McCARTHY & STONE RETIREMENT LIFESTYLES LIMITED SUBCONTRACT AGREEMENT

Transcription

1 McCARTHY & STONE RETIREMENT LIFESTYLES LIMITED SUBCONTRACT AGREEMENT

2 CONTENTS CLAUSE SUBCONTRACT AGREEMENT CONDITIONS PAGE 1.0 DEFINITIONS & INTERPRETATION RELATIONSHIP OF SUBCONTRACT DOCUMENTS SITE CONDITIONS EXECUTION OF THE SUBCONTRACT WORKS QUALITY OF THE SUBCONTRACT WORKS WASTE MANGEMENT AND CLEARANCE OF RUBBISH PHOTOGRAPHS AND ADVERTISING COPYRIGHT AND MORAL RIGHTS COMMENCEMENT, PROGRESS AND COMPLETION DEFECTS LIABILITY INDEMNITIES TO CONTRACTOR INSURANCE SCAFFOLDING, PLANT AND EQUIPMENT PROPERTY AND MATERIALS ON SITE HEALTH AND SAFETY PRICE OF THE SUBCONTRACT WORKS PAYMENTS AND RETENTION VARIATIONS VAT CONSTRUCTION INDUSTRY SCHEME (CIS) CONTRACTOR S RIGHTS TO SET OFF BRIBERY AND CORRUPTION DETERMINATION OF EMPLOYMENT DUE TO SUBCONTRACTOR S DEFAULT 24 Page 1

3 24.0 DETERMINATION OF EMPLOYMENT TRAINING ADJUDICATION NOTICES CONFIDENTIALITY THIRD PARTY RIGHTS GOVERNING LAW AND LEGAL PROCEEDINGS GENERAL 29 Page 2

4 DEFINITIONS & INTERPRETATION 1.1 In this Subcontract Agreement, whenever the context so permits, the following expressions shall have the following meanings: CDM Regulations Construction Products Directive Contract Works Defects Liability Period means the Construction (Design and Management) Regulations 2007; means the European Union Directive 84/106/EC and any subsequent amendments thereto; means the works or project being undertaken by the Contractor or its servants, agents or subcontractors, of which the Subcontract Works form a part; means the two year period of time following Practical Completion, or the period from Practical Completion until the Contractor has confirmed in writing that all defects in the Subcontract Works have been remedied, whichever is the longer; Documents means all plans, drawings, specifications, calculations and other documents or written or recorded material, including computer programs, originated by or on behalf of the Subcontractor for the Subcontract Works; Final Account Statement Force Majeure means the statement to be issued by the Contractor in accordance with clause 17.6; means any unpredictable occurrence beyond the responsibility and reasonable control of either party, including, but not limited to, acts of god, government restrictions, war, and any other circumstances not confined in their effects wholly to the parties, the Site or the Subcontract Works; Page 3

5 Labour Only Subcontractor Managing Agents means a subcontractor who is party to any agreement or arrangement, either written or oral, not being a contract of service or apprenticeship or for provision of professional services, between an employer and any other person or persons, the purpose of which is wholly or mainly the provision of services of such person or persons or of any other person or persons to the employer in his trade or business; means the managing agents of the completed development where the Subcontract Works are carried out; Management Requirements means such requirements of the Contractor as advised to the Subcontractor including, without limitation, the completion of a stipulated number of units per week, compliance with the Contractor s instructions on site, compliance with any short term programmes issued by the Contractor and phasing of the Subcontract Works; NHBC Practical Completion means the National House Building Council; means the date that the Contractor confirms in writing to the Subcontractor pursuant to clause 9.9 that the Subcontract Works have been completed by the Subcontractor; Regulations means the Building Regulations 2000 and all other building regulations enacted under the Building Act 1984; Site means the location where the Subcontract Works are to be carried out; Subcontract Agreement means this Agreement together with Appendices A, B and C and such other documents as are specified in Appendix C, but excluding any conditions that may be included in or referred to in such Page 4

6 other documents, unless specifically identified in Appendix C; Subcontract Sum means the lump sum fixed price specified in Appendix A, or such other sum as shall become payable by reason of any provision of this Subcontract Agreement; Subcontract Works means those works described in Appendix A, together with any variations to the Subcontract Works the Contractor may issue in accordance with clause 18.0; VAT Working Day means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar fiscal nature; and means any day on which banks in London are open for business. 1.2 In this Subcontract Agreement, unless it is inconsistent because of the subject or context: the singular shall include the plural and vice versa; the whole shall include any part thereof; the clause headings are for ease of reference only and shall not affect the interpretation of this Subcontract Agreement; where the words include(s), including or in particular are used, they are deemed to have the words without limitation following them; the Contractor s plant and any other property shall include plant and other property on hire or loaned to the Contractor or otherwise in the possession of the Contractor; and a statutory provision shall be construed as a reference to that provision as respectively amended, consolidated, extended or re enacted as at the date of this Subcontract Agreement and to any orders, regulations, instruments or other subordinate legislation made under the relevant statutes. Page 5

7 2.0 RELATIONSHIP OF SUBCONTRACT DOCUMENTS 2.1 This Subcontract Agreement includes and incorporates Appendices A, B and C and any documents referred to therein. 2.2 If any conflict appears between the terms of this Subcontract Agreement and Appendix A or Appendix B, then the Appendices shall prevail. If any conflict appears between the terms of this Subcontract Agreement and the documents specified in Appendix C, then the terms of this Subcontract Agreement shall prevail. 2.3 Any terms or conditions which may be endorsed on or annexed to or contained in any quotation of the Subcontractor shall not form part of this Subcontract Agreement nor apply to the Subcontract Works unless specifically identified in Appendix C. 3.0 SITE CONDITIONS 3.1 The Subcontractor shall be deemed to have satisfied itself as to the nature, extent and location of the Subcontract Works, the condition of the Site and any adjoining property or any services in or under the Site, the availability of the equipment and facilities necessary to carry out the Subcontract Works and any other matters which may affect the execution of the Subcontract Works in accordance with this Subcontract Agreement. Without prejudice to the generality of the foregoing, the Subcontractor will be taken to have included within the Subcontract Sum (as defined in clause 16.1) everything necessary for the proper and timely execution of the Subcontract Works, whether or not shown on the drawings or any specification provided by the Contractor, provided that the same may reasonably be inferred therefrom. 3.2 The Subcontractor shall satisfy itself before commencing the Subcontract Works as to the suitability of any structure on or within which the Subcontractor is to fix or lay its Subcontract Works. 3.3 The Subcontractor shall satisfy itself in adequate time, both before commencing and as it carries out each part of the Subcontract Works, as to the position, dimensions and suitability (as regards interface with the Contract Works) of any previous work forming part of the Contract Works or carried out by the Contractor or its servants, agents or subcontractors which might in any way affect such part of the Subcontract Works (including, without limitation, any surface to which the Subcontractor is to fix or lay the Subcontract Works) and shall immediately advise the Contractor in writing if such previous work is out of position, wrongly dimensioned or in any way so unsuitable so as to enable (where practicable) any works of rectification to be undertaken prior to the first day of the period notified by the Contractor to the Subcontractor for the carrying out of the Subcontract Works. Page 6

8 4.0 EXECUTION OF THE SUBCONTRACT WORKS 4.1 The Subcontractor shall execute, complete and maintain the Subcontract Works subject to and in accordance with this Subcontract Agreement in all respects and to the satisfaction of the Contractor and in conformity with all reasonable directions and requirements of the Contractor. 4.2 The Subcontractor shall execute and complete the Subcontract Works in accordance with all current and relevant British Standard Codes of Practice, NHBC requirements and the Building Regulations, and in accordance with all or any manufacturers instructions, insofar as they may be applicable. 4.3 The Subcontractor shall not use, or authorise or allow the use, of any substances or materials that: do not comply with the appropriate British Standard Codes of Practice; are recognised by the Building Research Establishment in any of its publications to be deleterious at the time of their specification; or have not been subject to a favourable technical assessment of fitness for use under the Construction Products Directive. 4.4 The Subcontractor is responsible for carrying out the Subcontract Works. In carrying out the Subcontract Works the Subcontractor may use its own employees or substitutes provided they have the required training and safety accreditation. At all times when employees or substitutes are used the Subcontractor shall remain solely responsible for the Subcontract Works. 4.5 The Subcontractor must maintain a competent person on the Site at all times to supervise its operatives and accept instructions from the Contractor. 4.6 The Subcontractor is responsible for ensuring that all employees or substitutes understand English sufficiently well so as to fully understand all instructions, directions or requirements (including, but not limited to, instructions, directions or requirements relating to health and safety) which may be delivered or issued by the Contractor from time to time. If the Subcontractor has any employee or substitute who does not speak English as his first language, the Subcontractor shall promptly notify the Contractor, who may make reasonable enquiries and investigations into the employee s or substitute s ability to understand English. If, in the Contractor s reasonable opinion, the Subcontractor s employee or substitute does not understand English sufficiently well so as to fully understand all the Contractor s instructions, directions or requirements, the Contractor may require the Subcontractor to hire and meet the cost of a suitably qualified interpreter who shall be available on Site throughout the duration of the Subcontract Page 7

9 Works to assist any of the Subcontractor s employees or substitutes who cannot understand English to the standard described herein. The Subcontractor accepts and agrees that this clause 4.6 is entirely necessary to ensure the clear and uncompromised issue of instructions, directions and requirements by the Contractor, particularly in relation to health and safety issues. 4.7 The Subcontractor shall not assign or sublet this Subcontract Agreement or any portion of the Subcontract Works without the written consent of the Contractor. 4.8 The Subcontractor shall not carry out the Subcontract Works or any part thereof outside the Contractor s normal site working hours as set out in Appendix A, except with the prior written approval of the Contractor. 4.9 The Contractor or its representative shall at all reasonable times have access to inspect any work which is being carried out for, or any materials that will be utilised in, the Subcontract Works All fossils, antiquities and other objects of interest or value which may be found on the Site in the course of the progress of the Subcontract Works shall be and become the property of the Contractor The Subcontractor shall abide by the Contractor s company policies as notified to the Subcontractor from time to time. 5.0 QUALITY OF THE SUBCONTRACT WORKS 5.1 The Subcontractor must complete the Subcontract Works with all the reasonable skill, care and diligence to be expected of a competent subcontractor and in a thorough and workmanlike manner and in accordance with all drawings and specifications supplied by the Contractor and to the satisfaction of the Contractor in all respects. 5.2 Insofar as the Subcontractor is responsible for designing any part of the Subcontract Works, the Subcontractor warrants to the Contractor that it will exercise the skill and care reasonably to be expected of a competent contractor undertaking the design of works similar in scope and character to the Subcontract Works. 5.3 All goods and/or materials supplied and/or used by the Subcontractor must be of sound and satisfactory quality and fit for their intended purpose. If goods or materials are specified by the Contractor then they must be supplied in accordance with that specification and if not so specified they must be obtained from a nominated source of supply acceptable to the Contractor. In the event that goods and/or materials are not obtained from a nominated source of supply then the Subcontractor shall forthwith indemnify the Contractor against any loss of rebate from the nominated supplier Page 8

10 suffered by the Contractor and shall pay or account to the Contractor for the difference in cost between the goods and/or materials so supplied and the goods and/or materials specified. 5.4 The Subcontractor shall procure from the relevant manufacturer and/or supplier (whichever is appropriate in the circumstances) of all goods and/or materials to be incorporated into the Subcontract Works as specified in Appendix A, a warranty in a form acceptable to the Contractor confirming that the specified goods and/or materials supplied or otherwise provided to the Subcontractor are appropriate, comply with all relevant British Standards and are fit for their intended use within the Subcontract Works (the Warranty ). Any such Warranty shall be procured by the Subcontractor prior to completion of the Subcontract Works and shall be expressly stated to be for the Contractor s benefit and enforceable by the Contractor. Should the Subcontractor fail to procure any such Warranty within the stipulated timescale, the Contractor shall be entitled to withhold a sum equivalent to 10% of the Subcontract Sum. 5.5 Any goods or materials supplied by the Contractor for the Subcontractor to incorporate into the Subcontract Works, which the Subcontractor considers are not of a quality suitable for the Subcontract Works may be rejected by the Subcontractor on immediate written notice being given to the Contractor. Alternative goods or materials will be supplied by the Contractor unless the Contractor instructs the Subcontractor in writing to use the original goods or materials supplied. 6.0 WASTE MANAGEMENT AND CLEARANCE OF RUBBISH 6.1 The Subcontractor will comply with and perform all of the requirements specified in the Site Waste Management Plan issued by the Contractor (the SWMP ), including any specific actions and targets which the Subcontractor is required to complete or meet. 6.2 The Subcontractor agrees to support the Contractor in complying with and developing the evolvement of the SWMP. 6.3 The Subcontractor shall, during the progress of and upon completion of the Subcontract Works, clear and keep tidy the Site to the satisfaction of the Contractor. Any waste materials and rubbish resulting from the execution of the Subcontract Works shall be moved by the Subcontractor at its own cost to a point designated by the Contractor. 6.4 Any loss or expense suffered by the Contractor by reason of any failure by the Subcontractor to comply with clause 6.3 will be charged to the Subcontractor and recoverable from the Subcontractor as a debt. Page 9

11 7.0 PHOTOGRAPHS AND ADVERTISING 7.1 The Subcontractor shall not photograph the Site or the Subcontract Works or any part thereof without written permission of the Contractor being first obtained, nor shall the Subcontractor display any advertisements on the Site. 8.0 COPYRIGHT AND MORAL RIGHTS 8.1 The Subcontractor hereby grants to the Contractor an irrevocable and perpetual royalty free licence of copyright and design right to copy and use the Documents and to reproduce the works, designs and inventions contained in the Documents for all purposes related to the Subcontract Works, including but not limited to the construction, completion, reconstruction, maintenance, alteration, extension, letting, promotion, advertisement, reinstatement, use or repair of the Subcontract Works. The licence shall carry the right to grant sub licences and shall be transferable without the permission of the Subcontractor, provided that the Subcontractor shall have no liability in the event that the Documents are used for a purpose other than that for which they were prepared. The licence shall subsist for the benefit of the Contractor notwithstanding any termination of the Subcontractor s employment under this Subcontract Agreement. 8.2 The Subcontractor hereby irrevocably waives any right it may have pursuant to Chapter IV (Moral Rights) of Part 1 of the Copyright, Designs and Patents Act 1988 in relation to the Subcontract Works or any part thereof regarding the Documents and shall obtain a written waiver from its employees of any rights they have in respect of the same. 8.3 The Subcontractor undertakes, warrants and covenants that immediately before the completion of the Subcontract Works the beneficial ownership of copyright or any other intellectual property in the Documents is and shall be vested in the Subcontractor. If the use of the Documents by the Contractor is found to infringe the rights of any third person, the Subcontractor shall indemnify the Contractor against all resulting costs, losses, damages and expense. 9.0 COMMENCEMENT, PROGRESS AND COMPLETION 9.1 The Subcontract Works shall be commenced within 7 days following the Subcontractor receiving notice to proceed from the Contractor and shall be completed within the time stated in Appendix A or as may be subsequently adjusted in accordance with the terms of this Subcontract Agreement. 9.2 The Subcontractor shall carry out the Subcontract Works at such times and in such sequence as shall be directed by the Contractor and in accordance with the Management Requirements. Page 10

12 9.3 If the completion of the Subcontract Works is likely to be or has been delayed beyond the time stated in Appendix A as a consequence of any act, default or omission on the part of the Contractor then, as soon as and in any event not later than 2 months after such delay has or should reasonably have become apparent to the Subcontractor, the Subcontractor shall give immediate written notice to the Contractor of the cause of the delay and the anticipated effects thereof, and shall as soon as possible thereafter (but within no later than 5 Working Days) submit full and detailed particulars of the extension of time to which the Subcontractor considers it is entitled to, and shall keep such particulars up to date by submitting such further particulars and/or substantiation which may be requested from time to time by the Contractor. For the avoidance of doubt, the Subcontractor shall not be entitled to any extension of time where the delay or likely delay is due to any act, default, negligence or omission on the part of the Subcontractor. 9.4 Subject to receipt of the necessary particulars and substantiation as required by clause 9.3, the Contractor may, as soon as reasonably possible thereafter, extend the period of time within which the Subcontract Works are to be completed. 9.5 The Subcontractor shall constantly use its best endeavours to avoid or prevent delay to the Subcontract Works and shall do all that is required by the Contractor to proceed with the Subcontract Works. 9.6 The Contractor does not guarantee the Subcontractor continuity of working and shall not be liable to the Subcontractor for any loss or damage resulting from any change in: the overall period within which the Subcontract Works were to be completed; or the sequence of individual items of work. 9.7 The Subcontractor shall at all times provide on the Site sufficient supervised labour to ensure completion of the Subcontract Works in accordance with clause 9.1. If in the opinion of the Contractor reasonable progress in performance of the Subcontract Works is not being maintained, the Contractor, upon giving written notice to the Subcontractor, may (without prejudice to its rights to determine under clause 23.0 below) accelerate the progress by employing the Contractor s own labour or that of other subcontractors. The Contractor shall be reimbursed any expense so incurred or may recover such expense as a debt from the Subcontractor. 9.8 In the event of the Subcontractor failing to complete the Subcontract Works within the time stated in Appendix A or by reference to any subsequent adjustment made in accordance with clauses , the Subcontractor shall indemnify the Contractor against any costs arising from such failure, and any loss or damage suffered or incurred by the Contractor as a direct or indirect Page 11

13 result of such failure. At the earliest reasonable opportunity the Contractor shall give written notice to the Subcontractor that such loss or damage is being or has been suffered or incurred. 9.9 When the Subcontractor considers that the Subcontract Works are practically complete, it shall notify the Contractor in writing. When the Contractor receives such notice it shall consider whether the Subcontract Works are practically complete and shall confirm to the Subcontractor in writing whether Practical Completion of the Subcontract Works has been achieved as soon as is reasonably practicable to do so. Where the Contractor does not consider that the Subcontract Works are practically complete, the Contractor shall notify the Subcontractor of the outstanding aspects of the Subcontract Works which require completion DEFECTS LIABILITY 10.1 The Subcontractor shall maintain the Subcontract Works and shall be liable to make good or indemnify the Contractor in respect of the cost of making good any defects, shrinkages or other faults which shall appear within the Defects Liability Period and which are due to failure of the Subcontractor to comply with its obligations under this Subcontract Agreement or due to frost occurring prior to completion of the Subcontract Works All defects for which the Subcontractor is liable to rectify shall (unless covered by an NHBC claim and remedied by or upon the instructions of the NHBC under their Buildmark Scheme or other similar scheme covering (amongst other things) the Subcontract Works) be remedied at the Subcontractor s own expense and in accordance with the Contractor s instructions and within the following timescales: pipe bursts, drain blockages and any other similar occurrences causing or which in the Contractor s opinion are likely to cause immediate damage to the Subcontract Works: immediately; fire alarm, fire detection equipment, warden call, door entry, electrical faults and any other similar occurrences which in the Contractor s opinion threaten the integrity of the Subcontract Works: within 24 hours; and any other defect: inspection of the defect within 5 Working Days of notification by the Contractor and completion of remedial works within 10 Working Days of notification by the Contractor, or such longer period as may be agreed with the Contractor Should the Subcontractor fail to carry out the necessary remedial works within the timescales set out in clause 10.2 after notice from the Contractor, the Contractor may make other arrangements for the execution of such Page 12

14 remedial works, whether by itself or by a third party. Any remedial works carried out by a third party on the instructions of the Contractor shall not affect the liability of the Subcontractor hereunder in respect of the Subcontract Works, save only to the extent of work carried out or materials supplied by such third party Without prejudice to the provisions of clause 10.5, the Subcontractor shall bear all the Contractor s costs and expenses in connection with any remedial works carried out by the Contractor or a third party pursuant to clause 10.3, in addition to an administration fee of 50 or 20% of the costs and expenses so incurred (plus VAT), whichever is the greater. The Contractor shall be entitled to deduct such costs and expenses from any payment or monies otherwise due to the Subcontractor from the Contractor. Any additional expense or cost so incurred by the Contractor shall be paid to it by the Subcontractor or shall otherwise be recoverable from the Subcontractor as a debt due upon written demand In the event that any defects arising within the Defects Liability Period are the subject, wholly or in part, of a claim to the NHBC and are remedied by or upon the instructions of the NHBC as aforesaid, then the Contractor shall be entitled to deduct or set off against any monies otherwise due to the Subcontractor hereunder the cost of remedying the defects at the prices stated in the NHBC schedule of rates as applied by the NHBC to the cost of rectification INDEMNITIES TO CONTRACTOR 11.1 The Subcontractor shall be liable for and shall indemnify the Contractor against any liability, loss, claim or proceedings howsoever arising in respect of personal injury or death caused by or arising from the carrying out of the Subcontract Works, unless such personal injury or death is due to any negligent act or omission of the Contractor, its servants, employees, agents or any other subcontractor of the Contractor The Subcontractor shall be liable for and shall indemnify the Contractor against any expense, liability, loss, claim, or proceedings howsoever arising in respect of any injury or damage to any property real or personal caused by or arising from the carrying out of the Subcontract Works, unless such injury or damage is due to any negligent act or omission of the Contractor, its servants, employees, agents or any other subcontractor of the Contractor INSURANCE 12.1 Without prejudice to its liability to indemnify the Contractor under clause 11.0, the Subcontractor shall maintain such insurances as are required by the Contractor to cover liability in respect of: Page 13

15 personal injury or death caused by or arising from the carrying out of the Subcontract Works. The minimum amount of such insurance for any one occurrence or series of occurrences arising out of one event shall be 1 million or such greater sum (if any) as stated in Appendix A. As to employees or apprentices, such insurance shall comply with the Employers Liability (Compulsory Insurance) Act 1969 and any statutory orders made thereunder or any amendment or re enactment thereof; and injury or damage to property real or personal caused by or arising from the carrying out of the Subcontract Works. The minimum amount of such insurance for any one occurrence or series of occurrences arising out of one event shall be 1 million or such greater sum (if any) as stated in Appendix A Where the Subcontractor is responsible for any part of the design of the Subcontract Works, it warrants to the Contractor that it has in force a policy of professional indemnity or product liability insurance covering its liabilities under this Subcontract Agreement with a reputable insurer and a minimum amount of at least 1 million or such greater sum (if any) as stated in Appendix A for any occurrence or series of occurrences arising out of one event. The Subcontractor shall maintain such insurance for a period of 6 years from the date of completion of the Contract Works, provided it is available in the market place on commercially reasonable rates and terms. If at any time during this period, such insurance is not available on commercially reasonable terms and conditions, the Subcontractor shall immediately inform the Contractor and shall obtain in respect of such period, such reduced level of insurance as is available and as would be fair and reasonable in the circumstances for the Subcontractor to obtain Any increased or additional insurance premium required by reason of the Subcontractor s own claims record or other acts, omissions, matters or things particular to the Subcontractor, shall be deemed to be within commercially reasonable rates and terms The Subcontractor shall observe and comply with the terms and conditions contained in the policies of insurance required under this clause Prior to the commencement of the Subcontract Works on Site, the Subcontractor shall produce for inspection by the Contractor documentary evidence that the insurances required by or referred to in the Subcontract are properly in force and the premiums paid. The Subcontractor shall, on the expiry of any period of insurance cover or otherwise at the request of the Contractor, produce documentary evidence that the policy has been maintained and/or renewed on appropriate terms. Page 14

16 13.0 SCAFFOLDING, PLANT AND EQUIPMENT 13.1 The Contractor licences the Subcontractor, for the purpose of executing and completing but not maintaining the Subcontract Works, to use such scaffolding as is provided by the Contractor in connection with the normal progress of the Contract Works or such scaffolding as is specified in Appendix B. Any such licence shall not imply any warranty by the Contractor as to the fitness, condition or suitability of such scaffolding in respect of its use by the Subcontractor, its servants, employees or agents, nor relieve the Subcontractor of any statutory or other obligations to test or inspect the scaffolding to be used by its servants, employees or agents or to provide such items for their use The Contractor shall provide, by way of licence, free of charge to the Subcontractor, such items of plant and equipment as are specified in Appendix B and shall permit the Subcontractor, in common with such other subcontractors as the Contractor may allow, to have the use thereof for the purposes of executing and completing, but not maintaining, the Subcontract Works The Subcontractor shall indemnify the Contractor against any losses, charges, costs, expenses and claims arising from the use of the scaffolding, plant, or equipment by the Subcontractor, including but not limited to any losses, charges, costs, expenses and claims arising from damage to or loss of the scaffolding, plant or equipment caused by the Subcontractor (excluding normal wear and tear), personal injury and death, and loss or damage to real or personal property If the Subcontractor shall become aware of any unsafe scaffolding, plant or equipment within the vicinity of the Subcontract Works, the Subcontractor shall notify the Contractor immediately and if the unsafe scaffolding, plant or equipment is being used by or in connection with the Subcontract Works then the Subcontractor shall suspend the further execution of the Subcontract Works until such time as the said scaffolding, plant or equipment is made safe Neither the Subcontractor nor the Contractor (or their respective servants or agents) shall wrongfully use or interfere with the plant, scaffolding, temporary works, appliances or other property belonging to, or provided by, the other of them or be guilty of any breach or infringement of any Act of Parliament or bye law, regulation, order or rule made under the same, or by any local or other public or competent authority, provided that nothing herein contained shall prejudice or limit the rights of the Contractor or of the Subcontractor in the carrying out of their respective statutory duties or contractual obligations under this Subcontract Agreement. Page 15

17 14.0 PROPERTY AND MATERIALS ON SITE 14.1 Any items of property and plant left at the Site by the Subcontractor remain entirely at the Subcontractor s sole risk With regard to materials which have not been fully, finally and properly incorporated into the Subcontract Works and inspected and approved by the Contractor: where supplied by the Subcontractor, such materials are left on the Site at the Subcontractor s sole risk whether or not storage is provided by the Contractor; where supplied by the Contractor for use by the Subcontractor, the Subcontractor shall minimise waste at all times and shall be responsible for clearing away, securing and generally taking care of such materials during the course of carrying out of the Subcontract Works Material stacks and stores must be kept neatly at all times. Materials taken from stack or store to the place of installation or use must be, so far as can reasonably be estimated, sufficient only for the work to be executed. Any off cuts or excess or surplus material must be collected and returned to stack or store. Where materials are supplied by the Contractor the same shall be used efficiently and so as to minimise wastage. Any wastage of materials which might reasonably have been avoided shall be charged to the Subcontractor HEALTH AND SAFETY 15.1 The Contractor and the Subcontractor respectively, together with their servants, employees or agents shall not intentionally or recklessly interfere with or misuse anything provided in the interests of health and safety or welfare in pursuance of any relevant health and safety statutory provisions, including (without limitation) the Health & Safety at Work Act The Subcontractor shall comply with all statutory requirements as regards health and safety at work and the Contractor s safety policy. Safety helmets and all necessary safety equipment shall be supplied by the Subcontractor and used by its employees, servants or agents at all times The Subcontractor shall comply with the Control of Substances Hazardous to Health (1988) Regulations (COSHH) and provide the Contractor with copies of COSHH assessments relating to the Subcontract Works prior to the commencement of the Subcontract Works The Subcontractor shall comply with the CDM Regulations and shall comply, at no cost to the Contractor, with all reasonable requirements of the Contractor for the purposes of compliance with the CDM Regulations. In Page 16

18 particular the Subcontractor shall provide the Contractor with all necessary method and risk assessments relating to the Subcontract Works prior to the commencement of the same and shall in all respects comply with the Contractor s Health and Safety Plan and provide the Contractor with any information which the Subcontractor considers or which the Contractor reasonably considers is or may be necessary to ensure the Health and Safety Plan complies with and continues to have the features required by the CDM Regulations For the purposes of the CDM Regulations, the Contractor shall be the Principal Contractor and CDM coordinator, unless otherwise specified in Appendix A The Subcontractor shall provide the Contractor with all information pertaining to the Subcontract Works necessary to ensure the Contractor s Health and Safety File fulfils the requirements of the CDM Regulations PRICE OF THE SUBCONTRACT WORKS 16.1 The price of the Subcontract Works (herein referred to as the Subcontract Sum ), which shall be a lump sum fixed price, shall be the sum named in Appendix A, or such other sum as shall become payable by reason of any provision of this Subcontract Agreement PAYMENTS AND RETENTION 17.1 Each application for payment ( Application ) shall be submitted by the Subcontractor in accordance with clause It shall be a condition precedent to payment becoming due that Applications are received by the Contractor on or before the dates specified in Appendix A and include all work carried out in accordance with this Subcontract Agreement. Each Application shall specify the sum the Subcontractor considers to be due at the due date for payment (which is determined in accordance with clause 17.3) and the basis on which that sum is calculated. When calculating the sum due, the Subcontractor shall only include work carried out in accordance with this Subcontract Agreement in the period of time prior to the date of the Application. Each Application shall be in such form and contain such details as the Contractor may reasonably require, and the value of work done shall be calculated in accordance with the rates and prices, if any, specified in Appendix A. If no such rates or prices are so specified, then the value of the work done shall be calculated either by measured items or by an agreed percentage of the Subcontract Works completed, calculated by reference to the Subcontract Sum. In no circumstances shall the rates and prices, if any, specified in this Subcontract Agreement or the Subcontract Sum be adjusted or altered in any way by reference to the cost of wages or materials save in accordance with the provisions of this Subcontract Agreement. Page 17

19 17.3 Applications shall become due 7 days after the date of receipt of an Application and the final date for payment shall be 30 days after the receipt of an Application submitted in accordance with clause Interim payments are made on account and shall be subject to any adjustment in accordance with the terms of this Subcontract Agreement prior to the issue of the Final Account Statement by the Contractor Applications will be assessed by the Contractor within 7 days of receipt of the Application. Not later than 5 days after the due date for payment, the Contractor shall issue a written notice to the Subcontractor specifying the sum the Contractor considers to be or have been due at the due date for payment and the basis on which that sum is calculated (a Payment Notice ). The Payment Notice will include details of all sums which the Contractor is entitled to deduct from the Subcontractor, including without limitation any deductions for defective works, deductions for works which have not been properly carried out and deductions for failure to provide Warranties in accordance with clause 5.4. The Payment Notice will be issued to the Subcontractor in accordance with clause 27. Subject to clause 17.5, the Contractor shall pay the sum set out in the Payment Notice on or before the final date for payment If the Contractor wishes to pay less than the sum set out in a Payment Notice, the Contractor shall no later than 1 day before the relevant final date for payment issue a written notice to the Subcontractor specifying the sum the Contractor considers to be due at the date that notice is served and the basis on which that sum is calculated (a Pay Less Notice ). The Pay Less Notice will be issued to the Subcontractor in accordance with clause 27. The Contractor shall pay the sum set out in the Pay Less Notice on or before the relevant final date for payment The Subcontractor shall, no later than the last Working Day in the month following the month in which Practical Completion occurs, submit all documentation reasonably required by the Contractor to enable the final account of the Subcontractor to be determined prior to the issue of the Final Account Statement. The Contractor shall provide the Final Account Statement to the Subcontractor no later than 1 month after the last Working Day in the month following the month in which Practical Completion occurs. If the Subcontractor fails to submit the documentation reasonably required by the Contractor in the period specified in this clause 17.6, the Contractor may, on the expiry of such period, give notice in writing to the Subcontractor of its assessment of the final account and shall issue the Final Account Statement accordingly, which shall be binding on the Subcontractor. As the case may be, the Final Account Statement shall state whether a balance is due to the Subcontractor from the Contractor, or a balance is due to the Contractor from the Subcontractor. The due date for payment of the balance showing in the Final Account Statement shall be 2 months after the last Working Day in the month following the month in which Practical Completion occurs and the Page 18

20 final date for payment of the balance shall be 14 days thereafter. Not later than 5 days after the due date for payment of the balance showing in the Final Account Statement, the Contractor shall issue a Payment Notice specifying the sum the Contractor considers to be due (which may be a sum due to the Contractor from the Subcontractor, or a sum due from the Subcontractor to the Contractor) and the basis on which that sum is calculated. If the party from whom payment is due intends to pay less than the sum set out in the Final Account Statement, it shall not later than 1 day before the final date for payment issue a Pay Less Notice specifying the sum it considers to be due at the date the Pay Less Notice is served and the basis on which that sum is calculated The value of materials delivered to the Site but not incorporated into the Subcontract Works and/or the value of materials off the Site shall not be included in any interim applications for payment All payments made to the Subcontractor, including the release of retention, will be subject to the discount percentage stated in Appendix A, which shall be deducted from the sum otherwise due for payment Retention shall be deducted from all payments at the percentage rate stated in Appendix A. The first half of the retention money retained shall be released to the Subcontractor in accordance with clause 17.6 as part of the balance due under the Final Account Statement, or at such other time as stated in Appendix A. The second half of the retention money retained shall be released following a written request from the Subcontractor and paid to the Subcontractor after the expiry of the Defects Liability Period or at such other time as may be stated in Appendix A, provided always that all defects have been rectified by the Subcontractor to the satisfaction of the Contractor Payment of interim Applications shall not constitute or be deemed to constitute approval by the Contractor of the whole or any part of the Subcontract Works executed nor shall any final payment and/or the release of any retention monies prejudice any claim the Contractor may have against the Subcontractor hereunder In the event of the Contractor failing to pay any sum properly due to the Subcontractor by the final date for payment, the Contractor shall pay interest on such overdue sum at the rate of 2% per annum above the official dealing rate of the Bank of England at the final date for payment. For the avoidance of doubt, the Subcontractor expressly agrees that the interest charged pursuant to this clause shall represent a substantial contractual remedy pursuant to the Late Payment of Commercial Debts (Interest) Act Notwithstanding any other provision of this Subcontract Agreement, if the Subcontractor becomes insolvent as defined by sections 113(2) to 113(5) of the Housing Grants, Construction and Regeneration Act 1996, then no further sum shall become due to the Subcontractor under this Subcontract Page 19

21 Agreement. The Contractor need not pay any sum that has already become due to the Subcontractor where the Contractor has given or gives a Pay Less Notice, or where the Subcontractor becomes insolvent after the last date on which a Pay Less Notice could be given by the Contractor in respect of that sum The provisions of this clause 17.0 shall at all times be subject to the requirements from time to time of the Construction Industry Scheme ( CIS ) as set out at clause 20.0 and VAT as set out in clause VARIATIONS 18.1 The Subcontract Works shall be subject to variation at the sole discretion of the Contractor and at any time, including prior to commencement of the Subcontract Works on Site. All variations, additions or omissions to the Subcontract Works shall be authorised by the Contractor in writing before their execution. The Subcontractor shall carry out any reasonable variation, addition or omission to the Subcontract Works which is authorised by the Contractor in writing The value of all variations of the Subcontract Works shall be ascertained by reference to the rates and prices specified in Appendix A. If there are no such rates and prices, or if they are not applicable, then such rates and prices as are fair and reasonable shall be applied. Wherever possible, rates shall be agreed prior to commencement of any variation to the Subcontract Works The Contractor shall not pay for any variations of the Subcontract Works on a daywork basis, provided that the Contractor may at its absolute discretion pay for minor variations to the Subcontract Works on a daywork basis subject to the following terms: the Contractor s site manager shall be notified in advance by the Subcontractor of any work which the Subcontractor considers appropriate to be paid for on a daywork basis in order that the time spent can be properly recorded; any daywork sheets shall be submitted to the Contractor on a weekly basis and will be signed by the Contractor s site manager for record purposes only; no dayworks in excess of 20 hours in any week will be paid for (even though the signed weekly sheet may show more than 20 hours as having been worked); and when approved for payment by the Contractor dayworks will only be paid by reference to the daywork rates contained in Appendix A. Page 20

22 19.0 VAT 19.1 The Subcontract Sum is exclusive of any VAT properly chargeable by the Subcontractor on the supply of goods and services Should VAT be properly chargeable on all or any part of the Subcontract Works then: the Contractor shall add to every payment made the amount of VAT that the Subcontractor is due to account for to HM Revenue and Customs (hereinafter called HMRC ); and such amounts will be paid in accordance with the requirements of HMRC governing self billing arrangements. By entering into the Subcontract, the Subcontractor agrees with the Contractor that the Contractor may raise invoices in respect of the Subcontractor s supplies. The Subcontractor further agrees with the Contractor that these invoices may be sent to the Subcontractor by electronic means. The Subcontractor shall account to HMRC for the amount of VAT (output tax) shown on the self billed tax invoice of the Contractor. Such self billed tax invoice shall become the Subcontractor s invoice. The Subcontractor must not issue separate VAT invoices for the supply of any goods and services referred to in clause The Subcontractor shall confirm to the Contractor its VAT registration status. Prior to any payments being made under this Subcontract Agreement, the Subcontractor shall produce its current original VAT registration document or a certified true copy of the original The Subcontractor shall forthwith inform the Contractor in writing of any change in the VAT status of the Subcontractor, including if it ceases to be registered for VAT, transfers its business as a going concern or becomes registered under another VAT number. Where the Subcontractor becomes registered under another VAT number the Subcontractor must provide the Contractor with a copy of the appropriate documentation received from HMRC The Subcontractor shall from time to time upon reasonable notice from the Contractor supply to the Contractor a copy of its latest VAT return and if so requested make its VAT records available for inspection by or on behalf of the Contractor CONSTRUCTION INDUSTRY SCHEME (CIS) 20.1 Where HMRC instructs the Contractor to pay the Subcontractor under the deduction of tax at either the basic rate or the higher rate of tax which is in Page 21

23 force at the time of payment, as referred to in section 61 of the Finance Act 2004, then: the Application submitted pursuant to clause 17.2 must show the direct cost to the Subcontractor and to any other persons to be included in the payment, of materials used or to be used in carrying out the Subcontract Works (including consumable stores, fuel except fuel for travelling and plant hire used in the carrying out of the Subcontract Works) separately from the cost of labour (including fuel for travelling); and the Contractor shall make the statutory deduction which is in force at the time of payment as referred to in section 61 of the Finance Act 2004 from that part of the payment which is not in respect of the direct cost of materials used or to be used in carrying out the Subcontract Works, as stated by the Subcontractor pursuant to clause The Subcontractor shall indemnify the Contractor against any loss or expense caused to the Contractor by any incorrect statement of the amount of direct cost of materials used or to be used in carrying out the Subcontract Works, as referred to in clause Where the Subcontractor fails to comply with clause , or where the Contractor has reasonable grounds to believe that any statement provided in compliance with clause is incorrect, the Contractor shall make a fair estimate of the direct cost of materials used or to be used in carrying out the Subcontract Works Where the Contractor has been instructed by HMRC to pay the Subcontractor net of deduction of tax, the Contractor shall by the 19th day of the month following the month in which the payment is made, provide the Subcontractor with a deduction statement showing all the payments made in the tax month concerned and the total tax deducted. This deduction statement may be issued in either paper form or by electronic means Where the Contractor has made an error or omission in calculating the statutory deduction which is in force at the time of payment as referred to in section 61 of the Finance Act 2004, the Contractor may correct the error by repayment or further deduction from payments due to the Subcontractor, subject only to an instruction by HMRC to the Contractor not to make such a correction If any conflict appears between any provisions of this clause 20.0 and the other provisions of this Subcontract Agreement, then the provisions of this clause 20.0 shall prevail and the Contractor and the Subcontractor shall comply with this clause 20.0 in all respects. Page 22