Note
16/10/2025: Comments on clause 14.3 revised.
7/10/2025: Added until the end.
4/10/2025: Created. Up to Appendix only.
Intro
Legend:
- {
deleted textadded text} - <should be “correct text”> - this focuses on version revision text only, not commenting on those not changed.
Changes
Attestation
(company seal {to may} be impressed here {as an option} if executed as a deed by a limited company{, but is not a necessity provided that Section 127(3) of the Companies Ordinance, Chapter 622 is complied with})
* {delete Delete} as applicable
The General Conditions
Definitions
1.6 The following words and phrases in the Articles of Agreement, the Conditions and the Appendix shall have the meanings given below unless the context in which they appear requires otherwise or the Articles, the Conditions or an item or entry in the Appendix provides otherwise:
Contract Bills: the priced bills of quantities referred to in {the recitals third recital} <should be “the third recital”> of the Articles and submitted by the Contractor with his tender, or a certified true copy of those bills of quantities.
Defects Liability Period: the period stated in the Appendix under the reference to clause 17.3, commencing on the day after the Date of Substantial Completion of the Works or a Section or the day after the Relevant Date of {Substantial Completion of} a Relevant Part.
Final Certificate: the certificate issued by the Architect stating the Final Contract Sum and the total of the amounts of {Interiminterim} <should be “Interim”> Certificates to be set off against that sum, as described in clause 32.8.
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 items}<should be “Items”> or to expend Provisional Sums.
Contractor's obligations
2.1 (1) The Contractor shall in compliance with the Contract:
(g) carry out the maintenance of mechanical and electrical {equipment systems} where required to do so by the Contract for the period of time so specified;
Architect to issue instructions in writing
4.2 (1) The Architect must issue all instructions in writing {in accordance with clause 1.9}. All oral instructions given must be confirmed in writing within 5 days of giving the oral instruction. If the Architect gives an oral instruction that the Contractor believes {requires requiring} <should be “requires”> a Variation it shall have no immediate effect, the Contractor shall confirm the oral instruction requiring a Variation in writing to the Architect within 7 days of it being issued and if not dissented to in writing by the Architect within 7 days from his receipt of the Contractor’s confirmation the Variation shall take effect on the expiry of the latter 7 days.
Compliance with Architect’s instructions
4.3 (2) If the Contractor disagrees that the Architect is empowered by the Conditions to issue an instruction{,} he may within 7 days of receipt of that instruction require the disagreement to be resolved under clause 41.
Contractor to carry out preventative work
4.4 (1) In the event of an emergency caused by an event arising out of or in connection with the Works that threatens the safety of {the Works or} any person or property, the Contractor shall immediately:
The documents forming the Contract
5.1 (2) The order of precedence of the documents forming the Contract shall be as listed in paragraphs (a) to (e) above {in descending order} and:
(a) for the purpose of adjusting the Contract Sum{,} the Contract Bills shall take precedence over the Contract Drawings and the Specification; but
(b) for all other purposes including carrying out the construction of and completing the Works{,} the Contract Drawings and the Specification shall take precedence over the Contract Bills.
Copies of documents for Contractor
5.3 As soon as practicable after the acceptance of the Contractor’s tender{,} the Architect shall provide the Contractor, without charge, with:
Further drawings, details, descriptive schedules and similar documents
5.6 (2) If in the Contractor’s opinion he requires more supplementary documentation than that provided by the Architect under clause 5.6(1){,} he shall submit a written request to the Architect specifying what further supplementary documentation he requires.
Submission of manuals and assignment of warranties
5.11 (1) The Contractor shall submit to the Architect all the operation and maintenance manuals {prepared by or} received by the Contractor.
Intellectual property in design of the Works
9.1 The 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 permanent Works <should be “works”> other than works under a Nominated Sub-Contract or materials and goods supplied under a Nominated Supply Contract, and the cost shall be added to the Contract Sum.
Intellectual property in materials and goods
9.2 The 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 incorporation of materials and goods into the permanent Works <should be “works”> other than materials and goods supplied under a Nominated Sub-Contract or a Nominated Supply Contract. The cost shall be added to the Contract Sum unless the Contractor was responsible for the selection of the materials and goods in accordance with a performance specification or otherwise in which case the cost shall be deemed to be included in the Contract Sum.
Architect’s representative
12.1 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 and} acting under the direction of the Architect.
Architect’s authority to issue instructions requiring a Variation
13.1 (2) {The An} instruction requiring a Variation shall describe the change required to the design, quality or quantity of the Works or the imposition of or change to any obligation or restriction on the Contractor and where appropriate the Architect shall issue revised drawings and/or schedules.
(3) The 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 Contractor except in the event of an emergency as provided for in {Clause clause} 4.4.
Valuation rules
13.4 (1) Where the Valuation relates to the carrying out of:
…
the work shall be measured and shall be valued in accordance with the following rules:
(iii) where the work is not the same as or similar in character to any work priced in the Contract Bills{,} the work shall be valued at fair rates; and
(2) (d) where there are no daywork rates in the 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 {as Reported by Main Contractors} published by the Census and Statistics Department of the Government of the Hong Kong Special Administrative Region {current at the date when for the month in which} the work is carried out;
(3) Where the Valuation relates to the omission of work included in the Contract Bills:
(b) if{,} in the Quantity Surveyor’s opinion{,} the 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.
(5) An appropriate allowance shall be made in a Valuation under clause 13.4 for any percentage {or lump sum} adjustment made to the Contract Bills.
Variation necessitated by fault of Contractor
13.7 If and to the extent that an instruction requiring a Variation arose as a result of a breach of contract or other default by the Contractor or any person for whom the Contractor is responsible{,} the Quantity Surveyor shall take the effect of the breach or default into account in the Valuation of the Variation.
Quality and quantity of work included in Contract Sum
14.1 The quality and quantity of the work included in the Contract Sum stated in Article 2 shall be deemed to be that which is set out in the Contract Bills which shall be read in conjunction with the Specification {and the Contract Drawings} to amplify and supplement the descriptions in the Contract Bills.
Standard Method of Measurement of Building Works
14.2 (2) {A 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 Contract Bills {or in the descriptions of the applicable items in the 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 Contract Bills
14.3 (1) An error in description or in quantity or {in} the omission of an item from <should be "Any error in description or quantity in or any omission of item from"> the Contract Bills shall not vitiate the Contract nor release the Contractor from any of his obligations or liabilities.
(3) An error in description of an item shall be corrected{,} and{,} if in <should be “corrected, and if in”> the Quantity Surveyor’s opinion{,} the rate for that item in the Contract Bills is no longer fair by reason of that correction, {he the Quantity Surveyor} shall fix a new rate that is fair to both parties.
Property in materials and goods
16 (2) Materials and goods delivered to or adjacent to the Site shall not be removed without the consent of the Architect. If they have become the property of the Employer{,} the 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 Employer or any person for whom the Employer is responsible.
Separate Defects Liability Period for each Section and Relevant Part
17.2 (1) If sectional completion of the Works is provided for in the Contract or the Employer takes possession of a Relevant Part{,} each Section or Relevant Part shall have its own separate Defects Liability Period.
(2) The Architect shall issue a Substantial Completion Certificate upon Substantial Completion of each Section or Relevant Part except for the last one. Upon Substantial Completion of the last Section or Relevant Part{,} the Architect shall issue the Substantial Completion Certificate for the Works and Substantial Completion of the whole of the Works shall be deemed to have taken place on the date stated in that certificate.
Rectifying defects
17.3 (1) The Contractor shall rectify all defects, shrinkages or other faults {(collectively "the defects" in clauses 17.3 to 17.7)} which are identified during the Defects Liability Period of the Works, a Section or a Relevant Part stated in the Appendix, and are caused either by materials, goods or workmanship which are not in accordance with the Contract, by natural causes or as a result of a Specified Peril occurring during the construction period prior to Substantial Completion.
(4) If the Contractor does not comply with the Architect’s instruction to rectify the defects listed in a schedule of defects within a reasonable time{,} the provisions of clauses 4.3(3) and 4.3(4) shall apply.
Separate certificate for each Section or Relevant Part
17.5 (2) Upon the completion of rectifying defects to the last Section or Relevant Part in accordance with clause 17.4{,} the Architect shall issue a Defects Rectification Certificate for the Works and the completion of rectifying defects for the whole of the Works shall be deemed to have taken place on the date stated in the certificate.
Liquidated and ascertained damages
18.4 Where the Employer requires the Contractor to pay or allow liquidated and ascertained damages under clause 24 for the Works or a Section and the Employer has taken possession of a Relevant Part under clause 18.1 then:
(a) where sectional completion is not contemplated under the Contract, the rate of liquidated and ascertained damages in respect of the Works shall be reduced, during the period when the Works {remains
Employees' Compensation Insurance
21.1 (1) The Contractor shall effect and maintain employees’ compensation insurance in compliance with the provisions of the Employees' Compensation Ordinance in the joint names of the {Employer as the Principal, the} Contractor, his sub-contractors and their respective sub-contractors of all tiers{,} against all liabilities arising in respect of bodily injury to, disease contracted by or death of {employees of} the {Contractor’s Contractor} or any {sub-contractor’s sub-contractor} of all tiers {employees} arising out of and in the course of their employment on the Works or in connection with the Contract.
Third party liability insurance
21.2 (1) The party responsible for effecting Contractors’ All Risks Insurance of the Works under either clause 22A, 22B or 22C shall, unless otherwise stated in the Contract, effect insurances in the joint names of the Employer, the Contractor, his sub-contractors and their respective sub-contractors of all tiers against all liabilities of the insured under the Contract or otherwise in respect of:
(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:
(ii) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds{,; and}
{Deductibles and exclusions}
{21.7 Any amount not insured or not recovered under the policy referred to in clause 21.2 including, without limitation, the amount of any deductibles, shall be borne by the Contractor or the Employer in accordance with their respective responsibilities as if there is no insurance.}
Insurance of the Works to be in joint names and period of insurances
22.4 (1) The Contractors’ All Risks Insurance of the Works shall be effected and maintained in the joint names of the Employer, the Contractor, his sub-contractors and their respective sub-contractors of all tiers and suppliers. The insurance cover shall run from the {Commencement Date commencement of the Works or the Date for Possession of the Site, whichever is earlier,} until 14 days after the issue of the Substantial Completion Certificate for the Works or 14 days after the determination of the employment of the Contractor, whether valid or not, whichever is earlier.
(2) If the Contract provides for sectional completion of the Works or the Employer has taken possession of a Relevant Part, the obligation {of the party responsible for effecting to effect} the Contractors’ All Risks Insurance of the Works shall terminate in relation to any Section or Relevant Part 14 days after Substantial Completion of that Section or Relevant Part.
Contractor’s payment not more than insurance proceeds
22.6 The Contractor shall 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 only any amount included for the professional fee as stated in clause 22.2(b))} 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.
Use of annual policy maintained by Contractor
22A.3 (2) The Contractor shall produce the annual policy of insurance, premium receipt and the endorsement for inspection by the Architect prior to the commencement of the Works {or taking possession of the Site, whichever is earlier,} and the annual premium receipt within 14 days after each renewal date.
Remedy if Employer fails to insure
22B.2 (1) The Employer shall provide evidence to the Contractor that the Contractors’ All Risks Insurance of the Works under clause 22B.1 has been effected and is being maintained prior to the commencement of the Works {or taking possession of the Site, whichever is earlier,} and produce the premium receipt and any relevant endorsements as soon as practicable afterwards, followed by a copy of the insurance policy as soon as it becomes available.
Liquidated and ascertained damages
24.2 (1) If the Architect issues a certificate under clause 24.1(1), the Contractor shall, if required to do so by a notice from the Employer, pay or allow to the Employer liquidated and ascertained damages at the rate per day referred to in clause 24.2(3) for the period {between the Completion Date commencing from the date by which the Architect certified the Works or Section ought to have been completed under clause 24.1(1) up to} and {the Date of Substantial Completion including the date by which the Works or Section were completed as certified under the Substantial Completion Certificate} <should be “commencing after”>.
(3) The listed events are as follows:
(b) inclement weather conditions, being rainfall in excess of twenty millimetres 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 Works;
Contractor’s second notice
25.2 (3) Where the listed event has a continuing effect the Contractor shall:
(b) make further submissions to the Architect at intervals not exceeding 28 days giving further interim particulars and estimates of the length of the delay until the delay ceases; {and}
Rate of progress
25.5 (2) After receiving the Architect’s notification{,} the 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 Works by the Completion Date.
Nominated Sub-Contractor’s {/ Nominated Supplier’s} claim for additional payment
27.4 (1) The Contractor shall give the Architect a copy of a claim from a Nominated Sub-Contractor for additional payment for direct loss and/or expense under the Nominated Sub-Contract.
{(5) Sub-clauses (1) to (4) above equally apply to Nominated Suppliers and shall be read accordingly to give that effect.}
Contractor to give notice of claim
28.1 (2) The Contractor need <should be “needs”> not give the notice required under clause 28.1(1) in the case of an Architect’s instruction under clauses <should be “clause”> 13.1 or 13.2 insofar as that instruction is subject to a Valuation under clause 13.
Contractor to submit particulars
28.2 (2) The Contractor shall as soon as practicable{,} but in any case within 60 days of giving notice under clause 28.1, submit to the Architect:
Substantial completion of Nominated Sub-Contract works
29.10 (3) Where a Nominated Sub-Contract requires the sub-contract works to be carried out at the same time as the Works with no separate completion date specified, those works shall be deemed to have been substantially completed on the {day date} <seems “day” to be more proper> stated in the Substantial Completion Certificate for the Works and the Architect shall issue a copy of this certificate to each Nominated Sub-Contractor.
Architect to certify Nominated Sub-Contractor’s failure to complete on time
29.11 (2) If in the Architect’s opinion the Nominated Sub-Contractor has failed to complete the sub-contract works on time{,} the Architect shall issue a certificate to the Contractor to that effect in the form required by the sub-contract within 28 days of the Contractor’s notification under clause 29.11(1), provided that the Architect is satisfied that the Contractor has followed the provisions of clause 29.9, and shall issue a copy of his certificate to the Nominated Sub-Contractor.
Persons for whom the Employer is responsible
30.1 The following persons shall be deemed to be persons for whom the Employer is responsible:
(b) a person engaged by the Employer under clause 4.3(3); {and} <should not delete “and”>
Interim Certificates and interim valuations
32.1 (4) The Contractor shall submit to the Quantity Surveyor, {with copies to the Architect and the Engineer as appropriate,} at least 14 days before the date on which an Interim Certificate is due to be issued, a statement setting out the Contractor’s estimate of the gross valuation of the work in progress including:
Off-site materials or goods
32.3 The Architect may, at his discretion or where expressly provided in the Contract, include the value of materials or goods intended for inclusion in the 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 held for the Employer for use upon the 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 these materials or goods for inclusion in the Quantity Surveyor’s interim valuation of the work in progress under clause 32.1(5).
Retention Rules
32.5 (2) The Architect shall issue an Interim Certificate for the payment of one-half of the 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 {Substantial Completion of the issue of the Substantial Completion Certificate for} the whole of the Works, that Section or Relevant Part.
(4) The Architect shall issue an Interim Certificate for payment of {all the} remaining 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} under clause 17.4 or 17.5.
Quantity Surveyor to prepare final account
32.6 (5) The Architect shall issue a copy of the final account signed by the Quantity Surveyor {and the Contractor} to each of the parties by special delivery.
Adjustment of the Contract Sum
32.7 (2) The following amounts shall be deducted from the Contract Sum:
(d) the total of all Valuations under clause 13.4 which {result results} in a reduction in the Contract Sum;
Issue of Final Certificate
32.8 (1) The Architect shall issue the Final Certificate to each of the parties by special delivery as soon as practicable after the issue of the Defects Rectification Certificate for the whole of the Works {provided that the Final Certificate shall not be issued until at least 28 days and} after a copy of the signed final account has been given to each of the parties under clause 32.6(5).
Contractor to obtain guarantee from insurance company or bank
33.1 (1) The Contractor shall obtain the guarantee of an insurance company or bank, approved by the Architect{,} to be jointly and severally bound with the Contractor to the Employer in the sum stated in the Appendix for the due performance of the Contract under the terms of a surety bond.
Release of insurance company or bank
33.2{A} The insurance company or bank shall be released from the surety bond upon the issue of the Substantial Completion Certificate for the whole of the Works {subject to the insurance company or bank's settlement of all claims lodged under the Bond before the issue of the Substantial Completion Certificate}.
{33.2B The insurance company or bank shall be released from the surety bond upon the issue of the Defects Rectification Certificate subject to the insurance company or bank's settlement of all claims lodged under the Bond before the issue of the Defects Rectification Certificate.}
Employer’s remedy if Contractor fails to deliver bond
33.3 If the Contractor fails to deliver the bond under clause 33.1, the Employer may withhold an amount not greater than the value of the bond stated in the Appendix until the bond is delivered to the Employer, {or the issue of the Substantial Completion Certificate for the Works, whichever occurs first,} at which time the amount withheld shall be released in the next Interim Certificate following the delivery of the bond.
Effect of finding antiquities
34.1 All fossils, antiquities and other objects of interest or value which may be found on the Site before or during excavation shall, subject to the Antiquities and Monuments Ordinance (Chapter 53, Laws of Hong Kong), become the property of the Employer, and upon discovery of a fossil, antiquity or object{,} the Contractor shall:
Consequences of determination
35.4 (5) If the Contractor does not comply with clause 35.4(4) within a reasonable time, the Employer may, without being responsible for any loss or damage, remove and sell the {Contractors’ Contractor's} property and hold the proceeds, less all expenses incurred, to the credit of the Contractor.
(8) The Employer 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 Contractor and his sub-contractors {and/}or suppliers.
The final settlement
35.6 (2) The difference between the two amounts in {clause clauses} 35.6(1)(a) and (b) shall be expressed in the certificate as a debt due to the Contractor from the Employer, or to the Employer from the Contractor, as the case may be, and shall be payable within 28 days after the issue of the Architect’s certificate.
Delayed commencement of completion works
35.7 (5) The final account shall set out{:;} <should be “:”>
Quantity Surveyor to prepare final account
37.4 (2) If the Contractor fails to comply with clause 37.4(1){,} the Quantity Surveyor shall prepare the final account based on the information that is available to him.
(4) The final account shall set out:
(c) any amount, not included in the amount calculated under clause 37.4(4)(a), for the cost of materials and goods delivered to or adjacent to the Site properly ordered for the Works which the Contractor has paid for, or is legally bound to pay for, and has {transferred} or will transfer the property {title} in {them} to the Employer; and
Employer’s power to recover damages etc.
40 (2) It is a condition precedent to the Employer’s right of deduction under clause {40.1(1) 40(1)} that he gives a notice to the Contractor by special delivery stating the amount of the deduction and the reason for it at least 7 days before making the deduction.
Procedures and Designated Representatives
41.1 (1) Subject to clause 41.5 dealing with early arbitration{,} the parties shall follow the dispute settlement procedures outlined in clause 41.
Reference to mediation
41.3 {*[A]} (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 do so, 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 The} Hong Kong Institute of Surveyors.
{*[B] (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 do so, the mediator shall, on the written request of either party, be jointly appointed by the Presidents or Vice-Presidents for the time being of The Hong Kong Institute of Architects, The Hong Kong Institute of Surveyors and The Hong Kong Institute of Construction Managers.}
(4) {A Without prejudice to the generality of clause 41.5, a} dispute under Article 5 shall be immediately referred to arbitration without first being referred to mediation.
{footnote * Clause 41.3[A] (2) is applicable if The Hong Kong Institute of Construction Managers is NOT included in the appointment of mediator. Clause 41.3[B] (2) is applicable if The Hong Kong Institute of Construction Managers is included in the appointment of mediator. Please strike out clause [A] (2) or [B] (2) as the case may require. If both clauses [A] (2) and [B] (2) have not been struck out, clause 41.3[A] (2) shall be applicable.}
Reference to arbitration
41.4 (1) {(a)} If the dispute is not settled by mediation within 28 days of the commencement of the mediation{,; or
(b) at any time in the case of disputes listed in clause 41.5(1),}
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.
{#[A]} (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.
{#[B] (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 jointly appointed by the Presidents or Vice-Presidents for the time being of The Hong Kong Institute of Architects, The Hong Kong Institute of Surveyors and The Hong Kong Institute of Construction Managers.}
(5) The arbitration shall be a domestic arbitration conducted in accordance with the Arbitration Ordinance (Chapter {341 609}, Laws of Hong Kong) {including, without limitation to Schedule 2 of the Ordinance} and, unless otherwise agreed by the parties, {with subject to} 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
41.5 (1) The arbitrator shall have jurisdiction to hear the parties {and commence the arbitration} of a dispute arising out of, under or in connection with the Contract at any time on a question of whether:
…
or on a dispute under clauses 35, 36 and 37{, and rule on such dispute}.
{footnote # Clause 41.4[A] (2) is applicable if The Hong Kong Institute of Construction Managers is NOT included in the appointment of arbitrator. Clause 41.4[B] (2) is applicable if The Hong Kong Institute of Construction Managers is included in the appointment of arbitrator. Please strike out clause [A] (2) or [B] (2) as the case may require. If both clauses [A] (2) and [B](2) have not been struck out, clause 41.4[A] (2) shall be applicable.}
{42 Contracts (Rights of Third Parties) Ordinance (Cap. 623)
Exclusion only applicable if expressly stated to be
The Contracts (Rights of Third Parties) Ordinance (Chapter 623, Laws of Hong Kong) is excluded if it is expressly stated to be the case in the Appendix, if so, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Ordinance (Chapter 623, Laws of Hong Kong) to enforce any term of the Contract.}
Appendix
|
Limit of Retention {(if not stated, 10 per cent)} <the norm is 5%> HK$ _____________________________________________ plus the Retention held in respect of Nominated Sub-Contractors and Nominated Suppliers
|
32.4 |
|
{Release of insurance company or bank * Clause 33.2A/Clause 33.2B applies}
|
{33.2} |
|
{Contracts (Right of Third Parties Ordinance (Cap. 623) (The Contracts (Rights of Third Parties) Ordinance (Cap. 623) is excluded if it is expressly stated to be so in the space below) _________________________________________________}
|
{42} |
SCHEDULE 1
FORM OF SURETY BOND TO BE GIVEN BY THE CONTRACTOR TO THE EMPLOYER
By this Bond, we ............................................................................................................................................
<trading as .....................................................................................................................................> (Note 1)
[whose registered office is] at ......................................................................................................... (Note 2)
(‘the 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 Employer’) in the sum of Hong Kong Dollars .........................................................................................
...................................................................................................................(HK$...........................................)
for the payment of which sum the Contractor and the Surety bind themselves, their successors and assigns, jointly and severally by these presents.
Whereas [By a Contract dated the ………….......... day 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 ………….......... 20…………..........{,} the Employer accepted the tender submitted by the Contractor dated the ………….......... day of ………….......... 20…………..........]
(Note 4) for the ..............................................................................................................................................
........................................................................................................................................................................
........................................................................................................................................................................
(‘the Contract’) {and} the Contractor has agreed to {design or} 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 at the request of and for the account of the Contractor, the Surety has agreed to guarantee the Employer the due performance by the Contractor of {its his} obligations under the Contract.
Now the conditions of the above written Bond are{:- :}
2. The Contractor shall duly perform and observe all the terms, provisions, conditions, obligations, stipulations and specification of the 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 Contractor{,} the Surety shall satisfy and discharge the damages sustained by the 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. No alterations in {the} terms of the Contract made by agreement between the Employer and the Contractor or in the extent or nature of the {design or} development of the Architect’s design to the extent specified in the Contract, construction, completion and maintenance of the Works and no allowance or extension of time given or to be given by the Employer under the Contract nor any indulgence, forbearance, forgiveness, payment or concession to the Contractor in or in respect of any matter or thing concerning the Contract on the part of the Employer or any failure of supervision to prevent any fault by the Contractor shall in any way release the Surety from any liability under the above written Bond.
4. This Bond shall be binding upon the Contractor and the Surety and their respective successors and assigns jointly and severally (provided that the Contractor and Surety may not assign their respective rights and liabilities hereunder without the prior written consent of the Employer) and shall inure to the benefits of the Employer and {its his} successors and assigns.
5. This Bond shall remain valid for receipt of claims as aforesaid until the date of issue of the {Defects Liability Certificate Substantial Completion Certificate/Defects Rectification Certificate* for the whole of the Works} pursuant to the Conditions of the Contract and any release of the Surety from the Bond shall be expressly subject to any claims made before this date.
{* Delete as appropriate.}
SIGNED, SEALED AND DELIVERED for
and on behalf of and as lawful
attorney of the Contractor
under Power of Attorney dated
in the presence of{:- :} <should be “:-“ to be consistent>
SIGNED, SEALED AND DELIVERED for
and on behalf of and as lawful
attorney of the Surety
under Power of Attorney dated
in the presence of{:- :} <should be “:-“ to be consistent>
SCHEDULE 2
FORM OF WARRANTY TO BE GIVEN BY THE NOMINATED SUB-CONTRACTOR TO THE EMPLOYER IN CONSIDERATION OF NOMINATION
* {d D}elete as appropriate
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{:- :} <should be “:-“ to be consistent>
(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.
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{:- :} <should be “:-“ to be consistent>
(Signature of witness)
{.....................................................
(Name and occupation of witness)} <should have 2 dotted lines>
SCHEDULE 3
FORM OF WARRANTY TO BE GIVEN BY THE NOMINATED SUPPLIER TO THE EMPLOYER IN CONSIDERATION OF NOMINATION
* {d D}elete as appropriate
We .......................................................................................................................
(‘the Nominated Supplier’) warrant that in consideration of {your the Employer} instructing the Architect to nominate us as the Nominated Supplier for the Goods{:- :}
(c) We have exercised and will exercise all reasonable skill and care in{ :- :}
(Signature of witness)
{
.....................................................
.....................................................
(Name and occupation of witness)}
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 {of this publication} do not necessarily reflect the views or opinions of these copyright owners and no liability is accepted in relation thereto. {Anyone using this publication should seek suitable professional advice.}