SUB-CONTRACT ORDER CONDITIONS – Ref: 20170228/R/A
- DEFINITIONS
“Order” shall mean this Subcontract Order incorporating these Sub-Contract Order Conditions and any further documentation, obligations, requirements and/or conditions listed on the face of the Sub-Contract Order.
“Contractor” shall mean the Austin Company of UK Ltd
“Sub-Contractor” shall mean the party to whom the Order is addressed
“Sub-Contract Works” shall mean all the works to be carried out by the Sub-Contractor under the Order.
“Construction Phase Plan” shall mean, where the project is notifiable under the CDM Regulations, those parts of the construction phase plan for the Main Contract together with any updates and revisions notified to Sub-Contractor before or during the progress of the Sub-Contract Works, a copy of which is available for inspection at the Contractor’s site office.
“Order Value” shall mean the amount stated on the face of the Sub-Contract Order.
“Contract Works” shall mean all the works to be carried out by the Contractor under the Main Contract of which the works under the Order form a part.
“Main Contract” shall mean the contract between the Contractor and the client.
- ACCEPTANCE
Commencing performance of the Order or any part thereof shall be deemed to be full acceptance by the Sub-Contractor of the Order and a binding contract shall come into existence upon the date of such commencement and by acceptance of the Order the Sub-Contractor agrees that any standard printed terms and/or conditions proffered by the Sub-Contractor are excluded from the Order.
- ORDER VALUE
The Order Value shall not be adjusted or altered in any way otherwise than in accordance with the Order.
- PAYMENT
To the extent not otherwise stated on the face of the Sub-Contract Order the Sub-Contractor shall submit an application for payment to the Contractor at least 7 days before the last day of the month specifying the amount the Sub-Contractor considers to be due for work properly completed under the Order at the Assessment Date. The Assessment Date shall be the last day of the month in which the application for payment is submitted. The payment due date for an application for payment properly submitted as aforesaid shall be 14 days from the last day of the month in which the application for payment is submitted or if not properly submitted 44 days from the date the application for payment is submitted. Within 5 days of the payment due date the Contractor shall issue a payment notice specifying the amount the Contractor considers to be due for work properly completed under the Order and how it is calculated at the Assessment Date. The final date for payment shall be 30 days from the payment due date. All payments shall be subject to clause 5 of these Sub-Contract Order Conditions.
- CIS
Subcontractors shall be registered for CIS with Her Majesty’s Revenue and Customs (HMRC) and on demand shall provide the Contractor with sufficient data to facilitate verification of its tax status with that authority. Data required may vary depending on whether the Sub-Contractor is a sole trader, a partnership or a limited company but shall always include the Unique Tax reference (UTR) issued by HMRC to the subcontractor on registration. Payments will be made either gross or under deduction of tax in accordance with HMRC’s instructions. Errors by the Contractor in deducting tax shall be corrected in accordance with procedures outlined in scheme booklet CIS340 issued by HMRC. Where tax is deductible the amount taxable shall be the total invoiced amount less deductions permitted as outlined in scheme booklet CIS340.
- CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999
Notwithstanding any other provision of the Order, nothing in the Order confers or is intended to confer any right to enforce any of its terms on any person who is not a party to it.
- SUB-CONTRACTOR OBLIGATIONS
The Sub-Contractor shall carry out and complete in a professional and expeditious manner the Sub-Contract Works. The Sub-Contractor shall at all times comply with the Construction Phase Plan and the Contractor’s Site Rules as may be revised from time to time (which are available for inspection at the Contractor’s site office). The Sub-Contract Works shall be completed within the period(s) specified or by the stated completion date(s) and such period(s) or date(s) may be adjusted by the Contractor acting reasonably. The Sub-Contractor shall forthwith comply with any instruction issued by the Contractor in accordance with this Order. The Sub-Contractor shall at all times observe, perform and comply with all statutory other and other applicable regulations and obligations (together “Obligations”) and shall indemnify and keep indemnified the Contractor from and against all or any breach or non-compliance with or non-performance of any such Obligations. The Sub-Contractor shall regularly clear away from the workface and site all rubbish, debris etc., resulting from his execution of the Sub-Contract Works and shall comply with legislative control on disposal arrangements.
- CONTRACTOR INSTRUCTIONS
All instructions of the Contractor shall be in writing and issued on either a Head Office Instruction (HOI) or Avoid Verbal Instruction (AVO). If within 3 days of written notice from the Contractor requiring compliance with an instruction the Sub-Contractor does not comply the Contractor may, without prejudice to any other rights or remedies it may possess, employ and pay others to execute any work which may be necessary to give effect to such instruction and all costs incurred by the Contractor in doing so may be deducted from any monies due or to become due to the Sub-Contractor under the Order or any other contract between the Contractor and Sub-Contractor or recovered as a debt due to the Contractor from the Sub-Contractor.
- SUB-LETTING
The Sub-Contractor shall not sub-let the works or any part without first seeking the prior approval of the Contractor. The Sub-Contractor shall be fully responsible for and be fully liable for any entity or person engaged or instructed by the Sub-Contractor in connection with the Sub-Contract Works. No such approval or lack of approval shall diminish or limit the Sub-Contractor’s liability to the Contractor under the Order.
- PROGRESS
Continuity of work is not guaranteed and the Sub-Contractor shall be deemed to have made allowance for all necessary site visits. If in the Contractor’s reasonable opinion the Sub-Contractor’s progress (i) will not enable the Sub-Contractor to complete within the period(s) specified or by the stated completion dates or revised period(s) or completion date(s) as the case may be, and/or (ii) is delaying the progress of the Contract Works, then the Contractor shall, without prejudice to any other rights or remedies it may possess, be entitled to at its discretion supplement the Sub-Contractor’s labour, materials and/or plant and may deduct or set-off from any payment otherwise due to the Sub-Contractor and/or recover as a debt all costs, loss and expense suffered or incurred. If the progress of the Contract Works is materially affected by any act, omission or default of the Sub-Contractor his servant or agents or any subcontractor employed by the Sub-Contractor in connection with the Sub-Contract Works, the Contractor shall, without prejudice to any other rights or remedies the Contractor may possess give written notice thereof to the Sub-Contractor and the amount of any loss or expense thereby caused to the Contractor which may include any amount payable as liquidated damages to the Employer in consequence of the Sub-Contractor’s act omission or default, may be deducted or set-off from any payment otherwise due to the Sub-Contractor or recovered as a debt due to the Contractor from the Sub-Contractor.
- CONFIDENTIALITY
The Sub-Contractor shall keep confidential all information received under or in connection with the Order and to use it only for the purpose of the Sub-Contract Works.
- DOCUMENTATION
The Sub-Contractor shall within 5 days of the Contractor’s written request provide such documentation as the Contractor requires for use in the production of the Health and Safety File. The Sub-Contractor shall submit proposed method statements together with risk assessment documentation in conformity with the C.D.M. Regulations and other legislative requirements in sufficient time to allow comment/approval by the Contractor without impeding the progress of the Contract Works or the Sub-Contractor’s works under the Order. No such comment/approval or lack of comment/approval shall diminish or limit the Sub-Contractor’s liability to the Contractor under the Order. The Sub-Contractor shall within 7 days of the Contractor’s written request provide all operating and maintenance information for equipment and systems provided by the Sub-Contractor under the Order (“O&M Information). Unless agreed otherwise the O&M Information shall comprise 2 No. hard copies and 1 No. electronic version. For clarification, “electronic” means that standard documents e.g. manufacturer literature can be ‘pdf’ files and generated documents should be in their natural format e.g. drawings as ‘.dwg’ files, word documents as ‘.doc’ files, spreadsheets as ‘.xls’ files.
- IPR
Subject to any rights in any designs, drawings and other documents supplied to the Sub-Contractor for the purposes of this Sub-Contract by the Contractor, the copyright in all Sub-Contractor’s design documents shall remain vested in the Sub-Contractor. The Contractor shall have an irrevocable, royalty-free, non-exclusive licence, with the full right to sub-licence to the Employer, to copy and use the Sub-Contractor’s design documents and to reproduce the designs and content of them for any purpose relating to the maintenance, letting, sale, promotion, advertisement, alteration, extension, reinstatement, refurbishment and repair of the Works.
- DEFECTS LIABILITY
To the extent that the Contractor is liable to correct defects, shrinkages, or other faults in the Contract Works the Sub-Contractor shall similarly make good, at his own cost, all defects, shrinkages, or other faults in the works carried out under the Order.
- INSURANCES
The Sub-Contractor shall be liable for and shall indemnify the Contractor and Employer as appropriate against any liability, loss, claim or proceeding in respect of personal injury, the death of any person or damage to property real or personal arising out of the Sub-Contract Works unless due to any act or neglect of the Contractor or Employer or any person for whom they are each responsible.
The Sub-Contractor shall effect All Risks insurance for the Sub-Contract Works and unfixed materials and on the Sub-Contractors temporary huts, plant, tools and equipment for the full reinstatement value thereof.
The Sub-Contractor shall effect Employers Liability insurance against claims for injury illness or death of its employees for at least the statutory amount, currently £5 million.
Without limiting its liability for injury or damage to third parties or third party property the Sub-Contractor shall insure against all such liability with a limit of indemnity of not less than £2 million for any one occurrence.
Where the Sub-Contract Works include design by the Sub-Contractor the Sub-Contractor shall procure Professional Indemnity insurance with a limit of indemnity of not less than
£1 million.
The Sub-Contractor shall not commence on site until it has provided certified copies of insurance certificates compliant with this clause.
- BRIBERY AND CORRUPTION
The Sub-Contractor shall (and shall procure that any Associated Person (as defined in section 8 of the Bribery Act 2010) in connection with this Sub-Contract) comply with the Relevant Requirements (which means all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including, but not limited to, the Bribery Act 2010) and shall inform the Contractor, as soon as it becomes aware of same, of any potential or actual breach of this clause. If the Sub-Contractor (or any Associated Person) commits a breach of this clause, then the Contractor may, at its absolute discretion, terminate the Sub-Contract with immediate effect by giving written notice to the Sub-Contractor. Any such termination of the Sub-Contract shall be without prejudice to any right or remedy which has already accrued, or subsequently accrues, to the Contractor. If the Contractor terminates the Sub-Contract for breach of this clause, the Sub-Contractor shall not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before termination and the Contractor shall not be obliged to do, or omit to do, any act which would, in its reasonable opinion, put it in breach of any of the Relevant Requirements.
- DETERMINATION OF THE SUB-CONTRACTOR’S EMPLOYMENT
Without prejudice to any other rights or remedies the Contractor may possess the Contractor may by written notice forthwith determine the employment of the Sub-Contractor under the Order where in the Contractor’s reasonable opinion the Sub-Contractor:- commits a material breach of the Order; or
- without reasonable cause wholly or substantially suspends the carrying out of the Sub-Contract Works; or
- fails to proceed regularly and diligently with the Sub-Contract Works; or
- refuses or neglects to comply with a written notice or instruction from the Contractor; or
- fails to comply with the requirements of the CDM regulations and/or Health & Safety legislation; or
- the Sub-Contractor becomes insolvent as defined under the Housing Grants, Construction and Regeneration Act Part II s.113;
then the Sub-Contractor shall allow or pay to the Contractor the amount of any loss, damage, or expense caused to the Contractor and no further payment (including release of retention) shall become due to the Sub-Contractor under or in connection with the Order other than under this clause (17) and the Contractor need not pay any sum that has already become due. Upon the expiry of eighteen (18) months from the date of practical completion or equivalent under the Main Contract further payment (if any) shall become due under the Order (the payment due date) and the corresponding final date for payment shall be 45 days thereafter.
.