NR22 Network Rail ICC Sub-Contract V1



center-517146ICC00ICCcenter126746000Infrastructure Conditions of Contract37287208191600NR22 Sub-Contractfor FORMTEXT [Insert Contract Title]To be deleted prior to use: This template sub-contract is provided by Network Rail to facilitate suppliers wishing to flow down obligations under Network Rail’s ICC suite of contracts to tier 2 sub-contractors. Save to the extent prohibited by law, neither Network Rail nor its advisers accept any liability whatsoever arising out of the use by suppliers of this template. Users should seek their own legal advice on its terms if required.Infrastructure Conditions of ContractNR22 Sub-ContractBased on the ICC Sub-Contract April 2017with Network Rail embedded amendmentsAssociation for Consultancy and Engineering (ACE)April 2017ICC BASELINE FORM OF CONTRACTPublished by:Association for Consultancy and Engineering (ACE) Alliance House12 Caxton Street LondonSW1H 0QLThe Association for Consultancy and Engineering (ACE) has, as the sponsoring authority, approved this publication. The use and development of the Infrastructure Conditions of Contract suite will be kept under review by the Infrastructure Conditions of Contract Development Forum. Any comments or suggestions for amendment should be directed to the Chairman of the Infrastructure Conditions of Contract Development Forum via the Association for Consultancy and Engineering.AcknowledgementThe Association for Consultancy and Engineering would like to thank all the Infrastructure Conditions of Contract Development Forum members for their expertise and assistance in producing these documents.ISBN 978-1-910865-21-7A catalogue record for this book is available from the British Library? Association for Consultancy and Engineering 2017All rights, including translation, reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publisher.The Association for Consultancy and Engineering can accept no liability in respect of any use to which the Infrastructure Conditions of Contract may be put.Project managed in Great Britain by The Charlesworth Group (charlesworth-)Foreword Mature construction sectors have well established standard forms of contract that provide the framework in which risks are allocated and commercial responsibilities defined, and commercial practitioners are well versed in their application and benefits that such standard forms of contract can bring. The use of standard forms specific to the rail industry is a key component to a transparent and consistent approach to risk allocation and in addition to promoting clarity on performance expectations and contractual obligations, it allows commercial practitioners throughout our supply chain to become adept at managing the delivery of capital works to rail infrastructure. This first edition of the standard form of rail subcontract (NR22) represents the endeavour of a cross-sector working group of the Commercial Directors’ Forum comprising suppliers, clients and professional institutions and is a tangible response to a call from small to medium enterprises for greater contracting consistency and transparency. The successful introduction of standard forms of sub contract such as this will enable the rail industry to better align expectations, improve value for money for the tax paying passenger and facilitate improved clarity, which in itself should reduce the propensity for dispute. This will only happen with the overt support from industry stakeholders and adoption by Tier 1 suppliers. Network Rail will promote the use of the NR22 and maintain this form as a new addition to its current suite of contracts. Feedback is welcome and should be directed to Ian.wright@networkrail.co.uk in the first instance. A Sub Contract Terms & Conditions Review Group will be established to review any feedback and endorse updates. Expressions of interest to participate in this group should be sent to the same email address. Focus will now turn to a standard form of rail subcontract aligned to our collaborative forms of main contract (NR 12) to better integrate behavioural language and expectations to support delivery via collaborative enterprise models such as Project 13. I would like to thank all members of the Commercial Directors’ Forum and in particular the working group and industry stakeholders including CECA and ACE for their active collaboration in bringing a fit for purpose subcontract to industry, marking another step in our journey towards driving industry change and leaving a legacy in the rail sector. Stephen Blakey FRICS, FCInstCES, MICWCommercial Projects Director, Network RailOver the last decade we have welcomed the opportunity to work with Network Rail to drive better ways of working throughout the rail supply chain via the Commercial Directors’ Forum. This has led to the creation of a range of industry-changing products such as the Fair Payment Charter, and Rail Method of Measurement. This new Standard Form of Subcontract NR22 is another product of this cross-industry collaboration that demonstrates how suppliers and Network Rail can work together to improve the ways that we all work together. We are delighted to have been engaged in the drafting of the document and look forward to working with Network Rail both to ensure that industry is aware of NR22, and to provide support and training in its use.Alasdair Reisner Hannah VickersChief Executive Chief Executive Officer Civil Engineering Contractors Association (CECA) Association for Consultancy and Engineering (ACE) NETWORK RAIL INFRASTRUCTURE LIMITEDINFRASTRUCTURE CONDITIONS OF CONTRACT – SUB-CONTRACTSUB-CONTRACT AGREEMENTThis AGREEMENT is made the FORMTEXT [Insert] day of FORMTEXT [Insert] BETWEEN: FORMTEXT [Insert] FORMTEXT [registered in …………………… as company number …………….] and having its FORMTEXT [registered office at ………………………………………………………………………………………] (“the Contractor”); and FORMTEXT [Insert] FORMTEXT [registered in …………………… as company number …………….] and having its FORMTEXT [registered office at ………………………………………………………………………………………] (“the Sub-Contractor”)(each a “Party” and together the “Parties”).WHEREAS the Contractor is desirous that certain Sub-Contract Works should be designed and constructed, namely the Permanent Works and Temporary Works in connection with FORMTEXT [Insert] and has reached agreement with the Sub-Contractor on the terms of a contract for the FORMTEXT [design,]construction and completion of such Sub-Contract Works.NOW THIS AGREEMENT WITNESSETH as follows:In this Sub-Contract Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions hereinafter referred to.The following documents are annexed hereto and shall form and be read and construed as part of this Sub-Contract Agreement, and in the case of any ambiguity or discrepancy shall have the following order of priority:This Sub-Contract Agreement;Schedule of Post Tender Amendments;The Appendix;Sub-Contract Specific Conditions and annexed form of parent company guarantee, form of deed of collateral warranty (if applicable) and form of Trust Deed and PBA Sub-Subcontractor Joining Deed (if applicable);The Infrastructure Conditions of Contract – Sub-Contract and with Network Rail Amendments embedded;[Sub-Contract Technical Workscope;][Contract Requirements HSEA;][Preliminaries;]Pricing Document; and[the Sub-Contractor’s Tender.]In consideration of the payments to be made by the Contractor to the Sub-Contractor in accordance with the Sub-Contract, the Sub-Contractor covenants with the Contractor to FORMTEXT [design,] construct and complete the Sub-Contract Works in conformity in all respects with the provisions of the Sub-Contract.The Contractor and the Sub-Contractor hereby agree that the Sub-Contract Price shall be FORMTEXT [Insert] (? FORMTEXT [Insert])or such other sum as shall become payable in accordance with the Sub-Contract.The Contractor covenants to pay to the Sub-Contractor in consideration of the FORMTEXT [design,] construction and completion of the Sub-Contract Works, the Sub-Contract Price at the times and in the manner prescribed by the Sub-Contract. IN WITNESS whereof the Contractor and the Sub-Contractor have caused this Sub-Contract Agreement to be executed in duplicate on the date first stated above, as follows. If the Sub-Contractor comprises an Unincorporated Joint Venture, each member of the Unincorporated Joint Venture shall sign this Sub-Contract Agreement.Where the Agreement is executed using DocuSign electronic signature process, the digital certification for the signatures of both Parties can be found on the Electronic Execution Page at the end of the contract documentation.First signatoryTHE COMMON SEAL of [ ]))………………………………………………………………………)was affixed to this DEED in the presence of:)Director ……………………………………………………………………Printed Name: …………………………………………………………Director/Company Secretary …………………………………Printed Name: …………………………………………………………ORSIGNED as a DEED for and on behalf of [ ]))………………………………………………………………………)by)Director ……………………………………………………………..Printed Name: ………………………………………………………Director/Company Secretary ……………………………………….Printed Name: ………………………………………………………ORSIGNED for and on behalf of [ ]))………………………………………………………………………)by)Authorised signatory………………………………………………..Printed Name: ………………………………………………………Second signatoryTHE COMMON SEAL of [ ]))………………………………………………………………………)was affixed to this DEED in the presence of:)Director ……………………………………………………………………Printed Name: …………………………………………………………Director/Company Secretary …………………………………Printed Name: …………………………………………………………ORSIGNED as a DEED for and on behalf of [ ]))………………………………………………………………………)by)Director ……………………………………………………………..Printed Name: ………………………………………………………Director/Company Secretary ……………………………………….Printed Name: ………………………………………………………ORSIGNED for and on behalf of [ ]))………………………………………………………………………)by)Authorised signatory………………………………………………..Printed Name: ………………………………………………………SCHEDULE OF POST TENDER AMENDMENTS:None APPENDIXPart 1: Main Contract Details1The Contractor has entered into a contract (the “Main Contract”) particulars of which are set out in Part 2 of this Appendix to this Sub-Contract save for the provisions concerning the Contractor’s remuneration which are excluded.2The standard Conditions of Contract on which the Main Contract is based are:(a) FORMTEXT [The Infrastructure Conditions of Contract [ ] Version with Network Rail NR[ ] embedded amendments][OR](b) FORMTEXT [state any other Main Contract conditions which apply - including bespoke Infrastructure Conditions of Contract]3Brief description of the Main Contract Works (Clause 1.1 (u)) FORMTEXT [Insert]4Name of the Employer under the Main ContractNetwork Rail Infrastructure Limited (Company Number 02904587) and having its registered office at 1 Eversholt Street, London, NW1 2DN5Name of the Contractor FORMTEXT [Insert] FORMTEXT [registered in …………………… as company number …………….] and having its FORMTEXT [registered office at ………………………………………………………………………………………]6Name of the Employer’s Representative (1.1(m) and 5.1):Name FORMTEXT [Insert] Position FORMTEXT [Insert]Address FORMTEXT [Insert]Part 2: Sub-Contract Details1Brief description of the Sub-Contract Works (Clause 1.1 (mm)) FORMTEXT [Insert]2.1The payment to be made in accordance with Clauses 11.2 - 11.5 will be ascertained on the following basis(a) FORMTEXT [Lump sum (11.1 to 11.3)];(b) FORMTEXT [Measure and Value using a priced Bill of Quantities (11.1 to 11.3)];(c) FORMTEXT [Valuation based on a Pricing Schedule (11.4)];(d) FORMTEXT [Cost Plus (11.5)]2.2 FORMTEXT [If Cost Plus is selected the Cost for the Cost Plus element is as set out in Appendix Part 6 and the “Plus” element in respect of all off Site overheads, overhead finance, other charges and profit as set out in Appendix Part 5 is expressed as FORMTEXT a percentage addition applied to the Cost (Paragraph 2.3 of this Appendix – Part 2).] 2.3The percentage addition to the “Cost” is (Paragraph 2.2 of this Appendix – Part 2) FORMTEXT [Insert/ FORMTEXT Not applicable]%3.1Performance Bond (18.1(a)) FORMTEXT [Required / Not Required]Performance Bond (if required) to be in the following form[the form included within the Sub-Contract Specific Conditions]/ FORMTEXT [Insert other form]Amount of Performance Bond (if required) to be[10%] or FORMTEXT [Insert amount lower than 10%] of the Sub-Contract Tender Total3.2Parent Company Guarantee (18.1(b)) FORMTEXT [Required / Not Required / Provided via Framework PCG]4Security to be provided in respect of advance payment (18.3): FORMTEXT [No advance payments will be payable under this Sub-Contract] 5Number and type or copies of Sub-Contract Documents to be provided (including the Main Contract documents) (Clause 4.3) FORMTEXT [Insert]6Sub-Contract Commencement Date (10.1) FORMTEXT [Insert]7Time for completion (10.3 and 10.4):EITHER for the whole of the Sub-Contract Works: FORMTEXT [Insert] weeksOR for Sections of the Sub-Contract Works (1.1(bb)): FORMTEXT Section A: [Insert] FORMTEXT [Insert] weeks FORMTEXT Section B: [Insert] FORMTEXT [Insert] weeks FORMTEXT Section C: [Insert] FORMTEXT [Insert] weeks FORMTEXT Section D: [Insert] FORMTEXT [Insert] weeksthe remainder of the Sub-Contract Works: FORMTEXT [Insert] weeks8Defects Correction Period (1.2(e) and 10.5) FORMTEXT [Insert] weeks9Contemporary Records (required format) (13.1) FORMTEXT [Insert]10Liquidated damages for delay (10.6 and 10.7):EITHER for the whole of the Sub-Contract Works: FORMTEXT ?[Insert] per dayOR FORMTEXT Section A: [Insert] FORMTEXT ?[Insert] per day FORMTEXT Section B: [Insert] FORMTEXT ?[Insert] per day FORMTEXT Section C: [Insert] FORMTEXT ?[Insert] per day FORMTEXT Section D: [Insert] FORMTEXT ?[Insert] per daythe remainder of the Sub-Contract Works (as above): FORMTEXT ?[Insert] per dayThe aggregate total amount of liquidated damages in respect of the whole of the Sub-Contract Works and any Section (“Liquidated Damages Cap”) (10.8):Shall not exceed FORMTEXT [15% of the Sub-Contract Price]11Vesting of materials not on Site (11.6(c)) and 16.3) (if required by Contractor):1 FORMTEXT [Insert]4 FORMTEXT [Insert]2 FORMTEXT [Insert]5 FORMTEXT [Insert]3 FORMTEXT [Insert]6 FORMTEXT [Insert]12Percentage of the value of goods and materials to be included in the Contractor’s certificate (11.7): FORMTEXT [Insert]%13Method of measurement adopted in preparation of Pricing Document (11.1) FORMTEXT [Rail Method of Measurement Version [ ]/ FORMTEXT Not applicable]14Date(s) up to which the Sub-Contractor is required to include its forecast of work done in statements submitted to the Contractor (11.6) and for the purposes of calculating the date for certification (11.7) and due and final dates for payment (11.8) FORMTEXT [Insert]15Rate of interest on repayment of damages and overdue payment (10.10 and 11.8) FORMTEXT [Insert]%16BIM Protocol (if BIM is adopted) (20.1): FORMTEXT [Not Applicable/ CIC/BIM Protocol second edition as amended by Network Rail]17Information Protocols (if BIM is adopted) (20.1): FORMTEXT [Not Applicable/As detailed in the [Sub-Contract Technical Workscope]]18Adjudication Procedure to be used (19.3):The Scheme for Construction Contracts made in accordance with the provisions of section 114 of the Housing Grants, Construction and Regeneration Act 1996 (as amended)19The Adjudication Nominating Body shall be (19.3): FORMTEXT [The President or Vice-President for the time being of the Technology and Construction Bar Association]/[Insert] 20Courts/Jurisdiction (2.4):High Court of England and Wales for resolution as business of the Technology and Construction Court21Sub-Contract Language (1.2(q)):English22Governing Law (1.2(h) and 2.1):The laws of England and Wales23Notices which must be delivered by hand or by pre-paid first-class post or other next working day delivery service (2.3):(a) Any notice of termination, suspension or notice purporting to terminate this Sub-Contract;(b) Any notice relating to any dispute under Clause 18 or 19; or(c) FORMTEXT Insert any other type of notice required to be sent by hard copy / Not applicable]Notices to be delivered by hand or by pre-paid first class post as identified above shall be sent to the following address:The Contractor’s registered address marked for the attention of the Company Secretary with a copy to the Contractor’s Representative. 24Key Sub-Subcontractors and whether their sub-subcontract documents must be submitted to the Contractor for approval (3.3A):Listed in the Annex to this Appendix – Part 2.25Quality Assurance Plan (6.3B):The Sub-Contract FORMTEXT [is]/[is not] required to institute a quality assurance plan.26CDM:(a) Name of the Principal Contractor (6.8(b)): FORMTEXT [The Contractor](b) Name of the Principal Designer (6.8(d)): FORMTEXT [The Employer]Sub-Contractor to Insure FORMTEXT [Insert insurances to be maintained by the Sub-Contractor including the required levels of insurance]27Insurance of the Sub-Contract Works (17.2):As stated in the Project Insurance Manual in the FORMTEXT [Preliminaries]28Professional indemnity insurance for design (17.4): FORMTEXT [Is / Is not] requiredMinimum amount of professional indemnity insurance (17.4):[? FORMTEXT [Insert] FORMTEXT in respect of all claims made in connection with any one occurrence or all occurrences of a series consequent on or attributed to one source or original cause and which may be subject to an annual aggregate limit/Not applicable]29Minimum amount of Employer's third party insurance (17.10): ?155,000,000 (one hundred and fifty five million pounds) each and every occurrence30Third party property damage (including damage to the Employer's property) (17.10):As stated in the Project Insurance Manual in the FORMTEXT [Preliminaries]31Milestones (21): FORMTEXT [Applies / Does not apply]32Collateral warranties (24): FORMTEXT [Required / Not required] 33Information Security (32): FORMTEXT [Not applicable / Applicable (Sub-Contractor is connecting to the Employer’s network or has access to the Employer’s information classified as Official Sensitive or above)]34Intermediaries Legislation IR35 (36): FORMTEXT [Applies / Does not apply]35The Aggregate Liability Cap (37.1) is:The greater of:An amount equal to the Sub-Contract Price plus 10%; and FORMTEXT [?10,000,000.00 (ten million pounds)] 36Liability for Railway Costs (“Railway Costs Cap”) (37.3)Shall not exceed FORMTEXT [15% of the Sub-Contract Price]37Post Implementation Asset Failures (37.5) FORMTEXT [Applies / Does not apply]38MTBF Liquidated damages (37.6) FORMTEXT [Applies / Does not apply]? FORMTEXT [Insert] per event in excess of the agreed number of MTBF failuresAgreed number of MTBF failures during Defects Correction Period – FORMTEXT [Insert] 39Project Bank Account (38) FORMTEXT [Applies from the date of this Sub-Contract / Does not apply] The Project Bank is FORMTEXT [Insert / Not applicable]The PBA Sub-Subcontractors are: FORMTEXT [Insert / Not applicable]40M&E and Signalling (39) FORMTEXT [Applies / Does not apply] FORMTEXT Applies if and to the extent that the Sub-Contract Works include the provision of plant and machinery for which there are testing requirements in the [Sub-Contract Technical Workscope] “Plant” shall include the following items: FORMTEXT [Insert]The “Tests on Completion” shall be the following and/or are referred to in the following sections of the Technical Workscope: FORMTEXT [Insert]The “Performance Tests” shall be the following and/or are referred to in the following sections of the Technical Workscope: FORMTEXT [Insert]41Works performed under previous contracts (40) FORMTEXT [Applies / Does not apply]The purchase orders to which Clause 40 applies are: FORMTEXT [Insert / Not applicable] 42Contractor’s Options (41) FORMTEXT [Applies / Does not apply]The Contractor’s Options are:The Option shall be exercised no later than:The Time for Completion isThe liquidated damages for delay are FORMTEXT [Insert] FORMTEXT [Insert] FORMTEXT [Insert] FORMTEXT [Insert] FORMTEXT [Insert] FORMTEXT [Insert] FORMTEXT [Insert] FORMTEXT [Insert]Annex to APPENDIX: ITEM 24Key Sub-Subcontractors (sub-clause 3.3A)The following sub-subcontractors (including designers):Full name (and company number where applicable)DisciplineSub-subcontract documents must be submitted to the Contractor for approval (Y/N) FORMTEXT [Insert] FORMTEXT [Insert] FORMTEXT [Yes/No]The sub-subcontractors (including designers) appointed to undertake the following disciplines:DisciplineSub-subcontract documents must be submitted to the Contractor for approval (Y/N) FORMTEXT [Insert] FORMTEXT YesPart 3: Contractor’s Equipment and facilitiesPart 3 A: Contractor’s Equipment and facilities to be provided for use exclusively by the Sub-Contractor and period for which these will be available (Clause 7.5)EquipmentAvailable Period/Terms of availability........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Facilities (other than Equipment)........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Part 3 B: Contractor’s equipment and facilities to be provided by the Contractor for use in common with the Sub- Contractor or other sub-contractors and the period for which it will be available (Clause 7.5)EquipmentAvailable Period/Terms of availability........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Facilities (other than Equipment)........................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................Part 4: ProgrammeThe Contractor’s programme referred to in Clause 9.1 of the Sub-Contract is attached to this Sub-ContractThe Sub-Contractor’s programme referred to in Clause 9.1 of the Sub-Contract is attached to this Sub Contract FORMTEXT [or FORMTEXT The Sub-Contractor’s programme referred to in Clause 9.1 of the Sub-Contract is as follows:] FORMTEXT [Insert]Part 5: Overheads and Profit[The percentage addition to the Cost for the purposes of paragraph 2.2 of the Appendix Part 2 shall include for all things or matters not defined as Cost in Appendix Part 6 and shall include, but not be limited to, all costs in the following indicative areas:1Personnel and services based off Site in the following functions:1.1Legal and company secretariat;1.2Senior management (including Directors managing and administrating this Contract);1.3Human resources;1.4Finance, commercial, accounts and purchasing;1.5Health and safety, environmental and quality assurance;1.6Administration;1.7IT.In respect of the above personnel:1.8Salary and benefits and employer’s on-costs;1.9Company cars including all costs and expenses (except for expenses authorised by the Contractor to be part of the Cost);1.10Travel (time and cost), accommodation and subsistence cost;1.11Site and kit allowance;1.12Staff redundancy;1.13Staff bonus and incentivisation payments;1.14Professional fees;1.15Training, development and competency based assessments;1.16Occupational health.In respect of the above services:1.17Parent company performance guarantee and management fee;1.18Franchises, royalties and licences unless specified otherwise in the Sub-Contract and authorised in writing by the Contractor;1.19Trade bodies fees;1.20Research and development not directly consequent upon the Sub-Contract Works;1.21Marketing, sales, exhibitions and promotions;1.22Charitable donations;1.23Business development and tendering costs (excluding staff designated under Appendix Part 6 Section C);1.24Recruitment and agency costs;1.25Interest, financing charges (including financing this Contract), banking charges, interest charges to sub-sub-contractors and suppliers due to late payment by Sub-Contractor;1.26All business insurance, warranties, professional indemnity and product liability insurances (other than ‘all-risks’ insurance, employer’s liability insurance and insurances taken out by the Employer) maintained by the Sub-Contractor as part of its annual turn-over policies irrespective of whether such insurances are provided by the Sub-Contractor under the Sub-Contract, and provision for excesses;1.27Accommodation and accommodation running costs including all services, administration, maintenance, furniture, equipment, rent, rates, taxes, telephone, telex, fax, reprographics, couriers and postage;1.28Taxes with the exception of VAT on vehicle hire/lease for staff designated under Appendix Part 6 Section C that is not recoverable due to the provisions of VAT Notice 700/64;1.29Company accounting / auditing (excluding staff designated under Appendix Part 6 Section C);1.30Group and Head Office stationery;1.31General fees paid on a regular basis;1.32Legal advice, fees and services including any negotiation and execution of the Sub-Contract;1.33Advertising including agency fees and publication costs;1.34Group and Head Office mainframe, PC, WP and CAD systems and management systems including project management systems;2Exclusions from the definition of Cost of Labour in Appendix Part 6 Section B:2.1Redundancy costs not defined as being recoverable in Appendix Part 6 Section B;2.2Accruals or sinking fund contributions for a corporate redundancy risk.2.3Training, development and competency based assessments (excluding those required as a direct consequence of the Sub-Contract Works and authorised in writing by the Contractor). Exclusions from the Cost include railway based proficiencies such as PTS and third party equivalents (LUL etc.), signal sighting and training on Sub-Contractor internally developed systems.2.4Sickness and injury payments or insurance in respect thereof.3Exclusions from the definition of Cost of Staff in Appendix Part 6 Section C:3.1Sick leave pay (excluding statutory sick pay);3.2Compassionate leave;3.3Leave of absence for personal development and/or attending education courses;3.4Special Leave for Jury and Military Reserve service;3.5Maternity and Paternity leave;3.6Employee benefits not recorded on an employee’s P11D;3.7Actuarial corrections to Company Pension Schemes;3.8Redundancy costs not defined as being recoverable in Section C;3.9Recruitment costs;3.10Incentive payments irrespective of whether or not they are in an employee’s Contract of Employment;3.11Profit sharing bonus schemes (or similar);3.12Training, development and competency based assessments (excluding those required as a direct consequence of the Sub-Contract Works and authorised in writing by the Contractor). Exclusions from the Cost include railway based proficiencies such as PTS and third party equivalents (LUL etc.), signal sighting and training on Sub-Contractor internally developed systems;3.13Travel, accommodation and subsistence costs in excess of the Sub-Contractor’s validated company expenses policy and not authorised in writing by the Contractor;3.14Vehicle penalty charges.4Sundry items deemed to overhead and profit and not recoverable as Cost:4.1Excesses and exclusions pursuant to sub-clause 17.2 of the Conditions of Contract (Insurance of Works and Extent of Cover);4.2Excesses and exclusions pursuant to sub-clause 17.10 of the Conditions of Contract (Third party insurance);4.3Excesses and exclusions from other contract specific insurances including those listed in Annex 2 of Appendix Part 6 Section F;4.4Contract specific insurances not separately identified in Annex 2 of Appendix Part 6;4.5Corporate decisions for major upgrades to computer equipment, hardware, software, and printers;4.6Head office overheads and profit on staff not based on site but listed in paragraph 1 of Appendix Part 6 Section C.4.7Company car insurance excesses and repairs.4.8Insurance and excesses pursuant to Clause 16.5 (Vesting of Property).4.10All administration costs, charges for pre-employment checks and training costs associated with sub clause 6.9 (Security Vetting).5Profit]Part 6: Cost[SECTION A – GENERAL1The Cost shall comprise the sum of the following VAT-exclusive costs insofar as they have been incurred by the Sub-Contractor in accordance with the Sub-Contract and are not Disallowed Cost:1.1Labour as defined in Section B;1.2Staff as defined in Section C;1.3Materials and goods as defined in Section D;1.4Sub-Contractor’s equipment, consumable stores and services as defined in Section E;1.5Sundry costs as defined in Section F;1.6Sub-Contract Works sub-contracted as defined in Section G;LESS1.7any payments to or credits received, or which ought to have been received, by the Sub-Contractor for materials etc., which arise from the carrying out of the Sub-Contract Works; 1.8any discounts received by the Sub-Contractor or which ought to have been received other than the discounts referred to in Sections D and G;1.9any amounts in respect of which the Sub-Contractor is obliged to indemnify the Contractor under this Sub-Contract.No cost included under an item or in a Section of this Appendix shall be included under any other item or Section.“Disallowed Cost” means(a)Any cost which is required as a result of any breach of this Sub-Contract or negligence of the Sub-Contractor of its employee, agent, supplier or sub-subcontractor or is required by the Sub-Contract to be carried out at the Sub-Contractor’s expense, or cost and any cost which pursuant to this Sub-Contract is to be borne by the Sub-Contractor.(b)Any cost incurred otherwise than in carrying out the Sub-Contract Works or which was not properly and necessarily incurred in carrying out or providing the Sub-Contract Works.(c)Any cost which is not properly justified by the Sub-Contractor’s accounts and records.(d)Any cost identified in the Sub-Contract as a Disallowed Cost or as overhead or profit in Appendix Part 5 or which does not form part of the Cost. 2For the purposes of this Sub-Contract, including for the purposes of amounts of Cost to be included in interim statements submitted by the Sub-Contractor in accordance with sub-clause 11.6 (Interim Statements): 2.1“incurred” in respect of Cost means the Sub-Contractor has paid such cost; and2.2“accrued” in respect of Cost means where the Sub-Contractor has received or is due to receive an invoice or other such payment proof in respect of such cost and the “final date for payment” (as defined in Housing Grants, Construction and Regeneration Act 1996) by the Sub-Contractor in respect of such invoice will occur before the end of the subsequent Agreed Railway Industry Period but the Sub-Contractor has not paid the same. Such “accrued” cost shall be treated as Cost and may be included in an interim statement as provided in sub-clause 11.6 (Interim Statements).3No amount shall be included in the Cost following 3 months after the date of the submission of the Sub-Contractor’s final account pursuant to either sub-clause 13.5 (Statement of Final Account), sub-clause 13.9 (Failure to submit final statement), or sub-clause 13.10 (Sub-Contract Works after Substantial Completion) as the case may be. SECTION B - LABOUR employed or engaged by the Sub-Contractor1Payments to or in respect of labour directly and properly engaged upon the Sub-Contract Works on the Site or in the Sub-Contractor’s yards including those through;1.1Labour rates (PAYE); 1.2Labour wages (tax certificate).2For the purposes of this Section B, ‘labour’ shall include:2.1Workpeople engaged in accordance with the rules, decisions, terms or agreements either of the Construction Industry Joint Council or of the Building and Civil Engineering Annual and Public Holiday Agreements or of such other national wage-negotiating body as may relate to the class of labour concerned, at the time when and in the area where the work is executed;2.2Labour listed below which does not come within the scope of paragraph 2.1 of this Section B (which shall be subject to any alterations or changes in the persons so listed as may be agreed by the Contractor which agreement shall not be unreasonably delayed or withheld).3The terms of payment to be made to or in respect of labour within the scope of paragraph 2.2 of this Section B are subject to agreement by the Contractor (which agreement shall not be unreasonably delayed or withheld).4Payments to labour referred to in paragraph 2.1 of this Section B such payments include:4.1Workpeople’s earnings and all payments to workpeople in respect of skill, responsibility, discomfort, inconvenience and risks;4.2Payments to workpeople in respect of overtime occasionally and reasonably worked;4.3Payments in respect of public holidays;4.4Employer’s regular contributions to annual holiday credits, pension, lump sum retirement benefit, death benefit and other welfare schemes;4.5Fares and daily travelling allowances;4.6Tool allowances; 4.7Personal protective equipment;4.8Amounts which may become payable by the Sub-Contractor to or in respect of workpeople arising from the operation of the rules, decisions, terms or agreements referred to in paragraph 2.1 of this Section B and which are not otherwise provide for in this Section;4.9Redundancy costs for directly employed Site Labour made redundant during the Sub-Contract shall be part of the Cost proportional to the length of time an individual has been directly involved with the Sub-Contract to the total length of continuous service. Accruals or sinking fund contributions for a corporate redundancy risk shall be in the overhead and profit described in Appendix Part 5 and not form part of Cost;4.10The time spent in any stand down or change over shift from day to night working or night to day working;and where authorised either by the Contractor prior to such payments being made (which authorisation shall not be unreasonably delayed or withheld) or by an adjudicator appointed pursuant to the procedures under this Sub-Contract relevant to the resolution of disputes or differences:4.11Overtime regularly worked;4.12Bonus (other than any guaranteed minimum bonus) or incentive scheme or productivity agreements;4.13Periodic leave and lodging allowances;4.14Sub-Contract specific training or competency based assessments authorised in writing by the Contractor.5Payments to or in respect of labour within the scope of paragraph 2.1 of this Section B shall only include the following to the extent that they are payable in regard to payments made under any other provision of this Section B:5.1Employer’s National Insurance contributions;5.2Employer’s liability insurance;5.3The net amount of any payment, contributions, levy or tax (excluding redundancy payments other than redundancy payments arising solely from employment on the Sub-Contract Works) imposed by statute and payable to or in respect of labour by the Sub-Contractor in his capacity as an employer, subject to the deduction of any rebate, payment or refund of payment which is received or to be received by the Sub-Contractor.SECTION C - STAFF employed or engaged on Site by the Sub-Contractor or as otherwise approved by the Contractor1The staff to whom this Section C applies are:1.1Those listed in Annex 1 to this Appendix Part 6 including those approved to be based off Site carrying out design and other contract specific activities;1.2Where not so listed, staff whose designation and numbers have been notified to the Contractor and whose written consent (which consent shall not be unreasonably delayed or withheld) to their employment or engagement for the purposes of this Section C has been given prior to such employment or engagement (whether such staff are additional to those listed or in replacement for any persons so listed).2Subject to paragraphs 3 and 4 of this Section C, payments to or in respect of the above staff directly and properly engaged by the Sub-Contractor upon the Sub-Contract Works to the extent that they are working on the Site up to the day named in the Certificate of Substantial Completion and, subject to being so authorised by the Contractor, working on or off the site after the day named in the Certificate of Substantial Completion.3Supporting information:3.1The Sub-Contractor shall provide the Contractor with all documentation and information as may be required by the Contractor to validate the staff category designated and the time charged for any member of staff. The Contractor shall be entitled to refuse to certify payment for any member of staff where such validation has not been satisfactorily demonstrated by the Sub-Contractor to the Contractor;3.2Any category of staff not originally designated under the Sub-Contract may be introduced subject to authorisation by the Contractor;3.3The Sub-Contractor shall provide comprehensive details of its internal grading system sufficient to satisfy the requirements of the Contractor. In the event that the Sub-Contractor wishes to change the grading system or provide staff to fulfil any role that does not comply with the agreed grading system he shall obtain the Contractor’s written authorisation to such variance prior to the provision of such staff or making such change;3.4Minimum shift allowances shall be included only when authorised in writing by the Contractor.4The payments referred to in paragraph 2 of this Section C shall include only:4.1Actual salaries;4.2Overtime where the payment represents the value paid to the individual in accordance with their contract of employment and which has either been authorised by the Contractor or specifically identified in the Target Cost. Such overtime may be rejected if it is not required to provide the Sub-Contract Works. Where there is an agreed plan of extended overtime working, a ‘blanket acceptance’ may be obtained from the Contractor. Where overtime is required to be worked when advance notice could not reasonably be foreseen, then in such cases retrospective acceptance will be allowed;4.3Holiday pay including public holidays;4.4Personal protective equipment;4.5Employee benefits including private medical insurance, permanent health insurance, life insurance, subsistence allowance and other benefits as included with the individual employee’s employment package under a contract of employment and included within the employee’s P11D statement;4.6Travel, accommodation and subsistence costs for Site and non Site based UK and non-UK staff, to and at the Site and other authorised contract specific destinations, subject to the written authority of the Contractor and compliance with the Sub-Contractor’s validated company policy. Travel costs incurred and invoiced in foreign currencies shall be converted and paid for in ? Sterling at the agreed exchange rate current at the date on which the transaction was made;4.7Company car costs including insurance, tax, depreciation and maintenance pro rated to the time worked on the project. Fuel to be reimbursed in accordance with the conditions of employment for individual members of the Sub-Contractor’s staff;4.8Travel time to the Site and other authorised Sub-Contract specific project destinations, to be reimbursed in accordance with the conditions of employment for individual members of the Sub-Contractor’s staff;4.9Payments made by the Sub-Contractor to HMRC under provisions and regulations effective at the date of a transaction to the extent that the costs to which the transaction relates form part of Cost as defined by this Appendix Part 6;4.10Employer’s liability insurance;4.11Employer's contributions in respect of approved occupational pension schemes paid in accordance with the Sub-Contractor's normal conditions of employment for such staff and/or in order to comply with the Sub-Contractor's statutory obligations;4.12The amount of any national insurance payment, contribution, levy or tax, excluding any redundancy payments other than any redundancy payments arising solely from a person's employment on the Sub-Contract Works, imposed by statute payable in respect of the staff by the Sub-Contractor in his capacity as an employer;4.13The time spent in any stand down or change over shift from day to night working or night to day working;4.14Sub-Contract specific training or competency based assessments authorised in writing by the Contractor.5For Interim Statements submitted in accordance with Clause 11 (Valuation and Payment), the Sub-Contractor may with the agreement of the Contractor provide staff rates for those members of staff authorised to work on the Site in accordance with paragraph 1 of this Section C for ease of administration as follows:5.1Rates for each member of staff shall be based on actual salary and shall include all costs of employment including expenses and disbursements, but exclude;5.1.1Travel and accommodation outside the UK and Ireland;5.1.2Bonus and incentive payments;5.1.3Overtime;5.1.4Sub-Contract specific training or competency based assessments authorised in writing by the Contractor;5.1.5All other costs that are only recoverable with the written approval of the Contractor.5.2Rates shall be submitted by the Sub-Contractor using a template to be agreed with the Contractor.5.3Unless otherwise agreed, rates shall be reviewed on the annual anniversary of the Sub-Contractor’s annual salary review date, or at such other times to take account of changing circumstances e.g. promotion and salary increases through merit. The Sub-Contractor shall submit such proposed changes to the Contractor for approval.5.4The Sub-Contractor shall reconcile the actual cost of staff with the value of staff reimbursed on rates on a three monthly basis. Any over or under recovery shall be included in the application for payment following the reconciliation.SECTION D - MATERIALS AND GOODS provided by the Sub-Contractor including for temporary works1Subject to allowance to the Contractor of any cash discounts and of any trade or other discounts, payments in respect of materials and goods shall be as follows:1.1Materials and goods obtained by the Sub-Contractor from stockists or manufacturers: the invoice cost including the cost of delivery to Site;1.2Materials and goods supplied from the Sub-Contractor's stock or worked upon in the Sub-Contractor's workshops: the market price, current at the date of their supply to the Sub-Contract Works, together with any appropriate handling charges, storage and insurance;1.3Payment to the extent not included in the cost or price under paragraphs 1.1 and 1.2 of this Section D of any costs of:1.3.1Non-returnable crates or other packaging;1.3.2Returning crates and other packaging less any credit obtainable;1.3.3Reasonable waste;1.3.4Testing and commissioning.1.4Credit for the sale of surplus or redundant materials authorised by the Contractor.1.5Disposal off Site of any surplus materials, waste and arisings.SECTION E – SUB-CONTRACTOR’S EQUIPMENT, INCLUDING CONSUMABLE STORES AND SERVICES provided by the Sub-Contractor1GeneralThe Sub-Contractor’s Equipment including consumable stores and services referred to in this Section E is:1.1The net cost to the Sub-Contractor whether by hire charges or otherwise; or1.2where Equipment is: 1.2.1provided by the Sub-Contractor;1.2.2provided by subsidiaries of the Sub-Contractor or the Sub-Contractor’s in-group companies; or1.2.3purchased by the Sub-Contractor under a hire purchase or lease agreement;at hire rates or at rates and prices otherwise agreed from time to time between the Contractor and the Sub-Contractor or in the absence of prior agreement at rates and prices as may be determined by the Contractor such rates and prices not to exceed those normally applied in the locality at the time of use. Rates and prices shall be net of any inter-company profit unless such subsidiary or in-group company has its own profit centre;1.3including such Sub-Contractor’s Equipment which is on Site as contingency or which is stood down due to the nature, timing or method of working.2Sub-Contractor’s Equipment including consumable stores2.1Mechanical Sub-Contractor’s Equipment including power-operated tools and operators where part of the hire rate;2.2Mechanical Sub-Contractor’s Equipment standing time and standby equipment on site authorised by the Contractor;2.3Scaffolding and scaffold boards including reasonable losses thereof where hired;2.4Non-mechanical Sub-Contractor’s Equipment including hand tools (picks, shovels, barrows, buckets etc) and their repair and sharpening;2.5Spare parts, tax, maintenance and insurance for the Sub-Contractor’s Equipment;2.6Technical equipment for surveying and testing etc.;2.7Transport including collection and disposal of rubbish and charges and taxes for tips and transportation of Sub-Contractor’s Equipment;2.8Site transport for the Contractor (if specified);2.9Tarpaulins and dust sheets;2.10Temporary roadways, shoring, planking and strutting, centering, formwork, hoardings, temporary fans, temporary fencings, barriers, footways, temporary partitions or the like;2.11Fuel and consumables stores for Sub-Contractor’s Equipment including power-operated tools;2.12Brushes, sponges, leathers, rollers and the like;2.13Fuel and equipment for drying out the Sub-Contract Works and for testing and commissioning services installations including the cost of using plant incorporated into the Sub-Contract Works;2.14Temporary buildings, offices, stores and workshops including foundations, drainage, services and utilities, reasonable repair, removal and reinstatement, legal and estate agent fees, rental and facilities costs approved in writing by the Contractor;2.15Canteens, sanitary accommodation, protective clothing and other provisions for the welfare of persons engaged on the work and authorised visitors in accordance with the rules or decisions of those bodies referred to under paragraph 2.1 of Section B or in accordance with any Act of Parliament, statutory instrument, rule, order, regulation or bye-law and/or as may be authorised by the Contractor;2.16Tea, coffee, cutlery, paper and the like consumables;2.17Credit for the sale of surplus or redundant Sub-Contractor’s Equipment authorised by the Contractor.3Services3.1Temporary plumbing and storage;3.2Temporary telecommunications (including data), electrical and gas installations;3.3Protection for the Sub-Contract Works;3.4Health and safety measures necessary to comply with any Act of Parliament;3.5Erection, dismantling, removal and maintenance of Sub-Contractor’s Equipment and temporary services;3.6Canteen facilities;3.7Cleaning facilities;3.8Progress photographs and videos.SECTION F - SUNDRY COSTS incurred by the Sub-ContractorThe net cost to the Sub-Contractor of the following:1Charges arising from work carried out by local authorities or statutory undertakings;2Charges for water, electricity and gas used on Site;3Rates or other similar statutory charges on temporary buildings for the Sub-Contractor’s on-site staff and those of the Contractor and his consultants;4Payments for hoardings and similar licences less any payments received by the Sub-Contractor for advertising;5Furniture, furnishings, office equipment, stationery, office and welfare consumables, etc., including telephone, data and fax equipment, computers and their programs, as may be authorised by the Contractor (which authorisation shall not be unreasonably delayed or withheld) for the Sub-Contractor's on-site staff and those of the Contractor and his consultants, less any credits obtained from their eventual disposal;6Photocopiers, etc. including paper and all consumables, hire charges or capitalised costs based on standard corporate charges;7Postage and other delivery charges for letters, etc., sent from the Site;8Charges for telephone, data and fax calls made from the Site;9Reproduction of drawings and other papers sent from the Site;10Travelling and subsistence properly incurred in inspecting materials and work off Site;11Security arrangements for the Site and the Sub-Contract Works;12Petty cash, contract specific based on receipts / invoices;13Sub-Contract and Sub-Contract Works specific courier, reprographic and other third party invoiced and receipted costs or the like regardless of the location from which the order was placed;14[Where the Sub-Contractor is and remains the Principal Contractor, any necessary further development of the Construction Phase Plan;]15Sub-Contract expenses (either purchased, rented, leased, hired or otherwise incurred) directly consequent upon the Sub-Contract Works, authorised by the Contractor;16Sub-Contract specific insurances separately identified in Annex 2 to this Appendix Part 6, but excluding excesses, exclusions and contractor retained risks under sub-clauses 17.2, 17.3 and 17.10 (Insurances) of the Conditions of Contract;SECTION G - WORK SUB-CONTRACTED1Payments made by the Sub-Contractor in respect of work sub-contracted to consultants or sub-contractors whether on Site or at any other location authorised by the Contractor shall be in accordance with the sub-contract to which the Contractor has given consent pursuant to Clause 3 (Assignment and Subcontracting) of the Conditions of Contract.2Sub-contracting to Sub-Contractor’s subsidiary companies or the Sub-Contractor’s in-group companies, shall be at rates and prices that demonstrate value for money with evidence that they have been competitively tendered or benchmarked. Rates and prices shall be net of any inter-company profit unless such subsidiary or in-group company has its own profit centre.3Labour only sub-contracts.][Annex 1 to APPENDIX PART 6: SECTION CList of Staff FORMTEXT [Insert]][Annex 2 to APPENDIX PART 6: SECTION FList of Sub-Contract Specific Insurances FORMTEXT [Insert]]CONTENTS OF THE INFRASTRUCTURE CONDITIONS OF CONTRACT – SUB-CONTRACTCLAUSE???? PAGE TOC \f \u \* MERGEFORMAT ?1DEFINITIONS AND INTERPRETATION PAGEREF _Toc59528109 \h 1?1.1Definitions PAGEREF _Toc59528110 \h 1?1.2Definitions in Conditions PAGEREF _Toc59528111 \h 3?1.3Singular and Plural PAGEREF _Toc59528112 \h 4?1.4Meaning of Days PAGEREF _Toc59528113 \h 4?1.5Headings and Marginal Notes PAGEREF _Toc59528114 \h 4?2GOVERNING LAW, COMMUNICATIONS AND JURISDICTION PAGEREF _Toc59528115 \h 4?2.1Governing Law PAGEREF _Toc59528116 \h 4?2.2Language PAGEREF _Toc59528117 \h 4?2.3Communications PAGEREF _Toc59528118 \h 4?2.4Jurisdiction PAGEREF _Toc59528119 \h 4?2.5Joint and Several Liability PAGEREF _Toc59528120 \h 4?3ASSIGNMENT AND SUB-CONTRACTING PAGEREF _Toc59528121 \h 5?3.1Assignment and Transfer PAGEREF _Toc59528122 \h 5?3.2Third Party Rights PAGEREF _Toc59528123 \h 5?3.3Sub-Subcontracting of Sub-Contract Works PAGEREF _Toc59528124 \h 53.3AApproval of Key Sub-Subcontractor Documents PAGEREF _Toc59528125 \h 53.3BSupply Chain Protection PAGEREF _Toc59528126 \h 6?3.4Labour Only Sub-Subcontractors PAGEREF _Toc59528127 \h 6?3.5Sub-Contractor’s Liability for Sub-Subcontractors PAGEREF _Toc59528128 \h 6?3.6Removal of Sub-Subcontractor PAGEREF _Toc59528129 \h 6?4THE SUB-CONTRACT AND PROVISION OF INFORMATION PAGEREF _Toc59528130 \h 7?4.1Sub-Contract Documents PAGEREF _Toc59528131 \h 7?4.2Whole Agreement PAGEREF _Toc59528132 \h 7?4.3Provision of Documents PAGEREF _Toc59528133 \h 7?4.4Expenditure of Provisional Sums PAGEREF _Toc59528134 \h 7?4.5Inspection of Site PAGEREF _Toc59528135 \h 7?4.6Sub-Contract Design and Further Instructions PAGEREF _Toc59528136 \h 8?4.7Design Criteria PAGEREF _Toc59528137 \h 8?4.8Assessment of Risks PAGEREF _Toc59528138 \h 8?4.9Sub-Contractor’s Design PAGEREF _Toc59528139 \h 8?4.10Copyright PAGEREF _Toc59528140 \h 8?4.11Patent Rights PAGEREF _Toc59528141 \h 9?4.12Site Photographs PAGEREF _Toc59528142 \h 9?5THE EMPLOYER’S REPRESENTATIVE PAGEREF _Toc59528143 \h 10?5.1The Employer’s Representative PAGEREF _Toc59528144 \h 10?5.2Instructions PAGEREF _Toc59528145 \h 10?5.3Instructions in Writing PAGEREF _Toc59528146 \h 10?5.4Instructions for Urgent Repair PAGEREF _Toc59528147 \h 10?6RESPONSIBILITY OF PARTIES PAGEREF _Toc59528148 \h 10?6.1Collaboration and Early Warning PAGEREF _Toc59528149 \h 10?6.2Carrying out the Sub-Contract Works PAGEREF _Toc59528150 \h 11?6.3Design of the Sub-Contract Works PAGEREF _Toc59528151 \h 116.3AProhibited Materials PAGEREF _Toc59528152 \h 116.3BQuality Plans and Checks PAGEREF _Toc59528153 \h 12?6.4Superintendence of Sub-Contract Works PAGEREF _Toc59528154 \h 12?6.5Safety of Work and Persons PAGEREF _Toc59528155 \h 12?6.6Interference with Traffic and Adjoining Properties PAGEREF _Toc59528156 \h 13?6.7Site Security PAGEREF _Toc59528157 \h 13?6.8CDM Regulations PAGEREF _Toc59528158 \h 13?6.9Security Vetting PAGEREF _Toc59528159 \h 14?7OTHER SUB-CONTRACTORS PAGEREF _Toc59528160 \h 14?7.1Duties of Sub-Contractors PAGEREF _Toc59528161 \h 14?7.2Duties of Contractor PAGEREF _Toc59528162 \h 14?7.3Collaboration PAGEREF _Toc59528163 \h 14?7.4Ingress and Egress from site PAGEREF _Toc59528164 \h 14?7.5Contractor’s facilities and Equipment PAGEREF _Toc59528165 \h 14?8RISK PAGEREF _Toc59528166 \h 14?8.1Sub-Contractor’s Risks PAGEREF _Toc59528167 \h 14?8.2Care of the Works PAGEREF _Toc59528168 \h 15?8.3Excepted Risks PAGEREF _Toc59528169 \h 15?8.4Rectification of Loss PAGEREF _Toc59528170 \h 15?8.5Contractor’s Risks PAGEREF _Toc59528171 \h 15?8.6Sub-Contractor’s Entitlement PAGEREF _Toc59528172 \h 16?8.7Shared Risks PAGEREF _Toc59528173 \h 16?8.8Allowance of Time PAGEREF _Toc59528174 \h 16?8.9Ordering a Variation PAGEREF _Toc59528175 \h 16?9PROGRAMME AND TIME FOR COMPLETION PAGEREF _Toc59528176 \h 16?9.1Performance of Sub-Contract Works PAGEREF _Toc59528177 \h 16?9.2Performance Information PAGEREF _Toc59528178 \h 17?9.3Revised Programme PAGEREF _Toc59528179 \h 17?9.4Extension of Time PAGEREF _Toc59528180 \h 17?9.5Contractor’s Assessment of Delay PAGEREF _Toc59528181 \h 17?9.6Extension of Time PAGEREF _Toc59528182 \h 17?9.7Final Extension PAGEREF _Toc59528183 \h 17?10PERFORMANCE AND COMPLETION PAGEREF _Toc59528184 \h 17?10.1Sub-Contractor to Commence and Proceed PAGEREF _Toc59528185 \h 17?10.2Possession and Access PAGEREF _Toc59528186 \h 1710.2AAccess and Facilities PAGEREF _Toc59528187 \h 17?10.3Time for Completion PAGEREF _Toc59528188 \h 18?10.4Substantial Completion PAGEREF _Toc59528189 \h 18?10.5Defects Correction PAGEREF _Toc59528190 \h 18?10.6Liquidated Damages PAGEREF _Toc59528191 \h 18?10.7Liquidated Damages for Sections PAGEREF _Toc59528192 \h 18?10.8Limit of Liquidated Damages PAGEREF _Toc59528193 \h 18?10.9Payment of Damages PAGEREF _Toc59528194 \h 19?10.10Repayment of Damages PAGEREF _Toc59528195 \h 19?10.11Rate of Progress PAGEREF _Toc59528196 \h 19?10.12Acceleration PAGEREF _Toc59528197 \h 19?11VALUATION AND PAYMENT PAGEREF _Toc59528198 \h 19?11.1Bill of Quantities PAGEREF _Toc59528199 \h 19?11.2Payment PAGEREF _Toc59528200 \h 19?11.3Ascertaining Quantities PAGEREF _Toc59528201 \h 19?11.4Priced Schedule PAGEREF _Toc59528202 \h 19?11.5Cost Plus PAGEREF _Toc59528203 \h 20?11.6Interim Statement PAGEREF _Toc59528204 \h 20?11.7Payment to Sub-Contractor PAGEREF _Toc59528205 \h 20?11.8Final date for Payment PAGEREF _Toc59528206 \h 20?11.9Paying Less PAGEREF _Toc59528207 \h 20?11.10Contractor’s Compliance PAGEREF _Toc59528208 \h 20?11.11Outstanding Work PAGEREF _Toc59528209 \h 20?11.12Construction Industry Scheme PAGEREF _Toc59528210 \h 21?11.13Value Added Tax PAGEREF _Toc59528211 \h 21?12CHANGES TO THE SUB-CONTRACT WORKS AND VALUATION PAGEREF _Toc59528212 \h 21?12.1Variation to Sub-Contract Works PAGEREF _Toc59528213 \h 21?12.2Order in Writing PAGEREF _Toc59528214 \h 21?12.3Sub-Contractor to Quote PAGEREF _Toc59528215 \h 21?12.4Sub-Contractor’s Default PAGEREF _Toc59528216 \h 22?12.5Valuation of Variations PAGEREF _Toc59528217 \h 22?13ADDITIONAL PAYMENT AND FINAL ACCOUNT PAGEREF _Toc59528218 \h 22?13.1Notice of Claims PAGEREF _Toc59528219 \h 22?13.2Failure to Give Notice PAGEREF _Toc59528220 \h 22?13.3Delay or Disruption PAGEREF _Toc59528221 \h 22?13.4Defects Correction Certificate PAGEREF _Toc59528222 \h 22?13.5Statement of Final Account PAGEREF _Toc59528223 \h 22?13.6Not Used PAGEREF _Toc59528224 \h 23?13.7Final Certificate PAGEREF _Toc59528225 \h 23?13.8Final Date for Payment PAGEREF _Toc59528226 \h 23?13.9Failure to Submit Final Statement PAGEREF _Toc59528227 \h 23?13.10Works after Substantial Completion PAGEREF _Toc59528228 \h 23?14FORCE MAJEURE PAGEREF _Toc59528229 \h 24?14.1Force Majeure PAGEREF _Toc59528230 \h 24?14.2Termination of Employment PAGEREF _Toc59528231 \h 24?14.3Entitlement on Termination PAGEREF _Toc59528232 \h 24?14.4Removal of Sub-Contractor’s Equipment PAGEREF _Toc59528233 \h 24?15TERMINATION FOR DEFAULT PAGEREF _Toc59528234 \h 24?15.1Sub-Contractor Default PAGEREF _Toc59528235 \h 2415.1ATermination of Main Contract PAGEREF _Toc59528236 \h 25?15.2Termination of Employment PAGEREF _Toc59528237 \h 25?15.3Notice of Termination PAGEREF _Toc59528238 \h 25?15.4Contractor’s Rights After Termination PAGEREF _Toc59528239 \h 25?15.5Work to be Valued PAGEREF _Toc59528240 \h 25?15.6Payment After Termination PAGEREF _Toc59528241 \h 2615.6ATermination under clause 15.1A PAGEREF _Toc59528242 \h 26?15.7Contractor Default PAGEREF _Toc59528243 \h 26?15.8Termination of Employment PAGEREF _Toc59528244 \h 26?15.9Payment After Termination PAGEREF _Toc59528245 \h 26?16SUB-CONTRACTOR’S EQUIPMENT AND MATERIALS PAGEREF _Toc59528246 \h 27?16.1Non-removal of Materials and Equipment PAGEREF _Toc59528247 \h 27?16.2Removal of Surplus Goods and Materials PAGEREF _Toc59528248 \h 27?16.3Listed Goods and Materials PAGEREF _Toc59528249 \h 27?16.4Transfer of Property PAGEREF _Toc59528250 \h 27?16.5Vesting of Property PAGEREF _Toc59528251 \h 27?16.6No Lien on Goods or Materials PAGEREF _Toc59528252 \h 28?16.7Delivery of Goods or Materials PAGEREF _Toc59528253 \h 28?16.8Sub-subcontracts PAGEREF _Toc59528254 \h 28?17INSURANCES PAGEREF _Toc59528255 \h 28?17.1Sub-Contractor to Insure PAGEREF _Toc59528256 \h 28?17.2Insurance of Sub-Contract Works PAGEREF _Toc59528257 \h 28?17.3Payments made to the Employer PAGEREF _Toc59528258 \h 28?17.4Professional Indemnity Insurance for Design PAGEREF _Toc59528259 \h 28?17.5Evidence of Insurance PAGEREF _Toc59528260 \h 29?17.6Damage to Persons or Property PAGEREF _Toc59528261 \h 29?17.7Exceptions PAGEREF _Toc59528262 \h 29?17.8Indemnity by Contractor PAGEREF _Toc59528263 \h 29?17.9Shared Responsibility PAGEREF _Toc59528264 \h 29?17.10Third Party Insurance PAGEREF _Toc59528265 \h 30?18BONDS AND SECURITIES PAGEREF _Toc59528266 \h 30?18.1Performance Security PAGEREF _Toc59528267 \h 30?18.2Failure to Provide Security PAGEREF _Toc59528268 \h 30?18.3Advance Payment Security PAGEREF _Toc59528269 \h 31?18.4Dispute Resolution PAGEREF _Toc59528270 \h 31?19RESOLUTION OF DISPUTES PAGEREF _Toc59528271 \h 31?19.1Dispute Avoidance PAGEREF _Toc59528272 \h 31?19.2Optional Conciliation or Mediation PAGEREF _Toc59528273 \h 31?19.3Adjudication PAGEREF _Toc59528274 \h 31?19.4Adjudicator’s Decision Binding PAGEREF _Toc59528275 \h 31?19.5Litigation PAGEREF _Toc59528276 \h 31?19.6Related Disputes PAGEREF _Toc59528277 \h 31?20BUILDING INFORMATION MODELLING PAGEREF _Toc59528278 \h 32?20.1BIM Building Information Modelling PAGEREF _Toc59528279 \h 32?21MILESTONES PAGEREF _Toc59528280 \h 32?21.1Milestone Sum PAGEREF _Toc59528281 \h 32?21.2Entitlement to Payment PAGEREF _Toc59528282 \h 32?21.3Payment of Milestone PAGEREF _Toc59528283 \h 32?22CONTRACTOR FURNISHED MATERIALS PAGEREF _Toc59528284 \h 32?22.1Contractor Furnished Materials PAGEREF _Toc59528285 \h 32?22.2Conditions Applicable to CFM PAGEREF _Toc59528286 \h 32?23COMPLIANCE WITH LAW PAGEREF _Toc59528287 \h 32?23.1Giving of notices and associated fees PAGEREF _Toc59528288 \h 32?23.2Payment of fees PAGEREF _Toc59528289 \h 33?23.3Sub-Contractor to conform with Statutes etc. PAGEREF _Toc59528290 \h 33?23.4Changes in law PAGEREF _Toc59528291 \h 33?24COLLATERAL WARRANTIES PAGEREF _Toc59528292 \h 33?24.1Collateral Warranties PAGEREF _Toc59528293 \h 33?25CONFIDENTIALITY AND COMPTROLLER AND AUDITOR GENERAL PAGEREF _Toc59528294 \h 33?25.1Confidentiality and Comptroller and Auditor General PAGEREF _Toc59528295 \h 33?25.2Obligation does not apply PAGEREF _Toc59528296 \h 33?25.3Sub-subcontractors PAGEREF _Toc59528297 \h 34?25.4Announcements PAGEREF _Toc59528298 \h 34?25.5Permitted disclosures by Contractor PAGEREF _Toc59528299 \h 34?25.6Access PAGEREF _Toc59528300 \h 34?25.7Survival PAGEREF _Toc59528301 \h 34?26TRACK POSSESSIONS AND ISOLATIONS PAGEREF _Toc59528302 \h 34?26.1Track possessions and Isolations PAGEREF _Toc59528303 \h 34?26.2Cancellation and alteration on short notice PAGEREF _Toc59528304 \h 34?26.3Adequate arrangements PAGEREF _Toc59528305 \h 34?26.4Cancellation and alteration due to failure to make adequate arrangements PAGEREF _Toc59528306 \h 35?26.5Sub-Contractor unable to complete PAGEREF _Toc59528307 \h 35?26.6Acknowledgement PAGEREF _Toc59528308 \h 35?27SET-OFF PAGEREF _Toc59528309 \h 35?27.1Set-off PAGEREF _Toc59528310 \h 35?28CLAIMS HANDLING PROVISIONS PAGEREF _Toc59528311 \h 35?28.1Definitions PAGEREF _Toc59528312 \h 35?28.2Claims handling provisions PAGEREF _Toc59528313 \h 35?29COMPLIANCE PAGEREF _Toc59528314 \h 36?29.1General PAGEREF _Toc59528315 \h 36?29.2Bribery PAGEREF _Toc59528316 \h 36?29.3Modern Slavery Act PAGEREF _Toc59528317 \h 36?29.4Remedies PAGEREF _Toc59528318 \h 36?30CORPORATE TAX PAGEREF _Toc59528319 \h 36?30.1Corporate Tax PAGEREF _Toc59528320 \h 36?31FREEDOM OF INFORMATION PAGEREF _Toc59528321 \h 37?31.1Freedom of Information PAGEREF _Toc59528322 \h 37?32INFORMATION SECURITY PAGEREF _Toc59528323 \h 37?32.1Information Security PAGEREF _Toc59528324 \h 37?33EQUALITY AND DIVERSITY PAGEREF _Toc59528325 \h 37?33.1Equality and Diversity PAGEREF _Toc59528326 \h 37?34REAL LIVING WAGE PAGEREF _Toc59528327 \h 38?34.1Real Living Wage PAGEREF _Toc59528328 \h 38?35PROTECTION OF PERSONAL DATA PAGEREF _Toc59528329 \h 38?35.1Definitions PAGEREF _Toc59528330 \h 38?35.2Independent Data Controllers PAGEREF _Toc59528331 \h 38?36INTERMEDIARIES LEGISLATION (IR35) PAGEREF _Toc59528332 \h 39?36.1Engagement of Off-Payroll service providers through the Contractor PAGEREF _Toc59528333 \h 39?37LIMITS OF LIABILITY PAGEREF _Toc59528334 \h 39?37.1Aggregate Liability Cap PAGEREF _Toc59528335 \h 39?37.2Exclusions from Limits of Liability PAGEREF _Toc59528336 \h 39?37.3Railway Costs PAGEREF _Toc59528337 \h 39?37.4Insured Losses PAGEREF _Toc59528338 \h 40?37.5Post Implementation Asset Failures PAGEREF _Toc59528339 \h 40?37.6MTBF Liquidated Damages PAGEREF _Toc59528340 \h 41?37.7Indirect and Consequential Losses PAGEREF _Toc59528341 \h 41?37.8Mitigation PAGEREF _Toc59528342 \h 41?38PROJECT BANK ACCOUNT PAGEREF _Toc59528343 \h 41?38.1Project Bank Account – definitions PAGEREF _Toc59528344 \h 41?38.2PBA Sub-Subcontractors PAGEREF _Toc59528345 \h 42?38.3Payments PAGEREF _Toc59528346 \h 42?38.4Effect of Payment PAGEREF _Toc59528347 \h 42?38.5Joining Deed PAGEREF _Toc59528348 \h 42?38.6Termination PAGEREF _Toc59528349 \h 42?38.7Subsequent Implementation PAGEREF _Toc59528350 \h 42?39M&E AND SIGNALLING CONDITIONS PAGEREF _Toc59528351 \h 42?39.1Definitions PAGEREF _Toc59528352 \h 42?39.2Inspection and testing of plant before delivery PAGEREF _Toc59528353 \h 43?39.3Tests on Completion PAGEREF _Toc59528354 \h 43?39.4Performance Tests PAGEREF _Toc59528355 \h 44?39.5Defective plant and further testing PAGEREF _Toc59528356 \h 44?39.6Intellectual Property PAGEREF _Toc59528357 \h 44?40WORKS PERFORMED UNDER PREVIOUS CONTRACTS PAGEREF _Toc59528358 \h 44?40.1Previous Works PAGEREF _Toc59528359 \h 44?41CONTRACTOR’S OPTIONS PAGEREF _Toc59528360 \h 45?41.1Definitions PAGEREF _Toc59528361 \h 45?41.2Phases PAGEREF _Toc59528362 \h 45?41.3Adjustment to Sub-Contract Price PAGEREF _Toc59528363 \h 45?41.4Valuation of changes to Option PAGEREF _Toc59528364 \h 45?41.5Option not instructed PAGEREF _Toc59528365 \h 45?42CONSOLIDATED PROGRAMME PAGEREF _Toc59528366 \h 45Infrastructure Conditions of Contract – Sub-ContractDEFINITIONS AND INTERPRETATION TC " REF _NN2160\r \h ?1DEFINITIONS AND INTERPRETATION" \l 1 Definitions TC " REF _NN2161\r \h ?1.1Definitions" \l 2 In the Sub-Contract the following words and expressions shall have the meanings hereby assigned unless the context otherwise requires:“Appendix” means the Appendix to the Sub-Contract;“Bill of Quantities” means (if applicable) the priced and completed Sub-Contract Bill of Quantities referred to as such and attached to the Sub-Contract Agreement and which comprises the Pricing Document for the purposes of the Sub-Contract;Certificate of Substantial Completion” means a certificate issued by the Contractor to the Sub-Contactor pursuant to sub-clause 10.4 (Substantial Completion), confirming that Substantial Completion has occurred;“Conditions of Contract” means The Infrastructure Conditions of Contract – Sub-Contract, dated April 2017, with Network Rail embedded amendments;“Confidential Information” means any information which has been designated as confidential by either Party in writing or that ought reasonably to be considered as confidential, however it is conveyed, including information that relates to the business, affairs, developments, trade secrets, know-how, personnel, affiliates and suppliers (including sub-contractors) of either Party, including Intellectual Property, together with all information derived from the above, and any other information clearly designated as being confidential (whether or not it is marked as “confidential”) or which ought reasonably to be considered to be confidential;“Contract Requirements HSEA” means the document referred to as such in the Sub-Contract Agreement to which these Conditions of Contract are annexed, and as the same may be updated from time to time;“Contracting Authority” means any contracting authority as defined in Regulation 4 of The Utilities Contracts Regulations 2016;“Contractor Designed Works” means any parts of the Permanent Works in respect of which the Contractor is responsible for design in accordance with this Contract as identified in the Sub-Contract Technical Workscope;“Cost” except where otherwise defined for “cost plus” contracts, (see Appendix Part 2 paragraph 2.2) means all expenditure reasonably and properly incurred or to be incurred in providing the Sub-Contract Works whether on or off the Site including overhead finance and other charges properly allocated thereto but does not include any allowance for profit;“Crown” means the government of the United Kingdom (including the Northern Ireland Executive Committee and Northern Ireland Departments, the Scottish Government and the National Assembly for Wales), including, but not limited to, government ministers, government departments, government and particular bodies and government agencies;“Data Protection Legislation” means (i) the Data Protection Act 2018 to the extent that it relates to processing of personal data and privacy; and (ii) all applicable laws about the processing of personal data and privacy;“Employer” means the individual, firm or company identified as such in the Appendix;“Employer’s Representative” means means the individual, firm or company so identified in the Appendix or any other individual or firm appointed as such in accordance with the Main Contract;“Guarantor” means an entity which provides a parent company guarantee in favour of the Contractor in accordance with sub-clause 18.1 (Performance Security);“Insolvent” means the relevant entity: suspending or threatening to suspend payment of its debts or being unable to pay its debts as they fall due or admitting inability to pay its debts or being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;being the subject of a petition presented (which is not dismissed within fourteen (14) days of its service), a notice given, or a resolution passed for or in connection with winding up other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or solvent reconstruction;being the subject of an application to court for the appointment of an administrator or a notice of intention to appoint an administrator filed at court;going into liquidation;having a receiving or administration order made against him;compounding with creditors; carrying on business under a receiver, trustee or manager for the benefit of creditors,or any order, act or event which under applicable laws has effect substantially similar to these orders, acts or events;“Intellectual Property” means all copyright and all neighbouring and database rights and moral rights, registered designs, registered and unregistered design rights, or any rights or property similar to the foregoing in any part of the world whether registered or unregistered together with the right to apply for the registration of such rights in any part of the world and the rights to current applications for registration of any such intellectual property;“Intermediaries Legislation IR35” means Income Tax (Earnings and Pensions) Act 2003 (ITEPA), Social Security Contributions and Benefits Act 1992 (SSCBA) and all other related statutes and regulations including the Finance Act 2017;“Joint Names Policy” means a policy of insurance which includes the Employer and the Contractor as the insured and under which insurers have no right of recourse against any person named as an insured;“Key Sub-Contractor” are those sub-contractors of the Contractor to which the requirements of sub-clause 3.5B (Approval of Key Sub-Contractor sub-contract documents) apply as stated in the Appendix;“Main Contract” means the contract between the Contractor and the Employer as identified in the Appendix;“Main Contract Works” means the Permanent Works and the Temporary Works to be constructed under the Main Contract;“Permanent Works” means the permanent works to be constructed and completed in accordance with the Sub-Contract;“Preliminaries” means the document referred to as such in the Sub-Contract Agreement to which these Conditions of Contract are annexed;“Pricing Document” means the document referred to as such in the Sub-Contract Agreement to which these Conditions of Contract are annexed and which may comprise a Bill of Quantities and/or a Pricing Schedule (as applicable) to reflect the basis on which payment is to be ascertained as stated in the Appendix;“Pricing Schedule” means a priced and completed schedule of rates and/or dayworks schedule referred to as such and attached to the Sub-Contract Agreement and which comprises the Pricing Document for the purposes of the Sub-Contract;“Provisional Sum” means a sum included and so designated in the Sub-Contract as a contingency for the carrying out of work which may be used at the direction and discretion of the Contractor and for which the work has been sufficiently defined to enable the Sub-Contractor to have made allowance for it in its programming, planning and pricing of Preliminaries;“Real Living Wage” means the separate basic hourly rates for London and the rest of the UK, as applicable, as set by the Living Wage Commission (before tax, other deductions and any increase for overtime), as may be revised from time to time;“Section” means a part of the Sub-Contract Works separately identified in the Appendix; a part of the Works is a part which is not separately identified;“Site” means the lands and other places on under in or through which the Sub-Contract Works are to be constructed and any other lands or places provided for the purposes of the Sub-Contract together with such other places as may be designated in the Sub-Contract or subsequently agreed by the Contractor as forming part of the Site;“Sub-Contract” means these Conditions of Sub-Contract together with the Appendix, the Sub-Contract Technical Workscope, the Contract Requirements HSEA, the Preliminaries, the Pricing Document, the Sub-Contractor’s Tender, the written acceptance of it, the Sub-Contract Agreement and such Supplementary Clauses as may be incorporated therein;“Sub-Contract Agreement” means the contract agreement executed by the Contractor and the Sub-Contractor to which these Conditions of Contract are annexed;“Sub-Contract Price” means the sum to be ascertained and paid in accordance with the provisions of the Sub-Contract for the construction and completion of the Sub-Contract Works;“Sub-Contractor” means the party named as such in the Sub-Contract and includes the Sub-Contractor’s personal representatives, successors and permitted assignees;“Sub-Contractor Personnel” means all directors, officers, employees, agents, consultants and contractors of the Sub-Contractor and/or of any sub-subcontractor engaged in the performance of the Sub-Contractor’s obligations under this Sub-Contract;“Sub-Contractor’s Equipment” means all appliances or things of whatsoever nature required in or about the construction and completion of the Sub-Contract Works but does not include materials or other things intended to form or forming part of the Permanent Works;“Sub-Contract Technical Workscope” means the document referred to as such in the Sub-Contract Agreement to which these Conditions of Contract are annexed;“Sub-Contractor’s Tender” means the Sub-Contractor’s tender for the design and carrying out of the Works referred to in the Sub-Contract Agreement as annexed;“Sub-Contract Tender Total” means the total of the Sub-Contractor’s tender for the construction and completion of the Sub-Contract Works;“Sub-Contract Works” means the Sub-Contract Permanent Works and the Sub-Contract Temporary Works;“Temporary Works” means all temporary works of every kind required in or about the construction and completion of the Sub-Contract Works;“Unincorporated Joint Venture” means a joint venture, association, consortium or other unincorporated grouping of two or more persons (whether in the form of a partnership or otherwise).Definitions in Conditions TC " REF _NN2162\r \h ?1.2Definitions in Conditions" \l 2 The following words and expressions are defined elsewhere in the Contract:Aggregate Liability Cap has the meaning stated in Clause 37.1; Contractor Default has the meaning stated in sub-clause 15.7;Contractor Furnished Materials has the meaning stated in Clause 22.1;Contractor’s Risks are the risks referred to in sub-clause 8.5;Defects Correction Period and Defects Correction Certificate have the meanings stated in sub-clauses 10.5 and 13.4;Excepted Risks are the risks referred to in sub-clause 8.3;Force Majeure has the meaning stated in sub-clause 14.1;Governing Law is as stated in the Appendix;Information Protocol means the document so identified in Clause 20;Liquidated Damages Cap has the meaning given in sub-clause 10.8; MTBF has the meaning given in sub-clause 37.6;Railway Costs has the meaning given in sub-clause 37.3; Railway Costs Cap has the meaning given in sub-clause 37.3;Shared Risks are the risks referred to in sub-clause 8.7;Sub-Contract Commencement Date is the date stated in the Appendix;Sub-Contract Documents are the documents as referred to in sub- clause 1.1(dd);Sub-Contract Language is as stated in the Appendix;Sub-Contractor Default has the meaning stated in sub-clause 15.1; andSubstantial Completion has the meaning stated in sub-clause 10.4.Singular and Plural TC " REF _NN2163\r \h ?1.3Singular and Plural" \l 2 Words importing the singular also include the plural and vice-versa, as the context requires. Words importing the male gender include the female.Meaning of Days TC " REF _NN2164\r \h ?1.4Meaning of Days" \l 2 References to days means calendar days unless otherwise stated.Headings and Marginal Notes TC " REF _NN2165\r \h ?1.5Headings and Marginal Notes" \l 2 Headings and marginal notes in these Conditions of Sub-Contract shall not be deemed to be part of or be taken into consideration in the interpretation or construction of the Sub-ERNING LAW, COMMUNICATIONS AND JURISDICTION TC " REF _NN2166\r \h ?2GOVERNING LAW, COMMUNICATIONS AND JURISDICTION" \l 1 Governing Law TC " REF _NN2167\r \h ?2.1Governing Law" \l 2 The Sub-Contract shall be governed by and interpreted in accordance with the laws of the country or jurisdiction applying to the Main Contract unless otherwise stated in the Appendix.Language TC " REF _NN2168\r \h ?2.2Language" \l 2 The Sub-Contract Language shall be as stated in the Appendix. If any part of the Sub-Contract is written in any other languages, those parts written in the Sub-Contract Language shall munications TC " REF _NN2169\r \h ?2.3Communications" \l 2 Communications, except where stated in the Appendix, may be in any form, including electronic form, provided that a permanent record exists. Unless otherwise agreed by the Parties, communications shall be in the Sub-Contract Language.Where the Appendix states that any communication must be delivered by hand or by pre-paid first class post or other next working day delivery service any such notice shall be deemed to have been received:if delivered by hand, on signature of a delivery receipt; orif sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting or at the time recorded by the delivery service.Jurisdiction TC " REF _NN2170\r \h ?2.4Jurisdiction" \l 2 The courts of the Country stated in the Appendix shall, subject to Clause 19 (Resolution of Disputes) hereof, have jurisdiction over the Sub-Contract and over the enforcement of any decision of the adjudicator appointed thereunder.Joint and Several Liability TC " REF _NN2171\r \h ?2.5Joint and Several Liability" \l 2 If the Sub-Contractor constitutes an Unincorporated Joint Venture: the members of the Unincorporated Joint Venture shall be jointly and severally liable to the Contractor for the performance of the Sub-Contractor’s obligations under this Sub-Contract;the members of the Unincorporated Joint Venture shall notify the Contractor of the Unincorporated Joint Venture leader who shall have authority to bind the Sub-Contractor and each member of the Unincorporated Joint Venture for any matter arising out of or in connection with this Sub-Contract; andneither:the members of the Unincorporated Joint Venture; nor(if stated in the Sub-Contract Technical Workscope) the scope and parts of the Sub-Contract Works to be carried out by each member of the Unincorporated Joint Venture; northe legal status of the Unincorporated Joint Venture,shall be altered without the prior consent of the Contractor (provided that such consent shall not relieve the altered Unincorporated Joint Venture from any liability under sub-clause 2.5(a)).ASSIGNMENT AND SUB-CONTRACTING TC " REF _NN2172\r \h ?3ASSIGNMENT AND SUB-CONTRACTING" \l 1 Assignment and Transfer TC " REF _NN2173\r \h ?3.1Assignment and Transfer" \l 2 The Contractor shall not assign, charge or transfer this Sub-Contract or any of its rights under it without the prior written consent of the Sub-Contractor (such consent not to be unreasonably withheld or delayed), provided that the Sub-Contractor’s consent shall not be required where it is between:the Contractor and the Employer; or the Contractor and its direct or indirect holding companies and its direct or indirect subsidiaries (within the meaning of s1159 Companies Act 2006). The Sub-Contractor shall not assign, charge or transfer this Sub-Contract or any of its rights under it without the prior written consent of the Contractor (such consent not to be unreasonably withheld or delayed).Third Party Rights TC " REF _NN2174\r \h ?3.2Third Party Rights" \l 2 Subject to clause 3.2(b), nothing in this Sub-Contract shall confer on any third party any benefit or right to enforce any term of the Sub-Contract pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person other than the Parties.The rights identified as Third Party Rights in favour of the Employer and attached to the Sub-Contract Agreement shall vest in the Employer from the later of:the date of the Main Contract; andthe date of this Sub-Contract.Sub-Subcontracting of Sub-Contract Works TC " REF _NN2175\r \h ?3.3Sub-Subcontracting of Sub-Contract Works" \l 2 The Sub-Contractor shall not without the prior written approval of the Contractor sub-subcontract the whole or any part of the Sub-Contract Works, unless the Contractor has agreed in writing that no such approval is required. Any purported sub-subcontract in breach hereof shall be of no effect.Without prejudice to sub-clause 3.3(a), the Contractor may withhold its consent if the Sub-Contractor cannot provide reasonable evidence to the Contractor that the proposed sub-subcontractor possesses the level of experience and knowledge necessary to perform the relevant sub-subcontracted element of the Sub-Contract Works.Without prejudice to sub-clause 3.3A, the Sub-Contractor shall provide a copy of each signed and dated sub-subcontract to the Contractor within 12 days of the date of the appointment of the relevant sub-subcontractor save for the provisions concerning the sub-subcontractor’s renumeration which are excluded.3.3A Approval of Key Sub-Subcontractor Documents TC "3.3A Approval of Key Sub-Subcontractor Documents" \l 5 The Sub-Contractor shall submit the sub-subcontract documents for each Key Sub-Subcontractor to the Contractor for approval at least 16 days (or such other time period agreed by the Contractor acting reasonably) prior to the intended commencement of the relevant sub-subcontracted element of the Sub-Contract Works, unless: the Key Sub-Subcontractor’s sub-subcontract is identified in the Appendix as having been previously approved by the Contractor and no material amendments have been made since such approval; orthe Contractor has otherwise agreed in writing that no submission is required.Without prejudice to sub-clause 3.3A(a), the Contractor may withhold its consent if the Key Sub-Subcontractor’s sub-subcontract does not contain a provision:complying with sub-clause 3.3B (Supply Chain Protection);enabling the Sub-Contractor to assign any of its rights under the sub-subcontract to the Contractor without restriction (including any need to obtain any consent or approval) or payment by the Contractor in accordance with sub-clause 15.4(b) (Contractor rights after Termination);requiring the sub-subcontractor to notify the Contractor promptly in writing of any material non-payment or late payment of any sums properly due to the sub-subcontractor from the Sub-Contractor under the sub-subcontract, under a specified valid invoice and not subject to a genuine dispute;requiring the sub-subcontractor to notify the Contractor if it intends to terminate the sub-subcontract due to a default by the Sub-Contractor and giving the Contractor the right to step-in to the sub-subcontract in place of the Sub-Contractor;giving the Contractor the right to step-in to the sub-subcontract in place of the Sub-Contractor in the event the Contractor is entitled to terminate this Sub-Contract due to a breach by the Sub-Contractor;confirming that the rights of step-in granted to the Contractor take priority over those rights of any other third party granted rights under such sub-subcontract; andexpressly identifying the Contractor as a third party entitled to enforce all rights and remedies equivalent to those available to the Sub-Contractor in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999.3.3B Supply Chain Protection TC "3.3B Supply Chain Protection" \l 5 The Sub-Contractor shall procure that unless agreed otherwise by the Contractor in writing, all sub-subcontracts entered into with sub-subcontractors contain provisions:requiring the Sub-Contractor to pay the sub-subcontractor within a specified period not exceeding 35 days from receipt of a valid and undisputed invoice;giving the Contractor a right to publish the Sub-Contractor’s compliance with its obligation to pay undisputed invoices within the specified payment period;which do not allow the Sub-Contractor to withhold retention or alternatively have a retention rate of 0%;containing insurance provisions that properly flow-down from Clause 17 (Insurances) and thereby do not provide for duplication of insurance cover; andrequiring the sub-subcontractor to include a clause to the same effect as this sub-clause 3.3B in any contracts it enters into wholly or substantially for the purpose of performing or contributing to the performance of the whole or any part of the sub-subcontract.Where requested by the Contractor, the Sub-Contractor will provide reasonable documentary evidence to the Contractor that it is in compliance with the payment obligations set out in this sub-clause 3.3B.Notwithstanding any provisions of Clause 25 (Confidentiality and Comptroller and Auditor General), if the Sub-Contractor notifies the Contractor that the Sub-Contractor has failed to pay a sub-subcontractor’s undisputed invoice within 35 days of receipt, or the Contractor discovers the same, the Contractor shall be entitled to publish the details of the late or non-payment (including on government websites and in the press).Labour Only Sub-Subcontractors TC " REF _NN2178\r \h ?3.4Labour Only Sub-Subcontractors" \l 2 The employment of a labour-only sub-subcontractor does not require the Contractor’s consent under sub-clause 3.3.Sub-Contractor’s Liability for Sub-Subcontractors TC " REF _NN2179\r \h ?3.5Sub-Contractor’s Liability for Sub-Subcontractors" \l 2 The Sub-Contractor shall be liable under the Sub-Contract for all or any work sub-subcontracted by him and for all acts omissions defaults or neglects of any sub-subcontractor his agents servants or workers.Removal of Sub-Subcontractor TC " REF _NN2180\r \h ?3.6Removal of Sub-Subcontractor" \l 2 The Sub-Contractor shall remove from the Sub-Contract Works any sub-subcontractor of his who misconducts himself or fails to conform with mandatory requirements for health and safety or whose conduct is prejudicial to health or safety.THE SUB-CONTRACT AND PROVISION OF INFORMATION TC " REF _NN2181\r \h ?4THE SUB-CONTRACT AND PROVISION OF INFORMATION" \l 1 Sub-Contract Documents TC " REF _NN2182\r \h ?4.1Sub-Contract Documents" \l 2 The documents forming the Sub-Contract are listed in the Sub-Contract Agreement. Any ambiguities or discrepancies shall be explained and adjusted by the Contractor who shall issue an instruction accordingly applying the order of priority of documents stated in the Sub-Contract Agreement.If the Sub-Contractor shall find any inaccuracy, discrepancy or ambiguity contained in or between any of the Sub-Contract Documents, he shall immediately notify the Contractor, who shall, on receipt of such notice, issue an instruction as to how such inaccuracy, discrepancy or ambiguity shall be resolved applying the order of priority of documents stated in the Sub-Contract Agreement. The Sub-Contractor shall not be entitled to an extension of time or to any additional payment in respect of compliance with such instruction to the extent that such inaccuracy, discrepancy, ambiguity could reasonably have been found or foreseen at the date of this Sub-Contract by a sub-contractor exercising the skill, care and diligence reasonably to be expected of a sub-contractor experienced in projects of a similar nature to the Sub-Contract Works.The Contractor accepts entire responsibility for the Sub-Contract Technical Workscope and for any ambiguities or discrepancies therein whether or not the whole or any part of the Sub-Contract Technical Workscope has been prepared by or on behalf of the Contractor.Whole Agreement TC " REF _NN2183\r \h ?4.2Whole Agreement" \l 2 The Sub-Contractor and the Contractor agree that the Sub-Contract sets out fully the rights, obligations and liabilities of each of them to the other arising under or in connection with the Sub-Contract or the Sub-Contract Works. The Sub-Contractor shall be deemed to have full knowledge of the terms of the Main Contract (other than prices) and a copy of the Main Contract excluding such prices shall be provided in accordance with sub-clause 4.3. No statement by either Party shall have effect unless made in writing and incorporated into the Sub-ContractProvision of Documents TC " REF _NN2184\r \h ?4.3Provision of Documents" \l 2 Upon award of the Sub-Contract the Sub-Contractor shall be provided with hard copies of the Sub-Contract Documents as specified in the Appendix.Expenditure of Provisional Sums TC " REF _NN2185\r \h ?4.4Expenditure of Provisional Sums" \l 2 The Contractor shall issue instructions in regard to the expenditure of Provisional Sums and shall be valued in accordance with Clause 12 (Changes to the Sub-Contract Works and Valuation).Inspection of Site TC " REF _NN2186\r \h ?4.5Inspection of Site" \l 2 The Sub-Contractor shall be deemed to have inspected the Site and its surroundings including means of access thereto and to have obtained such information in connection therewith as is reasonably available prior to the date of the Sub-Contract, and to have satisfied himself, so far as is practicable, as to the form and nature of the Site including the sub-soil and hydrological conditions, the means of communication with and access to the Site and the accommodation he may require, and to have obtained for himself all necessary information as to risks, contingencies and other circumstances which may affect the Sub-Contract Price and his liabilities under the Sub-Contract.4.5A Boreholes and exploratory excavationsIf during the performance of the Sub-Contract Works the Sub-Contractor considers it necessary or desirable to make boreholes or to carry out exploratory excavations or investigations of the ground he shall apply to the Contractor for permission so to do giving his reasons and details of his proposed methods. Such permission shall not unreasonably be withheld.The Sub-Contractor shall comply with any conditions imposed by the Contractor in relation thereto and shall furnish the Contractor with copies of all information records and test results arising therefrom and of any expert opinion as may be provided in connection therewith; The cost of making such boreholes and carrying out such investigations and of all other matters connected therewith including making good thereafter to the satisfaction of the Contractor shall be borne by the Sub-Contractor. Provided that if in the opinion of the Contractor the boreholes excavations and investigations are a necessary consequence of:a situation arising under sub-clause 8.5 (Contractor’s risks); oran alteration ordered under Clause 12 (Changes to the Sub-Contract Works and Valuation);then the Sub-Contract Price shall be adjusted by the amount of such cost.If during the performance of the Sub-Contract Works the Contractor requires the Sub-Contractor to make boreholes or to carry out exploratory excavations or investigations of the ground such requirements shall be ordered in writing and shall be deemed to be an alteration ordered under Clause 12 (Changes to the Sub-Contract Works and Valuation).Sub-Contract Design and Further Instructions TC " REF _NN2187\r \h ?4.6Sub-Contract Design and Further Instructions" \l 2 The design of the Sub-Contract Works shall be contained in the Sub-Contract Technical Workscope and in such further instructions, including drawings and specifications, as the Contractor shall supply to the Sub-Contractor, being necessary for the construction of the Sub-Contract Works. The Sub- Contractor shall be bound by all such instructions. If they include any variation, it shall be dealt with in accordance with Clause 12 (Changes to the Sub-Contract Works and Valuation).The Sub-Contract Technical Workscope shall identify those parts of the Contractor’s design (if any) referred to in clause 4.6(a) which is design for Contractor Designed Works and for which the Contractor therefore accepts responsibility in accordance with this Sub-Contract.Design Criteria TC " REF _NN2188\r \h ?4.7Design Criteria" \l 2 The Contractor shall provide to the Sub-Contractor such design criteria relevant to the Sub-Contract Works including any Temporary Works designed by others as may be necessary to enable the Sub-Contractor to comply with the Sub-Contract.Assessment of Risks TC " REF _NN2189\r \h ?4.8Assessment of Risks" \l 2 The Sub-Contractor shall be responsible for the interpretation of all information obtained relevant to the Site which may affect his performance of the Sub-Contract, whether such information is obtained by the Sub-Contractor or supplied by the Contractor.Sub-Contractor’s Design TC " REF _NN2190\r \h ?4.9Sub-Contractor’s Design" \l 2 The Sub-Contract Technical Workscope shall identify any work which the Sub-Contractor is required to design and shall provide all criteria with which such design must comply.The Sub-Contractor shall submit to the Contractor for his acceptance FORMTEXT four reproducible copies (including by electronic format) trust-to-scale of such drawings specifications calculations and other design information as are necessary to satisfy the Contractor that the Sub-Contractor’s design complies with the requirements of the Sub-Contract and the Sub-Contractor shall not commence construction in accordance with such design documentation until the Contractor has accepted them;The Contractor may require the Sub-Contractor to supply such further documents as may be necessary for the proper and adequate construction of the Sub-Contract Works and, when accepted by the Contractor, the Sub-Contractor shall be bound by the same. Such further documents shall be provided at such times as not to delay or disrupt the progress of the Sub-Contract Works and in accordance with the programme referred to in sub-clause 9.1 (Programme for the Sub-Contract Works) and/or any relevant dates set out in the Sub-Contract Technical Workscope:The Sub-Contractor shall supply to the Contractor, as provided by the Sub-Contract Technical Workscope and within the times as so stated, such operational and maintenance manuals and as-built drawings as are sufficient to enable the Employer to operate and maintain the Permanent Works;Acceptance by the Contractor of the Sub-Contractor’s design shall not relieve the Sub-Contractor of any of his responsibilities under the Sub-Contract; and The Sub-Contractor shall be responsible for the integration and co-ordination of the design for the Contractor Designed Works with the design of the Sub-Contract Works. One copy of the Sub-Contract Technical Workscope and of all design documentation shall at all reasonable times be available on the Site for inspection and use by the Contractor and any other person authorised by the Contractor.Copyright TC " REF _NN2191\r \h ?4.10Copyright" \l 2 Neither the Contractor nor the Sub-Contractor shall acquire copyright or other Intellectual Property rights in the data and/or materials supplied in accordance with this Clause 4 or otherwise included in the Sub-Contract Technical Workscope, save as expressly provided for under this clause 4.10. The Sub-Contractor and any sub-subcontractor of his shall be entitled to copy and use the same for the purpose only of the Sub-Contract and of providing and using the Sub-Contract Works.The Sub-Contractor grants to the Contractor an irrevocable, perpetual, royalty-free non-exclusive licence to use and/or disclose all the Intellectual Property produced by the Sub-Contractor (whether created before or during the term of this Sub-Contract, and including, without limitation any and all information subsisting or referred to within the Sub-Contract Technical Workscope) for any purpose in connection with completing, operating, maintaining, dismantling, reassembling, repairing, altering and adjusting the Sub-Contract Works.The Sub-Contractor further agrees:to waive in favour of the Contractor any and all moral rights in the Sub-Contractor’s designs and drawings;that the Contractor may grant sub-licences to other persons to for the purposes stated in sub-clause 4.10(c); andto the extent that the Sub-Contractor does not have ownership of the Intellectual Property in any of the Sub-Contractor’s designs and drawings, to procure from the Intellectual Property holder a licence on the terms required by sub-clause 4.10(c).The Contractor shall have no right to decompile any computer software which forms part of the Intellectual Property licensed to the Contractor in this sub-clause 4.10 nor shall the Contractor attempt to derive any algorithms, techniques or other features of the software or modify or attempt to create any derivative works from the software and any sub-licence granted by the Contractor shall similarly apply these prohibitions to the sub-licensee of that computer software.Patent Rights TC " REF _NN2192\r \h ?4.11Patent Rights" \l 2 The Sub-Contractor shall indemnify and keep indemnified the Contractor from and against all claims and proceedings for or on account of infringement of any patent right design trademark or name or other protected Intellectual Property right in respect of:Sub-Contractor’s Equipment used for or in connection with the Sub-Contract Works;materials plant and equipment for incorporation in the Sub-Contract Works;the design, construction and completion of the Sub-Contract Works or any part of the Sub-Contract Works,and from and against all claims demands proceedings damages costs charges and expenses whatsoever in respect thereof or in relation thereto except where such infringement results from compliance with design for which the Contractor is responsible in accordance with this Sub-Contract.Site Photographs TC " REF _NN2193\r \h ?4.12Site Photographs" \l 2 Except as required to record activities on the Site, the Sub-Contractor shall not at any time take any photograph of the Site or the Sub-Contract Works or any part of them, and shall ensure that no such photographs shall at any time be taken or published or otherwise circulated by any person employed by him, unless the Sub-Contractor has obtained the prior written consent of the Contractor.All Intellectual Property in any photographs or moving images of the Site or the Sub-Contract Works or any part of them, taken by or on behalf of the Sub-Contractor (the “Photographs”) shall vest in the Contractor. The Contractor grants the Sub-Contractor a licence to copy, use, adapt and re-produce the Photographs for any purpose whatsoever, subject to obtaining the Contractor’s consent in accordance with sub-clause 4.12(e) on each occasion.The Contractor shall own the full image rights to all Photographs. It is the Sub-Contractor’s responsibility, when appointing a photographer, to ensure that all Intellectual Property in the Photographs shall vest in the Contractor and to ensure that unlimited usage rights are obtained. The Contractor may use the Photographs for any purpose whatsoever and shall not be required to credit the images.The Sub-Contractor shall indemnify the Contractor against any loss, damage, cost or expense for which the Contractor is or becomes liable as a result of any infringement or alleged infringement by the Sub-Contractor of any third party’s Intellectual Property in relation to any Photographs.The Sub-Contractor shall not publish, release or circulate any Photographs or make any reference to the Sub-Contract Work or the Site, including publishing or releasing any Photographs, press releases or press articles, without first obtaining the Contractor’s written consent.At its own expense, the Sub-Contractor shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to sub-clauses 4.12(a) to (e) above.THE EMPLOYER’S REPRESENTATIVE TC " REF _NN2194\r \h ?5THE EMPLOYER’S REPRESENTATIVE " \l 1 The Employer’s Representative TC " REF _NN2195\r \h ?5.1The Employer’s Representative" \l 2 The Employer’s Representative is appointed by the Employer under the terms of the Main Contract, which terms set out the powers and duties of the Employer’s Representative and empower the Employer’s Representative to appoint a delegate to exercise delegated responsibility on his behalf. The Sub-Contractor is deemed to have full knowledge of the relevant terms of the Main Contract insofar as they relate to the Sub-Contract Works and shall be notified in writing by the Contractor of the appointment of the Employer’s Representative and his delegate.Instructions TC " REF _NN2196\r \h ?5.2Instructions" \l 2 The Sub-Contractor shall comply with all instructions of the Contractor. The Sub-Contractor shall comply with instructions of the Employer’s Representative or his delegate if and to the extent the Contractor instructs the Sub-Contractor to do so.Instructions in Writing TC " REF _NN2197\r \h ?5.3Instructions in Writing" \l 2 Instructions of the Contractor or the Employer’s Representative or the Employer’s Representative’s delegate shall be in writing. An oral instruction shall be of no effect unless confirmed by the person issuing the instruction within two working days such that a permanent record of the instruction exists. Provided that the Contractor shall upon request of the Sub-Contractor specify in writing under which powers any instruction is given.Instructions for Urgent Repair TC " REF _NN2198\r \h ?5.4Instructions for Urgent Repair" \l 2 If in the opinion of the Contractor or the Employer’s Representative any remedial or other work or repair is urgently necessary at any time up to the end of the Defects Correction Period, the Contractor may instruct the Sub-Contractor to carry out such work or repair. If the Sub-Contractor fails to carry out the work or repair within such time as the Contractor shall reasonably require, the Contractor and/or the Employer may use their own staff and/or may employ and pay others to carry out the work or repair and the Contractor may recover the costs of doing so from the Sub-Contractor.Notwithstanding sub-clause 5.4(a), if in the opinion of the Contractor, any urgent measures shall become reasonably necessary in order to obviate any risk of accident or failure or if, by reason of the happening of any accident or failure or other event, any remedial or other work or repair shall become urgently necessary, and the Sub-Contractor shall be unable or unwilling at once to carry out such measures, the Contractor and/or the Employer may by their own staff and/or by using other contractors carry out such measures as the Contractor and/or the Employer may consider necessary. The Contractor shall be entitled to recover from the Sub-Contractor all reasonable additional costs and expenses incurred by the Contractor and/or the Employer in carrying out such measures.RESPONSIBILITY OF PARTIES TC " REF _NN2199\r \h ?6RESPONSIBILITY OF PARTIES" \l 1 Collaboration and Early Warning TC " REF _NN2200\r \h ?6.1Collaboration and Early Warning" \l 2 The Sub-Contractor, the Contractor, the Employer and the Employer’s Representative on his behalf shall each, in relation to the Sub-Contract, collaborate in a spirit of trust and mutual support in the interests of the timely, economic and successful completion of the Sub-Contract Works. In particular, the Sub- Contractor, the Contractor and the Employer’s Representative shall each give notice to the other as soon as they become aware of any matter which is likely to cause delay or additional Cost, irrespective of whether the matter is contended to give rise to any relief under the Sub-Contract. Upon the giving of such notice:the Contractor shall as soon as reasonably practicable arrange a meeting of appropriately authorised persons to consider actions or measures in response to the matter so notified and for avoiding or mitigating any such delay or additional Cost;Any actions or measures so agreed shall be put into writing and, when signed by the Sub-Contractor and the Contractor shall be binding on them;An agreement under sub-clause 6.1(b) may include matters of payment and/ or extension of time, provided that any such agreement shall be deemed to be in full satisfaction of any claim by either Party to the Sub-Contract arising out of the actions and measures included in the agreement;Where agreement is reached under sub-clause 6.1(b) but does not include matters of payment and/ or extension of time, the rights of the Parties in respect of the matters agreed shall continue to be governed by the terms of the Sub-Contract;Where no agreement is reached under sub-clause 6.1(b) the Contractor shall issue such instructions as are appropriate including instructions under clause 12 (Changes to the Sub-Contract Works and Valuations) of the Sub-contract.Carrying out the Sub-Contract Works TC " REF _NN2201\r \h ?6.2Carrying out the Sub-Contract Works" \l 2 Save insofar as it is legally or physically impossible the Sub-Contractor shall construct and complete the Sub-Contract Works in accordance with the Sub-Contract to the satisfaction of the Contractor and the Employer’s Representative. The Sub-Contractor shall comply with the Preliminaries and provide all labour, materials, equipment and everything whether of a temporary or permanent nature required for such construction and completion, save where excluded by the terms of the Sub-Contract, and shall comply with the instructions of the Contractor and the Employer’s Representative or his delegate subject to sub-clauses 5.2 and 5.3. Where the Sub-Contractor has provided designs or carried out any other works (including preliminary works or site set-up) in relation to the Sub-Contract Works under any other contract with the Contractor or the Employer, the Sub-Contractor shall not be able to disclaim responsibility for such design or work and shall be responsible for any error in such design or other worksDesign of the Sub-Contract Works TC " REF _NN2202\r \h ?6.3Design of the Sub-Contract Works" \l 2 The Sub-Contractor shall be responsible for the design of the Sub-Contract Works and for the design of all Temporary Works necessary to construct the Sub-Contract Works except to the extent that any design is provided by the Contractor or the Employer’s Representative or where excluded by the terms of the Sub-Contract.Where any part of the Sub-Contract Works has been designed by or on behalf of the Contractor and that design has been not been identified in the Sub-Contract Technical Workscope as design for Contractor Designed Works (and for which the Contractor is therefore responsible in accordance with sub-clause 4.6) then the Sub-Contractor shall accept responsibility for that design having first obtained the approval of the Contractor to any modifications to it which the Sub-Contractor considers to be necessary.Insofar as the design of the Sub-Contract Works is comprised in the Sub-Contract Technical Workscope and in the designs and drawings referred to in sub-clause 4.9 (Sub-Contractor’s Design) and/or is required by this Sub-Contract to be provided by the Sub-Contractor or for which it is otherwise responsible under this Sub-Contract (including any further design the Sub-Contractor is to carry out as a result of an alteration to the Technical Workscope), the Sub-Contractor warrants and undertakes to the Contractor that:he has exercised and will continue to exercise in the design of the Sub-Contract Works the reasonable skill, care and diligence to be expected of a professionally qualified and competent engineer or other appropriate consultant taking into account the size, scope, nature, type and complexity of the Sub-Contract Works;the Sub-Contract Works will, when completed, comply with any performance specification or requirement included or referred to in the Sub-Contract Technical Workscope provided always that nothing in the Sub-Contract shall be construed as imposing a fitness for purpose obligation for the Sub-Contract Works; andexcept where otherwise stated in the Sub-Contract and subject to Clause 22.1 (Contractor Furnished Materials) the Sub-Contract Works comprise or will comprise only materials and goods which are of new and satisfactory quality.6.3A Prohibited Materials TC "6.3A Prohibited Materials" \l 5 For the purposes of this sub-clause 6.3A, material is “prohibited” if, in the context of its use in the Sub-Contract Works (whether alone or in combination with other materials):it poses a hazard to the health and safety of any person who may come into contact with the Sub-Contract Works (whether during their construction or after their completion);either by itself or as a result of its use in a particular situation or in combination with other materials it would or is likely to have the effect of reducing the normal life expectancy of any other material or structure in which the material is incorporated or to which it is affixed; orit poses a threat to the structural stability or performance or the physical integrity of the Sub-Contract Works or any part or component of the Sub-Contract Works.The Contractor shall not specify or authorise for use or permit to be used any materials which at the time the Sub-Contract Works are being carried out are generally accepted or reasonably suspected of:being prohibited in themselves;becoming prohibited when used in a particular situation or in combination with other materials;becoming prohibited with the passage of time;becoming prohibited without a level of maintenance which is higher than that which would normally be expected of a structure of the type under construction; orbeing damaged by or causing damage to the structure in which they are incorporated or to which they are affixed or other structure or any neighbouring property,and the Sub-Contractor shall, when requested, issue to the Contractor and to such persons as the Contractor may require a certificate that no such materials have been specified for use or permitted to be used.Without prejudice to his other obligations under this Sub-Contract, the Sub-Contractor warrants that he shall specify materials for use in the Sub-Contract Works in accordance with the guidelines contained in publication “Good Practice in Selection of Construction Materials” (1997: Ove Arup & Partners) and/or that materials as used in the construction of the Sub-Contract Works shall be in accordance with such guidelines.6.3B Quality Plans and Checks TC "6.3B Quality Plans and Checks" \l 5 Where stated in the Appendix, the Sub-Contractor shall institute a quality assurance plan. The Sub-Contractor’s quality plan shall be submitted to the Contractor for his consent before each design and each construction stage is commenced. Where the Sub-Contractor is not to institute a quality assurance plan it shall comply with any quality assurance plan notified by the Contractor. Compliance with such relevant quality plan and procedures shall not relieve the Sub-Contractor from any of his other duties obligations or liabilities under the Sub-Contract. Where any Act of Parliament, regulation or by-law requires that a separate check of the design or a test shall be carried out prior to the construction or loading of any permanent and temporary works the Sub-Contractor shall arrange and pay for such check or test.Further to his obligations under sub-clause 6.3B(a), the Sub-Contractor shall submit to Contractor for his approval proposals for checking the design and setting out of the Sub-Contract Works and testing the materials and workmanship to ensure that the Sub-Contractor’s obligations under the Sub-Contract are met.The Sub-Contractor shall carry out the checks and tests approved under sub-clause 6.3B(a) or elsewhere in the Sub-Contract and such further tests as the Contractor may reasonably require at his own cost.The Sub-Contractor shall provide such assistance and such instruments machines labour and materials as are normally required for examining measuring and testing any work and the quality weight or quantity of any materials used and shall supply samples of materials before incorporation in the Sub-Contract Works for testing as may be required by the Contractor.Whenever an alteration to the Sub-Contract Technical Workscope is ordered or consented to by the Contractor, the Sub-Contractor shall consider whether any tests would be affected by or be appropriate in relation thereto and shall so inform the Contractor without delay. Any proposal for amended or additional tests shall be submitted as soon as possible.Superintendence of Sub-Contract Works TC " REF _NN2205\r \h ?6.4Superintendence of Sub-Contract Works" \l 2 The Sub-Contractor shall provide all necessary superintendence during the construction of the Sub-Contract Works and for as long thereafter as the Contractor may consider necessary. The Sub-Contractor shall employ on the Sub-Contract Works only such persons as are competent and have adequate knowledge of the work, including the hazards likely to be encountered. The Sub-Contractor shall have the duty to take all necessary and appropriate steps to maintain the safety of all persons entitled to be on the Site and to avoid any danger to the public. The Sub-Contractor shall keep the Site, so far as it is under his control, and the Sub-Contract Works, until substantial completion or occupation by the Contractor or the Employer, in a safe and orderly state.Safety of Work and Persons TC " REF _NN2206\r \h ?6.5Safety of Work and Persons" \l 2 The Sub-Contractor shall take full responsibility for the adequacy, safety and stability of all of his site operations and methods of construction. The Sub-Contractor shall, if required by the Contractor, submit at such times and in such detail as the Contractor may reasonably require such information relating to the methods of construction (including Temporary Works and the use of the Sub-Contractor’s Equipment) which the Contractor proposes to adopt or use and, if requested by the Contractor such calculations of stresses strains and deflections that will arise in the Permanent Works and any parts of them during construction from the use of such methods as are sufficient to demonstrate to the Contractor that if these methods are adhered to, the Sub-Contract Works can be executed in accordance with this Sub-Contract and without detriment to the safe working of the railway or the property of the Contractor, the Employer and others or to the Permanent Works when completed. If the particulars or calculations provided show, in the Contractor’s opinion, any failure to meet the requirements of the Sub-Contract or detriment to the Permanent Works, the Contractor may instruct the Sub-Contractor, at the Sub-Contractor’s cost, to change the proposed methods so as to meet the requirements of the Sub-Contractor to avoid any detriment to the Permanent Works.Interference with Traffic and Adjoining Properties TC " REF _NN2207\r \h ?6.6Interference with Traffic and Adjoining Properties" \l 2 All operations necessary for the construction and completion of the Sub-Contract Works shall so far as compliance with the requirements of this Sub-Contract permits be carried out so as not to:cause an unplanned interruption in the use of track or station areas or other railway infrastructure (it being acknowledged that the Contractor may incur penalties and liabilities under the Main Contract due to the Employer’s contractual and regulatory arrangements with third parties including, subject to sub-clause 37.3 (Railway Costs), passenger train and freight operators in accordance with Clause 26 (Track Possessions and Isolations);interfere unnecessarily or improperly with: the convenience of the public; orthe access to public or private roads footpaths or properties whether in the possession of the Contractor, the Employer or of any other person and with the use or occupation of them.All work shall be carried out without unreasonable noise disturbance or other pollution.To the extent that events caused by sub-clauses 6.6(a)(ii) and 6.6(b) are not the unavoidable consequence of carrying out the Sub-Contract Works, the Sub-Contractor shall indemnify the Contractor in respect of all claims, demands, proceedings, damages, costs and charges and expenses whatsoever arising out of or in relation to such matters.The Sub-Contractor will advise the Contractor as soon as possible of any potential liability for damages on account of noise disturbances or other pollution which would be the unavoidable consequences of carrying out the Permanent and/or Temporary Works and on measures to avoid such liability. The Sub-Contractor will comply with any necessary changes to the Permanent and/or Temporary Works to the satisfaction of the Contractor. The cost of such compliance shall be borne by the Sub-Contractor unless, in the opinion of the Contractor, the compliance is a variation for the purposes of Clause 12 (Changes to the Sub-Contract Works and Valuation) in which case, subject to Clause 13 (Additional Payment and Final Account) the Sub-Contract Price shall be adjusted by the amount of such cost as may be reasonable except to the extent that such cost results from the Sub-Contractor’s breach of Sub-Contract or negligence.Site Security TC " REF _NN2208\r \h ?6.7Site Security" \l 2 The Sub-Contractor shall take all reasonable steps and all steps required by this Sub-Contract to prevent unauthorised persons being admitted to the Site. If the Contractor gives the Sub-Contractor notice that any person is not to be admitted to the Site, the Sub-Contractor shall take all practicable steps to prevent that person being admitted.Where access to the Site is required by way of the Employer’s land the route of such access shall be approved by the Contractor. The Sub-Contractor shall be responsible for ensuring that no person employed on his behalf trespasses beyond the agreed limits of the working area or access route and shall, if required so to do, provide and maintain to the satisfaction of the Contractor temporary fencing of an approved type to prevent trespass on the railway or neighbouring land.Passes are required for admission to the Site and the Contractor shall either issue them to the Sub-Contractor or arrange for their issue by the Sub-Contractor. The Sub-Contractor shall submit to the Contractor a list of the names of the relevant employees and other persons issued or to be issued with passes and any other information which the Contractor reasonably requires in this connection. The passes shall be returned at any time on the demand of the Contractor and in any case on the completion of the Sub-Contract Works.The Sub-Contractor shall maintain a record of all visitors to the Site and shall, if and when instructed by the Contractor, give to the Contractor a list of names and addresses of all persons who are or may be at any time concerned with the Sub-Contract Works or any part of them, specifying the capacities in which they are so concerned, and giving such other particulars as the Contractor may reasonably require.CDM Regulations TC " REF _NN2209\r \h ?6.8CDM Regulations" \l 2 The Sub-Contractor shall strictly comply with the Contractor’s health and safety requirements as set out in the Contract Requirements HSEA. The Sub-Contractor shall ensure that all the Sub-Contractor’s employees, any sub-subcontractors and other persons engaged by it in relation to this Sub-Contract receive safety and skills training in accordance with the requirements of the Contract Requirements HSEA and the Contractor may instruct the immediate replacement, at the Sub-Contractor’s cost, of any person on the Site who is not so trained. The “Principal Contractor” (for the purposes of and as defined in the Construction (Design and Management) Regulations 2015 (“CDM 2015”)) for the Main Contract Works is as stated in the Appendix.The Sub-Contractor shall support the Principal Contractor to enable it to perform the duties required of the principal contractor under CDM 2015.The “Principal Designer” (for the purposes of and as defined in CDM 2015) for the Main Contract Works is as stated in the Appendix.Security Vetting TC " REF _NN2210\r \h ?6.9Security Vetting" \l 2 Sub-Contractor Personnel shall comply with the security arrangements as may be in force from time to time for the conduct of personnel at the Site and/or the Employer’s property and in the use of Employer IT networks, including:The Sub-Contractor shall undertake Baseline Personnel Security Standard (BPSS) pre-employment checks, as stated in the HMG Personnel Security Controls, for all Sub-Contractor Personnel that have access to Employer premises or Employer IT networks.Under the National Railways Security Programme (NRSP) some Sub-Contractor Personnel will be required to complete additional security checks as outlined in HMG Personnel Security Controls. This applies to Critical National Infrastructure (CNI) sites and Managed Stations and those with access to CNI systems and information on sensitive train movements. The Contractor may designate other roles requiring these additional checks.The Sub-Contractor shall prevent Sub-Contractor Personnel who are unable to obtain the required security clearances from accessing Employer premises and Employer IT networks.Under NRSP all Sub-Contractor Personnel are required to undergo biennial security training. These training records should be kept for five (5) years and be available on request. The training material will be provided by the Contractor through e-learning at no additional cost to the Sub-Contractor.OTHER SUB-CONTRACTORS TC " REF _NN2211\r \h ?7OTHER SUB-CONTRACTORS" \l 1 Duties of Sub-Contractors TC " REF _NN2212\r \h ?7.1Duties of Sub-Contractors" \l 2 The Contractor may employ other sub-contractors to carry parts of the Main Contract Works. In any such case it shall be the duty of the Sub-Contractor:to co-operate with any other sub-contractor;to give early notice to the Contractor of any interference which is likely to occur to the Sub-Contract Works or to the work of any other sub-contractor; andto take all such steps as are reasonable to avoid or mitigate such interference and/or the consequences of such interference.Duties of Contractor TC " REF _NN2213\r \h ?7.2Duties of Contractor" \l 2 The Contractor shall have the duty to give early notice to the Sub-Contractor of any such interference and a duty to take such steps as are reasonable to avoid or mitigate such interference and/or the consequence of such interference.Collaboration TC " REF _NN2214\r \h ?7.3Collaboration" \l 2 The Contractor and the Sub-Contractor shall collaborate in complying with sub-clause 6.1.Ingress and Egress from site TC " REF _NN2215\r \h ?7.4Ingress and Egress from site" \l 2 The Contractor shall provide safe ingress to and egress from the site of the Sub-Contract Works.Contractor’s facilities and Equipment TC " REF _NN2216\r \h ?7.5Contractor’s facilities and Equipment" \l 2 The Contractor shall list in the Appendix the Contractor’s facilities and Equipment which will be provided by the Contractor for the Sub-Contractor’s use at the Site of the Sub-Contract Works and shall state whether the equipment will be for use exclusively by the Sub-Contractor or in common with the Contractor or other sub-contractors and the period for which it will be available which shall not include the maintenance of those Works unless expressly so provided.RISK TC " REF _NN2217\r \h ?8RISK" \l 1 Sub-Contractor’s Risks TC " REF _NN2218\r \h ?8.1Sub-Contractor’s Risks" \l 2 The Sub-Contractor shall assume all risks in carrying out the Sub-Contract Works save for the Excepted Risks, the Contractor’s Risks and the Shared Risks to the extent set out in the Sub-Contract.Care of the Works TC " REF _NN2219\r \h ?8.2Care of the Works" \l 2 The Sub-Contractor shall:subject to sub-clause 8.3 take responsibility for the Sub-Contract Works and materials plant and equipment for incorporation therein from the Sub-Contract Commencement Date until the date on which Substantial Completion for the whole of the Sub-Contract Works or any Section or part of the Sub-Contract Works is certified when, save as provided in paragraph (b) hereof, the responsibility for their care shall pass to the Contractor; andtake responsibility for the care of any Sub-Contract work which he undertakes during the Defects Correction Period including any materials plant and equipment therefor until such work has been completed.Excepted Risks TC " REF _NN2220\r \h ?8.3Excepted Risks" \l 2 The Sub-Contractor is not liable for loss or damage to the Sub-Contract Works to the extent it is due to any of the Excepted Risks which are the following:the use or occupation by the Employer his agents servants or by the Contractor of any part of the Permanent Works;any fault defect error or omission in the design of the Works for which the Contractor is responsible under this Sub-Contract;riot war invasion act of foreign enemies or hostilities (whether war be declared or not);civil war rebellion revolution insurrection or military or usurped power;ionizing radiations 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; andpressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.Rectification of Loss TC " REF _NN2221\r \h ?8.4Rectification of Loss" \l 2 In the event of any loss or damage to the Sub-Contract Works or any Section or part of them or to any materials plant or equipment for incorporation therein while the Sub-Contractor is responsible for their care (except as provided in sub-clause 8.3) the Sub- Contractor shall at his own cost rectify such loss or damage so that the Sub-Contract Works conform in every respect with the provisions of the Sub-Contract and the Contractor’s instructions. The Sub-Contractor shall also be liable for any loss or damage to the Sub-Contract Works occasioned by him in the course of any operations carried out by him for the purpose of complying with sub-clause 10.5 (Defects Correction).Should any such loss or damage arise from any of the Excepted Risks defined in sub-clause 8.3 the Sub-Contractor shall if and to the extent required by the Contractor rectify the loss or damage at the expense of the Contractor and the Sub-Contractor shall be entitled to an allowance for additional time for completion of the Sub-Contract Works or any Section subject to Clause 9 (Programme and Time for Completion).In the event of loss or damage arising from an Excepted Risk and from a risk for which the Sub-Contractor is responsible under sub-clause 8.2 then the cost of rectification and any allowance for additional time for completion of the Sub-Contract Works shall be apportioned on a fair and reasonable basis.Contractor’s Risks TC " REF _NN2222\r \h ?8.5Contractor’s Risks" \l 2 The Contractor’s Risks (subject to the other provisions of this Sub-Contract) are:physical conditions (other than weather conditions or conditions due to weather conditions) or pollution and/or contamination or artificial obstructions which conditions or obstructions could not reasonably have been foreseen by an experienced sub-contractor;failure by the Contractor to deliver necessary instructions or details or any necessary approval, acceptance or consent within such times as they are reasonably necessary in accordance with this Sub-Contract;failure by the Contractor to give timely possession of the Site or part of it;unless resulting from the Sub-Contractor’s breach of Sub-Contract or negligence, the issue by the Contractor of an instruction (including a variation) which causes delay and/or disruption to the Sub-Contract Works;the Sub-Contract Technical Workscope provided by the Contractor for which he is responsible under this Sub-Contract or any instructions of the Contractor being found not to be in conformity with any applicable law, regulation or by-law;any error in the setting out of the Works or their construction which is due to incorrect information for which the Contractor is responsible in accordance with this Sub-Contract supplied in writing by the Contractor;suspension of the Sub-Contract Works or any Section for a reason not falling within sub-clause 8.7(b) or 9.4(b) (Extension of Time);delay or additional cost caused by another sub-contractor provided the Sub-Contractor has complied with his obligations under sub-clause 7.1;delay or additional cost arising from a default or failure in relation to materials furnished by the Employer under the Main Contract;delay or additional cost resulting from encountering remains or articles of geological or archaeological importance on the Site; andcancellation or alteration of the dates and times of agreed speed restrictions, track possessions or isolations under sub-clause 26.2 or 26.5 (where and to the extent applicable in accordance with those provisions).Sub-Contractor’s Entitlement TC " REF _NN2223\r \h ?8.6Sub-Contractor’s Entitlement" \l 2 Where any Contractor’s Risk occurs the Sub-Contractor shall be entitled to payment, subject to Clauses 11 (Valuation and Payment) and 13.3 (Delay or Disruption), of additional Cost incurred directly and unavoidably as a result of the occurrence of such risks and to allowance of additional time for completion of the Sub-Contract Works or any Section subject to Clause 9 (Programme and Time for Completion).Shared Risks TC " REF _NN2224\r \h ?8.7Shared Risks" \l 2 The Shared Risks are:exceptionally adverse weather conditions or conditions due to exceptionally adverse weather conditions;suspension of the Sub-Contract Works or any Section if provided for in the Sub-Contract or necessary by reason of weather conditions or necessary for the proper construction of the Sub-Contract Works and not arising from any error on the part of the Contractor or breach of Sub-Contract or negligence on the part of the Sub-Contractor;an event of Force Majeure;without prejudice to sub-clauses 8.4(b) and 8.4(c), an Excepted Risk; andwithout prejudice to sub-clause 8.4(a), pollution or contamination encountered by the Sub-Contractor at the Site.Allowance of Time TC " REF _NN2225\r \h ?8.8Allowance of Time" \l 2 Where any Shared Risk occurs, the Sub-Contractor shall be entitled to allowance of additional time for completion of the Sub-Contract Works or any Section subject to Clause 9 (Programme and Time for Completion) but not to financial compensation unless otherwise provided in the Sub-Contract (including sub-clauses 8.4(b) and 8.4(c) in respect of Excepted Risks).Ordering a Variation TC " REF _NN2226\r \h ?8.9Ordering a Variation" \l 2 Where any of the risks in sub-clauses 8.5 or 8.7 occur, the Sub-Contractor shall comply with the instruction of the Contractor. If they include any variation, the Sub-Contractor’s entitlement shall be as provided in Clause 12 (Changes to the Works and Valuation).PROGRAMME AND TIME FOR COMPLETION TC " REF _NN2227\r \h ?9PROGRAMME AND TIME FOR COMPLETION" \l 1 Performance of Sub-Contract Works TC " REF _NN2228\r \h ?9.1Performance of Sub-Contract Works" \l 2 The Sub-Contractor shall carry out and complete the Sub-Contract Works in accordance with the dates and/or time periods set out in the Sub-Contract and shall comply with the Contractor’s programme set out in the Appendix part 4. In addition, within 14 days after the award of the Sub-Contract, the Sub- Contractor shall submit to the Contractor a Sub-Contract programme which is compliant with such dates and/or times and/or such programme with a critical path network and accompanied by a general description of the arrangements and methods of construction which the Sub-Contractor proposes to adopt. The Contractor shall, within a further 30 days either accept the Sub-Contract programme or require amendments necessary to meet the requirements of the Contractor’s programme, in which case the Sub-Contractor shall submit an amended Sub-Contract programme within such time as the Contractor may direct. In default of response within 30 days the Contractor shall be deemed to have accepted the Sub-Contract programme.Performance Information TC " REF _NN2229\r \h ?9.2Performance Information" \l 2 The Sub-Contractor shall provide to the Contractor, during the carrying out of the Sub-Contract Works, such information as to performance as may be required by the Sub-Contract Technical Workscope including specific information as to achievement of any Key Performance Indicators as may be required by the Supplementary Clauses.Revised Programme TC " REF _NN2230\r \h ?9.3Revised Programme" \l 2 Should it appear at any time that the progress of the Sub-Contract Works does not conform with the accepted Sub-Contract programme or to progress of the Main Contract Works, the Contractor may require the Sub-Contractor to submit a further programme showing such modifications as required to achieve completion in accordance with the Sub-Contract or the Main Contract Works or to reduce delay. The Sub-Contractor shall submit the further Sub- Contract programme within such time as the Contractor may direct.Extension of Time TC " REF _NN2231\r \h ?9.4Extension of Time" \l 2 The Sub-Contractor shall be entitled, subject to Clause 13 (Additional Payment and Final Account), to an extension of time for the completion of the Sub-Contract Works or any Section thereof where delay is caused by: any of the grounds set out in sub-clause 8.4(b) or 8.4(c) (Rectification of Loss), sub-clause 8.5 (Contractor’s Risks) or sub-clause 8.7 (Shared Risks); andthe valid exercise by the Sub-Contractor of its rights under Section 112 of the Housing Grants, Construction and Regeneration Act 1996 (as amended).Contractor’s Assessment of Delay TC " REF _NN2232\r \h ?9.5Contractor’s Assessment of Delay" \l 2 Upon receipt of any claim for extension in accordance with sub-clause 13.1 (Notice of Claims), the Contractor shall consider all the circumstances known to him at that time and make an assessment of the delay (if any) that has occurred as a result of the alleged cause(s). In the absence of a claim by the Sub-Contractor the Contractor may make an assessment of the delay that he considers has occurred.Extension of Time TC " REF _NN2233\r \h ?9.6Extension of Time" \l 2 The Contractor shall, in the light of his assessments under sub-clause 9.5, grant to the Sub-Contractor any extension of time he considers fairly due for the substantial completion of the Sub-Contract Works or any Section and notify the Sub-Contractor of the extension and of the reasons.Final Extension TC " REF _NN2234\r \h ?9.7Final Extension" \l 2 The Contractor shall after the issue of the Certificate of Substantial Completion for the Sub-Contract Works review all the circumstances known to him and finally determine the extensions of time (if any) to which he considers the Sub-Contractor fairly entitled and notify the Sub-Contractor of the reasons. The final extension shall include any extension in respect of the Sub-Contract Works granted by the Employer’s Representative under the Main Contract; provided that no such final review shall result in a decrease in any extension of time already granted by the Contractor.PERFORMANCE AND COMPLETION TC " REF _NN2235\r \h ?10PERFORMANCE AND COMPLETION" \l 1 Sub-Contractor to Commence and Proceed TC " REF _NN2236\r \h ?10.1Sub-Contractor to Commence and Proceed" \l 2 The Sub-Contractor shall commence the Sub-Contract Works on the Sub-Contract Commencement Date or in accordance with the dates or periods set out in the Appendix, or otherwise as directed by the Contractor in writing. The Sub-Contractor shall then proceed with the Sub-Contract Works with due expedition and without delay in accordance with the Sub-Contract.Possession and Access TC " REF _NN2237\r \h ?10.2Possession and Access" \l 2 Subject to sub-clause 6.6(a) (Interference with Traffic and Adjoining Properties), Clause?26 (Track Possessions and Isolations) and any restrictions included in this Sub-Contract, the Contractor shall give the Sub-Contractor possession of such portion of the Site and such access to it as is necessary for the construction of the Sub-Contract Works.10.2A Access and Facilities TC "10.2A Access and Facilities" \l 5 The Sub-Contract Price shall not be adjusted for the cost of any access or facilities outside the Site required by the Sub-Contractor for the purposes of the Sub-Contract Works that are additional to those provided by the Contractor. Time for Completion TC " REF _NN2239\r \h ?10.3Time for Completion" \l 2 The whole of the Sub-Contract Works and any Section required to be completed within a particular time shall be completed within the times stated in the Appendix subject to sub-clause 10.4 and subject to any extensions granted under Clause 9 (Programme and Time for Completion). Provided that a part of the Sub-Contract Works shall not be deemed completed unless the Contractor agrees in writing to accept completion of it.Substantial Completion TC " REF _NN2240\r \h ?10.4Substantial Completion" \l 2 For the purposes of this Sub-Contract completion means substantial completion such that all the work required by the Sub-Contract has been carried out (including any Tests on Completion under Clause 39.3 (Tests on Completion) (if applicable) but excluding Performance Tests under Clause 39.4 (Performance Tests)) save for any omission or defect which does not prevent use of the Sub-Contract Works for their intended purpose. The Sub-Contractor shall give written notice to the Contractor of the date upon which the Sub-Contract Works or any Section are substantially complete. The Contractor shall within 21 days of such notice, or if in the absence of such notice the Contractor considers at any time that a Certificate of Substantial Completion is or may be due, either issue to the Sub-Contractor a Certificate of Substantial Completion or notify the Sub-Contractor of work which is required to be completed before the issue of such certificate. Upon such completion the Contractor shall issue a Certificate of Substantial Completion. Subject to sub-clause 10.3, the Sub-Contract Works or any Section or part of the Sub-Contract Works shall be deemed complete where:the Contractor agrees in writing to defer any outstanding items of work until after completion; orthe Contractor and the Sub-Contractor agree in writing to a non-exclusive licence to occupy the Site for outstanding items of work;and in either such case the Sub-Contractor agrees in writing to complete the outstanding work within such time as shall be agreed or, in default of agreement, within the Sub-Contract Defects Correction Period. The Contractor shall certify when such deemed completion occurs.In the event that the Contractor issues a Certificate of Substantial Completion under this Clause 10.4 without any notice having been given by the Sub-Contractor under this Clause 10.4, upon the issue of such certificate the Sub-Contractor shall be deemed to have given an undertaking to finish any outstanding work in relation to the Sub-Contract Works or the relevant Section in accordance with the provisions of Clause 10.5.Defects Correction TC " REF _NN2241\r \h ?10.5Defects Correction" \l 2 The Sub-Contractor shall, during the Sub-Contract Defects Correction Period stated in the Appendix, rectify any defects and complete any outstanding works within the time or times stated in the Sub-Contract or as otherwise agreed in accordance with sub-clause 10.4(c) (or if no time is stated or agreed as soon as practicable during the Defects Correction Period).The Sub-Contractor shall be given access to the Sub-Contract Works to rectify any notified defects and to complete any outstanding works. Such access shall only be allowed in line with the Employer’s requirements for the Site (including operation of the railway) and is at the Sub-Contractor’s own risk and cost. Rights of access may only be available during planned speed restrictions, track possession or isolation at the discretion of the Employer.Subject to any other agreement of the Parties, the Sub-Contract Defects Correction Period runs from the date on which the Sub-Contract Works or any Section or part are or are deemed substantially completed.Liquidated Damages TC " REF _NN2242\r \h ?10.6Liquidated Damages" \l 2 If the Sub-Contractor fails to achieve completion of the whole of the Sub- Contract Works as required by sub-clause 10.3 he shall pay to the Contractor Liquidated Damages, as stated in the Appendix, for every day during which the Sub-Contract Works remain uncompleted. If any part of the Sub-Contract Works achieves or is deemed to achieve completion before the completion of the whole, the Liquidated Damages shall be reduced in proportion to the value of the part so completed.Liquidated Damages for Sections TC " REF _NN2243\r \h ?10.7Liquidated Damages for Sections " \l 2 Liquidated Damages payable in respect of any Section shall be as stated in the Appendix and sub-clause 10.6 shall apply as though the Section were the Sub-Contract Works.Limit of Liquidated Damages TC " REF _NN2244\r \h ?10.8Limit of Liquidated Damages" \l 2 Subject to sub-clause 37.2 (Exclusions from Limits of Liability), the Appendix shall state any limit applicable to the amount of Liquidated Damages that may be deducted (“Liquidated Damages Cap”).The Liquidated Damages Cap is a sub-cap within the Aggregate Liability Cap.Any Railway Costs for which the Sub-Contractor is liable in accordance with this Sub-Contract shall not be included in the Liquidated Damages calculation or subject to the Liquidated Damages Cap but are subject to a separate sub-cap within the Aggregate Liability Cap in accordance with sub-clause 37.3 (Railway Costs).Payment of Damages TC " REF _NN2245\r \h ?10.9Payment of Damages" \l 2 Subject to sub-clause 11.9, Liquidated Damages payable by the Sub- Contractor may be deducted from any sum becoming due under the Sub- Contract. Otherwise the Contractor may require the Sub-Contractor to pay such amount to the Contractor forthwith.Repayment of Damages TC " REF _NN2246\r \h ?10.10Repayment of Damages" \l 2 If upon a subsequent or final review under Clause 9 (Programme and Time for Completion), or as a result of any matter occurring after the date the Contractor became entitled to Liquidated Damages, the Sub-Contractor is entitled to any or any further extension of time, any Liquidated Damages deducted or recovered by the Contractor in excess of the amount to which he is entitled shall be repayable to the Sub- Contractor forthwith together with interest compounded monthly at the rate stated in the Appendix.Rate of Progress TC " REF _NN2247\r \h ?10.11Rate of Progress" \l 2 If for any reason which does not entitle the Sub-Contractor to an extension of time the rate of progress of the Sub-Contract Works or any Section is in the opinion of the Contractor too slow to ensure completion by the time or extended time for completion, the Sub-Contractor shall if so required by the Contractor specify and take steps necessary to achieve timely completion. In such a case:The Sub-Contractor shall be entitled to change any accepted programme and to adopt any new or changed method of working; andThe Sub-Contractor shall not be entitled to any additional payment or extension of time in respect of any such measures.Acceleration TC " REF _NN2248\r \h ?10.12Acceleration" \l 2 The Sub-Contractor may agree to accelerate the Sub-Contract Works or any Section upon such terms as may be agreed with the Contractor.VALUATION AND PAYMENT TC " REF _NN2249\r \h ?11VALUATION AND PAYMENT" \l 1 Clauses 11.1 to 11.5 shall apply as stated in the Appendix.Bill of Quantities TC " REF _NN2250\r \h ?11.1Bill of Quantities " \l 2 The Contractor warrants that any Sub-Contract Bill of Quantities has been prepared in accordance with the Method of Measurement stated in the Appendix.Payment TC " REF _NN2251\r \h ?11.2Payment" \l 2 Where the Quantities set out in the Bill of Quantities are stated to be a Fixed Quantity, the Sub-Contractor shall be paid only for the quantities so stated. Where the Quantities set out in the Bill of Quantities are stated to be subject to re-measurement, the Sub-Contractor shall be paid for the actual quantities of work at the rates in the Bill of Quantities for those items. Where any item in the Bill of Quantities is not in accordance with the Method of Measurement referred to in sub-clause 11.1, the item shall be corrected and the Sub-Contractor shall be paid the corrected amount.Ascertaining Quantities TC " REF _NN2252\r \h ?11.3Ascertaining Quantities" \l 2 Where work is subject to re-measurement the Contractor shall ascertain the quantities executed and submit these to the Sub-Contractor for his agreement. If the Sub-Contractor disputes the Contractor’s quantities he shall provide the Contractor with fully substantiated details of the quantities he disputes.Priced Schedule TC " REF _NN2253\r \h ?11.4Priced Schedule" \l 2 Where work is set out in a priced schedule of items the Sub-Contractor shall be paid the price entered against each item. The Sub-Contract shall state where any such item is to be paid for as a Milestone Sum in which event Clause 21 shall apply.Cost Plus TC " REF _NN2254\r \h ?11.5Cost Plus " \l 2 Where any work is to be paid for on a cost plus basis, the Sub-Contractor shall be paid the Cost of the relevant work as defined in the Appendix.Interim Statement TC " REF _NN2255\r \h ?11.6Interim Statement " \l 2 The Sub-Contractor shall submit to the Contractor not less than 7 days prior to the date stated in the Appendix or on dates otherwise agreed in writing interim statements setting out the amounts to which the Sub- Contractor considers himself entitled in respect of work forecast to be carried out up to the date stated in the Appendix or otherwise agreed. The Sub-Contractor’s interim statement shall include:the assessed value of Sub-Contract work carried out up to the valuation date;a list of any goods or materials delivered to the Site but not yet incorporated in the Permanent Works and their value;a list of any of those goods or materials identified in the Appendix which have not yet been delivered to the Site but of which the property has vested in the Contractor pursuant to sub-clause 16.3 and their value; andthe estimated amounts to which the Sub-Contractor considers himself entitled in connection with all other matters for which provision is made under the Sub-Contract (including under Clause 13);Monthly statements shall be submitted until one month after the last Sub-Contract Defects Correction Certificate.Payment to Sub-Contractor TC " REF _NN2256\r \h ?11.7Payment to Sub-Contractor" \l 2 The Contractor shall within 14 days of the date stated in the Appendix certify the sums included in the Sub-Contractor’s submission or such lesser sums as the Contractor considers to be due and shall state the basis on which the Contractor has reduced or disallowed any part of the Sub-Contractor’s application (including under Clause 27 (Set-Off) or for any other reason (including for losses arising from the Sub-Contractor’s breach of Sub-Contract). These sums shall include such amounts, if any, as the Contractor considers due (but not exceeding the percentage of the value stated in the Appendix) in respect of sub-clauses 11.6(b) and 11.6(c).If the Sub-Contractor fails to submit the interim statement as required by sub-clause 11.6, the Contractor shall certify the sum that the Contractor to be due at the payment due date and specify the basis on which that sum is calculated. The certificate issued by the Contractor in accordance with this sub-clause 11.7 shall be a payment notice for the purposes of the Housing Grants, Construction and Regeneration Act 1996 (as amended) and the Contractor shall issue the payment notice even if the amount that he considers to be due is zero.Final date for Payment TC " REF _NN2257\r \h ?11.8Final date for Payment" \l 2 The payment due date is 14 days after the date stated in the Appendix and the final date for payment is 28 days after the issue of the date stated in the Appendix. In the event of the Contractor failing to make payment of any sum properly due and payable to the Sub-Contractor by the final date for payment of that sum the Contractor shall pay to the Sub-Contractor interest on such overdue sum at the rate applicable to payment of overdue sums in the Main Contract.Paying Less TC " REF _NN2258\r \h ?11.9Paying Less" \l 2 Where for any payment under this Clause or sub-clause 13.8 (Final Date for Payment), the Contractor intends to pay less than the sum certified or otherwise due under the Sub- Contract the Contractor shall notify the Sub-Contractor in writing not less than five days before the final date for payment specifying the sum that the Contractor considers to be due and the basis on which that sum is calculated.Contractor’s Compliance TC " REF _NN2259\r \h ?11.10Contractor’s Compliance" \l 2 The Sub-Contractor shall promptly notify the Employer’s Representative in writing of any material non-payment or late payment of any sums properly due to the Sub-Contractor from the Contractor under this Sub-Contract, under a specified valid invoice and not subject to a genuine dispute.The Parties acknowledge that, notwithstanding clause 25 (Confidentiality and Comptroller and Auditor General), the Employer may publish the Contractor’s compliance with its obligation to pay undisputed invoices with the specified payment period under this Sub-Contract.Outstanding Work TC " REF _NN2260\r \h ?11.11Outstanding Work" \l 2 The Contractor shall be entitled to withhold retention otherwise payable in accordance with sub-clause 11.10 if in the Contractor’s opinion there remains any outstanding work to be carried out or any fault or defect which the Sub- Contractor is required to rectify or investigate. The Contractor may then withhold so much of the retention as in the Contractor’s opinion represents the cost of the work remaining until completion of the outstanding work or until the fault or defect is rectified.Construction Industry Scheme TC " REF _NN2261\r \h ?11.12Construction Industry Scheme" \l 2 The obligation of the Contractor to make any payment under this Sub-Contract is subject to the provisions of the Construction Industry Scheme, as provided for in Chapter 3 of the Finance Act 2004 and the Income Tax (Construction Industry Scheme) Regulations 2005.Value Added Tax TC " REF _NN2262\r \h ?11.13Value Added Tax" \l 2 The Sub-Contractor shall be deemed not to have allowed in the Sub-Contract Price for the tax payable by him as a taxable person to HM Revenue and Customs being tax chargeable on any taxable supplies to the Contractor which are to be made under this Sub-Contract.All certificates issued by the Contractor under sub-clause 11.7 shall be net of Value Added Tax and the Sub-Contractor shall not issue any claim, statement of sums due or account to the Contractor inclusive of Value Added Tax. When requesting or claiming payment the Sub-Contractor shall state how the work or supply in question is rated for the purposes of Value Added Tax and show separately any relevant rates of Value Added Tax relating to the work or supplies.In addition to the payments due under this Sub-Contract the Contractor shall separately identify and pay to the Contractor any Value Added Tax properly chargeable by HM Revenue and Customs on the supply to the Contractor of any goods and/or services by the Sub-Contractor under this Sub-Contract.If any dispute difference or question arises between either the Employer, the Contractor or the Sub-Contractor and HM Revenue and Customs in relation to any tax chargeable or alleged to be chargeable in connection with this Sub-Contract or the Sub-Contract Works each shall render to the other such support and assistance as may be necessary to resolve the dispute difference or question.Clause 19 (Resolution of Disputes) shall not apply to any dispute difference or question arising under this Clause 11.13.If the Sub-Contractor fails to carry out his obligations under this Sub-Contract and the Contractor employs some other sub-contractor to fulfil them, and a payment in respect of Value Added Tax is made or falls to be made to that other sub-contractor, then the Contractor shall be entitled to recover from the Sub-Contractor any Value Added Tax (which he is not otherwise able to recover) additional to what he would have paid had the Sub-Contractor carried out his obligations under this Sub-Contract.The Sub-Contractor shall issue to the Contractor, upon receipt of any amount paid by the Contractor under this Sub-Contract and any Value Added Tax properly paid under sub-clause 11.13(b), an authenticated receipt of the kind referred to in Regulation 13(4) of The Value Added Tax Regulations 1995 (or any amendment or re-enactment) containing the particulars required under Regulation 14(1) of the same Regulations to be contained in a VAT invoice.CHANGES TO THE SUB-CONTRACT WORKS AND VALUATION TC " REF _NN2263\r \h ?12CHANGES TO THE SUB-CONTRACT WORKS AND VALUATION" \l 1 Variation to Sub-Contract Works TC " REF _NN2264\r \h ?12.1Variation to Sub-Contract Works" \l 2 The Contractor may order any variation to any part of the Sub-Contract Works that he considers necessary for the satisfactory completion of the Sub-Contract Works or that for any other reason shall in his opinion be desirable for the completion and/or improved functioning of the Sub-Contract Works. Variations may include additions or omissions and changes to any specified sequence, method or timing of construction. Variations may be ordered at any time up to the end of the Sub-Contract Defects Correction Period.Order in Writing TC " REF _NN2265\r \h ?12.2Order in Writing" \l 2 Variations shall be ordered in writing but subject to sub-clause 5.3. The Contractor may instruct work to be carried out on a daywork basis where there is no other appropriate means of valuation. Daywork will only be used as a basis for valuation where expressly instructed by the Contractor.Sub-Contractor to Quote TC " REF _NN2266\r \h ?12.3Sub-Contractor to Quote" \l 2 The Contractor may require the Sub-Contractor to submit his quotation for the amount to be paid and for any consequential delay in regard to any variation ordered or proposed to be ordered and the Contractor may accept the Sub- Contractor’s quotation (whether as submitted or with agreed modifications). Where accepted, the Sub-Contractor shall thereafter be entitled to be paid and to be granted an extension of time as so agreed, and shall have no further entitlement in regard to such variation.Sub-Contractor’s Default TC " REF _NN2267\r \h ?12.4Sub-Contractor’s Default" \l 2 The value and time implications of all variations shall be taken into account in ascertaining the amount of the Sub-Contract Price and time for completion except in each case to the extent that such variation is necessary by reason of the Sub-Contractor’s breach of Sub-Contract or negligence.Valuation of Variations TC " REF _NN2268\r \h ?12.5Valuation of Variations" \l 2 Subject to sub-clause 12.3, variations ordered by the Contractor in accordance with sub-clause 12.1 shall be valued by the Contractor in accordance with the following principles:Where work is of similar character and carried out under similar conditions to work priced in the Pricing Document it shall be valued at such rates and prices contained therein as may be applicable; Where work is not of a similar character or is not carried out under similar conditions or is ordered during the Defects Correction Period the rates and prices in the Pricing Document shall be used as the basis for valuation so far as may be reasonable failing which a fair valuation shall be made; andWhere work is ordered to be executed on a daywork basis it shall be valued at daywork rates and charges as set out in the Pricing Document.ADDITIONAL PAYMENT AND FINAL ACCOUNT TC " REF _NN2269\r \h ?13ADDITIONAL PAYMENT AND FINAL ACCOUNT" \l 1 Notice of Claims TC " REF _NN2270\r \h ?13.1Notice of Claims" \l 2 If the Sub-Contractor intends to claim any additional payment or any allowance of additional time for completion of the Sub-Contract Works or any Section under these Sub-Contract Conditions, he must give notice to the Contractor using the claim submission format and an accompanying Claim Sign Off Sheet as detailed in the Preliminaries as soon as reasonably practicable, and in any event within 14 days of becoming aware of the facts giving rise to the claim. Thereafter the Sub-Contractor must keep contemporary records, including data in such electronic and/or computerised format, as may be required by the Appendix or agreed with the Contractor, and submit full and detailed particulars of the claim within such further period as the Contractor may direct. Such details shall include where appropriate consideration of alternative design measures and/or methods or procedure with comparative estimates of costs and delays.Failure to Give Notice TC " REF _NN2271\r \h ?13.2Failure to Give Notice" \l 2 If the Sub-Contractor fails to give notice in accordance with sub-clause 13.1 which an experienced contractor could have given the Contractor shall determine any entitlement to additional payment or any allowance of additional time for completion of the Sub-Contract Works or any Section as if the Sub-Contractor had given that notice. Without prejudice to sub-clause 13.2(a), if the Sub-Contractor has not given notice of a claim within 11 weeks after it became aware or an experienced sub-contractor would have become aware of the event giving rise to the claim, the Sub-Contractor shall have no entitlement to additional payment or any allowance of additional time for completion of the Sub-Contract Works or any Section unless the event arises from the Contractor giving any instruction, issuing a certificate or changing any earlier instruction.Delay or Disruption TC " REF _NN2272\r \h ?13.3Delay or Disruption" \l 2 Subject to sub-clause 13.1, if pursuant to Clause 5 (The Employer’s Representative) or otherwise the Contractor shall issue an instruction which causes delay or disruption to the Sub-Contract Works, except for an instruction issued as a result of the Sub-Contractor’s breach of Sub-Contract or negligence, the Contractor shall after consultation with the Sub-Contractor determine the amount of any additional Cost incurred by the Sub-Contractor, together with a reasonable amount in respect of any loss of profit where incurred, and shall take such delay into account in determining any extension of time to be granted under Clause 9 (Programme and Time for Completion).Defects Correction Certificate TC " REF _NN2273\r \h ?13.4Defects Correction Certificate" \l 2 At the end of the Sub-Contract Defects Correction Period or if more than one the last of such periods, and when all outstanding work and all work of repair and making good of defects or other faults has been completed to the Contractor’s satisfaction, the Contractor shall issue a Sub-Contract Defects Correction Certificate stating the date on which the Sub-Contractor shall have completed his obligations under the Sub-Contract. The issue of the Sub-Contract Defects Correction Certificate shall not be taken as relieving either the Sub-Contractor or the Contractor from any liability towards the other arising out of or in any way connected with the performance of the Sub-Contract.Statement of Final Account TC " REF _NN2274\r \h ?13.5Statement of Final Account" \l 2 Not later than 2 months after the date of the issue of the Sub-Contract Certificate of Substantial Completion (or, where there is more than one, after the date of the last in time to be issued) the Sub-Contractor shall submit to the Contractor a statement of Sub-Contract final account with supporting documentation showing the value in accordance with this Sub-Contract of the Sub-Contract Works carried out together with all further sums which the Sub-Contractor considers to be due to him under this Sub-Contract up to and including the date of the Certificate of Substantial Completion (or, where there is more than one, after the date of the last in time to be issued).Not Used TC " REF _NN2275\r \h ?13.6Not Used" \l 2 Final Certificate TC " REF _NN2276\r \h ?13.7Final Certificate" \l 2 Within 5 months after receipt of the statement of Sub-Contract final account and of all information reasonably required for its verification the Contractor shall issue a final certificate stating the amount which in his opinion is finally due under this Sub-Contract from the Contractor to the Sub-Contractor or from the Sub-Contractor to the Contractor as the case may be up to and including the date of the Certificate of Substantial Completion (or, where there is more than one, after the date of the last in time to be issued) and after giving credit to the Contractor for all amounts previously paid by the Contractor and for all sums to which the Contractor is entitled under this Sub-Contract.The amount finally due under this Sub-Contract shall be evaluated on the basis of the total of payments due to the Sub-Contractor by the Contractor under the terms of this Sub-Contact less any previous payments on account and any sums deductible from the Sub-Contractor or payable from the Sub-Contractor to the Contractor either under Clause 27 (Set-Off) or for any other reason (including for losses arising from the Sub-Contractor’s breach of Sub-Contract).Any certificate issued by the Contractor under this sub-clause 13.7 shall be a payment notice for the purposes of the Housing Grants, Construction and Regeneration Act 1996 (as amended) and the Contractor shall issue the payment notice even if the amount that he considers to be due is zero.Final Date for Payment TC " REF _NN2277\r \h ?13.8Final Date for Payment" \l 2 Not later than 5 days after the issue of the Sub-Contract Final Certificate the Contractor shall give the Sub-Contractor a written notice specifying the amount of the payment to be made by the Contractor or the Sub-Contractor (as the case may be), to what the payment relates and the basis on which the amount was calculated. The Final Date for payment is 28 days after the date of issue of the Sub-Contract Final Certificate.Failure to Submit Final Statement TC " REF _NN2278\r \h ?13.9Failure to Submit Final Statement" \l 2 In the event that the Sub-Contractor fails to submit to the Contractor his statement of final account and supporting documentation in accordance with sub-clause 13.5, then not later than 7 months after the date of the Certificate of Substantial Completion (or, where there is more than one, after the date of the last in time to be issued) the Contractor may issue a certificate stating the amount which in his opinion is finally due under the Sub-Contract in accordance with sub-clause 13.7. The payment becomes due 10 months after the date of the Certificate of Substantial Completion (or, where there is more than one, after the date of the last in time to be issued). The final date for payment is 21 days later.Works after Substantial Completion TC " REF _NN2279\r \h ?13.10Works after Substantial Completion" \l 2 If the Sub-Contractor executes further Sub-Contract Works after the date of the Certificate of Substantial Completion (or, where there is more than one, after the date of the last in time to be issued) for which he is entitled to payment under this Sub-Contract, then, not later than 2 months after the date of the substantial completion of such further Sub-Contract Works, the Sub-Contractor shall submit to the Contractor a further statement of account and supporting documentation, showing in detail the value in accordance with this Sub-Contract of such further Sub-Contract Works executed, together with all further sums which the Sub-Contractor considers to be due to him under this Sub-Contract up to and including the date of the Certificate of Substantial Completion.Within 5 months after receipt of the further statement of account and of all information reasonably required for its verification, the Contractor shall issue a certificate stating the amount which in his opinion is finally due under this Sub-Contract from the Contractor to the Sub-Contractor or from the Sub-Contractor to the Contractor, as the case may be, up to and including the date of the Certificate of Substantial Completion and after giving credit to the Contractor for all amounts previously paid by the Contractor and for all sums to which the Contractor is entitled under this Sub-Contract and any sums deductible from the Sub-Contractor or payable from the Sub-Contractor to the Contractor either under Clause 27 (Set-Off) or for any other reason (including for losses arising from the Sub-Contractor’s breach of Sub-Contract).Such amount shall be paid to or by the Sub-Contractor, as the case may require. The payment becomes due 5 months after the Contractor’s receipt of the further statement of account and the information reasonably required for its verification. The final date for payment is 21 days later.FORCE MAJEURE TC " REF _NN2280\r \h ?14FORCE MAJEURE" \l 1 Force Majeure TC " REF _NN2281\r \h ?14.1Force Majeure" \l 2 Force Majeure means any circumstance outside the control of either party and not attributable to breach of Sub-Contract or negligence of either Party (including failure to take reasonable preventative action) which arises during the currency of the Sub-Contract which renders it impossible or illegal for either party to fulfil his contractual obligations, including:the exercise after the date of tender by the United Kingdom Government of any statutory power that directly affects the execution of Sub-Contract Works;the use or threat of terrorism as defined by the Terrorism Act 2000 and/or the activities of the relevant authorities in dealing with such threat;natural catastrophes such as fire, earthquake, tsunami, volcanic activity or hurricane; andstrike or lockout not solely relating to the Sub-Contractor or any sub-subcontractor or their respective employees or any other failure in the Sub-Contractor’s or a sub-subcontractor’s supply chain.Termination of Employment TC " REF _NN2282\r \h ?14.2Termination of Employment" \l 2 If as a result of Force Majeure the Contractor’s employment under the Main Contract is terminated the employment of the Sub-Contractor under the Sub-Contract shall terminate at the same time. The Contractor shall provide to the Sub-Contractor a copy of any notice of intention to terminate the Contractor’s employment under the Main Contract and of any notice terminating his employment.Entitlement on Termination TC " REF _NN2283\r \h ?14.3Entitlement on Termination" \l 2 Upon termination of the Sub-Contractor’s employment pursuant to sub- clause 14.2 the Parties shall continue to be bound by the Sub-Contract and the Sub-Contractor shall be entitled to be paid the following:the Sub-Contract value of all Sub-Contract work carried out prior to the date of termination, after deducting the value of any defects in or omissions from such work, in so far as such amounts have not already been paid on account;preliminary items so far as the Sub-Contract work or service they relate to have been carried out or performed and a proper proportion of any such items which have been partially carried out or performed;the cost of materials or goods reasonably ordered for the Sub-Contract Works which have been delivered to the Sub-Contractor or of which the Sub-Contractor is legally liable to accept delivery (such materials or goods becoming the property of the Contractor upon such payment being made to the Sub-Contractor);any expenditure reasonably incurred by the Sub-Contractor in the expectation of completing the whole of the Sub-Contract Works insofar as not recovered by any other payments;the reasonable cost incurred in removal from the Site; andany sums which may otherwise be withheld under the Sub-Contract.Removal of Sub-Contractor’s Equipment TC " REF _NN2284\r \h ?14.4Removal of Sub-Contractor’s Equipment" \l 2 Upon termination of his employment pursuant to sub-clause 14.2 the Sub- Contractor shall with all reasonable dispatch remove from the Site all Sub-Contractor’s Equipment. If the Sub-Contractor fails to comply with this obligation the Contractor may dispose of the Equipment and shall account to the Sub-Contractor only for the net proceeds of disposal.TERMINATION FOR DEFAULT TC " REF _NN2285\r \h ?15TERMINATION FOR DEFAULT" \l 1 Sub-Contractor Default TC " REF _NN2286\r \h ?15.1Sub-Contractor Default" \l 2 The following events shall be regarded as a Sub-Contractor Default:one or more of:the Sub-Contractor;the Guarantor;where the Sub-Contractor is an Unincorporated Joint Venture, one of its members; or where the Sub-Contractor is an incorporated joint venture, one of the joint venture shareholders becoming insolvent;the Sub-Contractor:suspending the progress of the Sub-Contract Works without due cause for 14 days;failing to remove goods or materials from the Site or to remove and replace Sub-Contract work for 14 days after receiving from the Contractor written notice that the said goods materials or work has been rejected by the Contractor;despite previous warnings in writing failing to proceed with the Sub-Contract Works with due diligence or being otherwise persistently or fundamentally in breach of his obligations under the Sub-Contract; orhas abandoned the Sub-Contract without due cause.the Sub-Contractor is in breach of sub-clause 3.3 (Sub-Subcontracting of Sub-Contract Works);the Sub-Contractor assigns or attempts to assign this Sub-Contract or any part thereof or any benefit or interest under it without the prior written consent of the Contractor; orthe Sub-Contractor is liable to compensate the Contractor in respect of sums referred to in sub-clause 10.8 (Limit of Liquidated Damages), sub-clause 37.1 (Aggregate Liability Cap) or sub-clause 37.3 (Railway Costs) equal to or exceeding the aggregate limit of the liability of the Sub-Contractor as stated in the relevant provision or the Appendix (as applicable).15.1A Termination of Main Contract TC "15.1A Termination of Main Contract" \l 5 The Sub-Contractor’s employment under this Sub-Contract terminates automatically on the same date that:the Main Contract between the Contractor and the Employer is terminated; orthe employment of the Contractor under the Main Contract is terminated for any reason.Termination of Employment TC " REF _NN2288\r \h ?15.2Termination of Employment" \l 2 Upon the occurrence of a Sub-Contractor Default the Contractor, after giving 7 days’ notice in writing to the Sub-Contractor specifying the event relied on (and regardless of any Sub-Contractor’s attempted remedy of the event), may terminate the Sub-Contractor’s employment under the Sub-Contract by written notice of termination to the Sub-Contractor. The Contractor may then take over the Sub-Contract Works and expel the Sub-Contractor. Such termination shall not avoid the Sub-Contract or release the Sub-Contractor from any of his obligations or liabilities under the Sub-Contract.Notice of Termination TC " REF _NN2289\r \h ?15.3Notice of Termination " \l 2 The Contractor may extend the period of notice to give the Sub-Contractor an opportunity to remedy the default relied on.Contractor’s Rights After Termination TC " REF _NN2290\r \h ?15.4Contractor’s Rights After Termination " \l 2 Where the Contractor has terminated the Sub-Contractor’s employment pursuant to sub-clause 15.2:the Contractor may thereafter complete the Sub-Contract Works himself or employ another sub-contractor to do so, and in either case may use for such completion any of the Sub-Contractor’s Equipment Temporary Works goods and materials on any part of the Site. The Contractor may at any time sell any such Sub-Contractor’s Equipment Temporary Works and unused goods and materials and shall account to the Sub-Contractor only for the net proceeds of sale;the Sub-Contractor shall if so instructed by the Contractor in writing within 7 days of such termination assign to the Contractor the benefit of any agreements which the Sub-Contractor may have entered into for the supply of any goods or materials and/or for the carrying out of any work for the purposes of the Sub-Contract.Work to be Valued TC " REF _NN2291\r \h ?15.5Work to be Valued" \l 2 As soon as practicable after termination of the Sub-Contractor’s employment the Contractor shall fix and determine as at the time of such termination:the amount (if any) which has been reasonably earned by or would reasonably accrue to the Sub-Contractor in respect of work done by him under the Sub-Contract; andthe value of any unused or partially used goods and materials which are under the control of the Contractor or the net proceeds of sale where the Contractor elects to sell the same;and shall certify accordingly after such investigation or enquiry as the Contractor may think fit to make or institute.Payment After Termination TC " REF _NN2292\r \h ?15.6Payment After Termination" \l 2 Where the Contractor has terminated the Sub-Contractor’s employment pursuant to sub-clause 15.2 he shall not be liable to pay the Sub- Contractor any money under the Sub-Contract (whether in respect of amounts certified or otherwise) unless or until the Contractor certifies that an amount is due to the Sub-Contractor under sub-clause 15.6(b). If the Sub-Contractor was or becomes insolvent within the meaning of Section 113(2) of the Housing Grants, Construction & Regeneration Act 1996 then the final date for payment shall be suspended in respect of any amount already due where the Sub-Contactor’s insolvency occurred after the last date for the Contractor to issue a pay less notice in respect of that amount.The Contractor shall certify the difference between:such sum as would have been due to the Sub-Contractor if he had completed the Sub-Contract Works together with any proceeds of sale under sub-clause 15.4; andthe costs of completing the Sub-Contract Works (whether or not the Works are completed under a separate sub-contract) damages for delay (if any) and all other expenses properly incurred by the Contractor.If the Contractor is satisfied at any time prior to the completion of the Sub-Contract Works that such sum as calculated under sub-clause 15.6(b)(ii) exceeds such sum as calculated under sub-clause 15.6(b)(i) he may issue an interim certificate to that effect and such interim certificate shall be a debt due from the Sub-Contractor to the Contractor.15.6A Termination under clause 15.1A TC "15.6A Termination under clause 15.1A" \l 5 If the Sub-Contractor’s employment terminates automatically under sub-clause 15.1A, then, except where the reason for termination of the Main Contract or of the Contractor’s employment under the Main Contract is that the Sub-Contractor has failed to comply with his obligations under this Sub-Contract, the Contractor shall pay the Sub-Contractor (insofar as such amounts or items have not already been covered by payments on account made to the Sub-Contractor) the Sub-Contract value of all work carried out prior to the date of termination and in addition:the amounts payable in respect of preliminary items insofar as the work or service comprised therein has been carried out or performed and a proper proportion of any such items which have been partially carried out or performed;the cost of materials or goods reasonably ordered for the Sub-Contract Works which have been delivered to the Sub-Contractor or for which the Sub-Contractor is legally liable to accept delivery (such materials or goods becoming the property of the Contractor upon such payment being made to the Sub-Contractor);a sum being the amount of any expenditure reasonably incurred by the Sub-Contractor in the expectation of completing the whole of the Sub-Contract Works insofar as such expenditure has not been recovered by any other payments referred to above; andthe reasonable costs of removal of all the Sub-Contractor’s plant, tools, equipment, goods and materials from the Site.The Sub-Contractor shall not be entitled to payment of any other loss (including loss of profit) and/or damage arising from such termination or otherwise.Contractor Default TC " REF _NN2294\r \h ?15.7Contractor Default" \l 2 The following events shall be regarded as a Contractor Default, namely the Contractor becoming Insolvent.Termination of Employment TC " REF _NN2295\r \h ?15.8Termination of Employment" \l 2 Upon the occurrence of a Contractor Default the Sub-Contractor may after giving 7 days’ notice in writing to the Contractor specifying the event relied on terminate his employment under the Sub-Contract without thereby avoiding the Sub-Contract or releasing the Contractor from any of his obligations or liabilities under the Sub-Contract.Payment After Termination TC " REF _NN2296\r \h ?15.9Payment After Termination" \l 2 Upon the Sub-Contractor terminating his employment under sub-clause 15.8:the Sub-Contractor shall have the right and shall with all reasonable despatch remove from the Site all Sub-Contractor’s Equipment; andthe Contractor shall be under the same obligations with regard to payment as if the Sub-Contractor’s employment had been terminated under the provisions of Clause 14 (Force Majeure), provided that in addition to payments there specified the Contractor shall pay to the Sub-Contractor the amount of any loss or damage to the Sub-Contractor arising from or as a consequence of such termination.SUB-CONTRACTOR’S EQUIPMENT AND MATERIALS TC " REF _NN2297\r \h ?16SUB-CONTRACTOR’S EQUIPMENT AND MATERIALS" \l 1 Non-removal of Materials and Equipment TC " REF _NN2298\r \h ?16.1Non-removal of Materials and Equipment" \l 2 Sub-Contractor’s Equipment Temporary Works or goods or materials owned by the Sub-Contractor and brought to the Site for the purposes of the Sub- Contract shall not be removed without the written consent of the Contractor which shall not be unreasonably withheld or delayed. The Contractor shall not assume any liability for loss or damage to them save for that caused by the Excepted Risks.Removal of Surplus Goods and Materials TC " REF _NN2299\r \h ?16.2Removal of Surplus Goods and Materials" \l 2 The Sub-Contractor shall on completion of the Sub-Contract Works remove all surplus Sub-Contract goods or materials from the Site when so instructed by the Contractor. In default of compliance, the Contractor shall be entitled to effect removal and shall account to the Sub-Contractor only for any net proceeds of sale. Listed Goods and Materials TC " REF _NN2300\r \h ?16.3Listed Goods and Materials" \l 2 With a view to securing payment under Clause 11 (Valuation and Payment) the Sub-Contractor shall transfer to the Contractor the property in the Sub-Contract goods and materials listed in the Appendix or as subsequently agreed between the Sub- Contractor and the Contractor before they are delivered to the Site provided that the goods and materials:have been manufactured or prepared and are substantially ready for incorporation in the Sub-Contract Works; andare the property of the Sub-Contractor or the contract for the supply of the same expressly provides that the property therein shall pass unconditionally to the Sub-Contractor upon the Sub-Contractor taking the action referred to in sub-clause 16.5; andhave been marked and set aside in accordance with sub-clause 16.5.Transfer of Property TC " REF _NN2301\r \h ?16.4Transfer of Property" \l 2 The intention of the Sub-Contractor to transfer the property in any Sub- Contract goods or materials to the Contractor in accordance with this Clause shall be evidenced by the Sub-Contractor providing to the Contractor documentary evidence that the property in those goods or materials has vested in the Sub-Contractor and by taking or causing the supplier of those goods or materials to take one or more of the following actions:suitably mark or otherwise plainly identify the goods and materials so as to show that their destination is the Site that they are the property of the Contractor and (where they are not stored at the premises of the Sub-Contractor) to whose order they are held;set aside and store the goods and materials so marked and identified to the satisfaction of the Contractor;send to the Contractor a schedule listing and giving the value of every item of the goods and materials so set aside and stored and inviting him to inspect them.Vesting of Property TC " REF _NN2302\r \h ?16.5Vesting of Property" \l 2 If the Contractor approves in writing the transfer of property in any goods and materials for the purposes of this Clause 16 they shall vest in and become the absolute property of the Contractor and thereafter shall be in the possession of the Sub-Contractor for the sole purpose of delivering them to the Contractor and incorporating them in the Sub-contract Works and shall not be within the ownership control or disposition of the Sub-Contractor. Provided always that:the Sub-Contractor shall be responsible for any loss or damage to such goods or materials and for the cost of storing handling and transporting them and shall effect such additional insurance as may be necessary to cover the risk of such loss or damage from any cause; andapproval by the Contractor for the purposes of this Clause 16 or any payment certified by him in respect of goods and materials pursuant to Clause 11 (Valuation and Payment) shall be without prejudice to the exercise of any power of the Contractor contained in this Sub-Contract to reject any goods or materials which are not in accordance with the provisions of the Sub-Contract and upon any such rejection the property in the rejected goods or materials shall immediately re-vest in the Sub-Contractor.No Lien on Goods or Materials TC " REF _NN2303\r \h ?16.6No Lien on Goods or Materials" \l 2 Neither the Sub-Contractor nor any sub-subcontractor nor any other person shall have a lien on any goods or materials which have vested in the Contractor under sub-clause 16.5 for any sum due to the Sub-Contractor, sub-subcontractor or other person and the Sub-Contractor shall take all steps reasonably necessary to ensure that the title of the Contractor and the exclusion of any such lien are brought to the notice of sub-subcontractors and other persons dealing with such goods or materials.Delivery of Goods or Materials TC " REF _NN2304\r \h ?16.7Delivery of Goods or Materials" \l 2 Upon termination of the employment of the Sub-Contractor under this Sub- Contract before the completion of the Sub-Contract Works whether as a result of the operation of Clauses 14 (Force Majeure) or 15 (Termination for Default) or otherwise the Sub-Contractor shall deliver to the Contractor any goods or materials the property in which has vested in the Contractor by virtue of sub-clause 16.5 and if he fails to do so the Contractor may enter any premises of the Sub-Contractor or of any sub-subcontractor and remove such goods and materials and recover the cost of doing so from the Sub-Contractor.Sub-subcontracts TC " REF _NN2305\r \h ?16.8Sub-subcontracts" \l 2 The Sub-Contractor shall incorporate provisions equivalent to those provided in this Clause 16 in every sub-subcontract in which provision is to be made for payment in respect of goods or materials before the same have been delivered to the Site.INSURANCES TC " REF _NN2306\r \h ?17INSURANCES" \l 1 Sub-Contractor to Insure TC " REF _NN2307\r \h ?17.1Sub-Contractor to Insure" \l 2 The Sub-Contractor shall effect insurance against such risks as are specified in the Appendix and in such sums and for the benefit of such persons as are specified therein and, unless otherwise so provided, shall maintain such insurance from the time that the Sub-Contractor first enters upon the Site for the purpose of executing the Sub-Contract Works until he has finally performed his obligations under Clause 10.5 ( Defects Correction).Insurance of Sub-Contract Works TC " REF _NN2308\r \h ?17.2Insurance of Sub-Contract Works" \l 2 The Contractor shall procure that the Employer maintains in force until such time as the Main Contract Works have been substantially completed or ceased to be at the Contractor’s risk under the Main Contract, the policy of insurance specified in the Appendix. In the event of the Sub-Contract Works, or any Sub-Contractor’s Equipment, Temporary Works, materials or other things belonging to the Sub-Contractor being destroyed or damaged during such period in such circumstances that a claim is established in respect thereof under the said policy, then the Sub-Contractor shall be paid the amount of such claim, or the amount of his loss, whichever is the less, and shall apply such sum in replacing or repairing that which was destroyed or damaged. Save as aforesaid, the Sub-Contract Works shall be at the risk of the Sub-Contractor until the Sub-Contract Works have been substantially completed, and without prejudice to the Sub-Contractor’s liability for defects in accordance with this Sub-Contract the Sub-Contractor shall make good all loss of or damage occurring to the Sub-Contract Works prior thereto at his own expense.Payments made to the Employer TC " REF _NN2309\r \h ?17.3Payments made to the Employer" \l 2 All claims made under the insurance referred to in sub-clause 17.2 shall be paid to the Employer. The Employer will pay all such monies due to the Contractor by instalments under certificates of the Employer’s Representative issued at the time of issue of interim certificates in accordance with the terms of the Main Contract. Following receipt of such monies, the Contractor will pay all such monies due to the Sub-Contractor by instalments under certificates issued at the time of issue of interim certificates in accordance with the terms of the Sub-Contractor. Any amounts relating to the Sub-Contract Works not insured or not recovered from insurers whether as excesses under the policy or otherwise shall be borne by the Contractor or the Sub-Contractor in accordance with their respective responsibilities under Clause 8 (Risk).Professional Indemnity Insurance for Design TC " REF _NN2310\r \h ?17.4Professional Indemnity Insurance for Design" \l 2 The Sub-Contractor shall take out and maintain professional indemnity insurance if required by and in accordance with the Appendix as follows:The insurance will cover any breach of professional duty or any fault error or omission in any advice instruction information design plan formula computer program or specification including (amongst other things), liability under this Sub-Contract in respect of defects or insufficiency in design, upon customary and usual terms and conditions prevailing for the time being in the insurance market, and with reputable insurers lawfully carrying on such insurance business in the United Kingdom in an amount not less than that stated in the Appendix for a period beginning with the date of this Sub-Contract and ending 6 years (12 years if the Sub-Contract Agreement is executed as a deed) after the issue of the Certificate of Substantial Completion for the whole of the Sub-Contract Works, provided always that such insurance is available at commercially reasonable rates.Any increased or additional premium required by insurers by reason of the Sub-Contractor’s claims, records or other matters particular to the Sub-Contractor shall be considered to be within commercially reasonable rates.The Sub-Contractor shall immediately inform the Contractor if such insurance ceases to be available at commercially reasonable rates in order that the Contractor and the Sub-Contractor can discuss the means of best protecting the respective positions of the Contractor and the Sub-Contractor in the absence of such insurance.The said terms and conditions shall not include any term or condition to the effect that the Sub-Contractor must discharge any liability before being entitled to recover from the insurers, or any other term or condition which might adversely affect the rights of any person to recover from the insurers pursuant to the Third Parties (Rights Against Insurers) Act 2010.The above obligations in respect of professional indemnity insurance shall continue notwithstanding termination of the Sub-Contract for any reason whatsoever, including (without limitation) breach by the Contractor.Evidence of Insurance TC " REF _NN2311\r \h ?17.5Evidence of Insurance" \l 2 Where by virtue of this Clause either party is required to effect and maintain insurance then at any time until such obligation has fully been performed, he shall, if so required by the other party produce satisfactory evidence of such insurance and in the event of his failing to do so, the other party may himself effect such insurance and recover the cost of so doing from the party in default. The terms of all such insurances shall be subject to the approval of the Contractor (which approval shall not be unreasonably withheld). The Sub-Contractor shall upon request produce to the Employer receipts for the payment of current insurance premiums. A summary of the insurance policies taken out and maintained by the Employer in respect of the Main Contract Works is included in Section 2 of the Project Insurance Manual in the Preliminaries and further details of the Employer’s insurance policies may be provided to the Sub-Contractor on request.Damage to Persons or Property TC " REF _NN2312\r \h ?17.6Damage to Persons or Property" \l 2 The Sub-Contractor shall except if and so far as the Sub-Contract provides otherwise and subject to the exceptions set out in sub-clause 17.7 indemnify and keep indemnified the Contractor against all losses and claims in respect of death of or injury to any person or loss of or damage to any property (other than the Sub-Contract Works) which may arise out of or in consequence of the construction of the Sub-Contract Works and the remedying of any defects in the Sub-Contract Works and against all claims demands proceedings damages costs charges and expenses whatsoever in respect of or in relation to the Sub-Contract Works.Exceptions TC " REF _NN2313\r \h ?17.7Exceptions" \l 2 The exceptions referred to in sub-clause 17.6 which are the responsibility of the Contractor are:damage to crops being on the Site (save in so far as possession has not been given to the Sub-Contractor);the use or occupation of land provided by the Employer for the purposes of the Sub-Contract (including consequent losses of crops) or interference whether temporary or permanent with any right of way light air or water or other easement or quasi-easement which are the unavoidable result of the construction of the Sub-Contract Works in accordance with the Sub-Contract;the right of the Employer to construct the Sub-Contract Works or any part of the Sub-Contract Works on over under in or through any land;damage which is the unavoidable result of the construction of the Sub-Contract Works in accordance with the Sub-Contract including any design for which the Sub-Contractor is not responsible under the Sub-Contract; anddeath of or injury to persons or loss of or damage to property resulting from any act neglect or breach of statutory duty done or committed by the Employer, the Contractor, their respective agents servants or other contractors (excluding the Sub-Contractor or his sub-subcontractors servants or agents) for or in respect of any claims demands proceedings damages costs charges and expenses in respect thereof or in relation thereto.Indemnity by Contractor TC " REF _NN2314\r \h ?17.8Indemnity by Contractor" \l 2 The Contractor shall subject to sub-clause 17.6 indemnify the Sub-Contractor against all claims demands proceedings damages costs charges and expenses in respect of the matters referred to in the exceptions set out in sub-clause 17.7.Shared Responsibility TC " REF _NN2315\r \h ?17.9Shared Responsibility" \l 2 The Sub-Contractor’s liability to indemnify the Contractor under sub-clause 17.6 shall be reduced in proportion to the extent that the act or neglect of the Employer or the Contractor, their respective agents servants or other contractors (excluding the Sub-Contractor or his sub-subcontractors servants or agents) contributed to the said death injury loss or damage.The Contractor’s liability to indemnify the Sub-Contractor in respect of a matter falling within sub-clause 17.7(e) shall be reduced in proportion to the extent that the act or neglect of the Sub-Contractor or his sub-subcontractors servants or agents contributed to the death injury loss or damage.Third Party Insurance TC " REF _NN2316\r \h ?17.10Third Party Insurance" \l 2 Other than as specifically stated herein, without prejudice to the Contractor’s obligations to indemnify the Employer under the Main Contract, the Employer shall take out and maintain:a Joint Names Policy against liabilities for death of or injury to any person (other than any person in the employment of the Employer, the Contractor or the Sub-Contractor where and to the extent that any such liabilities should reasonably be covered by any insurance maintained by the Contractor or the Sub-Contractor in compliance with the Employer’s Liability Compulsory Insurance Act 1969 and any statutory orders made thereunder or any amendment or re-enactment) or loss of or damage to any property (other than the Main Contract Works and materials and plant and equipment for incorporation therein or other property of the Employer, the Contractor or the Sub-Contractor) arising out of the performance of the Main Contract or this Sub-Contract, for a sum not less than that stated in the Appendix for any one occurrence or series of occurrences arising out of one event; anda policy or policies of insurance (or self-insurance arrangements) in respect of loss or damage to property of the Employer (other than the Main Contract Works and materials and plant and equipment for incorporation therein but including work executed after practical completion thereof) arising out of or in connection with the Main Contract Works and business interruption costs consequent upon such loss or damage, with a waiver of subrogation in favour of the Contractor and sub-contractors (including the Sub-Contractor). The Sub-Contractor’s liability under sub-clause 17.6 shall exclude loss or damage to such property of the Employer and business interruption costs consequent thereon, to the extent of the insurance (or self-insurance) provided for in this sub-clause 17.10(a)(ii) except for the first ?75,000 of each and every occurrence of such loss or damage.The Employer shall not be responsible for any amounts in excess of the limits of indemnity and sums insured or any retained liability as specified in the Appendix or Conditions of Contract or risks not insured or excluded by the terms, exceptions or conditions of such insurance policies.BONDS AND SECURITIES TC " REF _NN2317\r \h ?18BONDS AND SECURITIES" \l 1 Performance Security TC " REF _NN2318\r \h ?18.1Performance Security" \l 2 The Sub-Contractor shall within 28 days of the award of the Sub-Contract provide security for the proper performance of the Sub-Contract as specified and in the form stated in the Appendix, which shall not exceed 10% of the Sub-Contract Tender Total. The security shall be provided by a body approved by the Contractor (which approval shall not to be unreasonably withheld or delayed). The Sub-Contractor shall pay the cost of the security unless the Sub-Contract provides otherwise.If stated to be required in the Appendix the Sub-Contractor shall obtain and provide to the Contractor, forthwith upon entry into this Sub-Contract, a parent company guarantee in the form appended to the Sub-Contract Specific Conditions from the Sub-Contractor’s ultimate holding company. For these purposes “ultimate holding company” shall mean the parent company of the group of companies of which the Sub-Contractor is a member (as each of those terms is defined in section 170 Taxation of Chargeable Gains Act 1992).Where the Sub-Contractor is an Unincorporated Joint Venture, a parent company guarantee is required from the ultimate holding company of each of the members of the Unincorporated Joint Venture.Where the Sub-Contractor is an incorporated joint venture, a parent company guarantee is required from the ultimate holding company of each of the joint venture shareholders.Failure to Provide Security TC " REF _NN2319\r \h ?18.2Failure to Provide Security" \l 2 The Sub-Contractor’s compliance with the provisions of sub-clause 18.1 shall be a condition precedent to any obligation on the part of the Contractor to make any payment that might otherwise be due under this Sub-Contract, and the Sub-Contractor acknowledges that he has no entitlement either to receive payment or to exercise any rights in respect of non-payment arising under this Sub-Contract unless and until the Sub-Contractor has provided the security if so required under sub-clause 18.1.Advance Payment Security TC " REF _NN2320\r \h ?18.3Advance Payment Security " \l 2 The Sub-Contractor shall likewise provide such other security as shall be specified in the Appendix or otherwise agreed in respect of any advance payment.Dispute Resolution TC " REF _NN2321\r \h ?18.4Dispute Resolution" \l 2 For the purposes of the dispute resolution provisions in any such security:the Contractor shall be deemed to be a party to the security for the purpose of doing everything necessary to give effect to such provisions; andany agreement decision award or other determination touching or concerning the relevant date for the discharge of the security shall be without prejudice to the resolution or determination of any dispute between the Contractor and the Sub-Contractor under Clause 19 (Resolution of Disputes).RESOLUTION OF DISPUTES TC " REF _NN2322\r \h ?19RESOLUTION OF DISPUTES" \l 1 Dispute Avoidance TC " REF _NN2323\r \h ?19.1Dispute Avoidance" \l 2 As soon as the Contractor or Sub-Contractor becomes aware of any matter which if not resolved might become a dispute they shall so advise the other Party in writing with a copy to the Employer’s Representative.The Contractor and the Sub-Contractor shall meet at the earliest opportunity and no later than 7 days after such notification to try to resolve the matter. Either Party may invite the Employer’s Representative and any other relevant person to participate.If the matter is not resolved within a reasonable period of time the Parties shall define in writing those parts of the matter that remain unresolved.Without prejudice to the other provisions of this Clause 19, any claim submission issued by the Sub-Contractor shall be in the form and contain the information specified for claim submissions in the Preliminaries.Optional Conciliation or Mediation TC " REF _NN2324\r \h ?19.2Optional Conciliation or Mediation" \l 2 The Contractor or the Sub-Contractor may at any time by notice in writing seek the agreement of the other for any dispute between them to be referred to conciliation or mediation. Any settlement resulting from conciliation or mediation shall be binding when incorporated in a written agreement signed by both Parties.Adjudication TC " REF _NN2325\r \h ?19.3Adjudication" \l 2 The Contractor or the Sub-Contractor may at any time by notice in writing require any dispute between them to be referred to adjudication. The Adjudicator shall be appointed as provided in the Appendix and the adjudication shall be carried out in accordance with the adjudication procedure stated in the AppendixAdjudicator’s Decision Binding TC " REF _NN2326\r \h ?19.4Adjudicator’s Decision Binding" \l 2 The Adjudicator’s decision shall be binding on both Parties and may be enforced as provided by sub-clause 2.4. The decision shall cease to be binding if and when revised by a decision of the Courts or by agreement.Litigation TC " REF _NN2327\r \h ?19.5Litigation" \l 2 Subject to sub-clauses 19.1 to 19.4, any dispute or difference that arises between the Parties shall be referred to the High Court of England and Wales for resolution as business of the Technology and Construction Court.Related Disputes TC " REF _NN2328\r \h ?19.6Related Disputes" \l 2 If the Contractor considers that a dispute under the Main Contract is related to a dispute for which notice has been given under sub-clause 19.4 (herein called a related dispute) the Contractor may give notice to the Sub-Contractor requiring that the related dispute be determined by the same tribunal as the dispute under the Main Contract and the Sub-Contractor shall then be bound to provide such co-operation and assistance as the Contractor may require so that the related dispute is so determined and the Contractor and the Sub-Contractor shall be bound by the decision of that tribunal.BUILDING INFORMATION MODELLING TC " REF _NN2329\r \h ?20BUILDING INFORMATION MODELLING" \l 1 BIM Building Information Modelling TC " REF _NN2330\r \h ?20.1BIM Building Information Modelling" \l 2 The Sub-Contractor and the Contractor shall comply with their respective obligations set out in any BIM Protocol referred to in the Appendix. Any additional procedures or requirements which the Sub-Contractor is to adopt in support of or as part of the BIM Protocol and/or associated IT systems shall be set out in an Information Protocol. The Parties shall have the benefit of any rights granted to them in the BIM Protocol and of any limitations or exclusions of liability contained within it.MILESTONES TC " REF _NN2331\r \h ?21MILESTONES" \l 1 Milestone Sum TC " REF _NN2332\r \h ?21.1Milestone Sum " \l 2 Milestone Sum means a sum identified as such in the Sub-Contract and which is not subject to measurement.Entitlement to Payment TC " REF _NN2333\r \h ?21.2Entitlement to Payment " \l 2 In respect of each Milestone Sum the Sub-Contractor shall be entitled to payment only upon achievement of the criteria set out in the Sub-Contract Technical Workscope.Payment of Milestone TC " REF _NN2334\r \h ?21.3Payment of Milestone " \l 2 Provided that the Sub-Contractor has submitted a claim for payment in respect of a Milestone Sum as provided in sub-clause 11.6, the Contractor shall pay the Sub-Contractor, subject to deduction of retention in accordance with sub-clause 11.10:the amount allowed by the Contractor in accordance with sub- clause 11.7; andany other amounts as the Contractor may allow in respect of any other matter relating to the work within the Milestone Sum for which provision is made elsewhere in the Sub-Contract, less any amount previously certified in respect thereof.CONTRACTOR FURNISHED MATERIALS TC " REF _NN2335\r \h ?22CONTRACTOR FURNISHED MATERIALS" \l 1 Contractor Furnished Materials TC " REF _NN2336\r \h ?22.1Contractor Furnished Materials " \l 2 The Contractor shall make available at the Site to the Sub-Contractor all materials identified in the Preliminaries as Contractor Furnished Materials (CFM) and the Sub-Contractor shall be responsible for incorporation of CFM into the Works.Conditions Applicable to CFM TC " REF _NN2337\r \h ?22.2Conditions Applicable to CFM " \l 2 The following conditions shall apply in the absence of other specific provision in the Preliminaries or other agreement in writing: The Contractor shall make the CFM available to the Sub-Contractor at the Site on or before the dates or the expiry of the periods for the provision of the same stated in the Preliminaries;Upon completion of delivery such CFM shall stand at the risk of the Sub-Contractor;Immediately upon the same being made available to him the Sub-Contractor shall carry out a detailed inspection of such CGM and shall use his reasonable endeavours to advise the Contractor within 24 hours and no later than 7 days or before being taken into operational use (whichever is the sooner) if any such CGM are damaged or defective;The Contractor shall immediately then secure the repair, replacement and/or reissue of such CFM;If the Sub-Contractor does not so notify, the Sub-Contractor shall not be entitled subsequently to claim that any such CFM are damaged or defective to the extent that the same could have been identified by detailed inspection within such period; andThe Sub-Contractor shall dispose of any packaging and/or waste arising. COMPLIANCE WITH LAW TC " REF _NN2338\r \h ?23COMPLIANCE WITH LAW " \l 1 Giving of notices and associated fees TC " REF _NN2339\r \h ?23.1Giving of notices and associated fees " \l 2 Except where otherwise provided in this Sub-Contract the Sub-Contractor shall give all notices and pay all fees required to be given or paid by any applicable law, regulation or bye-law of any local or other statutory authority in relation to the design, construction and completion of the Sub-Contract Works and by the rules and regulations of all public bodies and companies whose property or rights are or may be affected in any way by the Sub-Contract Works.Payment of fees TC " REF _NN2340\r \h ?23.2Payment of fees" \l 2 The Contractor shall repay or allow to the Sub-Contractor all such sums as certified by the Contractor to have been properly payable and paid by the Sub-Contractor in respect of such fees and also all rates and taxes paid by the Sub-Contractor in respect of the Site or any part of it or anything constructed or erected on it or on any part of it or any temporary structures situated elsewhere but used exclusively for the purposes of the Sub-Contract Works or any structures used temporarily and exclusively for the purposes of the Sub-Contract Works.Sub-Contractor to conform with Statutes etc. TC " REF _NN2341\r \h ?23.3Sub-Contractor to conform with Statutes etc." \l 2 The Sub-Contractor shall ascertain and conform in all respects with the provisions of applicable law, regulations and bye-laws of any local or other statutory authority which may be applicable to the Sub-Contract Works and with such rules and regulations of public bodies and companies as aforesaid and shall keep the Contractor indemnified against all penalties and liability of every kind for breach of any applicable law, regulation or bye-law. Provided always that:the Sub-Contractor shall not be required to indemnify the Contractor against the consequences of any such breach which is the unavoidable result of complying with the Sub-Contract Technical Workscope or instructions of the Contractor;the Sub-Contractor shall not be responsible for obtaining any planning permission which may be necessary in respect of the Permanent Works in their final position or of any Temporary Works designed by the Contractor in their designated position on Site. The Contractor warrants that all such permissions have been or will in due time be obtained. Changes in law TC " REF _NN2342\r \h ?23.4Changes in law" \l 2 If there is a change in applicable law, regulation or bye-law applicable to the Sub-Contract Works after the date of this Sub-Contract which necessitates a variation to the Sub-Contract Works, such variation shall be deemed to have been carried out under an instruction for the purposes of sub-clause 8.5(e) (Contractor’s Risks).COLLATERAL WARRANTIES TC " REF _NN2343\r \h ?24COLLATERAL WARRANTIES" \l 1 Collateral Warranties TC " REF _NN2344\r \h ?24.1Collateral Warranties" \l 2 Where stated to be required in the Appendix, the Sub-Contractor shall, within 7 working days of the Contractor’s request so to do, execute in favour of the Employer and/or any person or persons nominated by the Contractor who have entered into or intend to enter into an agreement for the provision of finance in connection with the Sub-Contract Works and/or for the purchase of an interest, whether leasehold or freehold, in the land upon which the Sub-Contract Works or any part of them are situated a deed in the form appended to the Sub-Contract Specific Conditions.CONFIDENTIALITY AND COMPTROLLER AND AUDITOR GENERAL TC " REF _NN2345\r \h ?25CONFIDENTIALITY AND COMPTROLLER AND AUDITOR GENERAL" \l 1 Confidentiality and Comptroller and Auditor General TC " REF _NN2346\r \h ?25.1Confidentiality and Comptroller and Auditor General" \l 2 All information obtained by the Parties in the course or conduct of the Sub-Contract shall be held confidential and shall not be divulged by the Parties to any third party save to the extent necessary to effect the execution of this Sub-Contract and then only on the basis that the recipient of such information shall be bound by similar confidentiality obligations to those undertaken by the Parties.Obligation does not apply TC " REF _NN2347\r \h ?25.2Obligation does not apply" \l 2 Provided however that this obligation shall not apply to information which:is or shall become part of the public domain otherwise than in consequence of a breach by the Parties of their obligations under this Clause 25;was in the Parties possession prior to award of this Sub-Contract and was not notified to the other Party as being confidential or which would not reasonably be regarded as confidential by its very nature;was received from third parties having to the best of the relevant Party’s knowledge the right to disclose such information; is required to be disclosed pursuant to a court order or statutory requirement provided that the Sub-Contractor shall to the extent permitted by the relevant legal or statutory requirement: (i) provide prompt written notice of any such requirement before such disclosure is made and (ii) take all reasonable action to avoid and limit such disclosure as may be requested by the other Party; andthe Sub-Contractor is expressly required to disclose to the Employer under the terms of this Sub-Contract.Sub-subcontractors TC " REF _NN2348\r \h ?25.3Sub-subcontractors" \l 2 The Sub-Contractor shall ensure that the provisions of this Clause 25 are incorporated in any sub-subcontracts or supply orders and that the employees, agents or representatives of all or any of the sub-subcontractors or suppliers comply with the same.Announcements TC " REF _NN2349\r \h ?25.4Announcements" \l 2 The Contractor shall not make any announcement in relation to this contract or its subject matter without the prior written approval of the Employer except as required by law or by any legal or regulatory authority.Permitted disclosures by Contractor TC " REF _NN2350\r \h ?25.5Permitted disclosures by Contractor" \l 2 Nothing in this Sub-Contract shall prevent the Contractor disclosing the Sub-Contractor’s Confidential Information:to the Employer for the purpose of onward transmission to the Crown, any other Contracting Authority or any government department. All government departments receiving such Confidential Information shall be entitled to further disclose the Confidential Information to other government departments on the basis that the information is confidential and is not disclosed to a third party which is not part of the Crown, any Contracting Authority or any government department;to the Employer for the purpose of the examination and certification of the Employer’s accounts; to the Employer for any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Employer has used its resources; orfor the purpose of using the Sub-Contractor’s Intellectual Property in accordance with the licence granted to the Contractor under sub-clause 4.10(c) and/or for the purposes of granting sub-licences to other persons in relation to the same.Access TC " REF _NN2351\r \h ?25.6Access" \l 2 The Sub-Contractor shall and shall procure that its sub-subcontractors shall provide such access to its or their books and records as may be required from time to time by the Comptroller and Auditor General of the National Audit Office for the purpose of their audit and examination of the accounts of the Employer and its group companies, the Department for Transport and the consolidated set of financial statements for the UK public sector.Survival TC " REF _NN2352\r \h ?25.7Survival" \l 2 This Clause 25 shall remain binding on the Parties notwithstanding the completion or termination of this Sub-Contract for any reason.TRACK POSSESSIONS AND ISOLATIONS TC " REF _NN2353\r \h ?26TRACK POSSESSIONS AND ISOLATIONS" \l 1 Track possessions and Isolations TC " REF _NN2354\r \h ?26.1Track possessions and Isolations" \l 2 After the programme has been accepted by the Contractor and consent has been given by him to proceed with carrying out the Sub-Contract Works, the Sub-Contractor shall in all cases submit written notice to the Contractor confirming any speed restrictions, track possession or isolation requirements in accordance with the Employer’s current planning procedures (or as otherwise laid down in this Sub-Contract) in advance of the proposed commencement of work on or near the railway lines.Cancellation and alteration on short notice TC " REF _NN2355\r \h ?26.2Cancellation and alteration on short notice" \l 2 The Contractor reserves the right to cancel or alter the dates and times of the agreed speed restrictions, track possessions or isolations at short notice if this proves necessary because of any emergency affecting the safe or uninterrupted running of rail traffic, but in such an event alternative arrangements will be made as soon as the Employer’s programme permits. Subject to sub-clause 8.6 (Sub-Contractor’s Entitlement) such cancellation or alteration shall be a Contractor’s Risk for the purposes of sub-clause 8.5 (Contractor’s Risks).Adequate arrangements TC " REF _NN2356\r \h ?26.3Adequate arrangements" \l 2 Where any part of the Sub-Contract Works has to be carried out during an agreed period of a speed restriction, track possession or isolation, the Sub-Contractor shall make adequate arrangements to ensure that such part can commence as programmed, and can be completed as early as possible, and in any case within that period. The arrangements shall include the provision of sufficient and suitable Sub-Contractor’s Equipment (including, where practicable, standby equipment) and sufficient labour.Cancellation and alteration due to failure to make adequate arrangements TC " REF _NN2357\r \h ?26.4Cancellation and alteration due to failure to make adequate arrangements" \l 2 Prior to the commencement of any speed restriction, track possession or isolation, if the Contractor is of the opinion that the Sub-Contractor has failed to comply with the requirements of sub-clause 26.3, he may at his discretion cancel the speed restriction, track possession or isolation, or reduce the extent of the work that the Sub-Contractor may carry out during such speed restriction, track possession or isolation, and shall notify the Sub-Contractor accordingly.Sub-Contractor unable to complete TC " REF _NN2358\r \h ?26.5Sub-Contractor unable to complete" \l 2 If, during a speed restriction, track possession or isolation, the Contractor is of the opinion that the Sub-Contractor will be unable to complete the planned work (or any revision of them proposed by the Sub-Contractor) to his satisfaction so as to permit the termination of the speed restriction, track possession or isolation at the time agreed, then the Contractor may instruct the Sub-Contractor to reduce the extent of or vary the dates and times of the work to be carried out during such speed restriction, track possession or isolation. Such reduction or variation shall not entitle the Sub-Contractor to any additional payment or extension of time for completion if and to the extent that the Sub-Contractor’s inability to complete the planned work was due to a breach by the Sub-Contractor of the requirements of this Sub-Contract.Acknowledgement TC " REF _NN2359\r \h ?26.6Acknowledgement" \l 2 The Sub-Contractor acknowledges that the Contractor may incur additional costs as a result of the requirement to extend any speed restriction, track possession or isolation beyond the period agreed in accordance with sub-clause 26.1 and/or to use and/or obtain additional speed restrictions, track possessions or isolations in accordance with sub-clauses 26.4 and 26.5, and that subject to sub-clause?37.3 (Railway Costs) the Contractor shall be entitled to contra-charge the Sub-Contractor in respect of such costs to the extent they are due to a breach by the Sub-Contractor of the requirements of this Sub-Contract.SET-OFF TC " REF _NN2360\r \h ?27SET-OFF" \l 1 Set-off TC " REF _NN2361\r \h ?27.1Set-off" \l 2 Without prejudice to the Contractor’s other rights and remedies, the Contractor may deduct from any sums due to the Sub-Contractor under this Sub-Contract an amount equivalent to any sum due from the Sub-Contractor to the Contractor (whether such sums are due to the Contractor under this Sub-Contract or under any other agreement between the Sub-Contractor and the Contractor) and may also deduct any sum of money that is recoverable from or payable by the Sub-Contractor under this Sub-Contract from any sum then due or which at any time thereafter may become due under any other agreement between the Sub-Contractor and the Contractor which provides for disputes to be resolved by adjudication.CLAIMS HANDLING PROVISIONS TC " REF _NN2362\r \h ?28CLAIMS HANDLING PROVISIONS" \l 1 Definitions TC " REF _NN2363\r \h ?28.1Definitions" \l 2 In these provisions, “Claims Allocation and Handling Agreement” means the agreement so entitled dated 1 March 2019 and made between the parties whose names are contained in Schedule 6 of that agreement (the “Industry Parties”) and Railway Claims Limited (the “Agency”) (as amended from time to time in accordance with its terms) and terms and expressions defined in the Claims Allocation and Handling Agreement shall have the same meaning in this Sub-Contract, and the Contractor shall supply the Sub-Contractor with a copy of each amendment to it, as and when it is made.Claims handling provisions TC " REF _NN2364\r \h ?28.2Claims handling provisions" \l 2 (a)These provisions shall apply:if this Sub-Contract is in connection with the maintenance or operation of the Employer’s Railway Assets; andin respect of the period (if any) while the Sub-Contractor is an Independent Contractor; andwhere a claim, which arises out of or is connected with this Sub-Contract, is made by a third party who does not have a contract with the Sub-Contractor:against the Employer or the Agency, which may result in a claim being made against the Sub-Contractor; oragainst the Sub-Contractor, which may result in a claim being made against the Employer or the Agency (whether by the Sub-Contractor or otherwise).(b)In relation to clause 17 of the Claims Allocation and Handling Agreement this Sub-Contract does permit the recovery by the Employer of loss of revenue or other consequential losses that are direct and foreseeable.(c)The Sub-Contractor irrevocably appoints the Employer as its agent to authorise the Agency (in consultation, where necessary, with Industry Parties and their Insurers) to defend such claim on behalf of the Sub-Contractor and Industry Parties, in accordance with the Claims Allocation and Handling Agreement. In relation to such a claim, the Sub-Contractor shall be bound by the terms of that Agreement as if the Sub-Contractor were a party to it.(d)Where such a claim results in a payment to the third party, the Sub-Contractor agrees that liability for such payment and the costs of handling and defending the claim, shall be allocated in accordance with the Claims Allocation and Handling Agreement. The Sub-Contractor agrees to participate in the procedure for allocating liability set out in the Dispute Resolution Rules; and to be bound by the result as if the Sub-Contractor were party to those Rules; and such matters shall not be referable to adjudication or the Courts in accordance with this Sub-Contract.(e)Provided that sub-clauses 28.2(c) and 28.2(d) shall not apply to any claim in respect of which the Sub-Contractor admits that he is liable, and that no Industry Party is liable. In such a case, the Sub-Contractor himself may defend the claim.(f)Without prejudice, and in addition, to any rights and remedies of the Employer, the Sub-Contractor shall indemnify the Employer against all losses, claims, liability, costs and expenses which are borne by the Employer under the Claims Allocation and Handling Agreement and which arise out of either a breach of contract by the Sub-Contractor or a breach of duty of care owed to a third party which is the subject of a claim under the Claims Allocation and Handling PLIANCE TC " REF _NN2365\r \h ?29COMPLIANCE" \l 1 General TC " REF _NN2366\r \h ?29.1General" \l 2 The Sub-Contractor shall comply with all applicable anti-bribery, anti-corruption and anti-slavery legislation including the Bribery Act 2010 and Modern Slavery Act 2015.The Sub-Contractor shall comply with the Employer’s Code of Business Ethics and Code of Conduct, corporate hospitality, conflicts of interests and speak out (whistleblowing) policies and any updates to them.Bribery TC " REF _NN2367\r \h ?29.2Bribery" \l 2 The Sub-Contractor shall maintain and enforce its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with all applicable anti-bribery and anti-corruption legislation. Adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of the Act).The Sub-Contractor shall use reasonable endeavours to ensure that all persons associated with the Sub-Contractor (as defined by section 8 of the Bribery Act 2010) including any sub-subcontractors and suppliers comply with this Clause 29.Modern Slavery Act TC " REF _NN2368\r \h ?29.3Modern Slavery Act" \l 2 The Sub-Contractor shall implement due diligence procedures for its own suppliers, sub-subcontractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains.The Sub-Contractor shall use reasonable endeavours not to purchase any raw materials, resources or products from any country that has been sourced from producers or manufacturers using forced labour in its operations or practice.Remedies TC " REF _NN2369\r \h ?29.4Remedies" \l 2 Any breach of this Clause 29 shall be deemed a fundamental breach under this Sub-Contract.CORPORATE TAX TC " REF _NN2370\r \h ?30CORPORATE TAX" \l 1 Corporate Tax TC " REF _NN2371\r \h ?30.1Corporate Tax" \l 2 The Sub-Contractor shall keep (and shall procure that its sub-subcontractors keep) records of all expenditure, costs and other outgoings incurred in the performance of its obligations under this Sub-Contract, to enable, validate and support claims and compliance requirements made by the Contractor and/or the Employer under UK tax legislation with particular reference, but not limited to, reliefs provided under the Capital Allowances Act 2001 (“CAA2001”). The Sub-Contractor shall provide (and shall procure that any sub-subcontractors provide) a breakdown of costs at a sufficiently granular level to enable identification of costs attributable to assets qualifying for tax relief under CAA2001.The Sub-Contractor shall provide (and shall procure that its sub-subcontractors provide) such records in the form that the Contractor may request and such other documentation as they may have in their possession for the purposes set out in sub-clause 30.1(a) above.FREEDOM OF INFORMATION TC " REF _NN2372\r \h ?31FREEDOM OF INFORMATION" \l 1 Freedom of Information TC " REF _NN2373\r \h ?31.1Freedom of Information" \l 2 The Sub-Contractor acknowledges that the Contractor may be required by the Employer to respond to requests for information relating to the subject matter of this Sub-Contract under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004 (collectively, the “Information Acts”).The Sub-Contractor shall (and shall procure that its sub-subcontractors shall):provide all necessary assistance and cooperation as reasonably requested by the Contractor to enable the Employer to comply with its obligations under the Information Acts;transfer to the Contractor all requests for information relating to this Sub-Contract that it receives as soon as practicable and in any event within one (1) Working Days of receipt;provide the Contractor with a copy of all information belonging to the Contractor and/or the Employer requested in the request for information which is in its possession or control in the form that the Contractor requires within four (4) Working Days (or such other period as the Contractor may reasonably specify) of the Contractor requesting such information; andnot respond directly to a request for information unless authorised in writing to do so by the Contractor.The Sub-Contractor acknowledges that the Contractor may be required by the Employer under the Information Acts to disclose information (including Confidential Information) without consulting or obtaining consent from the Sub-Contractor.The Contractor shall take reasonable steps to notify the Contractor of a request for Confidential Information (in accordance with the Secretary of State’s section 45 Code of Practice on the Discharge of the Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000) to the extent that it is permissible and reasonably practical for it to do so and shall consider any reasonable and timely representations made by the Sub-Contractor regarding the application of exemptions to the requested information.Notwithstanding any other provision in this Sub-Contract, the Contractor shall be responsible for determining in its absolute discretion whether any Confidential Information and/or any other information is exempt from disclosure in accordance with the Information RMATION SECURITY TC " REF _NN2374\r \h ?32INFORMATION SECURITY" \l 1 Information Security TC " REF _NN2375\r \h ?32.1Information Security" \l 2 The Sub-Contractor shall comply with the Employer’s Security Principles for Supplier Selection and Management Standard when stated as being applicable in the Appendix.EQUALITY AND DIVERSITY TC " REF _NN2376\r \h ?33EQUALITY AND DIVERSITY" \l 1 Equality and Diversity TC " REF _NN2377\r \h ?33.1Equality and Diversity" \l 2 The Sub-Contractor shall perform its obligations under this Sub-Contract in accordance with:all applicable equality law (whether in relation to age, disability, gender reassignment, marriage or civil partnership status, pregnancy or maternity, race, religion or belief, sex or sexual orientation (each a “Relevant Protected Characteristic”) or otherwise);the Employer’s equality, diversity and inclusion policy as published by the Employer from time to time; andany other requirements and instructions which the Contractor reasonably imposes in connection with any equality obligations imposed on the Contractor at any time under applicable equality law.The Sub-Contractor shall take all reasonable steps to secure the observance of sub-clause?33.1(a) above by its employees, agents, representatives and sub-subcontractors.The Sub-Contractor acknowledges that the Employer is under a duty under section 149 of the Equality Act 2010 to have due regard to the need to eliminate unlawful discrimination (on the grounds of a Relevant Protected Characteristic); to advance equality of opportunity, and to foster good relations, between persons who share a Relevant Protected Characteristic and persons who do not share it. In performing its obligations under this Sub-Contract, the Sub-Contractor shall assist and co-operate with the Contractor where possible so as to enable the Employer to satisfy this duty.REAL LIVING WAGE TC " REF _NN2378\r \h ?34REAL LIVING WAGE" \l 1 Real Living Wage TC " REF _NN2379\r \h ?34.1Real Living Wage" \l 2 The Sub-Contractor shall and shall also use reasonable endeavours to procure that its relevant sub-subcontractors (if any) shall:ensure that none of its workers or its subcontractor’s workers engaged in the performance of this Sub-Contract in London and the rest of the UK and who would also satisfy the eligibility criteria set by the Living Wage Foundation (or any replacement thereof) is paid an hourly wage (or equivalent of an hourly wage) less than the Real Living Wage; andco-operate and provide all reasonable assistance to the Contractor in monitoring the effect of the Real Living Wage.If the Real Living Wage increases during the term of this Sub-Contract, the Sub-Contractor shall not be entitled to adjust the Sub-Contract Price and the Parties agree and acknowledge that any increases in the Real Living Wage anticipated during the term of this Sub-Contract have been factored into the Sub-Contract Price.Any failure by the Sub-Contractor to comply with the provisions of sub-clause 34.1(a) shall be treated as a fundamental breach under this Contract.PROTECTION OF PERSONAL DATA TC " REF _NN2380\r \h ?35PROTECTION OF PERSONAL DATA" \l 1 Definitions TC " REF _NN2381\r \h ?35.1Definitions" \l 2 Unless the context otherwise requires, for the purpose of this Clause:Permitted Purpose means, with respect to a Party, the purposes of: (i) carrying out its obligations under this Sub-Contract; (ii) exercising its rights under this Sub-Contract; and (iii) complying with its obligations under applicable law (including Data Protection Legislation);Personal Data means the personal data that is processed by a Party pursuant to or in connection with this Sub-Contract; Security Incident means: (a) the unlawful or unauthorised processing of Personal Data; or (b) any security incident affecting the Personal Data (including (without limitation) a personal data breach as defined in the Data Protection Legislation); andthe terms controller, processor, processing/process, personal data and data subject shall be interpreted and construed by reference to Data Protection Legislation.Independent Data Controllers TC " REF _NN2382\r \h ?35.2Independent Data Controllers" \l 2 (a)The Parties agree that, for the purposes of Data Protection Legislation, each Party (to the extent it processes Personal Data) processes Personal Data as an independent data controller in its own right. Nothing in this Sub-Contract is intended to construe either Party as the data processor of the other Party or as joint data controllers with one another with respect to Personal Data. (b)Each Party shall:comply with its obligations under Data Protection Legislation;be responsible for dealing with and responding to data subject requests, enquiries or complaints (including any request by a data subject to exercise their rights under Data Protection Legislation) it receives, unless otherwise agreed between the Parties; andpromptly notify the other Party in writing of each Security Incident of which it becomes aware relating to the Personal Data to the extent the Security Incident is likely to affect the other Party.(c)Each Party warrants that it is not subject to any restriction which would prevent or restrict it from disclosing or transferring Personal Data to the other Party in accordance with the terms of this Sub-Contract.Without prejudice to sub-clause 35.2(b)(i), each Party (the Disclosing Party) agrees that if it provides Personal Data to the other Party (the Receiving Party), it shall ensure that it has provided all necessary information to, and obtained all necessary consents from, the data subjects of the Personal Data, in each case to enable the Disclosing Party to disclose the Personal Data to the Receiving Party and for the Receiving Party to use that Personal Data for the Permitted Purposes, in each case in accordance with Data Protection Legislation.In relation to the Personal Data it receives from the Disclosing Party, each Party shall:at all times process the Personal Data in a manner that ensures appropriate security of the Personal Data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical and organisational measures; andensure that, at a minimum, the measures required under sub-clause 35.2(e)(i) meet the standard required by Data Protection Legislation.INTERMEDIARIES LEGISLATION (IR35) TC " REF _NN2383\r \h ?36INTERMEDIARIES LEGISLATION (IR35)" \l 1 Engagement of Off-Payroll service providers through the Contractor TC " REF _NN2384\r \h ?36.1Engagement of Off-Payroll service providers through the Contractor" \l 2 If stated in the Appendix that the works provided through this Sub-Contract are assessed by the Contractor to fall under the Intermediaries Legislation then:The Sub-Contractor shall comply with the Intermediaries Legislation and all reasonable instructions and requests for information from the Contractor in respect thereof.The Sub-Contractor shall advise the Contractor of any relevant changes in the status of Sub-Contractor Personnel.The Sub-Contractor shall supply all the information required, and to any specified time, to the Contractor for the Employer to report to the Department for Transport and HM Treasury as to compliance with the Intermediaries Legislation including the number of workers affected.The Sub-Contractor shall be liable for and shall indemnify the Contractor against all and any loss, damage, cost, expense, liability, claims and proceedings whatsoever in respect of a failure of the Sub-Contractor to comply with this Clause 36.The Contractor shall provide all reasonably requested information within a reasonable timescale to support the Sub-Contractor in its compliance with the Intermediaries Legislation.Failure by the Sub-Contractor to comply with this Clause 36 shall be deemed to be a fundamental breach of this Contract.LIMITS OF LIABILITY TC " REF _NN2385\r \h ?37LIMITS OF LIABILITY" \l 1 Aggregate Liability Cap TC " REF _NN2386\r \h ?37.1Aggregate Liability Cap" \l 2 Subject to sub-clause 37.2, the aggregate limit of liability of the Sub-Contractor under this Sub-Contract (whether arising in contract, tort (including negligence) or otherwise at law) shall be the amount stated in the Appendix (the “Aggregate Liability Cap”). Exclusions from Limits of Liability TC " REF _NN2387\r \h ?37.2Exclusions from Limits of Liability" \l 2 No limit of liability in this Sub-Contract shall apply to:any liability in respect of death or personal injury resulting from a negligent act or omission or breach of statutory duty by the Sub-Contractor or any person for whom the Sub-Contractor is responsible;any losses directly caused by the fraud of the Sub-Contractor;any liability of the Sub-Contractor under:sub-clause 4.10 (Copyright);Clause 25 (Confidentiality and Comptroller and Auditor General);Clause 35 (Protection of Personal Data); andany liability in respect of which the Sub-Contractor is entitled to recovery (or would be entitled to recovery but for its own default) under the terms of insurances required to be maintained in accordance with this Contract which shall be subject to the limit of liability in sub-clause 37.4.Railway Costs TC " REF _NN2388\r \h ?37.3Railway Costs " \l 2 For the purposes of this sub-clause 37.3:“Track Access Agreement” means any agreement (excluding Freight Access Agreements) entered into between the Employer and any other party and incorporating the Network Code.“Freight Access Agreement” means any agreement (excluding Track Access Agreements) entered into between the Employer and any other party for non-passenger services and incorporating the Network Code.“Network Code” means the document entitled “Network Code” dated 12 July 2017, as amended and modified from time to time.Subject to sub-clause 37.2 (Exclusions from Limits of Liability), the liability of the Sub- Contractor under this Sub-Contract to compensate the Contractor in respect of any sums payable by the Contractor to the Employer for which the Employer is liable pursuant to Schedules 4 and 8 of any Track Access Agreement or the equivalent provisions of any Freight Access Agreement (“Railway Costs”) whether in contract, tort, delict or otherwise shall not exceed in aggregate the sum stated in the Appendix (“Railway Costs Cap”).The Railway Costs Cap is a sub-cap within the Aggregate Liability Cap.Without prejudice to sub-clause 37.3(b), the Railway Costs Cap applies to any liability for Railway Costs under sub-clauses 6.6(a)(i) (Interference with Traffic and Adjoining Properties), 26 (Track Possessions and Isolations) and (where applicable) 37.5 (Post Implementation Asset Failures) and (where applicable) to MTBF liquidated damages payable under sub-clause 37.6 (MTBF Liquidated Damages).Any Liquidated Damages for which the Sub-Contractor is liable in accordance with sub-clauses 10.6 and 10.7 (Liquidated Damages) shall not be subject to the Railway Costs Cap but are subject to a separate sub-cap within the Aggregate Liability Cap in accordance with sub-clause 10.8 (Limit of Liquidated Damages).Insured Losses TC " REF _NN2389\r \h ?37.4Insured Losses" \l 2 The aggregate limit of liability of the Sub-Contractor under this Sub-Contract (whether arising in contract, tort (including negligence) or otherwise at law) in respect of which the Sub-Contractor is entitled to recovery (or would be entitled to recovery but for its own default) under the terms of insurances required to be maintained in accordance with this Sub-Contract shall be limited to the minimum amount of the relevant insurance required to be maintained in accordance with the terms of this Sub-Contract.In respect of professional indemnity insurance maintained in accordance with sub-clause 17.4, for the purposes of the limit of liability referred to in sub-clause 37.4(a) only, the minimum amount of professional indemnity insurance will be treated as an aggregate sum notwithstanding that such insurance may be required by this Sub-Contract to be maintained on an any one claim or similar basis.Post Implementation Asset Failures TC " REF _NN2390\r \h ?37.5Post Implementation Asset Failures" \l 2 This sub-clause 37.5 shall apply where stated in the Appendix.For the purposes of this sub-clause 37.5, the following words and expressions shall have the following meanings assigned to them:“Possession Works” means Sub-Contract Works the subject of any speed restriction, track possession or isolation in accordance with this Sub-Contract;“Post Implementation Asset Failure” means a defect in Possession Works due to a breach by the Sub-Contractor of the requirements of this Sub-Contract which causes an unplanned interruption in the use of track or station areas or other railway infrastructure; and“Post Implementation Period” means a period commencing on the date on which the relevant Possession Works are returned or entered, for the first time, into service in accordance with this Sub-Contract and ending on the date 13 weeks from such date.Subject to sub-clause 37.2 (Exclusions from Limits of Liability) and without prejudice to any liability of the Sub-Contractor for Railway Costs under sub-clause 6.6(a) (Interference with Traffic and Adjoining Properties) and sub-clause 26 (Track Possessions and Isolations) and (where applicable) to MTBF liquidated damages payable under sub-clause 37.6 (MTBF Liquidated Damages):the Sub-Contractor’s liability for Railway Costs due to a Post Implementation Asset Failure shall be limited to Railway Costs incurred by the Contractor as a result of a Post Implementation Asset Failure which occurs during the Post Implementation Period; andthe liability of the Sub-Contractor to Railway Costs under sub-clause 37.5(c)(i) shall be subject to the Railway Costs Cap in accordance with sub-clause 37.3 (Railway Costs).MTBF Liquidated Damages TC " REF _NN2391\r \h ?37.6MTBF Liquidated Damages" \l 2 This sub-clause 37.6 shall apply where stated in the Appendix.The Sub-Contractor shall pay liquidated damages at the rate detailed in the Appendix for any failure to achieve the reliability target set out in the Sub-Contract Technical Workscope (referred to as the Mean Time Between Failures (“MTBF”)) during the Defects Correction Period. Such MTBF liquidated damages (if any) shall be assessed at the end of the Defect Correction Period and the relevant rate applied depending upon the number of failures arising in the period in excess of the number of failures predicted by the MTBF which are caused by defects in the Sub-Contract Works attributable to the Sub-Contractor. Subject to sub-clause 37.2 (Exclusions from Limits of Liability), the liability of the Sub-Contractor to MTBF liquidated damages under this sub-clause 37.6 shall be subject to the Railway Costs Cap in accordance with sub-clause 37.3 (Railway Costs).Indirect and Consequential Losses TC " REF _NN2392\r \h ?37.7Indirect and Consequential Losses" \l 2 Subject to sub-clause 28.2 and the exclusions in sub-clause 37.2, in no event shall the Sub-Contractor be liable to the Contractor, including by way of indemnity, for any: loss of profits;loss of business or production; loss of revenue;loss of or damage to goodwill;loss of savings (whether anticipated or otherwise); and/orany indirect, special or consequential loss or damage,provided that nothing in this clause 37.7 excludes the Sub-Contractor’s liability for Railway Costs (which are subject to the Railway Costs Cap in accordance with clause 37.3).Mitigation TC " REF _NN2393\r \h ?37.8Mitigation" \l 2 Each Party shall use all reasonable endeavours to mitigate any loss or damage suffered arising out of or in connection with this Sub-Contract, including any Losses for which the relevant Party is entitled to bring a claim against the other Party pursuant to the indemnities in this Sub-Contract.PROJECT BANK ACCOUNT TC " REF _NN2394\r \h ?38PROJECT BANK ACCOUNT" \l 1 Subject to sub-clause 38.7, this Clause 38 shall apply where stated in the Appendix.Project Bank Account – definitions TC " REF _NN2395\r \h ?38.1Project Bank Account – definitions" \l 2 For the purposes of this Clause 38, the following words and expressions shall have the following meanings assigned to them:“Bank Instruction” means a document instructing the Project Bank to make payments to the Contractor, the Sub-Contractor and PBA Sub-Subcontractors.“Joining Deed” means an agreement in the form appended to the Sub-Contract Specific Conditions under which the Sub-Contractor and the PBA Sub-Subcontractors join the Trust Deed.“PBA Sub-Subcontractors” means the sub-subcontractors stated in the Appendix and other sub-subcontractors who have signed Joining Deed. “Project Bank” means the bank identified in the Appendix.“Project Bank Account” means the account used to receive payments from the Employer and the Contractor and to make payments to the Contractor, the Sub-Contractor and PBA Sub-Subcontractors.“Trust Deed” means an agreement in the form appended to the Sub-Contract Specific Conditions which contains provision for administering the Project Bank Account.PBA Sub-Subcontractors TC " REF _NN2396\r \h ?38.2PBA Sub-Subcontractors" \l 2 The Sub-Contractor shall include in its contracts with PBA Sub-Subcontractors the arrangements in this Sub-Contract for the operation of the Project Bank Account and signature of Joining Deeds. The Sub-Contractor shall inform the PBA Sub-Subcontractors of the details of the Project Bank Account and the arrangements for payment of amounts due under their sub-subcontracts.The Sub-Contractor shall submit proposals for adding a sub-subcontractor to the PBA Sub-Subcontractors to the Contractor for acceptance. The Contractor may reject the addition of the sub-subcontractor where such addition does not comply with the Sub-Contract Technical Workscope. The Employer, the Contractor, the Sub-Contractor and the PBA Sub-Subcontractor shall sign the Joining Deed after acceptance.Payments TC " REF _NN2397\r \h ?38.3Payments" \l 2 The Sub-Contractor shall show in the application for payment the amounts due to PBA Sub-Subcontractors in accordance with their sub-subcontracts.The Contractor shall prepare the Bank Instruction, setting out the sums due to PBA Sub-Subcontractors as assessed by the Contractor and to the Sub-Contractor for the balance of the payment due under this Sub-Contract. The Contractor shall notify the Sub-Contractor of the sums due to the Sub-Contractor and the PBA Sub-Subcontractors stated in the Bank Instruction.The Sub-Contractor and PBA Sub-Subcontractors shall receive payment from the Project Bank Account of the sums set out in the Bank Instruction as soon as practicable after the Project Bank Account receives payment.Any payment which is due from the Sub-Contractor to the Contractor shall not be made through the Project Bank Account.Effect of Payment TC " REF _NN2398\r \h ?38.4Effect of Payment" \l 2 Payments made from the Project Bank Account are treated as payments from the Contractor to the Sub-Contractor in accordance with this Sub-Contract or from the Sub-Contractor or his sub-subcontractor to PBA Sub-Subcontractors in accordance with their contracts as applicable. A delay in payment due to a failure of the Sub-Contractor to comply with the requirements of this Clause 38 is not treated as late payment under this Sub-Contract.Joining Deed TC " REF _NN2399\r \h ?38.5Joining Deed" \l 2 Subject to sub-clause 38.7, the Employer, the Contractor, the Sub-Contractor and the relevant PBA Sub-Subcontractors shall sign the Joining Deed before the first assessment date.Termination TC " REF _NN2400\r \h ?38.6Termination " \l 2 If the Contractor issues a notice of termination in accordance with this Sub-Contract no further payment shall be made into the Project Bank Account.Subsequent Implementation TC " REF _NN2401\r \h ?38.7Subsequent Implementation " \l 2 If this Clause 38 is stated not to apply in the Appendix as at the date of this Sub-Contract, the Contractor may nonetheless subsequently instruct the implementation of a Project Bank Account arrangement in accordance with this Clause 38 by giving notice in writing to the Sub-Contractor. Such an instruction shall be treated as a variation for the purposes of sub-clause 12.1 (Variation to Sub-Contract Works).M&E AND SIGNALLING CONDITIONS TC " REF _NN2402\r \h ?39M&E AND SIGNALLING CONDITIONS" \l 1 This Clause 39 shall apply where stated in the Appendix.Definitions TC " REF _NN2403\r \h ?39.1Definitions" \l 2 For the purposes of this Clause 39, the following words and expressions shall have the following meanings assigned to them:“Plant” means those items of machinery, computer hardware and software, apparatus, equipment and materials (if any), other than the Sub-Contractor’s Equipment, identified as such in the Appendix and/or in respect of which the Appendix provides that Tests on Completion or Performance Tests shall apply.“Tests on Completion” means the tests (if any) referred to in the Appendix (or otherwise agreed by the Contractor and the Sub-Contractor) which are to be made by the Sub-Contractor upon completion of erection and/or installation before the issue of a Certificate of Substantial Completion in respect of the Sub-Contract Works or a Section thereof.“Performance Test” means the tests (if any) referred to in the Appendix (or otherwise agreed between the Contractor and the Sub-Contractor) to be made after substantial completion of the Sub-Contract Works to demonstrate the performance of the Sub-Contract Works.Inspection and testing of plant before delivery TC " REF _NN2404\r \h ?39.2Inspection and testing of plant before delivery" \l 2 The Contractor shall be entitled at all reasonable times during manufacture to inspect, examine and test on the Sub-Contractor’s premises or elsewhere the materials, workmanship and performance of all Plant. If any part of the Plant is being manufactured on premises other than the Sub-Contractor’s own, the Sub-Contractor shall obtain permission for the Contractor to inspect, examine and test such Plant as if it were being manufactured on the Sub-Contractor’s premises. Such inspection, examination or testing shall not release the Sub-Contractor from any obligation under the Sub-Contract.If not specified in the Sub-Contract, the Sub-Contractor shall agree with the Contractor the date on and the place at which any Plant will be ready for inspection, examination or testing. The Contractor shall give the Sub-Contractor 24 hours’ notice of his intention to attend the test or inspection. If the Contractor shall not attend on the date and at the place agreed, the Sub-Contractor may proceed with the inspection, examination or test which shall be deemed to have been made in the Contractor’s presence. The Sub-Contractor shall forthwith forward to the Contractor duly certified copies of the results of the inspection, examination or test.The Sub-Contractor shall provide such assistance, labour, materials, electricity, fuel stores, apparatus and instruments as may be necessary or as may be reasonably requested by the Contractor for the purposes of carrying out any such inspection, examination or test.When the Contractor is satisfied that any Plant has passed the inspection, examination or test referred to in this Clause 39 he shall forthwith issue to the Sub-Contractor a certificate to that effect.If after inspecting, examining or testing any Plant the Contractor shall decide that such Plant or any part thereof is defective or not in accordance with the Sub-Contract, he may reject the said Plant or part thereof by giving to the Sub-Contractor notice of such rejection, stating therein the grounds upon which his decision is based. Following any such rejection the Sub-Contractor shall make good or otherwise repair or replace the rejected Plant and resubmit the same for inspection, examination or testing in accordance with this Clause 39. All expenses reasonably incurred by the Contractor in consequence of such re-inspection, re-examination or re-testing and the Contractor’s attendance shall be deducted from any amounts due to the Sub-Contractor under this Sub-Contract.No Plant may be delivered to the Site unless it has been certified by the Contractor in accordance with sub-clause 39.2(d).Tests on Completion TC " REF _NN2405\r \h ?39.3Tests on Completion" \l 2 The Sub-Contractor shall give to the Contractor 18 days’ notice of the date after which he will be ready to make any Tests on Completion. Unless otherwise agreed the Tests on Completion shall take place within 10 days after the said date on such day or days as the Contractor shall notify to the Sub-Contractor.Provided that where the conduct of the Tests on Completion requires signalling disconnections and/or restricts the operating railway in any way, the Sub-Contractor shall submit to the Contractor for his acceptance pursuant to sub-clause 9.1 (Performance of Sub-Contract Works) a programme showing those dates and times at which the Sub-Contractor requests access to the operating railway to complete the Sub-Contract Works, and any such request for access that is disruptive to the railway shall be made in accordance with Clause 26 (Track Possessions and Isolations).If the Sub-Contractor fails to appoint a time after having been asked to do so or to attend at any time or place duly appointed for making the Tests on Completion, the Sub-Contractor shall be entitled to proceed in his absence and the Tests on Completion shall be deemed to have been made in the presence of the Contractor. The Sub-Contractor shall forthwith forward to the Contractor duly certified copies of the results of the Tests on Completion.Before commencing Tests on Completion in respect of signalling and signalling related works that require signalling disconnections and/or restrict the operating railway in any way, the Sub-Contractor shall have arranged any possessions or signalling disconnections required to carry out the tests in accordance with Clause 26 (Track Possessions and Isolations) and shall submit all pre-test documentation (including the Testing Strategy and Test Plan(s)) to the Contractor in accordance with applicable Railway Group Standards, Network Rail Standards and/or any equivalent standards including, but not limited to the Signalling Testing Handbook.No signalling testing activity of any sort shall take place unless the Testing Strategy and Test Plan(s) have been approved in writing by the Contractor. If the Sub-Contractor fails to submit any pre-test documentation within the time limits specified in the Signalling Testing Handbook or the submitted documentation is not approved for any reason, the proposed Tests on Completion shall not take place and the Sub-Contractor shall submit alternative arrangements to the Contractor for his acceptance. Such arrangements shall be at no additional cost to the Contractor and all costs which the Contractor may incur in the re-arrangement of the Tests on Completion shall be deducted from any amounts due to the Sub-Contractor under this Sub-Contract. If any Plant fails to pass the Tests on Completion it shall be repeated within a reasonable time. All expenses reasonably incurred by the Contractor in consequence of such repetition of the Tests on Completion and the Contractor’s attendance shall be deducted from any amounts due to the Sub-Contractor under this Sub-Contract. If any Plant fails to pass the Tests on Completion (including any repetition thereof) the Sub-Contractor shall (subject to the provisions of Clause 26 (Track Possessions and Isolations) in the case of work or the conduct of the tests requiring signalling disconnections and/or restricting the operating railway in any way) take whatever steps may be necessary to enable the Plant to pass the Tests on Completion and shall thereafter repeat them.Performance Tests TC " REF _NN2406\r \h ?39.4Performance Tests" \l 2 Where Performance Tests are included in the Sub-Contract they shall be carried out in accordance with any agreed programme or if none then as soon as is reasonably practicable and within a reasonable time after that part of the Sub-Contract Works into which the relevant Plant is incorporated has been substantially completed.Performance Tests shall be carried out by the Contractor under the supervision of the Sub-Contractor and in accordance with the procedures and under the operating conditions specified in the Sub-Contract and in accordance with such other instructions as the Sub-Contractor may give in the course of carrying out such tests.The Contractor or the Sub-Contractor shall be entitled to order the cessation of any Performance Test if damage to the Plant or personal injury is likely to result from continuation.If any Plant fails to pass any Performance Test (or repetition thereof) or if any Performance Test is stopped before its completion, such test shall, subject to sub-clause 39.4(e), be repeated as soon as practicable thereafter. Any additional cost incurred by the Contractor by reason of the repetition of any Performance Test shall be deducted from any amounts due to the Sub-Contractor under this Sub-Contract. The Contractor shall permit the Sub-Contractor to make adjustments and modifications to any part of the Plant before the repetition of any Performance Test and shall, if required by the Sub-Contractor, shut down any part of the Plant for such purpose and re-start it after the adjustments and modifications have been made. All such adjustments and modifications shall be made by the Sub-Contractor with all reasonable speed and at his own expense. The Sub-Contractor shall, if so required by the Contractor, submit to the Contractor for his approval details of the adjustments and modifications which he proposes to make.If any Plant fails to pass any Performance Test (of repetition thereof) and the Sub-Contractor in consequence proposes to make any adjustments or modifications thereto, the Contractor may notify the Sub-Contractor that the Contractor requires the carrying out of such adjustments or modifications to be postponed. In such event the Sub-Contractor shall remain liable to carry out the adjustments or modifications and a successful Performance Test within a reasonable time of being notified to do so by the Contractor. If however the Contractor fails to give any such notice within one year of the date of substantial completion of that part of the Sub-Contract Works in which such Plant is incorporated, the Sub-Contractor shall be relieved of any such obligation and any Plant shall be deemed to have passed such Performance Test.The results of Performance Tests shall be compiled and evaluated jointly by the Contractor and the Sub-Contractor in the manner detailed in the Sub-Contract.Defective plant and further testing TC " REF _NN2407\r \h ?39.5Defective plant and further testing" \l 2 If any repairs or replacements are to be carried out pursuant to the Sub-Contractor’s obligations under sub-clause 10.5 (Defects Correction) that are of such character as may affect the operation of any Plant, the Contractor may within one month after such repair or replacement give to the Sub-Contractor notice requiring that further Tests on Completion or Performance Tests be made in which case such tests shall be carried out as provided in sub-clause 39.3 or sub-clause 39.4 as the case may be.Intellectual Property TC " REF _NN2408\r \h ?39.6Intellectual Property" \l 2 Notwithstanding sub-clause 4.10 (Copyright), no licences shall be granted to the Contractor under this Sub-Contract to reproduce or have reproduced any Plant in part or whole; and neither shall any license be granted to the Contractor to make or have made components or spare parts for the Sub-Contract Works which are protected by Intellectual Property rights vested in the Sub-Contractor or any of its sub-subcontractors or suppliers for any purposes other than as may be strictly necessary for the maintenance, running or repair of the Sub-Contract Works.WORKS PERFORMED UNDER PREVIOUS CONTRACTS TC " REF _NN2409\r \h ?40WORKS PERFORMED UNDER PREVIOUS CONTRACTS" \l 1 This Clause 40 shall apply where stated in the Appendix. Previous Works TC " REF _NN2410\r \h ?40.1Previous Works" \l 2 The Sub-Contractor hereby acknowledges that he has carried out preliminary Sub-Contract Works for this Sub-Contract under the purchase orders listed in the Appendix and that as a consequence of this Sub-Contract:all and any obligations on the part of the Contractor to make payment under such purchase orders shall determine; any payments made under such purchase orders shall be treated as payments on account of this Sub-Contract; andeverything done by the Sub-Contractor or on behalf of the Sub-Contractor under such purchase orders shall be deemed to have been done pursuant to this Sub-Contract and any outstanding payments, variations or claims under such purchase orders shall be valued and managed in accordance with the terms and conditions of this Sub-Contract. CONTRACTOR’S OPTIONS TC " REF _NN2411\r \h ?41CONTRACTOR’S OPTIONS" \l 1 This Clause 41 shall apply where stated in the Appendix.Definitions TC " REF _NN2412\r \h ?41.1Definitions" \l 2 For the purposes of this Clause 41, references to an “Option” have the meaning given to them in the Appendix.Phases TC " REF _NN2413\r \h ?41.2Phases" \l 2 As at the date of this Sub-Contract the Contractor is not in a position to proceed with the Option(s). The Sub-Contractor shall not be obliged or permitted to and shall not commence an Option unless and until the Contractor receives a written instruction from the Contractor to proceed with that Option. Adjustment to Sub-Contract Price TC " REF _NN2414\r \h ?41.3Adjustment to Sub-Contract Price" \l 2 If the Contractor issues a written instruction to proceed with an Option in accordance with sub-clause 41.2, provided the scope for that Option described in that instruction does not materially differ from the Option scope described in the Sub-Contract Technical Workscope at the date of this Sub-Contract and it is instructed no later than the dates specified in the Appendix:the Sub-Contract Price shall reflect the price for that Option itemised in the Pricing Document (and shall not be adjusted further including for the addition of any additional preliminary costs); and the time or times for completion of the Sub-Contract Works and any liquidated damages for delay shall be as set out in the Appendix. Valuation of changes to Option TC " REF _NN2415\r \h ?41.4Valuation of changes to Option" \l 2 If the relevant Option as instructed by the Contractor in accordance with sub-clause 41.2 is materially different from the relevant Option scope of work included in the Sub-Contract Technical Workscope at the date of this Sub-Contract such changes to the scope of work shall be priced in accordance with Clause 12 (Changes to the Sub-Contract Works and Valuation) and the relevant Sub-Contract Price described in sub-clause 41.3 shall be adjusted either up or down accordingly.Option not instructed TC " REF _NN2416\r \h ?41.5Option not instructed" \l 2 If the Contractor does not issue a written instruction to proceed with any Option by the relevant date stated in the Appendix, or the Contractor otherwise determines that it does not intend to instruct an Option under this Contract, unless agreed otherwise by the Parties in writing:such Sub-Contract Works relating to that Option shall be deemed not to be and never to have been included as part of the Sub-Contract Works for the purposes of the Sub-Contract; the Contractor shall not be liable to the Sub-Contractor for any costs, losses or expenses, direct or indirect (including loss of profit) arising as a consequence of the Option not being instructed; and the Contractor shall be entitled to award the scope described in the relevant Option to a third party contractor without any liability to the Sub-Contractor whatsoever.CONSOLIDATED PROGRAMME TC " REF _NN2417\r \h ?42CONSOLIDATED PROGRAMME" \l 1 The Sub-Contractor shall provide all reasonable assistance to the Contractor so as to enable the Contractor to comply with his obligations under clause 41 of the Main Contract.SUB-CONTRACT SPECIFIC CONDITIONS[Insert]To be deleted prior to use: If the Contractor wishes to use alternative terms to Sub-Contract Technical Workscope, Preliminaries, Contract Requirements HSEA or Sub-Contractor’s Tender rename them here. [SUB-CONTRACT TECHNICAL WORKSCOPE][Insert][CONTRACT REQUIREMENTS HSEA][Insert][PRELIMINARIES][Insert]PRICING DOCUMENT[Insert][SUB-CONTRACTOR’S TENDER][All relevant parts of the [Sub-Contractor’s Tender] are included in the [Sub-Contract Technical Workscope] and no other part of the [Sub-Contractor’s Tender] forms part of the Sub-Contract]THIRD PARTY RIGHTS IN FAVOUR OF THE EMPLOYERSUB-CONTRACTOR’S DUTIES UNDER THE SUB-CONTRACTThe Sub-Contractor warrants to the Employer that it has performed and shall continue to perform its duties under the Sub-Contract in accordance with the Sub-Contract and that it has exercised and shall continue to exercise reasonable skill and care (or such higher duty as the Sub-Contract imposes) in relation to the following (so far as the Sub-Contractor is responsible for them):the design of the Sub-Contract Works;the selection of goods, materials, equipment or plant for the Sub-Contract Works; andthe satisfaction of any performance requirement or specification of or for the Sub-Contract Works.INTELLECTUAL PROPERTY RIGHTSSave where Intellectual Property in the data and/or materials supplied under the Sub-Contract vests in the Contractor in accordance with the Sub-Contract, the Sub-Contractor grants to the Employer an irrevocable, royalty free licence to use all the Intellectual Property produced by the Sub-Contractor for any purpose in connection with completing, operating, maintaining, dismantling, reassembling, repairing, altering and adjusting the Main Contract Works. The Employer may grant sub-licences to other persons for the purposes stated in this paragraph 2.NO APPROVALThe Sub-Contractor’s liabilities under this Schedule shall not in any way be reduced or extinguished by reason of any inspection or approval of any documents or attendance at site meetings or other enquiry or inspection which the Employer may make or procure to be made for the Employer’s benefit or on its behalf.ASSIGNMENTThe Employer may, without the consent of the Sub-Contractor and without prejudice to the provisions of paragraph 6, assign the benefit of and its benefits and rights under this Schedule to any person by way of absolute legal assignment, on not more than two occasions only. The Employer shall give the Sub-Contractor written notice following any such assignment specifying the name and address of the assignee and the date of the assignment. The Sub-Contractor shall not contend that any such assignee is precluded from recovering any loss resulting from any breach of this Schedule (whatever the date of such breach) by reason only that that person is an assignee and not the Employer or by reason that the Employer or any intermediate beneficiary escaped any loss resulting from such breach by reason of the disposal of any interest in the site of the Main Contract Works or that the Employer or any intermediate beneficiary has not suffered any or as much loss.STEP-IN RIGHTSSubject to paragraph 5.9, the Sub-Contractor shall not exercise or seek to exercise any right which may be or become available to it to terminate or treat as terminated or repudiated the Sub-Contract or its engagement under it or discontinue or suspend the performance of any duties or obligations under the Sub-Contract, without first giving to the Employer not less than twenty-eight days’ prior written notice specifying the Sub-Contractor’s grounds for terminating or treating as terminated or repudiated the Sub-Contract or its engagement under it or discontinuing or suspending its performance of the Sub-Contract and stating the amount (if any) of monies outstanding under the Sub-Contract. Within such period of notice:the Employer may give notice to the Sub-Contractor expressly confirming its intention to comply with paragraph 5.2.3 and that the Employer shall become the employer under the Sub-Contract to the exclusion of the Contractor and, upon giving such notice, that shall be the case and the Sub-Contract shall be and remain in full force and effect notwithstanding any of the grounds in the Sub-Contractor’s notice under paragraph 5.1; andif the Employer has given notice under paragraph 5.2.1 or under paragraph 5.4, the Employer shall then as soon as practicable remedy any outstanding breach by the Contractor; andif:the Employer has given notice under paragraph 5.2.1 then from the date of the Sub-Contractor’s notice; orthe Employer has given notice under paragraph 5.4 then from the date of the Employer’s notice,the Employer shall, by paragraph 5.2.1, become responsible for all sums properly payable to the Sub-Contractor under the Sub-Contract and for the observance and performance of all of the other duties and obligations on the part of the Contractor to be observed and performed under the Sub-Contract accruing due after the service of such Contractor’s notice or the Employer’s notice (as applicable) but the Employer shall in paying such sums be entitled to the same rights of set-off and deduction as would have applied to the Contractor under the Sub-Contract.Notwithstanding anything contained in this Schedule and notwithstanding any payments which may be made by the Employer to the Sub-Contractor, the Employer shall not be under any obligation to the Sub-Contractor nor shall the Sub-Contractor have any claim or cause of action against the Employer unless and until the Employer has given notice to the Sub-Contractor under either paragraph 5.2.1 or paragraph 5.4.The Sub-Contractor further covenants with the Employer that if requested by the Employer by notice expressly confirming the Employer’s intention to comply with paragraph 5.2.3 and subject to paragraph 5.2.2 and paragraph 5.2.3, it shall accept the instructions of the Employer to the exclusion of the Contractor in respect of the Sub-Contract Works upon the terms and conditions of the Sub-Contract. The Employer shall then become the employer under the Sub-Contract to the exclusion of the Contractor and the Sub-Contractor shall, if so requested, enter into a novation agreement in order to substitute the Employer for the Contractor under the Sub-Contract.Where the Sub-Contractor has given rights in relation to the Sub-Contract similar to those contained in this paragraph 5 to any other person then if both the Employer and any such other person serve notice under paragraph 5.2 or paragraph 5.4 or its equivalent the notice served by the Employer shall prevail over any notice served by any other person.The Contractor acknowledges that the Sub-Contractor shall be entitled to rely on a notice given to the Sub-Contractor by the Employer under paragraph 5.4 as conclusive evidence that the Employer is entitled to serve such notice.The Employer may by notice to the Sub-Contractor appoint another person to exercise its rights under this paragraph 5 subject to the Employer remaining liable to the Sub-Contractor as guarantor for its appointee in respect of its obligations under this Schedule.Where the Sub-Contractor is seeking to exercise a right to suspend the performance of any duties or obligations under the Sub-Contract as a result of non-payment or in accordance with s112 of the Housing Grants, Construction and Regeneration Act 1996, the Sub-Contractor shall give to the Employer notice of its intention so to do at the same time as it serves notice on the Contractor.Notwithstanding the other provisions of this paragraph 5, if the Sub-Contract has for any reason been terminated prior to receipt by the Sub-Contractor of a notice from the Employer served under paragraph 5.2.1 or paragraph 5.2.3, the Sub-Contractor shall on receipt of any such notice from the Employer enter into a new sub-contract with the Employer on the same terms as the Sub-Contract to continue the Sub-Contract Works in all respects as if the Sub-Contract had been transferred to the Employer in accordance with the provisions of this paragraph 5.NOTICESAny notice or other communication given by the Sub-Contractor or the Employer under this Schedule must be in writing and sent by first class post, delivered to or left at the recipient’s registered office or, if there is none, its last known address. Any notice given complying with paragraph 6.1 will be deemed to be served, if given by first class post at 9.00am on the next working day after the date of posting, or if delivered or left at the correct address, on the date of delivery.LIMITATIONThe Sub-Contractor has no liability under this Schedule which is greater or of longer duration than it would have had if, in lieu of this Schedule, the Employer had been a party to the Sub-Contract as joint employer, provided that the Sub-Contractor shall not be entitled to set-off or deduct from any sums payable to the Employer under this Schedule any sums due or claimed as due by the Sub-Contractor from the Contractor.The Sub-Contractor shall be entitled in any action or proceedings brought by the Employer under this Schedule to rely on any limitation in the Sub-Contract and to raise equivalent rights in defence of liability (but excluding set-offs and counterclaims) as it would have against the Employer if, in lieu of this Schedule, the Employer had been a party to the Sub-Contract as joint employer.The Sub-Contractor shall not by reason of this Schedule have any liability to the Employer for delay in completion of the Sub-Contract Works or any part of ERNING LAW AND JURISDICTIONThis Schedule shall be governed by English Law.The Sub-Contractor and the Employer agree that the courts of England and Wales shall have exclusive jurisdiction to determine any dispute arising out of or in connection with this Schedule (including in relation to any non-contractual obligations). They irrevocably submit to the jurisdiction of those courts. ................
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