Subcontract Terms and Conditions
1.0 Definitions and Interpretation. The following definitions shall apply:
Buyer – Exeon Ltd (Exeon)
Supplier – The person or body with whom this subcontract order is placed.
Customer – The Person or body with whom Exeon has entered into an agreement for goods or services.
Main Contract – The agreement between Exeon and the customer.
Subcontract – The contract for the subcontract works between Exeon and the Supplier, to which these terms apply.
2.1 This Subcontract Order is subject to, and the Supplier shall be deemed to have notice of and shall observe, perform, comply and be bound by all the provisions of the full agreement, so far as they relate to and are applicable to the subcontract operations or any part thereof and the provisions of any tender documents issued by Exeon and the conditions provided. If any conflict arises between the provisions of the main contract and the subcontract, the terms of the subcontract shall prevail.
2.2 The terms of the main contract are available for inspection by the Supplier, who will be deemed to have full notice of all terms included (except for conditions relating to rates and prices).
2.3 These terms shall govern the subcontract between Exeon and the Supplier and shall prevail over any terms put forward by the Supplier unless expressly agreed to in writing by an authorised representative of Exeon. Exeon’s conduct shall not constitute acceptance of any terms put forward by the Supplier.
2.4 The Supplier will carry out his obligations under this order so that Exeon shall meet his own obligations under the main contract including, but not limited to, the giving of any necessary notices.
2.5 If any provisions of the subcontract shall be prohibited by law or adjudged by a court to be unlawful, void or unenforceable, it shall to the extent required be severed from the subcontract and rendered ineffective if possible, without modifying the remaining provisions of the subcontract and shall not in any way affect any other circumstances of or validity or enforceability of the subcontract.
3.0 Contract Period
3.1 The programme / duration for the subcontract works is stipulated in the order. Exeon reserves the right to advance or retard dates to suit site progress.
3.2 The period of the subcontract works may be extended by Exeon for a reasonable period if delay is caused to the subcontract works by the default of Exeon. The Supplier shall, upon it becoming reasonably apparent that the progress of the subcontract works is delayed, notify Exeon in writing of the delay. In the event that notice is not given by the Supplier to Exeon within 14 days of the date from which the Supplier knew or ought to have known of the delaying event, the Supplier will not be entitled to an extension of time for performance or any related claim for loss and expense.
3.3 If the Supplier fails to complete the Subcontract works within the period specified or any extended periods as hereinafter provided, he shall pay to Exeon a sum equivalent to any loss or damage suffered or incurred by Exeon and caused by the Supplier.
4.0 The Supplier Undertakes:-
4.1 Upon receipt of notice to proceed with due diligence and complete the subcontract works within the period for completion stated in the order and reasonably in accordance with the progress of the main contract works subject to any extension of this period, and any reasonable directions by Exeon.
4.2 That all goods and/or services supplied will be free of all defects in design, quality and construction, be capable of the necessary standards of performance, conform with all legal requirements and be in accordance with the specification as stipulated in the employers requirements. This condition shall apply for a period of 18 months following delivery, or 12 months following commissioning (if carried out by the Supplier) whichever is later.
4.3 That all defects shall be made good by the Supplier with 7 days from receipt of notice in writing from Exeon.
5.1 Property in goods will pass to Exeon on delivery without prejudice to any right of rejection. The Supplier shall be responsible for the unloading, taking to store, distribution and adequate protection of all materials delivered to site until completion.
5.2 The Supplier will be responsible for clearance of debris resultant from their works to the nearest available skip as work proceeds: skips in this respect to be supplied by Exeon unless the supply of the skips by the subcontractor is a requirement of the sub-contracted works.
6.1 The Supplier will affect and maintain Employers Liability Insurance and Public Liability Insurance in respect of its responsibilities under this order of at least £10 Million and up to the requirements of the main contract and will produce evidence of such insurance upon request from Exeon.
7.1 The prices stated in the order are fixed for the duration of the job and are inclusive of all duties, levies and taxes except VAT.
7.2 The Supplier shall submit an application for payment monthly in arrears by the dates agreed. Subject to an application being made, payment will be made in accordance with the agreed payment terms (the “final” date for payment).
7.3 The company may withhold payment after the “final” date for payment provided that the company shall notify the Supplier of the amount to be withheld and the grounds for withholding not later than 2 days before the “final” date for payment.
7.4 The price of the subcontract works payable to the Supplier (hereinafter referred to as the “contract price”) shall be the sum named or such sum as shall become payable by reason of Exeon’s written instructions. If, as a result of Exeon’s written instructions, the specification or quantities are varied and/or other material or equipment are substituted for those specified therein to enable Exeon to comply with the requirements of the contract, then adjustment shall be made to the contract price. Such adjustment shall be ascertained by Exeon in accordance with the following rules:
(i) Where work Is of similar character to that set out in the schedule of rates or contract sum analysis, the rates and prices so set out shall determine the valuation.
(ii) Where work is of similar character to that set out in the schedule of rates, but executed under different conditions, the rates and prices so set out shall be the basis of determining the valuation, and the valuation shall include a fair allowance for such difference in conditions.
(iii) Where the work is not of a similar character to work set out in the schedule of rates, the work shall be valued at fair and reasonable rates and prices.
8.1 This order in its entirety shall ensure to the benefit of the successors, assigns and subsidiary and associated companies of Exeon. The Supplier may not assign or subcontract any rights or obligations under this order without the written consent of Exeon.
9.1 If either party shall have a Receiver or Administrator appointed or go into liquidation or have a receiving order made or make a composition with its creditors then the other party may terminate this order forthwith.
9.2 If either party to the Main Contract becomes the subject of an event of insolvency, Exeon shall only be liable to pay the Supplier to the extent that Exeon is able io recover monies due under the Main Contract which relate to the subcontract works.
9.3 In the event of determination of the employment of Exeon under the main contract then the employment of the Supplier shall automatically be determined. Upon such a determination the Supplier shall be entitled to such sums as are recoverable under the provisions of the main contract so far as applicable to this subcontract.
10.0 Health & Safety
10.1 The Supplier shall comply with all applicable health and safety and environmental legislation, regulations and directives. The Supplier shall keep the work area clean and safe at all times.
11.1 If a dispute is not resolved through negotiation, either party may give notice of its intention to refer any dispute arising under, out of or in connection with this contract to adjudication at any time in accordance with the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts 1998.
11.2 The Referring Party shall seek the appointment of an adjudicator from the President or Vice President of the Royal Institute of Chartered Surveyors.
11.3 in the event of adjudication, whether commenced under the terms of this contract or the Construction Act 1996, the costs of the adjudication, both those of Exeon and the Supplier, and including the adjudicators costs shall be borne and paid for by the Supplier.
12.1 The Supplier be responsible for and shall indemnify and keep indemnified Exeon in full, from and against any and all liability, loss or damage (including costs, expenses and legal expenses} to persons or property real or personal, arising out of the carrying out of the Sub-Contract Works except where and to the extent such liability, loss or damage is caused by an act or omission of Exeon.
13.0 Data Protection
13.1 The parties acknowledge that for the purposes of the Data Protection Legislation that Exeon is the Data Controller and the Supplier is the Processor.
The Seller shall therefore:
(i) only act on the written instructions of the controller;
(ii) ensure that people processing the data are subject to a duty of confidence;
(iii) take appropriate measures to ensure the security of any processing;
(iv) only engage sub-processors with the prior consent of the controller and under a written contract;
(v) assist the controller in providing subject access and allowing data subjects to exercise their rights under the GDPR;
(vi) assist the controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data projection impact assessments;
(vii) delete or return all personal data to the controller as requested at the end of the contract; and
(viii) submit to audits and inspections, provide the controller with whatever information it needs to ensure that they are both meeting their Article 28 obligations, and tell the controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.