3.1 The Independent Tester shall carry out and perform any additional and/or varied services required for the implementation of the Project reasonably required by the Authority and Project Co which are not included in, or which are omitted from, the Services (the "Varied Services"), subject to prior agreement by the Authority and Project Co to the costs thereof. The written agreement by the Authority and Project Co pursuant to this Clause 3.1 shall state whether (and where applicable in what proportions) the Authority and/or Project Co will be responsible for the payment of the fee agreed for the Varied Services. The Independent Tester acknowledges that the liability of Project Co and the Authority to pay the Independent Tester for the Varied Services shall be several and not joint.
3.2 If the Independent Tester shall at any time be required to perform Varied Services, it shall give to the Authority and Project Co a written estimate of the cost thereof (taking into account any reduction in work or other expense which might also occur as a result of the circumstances giving rise to the Varied Services).
3.3 Where a change to the Project occurs pursuant to the terms of the Design Build Finance and Maintain Agreement (whether by virtue of a Delay Event, Change, change to the Programme or otherwise) which may materially impact on the Services or otherwise on the Independent Tester, the Authority and Project Co shall promptly notify the Independent Tester of such change. The Independent Tester shall within [ ] Business Days of receiving such notification, notify the Authority and Project Co of the impact of such change, if any, on the Services, including whether such change gives rise to any Varied Services and the provisions of this Clause 3.3 shall apply accordingly.
3.4 The Independent Tester shall promptly and efficiently provide the Services and the Varied Services:
3.4.1 with the reasonable care, skill and diligence to be expected of a properly qualified and competent professional adviser who has held itself out as competent and experienced in rendering such services for projects of a similar size, nature, scope and complexity to the Project; and
3.4.2 in accordance with all applicable Law [and NHS Requirements12].
3.5 All instructions to the Independent Tester must be given signed and given jointly by the Authority's Representative and Project Co's Representative or such other person appointed pursuant to Clause 12 of the Design Build Finance and Maintain Agreement (Representatives) and, for the avoidance of doubt, the Independent Tester shall not act in accordance with any instructions given to him by either the Authority or Project Co (or any other person) not given in accordance with the provisions of this Clause 3.5.
3.6 The Independent Tester shall comply with all reasonable instructions given to it by Project Co and the Authority pursuant to Clause 3.5 except and to the extent that the Independent Tester reasonably considers that any such instructions vary or might vary the Services or its authority or responsibilities under this Agreement or prejudices or might prejudice the exercise by the Independent Tester of its professional judgement in accordance with Clauses 2.2 and 3.4 above. The Independent Tester shall promptly confirm in writing to Project Co and the Authority whether or not it shall comply with any such instruction setting out the grounds upon which the decision is made.
3.7 The Authority, Project Co[, the Equipment Services Provider] and the Contractor agree to co-operate with and provide reasonable assistance to the Independent Tester to familiarise the Independent Tester with all necessary aspects of the Project to enable the Independent Tester to carry out its obligations under this Agreement.
3.8 The Independent Tester shall be deemed to have full knowledge of the provisions of the Design Build Finance and Maintain Agreement, the Construction Contract, the Service Contracts, the Funding Agreements and the [Sub-Contractor Co-operation Agreement (as defined in the Construction Contract)] such as relates to the Services and shall be deemed to be aware of and to have taken full account of all the undertakings and warranties, both expressed and implied, on the part of Project Co and the Authority which are set out in the Design Build Finance and Maintain Agreement provided always that true and accurate copies have been delivered to the Independent Tester.
3.9 Subject to Clause 3.10, the Independent Tester shall use the following partners, directors or employees: [insert names of individuals] in connection with the performance of the Services and such persons' services shall be available when necessary and for so long as may be necessary to ensure the proper performance by the Independent Tester of the Services. Such persons shall have full authority to act on behalf of the Independent Tester for all purposes in connection with the Services.
3.10 The Independent Tester may by written notice to the Authority and Project Co replace the staff identified in Clause 3.9 taking into account the need for liaison, continuity, level of qualification and availability of personnel in respect of the Project. Such replacement shall be subject to approval in writing by Project Co and the Authority (not to be unreasonably withheld or delayed).
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12 Where the Authority is a health board.