financial forecasts, budgets, estimates, sales information, other financial information

and any other information which is marked as being confidential or would reasonably be

expected to be kept confidential.

"Consents" means any and all permits, licences, consents, accreditations or other

authorisations required by Applicable Law for the carrying out of the Services.

"Contract" means this Contract between the Client and the Contractor, including all

Schedules attached, as the same may be modified or amended from time to time in

accordance with the provisions hereof.

"Contract Sum" means the total fixed price sum of £[] excluding VAT and which

includes all expenses, materials, plant costs and disbursements required for the

provision of the Services.

"Contractor Representative" shall mean that person referred to in Clause 45.1.

"Client Representative" shall mean that person referred to in Clause 45.1.

"Force Majeure" means any act, event, omission or cause or circumstance whatsoever

beyond the reasonable control of a Party, including without limitation, the following:

(a) events outside human control, including earthquakes, flood, windstorm, fog and

other extreme adverse weather;

(b) outbreak of hostilities, riot, civil disturbance, acts of terrorism;

(c) an act of any government or authority;

(d) fire or explosion;

(e) collapse of buildings, power failure, failure of telecommunication lines, failure or

breakdown of plant, machinery or vehicles; and

(f) theft, malicious damage, strike, lock-out or industrial action of any kind.


"Good Industry Practice" means in relation to any undertaking and any circumstances,

the exercise of skill, diligence, prudence, foresight and judgement and the making of

any expenditure that would reasonably be expected from a skilled person engaged in

the same type of undertaking under the same or similar circumstances in relation to any

undertaking and any circumstances, the exercise of skill, diligence, prudence, foresight

and judgement that would reasonably be expected from a skilled person engaged in the

same type of undertaking under the same or similar circumstances.

"Intellectual Property Rights" means any patent, registered design, copyright,

database right, design right, topography right, trade mark and service mark, application

to register and right to the grant of any of the aforementioned rights, trade secret, know-

how and any other intellectual or industrial property right of any nature whatsoever in

any part of the world for the full term of that right (including any extensions).

"Milestones" means a milestone for payment as more particularly set out in Schedule

3 (Milestone Schedule).

“Project” means the [ Pembrokeshire Demonstration Zone Technical Feasibility Study ]

[ Pembrokeshire Demonstration Zone Commercial Viability Study ] [ Pembrokeshire

Demonstration Zone Technical Feasibility Study ].

"Related Agreements" means any agreements (or parts thereof) between the Client

and third parties relating to the Zone and identified in Schedule 2 or as otherwise

provided by the Client to the Contractor in accordance with Clause 3.64.5.

"Services" means those services set out in Schedule 1 and such other services as may

be reasonably incidental thereto.

“Zone” means the Pembrokeshire Demonstration Zone leased by Wave Hub Limited

from The Crown Estate.

1.2 The definitions and rules of interpretation in this clause apply in this Contract.

1.3 In the event of any conflict between the terms and conditions of this Contract and any of

the Schedules, the provisions of this Contract shall prevail.

1.4 The Schedules form part of this Contract and shall have effect as if set out in full in the

body of this Contract. Any reference to this Contract includes the Schedules.

1.5 A reference to a party shall include that party's legal and personal representatives,

successors or permitted assigns.

1.6 A reference to a statute, statutory provision or subordinated legislation is a reference to

it as it is in force from time to time, taking account of any amendment, extension, or re-


enactment and includes any statute, statutory provision or subordinate legislation which

it amends or re-enacts.

2 THE SERVICES

2.1 The Client appoints the Contractor to carry out the Services and the Contractor shall

perform the Services in accordance with the terms of this Contract.

2.2 This Contract takes effect from the date when the Contractor begins performing the

Services, regardless of the date of this Contract.

2.3 Nothing contained in any pre-construction services agreement, letter of intent or any

other agreement between the Parties in relation to the Services shall override or modify

this Contract and this Contract represents the entire agreement of the Parties. To the

extent that the Parties have entered into any letter of intent, pre-construction services

agreement or any other agreement in relation to the Services, any works and services

performed thereunder shall be deemed to have been performed pursuant to and subject

to the terms of this Contract and any sums paid pursuant to such agreements are to be

treated as having been paid as part of the Contract Sum.

3 THE TERM

3.1 The Term of this Contract is [ ● ].

4 THE CONTRACTOR'S OBLIGATIONS

4.1 The Contractor warrants that the Services shall be performed:

(a) in accordance with the terms of this Contract;

(b) by appropriately qualified, competent and experienced staff;

(c) in accordance with all Applicable Law and Consents; and

(d) with such degree of reasonable skill, care and diligence to be expected of an

experienced, competent and professional contractor experienced in the scale

and nature of the services comprised in the Services and in accordance with

Good Industry Practice.

4.2 The Contractor shall, using the degree of care and skill set out in Clause 34.1 above,

perform the Services in such a manner so as to ensure that the Project is completed

within such reasonable financial and time limits as may be notified to the Contractor

from the Client from time to time in writing.

4.3 The Contractor shall provide all equipment associated with the delivery of the Services.


4.4 The Contractor warrants that it shall:

(a) provide the Client (at the Client's reasonable request) with any calculations,

details, drawings, manuals, specifications, layouts and other documents and

information relating to the Services and performance of the Contractor's

obligations under this Contract as the Client may require from time to time;

(b) cooperate and liaise with the Client, the Client's other contractors, consultants,

advisors and any other persons and parties which the Client may identify to the

Contractor from time to time in relation to the coordination, integration and

interface between (a) the design, programmes, works and services to be

performed by such other contractors, consultants, advisors, persons and/or

parties and (b) the Services and the Contractor's performance of its obligations

under this Contract. The Contractor shall comply with all reasonable

instructions issued by the Client in respect of the coordination, integration and

interface of the Services and the Contractor's performance of its obligations

under this Contract with any other goods, works and/or services relating to the

Project;

(c) use all reasonable endeavours to ensure that no delay, interruption or

interference is caused by the Contractor to the Client, the Client's other

contractors, consultants, advisors and/or any other person or party that the

Client may identify to the Contractor from time to time in relation to the Services

and performance of the Contractor's obligations under this Contract;

(d) report to the Client at such intervals as the Client may reasonably require in

relation to the Services and the Contractor's performance of its obligations

under this Contract; and

(e) co-operate with the Client, the Client's other contractors, consultants, advisors

and any other persons and parties which the Client may identify to the

Contractor from time to time to ensure the co-ordination of health and safety

and environmental matters and shall undertake such measures and provide

such reports as the Client may reasonably request from time to time.

4.5 The Contractor shall perform its obligations under the Contract so as not to cause or

contribute to any breach by the Client of any Related Agreements and so as to comply

with the provisions and terms of any Related Agreements.


4.6 The Contractor shall, on reasonable notice from the Client, permit the Client and any of

its representatives and advisers to inspect the performance of the Services from time to

time at a reasonable frequency during normal working hours. The Contractor shall

provide such information and explanations as the Client may reasonably require both

during and after each such visit. In addition, the Client and each of its representatives

and advisors shall have the right to call and to attend meetings with the Contractor on a

reasonable frequency (as agreed between the Parties, each acting reasonably) for the

purposes of getting an update on progress of the Services, such meetings to be held

during normal working hours.

5 REPRESENTATIVES

5.1 The Client Representative shall be [] and the Contractor Representative shall be [] or

such other persons who become the Client Representative and/or Contractor

Representative from time to time in accordance with the provisions of this Clause 45.

5.2 Such representatives, or delegates appointed in accordance with the provisions of this

Clause 45, shall be readily available to enable both the Client and the Contractor to

discharge their obligations under the Contract.

5.3 The Client Representative and any person authorised by them shall have access at all

reasonable times to the site and the Contractor shall afford every facility for and every

assistance in obtaining the right of access.

6 THE CONTRACT SUM

6.1 In consideration for the provision of the Services, the Client shall pay to the Contractor

the Contract Sum.

6.2 The Contract Sum shall not be adjusted or altered in any way other than in accordance

with the express provisions of this Contract.

6.3 The Client may direct the Contractor by written instruction ("Variation Order") to:

(a) perform an additional service to the Services; and/or

(b) vary, omit or cease to perform any part of the Services.

6.4 The Contractor shall diligently comply with any Variation Order in accordance with and

subject to all the terms of this Contract and subject to clause 56.5 below.

6.5 If the effect of a Variation Order is to increase or decrease the Contractor's costs of

performing and providing the Services in accordance with this Contract the Contractor

shall provide an estimate of such variation to the Contract Sum to the Client for


consideration. The Contract Sum shall be adjusted by such fair and reasonable amount

as may be calculated by reference to the existing Contract Sum ("Variation Fee").

6.6 The Contractor shall only proceed with the Variation Order (and be entitled to payment

of the Variation Fee) once the Variation Fee has been agreed in writing by the Client

and a purchase order issued in respect of the Variation Fee.

7 PAYMENT

7.1 The Contractor may on the last working day of the month, submit an invoice for the

Milestones completed. The invoice shall specify the Milestones completed and the

amount the Contractor considers will become due on the due date for payment and the

basis upon which that sum is calculated.

7.2 The invoice shall be accompanied by a valid VAT invoice together with any reasonable

supporting information and the valid purchase order number.

7.3 The due date for payment of the invoice will be 30 (thirty) days after receipt of the valid

VAT invoice (the ”Due Date for Payment”).

7.4 The Client shall not be under any obligation to make any payment to the Contractor

unless and until it receives from the Contractor the Contractor's valid VAT invoice and a

copy of this Contract signed by or on behalf of the Contractor.

7.5 No later than 5 days after the Due Date for Payment the Client may notify the

Contractor of the sum that the Client considers to have been due at the Due Date for

Payment in respect of the payment and the basis upon which that sum is calculated.

7.6 In respect of any payment, the final date for payment shall be 25 days after the Due

Date for Payment (the "Final Date for Payment").

7.7 Unless the Client has served a notice under clause 77.86.8 below, it shall pay the

Contractor the sum referred to in the Client's notice under clause 77.56.5 above (or, if

the Client has not served such a notice, the sum referred to in the invoice issued by the

Contractor) ("Notified Sum") on or before the Final Date for Payment.

7.8 Not less than two days before the Final Date for Payment, the Client may give the

Contractor notice that it intends to pay less than the Notified Sum. Any such pay less

notice shall specify:

(a) the sum that the Client considers to be due on the date the pay less notice is

served; and

(b) the basis upon which that sum is calculated.


For the avoidance of doubt, the Client shall be permitted to deduct such sums from the

Contract Sum which are reasonable and commensurate to the failure of the Contractor

to perform the Services in accordance with the Contract.

7.9 The Contractor shall maintain detailed records of the time spent in performing the

Services.

7.10 Notwithstanding any other provision of this Contract, the Client shall be under no

obligation to make a payment for the Services in respect of any invoices received six (6)

months after completion of the Services.

8 LIABILITY AND INSURANCE

8.1 Save as provided in this Agreement, the Contractor shall be liable for any loss, liability

or costs (including reasonable legal costs) incurred by the Client in connection with the

provision of the Services.

8.2 The Contractor’s liability in the case of any liability under this Agreement in respect of

which it is obliged to maintain insurance pursuant to clause 8.3, shall be limited to the

amount insured for that liability.

8.18.3 The Contractor shall maintain in force at the Contractor's own cost such insurance

policies as are appropriate and adequate having regard to the Contractor's obligations

and liabilities under this Contract including, but not limited to:

(a) Professional indemnity insurance of a minimum of £2,000,000 (two million

pounds) for each and every claim throughout the performance of the

Contractor's obligations under this Contract and for 6 years following

completion of the Services.

(b) Public liability insurance throughout the performance of the Contractor's

obligations under this Contract for a minimum sum of £2,000,000 (two million

pounds) for each and every claim.

8.28.4 Whenever the Client reasonably requests, the Contractor shall provide evidence that

the above insurances are in force and copies of the relevant insurance schedules.

9 SUB-CONTRACTING

9.1 [The approved sub-contractors are as set out in the Contractor’s Tender attached at

Annex 1.]

9.2 No [other] sub-contractors are to be used, including Counsel. by the Contractor without

prior written approval from the Client.


9.3 The Contractor may not assign or charge any part of this Contract. The Client shall be

entitled to assign or transfer this Contract without the consent of the Contractor.

10 COPYRIGHT

10.1 Except as set out in this Contract, neither the Client nor the Contractor shall acquire any

right, title or interest in or to the Intellectual Property Rights of the other party or its

licensors including the other party’s Background IPR.

10.2 Subject to Clause 109.1, any Intellectual Property Rights arising in the deliverable items

specified in Schedule 1 created by or on behalf of the Contractor in the performance of

its obligations under the Contract shall vest in the Client on creation. The Contractor

hereby assigns (by way of present and, where appropriate, future assignment) all such

Intellectual Property Rights with full title guarantee to the Client to the fullest extent

permitted by the Applicable Laws. Intellectual Property Rights in the Results of the

Services, comprising all deliverable items set out in the Scope, shall belong to the

Client.

10.3 The Contractor shall do and execute, or arrange for the doing and executing of, each

necessary act, document and thing that the Client may consider necessary or desirable

to perfect the right, title and interest of the Client in and to such Intellectual Property

Rights.

10.4 The Contractor shall:

(a) procure the irrevocable waiver of all applicable moral rights in materials and

documentation assigned to the Client under Clause 109.2;

(b) ensure that records are maintained which are sufficient to provide evidence of

the process of independent creation of any information, know how, drawings,

designs, documents and materials containing Intellectual Property Rights and

which are assigned to the Client under Clause 109.2; and

(c) be responsible for ensuring that written agreements are entered into with, and

adhered to by, sub-contractors engaged in the performance of the Contract and

that, unless otherwise agreed with the Client in writing in advance, the terms of

engagement of such sub-contractors are consistent with, and enable the

Contractor fully to comply with, the provisions set out in this Contract, including

this Clause 109.

10.5 Where under Clause 109.2 Intellectual Property Rights vest in the Client, the Client may

at its sole discretion give the Contractor a royalty free, non-exclusive, non-transferable,

licence to use such right which shall not be sub-licensed.


10.6 The Contractor hereby grants the Client a non-exclusive, irrevocable, transferable,

royalty free licence to use the Contractor's Background IPR to the extent necessary to

make full use and enjoyment of any Intellectual Property Rights assigned under Clause

109.2 and for the design, construction, completion, reconstruction, modification,

refurbishment, development, operation, maintenance, alteration, adjustment, repair,

funding, disposal, letting, fitting-out, advertisement, demolition, reinstatement, extension

and repair of the Project.

10.7 The Contractor shall save, indemnify, defend and hold harmless the Client from all

claims, losses, damages, costs (including legal costs), expenses and liabilities arising

from any claims (and/or proceedings) that:

(a) the Client has infringed any third party Intellectual Property Rights as a result of

its use of the Contractor's Background IPR or any other information or materials

provided by the Contractor; or

(b) any Intellectual Property Rights assigned under Clause 109.2 infringe any third

party’s Intellectual Property Rights.

11 TERMINATION

11.1 This Contract may be terminated immediately by the Client if the Contractor:

(a) commits any material breach of its obligations under this Contract and which (in

the case of a breach capable of being remedied) shall not have been remedied

within 20 Business Days of a written request by the Client to remedy it; or

(b) becomes bankrupt or insolvent, go into liquidation or administration or takes

any formal step (including the passing of a board or members’ resolution or

issue of any notice of intention to appoint) with a view to placing the Contractor

into liquidation or administration, has a receiving order made against it or

receiver appointed over any material part of its assets, compounds with its

creditors or institutes or proposes any voluntary arrangement or scheme of

arrangement with its creditors, or carries on business under a receiver, trustee

or manager for the benefit of its creditors, or if any act is done or event occurs

which (under Applicable Laws or any other laws relevant to the country where

such parties are registered) has a similar effect to any of these acts or events.

The term “insolvent” for the purposes of giving effect to the rights of the Client

under this clause shall have the meaning given to it in Section 123 of the

Insolvency Act 1986.

11.2 The Client may terminate the Contractor's engagement under the Contract at any time

for the Client's convenience by giving 5 days' notice in writing to the Contractor. In the


event of such termination for convenience by the Client, the Client shall pay any part of

the Contract Sum which is due and payable to the Contractor up to the date of

termination.

11.3 Any termination of the Contract pursuant to this clause 10.1 or clause 132 shall be

without prejudice to any other rights or remedies a party may be entitled to under the

Contract or at law and shall not affect any accrued rights or liabilities of either party not

the coming into or continuance in force of any provision of the Contract which is

expressly or by implication intended to come into or continue in force on or after such

termination.

12 SUSPENSION

12.1 The Contractor shall on the receipt of 20 Business Days' written notice from the Client

suspend the whole of the Services or any part thereof and shall take all measures

necessary to protect and secure the same. The Client may at any time by written notice

to the Contractor authorise the Contractor to resume all or any part of the suspended

Services and the Contractor shall, on being given such notice, promptly resume

performance of the Services or part thereof in accordance with the terms of the notice.

12.2 The Contractor shall not be entitled to any payment, costs or expenses during any such

period when the Services have been suspended, or arising out of any such suspension.

13 FORCE MAJEURE

13.1 Neither party to the Contract shall be liable for any breach of its obligations under the

Contract resulting from Force Majeure.

13.2 If a default due to Force Majeure shall continue for more than 30 days then the party not

in default shall be entitled to terminate the Contract. Neither party shall have any

liability to the other in respect of the termination of the Contract as a result of such an

event.

14 CONFIDENTIALITY

14.1 The Contractor must not release, or permit the release, of or use or exploit for its own

purposes or those of any other person any Confidential Information concerning the

business, affairs, customers, clients or suppliers of the Client for any purpose other than

in the proper performance of its obligations under this Contract, except as required by

the Applicable Laws, court order or any governmental or regulatory authority.

14.2 The Contractor shall only make such records of the Confidential Information disclosed

to it by any other party (including the Client) as are necessary for the proper

performance of its obligations under this Contract and shall clearly mark all records as


confidential provided that an omission to mark records as confidential does not mean

that such records do not constitute Confidential Information.

14.3 The Contractor shall take all necessary and proper security precautions (and at least as

great as those it takes to safeguard its own confidential information) to safeguard every

part of the Confidential Information disclosed to it by the other party to prevent it from

being disclosed or otherwise made available to any third party except as permitted by

this Contract.

15 THIRD PARTY RIGHTS

A person who is not a party to this Contract shall have no right under the Contracts

(Rights of Third Parties) Act 1999 to enforce any terms of this Contract.

16 DATA PROTECTION ACT

The Contractor shall comply with the provisions of the Data Protection Act 1998

("DPA") and shall do everything that the Client may reasonably request for the purpose

of enabling the Client or the Contractor to comply with the DPA. Where the Contractor

processes personal data on the Client's behalf, the Contractor shall comply with the

Client's instructions and shall employ technical and organisational measures which are

at least sufficient to avoid the Client being in breach of its obligations under the Seventh

Data Protection Principle of the Act.

17 FREEDOM OF INFORMATION ACT

The Contractor acknowledges that the Client is subject to the requirements of the

Freedom of Information Act 2000 (the "Act") and related legislation and the

Environmental Information Regulations 2004 (the "Regulations") and the Contractor

shall assist and cooperate with the Client to enable it to comply with its information

disclosure requirements. The Client shall, if required to do so, make all information

regarding these Services accessible to public scrutiny. The Contractor acknowledges

that the Client may disclose information without consulting the Contractor where

required to do so under the Act and/ or the Regulations.

18 AUDIT AND DOCUMENT RETENTION

18.1 During the course of these Services and for a period ending ten (10) years after

completion, the Client or its duly authorised representative shall have the right to audit

at all reasonable times and, upon request, take copies of all the Contractor’s records

relating to:

(a) All invoiced charges made by the Contractor on the Client; and


(b) Any provision of this contract under which the Contractor has obligations the

performance of which is capable of being verified by audit.

18.2 The Client and the Contractor shall keep all documents and data including that which is

stored on computers related to the contract for a period of six (6) years after completion

of the Services.

18.3 The Contractor acknowledges that the Client is receiving grant funding from [ ● ] in

respect of which a funding agreement has been entered into. The Contractor shall

retain and produce to the Client copies of all documents and records which the Client is

required to provide under the funding agreement.

19 CONFLICT OF INTEREST

Contractor shall advise the Client immediately if the Contractor accepts or intends to

accept instructions from, or take up an engagement with, another party that might lead

to a conflict of interest.

20 GOVERNING LAW

This appointment is governed by English law, and the parties submit to the jurisdiction

of the English courts in relation to this Contract.

EXECUTED as a DEED for and behalf of

WAVE HUB LIMITED acting by:

......................................................

[SIGNATURE OF DIRECTOR]

Director

...................................................


Director

EXECUTED as a DEED for and behalf of

[CONTRACTOR] acting by:

................................................



Director

...................................................


Director/Company Secretary


Schedule 1

Services


Schedule 2

Related Agreements


Schedule 3

Milestone Schedule

PROFESSIONAL SERVICES CONTRACT - wavehub.co.uk...enactment and includes any statute, statutory...

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Transcript of PROFESSIONAL SERVICES CONTRACT - wavehub.co.uk...enactment and includes any statute, statutory...