SUB-CONTRACT CONDITIONS FOR SUB-CONTRACT WORKS
1. Definitions.
In the Sub-Contract (as hereinafter defined) all words and expressions have the same meaning as in the Contract (as hereinafter defined) unless otherwise provided or where the context otherwise requires.
a. “the Contractor” means the person so named in the Sub-Contract Order. “The Sub-Contract Order” means the Contractor Official Sub-Contract Order in which these Sub-Contract Conditions are incorporated.
b. “the Sub-Contractor” means the person so named in the Sub-Contract Order.
c. “the Sub-Contract” is as defined in the Sub-Contract Order.
d. “the Sub-Contract Conditions” means the clauses of these Sub-Contract Conditions.
e. “the Sub-Contract Works” means the Sub-Contract works referred to in the Sub-Contract Order and/or described in the Subcontract, including any Sub-Contract Variations.
f. “Sub-Contract Variation” means a variation of the Sub-Contract Works, whether by way of addition, modification, or omission, ordered in writing by the Contractor, but not otherwise.
g. “the Sub-Contract Price” means the Sub-Contract price specified in the Sub-Contract Order as payable to the Sub-Contractor for the Sub-Contract Works, as adjusted by only such additions to and deductions from such price as are provided by these Sub-Contract Conditions, and net of any discount specified in the Sub-Contract; provided that where the context or subject matter requires, the ‘Sub-Contract Price’ means an amount forming part of the Sub-Contract price specified in the Subcontract Order adjusted as aforesaid.
h. “Valuation Interval” means the valuation interval specified in the Sub-Contract Order, which intervals shall run from such date after the start of the Sub-Contract Works on site as the Contractor shall reasonably decide to suit its payment procedures.
i. “Certification Period” means the certification period specified in the Sub-Contract Order.
j. “Payment Period” means the payment period specified in the Sub-Contract Order.
k. “the Contract” means the contract between the Contractor and the Contractor’s Client for the Contract Works, particulars of which contract are given in the Sub-Contract Order.
l. “the Contractor’s Client” means the person so named in the Sub-Contract Order.
m. “the Contract Supervisor” means the Architect, Contract Supervisor, Engineer, Supervising Officer, Project Manager, or other person appointed by the Contractor’s Client to administer the Contract or, if it stated in the Sub-Contract Order that the Contract is a sub-contract, then the Contractor’s Client.
n. “the Contract Works” means the works to be executed by the Contractor under the Contract and of which the Sub-Contract Works form part.
o. “Adjudication Procedure” means the Contract adjudication procedure or, if the Contract does not include an adjudication procedure, means Part I of the Scheme for Construction Contracts (England and Wales) Regulations 1998) or any amended or modified version thereof current at the time of the appointment of the adjudicator.
2. Words importing the singular also include the plural and vice-versa where the context requires. All references in the Sub-Contract Conditions or Sub-Contract Order to clauses are references to clauses numbered in the Sub-Contract Conditions and not to those in any other document forming part of the Sub-Contract unless otherwise stated.
3. A communication shall be deemed to have been given to the Sub-Contractor when it is delivered to them in writing or his agent (whether on or off the site), or, if sent by post, fax or e-mail to the agreed address or registered office or last known address of the Sub-Contractor, when in the ordinary course of post, fax or e-mail it would have been received at that address. Each communication to the Contractor shall be served by actual delivery by hand or pre-paid post to the registered office of the Contractor or to the last address of the Contractor that has been specifically notified in writing by the Contractor for receiving communications from the Sub-Contractor under the Sub-Contract.
4. The Sub-Contractor shall execute and complete the Sub-Contract Works in accordance with the Sub-Contract and to the satisfaction of the Contractor and of the Contract Supervisor and in conformity with all the directions and requirements of the Contractor. Further the Sub-Contractor shall execute and complete the Sub-Contract Works with due diligence and in a good and workmanlike manner and with all reasonable skill and care. All materials, goods and workmanship shall also be to a standard acceptable to the Contractor and to the Contract Supervisor.
5. Where any design for the Sub-Contract Works (including but not limited to any specifications for the kinds or standards of materials, goods or workmanship) has been or will be prepared or completed by or on behalf of the Sub-Contractor, the Sub-Contractor shall be fully responsible to the Contractor for such design, including but not limited to ensuring that such design is entirely suitable for the purposes for which it is required under the Contract and in particular is compliant in every respect with (amongst other things) all and any performance specifications and/or requirements included in the Contract and/or in the Sub-Contract and with the law applicable to the Contract Works and that all necessary statutory permissions and consents are obtained.
6. The Sub-Contractor shall provide all supervision, labour, materials, goods, vehicles, plant, equipment, tools, services (storage, accommodation, access and other facilities, setting-out, temporary works as agreed with the Contractor) and everything whether of a permanent or temporary nature required for the execution and completion of the Sub-Contract Works, except only the things, if any, specified in the Sub-Contract Order as to be provided by the Contractor for the Sub-Contract Works.
7. The Sub-Contractor shall not assign the whole or any part of the benefit of or any interest in the Sub-Contract without the express written consent of the Contractor. The Sub-Contractor shall not sub-let the whole or any part of the Sub-Contract Works or any design work without the express written consent of the Contractor. No assignment or sub-letting by the Sub-Contractor shall in any way relieve the Sub-Contractor of any of his obligations, responsibilities or liabilities under the Sub-Contract.
8. The Sub-Contractor shall be deemed to have had reasonable opportunity of inspecting and copying all the provisions of the Contract (other than the Contractor’s prices included in the Contract) and to have full knowledge of all of the provisions of the Contract (other than such prices). The Contractor shall, if so requested, provide the Sub-Contractor with a true copy of the Contract (other than such prices), at the Sub-Contractor’s expense. The Sub-Contractor shall observe, perform, comply with and be bound by all the provisions of the Contract so far as they are to be observed, performed or complied with by the Contractor or bind the Contractor and relate to and/or are applicable to the Sub-Contract Works or any part thereof and are not repugnant to or inconsistent with the express provisions of the Subcontract as if all the same were severally set out herein. Without prejudice to the generality of the foregoing, whenever the Contractor is required by the terms of the Contract to give any proposal, return, account, notice, drawing, detail, estimate, quotation or other information the Sub-Contractor shall in relation to the Sub-Contract Works give a similar proposal, return, account, notice, drawing, detail, estimate or quotation or such other information in writing to the Contractor as will enable the Contractor to comply with such terms of the Contract and shall do so in sufficient time to enable the Contractor to comply with such terms punctually. For the avoidance of doubt, nothing herein shall however be construed as creating any privity of contract between the Sub-Contractor and the Contractor’s Client and the Sub-Contractor shall not be entitled to receive the benefit of any right or claim under the Contract.
9. The Sub-Contractor shall indemnify the Contractor against each and every liability which the Contractor may incur at any time to any other person whatsoever and against all claims, demands, proceedings, damages, costs and expenses made against or incurred at any time by the Contractor by reason of any breach by the Sub-Contractor of the Sub-Contract.
10. The Sub-Contractor shall before procuring any materials or goods for the Sub-Contract Works give adequate notice in writing to the Contractor of any discrepancies and/or divergences in or between any of the documents included in the Sub-Contract.
11. Save where the contrary is expressly stated in any bill of quantities, schedule of rates or the like forming part of this Sub-Contract, no quantity stated therein shall be taken to define or limit the extent of any work to be done by the Sub-Contractor in the execution and/or completion of the Sub-Contract Works.
12. The Contractor shall permit the Sub-Contractor to use such scaffolding (if any) for the purposes of the Sub-Contract Works as is from time to time erected by the Contractor for the Contract Works. Such permission shall not imply any warranty as to the fitness, condition, or suitability of any such scaffolding. The Sub-Contractor shall satisfy himself that all such scaffolding (if any) complies with current safety rules and regulations. The Contractor shall not be bound to provide or retain scaffolding for the Sub-Contractor’s use.
13. Health and Safety
13.1 The Sub-Contractor shall observe and adhere to the Main Contractor’s Site Safety Plan and Safety Policy at all times (copies of which is available for inspection on site and at the Main Contractor’s trading address during normal working hours).
13.2 The Sub-Contractor shall observe and adhere to all provisions of the Health and Safety Legislation, CDM Regulations and any subsidiary regulations.
13.3 The Sub-Contractor shall provide at the offices of the Main Contractor the following documents prior to commencement of the Sub-Contract Works to the satisfaction of the Main Contractor and its Safety Officer:-
i) Sub-Contractor’s Risk Assessment.
ii) Relevant COSHH (Control of Substances Hazardous to Health) Assessment Sheets.
iii) The Sub-Contractor’s Safety Method Statement.
iv) Sub-Contractor’s Safety Policy.
v) Completed Health & Safety Questionnaire for inclusion within the Site Safety Plan.
13.4 The Main Contractor will require the removal from site of any of the Sub-Contractor’s operatives/staff not conforming with safety requirements.
13.5 The Sub-Contractor shall supply adequate personal protection equipment for his operatives and others affected by his Sub-Contract Works.
13.6 The Sub-Contractor and its operatives are not to allow any children or dogs into the site.
13.7 All of the Sub-Contractor’s personnel are required to “sign in” upon arrival at the site and “sign out” at departure. The signing-in record will be at a point designated by the Manager.
13.8 The Main Contractor may provide a safety booklet for each operative working on the site who must sign to confirm receipt and the Sub-Contractor is to ensure that their operatives have read, fully understood and comply with its contents.
13.9 Save as set out in the Order, the Main Contractor will not provide any parking facilities on site, and the Sub-Contractor must make arrangements for parking of their vehicles. Should any vehicles be parked upon the site they are entirely at the owner’s risk and the Sub-Contractor must inform operatives accordingly.
13.10 Save as set out in the Order, smoking and the consumption of alcohol on site is strictly prohibited.
13.11 The Sub-Contractor must comply with the Considerate Contractor’s Scheme (or its equivalent/replacement).
13.12 No payments will become due under the sub-contract if any of the requirements of clause 2.2 and/or clause 9 and/or their sub-clauses are not met in full.
14. The Sub-Contractor acknowledges and accepts that the Site will be subject to the Working Rules nominated by the Contractor, and that in particular the Sub-Contractor will be required to observe the site close down periods, working hours and safety regulations consequent upon such Working Rules.
15. The Contractor shall not at any time be bound to give to the Sub-Contractor exclusive or uninterrupted possession of or access to work areas. The Sub-Contractor shall comply with the Contractor’s requirements for the progress and sequencing of the execution of the Subcontract Works and the co-ordination thereof with other parts of the Contract Works and which are notified from time to time in writing by the Contractor.
16. The Sub-Contractor shall commence the Sub-Contract Works on site on the Date for Commencement specified in the Sub-Contract Order or any such amended date as advised and shall complete the Sub-Contract Works within the Period for Completion stated in the Subcontract Order, calculated from the said Date for Commencement, subject only to such extension of the Period for Completion as is fair and reasonable for breach (if any) of the Sub-Contract by, or any act of prevention by, the Contractor.
17. Where differing Periods for Completion are specified in the Sub-Contract for different parts of the Sub-Contract Works on site then each such part of the Sub-Contract Works shall be treated separately in accordance with the provisions of Clause 17.
18. The Sub-Contractor shall give to the Contractor prompt notice and full particulars in writing of any actual or potential delay in the execution or completion of the Sub-Contract Works or any part of the same.
19. The Sub-Contractor shall be fully responsible for the protection and care of the Sub-Contract Works until practical completion under the Sub-Contract.
20. The Sub-Contractor shall clear away all debris, rubbish, skips and other waste material arising from the Sub-Contract Works and shall do so at such times and in such manner and to such places, whether on or off the site, as the Contractor may direct. On completion of the Sub-Contract Works the Sub-Contractor shall remove from the site all his equipment and other things and shall leave the Sub-Contract Works and such other places on the site as may have been made available to him, clean, tidy and in a workmanlike condition to the satisfaction of the Contractor.
21. The Sub-Contractor shall maintain the Sub-Contract Works and shall make good such defects, shrinkages, imperfections, and other faults in or caused by the Sub-Contract Works as the Contractor is liable to make good under the Contract for the like period and otherwise upon the like terms as the Contractor is liable to do under the Contract and until the Certificate of Making good defects has been issued by the Supervising Officer.
22. The Sub-Contractor shall make such Sub-Contract Variations as may be ordered in writing by the Contractor, but not further or otherwise. The value of such authorised Sub-Contract Variations shall be ascertained by reference to the rates and prices, if any, specified in the Subcontract for similar or analogous work, but if there are no such rates or prices, or if they are not applicable, then the value shall be such as is reasonable in all the circumstances. Provided that, where the Contractor and the Sub-Contractor have specifically agreed in writing a price for a Sub-Contract Variation, whether by acceptance of a quotation prepared by the Sub-Contractor and submitted to the Contractor specifically for the Sub-Contract Variation or by negotiation of a price specifically for the Sub-Contract Variation, such price (less the discount percentage, if any, specified in the Sub-Contract) shall be deemed to be the full and only amount to which the Sub-Contractor is entitled in respect of such Sub-Contract Variation. The value of authorised Sub-Contract Variations shall be added to or deducted from the Sub-Contract price specified in the Sub-Contract Order, as the case may require.
23. The Sub-Contractor shall not act upon any instruction in connection with the Sub-Contract Works which is received by him directly from the Contractor’s Client or the Contract Supervisor or any of their respective agents. If the Sub-Contractor shall receive any such instruction, then the Sub-contractor shall forthwith inform the Contractor’s agent in charge of the Contract Works thereof and shall provide such agent with full written details of such instruction.
24. The Sub-Contractor shall, specifically for the purpose of the verification of the resources and of their times and/or quantities, give the Contractor adequate prior notice in writing of the execution of any work for which he intends to claim payment on a daywork basis or the like. It shall be a condition precedent to any right of the Sub-Contractor to receive any payment for any daywork or the like that at the end of each working day he shall have provided the Contractor with a voucher specifying each person and the time, the work and the other resources involved, and which has been signed on behalf of the Sub-Contractor and by the Contractor’s agent in charge of the Contract Works. No such voucher signed or agreed on behalf of the Contractor shall of itself be taken as an order for the execution of the work or as acceptance that the work shall be valued on a daywork basis or the like.
25. The Sub-Contractor shall be deemed to have inspected and examined the site and made all necessary investigations and to have satisfied himself before entering the Sub-Contract as to the correctness and sufficiency of the Sub-Contract Price to cover all his obligations, risks and responsibilities under the Sub-Contract.
26.
(1) Subject to the provisions of the Sub-Contract Conditions, the Sub-Contract Price shall be paid in accordance with the following provisions of Clause 27.
(2) The Sub-Contractor shall submit to the Contractor interim applications for payment and a final application for payment in accordance with Clause 27. Each application so submitted shall constitute a “valid application” for the purposes of Clause 27, but not otherwise.
(3) Applications for payment shall be submitted not earlier than 14 days before, and not later than 3days prior to the Valuation Date specified in the Sub-Contract Particulars until the first Valuation Date occurring after practical completion of the Sub-Contract Works.
(4) The final application for payment shall be submitted not later than 28 days after practical completion of the Sub-Contract Works. Provided always that if the Sub-Contractor carries out further work for which he would be entitled to payment under this Sub-Contract after the date he gives the final application for payment to the Contractor he may issue a further final application which shall be treated in the same manner under this Sub-Contract as the final application for payment referred to in the first sentence of this clause 27(4).
(5) Each application for payment shall be in writing and be for the value of the work properly executed on site by the Subcontractor under the Sub-Contract as at the Valuation Date. Such value shall be calculated based on the Subcontract Price. Each application shall include and separately specify each and every sum that the Sub-Contractor considers is due or should become due to him under the Sub-Contract, and shall also include all invoices, timesheets, measurements, records and other information necessary to substantiate calculation of the amount due, any further details required by this subcontract and any further supporting information that the Contractor reasonably requests.
(6) Each interim payment (if any) due to the Sub-Contractor shall be the amount calculated and determined by the Contractor based on the current valid application, less the deductions permitted by the Sub-Contract.
(7) The final payment due to the Sub-Contractor shall be the Sub-Contract Price calculated and determined by the Contractor based on the final valid application, less the deductions permitted by the Sub-Contract.
(8) The sum due shall be after the deduction of previous payments and of discount and retention monies at the rates specified in the Sub-Contract Order and of any other monies whatsoever which are due to the Contractor from the Sub-Contractor.
(9) Subject to the provisions of the Sub-Contract Conditions, the sum determined by the Contractor under Clause 27 shall become due on the expiry of the Certification Period calculated from the Valuation Date, or, in the case of the final account, 3 calendar months after receipt of the application pursuant to clause 27(4), and shall be paid by the Contractor to the Sub-Contractor, or the Sub-Contractor to the Contractor, as the case may be, by the expiry of the Payment Period (‘The final date for payment’).
(10) The Contractor shall within 5 days after the date on which a payment becomes due under the Sub-Contract notify the Subcontractor in writing of the sum that he considers to be due or to have been due at the payment date and the basis on which it is calculated.
(11) If the Contractor fails to issue a notice pursuant to sub-clause 27(10), the amount of the payment made pursuant to clause 27(9) shall, but subject always to sub-clause 27(14), be the amount specified in the Sub-Contractor’s Valid Application. Provided always that no payment shall become due if the Sub-Contractor has not submitted a Valid Application pursuant to sub-clause 27(2) or 27(4) as the case may be at the time required by clause 27(3) which includes the information specified in sub-clause 27(5).
(12) Subject to the provisions of the Sub-Contract Conditions, a payment of the retention monies referred to in Clause 27(8) shall become due in accordance with the retention release provisions set out in the Sub-Contract Order. Not later than 5 days after payment of any retention money becomes due the Sub-Contractor shall issue a payment notice specifying the amount he considers is or will become due and the basis on which it is calculated. Subject to clause 27(14), payment of the amount specified as due in the Sub-Contractor’s notice shall be made not later than 28 days after the due date or 28 days after receipt of the Sub-Contractor’s payment notice, whichever is the later.
(13) Notwithstanding anything to the contrary elsewhere in this Sub-Contract, if the Employer is insolvent the Contractor shall not be obliged to make any further payment to the Sub-Contractor of any amount which is due or may become due to the Sub-Contractor under the Sub-Contract, except only if and to the extent that the Contractor has received payment in respect thereof from the Employer. For the purposes of this clause ‘insolvent’ has the same meaning as in Section 113 of the Housing Grants, Construction and Regeneration Act 1996 or any amendment or re-enactment thereof for the time being in force.”
(14) If either Party intends to pay less than the sum notified pursuant to sub-clause 27 (10), 27(11) or 27(12), as the case may be, he notifies the other Party not later than one day (the prescribed period) before the final date for payment, specifying the amount he considers due on the date the notice is served and the basis on which it is calculated. A party does not withhold payment of an amount due under this subcontract unless he has notified his intention to pay less than the notified sum as required by this subcontract.
(15) Without prejudice to any other rights or remedies which the Contractor may possess and subject only to Clause 27(14), the Contractor shall be entitled to deduct and withhold from any monies otherwise payable to the Sub-Contractor whether under the Sub-Contract or otherwise any sum or sums agreed by the Sub-Contractor as due to the Contractor or awarded in any adjudication, arbitration or litigation in favour of the Contractor and against the Sub-Contractor or any sum or sums which the Contractor has suffered or incurred or anticipates suffering or incurring by reason of any breach of or any failure to observe the provisions of the Sub-Contract (or of any other contract between the Contractor and the Sub-Contractor) by the Sub-Contractor.
(16) Notwithstanding any provision to the contrary contained in the Sub-Contract, the final date for payment in relation to any sum due to the Sub-Contractor under the Sub-Contract shall not arise until at the earliest 14 days after whichever is the later of the following dates, namely:
(a) the date of receipt by the Contractor of the Acceptance of Sub-Contract Order properly executed by the Subcontractor in the manner required by the Sub-Contract Order, or
(b) the date of receipt by the Contractor of the receipts referred to in Clause 30 in respect of previous payments to the Sub-Contractor under the Sub-Contract.
(17) If the Sub-Contract Price as referred to in Clause 27(7) has not been agreed in writing between the parties within 28 days from the later of the date on which the Sub-Contractor fulfilled his obligations pursuant to clause 22 and the date on which the Contractor’s written notification to the Sub-Contractor of the amount of such Sub-Contract Price was served, then the Contractor may at any time thereafter state in writing to the Sub-Contractor that he requires acceptance by the Sub-Contractor of such Sub-Contract Price and the resultant balance due so notified by the Contractor. The Sub-Contract Price and balance due so stated to the Sub-Contractor shall be final and binding on the Sub-Contractor as to the full and final sum due to the Sub-Contractor under and/or arising out of the Sub-Contract (subject only to Clause 27(10) – release of retention monies) unless the Sub-Contractor has within 21 days from the date of such statement served on the Contractor a notice disputing such Sub-Contract Price and such balance due and giving the Sub-Contractor’s reasons for disagreement and a fully detailed calculation and explanation of the amount that the Sub-Contractor considers should have been determined as being the Sub-Contract Price referred to in Clause 27(7) (the final statement).
27. If in the opinion of the Contractor, the Sub-Contract is a labour only agreement then the Contractor shall be entitled to deduct and withhold from payments otherwise due to the Sub-Contractor under the Sub-Contract the then current construction industry training board levy applicable to payments under such agreements.
28. The Contractor shall be entitled to make the statutory deduction required by the construction industry scheme of the Inland Revenue from all or any payments made or to be made by the Contractor to the Sub-Contractor unless the Sub-Contractor holds and produces to the Contractor a valid tax certificate authorised by the Inland Revenue. Only the original such valid certificate will be regarded as evidence of holding such a certificate, which original shall be produced for inspection as and when may be required by the Contractor.
29. The Contractor and the Sub-Contractor shall, respectively, comply with the law on tax deduction and with the law on Value Added Tax (“VAT”). If the Sub-Contractor fails, within seven days of receiving any payment under this Sub-Contract, to issue to the Contractor a properly completed form of receipt in respect of either amounts paid without deduction of tax or VAT remitted to him, then the Contractor may withhold further payments equivalent to the amount of the outstanding receipt or receipts.
30. The Sub-Contractor shall pay and indemnify the Contractor against all and any liability in respect of any fees and/or charges (including but not limited to any rates, levies, National Insurance Contributions, taxes or the like) legally demandable under any Act of Parliament, any instrument, rule or order made under any Act of Parliament, or any regulation or bye-law of any local authority or of any statutory undertaker in respect of the Sub-Contract Works or in relation to the employment of the Sub-Contractor under the Sub-Contract.
31. The Sub-Contractor shall be liable for and shall indemnify the Contractor against all and any liability incurred at any time by the Contractor in respect of personal injury to or the death or sickness of any person or in respect of loss of or injury or damage to any property, including the Sub-Contract Works and the rest of the Contract Works, which is due to any negligence, breach of statutory duty, omission or default of the Sub-Contractor, his agents.
32. Without in any way limiting his liabilities under the Sub-Contract, the Sub-Contractor shall immediately affect the insurances specified in the Sub-Contract Order and unless the Sub-Contract Order otherwise provides shall maintain such insurances until he has finally performed his obligations under clause 22. Such insurance shall be held with insurers approved in writing by the Contractor to the Subcontractor. If so requested, the policies of insurance and/or premium receipts therefor shall be produced forthwith to the Contractor.
33. The Contractor may at any time require the Sub-Contractor to remove or cause to be removed from the site any person engaged on or in connection with the Sub-Contract Works. Notwithstanding the provisions of this Clause 34, the Sub-Contractor shall remain wholly responsible for carrying out and completing the Sub-Contract Works in all respects in accordance with the Sub-Contract.
34.
(1) Without prejudice to any other rights or remedies the Contractor may possess, the Contractor may at its discretion at any time by written notice to the Sub-Contractor forthwith determine the Sub-Contractor’s employment under the Sub-Contract. The Sub-Contractor’s employment under the Sub-Contract shall forthwith automatically be determined if the Contractor employment under the Contract is determined.
(2) If in the reasonable opinion of the Contractor any determination of the Sub-Contractor’s employment pursuant to Clause 35(1) is wholly or partially as a result of any act, neglect or default of the Sub-Contractor or of any of his agents or is in circumstances where the Sub-Contractor is insolvent or has a receiving order made against him or has presented his petition in bankruptcy or has made an arrangement in favour of his creditors or has agreed to perform the Sub-Contract under a committee of inspection of his creditors or (being a corporation) has gone into liquidation, then without prejudice to any other rights or remedies of the Contractor, the Sub-Contractor shall be liable to the Contractor for all and any losses, damages, costs and expenses made against or incurred by the Contractor by reason of such determination.
(3) Upon any determination of the Sub-Contractor’s employment to which the provisions of Clause 35(2) apply the Contractor may take possession of all or any materials, goods, plant and/or other things whatsoever brought on to the site by or on behalf of the Sub-Contractor and may use them for the purpose of executing and completing the Sub-Contract Works.
35. The rights and remedies of the Contractor as provided in this Sub-Contract are without prejudice to any other rights or remedies that the Contractor may possess. Approval by the Contractor or any other person of any design, work, document or other thing provided by the Sub-Contractor shall not in any way relieve the Sub-Contractor of any of his obligations or liabilities under the Sub-Contract.
36.
(1) If any dispute or difference shall arise between the Contractor and the Sub-Contractor in connection with or arising out of the Sub-Contract, or the carrying out of the Sub-Contract Works (excluding a dispute concerning tax deduction or VAT or any failure to give effect to a decision of an adjudicator) whether arising during the progress of the Sub-Contract Works or after their completion it shall be settled in accordance with the following provisions of Clause 37 and the word “dispute shall be construed accordingly and shall for such purpose include any such difference.
(2) The Contractor and the Sub-Contractor each has the right to refer a dispute arising under this Sub-Contract to adjudication in accordance with Clause 37. Either party may give notice in writing (the “Adjudication Notice”) at any time of his intention to refer such a dispute to adjudication in accordance with Clause 37. The adjudication shall be conducted in accordance with the Adjudication Procedure, including its provisions as to the Adjudication Notice and the appointment of the adjudicator.
(3) Unless the adjudicator has already been appointed, he is to be appointed by a timetable with the object of securing his appointment and referral of the dispute to him within 7 days of the Adjudication Notice. If the adjudicator is unable to adjudicate on a dispute referred to him, a replacement adjudicator shall promptly be appointed in accordance with Clause 37.
(4) The adjudicator shall reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred. The adjudicator may extend the said period of 28 days by up to 14 days with the consent of the party by whom the dispute was referred.
(5) The adjudicator shall act impartially. The adjudicator may take the initiative in ascertaining the facts and the law.
(6) The decision of the adjudicator shall be binding unless both parties otherwise agree to arbitration, or by agreement; the Contractor and the Sub-Contractor shall, without prejudice to their respective rights under the Sub-Contract, comply with the decision accordingly.
(7) The adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his functions as adjudicator unless the act or omission is in bad faith and any employee or agent of the adjudicator is similarly protected from liability.
(8) Notwithstanding any provision to the contrary which may be contained in the Sub-Contract:
(a) the party not making the referral to adjudication (“the responding party”) shall be entitled to respond to the referral at any time within 14 days of receiving a copy of the referral in accordance with Clause 37 or such longer period as is agreed by the parties after such receipt by the responding party, which response shall be issued to the adjudicator and at the same time copied to the referring party and shall include a copy of each document that the responding party intends to rely upon in the adjudication; and
(b) the parties shall bear their own costs of any adjudication under the Sub-Contract and the adjudicator shall not have power to award any such costs; and
(c) the adjudicator may on his own initiative or at the request of either party correct his decision so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity provided that such initiative is taken, or such request is made within 14 days of the notification of his decision to the parties. Any such correction shall be made and notified to the parties within 7 days from when such initiative is taken or such request is made as the case may be and, for the avoidance of any doubt, the parties shall be deemed to have agreed that any such correction forms part of the decision of the adjudicator.
(9) In the event of any inconsistency between Clause 37 and the Adjudication Procedure, Clause 37 shall prevail.
37. The Law of England is the proper Law of this Sub-Contract, and this Sub-Contract shall be construed and governed accordingly.
38. For the purposes of the Contracts (Rights of Third Parties) Act 1999, the Contractor, and the Sub-Contractor hereby declare and confirm that notwithstanding any other term of this Sub-Contract nothing in this Sub-Contract shall be construed as conferring on any third party any right to enforce any term of this Sub-Contract.
Our ordering process creates a legal agreement made up of the above terms along with our Terms of Business. Once signed, our agreement is completed. If our terms are not signed by return and commencement of works takes place, you are deemed to have accepted all of the above.
