1.1 These Conditions shall govern all sales of goods and services (“the Goods”) by Space Engineering Services Limited (“Space Engineering”), its subsidiaries or associated limited companies (in any case, “Space Engineering” which in this document below shall include Space Engineering’s servants, agents, assignees, or others who have been specifically approved and authorised in writing by Space Engineering to the Client to act on behalf of Space Engineering) to any purchaser / client / buyer (“the Client”).
1.2 These Conditions, together with any accompanying Space Engineering documentation, and any other documentation listed therein shall form the contract (“the Contract”) between the parties (together, “the Contract Documents”). Any terms or conditions of the Client shall be excluded unless expressly agreed by Space Engineering in writing and appended to these Conditions. Purchase orders by the Client shall constitute offers to buy and no contract shall exist until the order has been accepted by Space Engineering, and such contract shall be subject to these conditions. The conditions of the Client shall not form part of the Contract unless expressly agreed by Space Engineering in writing. Telephone, email, text or verbal orders accepted by Space Engineering are only given under these Conditions, and to the exclusion of any other terms and conditions.
1.3 These Conditions take precedence over all and any other Contract Documents.
1.4 No variation of these Conditions shall be effective unless in writing and signed by or on behalf of both parties. Notwithstanding any variation, these Conditions shall continue to apply except insofar as they are specifically excluded in writing by Space Engineering. The Client acknowledges that there are no representations outside the Contract Documents which have induced it to enter into the Contract.
1.5 A waiver of any provision must be in writing by Space Engineering to be effective. Any failure or delay to exercise any right or power hereunder by Space Engineering shall not constitute a waiver of any relevant right or power.
1.6 The provisions of this Contract are severable and if any one or more such provisions are judicially determined to be unenforceable in whole or in part the remaining provisions shall nevertheless remain binding and enforceable.
1.7 The Contract Documents and primarily these Conditions constitute the entire agreement between the parties and supersede all prior agreements or understandings between them.
1.8 Nothing in this Contract shall confer or purport to confer on any third party any rights, benefits or obligations.
1.9 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.10 The Client shall not without the prior written consent of Space Engineering assign, transfer, or sub-let any obligations under the Contract or any part thereof. Where such consent is given, it shall not relieve the Client of any of its obligations under the Contract.
1.11 Space Engineering reserves the right to sub-let its obligations under the Contract in part or as a whole.
2.1 The price of the Goods shall be Space Engineering’s quoted price.
2.2 The Client agrees that any changes to its original requirements and specifications used in the preparation of Space Engineering’s quoted price may invalidate the original quoted price or cause it to be changed. Space Engineering at its sole discretion may choose to accept the changes and vary the price accordingly.
2.3 A quotation given by Space Engineering will constitute an offer to treat only. Any order from the Client based on the quotation shall constitute an offer to buy, and no contract shall exist until accepted by Space Engineering as herein provided.
2.4 The time for payment to Space Engineering shall be of the essence of the Contract.
2.5 The Client shall pay invoices in full with no deduction or set off in respect of monies or liabilities which the Client may claim to be payable.
2.6 Space Engineering shall be entitled to invoice the Client for the price of the Goods:
2.6.1 in advance where the Goods involve pre-purchase by Space Engineering and / or an element of design;
2.6.2 on account as work progresses or orders are placed in relation to the Goods;
2.6.3 on or at any time after commencement and / or delivery of the Goods.
2.7 Payment of the full amount of each invoice shall be due on the date of each respective invoice. The final date for payment of each invoice will be 30 days after the date of each respective invoice.
2.8 Any payment on account will be allocated against the Client’s longest outstanding invoices first, as determined solely by Space Engineering.
2.9 Without prejudice to any other right or remedy available to Space Engineering, Space Engineering shall be entitled to interest on any amounts unpaid at 8% over Bank of England base rate from time to time, calculated on a daily basis, from the date of the invoice, until payment is received in full.
2.10 The price is exclusive of any VAT, or other taxes, fees or charges which shall be paid by the Client. Where required by statute, Space Engineering reserves the right to charge CITB Levy at the standard rates in addition to any payments due. Unless otherwise indicated, the Price is exclusive of any applicable VAT which shall be paid by the Client. The Price is subject to increases in the cost of labour and materials to Space Engineering. The Price shall include for one site visit to complete the Goods by Space Engineering, and the price for any additional visits Space Engineering deems necessary shall be payable by the Client.
3 Variations or Changes
3.1 The Client may vary, add to, omit from, change or alter the performance of the Contract only by way of an express instruction agreed in writing in advance by Space Engineering. No such instruction shall vitiate this Contract. Alternatively, where Space Engineering is delayed by the Client and / or a third party in the performance of the Contract, the Client shall recompense Space Engineering as provided for in this clause, as if it were instructed by the Client.
3.2 The Client shall be liable for all additional costs, expense, and delays arising from or in connection with any instruction, direction or variation. Space Engineering shall not be liable for any loss of the Client arising from or connected to any change in or addition to or omission from the Goods.
3.3 The Client shall pay Space Engineering the price of any change, variation, direction, instruction, addition or omission, as invoiced by Space Engineering.
4.1 The Client hereby accepts the general conditions of any carrier employed by Space Engineering.
4.2 Neither Space Engineering nor any carrier shall be liable for damage or loss of goods in transit or for shortage on delivery unless notice in writing is given to the carrier concerned and Space Engineering within 3 days of the date of delivery, or in the case of non-delivery or loss of goods within 14 days from the date of dispatch, and such other steps are taken by the Client (including, if necessary, shorter notice to the carrier concerned) as may be necessary to pursue the claim against the carrier.
4.3 Delivery will be made to the Client at a site as agreed. Any date of delivery or period for delivery given is an estimate only and Space Engineering will not be liable for any delay in delivery of the Goods caused by any delay in delivery by any manufacturer or supplier to Space Engineering or for any other cause outside the control of Space Engineering.
4.4 Space Engineering shall be entitled to use any method of transportation it may select for despatch of the Goods.
4.5 Space Engineering shall provide the Client with any documents or certificates necessary to enable the Client to accept delivery. The Client shall be responsible for unloading and storage of the Goods upon delivery of the specified site. If through the Client’s default, delivery cannot be effected, without prejudice to any other right or remedy available to Space Engineering, the Client shall pay any costs incurred by Space Engineering.
4.6 The cost of carriage, transportation, insurance and any other costs for services connected with the delivery of the Goods, shall be the responsibility of the Client.
Where Space Engineering has notified the Client that the Goods are ready for delivery, the Client shall take delivery or arrange for storage. If the Client does not so take delivery or arrange for storage within 7 days of notification Space Engineering shall be entitled to invoice and be paid for the Goods as though the Goods had been duly delivered in accordance with these instructions and Space Engineering may arrange storage either at Space Engineering’s own premises or elsewhere on the Client’s behalf and all charges for storage, insurance and demurrage shall be payable by the Client, and all risk shall pass to the Client on notification by Space Engineering.
6.1 Space Engineering shall endeavour to provide the Goods in reasonable time. Where Space Engineering has been delayed by any act or omission for which the Client is responsible to any degree, any loss, expense, additional costs or the like incurred by Space Engineering shall be recoverable from the Client as a debt.
6.2 Where the Goods include any element of design input, Space Engineering undertakes to fulfil its design liability on the basis only of the information provided by the Client in good time in advance of the Goods being provided on site. Where information is not physically provided by the Client, or not physically provided in good time by the Client, Space Engineering shall not be liable in any way for any shortcomings in or subsequent to its design input.
6.3 Where Space Engineering has undertaken design, and then the Client has purchased the Goods for use by way of its own installation or with its own staff, Space Engineering does not accept liability for the performance or otherwise of the Goods, if they are not installed as specified per Space Engineering’s design and reasonable professional requirements. Space Engineering undertakes that its Goods will perform as Space Engineering has stated in writing to the Client, subject to reasonable tolerances. It cannot and does not take liability for how the Goods are used or installed by the Client or others, nor how the Goods may act or re-act in any given conditions of use.
6.4 The Client shall ensure that all its work connected to and / or preceding that of Space Engineering is performed in good time commensurate with the work of Space Engineering, by competent and suitably qualified personnel having appropriate qualifications as may be required by Space Engineering and the site being worked on.
6.5 The Client shall maintain all work and installation areas where Space Engineering is required to provide the Goods or anything in connection therewith in a reasonably clear and safe condition and free from all rubbish and materials.
6.6 Where unexpected hazards or materials are found, Space Engineering reserves its rights to entirely re-price the Goods, and shall not be responsible for any delay incurred.
6.7 The Client shall allow Space Engineering full and unhindered access to all areas required for the Goods to be provided.
6.8 The Client shall ensure that all relevant authorities, planning, permissions, approvals, local and statutory rights have been satisfied prior to allowing Space Engineering to commence any work, and the Client shall be liable for all costs and fees related thereto.
6.9 The Client shall be liable for any damage, loss, shortage, charges, costs, expense, defect, flaw, failing or deficiency in the performance of the Contract as advised to the Client by Space Engineering. Any such amounts shall be invoiced by Space Engineering as provided for in these Conditions and be recoverable from the Client as a debt.
6.10 Where the Goods are to be provided by Space Engineering in connection with or on a site where the Client is working, the Client shall be responsible for the safe execution of work in connection with the Goods and shall comply with all relevant legislation and reasonable requests of Space Engineering, for securing the health and safety of all persons employed on the project, and such other persons who may be affected by the work or operations of the Client and Space Engineering.
6.11 The Client shall be responsible for providing Space Engineering with all reasonable health, safety and welfare facilities, including but not limited to, access, lighting, running hot and cold water, drinking water on tap, suitably reasonable toilets and washing facilities, dry and heated accommodation suitable to eat in, safe and dry storage, and access to a phone / fax line and mains electricity. Should the Client not provide any of the foregoing, Space Engineering reserves the right to provide the same and all additional expense so incurred shall be recoverable from the Client as a debt, and in addition to the price for the Goods.
6.12 The Client indemnifies, and shall save harmless Space Engineering for any breach of the Contract. If, as a consequence of any action and / or inaction of the Client, any person suffers personal injury or death, or any damage or interference is caused to any property or works, then the Client shall be liable for and shall indemnify Space Engineering against any expense, loss, cost, claim, liability, damages and proceedings whatsoever arising.
6.13 If Space Engineering notifies the Client of any failure in connection with the performance of the Contract or breach of this Contract, the Client will rectify immediately at its own expense and risk.
6.14 Should the Client fail in any way to comply with its obligations under the Contract, the Client shall immediately be liable to Space Engineering for any loss, expense and/or damage which Space Engineering may incur. The Client shall also be liable to Space Engineering for any consequential loss arising out of or in connection with any default by the Client. There shall be no limit on the total liability of the Client for any loss of Space Engineering arising under or in connection with this Contract.
7.1 The Client shall maintain such insurances as required by Space Engineering, including but not limited to employer’s liability, public liability, all risk and professional indemnity, and as necessary to cover the liability of the Client and Space Engineering in respect of personal injuries or deaths arising out of or in the course of, or caused by the carrying out of the Contract, and damage to property. The Client shall indemnify Space Engineering for any action and / or inaction of the Client which shall cause Space Engineering to suffer loss or expense or become liable in damages. All insurance is to be to the reasonable satisfaction of Space Engineering.
7.2 Space Engineering may require written evidence of these insurances as a condition precedent to any Goods being provided. In the event that the Client fails to provide the same, Space Engineering may provide such insurance and add any costs incurred plus 10%, which shall be recoverable from the Client as a debt.
7.3 Space Engineering and / or its agents shall be under no liability in respect of any loss, theft or damage of or to plant, tools, materials, equipment, or facilities of the Client, whether they be unfixed or fixed on site.
8 Title and Risk
The Client acknowledges and confirms that risk in the Goods shall be deemed to have transferred to the Client upon or at the time the Goods are shipped from Space Engineering or its supplier. Title shall pass to the Client upon receipt by Space Engineering of payment in full for all Goods. Until that time, the Client shall store the goods separately away from other goods and clearly marked as being the property of Space Engineering, or in the case of resale of the Goods to a third party, the Client shall keep such funds in a separate account and marked as Space Engineering funds. The Client hereby agrees that Space Engineering may enter premises to recover the Goods, whether fixed or not, at any time until Space Engineering has been paid in full for the Goods, and Space Engineering shall not be liable for any loss or damage caused in it recovering the Goods from the premises.
9 Defective goods
9.1 Space Engineering will not be liable hereunder in any way if, when the Goods which the Client alleges are defective are tested or examined by Space Engineering, the alleged defect appears to have been caused by the Client’s or a third party’s misuse, neglect, improper installation, any cause beyond the range of intended use of the product, or by accident, fire or other hazard.
9.2 Unless the Client gives Space Engineering clear written notice giving Space Engineering clear and reasonable opportunity to correct any default, to be received by Space Engineering seven working days prior to any costs being incurred, the Client shall not recover from Space Engineering any cost, loss or expense which it claims or attributes to be Space Engineering’s liability.
9.3 Except as otherwise stated in this Clause, Space Engineering shall have no liability to the Client for any consequential loss of the Client arising out of or in connection with the provision of any Goods pursuant to this Contract and the total liability of Space Engineering for any other loss of the Client so arising under the terms of this Contract shall not exceed the price paid by the Client for the Goods under this Contract.
9.4 There are no warranties, conditions, guarantees or representations whether express or implied by statute or otherwise, orally in writing, except as provided herein.
10 Force Majeure
Space Engineering shall not be liable for non-performance or delay in performance or for any loss or damage to the goods due to act of God, war, riot, embargo, labour dispute, civil commotion, fire, theft, shortage of labour or materials, confiscation, delays in delivery or services of manufacturers, suppliers and sub-contractors, prohibition of import or export or any other unforeseen event (whether or not similar in nature to those specified) outside its reasonable control.
11 Default of the Client
11.1 Without prejudice to any other rights or remedies which Space Engineering might possess, Space Engineering shall be entitled to immediately terminate the Contract in the event that:
11.1.1 the Client fails to properly perform, carry out and/or complete its obligations arising under and / or in connection with the terms of the Contract in any way; or
11.1.2 the Client takes any action, or fails to take any action, which would lead Space Engineering to reasonably believe that there was a risk of the Client being or becoming insolvent; or
11.1.3 if in the opinion of Space Engineering, the Client is guilty of gross misconduct or fails to comply with the provisions of this Contract in any way.
11.2 In the event of termination, Space Engineering shall without prejudice to any claim or right or remedy available to Space Engineering, render an invoice for the full balance of the Goods and the Client shall be liable for all costs and losses arising to Space Engineering foreseeable or not.
11.3 In the event of termination, any amounts owed by the Client to Space Engineering shall become due for payment immediately. The final date for those payments to be paid is seven days after the due date.
12 Dispute Resolution
The governing law of the Contract shall be the law of England, and subject to the adjudication and arbitration provisions below, the parties hereby submit to the exclusive jurisdiction of the English courts.
12.1 Adjudication. If any dispute or difference arises between Space Engineering and the Client either party may refer the dispute to adjudication in accordance with this Clause and pursuant to the provisions contained in the Scheme for Construction Contracts (England and Wales) Regulations 1998 as amended.
12.2 Arbitration. If any dispute or difference arises as to any matter or thing of whatsoever nature arising from or in connection with the Contract between Space Engineering and the Client either during the progress or after the completion or abandonment of the Contract, it shall be referred to arbitration in accordance with this Clause and the latest JCT Construction Industry Model Arbitration Rules. If the parties fail to agree upon the appointment of an Arbitrator within 14 days of a Notice of Arbitration being served, either party shall apply to the Chartered Institute of Arbitrators to have an Arbitrator appointed.