Terms and Conditions of Purchase
a. In these conditions the following expression shall have the following meaning:
b. The “Purchaser” shall mean Space Engineering Services Limited and / or any subsidiary / associated company.
c. The “Vendor” shall mean the person, firm or company with whom the order is placed,
d. The “Sub-Contractor” shall mean the person, firm or company with whom the order is placed,
e. The “Goods” shall mean any materials, goods or service, including design as described in the order or as otherwise agreed to be supplied by the vendor.
f. The “Works” shall mean any labour and associated materials, goods or service, including design as described in the order or as otherwise agreed to be supplied by the vendor or sub-contractor.
g. The “Order” shall mean the order, or subsequent purchase order amendment placed by the Purchaser for the supply of Goods.
h. The “Specification” shall mean the technical description (if any), drawing, sample or packaging of the goods referred to in the Order.
a. These terms and conditions apply in preference to and supersede any terms and conditions referred to offered and relied upon by the vendor whether in negotiation or at any stage in the dealings between the Purchaser and the Vendor with reference to the Goods to which this contract relates.
b. No responsibility shall be accepted by the Purchaser for any order unless issued on the official order from the Purchaser.
c. Nothing herein shall deprive the Purchaser from its rights under Common Law or Statute Law.
d. The Vendor warrants that the transaction and the Goods comply in all respects with UK and European legislation, regulations, codes and orders. In the case of Goods for shipment overseas, the Vendor shall, in addition, ensure compliance with all Government legislation, regulations, codes or orders of the country of dispatch and destination.
e. The Vendor confirms they comply with all requirements of the Modern Slavery Act 2015.
f. The Vendor confirms they comply with the requirements of the Ethical Trade Initiative Base code (the ETI base code).
g. The Vendor shall be deemed to have inspected the Main Contract and shall observe all duties and obligations thereunder and shall have satisfied itself as regards all aspects of the Goods, including access and site conditions. A copy of the Main Contract is held at the trading address of the Purchaser and relevant excerpts may be inspected upon the giving of reasonable notice to the Purchaser by the Vendor. The Vendor shall undertake towards the Purchaser the like obligations and liabilities as are imposed on them by the Main Contract, and shall be liable for and shall indemnify the Purchaser against any claim, demand, damages, costs, charges, loss, expense or proceedings whatsoever arising out of or in connection with any failure to perform such obligations or to fulfil such liabilities in respect of the Goods.
h. Any terms or conditions of the Vendor shall be excluded unless expressly agreed by the Purchaser in writing. Telephone and verbal orders given by the Purchaser are only given under these Conditions, and to the exclusion of any other terms and conditions.
i. The order of precedence of the Contract Documents is: The Order; then, these Conditions; then, the provisions of the Main Contract; then, any other Contract Documents.
j. A waiver of any provision must be in writing to be effective and a waiver of any provision, or failure or delay to exercise any right by the Purchaser shall not constitute a waiver of any subsequent breach of the same or any other provision.
k. 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. Nothing in this Contract confers or intends to confer any right to enforce any of its provisions on any person other than the parties to it.
The prices stated in the Order shall be firm and not subject to variation unless otherwise agreed in writing. Where the Order provides for the price to be subject to variation, the Vendor shall provide certified statements substantiating the variation. If these are deemed excessive by the Purchaser, the Purchaser shall have the right to cancel the Order or any part thereof, or pay such price as the Purchaser shall deem reasonable.
Unless otherwise agreed in writing:
a. All Goods shall be securely packaged free of charge and in such a manner to reach the Purchaser in good condition.
b. The Goods shall be fully and accurately described on all tickets, labels, invoices, packaging and delivery notes, quoting the Purchaser’s official order number.
c. The Vendor shall submit with the Goods full instruction for use and clear warnings with respect to anything which may reasonably be done or omitted to be done in relation to the Goods and which could render them unsafe.
d. The Purchaser shall not accept any change in respect of packaging materials and shall not be responsible for returning, or for the cost of returning, any such materials.
Unless otherwise agreed in writing:
a. Payment shall be made 60 days from the end of the calendar month in which the Goods are received or in which the invoice for such Goods is received, whichever is the later.
b. For incorrectly rendered invoices, the time for payment shall be calculated from the date of the correcting invoice or credit note without surcharge of forfeit of any prompt payment discount.
c. Following delivery of the Goods in accordance to the Order, the Vendor shall submit invoices clearly showing the purchase order number, to the Purchaser accounts payable address.
d. Invoices must be dated when they are raised. Back dated invoices will be treated as having been dated on the day of receipt.
e. Invoices must be submitted promptly. Invoices received more than 2 days after the end of the month will be treated as dated the 1st of the following month.
f. Where the supplier is nominated by a customer of Space Engineering the same payment terms from the Customer to Space Engineering will be applied by Space Engineering to Supplier.
g. In addition to the above, for sub-contract works: -
i. During the progress of the Works on site, the Sub-Contractor shall make an application for payment to be received by The Purchaser no later than 3 working days before the next Main Contract valuation date as detailed in the Main Contract, which the Sub-Contractor is deemed to have inspected. If no valuation dates are detailed therein, then the valuation dates shall be deemed to be the last working day of each calendar month. The first valuation date will be no earlier than one month after the date of commencement of the Works on site. Applications must be a comprehensive written statement of the value of all works properly carried out under and in accordance with the Contract together with details of any materials on site, VAT, and must be accompanied by all relevant supporting documentation and proof that the works claimed have been carried out in accordance with the Contract. Payment by The Purchaser shall be made, less deductions for discount and retention, by way of interim payments. The final date for payment of each interim payment is 60 days after the appropriate valuation date. The date each payment becomes due will be 14 days prior to the final date for each payment. Interim payments shall be made at monthly intervals during the progress of the Works on site. Upon completion, the next payment shall become due 60 days after the date of completion, and the next payment shall become due 12 months thereafter. Where the Contract specifies that the duration of the Works is to be less than 45 days, payment shall be due 60 days from completion.
ii. The Purchaser shall determine and give a written notice to the Sub-Contractor not later than 5 days after the date on which a payment becomes due which shall specify the amount (if any) of the payment to be made and the basis on which that amount was calculated.
iii. The Purchaser shall give notice to the Sub-Contractor of his intention to withhold any money from a payment by issuing a Pay Less notice no later than 5 days before the final date for payment and shall specify the amount proposed to be withheld and the basis on which that sum was calculated. In the event that any payment due is not made by the final date, interest is payable at the rate of 1% over the base rate of the Bank of England current at the final date. The parties agree that this is a substantial and full remedy for late payment and no further compensation or payment is due or recoverable.
iv. It is a condition precedent for the payment of work on an hourly rate, that the Sub-Contractor completes all client required system interaction, completes and provides the relevant time sheets, allocation sheets and a breakdown of all Works carried out in the relevant period one week before the due date for payment.
v. Discount shall be 2.5% and retention shall be 5% unless otherwise stated on the Order.
vi. It is a condition precedent for any retention to be released and for the final payment to the Sub-Contractor becoming due, that the Sub-Contractor shall have provided all necessary manuals, health & safety documentation, drawings, bonds, warranties, guarantees and certification, and that the Sub-Contractor maintains insurances as required under the Contract, and is able to and does continue its defects correction liabilities. No payment shall be due to the Sub-Contractor if The Purchaser believes the Sub-Contractor to be insolvent.
vii. Upon Space Engineering’s client under the Main Contract becoming insolvent, no payment shall fall due to the Sub-Contractor. Final release of retention to the Sub-Contractor shall become due on receipt by The Purchaser of the certification of release of its final release of retention under the Main Contract.
viii. All taxes, fees or charges in connection with the Works shall be paid by the Sub-Contractor. Where required by statute, The Purchaser reserves the right to deduct CITB Levy at the standard rates from any payments due or made. Unless otherwise indicated, the Price is exclusive of any applicable VAT which shall be paid by The Purchaser.
ix. The Purchaser reserves the right to set-off against any liability that it has or may have to the Sub-Contractor any sums in respect of which the Sub-Contractor may be indebted to The Purchaser under any contract.
x. In the event of any default by the Sub-Contractor and / or failure to comply with its obligations under the Contract, The Purchaser retains the right to provide such resources as are necessary to complete the Contract. The cost of such resources shall be deducted from any sums due to the Sub-Contractor under this Contract or any other contract and shall be recoverable by The Purchaser Engineering from the Sub-Contractor as a debt.
a. The time stipulated for the delivery shall be of the essence.
b. The Purchaser reserves the right to refuse delivery of the whole or any part of the Goods if they are supplied before the time specified and any changes relating thereto shall be the responsibly of the Vendor.
c. The Goods shall be delivered carriage paid to the address shown on the Purchasers official order.
d. Delivery of Goods is deemed to include offloading and placement to the reasonable instructions of the Purchaser.
e. Deliveries shall be always of the total ordered unless phased deliveries have been specified by the Purchaser
f. Any Goods delivered in excess of the amount stated the order may be accepted or rejected at the Purchaser’s option.
g. If the Vendor does not deliver the Goods, or any part thereof, in accordance with (a) to (e) above, the Purchaser shall be entitled to terminate the contract, purchase other goods of the same or similar description to make good such a default, and recover from the Vendor the amount by which the cost of so purchasing other Goods exceeds the price which would have been payable to the Vendor in respect of the Goods replaced by such purchase, without prejudice to any other remedy for breach of contract.
h. The Sub-Contractor shall carry out and complete the Works with due diligence and in a good and workmanlike manner, in accordance with the Contract, the Main Contractor and to the satisfaction of The Purchaser. The Sub- Contractor agrees to enter into warranties as required of it by Space Engineering and / or under the Main Contract.
i. Where the Works involve any element of design, the Sub-Contractor warrants that it shall design the Works with all reasonable care, skill and expertise to be expected of a competent professional experienced in the design of similar work and in similar conditions. The Sub-Contractor is to ensure that the design and the Works as a whole comply with all relevant statutory requirements and standards.
j. The works shall include the provision of labour, plant, materials, design, installation, supervision, co-ordination, delivery, unloading, distribution, access, protection of the Works, cleaning and clearing away rubbish and debris, method statements, risk assessments, bonds, warranties, guarantees, drawings, manuals and commissioning as required by the Purchaser.
k. The Works shall be completed at the Sub-Contractor’s own risk and expense at the places and by the dates specified by The Purchaser. The Sub-Contractor shall be liable for any damage, loss, shortage, charges, costs, expense, defect, flaw, failing or deficiency in the performance of the Works as advised to the Sub-Contractor by the Purchaser. Any such amounts shall be deductible from any amounts due to the Sub-Contractor, and recoverable from the Sub-Contractor as a debt.
l. Title to and the property in the Works shall pass to the Purchaser once the Works have been received. Risk in the Works shall pass to the Purchaser on final payment for the Works.
m. The Works supplied under this Contract shall entirely be fit for purpose in all possible regards and shall come with all reasonable and applicable manufacturer’s warranties and guarantees. All Works shall correspond in all respects with the higher of the statutory standards and the standards, specifications and quality required by the Purchaser.
n. The Sub-Contractor shall be responsible for the safe execution of the Works and shall comply with all relevant legislation and reasonable requests of the Purchaser, its servants or agents involved with the project, 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 Sub-Contractor. The Sub-Contractor indemnifies, and shall save harmless the Purchaser for any breach hereof. If, as a consequence of any action and / or inaction of the Sub-Contractor, any person suffers personal injury or death, or any damage or interference is caused to any property or works, then the Sub-Contractor shall be liable for and shall indemnify the Purchaser against any expense, loss, cost, claim, liability, damages and proceedings whatsoever arising.
o. The Sub-Contractor shall not without the written consent of the Purchaser assign, transfer, or sub-let any obligations under the Contract or any part thereof. Where such consent is given, it shall not relieve the Sub-p. Contractor of any of its obligations under the Contract.
p. If the Purchaser notifies the Sub-Contractor of any defect in the Works or breach of this Contract, the Sub-Contractor will rectify immediately at its own expense and risk. Should it fail to do so, the Purchaser shall not be responsible for any payment for the Works until the same have been rectified, and shall deduct such amounts as it considers reasonable for such noncompliance.
q. Should the Sub-Contractor fail in any way to provide the Works in full compliance with this Contract by the completion date; the Sub-Contractor shall immediately be liable to the Purchaser for any loss, expense and/or damage which may incur. The Sub-Contractor shall also be liable for any consequential loss arising out of or in connection with any default by the Sub-Contractor and the total liability of the Sub-Contractor for any loss arising under or in connection with this Contract shall be unlimited.
r. The Sub-Contractor shall commence the Works at the commencement date, or as otherwise instructed in writing by the Purchaser. The Sub-Contractor shall proceed regularly and diligently, and complete the Works by the completion date and / or within the period stated in the Contract, or as otherwise directed in writing by the Purchaser. Time shall be deemed to be of the essence.
s. The Sub-Contractor shall work in accordance with the project programme and the Purchaser shall not be responsible for any costs whatsoever arising as a result of changes thereto. The Sub-Contractor shall reimburse the Purchaser for all and any losses likely to be incurred by as a consequence, foreseeable or otherwise of the Sub-Contractor’s failure to complete the Works within the period or by the completion date stated, or as otherwise directed by the Purchaser.
t. The Sub-Contractor shall not cause delay to any other work on the Site, but if it does, it shall indemnify the Purchaser from any losses which may be incurred.
u. The Sub-Contractor shall notify all delays in writing to the Purchaser immediately with the reasons for, and duration of all delays, and shall notify in writing all information which may be required to avoid delay to the Works. . No extension of time will be due or claims allowed for failure to secure or manage labour, plant or materials.
v. The Purchaser may vary, add to, omit from, change or alter the performance of the Contract only by way of an express instruction in writing. No such instruction shall vitiate this Contract. On issue of any such instruction, the Sub-Contractor shall immediately conform therewith, with no effect on either the time or the payment for performance of the Contract.
w. The Purchaser shall not be liable for any additional costs arising from any instruction, direction or variation being gxiven otherwise than in writing by the Purchaser, or not confirmed in writing together with cost and programme implications by the Sub-Contractor to the Purchaser within 7 days of such instruction. The Purchaser shall not be liable for any loss of the Sub-Contractor arising from or connected to the omission of any part of the Works.
x. Payment for any change shall only be on receipt of a written instruction from the Purchaser, and shall be valued on fair and reasonable basis, and where possible by analogy to the Price.
7. Force Majeure
Neither the Vendor nor the Purchaser shall be liable to the other for any failure to fulfil its obligation under the contract if such a failure is caused by circumstances beyond reasonable control. In the event of failure, the affected party shall notify the other party as promptly as possible, but not later than seven days from the occurrence.
In addition to all warranty and conditions applied by law, the Vendor guarantees fitness for purposes for which the Goods are intended and shall indemnify the Purchaser against all claims, cost, expenses, loss or damage whether direct or consequential which the Purchaser may suffer, howsoever arising, from the Vendors breach of any of its obligations under this contract. The Purchaser may, at its sole discretion request that the Goods be replaced or made good by the Vendor in the event of such Goods being the subject of any fault in the period of twelve months after having been brought into service. Any Goods replaced or made good shall be treated as having been Goods supplied under the Order at the time of replacement for making good, and be subject to all the terms and conditions of the Purchaser contained herein.
a. The Vendor shall insure with a reputable insurance company in respect of damage and or injury to persons and or property occasioned by negligence of the Vendor or on the part of their servants or occasioned as a result of the Goods being unfit for their purpose or defective or unsafe or deemed to be unsafe of the amount not less than £15,000,000, or as otherwise agreed in writing by the Purchaser with the Vendor, in respect of each occurrence and shall keep such insurance in force and produce at any time on demand the policy or policies and receipt of the current premium and shall indemnify and keep indemnified the Purchaser against all such liabilities.
b. The Sub-Contractor shall maintain such insurances as required by The Purchaser and the Main Contract, including but not limited to employer’s liability, public liability, contractor’s all risk and professional indemnity, and as necessary to cover the liability of the Sub-Contractor 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 Sub-Contractor shall indemnify The Purchaser for any action of the Sub-Contractor which shall cause The Purchaser to suffer loss or expense or become liable in damages. All insurance is to be to the reasonable satisfaction of The Purchaser.
c. The Purchaser requires written evidence of these insurances as a condition precedent to any payment becoming due. In the event that the Sub-Contractor fails to provide the same, The Purchaser may provide such insurance and deduct any costs incurred plus 10% from any payments due to the Sub-Contractor.
d. The Purchaser shall be under no liability in respect of any loss, theft or damage of or to plant, tools, materials, equipment, or facilities of the Sub-Contractor, whether they be unfixed or fixed on site.
10. Rejection of Goods
The Goods shall, in every respect, be equal to description of sample supplied and to specification including packaging, if any. The Purchaser reserves the right to reject, at the Vendor’s expense, the whole or part of any consignment in which defective Goods or packaging are found. If the Purchaser elects to make reject able Goods fit for purpose the Vendor shall be debited with the cost thereof. Rejected Goods shall be held at the Vendor’s risk and must be removed at their expense. Any acceptance of such Goods by the Purchaser shall be without prejudice to any rights the Purchaser may have against the Vendor, including those prescribed by clause 9.
The Purchaser reserves the right to cancel the Order by giving written notice to the Vendor, providing such notice is given not less than 14 days before the agreed date of delivery. The Purchaser recognises that cancellation may cause loss and expense to the Vendor and, therefore, provided that the Vendor can establish to the satisfaction of the Purchaser that they have suffered such loss and expense, the Purchaser shall indemnify the Vendor subject to such indemnity not exceeding 25% of the Order value of the actual Goods cancelled. Such indemnity shall constitute the Purchaser’s sole liability upon cancellation.
12. Infringement of Patent
The Vendor guarantees that the sale or use of the Goods shall not infringe any British or foreign patent trade mark, trade name, or registered design and hereby indemnifies the Purchaser against all actions, costs, claims, demands and expenses arising out of or resulting from any actual or alleged infringement and undertakes at their own expense to defend or assist in the defence of any action which may be brought in respects of such infringement.
13. Restriction on Sale
In the case of any Goods which have been designed by and manufactured by the Vendor in accordance with drawings and/or specifications or patterns supplied by the Purchaser, the Vendor agrees not to sell such Goods to any person, firm or company except against an Order of the Purchaser or with the permission of the Purchaser in writing. The Vendor further undertakes not to manufacture quantities in excess of the Order for the purpose of sale. The drawings and/or Specifications or patterns shall remain the property of the Purchaser and shall by returned by the Vendor to the Purchaser on demand and the Vendor shall not keep any copies.
At all reasonable times duly accredited representatives of the Purchaser shall be permitted to inspect the Goods at any stage of manufacture.
15. Quality Assurance
The Vendor shall be required to operate to a Quality System such as BS EN ISO 9000 which ensures that the Quality of Products(s) to be provided conform to the specified requirements of the Order.
a. The Vendor shall not alter or amend in any way the size of the Goods or the Specification without the prior approval of the Purchaser in writing and all dimensions furnished in any way to the Purchaser shall be deemed to be certified and accurate.
b. The Goods shall comply with the accepted British Standard, if any, and/or relevant trade standards/regulations, including any appropriate international trading standards/regulations.
c. The Vendor shall be responsible for ensuring that its Goods comply with health and safety regulations, legislation, codes and orders. Any hazardous substances under COSHH regulations shall be advised to the Purchaser and appropriate date sheets supplied.
d. The Vendor shall ensure that any Goods supplied comply with the appropriate Directives/Regulations by the mandatory implementation dates for such Directives/Regulations and shall forward the relevant Declaration of Conformity/Manufacturer’s installation. Operating and Maintenance Instructions to the Purchaser.
The Vendor shall not assign or sub contract the whole or part of the contract without written consent of the Purchaser.
18. Title of Goods
Title of Goods shall pass to the Purchaser on the earlier of payment or delivery; until such delivery is made the Goods remain at the Vendor’s risk in all respects.
19. Obsolescence and Spare Parts
It shall be the Vendor’s responsibility to notify the Purchaser if the Goods, or part thereof, are scheduled to become obsolete within 12 months of the date of delivery. Notwithstanding any such obsolescence the Vendor warrants to provide, at a fair price, to be agreed between the Vendor and the Purchaser, spare parts for a period of 5 years or such length of period as may be prescribed by any proper Government or other authority after the date of delivery.
Without prejudice to any other rights or remedies which The Purchaser might possess, The Purchaser shall be entitled to immediately terminate the Contract in the event that:
a. The Sub-Contractor fails to properly perform, carry out and/or complete the Contract in any way; or
b. The Sub-Contractor takes any action, or fails to take any action, which would lead The Purchaser to reasonably believe that there was a risk of the Sub-Contractor being or becoming insolvent; or
c. The Purchasers employment under a contract with its client or a third party ceases; or
d. If in the opinion of The Purchaser, the Sub-Contractor is guilty of gross misconduct or fails to comply with the provisions of this Contract in any way; or
e. The Purchaser is required under a contract with its client or a third party to determine the Sub-Contractor’s employment.
f. In the event of termination, The Purchaser shall have the right to employ others to carry out and complete the Contract and the Sub-Contractor shall be liable for all costs and losses arising to The Purchaser foreseeable or not.
g. In the event of termination, all payments due to the Sub-Contractor will be held until such time as the total amount due under this and all other contracts can be fully valued and any sum due to, or from, the Sub-Contractor will then fall due for payment.
The Order and all details appertaining thereto shall be treated as confidential between the Purchaser and the Vendor, and shall not be disclosed to any third party, nor used for publicity/promotional purposes without the consent of the Purchaser in writing.
If at any time, dispute or difference whatsoever shall arise between the Purchaser and the Vendor upon or in relation to or in connection with the contract either party may give to the other notice in writing of the existence of such question, dispute or difference and at the request of either party the same shall be referred to the arbitration of a person to be mutually agreed upon or failing agreement within 14 days of receipt of such notice by some person appointed by the President for the time being of the Chartered Institute of Arbitrators. In either case the award of the arbitrator shall be binding on the parties. Arbitration proceedings shall be carried out in accordance with and subject to the Arbitration Act 1979 or any statutory modification or re-enactment thereof.
If the Vendor shall become bankrupt or insolvent, or having a receiving order made against them, or, compound with their creditors, or, being a corporation, commence to be wound up, not being a member’s voluntary winding up for the purpose of reconstruction or amalgamation, or if a receiver shall be appointed in respect of whole or any part of parts of the undertaking and assets of the Vendor, the Purchaser shall be at the liberty either:
To terminate the contract forthwith by notice in writing to the Vendor, or to the receiver, or liquidator, or to any person in whom the contract may become vested, or
To give such receiver, liquidator or other person the opportunity of carrying out the contract subject to their providing a guarantee for the due and faithfully performance of the contract.
These Condition and Contract of which they form part shall be governed by and construed in accordance with English Law and Purchaser and Vendor submit to the jurisdiction of English Courts.