Reference: C625 SUDS MA3
Model agreements for sustainable water management systems
Private SUDS Model Agreement
Dated [ 20 ]
BETWEEN
- [(Name)] (“the Maintainer”)
Name
Address
Telephone
VAT registration number
Email or internet address
- [(Name)] (“the Customer”)
Name
Address
Telephone
Email or internet address
1Definitions
The following terms shall have the following meanings:
1.1Maintenance Services means the Works contained in the Schedule hereto.
1.2Maintenance Charges means the annual sum of £ [ ] save as varied by clause 3.3.1.
1.3Commencement Date means the [ day of 20 ].
1.4SUDS is the drainage infrastructure to be maintained as defined in Section 1 of Schedule 1.
2Maintenance Services
2.1The Maintainer will provide to the Customer the Maintenance Services in respect of the SUDS on the following terms and conditions.
2.2The Maintenance Services will be provided between [08.45 and 17.00] Monday to Friday excluding public, bank and local holidays.
2.3The Maintainer will respond promptly and in any event within [72] hours of notification of a request for additional services.
2.4In the event of any conflict between this agreement and the Maintainer’s Standard Conditions of Sale this agreement and the provisions herein shall take precedence.
2.5The Maintenance Services will not extend to modifications or additions to the SUDS.
2.6The Maintainer will notify the Customer at least 24 hours prior to undertaking Maintenance Services on site.
2.7The first maintenance visit should be within [ ] weeks of the Commencement Date.
3Maintenance Charges
3.1Maintenance Charges are payable annually in advance on or before the Commencement Date and each anniversary of it.
3.2Additional Services (including emergency visits outside the hours specified in 2.2 above) will be the subject of extra charges in accordance with the Maintainer’s usual terms then in force.
3.3The Maintainer may:
3.3.1adjust its Maintenance Charges by written notice not later than 30 days before any anniversary of the Commencement Date; and
3.3.2if the Customer does not pay the adjusted Maintenance Charges within 30 days of the due date terminate this contract immediately and without notice.
4The Maintainer’s Obligations
4.1To perform the Maintenance Services in a proper, diligent and workmanlike manner using properly maintained and appropriate equipment and employing only competent persons to fulfil these Services.
4.2To indemnify and keep indemnified the Customer from and against any and all loss, costs, damage or liability (whether criminal or civil) suffered by the Customer or any third parties resulting from a breach of this agreement by the Maintainer including any act neglect or default of the Maintainers employees or agents.
4.3To remedy any breach of the provisions of this agreement of which they are aware.
5The Customer’s Obligations
In consideration of the Maintenance Services rendered by the Maintainer under this agreement the Customer agrees to:
5.1Pay the full Maintenance Charge promptly;
5.2Provide access to the Maintainer to enable the Maintenance Services to be carried out;
5.3Not make any addition or significant modification to the SUDS without the Maintainer’s prior written consent;
5.4Maintain all ancillary drainage and pipework systems to and from the SUDS.
6Commencement and term of the agreement
This agreement takes effect from the Commencement Date and remains in force until it is terminated on the anniversary of the Commencement Date or by not less than 30 days’ prior written notice by either party to the other.
7VAT
7.1All sums payable under this agreement unless otherwise stated are exclusive of VAT and other duties or taxes.
7.2Any VAT or other duties or taxes payable in respect of such sums shall be paid by the Customer in addition to such sums.
8Termination
Either party may at any time by written notice (in addition to any other rights) terminate this agreement [or suspend his performance of all or any of his obligations under it] immediately and without liability for compensation or damages if:
8.1The Customer fails to comply in all material respects with this agreement;
8.2The Maintainer fails to observe any obligation under this agreement;
8.3Either party dies, becomes bankrupt, has a receiving order made against him, makes any arrangement with his creditors generally or takes or suffers any similar action as a result of debt, unless agreed as a variation under Clause 20.1;
8.4Either party convenes a meeting of its creditors or suffers a petition to be presented or a meeting to be convened or other action to be taken with a view to its liquidation except with the written approval of the other for the purposes of and followed by amalgamation or reconstruction;
8.5A receiver or administrative receiver is appointed of any of either party’s property;
9Termination consequences
9.1On termination of this agreement the Maintainer shall within 30 days produce a final account which shall be based on the following:
- if no Maintenance Visits have been carried out the Customer shall be entitled to a full refund of the annual maintenance charge;
- if Maintenance Visits have been carried out the Customer shall be entitled to a refund of the annual maintenance charge for the number of remaining Maintenance Visits pro rata;
- all arrears and any other sums due to the Maintainer from the Customer under the terms of this agreement.
9.2All payments from one party to the other shall be made within 30 days of receipt of the final account.
9.3Either party shall be entitled to exercise any one or more of the rights or remedies given to it under the terms of this agreement. The termination of this agreement shall not affect or prejudice such rights and remedies and each party shall be, and remain, liable to perform all outstanding liabilities under this agreement notwithstanding that the other may have exercised one or more of the rights and remedies against it.
9.4Any right or remedy to which either party is, or may become, entitled under this agreement may be enforced separately or concurrently with any other right or remedy given by this agreement or provided for and arising by operation of law, so that such rights and remedies are not exclusive of the other or others but are cumulative.
10Discretion
Any decision, exercise of discretion, judgment or opinion or approval of any matter mentioned in this agreement, or arising from it, shall be binding on a party only if it is agreed in writing by both parties and shall be at its sole discretion unless otherwise expressly provided in this agreement.
11Change of address
Each of the parties shall give notice to the other of the change of any address or telephone telex or similar number at the earliest possible opportunity but in the event within 48 hours of such change or acquisition.
12Notices
12.1Any demand or notice given under this agreement shall be in writing and may be served:
- in person,
- by Registered or Special Delivery post,
- by facsimile transmission (confirmed by post), or
- by any other means which any party specifies by notice to the others.
12.2Each party’s address for the service of notice shall be its above mentioned address or such other address as it specifies by notice to the others.
12.3A notice shall be deemed to have been served:
- if it was served in person, at the time of service,
- if it was served by post, 24 hours after it was posted, and
- if it was served by facsimile transmission, at the time of transmission.
13Proper law and jurisdiction
The law applicable to this agreement shall be English law and the parties consent to the jurisdiction of the English courts in all matters affecting this agreement.
14Interest
All sums due from either of the parties to the other which are not paid on the due date (without prejudice to the rights of the Maintainer under this agreement) shall bear interest from day to day at the annual rate of […] % over the [daily] base lending rate of [(name)] Bank plc with a minimum of […] % per year.
The receipt of money by either of the parties shall not prevent either of them from questioning the correctness of any statement in respect of such money.
15Force majeure
If the performance of this agreement or any obligation under it is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the party obliged to perform it, the party so affected (upon giving prompt notice to the other party) shall be excused from performance to the extent of the prevention, restriction or interference, but the party so affected shall use their best endeavours to avoid or remove the causes of non-performance and shall continue performance under this agreement with the utmost despatch whenever such causes are removed or diminished.
16Whole agreement
Each party acknowledges that this agreement contains the whole agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
17Arbitration
All disputes or differences which at any time arise between the parties, whether during the Term or afterwards, concerning this agreement shall be referred to a single arbitrator to be agreed upon by the parties, or, in default of agreement, to be nominated by the President for the time being of the [Chartered Institution of Arbitrators] in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of it for the time being in force.
18Sub-contracting
18.1The Maintainer reserves the right to assign the Contract and to sub-contract all or any of its obligations subject to the prior written consent of the Customer.
18.2This agreement is personal to the Customer who may not without the Maintainer’s prior written consent:
- assign or dispose of it;
- part with any interest in it; or
- grant any lease or licence or delegate any of the rights conferred by it.
19Third party rights
19.1No person other than the Maintainer and the Customer shall acquire any enforceable rights under or in connection with this agreement.
20Variation
20.1No variation or amendment of this agreement or oral promise or commitment related to it shall be valid unless committed to in writing and signed by or on behalf of both parties.
Signed [for and on behalf of the Maintainer]………………………………………………………..
Name...………………………………
Date…………………………………
Signed [Customer]……………………………………………………………………………………
Date…………………………………
Schedule 1 – Maintenance services
1Details of the SUDS
1.1The SUDS to be maintained are described in the table below;
Name of SUDS and reference / Location / Drainage details(inlet/outlet etc)
Any drawings, specifications or other construction information related to the SUDS should be appended to Schedule 1 and recorded in the table above.
2Health, safety and environment
2.1The Maintainer shall take due regard for all Health and Safety legislation that applies to the maintenance work. The following are considered as particularly important but the list is not exhaustive:
- Risk Assessments should be carried out for all aspects of the maintenance work, including electrical and micro-biological hazards and entry to confined spaces
- The storage and use of any chemicals that are subject to Control of Substances Hazardous to Health Regulations 1999 or other safety regulations
2.2The Maintainer shall take the following site-specific precautions with relation to Health and Safety:
2.3The Maintainer shall take due regard for all environmental legislation that applies to the maintenance work.
2.4The Maintainer will make arrangements to dispose of all material removed from the system in accordance with applicable legislation at no additional cost to the Customer.
3The maintenance services
The maintenance services for each SUDS type are set out in the table below.
Name of SUDS / reference no (refer to Section 1 above)Activity / Frequency / Tasks required
CIRIA C625MA3 / 1