2.1 Project Co and the Board jointly appoint the Independent Tester to perform the obligations and tasks which are ascribed to the Independent Tester under the Project Agreement and which are set out in Appendix 1 upon the terms and conditions set out below. The Contractor [and the Equipment Services Provider] is a party [are parties] to this Agreement solely to make the commitments on its part [their respective parts] as expressly made in this Agreement and, for the avoidance of doubt, the Independent Tester shall have no liability to the Contractor [and the Equipment Services Provider].49
2.2 The Independent Tester shall provide the services under Clause 2.1 above (the "Services") independently, fairly and impartially to and as between Project Co and the Board in relation to the Project Agreement at such times and at such locations as the parties shall agree from time to time. In performing the Services, the Independent Tester shall have regard to the interest of the Funders. Whilst the Independent Tester may take account of any representations made by Project Co and the Board and the Contractor (as appropriate) [and the Funder's Technical Adviser] the Independent Tester shall not be bound to comply with any representations made by any of them in connection with any matter on which the Independent Tester is required to exercise his professional judgement.
2.3 Varied Services
2.3.1 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 Board and Project Co which are not included in, or which are omitted from, the Services (the "Varied Services"), subject to prior agreement by the Board and Project Co to the costs thereof.
2.3.2 If the Independent Tester shall at any time be required to perform Varied Services, it shall give to the Board 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).
2.3.3 Where a change to the Project occurs pursuant to the terms of the Project Agreement (whether by virtue of a Delay Event, Variation, change to the Programme or otherwise) which may materially impact on the Services or otherwise on the Independent Tester, the Board 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 Board 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 2.3 shall apply accordingly.
2.4 The Independent Tester shall promptly and efficiently provide the Services and the Varied Services:
2.4.1 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
2.4.2 in accordance with all applicable Law and NHS Requirements.
2.5 All instructions to the Independent Tester must be given signed and given jointly by the Board's Representative and the Project Co's Representative or such other person appointed pursuant to Clause 11 of the Project 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 Board or Project Co (or any other person) not given in accordance with the provisions of this Clause 2.5.
2.6 The Independent Tester shall comply with all reasonable instructions given to it by Project Co and the Board pursuant to Clause 2.5 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 2.4 above. The Independent Tester shall promptly confirm in writing to Project Co and the Board whether or not it shall comply with any such instruction setting out the grounds upon which the decision is made.
2.7 The Board, 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.
2.8 The Independent Tester shall be deemed to have full knowledge of the provisions of the Project Agreement, the Construction Contract, the Service Contracts 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 Board which are set out in the Project Agreement provided always that true and accurate copies have been delivered to the Independent Tester.
2.9 Subject to Clause 2.10, 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.
2.10 The Independent Tester may by written notice to the Board and Project Co replace the staff identified in Clause 2.9 taking 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 Board (not to be unreasonably withheld or delayed).
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49 It has been suggested on some projects that the Contractor should receive the benefit of a duty of care from the Independent Tester (whether under this agreement or through a collateral warranty). Boards should consider the implications fully and seek advice from their legal advisers on this point. Boards' interests are likely to be prejudiced as a result. Issues that need to be considered include: whether this would increase the fee, whether the financial liability of the IT would be diluted (e.g. consider any cap on liability); whether the IT's liability to the Trust may be prejudiced as a result of any claim made by the Contractor, whether there could be any adverse impact on the resources of the IT; whether the Contractor's remedy should lie against Project Co in the event of any claim and project specific considerations. PFU's position is that it is not appropriate for the IT to provide a duty of care in favour of the Contractor and it is worth noting that such a duty of care/warranty has been given in very few recently signed schemes.