In these conditions the following words and expressions shall have the meanings hereby respectively assigned to them
(a) “The Contractor” means Stothers (M&E) Limited.
(b) “The Main Contract” means the contract when made between the Main Contractor who shall be identified by the Contractor and the Contractor.
(c) “The Subcontractor” means the person, firm or company whose tender is accepted by the Contractor.
(d) “The Subcontract Works” means the works as described.
(e) “The Contract Works” means the whole of the works described in the Main Contract.
(f) “The Price” means the sum agreed for the subcontract works (as stated on front of this Subcontract Order).
Payment for subcontract works
(a) The subcontractor shall issue an application for payment at the end of each calendar month from the commencement of the subcontract.
(b) The contractor shall pay all properly substantiated applications payment within 45 days from the date when they are received by it.
(c) If the Contractor disputes the application for payment received from the Contractor, it will notify the subcontractor of same within 14 days and if the issue is not resolved the parties may follow the Dispute Resolution mechanism set out in this contract or through Adjudication.
(d) The subcontractor must co-operate fully with the contractor in relation to any outstanding requests for information required by the contractor to substantiate either payment under this contract or for the contractor to receive payment under the main contract.
(e) The contractor reserves the right to deduct from any certified payments the amounts of any contra accounts or other claims which the contractor is owed either pursuant to this or any contract.
Provisions of drawings
(a) The Subcontractor undertakes to provide, subject to following conditions, everything which is necessary for the completion of the Works in accordance with the drawings, specification and/or instructions supplied to him from time to time, using materials and workmanship of the quality and standards specified and to deliver up the Works to the Contractor, complete in every detail to the satisfaction of the Contractor and to the satisfaction of the Contract Administrator appointed under the Main Contract.
(b) The Subcontractor shall, before tendering, visit the site or otherwise make himself familiar with the extent of the subcontract works, the site conditions, and all local conditions and restrictions likely to affect the execution of the work. The Subcontractor may have access to any available drawing or work programme relative to the preparation of his tender on request and by appointment.
Attendances & Use of Facilities
(a) The Subcontractor may not, unless otherwise notified, use any of the Contractor’s Plant already in position and undertakes to make good at his own expense any damage, loss or injury suffered by the Contractor or others as a result of such use.
(b) The Subcontractor may, unless otherwise notified, at his own risk be permitted the free use, in common with other’s engaged upon the site, of any available water supply and temporary plumbing, but he is to provide to approval and at his own expense, any requisite temporary site office, or workshop accommodation, together with the necessary equipment lighting power, fuel, etc. Electric power supply and equipment used on site shall not exceed 110v A.C. singe phase. The Subcontractor will be responsible for all other attendances with exception of special attendance outlined in the appendix to these conditions.
(c) The Subcontractor shall include in this tender the cost of internal scaffolding (erected to manufacturers instructions) to complete the said works and for dismantling and re-erecting same as necessary.
(d) The Subcontractor will not damage any contractor plant.
(e) All off-loading and placing of materials must be arranged by the Subcontractor.
(f) Any materials delivered prior to commencement on site shall be off-loaded by the Subcontractor and shall be at the sole risk and cost of the Subcontractor.
Fully conversant with the main contract
(a) The Subcontractor is deemed to have full knowledge of the provisions of the Main Contract as same are available for inspection where such provisions are applicable to the words. These shall be deemed to be incorporated herein, provided always that if these differ from those embodied in this Subcontract these conditions shall apply and be enforced accordingly. Any conditions contained in the Subcontractor’s quotation or subsequent acknowledgement other than those particularly agreed and embodies in this order, shall be excluded.
The commencement of the subcontract works by the Subcontractor will be deemed to be acceptance by him of these conditions.
Programme to Progress Completion and Extensions of Time
(a) The works are to be commenced as soon as instructions are received from the contractor to proceed. The order, manner and progress of works must be maintained at all times so as to ensure completion of the works by the subcontract completion date, or such extended date or dates (if any as may be fixed by the Contractor). If the Subcontractor fails to complete the works, or any section therefore, within the period specified or any extended period or periods subsequently agreed, he shall pay to the Contractor any loss or damage suffered or incurred by the Contractor including any damages payable by the Contractor to the Main Contractor and caused by the failure of the Subcontractor. The Contractor must give reasonable notice to the Subcontractor at the earliest opportunity that such loss or damage is being, or has been suffered or incurred.
(b) The Subcontractor must promptly make written application to the Contractor for instructions, drawings, levels or other information so the works can proceed regularly and diligently.
(c) Any instructions, drawings, levels or other information relating to the works which is requested from the Subcontractor must be provided immediately so as not to cause disruption or delay to the works to be performed under the Main Contract.
(d) If the subcontractor believes that, or has grounds to suspect that the regular progress of the works will be delayed, he must advise the contractor in writing of the delay and the contractor may decide to allow the subcontractor additional time to complete the works.
The site may be closed down for certain periods which may be while the Subcontractor’s work is in progress. The Subcontractor will be deemed to have included in his tender any additional costs and time resulting from such closure.
(a) The Subcontractor undertakes to maintain at his own expense the works, both during progress and until the Architect or Engineer has passed these finally and to make good at his own expense, to the Architect’s or Engineer’s satisfaction any defects, shrinkages or other faults arising therein, at a time to be decided by the Contractor, but before the expiry of the defects liability period of the Main Contract.
(b) If after failure of the Subcontractor to respond, within 14 days to make good any defect, shrinkage or fault the Contractor may, without further notice to Subcontractor engage others to carry out the necessary remedial works and recover the costs of this action as a debt from the Subcontractor.
(c) Notwithstanding Clause 8(a) & (b) the Contractor may issue instructions for an appropriate deduction to be made from the subcontract sum in lieu of making good the defect, shrinkage or fault.
(d) The contractor shall pay the subcontractor one half of the retention figure upon practical completion and the remaining balance when the Contract Administrator has pursuant to the main contract, issued the Certificate of Making Good Defects.
Management of Waste
The Subcontractor shall be responsible for completing the subcontract works in a tidy and orderly fashion. All rubbish must be removed from the vicinity of the works, paths, road, etc. to an approved position on site as instructed by the contractor. If, after instructions to remove rubbish the Subcontractor fails to carry out such responsibilities the work will be carried out on behalf of the Subcontractor and a contra charged to his account. Wastage must be kept to a minimum. Material wastage above normal levels will be charged to Subcontractor’s account. On completion of the subcontract works, the Subcontractor shall remove from site all plant, tools, surplus materials, etc and shall leave clean and tidy all areas made available to him for the purpose of executing the Subcontract works.
Protection of the Works
The Subcontractor shall fully protect the whole of the subcontract works and will indemnify the Contractor against any claims for damage to third party persons and property likely to be effected by the works, until the complete works are approved by the Architect or accepted by the Contractor. No claims arising out of damage to subcontract works, prior to acceptance shall be entertained.
Hours of Working
Any overtime working to maintain programmed progress will be at Subcontractor’s expense unless authorised by the Contractor’s Supervisor in writing. Reimbursement for authorised overtime will be the net additional non-productive rate incurred including any net additional cost of Employer’s Liability and Third Party insurances. The Subcontractor will be required to obtain any necessary overtime permit from the appropriate authority. Whilst the main Contractor shall endeavour to make work available for the Subcontractor at all times, claims for waiting time due to inclement weather, materials shortages, availability of hoists, staging, etc will not be accepted. Advance warning of materials requirements to be given daily.
Responsibilities and Indemnities in Respect of Injury, Damage or Loss
The Subcontractor shall be liable for and indemnify the Contractor from and against
(a) any expense, liability loss, claim or proceedings howsoever caused arising by reason of the negligence or breach of statutory duty of the Subcontractor, its servants or agents or by any other reason whatsoever and arising under the any statute or at Common Law in respect of personal injury to or death of any person whomsoever and for injuries to, or any disease contracted by any person directly or indirectly paid by the Subcontractor or in the Subcontractor’s employment or temporarily lent or let for hire by the Main Contractor to the Subcontractor or any person in any way under the Subcontractor’s superintendence or control or otherwise engaged in the execution of the subcontract order, and also against all costs and expenses incurred in resisting or in the conduct of defence of any such claim or demand whether successful or not, and also in the ascertainment of the existence, extent or duration of any such liability, and whether such claim or demand be made by action, arbitration or otherwise unless due to any act or neglect of the Main Contractor or of any person for whom the Main Contractor is responsible.
(b) any expense, liability, loss, claim or proceedings in respect of any damage whatsoever to any property real or personal where such is due to negligence, omission or default of the Subcontractor, its servants or agents or any person for whom it is responsible.
(c) any breach, non-observance or non-performance by the Subcontractor or his servants or agents of any provisions of the Main Contract, and
(d) any act, omission, default or neglect of the Subcontractor, his servants or agents, which involves the Contractor in any liability under the Main Contract.
Without prejudice to its liability to indemnify the Contractor under the previous sub-clause, the Subcontractor shall maintain and shall cause any of its subcontractors to maintain such insurances as are necessary to cover those liabilities, including, but without limitation insurance against all Employer’s Liability and Third Party (including third party fire) risks arising out of the execution of the Subcontract Works.
The liability insurance cover of the Subcontractor shall be in the minimum sum of £5,000,000 (Five Million Pounds) for any one occurrence or series of occurrences arising out of one event or such greater sum as may be stated in the Appendix hereto.
As and when reasonably required to do so as the Subcontractor shall produce and shall cause any other person to produce, for inspection, documentary evidence that the insurances are properly effected and maintained and shall produce for inspection the policy or policies and premium receipts in question.
Should the subcontractor default in insuring or in continuing to insure as provided herein, the Contractor may itself insure against any risk with respect to which such default shall have occurred and may deduct a sum or sums equivalent to the amount paid or payable in respect of premiums from any monies due or to become due to the Subcontractor or any such amount may be recovered from the Subcontractor by the Contractor as a debt.
The Subcontractor shall be responsible for the Subcontract Works and every description of loss (including theft) or damage to all works executed materials tools, plant, scaffolding, access equipment, machinery, buildings and/or goods for use in connection with the Subcontract whether properly on site for incorporation into the Subcontract Works or at the Subcontractor’s workshop until Practical Completion of the Contract Works except
(a) to the extent that loss or damage has been caused by the negligence, omission or default of the Contractor, its servants or agents, or
(b) loss or damage by fire, lightning, explosion, storm, tempest, flood, earthquake, bursting or overflowing of water tanks, apparatus or pipes, aerial devices, riot and civil commotion (hereinafter called the “Specific Perils”) unless such loss or damage has been caused by the negligence, omission or default of the Subcontractor, its servants or agents
If any loss or damage affecting the Subcontract Works or Subcontract site materials is occasioned, whether by one or more of the Specific Perils or otherwise, then, upon discovering the loss or damage, the Subcontractor shall forthwith give notice in writing to the Contractor of the extent, nature and location thereof. The Subcontractor shall in accordance with any directions of the Contractor, with due diligence restore any Subcontract work lost or damaged, replace or repair any Subcontract site materials which have been lost or damaged, remove and dispose of any debris arising there from and proceed with the carrying out and completion of the Subcontract Works.
In the event of loss or damage to the Subcontract Works and/or materials or goods properly on site for incorporation therein by any of the Specific Perils, the Subcontractor shall bear the excess under any policy or insurance arranged by the Contractor or the Employer to the extent that such loss or damage shall have been due to the negligence, omission or default of the Subcontractor, servants or agents in those for whom it is responsible.
The Subcontractor will be responsible for temporary buildings, plant, tools, equipment or other properly not being materials or goods for incorporation into the Contract Works any insurance against loss of or damage to the same shall be the sole concern of the Subcontractor.
Safety, Health and Welfare/Statutory Payments
Statutory Obligations – The Subcontractor is reminded that he and his employees have a duty to observe all relevant requirements of the appropriate Health & Safety at Work legislation.
(b) The Subcontractor shall also comply with the Contractor’s requirements on matters affecting the safe conduct of work on their sites, notably that all Subcontract personnel shall hold Construction Skills Registration (CSR) (For Northern Ireland), Construction Skills Certificate Scheme (CSCS) (For United Kingdom).
(c) Statutory Payments – The Subcontractor shall include in his quotation for payments to be made under the Working Rule Agreement all payments in connection with holidays with pay, bonus and pension schemes, National Insurance subsistence allowance, taxes and travelling time, imported labour costs, CITB levy, or any payment required by regulations, bye-law or Act of Parliament.
Where required under this subcontract order, the Contractor reserves the right to withhold payment of the relevant Health & Safety documents, Method Statements, Risk Assessments or any other key contractual documentation that has not been given to the Contractor pursuant to the agreed timescale.
The Contractor may instruct additional or varied works, and such instructions for variation shall not vitiate this subcontract. The Subcontractor shall not undertake work involving a variation of extra work without previous written authority from the Contractor. Unauthorised variation or extra work will not be incorporated in interim payments. Variations or extra work so authorised shall be assessed on the basis of the rates within the subcontract quotation or at a rate or value to be agreed between the Subcontractor and the Contractor.
If the Subcontractor shall make default in any one or more of the following respects:-
(a) fails within seven days notice in writing from the Contractor to proceed regularly and diligently with the works to the reasonable satisfaction of the Contractor and at all times in such manner as will not, in the opinion of the Contractor, prejudice the completion of the whole or any portion of the work under the Main Contract
(b) refuses delays or fails within similar notice or other extended time notified by the Contractor in writing forthwith to rectify any defective workmanship and/or materials to the Architect’s or Engineer’s satisfaction.
(c) fails to complete and deliver up the whole or any portion of the works by the time or times specified or by such extended time or times as may be allowed by the Contractor
(d) fails to withdraw immediately, at the request of the Contractor any one or more of his employees to whom the Contractor objects or whose presence on the works may contravene the conditions of this or the Main Contract, or may cause labour disputes in the Subcontractor’s or any other trade, and to replace such employee immediately by others against whom there is no such objection
(e) make any arrangements with his creditors, has a Receiving Order made against him, executes a Bill of Sales or commits an act of bankruptcy, or being a limited company, goes into liquidation, or has a Receiver appointed.
(f) fails within seven days notice in writing from the Contractor to comply with any of the obligations on the part of the Subcontractor herein contained
(g) fails forthwith upon notice from the Contractor to commence remedial work to any defective workmanship and/or materials or fails to proceed with the same with due diligence or to complete such remedial work to the satisfaction of the Contractor without a set period as the Contractor may specify in the said notice or if non is so specified within a reasonable time. Then the Main Contractor may summarily determine the subcontract wholly or in part without payment or compensation to the Subcontract other than that to which he may be entitled under the terms and conditions of this Subcontract.
(h) fails pursuant to contract conditions to comply with requirements of CDM Regulations.
(i) if for any reason the Subcontractor deems it necessary to suspend work on site he must give written notice to the Contractor by recorded delivery, 14 days in advance of such action commencing, clearly specifying the default or defaults giving rise to this action. In the event of the Subcontractor suspending operations on site and it is later proved that the Subcontractor acted improperly in this respect, then the Subcontractor shall pay to, or allow to the Subcontractor, the full cost of all loss and expense resulting from the suspension of the subcontract works including, but not limited to, all liabilities to other trades and Subcontractors affected by the suspension of the Subcontract and all acceleration measures the Contractor deems necessary to recover time lost on all works including the subcontract works
(j) Fails to adequately supervise the subcontract works as agreed under the pre-contract agenda for responsibilities and attendances.
(k) Fails to provide any key contractual documentation to the Contractor.
Effect of Termination
In the event of employment of the Subcontractor under the Subcontract being determined the Contractor may exercise the same rights as are reserved by the Employer under the Main Contract and shall have the same powers over the Subcontractor’s plant, materials and property on the site, or on any materials or fabricated work lying at the Subcontractor’s works or workshops which have been brought or fabricated for the purpose of this Subcontract, as are given to the Employer under the Main Contract over the Contractor’s plant, materials and property, in like circumstances. The Contractor may also employ another or other subcontractors, and deduct from any monies due or becoming due to the Subcontractor and/or otherwise recover from the Subcontractor all additional costs of damages properly incurred by the Contractor in discharge of his obligations under the terms and conditions of the Main Contract through the Subcontractor’s default.
Àssignment – Sub Letting
The Subcontractor shall not without the written consent of the Contractor, assign the Subcontract or sub-let any portion of the subcontract.
This contract an any dispute or claim arising out of or in connection with it or its subject matter or formation (including non contractual disputes or claims) shall be governed by and construed in accordance with the laws of Northern Ireland, and the parties submit to the exclusive jurisdiction of the Courts of Northern Ireland. Furthermore, any adjudication between the Contractor and subcontractor shall be conducted in confidence.