SUBCONTRACTORS – TERMS OF CONTRACT 2023-24

1. THE SUB-CONTRACT

• The sub-contractor identified in the appended Purchase Order (“the Sub-Contractor”) agrees to carry out the sub-contract works identified in the appended Purchase Order (“the Sub-Contract Works”) for Manor Interior Solutions Limited (“the Contractor”) (the Sub-Contractor and the Contractor together “the Parties”) for the sum identified in the appended Purchase Order (“the Sub-Contract Sum”) or such other sum as may become payable under these Terms of Sub-Contract.
• The Sub-Contract is comprised of the following documents (together “the Sub-Contract Documents”):
  • These Terms of Sub-Contract.
  • The Purchase Order.
  • The Contractor’s invitation to tender (if any); and
  • Such other documents (if any) as are referred to in the Contractor’s Purchase Order or the Contractor’s invitation to tender.
• The Sub-Contract Works are as set out in the Sub-Contract Documents. The Sub-Contract Documents set out the entire relationship between the Contractor and the Sub-Contractor and supersede any previous agreements and/or representations, which shall be of no continuing effect. For the avoidance of doubt to the extent that the Sub-Contractor’s quotation and/or offer contains any terms or standard conditions of contract those terms and/or standard conditions of contract shall not form any part of the Sub-Contract.
• The Sub-Contract Sum is deemed to be inclusive of any and all work reasonably required for the carrying out of the Sub-Contract Works, whether or not such work was anticipated by the Sub-Contractor at the outset. Without prejudice to the generality of this, unless specified to the contrary, the Sub-Contract Sum and any corresponding rates are deemed to be inclusive of (without limitation):
  • All accessories/makeups of the systems required for the Sub-Contract Works;
  • Daily clearing to the nearest waste point;
  • Loading out to be included to ground floor; upper floors as rated in the rate sheet also deemed to be included in the rates.
  • Attendance by the Sub-Contractor’s persons of an induction day; and
  • All tools required for the carrying out of the Sub-Contract Works.
• The Sub-Contractor shall carry out and complete the Sub-Contract Works and the Contractor shall make payment, both in accordance with the Sub-Contract.
• The documents comprising the Sub-Contract Documents are to be read together and as a whole. In the case of any inconsistency, contradiction or ambiguity as between the documents comprising the Sub-Contract Documents, the inconsistency, contradiction or ambiguity shall be resolved at the Contractor’s discretion and without additional time or money becoming due to the Sub-Contractor.
• A copy of the Contractor’s contract with the Employer or Main Contractor as the case may be (“the Main Contract”) (if any) is, save for detailed pricing information, available for the Sub-Contractor’s inspection. The Sub-Contractor is deemed to be aware of the content of the Main Contract save for detailed pricing information. The Sub-Contractor will not do anything (whether by act or by omission) to cause the Contractor to be in breach of the Main Contract. The Sub-Contractor agrees to indemnify the Contractor in respect of any costs, expenses and loss suffered by the Contractor in respect of any breach of the Main Contract to the extent that it is caused or contributed to by the Sub-Contractor.
• The Sub-Contract sets out all of the Sub-Contractor’s rights and remedies in relation to the Sub-Contract and the carrying out of the Sub-Contract Works and to the maximum extent permissible by law the Sub-Contractor shall not have any other rights or remedies against the Contractor.
• No approval expressed or implied by the Contractor or of any Architect or Supervising Officer or similar appointed under the Main Contract or any other contract or of any other interested party made in respect of the Sub-Contract Works shall in any way relieve the Sub-Contractor of his responsibility for complying with the requirements of the Sub-Contract.
• The Sub-Contractor shall comply with the provisions of all statutes and with all orders and regulations made thereunder or by any competent authority having jurisdiction insofar as the same shall apply to the Sub-Contract. Such compliance shall be at the sole expense of the Sub-Contractor save where the date on which such provision would come into force would not have been foreseeable to a competent and experienced sub-contractor at the date the Sub-Contract was entered into.
• At all times during the carrying out of the Sub-Contract Works the Sub-Contractor shall ensure that a competent supervisor approved by the Contractor is present on Site.
• The Sub-Contractor shall keep the project manager identified by the Contractor fully informed in respect of the Sub-Contract Works and provide the project manager with such details as he may require from time to time. Should there be any problems when carrying out the Sub-Contract Works, the Sub-Contractor must inform the project manager immediately.
• References to days in this Sub-Contract are references to calendar days.

2. COMMUNICATIONS

• Unless stated otherwise, all notices, applications and other communications under this Sub-Contract shall be made in writing and transmitted by any effective method, subject to the following:
  • Where the transmission is by post and addressed to the Contractor, it shall be sent to the Contractor’s Head Office at Manor Interior Solutions Unit C 3 Welland Business Park, Valley Way, Market Harborough, Leicestershire, LE16 7PS.
  • Where transmission is by post and addressed to the Sub-Contractor it is to be sent to the address set out in the Sub-Contract Documents.
  • Transmission by email is acceptable (save as otherwise set out in the Sub-Contract) and provided always that the email must be transmitted to 2 or more persons in the relevant organisation, and where the recipient is the Contractor, one of those persons must be either the Contractor’s Contracts Manager or the Contractor’s head office email addresses [email protected]. Transmission to a personal email address is not acceptable.
  • Communications under this Sub-Contract shall not be transmitted by facsimile.

3. INSTRUCTIONS

• The Contractor may issue instructions to the Sub-Contractor in relation to the Sub-Contract Works. Instructions may be issued in writing or otherwise than in writing. The Sub-Contractor shall within 3 days of receiving an instruction issued otherwise than in writing confirm in writing to the Contractor the content of the instruction, who issued it, to whom, when, where, and how.
• An instruction takes effect when it is issued and the Sub-Contractor shall forthwith begin to comply with an instruction upon receipt.
• Instructions may be issued to the Sub-Contractor only by a person whose authority to do so has previously been confirmed by the Contractor in writing.
• If the Sub-Contractor acts upon any purported instruction issued by a person whose authority to issue instructions has not previously been confirmed by the Contractor in writing, the Contractor may at their discretion confirm it retrospectively but the Contractor is not obliged to do so. Unless and until confirmed by the Contractor, a purported instruction shall have no contractual or other effect.
• If the Sub-Contractor within 5 days of receipt of an instruction fails to begin complying with it, or if having begun to comply with it the Sub-Contractor fails to proceed with the work regularly and diligently, the Contractor may employ others to carry out the instructed work and the Sub-Contractor shall be liable for the Contractor’s costs of so doing.

4. VARIATIONS TO THE SUB-CONTRACT WORKS

• Variations to the Sub-Contract Works are defined as additions to, omissions from, or changes to Sub-Contract Works (but for the avoidance of doubt not including changes to the timing, method, or conditions of the Sub-Contractor carrying out the Sub-Contract Works).
• The Contractor is entitled to omit part or all of the Sub-Contract Works at its own discretion and award the same work to a third party or to carry out that work itself and the Sub-Contractor shall have no claim against the Contractor for so doing.
• Unless the Parties have otherwise agreed the value of a variation, variations shall be valued by the Contractor in the following manner:
  • If the variation is for work similar in character, quantity and conditions of execution to work set out in the Sub-Contract Documents, the rates and/or prices for the similar work set out in the Sub-Contract Documents shall be used as the basis of the valuation;
  • If the variation is for work similar in character but dissimilar in quantity to work set out in the Sub-Contract Documents, the rates and/or prices for the work of similar character set out in the Sub-Contract Documents shall be used as the basis of the valuation and a fair allowance shall be made for the dissimilarity of quantity; and
  • If the variation is for work dissimilar in character to work set out in the Sub-Contract Documents or the variation cannot properly be valued by measurement, fair rates and/or prices shall be used as the basis of the valuation.
• If work is be valued on dayworks rates, those rates must be agreed between the Sub-Contractor and the Contractor. Work may only be valued on the basis of agreed daywork rates if the following conditions precedent have been complied with:
  • Prior to the commencement of the varied work sought to be valued on dayworks rates, the Sub-Contractor shall have notified the Contractor’s Contracts Manager or surveyor in writing that the work would be sought to be valued on dayworks rates;
  • Prior to the commencement of the varied work sought to be valued on dayworks rates, the Sub-Contractor has received written notification from the Contractor’s Contracts Manager or surveyor that the work shall be valued at dayworks rates; and
  • Not later than 1 working day following the carrying out of the relevant work, the Sub-Contractor shall have submitted to the Contractor’s project manager dayworks sheets which shall at a minimum record the work carried out; the names and trades of the operatives engaged in the work; the date of the work and the time spent by each operative; and any plant and materials used;
  • The Sub-Contractor agrees that the submission of a dayworks sheet is not evidence that the work has been carried out nor that the time/plant/materials recorded therein are accurate nor agreement that the work in question should be valued on a dayworks basis. The signing by a representative of the Contractor of a dayworks sheet submitted by the Sub-Contractor shall not of itself constitute an instruction to carry out the work therein described or an agreement to pay for that work on a dayworks basis.
• The Contractor may instruct the Sub-Contractor to accelerate the Sub-Contract Works and the Sub-Contractor shall comply forthwith. An instruction to accelerate shall be a variation and shall be valued in accordance with clause 3 save for the following:
  • If the Sub-Contractor was in delay at the time the instruction to accelerate was given, and such delay was not of a type that would entitle the Sub-Contractor to an extension of time under clause 2, then the Sub-Contractor shall not be entitled to any adjustment to the Sub-Contract Sum.
  • The Sub-Contractor shall not be entitled to any adjustment to the Sub-Contract sum under any other provision of the Sub-Contract insofar as the adjustment relates to the acceleration of the Sub-Contract Works.

5. THE SUB-CONTRACT PERIOD

• The Sub-Contractor shall carry out and complete the Sub-Contract Works within the period detailed in the Sub-Contract Documents (“the Sub-Contract Period”). If the Sub-Contract Documents do not detail a Sub-Contract Period, the Sub-Contractor shall:
  • Commence carrying out the Sub-Contract Works within not less than 5 days’ written notice to do so from the Contractor;
  • Carry out and complete the Sub-Contract Works within a reasonable period, at all times having regard to any matters set out in the Sub-Contract Documents and the progress of the Main Contract Works; and
  • Time shall be of the essence in relation to the Sub-Contractor carrying out and completing the Sub-Contract Works and all parts thereof.
• If the Sub-Contract Documents detail a Sub-Contract Period and at any time the Sub-Contractor has been or is likely to be delayed in carrying out the Sub-Contract Works for reasons which are outside the Sub-Contractor’s control and responsibility, which are not stated in or implied by the Sub-Contract Documents to be at the Sub-Contractor’s risk, and which are not concurrent with any causes of delay to the Sub-Contractor which do not entitle the Sub-Contractor to an extension of the Sub-Contract Period, the Sub-Contractor shall forthwith apply to the Contractor in writing for an extension of the Sub-Contract Period. Reasons within the control and responsibility include (without limitation) any default of the Sub-Contractor or of others employed or engaged by or under him or in connection with the Sub-Contract Works and default of any supplier for labour, goods or materials for the Sub-Contract Works. The Contractor shall within 42 days of receipt of the Sub-Contractor’s application grant such extension of the Sub-Contract Period as is fair and reasonable provided always that the Sub-Contractor shall strictly have complied with the following conditions precedent (failing which strict compliance the Contractor shall not be under any obligation to extend the Sub-Contract Period):
  • The Sub-Contractor must use its best endeavours to avoid and/or mitigate any and all delays to the Sub-Contract Works;
  • The Sub-Contractor must make its application as soon as the delaying event becomes apparent, but at all times within 14 days of the occurrence of the event(s) giving rise to the delay in respect of which application is made for an extension of the Sub-Contract Period;
  • The application must give details of the event(s) giving rise to the delay in respect of which application is made for an extension of the Sub-Contract Period, be accompanied by evidence, and detail the delay to the Sub-Contract Works all with sufficient particularity for the Contractor to be able to assess the fair and reasonable extension of the Sub-Contract Period that should be granted (if any); and
  • The application must state that it is an application for an extension of the Sub-Contract Period pursuant to clause 2 of these Terms of Sub-Contract.
• The Contractor shall notify the Sub-Contractor in writing of the date on which the Contractor considers that the Sub-Contract Works have been substantially completed. Without prejudice to the foregoing, the Services shall not be substantially completed until as built drawings, maintenance manuals and certification have been issued by the Sub-Contractor and agreed by the Contractor.

6. DIRECT LOSS AND/OR EXPENSE

• If the Sub-Contractor incurs any direct loss and/or expense owing to the regular progress of the Sub-Contract Works materially being affected by any impediment or prevention by the Contractor (whether by act or by omission) the Sub-Contractor may apply in writing for compensation for that direct loss and/or expense. The Contractor shall within 42 days of receipt of the Sub-Contractor’s application consider what direct loss and/or expense should fairly and reasonably be compensated (if any) provided always that the Sub-Contractor shall strictly have complied with the following conditions precedent (failing which strict compliance the Contractor shall not be under any obligation to compensate any loss and/or expense incurred by the Sub-Contractor):
  • The impediment or prevention is not one which the Sub-Contractor has made express allowance for in the Sub-Contract or which the Sub-Contractor should reasonably have been able to foresee and make allowance for at the time the Sub-Contract was entered into;
  • The Sub-Contractor shall use its best endeavours to avoid and/or mitigate any loss and/or expense;
  • The Sub-Contractor must make its application as soon as the loss and/or expense becomes apparent, but at all times within 14 days of the occurrence of the event(s) giving rise to the loss and/or expense in respect of which application is made for compensation;
  • The application must give details of the event(s) giving rise to the direct loss and/or expense in respect of which application is made for compensation and be accompanied by such evidence as would be sufficient to prove the like claim if it were made in litigation; and
  • The application must state that it is an application for compensation for direct loss and/or expense pursuant to clause 1 of these Terms of Sub-Contract.
• Other than as provided for in Clause 1, the Sub-Contractor hereby waives all and any rights that it may have or which may arise in the future for any claims for loss and/or expense, additions to the Sub-Contract Sum or otherwise, arising as a result of or owing to the regular progress of the Sub-Contract Works materially being affected by any impediment or prevention or default by the Contractor or otherwise from delay or disruption to the Sub-Contract Works caused by third parties.

7. PAYMENT

• It is a condition precedent to payment that the Sub-Contractor shall have provided the following to the Contractor:
  • Any warranties requested at any time, in the form or forms requested;
  • Any collateral warranties required at any time, in the form or forms requested;
  • Any product guarantees or other guarantees required at any time in the form or forms requested;
  • Any bonds requested at any time in the form or forms requested;
  • Any licenses or consents requested at any time in the form or forms requested;
  • Any insurance certificates and/or any other insurance documentation requested at any time in the form or forms requested;
  • A VAT invoice for the sum which is due to be paid;
  • Any parent company guarantee required by the Sub-Contract Documents; and
  • A valid UTR number in order that tax can be deducted as required by HMRC.
• Subject to clause 1, the Sub-Contractor will apply to the Contractor for payment and the Contractor will make payment to the Sub-Contractor as follows:
  • If the Sub-Contract Documents contain a valuation schedule, then the Sub-Contractor will submit to the Contractor a written application for payment on or before the relevant valuation date in that schedule. The written application for payment shall specify the amount that the Sub-Contractor considers to be due at the date of that application and the basis of the calculation of that amount. Any application for payment submitted after the relevant valuation date shall be deemed to have been received in, and payment shall in respect of it shall be made in, the following valuation date month;
  • If the Sub-Contract Documents do not contain a valuation schedule, the Sub-Contractor will submit to the Contractor a written application for payment on or before the 21^stday of each calendar month. The written application for payment shall specify the amount that the Sub-Contractor considers to be due at the date of that application and the basis of the calculation of that amount. Any application for payment submitted after the 21^st day of a calendar month shall be deemed to have been received in the following calendar month;
  • The due date for the Contractor’s payment of any sum due to the Sub-Contractor shall be the last day of the calendar month in which the application for payment was received by the Contractor;
  • The final date for the Contractor’s payment of any sum due to the Sub-Contractor shall be 35 days from the due date;
  • Prior to the final date for payment, the Sub-Contractor shall submit to the Contractor a VAT invoice for the sum which is due to be paid;
  • The Contractor shall give the Sub-Contractor a payment notice specifying the amount considered by the Contractor to have been due at the due date and the basis of the calculation of that amount not later than 5 days after the due date; and
  • If the Contractor intend to pay less than the amount specified in their payment notice issued pursuant to clause 2.7 of these Terms of Sub-Contract, the Contractor shall give the Sub-Contractor a pay less notice specifying the sum that the Contractor considers to be due at the date of service of the pay less notice and the basis on which that sum is calculated not later than 1 day before the final date for payment.
• The Sub-Contractor’s applications for payment, and the Contractor’s liability to make payment, shall be in respect of the aggregate of the following sums:
  • The value of those parts of the Sub-Contract Works carried out to the due date relevant to the application for payment; plus
  • The value of any materials properly stored at the site of the Sub-Contract Works by the Sub-Contractor for use or incorporation in the Sub-Contract Works; plus
  • Any loss and/or expense to which the Sub-Contractor is entitled under the Sub-Contract; less
  • Any discount that it has been agreed shall be allowed to the Contractor, or where no discount has been agreed, a discount of 2.5% of the Sub-Contract Sum shall be deducted by the Contractor; less
  • All previous payments made by the Contractor; less
  • Any retention that it has been agreed shall be held by the Contractor, or where no retention has been agreed, 5% of the Sub-Contract Sum shall be retained by the Contractor.
  • The Contractor’s interest in the retention shall not be fiduciary and the relationship of the Contractor and the Sub-Contractor with regard to the same shall be solely that of debtor and unsecured creditor. The Contractor shall have no obligation to invest the retention or any part of it, have no obligation to segregate the retention or any part of it in a separate bank account or in any other manner, and shall be entitled to the full and unencumbered beneficial interest in the retention or any part of it.
• Notwithstanding clause 3.1, the Sub-Contractor shall not be entitled to payment for partial completion of an area or system, including but not limited to framing needing setting out and fixing in place, grids needing tying & boards needing to be full screwed with applied mastics, leaving isolated areas partially completed.
• In respect of any retention held by the Contractor and subject always to the Contractor’s right to set off any liability of the Sub-Contractor to the Contractor against any monies otherwise due from the Contractor to the Sub-Contractor, the final dates for payment of the retention to the Sub-Contractor shall be 42 days from the following due dates:
  • In respect of the first half of the retention held by the Contractor, the due date is the date of substantial completion of the whole of the Sub-Contract Works; and
  • In respect of the second half of the retention held by the Contractor, the due date is the date 18 months after substantial completion of the whole of the Sub-Contract Works.
• Notwithstanding any other provision of this Sub-Contract:
  • If the Sub-Contractor is or becomes insolvent, the Contractor is not obliged to make any further payment to the Sub-Contractor and no further amount shall become due to the Sub-Contractor; and
  • If a party to the Main Contract other than the Contractor is or becomes insolvent, the Contractor is not obliged to make any further payment to the Sub-Contractor and no further amount shall become due to the Sub-Contractor save if (and then only to the extent) that the Contractor receive further payment under the Main Contract in respect of work carried out under the Sub-Contract.
• Unless stated to the contrary, all monetary amounts stated in the Sub-Contract Documents are exclusive of VAT. In relation to all payments made to the Sub-Contractor under the Sub-Contract, the Contractor shall also pay such VAT as is properly chargeable.
• If any sum payable to the Sub-Contractor by the Contractor under the Sub-Contract is not paid, in whole or in part, by its final date for payment, interest shall thereafter accrue upon the sum not paid at the simple rate of 3% per annum. The Parties agree that this is a substantial remedy for, and a sufficient deterrent to, late payment of sums due.
• The Contractor may set off against any payment otherwise due to the Sub-Contractor any sums or damages (or reasonable estimates thereof) due from the Sub-Contractor to the Contractor under or in connection with this Sub-Contract or any other contract or agreement between the Parties.

8. ACCESS TO AND CONDITIONS OF THE SITE

• The Contractor shall throughout the Sub-Contract Period (save for any period of suspension) and any extensions thereof give the Sub-Contractor non-exclusive access to the site of the Sub-Contract Works.
• The Sub-Contractor is deemed fully to have satisfied itself as to all matters of access and site conditions; climatic, hydrological and general conditions; the nature and obstructions of ground conditions including but not limited to, the arrangement of utilities, pipes and cables in, or over the ground, installed or to be installed; the form and nature of the site; the risk of injury or damage to property adjacent to the Site and to occupiers of that property, and the nature of the design, work and materials necessary for the performance of the Sub-Contractor’s obligations; the possibility of interference by persons authorised by the Contractor, and/or any other relevant third party who will also have access to or use of any parts of the Site, and the precautions and the times and methods of working necessary to prevent any nuisance or interference, whether public or private, being caused to any third party; all necessary information as to risk, contingencies and all other circumstances which may influence or affect the performance of the Sub-Contractor’s obligations; the consents, licences and approvals that will be required in order to carry out the Works; and as to the accuracy (or otherwise) of all information contained in the Sub-Contract Documents; and the Sub-Contractor shall have no claim against the Contractor in relation to any such matters.

9. DEFECTS

• The Sub-Contractor shall promptly make good any defects or faults in the Sub-Contract Works which the Contractor notifies to the Sub-Contractor at any time up to 366 days after the date on which the Contractor’s works under the Main Contract are substantially completed (“the Defects Liability Period”).
• If the Sub-Contractor fails within 24 hours of receipt of notification from the Contractor to begin making good any defects or faults notified, or if having begun to do so the Sub-Contractor fails to proceed with the making good regularly and diligently, the Contractor may employ others to carry out the making good and any associated work and the Sub-Contractor shall be liable for the Contractor’s costs of so doing. Those costs may be deducted by the Contractor from any retention held or, if no retention is held, they may be recovered by the Contractor from the Sub-Contractor as a debt.

10. SUSPENSION OF THE SUB-CONTRACT WORKS

• If the Contractor fails by a final date for payment to pay any sum due to be paid to the Sub-Contractor, the Sub-Contractor has the right to suspend carrying out all or part of the Sub-Contract Works subject to the Sub-Contractor first giving the Contractor 14 days’ written notice of the Sub-Contractor’s intention to suspend.
• Any right to suspend performance ceases immediately when the Contractor makes payment in full.

11. TERMINATION OF THE SUB-CONTRACT

• The provisions of clauses 2 and 11.3 apply in the event that:
  • The Sub-Contractor or any associated company of the Sub-Contractor becomes insolvent or the Contractor has reasonable cause to believe that this has occurred;
  • The Sub-Contractor or any associated company of the Sub-Contractor enters into a voluntary arrangement with its creditors;
  • The Sub-Contractor fails to proceed regularly and diligently with the Sub-Contract Works;
  • The Sub-Contractor fails to comply promptly with instructions issued by the Contractor;
  • The Sub-Contractor without lawful and reasonable cause suspends (whether in whole or in part) the carrying out of the Sub-Contract Works; and/or
  • The Sub-Contractor fails to comply with health and safety requirements;
• The Contractor may then terminate the Sub-Contract by issuing a written notice to the Sub-Contractor and the Sub-Contract shall be terminated immediately upon the Sub-Contractor’s receipt of the Contractor’s notice of termination of the Sub-Contract.
• If the Contractor terminates the Sub-Contract, the aggregate of the following sums shall be payable by the Contractor to the Sub-Contractor (save where the sum owed to the Contractor under 3.3 exceeds that owed to the Sub-Contractor under 11.3.1 less 11.3.2, in which case the difference shall be owed to the Contractor as a debt):
  • The total sum for which the Sub-Contractor is entitled to apply for payment at the date of the termination of the Sub-Contract, calculated in accordance with clause 7 of these Terms of Sub-Contract and deeming the date of the termination of the Sub-Contract to be a monthly valuation date; less
  • The sum paid by the Contractor to date; less
  • Any damages, losses and/or expenses (or the Contractor’s best estimation thereof) to which the Contractor is entitled having regard to any breach of contract by the Sub-Contractor and the Contractor’s additional costs arising as a result of the termination whether directly or indirectly.
• In the event that the Main Contract is terminated, the Sub-Contract shall be deemed to have been terminated at the same time and the provisions of clause 3 shall apply save as follows:
  • The Sub-Contractor shall not be entitled to any loss of profit resulting from termination of the Sub-Contract.
• Without prejudice to any of the Contractor’s other rights under this Clause, the Contractor shall have the right to terminate the Sub-Contract for any reason and at any time on giving notice in writing to the Sub-Contractor and the provisions of clause 3 shall apply.
• For the avoidance of doubt, in the event of termination of the Sub-Contract irrespective of the basis of termination the Contractor shall be entitled to carry out the Sub-Contract Works (or any part thereof) itself or to employ a third party to carry out the Sub-Contract Works (or any part thereof) and in the event that the Contractor does carry out the Sub-Contract Works (or any part thereof) itself or employ a third party to carry out the Sub-Contract Works (or any part thereof) then the Sub-Contractor shall have no claim against the Contractor for so doing.

12. DISPUTE RESOLUTION

• Either of the Contractor and the Sub-Contractor may at any time (subject to the time-bar of limitation) refer to adjudication any dispute or difference of any kind whatsoever arising under or in connection with the Sub-Contract and/or the Sub-Contract Works, regardless of whether the Sub-Contract Works are yet to commence, are being carried out, have been completed, or have been abandoned. If any dispute or difference is referred to adjudication:
  • If the Parties do not agree upon the appointment of a particular individual as the adjudicator, the President or a Vice-President of the Chartered Institute of Arbitrators shall be requested to nominate an individual to be the adjudicator;
  • The adjudication shall be conducted in accordance with Part 1, the Scheme for Construction Contracts; and
  • All information and documents provided to the adjudicator for the purposes of the adjudication are to be treated as confidential within the meaning of paragraph 18, the Scheme for Construction Contracts.
• Any dispute or difference of any kind whatsoever arising under or in connection with the Sub-Contract and/or the Sub-Contract Works, shall:
  • Regardless of whether the Sub-Contract Works are yet to commence, are being carried out, have been completed, or have been abandoned;
  • Subject to the Parties’ rights to refer disputes and/or differences to adjudication;
  • Except in the case of disputes or differences in connection with the enforcement of any decision of an adjudicator; and
  • Except in the case of disputes or differences in connection with VAT or the Construction Industry Scheme, be referred to the arbitration of a single arbitrator. If any dispute or difference is referred to arbitration:
  • If the Parties do not agree upon the appointment of a particular individual as the arbitrator, the President or a Vice-President of the Chartered Institute of Arbitrators shall be requested to appoint an individual to be the arbitrator;
  • The seat of the arbitration shall be deemed to be London, England irrespective of the actual location of the Sub-Contract Works and/or the conduct of the arbitration; and
  • The JCT 2016 edition of the Construction Industry Model Arbitration Rules shall apply.

13. WARRANTIES, GUARANTEES, THIRD PARTY RIGHTS AND INSURANCE

• The Sub-Contractor agrees to give any collateral warranties or other guarantees, warranties, securities or rights to third parties as the Contractor is required to obtain under the Main Contract or otherwise, in a form reasonably required by the Contractor and within seven days of request by the Contractor, and provision of the same is a condition precedent to payment under the Sub-Contract.
• The Sub-Contractor agrees to hold such insurance as required by the Work Statement / Sub-Contractor Purchase Order, or as the Contractor reasonably requires, or as the Contractor is required to hold under the Main Contract, or as the Sub-Contractor is required to hold under the Main Contract, whichever is the greater, unless otherwise agreed.
• The Sub-Contractor shall whenever requested to do so by the Contractor produce to the Contractor evidence that said policies of insurance have been taken out and that payment of the current premium has been made.
• Failure by the Sub-Contractor to take out any required insurance policy or provide evidence of same to the Contractor within 7 days of a request by the Contractor shall entitle the Contractor to take out an insurance policy in respect of the same risks and to recover the cost of the premiums and of any excess payments from the Sub-Contractor as a debt or to deduct such costs from any monies due to or becoming due to the Sub-Contractor.

14. DESIGN

• Where the Sub-Contract Works include for any element of design or detailing by the Sub-Contractor, the Sub-Contractor shall, in relation to the drawings, details and specifications of materials, goods and workmanship and other related documents prepared by or for the Sub-Contractor in relation to that design or detailing:
  • Upon the reasonable request of the Contractor provide such copies of the drawings, details, specifications and all other related documents as may be required by the Contractor;
  • In any event provide sufficient information including but not limited to drawings, details and specifications relating to the design or detailing by the Sub-Contractor as are required by the Contractor in order to enable the Contractor to comply with its obligations under the Main Contract or under any other sub-contract;
• The Contractor shall have an irrevocable, royalty free, non-exclusive licence to copy, use or reproduce any aspect of the design or detailing including the drawings, details, and specifications and all other related documents including any calculations, prepared by or on behalf of the Sub-Contractor for the purposes of or in relation to that design or detailing, for any purpose relating to the Main Contract Works or which is otherwise made known to the Sub-Contractor. The Contractor shall have the right to sub-license, copy, use or reproduce said aspects of the design or detailing for any purpose.

15. MISCELLANEOUS

• Title to any materials and/or goods brought onto the Site by the Sub-Contractor and/or included in any payment application by the Sub-Contractor shall, regardless of whether or not the materials and/or goods have been incorporated into the Sub-Contract Works, pass to the Contractor when the materials and/or goods are brought onto the Site or included in the payment application (as appropriate).
• Any property in goods supplied by the Contractor shall not pass from the Contractor and the Contractor shall accordingly retain a lien on all goods and the Sub-Contractor shall maintain and insure such goods. The Contractor shall be entitled to exercise its lien at any time in its absolute discretion following failure by the Sub-Contractor to complete the Sub-Contract Works in accordance with the Sub-Contract and for the purpose of exercising its lien the Contractor shall be entitled to enter upon any premises and remove goods subject to the Contractor’s lien there from and the Sub-Contractor will indemnify the Contractor against any claim, loss, damage of expense against or to the Contractor arising under or in connection with the exercise by the Contractor of its lien herein provided.
• Prior to (and as a prerequisite of) substantial completion, the Sub-Contractor shall at its own cost supply two copies of any documentation required by the Sub-Contract Documents.
• The Sub-Contractor shall not be entitled to any common law or equitable rights including rights to damages or to any other rights under contract, tort or otherwise in relation to any breach of this Sub-Contract to the extent that this Sub-Contract provides an express remedy in relation to the breach.
• It is agreed that whatever the manner in which the Parties have executed this Sub-Contract, the period of limitations (in respect of which the Sub-Contractor and the Contractor hereby waive all and any rights, whether already existing, arising now and/or in the future to raise as a defence to any claim brought under this Sub-Contract under the Limitation Act 1980), applicable to any claim or claims arising out of or in connection with this Sub-Contract shall be twelve (12) years from the date of substantial completion of the whole of the Sub-Contract Works.
• Section headings in these Terms of Sub-Contract are for convenience only and do not affect the interpretation of the Sub-Contract.
• Should any part of the Sub-Contract be found to be illegal, unenforceable and/or otherwise invalid, that part of shall be severed and deleted from the remaining parts of the Sub-Contract, and treated as if it had never been incorporated into the Sub-Contract, and the remaining parts shall remain enforceable and of full force and effect.
• These Terms of Sub-Contract do not confer, or purport to confer, any rights on any parties other than the Parties, and the Parties acknowledge that it is not their intention to confer rights on any other parties.
• Any delay by the Contractor in exercising any of their rights under the Sub-Contract shall not be and shall not be treated as being any waiver of those rights by the Contractor, and failure by the Contractor to exercise any of their rights on any given occasion shall not prevent the Contractor from exercising those or any other rights on any future occasion.
• Unless it is made or recorded in writing and in either case signed by a company director of the Contractor:
  • No agreement to vary these Terms of Sub-Contract; and
  • No agreement to disapply or not to rely on any of the provisions of these Terms of Sub-Contract, shall be of any effect whatsoever.
• The Sub-Contractor shall indemnify and hold the Contractor harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Contractor as a result of or in connection with any claim made against the Contractor in respect of any liability, loss, damage, injury, cost or expense sustained by the Contractor’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the provision of the Sub-Contract Works as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of this Sub-Contract by the Sub-Contractor.
• The Contractor shall be entitled to all property, copyright and other intellectual property rights in all documents and other work prepared and undertaken for the Contractor and/or its clients by the Sub-Contractor (whether past, present or future) in connection with the Sub-Contract Works, which property, copyright and other intellectual property rights the Sub-Contractor hereby, with full title guarantee, assigns to the Contractor. The Sub-Contractor will do all such things and execute all documents or instruments reasonably necessary in the opinion of the Contractor to enable the Contractor to obtain, defend or enforce its rights in such documents and work. The provisions of this paragraph shall survive the termination of this Sub-Contract.
• The Sub-Contractor will not at any time hereafter divulge any information in relation to the products or services of the Contractor or its clients or their respective affairs or business or method of carrying on business to any third party nor shall the Sub-Contractor divulge any information in respect of which (to the Sub-Contractor’s knowledge) the Contractor or any of its clients is bound by an obligation of confidence to a third party. These obligations shall not apply to any information which may come into the public domain (otherwise than through unauthorised disclosures by the Sub-Contractor or anyone on the Sub-Contractor’s behalf) or to information which is of a non-confidential nature.
• The Sub-Contractor will deliver up (free of any restriction, condition or encumbrance) to the Contractor on request from time to time and on the termination of this Sub-Contract all notes and records made by the Sub-Contractor relating to the Services and all other material containing confidential information and all documents, materials and things which are the property of the Contractor or its clients and all copies thereof.
• In order for the Sub-Contractor to carry out the Sub-Contract Works the Sub-Contractor will be given access to confidential information about the Contractor and its clients, the use of which by the Sub-Contractor for the Sub-Contractor’s own benefit, in competition with the Contractor would damage the Contractor’s business. Accordingly, the Sub-Contractor agrees that during the Sub-Contract Period and for a period of 1 year following termination the Sub-Contractor will not (whether directly or indirectly or solely or jointly with others) without the Contractor’s prior written consent (which it can withhold in its absolute discretion):
  • Interfere or seek to interfere in any contract between the Contractor and any third party;
  • Solicit or seek to solicit any person, firm or company to terminate or alter any contractual relationship between them and the Contractor;
  • Discourage or seek to discourage any person, firm or company from entering into contractual relations with the Contractor;
  • Make any disparaging remarks about the Contractor or any of its directors or managers or employees;
  • Work (as either an employee or as an independent contractor) for any client of the Contractor, for whom the Sub-Contractor has carried out work on behalf of the Contractor at any time during the immediately preceding 18 months.

These restrictions shall further apply to any persons or group of persons the Sub-Contractor appoints to assist The Sub-Contractor in carrying out the Sub-Contract Works under this Sub-Contract who shall be required in the Contractor’s absolute discretion to enter into a contract with the Contractor on the above terms. The Sub-Contractor and the Contractor consider the above restrictions to be reasonable, but if a court of competent jurisdiction finds any of them to be unenforceable the Sub-Contractor and the Contractor agree to accept any modification as to the extent or duration of the restriction concerned which the court sees fit to impose or, if it does not see fit, which is reasonably necessary to render the restriction enforceable.

• Except for death or personal injury due to negligence of the Contractor, in no event shall any breach of contract or tort (including negligence) or failure of any kind on the part of the Contractor or its employees give rise to any liability for loss of revenue or any consequential loss or damage arising from any cause whatsoever even if the Contractor has been advised of the possibility of such losses.
• The Sub-Contractor agrees and acknowledges that it is an independent contractor / supplier and nothing in this Sub-Contract shall render the Sub-Contractor or any of its employees (if applicable) an employee, agent or partner of the Contractor.
• Sub-Contractor shall not without the prior written consent of the Contractor pledge the credit of the Contractor nor sign any document, enter into any agreement or make any undertaking on behalf of the Contractor.
• By signing the Purchase Order or (in the absence of a Work Statement / Sub-Contractor Purchase Order) by commencing with the works for or on behalf of the Contractor, the Sub-Contractor agrees to these Terms of Sub-Contract.
• The Sub-Contract shall be governed by and construed in accordance with the laws of England. The parties agree, to the extent permitted under clause 12 of these terms, to submit to the exclusive jurisdiction of the English Courts.

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