Standard Form of Nominated Sub-Contract 2005 Edition

Standard Form of Nominated Sub-Contract 2005 Edition KCTang Wed, 16/09/2020 - 19:09

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16 Sep 2020: First created.

 


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《》 = Desirable but not essential changes

# # =  note to pay attention to

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Agreement & Schedule of Conditions of Nominated Sub-Contract for use in the Hong Kong Special Administrative Region, 2005 EDITION

Contents

ARTICLES OF AGREEMENT

ATTESTATION

THE SUB-CONTRACT GENERAL CONDITIONS

1         Interpretation and definitions

1.1      Governing law

1.2      Singular, plural, masculine and feminine

1.3      Method of reference to clauses and Articles

1.4      Articles of Agreement, Sub-Contract Conditions and Appendix to be read as a whole

1.5      Clauses divided into sub-clauses to be read as a whole

1.6      Definitions

1.7      Tenders based on Sub-Contract Bills or Schedules of Quantities and Rates

1.8      The role of the Engineer

1.9      Sectional completion of the Works

1.10    Communications

1.11    All communications between the Architect and the Sub-Contractor to be through the Contractor

1.12    Notices of default or determination to be sent by special delivery

1.13    Parties to act reasonably {and expeditiously}

2         Sub-Contractor to comply with the provisions of the Main Contract that relate to the Sub-Contract Sub-Contractor to comply with the provisions of the Main Contract that relate to the Sub-Contract

3         Sub-Contractor's obligations

3.1      Sub-Contractor's obligations

3.2      Sub-Contractor's responsibility

3.3      Sub-Contractor's skill and care

3.4      Sub-Contractor to {notify inform} Contractor if he finds ambiguities in documents

3.5      Sub-Contractor to provide information to the Contractor regarding the master programme

4         Care of Sub-Contract Works Contractor to be responsible for the care of the Sub-Contract Works

5         Contractor's instructions

5.1      Contractor's instructions

5.2      Architect to issue instructions to the Sub-Contractor through the Contractor

5.3      Compliance with Contractor's instructions

6         Documents forming the Sub-Contract and other documents

6.1      The documents forming the Sub-Contract

6.2      Copies of documents tor Sub-Contractor

6.3      Further drawings, details, descriptive schedules and similar documents

6.4      Documents to be provided to Sub-Contractor on time

6.5      Electronic copies of drawings

6.6      Return of drawings

6.7      Submission of manuals and assignment of warranties

6.8      Submission of as-built drawings

6.9      Limit to use of documents

6.10    Issue of Architect's certificates

6.11    Copy of notice to be given to Architect

7         Statutory obligations

7.1      Statutory Requirements

7.2      Compliance with the Statutory Requirements

{7.3      Fees or charges}

8         Materials, goods, workmanship and work

8.1      Types, standards and quality

8.2      Inspection and tests

8.3      Materials, goods, workmanship or work not in accordance with Sub-Contract

8.4      Sub-Contractor to be reimbursed by Contractor for abortive work

8.5      Sub-Contractor to reimburse Contractor for costs caused by Sub-Contractor

8.6      Rectifying defects

8.7      Dismissal from the Sub-Contract Works

9         Intellectual property rights

9.1      Treatment of royalties

9.2      Payment of royalties included in Valuation

10      Sub-Contractor's site management team Sub-Contractor's site management team

11      Access for Contractor and Architect to the Sub-Contract Works Sub-Contractor to give access

12      Architect's representative Architect's representative

13      Variations, Provisional Quantities, Provisional Items and Provisional Sums

13.1    Architect's authority to issue instructions requiring a Variation

13.2    Instructions for Provisional Quantities and Provisional Sums

13.3    Valuation of Sub-Contractor's work

13.4    Valuation rules

13.5    Adjustment of Sub-Contract Sum

13.6    Sub-Contractor's right to be present during measurement on Site

13.7    Variation necessitated by fault of Sub-Contractor

{13.8     Sub-Contractor’s estimate before formal instruction}

{13.9    Sub-Contractor’s proposal}

14      Sub-Contract Bills

14.1    Quality and quantity of work included in Sub-Contract Sum

14.2    Standard Method of Measurement of Building Works

14.3    Errors in Sub-Contract Bills

{14.4  Lump sum prices based on Sub-Contract Drawings and Specification only}

15      Sub-Contract Sum Adjustment of Sub-Contract Sum

16      Materials and goods for the Sub-Contract Works on or off-site Materials and goods on or off-site

17      Substantial Completion and defects liability

17.1    Substantial Completion of Sub-Contract Works to be completed by the Sub-Contract Completion Date

17.2    Substantial Completion of Sub- Contract Works to be completed at the same time as the Works

17.3    Sub-Contractor to leave Sub-Contract Works clean and tidy

17.4    Rectifying defects

17.5    Defects Rectification Certificate for the Works

17.6    Damage by a Specified Peril

17.7    Other rights and remedies

18      Partial possession by Employer Partial possession

19      Assignment and sub-letting

19.1    Sub-Contractor not to assign the Sub-Contract without consent

19.2    Sub-letting

19.3    Sub-Contractor not to object to assignment of Sub-Contract to Employer

20      Injury to persons and property and indemnity to Contractor Sub-Contractor to indemnify Contractor

21      Insurance against injury to persons or property

21.1    Employees' Compensation Insurance

21.2    Third party liability insurance

21.3    Insurance without prejudice to Sub-Contractor's obligation to indemnify Contractor

22      Insurance of the Works

22.1    The Contractors' All Risks Insurance of the Works

22.2    Responsibility of Sub-Contractor

22.3    Parties' obligations if loss or damage occurs

22.4    Contractor's payment not more than insurance proceeds

{22.5    Deductibles and exclusions}

23      Possession, commencement and completion

23.1    Date for Possession of the Site <alternatively: for Entering the Site> and the Commencement Date

# No site possession for external renovation contract #

23.2    Commencement and completion of Sub-Contract Works

23.3    Postponement or suspension

24      Failure of Sub-Contractor to complete on time

24.1    Failure of Sub-Contractor to complete on Sub-Contract Completion Date

24.2    Failure of Sub-Contractor to complete on time where the Sub-Contract Works are to be completed at the same time as the Works

24.3    Contractor to give notice that loss and/or expense and/or liquidated damages are being or will be incurred

24.4    Refund if Main Contract Completion Date revised

25      Extension of time for the Sub-Contract Works to be completed by the Sub-Contract Completion Date

25.1    Sub-Contractor's first notice of delay

25.2    Sub-Contractor's second notice

25.3    Fixing new Sub-Contract Completion Date

25.4    Sub-Contractor's default involved in the delay

25.5    Rate of progress of Sub-Contract Works

26      Extension of time for Sub-Contract Works to be completed at the same time as the Works

26.1    Extension of time for Sub-Contract Works to be completed at the same time as the Works

26.2    Rate of progress of the Works

27      Delay recovery measures

27.1    Delay recovery measures

27.2    Sub-Contractor to liaise with the Contractor

27.3    Contractor to reimburse Sub- Contractor for carrying out delay recovery measures

28      Direct loss and/or expense

28.1    Sub-Contractor's notice of claim for additional payment

28.2    Quantity Surveyor's ascertainment of Sub-Contractor's claim

28.3    Sub-Contractor's default involved in the delay or disruption

28.4    Sub-Contractor's claim from Contractor

28.5    Contractor's claim from Sub-Contractor

29      Notice of claims for additional payment

29.1    Sub-Contractor to give notice of claim

29.2    Sub-Contractor to submit particulars

29.3    Condition precedent to Sub-Contractor's entitlement to additional payment

30      Nominated Suppliers Prime Cost Sums

31      Other sub-contractors, statutory undertakers, utility companies and Specialist Contractors Sub-Contractor to fully co-operate with other sub-contractors etc.

32      General attendance

32.1    General attendance

32.2    Clearance of rubbish during Sub-Contract Works

32.3    Provision of services for the Sub-Contract Works

32.4    Sub-Contractor's workshops

32.5    Use of the Contractor's or the Sub-Contractor's erected scaffolding

32.6    Contractor and Sub-Contractor not to make wrongful use of or interfere with the property of the other

33      Certificates and payments

33.1    Interim Certificates and interim valuations

33.2    Estimate of amount due to the Sub-Contractor in Interim Certificate

33.3    Off-site materials or goods

33.4    Calculation of Sub-Contract Retention

33.5    Retention rules

33.6    Quantity Surveyor to prepare final account

33.7    Adjustment of the Sub-Contract Sum

33.8    Issue of Final Certificate

33.9    Effect of Final Certificate

33.10  Proceedings commenced before Final Certificate

33.11   Proceedings commenced after Final Certificate

33.12   Effect of Architect's certificates

33.13   Late payment

33.14   Right to Sub-Contractor to suspend the carrying out of the Sub-Contract Works

34      Surety bond Sub-Contractor to obtain guarantee from insurance company or bank

35      Benefits under Main Contract Contractor to obtain rights and benefits under Main Contract for Sub-Contractor

36      Determination by Contractor

36.1    Default by Sub-Contractor

36.2    Insolvency of Sub-Contractor

36.3    Contractor's rights upon notice of default or determination

36.4    Consequences of determination

36.5    Quantity Surveyor to prepare final account

36.6    The final settlement

36.7    Other rights and remedies

37      Determination by Sub-Contractor

37.1    Default by Contractor

37.2    Insolvency of Contractor

37.3    Consequences of determination

37.4    Sub-Contractor to submit final account

37.5     {The }Quantity Surveyor to check final account

37.6    The final settlement

37.7    Other rights and remedies

38      Determination of the Contractor's employment under the Main Contract

38.1    Determination of Contractor's employment by Employer

38.2    Determination of Contractor's employment by Contractor

39      Fluctuations

39.1    Fluctuation provisions only applicable if expressly stated to be

39.2    Adjustment for fluctuations occurring after the Completion Date

40      Notices, certificates and other communications Submission of notices, certificates and other communications

41      Recovery of money due to the Contractor Contractor's power to recover damages etc.

42      Settlement of disputes

42.1    Procedures and Designated Representatives

42.2    Reference to Designated Representatives

42.3    Reference to mediation

42.4    Reference to arbitration

42.5    Timing of arbitration

42.6    Architect's decision

42.7    Arbitrator's powers

42.8    The place of arbitration

42.9    Related dispute between parties to Main Contract

42.10   Sub-Contractor to continue to proceed diligently

43      Contractor to join with the Sub-Contractor in arbitration proceedings

           Contractor to join with the Sub-Contractor in arbitration proceedings  

Appendix

Appendix to the Main Contract Conditions

Schedule 1

Form of Surety Bond to be given by the Nominated Sub-Contractor to the {Contractor Employer}

Schedule 2

Form of Warranty to be given by the Nominated Sub-Contractor to the Employer in consideration of Nomination

Index to the Sub-Contract General Conditions

 

Articles of Agreement

This Agreement is made on the . . . . . . . . . . . . . day of . . . . . . . . . . . . . 20 . . . . . . 

between . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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('the Contractor') and 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

('the Sub-Contractor')

 

Whereas the Contractor wishes to have work carried out comprising:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

('the Sub-Contract Works') which are to be carried out as part of the Works briefly described in the Appendix

at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

being carried out by the Contractor under a contract ('the Main Contract') made the

. . . . . . . . . . . . . . . . . day of . . . . . . . . . 20 . . . . . .

between . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

('the Employer') and the Contractor.;》

and whereas the Employer has had Tender Documents comprising:

(a)      a form of tender ('The Form of Tender');

(b)      drawings ('the Sub-Contract Drawings');

(c)      a specification ('the Specification'); and

(d)      bills of quantities, if so provided*

showing and describing the work to be carried out prepared by or under the direction of {or} at the request of the Architect.;》

*         where bills of quantities are not provided the tenderer shall calculate his own quantities and shall submit a Schedule of Quantities and Rates as referred to in clause 1.7(2) setting out a build up of the Nominated Sub-Contract Sum.

and whereas the Sub-Contractor has, based on the Tender Documents, made in the Form of Tender his calculation of the sum that he will require for carrying out the Sub-Contract Works by pricing the bills of quantities or Schedule of Quantities and Rates, as the case may be.;》

and whereas the Architect, as instructed by the Employer, has nominated the Sub-Contractor under clause 29 of the Main Contract Conditions to carry out the Sub-Contract Works and the Sub-Contractor is to be employed by the Contractor as a Nominated Sub-Contractor.;》

and whereas the Sub-Contractor has given both the Contractor and the Architect either:

(a)      a priced copy of the bills of quantities ('the Sub-Contract Bills') or, if bills of quantities are not included with the Tender Documents;

(b)      a Schedule of Quantities and Rates setting out the build up of the Sub-Contract Sum.;》

and whereas the Architect has given each party one copy of the Articles of Agreement, the Appendix, the Sub-Contract Conditions, the Sub-Contract Drawings, the Specification and the Sub-Contract Bills or {a the} Schedule of Quantities and Rates, as the case may be, each signed by or on behalf of the parties.;》

and whereas the Sub-Contractor has had the opportunity of inspecting a copy of the Main Contract except the Contractor's rates and shall be deemed to have full knowledge of all the provisions of the Main Contract.;》

and whereas the Sub-Contractor, if so required by the Sub-Contract, has given a sub-contractor warranty agreement to the Employer in the form set out in the {Sub-}Contract Bills or the Specification or, if not set out in either of those documents, in the form set out in Schedule 2 of the Sub-Contract Conditions.

 

Now it is agreed as follows

Article 1

The Sub-Contractor will carry out and complete the Sub-Contract Works in accordance with and subject to the Sub-Contract and to the Contractor's and the Architect's satisfaction for the consideration stated in Article 2.

Article 2

The Contractor will pay to the Sub-Contractor the sum of Hong Kong Dollars

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(HK$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . )

('the Sub-Contract Sum') {or such other sum that becomes payable in accordance with and subject to the Sub-Contract}.

Article 3

The Architect <alternatively: The Contract Administrator> will be

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

<The term ‘the Architect’ in the Contract shall read ‘the Contract Administrator’.>

# Amend in case of no Architect. #

Article 4

The Quantity Surveyor, if appointed by the Employer will be

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

or, if no Quantity Surveyor is appointed, the duties and responsibilities of the Quantity Surveyor set out in the Sub-Contract Conditions shall be assumed by the Architect <alternatively: the Contract Administrator> and the words {"}Quantity Surveyor{"} in the Sub-Contract Conditions shall be deemed to be read as {"}the Architect{"}.

Article 5

If a dispute arises under or in connection with the Sub-Contract《,》 the parties agree to resolve the dispute in accordance with the dispute settlement procedures in clause 42.

Attestation

*SIGNED AND SEALED as a deed / SIGNED by the Contractor

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(signature of signatory for the Contractor)

. . . . . . . . . . . . . . . . . . . .

(signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (name and office held by signatory for the Contractor)

 

. . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . .

 (name and occupation of witness)

 

(company seal to be impressed here if executed as a deed by a limited company)

*SIGNED AND SEALED as a deed / SIGNED by the Sub-Contractor

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(signature of signatory for the Sub-Contractor)

. . . . . . . . . . . . . . . . . . . .

(signature {and occupation} of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(name and office held by signatory for the Sub-Contractor)

 

. . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . .

 (name and occupation of witness)

 

(company seal to be impressed here if executed as a deed by a limited company)

*delete as applicable

The Sub-Contract General Conditions

1       Interpretation and definitions

Governing law

1.1     The Sub-Contract shall be governed by and construed according to the laws for the time being in force in Hong Kong.

Singular, plural, masculine and feminine

1.2     Words in the singular include the plural and vice versa, and words in the masculine include the feminine and the neuter.

Method of reference to clauses and Articles

1.3     Unless stated otherwise, a reference in the Articles of Agreement, the Sub-Contract Conditions or the Appendix to any clause means that clause of the Sub-Contract Conditions and a reference to an Article means that Article of the Articles of Agreement.

Articles of Agreement, Sub-Contract Conditions and Appendix to be read as a whole

1.4     The Articles of Agreement, the Sub-Contract Conditions and the Appendix are to be read as a whole. Therefore, unless stated otherwise, each one must be read subject to any relevant qualification or modification in any other one.

Clauses divided into sub-clauses to be read as a whole

1.5     Where a clause is divided into sub-clauses, the clause is to be read as a whole, and each sub-clause shall relate to the others as if there was no division between them.

Definitions

1.6     (1)      The following words and phrases in the Articles of Agreement, the Sub-Contract Conditions and the Appendix shall have the meanings given below unless the context in which they appear requires otherwise or the Articles, the Sub-Contract Conditions or an item or entry in the Appendix provides otherwise:

Appendix: the Appendix to the Sub-Contract Conditions.

Architect: the person named as the Architect in the Main Contract Conditions and Article 3, or any successor appointed under the Main Contract Conditions.

Articles or Articles of Agreement: the Articles of Agreement to which the Sub-Contract Conditions are annexed.

Commencement Date: The date stated in the appendix to the Main Contract Conditions for the commencement of the Works.

communication: the giving, submitting or issuing of, without limitation, any agreement, approval, authorisation, certificate, confirmation, consent, decision, delegation, direction, dissent, determination, endorsement, instruction, notice, notification, opinion, request, requirement or statement.

Completion Date: the date stated in the appendix to the Main Contract Conditions by which the Works or a Section are to be completed or such later date to be fixed under clause 25 of the Main Contract Conditions.

Contract Bills: the priced bills of quantities referred to in the third recital of the Main Contract articles of agreement and submitted by the Contractor with his tender, or a certified true copy of those bills of quantities.

Contract Drawings: the drawings referred to in the first and fourth recitals of the Main Contract articles of agreement and enumerated as such in the Contract Bills or the Specification.

Contractor: the person named as the Contractor in the Main Contract Conditions and the Articles.

{Contractor’s Contractors’} All Risks Insurance of the Works: insurance which provides cover against physical loss of or damage to the Works, temporary works and materials and goods, as described in clause 22 of the Main Contract Conditions.

Date for Possession of the Site <alternatively: Date for Entering the Site>: the date or dates for the possession of <alternatively: dates for entering> the whole or parts of the Site stated in the appendix to the Main Contract Conditions.

Date of Substantial Completion: the date stated in the Substantial Completion Certificate for the Works or a Section, issued by the Architect under the Main Contract.

day: a calendar day and includes Sundays and other days which are general holidays by virtue of the General Holidays Ordinance (Chapter 149, Laws of Hong Kong).

Defects Liability Period: the period stated in the appendix to the Main Contract Conditions commencing on the day after the Date of Substantial Completion of the Works or a Section or the day after the Relevant Date of a Relevant Part.

Defects Rectification Certificate: a certificate issued by the Architect to the effect that all defects, shrinkages and other faults have been rectified in accordance with the Main Contract.

direct loss and/or expense: the monetary consequences that flow naturally without other intervening cause and independently of special circumstances because of the direct consequences of a qualifying event and which are not otherwise reimbursed to the Sub-Contractor.

Employer: the person named as the Employer in the Main Contract and the Articles with whom the Contractor has entered into the Main Contract.

Engineer: a person engaged as a member of the Employer's design team for the design and supervision of one or more of the geotechnical, civil, structural or building services elements of the Works, as referred to in clause 1.8.

Excepted Risks:

(a)      Any consequence of war (whether war be declared or not) in which Hong Kong is actively engaged, the invasion of Hong Kong, acts of terrorists in Hong Kong, civil war, rebellion, revolution or military or usurped power in Hong Kong, riot, commotion or disorder in Hong Kong other than amongst the employees of the Contractor {or the Sub-Contractor} or any person for whom the Contractor {or the Sub-Contractor} is responsible;

(b)      the Architect's design of the Works {or the Sub-Contract Works} insofar as damage, loss or injury is the direct consequence of the design;

(c)      a cause due to any neglect or default of the Architect, the Employer or any person for whom the Architect or the Employer is responsible;

(d)      ionizing radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof; and

(e)      pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.

Final Certificate: the certificate issued by the Architect under clause 32.8 of the Main Contract Conditions.

Form of Tender: the form of tender referred to in the second recital of the Articles as being part of the Tender Documents.

Hong Kong: the Hong Kong Special Administrative Region.

Interim Certificate: a certificate issued by the Architect under the Main Contract stating the amount of an interim payment due to the Contractor which may include an amount for the Sub-Contractor.

Limit of Sub-Contract Retention: the amount stated in the Appendix under the reference to clause 33.4 as the limit to the amount of retention to be held by the Employer on the payment for the Sub-Contractor's work in progress.

Main Contract: the Main Contract between the Employer and the Contractor comprising the articles of agreement, appendix, the form of tender submitted by the Contractor, the Employer's letter of acceptance of the Contractor's tender and any correspondence between the Employer and the Contractor forming part of the Main Contract, the Main Contract Conditions, the contract drawings, the specification, the contract bills or schedules of quantities and rates, as the case may be.

Main Contract Conditions: {the articles of agreement,} the conditions {and the appendix} of the edition of the Agreement and Schedule of Conditions of Building Contract for use in the Hong Kong Special Administrative Region which forms part of the Main Contract {and any special conditions}.

parties: the Contractor and the Sub-Contractor.

person: an-individual, firm, partnership or body corporate.

person for whom the Contractor is responsible: the Contractor's servants or agents, sub-contractors, suppliers, persons employed or engaged in connection with the Works and persons who may properly be on the Site upon or in connection with the Works other than the Sub-Contractor and the Employer or any person for whom either the Sub-Contractor or the Employer is responsible.

person for whom the Employer is responsible: the Employer's servants or agents and the persons listed in clause 30.1 of the Main Contract Conditions.

person for whom the Sub-Contractor is responsible: the Sub-Contractor's servants or agents {or any person, sub-sub-contractors, suppliers, or persons} employed by the Sub-Contractor upon or in connection with the Sub-Contract Works.

postpone: to defer the commencement of operations on an activity.

Provisional item: an item of work identified as provisional in the Sub-Contract Bills to be carried out by the Sub-Contractor if instructed to do so by the Architect under clause 13.2 of the Main Contract Conditions.

Provisional Quantities: an estimated quantity of work identified as provisional in the Sub-Contract Bills, where the actual quantity could not be accurately determined when the bills of quantities were prepared, to be carried out by the Sub-Contractor if instructed to do so by the Architect under clause 13.2 of the Main Contract Conditions.

Provisional Sum: a sum provided in the Sub-Contract Bills for work or for costs which could not be entirely foreseen, defined or detailed when the bills of quantities were prepared, to be carried out or paid by the Sub-Contractor if instructed by the Architect under clause 13.2 of the Main Contract Conditions to carry out such work or incur such costs.

Quantity Surveyor: the person named as the Quantity Surveyor in the Main Contract and Article 4, or any successor appointed under the Main Contract Conditions.

Relevant Date: the date upon which the Employer took possession of a Relevant Part under clause 18 of the Main Contract Conditions.

Relevant Part: the part of the Works or part of a Section taken possession of by the Employer under clause 18 of the Main Contract Conditions before Substantial Completion of the Works or that Section.

Schedule of Quantities and Rates: the schedule of quantities and rates referred to in the recitals of the Articles and in clause 1.7(2), prepared by the Sub-Contractor, setting out the build up of the Sub-Contract Sum and submitted with his tender if bills of quantities are hot provided with the Tender Documents, or a certified true copy of this schedule.

Section: a part of the Works for which a separate Completion Date is stated in the Appendix to the Main Contract Conditions where the Main Contract provides for sectional completion of the Works or a part of the Sub-Contract Works being carried out as part of that Section.

Site: the land and other places provided by the Employer for the purpose of carrying out the Works.

Special Condition: a condition of contract expressly referred to as being a Special Condition of Sub-Contract which adds to or amends the Sub-Contract Conditions and is annexed to the Sub-Contract Conditions.

special delivery: a communication which is either delivered by courier or sent by registered post or recorded delivery.

Specialist Contractor: a person, not being a statutory undertaker or utility company as referred to in clause 6.4(1) of the Main Contract Conditions, engaged by the Employer to carry out work directly connected with or ancillary to but not forming part of the Works, as described in clause 30 of the Main Contract Conditions.

Specialist Works: work directly connected with or ancillary to but not forming part of the Works{,} to be carried out by a Specialist Contractor.

Specification: the specification referred to in the second, sixth and eighth recitals of the Articles which describes, without limitation, the types, standards and quality of the materials and goods to be used, the standard and quality of workmanship required, the manner in which work processes are to be carried out, the performance requirements and other matters and things relating to the construction of the Sub-Contract Works.

Specified Perils: fire, lightning, explosion, storm, tropical cyclone, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped from them.

{Standard Conditions of Nominated Sub-Contract: the articles of agreement, the conditions and the appendix of the edition of the Agreement and Schedule of Conditions of Nominated Sub-Contract for use in the Hong Kong Special Administrative Region.}

Sub-Contract: the Articles of Agreement, the Appendix, the Form of Tender submitted by the Sub-Contractor, the Contractor's letter of acceptance of the Sub-Contractor's tender and any correspondence between the parties forming part of the Sub-Contract, the Special Conditions, if any, the Sub-Contract Conditions, the Sub-Contract Drawings, the Specification, the Sub-Contract Bills or the Schedule of Quantities and Rates, as the case may be.

Sub-Contract Bills: the priced bills of quantities referred to in the recitals of the Articles and submitted by the Sub-Contractor with his tender, or a certified true copy of those bills of quantities.

Sub-Contract Completion Date: the date for completion of the Sub-Contract Works or a Section as stated in the Appendix or a later date fixed under clause 25.

Sub-Contract Conditions: {the articles of agreement,} the conditions {and the appendix} of the edition of the Agreement and Schedule of Conditions of Nominated Sub-Contract for use in the Hong Kong Special Administrative Region Region {which forms part of the Sub-Contract} and any Special Conditions.

Sub-Contract Drawings: the drawings referred to in the second and sixth recitals of the Articles and enumerated as such in the Sub-Contract Bills or the Specification.

Sub-Contract Retention: the sum calculated in accordance with clause 33.4 and retained by the Employer from the gross valuation of the Sub-Contractor's work in progress included in an Interim Certificate.

Sub-Contract Retention Percentage: the percentage entered into the Appendix under the reference to clause 33.4, used to calculate the Sub-Contract Retention in accordance with the rules set out in that clause.

Sub-Contract Sum: the sum named in Article 2, or such other sum that becomes payable in accordance with the Sub-Contract.

Sub-Contract Works: the work briefly described in the Articles {of Sub-Contract Agreement} and shown upon, described by or referred to in the Sub-Contract as part of the Works including any change made to the work in accordance with the Sub-Contract.

Sub-Contractor: the person named as the Sub-Contractor in the Articles.

Substantial Completion: the state of completion where the Works or a Section have been substantially completed to the Architect's satisfaction and have passed the required inspections and tests, as referred to in clauses 17 .1 and 17 .2 of the Main Contract Conditions.

Substantial Completion Certificate: a certificate issued by the Architect stating the date when in his opinion the Works or a Section have reached Substantial Completion.

substantially completed: the state of completion where the Sub-Contract Works or a Section may not be absolutely completed or entirely free from defects but have reached the stage where they can be taken over and used by the Employer for their intended purpose and where the unfinished items of work and the remaining defects then patent are only of a minor nature and extent and their completion or rectification will not unreasonably interfere with or interrupt the taking over of the Sub-Contract Works or Section.

suspend: to cease operations for a period of time on an activity in which work has commenced.

Tender Documents: the documents and drawings referred to in the second recital of the Articles, or a certified true copy of those documents and drawings.

Valuation: the valuation made by the Quantity Surveyor in accordance with the valuation rules under clause 13.4 of work carried out in response to an Architect's instruction requiring a Variation, remeasurement of Provisional Quantities and Provisional Items or to expend Provisional Sums.

Variation: a change instructed by the Architect, through the Contractor, to the design, quality or quantity of the Sub-Contract Works including:

(i)      an alteration to the type, standard or quality of any of the materials or goods comprising the Sub-Contract Works;

(ii)      the addition, substitution or omission of work; {and}

(iii)      the removal from the Site of materials or goods and the demolition and removal of work except where provided for in the {Sub-}Contract or where the materials, goods or work are not in accordance with clause 8.1;

{and or} the imposition of an obligation or restriction instructed by the Architect regarding:

(iv)      access to the Site or use of any parts of the Site;

(v)      limitation of working space;

(vi)      limitation of working hours; or

(vii)      the sequence of carrying out or completing work;

or the addition or alteration to or omission of such obligations or restrictions imposed by the Sub-Contract.

Works or Main Contract Works: the work briefly described in the Appendix and the Main Contract Articles of Agreement and shown upon, described by or referred to in the Main Contract including the Sub-Contract Works and including any change made to the work in accordance with the Main Contract.

(2)      Words or phrases not defined in clause 1.6(1) shall have the meanings assigned to them in the Main Contract unless the context in which they appear requires otherwise.

Tenders based on Sub-Contract Bills or Schedules of Quantities and Rates

1.7       (1)      If bills of quantities, referred to as the Sub-Contract Bills in the Articles, are included with the Tender Documents provided to the Sub-Contractor, the quality and quantity of the work included in the Sub-Contract Sum shall, as provided in clause 14, be deemed to be that which is set out in the Sub-Contract Bills.

(2)      If bills of quantities are not included with the Tender Documents:

(a)      the quality and quantity of the work included in the Sub-Contract Sum shall be deemed to be as shown upon the Sub-Contract Drawings and described in the Specification;

(b)      the Sub-Contractor shall calculate his own quantities of the Sub-Contract Work and shall submit, with his tender, a Schedule of Quantities and Rates setting out a build-up of the Sub-Contract Sum;

(c)      the accuracy of the quantities in the Schedule of Quantities and Rates submitted by the Sub-Contractor shall be at the sole risk of the Sub-Contractor and the quantities shall not form part of the Sub-Contract;

(d)      the rates in the Schedule of Quantities and Rates shall form part of the Sub-Contract and shall be used for valuing Variations and estimating interim payments;

(e)      where any item which is required by the Sub-Contract has not been specifically priced in the Schedules of Quantities and Rates, the cost shall be deemed to have been included in the rates for other items; and

(f)      the words 'Sub-Contract Bills' in the Conditions, other than in clause 14, shall be deemed to be read as Schedule of Quantities and Rates.

The role of the Engineer

1.8     (1)      The Architect may, from time to time, delegate any of his duties and powers under the Sub-Contract to an Engineer.

(2)      The delegation shall be in writing and copied to the Sub-Contractor. It shall specify the duties and powers that are delegated and shall remain in force until changed or terminated in writing by the Architect.

(3)      Where in the context of the wording of a clause in the Sub-Contract Conditions or where recognition of the Engineer's statutory responsibility requires it, the word 'Architect' in the Sub-Contract Conditions shall be deemed to be read as 'Engineer'.

Sectional completion of the Works

1.9     (1)      Where sectional completion of the Works is provided for in the Main Contract it shall also apply to the Sub-Contract, and a reference to the Sub-Contract Works shall be deemed to mean the Sub-Contract Works or a Section.

(2)      The phrase 'the whole of the Sub-Contract Works' means the Sub-Contract Works including all Sections.

Communications

1.10     Unless otherwise stated{,} all notices, certificates and other communications under the Sub-Contract between {the Employer,} the Architect, the Quantity Surveyor, the Contractor and the Sub-Contractor shall be in writing.

All communications between the Architect and the Sub-Contractor to be through the Contractor

1.11     (1)      All communications between the Architect and the Sub-Contractor under the Sub-Contract shall be through or made known to the Contractor.

(2)      Where the wording of the Sub-Contract Conditions implies a direct communication this is in the interests of brevity and is to be read as a communication between the Architect and the Sub-Contractor through or made known to the Contractor.

Notices of default or determination to be sent by special delivery

1.12     All notices of default or determination under clauses 36 and 37 shall be sent by special delivery.

Parties to act reasonably {and expeditiously}

1.13   (1)      The parties, the Architect and the Quantity Surveyor shall act reasonably and expeditiously in all matters under the Sub-Contract including, without limitation, giving or withholding consent, approval or agreement{,} valuing Variations and certifying.

(2)      All requirements shall be reasonable requirements and, without limitation, the term 'to the Contractor's and the Architect's satisfaction' shall be construed as meaning to the Contractor's and the Architect's reasonable satisfaction and the term 'practicable' shall mean reasonably practicable.

2       Sub-Contractor to comply with the provisions of the Main Contract that relate to the Sub-Contract

Sub-Contractor to comply with the provisions of the Main Contract that relate to the Sub-Contract

(1)      The Sub-Contractor shall be deemed to have full knowledge of all the provisions of the Main Contract except the Contractor's rates.

(2)      The Sub-Contractor shall observe, perform and comply with all the provisions of the Main Contract which the Contractor has to observe, perform and comply with insofar as they relate to the Sub-Contract Works and are not inconsistent with the provisions of the Sub-Contract as if these provisions were set out in the Sub-Contract Conditions.

(3)      The Sub-Contractor shall indemnify and save harmless the Contractor against and from any breach, non-observance, non-performance or non-compliance by the Sub-Contractor or any person for whom the Sub-Contractor is responsible of any of the provisions of the Main Contract referred to in clause 2(2) which involves the Contractor in any liability under the Main Contract or any other contract in connection with the Works.

(4)      Any loss and/or expense and/or damages incurred by the Contractor under clause 2(3) shall be reimbursed to the Contractor by the Sub-Contractor or shall be recoverable as a debt.

(5)      No amendment made to the terms of the Sub-Contract by the Contractor and the Sub-Contractor shall be valid without the Architect's consent.

3       Sub-Contractor's obligations

Sub-Contractor's obligations

3.1     (1)      The Sub-Contractor shall in compliance with the Sub-Contract:

(a)      organize, manage, plan and supervise the carrying out of the Sub-Contract Works;

(b)      co-ordinate the carrying out of the Sub-Contract Works with the work carried out by {the Contractor's own labour, his} other sub-contractors, Specialist Contractors, statutory undertakers and utility companies;

(c)      design sufficient, safe and adequate temporary works to enable the Sub-Contractor to comply with his other obligations under the Sub-Contract, except where the design of any temporary works is a statutory obligation of any person other than the Sub-Contractor or a person for whom the Sub-Contractor is responsible;

(d)      carry out the design or the development of the design and the selection of materials and goods for the Sub-Contract Works where and to the extent that this is required by the Sub-Contract to be carried out by the Sub-Contractor; {carry out the design of any part of the permanent Works that may be specified in the Sub-Contract;}

(e)      prepare all shop drawings and co-ordination drawings required by the Sub-Contract;{ and}

{(e1)    carry out the maintenance of mechanical and electrical systems where required to do so by the Sub-Contract for the period of time so specified; and}

(f)      carry out the construction of and complete the Sub-Contract Works using materials, goods and workmanship of the types, standards and quality specified in the Sub-Contract.

(2)      Where the Sub-Contract requires the Sub-Contractor to carry out the design or the development of the design of the whole or a part of the Sub-Contract Works, unless the requirement of fitness for purpose is specifically stated, the design or the development of the design shall be carried out with reasonable skill and care.

Sub-Contractor's responsibility

3.2     The Sub-Contractor shall remain wholly responsible for carrying out and completing the Sub-Contract Works in accordance with the Sub-Contract whether or not the Architect or the Architect's representative, if appointed:

(a)      visits the Works or a place where the Sub-Contract materials or goods are being manufactured or stored, work is being prepared or design is being carried out;

(b)      inspects or tests any materials or goods;

(c)      exercises or fails to exercise his powers under clause 8; or

(d)      includes the value of any of the Sub-Contractor's materials, goods or work in an Interim Certificate.

Sub-Contractor's skill and care

3.3     The Sub-Contractor shall exercise in the performance of his obligations under the Sub-Contract all the skill, care and diligence to be expected of a competent sub-contractor experienced in carrying out work of a similar scope, nature and size to the Sub-Contract Works.

Sub-Contractor to {notify inform} Contractor if he finds ambiguities in documents

3.4     (1)      The Sub-Contractor shall immediately inform the Contractor if the Sub-Contractor finds an ambiguity or discrepancy in or divergence between the following documents:

(a)      the Sub-Contract Drawings;

(b)      the Specification;

(c)      the Sub-Contract Bills;

(d)      the descriptive schedules and other similar documents referred to in clause 6.2(d);

(e)      the further drawings, details, descriptive schedules and similar documents referred to in clause 6.3 provided from time to time during the carrying out of the Sub-Contract Works.

(2)      The Contractor shall notify the Architect and shall with the Architect's consent issue an instruction to resolve the ambiguity, discrepancy or divergence as soon as practicable after receipt of the notice from the Sub-Contractor and the instruction shall, if considered appropriate by the Architect, require a Variation.

Sub-Contractor to provide information to the Contractor regarding the master programme

3.5     (1)      The Contractor is required, under clause 3 of the Main Contract Conditions, to submit a master programme, method statement, list of site management personnel and list of plant, equipment and temporary works to the Architect within the time stated in the appendix to the Main Contract Conditions and to regularly update the programme.

(2)      The Sub-Contractor shall provide the Contractor with all the information relating to the Sub-Contract that the Contractor may reasonably require to enable the Contractor to comply with clause 3 of the Main Contract Conditions.

4       Care of the Sub-Contract Works

Contractor to be responsible for the care of the Sub-Contract Works

(1)      The Contractor is required under clause 2.1 of the Main Contract Conditions to be responsible for the care of the Works and shall therefore be responsible for the care of the Sub-Contract Works except for loss or damage arising from the Excepted Risks or breach of contract or other default of the Sub-Contractor or any person for whom the Sub-Contractor is responsible. The period of responsibility is from the Commencement Date until 14 days after Substantial Completion of the Works or 14 days after the determination of the Contractor's employment under the Main Contract, whether valid or not, whichever is earlier《,》 except that the Contractor's responsibility for the care of the Sub-Contract Works shall terminate in relation to a Section or Relevant Part 14 days after the Employer takes possession of that Section or Relevant Part.

(2)      All materials, goods and manufactured components whether stored on or off-site and the plant, tools and equipment belonging to or provided by the Sub-Contractor shall be at the sole risk of the Sub-Contractor except for loss or damage caused by breach of contract or other default of the Contractor or any person for whom the Contractor is responsible.

5       Contractor's instructions

Contractor's instructions

5.1     (1)      The Contractor may issue instructions to the Sub-Contractor that he is empowered to issue under the Sub-Contract Conditions at any time up to the issue of the Final Certificate including during the time that the Sub-Contractor may be carrying out work after the Date of Substantial Completion.

(2)      The Architect may issue instructions to the Contractor that relate to the Sub-Contract Works at any time up to the issue of the Final Certificate but he shall not instruct a Variation after the issue of the Defects Rectification Certificate for the Works, a Section or a Relevant Part, as the case may be.

(3)      Immediately after the Contractor receives an Architect's instruction that relates to the Sub-Contract Works the Contractor shall issue a corresponding instruction to the Sub-Contractor including an instruction that requires a Variation.

Architect to issue instructions to the Sub-Contractor through the Contractor

5.2     (1)      The Architect is required to issue all instructions to the Sub-Contractor through the Contractor.

(2)      The Architect is required to issue all instructions in writing in accordance with clause 4.2 of the Main Contract Conditions. If the Architect gives an oral instruction that the Contractor relays to the Sub-Contractor and the Sub-Contractor believes that the instruction requires a Variation it shall have no effect until confirmed by the Architect.

(3)      The Sub-Contractor shall confirm the oral instruction that he believes requires a Variation in writing to the Contractor within 7 days of it being issued. The Contractor shall follow the confirmation of oral instructions process set out in clause 4.2(1) of the Main Contract Conditions and shall inform the Sub-Contractor in writing whether the Architect has agreed with or dissented to the Sub-Contractor's confirmation of the oral instruction within 1 O days after the Sub-Contractor's confirmation of that instruction.

Compliance with Contractor's instructions

5.3     (1)      Subject to clauses 5.2(2) and 5.3(2), the Sub-Contractor shall comply with all instructions that the Contractor is empowered by the Sub-Contract Conditions to issue as soon as practicable. If there is a disagreement between the Contractor and the Sub-Contractor as to whether an instruction involves a Variation, the Sub-Contractor shall comply with the instruction and may, if he is not satisfied, require the disagreement to be resolved under clause 42.

(2)      If the Sub-Contractor disagrees that the Contractor is empowered by the Sub-Contract Conditions to issue an instruction《,》 he may within 7 days of receipt of that instruction require the disagreement to be resolved under clause 42.

(3)      If the Sub-Contractor does not begin to comply with an instruction within 7 days after receipt of a written notice from the Contractor requiring compliance with that instruction in accordance with clause 5.3(1) and the Architect issues a certificate to that effect by special delivery, the Contractor may, if permitted to do so by the Architect, without prejudice to his other rights and remedies, engage other persons to carry out that instruction. All additional costs incurred by the Contractor in connection with the employment of the other persons to carry out that instruction may be recovered from the Sub-Contractor under clause 41 or as a debt.

(4)      The Sub-Contractor shall provide reasonable access to the persons engaged by the Contractor under clause 5.3(3) and shall permit them to carry out their work without hindrance.

6       Documents forming the Sub-Contract and other documents

The documents forming the Sub-Contract

6.1     (1)      The documents forming the Sub-Contract shall be:

(a)      the Articles of Agreement and the Appendix;

(b)      the Form of Tender submitted by the Sub-Contractor together with the Contractor's letter of acceptance of the Sub-Contractor's tender and any correspondence between the parties expressed to form part of the Sub-Contract;

(c)      the Special Conditions, if any;

(d)      the Sub-Contract Conditions; and

(e)      the Sub-Contract Drawings, the Specification and the Sub-Contract Bills or Schedules of Quantities and Rates, as the case may be.

(2)      The order of precedence of the documents forming the Sub-Contract shall be as listed in paragraphs (a) to (e) above and:

(a)      for the purpose of adjusting the Sub-Contract Sum{,} the Sub-Contract Bills shall take precedence over the Sub-Contract Drawings and the Specification{, and the Specification shall take precedence over the Sub-Contract Drawings unless otherwise stated in the Specification}; but

(b)      for all other purposes including carrying out the construction of and completing the Sub-Contract Works《,》 the Sub-Contract Drawings and the Specification shall take precedence over the Sub-Contract Bills.

(3)      As provided for in clause 1.7(2), the accuracy of the quantities in the Schedule of Quantities and Rates shall be at the Sub-Contractor's risk. The quantities shall not form part of the Sub-Contract but the rates shall form part of the Sub-Contract.

Copies of documents for Sub-Contractor

6.2     As soon as practicable after the acceptance of the Sub-Contractor's tender the Architect shall provide the Sub-Contractor, without charge, with:

(a)      1 certified true copy of each of the documents forming the Sub-Contract;

(b)      2 further copies of the Sub-Contract Drawings and the Specification;

(c)      2 copies of the unpriced bills of quantities; and

(d)      2 copies of any descriptive schedules or similar documents prepared by or under the direction of the Architect before the acceptance of the Sub-Contractor's tender and necessary for use in carrying out the Sub-Contract Works.

Further drawings, details, descriptive schedules and similar documents

6.3     (1)      The Architect shall provide the Sub-Contractor, through the Contractor, without charge, and from time to time during the carrying out of the Sub-Contract Works, with 2 copies of all further drawings, details; descriptive schedules or similar documents (referred to in clause 6 as 'the supplementary documentation') that, in the Architect's opinion, are reasonably necessary for use in carrying out the Sub-Contract Works, or to explain or amplify the Sub-Contract Drawings.

(2)      If in the Sub-Contractor's opinion he requires more supplementary documentation· than that provided by the Architect under clause 6.3(1)《,》 he shall submit a written request to the Architect through the Contractor specifying what further supplementary documentation he requires.

(3)      It shall be at the sole discretion of the Architect to decide which, if any, of the supplementary documentation requested by the Sub-Contractor the Architect will provide.

Documents to be provided to Sub-Contractor on time

6.4     (1)      The supplementary documentation referred to in clause 6.3 shall be provided when, having regard to the progress of the Sub-Contract Works and the Sub-Contractor's procurement, fabrication and other lead in times, it is reasonably necessary for the Sub-Contractor to receive it.

(2)      The Sub-Contractor shall inform the Architect through the Contractor sufficiently in advance of the time that he requires the supplementary information to enable the Architect to fulfil his obligations under clause 6.4(1).

Electronic copies of drawings

6.5     If, within 14 days after the acceptance of the Sub-Contractor's tender, the Sub-Contractor requests the Architect, through the Contractor, in writing to do so, the Architect shall provide the Sub-Contractor, without charge, with electronic copies of all of the drawings required to be provided under clauses 6.2 and 6.3 that have been produced electronically in lieu of the hard copies referred to in those clauses.

Return of drawings

6.6     The Sub-Contractor shall return to the Architect, through the Contractor, alt drawings, specifications, details, descriptive schedules and similar documents provided under clause 6, if required by the Architect to do so, either upon the issue of the Final Certificate or the final conclusion of any proceedings to which the Sub-Contractor is a party whichever is later and the Sub-Contractor may take copies for his own records.

Submission of manuals and assignment of warranties

6. 7     (1)      The Sub-Contractor shall submit to the Contractor all the operation and maintenance manuals{ prepared by or} received by the Sub-Contractor for the Sub-Contract Works{ within 60 days after the issue of the Substantial Completion Certificate for the Works or a Section as the case may be}.

(2)      The Sub-Contractor shall assign to the Employer through the Contractor (so far as he is lawfully able to do so) the benefits of all suppliers' and sub-sub-contractors' warranties, guarantees or other ancillary agreements for materials, goods or work relating to the Sub-Contract Works insofar as they are required by the Sub-Contract, within 50 days after the issue of the Substantial Completion Certificate for the{ the whole of} the Works{ or a Section as the case may be}.

Submission of as-built drawings

6.8     (1)      The Sub-Contractor shall submit to the Contractor 2 copies of a complete set of the as-built drawings that are required by the Sub-Contract within 50 days of the issue of the Substantial Completion Certificate for{ the whole of} the Works{ or a Section as the case may be}.

(2)      Where the drawings referred to under clauses 6.2 and 6.3 have been issued electronically, the Sub-Contractor shall, if required by the Contractor, provide the as-built drawings electronically.

Limit to use of documents

6.9     The Sub-Contractor shall not use any of the documents referred to in clause 6 for any purpose other than the Sub-Contract Works and any proceedings relating to the Sub-Contract.

Issue of Architect's certificates

6.10     The Architect shall issue all certificates { either} to {the Employer or } the Contractor and shall, at the same time, issue a copy of each certificate to the Sub-Contractor.

Copy of notice to be given to Architect

6.11     Whenever the Contractor or Sub-Contractor issues a notice to the other by special delivery《,》 he shall issue a copy of the notice to the Architect at the same time.

7       Statutory obligations

Statutory Requirements

7.1     The Sub-Contractor shall comply with and give the notices required by any Ordinance, regulation, rule, order or by-law applicable to the Sub-Contract Works ('the Statutory Requirements') which are to be complied with by the Sub-Contractor.

Compliance with the Statutory Requirements

7.2     (1)      The Sub-Contractor shall immediately notify the Contractor if the Sub-Contractor finds that carrying out the Sub-Contract Works in compliance with the Sub-Contract or with an Architect's instruction requiring a Variation will infringe the Statutory Requirements.

(2)      If the Contractor agrees with the Sub-Contractor, the Contractor shall, with the Architect's consent, issue an instruction to resolve the infringement as soon as practicable after receipt of the notice and the instruction shall, if considered appropriate by the Architect, require a Variation.

{Fees or charges

7.3     (1)      The Sub-Contractor shall pay all fees or charges legally demandable upon him under the Statutory Requirements.

(2)      The net amount of those fees or charges paid by the Sub-Contractor shall be added to the Sub-Contract Sum unless they:

(a)      are fees or charges that the Sub-Contractor is liable to pay under the Statutory Requirements irrespective of any changes to the Statutory Requirements after the date for submission of tenders;

(b)      are priced, or are required to be allowed for, in the Sub-Contract Bills;

(c)      are provided for by a Provisional Sum; or

(d)      arise out of a default, delay or failure by the Sub-Contractor or a sub-sub-contractor to comply with the Statutory Requirements or the Sub-Contract.}

8       Materials, goods, workmanship and work

Types, standards and quality

8.1     (1)      The Sub-Contractor must provide all materials and goods of the types, standards and quality described in the Sub-Contract to the Contractor's and the Architect's satisfaction that the Sub-Contractor has met these requirements.

(2)      Where the Sub-Contractor is responsible for the selection of the materials and goods in accordance with a performance specification or otherwise, the materials and goods must be fit for the purpose stated in the Sub-Contract.

(3)      If any of the specified materials or goods are not procurable, then the Sub-Contractor shall submit alternative proposals for materials or goods of similar type and standard and of comparable quality and price to the Contractor for him to obtain the Architect's approval; and

(a)      if the proposed alternative materials or goods are of similar type and standard and of comparable quality and price to those specified, the Contractor shall seek the Architect's approval to the substitution of the alternative materials or goods for those specified with no adjustment to the Sub-Contract Sum; or

(b)      if the proposed alternative materials or goods are not of similar type and standard or comparable quality or price to those specified, and {if the Contractor obtains the Architect's approval} the Architect {approves them, he} shall instruct a Variation to adjust the type, standard, quality or price.

(4)      The Sub-Contractor shall provide the Contractor, upon his request, with vouchers, test certificates or other evidence to satisfy the Contractor and the Architect that the materials and goods comply with the Sub-Contract.

(5)      The Sub-Contractor's workmanship must be of the standard and quality described in the Sub-Contract to the Contractor's and the Architect's satisfaction.

(6)      All work must be carried out in a proper and workmanlike manner in accordance with the Sub-Contract or, in the absence of any specific performance requirements, to the Contractor's and the Architect's satisfaction.

Inspection and tests

8.2     (1)      The Sub-Contractor shall carry out or, if so required by the Sub-Contract, arrange for a third party to carry out, the tests specified in the Sub-Contract in compliance with the specified testing procedures. {Unless a different period is specified in the Sub-Contract, the Sub-Contractor shall notify the Architect in writing before concealed work is covered up and give him at least 2 full days’ notice to inspect it.}

(2)      In addition to the tests specified in the Sub-Contract, the Architect may instruct the Sub-Contractor to open up for inspection any work covered up and to carry out, or arrange for a third party to carry out, tests of materials or goods (whether or not already incorporated in the Sub-Contract Works) and work which has been carried out.

(3)      The cost of the testing, the opening up for inspection and any consequential making good shall be added to the Sub-Contract Sum unless:

(a)      the inspection or test is provided for in the Sub-Contract Bills or Specification if there are no Sub-Contract Bills;

(b)      the inspection or test shows that the materials, goods, workmanship or work are not in accordance with clause 8;

(c)      the inspection or test was considered necessary by the Architect because, as a result of the failure of a previous inspection or test, further investigation of similar materials, goods or work was required to establish to his satisfaction their compliance with clause 8; or

(d)      the work was carried out without the inspection notice required by the Sub-Contract{ or was carried out in a recklessly non-conforming manner}.

Materials, goods, workmanship or work not in accordance with Sub-Contract

8.3     The Architect may, if any materials, goods, workmanship or work are not in accordance with the Sub-Contract, instruct:

(a)      the removal from the Site and the replacement of materials and goods that are not in accordance with clause 8;

(b)      the repair or demolition, removal and reconstruction of any work which, in respect of materials, goods or workmanship, is not in accordance with clause 8;

(c)      the acceptance, without replacement or reconstruction, of some or all of the materials, goods or work that are not in accordance with clause 8, subject to a reasonable reduction in the Sub-Contract Sum having regard to the reduction in the value of the materials, goods or work; and

(d)      a Variation for alternative remedial work to some or all of the materials, goods or work as is reasonably necessary in consequence of them not being in accordance with clause 8, with no extension of time or addition to the Sub-Contract Sum.

Sub-Contractor to be reimbursed by Contractor for abortive work

8.4     Where compliance by the Contractor with an Architect's instruction under clause 8.3 of the Main Contract Conditions to demolish, remove and reconstruct any defective work results in disturbance to the Sub-Contract Works:

(a)      the Sub-Contractor shall, if so instructed by the Contractor, take down and reconstruct Sub-Contract work that had been properly carried out and refix, repair or resupply materials or goods that had been properly fixed;

(b)      the Contractor shall reimburse the Sub-Contractor for the cost incurred by the Sub-Contractor in carrying out the abortive work by a fair valuation; and

(c)      the payment to the Sub-Contractor shall not be added to the Sub-Contract Sum.

Sub-Contractor to reimburse Contractor for costs caused by Sub-Contractor

8.5     The Sub-Contractor shall reimburse the Contractor for the cost incurred by the Contractor due to the rectification of the Sub-Contractor's own defective work by the Sub-Contractor  {or due to the Sub-Contractor’s failure to rectify}.

Rectifying defects

8.6     The Architect may instruct the Sub-Contractor to rectify defects which appear before the commencement of the Defects Liability Period.

Dismissal from the Sub-Contract Works

8.7     The Contractor may instruct the Sub-Contractor to dismiss any individual from the Sub-Contract Works for incompetence, misconduct or other similar reasons.

9       Intellectual property rights

Treatment of royalties

9.1     The Sub-Contractor shall pay the cost of any royalty, license fee or other sum legally demandable for the use of intellectual property in connection with the design of the Sub-Contract Works {for which the Sub-Contractor is responsible} and the incorporation of materials and goods, other than materials and goods supplied by a Nominated Supplier, into the permanent Sub-Contract Works and{;}

{(a)      if the design of the Sub-Contract Works and/or the selection of the materials and goods was carried out by the Sub-Contractor} the cost shall be deemed to have been included in the Sub-Contract Sum{; but unless}

{(b)      if} the design of the permanent Sub-Contract Works and/or the selection of the materials and goods was carried out by others {for whom the Employer is responsible, then} the cost shall be added to the Sub-Contract Sum.

Payment of royalties included in Valuation

9.2     If the Sub-Contractor uses any intellectual property in compliance with an Architect's instruction requiring a Variation, any royalty, license fee or other sum legally chargeable which the Sub-Contractor pays in connection with that instruction shall be included in the Valuation of the Variation.

10     Sub-Contractor's site management team

Sub-Contractor's site management team

(1)      The Sub-Contractor shall maintain an experienced and competent site management and supervisory team ('the team') on the Site for as long as is necessary for the satisfactory fulfilment of his obligations under the Sub-Contract.

(2)      The team shall be headed by an experienced and competent site manager approved by the Contractor and shall be of sufficient strength with personnel of appropriate qualifications, seniority and experience, having regard to the size, complexity and nature of the Sub-Contract Works, to {properly} organise, manage, plan, supervise and co-ordinate the carrying out of the Sub-Contract Works.

(3)      An instruction issued by the Contractor to the site manager shall be deemed to have been issued to the Sub-Contractor.

(4)      The Contractor may instruct the Sub-Contractor to replace the site manager or a member of the team for incompetence or misconduct.

(5)      The Sub-Contractor shall not remove or replace the site manager or any member of the team unless requested by or agreed to by the Contractor.

11     Access for Contractor and Architect to the Sub-Contract Works

Sub-Contractor to give access

The Sub-Contractor shall give the Contractor and the Architect and any person authorised by any of them access, at all reasonable times, to the Sub-Contract Works or any place where materials or goods are being manufactured or stored, work is being prepared or design is being carried out for the Sub-Contract Works.

12     Architect's representative

Architect's representative

(1)      Under clause 12 of the Main Contract Conditions the Architect and/or the Employer may appoint an architect, engineer, clerk of works or other person as the Architect's representative to be resident on the Site acting under the direction of the Architect, and his duties and powers are defined in that clause.

(2)      The Sub-Contractor shall give the Architect's representative every reasonable facility for the performance of these duties in connection with the Sub-Contract Works.

13     Variations, Provisional Quantities, Provisional Items and Provisional Sums

Architect's authority to issue instructions requiring a Variation

13.1     (1)      The Architect may issue an instruction requiring a Variation to the Sub-Contractor provided that:

(a)      the instruction is issued to the Sub-Contractor through the Contractor;

(b)      the Sub-Contractor has the right of reasonable objection to a Variation which imposes or changes an obligation or restriction on the Sub-Contractor regarding access to the Site, use of any part of the Site or limitation of working space or working hours and the Architect shall, upon receipt of the objection, either confirm or withdraw the instruction and if the instruction is confirmed, the Sub-Contractor may refer the matter to arbitration under clause 42; and

(c)      the Sub-Contractor's written consent is given to an instruction omitting work included in the Sub-Contract which is to be carried out by the Sub-Contractor in order for it to be carried out by others.

(2)      An instruction requiring a Variation shall describe the change required to the design, quality or quantity of the Sub-Contract Works or the imposition of or change to any obligation or restriction on the Sub-Contractor and where appropriate the Architect shall issue revised drawings and/or schedules.

{(3)    The Sub-Contractor has no right to carry out work involving a Variation without a written instruction from the Architect or confirmation of an oral instruction from the Architect or confirmation of an oral instruction from the Sub-Contractor except in the event of an emergency as provided for in clause 4.4 of the Main Contract Conditions.}

Instructions for Provisional Quantities and Provisional Sums

13.2     The Architect shall issue an instruction under clause 13.2 of the Main Contract Conditions through the Contractor for:

(a)      the carrying out of work {or the provision of goods} covered by Provisional Quantities or Provisional Items in the Sub-Contract; and

(b)      the expenditure of Provisional Sums included in the Sub-Contract.

Valuation of Sub-Contractor's work

13.3     The Quantity Surveyor shall measure and value work carried out by the Sub-Contractor in response to an Architect's instruction under:

(a)      clause 13.1 requiring a Variation;

(b)      clause 13.2(a) of the Main Contract Conditions for the remeasurement of Provisional Quantities and Provisional Items in the Sub-Contract; and

(c)      clause 13.3(b) of the Main Contract Conditions to expend a Provisional Sum included in the Sub-Contract,

and the Valuation shall be made in accordance with the rules set out in clause 13.4.

Valuation rules

13.4     (1)      Where the Valuation relates to the carrying out of:

(a)      additional or substituted work which can be properly valued by measurement;

(b)      work which is the subject of Provisional Quantities or Provisional Items; or

(c)      work involved in the expenditure of a Provisional Sum,

the work shall be measured and shall be valued in accordance with the following rules:

(i)      where the work is the same as or similar in character to and is carried out under the same or similar conditions to work priced in the Sub-Contract Bills, and the Variation does not substantially change the quantity of that work, the rates in the Sub-Contract Bills for that work shall determine the Valuation;

(ii)      where the work is the same as or similar in character to work priced in the Sub-Contract Bills but is not carried out under the same or similar conditions, or the Variation substantially changes the quantity of that work, the rates in the Sub-Contract Bills for that work shall determine the Valuation but with a fair adjustment for the difference in conditions or quantity;

(iii)      where the work is not the same as or similar in character to any work priced in the Sub-Contract Bills《,》 the work shall be valued at fair rates; and

(iv)      the word 'conditions' in clause 13.4(1) shall mean physical conditions and not financial conditions.

(2)      Where the Valuation relates to work which cannot be properly measured and valued under clause 13.4(1) the work may, with the prior consent {that of} the Contractor with the Architect's approval, be carried out as daywork and provided that the Sub-Contractor:

(a)      gives at least 7 days' notice to the Architect through the Contractor before carrying out the work, or where the work is required urgently, as much prior notice as practicable; and

(b)      submits vouchers specifying the time spent daily carrying out the work, the {workmens' workmen's} names, the materials and goods and the plant and equipment employed to the Contractor for verification by the Architect within 14 days of the work being carried out,

the work shall be valued at prime cost comprising labour, materials, goods, plant and equipment plus overheads and profit; and:

(c)      priced at the daywork rates in the Sub-Contract Bills; or

(d)      where there are no daywork rates in the Sub-Contract Bills, priced at:

(i)      the labour rates contained in the record of Average Daily Wages of Workers Engaged in {Government Building and Public Sector} Construction Projects published by the Census and Statistics Department of the Government of the Hong Kong Special Administrative Region current at the date when the work is carried out;

(ii)      the net cost of materials and goods plus the cost of packing, carriage and delivery;

(iii)      the cost of hiring plant and equipment specifically provided for the work together with the cost of transportation, fuel, maintenance and insurance; and

(iv)      the percentages for overheads and profit on the prime cost of the labour, materials, goods, plant and equipment that are included in the Sub-Contract Bills or, where no such percentages are included in the Sub-Contract Bills, at 15 percent.

(3)      Where the Valuation relates to the omission of work included in the Sub-Contract Bills:

(a)      the rates for the work in the Sub-Contract Bills shall determine the Valuation of the work omitted; and

(b)      if, in the Quantity Surveyor's opinion, the Sub-Contractor has reasonably incurred expense which has become wholly or partly unnecessary as a result of the omission of the work, a fair adjustment shall be made to the Valuation in respect of that expense.

(4)      Where the Valuation does not relate to additional or substituted work or the omission of work but relates only to other matters not involving measured work such as the imposition of or change to an obligation or restriction and the rules in clauses 13.4(1 ), 13.4(2) or 13.4(3) cannot reasonably be applied《,》 a fair valuation shall be made.

(5)      An appropriate allowance shall be made in any Valuation under clause 13.4 for any percentage {or lump sum} adjustment made to the Sub-Contract Bills.

(6)      lf compliance with a Variation instructed under clause 13.1 or a deemed Variation under clause 14.3 substantially changes the conditions under which other work comprising part of the Sub-Contract Works is carried out, and results in the rates in the Sub-Contract Bills for this work becoming unreasonable or inapplicable, then new rates shall be determined based upon the Sub-Contract rates adjusted by a fair allowance for the difference in the conditions.

(7)      In addition to the Valuation by daywork under clause 13.4(2) of work which cannot be properly measured and valued under clause 13.4(1)《,》 the Contractor, with the approval of the Architect, may instruct the Sub-Contractor, with the Sub-Contractor's agreement, to carry out any other work, including work which can be properly measured and valued under clause 13.4(1 ), to be valued in accordance with clause 13.4(2).

(8)      If the Architect instructs a Variation for additional work after Substantial Completion, clause 13.4(1) shall not apply and a fair valuation shall be made.

(9)      No allowance is to be made under clause 13.4 for direct loss and/or expense due to delay to the progress of the Works, disruption, or any other cause for which the Sub-Contractor can be reimbursed by payment under any other provision of the Sub-Contract Conditions.

Adjustment of Sub-Contract Sum

13.5     Effect shall be given to a Valuation under clause 13.3 by adjustment of the Sub-Contract Sum.

Sub-Contractor's right to be present during measurement on Site

13.6     Where it is necessary to measure work on the Site for a Valuation, the Quantity Surveyor shall give the Sub-Contractor an opportunity to be present and to take his own measurements.

Variation necessitated by fault of Sub-Contractor

13.7     If and to the extent that the issue of an instruction requiring a Variation arose as a result of a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible《,》 the Quantity Surveyor shall take the effect of the breach or default into account in the Valuation of the Variation.

{Sub-Contractor’s estimate before formal instruction

13.8    Before issuing an instruction pursuant to clause 13.1 or 13.2, the Architect may request the Sub-Contractor to submit a detailed estimate of the cost and time effects of the proposed instruction and the Sub-Contractor shall comply with the request. The subsequent issue of the instruction by the Architect shall not be construed as acceptance of the estimate unless specifically so stated in the instruction. The acceptance of such estimate shall not be a prerequisite to the execution of the instruction by the Sub-Contractor.}

{Sub-Contractor’s proposal

13.9    Any proposal made by the Sub-Contractor and approved by the Architect shall be deemed to have no cost or time effect on the Sub-Contract unless the Sub-Contractor expressly states that there should be cost or time effect when submitting the proposal and the Architect confirms in writing to treat this proposal as a Variation when accepting the proposal.}

14     Sub-Contract Bills

Quality and quantity of work included in Sub-Contract Sum

14.1     The quality and quantity of the work included in the Sub-Contract Sum stated in Article 2 shall be deemed to be that which is set out in the Sub-Contract Bills which shall be read in conjunction with the Specification {and the Sub-Contract Drawings} to amplify and supplement the descriptions in the Sub-Contract Bills.

Standard Method of Measurement of Building Works

14.2   (1)      The Sub-Contract Bills, except where expressly stated to the contrary in those bills, have been prepared in accordance with the procedures set out in the Hong Kong Standard Method of Measurement of Building Works current at the time the Tender Documents were issued.

(2)      Any departure from the Standard Method of Measurement of Building Works in measuring any work shall be specifically stated in the 'preliminaries' or 'preambles' sections of the Sub-Contract Bills {or in the description of the applicable items in the Sub-Contract Bills} and the same method as used to measure that work shall be used for the measurement of any similar work that may be required to be measured and valued under clause 13.

Errors in Sub-Contract Bills

14.3   (1)      An error in description or in quantity {in} or omission of an item from the Sub-Contract Bills shall not vitiate the Sub-Contract nor release the Sub-Contractor from any of his obligations or liabilities.

(2)      The error in quantity or omission referred to in clause 14.3(1) shall be corrected and shall, for the sole purpose of adjusting the Sub-Contract Sum, be deemed to be a Variation required by the Architect and valued in accordance with the Variation rules under clause 13.4.

(3)      An error in description of an item shall be corrected, and, if in the Quantity Surveyor's opinion, the rate for that item in the Sub-Contract Bills is no longer fair by reason of that correction, the Quantity Surveyor shall fix a new rate that is fair to both parties and the Employer.

{Lump sum prices based on Sub-Contract Drawings and Specification only

14.4   (1)      Where a lump sum price for an item or section of work included in the Sub-Contract Bills was priced based on the Sub-Contract Drawings and the Specification only without further detailed bills of quantities provided to the Sub-Contractor or was priced based on bills of quantities which quantities were agreed not to form part of the Sub-Contract, the quality and quantity of the work included in the lump sum price shall be deemed to be that which is shown on the Sub-Contract Drawings or described in the Specification. The order of precedence of the documents shall be subject to the same rules as stated in clause 6.1. Any error in the Sub-Contract Drawings and/or the Specification shall be subject to the same rules as stated in clause 14.3 with the words “the Sub-Contract Bills” substituted by “the Sub-Contract Drawings and/or the Specification”.

(2)      Where a schedule of quantities and rates showing the build-up of a lump sum price has been submitted by the Sub-Contractor and accepted by the Architect, the rates in the schedule shall be used in the valuation of Variations to the work covered by the lump sum price. The quantities in the schedule shall not form part of the Sub-Contract.}

15     Sub-Contract Sum

Adjustment of Sub-Contract Sum

(1)      The Sub-Contract Sum stated in Article 2 shall only be adjusted in accordance with the Sub-Contract and as soon as the amount of the adjustment is calculated in whole or in part, the Contractor shall include the amount so calculated in his next submission under clause 32.1 of the Main Contract Conditions for it to be taken into account in the next Interim Certificate following the calculation.

(2)      Subject to clause 14.3 the parties are deemed to have accepted any error whether of arithmetic or not in the calculation of the Sub-Contract Sum named in Article 2.

16     Materials and goods for the Sub-Contract Works on or off-site

Materials and goods on or off-site

(1)      Materials and goods for the Sub-Contract Works delivered to or adjacent to the Site shall not be removed without the consent of the Contractor as approved by the Architect. If they have become the property of the Contractor, the Sub-Contractor shall remain responsible for loss or damage to them except to the extent that the loss or damage is due to an act or neglect of the Contractor or any person for whom the Contractor is responsible.

(2)      The Sub-Contractor shall indemnify the Contractor against loss or damage to materials and goods stored off-site that have become the property of the Contractor, shall be responsible for the cost of their storage, handling and insurance and shall not remove them from where they are being stored except for use upon the Sub-Contract Works.

{(3)    Materials and goods delivered to or adjacent to the Site or stored off-site shall become the property of the Contractor once their value has been paid for or accounted for by the Contractor.}

17     Substantial Completion and defects liability

Substantial Completion of Sub-Contract Works to be completed by the Sub-Contract Completion Date

17.1     (1)      If it is stated in the Appendix that the Sub-Contract Works are to be carried out within a set period of time and completed by the Sub-Contract Completion Date:

(a)      the Sub-Contractor shall notify the Contractor when the Sub-Contract Works are substantially complete;

(b)      the Contractor shall immediately submit the Sub-Contractor's notice to the Architect;

(c)      the Architect shall issue the Substantial Completion Certificate for the Sub-Contract Works to the Contractor with a copy to the Sub-Contractor when he is satisfied that the Sub-Contract Works have been substantially completed and have passed the inspections and tests that are required by the Sub-Contract to be carried out and completed before Substantial Completion and all unfinished items of work shall be completed as soon as practicable after the issue of the Substantial Completion Certificate, or as instructed by the Contractor, and in any case before the expiry of the Defects Liability Period; and

(d)      the Defects Liability Period shall be as stated in the appendix to the Main Contract Conditions.

(2)      Where clause 18 applies, Substantial Completion of the Sub-Contract Works in a Relevant Part shall be deemed to have occurred on the Relevant Date.

(3)      If sectional completion of the Works is provided for in the Main Contract the Architect is required to issue a separate Substantial Completion Certificate upon Substantial Completion of each Section and the whole of the Works and, in a similar manner, the Architect is required to issue a separate Substantial Completion Certificate for each Section and the whole of the Sub-Contract Works.

Substantial Completion of Sub-Contract Works to be completed at the same time as the Works

17.2     If it is stated in the Appendix that the Sub-Contract Works are to be carried out and completed at the same time as the Works, Substantial Completion of the Sub-Contract Works shall be deemed to have taken place on the date stated in the Substantial Completion Certificate for the Works or any Section or on the Relevant Date and the Architect shall issue a copy of the Substantial Completion Certificate to the Sub-Contractor.

Sub-Contractor to leave Sub-Contract Works clean and tidy

17.3     (1)      The Sub-Contractor shall upon Substantial Completion clear up and leave the Sub-Contract Works and all areas made available to him clean and tidy to the Contractor's satisfaction.

(2)      If the Sub-Contract Works are substantially complete under clauses 17.1 and 17.2 before the Main Contract Works, the Sub-Contractor shall maintain the Sub-Contract Works up until completion of the Main Contract Works except and to the extent of damage caused by the Contractor or any person for whom the Contractor is responsible.

Rectifying defects

17.4     (1)      The Sub-Contractor shall rectify all defects, shrinkages, or other faults in the Sub-Contract Works {collectively "the defects" in clauses 17.4 to 17.7} which are identified during the Defects Liability Period of the Works, a Section or a Relevant Part stated in the appendix to the Main Contract Conditions and are caused either by materials, goods or workmanship which are not in accordance with clause 8, {or} by natural causes or as a result of a Specified Peril occurring during the construction period prior to Substantial Completion.

(2)      The Sub-Contractor shall rectify the defects specified in the schedules of defects issued by the Architect under clause 17.3(2) of the Main Contract Conditions in accordance with the directions of the Contractor and to the Architect's satisfaction within a reasonable time after receipt of those schedules.

(3)      If the Sub-Contractor does not comply with the requirements of clause 17.4(2) and rectify the defects listed in the schedules of defects within a reasonable time《,》 the provisions of clauses 5.3(3) and 5.3(4) shall apply.

(4)      Where under clause 17.3(5) of the Main Contract Conditions the Architect has instructed the Contractor not to rectify some or all of the defects in the Works and a reduction has been made to the Main Contract contract sum for the defects that were not rectified then to the extent that the reduction is relevant to the Sub-Contract Works a proportional share shall be borne by the Sub-Contractor and may be deducted by the Contractor from any monies due or to become due to the Sub-Contractor or may be recoverable as a debt.

Defects Rectification Certificate for the Works

17.5     (1)      The Architect is required to issue the Defects Rectification Certificate under clause 17.4 of the Main Contract Conditions when the requirements of that clause have been fulfilled.

(2)      Where sectional completion of the Works is provided for in the Main Contract or the Employer takes possession of a Relevant Part, the Architect is required to issue separate Defects Rectification Certificates for each Section, Relevant Part and the whole of the Works.

Damage by a Specified Peril

17.6     The Sub-Contractor is not required to rectify at his own cost any damage caused by a Specified Peril occurring after Substantial Completion{, unless the Peril is caused by materials, goods or workmanship which are not in accordance with the Sub-Contract}.

Other rights and remedies

17. 7   The issue of a Defects Rectification Certificate for the whole of the Works shall discharge the Sub-Contractor from any further obligation to carry out the work of rectifying defects on the Site (except for the fulfilment of his obligations under a warranty) but it shall not prejudice the Contractor's other rights and remedies under the Sub-Contract or at law regarding defective work or other breaches of contract.

18     Partial possession by Employer

Partial possession

(1)      Under clause 18 of the Main Contract Conditions the Employer may, with the Contractor's consent, take possession of a part of the Works or where sectional completion is provided for in the Main Contract a part of a Section before Substantial Completion, and that part of the Works or part of a Section shall be referred to as the Relevant Part.

(2)      If the Employer takes possession of a part of the Works or a part of a Section under clause 18 of the Main Contract Conditions the Architect is required to issue a certificate to that effect

(a)      identifying the Relevant Part {being} taken into possession;

(b)      giving the Relevant Date when the Employer took possession of the Relevant Part; and

(c)      stating his assessment of the estimated amount contained in the {Contract Sum Main Contract sum}, in respect of the Relevant Part for the purposes of reducing the amount of liquidated and ascertained damages that may be payable for the Works or a Section under clause 24 of the Main Contract Conditions.

(3)      Substantial Completion of the Relevant Part will be deemed to have occurred on the Relevant Date and the following will take effect:

(a)      the commencement of the Defects Liability Period {with the length of time unchanged for that Relevant Part} and the rectification of defects under clause 17;

(b)      the exemption from liability for damage by a Specified Peril under clause 17 .6;

(c)      the release of one-half of the Retention {relating to that Relevant Part} under clause 33.5; and

(d)      the Architect will issue a Defects Rectification Certificate for the Relevant Part upon the completion of rectifying defects to that part.

(4)      Where the Sub-Contract Works are part of the Works or part of the Section taken possession of by the Employer under clause 18 of the Main Contract Conditions the provisions of that clause shall apply to the Sub-Contract Works.

(5)      The Sub-Contractor is not required to rectify at his own cost any damage to the Relevant Part caused by a Specified Peril occurring after the Relevant Date.

19     Assignment and sub-letting

Sub-Contractor not to assign the Sub-Contract without consent

19.1     The Sub-Contractor shall not assign or transfer any of his rights or obligations under the Sub-Contract without the written consent of the Contractor and approval by the Architect.

Sub-letting

19.2   The Sub-Contractor shall be permitted, unless prohibited by the Sub-Contract, to sub­let parts of the Sub-Contract Works provided that:

(a)      he does not sub-let the whole of the Sub-Contract Works or incrementally sub-lets parts of the Sub-Contract Works to the same person to indirectly attain sub-letting of the whole, or substantially the whole, of the Sub-Contract Works and retains his management role of the Sub-Contract Works and completely fulfils his obligations as the Sub-Contractor under clause 3.1 (1) at all times;

(b)      the terms of the agreement to sub-let are, so far as is reasonable, consistent with the terms of the Main Contract and Sub-Contract{, and contain a condition that the employment of the sub-sub-contractor under the sub-sub-contract shall determine immediately upon the determination (for any reason) of the Sub-Contractor's employment under this Sub-Contract};

(c)      he submits a plan of his sub-sub-contracting arrangement giving the names of his key sub-sub-contractors with their scope of work and such other particulars as may be required by the Contractor{.;}

(d)      he does not sub-let any part of the Sub-Contract Works to a sub-sub-contractor against whom the Contractor has made an objection giving his reasons;

(e)      he removes from the Sub-Contract Works any sub-sub-contractor he is instructed by the Contractor to remove; and

(f)      the sub-letting of a part of the Sub-Contract Works does not relieve the Sub-Contractor from any liability or obligation under the Sub-Contract and he remains responsible for designing to the extent required by the Sub-Contract, for carrying out and completing the Sub-Contract Works in all respects in accordance with the Sub-Contract and for the acts, defaults, omissions and neglect of all sub-Sub-Contractors of any tier as fully as if they were his own acts, defaults, omissions or neglect.

Sub-Contractor not to object to assignment of Sub-Contract to Employer

19.3   The Sub-Contractor shall not object and shall do all things necessary to facilitate the assignment of the Sub-Contract to the Employer, if the Contractor is required to do so by the Employer, upon the determination of the Contractor's employment under the Main Contract.

20    Injury to persons and property and indemnity to Contractor

Sub-Contractor to indemnify Contractor

The Sub-Contractor shall be liable for and shall indemnify the Contractor against any damage, expense, liability or loss in respect of any claim or proceedings for:

(a)      bodily injury to, disease contracted by or the death of any person arising out of, or in the course of, or by reason of the carrying out of the Sub-Contract Works and whether arising on or off the Site, except to the extent that the injury, disease or death of that person is due to any act or neglect of the Contractor or the Employer or any person for whom the Contractor or the Employer is responsible; and

(b)      injury or damage to real or personal property arising out of, in the course of, or by reason of the carrying out of the Sub-Contract Works and whether arising on or off the Site, to the extent that the injury or damage, is due to a breach of contract or other default of the Sub-Contractor or any person for whom the Sub-Contractor is responsible.

21     Insurance against injury to persons or property

Employees' Compensation Insurance

21.1     (1)      The {Sub-}Contractor is required to effect and maintain employees' compensation insurance in compliance with the provisions of the Employees{'} Compensation Ordinance in the joint names of the {Sub-}Contractor, his {sub-}sub-contractors {(including the Sub-Contractor) and their respective sub-contractors} of all tiers {with the Employer and the Contractor as the principals}, against all liabilities arising in respect of bodily injury to, disease contracted by or death of the {Sub-}Contractor's or any {tier's} sub-contractor's {of all tiers} employees arising out of and in the course of their employment on the {Sub-Contract} Works or in connection with the {Main Sub-}Contract. {The amount of the insurance cover shall be not less than $200,000,000 per event if the number of employees is more than 200 or not less than $100,000,000 per event if the number of employees is not more than 200 for liability under the said Ordinance or at common law.}

(2)      The insurance cover is to be against the liabilities referred to in clause 21.1 (1) of the {Main Sub-}Contract Conditions sustained during the period from the {Commencement Date commencement of any part of the Sub-Contract Works whether on site or off-site} until the Defects Rectification Certificate for the whole of the {Sub-Contract} Works has been issued and the {Sub-}Contractor has finally left the Site.

(3)      As soon as the Sub-Contractor becomes aware of any workman or other person employed on the Sub-Contract Works or in connection with the Sub-Contract suffering any bodily injury, contracting a disease or dying he shall notify the Contractor{ and the Commissioner of Labour, with a copy of notice to the Architect and the insurers.} # Add if the Sub-Contractor maintains his own ECI policy. #

Third party liability insurance

21.2     (1)      Either the Employer or the Contractor, whichever of them is the party responsible for effecting the Contractors' All Risks Insurance of the Works, is required, unless otherwise stated in the Main Contract, to effect insurances in the joint names of the Employer, the Contractor, his sub-contractors (including the Sub-Contractor) and their respective sub-contractors of all tiers {(deemed to be including self-employed persons and sole proprietors)} against all liabilities of the insured under the Main Contract or otherwise in respect of:

(a)      bodily injury to, disease contracted by or the death of any person arising out of, or in the course of, or by reason of the carrying out of the Works, and whether arising on or off the Site; and

(b)      injury or damage to real or personal property other than the Works insofar as the injury or damage arises out of, or in the course of, or by reason of the carrying out of the Works and whether arising on or off the Site, including injury or damage caused by any act or neglect of the Employer or any person for whom the Employer is responsible or by collapse, subsidence, heave, vibration, weakening or removal of support or lowering of ground water due to any cause other than:

(i)      ionizing radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;

(ii)      pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; {or and}

(iii)     non-negotiable exclusions imposed by the insurance market.

(2)      The insurance cover will be against the liabilities referred to in clause 21.2(1) of the Main Contract Conditions sustained during the period from the {Commencement Date commencement of any part of the Works whether on or off-site} until the Defects Rectification Certificate for the whole of the Works has been issued and the Contractor {has and the Sub-Contractor have} finally left the Site.

(3)      The insurances will include:

(a)      a cross liability clause to the effect that the insurances will cover the Employer, the Contractor, his sub-contractors (including the Sub-Contractor) and their Sub-Contractors of all tiers as separate insured; and

(b)      a waiver of any right of subrogation which the insurers may have against any of the insured.

(4)      The third party liability insurances against injury or death to any person and injury or damage{s} to real or personal property under clause 21.2(1) of the Main Contract Conditions are each required to be effected with the limit of indemnity stated in the appendix to the Main Contract Conditions for any one occurrence or series of occurrences arising out of one event but unlimited in the aggregate amount for the period of the insurance.

Insurance without prejudice to Sub-Contractor's obligation to indemnify Contractor

21.3   The effecting and maintaining of insurances by either the Employer or the Contractor under clause 21 of the Main Contract Conditions {and by the Sub-Contractor under clause 21.1 of the Sub-Contract Conditions} is without prejudice to the Sub-Contractor's obligation to indemnify the Contractor under clause 20.

22     Insurance of the Works

The Contractors' All Risks Insurance of the Works

22.1     (1)      The Contractors' All Risks Insurance of the Works will be effected and maintained by either the Employer or the Contractor in the joint names of the Employer, the Contractor and his sub-contractors (including the Sub-Contractor){,} their sub-contractors of all tiers and suppliers from the Commencement Date {or the Date for Possession of the Site whichever is earlier <alternatively: or the Date for Entering the Site whichever is earlier>} until 14 days after Substantial Completion of the Works, a Section or Relevant Part or 14 days after the determination of the employment of the Contractor, whether valid or not.

(2)      The basic requirements for the Contractors' All Risks Insurance of the Works are set out in clause 22.2 of the Main Contract Conditions and the specific terms and conditions, if required to be different {to from} the basic terms, are either set out in the {Main Contract} Specification or the Contract Bills or are to be as agreed between the parties to the Main Contract {and made known to the Sub-Contractor during his tendering} but in any case the terms cannot be beyond the best terms currently available.

(3)      The Contractor shall, prior to the commencement of the Sub-Contract Works, ensure that the Contractors' All Risks Insurance of the Works policy has been issued and endorsed so that the Sub-Contractor is recognised as an insured under the policy and that the insurers waive any right of subrogation they may have against the Sub-Contractor.

Responsibility of Sub-Contractor for restoration of Sub-Contract Works

22.2    The Sub-Contractor shall be responsible for the cost of the restoration of Sub-Contract work lost or damaged, the repair or replacement of materials or goods that are the property of the Sub-Contractor or for which the Sub-Contractor is responsible while on the Site, being fabricated or stored off-Site or in transit and for the removal and disposal of any debris except to the extent that the loss or damage is due to:

(a)      a peril covered by the Contractors' All Risks Insurance of the Works whether or not caused by a breach of contract or other default of the Sub-Contractor or any person for whom the Sub-Contractor is responsible{ subject to clause 22.4(2)};

(b)      the effect of an Excepted Risk;

(c)      a breach of contract or other default by the Contractor or the Employer or any person for whom the Contractor or the Employer is responsible or by any statutory undertaker or utility company carrying out work which, by law, only they may carry out.

Parties' obligations if loss or damage occurs

22.3   (1)      In the event of loss or damage to work, materials or goods caused by a peril covered by the Contractors' All Risks Insurance of the Works《,》 the parties' obligations shall be as described in clauses 22.3(2) and (3).

(2)      The Sub-Contractor shall:

(a)      notify the Contractor of the extent, nature and location of the loss or damage to the Sub-Contract Works immediately upon discovering it;

(b)      assist the Contractor to follow all of the requirements in the insurance policy, in preparing the insurance claim and where required in negotiating with the insurers;

(c)      restore lost or damaged Sub-Contract work, remove and dispose of any debris, repair or replace materials or goods which have been stolen, lost, destroyed or damaged, immediately after being instructed by the Contractor to do so and proceed with carrying out the Sub-Contract Works with due diligence and in accordance with the Sub-Contract.

(3)      The Contractor shall pay to the Sub-Contractor his share of the proceeds from the insurance of the Works for making good the loss or damage to the Sub-Contract Works.

Contractor's payment not more than insurance proceeds

22.4   (1)      The Contractor will not be entitled to any payment in respect of the replacement, repair or restoration of the loss or damage and the removal and disposal of debris other than the amount received under the Contractors' All Risks Insurance of the Works {less the amount to cover professional fees} unless and to the extent that the loss or damage was caused or contributed to by a breach of contract or other default by the Employer or any person for whom the Employer is responsible.

(2)      The Sub-Contractor in turn will not be entitled to any payment in respect of the replacement, repair or restoration of the loss or damage to the Sub-Contract Works and disposal of debris other than his fair share of the amount received under the Contractors' All Risks Insurance of the Works.

{Deductibles and exclusions

22.5     Any deductible or excess or exclusion included in the Contractors’ All Risks Insurance of the Works shall be borne by the party or the parties who would have been liable in the absence of the insurances in accordance with his liability or in proportion to their contributing liabilities.}

23     Possession, commencement and completion

Date for Possession of <alternatively: Date for Entering> the Site and the Commencement Date

23.1     The Date for Possession of <alternatively: The Date for Entering> the Site and the Commencement Date are stated in the appendix to the Main Contract Conditions.

Commencement and completion of Sub-Contract Works

23.2     (1)      The Sub-Contractor shall commence the Sub-Contract Works on the Commencement Date of the Sub-Contract Works stated in the Appendix or, if no date is stated, within 14 days of a notice to commence work from the Contractor and shall proceed regularly and diligently with the Sub-Contract Works.

(2)      If it is stated in the Appendix that the Sub-Contract Works and any Section are to be completed on or before the Sub-Contract Completion Date the Sub-Contractor shall complete the Sub-Contract Works and any Section on or before the date stated in the Appendix as the Sub-Contract Completion Date.

(3)      If it is stated in the Appendix that the Sub-Contract Works are to be carried out and completed at the same time as the Works the Sub-Contract Works shall be carried out to suit the progress of the Works and shall be completed sufficiently far in advance of the Works to allow adequate time for the Contractor to complete the Works or any Section on or before the Completion Date of the Works or that Section.

Postponement or suspension

23.3    The Architect is authorised to issue instructions regarding:

(a)      the postponement of the Date for Possession of <alternatively: Entering> the Site or a part of the Site;

(b)      the postponement of the Commencement Date of the whole or a part of the Works; and

(c)      the postponement or suspension of the whole or a part of the Works.

24     Failure of Sub-Contractor to complete on time

Failure of Sub-Contractor to complete on Sub-Contract Completion Date

24.1   (1)     If under clause 23.2(2) the Sub-Contract requires the Sub-Contract Works or any Section to be completed on or before the Sub-Contract Completion Date and the Sub-Contractor fails to complete the Sub-Contract Work{s} or any Section on or before that date{, or within any extension of time given to him,}  the Contractor shall notify the Architect of this failure and issue a copy of the notification to the Sub-Contractor.

(2)      If the Architect issues a certificate to that effect to the Contractor under clause 29.11 of the Main Contract Conditions the certificate shall confirm that all extensions of time have been addressed in accordance with clause 25 and state the date by which the Sub-Contract Works or Section ought to have been completed.

(3)      The Architect shall issue a copy of the certificate referred to in clause 24.1 (2) to the Sub-Contractor and the Sub-Contractor shall pay or allow to the Contractor a sum equivalent to the loss and/or expense and/or liquidated damages incurred by the Contractor due to the failure of the Sub-Contractor to complete on time.

Failure of Sub-Contractor to complete on time where the Sub-Contract Works are to be completed at the same time as the Works

24.2   If under clause 23.2(3) the Sub-Contract requires the Sub-Contract Works to be carried out and completed at the same time as the Works and the Sub-Contractor, having been notified by the Contractor of any revised Completion Date for the Works, fails to complete the Sub-Contract Works or any Section in accordance with clause 23.2(3) the Sub-Contractor shall pay or allow the Contractor a sum equivalent to any loss and/or expense and/or liquidated damages incurred by the Contractor due to the failure of the Sub-Contractor to complete on time.

Contractor to give notice that loss and/or expense and/or liquidated damages are being or will be incurred

24.3   The Contractor shall at the earliest opportunity give reasonable notice to the Sub-Contractor that loss and/or expense and/or liquidated damages are being or will be incurred due to failure of the Sub-Contractor to complete on time.

Refund if Main Contract Completion Date revised

24.4   If the Architect fixes a later Completion Date under clause 25.3 of the Main Contract Conditions and the Employer refunds to the Contractor the amount of liquidated and ascertained damages paid or allowed to the Employer for the period from the original Completion Date up to the later Completion Date plus interest at 1 % below the judgment debt rate prescribed from time to time by the Rules of the High Court (Chapter 4A, Laws of Hong Kong) and the Sub-Contractor has recompensed the Contractor under clause 24.2 for loss and/or expense and/or liquidated damages incurred by him, the Contractor shall reimburse the Sub-Contractor accordingly.

25     Extension of time for the Sub-Contract Works to be completed by the Sub-Contract Completion Date

Sub-Contractor's first notice of delay

25.1    (1)      If under clause 23.2(2) the Sub-Contract requires the Sub-Contract Works to be completed on or before the Sub-Contract Completion Date, as soon as practicable, but in any case within {28 14} days of the commencement of an event likely to cause delay to the completion of the Sub-Contract Works or a Section beyond the Sub-Contract Completion Date becoming apparent{,} the Sub-Contractor shall give notice (referred to in clause 25 as the 'first notice') to the Contractor.

# 14 days shorter than that allowed to the Contractor under the Main Contract. # 

(2)      The first notice shall:

(a)      state the likelihood and estimated length of the delay beyond the Sub-Contract Completion Date;

(b)      set out the material circumstances including the cause of the delay; and

(c)      state if the Sub-Contractor considers that he is or may become entitled to an extension of time due to the effects of an event listed in clause 25.1 (3) (referred to in clause 25 as a 'listed event') and if so identify which of the listed events he believes to be the cause of the delay.

(3)      The listed events are as follows:

(a)      force majeure;

(b)      inclement weather conditions, being rainfall in excess of twenty millimeters in a twenty-four hour period (midnight to midnight) as recorded by the Hong Kong Observatory station nearest to the Site, and/or {its their} consequences adversely affecting the progress of the Sub-Contract Works; <alternatively: delete this item entirely except for projects prone to weather conditions>

(c)      the hoisting of tropical cyclone warning signal No. 8 or above or the announcement of a Black Rainstorm Warning {and/or  its consequences adversely affecting the progress of the Sub-Contract Works}; <alternatively: delete this item entirely except for projects prone to weather conditions>

(d)      the Excepted Risks{ excluding item (c) of the definition of Excepted Risks in clause 1.6};

(e)      loss or damage caused by a Specified Peril{ excluding storm and tropical cyclone};

(f)      an instruction under clause 3.4 to resolve an ambiguity, discrepancy in or divergence between the documents listed in that clause;

(g)      an instruction under clause 8.2 requiring the opening up for inspection of work covered up or the testing of materials, goods or work and the consequential making good where the cost of that opening up, testing and making good is required by that clause to be added to the Sub-Contract Sum;

(h)      an instruction under clause 13.1 requiring a Variation;

(i)      an instruction under clause 13.2 of the Main Contract Conditions resulting in an increase in the work to be carried out under the Sub-Contract of sufficient magnitude to cause delay, provided that the variance was not apparent from the Sub-Contract Drawings;

(j)      an instruction under clause 23.3 of the Main Contract Conditions regarding:

(i)      the postponement of the Date for Possession of <alternatively: Entering>  the Site or a part of the Site;

(ii)      the postponement of the Commencement Date of the whole or a part of the Works or the Sub-Contract Works; or

(iii)      the postponement or suspension of the whole or a part of the Works or the Sub-Contract Works; unless:

•         notice of the postponement or suspension is given in{ the Main Contract or} the Sub-Contract; or

•         the postponement or suspension was caused by a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible{.;}

(k)      late instructions including those to expend a Prime Cost Sum or a Provisional Sum, or the late issue of the drawings, details, descriptive schedules or {other} similar documents referred to in clause 6.3{,} except to the extent that the Sub-Contractor failed to comply with clause 6.4(2);

(l)      delay caused by a delay on the part of a nominated sub-contractor (other than the Sub-Contractor) or nominated supplier in respect of an event for which the nominated sub-contractor or nominated supplier is entitled to an extension of time under the sub-contract or supply contract{ except for events due to an act of prevention, a breach of contract or other default of the Contractor or any person for whom the Contractor is responsible};;

(m)      delay caused by a nominated sub-contractor (other than the Sub-Contractor) or supplier nominated by the Architect under clause 29.2(6) of the Main Contract Conditions despite the Contractor's valid objection, subject to clause 29.2(7) of the Main Contract Conditions;

(n)      delay caused by the nomination of a replacement nominated sub-contractor or nominated supplier under clause 29.13 of the Main Contract Conditions including any prolongation of the period of the relevant sub-contract or the time for the supply and delivery of materials and goods, provided that the determination of the employment of the original nominated sub-contractor or the termination of the original nominated supply contract was not in the opinion of the Architect a consequence of a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible;

(o)      delay caused by a Specialist Contractor;

(p)      delay caused by a statutory undertaker or utility company referred to in clause 6.4(1) of the Main Contract Conditions failing to commence or to carry out its work in due time;

(q)      the failure of the Employer or Contractor to supply or supply on time materials, goods, plant or equipment that he agreed to provide for the Sub-Contract Works;

(r)      the failure of the Employer to give possession of <alternatively: entry to> the Site or, under clause 23.1 (2) of the Main Contract Conditions, a part of the Site on the Date for Possession of <alternatively: Entering> the Site or the part of the Site stated in the appendix to the Main Contract Conditions, or the Employer subsequently depriving the Contractor of the whole or a part of the Site;

(s)      delay to the Sub-Contract Works due to time not reasonably foreseen by the Sub-Contractor in obtaining approval or consent from a Government department;

(t)      a special circumstance considered by the Contractor and agreed by the Architect as sufficient grounds to fairly entitle the Sub-Contractor to an extension of time; and

(u)      an act of prevention, a breach of contract or other default by the Contractor{ or the Employer} or any person for whom the Contractor{ or the Employer} is responsible.

(4)      The Sub-Contractor shall:

(a)      continuously use his best endeavours to prevent or mitigate delay to the progress of the Sub-Contract Works however caused and to prevent the completion of the Sub-Contract Works being delayed or further delayed beyond the{ Sub-Contract} Completion Date, provided that the words 'best endeavours' shall not be construed to mean that the Sub-Contractor is obliged to spend additional money to accelerate the carrying out of the Sub-Contract Works to recover delay the Sub-Contractor did not cause, without re-imbursement under clause 27; and

(b)      do all that may reasonably be required to the Contractor's satisfaction to proceed with the Works.

(5)      The Contractor shall send a copy of the Sub-Contractor's first notice under clause 25.1 to the Architect immediately he receives it.

Sub-Contractor's second notice

25.2   (1)      The Sub-Contractor shall, as soon as practicable but in any case within 28 days of giving the first notice, submit a second notice (referred to in clause 25 as the 'second notice') to the Contractor giving:-

(a)      substantiation that the listed event is the cause of the delay; and

(b)      particulars of the cause, effect and length of the delay to the completion of the Sub-Contract Works or a Section beyond the Sub-Contract Completion Date in sufficient detail to enable the Contractor to make a decision under clause 25.3(1 ).

# The time to serve the second notice is relative to the reduced time serving the first notice. There is no need to reduce further. # 

(2)      Where the delay envisaged by the Sub-Contractor's first notice of delay commences later than 28 days after the Sub-Contractor has given the first notice to the Contractor, the Sub-Contractor shall give the Contractor a statement to this effect and shall submit the second notice within 28 days of the commencement of the delay.

(3)      Where the listed event has a continuing effect the Sub-Contractor shall:

(a)      give the Contractor a statement to that effect together with:

(i)      substantiation that the listed event is the cause of the delay, and

(ii)      interim particulars including details of the cause and effect and an estimate of the length of the delay to the completion of the Sub-Contract Works or a Section beyond the Sub-Contract Completion Date;

(b)      make further submissions to the Contractor at intervals not exceeding 28 days giving further interim particulars and estimates of the length of the delay until the delay ceases;

(c)      within 7 days after the delay ceasing, submit to the Contractor final particulars of the cause, effect and {predictable} length of the delay to the Sub-Contract Works or a Section beyond the Sub-Contract Completion Date in sufficient detail to enable the Contractor to make a decision under clause 25.3(1 ).

Fixing new Sub-Contract Completion Date

25.3   (1)      After receipt of the Sub-Contractor's {first or} second notice the Contractor shall give an extension of time to the Sub-Contractor by fixing a later Sub-Contract Completion Date:

(a)      if he is satisfied that the completion of the Sub-Contract Works or a Section is being or is likely to be delayed beyond the Sub-Contract Completion Date by the listed event stated by the Sub-Contractor in his first and{/or} second notices to be the cause of the delay; and

(b)      the Contractor has obtained the Architect's consent under clause 29.9 of the Main Contract Conditions to the extension of time that he intends to give for the completion of the Sub-Contract Works.

(2)      The Contractor shall give the extension of time by fixing a later Sub-Contract Completion Date, and the reasons for his decision, as soon as practicable but in any case within {60 42} days of receipt of the particulars submitted with the second notice under clause 25.2.

# The Main Contract is to be amended to require the Architect to decide on extension of time within 28 days after the Contractor’s second notice. The Sub-Contractor’s second notice is 14 days earlier than the Contractor’s second notice. Therefore, the time for the Contractor to decide should be 28+14 days after the Sub-Contractor’s second notice.#

(3)      If, after receiving the first and second notices, the Contractor decides not to fix a later Sub-Contract Completion Date or the Architect is unwilling to give his consent:

(a)      the Contractor shall notify the Sub-Contractor of this, giving the reasons for the decision, as soon as practicable but in any case within {60 42} days of receipt of the particulars submitted with the second notice under clause 25.2; and

(b)      the Contractor may, with the Architect's consent, revise his decision and fix a later date as the new Sub-Contract Completion Date if the Sub-Contractor provides further and better particulars within 28 days of the Contractor's notification under clause 25.3(3)(a).

(4)      If the Sub-Contractor fails to submit the notices within the time frame prescribed under clause 25.1 or clause 25.2 but a first notice is nevertheless submitted, the Contractor shall, if he is satisfied that the completion of the Sub-Contract Works or a Section has been delayed by the listed event stated in the Sub-Contractor's first notice, with the Architect's consent, give an extension of time to the Sub-Contractor under clause 25.3 to the extent that he is able to on the information available.

(5)      If after fixing a new Sub-Contract Completion Date under clause 25.3《,》 the Architect issues an instruction under:

(a)      clause 13.1 for the omission of work or the omission or diminution of an obligation; or

(b)      clause 13.2 resulting in a substantial reduction of the work to be carried out under the Sub-Contract, provided that the variance was not apparent from the Sub-Contract Drawings, the Contractor, with the consent of the Architect or as he may be required to do so by the Architect, may fix an earlier Sub-Contract Completion Date, though not earlier than the Sub-Contract Completion Date stated in the Appendix, if it is fair and reasonable to do so.

(6)      If the Contractor, with the Architect's consent, gives an extension of time to the Sub-Contractor under clause 25.3 because of a listed event that occurs in the period of delay after the Sub-Contract Completion Date but before the date of Substantial Completion of the Sub-Contract Works, he shall add this extension of time to the total of any extensions of time previously granted when fixing a new Sub-Contract Completion Date, even though the listed event may have occurred later than the date that the Architect fixes as the new Sub-Contract Completion Date.

(7)      The Contractor may, with Architect's consent, fix a new Sub-Contract Completion Date, under clause 25 earlier or later than that previously fixed, during the period of delay between the Sub-Contract Completion Date and the date of Substantial Completion of the Sub-Contract Works (if Substantial Completion of the Sub-Contract Works takes place later than the Sub-Contract Completion Date) if it is fair and reasonable to do so having regard to any of the listed events, whether by reviewing a previous decision, by taking into account any further and better particulars that may be submitted by the Sub-Contractor or any extension of time granted under clause 25.3(6).

(8)      The Contractor, with the Architect's consent, shall finally decide the overall extension of time, if any, that the Contractor considers the Sub-Contractor is entitled to under clause 25, whether by reviewing any extension of time previously granted or otherwise, and shall fix the Sub-Contract Completion Date, which may be the same as but not earlier than the Sub-Contract Completion Date previously fixed, within 90 days after substantial completion of the Sub-Contract Works or such later date as may be agreed by the parties.

Sub-Contractor's default involved in the delay

25.4   Where and to the extent that a listed event resulting in delay to the completion of the Sub-Contract Works or a Section beyond the Sub-Contract Completion Date was, in the Contractor's opinion and agreed by the Architect, contributed to, or aggravated by a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible, the Contractor shall take the effects of that contribution or aggravation into account in fixing the new Sub-Contract Completion Date.

Rate of progress of Sub-Contract Works

25.5   (1)      If, in the Contractor's opinion, the rate of progress of the Sub-Contract Works is, at any time, too slow to ensure that the Sub-Contract Works will be completed by the Sub-Contract Completion Date for any reason which does not entitle the Sub-Contractor to an extension of time under clause 25.3, the Contractor may notify the Sub-Contractor accordingly.

(2)      After receiving the Contractor's notification《,》 the Sub-Contractor may, at his own discretion and with no entitlement to receive additional payment, take the measures that he considers necessary to expedite the progress to complete the Sub-Contract Works by the Sub-Contract Completion Date.

26     Extension of time for Sub-Contract Works to be completed at the same time as the Works

Extension of time for Sub-Contract Works to be completed at the same time as the Works

26.1   (1)      If under clause 23.2(3) the Sub-Contract requires the Sub-Contract Works to be carried out and completed at the same time as the Works, as soon as practicable but in any case within {28 14} days of the commencement of an event likely to cause delay to the completion of the Sub-Contract Works or a Section becoming apparent the Sub-Contractor shall give notice to the Contractor.{ If required, the Sub-Contractor shall provide information in regard to the Sub-Contract Works to the Contractor and the Architect to assist them to exercise their rights and obligations under clause 25 of the Main Contract Conditions.}

(2)      If the Sub-Contractor considers that he is or may become entitled to an extension of time for the completion of the Sub-Contract Works in addition to the extension of time given for the completion of the Works under clause 25.3 of the Main Contract Conditions because of delay due to a breach of contract or other default of the Contractor or the Employer or any person for whom the Contractor or the Employer is responsible, he shall notify the Contractor accordingly.

Rate of progress of the Works

26.2    (1)      If under clause 25.5 of the Main Contract Conditions the Contractor is notified by the Architect that in the Architect's opinion the rate of progress of the Works is too slow to ensure that the Works will be completed by the Completion Date and the Contractor at his own discretion decides to take such measures as he considers necessary to expedite the progress of the Works, the Contractor shall notify the Sub-Contractor accordingly.

(2)      The Sub-Contractor shall then take such measures to accelerate the Sub-Contract Works as required by the Contractor to complete the Sub-Contract Works sufficiently far in advance of the Works so as to allow the Contractor adequate time to complete the Works by the Completion Date.

(3)      The Contractor shall reimburse the Sub-Contractor for the cost incurred in accelerating the Sub-Contract Works except to the extent that the delay to the progress of the Sub-Contract Works was contributed to or aggravated by a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible.

27     Delay recovery measures

Delay recovery measures

27.1    (1)      Clause 26 of the Main Contract Conditions empowers the Architect to instruct the Contractor to carry out delay recovery measures that would extinguish or reduce any extension of time the Contractor would otherwise be entitled to.

(2)      The Architect is required to state the saving in time that he wants the Contractor to achieve.

(3)      The Contractor is required to make delay recovery proposals including a description of his delay recovery measures, a detailed quotation and his own estimate of the saving in time that could be achieved if the Contractor has reservations about achieving the saving in time requested by the Architect.

(4)      The Architect may instruct the Contractor to carry out the delay recovery measures if he agrees with the Contractor's proposals or if the Architect cannot reach agreement with the Contractor he may instruct the Contractor to carry out the delay recovery measures and instruct the Quantity Surveyor to ascertain the amount of additional payment to be made to the Contractor for carrying out those measures.

Sub-Contractor to liaise with the Contractor

27.2    (1)      The Sub-Contractor shall liaise with the Contractor as required by him in drafting the delay recovery proposals including preparing a detailed quotation in respect of the Sub-Contract Works and agreeing this with the Contractor and where the Contractor is required to comply with the Architect's instructions in relation to the delay recovery measures the Sub-Contractor shall comply with the Contractor's instructions.

Contractor to reimburse Sub-Contractor for carrying out delay recovery measures

27.3   (1)      The Contractor shall reimburse the Sub-Contractor for carrying out the delay recovery measures to the Sub-Contract Works as follows:

(a)      where the Architect agrees with the Contractor's delay recovery proposals and instructs the Contractor to carry out the measures in accordance with the agreement under clause 26.3(1) of the Main Contract Conditions, at the amount agreed between the Contractor and the Sub-Contractor; or

(b)     where the Architect cannot reach agreement with the Contractor and instructs the Contractor to carry out the delay recovery measures in the absence of an agreement under clause 26.3(2) of the Main Contract Conditions, at the amount included for the Sub-Contractor in the Quantity Surveyor's ascertainment of the additional payment to the Contractor for carrying out the measures.

28    Direct loss and/or expense

Sub-Contractor's notice of claim for additional payment

28.1    (1)      If in the Sub-Contractor's opinion, he has incurred or is likely to incur direct loss and/or expense because the progress of the Sub-Contract Works has been or is likely to be delayed or disrupted by an event set out in clause 28.1 (2) (referred to in clause 28 as a 'qualifying event'{)} and the Sub-Contractor intends to claim additional payment for this{,} he shall follow the procedures set out in clause 29 and shall also identify in his notice of claim which of the following qualifying events he believes to be the cause of the direct loss and/or expense.

(2)     The qualifying events are as follows:

(a)      an instruction under clause 3.4 to resolve an ambiguity, discrepancy in or divergence between the documents listed in that clause;

(b)      an instruction under clause 8.2 requiring the opening up for inspection of work covered up or the testing of materials, goods or work and the consequential making good where the cost of such opening up, testing and making good is required by that clause to be added to the Sub-Contract Sum;

(c)      an instruction under clause 13.1 requiring a Variation;

(d)      an instruction under clause 13.2 of the Main Contract Conditions resulting in an increase in the work to be carried out of sufficient magnitude to cause delay or disruption, provided that the variance was not apparent from the Sub-Contract Drawings;

(e)      an instruction under clause 23.3 of the Main Contract Conditions regarding:

(i)      the postponement of the Date for Possession of <alternatively: Entering> the Site or a part of the Site;

(ii)      the postponement of the Commencement Date of the whole or a part of the Works or the Sub-Contract Works; or

(iii)    the postponement or suspension of the whole or a part of the Works or the Sub-Contract Works; unless:

•         notice of the postponement or suspension is given in{ the Contract or} the Sub-Contract; or

•         the postponement or suspension was caused by a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible;

(f)      late instructions including those to expend a Prime Cost Sum or a Provisional Sum or the late issue of the drawings, details, descriptive schedules or {other} similar documents referred to in clause 6.3, except to the extent that the Sub-Contractor failed to comply with clause 6.4(2);

(g)      delay{ or disruption} caused by a nominated sub-contractor (other than the Sub-Contractor) or supplier nominated by the Architect under clause 29.2(6) of the Main Contract Conditions despite the Contractor's valid objection, subject to clause 29.2(7) of the Main Contract Conditions;

(h)      delay or disruption caused by a Specialist Contractor;

(i)      the failure of the Employer to supply or supply on time materials, goods, plant or equipment that he agreed to provide for the Sub-Contract Works;

(j)      the failure of the Employer to give possession of <alternatively: entry to> the Site or, under clause 23.1 (2) of the Main Contract Conditions, a part of the Site on the Date for Possession of <alternatively: Entering> the Site or the part of the Site stated in the appendix to the Main Contract Conditions, or subsequently the Employer depriving the Contractor of the whole or a part of the Site{.; and}

{(k)     any other delay or disruption for which the Employer is responsible including an act of prevention or a breach of the Main Contract.}

(3)      The Contractor shall send a copy of the Sub-Contractor's notice of claim under clause 29 for additional payment for direct loss and/or expense to the Architect immediately he receives it.

Quantity Surveyor's ascertainment of Sub-Contractor's claim

28.2    (1)      Upon receipt of the Sub-Contractor's claim under clause 28《,》 the Architect shall instruct the Quantity Surveyor to ascertain, under clause 27 .4 of the Main Contract Conditions, the amount of any additional payment for direct loss and/or expense incurred by the Sub-Contractor if the Architect is satisfied that:

(a)      the direct loss and/or expense was incurred because the progress of the Sub-Contract Works was delayed or disrupted by the qualifying event set out in the Sub-Contractor's claim;

(b)      the Sub-Contractor has not been and will not be reimbursed by a payment under any other provisions of the Sub-Contract; and

(c)      the Sub-Contractor has complied with clause 29.

(2)      The ascertainment of the Sub-Contractor's claim shall be made as soon as practicable but in any case within 60 days of receipt of the build-up of the claim and the particulars under clause 29.2.{ The amount ascertained shall be added to the Sub-Contract Sum.} 

Sub-Contractor's default involved in the delay or disruption

28.3   Where and to the extent that a qualifying event resulting in delay to the progress of the Sub-Contract Works or disruption was in the Architect's opinion, contributed to or aggravated by a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible, the Architect shall instruct the Quantity Surveyor to take such contribution or aggravation into account in ascertaining the amount of direct loss and/or expense due to the Sub-Contractor.

Sub-Contractor's claim from Contractor

28.4   (1)      If in the Sub-Contractor's opinion{,} he has incurred or is likely to incur direct loss and/or expense because the progress of the Sub-Contract Works has been{ or is likely to be} delayed or disrupted by a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible, the Sub-Contractor shall give notice of this to the Contractor within a reasonable time after the delay or disruption becomes apparent.

(2)      The amount of any direct loss and/or expense caused to the Sub-Contractor shall be agreed between the Contractor and the Sub-Contractor.

(3)      The agreed amount shall not be added to the Sub-Contract Sum but shall be paid to the Sub-Contractor by the Contractor or may be recovered as a debt.

Contractor's claim from Sub-Contractor

28.5   (1)      If in the Contractor's opinion he has incurred or is likely to incur direct loss and/or expense and/or damages because the progress of the Works has been delayed or disrupted by a breach of contract or other default by the Sub-Contractor or any person for whom the Sub-Contractor is responsible the Contractor shall give notice of this to the Sub-Contractor within a reasonable time after the delay or disruption becomes apparent.

(2)      The amount of any direct loss and/or expense and/or damages caused to the Contractor shall be agreed between the Contractor and the Sub-Contractor and where not recovered by the Contractor under clauses 24.1 or 24.2 may be deducted from any monies due to or become due to the Sub-Contractor or may be recovered as a debt.

29    Notice of claims for additional payment

Sub-Contractor to give notice of claim

29.1   (1)      If the Sub-Contractor intends to claim any additional payment under the Sub-Contract《,》 the Sub-Contractor shall give notice to the Contractor of his intention to do so within 28 days of it becoming apparent to the Sub-Contractor that an event has occurred which gives rise to a claim and he shall include in the notice the contractual provisions upon which the claim is based.

(2)      The Sub-Contractor need{s} not give the notice required under clause 29.1 (1) in the case of an Architect's instruction under clause{s} 13.1 or 13.2 insofar as that instruction is subject to a Valuation under clause 13.

(3)      The Contractor shall send a copy of the Sub-Contractor's claim under clause 29.1 (1) to the Architect immediately he receives it.

Sub-Contractor to submit particulars

29.2   (1)      The Sub-Contractor shall keep such records as may reasonably be necessary to support the claim.

(2)      The Sub-Contractor shall as soon as practicable but in any case within 60 days of giving notice under clause 29.1, submit to the Contractor:

(a)      particulars of the circumstances giving rise to the claim;

(b)      the amount of the claim;

(c)      a detailed build-up of that amount; and

(d)      a copy of the records kept in accordance with clause 29.2(1).

(3)      Where the effect giving rise to the claim set out in the Sub-Contractor's notice of claim commences later than 60 days after the Sub-Contractor has given notice of his intention to claim, the Sub-Contractor shall give the Contractor a statement to that effect and submit the information under clause 29.2(2) within 60 days of the commencement of the effect of the event giving rise to the claim.

(4)      Where the{ qualifying} event giving rise to the claim has a continuing effect the Sub-Contractor shall:

(a)      give the Contractor a statement to that effect together with:

(i)      interim particulars of the circumstances giving rise to the claim;

(ii)      an estimate of and build-up the amount of the claim which shall be considered to be an interim amount; and

(iii)      a copy of the records kept in accordance with clause 29.2(1);

(b)      make further submissions to the Contractor at intervals not exceeding 28 days giving:

(i)      further interim particulars;

(ii)      up to date estimates of the amounts of the claim with further build-ups of these amounts; and

(iii)      further records to support the claim,

until it becomes possible to ascertain the total claim; and

(c)      within 7 days after it becomes possible to ascertain the total claim, make the final submission to the Contractor as required under clause 29.2(2) paragraphs (a) to (d).

(5)      The Contractor shall send a copy of each of the Sub-Contractor's submissions to the Architect as soon as he receives them.

Condition precedent to Sub-Contractor's entitlement to additional payment

29.3   It shall be a condition precedent to the Sub-Contractor's entitlement to additional payment that the Sub-Contractor shall comply with the provisions of clauses 29.1 and 29.2 and if he fails to comply with these provisions in respect of any claim tha.t claim will be deemed to have been waived by the Sub-Contractor.

30    Nominated Suppliers

Prime Cost Sums

Where a Prime Cost Sum for materials or goods to be supplied by a nominated supplier is included in the Sub-Contract or arises as a result of an Architect's instruction under clause 13.2 of the Main Contract Conditions to expend a Provisional Sum the provisions of clause 29 of the Main Contract Conditions shall apply with the necessary changes.

31     Other sub-contractors, statutory undertakers, utility companies and Specialist Contractors

Sub-Contractor to fully co-operate with other sub-contractors etc.

The Sub-Contractor shall fully co-operate with and co-ordinate the Sub-Contract Works with the work of all other sub-contractors, statutory undertakers, utility companies and persons engaged by the Employer under clause 30.1 of the Main Contract Conditions.

32    General attendance

General attendance

32.1     Unless otherwise provided in the Specification or Sub-Contract Bills general attendance shall be provided by the Contractor free of charge to the Sub-Contractor and shall include the use of the Contractor's temporary roads, pavings and paths, standing scaffolding, standing hoists, clearing away rubbish, provision of space on the Site for the Sub-Contractor's offices and for the storage of his plant, materials and goods, the use of mess rooms, sanitary accommodation and welfare facilities.

Clearance of rubbish during Sub-Contract Works

32.2   The Sub-Contractor shall from time to time during the carrying out of the Works clear away all rubbish resulting from the Sub-Contract Works to a place provided on the Site and shall keep access to the Works clear at all times.

Provision of services for the Sub-Contract Works

32.3   The responsibility for the provision of water, lighting, power and other services for the Sub-Contract Works as between Contractor and Sub-Contractor shall be as stated in the Specification or Sub-Contract Bills and if not so stated shall be the responsibility of the Contractor.

Sub-Contractor's workshops

32.4   Unless otherwise provided in the Specification or Sub-Contract Bills the Sub-Contractor shall provide, erect and maintain all the workshops, sheds or other temporary buildings required for the Sub-Contract Works on the areas of the Site allocated to him by the Contractor and subsequently remove them.

Use of the Contractor's or the Sub-Contractor's erected scaffolding

32.5   The Contractor and the Sub-Contractor in common with all other persons having a like right shall for the purposes of the Works be entitled to use any erected scaffolding belonging to or provided by the Contractor or the Sub-Contractor as the case may be while it remains on the Site. Provided that no warranty shall be created or implied under the Sub-Contract in regard to the fitness, condition or suitability of the scaffolding.

Contractor and Sub-Contractor not to make wrongful use of or interfere with the property of the other

32.6   Neither the Contractor nor the Sub-Contractor shall wrongfully use or interfere with the plant, ways, scaffolding, temporary works, appliances or other property belonging to or provided by the other.

33    Certificates and payments

Interim Certificates and interim valuations

33.1    (1)      The Architect is required under clause 32.1 of the Main Contract Conditions to issue an Interim Certificate at the end of each Period of Interim Certificates stated in the appendix to the Main Contract Conditions commencing not later than 42 days after the Commencement Date.

(2)      The Interim Certificate is to state the amount due to the Contractor from the Employer and the Contractor will be entitled to payment of the amount stated, less any monies deductible by the Employer, within the period for payment of certificates stated in the appendix to the Main Contract Conditions.

(3)      The Sub-Contractor shall submit to the Contractor a statement of the gross valuation of the Sub-Contract work in progress showing the amount of each of the relevant items listed in clause 33.2 supported by all accounts, vouchers, receipts and other documents that may be reasonably required by the Quantity Surveyor within 7 days of the Contractor's requirement for the Sub-Contractor to do so.

(4)      The Contractor is required under clause 32.1 of the Main Contract Conditions to submit to the Quantity Surveyor a statement setting out the Contractor's estimate of the gross valuation of the work in progress, at least 14 days before the date on which an Interim Certificate is due to be issued and to include the amount set out in the Sub-Contractor's statement under clause 33.1 (3) together with supporting documentation in his submission.

(5)      The Quantity Surveyor is required to make an interim valuation of the work in progress in accordance with clause 32.1 of the Main Contract Conditions to determine the estimated amount due in an Interim Certificate and to submit his valuation to the Architect at least 7 days before the Interim Certificate is due to be issued.

(6)      The Quantity Surveyor is required under clause 29. 7 of the Main Contract Conditions to calculate the amount owing to the Sub-Contractor in each Interim Certificate in accordance with the Sub-Contract and to notify the Contractor and the Sub-Contractor of that amount and the amount of Sub-Contract Retention held by the Employer.

(7)      The Contractor is required to pay the Sub-Contractor the amount included for him in each Interim Certificate, less any amount properly deductible within 14 days, or such other time as may be stated in the Sub-Contract, of the Contractor receiving payment from the Employer.

(8)      If the Contractor withholds an amount due to the Sub-Contractor and fails to satisfy the Architect that he has good cause for doing so, the Architect is required under clause 29.8 of the Main Contract Conditions to issue a certificate to that effect and the Employer will be entitled, but not obliged, to pay that amount to the Sub-Contractor direct.

(9)      Under clause 29.12 of the Main Contract Conditions, the Architect may include the amount of the final payment to the Sub-Contractor in an Interim Certificate as early final payment to that Sub-Contractor before final payment is made to the Contractor, provided that the Sub-Contractor indemnifies the Contractor in a form of indemnify satisfactory to the Contractor, against defects that may appear, omissions, or faults in the Sub-Contract Works caused by the Sub-Contractor for which the Contractor may become liable to the Employer.

(10)    If the Employer has exercised a right under the Main Contract to deduct from monies due to the Contractor, to the extent that the deduction is due to a breach of contract or other default of the Sub-Contractor or any person for whom the Sub-Contractor is responsible the monies deducted may be recovered by the Contractor from any monies due or to become due to the Sub-Contractor or as a debt.

Estimate of amount due to the Sub-Contractor in Interim Certificate

33.2    (1)      The amount due to the Sub-Contractor in an Interim Certificate shall be the estimated gross valuation of the Sub-Contract work in progress as referred to in clause 33.2(2) less:

(a)      the Sub-Contract Retention; and

(b)      the total amount in respect of the Sub-Contract Works stated as due in each Interim Certificate previously issued.

(2)      The gross valuation of the Sub-Contract work in progress shall be the total of the amounts listed in clause 33.2(3) less the total of the amounts listed in clause 33.2(4).

(3)      The following estimated amounts shall be included in the gross valuation:

(a)      the value of the Sub-Contract permanent work properly carried out including any additional work or obligation instructed as a Variation to the extent that this additional work or obligation has been completed or fulfilled in whole or in part;

(b)      the proportion of the value of temporary works properly carried out where their value is included as a separate sum in the Sub-Contract Bills;

(c)      the proportion of the value of a preliminary item properly provided or carried out by the Sub-Contractor where its value is included as a separate sum in the Sub-Contract Bills;

(d)      the value of materials or goods on or adjacent to the Site provided that:

(i)      they are to be incorporated into the permanent Sub-Contract Works;

(ii)      they have not been prematurely delivered; and

(iii)      they are adequately protected against weather, other damage or theft;

(e)      the value of materials or goods to be incorporated into the Sub-Contract Works before they are delivered to or adjacent to the Site and to be included in an Interim Certificate in accordance with clause 33.3;

(f)      the amount of any disbursement paid by the Sub-Contractor in accordance with the Architect's instructions as to the expenditure of Provisional Sums{. The amount payable for materials or goods supplied by Nominated Suppliers in accordance with the supply contracts and the appropriate proportion of the sums included as separate items in the Sub-Contract Bills for profit on the amounts payable to Nominated Suppliers};

(g)      the cost incurred for opening up and testing materials, goods or work under clause 8.2;

(h)      the amount ascertained as additional payment for direct loss and/or expense under clause 28{.2};

(i)      the amount payable for reimbursement for increases in the cost of labour and/or materials under clause 39 if applicable; and any other amount which is required by the Sub-Contract to be added to the Sub-Contract Sum.

(4)      Without prejudice to the Contractor's right of set off, the following estimated amounts shall be deducted from the gross valuation:

(a)      the amount deductible in lieu of replacement or reconstruction of materials, goods or work under clause 8.3(c);

(b)      the amount allowable to the Employer for decreases in the cost of labour and/or materials under clause 39 if applicable; and

(c)      any other amount which is required by the Sub-Contract to be deducted from the Sub-Contract Sum.

Off-site materials or goods

33.3    The Architect may, at his discretion or where expressly provided in the Sub-Contract, include the value of materials or goods intended for inclusion in the Sub-Contract Works in an Interim Certificate before the materials or goods are delivered to or adjacent to the Site{ provided the materials and goods have been clearly and visibly marked to identify that they are for use upon the Sub-Contract Works only and have been properly insured for the benefit of the Employer against physical loss or damage until delivery to the Site} and if this is the case he shall instruct the Quantity Surveyor to estimate the value of those materials or goods for inclusion in the Quantity Surveyor's interim valuation of the work in progress under clause 32.1 (5) of the Main Contract Conditions.

Calculation of Sub-Contract Retention

33.4    (1)      The Sub-Contract Retention on the payment for the Sub-Contractor's work in progress shall be calculated by applying the percentage stated in the Appendix as the Sub-Contract Retention Percentage to the estimated gross valuation referred to in clause 33.2 exclusive of the amounts payable under clause 28{, the amounts payable to Nominated Suppliers} and any adjustment for fluctuations in the cost of labour or materials under clause 39.

(2)      The amount held as the Sub-Contract Retention shall not exceed the amount stated in the Appendix as the Limit of Sub-Contract Retention, as may be reduced in accordance with the Sub-Contract. Once the Limit of Sub-Contract Retention has been reached no further amounts shall be retained.

{(3)   The retention on the amount payment to Nominated Suppliers shall be calculated in accordance with the supply contract and added to the Retention held on the payment for the Sub-Contractor’s work.}

Retention rules

33.5   (1)      The Sub-Contract Retention shall be held upon trust by the Employer for the Sub-Contractor {and for any Nominated Supplier }(without obligation to invest) subject to the rights of the Employer to have recourse to it for payment of any amount which he is entitled to under the Sub-Contract or at law or to deduct from it any sum owed to him by the Sub-Contractor.

(2)      The Architect is required to issue an Interim Certificate for the payment of one-half of the Sub-Contract Retention held in respect of the whole of the Sub-Contract Works, a Section or Relevant Part, as the case may be, {14 days after Substantial Completion of within 14 days after the issue of the Substantial Completion Certificate for} the whole of the Works, that Section or Relevant Part.

(3)      The amount of the Sub-Contract Retention held in respect of a Section or Relevant Part shall be deemed to bear the same relationship to the Sub-Contract Retention held for the whole of the Sub-Contract Works as the estimated amount contained in the Sub-Contract Sum for that Section or Relevant Part bears to the Sub-Contract Sum.

(4)      The Architect is required to issue an Interim Certificate for {thepayment of {all the} remaining Sub-Contract Retention {held in respect of the whole of the Works, a Section or a Relevant part, as the case may be,} within 14 days after the issue of the Defects Rectification Certificate for the whole of the Works{, that Section or Relevant Part}.

Quantity Surveyor to prepare final account

33.6   (1)      The Quantity Surveyor is required to prepare the final account, which is a statement of all adjustments to be made to the Sub-Contract Sum as set out in clause 33.7, within the period for completion of the final account stated in the appendix to the Main Contract Conditions commencing on the date of Substantial Completion of the whole of the Works.

(2)      The Quantity Surveyor is required to send draft copies of the final account to the Sub-Contractor from time to time as the preparation of the final account progresses.

(3)      The Sub-Contractor shall submit to the Quantity Surveyor all the documents that are, in the opinion of the Quantity Surveyor, reasonably necessary for the adjustment of the Sub-Contract Sum not later than 6 months after Substantial Completion of the whole of the Works or 3 months before the end of the period for the completion of the final account referred to in clause 33.6(1) whichever is earlier.

(4)      The submission of the documents referred to in clause 33.6(3) shall not be a condition precedent to the Quantity Surveyor preparing the final account and if the Sub-Contractor fails to comply with that clause the Quantity Surveyor shall prepare the final account based on the information that is available to him.

{(5)      The Sub-Contract final account shall state:

(a)      the Sub-Contract Sum adjusted in accordance with clause 33. 7;

(b)      the sum of the amounts already stated as due in each Interim Certificate; and

(c)      the difference between the two sums expressed as a balance due to the Sub-Contractor from the Contractor or to the Contractor from the Sub-Contractor.

(6)      The balance referred to in clause 33.6(5) shall be a debt payable either by the Contractor to the Sub-Contractor or by the Sub-Contractor to the Contractor as the case may be.}

(7)      The Quantity Surveyor shall issue a copy of the Sub-Contract final account signed by the Quantity Surveyor and the Sub-Contractor to the parties by special delivery.

Adjustment of the Sub-Contract Sum

33.7    (1)      The Sub-Contract Sum shall be adjusted as described in clauses 33.7(2) and (3).

(2)      The following amounts shall be deducted from the Sub-Contract Sum:

(a)      all Provisional Sums and the value of all work for which Provisional Quantities or Provisional Items are included in the Sub-Contract Bills;

(b)      the total of all Valuations under clause 13.4 which result{s} in a reduction in the Sub-Contract Sum;

(c)      the amount deductible in lieu of replacement or reconstruction of materials, goods or work under clause 8.3(c);

(d)      the amount allowable to the Employer for decreases in the cost of labour and/or materials under clause 39 if applicable;

{(d1)   all Prime Cost Sum for materials or goods to be supplied by Nominated Suppliers and any Sub-Contractor’s profit priced in the Sub-Contract Bills as separate items on these sums included in the Sub-Contract Bills; and}

(e)      any other amount which is required by the Sub-Contract to be deducted from the Sub-Contract Sum.

(3)      The following amounts shall be added to the Sub-Contract Sum:

(a)      the total of all Valuations under clause 13.4 which result in an increase in the Sub-Contract Sum;

(b)      the total of the Valuation of work carried out by and any amount paid by the Sub-Contractor in accordance with the instructions of the Architect as to the expenditure of a Provisional Sum and of all work for which Provisional Quantities and Provisional Items are included in the Sub-Contract Bills;

(c)      the cost incurred for opening up and testing materials, goods or work under clause 8.2;

(d)      the amount assessed as additional payment for direct loss and/or expense under clause 28{.2};

(e)      any amount payable for reimbursement for increases in the cost of labour and/or materials under clause 39, if applicable;{ and}

{(e1)   the supply contract sums for materials or goods supplied by each Nominated Supplier as adjusted in accordance with the supply contract and the Sub-Contractor’s profit on the sums payable to Nominated Suppliers at the rates included in the Sub-Contract Bills or, in case where the nomination was not originally provided for in the Sub-Contract, at fair rates; and}

(f)      any other amount which is required by the Sub-Contract to be added to the Sub-Contract Sum.

Issue of Final Certificate

33.8   (1)      The Architect is required to issue the Final Certificate to the Employer and the Contractor as soon as practicable after the issue of the Defects Rectification Certificate for the whole of the Works but not until at least 28 days after a copy of the signed final account has been given to the Employer and the Contractor.

(2)      At the same time as the Architect issues the Final Certificate to the Employer and the Contractor, he is required under clause 32.8 of the Main Contract Conditions to notify the Sub-Contractor of the date it was issued and the amount included for the Sub-Contract Works.

{(3)      The Final Certificate will also state:

(a)      the Sub-Contract Sum adjusted in accordance with clause 33.7;

(b)      the sum of the amounts already stated as due in each Interim Certificate; and

(c)      the difference between the two sums expressed as a balance due to the Sub-Contractor from the Contractor or to the Contractor from the Sub-Contractor.

(4)      The balance referred to in clause 33.8(3) shall be a debt payable either by the Contractor to the Sub-Contractor or by the Sub-Contractor to the Contractor as the case may be, 28 days after the issue of the Final Certificate, subject to:

(a)      all deductions authorized by the Sub-Contract; and

(b)      the general rights of set off at law.}

Effect of Final Certificate

33.9   (1)      Subject to clauses 33.10 and 33.11 and except where any defect in or omission from the Sub-Contract Works was not reasonably discoverable at the time of the issue of the Defects Rectification Certificate, the Final Certificate shall be conclusive evidence in any proceedings arising out of the Sub-Contract whether by arbitration or otherwise that:

(a)      the materials, goods, workmanship and work were provided or carried out in accordance with the requirements of clause 8 to the Contractor's and the Architect's satisfaction;

(b)      the necessary effect has been given in the final account to all the terms of the Sub-Contract requiring an adjustment to be made to the Sub-Contract Sum;

(c)      all and only such extensions of time, if any, as are due under clauses 25 and 26 have been given; and

(d)      any additional payment for direct loss and/or expense under clause 28 arising out of the occurrence of any of the qualifying events referred to in that clause is in full and final settlement of all claims for breach of contract, duty of care, statutory duty or otherwise;

except and insofar as the Final Certificate shall have been rendered erroneous by reason of fraud, dishonesty or fraudulent concealment.

(2)      The issue of the Final Certificate shall not otherwise prejudice any common law rights and remedies regarding defective work.

Proceedings commenced before Final Certificate

33.10  If proceedings under clause 42 are commenced by either party before the Final Certificate is issued, the Final Certificate shall still have effect as conclusive evidence as provided in clause 33.9 after either:

(a)      the proceedings have been concluded whereupon the Final Certificate shall be subject to the terms of any award or judgment in or settlement of the proceedings; or

(b)      12 months have passed without either party taking a further step in the proceedings unless there is reasonable cause for not taking this step, whereupon the Final Certificate shall be subject to any terms agreed in partial settlement;

whichever is earlier.

Proceedings commenced after Final Certificate

33.11   If proceedings under clause 42 are commenced by either party within 28 days of the issue of the Final Certificate, the Final Certificate shall still have effect as conclusive evidence as provided in clause 33.9 except in respect of the matters to which those proceedings relate.

Effect of Architect's certificates

33.12  No Architect's certificate shall constitute or be construed to provide evidence that any materials, goods, workmanship or work to which the certificate relates are in accordance with clause 8 save and except as is provided by the Sub-Contract Conditions in regard to the Final Certificate.

Late payment

33.13  If the Contractor does not pay the Sub-Contractor {the amount included for the Sub-Contractor in an Interim Certificate as required to be paid to the Sub-Contractor under clause 33.1 (7) within the time stipulated in that clause any amount properly due within the stipulated period of time}, the Sub-Contractor, without prejudice to his other rights and remedies, shall be entitled to payment, together with the{ certified} amount outstanding, of interest at 1 % below the judgment debt rate prescribed from time to time by the Rules of the High Court (Chapter 4A, Laws of Hong Kong) on the amount outstanding 7 days after the latest date on which thecertified} amount should have been paid.

Right of Sub-Contractor to suspend the carrying out of the Sub-Contract Works

33.14   (1)      In addition to his entitlement to interest for late payment by the Contractor under clause 33.13 the Sub-Contractor, without prejudice to his other rights and remedies, may suspend the carrying out of the Sub-Contract Works, if:

(a)      the Contractor does not pay the Sub-Contractor the amount required to be paid to him under clause 33.1 (7) (referred to in clause 33.14 as 'the amount'{)} within 14 days after the latest date by which the amount is required to be paid to him under that clause;

(b)      the Sub-Contractor gives notice to the Contractor, by special delivery, of the Contractor's failure to pay the amount to the Sub-Contractor stating his intention to suspend the carrying out of the Sub-Contract Works pending payment of the amount; and

(c)      the Contractor fails to pay the amount to the Sub-Contractor within 14 days of the receipt of the Sub-Contractor's notice.

(2)      The Sub-Contractor shall re-commence the carrying out of the Sub-Contract Works as soon as practicable but in any case within 14 days of the receipt of the amount from the Contractor.

34    Surety bond

Sub-Contractor to obtain guarantee from insurance company or bank

(1)      {The Pursuant to the Form of Warranty given by the Sub-Contractor in the form included in the Tender Documents, the} Sub-Contractor shall obtain the guarantee of an insurance company or bank, approved by the {Contractor Architect}, to be jointly and severally bound with the Sub-Contractor to the {Contractor Employer} in the sum stated in the Appendix for the due performance of the Sub-Contract under the terms of a surety bond.

(2)      The Sub-Contractor shall deliver the bond duly executed by the insurance company or bank within 28 days of the acceptance of the Sub-Contractor's tender.

(3)      The surety bond shall be in the form set out in the Sub-Contract Bills or Specification or, if not set out in either of those documents, in the form set out in Schedule 1 of the Sub-Contract Conditions, and the cost of obtaining the bond shall be borne by the Sub-Contractor.

(4)      The insurance company or bank shall be released from the surety bond upon the issue of the {Substantial Completion Certificate Defects Rectification Certificate} for the whole of the {Sub-Contract }Works {and the settlement of all claims lodged before the issue of the certificate}.

(5)      If the Sub-Contractor fails to deliver the bond, the {Contractor Interim Certificate} may withhold an amount not greater than the value of the bond stated in the Appendix until the bond is delivered to the {Contractor Employer}, at which time the amount withheld shall be released in the next Interim Certificate following the delivery of the bond.

35    Benefits under Main Contract

Contractor to obtain rights and benefits under Main Contract for Sub-Contractor

The Contractor shall so far as he lawfully can at the Sub-Contractor's request and cost obtain for him any rights and benefits of the Main Contract as far as they are applicable to the Sub-Contract Works.

36    Determination by Contractor

Default by Sub-Contractor

36.1   (1)      The Contractor may, with the Architect's consent, give a notice of default to the Sub-Contractor before Substantial Completion of the whole of the Works if the Sub-Contractor defaults by:

(a)      completely or substantially suspending the carrying out of the Sub-Contract Works without good cause;

(b)      not proceeding regularly and diligently with the Sub-Contract Works;

(c)      not complying with an instruction from the Architect under clause 8.3 for the replacement, repair or reconstruction of materials, goods or work not in accordance with the Sub-Contract resulting in the Sub-Contract Works being materially affected;

(d)      not complying with clause 19.1; or

(e)      not complying with clause 19.2 by sub-letting the whole or substantially the whole of the Sub-Contract Works to the same person.

(2)      The notice of default shall specify the default and state that a notice of determination may be served if the default continues for a further 14 days after receipt of the notice of default.

(3)      The Contractor may, with the Architect's consent, give a notice of determination of the employment of the Sub-Contractor if:

(a)      the Sub-Contractor continues the default for 14 days after receipt of the notice given under clause 36.1(1);

(b)      the Architect certifies this during the continuation of the default; and

(c)      the notice of determination is given to the Sub-Contractor within 14 days of the issue of the Architect's certificate under clause 36.1 (3)(b).

(4)      The determination of the employment of the Sub-Contractor under clause 36.1 (3) shall take effect on the date of receipt of the notice of determination.

(5)      Where the Sub-Contractor ends the default, or the Contractor does not give a notice of determination, the Contractor may still determine the employment of the Sub-Contractor if:

(a)      the Sub-Contractor continues the default or resumes it at any time;

(b)      the Architect certifies this during the continuation or resumption of the default; and

(c)      the notice of determination is given to the Sub-Contractor within a reasonable time after the issue of the Architect's certificate under clause 36.1 (5)(b).

(6)      The determination of the employment of the Sub-Contractor under clause 36.1 (5) shall take effect on the date of receipt of the notice of determination.

Insolvency of Sub-Contractor

36.2    (1)      The Contractor may, with the Architect's consent, give a notice of determination of the employment of the Sub-Contractor if the Sub-Contractor:

(a)      becomes bankrupt;

(b)      makes a composition or arrangement with his creditors;

(c)      has a petition for compulsory winding-up presented or made against him;

(d)      enters into compulsory or voluntary liquidation except for the purpose of reconstruction; or

(e)      has a provisional liquidator or receiver appointed.

(2)      The determination shall take effect on the date of receipt of the notice unless the Employer, the Contractor, the Sub-Contractor and his trustee in bankruptcy, liquidator or receiver, as the case may be, agree in writing to the continuation of the Sub-Contractor's employment.

Contractor's rights upon notice of default or determination

36.3   (1)      If the Contractor serves a notice of default upon the Sub-Contractor under clause 36.1 or determines the employment of the Sub-Contractor under clause 36.2:

(a)      the Sub-Contractor shall not remove any materials, goods, temporary buildings, plant or equipment from the Site until instructed to do so by the Contractor under clause 36.4(3); and

(b)      the Contractor shall be given a lien upon all materials, goods, temporary buildings, plant and equipment belonging to the Sub-Contractor.

# There is no 36.3(2). #

Consequences of determination

36.4   (1)      In addition to their other obligations under the Sub-Contract, the parties shall act in accordance with clause 36.4 upon determination by the Contractor under clause 36.

(2)      The provisions of clauses 20 and 21 shall remain in effect until the Sub-Contractor has left the Site notwithstanding determination of the employment of the Sub-Contractor.

(3)      If the Contractor so instructs, the Sub-Contractor shall immediately remove his materials, goods, temporary buildings, plant and equipment with care so as to prevent injury, death or damage to persons or property and ensure that other owners remove theirs with similar care except to the extent that:

(a)      they have become the property of the Contractor; or

(b)      the Contractor instructs that some or all of them are to be left on the Site for use in completing the Sub-Contract Works.

(4)      If the Sub-Contractor does not comply with clause 36.4(3) within a reasonable time, the Contractor may, without being responsible for any loss or damage, remove and sell the Sub-Contractor{s's} property and hold the proceeds, less the expenses incurred, to the credit of the Sub-Contractor.

(5)      The Architect may nominate a new sub-contractor to complete the Sub-Contract Works and to rectify defects of the kind referred to in clause 17 .4, and that sub-contractor shall be permitted to enter upon the Site and use the materials, goods, temporary buildings, plant and equipment left on the Site under clause 36.4(3).{ The Architect may instruct the Contractor to do the same instead of nominating a new sub-contractor.}

(6)      If instructed to do so by the Contractor, the Sub-Contractor shall assign to the Contractor, so far as he is legally able to do so, without payment:

(a)      all suppliers'{,} manufacturers' and {sub-sub-contractor's sub-sub-contractors'} warranties, guarantees or other ancillary agreements for materials, goods and work relating to the Sub-Contract Works insofar as they are required by the Sub-Contract within 28 days of the date of determination; and

(b)      the remaining assignable benefit of any agreements for the supply of materials or goods, carrying out of work and the hiring of plant and equipment within 14 days of the date of determination.

(7)      The Contractor shall pay for materials, goods, work, plant and equipment{,} supplied, carried out or hired after determination at the rates stated in the relevant agreements between the Sub-Contractor and his sub-sub-contractors and/or suppliers.

(8)      The Contractor, if so directed by the Architect, shall pay a sub-sub-contractor or supplier for materials or goods delivered to the Site and work carried out if the materials, goods or work have not already been paid for by the Sub-Contractor. If the Sub-Contractor has been paid for the materials, goods or work but has not paid the sub­-sub-contractor or supplier, the Contractor may recover the sum paid to the Sub-Contractor under clause 41 or as a debt.

(9)      The Contractor shall not have to make any further payment to the Sub-Contractor until the final settlement is made under clause 36.6.

Quantity Surveyor to prepare final account

36.5   The Quantity Surveyor shall prepare the final account as soon as practicable after the final account for the completion of the Sub-Contract Works by the new {Sub-Contractor sub-contractor} nominated by the Architect {(or by the Contractor as instructed by the Architect) }has been finalised and it shall set out:

(a)      the expenses incurred by the Employer in completing the Sub-Contract Works excluding the cost of Variations instructed after determination;

(b)      the amount of any damage and direct loss and/or expense caused to the Employer by the determination;

(c)      the payment made or otherwise discharged in favour of the Sub-Contractor; and

(d)      the total amount that would have been payable for completing the Sub-Contract Works calculated in accordance with the Sub-Contract if the determination had not occurred.

The final settlement

36.6   (1)      The Architect shall certify, for the purpose of the final settlement, the amounts included in the final account under clause 36.5 as:

(a)      the sum incurred by the Employer in completing the Sub-Contract Works represented by the total of the items in paragraphs (a), (b) and (c) in clause 36.5; and

(b)      the amount that it would have cost the Employer to have carried out and completed the Sub-Contract Works but for the determination, represented by the {items amount} in paragraph (d) in clause 36.5.

(2)      The difference between the two amounts in clause{s} 36.6(1 )(a) and (b) shall be expressed in the certificate as a debt due to the Sub-Contractor from the Employer, through the Contract{or}, or to the Employer from the Sub-Contractor, as the case may be, and shall be payable within 28 days after the issue of the Architect's certificate.

(3)      The Contractor in discharging his obligation to pay the Sub-Contractor any amount due to him under the final settlement may, without prejudice to any other rights that the Contractor may possess, deduct from that amount the amount of any direct loss and/ or expense caused to him by the determination.

Other rights and remedies

36.7   The provisions of clauses 36.1 to 36.6 are without prejudice to any other rights and remedies that the Contractor may possess.

37     Determination by Sub-Contractor Default by Contractor

37 .1   (1)      The Sub-Contractor may give a notice of default to the Contractor if the Contractor defaults by:

(a)      completely or substantially suspending the carrying out of the Works without good cause;

(b)      not proceeding regularly and diligently with the Works without good cause so that the progress of the Sub-Contract Works is seriously affected; or

(c)      not paying the Sub-Contractor, without good cause, the amount due under clause 33.1 (7) and the Architect has certified this under clause 29.8(3) of the Main Contract Conditions;

and a remedy under any other provision of the Sub-Contract would not adequately recompense the Sub-Contractor for causes (a) and (b).

(2)      The notice of default shall specify the default and state that notice of determination may be served if the default continues for a further 14 days after receipt of the notice of default.

(3)      The Sub-Contractor may give a notice of determination of his own employment to the Contractor if:

(a)      the Contractor continues the default for 14 days after receipt of the notice given under clause 37.1 (1) and in the case of cause (c) the Employer does not make direct payment of the amount due to the Sub-Contractor under clause 29.8 of the Main Contract Conditions; and

(b)      the notice of determination is given to the Contractor within a further 14 days.

(4)      The determination shall take effect on the date of receipt of the notice of determination.

(5)      Where the Contractor ends the default, or the Sub-Contractor does not give a notice of determination, the Sub-Contractor may still determine his own employment if:

(a)      the Contractor continues the default or resumes it at any time; and

(b)      the notice of determination is given to the Contractor upon or within a reasonable time after the continuation or resumption of the default.

(6)      The Sub-Contractor shall not be entitled to give notice of determination under clause 37.1:

(a)      for a default of the Contractor if it was caused or significantly contributed to by a breach of contract or other default of the Sub-Contractor or any person for whom the Sub-Contractor is responsible; or

(b)      in respect of a dispute as to a deduction or set-off made by the Contractor under the Sub-Contract.

Insolvency of Contractor

37.2   (1)      The Sub-Contractor may give a notice of determination of his own employment if the Contractor:

(a)      becomes bankrupt;

(b)      makes a composition or arrangement with his creditors;

(c)      has a petition for compulsory winding-up presented or made against him;

(d)      enters into compulsory or voluntary liquidation except for the purpose of reconstruction; or

(e)      has a provisional liquidator or receiver appointed.

(2)      The determination shall take effect on the date of receipt of the notice of determination.

(3)      The obligation of the Sub-Contractor to carry out and to complete the Sub-Contract Works, other than the supply of materials and goods already paid for, shall be suspended immediately after the occurrence of any of the events set out in clause 37 .2 and before any notice of determination of his own employment takes effect.

Consequences of determination

37.3   (1)      In addition to their other obligations under the Sub-Contract, the parties shall act in accordance with clause 37 .3 upon determination by the Sub-Contractor of his own employment under clause 37 unless the employment has been reinstated.

(2)      The provisions of clauses 20 and 21 shall remain in effect until the Sub-Contractor has completed his activities on the Site notwithstanding determination of the employment of the Sub-Contractor.

(3)      The Sub-Contractor shall immediately remove his materials, goods, temporary buildings, plant and equipment that have not become the property of the Contractor with care so as to prevent injury, death or damage to persons or property and ensure that others remove theirs with similar care.

(4)      If instructed to do so by the-Contractor; the Sub-Contractor shall assiqn to the Contractor, so far as he is legally able to do so, without payment:

(a)      all suppliers', manufacturers' and sub-sub-contractors' warranties, guarantees or other ancillary agreements for materials, goods and work relating to the Sub-Contract Works insofar as they are required by the Sub-Contract, within 28 days of the date of determination; and

(b)      the remaining assignable benefit of any agreements for the supply of materials or goods, carrying out of work and the hiring of plant and equipment within '14 days of the date of determination.

(5)      The Contractor shall pay for materials, goods, work, plant and equipment supplied, carried out or hired after determination at the rates stated in any relevant agreement between the Sub-Contractor and his sub-sub-contractors or suppliers.

Sub-Contractor to submit final account

37.4   (1)      The Sub-Contractor shall submit a final account to the Quantity Surveyor for checking, as soon as practicable, setting out the sum of:

(a)      the estimated value of the work in progress properly carried out up to the date of determination calculated in accordance with clause 33.2(2);

(b)      any amount not included in clause 37.4('1)(a) for the cost of materials and goods that were properly ordered for the Sub-Contract Works and delivered to or adjacent to the Site which the Sub-Contractor has paid for, or is legally bound to pay for, and has or will transfer the property in these materials and goods to the Contractor;

(c)      the reasonable cost of removal of materials and goods that have not become the property of the Contractor and temporary buildings, plant and equipment; and

(d)      the amount of any direct loss and/or expense caused to the Sub-Contractor by the determination.

(2)      The estimated value of the work in progress referred to in clause 37.4(1)(a) shall be broken down into separate amounts for each of the relevant items listed in clause 33.2(3).

(3)      The Sub-Contractor's submission shall be supported by detailed and annotated dimension sheets, measurements, accounts, vouchers, receipts and the like that may reasonably be required by the Quantity Surveyor to ascertain the amounts properly due to the Sub-Contractor.

Quantity Surveyor to check final account

37.5    The Quantity Surveyor shall check, verify or amend the final account as soon as practicable after receiving sufficient supporting documentation.

The final settlement

37.6    (1)      Upon verification or amendment of the Sub-Contractor's final account under clause 37.5, the Architect shall certify for the purpose of the final settlement:

(a)      the amount of the final account being the total of the amounts under clause 37.4; and

(b)      the payments made or otherwise discharged in favour of the Sub-Contractor.

(2)      The difference between the two amounts in clause 37.6(1 )(a) and (b) shall be expressed in the certificate as a debt due to the Sub-Contractor from the Contractor or to the Contractor from the Sub-Contractor as the case may be and shall be payable within 28 days after the issue of the Architect's certificate.

Other rights and remedies

37.7    The provisions of clauses 37.1 to 37.6 are without prejudice to any other rights and remedies which the Sub-Contractor may possess.

38     Determination of the Contractor's employment under the Main Contract

Determination of Contractor's employment by Employer

38.1    If the Contractor's employment is determined under clause 35 of the Main Contract Conditions then the employment of the Sub-Contractor under the Sub-Contract shall also determine at the same time and the provisions of clauses 37.3(1) to (3) and 37.4 to 37.7 shall apply.

Determination of Contractor's employment by Contractor

38.2    If the employment of the Contractor is determined under clause 36 or 37 of the Main Contract Conditions then the employment of the Sub-Contractor under the Sub-Contract shall also determine at the same time and the provisions of clauses 36.4(1) to (3) shall apply. The entitlement of the Sub-Contractor to payment shall be the proportion fairly and reasonably attributable to the Sub-Contract Works of the amounts paid by the Employer to the Contractor under clause 36 or 37 of the Main Contract Conditions, as the case may be.

39    Fluctuations

Fluctuation provisions only applicable if expressly stated to be

39.1    The Sub-Contract $um shall be adjusted upwards of downwards to take account of fluctuations in the cost of labour and materials in accordance with the provisions set out in the Sub-Contract only if it is expressly stated in the Appendix that the Sub-Contract Sum is to be adjusted for fluctuations.

Adjustment for fluctuations occurring after the Completion Date

39.2    If the Sub-Contractor fails to complete the Works by the Completion Date and the Architect has issued a certificate to that effect under clause 24.1 the adjustments for fluctuations occurring after the Completion Date shall be calculated based on the cost of labour and materials relevant at the Completion Date.

40    Notices, certificates and other communications

Submission of notices, certificates and other communications

(1)      All notices, certificates and other communications under the Sub-Contract shall be submitted to the Employer, the Architect or the Contractor on the Site or sent to the address stated in the Articles of Agreement or such other address in Hong Kong as may be advised.

(2)      Except for notices, certificates or other communications required to be sent by special delivery, a notice, certificate or other communication shall be given by hand, sent by post or, if both parties agree, sent by facsimile or electronic mail.

(3)      Any notice, certificate or other communication sent by prepaid post shall be deemed to be received two clear days, excluding general holidays, after posting.

41     Recovery of money due to the Contractor

Contractor's power to recover damages etc.

(1)      The Contractor may make any deduction authorised by the Sub-Contract or at law including without limitation, deductions for costs, damages, debts, expenses or other sums for which the Sub-Contractor is liable to the Contractor from amounts due to the Sub-Contractor.

(2)      It is a condition precedent to the Contractor's right of deduction under clause 41 (1) that he gives a notice to the Sub-Contractor by special delivery stating the amount of the deduction and the reason for it at least 7 days before making the deduction.

42    Settlement of disputes

Procedures and Designated Representatives

42.1   (1)      Subject to clause 42.5 dealing with early arbitration the parties agree to follow the dispute settlement procedures outlined in clause 42.

(2)      Each party shall designate one of its own senior executives as it's representative (referred to in clause 42 as the 'Designated Representatives' within 14 days of acceptance of the Sub-Contractor's tender and the Designated Representative shall endeavour to settle disputes that arise during the carrying out of the Sub-Contract Works.

(3)      The Designated Representatives shall have the authority to settle disputes and shall not be involved in the day to day administration of the Sub-Contract.

Reference to Designated Representatives

42.2    (1)      If a dispute arises under or in connection with the Sub-Contract, the Architect shall at the request of either party, immediately refer the dispute to the Designated Representatives.

(2)      The Designated Representatives shall meet within 7 days of receipt of a notice from the Architect requesting them to resolve the dispute.

Reference to mediation

42.3    (1)      If the dispute is not resolved by the Designated Representatives within 28 days of the dispute being referred to them by the Architect under clause 42.2 either party may give a notice to the other party, by special delivery, to refer the dispute to mediation and the person to act as the mediator shall be agreed between the parties.

(2)      If the parties fail to agree on the person to act as the mediator within 21 days after either party has given to the other a written request to concur in this appointment, the mediator shall on the written request of either party be appointed by the President or Vice-President for the time being of The Hong Kong Institute of Architects co-jointly with the President or Vice-President for the time being of the Hong Kong Institute of Surveyors.

(3)      The mediation shall, unless otherwise agreed by the parties, be conducted in accordance with and subject to the Hong Kong International Arbitration Centre Mediation Rules except those provisions in the Rules relating to the appointment of the mediator.

Reference to arbitration

42.4    (1)      If the dispute is not settled by mediation within 28 days of the commencement of the mediation, either party may give a notice to the other party, by special delivery, to refer the dispute to arbitration and the person to act as the arbitrator shall be agreed between the parties.

(2)      If the parties fail to agree on the person to act as the arbitrator within 21 days after either party has given to the other a written request to do so, the arbitrator shall, on the written request of either party, be appointed by the President or Vice-President for the time being of The Hong Kong Institute of Architects co-jointly with the President or Vice-President for the time being of the Hong Kong Institute of Surveyors.

(3)      The Presidents or Vice-Presidents referred to in clause 42.4(2), if in agreement to do so, may, at their discretion, request the Hong Kong International Arbitration Centre to appoint the arbitrator, by a joint letter to the Chairman of that organization.

(4)      If the Presidents or Vice-Presidents referred to in clause 42.4(2) fail to appoint the arbitrator within 60 days after receiving the written request to do so under clause 42.4(2) then the arbitrator shall on the written request of either party be appointed by the Hong Kong International Arbitration Centre.

(5)      The arbitration shall be a domestic arbitration conducted in accordance with the Arbitration Ordinance (Chapter 341, Laws of Hong Kong) and, unless otherwise agreed by the parties, with the Domestic Arbitration Rules of the Hong Kong International Arbitration Centre except those provisions in the Rules relating to the appointment of the arbitrator.

Timing of arbitration

42.5   (1)      The arbitrator shall have jurisdiction to hear the parties and commence the arbitration of a dispute arising under or in connection with the Sub-Contract at any time on a question of whether:

(a)      the Contractor is empowered by either the Main Contract or the Sub-Contract to issue an instruction;

(b)      a certificate has been improperly withheld or is not in accordance with the Sub-Contract Conditions;

(c)      the Sub-Contractor's objection to a Variation referred to in clause 13.1(1)(b) is reasonable; and

(d)      determination by Contractor or Sub-Contractor.

(2)      The hearing of disputes other than those listed in clause 42.5(1) shall not commence until after Substantial Completion or alleged Substantial Completion of the whole of the Works or determination or alleged determination of the Contractor's employment or abandonment of the Works unless the written consent of the parties to the hearing is given after the dispute has arisen.

Architect's decision

42.6   In an arbitration under clause 42 any decision of the Architect which is final and binding on the Contractor under the Main Contract Conditions shall be deemed to be final and binding between and upon the Contractor and the Sub-Contractor under the Sub-Contract Conditions.

Arbitrator's powers

42.7   The arbitrator's powers include:

(a)      rectifying the Sub-Contract to accurately reflect the true agreement made by the parties;

(b)      directing measurements or Valuations to determine the rights of the parties;

(c)      assessing and awarding any sum which ought to have been the subject of or included in a certificate; and

(d)      opening up, reviewing and revising, without limitation, the giving, submitting or issuing of any agreement, approval, assessment, authorisation, certificate, confirmation, consent, decision, delegation, direction, dissent, determination, endorsement, instruction, notice, notification, opinion, request, requirement, statement, termination or Valuation.

The place of arbitration

42.8   The place of arbitration shall be Hong Kong.

Related dispute between parties to Main Contract

42.9   (1)      If a dispute arises which would fall to be referred to arbitration in accordance with clause 42 which is substantially the same as or connected with issues raised in a related dispute between the parties to the Main Contract then the Contractor and the Sub-Contractor hereby agree that the dispute under the Sub-Contract shall be referred to the arbitrator appointed to determine the related dispute.

(2)      The arbitrator shall have power to make such directions and all necessary awards in the same way as if the procedure of the Courts in Hong Kong as to joining defendants or third parties or others was available to the parties and to him.

Sub-Contractor to continue to proceed diligently

42.10   (1)      The Sub-Contractor shall continue to proceed regularly and diligently with the Sub-Contract Works despite a dispute having arisen, and shall continue to give effect to all instructions from the Contractor and the Architect unless and until revised by agreement between the Designated Representatives, by mediation or in arbitration under clause 42.

(2)      The Sub-Contractor's compliance with clause 42.10(1) is without prejudice to any other rights and remedies that he may possess.

43    Contractor to join with the Sub-Contractor in arbitration proceedings

Contractor to join with the Sub-Contractor in arbitration proceedings

If the Sub-Contractor feels aggrieved by:

(a)      the Quantity Surveyor's Valuation under clause 13;

(b)      an Architect's failure to give the consent required under clause 29.9 of the Main Contract Conditions to permit the Contractor to grant an extension of time to the Sub-Contractor under clause 25.3, or the terms of the consent;

(c)      an amount certified by the Architect in respect of the Sub-Contractor in an Interim Certificate or by his failure to certify; or

(d)      any other involvement of the Architect or the Quantity Surveyor in the Sub-Contract which the Sub-Contractor considers to be unfair;

then subject to the Sub-Contractor giving the Contractor such indemnity and security as the Contractor may reasonably require, the Contractor shall allow the Sub-Contractor to use the Contractor's name and if necessary join with the Sub-Contractor as plaintiff in arbitration proceedings with the Employer at the instigation of the Sub-Contractor to decide the matter.

Appendix

Particulars of the Works:

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Articles

   
 

Clause

Date for commencement of the Sub-Contract Works

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{23.1 23.2}

* The Sub-Contract Works are to be carried out at the same time as the Works with no separate completion date.

23.2

• The Sub-Contract Works and any Section are to be completed on or before the Sub-Contract Completion Dates specified below:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23.2

* Delete as applicable.

 

Sub-Contract Retention Percentage % . . . . . . . . . . . . .

(If not stated, to be the same as that specified in the Appendix to the Main Contract Conditions.)

33.4

Limit of Sub-Contract Retention HK$ . . . . . . . . . . . . . . . . . . . .

{plus the Retention held in respect of Nominated Suppliers}

33.4

Amount of Surety Bond HK$. . . . . . . . . . . . . . . . . . . .

{34.0 34}

Fluctuations

(The Sub-Contract Sum will be adjusted for fluctuations only if it is expressly stated to be so adjusted in the space below.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

{39.0 39}

Appendix to the Main Contract Conditions

 

Clause

 

Clause

 

Time for submission of master programme

(if not stated, within 42 days of acceptance of the Contractor's tender)

. . . . . . . . . . . . . . . . . . . . . . . .

3.1

Period of Interim Certificates

(if not stated, 1 calendar month)

. . . . . . . . . . . . . . . . . . . . . . . .

32.1

 

Period for payment of certificates

(if not stated, within 14 days from the date of the certificate)

. . . . . . . . . . . . . . . . . . . . . . . .

32.1

 

Defects Liability Period

(if not stated, 12 months from Substantial Completion of the Works, a Section or a Relevant Part)

. . . . . . . . . . . . . . . . . . . . . . . .

17.3

 

Retention Percentage

(if not stated, 1 0 per cent)

. . . . . . . . . . %

32.4

 

Limit of indemnity to third party liability insurance against injury or death to any person

HK$ . . . . . . . . . . . . . . . . . . . . .

21.2

 

Limit of Retention

HK$ . . . . . . . . . . . . . . . . . . . . .

plus the Retention held in respect of Nominated Sub-Contractors and Nominated Suppliers

32.4

 

Limit of indemnity to third party liability insurance against injury or damage to real or personal property

HK$ . . . . . . . . . . . . . . . . . . . . .

21.2

 

Period for completion of the final account

(if not stated, within 12 months from Substantial Completion of the whole of the Works)

. . . . . . . . . . . . . . . . . . . . . . . .

32.6

 

Insurance of the Works

*Clause 22A/Clause 22B/Clause 22C applies

22.1

 

Percentage to cover Professional fees

. . . . . . . . . . %

22.2

 

Amount of surety bond

HK$ . . . . . . . . . . . . . . . . . . . . .

33.1

 

Date for Possession of the Site

. . . . . . . . . . . . . . . . . . . . . . . .

23.1

 

Fluctuations

(The Contract Sum will be adjusted for fluctuations only if it is expressly stated to be so adjusted in the space below)

38

 

Commencement Date

. . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . .

23.2

 

Completion Date

. . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . .

24.2

* Delete as applicable

   

Liquidated and ascertained Damages (HK$ per day)

. . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . .

24.2

 

 

SCHEDULE 1 FORM OF SURETY BOND TO BE GIVEN BY THE NOMINATED SUB-CONTRACTOR TO THE {CONTRACTOR EMPLOYER}

 

By this Bond, we, the Nominated Sub-Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <trading as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .> (Note 1) [whose registered office is) at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Note 2) ('the Sub-Contractor') and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . whose registered office is at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Surety') are held and firmly bound unto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . <trading as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  > (Note 1) [whose registered office is) at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Note 2) ('the {Contractor Employer}') in the sum of Hong Kong Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HK$. . . . . . . . . . . . . . . . . . . . .) for the payment of which sum the Sub-Contractor and the Surety bind themselves, their successors and assigns, jointly and severally by these presents.

 

Sealed with our respective seals/Signed and sealed respectively* (Note 3) and dated this . . . . . . . . . . . day of . . . . . . . of 20 . . .

 

{Whereas [By a Contract dated the  . . . . . . . . . . . day of . . . . . . . of 20 . . . made between . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Employer') of the one part and the Contractor of the other part] or [By the letter of acceptance sent by the Architect on behalf of the Employer to the Contractor dated the  . . . . . . . . . . . day of . . . . . . . of 20 . . . the Employer accepted the tender submitted by the Contractor dated the  . . . . . . . . . . . day of . . . . . . . of 20 . . . ] (Note 4) for the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Contract') the Contractor has agreed to develop the Architect's design to the extent specified in the Contract, construct, complete and maintain the Works (as therein defined) until the issue of the Defects Rectification Certificate and to perform the Contract in conformance with the provisions thereof.

and whereas the Sub-Contractor entered into a Nominated Sub-Contract ('the Sub-Contract') on with the Contractor to carry out the Sub-Contract Works forming part of the Works as described in the Sub-Contract.

and whereas pursuant to the terms of the Sub-Contract, the Sub-Contractor has agreed to obtain the guarantee of a surety to be bound unto the Contractor in the sum of Hong Kong Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HK$. . . . . . . . . . . . . . . . . . . . .) for the due performance of the Sub-Contract by the Sub-Contractor.

and whereas at the request of and for the account of the Sub-Contractor, the Surety has agreed to guarantee the Contractor the due performance by the Sub-Contractor of its obligations under the Sub-Contract.}

 

{Whereas

(1)      By a letter dated the . . . . . . . . . . . day of . . . . . . . of 20 . . .  issued by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  on his behalf, the Employer has agreed to nominate the Sub-Contractor to execute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (‘the Sub-Contract Works’) which form part of the Main Contract for the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . (‘the Works’).

(2)     The Sub-Contractor has agreed to enter into a formal Sub-Contract (‘the Sub-Contract’) in accordance with the said letter with the Contractor appointed or to be appointed by the Employer.

(3)      Pursuant to the terms of a Form of Warranty given by the Sub-Contractor to the Employer, the Sub-Contractor has agreed to obtain the guarantee of a surety to be bound jointly and severally with the Sub-Contractor unto the Employer in the aforesaid sum for the due performance of the Sub-Contract by the Sub-Contractor.

(4)     At the request of and for the account of the Sub-Contractor, the Surety has agreed to provide such guarantee.}

 

Now the conditions of the above written Bond are:-

1.     The words and expressions in this Bond shall have the same meaning as in the Contract and the Sub-Contract.

2.     {The If the} Sub-Contractor shall duly perform and observe all the terms, provisions, conditions, obligations, stipulations and specification of the Sub-Contract according to the true purport intent and meaning thereof and to the reasonable satisfaction of the Architect appointed by the Employer in respect of the Works or if on default by the Sub-Contractor the Surety shall satisfy and discharge the damages sustained by the {Contractor Employer} thereby as certified by the said Architect, up to the amount of the above written Bond then his obligation shall be null and void but otherwise his obligation shall be and remain in full force and effect.

3.     The obligations of the Surety hereunder shall be primary, independent and absolute obligations and shall remain in full force and effect and shall not be affected or discharged by (and the Surety hereby waives notice of) any variations to {the Works and/or} the Sub-Contract Works to be carried out under {the Contract or} the Sub-Contract or other amendments to the Sub-Contract {and/or the Contract} including extensions of time for performance or other concessions or waivers granted by the Contractor of any right or remedy the Contractor may have against the Sub-Contractor and/or by any other bond, security or guarantee now or hereafter held by the Contractor {or the Employer} for all or any part of the obligations of the Sub-Contractor or by the release or waiver of any such bond, security or guarantee or the dissolution, insolvency or reorganisation of the Sub-Contractor or any other act or things or omission or delay to any other act or thing which may or might in any manner or to any extent {varied vary} the Surety's liability as a matter of law or equity.

4.     This Bond shall be binding upon the Sub-Contractor and the Surety and their respective successors and assigns jointly and severally (provided that the Sub-Contractor and Surety may not assign their respective rights and liabilities hereunder without the prior written consent of the {Contractor Employer}) and shall inure to the benefits of the {Contractor Employer} and {its his} successors and assigns.

5.     This Bond shall remain valid for receipt of claims as aforesaid {from the date of the Sub-Contract} until the date of issue of the Defects {Liability Rectification} Certificate {pursuant to the Conditions of the Contract in respect of the Sub-Contract Works} and any release of the Surety from the Bond shall be expressly subject to any claims made before this date.

6.     This Bond shall be governed and construed in accordance with the laws of the Hong Kong Special Administrative Region and {the Surety we} hereby agree{s} to the non-exclusive jurisdiction of the Courts of the Hong Kong Special Administrative Region.

 

SIGNED, SEALED AND DELIVERED by the

Sub-Contractor in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

(Signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)

)      (Note {5 4})

)

)

)

)

)

)

OR

 

THE COMMON SEAL of the Sub-Contractor

was hereunto affixed in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)

)      (Note {6 5})

)

)

)

)

)

)

OR

 

SIGNED, SEALED AND DELIVERED for

and on behalf of and as lawful

attorney of the Sub-Contractor

under Power of Attorney dated

. . . . . . . . . . . . . . . . . . . . . . . . . by

. . . . . . . . . . . . . . . . . . . . . . . . . . .

in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

(Signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)

)      (Note {7 6})

)

)

)

)

)

)

)

)

)

)

)

 

 

THE COMMON SEAL of the Surety

was hereunto affixed in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)

)      (Note {6 5})

)

)

)

)

)

)

OR

 

SIGNED, SEALED AND DELIVERED for

and on behalf of and as lawful

attorney of the Surety

under Power of Attorney dated

. . . . . . . . . . . . . . . . . . . . . . . . . by

. . . . . . . . . . . . . . . . . . . . . . . . . . .

in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

(Signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)

)      (Note {7 6})

)

)

)

)

)

)

)

)

)

)

)

Notes

(1)     Delete content in <         > where the {Contractor Employer} or Sub-Contractor is a limited company.

(2)     Delete content in [         ] where the {Contractor Employer} or Sub-Contractor is a firm.

(3)     * Delete as appropriate.

Delete 'Sealed with our respective seals' in the case of a firm.

Delete 'Signed and sealed respectively' in the case of a limited company.

{(4)     ** Delete as appropriate, select according to whether the Contract is signed or not.}

(5 6)     For use in the case of a sole proprietor or where all partners of a firm execute.

(6 7)     For use in the case of a limited company executing under its common seal.

(7 8)     For use in the case of a firm or a limited company executing through an attorney.

 

SCHEDULE 2 FORM OF WARRANTY TO BE GIVEN BY THE NOMINATED SUB-CONTRACTOR TO THE EMPLOYER IN CONSIDERATION OF NOMINATION

 

This DEED OF WARRANTY is granted to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Employer') in respect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Main Contract Works') which are to be carried out by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Contractor') under the terms of the Contract between the Employer and the Contractor dated . . . . . . . . . . or the letter of acceptance dated . . . . . . . . . . of the Contractor's tender dated . . . . . . . . . . * and

* delete as appropriate

 

<alternatively when the Contractor is not yet appointed:

This DEED OF WARRANTY is granted to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Employer') in respect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Main Contract Works') which are to be carried out by a contractor ('the Contractor') under the terms of a contract between the Employer and the Contractor and>

 

In respect of our Tender for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Sub-Contract Works') which {is are} intended to form part of the Main Contract Works under a Nominated Sub-Contract ('the Sub-Contract').

 

We . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ('the Nominated Sub-Contractor') warrant that in consideration of {your the Employer} instructing the Architect to nominate us as the Sub-Contractor for the Sub-Contract Works:-

(a)     We will commence and complete the Sub-Contract Works, in accordance with the Sub-Contract.

(b)     We will indemnify the Employer against all extra costs that may be incurred by non­-performance of the Sub-Contract Works, by late completion of the Sub-Contract Works or by any breach of these warranties.

(c)     We have exercised and will exercise all reasonable skill and care in :-

(1)     the design of the Sub-Contract Works insofar as the Sub-Contract Works have been or will be designed by us; and

(2)     the selection of materials and goods for the Sub-Contract Works insofar as such materials and goods have been or will be selected by us.

(d)     We will comply with and satisfy any performance specification or requirements insofar as such performance specification or requirements are included or referred to in the Tender Documents and/or our Tender as part of the description of the Sub-Contract Works.

(e)     We will supply the Architect and{/}or Contractor with such information as either may reasonably require and at such times that the Contractor shall not be delayed in completing the Main Contract Works by the Completion Date by our failure to supply such information or by delay on our part, provided always that no liability shall arise in respect of such delay on our part until we have accepted the Contractor's order in respect of the Sub-Contract Works.

(f)     Nothing in our Tender shall operate to exclude or limit our liability for breach of the warranties set out herein.

(g)     We will obtain a surety bond in the form set out in Schedule 1 of the Sub-Contract{ with the requisite changes in wording to reflect that the bond is to be given by the Nominated Sub-Contractor to the Employer instead of to the Contractor}. This bond will be duly executed under seal by an approved insurance company or bank, acknowledging that the Insurance Company or the Bank is jointly and severally bound with us to the Employer in the sum of 10% of the Sub-Contract Sum (rounded up the nearest thousand dollars) against breach of the warranties hereof.

The words and expressions used in this Deed of Warranty shall have the same meaning as in {the Contract and} the Sub-Contract.

 

SIGNED, SEALED AND DELIVERED by the

Sub-Contractor in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

(Signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)

)      (Note 1)

)

)

)

)

)

)

OR

 

THE COMMON SEAL of the Sub-Contractor

was hereunto affixed in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Signature of witness)

. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)

)      (Note 2)

)

)

)

)

)

)

OR

 

SIGNED, SEALED AND DELIVERED for

and on behalf of and as lawful

attorney of the Sub-Contractor

under Power of Attorney dated

. . . . . . . . . . . . . . . . . . . . . . . . . by

. . . . . . . . . . . . . . . . . . . . . . . . . . .

in the presence of :-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

(Signature of witness)

<. . . . . . . . . . . . . . . . . . . . . . . . . . .

 . . . . . . . . . . . . . . . . . . . . . . . . . . .

 (Name and occupation of witness)>

)      (Note 3)

)

)

)

)

)

)

)

)

)

)

)

 

 

Notes

(1)     For use in the case of a sole proprietor or where all partners of a firm execute.

(2)     For use in the case of a limited company executing under its common seal.

(3)     For use in the case of a firm or a limited company executing through an attorney.

 

Index to the Sub-Contract General Conditions

<Omitted>

 

Published by

The Hong Kong Institute of Architects

The Hong Kong Institute of Construction Managers

The Hong Kong Institute of Surveyors

Hong Kong SAR, China

 

Copyright© 2005 All rights reserved.

Reproduction or transmission in any form or by any means, electronic or mechanical, is prohibited unless permitted in writing from the copyright owners, including:

The Hong Kong Institute of Architects

The Hong Kong Institute of Construction Managers

The Hong Kong Institute of Surveyors

 

First Printed in Hong Kong

April 2005

ISBN 988-98402-3-5

 

The copyright of this publication is owned by The Hong Kong Institute of Architects, The Hong Kong Institute of Construction Managers and The Hong Kong Institute of Surveyors. The contents do not necessarily reflect the views or opinions of these copyright owners and no liability is accepted in relation thereto.

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