Terms & Conditions

General Duties of Subcontractor

1. Subcontractor shall commence the Work when directed by Contractor. Subcontractor shall diligently perform and complete the Work in strict accordance with the Subcontract.
2. As to Subcontractor’s Work:
   1. Subcontractor assumes toward Contractor all the obligations, including administrative and procedural, which Contractor assumes toward Owner or other persons under the Prime Contract.
   2. Contractor shall have all the rights and remedies against Subcontractor which Owner or other persons have against Contractor under the Prime Contract.
   3. Except as specifically set forth in the Subcontract, Subcontractor shall not have any rights against Contractor which Contractor does not have against Owner under the Prime Contract.
3. Subcontractor shall be responsible for the layout and correctness of the Work.
4. Subcontractor shall furnish daily reports in the time and form requested by Contractor.
5. Subcontractor shall participate in meetings as requested by Contractor.
6. Subcontractor shall be solely responsible to Contractor for all means, methods, techniques, sequences and procedures for, and for coordinating with others all portions of, the Work.
7. Subcontractor shall provide Owner and Contractor with access to the Work and the premises of the Work at all reasonable times.
8. Security clearance requirements are at the cost of the Subcontractor. It is the Subcontractor’s responsibility to provide names and dates of birth of new employees that are added throughout the project for Contractor to maintain site security.
9. Within 96 hours after the Subcontract is entered into, the Subcontractor must submit to the Contractor, all the documents required in the relevant purchase order and accompanying correspondence. If the Project is located in the Province of Quebec, the Subcontractor shall also provide an Attestation from Revenu Québec, a CSST registration confirmation, a copy of the company’s Articles of Incorporation or the NEQ, a certificate of attestation confirming the state of registration of a company in respect of the Subcontractor in the enterprise register, and proof of the Subcontractor’s authority to execute this document.

EEO

1. Subcontractor shall not discriminate against any individual with respect to hire, discharge, compensation, terms, conditions or privileges of employment, or segregation of facilities because of such person’s race, color, religion, sex, age, disability, national origin, or other status protected by applicable law.

Schedule

1. Subcontractor shall provide Contractor with any requested scheduling or productivity information for the Work within 96 hours of request. Subcontractor shall perform and complete the Work in accordance with the Schedule, when and in such sequence as directed by Contractor, so as not to conflict or interfere with the work of others or the activities of Owner. Time is of the essence in this Subcontract.
2. Subcontractor shall indemnify and hold harmless Contractor from and against any increased costs and expenses, including any penalty, liquidated damages, or liability of Contractor to Owner or others, arising or resulting from Subcontractor’s failure to comply with the Schedule. Changes to the Schedule resulting from Subcontractor’s failure to perform to an earlier version of the Schedule shall not excuse this indemnification obligation.
3. If Subcontractor’s performance is delayed or interfered with by Owner, Contractor or other subcontractors, or acts of God or other causes beyond its control, Subcontractor may present a Claim for an extension of time in accordance with this Subcontract, but Subcontractor shall not be entitled to any resulting increase in the Subcontract Price or additional compensation or damages except to the extent that the Prime Contract entitles Contractor to compensation from Owner for such delays, and then only to that amount which Contractor shall actually recover from Owner on behalf of Subcontractor. Subcontractor expressly waives and releases any other right to damages or additional compensation related to delays.
4. In no event will Subcontractor be entitled to time or monetary relief related to delay unless: (a) Subcontractor gives Contractor notice of the delay in writing in accordance with the Subcontract, including the time limits in section 22; (b) the cause of such delay was extraordinary and unforeseeable and without the fault of Subcontractor or Subordinate Parties; and (c) Subcontractor and Subordinate Parties have used all reasonable diligence to prevent, avoid, remove, and mitigate the delay and its impacts. In no event will Subcontractor be entitled to monetary relief related to delay in the form of acceleration costs, productivity losses, lost profits, home office overhead, special, consequential, or indirect damages, or other damages or costs resulting indirectly from delay. In the event Subcontractor shall be entitled to compensation under this provision, it shall only be entitled to recover the cost of labour, equipment, materials, supervision and other costs directly provided to site which result directly from any compensable delay within the meaning of this article.

Payment

1. Contractor agrees to pay Subcontractor, from funds received from Owner, for the satisfactory performance of the Work, the Subcontract Price all pursuant to the applicable law to the extent it applies to this Subcontract.
2. Subcontractor will submit to Contractor applications for payment in triplicate on or before the 20th of the month, or as otherwise provided in the Subcontract, in order that Contractor may apply for payment from Owner under the Prime Contract. Should the Subcontractor fail to submit progress billing by the 20th of the month, billing will be postponed until the next progress billing is submitted by the Contractor to its client. The amount invoiced in the Subcontractor’s monthly progress billing shall represent the value, in proportion to the amount of the agreement, of the Work performed and the Products delivered to the Work Site up to the 30th day of the month. Subcontractor shall furnish to Contractor such certificates, waivers, releases, sworn statements, and other documentation, as Contractor may request, in form satisfactory to Contractor and Owner. Contractor shall have the right, at its sole option, to withhold from pay applications, until final payment, retention of up to 10% (or such other amount as established in the Subcontract or applicable law).
3. Unless Owner’s failure to pay is caused solely by the wrongdoing of Contractor, the obligation of Contractor or Contractor’s surety to pay Subcontractor is expressly preconditioned (a condition precedent) upon receipt of each payment from Owner and the amount allowed and paid to Contractor on account of Subcontractor’s Work. This condition applies to payments of every type, including progress payments, retention payments, Change Order payments, final payment, or otherwise. This condition applies without regard to the reason that Owner has failed to pay, even if such reason is the insolvency or bankruptcy of Owner. Subcontractor relies solely and exclusively on the credit of Owner, not of Contractor.
4. Payment for stored material shall be at the discretion of Contractor and Owner and subject to such documentation and insurance as they may require.
5. No payment shall be taken as an admission by Contractor of the amount of work done, its classification, quality, sufficiency or the sum due Subcontractor or as an acceptance or release of Subcontractor from responsibility under the Subcontract.
6. Subcontractor will receive and hold the payments by Contractor as a trust fund to be applied first to the payment of Subordinate Parties.
7. Contractor may issue backcharges against the Subcontract Price for increases in Contractor’s costs that result from Subcontractor’s failure to comply with the Subcontract, or other costs which are chargeable to Subcontractor under the Subcontract. Contractor will provide written notice of any such backcharge.
8. Contractor shall have the right to withhold payment for Work not performed to required standards; claims of Contractor, Owner or any other person against Subcontractor arising out of or in any way connected with the Work; failure to pay Subordinate Parties; Liens; failure to supply required documentation; anticipated inability of Subcontractor to complete the Work for the balance of the Subcontract Price; or any other breach of this Subcontract. If any such situations are not promptly corrected or remedied after written notice, Contractor may rectify the same at Subcontractor’s expense and deduct all costs and expenses incurred from such withheld payments.
9. If Contractor has cause for concern of whether all payments have been made or will be made as required to Subordinate Parties or creditors, Contractor, in its sole discretion and without limiting its other remedies, after 72 hours written notice to Subcontractor, has the right to issue payments either by joint cheque, payable to both Subcontractor and the Subordinate Party or creditor, or directly to the Subordinate Party or creditor. By commencing the Work, Subcontractor consents to such payments being made by the Contractor in the Contractor’s sole discretion and to the extent applicable for Projects located in Ontario, such payment shall act as one made pursuant to s. 28 of the Construction Act (Ontario). Such payments shall be applied against the Subcontract Price to the same extent as if the payment were made solely to Subcontractor. Contractor’s right to issue joint checks or direct payments shall in no event create an obligation on the part of Contractor to exercise this right on behalf of a Subordinate Party or creditor.
10. Should Subcontractor be in debt to Contractor for any reason, whether in connection with this Subcontract or a separate agreement, Contractor shall have the right to apply funds due under this Subcontract against the debt owed.
11. Subcontractor shall keep complete and accurate books, records, accounts and invoices for all material and labor provided. Contractor shall have the right, at any time, to audit Subcontractor’s books relative to claims, Change Orders, cost-based pricing, and performance under the Subcontract.
12. Subcontractor shall not recover interest or late fees on late or delayed payments except (a) to the extent interest is recovered by Contractor from Owner under the Prime Contract, or (b) as otherwise required by applicable law.
13. Subcontractor’s right to final payment is expressly conditioned (a condition precedent) on Contractor’s or Contractor’s surety’s receipt of final payment from Owner and Subcontractor’s final completion of the Work, including submission in form satisfactory to Contractor, of all documents required by the Subcontract or reasonably requested by Contractor, including invoices, certificates, waivers, releases, sworn statements, as-built documents, warranties, instruction manuals, test reports, and consent of surety.
14. Receipt of final payment waives and releases all claims by Subcontractor against Contractor and Owner relating to the Subcontract except those expressly preserved by written agreement concurrent with final payment.
15. If money is owed from Subcontractor to Contractor under the Subcontract for any reason, including overpayments or legitimate back charges, Subcontractor shall pay such money to Contractor within 14 days after written demand.

Indemnification

1. To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless Contractor and its agents, employees, owners, officers, members, partners, affiliates, and successors from and against any and all liabilities, claims, causes of action, lawsuits, or expenses arising from (a) Subcontractor’s breach or failure to comply with this Subcontract, including any Default, or (b) personal injury or death to any person (including employees of Subcontractor or Subordinate Parties) or property damage (including claims for loss of use), which arise out of or result from, or are in any way connected with, the Work or the operations or acts of commission or omission of Subcontractor, including those of its Subordinate Parties, unless the injuries or damages are caused by the sole negligence of the party seeking to be indemnified.
2. Subcontractor’s indemnity obligations shall include, but are not limited to:
   1. Indemnity for all damages and judgment interest, all costs and fees, including all defense costs, expenses and legal fees, and all settlement payments relating to or arising out of, resulting from or in any way connected with any claim, cause of action or lawsuit, or proceeding requiring indemnity by Subcontractor.
   2. All expenses, including costs, expenses and legal fees, incurred in securing indemnity from Subcontractor if Subcontractor fails or refuses promptly to fulfill any of the indemnity obligations under this Subcontract.
   3. The obligation to indemnify Contractor for any liability imposed upon Contractor to indemnify and/or defend any and all persons, including but not limited to Owner, from liabilities, claims, causes of action, lawsuits, or expenses arising from or in connection with the Subcontract.
   4. The obligation to indemnify Owner to the same extent and in the same manner as Subcontractor is obligated to indemnify Contractor.
   5. Indemnification for any penalties or fines arising or resulting from Subcontractor’s failure to comply with laws or regulations applicable to its Work.
   6. Indemnification for any cost or expense arising or resulting from Subcontractor’s infringement of intellectual property rights of others.
3. Subcontractor’s obligation to indemnify shall not include any obligation to indemnify which is prohibited by applicable law. In the event an arbitration panel or court of competent jurisdiction determines any of the indemnification obligations of this Subcontract are unenforceable, in whole or in part, Subcontractor’s obligation to indemnify shall be replaced with the strictest enforceable indemnification provision in the governing jurisdiction. Subcontractor’s obligations of defense and indemnification under this Subcontract are severable from Subcontractor’s obligations set forth in the Insurance Requirements.
4. The indemnification rights in this Subcontract shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist.
5. Contractor, at its option, may select counsel to defend any claim, cause of action or lawsuit brought against it without impairing any obligation of Subcontractor to provide indemnification.
6. The indemnification provisions contained in this Subcontract shall survive the completion or termination of this Subcontract.
7. These indemnification obligations shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for any Subcontractor under workers’ compensation, workers’ safety, or other employee benefit legislation.

Warranty and Correction of Work

1. In addition to all other warranties set forth in the Subcontract or imposed by applicable law, Subcontractor warrants to Owner and Contractor that the Work will be free from defects and performed in strict conformity with the requirements of the Subcontract. This warranty survives the termination of the agreement and shall only be extinguished by limitation periods imposed by applicable law and shall not be limited by any other provisions contained in the Subcontract.
2. Subcontractor shall promptly correct Work that is defective or fails to conform to the Subcontract, whether it receives notice before the effective date of the Certificate of Substantial Completion, or within a period of one year thereafter, or within the time period that Contractor is obligated to correct Work under the Prime Contract, whichever is longer. Nothing in this paragraph 19.2 establishes a period of limitation or otherwise restricts obligations which Subcontractor may have under section 19.1, other provisions of the Subcontract, or applicable law.

Disputes and Remedies

1. Any dispute relating to this Subcontract which the parties have been unable to resolve after a reasonable time by negotiation (“Dispute”) shall be submitted to mediation upon written request of either party. The mediation shall be conducted using such mediator and procedures as the parties may agree. If agreement on the mediator or procedures has not been reached within 14 days after the request for mediation, the Rules for Mediation of Construction Disputes then in force and as provided in CCDC 40 shall be followed.
2. If after 90 days the parties have not resolved the Dispute by mediation, except as provided below in section 23.3, the matter shall be submitted to mandatory arbitration at the request of either party. The arbitration shall be conducted using such arbitrator(s) and procedures as the parties may agree. If they are unable to reach agreement within 30 days of the demand, the Rules of Arbitration of Construction Disputes then in force and as provided in CCDC 40 shall be followed. The arbitrator’s authority will include the ability to order payment of costs and legal fees as justice may require, but no punitive or exemplary damages. Judgment on the arbitration award may be entered in accordance with the standards of the governing Provincial or Territorial Arbitration Act by any court having jurisdiction.
3. If Contractor is or expects to become a party to any litigation or arbitration with Owner or a third party relating to the Project, Contractor may elect to join Subcontractor as a party to such litigation or arbitration. Subcontractor is bound by the procedures, decisions and determinations resulting from any dispute resolution process in the Prime Contract.
4. Nothing in this Subcontract precludes Contractor from applying to a court for equitable relief when threatened with irreparable harm for which there is no adequate remedy at law.
5. In no event shall Contractor be liable to Subcontractor for consequential, punitive, exemplary, or indirect damages of any kind.
6. Pending resolution of a Dispute, Subcontractor shall continue diligent performance of the Work and Contractor shall continue with payment of amounts not genuinely in dispute.

Basic Insurance Requirements

1. Workers’ Compensation covering Subcontractor’s statutory obligations in the Province(s) or Territories in which the Work is to be performed, if applicable to the Project, and Employers’ Liability insurance with limits of liability of $1,000,000 per accident.
   1. If Subcontractor employs the services of leased employees for the Work or for a portion of the Work, it will be required to submit evidence, to the satisfaction of Contractor, that such leased employees are fully covered by the minimum limits of Workers’ Compensation and Employers’ Liability Insurance. Such evidence shall include, but not be limited to, submission of the applicable leasing agreement.
2. Automobile Liability insurance with the limit of $2,000,000 per accident covering Subcontractor’s owned, non-owned and hired automobiles.
3. Commercial General Liability insurance written on the Insurance Bureau of Canada’s (IBC) Form 2100, 03-2000(r) policy form or subsequent versions with limits of liability as follows:
   • General Aggregate: $ 5,000,000
   • Products-Completed Operations Aggregate: $ 5,000,000
   • Personal/Advertising Injury: $ 5,000,000
   • Each Occurrence: $ 5,000,000

This coverage shall include coverage for premises-operations, independent contractors’ protective, products and completed operations, personal injury and broad form property damage (including coverage for explosion, collapse, and underground hazards), and Contractual Liability protection with respect to Subcontractor’s indemnification obligations under the Subcontract. Products-completed operations coverage must be maintained for at least two years after final completion of the Project.