Sub Contractor Terms & Conditions
Documentation and Generally
1 (a) The Sub-Contractor shall, upon and subject to these conditions and the documents provided by the Contractor as referred to in the Danabray Limited Order or Agreement, provide everything which is necessary for the proper and timeous execution and completion of the Works in accordance with all drawings, specifications, requirements and/or instructions supplied to the Sub-Contractor and will deliver up the Works to the Contractor, complete in every respect to the satisfaction of the Contractor, the Employer and/or Architect and/or Engineer (and their agents, advisers, representatives or servants).
(b) The Sub-Contractor shall be responsible for all mistakes, inaccuracies, discrepancies and omissions in all drawings, details, documents and information provided by him. Without prejudice to any express or implied warranties or conditions, the Sub-Contractor warrants that the Works will comply with any performance specification or requirements contained or referred to in this Sub-Contract and the Works will be fit for the purposes for which they are required.
2 (a) Any tender quotation or estimate issued by the Sub-Contractor is subject to acceptance by the Contractor and a contract will not be formed until the Contractor has placed its written order upon a pro-forma Order or Agreement and such sub-contract documents have been formally executed. The terms and conditions of this Sub-Contract shall prevail over any other terms and conditions which are inconsistent with them which the Sub-Contractor seeks (whether before or after the date hereof) to impose upon the Contractor, irrespective of any provision therein purporting to exclude or supersede all or any of these terms and conditions.
(b) Any conduct of the Sub-Contractor in relation to the execution of all or part of the Works shall be deemed to be an acceptance of the willingness to comply with the Contractor’s terms and conditions and in any event no variation of any of these terms and conditions shall be binding upon the Contractor unless expressly first agreed in writing by the Contractor.
(c) In the case of any conflict between these conditions and any specific documents provided for by the Contractor or sub-contractor in connection with the Sub-Contract and referred to in the said pro-forma Order or Agreement the following interpretation regarding hierarchy of documents shall prevail; in order of precedence, Order front page and ND1 being of the latest and greatest importance though to ND9 of least. The agreed intention being that any adjustments for the most up to date agreement upon which parties agree to be bound can be made in ND1, ND2 & ND3 with the finalised principle terms also stated on front page of the Order document. ND10 containing documents that are to be regarded as 'information only' unless specifically identified as appendix information to any of the foregoing Numbered documents ND1-9
Incorporated Provisions of Main Contract
3 The Sub-Contractor shall be deemed to have notice of all the terms and conditions and Contract documents of the Main Contract (save for the Contractor’s prices therein) and shall comply with any of the same which may in any way be relevant to the Works as though the same were fully set out herein and the Contractor was the Employer and the Sub-Contractor was the Contractor. The Main Contract documents may be inspected at the Contractor’s offices by request on reasonable notice and during normal working hours. The Sub-Contractor shall indemnify the Contractor against all claims, demands, proceedings, damages, costs, charges, loss and expense whatsoever suffered or incurred by the Contractor arising under the Main Contract consequent upon the Sub-Contractor’s failure to comply whether in whole or in part with the terms and conditions of Sub-Contract save to the extent that such claims, demands, proceedings, damages, costs, charges, loss and expense are occasioned by any act of negligence or default of the Contractor.
4 Notwithstanding anything else in this Sub-Contract the Sub-Contractor shall carry out the Works so as:
(a) To enable the Contractor to meet in full his obligations under or in connection with the Main Contract (including, without implying limitations, his obligations as to time and completion).
(b) Not to put the Contractor in breach of either the Main Contract or other Sub-Contracts.
(c) To enable the Contractor to carry out his obligations under or in connection with the Main Contract in an efficient and economic manner.
5 The Sub-Contractor shall not sub-let or assign the Works in full or in part nor factor or otherwise assign responsibility for receipt of any payment hereunder without written consent first being obtained from the Contractor and such consent if given shall not relieve the Sub-Contractor from any liability under this Sub-Contract. The Contractor’s written consent to sub-letting shall not be unreasonably withheld, but it is a condition precedent to that consent that the Sub-Contractor shall demonstrate that the relevant person or organisation is ‘competent’ (as defined in the Construction (Design and Management) Regulations 2007 and any subsequent updates) to undertake the Works in a safe, efficient and effective manner. The Sub-contractor warrants the contractor unequivocally for all liabilities regarding the employment of such ‘competent’ persons.
6 The Sub-Contractor is deemed to have visited the site and satisfied himself both as to the nature and content of the Works and the conditions under which they are to be carried out. No claim will be allowed which is based upon either lack of knowledge of the condition or efficacy of other works carried out, being carried out or to be carried out on the site. The Sub-Contractor will ensure that the Works are in every respect properly and effectively co-ordinated and compatible with the Main Contract Works.
7 Where or to the extent that the Works include design work or the Sub-Contractor shall have designed any part of the Works or shall have selected materials for incorporation therein, the Sub-Contractor shall ensure that such design and such materials shall be fit for their respective purposes. No approval given by the Employer, Architect, Engineer or Contractor, their agents, advisers or servants shall relieve the Sub-Contractor of his obligations under this clause.
Co-ordination and Programming
8 The Sub-Contractor shall in order to facilitate the timely and efficient completion of the Works assist, liase and co-operate with the Contractor to:
(a) Negotiate or communicate with the Employer and/or Architect and/or Engineer in relation to the execution of the Works.
(b) Obtain any necessary permissions or approvals from government or statutory authorities in connection with the Works.
(c) Prepare technical data and to select materials for the Works so that the Contractor may report to the Employer and/or Architect and/or Engineer with regard to the execution of the Works
(d) Co-ordinate with other sub-contractors employed by the Contractor in programming the Works.
9 Two weeks before the Commencement Date of the Sub-Contract, or at such other time as the Contractor may specify, the Sub-Contractor shall supply to the Contractor a preliminary programme detailing the Works to be completed by the Sub-Contractor. The programme shall include:
(a) The order in which the Sub-Contractor intends to proceed with the Works
(b) The method by which the Sub-Contractor intends to carry out the Works
(c) A list of any drawings which the Sub-Contractor intends to provide, or is required to provide
(d) The earliest starting date of each activity
(e) A list of activities which will be critical to progress
This programme shall not form part of the Sub-Contract nor shall it in any way be construed as being binding on the Contractor. The Contractor’s approval of any programme, drawing or other information submitted to him shall not relieve the Sub-Contractor of his responsibility under the Sub-Contract for the sufficiency or accuracy thereof.
Progress and Delay
10 (a) The Sub-Contractor shall commence the Works on or as soon as reasonably possible after the commencement date or following the Contractor’s instruction to commence the Works and shall thereafter proceed with the same without delay. The Contractor may at his discretion advance or delay the commencement date of the Works if it is expedient so to do. The Works are to be completed within the period for completion and are to be carried out promptly and in such manner, order and time as the Contractor may direct in accordance with the Main Contract Programme and the progress of the Main Contract Works and so as to ensure completion of the Main Contract Works or any part thereof by the Main Contract completion date or dates subject only to such fair and reasonable extension of time as the Contractor shall grant where the Works are delayed by any instruction or default of the Contractor, or by causes which result in an extension of time to the Contractor under the Main Contract.
(b) Any instructions, drawings, levels or other information relating to the Works or the Main Contract Works which is requested from the Sub-Contractor must be provided in due time so as not to cause any disruption or delay to the Main Contract Works. The Sub-Contractor must ensure that the Works undertaken cause the minimum of disturbance or disruption to the Contractor, or to any Sub-Contractor of the Contractor, or to others.
(c) The Contractor shall be entitled to deduct from or set off against any money (including any retention) otherwise due to the Sub-Contractor under the Sub-Contract and/or under any other Sub-Contract agreement that the Sub-Contractor may have with Danabray Limited on any other project, any sums which the Sub-Contractor is or may be liable to pay to the Contractor or such sum finally awarded in arbitration or litigation in favour of the Contractor provided always that:
(i) the Contractor has given a valid notice of intention to pay less to the Sub-Contractor not later than three days before the final date for payment in accordance with Clause 21(e)
(d) Where an effective notice has been given but on the matter being referred to adjudication pursuant to Clause 38 it is determined that the whole or part of the amount should be paid that amount shall be paid not later than 7 days from the date of the Adjudicator’s award or the date which apart from the notice would have been the final date for payment, whichever is the later.
(e) Without prejudice to Clause 10 (c) where the Contractor has a claim for loss and/or expense and/or damage which he has suffered or incurred by reason of any breach of, or failure to observe, the provisions of the Sub-Contract by the Sub-Contractor (whether or not the Contractor may have further claims for loss and/or expense and/or damage by reason of any breach or failure) the Contractor shall be entitled to set off the amount of such loss and/or expense and/or damage so suffered or incurred against any money otherwise due under the Sub-Contract from the Contractor to the Sub-Contractor including any Sub-Contractor’s retention
(f) Any amount set off under the provisions of Clause 10 (c) is without prejudice to rights of the Contractor or Sub-Contractor in any subsequent negotiations, adjudication, arbitration proceedings or litigation to seek to vary the amount claimed and set off by the Contractor under Clause 10 (c)
11 It shall be a condition precedent to the granting of any extension of time to the Sub-Contractor by the Contractor that the Sub-Contractor shall have given written notice to the Contractor as soon as it is apparent that completion of the Works will or may be delayed beyond the Period for Completion and stating all relevant matters relied upon in support of such a claim.
12 All surplus materials/waste arising from the Works shall be cleared from the site by the Sub-Contractor regularly during the course of the Works and in any event immediately on completion of the Works. In the event of the Sub-Contractor failing to meet or comply with this condition, the Contractor may undertake to dispose of such materials/waste and set off in accordance with Clause 10 herein the cost of carrying out such work against sums which would otherwise be due to the Sub-Contractor. The Sub-Contractor shall comply with all statutes, statutory instruments, bye-laws and regulations relating to the disposal of waste and shall in particular comply with the Contractor’s Site Waste Management Plan (“SWMP”) and controlled waste disposal procedures as may from time to time be published by the Contractor and which are available for inspection.
Indemnity and Insurances
13 The Sub-Contractor shall indemnify and save from harm the Contractor against and from all claims, causes of action, costs, damages, loss and expense whatsoever in respect of:
(a) Personal injury or death of any person including all personal injury claims or injury to any property (including the Main Contract Works) real or personal arising out of or in the course of, including any design undertaken by the Sub-Contractor or in relation to or by reason of the execution of the Works by the Sub-Contractor (including but not restricted to the use of any plant, equipment or facilities whether in connection with such execution or otherwise) and
(b) Any negligence or breach of duty on the part of the Sub-Contractor, or his Sub-Contractors, his or their servants or agents, and
(c) Any breach or non-performance or non-observance by the Sub-Contractor, or his Sub-Contractors, his or their servants or agents of the provisions of this Sub-Contract save to the extent that such claims, causes of action, costs, damages, loss and/or expense are occasioned by any act of negligence or default of the Contractor.
(d) Without prejudice to Clause 13 (a)-(c) above, the Sub-Contractor shall indemnify the Contractor and keep the Contractor indemnified against all liabilities, demands, losses, damages, costs, claims, expenses and interest made against, suffered or incurred by the Contractor by reason of all or part of the works, equipment, machinery, materials, goods and services to be designed, created, produced, procured and/or supplied by the Sub-Contractor under this Sub-Contract, or to be used by the Sub-Contractor or its suppliers in the provision of such equipment, machinery, materials, goods and services, failing to store, process, calculate, use and/or otherwise deal with date and date related information accurately and unambiguously, including but not limited to information containing or depending upon dates before, during and after 1 January 2000.
14 (a) The Sub-Contractor shall have and maintain adequate “Employer Liability”, “Public Liability”, “Contractors All Risks” and “Professional Indemnity” (where appropriate) Insurance in relation to all such risks arising out of or in relation to this Sub-Contract for such amounts as may be detailed in this Sub-Contract and produce on demand the policies of such insurance. In the event that the Sub-Contractor shall fail to effect such insurances the Contractor shall be at liberty to insure on behalf of the Sub-Contractor and set off in accordance with Clause 10 herein the cost of the premium so paid from any monies due or to become due to the Sub-Contractor or to recover the premium from the Sub-Contractor as a debt.
(b) The Sub-Contractor shall comply with the Contractor’s requirements on matters affecting the safe conduct of works on the Site and shall also comply with the Contractor’s Safety Policy, a copy of which is available for inspection and shall also comply with all statues, statutory instruments, bye-laws and regulations affecting the Works and the carrying our thereof. In particular, the Sub-Contractor shall provide all information necessary to satisfy the Contractor that his operatives and sub-contractors are ‘competent’ (as defined in the Construction (Design and Management) Regulations 2007 and any subsequent updates) to undertake the Works in a safe, efficient and effective manner.
Provision of Information
15 Whenever the Contractor is required by the terms of the Main Contract to give any return, account valuation, estimate, request for payment, drawings, calculations, documentation or notice, the Sub-Contractor shall in relation to the Works give such documents or information in writing to the Contractor as will enable the Contractor to comply with such terms of the Main Contract and shall do so in sufficient time to enable the Contractor to comply with such terms punctually. If by reason of any negligence or breach by the Sub-Contractor of the provisions of this Sub-Contract the Contractor is prevented or delayed from recovering any sum under the Main Contract (whether in whole or in part), then without prejudice to any other remedy of the Contractor for such negligence or breach the Contractor may set off in accordance with Clause 10 herein such sum, (or in the case of delay, interest thereon for the period of delay at the rate of four percent per annum above the Base Lending Rate from time to time of the Midland Bank plc or (if such rate shall cease to be published) such other reasonable or comparable rate as the Contractor shall designate calculated on a daily basis and compounded on the usual quarter-days), from monies otherwise due to the Sub-Contractor under this Sub-Contract but only to the extent that such prevention or delay is caused by the negligence or breach of the Sub-Contractor .
Ownership and Risk
16 (a) The risk in all goods and materials to be incorporated in the Works, and in all plant tools and equipment for use in the connection with the Works, including but not limited to the risk in any and all liabilities to third parties and employees and damage and loss howsoever caused shall remain with the Sub-Contractor who shall at his own cost, maintain insurance of his goods and materials until Practical Completion of the Main Contract Works.
(b) Notwithstanding Clause 16 (a) hereof, all goods, materials and temporary works shall become the property of the Contractor as and when the goods, materials and temporary works or any part thereof are first identified, inspected and appropriated by the Contractor for the Works and in any event upon delivery to the site and whether payment therefore has at that time been made by the Contractor in whole or in part or not at all.
(c) The property in any plant tools and equipment for use in connection with the Works shall pass from the Sub-Contractor to the Contractor immediately upon delivery to site and shall re-pass from the Contractor to the Sub-Contractor upon completion of the whole of the Works.
(d) The Sub-Contractor shall not remove from the site any plant tools, equipment, materials, temporary works or things provided by the Sub-Contractor in connection with the Works prior to the completion of the Works unless instructed by the Contractor.
17 Where it is provided by the Main Contract that the property in any plant, temporary works, materials or things whatsoever shall in certain events vest in the Employer or revest in the Contractor, then insofar as such plant, temporary works, materials or things are to be provided by the Sub-Contractor in connection with the Works the property therein shall pass from the Sub-Contractor to the Contractor immediately before it is due to vest in the Employer in pursuance of the Main Contract and shall re-pass from the Contractor to the Sub-Contractor immediately after it has revested in the Contractor in pursuance of the Main Contract.
18 The Contractor and/or the Architect or Engineer or the Employer shall be entitled to have tests made or carried out on anything for incorporation into the Works or which has already been incorporated into the Works. For this purpose the Sub-Contractor shall provide all facilities that the Contractor may require. All costs and expenses arising in relation to such tests shall be borne by the Sub-Contractor.
19 All things for incorporation into the Works shall be stored in accordance with the manufacturers written specifications or instructions. In the case of any differences or conflict between the requirements of manufacturer’s specifications or instructions and this contract, the Sub-Contractor shall notify the Contractor accordingly and seek instructions in regard thereto.
20 Upon (and if appropriate before) delivery of all or any part of things for incorporation into the Works, the Sub-Contractor shall furnish to the Contractor all written information necessary for the proper handling, use, operation, processing and/or storage of the goods and for the avoidance of any risk or damage or injury to persons or property including but not limited to the things for incorporation themselves.
Payments, Instructions and Variations
21 (a) Unless otherwise agreed, payment shall be made to the Sub-Contractor by monthly instalments and in accordance with the provisions of Clause 21.
(b) The Sub-Contractor shall submit an application for payment to the Contractor in respect of each instalment, not later than seven days in advance of the date when the payment for that instalment becomes due. Each application shall be supported by all relevant documentary evidence including a statement showing how the total amount claimed in the application has been calculated. The application for payment shall set out in full the name of the Sub-Contract and the Sub-Contract order number. An application for payment will only be effective to the extent that the information accompanying the application is sufficient for the Contractor to validate the accuracy of the amount claimed. Applications for payment shall take account of the progress of the Works up to the end of the month in which application is made, together with any additions to or deductions from the Sub-Contract price and subject to retention and discount as stated in the Sub-Contract Order or Agreement. Except as otherwise provided herein, the Contractor shall not be obliged to make an instalment payment to the Sub-Contractor unless the Sub-Contractor has submitted an application for payment in compliance with this Clause.
(c) The first payment instalment shall become due on the last day of the month during which the Works were commenced on site, provided always that the Works commenced no later than the fifteenth day of that month. Where the Works commenced on site later than the fifteenth day of any month, then the first instalment shall become due on the last day of the following month. Thereafter applications for payment shall be made at monthly intervals and instalment payments become due at the end of each month. The last monthly instalment payment will become due at the end of the month in which practical completion of the Works is agreed by the Contractor. Payments thereafter shall become due upon the dates when the Contractor agrees that further amounts are due to the Sub-Contractor and/or as provided elsewhere in this contract.
(d) Within 5 days of the date when any payment under this contract becomes due, the Contractor shall issue to the Sub-Contractor a payment notice showing the amount (if any) of the payment proposed to be made and the basis upon which the amount has been calculated. The payment notice constitutes the notice required by Section 110 A of the Housing Grants, Construction and Regeneration Act 1996.
(e) For the avoidance of doubt, the payment application referred to in clause 21 (b) above shall not constitute a valid notice for the purposes of section 110B of the Housing Grants Construction and Regeneration Act 1196 as currently amended.
(f) Where the Contractor wishes to issue a notice of intention to pay less than the notified sum, as provided under section 111 of the Housing Grants Construction and Regeneration Act 1996, the notice shall be given not later than three days before the Final date for payment as defined in clause 21(e).
(g) Except in circumstances where the Contractor has not received payment itself of any sum in respect of the Works by reason of the Employer’s insolvency as defined in Section 113(2) of the Housing Grants Construction and Regeneration Act 1996, the final date for payment of any sum notified (subject to any agreed discount and/or retention) shall be 45 days after the date when the payment becomes due.
22 Unless otherwise specifically stated the price for the Works excludes Value Added Tax (as defined by the Finance Act 1972 or any re-enactment or amendment thereof or substitution therefor) but is inclusive of all other taxes or duties of whatsoever kind.
23 The Contractor operates a self-billing invoice scheme which shall apply to the Sub-Contractor details of which will be supplied to the Sub-Contractor.
24 The Sub-Contractor must sign and return the pro-forma Order or Agreement and any warranties required and must forward details of a valid Sub-Contractor’s CIS tax certificate to the Contractor together with proof of the Sub-Contractor’s Employers Liability, Public Liability, Contractors All Risk and Professional Indemnity (where appropriate) insurance policies before the Sub-Contractor is entitled to received any payment under the terms of this contract. All documents required from the Sub-Contractor for Value Added Tax purposes must be provided upon demand and if they are not provided and/or if no valid tax details are provided (valid UTR or otherwise) then tax may be deducted or withheld from payments by the Contractor.
25 (a) The Contractor shall have the power to give instructions for:
(i) Any variation to the works including any addition or omission (whether or not any omitted works are to be carried out by others)
(ii) Carrying out any test or investigation
(iii) The suspension of the Works or any part thereof.
(iv) Any change in the intended sequence of the Works
(v) The removal and/or re-execution and/or acceptance of any work or materials not in accordance with the contract.
(vi) The exclusion from the site of any person employed thereon.
(b) No instruction shall vitiate this Sub-Contract but the Sub-Contractor should advise the Contractor in writing of all work involving an addition to the Works within 7 days of such addition becoming apparent and at the same time submitting detailed and priced calculations based upon the Sub-Contract price showing such price adjustment, if any. Additions to the Works cannot be undertaken by the Sub-Contractor nor shall he receive payment for such additions without written authority from the Contractor. Where the Sub-Contractor’s price is not accepted by the Contractor then if the Contractor requires the additional work to be carried out the Contractor shall notify the Sub-Contractor accordingly and the said work shall be valued by reference to the Sub-Contractor’s rates and prices for the Works.
(c) Where the basis of the Sub-Contract price for the Works is stated to be a Tender Sum and/or it is agreed that the works are subject to re-measurement, the Sub-Contractor shall submit re-measurements of completed works with each and every application for instalment payment. The priced bills of quantities (if any) or priced schedules, together with the Sub-Contractor’s rates and prices, shall provide the basis for re-measurement. Where and to the extent that the priced schedules are considered by the Contractor to be unsuitable as a basis for re-measurement, the works shall be measured in accordance with the Standard Method of Measurement of Building Works (Seventh Edition) and priced at rates analogous to the Sub-Contractor’s rates and prices, or at fair rates and prices as appropriate.
(d) Where the basis of the Sub-Contract price for the Works is stated to be a ‘Sub-contract sum’ and/or it is agreed that the works are subject to a ‘lump sum’ agreement, for providing the agreed scope pf sub-contract works. In such instances any quantities included in the sub-contractors quotation and/or pricing document are to be regarded as indicative only, with the sub-contractor assuming risk for accuracy within the ‘Sub-contract sum’, the basis of the sum being the works as defined and detailed on the drawings. Such drawing applicable being listed in the Numbered documents in particular ND6.
26 The final date for payment to the Sub-Contractor for the retention referred to in Clause 21 (e) above less any deductions properly made there from in accordance with Clause 10 (c) or any other permissible basis shall be as to one half thereof 45 days after the issue of the Certificate of Practical Completion by the Architect or Engineer under the Main Contract and as to the remaining half thereof the final date shall be:
(a) 45 days after the issue of the certificate of making good of defects by the Architect or Engineer under the Main Contract, or
(b) 14 days after agreement between the parties of the amount finally due in respect of the Works is confirmed in writing by the Contractor,
whichever is the later.
27 No Daywork will be permitted except where, in the sole opinion of the Contractor, it would be unfair to value such work at other than daywork rates. Where the Sub-Contractor considers he has a claim for daywork, due notice must be given to and approved by the Contractor in writing prior to the execution of the work, in order to facilitate checking the time and materials expended thereon and all daywork sheets shall be submitted to the Contractor by the end of the week during which the work is executed. The signature of the Contractor’s representative on any daywork sheet shall be an acknowledgement only that work has been done and shall not bind the Contractor to pay for the work recorded on a daywork basis or at all. Failure by the Sub-Contractor to comply with the provisions of this clause will disentitle the Sub-Contractor from any right to claim daywork charges.
28 No claims for overtime/unsociable working hours/acceleration costs will be paid under any circumstances unless first agreed and Instructed in writing by the Contractor. Regarding all claims a ‘statement of truth’ must be submitted as condition precedent to any claim(c) for further alleged entitlement, this must be signed by a Director of the Sub-contractor business to validate the legitimacy of any such claims. Claim(s) being defined as any application for additional entitlement, payment or otherwise, outside the agreed Order scope and simple variation.
Maintenance and Defects
29 The Sub-Contractor shall:
(a) maintain the works to the Contractor’s the Employer’s and any Architect’s or Engineer’s satisfaction both during the progress of the Works and until the completion of the Main Contract Works and
(b) make good at his own expense and at a time to be decided by the Contractor, any defects, imperfection, shrinkage or damage to the Works whether before or after completion of the Main Contract Works.
30 The Sub-Contractor shall commence any rectification/maintenance works required within 7 days of the Contractor’s instructions to proceed with any such works and shall complete the same within a reasonable period. In the event of the Sub-Contractor failing to comply with this clause, the Contractor may undertake to carry out the Works and set off, in accordance with Clause 10 herein, the costs of carrying out such works against sums which would otherwise become due to the Sub-Contractor.
Requests for Information
31 The Contractor shall not be liable to the Sub-Contractor in respect of or in relation to any disruption or delay caused to the Sub-Contractor or to the Works arising from or in connection with the late receipt by the Sub-Contractor of any instructions, drawings, levels or any other information unless the Sub-Contractor has made an application to the Contractor for such instructions, drawings, levels or other information at a date which is not unreasonably distant from nor unreasonably close to the date upon which it is necessary for the Sub-Contractor to receive the same.
Termination and Suspension
32 (a) The Contractor may terminate the Sub-Contractor’s employment under this Sub-Contract forthwith upon notice in writing to the Sub-Contractor.
(b) Without prejudice to the Contractor’s right to terminate the Sub-Contractor’s employment under Clause 32 (a), if the employment of the Contractor is determined under any clause of the Main Contract Conditions, then the employment of the Sub-Contractor under this Sub-Contract shall thereupon also determine.
(c) Following termination, the Sub-Contractor shall be entitled to be paid for the Works performed up to the date of such termination. Clause 21 and 26 herein shall apply in relation to any further monies the Sub-Contractor believes he is entitled to under the Sub-Contract in addition to those already paid to the Sub-Contractor immediately prior to the termination.
33 Notwithstanding Clause 32 above the Contractor may without prejudice to any other of its rights or remedies summarily determine the Sub-Contractor’s employment under this contract in respect of the whole or any portion of the Works if the Sub-Contractor
(a) suspends the Works or any part thereof (otherwise than by way of a valid suspension under Clause 35 herein) or fails to proceed regularly and/or diligently with the Works to the reasonable satisfaction of the Contractor
(b) fails forthwith upon notice from the Contractor to commence work to remedy any defective workmanship and/or materials or incomplete work or fails to proceed with such remedial work with due diligence or to complete such remedial work to the satisfaction of the Contractor or the Architect, Engineer or client’s representative within a set period as the Contractor may specify in the said notice or if none is so specified within a reasonable time;
(c) fails to complete and deliver up the whole or any portion of the Works by the time or times specified or by such extended time or time as may be allowed by the Contractor;
(d) fails to comply with an instruction under Clause 25.
(e) makes any arrangements with his creditors, has a Receiving Order made against him or commits an act of bankruptcy or, being a limited company, goes into liquidation or has a Receiver or Administrator appointed or fails to pay his debts as they fall due;
(f) fails to comply with any of the obligations on the part of the Sub-Contractor herein contained or if the Main Contract is determined by the Employer as a consequence (whether in whole or in part) of any breach of this Sub-Contract by the Sub-Contractor, such including any fundamental breaches of Health, Safety and Environmental legislation or company policy which in the opinion of the contractors HS&E manager are not acceptable.
34 Upon determination under the foregoing clause the Sub-Contractor shall not be entitled to compensation and shall not remove any of his equipment, materials or property from the site and notwithstanding anything contained in these conditions, shall be entitled to no further payment until completion of the Works by the Contractor or by others whereupon the Sub-Contractor shall become entitled to payment in accordance with Clause 26 for Works executed by the Sub-Contractor subject always to the right of the Contractor to set off in accordance with Clause 10 herein all loss expense and damages suffered or which may be suffered by the Contractor by reason of such determination and subject further to any other right of set off which the Contractor may have. For the purposes of such completion the Contractor shall have the free use of the Sub-Contractor’s equipment, materials and property on the site without responsibility to the Sub-Contractor for fair wear and tear thereof and to any materials or fabricated work lying at the Sub-Contractor’s works or workshop which have been bought or fabricated for the purposes of the Sub-Contract.
35 (a) The Sub-Contractor may only suspend performance of its obligations under the Sub-Contract where:
(i) The payment notified in a payment notice issued pursuant to Clause 21 (d) is not made in full by the final date for payment in accordance with Clause 21 (e); and
(ii) No effective notice to withhold payment has been given in accordance with Clause 10 (c); and
(iii) The Sub-Contractor has given at least 14 days written notice of his intention to suspend performance stating the ground or grounds upon which it is intended to suspend performance.
(b) The right to suspend ceases where the Contractor makes payment in full of the amount due in accordance with the Sub-Contract.
(c) The period of suspension shall begin on the first day that performance is actually suspended and will cease on the earlier of the dates when relevant payment under Clause 35 (b) is discharged or the Sub-Contract is determined in accordance with Clause 32 or 33.
(d) To the extent that a suspension is found to be invalid for whatever reason and howsoever the Sub-Contractor shall indemnify the Contractor in respect of any costs, charges, damages or any other loss arising, including liquidated damages under the Main Contract, incurred by the Contractor and arising out of the invalid suspension.
Liabilities to Third Parties
36 In any proceedings whether by arbitration or litigation or howsoever arising from or in connection with the Works, the Sub-Contractor shall not rely upon the Limitation Act 1980 nor any modification or re-enactment thereof in the defence to any claim that the Contractor may bring against the Sub-Contractor resulting from claims made by any third party (including the Employer) against the Contractor, except insofar as the Contractor may rely upon such Act in the defence of a claim made or proceedings brought against him.
37 If stated elsewhere in the contract documents, the Sub-Contractor shall, prior to the commencement date or at such time and with such person as the Contractor may stipulate enter into an agreement with the Employer or other interested party substantially in the form of the Sub-Contractor Form(s) of Warranty attached to the Sub-Contract Order or Agreement.
38 (a) In the event that any dispute or difference arises under the Sub-Contract, the Contractor or the Sub-Contractor may at any time serve a written Notice of Adjudication on the other party indicating his intention to refer the dispute to adjudication under the procedural rules for adjudication known as the CIC Model Adjudication Procedure: Fourth Edition, published in March 2007.
(b) The Notice of Adjudication shall include a brief statement of the issue or issues which it is desired to refer to adjudication together with the redress sought. The referring party shall send a copy of the Notice of Adjudication to the adjudicator.
(c) The adjudicator shall be the person named in the Sub-Contract documents (if any). The named adjudicator shall within two days of receiving the Notice of Adjudication confirm his availability to act. The adjudicator will be appointed on the terms and conditions set out in the form of agreement attached to the CIC Model Adjudication Procedure. In the event that the Contractor and Sub-Contractor are unable to agree additional or specific terms of appointment of the adjudicator the Contractor will determine in its absolute discretion the terms of the appointment.
(d) If no adjudicator is named or if the named adjudicator does not so confirm the adjudicator shall be appointed in accordance with the procedure set out in Rule 10 of the CIC Model Adjudication Procedure as amended by this Sub-Contract.
(e) The CIC Model Adjudication Procedure: Fourth Edition as amended below will form part of the Sub-Contract. The amendments set out below shall, as provided in Rule 7 of the procedure, prevail over the CIC Model Adjudication Procedure. The amendments are as follows:
(i) Rule 19 - DELETE and SUBSTITUTE
“The adjudicator may obtain legal or technical advice provided that he has obtained the consent of both Parties and only upon receipt and approval by the Parties of a Cost Estimate from the individual or body providing the advice. He shall provide the Parties with copies of any written advice received.”
(ii) Rule 24 – DELETE final sentence and ADD
“He shall be required to give written reasons supporting his decision.”
(f) The Sub-Contractor shall hereby indemnify the Contractor in respect of any costs, charges, expenses, damages, or any other loss resulting from an adjudicator’s award which is subsequently changed or amended in favour of the Contractor by a decision of an arbitrator or the Court.
(g) Any adjudicator appointed pursuant to this clause shall be prohibited from appointment as an arbitrator under this Sub-Contract pursuant to Clause 39 (a).
39 (a) In the event of any dispute or difference between the Contractor and the Sub-Contractor, whether arising during the execution or after the completion or abandonment of the Works or after the determination of the employment of the Sub-Contractor, in regard to any matter or thing of whatsoever nature arising out of the Sub-Contract or in connection therewith then either party shall give to the other notice in writing of such dispute or difference and such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties, or, failing such agreement with 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President of Vice President for the time being of the Chartered Institute of Arbitrators. Provided that if the dispute or difference between the Contractor and the Sub-Contractor is substantially the same as a matter which is a dispute or difference between the Contractor and the Employer under the Main Contract the Contractor and the Sub-Contractor hereby agrees that such dispute or difference shall be referred to an Arbitrator appointed or to be appointed pursuant to the terms of the Main Contract who shall have power to make such directions and all necessary awards in the same way as if the procedure in the High Court as to joining one or more defendants or joining co-defendants or third parties was available to the parties and to him and in any case the Award of such Arbitrator shall be final and binding upon the parties.
(b) Provided that, if the Sub-Contractor wishes to commence arbitration proceedings as aforesaid it must notify the Contractor in writing of the said dispute or difference making specific reference to this clause and within three months from the date of the notice have requested the Contractor to concur in the appointment of an Arbitrator failing which his claim or claims in the proposed arbitration shall be deemed for the purposes of any proceedings whatsoever to be waived and absolutely barred.
(c) In the event that the Sub-Contractor commences arbitration proceedings as aforesaid, the Sub-Contractor shall as a condition of being allowed to proceed with the arbitration provide reasonable security to the Contractor and the Arbitrator in respect of the costs and expenses likely to be incurred by the Contractor and the Arbitrator in relation to such proceedings such security to be in an amount and/or the form to be decided at the sole discretion of the Contractor. Without prejudice to the generality of the above such security may take the form of cash deposited with the Arbitrator, as trustee-stakeholder in such amount as the Contractor shall bonafide estimate as representing the likely costs and expenses arising from or in relation to the said proceedings including the likely costs and expenses to be incurred by the Arbitrator.
(d) The parties agree that any Arbitrator appointed pursuant to Clause 39 shall not have any power to limit recoverable costs of any arbitration under Clause 65 of the Arbitration Act 1996 or otherwise.
40 In any such arbitration or other legal proceedings as provided for herein any decision, opinion, certificate or award of the Architect, Engineer, Client’s Representative or Arbitrator appointed under or pursuant to the Main Contract which is final and binding on the Contractor under the terms of the Main Contract shall also be final and binding between the Contractor and the Sub-Contractor.
41 Service of any Notice of Adjudication and/or any other Notice or document referred to in Clauses 38 and 39 herein shall be effectively made by the following means:
(a) By the Sub-Contractor upon the Contractor by pre-paid post (and by fax on the same day as posting) addressed to Danabray Limited, One Quartz Point, Stonebridge Road, Coleshill, Birmingham, B46 3JL stating the site address and Sub-Contract Order Number.
(b) By the Contractor upon the Sub-Contractor by pre-paid post (and by fax on the same day as posting) to the Sub-Contractor’s last known principal business address.
42 (a) The Sub-Contractor is to note that the Contractor’s preferred method of dispute resolution is mediation and the Sub-Contractor hereby undertakes to do everything necessary to prevent disputes and/or to co-operate with the Contractor to resolve all differences through conciliatory means if possible. Where the parties elect to resolve disputes via mediation, the management of the process will be by a single mediator agreed by the parties; or where the parties cannot agree a suitable person, a single mediator appointed by application of the Contractor to the Centre for Dispute Resolution (“CEDR”).
(b) The parties agree that the mediator shall have the power to determine the timetable and procedure to be followed and the right to visit site and request whatever documentation may be necessary for him to gain an understanding of the positions of the parties. In any event, the mediation process shall be treated as abandoned if not ended by agreement of the parties within 3 months from the mediator’s appointment
43 This Sub-Contract shall be governed by and construed in accordance with English Law.
44 Further to provisions under clause 32 to 34 regarding Termination, In the event of the employment of the sub-contractor being terminated then the contractor shall be entitled to suspend all payments until there has been secured to Contractor satisfaction the performance of sub-contractor obligations under or arising from the sub-contract insofar as they remain to be performed including actual or contingent liability to remedy defects and/or until the Contractor ceases to have liability under or arising from the main contract for defects.
45 The sub-contractor has agreed that Norjen has the right to make cross contract sett off in all instances where the sub-contractor is employed on more than one project for the Norjen business. Such sett off can be made for any purposes be this overpayment on another contract, contingent liability or otherwise. The contractor will provide an assessment of cross project account in such instances.
46 Definitions: any reference to Contractor is deemed to be reference to Danabray Limited and not the main contractor or otherwise, reference to sub-contractor is the other contracting party with whom the Contractor is intending to be legally bound, responsibilities wise including all persons being employed by same i.e. any ‘sub-sub-contractors’ for which the sub-contractor is unequivocally responsible for in all respects.