The following Subcontractor Agreement should be read in conjunction with the subcontract order, making specific reference to the details outlined in the contract.
1. Parties
1.1. The Contractor: Name - Acorn Partitions & Storage Systems Limited (“APSS”) Registered in England, numbered - 03963919 Whose registered office is at - Kingsley Road, Lincoln, LN6 3TA
1.2. The Subcontractor: As referred to in the subcontract order.
IT IS AGREED as follows:
2. Sub-Contract Works
2.1. The Contractor instructs the Subcontractor to execute the Sub-Contract Works detailed in the Sub-Contract Documents as referred to in the subcontract order.
2.2. The Sub-Contract works are as outlined in the subcontract order.
3. Subcontractor’s obligations
3.1. The Subcontractor shall perform its obligations all due care, skill and diligence and shall at all times comply with the requirements and standards of APSS as referred to in the subcontract order.
3.2. The Subcontractor shall ensure that all workers employed or engaged in the provision of the Sub-Contract Works have the appropriate skills, experience and are suitably trained.
3.3. The Subcontractor shall ensure that all workers employed or engaged in the provision of the Sub-Contract Works have all necessary equipment and that such equipment is safe and in good working order.
3.4. At all times during the carrying out of the Sub-Contract Works the Subcontractor shall appoint a competent person in charge and provide all necessary supervision to ensure the proper execution of the Sub-Contract Works.
3.5. The Subcontractor shall carry out and complete the Sub-Contract Works in a good and workmanlike manner and in compliance with the Sub-Contract Documents and/or any specifications and/or drawings provided by APSS.
3.6. The Subcontractor shall ensure that the Sub-Contract Works comply with all statutory requirements including building regulations from time to time in force and, in full compliance with all health and safety laws and regulations and all environmental laws and regulations.
3.7. The Subcontractor shall, before commencing the Sub-Contract Works, provide to APSS such documentation (in such medium as APSS shall specify) as APSS shall require including a programme and method statements / risk assessments. The Sub-Contract Works shall not be commenced until APSS has approved such documentation. Notwithstanding that approval shall be given by APSS, the Subcontractor is responsible for all aspects of the works, materials and operations in connection with the Sub-Contract Works.
3.8. Unless otherwise stated in the Sub-Contract Documents, the Subcontractor shall be responsible for obtaining all necessary licenses, permits and consents to carry out the Sub-Contract Works.
3.9. The Subcontractor shall, at its own cost, attend all site meetings as APSS requires and at the times and places specified by APSS. The Subcontractor shall provide all such reports (whether at site meetings or otherwise) as APSS shall from time to time require.
3.10. The Subcontractor shall allow APSS’s employees and agents access to inspect the Sub-Contract Works (whether on or off-site) as APSS shall in its absolute discretion consider appropriate and at such times as APSS shall direct.
3.11. For the duration of the Sub-Contract Works, the Subcontractor shall be responsible for the protection of goods and materials supplied in connection with the Sub-Contract Works. The goods and materials and works shall be at the risk of the Subcontractor.
3.12. The Subcontractor shall, where stipulated in the Sub-Contract Documents, be responsible for the commissioning of the Sub-Contract Works (or any part of them) and demonstrating that the Sub-Contract Works are in accordance with this Agreement.
3.13. The Subcontractor shall maintain such insurances as set out in the Sub-Contract Documents but which shall include as a minimum:
3.13.1. Employer’s Liability Insurance for the duration of the Sub-Contract Works with an indemnity of not less than £5,000,000.00 for each and every claim;
3.13.2. Public Liability/Product Liability Insurance for the duration of the Sub-Contract Works with an indemnity of not less than £5,000,000.00 for each and every claim; and
3.13.3. Where the Subcontractor is undertaking any design in relation to the Sub-Contract Works, professional indemnity insurance with a limit of indemnity of not less than £1,000,000.00 for each and every claim.
3.14. The Subcontractor shall provide such evidence as APSS may reasonably require relating to the suitability and competence of any person employed by the Subcontractor in the performance of the Sub-Contract Works. APSS shall have the right to require the Subcontractor to provide a competent substitute for any person so employed who is in APSS’ reasonable opinion incompetent, negligent or otherwise unsuitable.
3.15. The Subcontractor shall, at all times, comply with APSS’ Covid-19 Safe Operating Procedure on a Construction Site.
4. Delay
4.1. The Subcontractor shall proceed with its obligations regularly and diligently and shall take all reasonable steps to minimise or mitigate any delay howsoever caused.
4.2. The Subcontractor shall immediately notify APSS of any event or circumstance which may prevent or delay the progress or completion of the Sub-Contract Works together with the Subcontractor’s proposals for mitigating the delay. The Subcontractor shall provide regular updates to APSS as to the details of any on-going delay and the steps being taken by the Subcontractor to minimise such delay.
4.3. Where the cause(s) of the delay would entitle APSS to an extension of time under the main contract, APSS will notify the employer under the main contract. Where an extension of time is granted under the main contract the date for completion of the Sub-Contract Works shall be adjusted accordingly.
4.4. If the Sub-Contract Works are not completed by the Subcontractor by the completion date (or any revised completion date under clause 4.3), APSS may deduct from any payment due to the Subcontractor or otherwise recover as a debt from the Subcontractor, any loss, expense, damage, or other cost suffered or incurred by APSS by reason of the Subcontractor’s late completion and/or any failure by the Subcontractor to notify APSS of delay in a timely manner (including but not limited to any main contract LADs).
5. Warranty
5.1. Where the Subcontractor undertakes any design as part of the Sub-Contract Works (including the selection of goods and materials), the Subcontractor warrants that it has exercised and will exercise reasonable skill and care as may be expected of a properly qualified designer experienced in carrying out works of a similar scope, nature, and complexity to the Sub-Contract Works.
5.2. The Subcontractor warrants that any goods or materials used in the carrying out of the Sub-Contract Works are of satisfactory quality and reasonably fit for their intended purpose as set out in the Sub-Contract Documents.
5.3. The Subcontractor further warrants that, when complete, the Sub-Contract Works shall comply with any specifications and/or performance requirements set out or referred to in the Sub-Contract Documents.
5.4. The Subcontractor will indemnify and keep indemnified APSS against all costs, claims, demands, loss, expense or otherwise arising (directly or indirectly) from any breach of any of the warranties contained in this clause 5.
6. Sub-Contract Sum and Payment
6.1. The VAT exclusive Sub-Contract Sum is as stated in the subcontract order.
6.2. The Sub-Contract Sum if fixed and not subject to any fluctuations.
6.3. Retention will be held at the percentage identified in the subcontract order, one half of the retention will be released at the handover of the works to the customer and the balance will be released at the end of the warranty period set out in the above clause of this Agreement.
6.4. The Subcontractor may submit applications for payment in accordance with the timetable set out in the Sub-Contract Documents (or if not stated by the last business day of each calendar month) (“Interim Valuation Date”). Applications for payment received after the stipulated date shall be processed in the next payment cycle.
6.5. The due date for payment (if not stated in the subcontract order.) is 7 days after the Interim Valuation Date.
6.6. APSS shall issue a notice (“Payment Notice”) setting out the sum considered to be due as at the due date for payment and the basis upon which that sum has been calculated.
6.7. The final date for payment (if not stated in the subcontract order) is 21 days after the due date for payment.
6.8. If APSS intends to pay less than the sum stated in the Subcontractor’s application for payment or the Payment Notice (as the case may be), not later than 3 days prior to the final date for payment, APSS shall issue a notice (“Pay Less Notice”) setting out the sum considered to be due as at the date of the Pay Less Notice and the basis upon which that sum has been calculated.
6.9. Interest shall accrue on any late payment from the final date for payment until payment is made at the rate of [3]% per annum above the Bank of England base rate (up to a maximum of [8]%.
6.10. Payments to the Subcontractor shall, where applicable:
6.10.1. be paid in accordance with the Construction Industry Scheme; and
6.10.2. be subject to the deduction of retention at the rate stated in the subcontract order.
7. Variations
7.1. APSS may issue instructions to the Subcontractor requiring the omission of, or additional or varied work to be carried out (“Variation”).
7.2. Variations shall be valued based on any rates and prices agreed in relation to the Sub-Contract Sum (or otherwise at reasonable market rates).
7.3. If APSS issues a verbal instruction, such instruction shall be of no effect unless it is confirmed in writing.
7.4. In complying with a Variation instruction, the Subcontractor shall be entitled to an adjustment to the date for completion of the Sub-Contract Works as may be fair and reasonable.
8. Ownership and Title
8.1. Ownership and title to all goods and materials supplied as part of the Sub-Contract Works shall vest in APSS upon delivery to the site.
8.2. Risk in, and the obligation to insure, goods and materials supplied as part of the Sub-Contract Works shall remain with the Subcontractor until completion of the Sub-Contract Works.
8.3. Ownership and title of items issued by APSS on a "free issue" basis shall remain vested in APSS and all such items must be clearly labelled as "The property of APSS."
9. Completion of the Sub-Contract Works and Rectification of Defects
9.1. The Subcontractor shall carry out and complete the Sub-Contract Works by the Completion Date stated in the subcontract order.
9.2. The Subcontractor shall give not less than 7 days’ prior written notice of the date it anticipates the Sub-Contract Works will be complete.
9.3. APSS may inspect the Sub-Contract Works in order to ascertain any works which are incomplete or otherwise not in accordance with this agreement.
9.4. APSS will notify the Subcontractor in writing when in APSS’ reasonable opinion the Sub-Contract Works are complete.
9.5. For the avoidance of doubt, the Sub-Contract Works will not be complete until all of the required works have been completed (including any testing and commissioning as may be required) and are available for use or incorporation into the main contract works.
9.6. During the defects liability period (as stated in the subcontract order) the Subcontractor shall as soon as reasonably practicable and, at its own cost, make good any defects or faults in the Sub-Contract Works unless such defects or faults are due to the act, default, or omission of either APSS or any other party other than the Subcontractor.
9.7. If the Subcontractor fails to comply with clause 9.5, APSS may make good such defects or faults itself or instruct others to do so on its behalf. Where APSS exercises its rights under this clause 9.6, APSS shall be entitled to set-off, or recover as a debt, any costs it reasonably incurrs in doing so.
10. Termination
10.1. Without limitation, APSS may by notice in writing immediately terminate the employment of the Subcontractor under this agreement if the Subcontractor:
10.2. is in breach of any of the terms of this agreement which, in the case of a breach capable of remedy, is not remedied by the Subcontractor within 21 days of receipt by the Subcontractor of a notice from APSS specifying the breach and requiring its remedy;
10.3. is incompetent, guilty of gross misconduct and/or any serious or persistent negligence in respect of its obligations under this agreement;
10.4. fails or refuses, after written warning, to carry out its duties and obligations required under this agreement; or
10.5. becomes “insolvent” as defined in s.113 of the Housing Grants Construction and Regeneration Act 1996 (as amended).
10.6. In the event of APSS’ employment or engagement under any main contract being determined then the employment or engagement of the Subcontractor under this agreement shall also be automatically determined and APSS shall have no obligation or liability to the Subcontractor for any loss and/or expense arising as a result of such termination.
11. Confidential information
11.1. The Subcontractor agrees to treat as confidential and not, at any time for any reason, disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any information relating to APSS technology, technical processes, business affairs or finances or any such information relating to a supplier, customer or client of APSS where knowledge or details of the information was received during the period of this agreement.
11.2. Upon termination of this agreement, or the termination of the Subcontractor’s employment under this agreement, for whatever reason the Subcontractor will deliver up to APSS all working papers and other material and copies provided to it pursuant to this agreement or prepared by it either in pursuance of this agreement or previously.
11.3. Furthermore, on termination of this agreement, or the termination of the Subcontractor’s employment under this agreement, the Subcontractor will irrevocably delete any information belonging to APSS from any PC system in its possession or under its control and procure the deletion of any information belonging to APSS from any PC system in the possession of or under the control of any of its employees, servants, agents or otherwise.
12. Liability
12.1. The Subcontractor shall be liable to APSS in relation to all costs, claims, demands, loss, or expense whether arising directly or indirectly as a result of any act, default or omission on the part of the Subcontractor, its employees, servants, agents or otherwise.
13. Status and tax liabilities
13.1. The Subcontractor shall have the status of an independent or self-employed subcontractor and shall not be entitled to any pension, bonus or other fringe benefit from APSS.
13.2. The Subcontractor shall be responsible for all tax liabilities and national insurance or similar contributions in respect of its fees and the Subcontractor hereby indemnifies APSS in respect of any claims that may be made by the relevant authorities against APSS in respect of tax or national insurance or similar contributions relating to the Subcontractor's Sub-Contract Works hereunder.
14. Notice
14.1. Any notice required by this agreement to be given by either party to the other shall be in writing and shall be served by sending the same by registered post or recorded delivery to the last known address of the other party and any receipt issued by the postal authorities shall be conclusive evidence of the fact and date and posting of any such notice.
15. Collateral Warranties
15.1. Within [7] days of APSS’ request, the Subcontractor shall execute collateral warranties as required in the subcontract order.
15.2. Where the Subcontractor fails to comply with clause 15.1, subject to issuing a Pay Less Notice, APSS may withhold [10]% of any payments due to the Subcontractor until such time that the required collateral warranties have been executed.
16. Dispute Resolution
16.1. Any dispute or difference between the parties in connection with or arising out of this agreement shall be dealt with in accordance with the following provisions:
16.1.1. The parties shall use their best endeavours to resolve the dispute or difference in a cost effective and proportionate manner by either negotiation or mediation. In the case of a mediation the parties shall jointly appoint a mediator nominated by CEDR or the ADR Group.
16.1.2. If the parties are unable to resolve the dispute or difference by negotiation or mediation then the dispute or difference shall be referred to and finally resolved by arbitration under the Construction Industry Model Arbitration Rules (CIMAR) current at the time of reference. The arbitrator shall be agreed by the parties or, failing agreement within 14 days, by nomination by the RICS. 16.2. No dispute or difference shall be referred to arbitration until not less than 8 weeks after it has arisen.
16.3. Clause 16.1 is without prejudice to a party’s statutory right to refer a dispute or difference to adjudication. Any such adjudication shall be subject to the rules of the Scheme for Construction Contracts (England and Wales) Regulations 1998. The nominating body shall be the RICS.
16.4. Neither party shall commence any action or proceedings against the other under this agreement after 12 years from the date practical completion is achieved under the main contract.
17. Governing law
17.1. This agreement shall be governed by and construed in accordance with the law of England.