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Terms & Conditions

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Conditions of Sub Contract

1. DEFINITIONS

  • Pricing Documents:   the documents showing rates and prices.
  • Site:   the place where the Main Contract Works are to be completed.
  • Sub-Contract Documents:   this form of sub-contract, its articles and conditions, together with any other documents.
  • Sub-Contract Works: the works briefly described as varied (where applicable) under clause 6.

2. SUB-CONTRACTOR'S OBLIGATIONS

  • 2.1   The Sub-Contractor shall carry out and complete the Sub-Contract Works in accordance with the Sub-Contract Documents, with due diligence and in a good and workmanlike manner.
  • 2.2   The Sub-Contractor shall provide goods and materials of the standard stated in the Sub-Contract Documents or, where no standard is so stated, of a satisfactory quality.
  • 2.3   The Sub-Contractor shall provide everything required to carry out and complete the Sub-Contract Works.
  • 2.4   The Sub-Contractor shall not make any assignment of the benefit of this Sub-Contract nor sub-let any of the Sub-Contract Works, without the prior written consent of the Contractor.
  • 2.5   The Sub-Contractor shall comply with, and give all notices required by, any statute, any statutory Instrument, rule or order or any regulation or bye-law applicable to the Sub-Contract Works and shall pay all fees and charges in respect of the Sub-Contract Works, which were notified at the time of tender.

3. MAIN CONTRACT

  • 3.1   The Sub-Contractor shall be deemed to know the provisions of the Main Contract (other than details of the Contractor's pricing).
  • 3.2   The Sub-Contractor shall carry out and complete the Sub-Contract Works so that no act or omission of the Sub-Contractor shall result in any breach of contract by the Contractor.
  • 3.3   To the extent that such obligations and liabilities relate to the Sub-Contract Works, the Sub-Contractor shall perform the obligations and assume the liabilities of the Contractor under the Main Contract.

4. COMMENCEMENT AND COMPLETION

  • 4.1   The Sub-Contractor shall commence the Sub-Contract Works on Site within 7 days of receipt of the Contractor's written instruction to commence the Sub-Contract Works.
  •  4.2   Subject to the provisions of clause 7, the Sub-Contractor shall:
    • 4.2.1   Proceed with the Sub-Contract Works regularly and diligently and reasonably in accordance with the progress of the Main Contract Works; and
    • 4.2.2   Achieve practical completion of the Sub-Contract Works within the Period for Completion.
  • 4.3   The Contractor shall determine when the Sub-Contract Works are practically complete and shall notify the Sub-Contractor in writing.
  • 4.4   After practical completion of the Sub-Contract Works, the Sub-Contractor shall, at the Sub-Contractor's expense, make good defects which are apparent in the Sub-Contract Works during the Defects Liability Period.
  • 4.5   If, due to a failure by the Sub-Contractor to complete the contract works on time, the Contractor becomes liable for Liquidated and Ascertained damages such monies will be deducted from the Sub-Contractor’s interim applications for payment and the Final Payment

5. CONTRACTORS INSTRUCTIONS

  • 5.1   The Contractor may issue written instructions which the Sub-Contractor shall forthwith carry out.
  • 5.2   Verbal instructions are not acceptable and will not be considered for payment.
  • 5.3   Except as provided in clause 6, the Sub-Contractor shall not be entitled to any additional payment in respect of instructions from the Contractor.
  • 5.4   If within 7 days after receipt of a written notice from the Contractor requiring compliance with an instruction, the Sub-Contractor does not comply, then the Contractor may employ and pay other persons to carry out the work and all costs incurred shall be due to the Contractor.
  • 5.5   Instructions issued by the Main Contractor are not acceptable only those issued by HES will be considered for payment

6. VARIATIONS

  • 6.1   The Sub-Contractor shall carry out any variation of the Sub-Contract Works that is instructed in writing by the Contractor (Variation).
  • 6.2   Variations shall be valued by the Contractor on a fair and reasonable basis, with reference to, where available and relevant, rates and prices in the Pricing Documents. Valuation of Variations shall include any direct loss and/or expense due in accordance with sub-clause 6.3.
  • 6.3   The Sub-Contractor may claim direct loss and/or expense loss incurred by the Sub-Contractor due to the regular progress of the Sub-Contract Works being affected by compliance with any Variation, provided that the Sub-Contractor notifies its claim as soon as is reasonably practicable. The Contractor shall determine the amount of direct loss and/or expense.
  • 6.4   The Sub-Contractor shall not make any alteration to the Sub-Contract Works, other than pursuant to sub-clause 6.1.

7. EXTENSION OF TIME

  • 7.1   If the Sub-Contractor is delayed in completing the Sub-Contract Works within the Period for Completion by the ordering of any Variation of the Sub-Contract Works or for other reasons beyond the control of the Sub-Contractor, the Sub-Contractor shall notify the Contractor in writing. The Contractor shall make such extension of time (if any) as is reasonable.
  • 7.2   The Sub-Contractor shall constantly use his best endeavours to prevent or minimise any delay in the progress of the whole or any part of the Sub-Contract Works.

8. PAYMENT

  • 8.1   An interim payment shall be due to the Sub-Contractor not later than one month after commencement of the Sub-Contract Works on Site and monthly after that. Interim applications for payment must be received by the 20th of each month or as noted in the Pre Contract Minutes. The final date for payment shall be 60 days later.
  • 8.2   The Contractor shall determine and notify in writing the amount of interim payment due to the Sub-Contractor.
  • 8.3   The amount of interim payment shall be:
    • 8.3.1   the value of work carried out by the Sub-Contractor, determined in accordance with the rates and prices specified in the Pricing Document or by reference to the Sub-Contract Sum if there are no rates and prices; and
    • 8.3.2   the valuation of any Variation under sub-clause 6.3; less discount, retention (as identified in the tender enquiry and pre contract meeting minutes) and any amount previously paid.
    • 8.5.1   Half release of retentions, less the total amounts of previous interim payments shall be due to the Sub Contractor; after Practical Completion and
    • 8.5.2   The Contractor shall notify the Sub-Contractor in writing of the amount due. The final date for payment shall be 60 days later.
  • 8.6   The Main Contractor shall notify the Sub-Contractor as soon as reasonably practicable of the date of completion of making good defects under the Main Contract.
  • 8.7   7 days after the date of completion of making good defects under the Main Contract:
    • 8.7.1   The total amount to be paid less the total amount of previous interim payments shall be due to the Sub-Contractor; and
    • 8.7.2   the Contractor shall notify the Sub-Contractor in writing of the amount due.The final date for payment shall be 60 days later.
  • 8.8   Every written notice given by the Contractor to the Sub-Contractor of amounts due shall specify the amount (it any) of the payment to be made and the basis on which that amount was calculated. The Contractor shall give each written notice to the Subcontractor not later than 5 days after the date on which a payment becomes due.
  • 8.9   The Contractor shall be entitled to withhold payment of all or part of any sums otherwise due where a sum is due from the Subcontractor to the Contractor under the Sub-Contract.
  • 8.10   The Contractor shall give notice to the Sub-Contractor of his intention to withhold any payment after the final date for payment. The notice shall be served no later than 5 days before the final date for payment and shall specify the amount proposed to be withheld and
    • 8.10.1   The ground far withholding payment: or
    • 8.10.2   If there is more than one ground, each ground and the amount attributable to it.
  • 8.11   In the event of the Contractor failing to pay any sum due to the Sub-Contractor by the final date for payment, the Contractor shall pay to the Sub-Contractor interest on such overdue sum at the rate of 1% above the base rate of the Bank of England at the final date for payment
  • 8.12   In the event of the Main Contractor and or the Employer going into receivership or liquidation only monies due to the Sub-Contractor that have been received by the Contractor will become due.

9. SUSPENSION

  • If the Contractor fails to pay the sum due to the Sub-Contractor by the final date for payment, and no notice of intention to withhold has been served under sub-clause 8.10, then the Sub-Contractor may give a written notice of his intention to suspend the performance of his obligations under the Sub-Contract. If the Contractor's failure to make payment continues for 7 days after the giving of such notice, then The Sub-Contractor may suspend the performance of his obligations.

10. DETERMINATION

Determination by Contractor

  • 10.1   If, in the opinion of the Contractor, the Sub-Contractor:
    • 10.1.1   fails to proceed regularly and diligently with the Sub-Contract Works;
    • 10.1.2   Wholly or substantially suspends, without reasonable cause, the carrying out of the Sub-Contract Works before practical completion; or
    • 10.1.3   Fails to comply with sub-clause 2.4 then the Contractor may give notice to the Sub-Contractor which specifies the default and requires it to be ended. If the Subcontractor does not end the default within 7 days, the Contractor may determine the employment of the Sub-Contractor by serving a further notice. The determination shall take effect when the further notice is received.
  • 10.2   If the Sub-Contractor:
    • 10.2.1   becomes bankrupt;
    • 10.2.2   has a provisional liquidator appointed;
    • 10.2.3   has a winding-up order made:
    • 10.2.4   Passes a resolution for voluntary winding-up (except for the purposes of amalgamation or reconstruction); or
    • 10.2.5   Has an administrator or administrative receiver appointed under the Insolvency Act 1986 (or any amendment or re­ enactment of that Act) The Contractor may determine the employment of the Sub-Contractor by serving a notice. The determination shall take effect when the notice is received.
  • 10.3   If the employment of the Sub-Contractor is determined, the Sub-Contractor shall immediately leave the Site.
  • 10.4   The Contractor shall not be obliged to make any further payments to the Sub-Contractor until after completion of the Sub-Contract Works and the making good of defects.
  • 10.5   There shall be due to the Contractor from the Sub-Contractor the additional costs of completing the Sub-Contract Works including any expenses and direct loss and/or damage incurred by the Contractor as a result of the determination.

Determination of the Main Contract

  • 10.6   If the employment of the Contractor under the Main Contract is determined, the Sub-Contractor's employment under the Sub­Contract shall automatically be determined. The Sub-Contractor shall immediately cease to occupy the Site.
  • 10.7   If the employment of the Contractor under the Main Contract is determined for any reason other than in consequence of any breach of the Sub-Contract by the Sub-Contractor, the Sub-Contractor shall be entitled to be paid the value of the Sub-Contract Works properly carried out and the reasonable cost of removal from the Site, less sums already paid. The Sub-Contractor shall not be entitled to loss of profit.
    10.7 If the employment of the Contractor under the Main Contract is determined and payments outstanding no further monies will be due to the subcontractor.

11. SERVICE OF NOTICES

  • 11.1   A notice or other document may be served by any effective means.
  • 11.2   A notice or other document shall be treated as effectively served if it is addressed, pre-paid and delivered by post:
    • 11.2.1   to the addressee's last known principal residence, or, if he is or has been carrying on a trade, profession or business, his last known principal business address; or
    • 11.2.2   Where the addressee is a body corporate, to the body's registered or principal office.

12. RECKONING PERIODS OF TIME

  • 12.1   Where an act is required under the Sub-Contract to be done within a specified period of time after or from a specified date, the period begins immediately after that date.
  • 12.2   Where the period would include Christmas Day, Good Friday or a day which under the Banking and Financial Dealings Act 1971 is a bank holiday in England and Wales, or, as the case may be, in Scotland, that day shall be excluded.

13. THIRD PARTY RIGHTS

  • Nothing in this Sub-Contract shall confer or purport to confer upon any third party any benefit or right against the Contractor or the Subcontractor.

14. DISPUTES

  • 14.1   The parties may by agreement seek to resolve any dispute or difference arising under this Sub-Contract through mediation in accordance with the procedures laid down by the Centre for Alternative Dispute Resolution or in accordance with such other procedure as the parties may agree.
  • 14.2   Either party may at any time refer any dispute or difference arising under this Sub-Contract to adjudication in accordance with the provisions of the Housing Grants, Construction and Regeneration Act 1996.
  • 14.3   Where disputes or differences are to be referred to arbitration pursuant to Article 6A, then
    • 14.3.1   A party referring a dispute or difference to arbitration shall serve on the other party a notice of arbitration to such effect;
    • 14.3.2   The date on which the notice of arbitration is served shall be regarded as the date on which the arbitral proceedings are commenced;
    • 14.3.3   The arbitrator shall be an individual:
      • 14.3.3.1   Agreed by the parties within 14 days of the date of service of the notice of arbitration; or, in the absence of agreement within that period.
      • 14.3.3.2   Appointed by the President or a Vice-President of the Royal institution of Chartered Surveyors.

15. HEALTH AND SAFETY

  • It is a condition of this subcontract that all subcontractors, and all operatives employed by them, must fully comply with our Safety Policy for Site Work, complete the CDM Regulations and Vendor Questionnaire. The Subcontractor will also be required to adhere to the individual site requirements in regard to Health and Safety, including, but not restricted to site inductions, site safety meetings, COSSH assessments and the like.

H.E. Simm Standard Sub Contractors Attendances

  • The following requirements shall be provided and or adhered to by the Sub Contractor as part of the Sub Contract agreement.
  • The list is not to be considered all encompassing and should be read in conjunction with the tender requirements, Main Contract requirements, Pre Contract Minutes of Meeting and the Sub Contract order.
  • This document will incorporated into the Sub Contract.

Coordination

  • Sub contractor to take responsibility for all co ordination with all other services, structures, fittings, fixings and provide setting out details if required which will be suitably amplified to demonstrate full and proper coordination.

Drawings

  • Provide all drawings as required to fully detail the overall integrated solution including, but not limited to, sketch plans, elevations / sections and the like.

O / M Manuals

  • To be provided prior to Practical Completion of the Main Contract and within 7 days of any request made by H E Simm. The manuals should be fully coordinated and cross referenced with all necessary details relative to the works included but not limited to drawings, certificates and product data sheets . Final Payment and or interim payments will not be made until the Sub contractor has provided this documentation to the satisfaction of H E Simm.

Warranties

  • Warranties on materials are to be maintained for 24 months from the date of Practical Completion of the Main Contract,

Use of installed S/C systems

  • Should H E Simm reasonably require, the Sub contractor will allow H E Simm to use the system installed to undertake testing and commissioning or provide temporary services to the Main Contactor / Client.

Builders work openings and the like

  • Provide Builders Work In Connection with details in respect of the works providing drawings detailing all openings required.

Service openings / holes - in structures

  • Holes and chases required shall be clearly marked up onsite within 24 hours of any request to do so by H E Simm. Any large holes required should be clearly identified as soon a reasonably possible so as to be incorporated into the design.
  • The services shall be sleeved as required, with fire stopping between sleeve, cable and pipe / services

Defects Period - Maintenance

  • The defects period shall be for 24 months from the date of Practical Completion of the Main Contract and maintenance shall be provide if required by H E Simm.
  • The Sub contractor shall respond to a request for attendance by H E Simm to remedy emergency work within an appropriate time scale, i.e. leak- immediate. A fully detailed report shall be provided to H E Simm within 24 hours of attendance.

Materials

  • All items supplied by the Sub contractor will be assumed to be fully complete and fit for purpose (secondary supports and the like) and fully complaint with the specification unless identified to H E Simm prior to the placing of the order

Testing

  • H E Simm to be notified 48 hours prior to the testing of works to allow for attendance if required

Design Team Site / Meetings

  • The Sub contractor may be required to attend design and or site meetings if required, at no additional cost to the contract.
  • Any modifications that may be required are to be fully incorporated into the design and or drawings.

Site Visits

  • The Sub contractor is deemed to have include for all necessary site visits to fully determine the work required

Protection.

  • Protection to be provided by the Sub contractor to fully protect their works up to and including Practical Completion of the Main Contract

Material Delivery /Storage

  • All 'free issue' material delivered to site shall be offloaded, handled, distributed and stored by the Sub contractor.
  • The Subcontractor shall sign for all free issue deliveries and take responsibility for the goods as required by the Sub Contract.

Supports

  • Each appliance that fits within ceiling area shall be independently supported and provision for this is to be provided by the Sub contractor who will also be responsible for the load bearing weights of the bracketry supplied.

Cranage lifting requirements

  • All requirements are to be fully detailed in the Sub contractor tender submission or as the requirement becomes apparent in the case of a contract variation.
  • The Sub contractor is responsible for all attendances that may be required during this process

Labeling.

  • Labeling to be completed by the Sub contractor as work proceeds and before areas of work are enclosed.

Variations -

  • Variations to be only undertaken if instructed in writing by H E Simm.
  • No variations instructed by any other party will be accepted

Registration / induction / PPE

  • The Sub contractor shall fully adhere to the individual site requirements in regard to registration on and off site.
  • The Sub contractor will allow for the cost of induction as may be required on each individual site.
  • All operatives and visitors must carry their own PPE / Bibs / Hats / Boots / Gloves / Goggles to adhere to each sites requirements
  • Should H E Simm provide PPE the cost plus 25% will be deducted from the Sub contractors account
  • Should any aspect of PPE not be available then the Sub Contractor will not be allowed to work until it is supplied

Cleaning

  • All work areas shall be cleaned and tidied as the works proceeds and on a daily basis and disposed of as the contract allows.

Supervision

  • The Sub Contractor shall provide suitably qualified supervisory staff to manage all aspects / interfaces
  • of the Sub Contract works and shall not be removed from site without prior notice to H E Simm.

Management.

  • The Sub Contractor will provide suitably qualified Management to undertake the Sub contract works. Such Management shall not be withdrawn without prior agreement with H E Simm.

Skills / Training

  • All operatives shall be trained and certified with regards to the works and tasks which they are undertaking including but not limited CSCS cards for all operatives.

Fax / phone

  • It is H E Simm policy that mobile phones will not be used on site with the exclusion of the site supervisor for work related calls.

Access / Plant

  • All scaffold, access and the like shall be fit for purpose, suitable to be used on the individual site as per the Main Contract requirements. The operatives shall be fully trained in using the plant and the appropriate certificates provided to H E Simm prior to operation
  • Any plant that is provided FOC to the Sub contractor by H E Simm, or the Main Contractor, becomes the responsibility of the Sub contractors and any damage or missing items will be levied against their account. Failure to off hire will result in any additional hire charges plus administration costs being contra charged