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Sub-Contract Terms and Conditions (offered as an example of wording and are not to be used in any way at all)

TERMS & CONDITIONS – SUB CONTRACT PROCUREMENT

INTRODUCTION

All references to Sub Contractor shall also mean and apply to his chosen Sub Contractors.

All references to Client may mean and be applicable to all parties contractually prior to this agreement between these two parties.

Should this contract  have its terms in conflict with other documents issued by The Constector then the later will apply.

It is condition president to final payment that all Health Safety and Environmental duties under Law and or contract including O&M Manuals and Warranties are duly received by The Contractor from the Sub Contractor.

TERMS & CONDITIONS

1.0     The Sub Contractor will design (if required) execute and complete with the best materials and workmanship the Sub Contract Works described in this Sub Contract and in accordance with the scope of works and specification(s) drawings and the instructions of The Contractor and to his satisfaction.  The Sub Contractor warrants that any design shall be fit for the purposes for which it is intended or required as such purposes are described in or may reasonably be inferred from the contract documentation.

2.0     The Sub Contractor shall:-

2.1     Perform and maintain the Sub Contract Works in good order and condition until completed and handed over to The Contractor and make good any defects free of charge therein appearing during the Defects Liability Period which unless otherwise stated in this order shall be twelve months from the date of completion of the Sub Contract Works.

2.2     Maintain insurance with reputable insurers and indemnify the Client against any cost, expense, liability, loss, claim or proceedings whatsoever arising under any statute or at common law in respect of:

2.2.1   personal injury to or the death of any person whomsoever arising out of or caused by the carrying out of the Sub Contract Works, unless and to the extent that the same is due to any act or neglect of the Client or The Contractor or any person for whom the Client or The Contractor is responsible (which for the avoidance of doubt shall not include any other Sub Contractor engaged on the Project or any of their Sub Contractors, suppliers or personnel);

2.2.2   any injury or damage to property, real or personal, (other than the Sub Contract Works) including, but without limitation the property of the Client or The Contractor arising out of or caused by the carrying out of the Sub Contract Works and provided always and to the extent that the same is due to any negligence omission or default of the Sub Contractor, his employees, agents, Sub Contractors or suppliers.

         Without prejudice to the foregoing the Sub Contractor shall effect and maintain Public Liability with a minimum level of indemnity of £[               ]  on any one occurrence for the period of [                         ] and Employer's Liability Insurance with a minimum limit of indemnity of  £[                ]  any one occurrence/unlimited in the aggregate including costs for the minimum period of  [                         ] and Professional Indemnity Insurance with a minimum limit of indemnity of £[                 ]  on each and every claim basis for the period of 12 years from Practical Completion of the Project.

2.3     Operate in accordance with the P.A.Y.E. Regulations in respect of all work people employed by him.

2.4     Fully observe the requirements of the working rule agreement applicable to the Sub Contractor's industry NHI & HWP schemes together with all statutory requirements relative to employment of labour.

2.5     Be entitled at his own risk to the non-exclusive use of the services and facilities provided by the Client for common use where defined overleaf, but subject thereto shall provide everything necessary for the execution of the Sub Contract Works.  The Sub Contractor shall not adjust or interfere with any common user services and facilities without the consent of The Contractor.  The Sub Contractor acknowledges that any lack of availability of the services and facilities to be provided by the Client for common use shall not give rise to any claim for an extension of time or to compensation.

2.6     On completion of the Sub Contract Works, remove all plant and tools of the Sub Contractor and clear away all rubbish occasioned by his operations and leave the job clean and tidy to the satisfaction of The Contractor.

2.7     Make good and indemnify the Client against any injury, loss or damage occasioned by the Sub Contractor or his workmen or sub-contractors of any tier.

2.8     Indemnify the Client against any claim in respect of materials plant or tools of the Sub Contractor or his workmen which may be lost or damaged by fire or any other cause or where the Client has put in place Total Project Insurance be responsible for any claim excess required by that policy.

2.9     Observe and perform all obligations placed upon him by statute or at common law and all relevant safety regulations including in particular the Health and Safety at Works Acts CDM Regulations and COSHH Regulations.  The Sub Contractor will be required to supply a COSHH assessment and safety policy.

2.10   Provide a programme and method statement in format and content to be agreed with The Contractor.  The timing and production of the programme and method statements to be as required by The Contractor.

2.11   Comply with any EC Directive any Act of Parliament (including without limitation the Town & Country Planning Act 1990 as amended by the Planning & Compensation Act 1991 the Health & Safety at Work Act 1974 any Codes of Practice guidelines recommendations or safety procedures published by the Health & Safety Executive or approved by the Health & Safety Commission and the Occupiers Liability Act and any instrument rule or order made under any of the same) and in particular the Sub Contractor shall perform the duties and undertake the responsibilities allocated to a contractor and where required a designer pursuant to the CDM Regulations 1994 regulated by the Health & Safety Commission or any regulation by law or decision of any local authority or of any statutory undertaking public body or company which has any jurisdiction with regard to the Sub Contract Works or with any systems to which the Sub Contract Works will be connected.

2.12   Comply with the current Joint Council Code of Practice on the Protection from Fire on Construction Sites and Buildings Undergoing Renovation published by BEC Loss Prevention Council and the National Contractor’s Group.

2.13   Warrant that any hardware or software supplied or incorporated in the Sub Contract Works shall comply in all respects with the definition of Year 2000.  Conformity as provided by BSI DISC PD 2000-1 : 1998 A Definition of Year 2000 Conformity Requirements.

2.14   Shall not use in the Sub Contract Works any materials or substances which are generally known within the building industry or which become known during the course of the Project to be deleterious or hazardous to health and safety.

3.0     The Sub Contractor shall be entitled to payment in the following manner:-

3.1     By monthly instalments of the value of the work executed less retention at [            %].  The due date for payment shall be 10 days after receipt of the Sub Contractor's payment application and the final date for application shall be 21 days after receipt by the Client of a valid VAT invoice.  No later than 5 days after the payment becomes due to the Sub Contractor or would have become due if the Sub Contractor had carried out his obligations under this Sub Contract The Contractor shall give the Sub Contractor notice specifying the amount (if any) of the payment made or proposed to be made and the basis on which that amount was calculated.  Such notice shall include any deduction or set off the Client proposes to make from any sum due under this Agreement.  The notice shall specify the amount proposed to be withheld and the grounds for withholding payment or, if there is more than one ground, each ground and the amount attributable to it.

3.2     If the Client fails to pay any amount in full by the final date for payment and no effective notice to withhold payment has been given under clause 3.5 the Sub Contractor may suspend performance of his obligations under this Sub Contract upon giving the Client 7 days notice in writing of his intention to suspend performance stating the grounds on which it is intended to suspend performance.  The Sub Contractor's right to suspend ceases immediately when the Client pays in full the relevant amount due.

3.3     On issue of a Certificate of Practical Completion of the Sub Contract Works half of the amount retained will be released. Provided always that the Sub Contractor has provided to the Client a set of drawings and information showing or describing the Sub Contract Works as built.

3.4     On expiry of the Defects Liability Period and in receipt of the Making Good Defects Certificate the Final Account value of the work less previous payments shall be calculated and a Final Account Certificate issued which shall be conclusive evidence of the amount due to or from the Sub Contractor.  The Sub Contractor shall make good at his own expense all defects notified by The Contractor during the defects liability period.

3.5     The Client is a Contractor for the purpose of Chapter IV of the Income and Corporation Taxes Act 1988 and has complied with the Income Tax (Sub-Contractors in the Construction Industry) Regulations 1993 as subsequently amended by the Income Tax (Sub-Contractors in the Construction Industry) (Amendment) Regulations 1998.  The Client shall not make any payments which may be due to the Sub Contractor until such time as the Sub Contractor has presented for inspection a valid Registration Card (CIS 4) or a valid Sub-Contractor’s Tax Certificate (CIS 6) or a valid Construction Tax Certificate (CIS 5).  Non payment of sums which would otherwise be due save for the operation of this clause shall not relieve the Sub Contractor of any of its obligations under this Minor Works Sub Contract.

4.0     The Sub Contract Sum shall be deemed to include all costs and expenses and in particular but without prejudice to the generality of the foregoing the Sub Contractor shall:-

4.1     Be required to ensure that adequate labour is on site at all times to properly complete the Sub Contract Works within the programme period and in accordance with any amendments thereto.

4.2     Provide at all times competent supervision which shall be responsible to The Contractor for progress and quality of the Sub Contract Works. Attendance at any meetings called by The Contractor shall form a part of this supervision.

4.3     Include all plant, tools, materials, power and fuel necessary for the completion of the Sub Contract Works.

4.4     Take all site dimensions, agree all dimensions with The Contractor and check site dimension in relation to the drawings and will accept full responsibility for the accurate setting out of the Sub Contract Works.

4.5     Not claim for payment of overtime unless specifically ordered by The Contractor in writing.

4.6     Conform with the provisions of the most current Pollution Act in the context of the control of the emission of noise.

4.7     Allow for all necessary measures to reduce levels of dust, noise etc.

4.8     Be totally responsible for unloading, hoisting, stacking and protecting all materials, plant, storage etc. in connection with his Sub Contract works.  Handling and moving materials to final place of fixing is the responsibility of the Sub Contractor.

4.9     Provide for all necessary protection and maintenance for the Sub Contract Works from damage and inclement weather until Practical Completion of the whole Project.

4.10   Clear away all rubbish and debris as it accrues to a point designated by The Contractor at all times and provide for cleaning the whole of his Sub Contract Works on completion and leave the same to the entire satisfaction of The Contractor.

TERMS & CONDITIONS – SUB CONTRACT PROCUREMENT (CONTINUED and offered as an example of wording and are not to be used in any way at all)

4.11   Be responsible for loss of or damage to materials or goods properly on site for incorporation into the Sub Contract Works until practical completion of the Sub Contract Works or where the Client has put in place Total Project Insurance be responsible for any claim excess required by that policy.

5.0     The Sub Contractor shall comply with all reasonable orders of The Contractor to vary the Sub Contract Works.

5.1     Variations will be priced using the scheduled rates where applicable, or pro-rata thereto.  New items of work to be at prices agreed prior to the time of execution.

5.2     The term "Variation" means the alteration or modification of the design, quality or quantity of the Sub Contract Works shown upon or referred to in the drawings, scope of work or specification(s).  No variation will be deemed to have been instructed unless and until confirmed in writing by The Contractor.  No approval expressed or implied by The Contractor shall relieve the Sub Contractor of his responsibility under this Sub Contract.

6.0     Daywork rates for labour shall be fully inclusive of all costs associated with the employment of labour in accordance with the definition of prime cost of daywork published by the Royal Institution of Chartered Surveyors.

6.1     Where the Sub Contractor considers that work to be executed may be of Daywork nature he shall advise The Contractor accordingly prior to commencing work and if The Contractor agrees in writing the rates provided herein shall apply.

6.2     Where The Contractor has agreed Daywork applies the Sub Contractor shall submit Record Sheets on a daily basis which shall only be valued when countersigned by The Contractor whose decision in these respects shall be final and binding.

7.0     In the event that directly employed operatives must be employed and the Sub Contractor cannot comply with this requirement, the Sub Contractor shall not have any claim against The Contractor or the Client for loss and expense or other financial loss.

8.0     Without prejudice the Contract may be terminated at any stage by the Client giving five working days notice in writing to the Sub Contractor.

9.0     The Sub Contractor shall not without the written consent of the Client assign the Sub Contract Works to others.

9.1     The Client shall be fully entitled to assign and/or charge or otherwise transfer all of its rights under this Deed at any time without the consent of the Sub Contractor being required. 

The Sub Contractor shall within 14 days of receiving written request of the Client enter into a deed of novation in a form specified by the Client with the effect of novating this Sub Contract to any affiliate of the Client or any other Sub Contractor specified by the Client.

9.2     The Sub Contractor shall not without the written consent of The Contractor sub-let any portion of the Sub Contract Works.  No sub-letting by the Sub Contractor and no consent of The Contractor shall in any way relieve the Sub Contractor from his responsibility for the execution and completion of the Sub Contract Works in accordance with the provisions of this Deed.

9.3     The Sub Contractor shall on receiving a written request from the Client enter into a Collateral Warranty Deed with any other third party in the form as specified by the Client within 7 days of the said request.

10.0   The Sub Contractor as beneficial owner of his designs, plans, models, drawings, specifications, programmes, schedules, and any other materials created or supplied by him (“Proprietary Materials”) assigns to the Client with effect from the date of commencement of the Sub Contract Works the entire copyright and other proprietary rights in the Proprietary Material.

10.1   Notwithstanding the assignment effected by sub clause 10.0 the Sub Contractor shall be entitled under a royalty-free non exclusive  licence to use the Proprietary Material to such an extent and for as long as may be necessary for the proper performance of the Sub Contract Works such licence shall not carry the right to grant sub-licences nor shall it be otherwise transferable to third parties.

11.0   The Sub Contractor undertakes that it shall not disclose to any third party or make use of any information of any kind whatsoever relating to the Sub Contract Works, the project as a whole or the Client.

12.0   Where materials and/or equipment installed in, used by or delivered to this contract by the Sub Contractor could constitute any risk to health and safety (as described in the current Health and Safety at Work Etc. Act and the CDM Regulations 1994) then they must be clearly marked with warning notices which detail the risks inherent in the material and/or equipment, the precautions necessary to eliminate the risk and the actions to be taken in case of accident.

13.0   Contracts (Rights of Third Parties) Act 1999.  The parties hereby confirm that nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any provision of the Agreement.

14.0   Any notice required to be given by the parties or The Contractor shall be in writing and service shall be effected at any office from which the recipient is carrying on business in relation to the Project either: -

i)        personally when service shall be deemed effective on delivery;

ii)       by telex, e-mail or facsimile when service shall be deemed effective at the time of transmission;

iii)       by first class post when service shall be deemed effective on the second day after posting.   

15.0   All disputes and differences regarding any matter arising out of the Sub Contract shall, after written notice by either party to the other, be referred to an adjudicator.  The TeCSA Adjudication Rules (as amended from time to time) shall apply to such adjudication save that paragraph 19 (1) of the Adjudication Rules shall be amended by the addition of “Provided that such written statements shall not exceed 25 single sided sheets of A4 pages in total”.  The decision of the adjudicator shall be final, unless either party gives notice that it intends to refer the matter to the Courts of England and Wales.

16.0   The construction validity and performance of this Sub Contract shall be subject to English law.  Subject to clause 13 the parties submit to the non-exclusive jurisdiction of the English courts.

17.0  These terms are offered as an example of wording and are not to be used in any way at all.

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