Subject to the terms of any other applicable written agreement you (“you”) have with CSS, CSS’s sale of Products and provision of Software are governed by these terms and conditions of sale (“Terms”).
These Terms include the Basic Order Terms (defined below) specified on an order accepted by us. “CSS”, “we” or “us” means Clutch Space Systems Limited or its affiliate identified on our order acknowledgment. Every order you place with us is conditioned upon and confirms your acceptance of these Terms. Any contrary terms or conditions appearing on your orders or associated purchase documentation will be of no effect. No waiver, modification, or addition to these Terms, or any assignment of your rights or obligations under them is valid or binding on us unless in writing and signed by our authorized representative. These Terms and the other applicable agreements you enter into with CSS constitute the entire agreement between you and CSS for your purchase and use of Products and Software. Each accepted order will be interpreted as a single set of Terms, independent of other orders.
“Products” means hardware products provided hereunder.
“Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by CSS to you. Software includes Product firmware, software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, software-as-a-service (“SaaS”) and “cloud-based” solutions).
“Services” means any services provided by CSS as described in one or more Service Agreements.
“Service Agreements” are service contracts such as for support & maintenance or professional services, “Statements of Work,” and any other such mutually agreed upon documents. These Terms do not apply to Service Agreements which have their own terms and conditions.
2.1 Quotes, Validity of Orders:
Our quotations are non-binding unless otherwise expressly stipulated in writing. Orders are accepted as valid and binding only when confirmed by us in writing. Orders cannot be cancelled for any reason without our prior written consent.
2.2 Basic Order Terms:
All orders must include the following information: (i) the Products and Software ordered and quantities, (ii) prices, and (iii) delivery instructions, (collectively, “Basic Order Terms”). All Basic Order Terms are fixed and final upon our acceptance of the order.
2.3 Software Licenses.
3.1 Delivery time:
Delivery times are established when CSS accepts your order in writing. We will use commercially reasonable efforts to meet your requested delivery dates, unless you are in default under these Terms or our performance is otherwise excused. We are not liable for late or delayed delivery. Late delivery is not a basis for your cancellation of any order.
3.2 Delivery terms:
Title and risk of loss or damage to Products passes to you when we deliver the Products to the shipping carrier (“Delivery”). Unless otherwise agreed, we will deliver the Product freight prepaid, provided that you pay or reimburse us for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. We have the right to make partial deliveries. Software may be delivered electronically at CSS’s option. Title to the Software will remain with CSS or its licensors.
4. Acceptance, Inspection, Notice of Non-conformance:
4.1 Your acceptance of ordered Products is deemed to occur upon our Delivery of the Products to the shipping carrier. Your acceptance of ordered Software is deemed to occur when the Software is activated or otherwise made available for your access or use, whichever date is earlier. You are responsible for giving prompt written notice of identified damage or non-conformance of Products. You must inspect the condition of the packaging and the Products upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier’s agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Products, send all documents by e-mail or fax to our facility from which shipment took place, together with the carrier’s references. Concealed Product damage claims must be made by you to the carrier directly and you must also provide us with written notice and a copy of any such claim within 10 days of receipt of the affected Products. You must notify us within 10 days of receipt of incorrect Products. If you retain the Product without giving notice within the designated notice period, you will be deemed to have waived your right to reject the Product.
4.2 If you cancel an accepted Product order within 10 days prior to shipment or reject conforming Products received under an accepted order, we are entitled to claim reasonable compensation for restocking and other expenses actually incurred.
5. Return of Product:
All Product returns are subject to our prior written consent and must comply with our product return (RMA) procedures then in effect. Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products to us in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to CSS. Products received but not eligible for return will be sent back to you freight collect. For approved returns you will receive credit equal to the lesser of the Product’s invoice price or its current replacement value, less any applicable charges or fees.
6. Pricing, Terms of Payment, Taxes:
6.1 Unless we state otherwise in writing, payment terms are net 30 days from our invoice date. You will make payment in the currency indicated on the invoice. We are entitled to offset payments against prior debt balances in your account. Products, Software or Services purchased or licensed under our Service Level Agreement (“SLA”) Schedules are subject to all of the pricing and other terms and conditions described in the applicable SLA Schedule.
6.2 We have the continuing right to review your credit and change your payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of prompt payment prior to shipment or service activation.
6.3 We reserve the right to charge interest on all overdue sums owing to us under these Terms at the rate of 1.5% per month (or the highest legal limit if lower than said amount), measured from the date the sums in question became payable to the date on which we receive full payment.
6.4 You grant us a purchase money security interest in each Product delivered to you until payment is made in full to us for such Products. Upon request, you will cooperate with us in perfecting any such security interest.
6.5 You are liable for any costs incurred by us if you change or cancel any order, and for all costs of collection of past due amounts (including legal fees).
6.6 Our stated prices for Products and Software do not include applicable sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges, all of which are your responsibility to pay. Unless you provide us with direct payment authority or an exemption certificate valid in the jurisdiction to which the Product will be delivered, you shall pay us all taxes and governmental fees we are required to collect or pay upon sale or delivery of the Product.
7. Limited Warranty:
7.1 Products and Software:
Unless (i) the limited warranty included with a Product or (ii) the User Agreement accompanying any Software grants you different rights or disclaims all warranties, we warrant to you, and only to you, as applicable, (a) that our Products are designed and manufactured to conform to our specifications and will be free from defects in material and workmanship for a period of 12 months from date of Delivery, and (b) that our Software will substantially conform to the functional specifications and current documentation provided by CSS for a period of 90 days. During the warranty period, our liability and your exclusive remedy is limited, at CSS’s option, to replacing, repairing, correcting, or issuing credit for any Product or Software subject to the warranty in this Section 7.1, which upon inspection we determine is non-conforming.
7.2 Warranty Exclusions:
The foregoing limited warranty only applies if and to the extent that (a) the Product or Software is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with our applicable documentation and specifications, and (b) the Product or Software is not modified or misused. This limited warranty does not apply to, and we are not responsible for defects or performance problems resulting from
(i) the combination or use of the Product or Software with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by us;
(ii) operating the Product or Software under any specification other than, or in addition to, our standard specifications for them;
(iii) the unauthorized installation, modification, repair or use of the Product or Software; (iv) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Product specifications); or exposure to environmental conditions for which the Product or Software is not intended;
(v) normal wear and tear on consumable parts (e.g., batteries) or
(vi) cosmetic damage.
We do not warrant or guarantee the results obtained through the use of the Product or Software. We make no warranties under these terms with respect to services, which if provided hereunder are provided “as-is”.
NOTICE REGARDING PRODUCTS EQUIPPED WITH SATELLITE OR WIRELESS TECHNOLOGY. Where your use of certain Products and Software is dependent on the availability and coverage of wireless networks, telecommunications networks, satellite positioning systems and the Internet, which involve facilities owned and operated by third parties. We are not responsible for the operation, availability or failure of such third party systems or facilities.
7.3 Warranty Disclaimer:
the foregoing limited warranty terms are in lieu of all obligations or liabilities on our part arising out of, or in connection with, our products and software and state our entire liability and your exclusive remedies relating to them. Except as otherwise expressly provided in these terms, the products and software and any accompanying documentation are provided “as-is” and without express or implied warranty or condition of any kind, either by us or anyone who has been involved in its creation, production, installation, or distribution, including, but not limited to, the implied warranties or conditions of merchantability and fitness for a particular purpose, satisfactory quality, title, and noninfringement. Additionally, we make no express or implied warranty that software provided to you in connection with these terms, is or will be secure, accurate, complete, uninterrupted, free of errors, or free of viruses, or other malware or program limitations. Some jurisdictions do not allow limitations on duration or the exclusion of an implied warranty, so the above limitation may not apply or fully apply to you. If you are a reseller of the products or software you shall not make or pass on to your own customers any warranty, condition or representation on behalf of us other than, or inconsistent with, the applicable limited warranty in the products and software provided to you.
Please note: the above limited warranty provisions will not apply to products you purchase in those jurisdictions in which product warranties are the responsibility of the local distributor from whom the products are acquired. In such case, please contact your CSS product dealer.
8. Warranty Procedures:
8.1 Warranty Repair Procedure:
If any Product fails during the warranty period for reasons covered by our limited warranty and you notify us of such failure during the warranty period, we will at our option repair or replace a nonconforming Product with new, equivalent to new, or reconditioned parts or Product or, if either of the foregoing is commercially impractical in CSS’s determination, refund the Product purchase price you paid (excluding separate costs of installation, if any) upon your return of the Product in accordance with our product return procedures as referenced in Section 5 above. Any repaired or replaced Product will be warranted for a period of 30 days or the remainder of the original warranty period, whichever is longer. We may, in our sole discretion, arrange for fulfillment of our warranty obligations through a CSS affiliate, authorized distributor or an authorized warranty service center.
8.2 Determination of Warranty Applicability:
We reserve the right to refuse warranty services if the Product or Software date of purchase cannot be proven, if a claim is made outside the warranty period or if a claim is excluded under Section 7.2 above. Following our examination of your claim, we will notify you of warranty status and the repair cost of any out-of-warranty Product. At such time you must issue a valid purchase order to cover cost of the non-warranted Product repair and return freight, or authorize return shipment of the Product at your expense as-is.
8.3 Not Responsible for Lost Data.
We are not responsible for any modification or damage to, or loss of any programs, data, or other information stored on any media or any part of any Product serviced by us, or stored or hosted by us in connection with a Software service we provide, or for the consequence of such damage or loss, (such as business loss in the event of system, program or data failure.) You are solely responsible for backing up data and removing all features, parts, alterations, and attachments not covered by warranty prior to releasing the Product to CSS for service or seeking Software support. Any Product or Software sent to CSS for support may be returned to you configured as originally provided to you by CSS.
9. LIMITATION OF LIABILITY:
Our entire liability for any and all claims arising out of or in connection with these terms is limited to the amounts you actually paid to us under the terms. Further, neither we nor our suppliers are liable for any incidental, consequential, punitive damages or other damages, or loss of profits, loss of revenue, loss of data, loss of use of the products or software or any associated equipment, costs of cover, downtime and user time or for breach of any express or implied warranty or conditions, breach of contract, negligence, strict liability or any other legal theory related to the products or software. Except to the extent prohibited by applicable law, any implied warranty of satisfactory quality or fitness for a particular purpose applying to the products or software is limited in duration to the duration of the warranty specified in section 7, above. You and we agree that these limitations of liability are agreed allocations of risk constituting in part the consideration for CSS’s sale of products to you, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or specified other damages, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply, or may not fully apply to you.
10. Intellectual Property Ownership:
You agree that CSS owns all right, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Products and Software and any accompanying documentation or information derived from the foregoing. You shall take reasonable precautions to prevent unauthorized access and use of the Software and documentation by third parties. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Products or Software, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials. We reserve all rights in the Products and Software not specifically granted to you under these Terms.
11. Export Control:
You may not use or otherwise export or re-export the Products or Software except as authorized by the laws of the jurisdiction in which they were obtained. In particular, but without limitation, the Products and Software may not be exported or re-exported in violation of export laws, including if applicable export or re-export into any UN or UK-embargoed countries or to anyone on the UN or UK Commerce Denied Person’s List or Entity List. You represent that you are not located in any country or on any list where the provision of Products or Software to you would violate applicable law. You also agree not to use or enable use of them for any purposes prohibited by applicable law or export or re-export any Product or Software with knowledge that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is your responsibility to know the law pertaining to export/import procedures in the country of destination of the Product and Software. You shall defend, indemnify and hold us harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph.
12. Force Majeure:
Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof.
We reserve the right by written notice of default to cancel or indefinitely suspend an accepted order and to refuse additional orders if: (i) you default in performing your obligations under these Terms, (ii) you cease business operations or enter into any bankruptcy, insolvency, receivership or like proceeding not dismissed within 30 days, or assign your assets for the benefit of creditors, or (iii) when obtaining third-party financing in connection with your Product purchase(s) you fail to do so in a timely manner on terms satisfactory to us.
14. Applicable law – Settlement of Disputes:
These Terms and any dispute, claim or controversy arising therefrom shall be governed by the laws of England and Wales in which we have our principal place of business for Clutch Space Systems Limited. The United Nations Convention on Contracts for the International Sale of Goods will not apply. No dispute or legal action arising under these Terms, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.
These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision does not affect the validity of other provisions.
Any notice or other communication given by either party to the other regarding these Terms will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Your notice address will be the address appearing on the accepted purchase order. Our notice address is: Clutch Space Systems Limited, Surrey Technology Centre, 40 Occam Road, Guildford, Surrey GU2 7YG United Kingdom.
17. Waste Electrical & Electronic Equipment (WEEE):
If the Products are furnished to you as component products on an OEM basis, or for import, resale or distribution to third parties, then you agree that you qualify as, and are deemed the “producer” of all such Products under any laws, regulations or other statutory scheme providing for the marking, collection, recycling, take-back, and/or disposal of electrical and electronic equipment (“WEEE Regulations”) in any jurisdiction whatsoever, (e.g., national laws implementing EU Directive 2012/19 on waste electrical and electronic equipment, recast), and are solely responsible for complying with all such applicable WEEE Regulations in connection with those Products and for all associated costs.
20. Official Language:
The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.