ADCOCK REFRIGERATION AND AIR CONDITIONING LTD SUB-CONTRACT CONDITIONS

1. OBLIGATIONS

1.1. The Sub-Contractor will carry out the Works:

1.1.1. in a proper, efficient and workmanlike manner, in accordance with the Sub-Contract Documents, these Conditions, and all instructions, drawings, specifications etc. issued pursuant thereto and Adcock's Health and Safety Information;

1.1.2. in accordance with the terms of the Main Contract so as to enable Adcock to comply with its obligations under the Main Contract;

1.1.3. in compliance with all relevant legislation including the Construction (Design and Management) Regulations 2015, relevant bylaws and British Standards and Codes of Practice;

1.1.4. so as to ensure that, when completed the Works will comply with any performance specification or requirement identified in or referred to in the Sub- Contract and that all materials supplied will be fit for their intended purpose;

1.1.5. so that where the Sub-Contractor shall have designed any part of the Works or shall have selected materials for incorporation in the Works, the design and/or selection shall have been undertaken with reasonable skill, care and diligence;

1.1.6. by employing on the Site a competent and authorised foreman or charge hand to receive instructions on the Sub-Contractor's behalf; and

1.1.7. to the reasonable satisfaction of relevant parties under the Main Contract.

2. SUB-CONTRACT

2.1. These Conditions apply to the Sub-Contract to the exclusion of any other terms that the Sub-Contractor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2. Any tender, quotation, estimate or the like issued by the Sub-Contractor will not be treated as an offer capable of acceptance. A contract between Adcock and Sub-Contractor will only be formed when Adcock has placed its written order based upon these Conditions. These Conditions apply to the Sub-Contract to the exclusion of any other terms that the Sub-Contractor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3. THE TENDER

3.1. The Sub-Contractor will be deemed to have allowed in his tender for visiting the Site and satisfying himself as to the nature, extent and conditions under which the Works are to be carried out, the nature and position of previous works etc.

4. THE WORKS

4.1. The Sub-Contractor shall commence the Works on the Commencement Date (or such other date as Adcock may specify) and shall execute and complete the Works in the sequence specified, in accordance with such instructions as may be issued by Adcock and complete the Works by the Completion Date. Adcock may from time to time vary or suspend such dates or periods and such variations and/or suspensions shall not vitiate the Sub-Contract or entitle the Sub- Contractor to any claim for loss or expense or any other payment arising there from, unless agreed. The Sub-Contractor shall be entitled to an extension of time if an extension of time is issued to Adcock under the Main Contract, or if delay is caused by the default of Adcock. A grant of an extension of time shall be conditional upon the Sub-Contractor giving written notice to Adcock as soon as it is apparent that completion of the Works will or may be delayed stating matters relied upon in support of such a claim.

4.2. If in the opinion of Adcock the Sub-Contractor is likely to fail to complete the Works by the Completion Date Adcock may accelerate the progress of the Works by employing its own labour. Any expense incurred by Adcock in so doing shall be recoverable from the Sub-Contractor.

4.3. The Sub-Contractor shall, if so requested by Adcock and within 7 days of such request, supply to Adcock a programme showing how it intends to carry out the Works, as to sequence and method, a list of drawings it intends to provide, the earliest start date for each activity and a list of activities which will be critical to progress. Such programme shall not be in any way binding on Adcock. Adcock's approval of any information submitted to it shall not relieve the Sub-Contractor of its obligations under the Sub-Contract.

4.4. With materials and items forming part of the Works the Sub-Contractor will supply the necessary manuals and information for their use.

4.5. The Sub-Contractor shall apply for all information it requires to comply with the Sub- Contract in good time. Adcock shall not be liable to the Sub-Contractor due to the Sub-Contractor’s lack of information.

4.6. If the Works or relevant part/s of the Works are not completed by the Completion Date then allowing for any extension of the Completion Date the Sub-Contractor shall pay or allow Adcock to deduct Liquidated Damages at the agreed rate for the period between the Completion Date and the actual date of completion of the Works or relevant part. Adcock may deduct such Liquidated Damages from monies otherwise due to the Sub-Contractor or recover them as a debt.

5. CLEAN SITE

On the request of Adcock and in any event upon completion of the Works, all rubbish and/or surplus material and plant of the Sub- Contractor or of any employee or agent must be removed from the Site or stored as directed. If such removal or storage is not undertaken satisfactorily, Adcock may undertake it and withhold the cost from sums otherwise due to the Sub-Contractor.

6. PERSONAL INJURY AND DAMAGE TO PROPERTY

The Sub-Contractor shall indemnify Adcock against costs claims demands losses or expenses arising out or

(a) failure of the Sub-Contractor to observe and perform these Conditions or any negligence or breach of duty, statutory or otherwise, by the Sub-Contractor or

(b) injury or death of any person or injury to property (including the Main Contract works) real or personal arising out of or in the course of or by reason of the execution of the Works save to the extent that such is caused by any negligence or default of Adcock.

7. INSURANCE

The Sub-Contractor shall maintain adequate employer's liability, public liability. contractors all risks and (where appropriate) professional indemnity insurance in relation to all such risks and/or potential claims arising out of or in relation to the Sub-Contract for such amounts as detailed in the Sub-Contract Order and produce on request the policies of such insurance. In the event that the Sub-Contractor shall fail to put such insurances in place Adcock may decide to insure on behalf of the Sub-Contractor and deduct the cost from any monies otherwise due to the Sub-Contractor or to recover the cost as a debt.

8. TITLE IN GOODS AND MATERIALS

8.1. The risk in goods and materials to be incorporated in the Works, and in plant, tools and equipment for use in connection with the Works shall remain with the Sub-Contractor until practical completion of the Main Contract works. The Sub- Contractor shall at its own cost maintain insurance of the goods and materials until practical completion of the Main Contract works.

8.2. Notwithstanding the above, all goods, manuals and temporary works shall become the property of Adcock as and when the goods, materials and temporary works or any part thereof are incorporated as part of the Main Contract works whether or not payment therefor has at that time been made by Adcock. If the Sub-Contractor has on Site any plant tools and equipment for use in connection with the Works, title therein shall pass to Adcock on delivery to the Site and shall repass to the Sub-Contractor upon completion of the whole of the Works.

9. PAYMENT

9.1. Unless otherwise agreed the Sub- Contractor shall submit to Adcock monthly applications for payment for Works properly carried out. Applications shall specify the sum that the Sub-Contractor considers will be due on the payment due date in respect of the installment and the basis on which that sum is calculated. Applications must state the Site name, the date, the full name and address of the Sub-Contractor, the Sub-Contract number and an accurate description and fully detailed justification of the sums claimed. The Sub-Contractor shall provide such other information as is reasonably required by Adcock in support of the application.

9.2. In accordance with the Sub- Contract, payments will be inclusive of all goods and services to be supplied as part of the Works. Any other cost or expense of the Sub-Contractor will only be paid where agreed in advance. All rates and prices payable under the Sub-Contract are fixed. The Sub-Contractor will not be entitled to additional payment in respect of increased costs unless agreed in advance. The price to be paid to the Sub- Contractor for the completed work shall be the sum or the rate specified in the Order. No variations shall be paid for unless authorised by Adcock in writing by Adcock. No such variation shall vitiate the Sub-Contract. A written instruction will not in itself constitute agreement for extra payment.

9.3. The due date for interim payments shall be monthly calculated from the Commencement Date. The final date for payment of an amount shall be 30 days after the date on which a payment becomes due.

9.4. No later than 5 days after a payment becomes due, Adcock shall notify the Sub-Contractor of the sum Adcock considers to have been due at the payment due date in respect of the amount of the relevant application and the basis upon which that amount has been calculated. 9.5. Subject to clause 9.10 and unless Adcock has served a notice under clause 9.8 then it shall pay the Sub-Contractor the sum referred to in the notice under clause

9.5. (or if no such notice has been given then the sum referred to in the Sub-Contractor’s application complying with clause 9.2) (together referred to as the notified sum) on or before the final date for payment of the relevant application.

9.6. Not less than 3 days before the final date for payment (the prescribed period), Adcock may give the Sub-Contractor notice that it intends to pay less than the notified sum and any such pay less notice shall specify the sum Adcock considers to be due on the date the notice is served and the basis upon which that sum is calculated.

9.7. It shall be a condition precedent to any obligation on Adcock to make payment that all documents specified in the Order have been provided in satisfactory form by the Sub-Contractor and that the Sub-Contractor has signed and returned the Sub-Contract.

9.8. In addition to Adcock’s rights of set-off at common law and in equity if in Adcock's opinion the Sub-Contractor shall have caused or will cause Adcock loss by reason or any beach or this Sub-Contract or by any tort, giving rise to a right for Adcock to claim against the Sub-Contractor, or to an entitlement to payment in favor of Adcock by the Sub-Contractor under this Sub-Contract, then without prejudice to and pending the final determination of such loss or payment, the Sub-Contractor shall forthwith pay or allow to Adcock such sum as Adcock shall bona fide estimate as the amount of such loss or payment, such estimate to be binding on the Sub-Contractor until such final determination.

9.9. VAT where due will be paid in addition subject to receipt of a valid invoice.

9.10. Notwithstanding any other provision, if the Sub-Contractor shall become insolvent (within the meaning set out in clause 18.3.5) after the prescribed period as referred to in clause 9.7, Adcock shall not be required to pay the notified sum on or before the final date for payment.

10. DAYWORK

No Work will be valued as day work unless Adcock exercises its discretion to do so on the basis that it would not be possible to value such work in any other way. Where the Sub- Contractor considers work should be valued as day work it must give notice to Adcock prior to the execution of such works and obtain Adcock’s written approval. All day work sheets shall be submitted to Adcock at the end of the week during which the relevant work is executed. Signature of any day work sheet by a Adcock representative shall not entitle the Sub-Contractor to payment thereof unless validly due under the Sub-Contract.

11. THE CONSTRUCTION INDUSTRY TAX SCHEME Adcock is an Employer under the Construction Industry Scheme under the Finance Act 2004 (CIS). The obligation on Adcock to make any payment under the Sub-Contract is subject to the provisions of the CIS or any amendment or re-making thereof.

12. RETENTION A retention of 5% (or such other amount agreed under the Sub-Contract) may be deducted from interim payments made to the Sub-Contractor. Half of the total accumulated retention amount shall be released to the Sub-Contractor upon practical completion of the Works. The balance shall be released to the Sub- Contractor on the completion of making good defects in the Works.

13. CONTRACTOR'S INSTRUCTIONS

13.1. Adcock shall have the power to give instructions for:

13.1.1. changes in the sequence and timing of the Works (including their suspension);

13.1.2. any omission from, addition to or variation in the type, quality or nature of the Works

13.1.3. carrying out any test or investigation at the Sub-Contractor's expense, and the removal and/or re-examination and/or acceptance of any work or materials not in accordance with the Sub- Contract; and 13.1.4. the exclusion from the Site of any person employed or engaged by the Sub-Contractor.

14. PAYMENT FOR VARIATIONS

14.1. Payment for variations will only be allowed in respect of additions to the Works, not for changes in the sequence or timing. It is a condition precedent to the Sub-Contractor's right to payment for any variation that (a) within 7 days of receipt of any instruction for a variation (and in any event before incurring any extra costs or commencing the varied Work) the Sub-Contractor informs Adcock in writing of its opinion that additional payment is justified and (b) Adcock issues agreement in writing to the Sub-Contractor to proceed with the variation with confirmation as to the amount of payment due.

14.2. Valuations of variations will be in accordance with the rates specified in the Sub- Contractor such other rates as may be agreed in writing between the parties, or, failing agreement, at reasonable rates as ascertained by Adcock.  

15. INFORMATION

If information is required from the Sub- Contractor it must be provided in good time so as not to cause any disruption or delay to Adcock in the carrying out of the Main Contract works. The Sub-Contractor will be charged with any costs incurred by Adcock arising from the Sub-Contractor’s failure to comply with this obligation. The Sub-Contract Price includes the cost to the Sub-Contractor of making good the Works after other trades, which the Sub- Contractor will do with all due speed and diligence.

16. ACCESS

The Sub-Contractor shall allow Adcock and its representatives access to off site workshops, storage facilities and the like where items connected with the Works are being worked on or stored at all reasonable times.

17. MAINTENANCE

The Sub-Contractor will:

17.1. maintain the Works to the satisfaction of Adcock both during the progress or them and until practical completion of the Main Contract works; and

17.2. make good at its own expense and at a time to be decided by Adcock, any defect, imperfection, shrinkage or damage to the Works at any time up to practical completion of the Main Contract works, and thereafter insofar as Adcock is itself obliged to make good such defect, imperfection, shrinkage or damage in favour of the Employer under the Main Contract. Adcock may at its sole discretion carry out maintenance and making good works to the Works, rather than leaving such to the Sub-Contractor, and set oft' the cost of so doing against sums otherwise due to the Sub-Contractor.

18. TERMINATION

18.1. The Connector may terminate the Sub- Contractor's employment whether or not the Sub- Contractor is in default or breach of this Sub-Contract.

18.2. If the Sub-Contractor is not in default or breach Adcock shall serve notice in writing terminating the Sub-Contractor’s employment with regard to the whole or any part of the Works and the Sub-Contractor's employment under the Sub-Contract in respect of the whole or such part of the Works shall terminate forthwith. The Sub-Contractor shall then be entitled to be paid for the Works performed up to that date provided that all documents specified in the Order have been released to Adcock and the Sub-Contractor has certified in writing that such payment will be in full and final settlement of all claims the Sub-Contractor may have under or in connection with the Sub-Contract (or in respect of that part of the Works, as the case may be).

18.3. Without limiting its other rights or remedies, Adcock may terminate the Sub-Contractor’s employment under the Sub-Contract with immediate effect by giving written notice to the Sub-Contractor if:

18.3.1. the Sub-Contractor commits a material or persistent breach of the Sub-Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing of the breach;

18.3.2. the Sub-Contractor refuses or persistently neglects to remove repair or rectify defective materials or workmanship forming part of the Works or suspends the carrying out of the Works or any part thereof without reasonable cause or fails to proceed diligently with the Works;

18.3.3. the Sub-Contractor suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

18.3.4. the Sub-Contractor commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or its solvent reconstruction;

18.3.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Sub-Contractor (being a company) other than for the sole purpose of a scheme for its solvent amalgamation with one or more other companies;

18.3.6. the Sub-Contractor (being an individual) is the subject of a bankruptcy petition order;

18.3.7. a creditor or encumbrancer of the Sub-Contractor attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

18.3.8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Sub-Contractor (being a company);

18.3.9. a floating charge holder over the assets of the Sub-Contractor (being a company) has become entitled to appoint or has appointed an administrative receiver;

18.3.10. a person becomes entitled to appoint a receiver over the assets of the Sub-Contractor or a receiver is appointed over the assets of the Sub-Contractor;

18.3.11. any event occurs, or proceeding is taken, with respect to the Sub-Contractor in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned previously;

18.3.12. the Sub-Contractor suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business.

18.4. Upon such termination Adcock may expel the Sub-Contractor from the Works and may take and have use of the equipment materials and property of the Sub- Contractor which are on the Site or being used in connection with the Works including materials or fabricated work at the Sub-Contractor's place of business which have been bought or fabricated for the purpose of the Sub-Contract and may use the same to complete the Works without responsibility to the Sub-Contractor to fair wear and tear to any such equipment and property.

18.5. Upon any such termination the Sub- Contractor shall not be entitled to receive any further payments until the Works are completed whereupon the Sub-Contractor shall be paid the value of all materials taken and used by Adcock pursuant to the above less the cost of remedying any damage suffered or direct or indirect or consequential loss or expense incurred or which may be incurred by Adcock by reason of such determination and to the extent that any further payment due to the Sub-Contractor is insufficient for the purpose any balance shall be due to Adcock from the Sub-Contractor as a debt.

18.5.1. If the employment of Adcock under the Main Contract is determined, the Sub-Contractor’s employment under the Sub-Contract shall thereupon also terminate and the provisions of sub-clause 18.4 and 18.5 shall apply.

19. ASSIGNMENT AND SUB-LETTING

The Sub-Contractor shall not assign the benefit of the Sub-Contract or sub-contract the Works or any part thereof without Adcock's written permission. Such permitted assignment or sub-contracting shall not release or be deemed to release the Sub-Contractor from the terms and conditions or this Sub-Contract.

20. ADVERTISING

No advertisement relating to the Works or to the Sub-Contractor shall be permitted on the Site without Adcock's prior written permission. No photographs may be taken of the Works or the Site or information given to third parties without Adcock's prior approval in writing

21. INSURANCE LIABILITY

If the Sub-Contractor claims against Adcock in respect of an insured risk in respect of which Adcock has a policy of insurance in force, the extent of Adcock's liability will be limited to the amount received by Adcock from his insurers and Adcock will have no obligation to pay any sums unless and until it has recovered from the insurers.

22. RESOLUTION OF DISPUTES

22.1. The Sub-Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

22.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Sub-Contract or its subject matter or formation.

22.3. Subject to either party's right to adjudicate at any time, the parties shall use their reasonable endeavours to resolve any dispute or difference between them through negotiation or mediation.

22.4. Notwithstanding any other provision of the Sub-Contract either party may refer a dispute arising under the Sub-Contract to adjudication at any time under Part I of the Scheme for Construction Contracts (England and Wales) Regulations, which Part shall take effect as if it was incorporated into this clause. The adjudicator shall be appointed by: The Royal Institute of Chartered Surveyors.

23. THIRD PARTY RIGHTS

The parties hereby confirm that notwithstanding any other provision of this Sub- Contract, the Sub-Contract shall not and shall not purport to confer on any third party any right to enforce any term of the Sub-Contract for the purposes of the Contracts (Rights of Third Parties) Act 19