4.1 Project Co shall pay to the Independent Tester a fee of [ ] for the Services provided in relation to the Project Agreement. The fee is exclusive of value added tax and inclusive of disbursements. The Independent Tester shall issue an invoice to Project Co on a monthly basis in accordance with Appendix 2 Part 1. The date on which the invoice is received by Project Co shall constitute the due date. The final date for payment by Project Co shall be thirty (30) days after receipt of the Independent Tester's invoice. If Varied Services are provided then they shall be paid for equally by (1) the Board and (2) Project Co or as otherwise agreed.
4.2 Not later than [five (5)] Business Days after the due date ascertained in accordance with Clause 4.1, Project Co may give written notice to the Independent Tester stating the amount which Project Co proposes to pay and the basis on which the amount is calculated.
4.3 Where Project Co intends to withhold payment of any amount stated in the invoice, Project Co and the Board shall given written notice to the Independent Tester not later than [five (5)] Business Days before the final date for payment pursuant to Clause 4.1. The notice shall state the amount to be withheld and the ground or grounds for withholding the payment and if there is more then one ground, the notice shall identify the amount attributable to each ground.
4.4 If Project Co fails to pay the Independent Tester any sum payable under this Agreement by the final date for payment, Project Co shall pay the Independent Tester simple interest on that sum from the final date for payment until the actual date of payment at the Default Interest Rate.
4.5 If Project Co fails to pay the amounts properly due pursuant to these provisions and no notice to withhold the payment has been given pursuant to Clause 4.3, the Independent Tester may suspend performance of any or all of the Services. This right is subject to the Independent Tester first giving Project Co and the Board not less than [seven (7)] Business Days' notice in writing of such intention stating the grounds for suspension. The right to suspend performance shall cease when Project Co pays the amount properly due. [Any period of suspension of the Services in accordance with this Clause 4.5 shall be disregarded in computing any contractual time limit to complete work directly or indirectly affected by the exercise of the rights conferred by this Clause 4.5 or as the case may be, the time for completion of such work shall be extended by a period equal to the period of suspension.]47
4.6 Without prejudice to Clause 2.5, neither the Board nor Project Co shall issue instructions or do anything which does or is reasonably likely materially to increase the fees payable to the Independent Tester without the prior approval of the other (such approval not to be unreasonably withheld or delayed).
4.7 As soon as the Independent Tester becomes aware of the same and before acting on the same the Independent Tester shall inform the Board and Project Co of any instructions given to him pursuant to Clause 2.5 which will or could reasonably be expected to increase the fees payable to the Independent Tester under the terms of this Agreement. The Independent Tester shall if requested by either Project Co or the Board provide both the Board and Project Co with as detailed an estimate as is reasonably practicable of the increase to the fees payable to it if it carries out such instructions. The estimate of increased fees shall be based upon the rates contained in Appendix 2, Part 2.
4.8 The obligations of Project Co and the Board to pay the Independent Tester for any Varied Services shall be several and not joint.
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46 This drafting assumes that Project Co is responsible for paying the Independent Tester. Boards should consider whether this will be the case and should ensure that bidders are required to bid on the appropriate basis, which should be set out in the ITN documentation. It may better value for money for the Board to pay an element of the fee itself, although the Board must ensure that it is able to meet such a commitment.
47 Boards to consider whether this or similar drafting necessary for compliance with the Housing Grants and Construction Act 1995.