Contract

TO LETTER OF FEE PROPOSAL STANDARD CONDITIONS OF CONTRACT 1. These Standard Terms & Conditions (hereinafter referred to as the “STC”) form part of the Letter of Fee Proposal between the Client and Web Structures Pte Ltd (“WSPL”) (hereinafter the “Agreement”) who are hereinafter individually referred to as “a Party” and collectively as “the Parties”. b. c. d. DEFINITIONS e. 2. Unless the subject or the context otherwise requires, the following expressions bear the following meanings, namely: “Additional Services” f. required because of changes in the Project including size, quality, complexity, the Client‟s schedule, the Clients‟ budget or the method of tender or form of contract and method of contract procurement for construction; required due to errors or omissions in the services of any other consultant working for the Client; required by the enactment or revisions to codes, laws or regulations subsequent to the preparation of such documents; due to changes required as a result of the Client‟s failure to render decisions in a timely manner; or required to reduce the costs of the Project to comply with previous cost estimates or Project budgets, including value engineering. : As defined in clause 4 herein, including but not limited to services mentioned in clause 6herein. The agreement between WSPL and the Client for provision by WSPL of professional services for the Project. The Project Architect Party who has appointed WSPL to provide the professional services, as named in the Letter of Fee Proposal. The final certificate of payment issued by the Architect. As defined in clause 45 herein. 6. Further, the following activities after the issuance of construction documents shall be considered Additional Services: a. preparing any changes to the Instruments of Service or preparing other documentation, analysis and supporting data, evaluating contractors‟ alternative design proposals, and providing other services in connection with variation orders and Construction Change or Extra Work Directives. providing services in connection with evaluating substitutions or alternatives proposed by a contractor, the Client or others; providing services made necessary by the default or termination of a contractor by defects or deficiencies in the construction of the Project or by the failure of performance on the part of the Client, any contractor or others performing services or Work in connection with the Project; providing services in connection with claims submitted by any contractor or others performing services or providing Work on the Project; providing services in connection with the preparation for legal proceedings or attendance at public hearings or other meetings; providing services when submittals are reviewed prior to receiving a submittal schedule, reviewing submittals out of sequence, or if more than two reviews are required of any submittal; providing services in responding to unnecessary, excessive or unreasonable requests for information submitted by the Client, any contractor or others who are performing Work or supplying materials in connection with the Project; providing any services required by the Client after the earlier of the issuance of the Final Certificate for Payment or sixty (60) days after Substantial Completion was originally scheduled; providing services that are not customarily provided by an engineer as basic services on projects of similar size, complexity and scope as the Project and which have not been set forth as Normal or Additional Services in this Agreement; providing "fast track” services; segregating tender packages for pricing and award of contracts for the construction of the Project; and providing As-Built Drawings. “Agreement” : “Architect” “Client” : : b. c. “Final Certificate” “Force Majeure” “Instruments of Service” “Letter of Fee Proposal” “Normal Services” “Programme” “Project” : d. e. : As defined in clause 11 herein. f. : Letter from WSPL to the Client with the subject header “Letter of Fee Proposal” in respect of the Project As defined in clause 3 herein. h. : : As defined in clause 19 herein. The Project in respect of which WSPL has been engaged by the Client to provide professional services Standard Terms and Conditions. Web Structures Pte Ltd l. i. g. : “STC” “WSPL” : : j. k. CARE AND DILIGENCE WSPL’S SCOPE OF SERVICES, FUNCTIONS, DUTIES AND OBLIGATIONS 3. The scope of services, functions, duties and obligations to be undertaken by WSPL are set out in Appendix 1 to the Letter of Fee Proposal (the “Normal Services”). WSPL will perform the Normal Services and such further functions and duties as may be necessary in conjunction therewith or ancillary thereto. Any other services provided by WSPL apart from the Normal Services shall be deemed Additional Services. Without prejudice to the generality of the foregoing, it shall be an Additional Service if WSPL is requested prior to issuance of construction documents to make any revisions in the Instruments of Service when such revisions are: c. a. inconsistent with approvals or instructions previously given by the Client; 7. WSPL shall discharge its functions, duties and obligations hereunder so as to ensure that the services provided are in all respects adequate. WSPL shall:a. b. exercise all reasonable skill, care and diligence in performing the Normal Services; design according to the technical regulations and standards of the jurisdiction where the Project is located and the relevant internationally-recognized standards, save that where the Client appoints an independent local registered/professional engineer, such local registered/professional engineer (and not WSPL) shall be responsible for checking and/or ensuring that WSPL‟s designs and/or proposals comply with local laws, regulations and standards, and for obtaining approvals from the relevant local authorities. provide all expert and technical advice and skills which are normally required in conjunction with, and incidental and ancillary to, the Normal Services; 4. 5. d. comply with the directions and/or instructions of the Client provided that the same do not change the scope or time for OWNERSHIP OF DOCUMENTS AND COPYRIGHT e. f. g. performance of the Normal Services; comply with all relevant Acts of Parliament, subsidiary legislation, laws, by-laws and with all rules, regulations, directions, orders and guidelines of the competent authorities, except where appropriate waivers have been obtained from the competent authorities; amend any errors or omissions in its design and in its documents at its own costs. The Client and WSPL agree that the plans, specifications, reports, opinions, letters and/or deliverables prepared by or for WSPL relating to its professional services for the Project, while consistent with the standard of care defined above, may contain errors, omissions, and inconsistencies (collectively “errors”) at the time they are provided to the Client. WSPL shall not be responsible for the cost of any abortive, remedial, or rectification work arising from, necessitated by and/or ancillary to, any such errors. exercise all reasonable skill, care and diligence expected of a Consulting Civil and Structural Engineer in a manner consistent with the standard of care for the proper development and completion of a project similar in nature, size, complexity and all other aspects to the Project. 11. The plans, designs, drawings, specifications, reports, opinions, letters and/or other deliverables prepared by, for or on behalf of WSPL, in any medium, including graphic and pictorial representations, which relate to its services for the Project and shall include but not be limited to engineering designs, details, schedules, diagrams and written descriptions which set forth the design intent of the Project (the “the Instruments of Service”) including any copyright or any other intellectual property rights therein shall remain the property of WSPL. Provided WSPL is fully compensated for its services and expenses on the Project, WSPL will allow the Client to use the Instruments of Service for the construction of the Project and/or for operation, modification and maintenance of the Project after its completion and in such event, the Client agrees not to hold WSPL liable for any revision, addition to, alteration or deviation from the Instruments of Service which take place after the completion of WSPL‟s services under the Agreement or the earlier termination thereof in accordance with the Agreement. To the fullest extent permitted by law, the Client shall indemnify and hold harmless WSPL, its officers, directors, shareholders, partners, principals, agents, employees, consultants, successors and assigns from and against all liability, loss, damage, costs and expenses including legal fees and disbursements, which any of them may at any time sustain or incur by reason of any revision, addition to, alteration to, misuse or deviation from the Instruments of Service occurring after WSPL‟s completion of its services under the Agreement or earlier termination of the Agreement by or on behalf of the Client. Nothing herein shall prevent or limit WSPL‟s right to include photographic or artistic representations of the design of the Project among its promotional and educational material including WSPL‟s website or elsewhere. 12. CLIENT’S RESPONSIBILITIES 8. The Client shall provide the following to WSPL:a. b. Full information identifying the Client‟s requirements for and limitations on the Project; A representative who is authorised to act on the Client‟s behalf pertaining to the Project. Such representative shall give decisions in a timely manner in respect of all requests and/or documents submitted by WSPL; A periodic update to the budget for the Project with the understanding that the same shall not be materially changed and shall not significantly increase or decrease without prior agreement of WSPL; Tests, inspections and reports required by law or by the Agreement including, but not limited to, chemical tests for hazardous materials; All legal, insurance and accounting services, including auditing services that the Client determines necessary to address its needs and interests relating to the Project; All fees necessary for securing the approval of authorities having jurisdiction over the Project; Prompt written notice to WSPL if the Client becomes aware of any fault or default on WSPL‟s part or any defect in relation to the Project; Recognition that there will be changes and additions to engineering drawings during construction as a result of field conditions or unanticipated developments and that the Client shall establish a design and construction contingency fund after discussion with WSPL to cover additional costs which may result from such changes and addition; and If applicable the Client shall review and approve submission for each phase of the work in a timely manner and shall authorise WSPL in writing to proceed with each succeeding phase. c. PUBLICITY MATERIAL 13. WSPL shall be entitled without exception to use its association with the Project, the Client and the other consultants employed by the Client on the Project for marketing purposes as appropriate to the services provided under the Agreement. Any site signage erected by the Client or other parties involved in the Project, Project literature, website or similar such advertising is to acknowledge WSPL with respect to the services provided under the Agreement. Where appropriate, WSPL will make available without charge appropriate site signage. d. e. 14. f. g. h. WARRANTY 15. WSPL gives no express and/or implied warranty and/or guarantee whatsoever to the Client. All warranties and guarantees including warranty of merchantability or warranty of fitness for particular purpose are expressly disclaimed. i. PROFESSIONAL INDEMNITY INSURANCE 16. In relation to the services to be provided by WSPL under the Agreement, WSPL will arrange and keep in force Professional Indemnity Insurance relating to its professional services during the currency of this Project. The limit of WSPL‟s Professional Indemnity insurance is S$2,000,000.00. ADDITIONAL SERVICES 9. Additional Services will be provided by WSPL at the Client‟s request on the condition that additional fees in payment thereof shall be paid to WSPL based on WSPL‟s hourly rates. Such hourly rates may be adjusted by WSPL annually in accordance with WSPL‟s standard practice. In the alternative the Client and WSPL may agree on fixed lump sum fees for specific Additional Services. However in no event shall WSPL be compelled or required to perform what it deems to be an Additional Service unless the Client provides the appropriate written instruction. COMMENCEMENT, COMPLETION, PROGRAMME AND DELAY 17. WSPL will commence the Normal Services on the date of commencement as notified by the Client in writing or as stipulated in the Agreement. WSPL will render the Normal Services under this Agreement until the Project is completed and the Final Certificate issued by the Architect. The Project shall be deemed to be completed upon the expiry of the Maintenance Period of the final contract in connection with the Project or the issuance of the Certificate of Statutory Completion for the Project by the Building and Construction Authority or the issuance of the Final Certificate by the Architect, whichever is the latest. WSPL will plan, execute and complete the Normal Services within the period in accordance with the programme presented by WSPL to the Client (the “Programme”). WSPL‟s Programme will incorporate services to be carried out by other consultants and reflect the important milestones and activities for items of services to be delivered by the other consultants in connection with the Project. The Programme shall be implemented only upon the written approval by the Client (such approval not to be unreasonably withheld or delayed). The Client shall observe and comply with the Programme, to the extent it requires or envisages any comment, rejection or approval being given within a particular period of time or by a particular date or milestone event. In the event that WSPL‟s ability to meet any of its specific milestone dates in 18. REVIEW SERVICES 10. In the event that WSPL performs any observation or review services pursuant to the Agreement at the request of the Client, either prior to, during or after completion of the Project, such services will be performed solely for the purpose of attempting to determine general conformity or compliance of the work performed by others with the contract plans and specifications. Although WSPL will follow standard practices and procedures, as appropriate under the circumstances, WSPL may nevertheless fail to detect non-conformity or noncompliance. In the absence of gross negligence and without prejudice to the limitations herein, WSPL shall not be liable to the Client for any economic or other consequences arising from such undetected nonconformity or non-compliance, or their subsequent correction. WSPL‟s services under the Agreement do not extend to or include the review or site observation of a contractors‟ work or performance and WSPL shall not be responsible to reject or stop the work of any employee or agent of the Client. 19. 20. the Programme is adversely affected by the actions of the Client, construction manager, any contractor or other third parties, then WSPL‟s TERMINATION AND SUSPENSION liability for failing to meet such milestone date shall be reduced to the extent the delay is caused by the actions or failure to act of others. 31. INSTRUCTIONS AND PROCEDURES 21. WSPL will, subject to prevention, disruption or delay by reason of force majeure, comply with all instructions of the Client in a diligent and timely manner so far as they are applicable to the Project. WSPL will comply with the procedures and requirements set out in the Agreement and with any general instruction on procedure issued by the Client to WSPL. Nothing in the STC will limit the responsibility of WSPL in connection with the functions, duties and obligations as assumed by WSPL under the Agreement unless WSPL is acting in accordance with an instruction issued by the Client. If WSPL is or will be prevented from, disrupted in or delayed in executing and completing the Normal Services by reason of force majeure or any cause beyond the reasonable control of WSPL, the period within which the Normal Services are to be completed shall be extended by a period equivalent to the duration of the delay (and WSPL shall revise its Programme accordingly). 32. Without prejudice to any other rights and remedies WSPL may possess under this Agreement or at common law, WSPL will notify the Client in writing if it considers that the Client is in breach of the Agreement, stating the reasons for that view and requiring the Client forthwith to take such action as WSPL considers necessary to remedy the default. In the event that the Client does not remedy such default within a period of fourteen (14) days from the date of such notice from WSPL, WSPL will thereupon be entitled, by a further notice in writing to the Client, to terminate the Agreement forthwith. Without prejudice to Clauses 31 and 32 above and WSPL‟s rights under common law, WSPL may terminate the Agreement forthwith if any of the following events occur: a. b. c. d. e. f. g. h. i. The Client becomes insolvent or bankrupt or makes a scheme of arrangement or composition with its creditors; Any petition or application to wind-up or appoint a judicial manager or receiver and/or manager over the Client is filed; Any resolution to wind-up the Client is passed; Any receiver and/or manager is howsoever appointed over the Client; The Client fails to make payment to WSPL in accordance with the Agreement. The death, insanity or other legal incapacity of the Client (where Client is a sole proprietor); Any execution is levied against the Client and/or its property; or Where the Client is a partnership or firm, a receiving order is made against the Client; and If the Project is postponed or abandoned in whole or in part by the Client during any stage of Normal Service as set out in Clause 34 below. If the Project and/or WSPL‟s services are suspended, and the suspension continues for a period of more than sixty (60) calendar days. 22. 33. 23. PAYMENT AND REIMBURSABLES 24. The Client will reimburse WSPL for expenses and/or disbursements incurred in relation to activities stated in Appendix 2 to the Letter of Fee Proposal. MODE AND TERMS OF PAYMENT j. 25. The Client shall make payments to WSPL in accordance with the provisions of the Payment Schedule for Consulting Civil and Structural Engineering Services in Appendix 3 to the Letter of Fee Proposal. All payments due to WSPL shall be paid in full within thirty (30) days from the date they fall due. Interest shall accrue on any outstanding payments due to WSPL after 30 days from the date they become due, at the rate of 1.5% per month. In the event that legal proceedings are commenced by WSPL in order to recover any outstanding payments due to WSPL, WSPL shall be entitled to recover on an indemnity basis against the Client any and all legal fees and any other costs expended in respect of such legal proceedings. Any monies recovered by the Client from its own clients in payment of services rendered by WSPL shall be deemed to be held in trust for WSPL. The Client shall not under any circumstances have the right to set off any payments due or owing to WSPL. Full and timely payment by the Client of monies due to WSPL shall be a condition precedent to WSPL‟s obligation of performance under the Agreement. POSTPONEMENT, ABANDONMENT OR SUSPENSION OF SERVICES 26. 34. Without Prejudice to Clause 33 above, if the Project is postponed or abandoned in whole or in part during any stage of Normal Service, WSPL shall be paid for the Normal Service performed, reimbursements of all expenses up to the date of the termination of the Agreement or of receipt of the postponement/abandonment notice (if the Agreement is not terminated by WSPL), and all costs and expenses incurred in connection with demobilization. Where any stage is only partially complete, payment for that stage shall be based upon such proportion of the total payment for that stage and shall be fair and reasonable, with respect to the amount of work done in respect of such stage at the time of termination. In the event of a suspension of services, WSPL shall not be liable for any delay or damage caused as a consequence of such suspension of services. If the Agreement is not terminated by WSPL, then upon resumption of WSPL‟s services, WSPL shall be reimbursed for all costs and expenses incurred as a result of the suspension. 27. 35. 28. 36. ACCELERATED PROJECT DELIVERY OR FAST TRACK CONFIDENTIALITY 29. In the event the Client chooses to take advantage or the potential time and cost savings benefits of an accelerated project delivery or fasttrack process, the Client acknowledges that it has been advised that the Project will be affected. Some of the effects of either process include the necessity of making early or premature commitments to design decisions and the issuance of incomplete and uncoordinated construction documents for permitting, bidding and construction purposes. The Client acknowledges that the Project, if developed on either basis, will likely require associated coordination, design and redesign of parts of the Project after construction documents are issued and the construction contract is executed, and may require removal of work-in-place, all of which events may cause an increase in the cost of the Work and/or and extension of the Project construction schedule. Therefore the Client acknowledges the necessity of including sufficient contingencies in the budget for the cost of the Work to account for additional costs and construction schedule extensions arising from either process. 37. Each Party shall ensure that documentation and information relating to the Project shall not be divulged or transferred to a third party for completion, without the consent from the other Party. LIMITATION OF LIABILITY 38. To the fullest extent permitted by law, the Client and WSPL each waive any right to consequential, liquidated or incidental damages and agree that the total liability, in the aggregate, of WSPL and its officers, directors, employees, agents and independent professional associates or engineers, and any or all of them, to the Client and any one claiming by, through or under the Client, for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any way related to WSPL‟s services, the Project or this Agreement, from any cause or causes whatsoever, including but not limited to, the negligence, errors, omissions, strict liability, breach of contract, misrepresentation, or breach of warranty of WSPL or its officers, directors, employees, agents and independent professional associates or engineers, and any or all of them, shall not exceed the total compensation received by WSPL for the specific work performed resulting in the Client‟s loss and/or damages or the limits of the available insurance coverage under WSPL‟s Professional Indemnity Insurance in respect of and/or relating to the Project, whichever is the lesser. ASSIGNMENT 30. WSPL may assign the whole of this Agreement to any of its associated or related companies at any time. WSPL will not make any arrangement for the vicarious performance of its obligations and responsibilities under the Agreement by any third party without the prior written consent of the Client nor shall the Client assign any of their rights or obligations under the Agreement to any third party without the prior written consent of WSPL. CONSTRUCTION COSTS 39. WSPL shall not be responsible for the actual construction of the Project and shall not be responsible for the construction costs of the Project. 40. The Client acknowledges that WSPL shall not be responsible for:- substantial investment in recruitment, advertisement, testing and training of their personnel, the Client agrees that if it hires a WSPL employee within a. b. c. d. e. f. cost increases due to the timing of a contractors‟ buy-outs for the Project; cost of labour, materials and equipment; contractors‟ methods of determining bid prices; competitive bidding, market or negotiating conditions; the failure of the contractors, fabricators, or suppliers to meet the Project schedule; and the quality of construction work or the material supplied for the Project. one year of completion of the Project, it shall pay WSPL for each employee thus hired, the amount of one year‟s salary, at the last level of annual remuneration that employee received from WSPL. PERSONS TO BE BOUND BY THE AGREEMENT 51. The STC together with the appendices to the Letter of Fee Proposal are binding upon the successors-in-title, heirs, personal representatives and permitted assigns of the Parties. 41. The Client further agrees that WSPL shall not be liable if the actual construction costs exceed the Project construction budget or prior cost estimates. In the event that the Client requests that WSPL provides redesign services to reduce construction costs, WSPL shall be compensated for such redesign services as Additional Services provided such redesign services were not required due to a negligent error, inconsistency or omission in the Instruments of Service. ENTIRE AGREEMENT 52. The Agreement and the documents referred to herein are in substitution for all previous agreements between the Parties, and contain the whole agreement between the Parties relating to the subject matter of the Agreement and constitutes the entire agreement between the Parties with respect to the matters hereof. There are no representations, understandings or agreements relative hereto which are not fully expressed in the Agreement. INSTRUMENTS OF SERVICE 42. The Instruments of Service are not a substitute for the shop drawings and other submittals which will be used for the actual construction of the Project. Nothing in the Agreement shall create or be deemed to create any duty upon WSPL to supervise the construction means, methods and/or safety procedures of any contractor, subcontractor or their employees or agents or any other person or party. WSPL shall not be liable as a result of the acts, omissions, default or failure to properly perform of any contractor, subcontractor or their employees or agents or any other person or party. VARIATIONS 53. Save as provided in the Agreement, no amendment or variation of the Agreement shall be effective unless made in writing and signed by or on behalf of each of the Parties. WAIVER 54. No failure or delay on the part of any Party in exercising any power or right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of such right or power preclude any other or further exercise of any other right or power hereunder. No waiver of any breach of the Agreement or any terms hereof shall be effective unless such waiver is in writing and signed by the Party against whom such waiver is claimed. 43. If requested, WSPL shall provide the Client with the Instruments of Service in electronic form. The Client shall release WSPL from any claims arising from the differences between WSPL„s hard copy and the electronic form of the Instruments of Service, if applicable. The Client agrees to indemnify and hold harmless WSPL from any claims brought by any third party as a result of, arising from and/or relating to the differences between WSPL„s hard copy and the electronic form of the Instruments of Service. FORCE MAJEURE SEVERABILITY 55. 44. Parties will not be in breach of their respective obligations under the Agreement if it is unable to perform any of its obligations as a result of the occurrence of an event of force majeure as set out in Clause 45 below. An event of Force Majeure means an event not within the control of the Party affected, which that Party is unable to prevent, avoid or remove and will include war, hostilities, invasion, act of foreign enemies, rebellion, revolution, insurrection, military or usurped power, civil war, terrorism, natural catastrophe, riot, disorders, sabotage, strike, lockout, labour unrest or other industrial disturbances (affecting the performance of this Agreement) which are not the fault of either Party. Each Party must immediately notify the other Party in writing within fourteen (14) days of the occurrence of any event of Force Majeure applicable to his obligations under this Agreement. In the event that the Force Majeure extends beyond a period of 6 months, the Parties will in good faith determine whether to modify or terminate the Agreement. If any provision of this Agreement is found to be or becomes illegal, invalid or unenforceable under the present or future laws or regulations of an applicable jurisdiction effective and applicable during the term of the Project, such provision shall be deemed curtailed or severed to the extent necessary to bring it within the requirements of such laws or regulations and the Agreement will be construed as if such illegal, invalid or unenforceable provision had never comprised a part of the Agreement. The remaining provisions shall remain in full force and be of binding effect and not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement, and the validity and enforceability of that provision together with the other provisions shall remain unaffected in other jurisdictions and shall continue in full force and be of binding effect. 45. GOVERNING LAW 46. 56. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore. 47. DISPUTE RESOLUTION/ARBITRATION 57. Any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, will be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force which rules are deemed to be incorporated by reference to this clause. The Tribunal will consist of one arbitrator to be appointed by the Chairman of the Singapore International Arbitration Centre. NOTICES 48. Any notice or other communication required by the Agreement or by law to be served on, given to or delivered to either Party to this Agreement including but not limited to, a request, demand, consent or approval, must be delivered to the addressee at the address or fax number set out in the Letter of Fee Proposal, or to any other address or fax number as notified by the Party to the other Party. Such notices or other communication shall be delivered by hand or registered mail or fax and will be deemed to be effective at the time of delivery if delivered by hand or within one (1) day after the date of mailing if sent by registered mail or at the time the fax is received in legible form if sent by fax. 49. EXCLUSION OF CONTRACT (RIGHTS OF THIRD PARTIES) ACT 58. This Agreement is intended to benefit WSPL and the Client only and is not intended to confer any benefits or rights to any third party. Any term of this Agreement which confers or purports to confer any benefit to any third party shall not be enforceable by that third party against WSPL. A person who is not a party to the Agreement shall have no rights under the Contracts (Rights of Third Parties) Act (Cap.53B) to enforce or enjoy the benefit of any of its terms. NON-SOLICITATION OF EMPLOYEES 50. The Client agrees and acknowledges that it will not directly or indirectly solicit or hire any employee of WSPL or induce any WSPL employee to terminate his or her employment with WSPL without the express written consent of WSPL. Recognising that WSPL has expended a 59.