1. (a) In this Sub Contract, except insofar as the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, this is to say:- “the Main Contract” means any and every Contract made between the Contractor (as contractor) and one or more third parties (as employers) under which the Contractor undertakes works which includes the Works: such a third party may be a company directly or indirectly controlled by or under the same control, direct or indirect as the Contractor but if that be the case then that Company is excluded from the definition of “the Contractor”:
“the Main Contractor Works” means the work to be carried out by the Contractor under the Main Contract and includes any section thereof:
“the Contractor” means the Company whose name appears at the head of the paper overleaf (“the first Company”) and includes its successors and assigns and also (but subject to the exclusion set out above) any other Company directly or indirectly controlled by or under the same control, direct or indirect, as the first Company to the intent that any act direction or requirement of such other Company in connection with the main Contract.
Works or the Works shall be considered in relation to this Sub Contract as an act direction or requirement of the first company:
“the Works” means the works specified or referred to overleaf and includes any section thereof.
(b) If the first Company is not the Company whose name appears as Contractor in the Main Contract (“the second Company”) then the first Company makes this Sub Contract as an agent for and on behalf of the second Company and accordingly the second Company will be entitled to all the rights and benefits and will be subject to all the obligations respectively given and imposed by the Sub Contract.
2. The Sub Contractor, having had reasonable opportunity of examining the Main Contract and all tender documents delivered herewith or copies thereof, accept the detailed prices of the Contractor included in the Prices Schedules or Bills of Quantities will be deemed to have notice of all the terms of the Main Contract and all such other tender documents accept such detailed prices.
3. The Sub Contractor will execute the Works in accordance with the terms, conditions and stipulations of the Sub Contractor and in accordance with Contractor’s directions and requirements and to the reasonable satisfaction of the Contractor and, if any, of the Architect, (which term includes the Architect, Engineer, Supervising Officer, Consultant or Surveyor as the case may be in the Main Contract and has the same meaning as it bears therein).
4. (a) The Sub-Contractor will observe and perform all the obligations of the Contractor in the Main Contract so far as they relate to the Works, save as provided on this Sub Contract, and will indemnify the Contractor against any loss, damage or claim arising out of his failure to do so.
(b) Without prejudice to the generality of the Clause 4 (a) the Sub Contractor will be responsible for any loss or damage however caused to the Works and his materials, plant, tools, equipment and other property. Without limiting the obligations and responsibilities of the Sub-Contactor under the Sub-Contract:-
(i) To the extent (if any) required by the Main Contract the Contractor will insure or procure the insurance of the Works and all the materials for incorporation therein which are reasonably, properly and not prematurely brought on site for the benefit of both the Contractor and the Sub Contractor. The Contractor reserves the right to effect cover subject to excess particulars of which will be made available by the Contractor at his Head Office upon the written request of the Sub-Contractor addressed to such Head Office. The Sub Contractor will be responsible for any loss or damage failing within any such excesses.
(ii) Save for excepted risks (if any) which are the responsibility of the Employer under the Main Contract and for the insurance (if any) undertaken by the Contractor pursuant to the preceding Sub Clause, the Sub Contractor will insure or procure the insurance of the Works and his materials, plant, tools, equipment and other property against loss or damage however caused (in a manner and to a figure to be approved by the Contractor).
(c) Without prejudice to the generality of Clause 4 (a). The Sub Contractor will indemnify the Contractor against all costs, expenses or liability in respect of death or injury to persons, or loss or damage to property, other than as referred to in Clause 4 (b) arising in connection with the Works and caused directly or indirectly by the Sub Contractor, his servants or agents. Without limiting the obligations and responsibilities of the Sub Contractor under the Sub Contract, the Sub Contractor will insure against all such liability in the like manner and to the extent required by the Main Contract.
(d) The insurance’s to be effected by the Sub Contractor under the two preceding Sub Clauses will be in the name of the Sub Contractor with the interests of the Contractor may effect and keep in force any such insurance’s. The Contractor may pay such premiums as may be necessary for that purpose and from time to time deduct the amount so paid or any part thereof from any monies due or which may become due to the Sub Contractor or may recover the same or any part thereof as a debt due from the Sub Contract.
5.(a) Unless a schedule of Rates is set out or referred to overleaf the Works will be carried out for the sum stated overleaf. If such a Schedule of Rates is set out or referred to overleaf then the Works will be carried out at those rates whether or not a sum is also stated. Subject to Clause 6 hereof there will be no adjustment for fluctuations of basic rates of wages and market costs of materials or either of them unless such basic rates or market costs are set out or referred to overleaf. Such adjustments for fluctuations will be calculated on such rates and market costs in accordance with the relevant Clause in the Main Contract.
(b) Notwithstanding anything herein contained and subject to Clause 6 hereof. If reference is made overleaf to the Sub Contractor’s price being firm or fixed for a limited period, then at the expiry of that period the Sub Contractor will only become entitled to such adjustments for fluctuations as reflect increases or decreases in the Sub Contractor’s materials and labour that take effect after the expiry of that period. Provided always that the Sub Contractor shall not become entitled to such adjustments for fluctuations for any time after the expiry of the limited period unless corresponding adjustments for fluctuations have been granted by the Architect under the terms of the Main Contract.
(c) Nothing herein contained shall be construed as entitling the Sub Contractor to any such adjustments for fluctuations after the expiry of the limited period in respect of any time whether before or after the expiry of that period during which the Sub Contractors shall have made default in failing to proceed regularly and diligently with the works or otherwise in accordance with the terms and conditions of this Sub Contract.
6. (a) The Contractor shall pay to the Sub Contractor in addition to the rates or sum referred to in Sub Clause 5 (a) hereof any Value Added Tax properly chargeable by the Commissioners of Customs and Excise on any goods and services provided by the Sub Contactor under this Sub Contract at the appropriate rates.
(b) The Sub Contractor will at the request of the Architect and the Contractor furnish such information as the Architect or the Contractor may require to satisfy the Architect or the Contractor as to the amount of any such Value Added Tax which may be or become chargeable, decreased or abolished as referred to in this Clause and for this purpose of the Sub Contractor shall keep such books, accounts and any other documents and records that are necessary to enable the Architect and the Contractor to verify the amount of such tax, and shall permit the Architect and the Contractor to inspect them and shall provide such other information as the Architect or the Contractor may reasonably require.
7. (a) At least seven days before the dates for applications for interim payments under the Main Contract (particulars of which dates will be supplied on application by the Sub Contractor to the Contractors Head Office) the Sub Contractor will submit to the Contractor a detailed statement of the value of work properly executed by the Sub Contractor and particulars of materials reasonably, properly and not prematurely brought on site (but only if adequately stored and protected against weather and other risks). If the Contractor is satisfied that the Sub Contractor’s application is true and reasonable, the Contractor will include it in the Contractors next application for payment under the Main Contract, such inclusion will not imply that the Sub Contractor has in any way fulfilled his obligations under the Sub Contract. If requested in writing by the Sub Contactor the Contractor will afford to the Sub Contractor facilities for inspecting the Contractor’s applications for payment under the Main Contract.
(b) Notwithstanding anything herein contained the Contractor shall not be liable to pay to the Sub Contractor any sum or sums in respect of the Works whether in accordance with any Architect’s Certificate whether interim or final unless and until any such corresponding sum or sums are received by the Contractor under the terms of the Main Contract for the account of the Sub Contractor. Subject thereto and to Sub Clause 17 (c) any such sum or sums payable to the Sub Contractor shall be paid within fourteen days of receipt thereof by the Contractor less a discount at the rate stated overleaf.
(c) Retention’s in respect of the Works will be all in accordance with the terms of the Main Contract. Notwithstanding anything herein contained the Contractor shall not be liable to pay to the Sub Contractor any more reducing or releasing any such retention or any part thereof (whether in accordance with any Architect’s Certificate whether Interim or Final) unless and until any such corresponding sums by way of such reductions release are received by the Contactor under the terms of the Main Contract for the account of the Sub Contractor. Subject thereto and to Sub Clause 17 (c) any such sum or sums reducing or releasing any retention payable to the Sub Contactor shall by paid within fourteen days of receipt thereof by the Contractor less a discount at the rate stated overleaf.
(d) Except in respect of any part of the Works where the sum stated overleaf is a firm or a fixed price for all or part of this Sub Contract the Contractor shall be entitled to remeasure the Works properly executed and the materials used on site in connection therewith and any appropriate adjustment shall be made of the sums payable to the Sub Contractor. Any such adjustments shall be in accordance with the Schedules of Rates applicable to this Sub Contract.
8. The Contractor may issue written instructions requiring the Sub Contractor to alter, amend, omit, add to, substitute or otherwise vary the Works (hereinafter called “variations”) but no such variation will vitiate the Sub Contract. ‘Site representatives’ signatures will not be recognised as authorisation for variations without written official confirmation signed by a director of the Contractor. Unless otherwise agreed in writing the amount to be paid or allowed for variations will be settled by the Contractor in accordance with the rates upon which the prices stated or referred to overleaf have been based. The Sub Contractor must not act upon any instructions given direct by the Architect or his representatives or the Employer without first notifying the Contractor of the same and obtaining the Contractor’s written confirmation thereof. Payment will not be made to the Sub Contractor unless such instructions have been issued in accordance with the terms hereof.
9. (a) The Sub Contractor will commence, carry out and complete the Works in accordance with the Contractor’s requirements for the Main Contract Works and in accordance with the progress of the Contractor or other persons engaged in the performance of the Main Contract Works. Any relevant programmes or revised programmes as the case may be, will be available for inspection by the Sub Contractor at the Site Office for the Main Contract Works and it is the duty of the Sub Contractor to inform himself of any revisions to the programme or revised programmes or other requirements of the Contractor which might affect the Works. When the Works include the preparation of designs the Sub Contract must provide and supply to the Contractor and if the Contractor so requires, to the Architect any such particulars as the Contractor may require to enable the Contractor and other Sub Contractors in connection with the Main Contract Works to achieve continuity of work in accordance with Contractor’s requirements.
(b) If, in the opinion of the Contractor, reasonable progress in the performance of the Works is not being maintained, the Contractor (without prejudice to his rights under Clause 18 and any other rights which the Contractor may have arising out of the Sub Contractor’s breach of contract) may after giving written notice to the Sub Contractor employ his own labour or that of other Sub Contractors to improve the progress of the Works. The Sub Contractor will pay or allow to the Contractor any additional costs and expenses incurred by the Contractor as a result thereof including but not limited to all sums expended by the Contractor in securing alternative labour to carry out the Works (including any sums expended by reasons of any increase in the price) and any loss suffered by the Contractor as a result of delays in the carrying out of the Works.
(c) The Sub Contractor will notify the Contractor of any event causing or likely to cause delay in the Works within two days of it occurring or becoming apparent. If such delay is caused by variations or for any reasons (other than breach of the Sub Contract by the Sub Contractor) for which the Contractor could obtain an extension of time under the Main Contract, the Contractor will (but without prior written consent of the Architect if the Contractor deems such consent to be necessary) grant a fair and reasonable extension of the period for completing the Works.
9. (d) If the Sub Contractor fails to complete the works in accordance with his obligations he will pay or allow to the Contractor any loss or damage suffered or incurred by the Contractor and caused by such failure, including (but without prejudice to the generality of the foregoing) any damage which may be payable under the Main Contract, additional labour charges whether by way of overtime or otherwise, hire or rent of plant or equipment and payments to suppliers, specialists, or other Sub Contractors.
10. All defects, shrinkage’s or other faults in the works which the Contractor will be liable to make good under the Main Contract will be made good by the Sub Contractor immediately upon receipt of instructions from the Contractor to do so. If as a result of any defects, shrinkage’s or other faults in the Works, or any damage occasioned by the Sub Contractor to any part of the Main Contract Works, the Contractor or any other Sub Contractor carries out any additional work, the Sub Contractor will pay or allow to the Contractor the cost of execution of such work, but Contract Works, the Contractor of any other Sub Contractor carries out any additional work, the Sub Contractor will pay or allow the Contractor the cost of execution of such work, but such payment or allowance will be without prejudice to the liability of the Sub Contractor in respect of any damages (whether consequential or otherwise) arising out of the failure by the Sub Contractor to comply with his obligations.
11. (a) The Sub Contractor shall observe and comply with the provisions of The Health and Safety at Work etc. Act 1974 and the regulations and codes of practice issued thereunder from time to time and any statutory modification or re-enhancement thereof for the time being in force.
(b) The only facilities which the Contractor will provide under the Construction (Health and Welfare) Regulations 1966 No. 95 for use by the Contractor and the Sub Contactor will be those specified in Regulations 11, 12 and 13.
(c) The Sub Contractor may, at his own risk, have the use of the Contractor’s scaffold and lifting appliances while they remain erected on site for himself, his workmen and agents but such user will be on the express condition that no warranty or other liability on the part of the Contractor or of its other Sub Contractors will be created or implied to the fitness condition or such scaffold and lifting appliances. If the Sub Contractor uses any such scaffold and lifting appliances he will immediately before commencing work and thereafter weekly make and sign the report required by Regulations 22 and 23 of the Construction (Working Places) Regulations 1966 No. 94. The provisions of Clause 4 (c) will apply to damage caused or arising out of the use of such scaffold and lifting appliances.
(d) Save as otherwise provided in the Main Contract, the Sub Contractor at his own expense, will provide and erect all necessary workshops, sheds or other buildings for his employees and all necessary protection for materials / property brought on site at such places on the site as the Contractor may permit. The Sub Contractor will pay for workshops, sheds or other buildings.
(e) The Sub Contractor will pay for electricity used in respect of the works.
(f) The responsibility for, and cost of, unloading, hoisting and distributing materials and goods for incorporation in the Works and any property belonging to or for use by the Sub Contractor, or which is brought on site, is the sole concern of the Sub Contractor.
12. (a) The wages and conditions of employment of the Sub Contractor’s employees engaged on the Works will be no less than the minimum prescribed by the competent authority in the trade to which such employees belong.
(b) If the Sub Contractor fails to comply with his obligations as to payments under paragraph (a) above or if he fails to make any other payments (whether by stamping cards or otherwise) in respect of his employees engaged on the Works, the Contractor may make such payments and any money so expended by the Contractor will be paid or allowed by the Sub Contractor to the Contractor.
13. During the performance of the Works the Sub Contractor will maintain the site, all adjacent or neighbouring property and all access roads used by the Sub Contractor from time to time in carrying out the Works, in a condition satisfactory to the Contractor and will remove therefrom all debris, waste, surplus material and plant for which he is responsible. On completion or termination the Sub Contractor will leave all such areas in satisfactory condition as aforesaid. If the Sub Contractor fails to comply with his obligations under this clause the Contractor may, without liability to the Sub Contractor, remove from all such areas and dispose of all debris, waste, surplus material and plant. The cost of doing so will be paid or allowed by the Sub Contractor to the Contractor.
14. No advertisement relating to the Works will be made without the prior written approval of the Contractor.
15. So far as he reasonably can the Contractor will, at the request and cost of the Sub Contractor, obtain for him any rights or benefits of the Main Contract so far as the same are applicable to the Works and conform to the provision of the Sub Contract but not further or otherwise.
16. As the Works are of a description which it is in the course of the Sub Contractor’s business to execute, the Sub Contractor undertakes and agrees with the Contractor, notwithstanding anything contained or implied herein or in any other document or obligation as between the Sub Contractor and any other person:-
(a) that the Sub Contractor will promptly inspect the Main Contract and all tender documents and specifications set out or referred to overleaf and any instructions given to him; that if he finds therein any error or irregularity or departure from the best practices adopted in the trades relating to the Works, he will immediately give written notice thereof to the Contractor to enable the Contractor to issue instructions in regards there to.
(b) that when the Works include the preparation of designs or the selection of materials and goods, the Sub Contractor has exercised and will exercise all proper skill and care in such preparation and selection including but not limited to the satisfaction of any performance specification or requirement insofar as the same is included or referred to in the tender of the Sub Contractor as part of the description of the Works.
(c) that the workmanship, material and goods used or supplied under the Sub Contract will be of a quality and standard fit and proper for the purpose for which the Works are designed.
17. (a) The Sub Contract will be performed by the Sub Contractor personally and no part of it will be assigned sub let or sub contracted by the Sub Contractor without the prior written permission of the Contractor.
(b) At all reasonable times the Sub Contractor will allow the Contractor, the Architect and their representatives access to any work which is being prepared for incorporation in the Works and to the Sub Contractor’s wage books, pay sheets and other accounts relating to the Works and his employees engaged on the Works.
(c) Without prejudice to any other rights and remedies which the Contractor may possess, the Contractor will be entitled to deduct from or set off against money payable by the Contractor to the Sub Contractor (including any retention money) any sums bona fide claimed by the Contractor to be due from the Sub Contractor to the Contractor arising out of the provisions of this Sub Contract or any other Contract between the Contractor and the Sub Contractor (but not exceeding in all a fair estimate of the value of claims in respect of breach of such provisions). The Sub Contractor will not assign, charge or in any way dispose of his interest in any money to become due to him under the Sub Contract without the prior written consent of the Contractor.
18. (a) The Sub Contract and the employment of the Sub Contractor hereunder will terminate immediately upon the service of written notice of termination by the Contractor on the Sub Contractor for either of the following reasons:-
(i) that the Sub Contractor has failed to perform or observe any of his obligations under the Sub Contract within seven days of service by the Contractor of written notice requiring such performance or observance.
(ii) that the Sub Contractor has become subject to the bankruptcy laws or made an arrangement or composition with his creditors or otherwise taken the benefit of any Act for the time being in force for the relief of insolvent debtors or has suffered or allowed any execution, whether legal or equitable, to be levied on his property or obtained against him or (being a body corporate) has convened a meeting of creditors (whether formal or informal) or has entered into liquidation whether voluntary or compulsory (except a voluntary liquidation for the purpose only of reconstruction or amalgamation) or has had a receiver appointed of its undertaking or any part thereof.
(b) If the employment of the Sub Contractor is terminated under Sub Clause (a) of this Clause, then the Contractor will have the right to complete the Works or to employ another Sub Contractor to complete the works.
(c) If for any reason the Contractor’s employment under the Main Contract is terminated then the employment of the Sub Contractor under the Sub Contract will thereupon also be terminated.
(d) If the employment of the Sub Contract is terminated under either Sub Clause (a) or (c) of this Clause then:-
(I) the Contractor and Employer will have the same powers over the Sub Contractor’s plant, materials and property on the site as are given to the Employer under the Main Contract over the Contractor’s plant, materials and property in like circumstances.
(ii) if such termination was caused by any act or omission of the Sub Contractor he will pay or allow to the Contractor any loss or damage suffered or incurred by the Contractor as a result of such termination.
(iii) the Sub Contractor’s only rights to payment will be in accordance with Clause 7 hereof.
(iv) subject as aforesaid, the Sub Contractor’s rights and obligations will be analogous to the Contractor’s rights and obligations under the Main Contract to the extent that they do not conflict with the terms of the Sub Contract.
19. The termination of the Sub Contract in any way whatsoever will be without prejudice to the rights and obligations and liabilities of either party accrued prior to termination.
20. Any notice required to be served hereunder will be deemed well served if delivered by hand or if sent by ordinary post addressed to the party on whom it is intended to be served at his last known address, or in the case of a body corporate, its registered office or main office or last known address and will deemed to have been served, in the case of delivery by post, on the day on which normally have arrived in the due course of post.
21. The terms, stipulations and conditions of the Sub Contract referred to herein are those set out above, below and overleaf, unless other terms, stipulations and conditions are expressly accepted by the Contractor by means of a written amendment to these stipulations and conditions signed by one of the Contractor’s Directors and referring specifically to the term, stipulation or condition to be amended, the Sub Contract will be on these terms, stipulations and conditions to the exclusion of any other terms, stipulations and conditions, whether or not the same are endorsed upon, delivered with or referred to in any offer, quotation, tender or other document of the Sub Contractor. Any reference overleaf to the Sub Contractor’s offer, quotation, tender or other document will be deemed to be solely for the purpose of describing or specifying the Works or any part thereof and will not be deemed to imply that any terms, stipulations or conditions endorsed upon, delivered with or referred to in such offer, quotation, tender or other document will have effect to the exclusion or amendment of these terms, stipulations and conditions.
22. This Sub Contract will be interpreted and operated in accordance with English Law and the Sub Contractor hereby submits himself to the jurisdiction of English Courts to which disputes in connection with the Sub Contractor will be referred.