TERMS & CONDITIONS
TERMS AND CONDITIONS OF SALE
SPACE PRODUCTIV LIMITED (a company registered in England and Wales with number 03104537)
1 Interpretation
1.1 The following definitions apply in these Conditions:
Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions these terms and conditions as amended from time to time.
Contract the contract between Space Productiv and the Customer for the supply of Goods and/or Services comprising the Purchase Order, the Order Confirmation, and any documents attached to or referred to in them, and incorporating these Conditions.
Customer the person who purchases Goods and/or Services from Space Productiv.
Delivery Location means the location the Goods are to be delivered as set out in the Purchase Order.
Force Majeure Event: any event beyond a party’s reasonable control including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions, default of suppliers or subcontractors, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, building closure, quarantine, personnel sickness or requirement to self-isolate, lockdown, or other restriction on workers and/or usual business operations.
Goods the goods to be provided by Space Productiv to the Customer as set out in the Quotation.
Intellectual Property Rights patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order Confirmation means the written acceptance of the Purchase Order issued by Space Productiv to the Customer.
Price has the meaning given in clause 9.1.
Purchase Order means the Customer’s order for the supply of the Goods and/or Services as set out in the Customer’s purchase order form.
Quotation means the quotation document provided by Space Productiv to the Customer setting out the price and details of the Goods and/or Services to be provided.
Services the services to be provided by Space Productiv to the Customer as set out in the Quotation, which may include the design and/or installation of the Goods.
Site means the site at which the Goods are to be installed.
Specification means the specification setting out the details of the Goods and/or Services, including any related plans and drawings, provided by Space Productiv to the Customer.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.4 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.5 A reference to writing or written includes emails.
2 Basis of Contract
2.1 These Conditions shall apply to the Contract and all orders the Customer places with Space Productiv to the exclusion of any other terms that the Customer seeks to impose or incorporate, or those which are implied by trade, custom, practice or course of dealing.
2.2 Any quote (including any Quotation) given by Space Productiv shall not constitute an offer and is only valid for 7 days from its date of issue.
2.3 If the Customer wishes to place an order it shall send a Purchase Order to Space Productiv using the email address referred to on the Quotation. The Purchase Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions.
2.4 The Purchase Order shall only be deemed to be accepted when Space Productiv issues an Order Confirmation at which point and on which date the Contract shall come into existence. The Customer is responsible for ensuring the Purchase Order and Order Confirmation are complete and accurate and must notify Space Productiv of any incompleteness or inaccuracies immediately.
2.5 Any samples, drawings, descriptive matter or advertising issued by Space Productiv, and any descriptions or illustrations contained in Space Productiv’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.
3 Order amendments and cancellation
3.1 It is at Space Productiv’s sole discretion whether to accept any request from the Customer to amend the Goods and/or Services after it has issued an Order Confirmation, and if such a request is accepted, Space Productiv reserves the right to amend the Price to account for additional costs incurred due to any such amendment.
3.2 Space Productiv reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Goods or Services.
4 Delivery
4.1 Space Productiv shall deliver the Goods to the Delivery Location using such methods as it in its sole discretion sees fit.
4.2 Any date or time for delivery given by Space Productiv is an estimate only and time is not of the essence for delivery. Delays in the delivery of the Goods shall not entitle the Customer to refuse to take delivery of the Goods, claim damages or terminate the Contract and the Customer shall be obliged to take delivery of the Goods when available.
4.3 Space Productiv shall have no liability for any failure or delay in delivering the Goods to the extent that any failure or delay is caused by:
4.3.1 the Customer’s failure to comply with its obligations under the Contract;
4.3.2 the Customer amending the Specification, Delivery Location or any other delivery instructions given to Space Productiv;
4.3.3 the Customer’s failure to provide Space Productiv with adequate delivery instructions or allow sufficient access to the Delivery Location;
4.3.4 the Customer’s failure to adequately prepare the Delivery Location; or
4.3.5 any Force Majeure Event.
4.4 Delivery of the Goods shall be completed on their arrival at the Delivery Location. The Customer shall be responsible for unloading the Goods.
4.5 Space Productiv may deliver the Goods in instalments, which may be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. References in these Conditions to the Goods, where applicable, be read as references to instalments.
4.6 Risk in the Goods shall pass to the Customer upon the Goods leaving Space Productiv’s premises if the Customer is to collect the Goods, or upon the Goods arriving at the Delivery Location if Space Productiv are to deliver the Goods. For the avoidance of doubt, the Customer shall be responsible for risk in the Goods whilst they are being unloaded at the Delivery Location, stored pending installation, and during their installation by Space Productiv, including any periods when Space Productiv are not on Site.
5 Title
5.1 Title to the Goods shall not pass to the Customer until Space Productiv receives payment in full (in cleared funds) for the Goods and all other sums that are due to Space Productiv pursuant to the Purchase Order.
5.2 Subject to clause 5.3, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Space Productiv receives payment for the Goods. However, if the Customer resells the Goods before that time:
5.2.1 it does so as principal and not as Space Productiv’s agent; and
5.2.2 title to the Goods shall pass from Space Productiv to the Customer immediately before the time at which resale by the Customer occurs.
5.3 At any time before title to the Goods passes to the Customer, Space Productiv may:
5.3.1 by notice in writing, terminate the Customer’s right under clause 5.2 to resell the Goods or use them in the ordinary course of its business; and
5.3.2 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6 Defective Goods
6.1 Space Productiv warrants that on delivery of the Goods at the Delivery Location, the Goods shall:
6.1.1 conform to the Specification, in all material respects;
6.1.2 be of satisfactory quality and fit for any purpose expressly held out by Space Productiv;
6.1.3 be free from material defects in design, material and workmanship; and
6.1.4 comply with all applicable statutory and regulatory requirements.
6.2 The Customer must notify Space Productiv of any Goods that do not meet the warranty in clause 6.1, including in respect of any missing parts, by no later than 24 hours after the Goods are delivered to the Delivery Location. If the Customer fails to give notice in this timescale, it shall be deemed to have accepted the Goods.
6.3 If the Customer notifies Space Productiv of any defective Goods in accordance with clause 6.2:
6.3.1 the Customer shall give Space Productiv a reasonable opportunity of examining the Goods, including by taking them away for this purpose; and/or
6.3.2 Space Productiv shall, at its sole discretion, remedy or replace the defective Goods or refund the price of the defective Goods in full.
7 Design and Installation Services
7.1 Space Productiv shall perform the Services for the Customer in accordance with the Contract in all material respects and Space Productiv warrants to the Customer that the Services will be provided using reasonable care and skill.
7.2 Space Productiv shall use reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Customer shall within 48 hours of receipt of any designs from Space Productiv notify Space Productiv as to whether it approves such designs or whether any amendments are needed. If the Customer does not respond within such period, or does not provide any feedback on any part of such designs, the Customer shall be deemed to have accepted such designs or parts of designs as being in conformity with the applicable Specification.
7.4 If the parties agree that Space Productiv is not to install the Goods, Space Productiv shall have no responsibility or liability in respect of:
7.4.1 the assembly or installation of the Goods or their use thereafter, including in relation to health and safety aspects of the assembly and installation of the Goods or their subsequent use; and/or
7.4.2 the cost of rectifying their faulty or improper assembly or installation.
7.5 The Customer shall ensure that a person with suitable authority is present at the Site upon completion of the installation of the Goods, in order to be able to sign-off on installation of the Goods. Failure to ensure this, may necessitate a further visit by Space Productiv, which will be chargeable to the Customer.
8 Customer’s Obligations
8.1 The Customer shall:
8.1.1 co-operate with Space Productiv in all matters relating to provision of the Goods and/or Services;
8.1.2 provide Space Productiv, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Space Productiv without any undue hindrance;
8.1.3 provide Space Productiv with such information and materials as Space Productiv may reasonably require in order to supply the Goods and/or Services, including measurements, drawings and plans, and ensure that such information is complete and accurate in all respects at all times;
8.1.4 prepare the Delivery Location / Site for the receipt of the Goods, their storage pending installation, and installation of the Goods; including the provision of adequate storage space for the Goods and equipment and materials required for installation, and adequate personnel for unloading and stacking the Goods;
8.1.5 schedule any other works which are being carried out at the Site so as to enable Space Productiv to carry out its works with continuity at the Site upon the agreed dates. Should such works be subject to delays or Space Productiv required to make a return visit to the Site, this will incur additional cost which will be invoiced to and payable by the Customer;
8.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the installation of the Goods before the date on which installation is to start, including any planning permissions, building regulations consents and landlord’s consents;
8.1.7 ensure the floor, building structure and walls at the Site are adequate to withstand the installation of the Goods and any equipment required for their installation;
8.1.8 keep all materials, equipment, documents and other property of Space Productiv at the Site in safe custody at its own risk, and maintain these in good condition until returned to Space Productiv, and not dispose of or use Space Productiv materials other than in accordance with Space Productiv’s written instructions or authorisation;
8.1.9 provide an electrical supply of either 240V or 110V AC at the Site;
8.1.10 comply with any additional obligations as set out in the Specification or the Order Confirmation.
8.2 If Space Productiv’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1 without limiting or affecting any other right or remedy available to it, Space Productiv shall have the right to suspend performance of the Services and/or delivery of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Space Productiv’s performance of any of its obligations;
8.2.2 Space Productiv shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Space Productiv’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer shall reimburse Space Productiv on written demand for any costs or losses sustained or incurred by Space Productiv arising directly or indirectly from the Customer Default including abortive travel and waiting time, return visits to the Site, delay in installation, Site clearance costs, and additional storage or equipment hire costs.
9 Price and Payment
9.1 The Price payable for the Goods and/or Services shall be the Price set out in the Order Confirmation or any other Price agreed in writing between the parties or notified by Space Productiv to the Customer in accordance with these Conditions.
9.2 Unless otherwise agreed in writing, the Price is exclusive of the following costs, each of which shall additionally be invoiced to and payable by the Customer, if Space Productiv (in its discretion) agrees to provide the associated service:
9.2.1 cleaning and preparing the Site for installation;
9.2.2 packing or levelling of floors, walls or ceilings at the Site;
9.2.3 the hiring of lifting equipment, cranes, machinery or other plant required for installation of the Goods at the Site;
9.2.4 the unloading and storage of the Goods along with all associated materials, tools and fittings;
9.2.5 any groundworks, electrical, plumbing or associated works required for installation of the Goods at the Site; and
9.2.6 washing down dust from the installation.
9.3 The Quotation provided by Space Productiv is based on the information available at the time of the Quotation, and Space Productiv reserves the right to increase the Price, change the delivery timescales or other details in the Quotation following any site survey, designs or drawings undertaken by Space Productiv.
9.4 Space Productiv reserves the right to increase the Price to reflect any increase in raw materials between the time a Quotation is provided to the time the final design is approved or deemed approved pursuant to clause 7.3.
9.5 Space Productiv reserves the right to increase the Price at any time to reflect any increase in the cost of the Goods and/or Services to Space Productiv that is due to:
9.5.1 the Customer requiring work to be carried out outside of normal working hours (Monday to Friday 8am to 6pm);
9.5.2 any increase in the cost of transport of the Goods or raw materials, including the cost of any taxes, duties or levies or administration relating to the same; or
9.5.3 any request by the Customer to change any of the following after the Order Confirmation is issued and to which the Space Productiv in its discretion agrees: delivery date(s), quantities or types of Goods and/or Services ordered, or the Specification.
9.6 Unless otherwise agreed between the parties in writing, Space Productiv shall be entitled to invoice the Customer on or at any time after it issues the Order Confirmation for the entire Price or in such instalments as it may determine.
9.7 The Customer shall pay each invoice submitted by Space Productiv:
9.7.1 within 30 days of the date of the invoice, unless otherwise agreed in writing; and
9.7.2 in full and in cleared funds to a bank account nominated in writing by Space Productiv, and time for payment shall be of the essence of the Contract.
9.8 Space Productiv may, at its sole discretion extend credit to the Customer. Any credit extended shall be subject to adequate references and any other criteria Space Productiv may require from time to time and Space Productiv may alter or revoke any credit terms or credit limits at any time without notice.
9.9 If Space Productiv agrees to invoice the Price or part of the Price upon delivery of the Goods, and the Customer requests that delivery is delayed, Space Productiv shall be entitled to invoice the Customer on the date on which delivery was originally scheduled.
9.10 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT chargeable from time to time. Where any taxable supply for VAT purposes is made under the Contract by Space Productiv to the Customer, the Customer shall, on receipt of a valid VAT invoice from Space Productiv, pay to Space Productiv such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the associated Goods and/or Services.
9.11 If the Customer fails to make a payment due to Space Productiv under the Contract by the due date, then, without limiting Space Productiv’s remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at a rate of 4% per annum above the base rate of HSBC Bank plc from time to time, but at 4% per annum for any period when that base rate is below 0%.
9.12 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.13 Space Productiv reserves the right to recover from the Customer the cost of debt collection services and legal fees incurred in collecting any sums owed under these Conditions.
10 Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services (other than Intellectual Property Rights in any materials provided by the Customer), including in respect of any drawings, diagrams, plans, specifications and quotations, shall be owned by Space Productiv. Space Productiv grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use such Intellectual Property Rights for the sole purpose of performing its obligations under the Contract.
10.2 The Customer grants Space Productiv a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Space Productiv for the term of the Contract for the purpose of providing the Goods and/or Services to the Customer.
11 Limitation of Liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1 References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in this clause 11 shall limit the Customer’s payment obligations under the Contract.
11.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
11.3.1 death or personal injury caused by negligence;
11.3.2 fraud or fraudulent misrepresentation; or
11.3.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.4 Subject to clause 11.3 Space Productiv’s total liability to the Customer for all loss or damage shall not exceed the greater of the total Price of the Goods and/or Services provided under the Purchase Order.
11.5 Subject to clauses 11.3 the following losses are wholly excluded from Space Productiv’s liability whether direct or indirect:
11.5.1 loss of profits;
11.5.2 loss of sales or business;
11.5.3 loss of agreements or contracts;
11.5.4 loss of anticipated savings; and
11.5.5 loss of or damage to goodwill.
and the parties agree that the sub-clauses of this clause 11.5 shall be severable.
11.6 Space Productiv has given commitments as to compliance of the Goods and Services with relevant specifications in these Conditions. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.7 This clause 11 shall survive termination of the Contract.
12 Termination
12.1 Without affecting any other right or remedy available to it, Space Productiv may terminate the Contract with immediate effect by giving written notice to the Customer if:
12.1.1 the Customer fails to pay any amount due under these Conditions on the due date for payment;
12.1.2 the Customer commits a material breach of any other term of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so;
12.1.3 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
12.1.4 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.1.5 the Customer’s position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
12.2 Without affecting any other right or remedy available to it, Space Productiv may suspend the supply of Goods and/or Services under the Contract or any other contract between the Customer and Space Productiv if the Customer fails to pay any amount due under the Contract on the due date for payment.
13 Consequences of Termination
13.1 On termination or expiry of the Contract:
13.1.1 the Customer shall immediately pay to Space Productiv all of Space Productiv’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, Space Productiv shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.1.2 the Customer shall return all of Space Productiv’s materials which may be on its premises. If the Customer fails to do so, then Space Productiv may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14 Notices
14.1 Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or e-mail.
14.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, at 9.00am one Business Day after transmission.
14.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
15 General
15.1 Space Productiv shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event.
15.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Space Productiv.
15.3 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.4 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.5 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.6 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.7 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Conditions. If any provision or part-provision of this Contract deleted under this clause 15.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.8 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
16 Governing law and jurisdiction
16.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
16.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
