- Scope of Work. The Scope of Work shall include only the work set forth in the attached Subcontractor’s proposal or description of work, which proposal or description is expressly incorporated and made a part of the Subcontract Documents between the Contractor and the Subcontractor.
- Contract Documents. Subcontractor shall have the benefit with respect to the Contractor of all the same rights, remedies and redress that the Contractor has with respect to the Owner. No terms and conditions or other document that Contractor includes by reference in the Subcontract shall be binding on the Subcontractor unless a copy of any such terms and conditions or document has been furnished to the Subcontractor prior to execution of the Subcontract unless expressly accepted in a writing signed by the Subcontractor.
- Project Financing Disclosures. Subcontractor shall be provided, upon written request, with the legal description of the property, the name, address and representative of the Owner, and evidence of adequate owner project financing. The Contractor shall notify Subcontractor within 48 house of discovery by Contractor of material changes in the Owner’s identity or financial arrangements. Subcontractor shall not be obligated to commence or continue Subcontract Work unless adequate assurance of payment is received.
- Warranty and Rejection of Work. Notwithstanding any higher standard stated elsewhere, Subcontractor’s work shall be executed in substantial compliance with the Subcontract Documents in a good and workmanlike manner and free of defect not inherent in the type of work. Contractor may reject Subcontract Work only for demonstrated non-compliance with the Subcontract Documents and only if the Architect/Engineer concurs that the Subcontract Work is unacceptable. The foregoing warranty for defective materials and workmanship shall be for a period of one year from the date of substantial completion of Subcontractor’s work unless otherwise specifically agreed in writing signed by Subcontractor. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, AN ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
- Site Inspection and Completeness of Plans. Subcontractor’s obligations to examine documents, project site, and materials and work furnished by others is limited to the obligation to bring to the attention of the Contractor any defects or deficiencies that a person in the trade of the Subcontractor would discover by reasonable sight inspection. No testing beyond reasonable sight inspection shall be required. Subcontractor is entitled to rely on the accuracy and completeness of the plans and specifications provided to the Subcontractors.
- Design Delegation. Any design services provided by the Subcontractor or its Designer will be reviewed by the Architect/Engineer responsible for the overall project to assure that the design will be acceptable when integrated with the entire work. Contractor, Owner and Architect are entitled to rely on the accuracy and completeness of the designers hired by Subcontractor only if all design criteria are furnished to the Subcontractor by a the Contractor, Owner and Architect.
- Project Schedule. The project schedule and any modification shall allow Subcontractor a reasonable time to complete Subcontractor’s Work in an efficient manner considering the contract completion date or times set forth in the Subcontract Documents. Subcontractor shall be entitled to an equitable adjustment in the price of the work, including but not limited to any increased costs of labor, including overtime, or materials, resulting from any change of schedule, acceleration, out of sequence work or delay caused by others for whom Subcontractor is not responsible. Subcontractor shall not be required to commence or continue work unless sufficient areas are ready to ensure continuous work.
- Subcontractor Claims. Subcontractor’s entitlement to adjustments in the subcontract time or price for changes in the work shall not be contingent upon or limited to the amount that the Contractor receives from the Owner. Under no circumstances does the Subcontractor waive its right to payment for extra work performed by the Subcontractor pursuant to instruction from the Contractor.
- Retainage. Contractor shall not withhold from Subcontractor as retainage a percentage that is higher than the percentage held by Owner on Subcontractor’s Work. Within seven (7) days after receiving any retainage relating to Subcontractor’s work, Contractor will pay the same to Subcontractor or interest shall be accrued as provided below for late payments. Contractor will use best efforts to secure release of retainage as soon as possible in accordance with Contractor’s agreement with Owner. All retainage withheld from Subcontractor’s progress payments shall be released within 30 days after substantial completion of Subcontractor’s work, less the reasonable value of uncompleted work. Contractor shall pay Subcontractor from the amount withheld fro uncompleted work on a monthly basis as each item of work in completed.
- Payment. No provision of this Subcontract shall serve to deny Subcontractor’s entitlement to full payment each calendar month for properly performed work or suitable stored materials. Payments shall be due monthly, to be received by the 20th day of each month for invoices submitted the previous month, but in no event shall be due later than seven (7) days after payment is received or should have been received by Contractor from Owner. Interest shall become due and payable on any subcontractor billing that remains unpaid after the payment due date. The rate of interest shall be the legal rat of interest, 18%. Should Subcontractor’s payment be delayed because (a) Owner fails to make timely payment of amounts certified and approved, or (b) Contractor fails to make timely payment after received funds from Owner for Subcontractor’s work, or (c) because Owner declines to approve or certify payment for reasons not the fault of or directly related to Subcontractor’s work, then Subcontractor may suspend work after giving at lease three (3) days written notice to Contractor of the intent to suspend and the date of intended suspension. Should the Subcontractor’s work be thereafter suspended for at least 21 days, Subcontractor may terminate this subcontract upon written notice of termination to Contractor. Subcontractor’s right to be paid in not contingent upon actual receipt by contractor of payment by the owner for the subcontractor’s work.
- Payment Use Restriction. Payments received by the Contractor for Subcontract Work shall be held in trust and used solely for the benefit of Subcontractor and those for whom it is responsible.
- Temporary Site Facilities. Contractor shall supply all temporary site facilities and utilities without cost to the Subcontractor unless specifically agreed in writing signed by Subcontractor.
- Closeout Documentation. Contractor will not require any contract closeout procedures or any forms that have not been provided to and specifically accepted by the Subcontractor prior to signature of the Subcontract.
- Subcontractor Waivers. Any form or contract language wherein the Subcontractor purports to release the Contractor, Owner or Design Professional is hereby qualified by the following language whether or not the Subcontractor specifically adds the language: This release shall apply only to work for which payment has been received in full by Subcontractor; shall not apply to retention; shall not apply to unbilled changes, to claims which have been asserted in writing or which have not yet become known to Subcontractor; and shall be conditional upon receipt of funds to Subcontractor’s account.”
- Hold Harmless Restriction. Any indemnification or hold harmless obligation of the Subcontractor shall extend only to claims relating to bodily injury and property damage and then only to that part or proportion of any claim, damage, loss or defect that results from the negligence or intentional act of the indemnitor or someone for whom it is responsible. Subcontractor shall not have a duty to defend.
- Suspension of Work. In the event of a suspension of work by the Owner, Contractor, or Subcontractor, Contractor’s liability to the Subcontractor is for payment in full for all Work performed to date of suspension and any additional costs incurred as a result of the suspension, including demobilization and remobilization, plus reasonable overhead and profit.
- Termination of Subcontract. In the event of any termination by the Owner or Contractor which is not justified by a default of the Subcontractor, or termination by Subcontractor, Subcontractor shall be entitled to payment from the Contractor for all costs incurred by the Subcontractor for which the Subcontractor has not received payment, including, but not limited to, reasonable overhead, profit, expenses and damages, including attorneys’ fees and interest, including profit on unperformed work.
- Lien and Bond Rights Preserved. Notwithstanding any provision to the contrary, Subcontractor may take all steps reasonably necessary to preserve and enforce its lien and bond rights.
- Governing Law and Venue Restriction. Any dispute shall be governed by the law of North Carolina. The state courts in Catawba County, North Carolina shall have exclusive jurisdiction and venue.
- Attorney’s Fees and Costs. Should either party employ an attorney to institute litigation or arbitration to enforce any provision of this Subcontract or to collect damages or debt under this Subcontract, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and expenses incurred.
- Consequential Damages. Contractor shall make no demand for liquidated damages or actual damages for delays in excess of the amount assessed against the Contractor and paid by the Contractor for unexcused delays actually caused by Subcontractor. Subcontractor shall not be subject to any consequential damages other than any contractually provided liquidated damages. The Contractor expressly waives all consequential damages.
- Backcharge Claims. No backcharge or claim of the Contractor for services shall be valid except by an agreement in writing by the Subcontractor before the work is executed, except in the case of the Subcontractor’s failure to meet any requirement of the Subcontract. In such event, the Contractor shall notify the Subcontractor of such default, in writing, within 48 hours of discovery by contractor of any alleged deficiency or quality problem with the subcontractor’s work, and allow the Subcontractor reasonable time to correct any deficiency before incurring any costs chargeable to the Subcontractor. No backcharge shall be valid unless billing is rendered no later than the 15th day of the month following the charge being incurred. Furthermore, any payments withheld under a claim of Subcontractor default shall be reasonably calculated to cover the anticipated liability and all remaining payment amounts not in dispute shall be promptly paid.
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