ACCEPTANCE, MAINTENANCE AND DEFECTS – SUBCONTRACT AGREEMENT
- The SUBCONTRACTOR shall, as stated in the Subcontract, carry out the Tests on Completion in accordance with Clauses 11 and 23, after providing the Completion Documents to the CONTRACTOR. The SUBCONTRACTOR shall give to the CONTRACTOR not less than twenty (20) Days’ (or longer period, if required under the Main Contract) notice of the date after which the SUBCONTRACTOR will be ready to carry out Tests on Completion. Unless otherwise agreed, the Tests on Completion shall be carried out within fifteen (15) Days (or any other period stated in the Main Contract) after this date, on such day or days as the CONTRACTOR instructs. As soon as the Subcontract Works, or a section, have passed any Tests on Completion, the SUBCONTRACTOR shall submit a certified report of the results of these tests to the CONTRACTOR. (See Particular Terms and Conditions Appendix P)
- If the Tests on Completion are being unduly delayed by the SUBCONTRACTOR, the CONTRACTOR may by notice require the SUBCONTRACTOR to carry out the tests within twenty (20) Days after receiving the notice. The SUBCONTRACTOR shall carry out the tests on such day or days within that period as the SUBCONTRACTOR may fix and of which he shall give notice to the CONTRACTOR.
If the SUBCONTRACTOR fails to carry out the Tests on Completion within the period of twenty (20) Days, the CONTRACTOR may proceed with the tests at the risk and cost of the SUBCONTRACTOR. The Tests on Completion shall then be deemed to have been carried out in the presence of the SUBCONTRACTOR and the results of the tests shall be accepted as accurate.
- If the Subcontract Works, or a section, fail to pass on Tests on Completion, Clause 11.4 shall apply, and it shall require the failed tests, and Tests on Completion on any related work, to be repeated under the same terms and conditions.
- If the Subcontract Works, or a section, fail to pass the Tests on Completion repeated under this provision, the CONTRACTOR shall be entitled to:
- order further repetition of Tests on Completion under Clause 23;
- if the failure deprives the COMPANY of substantially the whole benefit of the Subcontract Works or section on account of a default or failure of the SUBCONTRACTOR, reject the Subcontract Works or section (as the case may be), in which event the CONTRACTOR shall have the same remedies as are provided in Sub-clause 16.1; or
- issue a Certificate of Acceptance, if the COMPANY so accepts.
In the event of paragraph c) of Clause 23.4, the SUBCONTRACTOR shall proceed in accordance with all other obligations under the Subcontract, and the Subcontract Price shall be reduced by such amount as shall be appropriate to cover the reduced value to the COMPANY and all other costs incurred by the CONTRACTOR as a result of this failure. Unless the relevant reduction for this failure is stated (or its method of calculation is defined) in the Subcontract, the CONTRACTOR may require the reduction to be (i) agreed by both Parties (in full satisfaction of this failure only) and paid before this Certificate of Acceptance is issued, or (ii) determined and paid at the CONTRACTOR’s sole discretion.
- Except as stated in Clause 23.4, the Subcontract Works shall be taken over by the CONTRACTOR when (i) the Subcontract Works have been completed in accordance with the Subcontract, including the matters described in Clause 7 and except as allowed in paragraph a) below, (ii) the SUBCONTRACTOR has furnished the CONTRACTOR with the Liens release letter in the form as set forth in Appendix L, and (iii) a Certificate of Acceptance for the Subcontract Works has been issued.
Unless otherwise stated in the Subcontract, the SUBCONTRACTOR may apply by notice to the CONTRACTOR for a Certificate of Acceptance not earlier than fifteen (15) Days before the Subcontract Works will, in the SUBCONTRACTOR’s opinion, be complete and ready for taking over.
If the Subcontract Works are divided into sections, the SUBCONTRACTOR may similarly apply for a Certificate of Acceptance for each section.
The CONTRACTOR shall, within thirty (30) Days after receiving the SUBCONTRACTOR’s application or otherwise in consideration of the relevant conditions of Main Contract:
- issue the Certificate of Acceptance to the SUBCONTRACTOR, stating the date on which the Subcontract Works or section were completed in accordance with the Subcontract, except for any minor outstanding work and defects which will not substantially affect the use of the Subcontract Works or section for their intended purpose (either until or whilst this work is completed and these defects are remedied), or
- reject the application, giving reasons and specifying the work required to be done by the SUBCONTRACTOR to enable the Certificate of Acceptance to be issued. The SUBCONTRACTOR shall then complete the work before issuing a further notice under this Clause 23.5.
- Notwithstanding Clause 23.1 to 23.5, acceptance of the Subcontract Works shall take place after acceptance by the COMPANY of the same under the Main Contract. No acceptance shall be deemed to have been given unless a Certificate of Acceptance is issued by the CONTRACTOR. (See Particular Terms and Conditions Appendix P)
- If the SUBCONTRACTOR completes the Subcontract Works before the completion of the Main Contract Works, or where the Main Contract Works are to be completed in sections under the Main Contract, before the completion of the last of such sections in which the Subcontract Works are comprised, the SUBCONTRACTOR shall maintain the Subcontract Works free from any defects, non-compliances and deficiencies in design and suitable and fit for its intended purpose (as stated in or to be reasonably implied from the Subcontract) and shall make good every defect and imperfection therein from whatsoever cause arising until the commencement of the Warranty Period and shall not be entitled to any additional payment for so doing. (See Particular Terms and Conditions Appendix P)
- The Warranty Period shall commence on the date of the Certificate of Acceptance. The SUBCONTRACTOR warrants and guarantees that any and all parts of the Subcontract Works furnished or performed under the Subcontract shall be free from any defects, non-compliances and deficiencies in design and suitable and fit for its intended purpose (as stated in or to be reasonably implied from the Subcontract) in design, materials and workmanship both during the progress of the Subcontract Works and the Warranty Period irrespective of the causes thereof. (See Particular Terms and Conditions Appendix P)
- Save as otherwise provided in Clauses 23.5, 23.6, 23.10, and 23.11, the initial Warranty Period shall be the period set forth in Article 7 of the Particular Conditions.
- The relevant Warranty Period for any part or component of the Subcontract Works repaired or replaced during the relevant Warranty Period shall be extended for a period of [twelve (12)] months from the date of completion of such repair or replacement, subject in each case to a maximum Warranty Period of [twenty four (24)] months from the issuance of Certificate of Acceptance.
- In addition to the SUBCONTRACTOR’s foregoing obligations in relation to defects liability, the SUBCONTRACTOR shall be liable for decennial or similar liability in respect of civil and/or structural works in accordance with the laws of the Country. (See Particular Terms and Conditions Appendix P)
- The SUBCONTRACTOR shall be responsible for making good any defects or non-compliances or deficiencies in or damage as a result of the defect to the Subcontract Works or any part thereof which may appear or occur before or during the relevant Warranty Period applicable to that part of the Subcontract Works and which arises from either:
- any design, engineering, Materials, Plant, SUBCONTRACTOR’s Equipment tools and consumables, workmanship, not being in accordance with the Subcontract; or (See Particular Terms and Conditions Appendix P)
- any failure by the SUBCONTRACTOR to comply with any of its obligations pursuant to the Subcontract.
- If the SUBCONTRACTOR fails to remedy a defect or non-compliance in or damage as a result of such defect or non-compliance to any part or component of the Subcontract Works within a reasonable time following written notice from the CONTRACTOR, the CONTRACTOR may, without prejudice to any right it may have to terminate the employment of the SUBCONTRACTOR under the Subcontract, execute or procure the execution of the remedial work at the SUBCONTRACTOR’s risk and cost, provided that it does so in a reasonable manner. The costs properly incurred by the CONTRACTOR in remedying such defect, non-compliance or damage shall be due to the CONTRACTOR from the SUBCONTRACTOR and may be deducted from the Subcontract Price or recoverable as a debt by the CONTRACTOR against the SUBCONTRACTOR.
- The SUBCONTRACTOR’s obligations under the Subcontract including, without limitation, the requirements of Clauses 12, 20, 21, and 22 shall be applicable to any work executed by the SUBCONTRACTOR during the Warranty Period.
- The acceptance of the Subcontract Works including issuance of a Certificate of Acceptance by the CONTRACTOR shall not in any way relieve the SUBCONTRACTOR of its obligations or responsibilities under Clause 23.