Construction Industry Sub-Contract: Fixed Price, Payment Notice, With Retention
This Construction Industry Sub-Contract (Fixed Price, Payment Notice, With Retention) can be used by a builder or main contractor to appoint any kind of building/construction sub-contractor, such as a plumber, electrician, plasterer, bricklayer, tiler, roofer etc. This template is suitable for all small scale building/construction projects.
The data protection provisions in this document have been updated with reference to the UK GDPR.
This agreement provides for a fixed price for the job, with payments to be made in instalments. The payment procedure requires the contractor to serve a payment notice rather than the sub-contractor submitting an invoice.
There are retention provisions. If retention is not required, please use one of our “No Retention” templates.
If payment is to be made in instalments based on invoices submitted by the sub-contractor, please see our “Invoiced Instalments Sub-Contracts”. If there is simply to be one payment on completion of the works, please see our “Lump Sum Payment” templates.
There are also various other forms of sub-contract in this group of documents that a builder or main contractor can use to engage a sub-contractor. If a more robust sub-contract template is required, including provisions for variations, extensions of time and liquidated damages, please see our “Longer Form Sub-Contracts” in this group.
All of these construction documents have been professionally drafted for use by those involved in construction projects.
In this Construction Industry Sub-Contract (Fixed Price, Payment Notice, With Retention):
- Clause 1 contains definitions. Brief details of the Main Contract need to be given. A description of the sub-contract Works should be inserted in the Schedule.
- Clause 2 covers engagement of the Sub-Contractor.
- Clause 3 deals with timescales. Dates can be inserted for the Works to start and finish. There is a requirement for the Sub-Contractor to rectify any defects that are notified to him within 3 months of practical completion.
- Clause 4 sets out the Sub-Contractor’s obligations. These include carrying out the Works in a proper manner, provision of tools and materials and compliance with laws and regulations.
- Clause 5 contains the Contractor’s obligations. These cover providing access to the site, providing tools and materials (optional) and compliance with the Construction, Design & Managements Regulations (the CDM Regulations).
- Clause 6 relates to liability, indemnity and insurance. There is the option to limit the Sub-Contractor’s liability to a fixed sum.
- Clause 7 covers payment. The agreed price must be inserted here. The Contractor is required to submit payment notices on a monthly basis and to pay the amount stated in the notice within 14 days. If the Contractor fails to serve a payment notice the Sub-Contractor may submit a payment application. A specified percentage of the price (e.g. 5%) is retained until four months after practical completion or one month after any defects have been remedied.
- Clause 8 deals with non-competition and non-solicitation. These optional provisions protect the Contractor by restricting the Sub-Contractor's ability to provide similar services for competitors and by preventing the Sub-Contractor from "poaching" the Contractor's staff or clients. Both restrictions are subject to optional limitations including time and geographical radius.
- Clause 9 is compliant with the UK GDPR. One or both sub-clauses in square brackets should be retained, if and as appropriate, where there is to be any data processing (sub-clause 9.6) and/or data sharing (sub-clause 9.5). However, if there is to be data processing but you prefer not to have to prepare a separate Data Processing Agreement (referred to in sub-clause 9.6), you may, in place of 9.6, insert our data processing clauses numbered 1.2 – 1.8 and Schedule: you will find them by clicking here.
- Clause 10 requires both parties to keep information about the other party confidential.
- Clause 11 is a “force majeure” clause. A party will not be held liable for a delay that is caused by an “act of god”.
- Clause 12 deals with termination of the Agreement. Either party can terminate if the other is in breach of the agreement or becomes insolvent. The Agreement terminates automatically if the Main Contract is terminated. There is an optional clause allowing no-fault termination by giving 28 days’ notice in writing.
- Clause 13 covers dispute resolution and refers to negotiation, mediation, adjudication and arbitration.
- Clause 14 contains miscellaneous standard clauses including provisions for the service of notices.
- Clause 15 is a jurisdiction clause.
- The Schedule needs to be completed by the parties with details of the works and the goods, materials and equipment that each party will provide.
Optional phrases / clauses are enclosed in square brackets. These should be read carefully and selected so as to be compatible with one another. Unused options should be removed from the document.
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