Terms

Terms and conditions

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SUB-CONTRACT TERMS AND CONDITIONS

Definitions and Interpretation
1. In these terms and conditions the following definitions apply :-

“Assessment” has the meaning given in clause 4.9.

“Building Control Approval”: the building control approval application as defined by the Building Regulations.

“Building Regulations”: Building Regulations 2010 (SI 2010/2214) as the same may be amended or modified from time to time.

“Building Regulations Completion Certificate: the completion certificate issued by the relevant authority as defined by the Building Regulations.

“Building Safety Legislation”:

(a) the Building Safety Act 2022 as may be amended and supplemented from time to time;

(b) the Defective Premises Act 1972;

(d) the Building Regulations;

(e) any Statutory Requirements made under, amended or enacted as a result of the Building Safety Act 2022, the Defective Premises Act 1972, the Building Act 1984 and the Building Regulations having the force of law that affects the Sub-Contract Works;

(f) any guidance issued by a government department, the Building Safety Regulator (as set up by the Health and Safety Executive pursuant to the Building Safety Act 2022) and/or the Health and Safety Executive in connection with the Building Safety Act 2022, the Defective Premises Act 1972, the Building Act 1984, the Building Regulations and/or any statutory instrument, regulation, rule, order, code of practice or guideline relating to the Building Safety Act 2022, the Defective Premises Act 1972, the Building Act 1984 and/or the Building Regulations; and / or

(g) any building safety laws and regulations now or from time to time in force that affects the Sub-Contract Works or performance of any obligations under this Sub-Contract.

“Building Safety Regulator”: the building safety regulator, set up by the Health and Safety Executive pursuant to the Building Safety Act.

“CDM Regulations”: the Construction (Design and Management) Regulations 2015 and any related Approved Code of Practice issued by the Health and Safety Commission.

"Company": Woodhouse Contracts Limited (Company Number 09539657) whose registered office is at 40 Beaconsfield Road, Hatfield, Hertfordshire, AL10 8BB or its successors, assigns or assignees, or if different the company stated to be placing the Order.

“Competency Requirements”: the skills, knowledge, experience, behaviours and capabilities required to properly and competently perform the functions of a Dutyholder, together with any further competency standards published from time to time by any authorised body.

“Construction Act”: the Housing Grants and Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009.

“Deleterious”: materials or equipment that are generally accepted, or generally suspected, in the construction industry the relevant time as:

(a) posing a threat to the health and safety of any person;

(b) posing a threat to the structural stability, performance or physical integrity of the Project or any part or component of the Project;

(c) reducing, or possibly reducing, the normal life expectancy of the Project or any part of a component of the Project; and / or

(d) not being in accordance with any relevant British Standard, relevant code of practice, good building practice or any applicable agreement certificate issued by the British Board of Agreement.

“Dutyholder”: the function of a dutyholder under the Building Safety Legislation.

“Employer”: the employer under the Main Contract.

"Main Contract": the contract entered into by the Company to carry out the Main Contract Works of which the Sub-Contract Works form a part.

"Main Contract Works": the works to be carried out under the Main Contract.

"Order" : the order given by the Company to the Sub-Contractor to carry out the Sub-Contract Works together with any check-list specifications, schedule of rates or other documents contained or referred to in the Order.

"Period for Completion" : either the number of weeks as stated in the Order by which the Sub-Contract Works are to be carried out and completed or the fixed date by which the Sub-Contract Works are to be carried out and completed (subject to any adjustments confirmed or notified by the Company in writing) as identified in the Order.

“Product Safety Regulator”: the regulator to be set up within the Office for Product and Safety Standards pursuant to the Building Safety Legislation.

“Sub-Contract”: the sub-contract between the Company and the Sub-Contractor consisting of the Order and the Sub-Contract Documents.

"Sub-Contract Documents": the Order, the Company's Health and Safety Policy, these terms and conditions and any details, drawings, specifications or other documents relating to the Sub-Contract Works and identified or referred to in the Order (including any addition or variation thereto and either confirmed or notified to the Sub-Contractor by the Company in writing).

"Sub-Contract Sum": the sum stated in the Order for carrying out the Sub-Contract Works which is a lump sum unless stated otherwise on the Order.

"Sub-Contract Works": the works identified in the Order including (where appropriate) design services, the supply of goods, materials, labour and installation to be carried out in accordance with these terms and conditions.

"Sub-Contractor": the person(s), firm or company identified in the Order as the party carrying (or to carry) out the Sub-Contract Works.

“Third Party Agreement”: any agreement between the Company or Employer and a third party relating to the Project.

Any reference in these terms and conditions to a ‘clause’ shall include reference to any related sub-clause(s), as the context requires.

Clause headings and sub-headings shall not affect the interpretation of these terms and conditions.

General

These terms and conditions shall be deemed to be incorporated in any contract, agreement or Order between the Company and the Sub-Contractor and shall be in substitution for any other terms and conditions introduced before or after the date of the Order (unless any different terms are expressly identified and agreed in writing by the Company).
This agreement takes effect from the date when the Sub-Contractor commences the Sub-Contract Works, regardless of the date of this agreement.
Property or title and interest in all materials and goods provided by the Sub-Contractor for incorporation into the Sub-Contract Works shall pass to the Company immediately upon their delivery to site or, if earlier, upon the date of payment for such materials and goods by the Company.
Notwithstanding the point at which property or title and interest in any materials and goods or other things passes to the Company such items shall remain at the risk of the Sub-Contractor who shall be responsible for any loss or damage of such items until completion of the Sub-Contract Works.
The Sub-Contractor shall be deemed to have visited the site and to be fully satisfied with all matters which may affect the carrying out of the Sub-Contract Works and the Sub-Contractor shall not be entitled to any extension of time or any adjustment of the Sub-Contract Sum for any costs, losses or expenses incurred by reason of such matters.
The Sub-Contractor shall indemnify the Company against all costs, losses, expenses, damages, claims and demands incurred (or any increased preliminary and/or other overhead costs suffered) by the Company as a result of any breach by the Sub-Contractor or any of its servants or agents of any of these terms and conditions, the Main Contract or any Third Party Agreement, or any act, omission, default breach of statutory duty or otherwise on the part of the Sub-Contractor or any of its servants or agents. For the avoidance of doubt this indemnity shall include but shall not be limited to any such matters which may arise pursuant to the operation of clauses 7.2 or 7.3 of the Sub-Contract.
Save to the extent the Sub-Contractor has a longer period of liability (whether to the Company or any third party) under the Limitation Act 1980 (in which case the Sub-Contractor’s liability under this Sub-Contract shall be extended to an equivalent period in respect of any such matter), the parties agree that the Sub-Contractor’s liability under this Sub-Contract shall continue and shall not cease until the expiry of twelve (12) years after the date of date of Practical Completion under the Main Contract (or such later period as may be required under the Limitation Act 1980 in respect of Section 1 or 2A of the Defective Premises Act 1972 and/or Section 38 of the Building Act 1984), and on that date such obligations and liabilities shall cease, but without prejudice to any matter, claim or dispute in relation to which legal proceedings were commenced prior to the expiry of such date. This twelve (12) year limitation period shall be without prejudice to any liability of the Sub-Contractor in respect of actions, claims or proceedings relating to the implementation of the Building Safety Legislation.

Commencement and Completion
1. The Sub-Contractor shall commence the Sub-Contract Works either:-
  1. on the date specified in the Order; or
  2. on the expiry of the period of notice to commence the Sub-Contract Works identified in the Order.
2. The Sub-Contractor shall carry out and complete the Sub-Contract Works to the satisfaction of the Company:-
  1. Expeditiously, diligently and in a proper and workmanlike manner in compliance with the Sub-Contract.
  2. In accordance with all relevant legislation and regulations, including (without limitation) Building Safety Legislation, British Standards and Codes of Practice, consents and approvals and (where appropriate) the technical requirements and performance standards of the National House Building Council.
  3. In accordance with any programme notified in writing by the Company to the Sub-Contractor or referred to or contained within the Sub-Contract or any amended or revised programme which the Company may from time to time notify in writing to the Sub-Contractor.
3. The Sub-Contractor shall, when carrying out and completing the Sub-Contract Works:-
  1. Obtain and at all times maintain all necessary licences and consents, give all notices required by, and comply with all applicable laws and regulations, including (but not limited to) the Building Safety Legislation.
  2. Promptly co-operate and collaborate with the Company and the Building Safety Regulator to ensure compliance with the Building Safety Legislation. The Sub-Contractor shall immediately notify the Company if the Sub-Contractor or any party engaged by it has been subject to a serious sanction in respect of the Building Safety Legislation (whether in relation to the Sub-Contract Works or otherwise).
  3. Fully co-operate with the Company and provide the Company with all of the documents and information required by the Company to ensure that the requirements of the Building Safety Legislation have been met, including (without limitation) any documents and information that may be required by the Company to enable the Company or the Contractor or the Employer (as applicable) to obtain the Building Control Approval (if applicable) and/or the Building Regulations Completion Certificate.
  4. Comply with the Competency Requirements and ensure that it has and maintains adequate resources to comply with the Building Safety Legislation and shall provide assistance and documentation to the Company including but not limited to any information required to demonstrate the Sub-Contractor’s compliance with the Competency Requirements.
  5. Ensure that any party engaged by it is competent and shall remain competent and shall comply with the Competency Requirements and provide such information as is required by the Company to demonstrate the same.
  6. Fulfil their responsibilities under the Building Safety Legislation and/or requirements of the Building Safety Regulator and/or Product Safety Regulator including without limitation any responsibilities as Dutyholder.
  7. Comply with the procedures, requirements and technical or other applicable standards published by the manufacturer of any system or products included in the Sub-Contract Works as installation manuals, instructions, performance or technical data sheets and material safety data sheets.
  8. Comply with all obligations in relation to CDM Regulations, health and safety rules and regulations and any security requirements that may apply.
  9. Provide all Method Statements, Risk Assessments, Material Safety Data Sheets and any information reasonably required by the Company to comply with the CDM Regulations at least seven days prior to work commencing the Sub-Contract Works. The Sub-Contractor shall further supply any information required for the completion of the health and safety file prior to completion of the contract.

All workmanship, materials and goods shall be of the kinds and standards described or referred to in the Sub-Contract or to the extent that no such standards are described shall be of a reasonable standard having regard to the nature of the Main Contract Works and the Sub-Contract Works.

Where and to the extent that the Sub-Contract Works require the Sub-Contractor to undertake any design or the selection or specification of any materials or goods:-

The Sub-Contractor shall be fully responsible in all respects for the design of such part or parts of the Sub-Contract Works including any design prepared by or on behalf of the Company.
The Sub-Contractor accepts entire responsibility for the Sub-Contract Documents and for any mistake, inaccuracy, discrepancy or omission contained in and/or between the same. Nothing contained in the Sub-Contract Documents shall reduce in any way the obligations of the Sub-Contractor under Clause 2.
The Sub-Contractor shall exercise all reasonable skill and care in the design of such part or parts of the Sub-Contract Works as is to be expected of a properly qualified and competent design sub-contractor experienced in carrying out work such as its duties under the Sub-Contract in relation to developments of similar scope, size, nature, timescale and complexity and on a similar site or at a similar location to the development as described in the Order.
The Sub-Contract Works will comply with any performance specification or requirement referred to or contained within the Sub-Contract.
Such part or parts of the Sub-Contract Works shall be designed or specified using appropriate up-to-date practice.
For the avoidance of doubt nothing in this Sub-Contract is intended to nor be deemed to create any obligation of fitness for purpose on the Sub-Contractor in respect of its obligations to carry out the design of the Sub-Contract Works

The Sub-Contractor further warrants it has not used or specified for use and shall not use or specify for use in connection with the Sub-Contract Works any goods, materials, substances or products not in accordance with relevant British and European Standards and Codes of Practice or otherwise generally known or suspected within the construction or engineering industries at the time of use or specification (as appropriate) to be Deleterious.

It shall be a condition precedent to the completion of the Sub-Contract Works, that the Sub-contractor provides all O&M Manuals to the Company as reasonably requested. For the avoidance of doubt if the Sub-Contractor fails to provide any O&M Manuals that the Company may have any time requested, completion of the Sub-contract Works will be delayed until after the O&M Manuals are provided as requested to the Company.
The Sub-Contractor shall complete the Sub-Contract Works within the Period for Completion. The Company may confirm to the Sub-Contractor in writing at any time (without obligation) if and when the Sub-Contract Works are in its opinion complete. Otherwise, the Sub-Contractor shall notify the Company in writing of the date when in its opinion the Sub-Contract works are complete and that it has complied sufficiently with its obligations under clause 2. In the event that completion of the Sub-Contract Works is not confirmed by either party by the practical completion date under the Main Contract, then completion of the Sub-Contract Works shall be deemed to take place on the relevant completion date as confirmed pursuant to the Main Contract.
Whilst the Company will do all possible to maintain the agreed programme of works, the Company shall, acting reasonably, have the right to direct the Sub-Contractor to progress the Sub-Contract Works in any sections or parts, in any order at any time and, notwithstanding any periods detailed in any agreement, provided that the overall Sub-Contract period is not extended as a result of any such direction, the Sub-Contractor shall not be entitled to receive any additional remuneration, compensation or damages as a consequence of any such direction given by the Company, and the Sub-Contractor will be required to arrange resources as and if necessary within 7 days of such direction.
If at any time it becomes (or ought to become) reasonably apparent to the Sub-Contractor that:
1. 2.10.1.the progress of the Sub-Contract Works is being delayed; and/or
2. 2.10.2.the Sub-Contract Works will not be completed within the Period for Completion; and/or
3. 2.10.3.the Sub-Contractor has incurred or reasonably expects to incur additional costs / direct loss and expense.

the Sub-Contractor shall within 14 days of any such matter occurring inform the Company in writing notifying the anticipated duration of any delay, if applicable, and/or any additional costs / direct loss and expense that the Sub-Contractor has incurred or (if it is not possible to provide a full assessment of such costs and/or direct loss and expense at the time) his best estimate of what he reasonably expects to incur as a result of the matter.

If following the receipt of such notice as referred to in clause 2.10, the Company is of the opinion that the cause of the matter referred to in the notice is due to any circumstance or occurrence (other than a breach of the Sub-Contract by the Sub-Contractor) entitling the Company to an extension of time for completion of the Main Contract Works and/or additional costs / direct loss and expense under the Main Contract, then in any such event the Sub-Contractor shall be entitled to such extension to the Period for Completion and to such proportion of its additional costs / direct loss and expense as may in all the circumstances be fair and reasonable, provided that it shall be a condition precedent to the Sub-Contractor's entitlement to any such extension of time and/or additional cost / direct loss and expense that:
1. 2.11.1.the Sub-Contractor has provided notice in accordance with clause 2.10; and
2. 2.11.2.in no circumstances shall the Sub-Contractor's entitlement to relief pursuant to this clause exceed the relief to which the Company is properly entitled under the Main Contract arising out of the same relevant circumstances.

In the event that any relief to which the Sub-Contractor is entitled pursuant to this clause exceeds the relief to which the Company is properly entitled under the Main Contract, the Sub-Contractor’s entitlement to relief shall correspond to that which is recoverable by the Company under the Main Contract.

If following the receipt of such notice as referred to in clause 2.10, the Company decides that the cause of the matter referred to in the notice will not entitle the Company to seek an extension of time or loss and expense under the Main Contract, then to the extent only that the cause of the matter referred to in the notice is an impediment to the progress of the Sub-Contract Works which was created by the Company, then the Company shall grant to the Sub Contractor such extension to the Period for Completion as may be required as a direct consequence of any such impediment, provided always that it shall be a condition precedent to the Sub-Contractor's entitlement to any such extension of time that the Sub-Contractor has provided notice in accordance with clause 2.10.
For the avoidance of doubt, in the event that the Sub-Contractor fails to give notice in accordance with clause 2.10, he shall have waived any right (whether under this Sub-Contract and/or at common law, in equity and/or pursuant to statute) to any entitlement to an extension to the Period for Completion and/or to recovery of any Sub-Contractor’s additional costs / direct loss and expense which might otherwise have arisen in accordance with clauses 2.11 or clause 2.12.
The Sub-Contractor shall indemnify the Company against all costs, losses, expenses, damages, claims and demands incurred by the Company or to which the Company may become liable as a result of any failure by the Sub-Contractor to complete the Sub-Contract Works within the Period for Completion including, without prejudice to the generality of the foregoing, all damages, costs, losses, payments and charges which may, in the reasonable opinion of the Company, be incurred under the Main Contract.
The Company may suspend the Sub-Contract Works on giving the Sub-Contractor no less than 7 days’ notice. The Sub-Contractor shall recommence the Sub-Contract Works within 7 days after receiving notice to do so from the Company. If no notice to recommence the Sub-Contract Works is issued by the Company within 12 months of the date of suspension this Sub-Contract shall be deemed to have been determined as provided hereunder.
If the Company fails to pay in full any sum due to the Sub-Contractor under this agreement by the final date for payment under clause 4 and the Company has not given a notice of intention to pay less, the Sub-Contractor may suspend the performance of the Sub-Contract Works and other obligations under this agreement by giving not less than 7 days' notice in writing to the Company of its intention to do so and the reason(s) for doing so.

Liability for Defects

Any material defects, shrinkages’ or other material defaults in the Sub-Contract Works which appear within 12 months of the date of completion of the Main Contract Works (as confirmed by the practical completion certificate or similar issued in terms of the Main Contract) or such other period as may be specified in the Order (or such later period as may be implied under the Limitation Act 1980 in respect of Section 1 or 2A of the Defective Premises Act 1972 and/or Section 38 of the Building Act 1984), and which are due to design, materials or workmanship not in accordance with the Sub-Contract shall be made good by the Sub-Contractor at its own cost and to the satisfaction of the Company within 7 days (or 24 hours in the case of an emergency or other such reasonable period as instructed by the Company) after written notification from the Company.
The Sub-Contractor shall indemnify the Company against all costs, losses, expenses, damages, claims and demands incurred by the Company as a result of any defects in the Sub-Contract Works.

CONTROL OF THE WORKS

Sub-Contractor's Obligations

The Sub-Contractor shall employ only competent workmen, who (if and when required) are in possession of full DBS clearance, in connection with the Sub-Contract Works
The Sub-Contractor shall provide all plant, tools and any other equipment including generators, temporary lighting and floor protection and/or other reasonably necessary protective equipment (where appropriate) required to carry out and complete the Sub-Contract Works. Thereafter the Sub-Contractor shall adequately protect the Sub-Contract Works until completion of the Main Contract Works.
The Sub-Contractor shall at all times keep the site of the Sub-Contract Works and access thereto in a clean and tidy condition and shall clear away all rubbish and waste arising from the Sub-Contract Works to a designated place.
Access to the site of the Sub-Contract Works shall not be exclusive and the Sub-Contractor shall liaise and co-operate with the Company's site representative and other contractors to ensure that the Sub-Contract Works are fully co-ordinated and integrated with sub-contract works undertaken by others. The site shall not be used by the Sub-Contractor for any purpose other than for the carrying out of the Sub-Contract Works.
The Sub-Contractor shall not sub-sub-contract any part of the Sub-Contract Works without the Company's prior written approval and consent. Where the Company consents to such sub-sub-contracting the Sub-Contractor shall remain wholly responsible for carrying out and completing the Sub-Contract Works in all respects.
The Sub-Contractor shall comply with its obligations under the CDM Regulations, the Building Safety Legislation and all other relevant health and safety regulations and codes of practice and the Sub-Contractor shall, within 7 days of the Company’s request and in any event no later than 3 days before the Sub-Contractor commences the Sub-Contract Works, and at no additional cost to the Company provide a RAMS for the Sub-Contract Works. Approval of the RAMS shall be at the Company’s sole discretion, and the Company may (following receipt) request that the Sub-Contractor amends the RAMS before commencing the Sub-Contract Works. For the avoidance of doubt the Sub-Contractor shall not commence any Works without being inducted by the Company’s site manager and having valid RAMS in place which has been signed by the Sub-Contractor.

Variations

The Company may issue to the Sub-Contractor such instructions as it sees fit to vary and modify the quantity or quality of the Sub-Contract Works (including any design, where applicable) or any other matter which may affect the carrying out of the Sub-Contract Works including, but not limited to any addition, omission or substitution of work.
Any instruction issued by the Company shall be effective if it is in writing from the Company.
The Company and the Sub-Contractor may agree in writing an appropriate adjustment to the Sub-Contract Sum resulting from an instruction by the Company provided that it shall be a condition precedent to payment of any additional amount as a result of an instruction under clause 3.7, that the instruction was in writing.
Where the Company and the Sub-Contractor have not agreed or cannot agree an appropriate adjustment to the Sub-Contract Sum under clause 3.9 above the Sub-Contract Sum shall be adjusted as follows :-
1. where any additional, substituted or omitted work is of a similar nature or character to any parts of the Sub-Contract Works such works shall be valued by reference to the appropriate figures and/or methodology referred to or contained within the Sub-Contract (if any);
2. otherwise such work shall be valued at fair rates and prices as determined by the Company; and

and any payment due to the Sub-Contractor shall be made in accordance with these terms and conditions.

Notwithstanding any other term of these terms and conditions, the Sub-Contractor shall not be entitled to be paid any loss of profit or any other consequential losses of whatsoever nature in relation to any part of the Sub-Contract Works that are omitted, irrespective of whether or not such omitted works are then completed by an alternative contractor.

Dayworks

No payment shall be made on a daywork basis unless the extent and nature of such work and rates and prices have been agreed by the Company in writing prior to the Sub-Contractor commencing any such works.

PAYMENT
1. The Company shall pay the Sub-Contractor the Sub-Contract Sum (together with any proper adjustments) for carrying out the Sub-Contract Works in accordance with either clause 4.2 or 4.3 below (whichever is applicable).
2. Where it is stated in the Order that the Period for Completion is less than 45 working days the Sub-Contractor shall not be entitled to receive any stage or interim payments and any such stage or interim payments shall be entirely at the Company’s discretion and dealt with in line with clause 4.3.
3. Where it is stated in the Order that the Period for Completion is 45 days or more, the Sub-Contractor shall have a right to make applications for payment on an interim basis.
  1. It is a condition precedent to the Sub-Contractor’s right to be paid on an interim basis that it submits a fully detailed application for payment to the Company not more than 10 and not less than 7 calendar days before each due date identifying the value of the Sub-Contract Works completed at the date of submission and all sums properly projected to be due up to the relevant due date. An application submitted in accordance with this sub-clause shall provide full details of the net sum due and the basis upon which it has been calculated and the Sub-Contractor shall be required to provide evidence that it was actually received by the Company (and where issued by e-mail, evidence that it was opened by the Company).
  2. Subject to the submission by the Sub-Contractor of a valid application for payment in accordance with this Sub-Contract, the due dates for payment of interim payments shall fall on the last day of each calendar month; with the first due date being the last day of the calendar month following the calendar month in which the Sub-Contractor commenced the Sub-Contract Works, and the last due date for an interim payment shall fall in the calendar month following the date on which the Sub-Contract Works were complete..
  3. The amount of each interim payment shall be the aggregate of the value of all work properly performed and all other sums properly incurred from the date of commencement of the Sub-Contract Works up to the applicable due date calculated in accordance with these terms and conditions LESS the aggregate sum of the amounts paid or due to be paid in all previous interim payments and any other sums which the Company may be entitled to deduct or claim under these terms and conditions or otherwise.
  4. In the event an application is submitted after the date required under clause 4.3.1, such application shall be not be deemed to be a valid application (a “Late Application”) notwithstanding that the Company may assess such Late Application, any such assessment shall not waive the Company's entitlement to treat such Late Application as an invalid application.
  5. Within 5 calendar days of each due date the Company shall give a payment notice to the Sub-Contractor specifying the amount of the interim payment to be made and the basis on which such amount is calculated (a “Payment Notice”). If the Company fails to issue a Payment Notice in time the application will become the payment notice by default only where it complies with clause 4.3.1.
  6. Subject to clause 4.3.7, the final date for payment will be 45 days after the due date for payment.
  7. If the Company intends to pay less than the amount stated in a Payment Notice (or any form of default payment notice) then the Company shall give a pay less notice to the Sub-Contractor not later than 1 day before the final date for payment for that payment specifying the revised amount of the interim payment to be made and the basis on which such amount is calculated at the date such notice is given.
  8. 4.3.8.Notwithstanding any other provision of the Sub-Contract, save in circumstances where the Sub-Contractor has ‘self-billing’ status for the purposes of VAT, it shall be a condition precedent to the Sub-Contractor’s entitlement to payment of VAT that he shall have issued to the Company a valid VAT invoice in the sum stated in any Payment Notice and/or any pay less notice, save where no such Payment Notice and/or pay less notice is provided, in which case such VAT invoice shall be in the sum of the sum claimed in the relevant application for payment.
  9. 4.3.9.All interim payments shall be on account, shall be subject to adjustment and review following completion of the Sub-Contract Works and shall not signify any approval by the Company of workmanship or materials.

Final Account

Within 2 months of the date of completion of the Sub-Contract Works the Sub-Contractor shall submit an account representing the total value of the Sub-Contract Works carried out by the Sub-Contractor and calculated in accordance with the Sub-Contract for ascertainment of the value of the Sub-Contract Works by the Company. The Company shall notify the Sub-Contractor of its ascertainment of the value of the Sub-Contract Works ("the Final Account”) within 3 months of receipt of the Sub-Contractor’s account representing the value of the Sub-Contract Works.
The Sub-Contractor's account shall contain such details as the Company may reasonably require in order to properly ascertain the value of the Sub-Contract Works and calculate the final payment.
If the Sub-Contractor fails to submit an account within 2 months of the date of completion of the Sub-Contract Works the Company may within 6 months of the date of completion of the Sub-Contract Works value the Sub-Contract Works from the information then in its possession and notify such valuation to the Sub-Contractor which shall take effect as the Final Account; and if the Sub-Contractor does not dissent from the Company’s Final Account within 1 month of its submission to the Sub-Contractor the Company’s Final Account shall have effect in any proceedings under or arising out of or in connection with the Sub-Contract as conclusive evidence that any necessary effect has been given to all the terms of this agreement which require an amount to be added to or subtracted from the Sub-Contract Sum and that all and only such extensions of the Period for Completion as are due under clause 2.11 have been given.
Any interim payments paid or due to be paid to the Sub-Contractor by the Company, shall be deducted from the Company’s ascertained value of the Sub-Contract Works under clause 4.4 or from the Company’s Final Account for the Sub-Contract Works under clause 4.6 as applicable and any balance shall be the final payment due to the Sub-Contractor from the Company or the final payment due to the Company from the Sub-Contractor as appropriate.
The due date for payment of the Final Account shall be at the same date as the release of the second half of the retention for the Sub-Contract Works, as detailed in clause 4.13 and the Final Date for Payment for such sum shall be 55 days thereafter. The provisions of clauses 4.3.8 shall apply to such payment, save that reference to Payment Notice shall be Final Account.

Discretionary Assessment

Notwithstanding any other provision of the Sub-Contract, the Company may at any time whatsoever (including without limitation between due dates) make an assessment of the aggregate of the value of all work properly performed and all other sums properly incurred and/or owing in relation to the Sub-Contract Works up to any selected assessment date, and otherwise calculated in accordance with the Sub-Contract (the “Assessment”). To the extent that any Assessment shows that a sum is due and owing to the Company, such difference shall be a debt due and payable by the Sub-Contractor within 7 days, without any right of set-off and/or deduction.

Interest and Retention

In the event that the Company fails to make payment in accordance with these terms and conditions the Sub-Contractor shall in addition to the outstanding sum be entitled to simple interest thereon at the rate of 2% per annum above the base rate of the Bank of England current at the date of payment calculated from the date the sum became overdue to the date payment is actually received.
The Company may deduct from any interim payment due to the Sub-Contractor a sum equivalent to 5% (or such other amount as may be identified in the Order) of each such payment by way of retention.
On completion of the Sub-Contract works (or such other period as may be identified in the Order) the Sub-Contractor may make a written request for release of one half of the retention. The due date for payment of such amount shall be the date of receipt by the Company of the written request and payment thereafter will be dealt with in accordance with clause 4.3.2 to 4.3.9. The Company may, at its discretion, release these monies earlier.
No earlier than eighteen months after the completion of the Sub-Contract works (or other such period as may be identified in the Order) and subject to the agreement of the Company that any defects in the Sub-Contract Works have been completed to their satisfaction and in accordance with clause 2.8, the Sub-Contractor shall make a written request for release of the second half of the retention. The due date for payment of such amount shall be the date of receipt by the Company of the written request and payment thereafter will be dealt with in accordance with clauses 4.3.2 to 4.3.9. The Company may, at its discretion, release these monies earlier.

Set-Off

The Company may at any time, set-off any liability of the Sub-Contractor to the Company (whether established following an Assessment or otherwise) against any liability of the Company to the Sub-Contractor, whether any such liability is present or future, liquidated or unliquidated, and whether or not any such liability arises under the Sub-Contract; another contract between the Company and the Sub-Contractor. Any exercise by the Company of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Sub-Contract or otherwise.

Construction Industry Scheme

In the event that the Income Tax (Construction Industry Scheme) Regulations 2005 (or any amendments thereto) ("the Construction Industry Scheme"), is relevant to the Sub-Contractor, then notwithstanding any other provisions under these terms and conditions, the Company shall not be under any obligation to make any payments to the Sub-Contractor unless the Sub-Contractor has provided the Company with a valid authorisation in compliance with such Scheme.
For the avoidance of doubt if the Sub-Contractor does not provide a necessary authorisation in compliance with the Construction Industry Scheme its application for payment shall not be deemed to have been made unless and until the necessary authorisation has been provided, and the Sub-Contractor shall not otherwise become entitled to payment.

CITB Levy

The Sub-Contractor shall be deemed to have allowed and made provision for, where applicable, the payment of the levy as set from time to time by the Construction Industry Training Board (the “Levy”) in his rates and prices in relation to the Sub-Contract Works. To the extent any payments payable to the Sub-Contractor are subject to the Levy, the Company shall be entitled to deduct the amounts of the Levy from the sums payable to the Sub-Contractor under this Sub-Contract.

Value Added Tax

The Company shall pay to the Sub-Contractor any value added tax properly chargeable on the supply to the Company of any goods and services under this agreement.
The Company may at any time request appropriate evidence of the Sub-Contractor's current VAT registration status. Where the Sub-Contractor fails to provide such evidence within 14 days of its request the Company may withhold any amounts attributable to VAT on any outstanding payments.

Statutory Obligations
1. The Sub-Contractor shall at its own expense comply with and give all notices or obtain all consents required by any statute, statutory regulations, orders or the like required in connection with the Sub-Contract Works and shall provide all relevant details to the Company.
2. The Sub-Contract Sum shall include the cost of obtaining and/or complying with all appropriate regulations and consents and the Sub-Contractor shall indemnify the Company against all costs, losses and expenses it may incur as a result of any breach by the Sub-Contractor of such regulations and consents.
3. The Sub-Contractor shall be responsible for the prompt and proper payment of all levies due to the Construction Industry Training Board.
Injury Damage and Insurance
1. Where required to do so by the Order, the Sub-Contract and/or the Main Contract conditions, the Sub-Contractor shall maintain professional indemnity insurance at the limit required for a period beginning on the date of this agreement and ending, twelve (12) years after the date of date of Practical Completion under the Main Contract (or such later period as may be required under the Limitation Act 1980 in respect of Section 1 or 2A of the Defective Premises Act 1972 and/or Section 38 of the Building Act 1984), provided that such insurance is available at commercially reasonable rates and terms.
2. Where required to do so by the Order, the Sub-Contract and/or the Main Contract conditions, the Sub-contractor shall arrange and produce satisfactory evidence of suitable insurance policies as under noted;
  1. all risks insurance (in which, if required, the Company shall be named as the joint insured) of the Sub-Contract Works, together with all materials, plant and equipment for incorporation therein to the full replacement costs, including, but not limited to, professional fees and the reasonable costs of the removal and disposal of debris;
  2. public liability insurance (which is required in all circumstances at a minimum level of £5,000,000, or at any higher level required by the Order) against liabilities for death of or injury to any person or loss of or damage to any property, real or personal, arising out of the performance of the subcontract works. Such insurance should include an indemnity to principal clause;
  3. employers liability insurance to cover the Sub-Contractor's legal liability for personal injury to or death of any person under a contract of service or apprenticeship with the Sub-Contractor and arising out of and in the course of that persons employment. This insurance shall comply with all relevant legislation.
3. For the avoidance of doubt, the Sub-Contractor has no benefit of the Company’s insurance policies
Determination
1. If the Sub-Contractor shall make default in any of the following respects :
  1. Wholly, partly or substantially suspends the carrying out of the Sub-Contract Works without reasonable cause and/or otherwise in breach of the Sub-Contract; or
  2. Fails to proceed regularly and diligently with all or any part of the Sub-Contract Works; or
  3. Sub-contracts the whole or any part of the Sub-Contract Works without the Company's prior written approval and consent; or
  4. Fails to comply with an instruction requiring the removal of work, materials or goods which are not in accordance with the Sub-Contract; or
  5. Fails to comply with any programme or any amendments or revisions to such programme or any written Instruction or any other instructions or requests from the Company, whether written or unwritten; or
  6. Fails to proceed with the rectification of any defects arising during the execution of the Sub-Contract Works or the defects liability period set out at clause 4.13 with reasonable diligence; or
  7. Fails to provide and maintain sufficient or adequate labour on site to comply with any programme or to remedy any delay in respect of all or any part of the programme; or
  8. Causes or fails to prevent any loss or damage to all or any part of the Sub-Contract Works or the Main Contract Works as a result of any act, omission or default on the part of the Sub-Contractor and/or its employees or agents; or
  9. Fails to comply with any duties or obligations in respect of health and safety legislation, regulation and/or codes of practice, including, without limitation, the Building Safety Legislation; or
  10. Commits any other breach of any of its obligations or duties contained within the Sub-Contract;

The Company may (without prejudice to any other rights or remedies), issue a written notice to the Sub-Contractor specifying the default or defaults (the 'specified default or defaults').

If the Sub-Contractor continues a specified default for 7 days from receipt of the notice under clause 7.1 (or such shorter period as the notice may specify) the Company may on, or within 21 days from, the expiry of the specified notice period by a further notice to the Sub-Contractor either (at the Company’s option):
1. terminate the Sub-Contractor's employment under the Sub-Contract; or
2. Supplement the Sub-Contractor’s labour for the Sub-Contract Works by itself or by third parties.

If the Company does not give the further notice referred to in clause 7.2 (whether as a result of the ending of any specified default or otherwise) but the Sub-Contractor at any time repeats a specified default (whether previously repeated or not), then upon or within a reasonable time after such repetition, the Company may by notice to the Sub-Contractor either (a) terminate the Sub-Contractor's employment under the Sub-Contract; or (b) Supplement the Sub-Contractor’s labour for the Sub-Contract Works by itself or by third parties. In the event that the Sub-Contractor’s labour is supplemented pursuant to this clause, then the Company may thereafter terminate the Sub-Contractor's employment under the Sub-Contract by notice in the event of the repetition of any specified default.
Forthwith upon determining the Sub-Contractor’s employment under the Sub-Contract pursuant to clauses 7.2, 7.3 or 7.6 and thereupon the Company may take possession of all goods and materials, Sub-Contractor’s equipment and other things whatsoever brought on to the site by the Sub-Contractor and may use them for the purpose of carrying out, completing and maintaining the Sub-Contract Works and may, if it thinks fit, sell all or any of them and apply the proceeds in or towards the satisfaction of monies otherwise due to the Company from the Sub-Contractor.
If the Company’s employment under the Main Contract is determined for any reason the Sub-Contractor’s employment under the Sub-Contract shall thereupon also determine with immediate effect.
If the Sub-Contractor:
1. makes a proposal for a voluntary arrangement or is subject to an Administration Order or has a Provisional Liquidator appointed or has a Winding Up Order made or passes a resolution for voluntarily winding up (other than for amalgamation or reconstruction) or an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over itis otherwise “insolvent” for the purposes of Section 113 (2) of the Housing Grants, Construction and Regeneration Act 1996 (as amended); or
2. is, in the reasonable opinion of the Company, in breach of any of the Company’s anti-bribery policy and or corruption policy, or has acted in contravention of the Bribery Act 2010; or
3. is, in the reasonable opinion of the Company, believed to have engaged in anti-competitive behaviour, such that the actions of the Sub-Contractor would be in contravention of the Competition Act 1998 and/or the Enterprise Act 2002; or
4. commits a breach of contract which is considered by the Company to be of a fundamental or repudiatory nature;

the Company may at any time thereafter by written notice determine this agreement, such determination to be effective upon receipt of such notice.

Without affecting any other right or remedy available to it, the Company may terminate the Sub-Contract with immediate effect on giving written notice to the Sub-Contractor.

Effect of Determination

Upon determination of the Sub-Contractor’s employment under the Sub-Contract, howsoever caused, the Sub-Contractor shall (save as otherwise provided for in clause 7.4) remove from the site of the Works all its temporary works, plant, tools, goods and materials not intended for incorporation into the Sub-Contract Works provided that property in any such items shall not have passed to the Company under these terms and conditions.
Upon determination of the Sub-Contractor’s employment under the Sub-Contract pursuant to clauses 7.2, 7.3, 7..5 or 7.6, and notwithstanding anything contained in these terms and conditions:
1. The Sub-Contractor shall not be entitled to receive any further payments until the Company has completed the remainder of the Sub-Contract Works and has agreed the total cost of carrying out any such works with an alternative contractor, or (in the event of determination pursuant to clause 7.5), until the Company or an alternative contractor has completed the remainder of the Main Contract Works and the total cost of such works has been agreed between the Company and the employer under the Main Contract;
2. the Company shall be entitled to set-off and/or recover from the Sub-Contractor all costs, losses, damages and expenses incurred or which have or may in the opinion of the Company be incurred by the Company by reason of the determination of the Sub-Contractor’s employment under the Sub-Contract including (without limitation) the costs incurred in completing the remainder of the Sub-Contract Works;
3. within 3 months of completing any remaining Sub-Contract Works and agreeing the total cost of such works with an alternative contractor; or (in the event of determination pursuant to clause 7.5), within 3 months of the Company or an alternative contractor completing any remaining Main Contract Works and the total cost of such works being agreed between the Company and the employer under the Main Contract: (a) the Company may; or (b) upon receipt of a written request from the Sub-Contractor will; provide an account to the Sub-Contractor identifying any balance owing to either the Company or the Sub-Contractor. Such balance shall become due 45 days after submission of the Company's account to the Sub-Contractor. Payment thereafter will be dealt with in accordance with clause 4.3.6 to 4.3.10 save that the reference in clause 4.3.6 to each due date shall be a reference to the due date referred to in this clause 7.9.3; and
4. the Sub-Contractor shall not be entitled to loss of profit or to any indirect and/or consequential losses whatsoever resulting from any such termination.
The rights and remedies set out in clauses 7.4, 7.8 and 7.9 shall be in addition to any other rights, remedies, actions, claims or demands which the Company may have against the Sub-Contractor and shall not affect the Company's right to recover any further sums due to it under the Sub-Contract or generally.
Upon determination of the Sub-Contractor's employment under the Sub-Contract pursuant to clauses 7.5 (where the determination of the Main Contract was not caused or materially contributed to by an act, omission or default of the Sub-Contractor) or 7.7, the Sub-Contractor may submit a final account to the Company in accordance with the procedures set out in 4.4 to 4.8 (mutatis mutandis).
If the employer under the Main Contract becomes “insolvent” for the purposes of Section 113 (2) of the Housing Grants, Construction and Regeneration Act 1996 (as amended) then no further sums shall become due to the Sub-Contractor after the date of such insolvency, and the Company shall not be required to make any further payment to the Sub-Contractor whatsoever.

Settlement of Disputes
1. If any dispute or difference shall arise between the parties at any time in connection with this agreement then either party may refer such dispute or difference to Adjudication and the Scheme for Construction Contracts (England and Wales) Regulations 1998 Part 1 (as amended) shall apply. The Adjudicator nominating body shall be the Royal Institute of Chartered Surveyors (RICS).
collateral Warranties
1. If at any time the Contractor notifies the Sub-Contractor that collateral warranties are required the Sub-Contractor shall within 14 days of receipt of the Company's written request (or such other period as is specified in the Order):-
  1. enter into collateral warranties in the form(s) as the Company may reasonably require in favour of any employer, developer, purchaser, tenant, funder or any other beneficiary in connection with the Sub-Contract Works; and
  2. procure that any approved sub-sub-contractor or sub-consultant engaged by the Sub-Contractor enters into collateral warranties in the form(s) as the Company may reasonably require in favour of the Company and any employer, developer, purchaser, tenant, funder or any other beneficiary in connection with the elements of the Works and/or Sub-Contract Works for which they are responsible.
2. It shall be a condition precedent to payment of any sums due under the Sub-Contract, that the Sub-Contractor has provided any collateral warranties required by the Company pursuant to clause 9.1 and the Company may withhold all payments that would otherwise be due to the Sub-Contractor.
COPYRIGHT LICENCE

The Sub-Contractor hereby grants to the Company an irrevocable royalty free non-exclusive licence to use and reproduce all drawings, details, plans, specifications, schedules, reports, calculations and other work and the designs contained in them which have been or are hereafter written, originated or made by or on behalf of the Sub-Contractor for any purpose whatsoever connected with the Works including but without limitation the execution, completion, maintenance, letting, management, sale, advertisement, extension, alteration, reinstatement and repair thereof. Such licence shall carry the right to grant sub-licences and shall be transferable to third parties without the Sub-Contractor’s consent.

Confidentiality
1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.
2. The Sub-Contractor further undertakes that it shall not at any time disclose to any person any information whatsoever concerning the project or any aspect of the Sub-Contract Works, without the Company’s prior written approval.
3. In addition to and without prejudice to clauses 11.1 and 11.2, the Sub-Contractor further undertakes that no images or information relating to the project or any aspect of the Sub-Contract Works shall be published or shared on any internet or social medial portal without prior approval of the Company.
4. Each party may disclose the other party’s confidential information:
  1. 11.4.1.to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives, contractors, sub-contractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and
  2. 11.4.2.as may be required by law, court order or any governmental or regulatory authority.
5. Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
NOTICES

Any notice under these terms and conditions shall be given in writing and shall be sent by either pre-paid registered first class post to the relevant party’s address stated in the Order (and shall be deemed to have been received 48 hours after the date of posting) or transmitted by e-mail to an e-mail address agreed between the parties, and still in active use at the time the notice is sent.

THIRD PARTY RIGHTS
1. Nothing in the Sub-Contract shall confer or purport to confer upon any third party any benefit or right against the Company or the Sub-Contractor.
Governing Law AND JURISDICTION
1. These terms and conditions shall be governed by English Law.

15. ASSIGNMENT

15.1 The Sub-Contractor shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Sub-Contract without the prior written consent of the Company.

15.2 The Company may assign, transfer or charge any or all of its rights and obligations, including its title and interest to raise proceedings under this agreement without the consent of the Sub-Contractor.

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