1. APPOINTMENT OF THE SUB-CONTRACTOR
1.1 [COMPANY] hereby appoints [SUB-CON] to construct and complete the whole of the Sub-Contract Works and make good any defects whatsoever in conformity in all respects to the provisions of the EPCC and in accordance with the terms and conditions set out in this Agreement.
1.2 [COMPANY] shall ensure that such parts or parts of the site and such means of access thereto within the Site shall be made available to [SUB-CON] to enable [SUB-CON] to carry out and perform the Sub-Contract Works.
1.3 [COMPANY] shall diligently and promptly submit all progress claims and all other claims to the OWNER upon receipt of the same from [SUB-CON] and follow up with the Owner on the payment of the same into [SUB-CON]’s Account (as hereinafter defined).
1.4 [COMPANY] represents and warrants to [SUB-CON] that it has obtained the Owner’s consent to this Agreement.
2. MAIN CONTRACT
2.1 Unless expressly excluded or varied by the terms of this Agreement, all terms and conditions of the EPCC relating to the Sub-Contract Works shall be deemed incorporated into this Agreement and made a part hereof and read as if [SUB-CON] were a party to the EPCC in place of [COMPANY] and [SUB-CON] shall be deemed to have full knowledge of all the terms and provisions of the EPCC relating to the Sub-Contract Works including all Drawings Specifications and Bill of Quantities and [COMPANY] shall provide [SUB-CON] with a true copy of the EPCC.
2.2 [SUB-CON] shall:-
a) observe, perform and comply with all the provisions of the EPCC (and any amendment or variation thereto) relating to the Sub-Contract Works on the part of [COMPANY] to be observed performed and complied with in relation to the Sub-Contract Works and to be bound thereunder; and
b) indemnify and save harmless [COMPANY] against and from any breach non observance and non-performance by [SUB-CON] or its agents of the provisions in the EPCC in so far as it relates to the Sub-Contract Works AND any act or omission by [SUB-CON] its servants or agents which involves [COMPANY] in any liability to the Owner under the Sub-Contract Works or to any third parties in relation thereto.
2.3 [SUB-CON] hereby acknowledges that any breach by [SUB-CON] of the Sub- Contract may result in [COMPANY] committing breaches of and becoming liable in damages under the EPCC and all such damages, loss and expense are hereby agreed to be within the contemplation of the parties as being a probable result of any such breach by the [SUB-CON] and therefore being the subject of the indemnity referred to in clause 2.2(b).
2.4 As and when [COMPANY] shall receive any request instruction decision order notice confirmation in writing or any documents from the Owner in relation to the Sub-Contract Works, [COMPANY] shall promptly notify and transmit the same to [SUB-CON] who shall take such action as may be necessary in the circumstances.
3. SUB-CONTRACT SUM
3.1 In consideration for the performance and completion of the Sub-Contract Works by [SUB-CON], [COMPANY] agrees to pay [SUB-CON] the sum of RM…… and further agrees to absolutely assign to [SUB-CON] all monies and payments that are payable to [COMPANY] under the EPCC relating to the Sub-Contract Works.
3.2 To give effect to the foregoing assignment, [COMPANY] shall give irrevocable directions and instructions to the Owner to make all payments relating to the Sub-Contract Works directly to [SUB-CON] to [SUB-CON]’s Account (as hereinafter defined) and [COMPANY] shall upon execution of this Agreement give notice of the said assignment to the Owner and obtain its consent to the same. [COMPANY] shall also notify the Owner that any changes to the aforesaid directions and instructions shall not be valid without [SUB-CON]’s express written consent.
3.3 [SUB-CON] shall use its account No…………..at……..Bank (address) specifically for the purpose of receiving the Assigned Payments (hereinafter called “[SUB-CON]’s Account).
3.4 It is expressly understood that [SUB-CON]’s Account shall at all times be under the control of and operated by [SUB-CON] only.
3.5 For the avoidance of doubt, the parties hereto agree that this Agreement is conditional upon [COMPANY] being awarded the EPCC by …… and confirmation in writing by the Owner that all progressive payments from the Owner in relation to the Sub-Contract Works shall be made directly to [SUB-CON]’s Account .
4. COMMENCEMENT AND COMPLETION
4.1 The Sub-Contract shall be deemed to be effective as from the day of and the Sub-Contractor shall commence the Sub-Contract Works within seven (7) days after the letter of award for the EPCC is given to [COMPANY] and possession of site is given or caused to be given by [COMPANY] to [SUB-CON] who shall proceed with the same with due expedition.
4.2 [SUB-CON] shall execute and complete the Sub-Contract Works by the Date for Completion as stated in the EPCC relating to the Sub-Contract Works.
4.3 The Date for Completion of the Works may be extended by [SUB-CON] subject to compliance by [SUB-CON] of the terms and conditions in the EPCC governing the extension of time and [COMPANY] hereby covenants and undertakes to [SUB-CON] that it shall expeditiously forward all details and particulars provided by [SUB-CON] accompanying the request for extension of time to the Owner and use its best endeavors to secure such extension from the Owner.
5. INSTRUCTIONS OF THE OWNER’S REPRESENTATIVE
5.1 [COMPANY] undertakes to convey and dispatch immediately to [SUB-CON] all instructions, correspondence(s) and memoranda received from the Owner in relation and pertaining to the Sub-Contract Works.
5.2 [SUB-CON] shall in connection with the Sub-Contract Works comply with all instructions and decisions of the Owner’s Representative and/or the Engineer which are notified to [SUB-CON] by [COMPANY].
6. SITE REPRESENTATIVE AND CO-ORDINATOR
6.1 [SUB-CON] shall provide all necessary superintendence on Site during the carrying out of the Sub-Contract Works and the Defects Liability Period. [SUB-CON] shall appoint a competent and authorized person who shall be a qualified engineer acceptable to the Owner and who shall be constantly in attendance on the Sub-Contract Works and give his superintendence to the same. The Site Representative shall be in full charge of the Sub-Contract Works and shall receive, on behalf of [COMPANY] and [SUB-CON] directions and instructions from the Owner and or the S.O.The Site Representative shall be authorized to correspond with the Owner and the S.O. and other relevant authorities in the name of [COMPANY] in matters pertaining to the Sub-Contract Works PROVIDED that the Site Representative shall not give any undertaking nor assume any liability on behalf of [COMPANY] without the prior written consent of [COMPANY]. [SUB-CON] hereby agrees and undertakes to indemnify [COMPANY] against all loss and expense suffered or incurred by [COMPANY] to the Owner or to any third party as a consequence of any act or omission of the Site Representative.
6.2 For the purposes of ensuring execution and progress of the Sub-Contract Works in conformity with the provisions of the EPCC pertaining to the said works, [COMPANY] shall be entitled to appoint a Co-ordinator to act on its behalf in relation thereto. The duty of the Co-ordinator is merely to ensure progress of the Sub-Contract Works in compliance with the EPCC and this Agreement and [SUB-CON] remains solely responsible for the proper execution and superintendence of the Sub-Contract Works.
7. ALTERATIONS, ADDITIONS AND OMISSIONS
7.1 [SUB-CON] shall make variations of the Sub-Contract Works whether by way of addition, omission, substitution, alteration, change in quality, form, character, kind, position, dimension, level or line and/or in the specified sequence, method or timing of construction (if any) as may be ordered by the Owner’s Representative under the EPCC and notified in writing to [SUB-CON] by [COMPANY].
7.2 For the avoidance of doubt, it is expressly agreed that [COMPANY] shall not be entitled to any further fees except that as set out under Clause 12 if there are any variation or additional work ordered by the Owner. [COMPANY] shall hold all payments made in respect thereof in trust for [SUB-CON].
8. NOTICES AND CLAIMS
8.1 Without prejudice to the generality of Clause 2 whenever [COMPANY] is required by the terms of the EPCC to give any information, return, account or notice to the Owner’s Representative or to the Owner, [SUB-CON] shall in relation to the Sub-Contract Works give a similar information, return, account or notice or such other information in writing to [COMPANY] as will enable [COMPANY] to comply with the terms of the EPCC and shall do so in sufficient time to enable [COMPANY] comply with such terms punctually. Provided always however that [SUB-CON] shall be excused any non-compliance with this sub-clause for so long as he neither knew nor ought to have known of [COMPANY]’s need for any such information, return, account or notice from him.
8.2 Subject to the [SUB-CON] complying with the provisions of this sub-clause, [COMPANY] shall take all reasonable steps to secure from the Owner such financial benefits, if any, as may be claimable in accordance with the EPCC, and [SUB-CON] shall in sufficient time afford [COMPANY] all information and assistance that may be necessary to enable [COMPANY] to claim such benefits on [SUB-CON]’s behalf. On receiving payment of any such financial benefits from the Owner, [COMPANY] shall in turn make such payment to [SUB-CON].
8.3 In the event of the regular progress of the Sub-Contract Works being materially affected by any act, omission or default of [COMPANY], his servants or agents, [SUB-CON] shall, as soon as such material effect becomes apparent, give written notice thereof to [COMPANY] and the amount of any direct loss or expense thereby caused to [SUB-CON] shall be payable to [SUB-CON] by [COMPANY].
8.4 In the event of the regular progress of the Sub-Contract works being materially affected by any act, omission or default of[SUB-CON], his servants or agents or any sub-contractor employed by [SUB-CON] ,[COMPANY] shall ,as soon as such material effect becomes apparent, give written notice thereof to [SUB-CON] and the amount of any direct loss or expense thereby caused to [COMPANY] shall be payable to [COMPANY] by [SUB-CON].
9. PROPERTY IN MATERIALS AND PLANT
[SUB-CON] shall comply with the requirements of the EPCC as to the bringing on to and removal from the Site of Construction Plant, Temporary Works, materials and other things and in so far as any items thereof are hired by [SUB-CON]; [SUB-CON] shall comply with all the requirements of the EPCC as to the terms of such hirings and as to the giving of information and certificates in relation thereto.
10. INSURANCE, EPF AND SOCSO
10.1 [SUB-CON] shall insure against such risks as are specified in the EPCC and on such terms and for such the benefit of such persons as are specified therein, and unless provided shall maintain such insurance from the time that [SUB-CON] shall first enter upon the Site for the purpose of executing the Sub-Contract Works until it shall have finally performed its obligations under Clause 11 (Maintenance and Defects).
10.2 [SUB-CON] shall bear sole responsibility in respect of all necessary registration under the Malaysian Social Security Scheme (Socso) and Employees Provident Fund (EPF) contributions in respect of its servants and employees.
11. MAINTENANCE AND DEFECTS
After completion of the Sub-Contract Works, [SUB-CON] shall maintain the Sub-Contract Works and shall make good such defects as [COMPANY] is liable to make good under the EPCC for the like period specified therein.
12. CONSIDERATION SUM
12.1 As consideration for the sub-contracting of the Sub-Contract Works to [SUB-CON], [SUB-CON] hereby agrees and undertakes to pay [COMPANY] a sum of Malaysian Ringgit …. only (hereinafter called “the consideration”) in ten (10) tranches as follows :-
Nature of Payment Amount Date of Payment
12.2 The consideration is based on the Sub-Contract being awarded at a sum of RM….to [SUB-CON]. In the event that the sub-contract sum is lower, the consideration will be reduced proportionately to the sub-contract sum awarded. Subject Always that [SUB-CON] is entitled to refuse the acceptance of any Sub-Contract below the sum of RM _____________.
13. DETERMINATION OF THE EPCC
13.1 If before the Sub-Contractor has fully performed its obligations under this Agreement the employment of [COMPANY] is determined under the EPCC, the employment of [SUB-CON] under this Sub-Contract shall also determine and thereupon [SUB-CON] shall with all reasonable speed remove its plant equipment and materials from the Site.
13.2 Upon such a determination of [SUB-CON]’s employment, the other provisions of this Sub-Contract shall cease to have effect save for outstanding payments due to [SUB-CON] and subject to sub-clause 13.3 hereof, [SUB-CON] shall comply with the provisions of the EPCC on the effect of determination of the EPCC
13.3 Nothing in this Clause 13 shall prevent or be deemed to exclude the direct appointment or engagement of [SUB-CON] by the Owner to carry out and complete the Sub-Contract Works after the determination of the EPCC.
14. ARBITRATION
14.1 If any question, dispute or difference shall arise between [COMPANY] and [SUB-CON] out of or in connection with this Agreement, the carrying out of the Sub-Contract Works, whether during the progress of the Sub-Contract Works or after their completion and whether before or after termination, abandonment or breach of this Agreement, either party may give to the other notice in writing of the existence of such question, dispute or difference specifying its nature and the point at issue, and the same shall be referred to the arbitration of two arbitrators one to be appointed by each of the parties and who being so appointed shall appoint an umpire to whom, if the arbitrators fail to agree all matters in dispute, such matters shall be referred. If such appointment by either party is not made within fourteen (14) days after the service of the said notice, such arbitrator shall be such person as may be appointed by the President for the time being of the Institution of Engineers, Malaysia on application by either [COMPANY] or [SUB-CON]. If the appointment of the umpire by the said two arbitrators is not made within one month after the date of appointment of the said two arbitrators, the umpire shall be such person as is appointed by the President for the time being of the Institution of Engineers, Malaysia on application by either [SUB-CON] or [COMPANY].
14.2 Notwithstanding Clause 15 (Language and Law), such arbitration and all matters relating thereto shall be conducted in accordance with and governed by the Arbitration Act 1952 or any statutory modification thereof, the hearing to be held in Malaysia all awards to be published to the parties in Malaysia. The Courts of Malaysia shall have exclusive jurisdiction over all matters relating to the arbitration in respect of which in a Malaysian arbitration they are given jurisdiction by those Acts. Provided that if the question, dispute or difference to be referred to arbitration in connection with this Agreement raises issues which are substantially the same as or connected with issues raised in a related dispute between the Owner and [COMPANY] under the EPCC and if the related dispute has already been referred for determination to an arbitrator or arbitrators, [COMPANY] and [SUB-CON] hereby agree that the question, dispute or difference under this Agreement shall be referred to the arbitrator or arbitrators appointed to determine the related dispute and such arbitrator or arbitrators shall have power to make such directions and all necessary awards in the same way as if the procedure of the Courts of Malaysia as to joining one or more defendants or joining co-defendants or third parties was available to the parties and to him or them.
14.3 No steps shall be taken in the reference to the arbitration until after the completion or alleged completion of the Sub-Contract Works unless with the written consent of [SUB-CON].
14.4 In any such arbitration between [COMPANY] and [SUB-CON], any decision of the Owner’s Representative or the Project Consultant which is final and binding on [COMPANY] under the EPCC shall also be and be deemed to be final and binding between and upon [COMPANY] and [SUB-CON].
14.5 The award of any arbitrator or arbitrators appointed in accordance with sub-clause 14.1 shall be final and binding on the parties.
14.6 [COMPANY] shall upon request by [SUB-CON], allow [SUB-CON] to use its name and assume control (and if necessary will join [SUB-CON] as Claimant) in any arbitration proceedings or other proceedings involving the Owner subject to [SUB-CON] indemnifying [COMPANY] for all costs and expenses that may be occasioned by such arbitration or proceeding.
15. LANGUAGE AND LAW
15.1 This Agreement shall in all respects be construed and operate in accordance with the laws of Malaysia.
15.2 All correspondences and notices pertaining to this Agreement shall be in English.
16. POWER OF ATTORNEY
In consideration of the premises, the consideration to be paid to [COMPANY] and for the more effective performance and execution of the Sub-Contract Works in accordance with the EPCC and each and every act matter or thing necessary for the performance of the said works [COMPANY] hereby appoint MR. …….. (NRIC NO. ……) and/or MR……… (NRIC NO………) whose specimen signatures are shown hereunder, as the true and lawful attorney(s) of [COMPANY] to do or execute all or any of the acts and things hereunder mentioned with regard to the Sub-Contract Works that is to say:-
16.1 To comply with the discharge of each and every requirement as contained in the EPCC in so far as it relates to the Sub-Contract Works;
16.2 To discuss negotiate compromise approve and agree with the Owner and or its representatives on each and every subject matter pertaining to the EPCC in so far as it relates to the Sub-Contract Works;
16.3 With full and absolute authority to bind [COMPANY] to negotiate and reach agreement with the Owner and any party to enter into each and every nature and type of contractual instrument deed agreement letters and every other documents for the purpose of the said Sub-Contract Works and to execute the aforesaid documents on [COMPANY]’s behalf and without prejudice to the generality of the foregoing the documents to be executed shall include but shall not be limited to the Form of Agreement, the letter of Acceptance and the EPCC;
16.4 To transact manage carry out perform execute and do all and every matter requisite and necessary or in any manner connected with or having reference to the Sub-Contract Works and every act matter or thing necessary for the successful performance of the said Works;
16.5 To execute sign seal deliver and perform all deeds contracts receipts acknowledgements notices instruments documents and letters necessary and proper for effectively doing and causing to be done any or all of the acts and things which by this Power of Attorney an Attorney is empowered to do on [COMPANY]’s behalf;
16.6 With reference to the Sub-Contract Works to negotiate enter into sign vary execute and perform all or any contracts and agreement for and on behalf of and in the name of [COMPANY] with any company firm or individual;
16.7 With reference to the Sub-Contract Works to bind [COMPANY] to act either jointly with any other company form or individual in relation to all matters to which this Power of Attorney extends;
16.8 For all or any purposes of this Power of Attorney for [COMPANY]’s behalf and in the name of [COMPANY] to give and execute all such bonds guarantee indemnities covenants and obligations as the Attorney may think necessary or proper;
16.9 To effect and maintain on [COMPANY]’s behalf and on behalf of other necessary parties all manner of insurance as required with reference to the Sub-Contract Works;
16.10 To give and accept receipt for all monies in the name of [COMPANY] and to pay and discharge all debts owing by [COMPANY] with reference to the Sub-Contract Works and to receive all monies owing to [COMPANY];
16.11 To make and sign all applications to the appropriate government departments local authorities or other competent authorities for all and any licences permissions or consents required by any Act of Parliament order statutory instrument by-law or otherwise in connection with the Sub-Contract Works;
16.12 For the better and more effectually executing the powers and authorities herein granted or any of them to retain and employ lawyers solicitors advocates or any professional qualified person to advise for or represent [COMPANY];
16.13 To bring defend any legal action or other proceedings in respect of or affecting the interest or rights of [COMPANY] and to settle compromise or submit to arbitration all or any accounts claims and disputes between [COMPANY], the Owner and any other company or persons pertaining to the Sub-Contract Works;
16.14 And for more effectively removing any doubt which may arise as to the true meaning of this deed or as to the construction or application of the powers hereby granted, [COMPANY] hereby declares that the powers hereby granted shall not in any case be deemed to revoke any power or authorities hereto before given by [COMPANY] to the attorney or be deemed to be limited to such transaction and matters as are herein expressly mentioned but the same are intended to extend and shall extend to any other matters or transactions not herein precisely mentioned or defined which in the course of the performance and execution of the Sub-Contract Works may be deemed by the Attorney requisite or expedient to be performed;
16.15 And it is hereby declared that [COMPANY] hereby ratifies and confirms and promises at all times to allow ratify and confirm all and whatever the Attorney shall lawfully do or purport to do or cause to be done in relation to any matter pertaining to the Sub-Contract Works by virtue of this Power of Attorney including anything which shall be done between the revocation of this Power of Attorney due to whatever reasons and notice of such revocation reaching the Attorney. And [COMPANY] hereby declares that [COMPANY] hereby grant the Attorney [COMPANY]’s full power and authority to act for the purposes of this Power of Attorney as effectually to all intents and purposes as if [COMPANY] were personally present and performed the same and hereby ratify and confirm whatsoever the Attorney shall lawfully do or cause to be done by virtue of this Power of Attorney and further declare the power or authority hereby conferred to be irrevocable and shall continue in force until this agreement is terminated by [SUB-CON]/the Owner or until the defects liability period for the Sub-Contract Works is over.
17. PARTIES DULY AUTHORISED
The parties hereto represent and warrant to one another that he transaction herein contemplated have been duly and validly authorised by all necessary corporate action where elevant on the part of each of them and each have full corporate power and lawful authority to execute and deliver this Agreement and to consummate and perform the transactions contemplated herein.
18. MISCELLANEOUS
18.1 In the event that any part of this Agreement shall be held invalid as contrary to any law statute or regulation in that regard the invalidity of such part shall in no way affect the validity of any other part of this Agreement and each and every part shall be severable from each and every other.
18.2 Save as provided in this Agreement none of the respective rights and obligations of the parties hereto shall be assignable except with the prior consent in writing of the other party. This Agreement shall enure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto.
18.3 This Agreement supercedes all written memoranda and agreements and any representations or understandings written or otherwise between the parties hereto.
