coc - subcontract form

8/7/2019 COC - SUbcontract form

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Conditions of Sub Contract

1.0 Notice Of Main Contract1.1 The Sub-Contractor shall be deemed tohave notice of all the provisions of theMain Contract except the detailed pricesincluded in schedules and bills ofquantities therein.

2.0 Sub-Contractor's Obligations2.1 The Sub-Contractor shall upon and

subject to the Conditions of Sub-Contract carry out and complete theSub-Contract Works in accordance withthe Sub- Contract Documents and incompliance therewith provide materialsand standards of workmanship of thequality and standard therein specified inevery respect to the reasonablesatisfaction of the Architect.

2.2 The Sub-Contractor shall observe,perform and comply with all the

provisions of the Main Contract on thepart of the Contractor to be observed,performed and complied with so far asthey relate and apply to the Sub-Contract Works (or any portion of thesame). Provided always, that suchobligations are not repugnant to or

inconsistent with (he express provisionsof this Sub-Contract as if all the samewere severally set out herein.

2.3 The Sub-Contractor shall indemnify andsave harmless the Contractor againstand from :-

(i) any breach, non-observance or non-performance by the Sub- Contractor,his servants or agents of the saidprovisions of the Main Contract or

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any of them, and(ii) any act or omission of the Sub-

Contractor. his servants or agents

which involves the Contractor in anyliability to the Employer under theMain Contract; and

(iii) any claim, damage, loss or expensedue to or resulting from anynegligence or breach of duty on thepart of the Sub-Contractor. His

servants or agents (including anywrongful usage by him or them of thescaffolding referred to in Clause 16 ofthis Sub-Contract or other propertybelonging to or provided by theContractor) : and

(iv) any loss or damage resulting from

any claim under statute in force forthe time being by an employee of theSub-Contractor in respect of personalinjury arising out of or in the courseof his employment.

2.4 Nothing in this Sub-Contract shallimpose any liability on the Sub-Contractor in respect of any negligenceor breach of duty on the part of theEmployer, the Contractor, his other sub-contractors or their respective servantsor agents nor create privity of contractbetween the Sub-Contractor and theEmployer or any other sub-contractor.

3.0 Insurance Against Injury To PersonsAnd Property

3.1 The Contractor and Sub-Contractorrespectively shall, so far as is reasonablypracticable, effect and keep in forceduring all material times policies of

insurance with such insurance companyor other insurers of such an amount asshall be approved by the other. Stich

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insurance policies shall be for theirrespective liabilities under any statute inforce for the time being in respect

of injuries to persons and at CommonLaw in respect of injuries to persons orproperty arising out of and in the courseof the execution of the Main ContractWorks and the Sub-Contract Worksand/or arising out of and in thecourse of the employment of any

workmen employed by themrespectively or caused thereby or duethereto respectively.

3.2 The Sub-Contract Works (includingmaterials and goods of the Sub-Contractor properly delivered to and/orplaced on the Site for use in the Sub-

Contract Works) shall as regards loss ordamage by fire (whether such fire becaused by the negligence of the Sub-Contractor or those for whose actionsthe Sub-Contractor is responsible orotherwise), storm, tempest, lightning,flood, earthquake, aircraft or anythingdropped therefrom, aerial objects, riotand civil commotion be at the sole riskof the Contractor.

3.3 In the event of any loss or damage byfire, storm, tempest, lightning, flood,earthquake, aircraft or anything droppedtherefrom, aerial objects, riot andcivil commotion caused to the Sub-

Contract Works (including any of thematerials and goods of the Sub-Contractor properly delivered to and/orplacedon the Site for use in the Sub-ContractWorks) the Contractor to the extent ofsuch loss or damage shall pay to the

Sub-Contractor the full value of thesame, such value to be calculated inaccordance with Clauses 4.4 and 4.5hereof.

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13.4 The Contractor shall for the benefit ofhimself and the Sub-Contractor at allmaterial times insure for the full value

thereof of the Sub-Contract Works(including materials and goods of theSub-Contractor properly delivered toand/or placed on the Site for use in theSub-Contract Works) or procure theirinsurance by the Employer and keepthem or have kept them insured against

loss or damage by fire, storm, tempest,lightning, flood, earthquake, aircraft oranything dropped there from, aerialobjects, riot and civil commotion.

3.5 The Sub-Contractor shall observe andcomply with the conditions contained inthe policy or policies of insurance of the

Contractor or of the Employer, asthe case may be, against loss or damageby fire, storm, tempest, lightning, flood,earthquake, aircraft or anything droppedtherefrom, aerial objects, riot and civilcommotion.

3.6 The plant, tools, equipment, or other

property belonging to or provided by theSub-Contractor, his servants or agents(other than materials and goodsproperly delivered to and/or placed onthe Site for use in the Sub-ContractWorks) shall, subject to the provisions ofClauses 3.2, 3.3, 3.4, 3.5 hereof, be atthe sole risk of the Sub-Contractor. Any

loss or damage to the same orcaused by the same shall be the soleliability of the Sub-Contractor who shallindemnify the Contractor against anyloss, claim or proceedings in respectthereof. Any insurance against any suchloss or claim shall be the sole concern of

the Sub-Contractor.3.7 The Contractor and Sub-Contractor shall

each respectively at all reasonable timesat the request of the other produce for

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inspection the policy or policiesof insurance against the aforesaid risksand the receipts for the premiums paid.

4.0 Variations

4.1 In the event of the Contractor issuing inwriting to the Sub-Contractor it COPY01" ally instructions of tile Architect inrelation to tile SUb-Contract Works, be itin regard of' -it Variation or in regard to

tiny other matter illrespect of which tile Architect isexpressly empowered by tile conditionsof the Main Contract to issue instructionsthen, (lie Sub-Contractor shall forthwithcomply with and carry out the same intill respects accordingly.

4.2 The term "Variation" as used ill theseConditions shall have the followingmeaning:(i) alteration or modification of the

design, quality or quantity of the gSub-Contract Works and described byor referred to in the Specification.

(ii) the addition, omission or substitutionof any Subcontract Works.(iii) the alteration of the kind or standard

of any materials or goods to be usedin the Works.

(iv) the removal from the site of any wrkexecuted, or materials or goodsbrought thereon by the Contractor forthe purposes of the Sub-ContractWorks other than work materials orgoods which tire not ill accordancewith this Sub-Contract.

(v) the addition, alteration, or omissionof any expressed obligation orrestrictions imposed by the

Contractor under the Conditions withregards to any limitation of workinghours, working space. or access to or

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utilisation of any specific part of thesite or the execution and completionof the work in any specific order.

(vi) For avoidance of doubt, the term"Variation" shall include any changesas aforesaid which may be designedto alter the ultimate use to which theSub-Contract Works will be put orchanges in the

obligations and restrictions which may

be imposed on the Sub-Contractor'smethods of working, but shallexclude any instructions which hasarisen due or is necessitated by orintended to cure any default ofand/or breach of contract by the Sub-Contractor.

4.3 The Architect may issue instructionsrequiring a Variation and he maysanction in writing any Variation madeby the Sub-Contractor otherwise thanpursuant to an instruction of theArchitect. No variation required by theArchitect or subsequently sanctioned byhim shall vitiate this Sub-Contract.

4.4 The value of all authorised Variationsshall be determined by the Architect orthe Specialist Consultant as instructedby the Architect in accordance withthe applicable provisions (relating to theascertainment of prices for authorised

variations) laid down in the Agreementand Conditions of Building Contract(Private Edition - With or WithoutQuantities) currentlyissued under the sanction and approvalof Pertubuhan Akitek Malaysia.

4.5 Save that where the Sub-Contractor has

with the agreement of the Contractorannexed to this Sub-Contract a scheduleof prices for measured workand/or a schedule of' daywork prices.

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such prices shall be allowed to the Sub-Contractor in determining the value ofauthorised Variations in substitution

for any prices which would otherwise beapplicable under Clause 4.4

5.0 Architect's Instructions5.1 Upon receipt of what purports to be all

instruction of (fie Architect issued inwriting by the Contractor to the Sub-

Contractor. tile Subcontractor mayrequire the Contractor to request theArchitect to specify in writing theprovision of' the Main Contract whichempowers the issue or tile saidinstruction. The Contractor shallforthwith comply with any Such request

anddeliver to the Sub-Contractor it copy ofthe Architect's answer to tile Conti-actor's request.

5.2 If the Sub-Contractor shall thereaftercomply with the said instruction, thenthe issue of the same shall be deemed

for all purposes of this Sub-Contract tohave been empowered by the provisionof the Main Contract specified by theArchitect in answer to the Conti-actor'srequest.

5.3 The Sub-Contractor may before suchcompliance make it written request tothe Contractor to require the Employerto concur in the appointment of anarbitrator under the Main Contract inorder that it may be decided whetherthe' provision specified by the Architectempowers the issue of the saidinstruction. The Conti-actor shall allowthe Sub-Contractor to use the

Contractor's name and if necessary joinwith the Sub-Contractor in arbitrationproceedings to decide the matter as

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aforesaid. It is subject to the Sub-Contractor -ivin- the Contractor suchindemnity and security as the

Contractor may reasonably require.5.4 Upon signing the Sub-Contract, the

parties hereto shall notify the other andthe Architect in writing of an addresswhere notices and Architect'sinstructions may be served on the partyconcerned. If the party or parties fail

to so notify of such an address or anychange of address, notices andArchitect's instructions shall be deemedto be served upon the party or partiesif sent by registered post or recordeddeliver to hisaddress stated in this Sub-Contract, or if

left at his office on the site and a receiptis obtained from thesite agent of the party concerned.

6.0 Commencement And Completion OfSub-Contract Works

6.1 On the Date of Commencement stated

in the Appendix, the Sub-Contractorshall begin the Sub-Contract works, andwith due expedition proceed andcomplete the same on or before theDate of Completion stated in theAppendix subject to any extension oftime granted under Clause 8.3.Provided always that the Date ofCommencement and completion may begiven in sections or in parts as stated inthe Appendix to those Conditions.If no such Date of Commencement isstated in the Appendix or if the date inthe Appendix becomes invalidated forany reason which is not the

responsibility of the Sub-Contractor,then the Date of Commencement shallbe such other date as instructed in

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writing by the Contractor and the DateofCompletion shall be appropriately

modified or re-calculated subject to anyextension of time granted under Clause8.3.

7.0 Damages For Non Completion7.1 If the Sub-Contractor fails to complete

the Sub-Contract Works or any sectionthereof within the specified period or anextended period or periods as hereafterprovided, he shall pay or allow to theContractor a sum equivalent

to any loss or damage suffered orincurred by the Contractor and causedby the failure of the Sub-Contractor asaforesaid. The Contractor shall at theearliest opportunity give reasonablenotice to the Sub-Contractor that loss ordamage as aforesaid is being or hasbeen suffered or incurred.

7.2 The Contractor shall not be entitled toclaim any loss or damage under Clause7.1 unless the Architect shall haveissued to the Contractor (with aduplicatecopy to the Sub-Contractor) a certificatein writing stating that in his opinion the

Sub-Contract Works or the relevantsection thereof ought reasonably tohave been completed within thespecified period or within anyextended period or periods as the casemay be.

8.0 Extension Of Time8. 1 Upon it becoming reasonably apparent

that the progress of the Sub-Contract

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Works is delayed, the Sub-Contractorshall forthwith give written notice ofthe delay in the progress or completion

of the Sub-Contract Works or any sectionthereof to the Contractor, identifying therelevant events causing thedelay, giving particulars of the expectedeffect and an estimate of the extensionof time required. The Contractor shallinform the Architect thereof

and of any representations made to himby the Sub-Contractor.

8.2 If the Architect upon receipt of suchinformation and representations is of theopinion that the completion of the Sub-Contract Works is likely to be or hasbeen delayed beyond the period or

periods stated in the Appendix hereto orbeyond any extended period or periodspreviously fixed under this clause asfollows:(i) By reason of any of the matters

specified in Clauses 4.1 and 6.1 ofthis Sub-Contract or by any act oromission of the Contractor, his Sub-Contractors, his or their respectiveservants or agents; or

(ii) For any reason (except delay on thepart of the Sub-Contractor) for whichthe Contractor could obtain anextension of time for completionunder the Main Contract. The

Architect shall give his writtenconsent to the Contractor to grantthe extension of time to the Sub-Contractor.

8.3 Then the Contractor shall grant a fairand reasonable extension of the saidperiod or periods for completion of the

Sub-Contract Works or each sectionthereof (as the case may require) andsuch extended period or periods shall bethe period or periods for completion of

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the same respectively.

8.4 If the Sub-Contractor shall feelaggrieved by a failure of the Architect to

give his written consent to theContractor granting an extension of thesaid period or periods for completion ofthe Sub-Contract Works then, subject tothe Sub-Contractor giving to theContractor such indemnity and securityas the Contractor may reasonably

require, the Contractor shall allow theSub-Contractor to use the Contractor's nameand if necessary join with the Sub-Contractor as plaintiff in any arbitrationproceedings by the Sub-Contractorin respect of the said complaint of the

Sub-Contractor.

9.0 Loss and/Or Expenses Caused ByDisturbance od Regular Progress ofThe Sub Contract Works

9.1 If and when tile Sub-Contractor notifies(lie Contractor ill writing that the regular

progress of the Sub-Contract Works orany part of it has been or is likely to bematerially affected by any of thecircumstances in which the ContractorWould under the Main Contract beentitled to recover Such direct lossand/or expense as aforesaid, and theSub-Contractor had incurred or islikely to incur direct loss and/orexpenses for which he would not bereimbursed by a payment under anyprovision of this Sub-Contract, he shallhe entitled to recover such loss and/orexpense.

9.2 The Sub-Contractor shall Submit to the

Contractor details of such direct lossand/or expense as are reasonablynecessary for tile ascertainment under

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Clause 9.1. The Conti-actor shall makethe same available to the Architect.

9.3 If both the Contractor and the Architect

are of the opinion that the Sub-Contractor has been involved in suchdirect loss and/or expense. TheContractor shall request the Architect toascertain or cause to be ascertained theamount Of Such direct loss and/orexpenses.

9.4 Any amount so ascertained by [lieArchitect from time to time shall beadded to tile Sub-Contract Stull, and it'an Interim Certificate is issued after thedate of ascertainment. the Contractorshall request the Architect to add anysuch amount to the amount which would

otherwise be stated as due in suchcertificate.

9.5 The provisions of Clause 9.0 are withoutprejudice to any other rights andremedies which the Sub-Contractor maypossess.

10.0 Practical Completion And DefectsLiability

10. I When the Architect is of the opinion thatthe SUb-Contract Works are practicallycompleted. meaning that the Sub-Contractor has performed andcompleted all the necessary Sub-Contract Works specified in the Sub-Contract and the patent defectsexisting- in such Sub-Contract Works are"de minimis", the Architect shallforthwith issue a Certificate of PracticalCompletion to the Contractor with acopy to the Sub-Contractor. The Sub-

Contract Works shall be deemed to bepractically completed for all purposes ofthis Sub-Contract on the date named in

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such Certificate.

10.2 All defects, shrinkages or other faults inthe Sub-Contract Works which the

Contractor (whether at his own cost ornot) shall be liable to make goodunder the Main Contract, shall be madegood by the Sub-Contractor within areasonable time after the receipt by himfrom the Contractor of the Architect'swritten instructions or a copy thereof

relating to the same.PROVIDED that where the Contractor isliable to make good such defects,shrinkages or other faults but not at hisown cost, then the Contractor shallsecure a similar benefit to the Sub-Contractor and shall account to the Sub-

Contractor for any money actuallyreceived by him in respect of the same.

10.3 If the Contractor (whether by himself orby any other sub-contractor) shallexecute any work (whether permanentor temporary) to the Main ContractWorks or to any part of the same

required by the Architect and/orrendered necessary by reason ofdefects, shrinkages or other faults in theSub-ContractWorks due to materials or workmanshipnot being in accordance with this Sub-Contract then the Sub-Contractor shallpay to the Contractor the cost of

execution of such work. PROVIDED thatif the Contractor shall pay or allow to theEmployer the valueof or other agreed sum (not exceedingsuch cost as aforesaid) in respect 01'SLIC11g 11work instead and insatisfaction of executing the same, then

the Sub-Contractor shall pay to the Contractorsuch value or other agreed Sum asaforesaid.

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10.4 If the Sub-Contractor shall execute anyw ork to or in connection with the Sub-Contract Works (whether permanent or

temporary) required by the Architect orrendered necessary by reason of anydefects, shrinkages or other faults in tileMain Conti-act Works due to materials orworkmanship not being in accordancewith the Main Contract. then theContractor shall pay to the Sub-

Contractor the cost of the execution ofsuch work.PROVIDED that if instead of the SUb-Contractor actually executing such workand in satisfaction of the same theContractor shall pay or allow to theEmployer the value of other agreed sum

(not exceeding such cost as aforesaid) inrespect of such work, then theContractor shall indernnify the Sub-Contractor against any claim, damage orloss in respect of failure to execute suchwork.

11.0 Certificates And Payment11.1 The Contractor shall subject to and inaccordance with the Main Contract fromtime to time make application to theArchitect for certificates of payment.Prior to this, the Contractor shall givethe Sub-contractor at least seven (7)days notice for the latter to submitdetails of value of his payment due. TheContractor shall also embody in orannex to the said application anyrepresentations of the Sub-Contractor inregard to such value.

11.2 Such application shall include therein ofthe amount which at the date thereof

fairly represents the total value of theSub-Contract Works and of anyvariations authorised and executed, or

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amounts ascertained under Clause 9.4hereof and, where the Sub-Contractorhas paid the supplier, of the materials

and goods delivered upon the Site foruse in the Sub-Contract Works. Providedalways that the application shall onlyinclude the value of the said materialsand goods as and from such time asthey are reasonably, properly and notprematurely brought upon the Site and

only if adequately stored and/orprotected against weather and othercasualties-.

11.3 Within fourteen (14) days of the receiptby the Contractor of any certificate orduplicate copy thereof from theArchitect the Contractor shall notify and

pay tothe Sub-Contractor the total valuecertified therein in respect of the Sub-Contract Works and in respect of anyauthorised variations thereof and inrespect of anyamounts ascertained under Clause 9.4hereof less--(i) Retention Money, that is to say the

proportion attributable to the Sub-Contract Works of the amountretained by the Employer inaccordance with the Main Contract ;and

(i i) The amounts previously paid.

11.4 Provided always that the Architect hasbeen notified of the amounts andreasons for the deductions or set-off, theContractor shall be entitled to deductfrom orset-off against any money due from himto the Sub-Contractor (including any

Retention Monies) any sum or sumswhich the Sub-Contractor is liable to payto the Contractor under this Sub-Contract.

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11.5 Upon the issue by the Architect to theContractor of any certificate or duplicatecopy thereof which includes in

accordance with the Main Contract theamountOr any part thereof retained by theEmployer under the Main Contract theContractor shall pay to the Sub-Contractor such part of the RetentionMonies as is

Included in the certificate or duplicatecopy thereof with interest if any.

11.7 If the Contractor shall fail to makepayment to the Sub-Contractor ashereinbefore provided and such failureshall continue for seven (7) days afterthe Sub-Contractor shall have given the

Contractor written notice of the same,then the Sub-Contractor may (butwithout prejudice to any right orremedy) suspend the further executionof the Sub-Contract Works until suchpayment shall be made and such periodof suspension shall be deemed to be anextension of and be added to the periodor periods for completion (as the casemay be) asProvided in the Appendix to this Sub-Contract or to any extended period orperiods previously authorised underClause 8.3 hereof and shall not bedeemed a delay

for which the Sub-Contractor is liableunder this Sub-Contract. For avoidanceof doubt, any extension of time grantedto the Sub-Contractor in this respect willnot entitle the Contractor to areciprocate extension of time under theMain Contract.

11.8 If after the issue of the last InterimCertificate but before the issue of theFinal Certificate in accordance with theMain Contract the Sub-Contractor shall

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havecompleted any part of the Sub-ContractWorks, he may request the Contractor

in writing to make application to theArchitect for certificates certifying thevalueof the works executed, and theContractor shall make such application.The provisions of this clause shall applyto such certificates as if they were

certificates of payments expresslyprovided for in the Main Contract.

11.9 If before the issue of a Final Certificateto the Contractor under the MainContract the Architect desires to securefinal payment to the- Sub-Contractor oncompletion of the Sub-Contract Works

and in accordance with and subject tothe provisions of the Main Contractrelating to prime cost sums issues acertificate to the Contractor including anamount to cover such final payment,then the Contractor shall pay to the Sub-Contractor the amount so certified bythe Architect as aforesaid.

11.10 Such final payment as described inClause 11.9 shall only be made if theSub-contractor indemnifies and securesthe Contractor. to the reasonablesatisfactionof the Contractor against all latentdefects in the Sub-Contract Works and if

by such final payment the Contractorwill be discharged under the MainContract from all liabilities in respect ofthe Sub-Contract Works except for anylatent defects.

11.11 The Contractor's interest in theRetention money, whether it is included

in the amounts retained by the Employerunder the Main Contract and held by himorwhether it is held by the Contractor, is

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14.1 The Sub-Contractor shall not without thewritten consent of both the Contractorand the Architect assign this Sub-

Contract or any part thereof or theobligation to carry out and the right toreceive payment for any part of theworks to be carried out under this Sub-Contract or the right to receive thewhole or any part of the Sub-ContractSum.

14.2 The Sub-Contractor shall not without thewritten consent of the Architect and theContractor (which consent shall not beunreasonably withheld) sub-let anyportion or the whole of the Sub-ContractWorks. Such consent if given shall notrelieve the Sub-Contractor from any

liability or obligation under the Sub-Contract and he shall be responsible forthe acts, defaults, neglects, breach ofcontract of any sub-contractor, hisagent, servants or workmen as fully as ifthey were the acts, defaults or neglects,breach of contract of the Sub-Contractor,his agents, servants or workmen.

15.0 Provision Of Amenities AndFacilities For Sub-Contract Works

15.1 If and so far as it is so provided in theMain Contract (but not otherwise) theContractor shall supply at his own costall necessary water, lighting, watching,site security, allocation of space forstorage and accommodation, rubbishclearing and attendance for thepurposes of the Sub-Contract Works.Subjectas aforesaid the Sub-Contractor shall

make all necessary provision in regardto the said matters and each of them.

15.2 Save as otherwise provided in the Main

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Contract the Sub Contractor shall at hisown expense provide and erect allnecessary workshops, sheds or other

buildings for his employees andworkmen at such places on the Site asthe Contractor shall appoint and theContractor agrees to give all reasonablefacilities to the Sub-Contractor for sucherection.

16.0 Use Of Scaffoldings And HoistingFacility

16.1 The Sub-Contractor, his employees andworkmen in common with all otherpersons having the like right shall for thepurposes of the Sub-Contract Works(but not further or otherwise) be entitled

to use any scaffolding and hoistingbelonging to or provided by theContractor, while it remains so erectedupon theSite.

16.2 The Sub-Contractor, his employees andworkman are entitled to use the

scaffolding and hoisting facility on theexpress condition that no warranty orother liability on the part of theContractor or of his other sub-contractorsshall be created or implied in regard tothe fitness, condition or suitability of thesaid scaffolding

17.0 Non-Interrerence By Contractor AndSub-Contractor

17.1 The Contractor and the Sub-Contractor,their servants or agents respectively.shall not wrongfully use or interfere withthe plant, ways, scaffolding, temporaryworks, appliances, or other propertyrespectively belonging to or provided byeither of them.

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18.0 Statutory Obligations, Notices, FeesAnd Charges

18.1 The Sub-Contractor shall comply withand give all notices required by anywritten law applicable to the territoriesof Malaysia in which the Sub-ContractWorks are carried out, or any regulationor bye-law of any local authority or ofany statutory undertaker which has any

jurisdiction with regard to the Sub-Contract Works or with whose systemsthe same are or will be connected.

18.2 The Sub-Contractor before making anyvariation from the Contract Documentsnecessitated by such compliance shallgive to the Architect a written notice

specifying and giving the reason forsuch variation and the Architect shallissue instructions in regard thereto.

18.3 If within seven (7) days of having giventhe said written notice to the Architectand the Sub-Contractor does not receiveany instructions in regard to the matters

therein specified, he shall proceed withthe work conforming to the written lawapplicable to the territories of Malaysiain which the Sub-Contract Works are tobe carried out, or any regulation or bye-law of any local authorityor of any statutory undertaker which hasany jurisdiction with regard to the Sub-Contract Works or with whose systemsthe same are or will be connected andany variation thereby necessitated shallbe deemed to be a Variation required bythe Architect.

18.4 The Sub-Contractor shall pay andindemnify the Contractor against liability

and/or any payment made by theContractor in respect of any fees orcharges

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(including any rates or taxes) legallydemandable under any written lawsapplicable to the territories of Malaysia

in which the Sub-Contract Works are tobe carried out, or any regulation or bye-law of any local authority or of anystatutory undertaker in respect of theSub-Contract Works. The amount of anysuch fees or charges (including anyrates or taxes) shall be added to the

Sub-Contract Sum:(i) provided that they arise in respect of

the Sub-Contract Works executed ormaterials or goods supplied by a localauthority or statutory undertaker forwhich a prime cost sum is included in

the Specification or for which a primecost sum has arisen as a result of theArchitect's instructions-, and

(ii) provided that the amounts arepriced or stated by way of aprovisional sum in the Specification.

19.0 Determination Of Sub-Contractor'sEmployment By Contractor

19.1 The Contractor shall be entitled todetermine the S u b-Con tractor'semployment if the Sub-Contractormakes default in any of the followinginstances:-(i) without reasonable cause wholly

suspends the carrying out of the Sub-Contract Works before completionthereof. Reasonable cause shallmean compliance with Clause 11.7 oran instruction of the Architect or fromthe Contractor or compliance with adirection or an order from a Statutory

or Governmental body;(ii) fails to proceed regularly and

diligently with the Sub-ContractWorks;

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(iii) refuses or neglects to comply withan instruction of the Architect issuedto him by the Contractor or a written

direction from the Contractorrequiring him to remove or to remedydefective work, improper materials orgoods and by such refusal or neglectthe Progress of the Sub-ContractWorks and/or the Main ContractWorks are materially affected.

19.2 Upon the occurrence of one or any ofthe aforesaid instances the Contractormay give the Sub-Contractor notice byregistered or recorded deliveryspecifyingThe default and if the Sub-Contractorcontinues with such default for fourteen

(14) days after receipt of such notice orat any time thereafter repeat suchdefault (whether previously repeated ornot) then the Contractor; withoutprejudice to any rights or remediesunder this Sub-Contract, may withinfourteen (14) days after suchcontinuance or repetition by notice byregistered post or recorded deliveryforthwith determine the employment ofthe Sub-Contractor under this Sub-Contract, provided that such notice isnot given unreasonably or vexatiously.

19.3 In the event of Sub-Contractor becomingbankrupt or making a composition or

arrangement with his creditors or have awinding up order made or (except forpurposes of reconstruction oramalgamation) a resolution for voluntarywinding up passed or having a liquidatoror receiver or manager of his business orundertaking duly appointed or having

possession taken by or on behalf of theholders of any debentures secured by afloating charge or of any propertycomprised in or subject to the floating

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charge, the employment of the Sub-Contractor shall be automaticallydetermined but the said employment

may be reinstated and continued withthe agreement of the Contractor and theSub-Contractor, his trustee inbankruptcy, liquidator, receiver ormanager as the case may be.

19.

4

In the event that the employment of the

Sub-Contractor is determined underClauses 19.1, 19.2 and 19.3, and so longas it has not been reinstatedandcontinued the following shall be therespective rights and liabilities oftheContractor:-(i) The Contractor shall only be liable for

the value of any work actually andproperly executed and not paid for atthe date of such determination, suchvalue to be calculated in accordancewith Clauses 4.4 and 4.5 of this Sub-Contract, for the value of any unfixedmaterials and goods delivered upo

nthe Site or use in the Sub-ContractWorks the property in which haspassed to the Employer under theterms of the Main Contract and for noother sum or sums whatsoever;

(ii) The Contractor shall have the right torecover, or to deduct from or set offagainst any such amount payable

under sub-clause 19.4(i), the amountof damage suffered and/or loss andexpense incurred by him by reason ofthe determination of the employmentof the Sub-Contractor under this Sub-Contract.

19.5 The provisions of Clauses 19.1, 19.2,

19.3 and 19.4 are without prejudice toany other rights or remedies which theContractor may possess.

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20.0 Determination Of Employment ByThe Sub-Contractor

20.1 If before the date of practical completionof the Sub-Contract Works theContractor shall make default in one ormore of the following respects:-(i) without reasonable cause he wholly or

substantially suspends the carryingout of the Main Contract Works; or

(ii) without reasonable cause he fails toproceed with the Works so thatreasonable progress of the Sub-Contract Works is seriously affected;or

(iii) without reasonable cause, he fails tomake payment to the Sub-Contractor

for a period of one (1) month orlonger from the date of suspension ofwork by the Sub-Contractor pursuantto Clause 11.7.then the Sub-Contractor may give the Contractornotice by registered post or recordeddelivery specifying the default or

defaults.20.2 If the Contractor continues the specifieddefault for fourteen (14) days fromreceipt of the notice under Clause 20.1or at anytime thereafter repeat suchdefault (whether previously repeated ornot) then the Sub-Contractor may withinfourteen (14) days after suchcontinuance or repetition by furthernotice by registered post or recordeddelivery determine his own employmentunder this Sub-Contract. Suchdetermination shall take effect on thedate of receipt of such further notice.

20.3 In the event of the determination of the

employment of the Sub-Contractorunder Clause 20.2 and so long as thatemployment is not reinstated:-

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(i) The Sub-Contractor shall withreasonable despatch remove from thesite all his temporary buildings, plant,

tools, equipment and goods; and(ii) The Sub-Contractor shall with

reasonable despatch prepare andsubmit to the Contractor an accountsetting out the sum of the amountspayable to him. The Contractor shallpay to the Sub-Contractor the amount

properly due in respect of this accountwithin twenty-one (21 ) days of itssubmission by the Sub-Contractor

20.4 The provisions of Clauses 20.1, 20.2 and20.3 are without prejudice to any otherrights or remedies which the Sub-Contractor may possess.

21.0 Determination Of Contractor'sEmployment Under The MainContract

21.1 In the event the Contractor'semployment under the Main contract isdetermined (whether by the Contractor

or by the Employer and whether due toany default of the Contractor orotherwise), then the employment of theSub-Contractor under this Sub-Contractshall be forthwith automaticallydetermined.

21.2 Upon the aforesaid determination of theemployment of the Sub-Contractor heshall be entitled to be paid:-(i) The value of the Sub-Contract Works

completed at the date of suchdetermination, such value to becalculated according to Clauses 4.4and 4.5 of this Sub-Contract.

(ii) The value of Sub-Contract Works

begun and executed but notcompleted at (he date of suchdetermination, such value to be

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calculated according to Clauses 4.4and 4.5 of this Sub-Contract.

(iii) The value of any unfixed materials

and goods delivered upon (fie Site foruse in the Sub-Contract Works theproperty in which has passed to tileEmployer under the terms of theMain Contract.

(iv) The cost of materials or goodsproperly ordered for (lie Sub-Contract

Works for which the Sub-Contractorshall have paid or of which he islegally bound to accept delivery. Onsuch payment by the Contractor anymaterials or goods so paid for shallbecome the property of' tileContractor.

(v) Any reasonable cost of removal fromtile site of his temporarybuildings.plan(, machinery.appliances. goods and materials

22.0 Arbitration

22.1 In the event of any dispute between the

Conti-actor, or the Architect oil hisbehalf and the Sub-Contractor, whetherarising during the execution of- after thecompletion or abandonment of the Sub-Contract Works or after thedetermination of the employment of theSub-Contractor Linder this SUb-Contract,or breach of this Sub-Contract, as to:(i) the carrying out and completion of the

Sub-Contract Works-, or(ii) any matter or thing of whatsoever

nature arising thereunder or illconnection therewith, including anymatter of thing left by this Sub-Contract to the discretion of the

Architect ; or(iii) the withholding by the Architect of

any certificate to which the Sub-Contractor may claim to be entitled

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to; or(iv) the withholding by the Contractor of

any payment to which the Sub-

Contractor may claim to be entitledto; or

(v) the measurement and valuationunder Clauses 4.4 and 4.5; or

(vi) the unreasonable withholding ofconsent or agreement by theContractor or the Sub-Contractor

then such dispute or difference shallbe referred to arbitration.

22.2 Upon the disputes or differences havingarisen then:-(i) any party may serve written notice on

the other party that such dispute ordifferences shall be referred to an

arbitrator to be agreed between theparties ; or(ii) failing agreement or absence of reply

or reluctance to by the other partythen the party serving written noticemay after the expiry of fourteen ( 14)days from the date of the notice toconcur on the appointment of anArbitrator, apply to the President orDeputy President for the time being ofPertubuhan Akitek Malaysia to appointan Arbitrator and such Arbitrator soappointed shall be deemed to bemade with the agreement and consentof the parties to this Sub-Contract.

22.3 Upon appointment the Arbitrator shall,with despatch, initiate the arbitrationproceedings following the provisions ofthe Arbitration Act 1952 (Revised 1972)or any statutory modification or re-enactment thereof for the time being inforce and the PAM Arbitration Rules or

any modification or revision thereof. Thehearing may be held "ex parte" shouldeither party, having been given duenotice, fail to attend.

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22.4 The Arbitrator shall, without prejudice tothe generality of his powers, havepower:-

(i) to rectify the Sub-contract so that itaccurately reflects the trueagreement made by the MainContractor and the Sub-contractor;and

0) to direct such measurements and/orvaluations as may in his opinion be

desirable in order to determine therights of the parties; and

(ii) to ascertain and award any sumwhich ought to have been the subjectof or included in any certificate; and

(iii) to open up, review and revise anycertificate, opinion, decision,

requirement, or notice; and(iv) to determine all matters in disputesubmitted to him in the same manneras if no such certificate, opinion,decision, requirement or notice hadbeen given.

(v) to award interest from such dates atsuch rates and with such rests as hethinks fit:a) on the whole or part of any

amount awarded by him inrespect of any period up to thedate of the award;

b) on the whole or part of anyamount claimed in the arbitration

and outstanding at thecommencement of the arbitralproceedings but paid before theaward was made, in respect ofany period up to the date ofpayment.

(vi) to award interest from the date of

the award (or any later date) untilpayment, at such rates and with suchrests as he thinks fit on theoutstanding amount of any award.

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22.5 Such references except on:-(i) the question of whether or not the

issue of an instruction is empowered

by these Conditions; or(ii) whether or not a certificate has been

properly withheld in accordance withthese Conditions ; or

(iii) whether or not a payment orpayments to which the Sub-Contractor may claim to be entitled

has been properly withheld inaccordance with these Conditions.shall not be opened until afterPractical Completion or allegedPractical Completion of the Sub-Contract Works or termination oralleged termination of the Sub-

Contractor's under this Sub-Contract,or abandonment of the Sub-ContractWorks, unless with the writtenconsent of the Contractor and theSub-Contractor.

22.6 The award of such Arbitrator shall befinal and binding on the parties.

23.0 Mediation23.1 Notwithstanding Clause 22.1 of the

Conditions, upon the agreement of boththe Contractor and the Sub-Contractor,the parties may refer their dispute as toany matter arising under or out of or inconnection with the carrying out of theSub-Contract Works and whether incontract or in tort, or as to any directionor instruction or certificate of' theArchitect or its to the contents of orgranting or refusal of or reasons for anysuch direction, instruction or certificationfor mediation under the Mediation Rules

of Pertubuhan Akitek Malaysia before amediator to be appointed by thePresident or Deputy President for the

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time being of Pertubuhan AkitekMalaysia

23.2 For the avoidance of doubt, prior

reference of the dispute to mediationunder Clause 23.1 shall no( be acondition precedent for its reference toarbitration byeither the Contractor or the Sub-Contractor. nor shall any of their rightsto refer the dispute to arbitration in

pursuant to Clause 22.1 of theConditions be in anyway prejudiced or affected by thisclause. refusal of or reasons for any suchdirection, instruction or certification formediation under the Mediation Rules ofPertubuhan Akitek Malaysia before a

mediator to be appointed by thePresident or Deputy President for thetime being of Pertubuhan AkitekMalaysia. 212 For the avoidance ofdoubt, prior reference of the dispute tomediation underClause 23.1 shall not be a conditionprecedent for its reference to arbitrationby either the Contractor or the Sub-Contractor, nor shall any of their rightsto refertile dispute to arbitration ill pursuant toClause 22.1 of tile Conditions be ill anyway pre~judiced or affected by thisclause.

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