Sub Contractor Agreement

This document, together with documents referred to herein (hereafter collectively called the Agreement) contain the Terms and Conditions of a binding contract and governs the relationship between The Polishing Company (hereafter referred to as the subcontractor) and the party named in a Quotation, referred to as ‘the Contractor’, individually ‘a party’ and collectively ‘the parties’

Whereas:

A) the Contractor has undertaken work under contract (the Master Contract) with a third party (the Client) and wishes to utilise the resources and services of the Subcontractor to undertake a portion of that work.

B) The Subcontractor, having been informed of any provisions within the Master Contract which materially or otherwise directly affect this agreement or has been afforded the opportunity to read the Master Contract is willing to provide the resources and perform the services

Definitions.

Within this Agreement the following words shall have the assigned meanings.

Client – the party subject to the Master Contract with the Contractor.

Counterpart – two or more of the same documents, each being a counterpart, treated as being a single document.

Due date – the date at which payments become due for payment.

Executed : The act of commencing the agreement.

Master Contract : The agreement between the Contractor and the Client, part of which provides the work for this agreement.

Privity of contract – close, mutual or successive contractual relationship.

Project – the work or works to which the services relate.

Stepped down – provisions of a Master Contract that are passed onto, implied into or otherwise affect the obligations, benefits and Terms & Conditions of a subcontractors agreement.

Termination – the ending of this Agreement.

Masculine shall include feminine and singular shall include, and vice versa unless expressly stated otherwise.

Headings are for convenience only and shall not affect or interfere with the construction, intention or interpretation of the Agreement

General.

Both parties enter this agreement as a business and in the upmost good faith.

It is expressly understood that the Subcontractor is an independent contractor with respect to the services provided under this Agreement and neither the Subcontractor nor anyone employed or engaged by the subcontractor shall be deemed for any purpose to be an employee, agent, servant, partner or representative of the Contractor.

Where both parties are registered with the Construction Industry Scheme (CIS) the rules and requirements of that scheme shall apply.

Both parties acknowledge the existence of the Master Contract, where it contains any provisions that are stepped down, or in any way affect this Agreement, such provisions can be relied on or enforced if they are brought to the attention of the Subcontractor before this Agreement is executed.

In the interests of clarity, if the subcontractor is provided with a copy of the Master Contract, or a document containing only the relevant provisions of the Master Contract, then the Master Contract or the relevant provisions of the Master Contract shall be deemed to have been brought to his attention.

Where a copy of the Master Contract is provided to the Subcontractor, the Contractor shall be entitled to remove or hide any financial details.

in the event of a conflict between these Term & Conditions and the Master Contract, these Terms and Condition shall prevail unless the parties expressly agree otherwise in writing.

Subject to paragraph 4 nothing within this Agreement shall be construed as creating any privity of contract between the Subcontractor and Client.

This Agreement supersedes, replaces or modifies all other contracts, agreements or understandings, including the Contractors own Terms & Conditions,
except as otherwise provided herein, no addition, amendment or modification of this Agreement shall be effective unless it is in writing and signed by both parties.

In entering this Agreement both parties acknowledge the Subcontractor has relied on descriptions, details and representations made by the Contractor in relation to the scope, nature, details and requirements of the work to be undertaken.

Both parties shall take all reasonable steps to mitigate any loss or damage resulting from a breach of this Agreement by the other party.
Estimates.

Where the subcontractor has insufficient information or detail to provide the Contractor with a true or accurate cost, the subcontractor shall, upon the request of a Contractor provide a non-binding estimate.

An estimate shall be an indication or ‘best guess’ of the costs based on the limited or unconfirmed information or detail provided and are subject to change.

Estimates are not an offer to contract and are supplied without warranty, guarantee or obligation of any kind.

An estimate may, at anytime be superseded by a quotation.

Quotation.

Unless otherwise stated, a quotation shall be an offer to contract, acceptance of the quotation by any method, whether by verbal communications or written acceptance shall be acceptance of that offer and the full Terms & Conditions.

A quotation shall represent the cost to the subcontractor to undertake the work as detailed.

The quotation assumes all the detail and information provided by the Contractor to be accurate and correct.

The Subcontractor may delay providing a quotation until –

a) A site visit and job assessment has been carried out by the sub-contractor;

b) The Contractor has provided images of the area to be worked on;

c) The Contractor has provided sufficient detail or information to enable the sub-contractor to accurately calculate or forecast an accurate cost.

In the event that any information or detail provided by the Contractor which has been taken into account by the Subcontractor when preparing the quotation proves to be false, misleading or inaccurate the Subcontractor reserves the right to withdraw or amend the quotation.

Quotations are valid for a period of 30 days after the date of issue, in the event that a quotation is amended before any contract is agreed, the valid period shall apply from the date of the amendment.

Execution.

The Agreement shall be executed upon the Subcontractor providing a Quotation and the Contractor accepting the Quotation. Acceptance can be verbal (example, over the telephone), in writing or by conduct (example, paying any advance payment or the work commencing).

In executing the Agreement both parties acknowledge they have read and understood (having taken legal advice should they, in their sole discretion consider it necessary or appropriate) the Terms & Conditions of the Agreement in full, or had the opportunity to do so.

The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. No counterpart shall be effective until each party has executed at least one counterpart.Where agreement is in writing Signatures it shall be delivered and exchanged by Facsimile, electronic mail or first class post, with sufficient clarification that the communication is acceptance of the Quotation and its Terms.

Once executed, the Agreement shall be effective and binding until

a) The obligation of both parties under this Agreement are fully performed and all payments or disputes are settled; or

b) terminated under paragraph 65.

In the event that any errors, omissions, false, misleading or inaccurate information has been provided by the Contractor but not discovered until after the execution of the Agreement but before the work has commenced, the Sub-contractor may, without prejudice to any other remedy provided by contract, equity or

Law –

a) Amend the contract to reflect the corrected detail or amendment.

b) Terminate the contract and recover any costs, losses or damages.

In the event that, after execution of the Agreement, the Client instructs the Contractor to change the agreed detail, requirements, specifications or otherwise alters anything which directly impacts on the amount of time or work required –

a) Where the changes make reductions to the requirements the Subcontractor shall not be obliged to reduce the price or costs stated.

b) Where the changes increase the requirements the Subcontractor shall be entitled to increase the amount charged by a reasonable and realistic amount to reflect the extra work involved.

Services.

The Services shall be as defined within the Quotation or within a separate document clearly stating it is intended to form part of the Quotation and shall include matters referred to as job detail or description.

It shall be the responsibility of the Contractor to ensure all detail, information and specification accurately reflect the requirements of the work.
In the event that the false, misleading or inaccurate information has been provided by the Contractor but not discovered until after the work has commenced, the sub-contractor may amend the Agreement to take into account the corrected inaccurate information. Any increase in cost to the Contractor must reasonably reflect the amendments.

In the event that the Subcontractor fails to provide services to the required standards or within an agreed timeframe, the Contractor may, by serving notice upon the Subcontractor, request the failure be remedied.

The Notice shall contain sufficient detail for the Subcontractor to fully understand the issues, the required remedy and the timeframe for implementing the remedy.

Where a notice under section 33 is received the Subcontractor shall –

a) Acknowledge receipt of the notice within 3 working days, and

b) Confirm the requested remedy will be provided; or

c) Dispute or contest the notice

Where the Subcontractor accepts the issues raised in the notice he shall implement the remedy at his own cost.

The notice may be disputed or contested by the Subcontractor by way of a counter notice served within 7 days of the date of the Counter notice where

a) The failure of the Subcontractor was as a direct result or consequence of a failure of the Contractor to provide relevant detail or information.

b) The failure of the Subcontractor was as a result of a Force Majeure event or a delay or failure of a third party (including other subcontractors whether involved under the Master Contract or not) beyond the control of the Subcontractor.

c) the requested remedy exceeds what would be reasonably required.

d) The stated timeframe is impractical or unreasonable.

e) Any other reason which makes the notice unreasonable or unfair.

Where a remedy cannot be agreed between the parties they may agree to refer the dispute to an independent arbitrator or assessor, the cost of which shall, unless expressly otherwise agreed, be shared equally between the number of parties involved in the dispute.

Contractor obligations

The Contractor shall provide the subcontractor with all information that is available, necessary or required for each Project to enable the subcontractor to take into account all relevant detail to provide a fair and accurate quotation, perform the services and comply with contractual and legal obligations, including but not limited to –

a) A copy of any assessment of risks to health and Safety.

b) A copy of the Master Contract or a document containing any provisions that are stepped down, or materially affect anything in this contract.

c) A document providing details in respect of any limitations restrictions or requirements that the subcontractor needs to comply with so as not to invalidate or adversely affect any insurance policy of the Contractor.

d) Images taken of the area to which the services shall be required.

e) Any other information, detail or document that would be advantageous or desirable to be known by the Subcontractor, or otherwise assist the Subcontractor to meet his obligations under this Agreement or in Law.

Where the Contractor does not include information within paragraph 38, the Subcontractor cannot be bound, responsible or liable for any issue, act or omission that may arise

The Contractor shall make all payments due to the subcontractor on or before the due date.

The Contractor shall deduct the ‘appropriate amount’ from the amount due under this Agreement that is payable under the CIS scheme.

The Contractor shall verify the ‘appropriate amount’ for the Subcontractor with HMRC unless the Subcontractor has been contracted with the Contractor within the previous 2 years.

The Contractor shall provide the Subcontractor with a statement of deduction under the CIS.

The Contractor shall include the payments in their monthly return to HMRC under the CIS scheme.

The Contractor shall manage the project in a manner that does not prevent, delay or interfere with the subcontractor commencing or completing the services on the agreed dates.

Unless the services are to be carried out on the Subcontractors premises the Contractor will arrange and provide access to the location or site where the work is to be carried out and ensure any permissions are obtained from the Client.

The Contractor shall ensure compliance with all Health and Safety requirements.

Subcontractor Obligations.

The Subcontractor shall use their best endeavours to perform the services in accordance with this Agreement and, subject to the subcontractor being made aware, any provisions, requirements or specifications within the Master Contract, with regard to both performance and completed results.

The Subcontractor shall provide all labour (including, employees, consultants, agents, freelance, sub-contractors), materials and equipment required or necessary to complete the services and fulfil their contractual obligations.

The Subcontractor shall provide management, supervision and direction as to the method and manner of performing the services in accordance with this Agreement.

The Subcontractor shall not, by act or omission, knowingly or deliberately cause or contribute towards a breach of contract by the Contractor or any of the Contractors obligations under the Master Contract. In the interest of Clarity ‘knowingly’ means having actual knowledge of the provisions or obligations and if a copy of the Master Contract has been provided, or the relevant provision is included within a document that have been provided by the Contractor, the Subcontractor shall be deemed to have actual knowledge.

The Subcontractor shall inform the Contractor any event, occurrence or situation that arises and in the opinion of the Subcontractor, will or has the potential to materially affect any obligation or impede the ability to provide the services in a timely manner, in order that any decision necessary can be taken or remedial action sanctioned as would be appropriate or necessary.

The Subcontractor shall ensure all aspects of applicable regulatory governance, industry codes and standards, are complied with, having particular regard to Health & Safety.

The Subcontractor shall hold and Maintain all insurances required by Law, by the Master Contract and any additional protection that the Subcontractor considers necessary or desirable. Evidence of the insurance shall be provided to the Contractor or the Client upon request.

Fees and Charges

The Subcontractor shall be entitled to receive, in consideration of the services provided, the amounts specified in the Quotation plus any additional charges under this Agreement, on or before the due date.

Unless otherwise stated the charges shall be paid by way of

a) an advance payment equal to 50% of the total value of the Agreement, the due date shall be at the point of execution of the Agreement.

b) The balance and any additional charges due under this Agreement shall be due upon receipt of an invoice issued by the Subcontractor upon completion of the services.

The Contractor shall deduct any amount to be deducted under the CIS scheme from the invoice value prior to making payment.
In the event that payment is not received by the Subcontractor on or before the due date the Subcontractor may –

a) Suspend providing services, under this or any other Agreement or project between the parties until cleared funds equal to the amount due has been received by the Subcontractor, by providing notice of not less than 7 days.

b) Add compensation at an amount equal to £40 if the amount due is under £1000, £70 if the amount due is between £1,000 and £10,000 or £100 if the amount due is over £10,000 in accordance with the Late Payment of Commercial Debt (Interest) Act 19

c) Interest at 8% per annum above the Bank of England base rate, calculated per day.

d) Terminate this Agreement.

The Contractor may not withhold any payment due to the Subcontractor under this Agreement unless he has provided notice of not less than 7 of his intention to withhold payment, such notice shall include the amount of payment being withheld and the reasons for doing so.

Where a withheld amount is less than the amount due, the undisputed payment shall be made on or before the due date.

Where a withheld amount becomes the subject of mediation, arbitration assessment or adjudication, and the amount is determined to be due, the Contractor shall make the payment within 7 days of the determination notwithstanding an application may be made to a court for determination,

Any provision within any contract (including the Master Contract) which makes payments due under this Agreement conditional upon the Contractor receiving payments from a third party shall be ineffective unless the third party is insolvent.

For the purposes of the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts, an invoice issued by the Subcontractor shall be the ‘notice of payment due’ and the final payment date shall be the same as the due date.

Termination.

This Agreement shall terminate upon performance of all obligations by both parties.

Either party may terminate this Agreement before the anticipated completion date –

Unless the agreement provides otherwise, in the event of a material breach of the Terms and Conditions that cannot be rectified within 7 days, or if the services have commenced or will or are likely to be completed in less than 7 days, the period to rectify or remedy the breach shall be the day before the anticipated or stated completion, or any other period expressly agreed between the parties.

Where either party becomes incapable, financially or otherwise, of performing their obligations, including but not limited to death, mental or physical incapacity, insolvency, bankruptcy or winding up (or proceedings are initiated to that effect).

Where either party is or becomes involved in any illegal or unlawful activity whether the activity is connected to this Agreement or not.
By mutual consent.

Termination is effected by service of a notice, except where termination is by both parties performing their obligations when no notice is necessary and the Contractor signs a document confirming the work has been completed.

Effects of termination.

Any outstanding fees, charges or payments shall become immediately due.

In the event that the Agreement is terminated for reasons other than the Subcontractors breach of contract before the work commences, notwithstanding any other remedy available in contract, tort, equity or Law, the Subcontractor shall be entitles to recover all costs and expenses incurred up to the date of termination.

In the event that the Agreement is terminated for reasons other than the Subcontractors breach of contract, after the work has commenced but before completion, notwithstanding any other remedy in contract, tort, equity or Law the Subcontractor may recover all payments that would have been due under the Agreement has it been completed.

Any advance payment made by the Contractor may be used to offset any amount due to the Subcontractor.

Where either party terminates this Agreement prior to the completion of the services, the Contractor shall be entitled to appoint an alternative subcontractor in lieu of any notice.

Termination of this Agreement shall not prejudice the rights or obligations of either party accrued prior to termination.

Any rights or obligations that by their nature, intent, purpose or by specific contractual reference survive termination shall continue to have full effect.
Confidentially

Each party acknowledges they shall protect and not publicly disclose any Confidential information of the other party unless required to do so by Law or by an order of a Court

‘Confidential information’ means all non-public information relating to a parties business and their activities, past present and future, including but not limited to this Agreement, documents, data, images, ideas, designs, prototype and experimental work whether technical or not and any information, intellectual property or trade secrets used by either party under their contractual obligations with each other or with their prospective employees, agents sub-contractors or consultants.

Notwithstanding the above, the Contractor shall be entitled to disclose to the Client any information, whether confidential or not, as may be required to allow the Contractor to comply or satisfy obligations under the Main Contract or for Insurance purposes.

Where the Contractor discloses confidential information to the Client, the Contractor shall also disclose the confidential nature of the information and the Client shall be bound by the confidentially provisions within this Agreement unless the Master Agreement provides greater protection.
Assignment.

Both parties may assign all obligations, rights and benefits under this Agreement, when selling or transferring their business or interest as a whole, by serving notice upon the other party of not less than 28 days.

Where, in circumstances stated within the Master Contract the Contractor is obliged to assign the benefits and obligations under this Agreement, the Contractor will serve notice of not less than 28 days upon the Subcontractor, unless the assignment will take place in less than 28 days, in which case notice shall be served at the earliest opportunity. The Subcontractor shall cooperate fully with the Contractor, Client and Assignor.

In all other circumstances, either party can only assign their obligations, rights and benefits under this Agreement with the express written consent of the other party, which shall not be unreasonably withheld.

Warranties

Both parties warrant not to attempt to circumvent any of the Terms and Conditions of this agreement either individually, in part or in full.

The Subcontractor warrants not to make direct contract with the Client in relation to the services through, or with the express written consent of the Contractor.

The Subcontractor warrants they possess the skill, knowledge and resources to perform the obligations created by this Agreement.

The Subcontractor warrants the amount quoted and stated within a Quotation is sufficient to support the performance of all its obligations expressed in this Agreement and implied by Law.

The Contractor warrants they have the means to pay the amounts due under this Agreement when they become due.

Liabilities

The Subcontractor cannot be held liable or responsible for the failure to comply with any requirement of the Master Contract or Insurance Policy of the Contractor or Client instructions unless the requirements were disclosed to the Subcontractor before the Agreement was executed.

The Subcontractor shall indemnify the Contractor, its employees, agents and representatives, and hold harmless against all claims, claims, legal fees, losses, costs and other expenses in any actions against the Contractor arising out of the Subcontractors breach of the Terms & Conditions herein.

The Contractor shall indemnify the Subcontractor, its employees, agents and representatives and hold harmless against all claims, legal fees, losses, costs and other expenses in any actions against the Subcontractor arising out of the Contractors breach of these The Terms & Conditions herein.

Neither party shall be liable to the other for an amount exceeding the value of the work, as stated within the Quotation.

Nothing in this Agreement shall remove or limit either parties liability for death, injury or fraud (including fraudulent misrepresentations).

Neither party shall be held in breach of this Agreement, or held liable in damages for any event, delay or default resulting from Force Majeure (A force of nature or ‘Act of God’) including but not limited to adverse weather, war, strikes, Governmental restrictions, power failures, failure of suppliers, sub-contractors or carriers or other causes beyond the reasonable control of the party, providing that the party experiencing the difficulty provides prompt written notification
Notices.

Any notice necessary or required under the provisions of this agreement shall be served by hand or by way of recorded delivery mail or courier service or electronic mail.

Notices shall be deemed to have been served immediately if by hand, upon signing if by recorded delivery or courier, or 1 hour after sending an electronic mail if the electronic mail has not been returned undelivered.

Disputes.

Should a dispute arise out of or in connection with this agreement which cannot be resolved amicably between the parties they may –

Seek resolution via their appointed representatives.

Request the intervention of an independent mediator, arbitrator or assessor.

Request the input and opinion of an authorised trade or governing body.

Refer the dispute to an adjudicator under the provisions of the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts

Request a determination from the Courts.

A party may invite the other party to participate in mediation, arbitration or appoint an assessor or adjudicator they shall serve written notice. Where a party receives such a notice they shall respond within 7 days.

Where the parties agree to appoint a mediator, arbitrator, assessor or adjudicator they will be requested and expected to deliver their report, opinion, suggestion, recommendation or decision within 28 days.

The mediator, arbitrator, assessor or adjudicator shall have a duty to act impartially and will take the lead and initiative in ascertaining the facts and applicable

Laws

The parties may accept the opinion, suggestion, recommendation or decision as a final and binding determination of the dispute or alternatively where agreement is not forthcoming, initiate proceeding within the Courts.

The parties shall not hold the mediator, arbitrator, assessor or adjudicator or their employees or agents liable for anything done or omitted in the discharge of his functions unless the act or omission is in bad faith.

Except where the dispute is in relation to costs, charges or any part of the services which may need to be repeated or re-performed, the Subcontractor shall proceed with the execution of all services whilst a resolution to the dispute is sought.

Law and Jurisdiction

The Agreement shall only be available in the English language, in the event that an Agreement is translated into any other language the English version shall always prevail.

If any provision of this Agreement is, or shall become invalid or unenforceable in the opinion of a court of Law it shall in no way affect or diminish the remainder of the Agreement and it shall remain valid and enforceable to the fullest extent permitted by Law. Both parties shall seek and agree an alternative provision that is valid and enforceable and reflects the intent of the original term.

Subject to any provisions within the Master Contract that are brought to the Subcontractors attention before this Agreement is executed, a person or company who is not party to the Agreement shall not have any rights, benefits or obligations under this Agreement or any part of it and the Contract (Rights of Third Parties) Act 1999 shall not apply.

No forbearance, indulgence, relaxing, inaction or delay in either party enforcing performance, its contractual or legal rights shall prejudice, restrict or otherwise diversely affect the rights of that party to enforce its rights at a later date or later breach.

The Agreement, its construction, formation and any contractual disputes or claims shall be governed by and in accordance with English Law and shall be subject to the exclusive jurisdiction of the courts of England and Wales

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