Terms and Conditions

Engineering Solutions Southwest LTD

STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES

1  Interpretation

1.1  The words and phrases used in these Conditions shall have the following meanings unless the 

context otherwise requires:

“Associated Company” means all subsidiary companies (as that term is defined in section 1159 of the 

Companies Act 2006) from time to time of the Client or Engineering Solutions Southwest Ltd; as the 

context dictates

“Background Information” means all knowledge and expertise including but not limited to calculation 

procedures, data, models, software, know-how, inventions, operation and design know-how or other 

Intellectual Property Rights existing prior to the date of this Contract which Engineering 

Solutions Southwest and/or any Associated Companies bring to bear or provide in the course of 

carrying out or supplying the Services, whether or not contained in Documents or other materials, 

and whether or not in the public domain but not including common knowledge in the field in which 

the Services are provided at the date of the Quotation;

“Client” means the party named on the Quotation or Estimate for whom Engineering Solutions 

Southwest has agreed to provide the Services in accordance with these Conditions. Where the Client 

is not a limited company, payments of the trading entity shall be secured by its controlling 

partner or director;

“Client Instructions” means the documented or verbal requests of the Client authorising ED 

Southwest to proceed with the Services or with any change or variation to those Services;

“Conditions” means these standard terms and conditions for the supply of the Services set out in 

this document and (unless the context oth erwise requires) includes any special terms and 

conditions agreed in writing between ENGINEERING SOLUTIONS Southwest and the Client as set out in 

the Contract and/or the Quotation or otherwise evidenced as agreed in writing;

“Confidential Information” means any information or data relating to each party and its technology, 

research, business or affairs including, without limitation, the Contract, the Price, the 

Quotation, these Conditions and, in the case of ENGINEERING SOLUTIONS Southwest, the Background 

Information and, in the case of the Client, the Input Material, disclosed whether in writing, 

orally or by any other means to the other party by that party, or by a third party on that party’s 

behalf, and whether before or after the date of the Contract;

“Confidentiality Agreement” means the confidentiality agreement (if any) entered into between the 

parties;

“Contract” means the contract between ENGINEERING SOLUTIONS Southwest and the Client for the 

provision of the Services including these Conditions, Quotation (if any) and Confidentiality 

Agreement (if any) and excluding any other representations and all correspondence unless 

specifically included by reference to the Quotation;

“Deliverables” means any construction made, goods, documents and other deliverables (including any 

part instalment of them or any parts of them) which ENGINEERING SOLUTIONS Southwest is to supply to 

the Client in accordance with these Conditions as more particularly set out in the Quotation or 

Estimate;

“Document” includes, in addition to a document in writing, any map, plan, graph, drawing or 

photograph, electronic transmission, or other device embodying any other data;

“Duly Authorised Officer” means, in respect of ENGINEERING SOLUTIONS Southwest, any Managing 

Director or Company Solicitor of any Associated Company or division of any Associated Company and, 

in respect of the Client, any person notified in writing by the Client to ENGINEERING SOLUTIONS 

Southwest to be considered the same;

“Estimate” means, an estimate of costs having the same purpose as a Quotation.

“Force Majeure” means any cause beyond the affected party’s reasonable control including, without 

limitation, any act of God, riots or insurrections, acts of terrorism, war (whether declared or 

not), civil disturbance, requisitioning, governmental or parliamentary restrictions, prohibitions 

or enactments of any kind, acts of destruction, computer failure due to software viruses and other 

malfunctions, import or export regulations, strike lock-out or trade dispute (whether involving its 

own employees or those of any other person) or other industrial disturbances, difficulties in 

obtaining labour or materials, breakdown of machinery, fire, flood or unavoidable accident , any 

abnormally inclement weather, lightning, storm, fire, explosion, earthquake, subsidence, structural 

damage, epidemic or other natural physical disaster, failure or shortage of power supplies, 

traffic, road accident, delay of a third party carrier and any legislation, regulation, ruling or 

omissions (including failure to grant any necessary permissions) of any relevant government, court 

or authority;

“Input Material” means any property, permission, resource, noted instruction, full ground condition 

data, underground obstruction or inclusion survey, Document or other materials, and any data or 

other information provided by or required from the Client and/or its representatives, agents, 

suppliers and/or sub-contractors relating to the Services;

“Intellectual Property Rights” means all and any intellectual property rights of any kind and 

rights of a like nature wherever and whenever arising and whether registered or unregistered and 

including, without limitation, any patents, copyright, registered designs, design rights, 

topographic rights, database rights and rights in Confidential Information, trade marks, trade 

names, including without limitation the name “ENGINEERING SOLUTIONS Southwest”, or service marks, 

applications for any of the foregoing and any other similar protected rights in any country;

“Payment Schedule” means the payment schedule set out in the Quotation for the payment of the Price 

and other sums due from the Client to ENGINEERING SOLUTIONS Southwest;

“Price” means the price for the Services as set out in the Quotation or Estimate and any 

variations;

“Practical Completion” means the date advised by ENGINEERING SOLUTIONS Southwest when the 

construction Deliverables are available for the Client to use subject to outstanding payment in 

satisfaction of outstanding invoices;

“Project Manager” means the individual identified by ENGINEERING SOLUTIONS Southwest to manage the 

provision of Services under the Contract and to liaise with the Client in respect of the Contract;

“Quotation” means the document (if any) to which these Conditions are attached and if the Services 

do not stem from a Quotation, all specific references to a separate Quotation shall be considered 

redundant in these Conditions;

“ENGINEERING SOLUTIONS Southwest” means Engineering Solutions Southwest Limited (CN14212711), or 

any Associated Company or trading name entity detailed in the Quotation as the primary contractor 

for the Contract; and

“Services” means the services, including any Deliverables, to be provided by ENGINEERING SOLUTIONS 

Southwest for the Client as more particularly set out in the Quotation or Estimate.

“Site Information” means all data provided by the Client to enable ENGINEERING SOLUTIONS Southwest 

to undertake any part of the Services and must include all subsurface investigations to identify 

the presence of any obstacle, impediment, service conduit or utility.

1.2  Headings used in these Conditions are used for the purposes of identification and reference 

only and shall not constitute part of these Conditions nor be ta ken into account in the 

interpretation, construction or meaning thereof.

2  Application of these Conditions

2.1  ENGINEERING SOLUTIONS Southwest shall provide and the Client shall purchase the Services in 

accordance with any Quotation of ENGINEERING SOLUTIONS Southwest which is accepted by the Client, 

or any written order or acknowledgement of the Client which is accepted by ENGINEERING SOLUTIONS 

Southwest, subject in either case to these Conditions which shall govern, apply to and be 

incorporated into the Contract for the supply of the Services and/or sale of the Deliverables 

between the Client and ENGINEERING SOLUTIONS Southwest.

2.2  These Conditions supersede and shall govern the Contract to the exclusion of all other terms 

and conditions contained in any purchase order or any other document submitted by the Client or in 

any catalogue, advertisement or other publication or subject to which any Quotation is accepted or 

purported to be accepted by the Client. No other terms or conditions shall be valid or binding upon 

ENGINEERING SOLUTIONS Southwest unless specifically agreed to in writing by a Duly Authorised 

Officer of ENGINEERING SOLUTIONS Southwest.

2.3  The Client acknowledges and agrees that it shall be deemed to have accepted these Conditions 

if the Client requests ENGINEERING SOLUTIONS Southwest to provide the Services.

2.4  Unless specified to the contrary in the Quotation, each Quotation submitted by ENGINEERING 

SOLUTIONS Southwest to the Client shall be valid and open for acceptance only for a period of 

thirty days from the date of the Quotation. ENGINEERING SOLUTIONS Southwest may withdraw any 

Quotation at any time prior to acceptance by written or oral notice to the Client without giving 

any reason therefore. If the Client requests ENGINEERING SOLUTIONS Southwest to provide the 

Services outside the validity period stated in the Quotation, and ENGINEERING SOLUTIONS Southwest 

in its absolute discretion agrees, ENGINEERING SOLUTIONS Southwest shall be entitled to vary the 

Quotation including but not limited to the Price, the estimated timetable and the scope of work to 

be carried out.

2.5  No order submitted or Quotation accepted by the Client shall be deemed to be accepted by 

ENGINEERING SOLUTIONS Southwest unless and until confirmed in writing by a Duly Authorised Officer 

of ENGINEERING SOLUTIONS Southwest.

2.6  These Conditions may only be modified by a variation expressed in writing and signed by a Duly 

Authorised Officer of ENGINEERING SOLUTIONS Southwest and no other action on the part of 

ENGINEERING SOLUTIONS Southwest (whether delivery of the Deliverables, performance of the Services 

or otherwise) shall be construed as an acceptance of any other conditions. No other employee, 

representative or agent of ENGINEERING SOLUTIONS Southwest has any authority to amend, modify or 

vary these Conditions or to make any representations concerning the Deliverables or the Services. 

ENGINEERING SOLUTIONS Southwest shall not be bound by any amendment, modification, variation or 

representation unless such amendment, modification or variation is specifically confirmed in 

writing by a Duly Authorised Officer of ENGINEERING SOLUTIONS Southwest

3  Services

3.1  ENGINEERING SOLUTIONS Southwest will perform the Services subject to these Conditions using 

reasonable skill and care and in accordance with good practice.

3.2  The extent and scope of the Services and any assumptions on which the Services are to be 

provided by ENGINEERING SOLUTIONS Southwest to the Client are detailed in the Quotation. The Client 

acknowledges and agrees that it is its sole responsibility to ensure that any assumptions referred 

to in the Quotation are correct and to advise ENGINEERING SOLUTIONS Southwest of any incorrect 

assumptions prior to the commencement of the Services. In the event that any of the assumptions are 

incorrect, ENGINEERING SOLUTIONS Southwest reserves the right to make such amendments to the 

Quotation (including without limitation the scope of work, the Price, timetable and any other 

matters) as it deems appropriate.

3.3  ENGINEERING SOLUTIONS Southwest may at any time make changes to the Services which are 

necessary to comply with applicable safety and/or other statutory requirements. Any additional 

costs for these changes shall be treated as a variation and shall be to the Client’s cost.

3.4  ENGINEERING SOLUTIONS Southwest does not accept liability for ground conditions and shall rely 

entirely on the Client supplied Site Information. Any subsequently identified corrective work 

arising from the unsuitability of the ground for construction Services, whether known about prior 

to commencing of the Services or not, is the risk of the Client.

3.5  When undertaking ancillary Services including but not limited to applications for planning 

consent, building regulations compliance, fire safety assessments or other regulatory or statutory 

requirements, ENGINEERING SOLUTIONS Southwest undertakes such Services as agent on behalf of the 

Client and shall not be liable for the conduct of the work, for the outcome of the decision reached 

by the relevant authority, or for the cost implications of any changes demanded by the relevant 

authorities.

4  Timetable

4.1  ENGINEERING SOLUTIONS Southwest shall not be obliged to commence work in respect of the 

Services until:

4.1.1  ENGINEERING SOLUTIONS Southwest has received and accepted, in accordance with Condition 2.5, 

the Client’s purchase order for the Services or equivalent Client Instructions and signed 

acknowledgement to signify the Client’s acceptance of the Quotation (if any) and these Conditions; 

and

4.1.2  ENGINEERING SOLUTIONS Southwest has received from the Client all appropriate and necessary 

Input Material to commence the Services as identified in the Quotation free of all charges. All 

dates and periods of time referred to in the Quotation are approximate only unless expressly stated 

otherwise in the Quotation.

5  Payment

5.1  Any Quotation shall specify the Price for the provision of the Services. Unless we expressly 

agree otherwise, all estimates, quotations or other indications of cost are intended as a guide and 

are subject to change. The Price quoted shall be exclusive of all taxes including VAT and duties 

including export and/or import duties which shall be additionally paid by the Client. All travel 

and subsistence costs of the Client’s personnel are the sole responsibility of the Client.

5.2  ENGINEERING SOLUTIONS Southwest shall invoice the Client for the Price and other sums payable 

in accordance with the Payment Schedule set out in the Quotation or Estimate. In the absence of a 

Payment Schedule in the Quotation ENGINEERING SOLUTIONS Southwest shall be entitled to invoice the 

Client for all work undertaken on a weekly basis.

5.3  All payments from the Client to ENGINEERING SOLUTIONS Southwest are due immediately strictly 

in accordance with the Payment Schedule included in the Quotation, and shall be paid in full 

without set off or other deduction in such currency as may be specified in the Quotation or Pounds 

Sterling if not otherwise stated. Payment shall be made direct to the ENGINEERING SOLUTIONS 

Southwest Bank Account with Counting up (“the Bank”), Account number 31439619 sort code 23-69-72.

5.4  In the event that payment is not received by the due date as set out in the Payment Schedule 

in the Quotation or Estimate, then ENGINEERING SOLUTIONS Southwest shall be entitled in its sole 

discretion to:

5.4.1  charge interest on the outstanding amount from day to day at the rate of 4% p.a. over the 

prime base lending rate of the Bank applying from time to time both before and after judgement in 

respect of all invoices outstanding from their due date until payment is actually received;

5.4.2  suspend provision of the Services without liability to the Client until the outstanding 

amount is paid in full and the timetable and any other times agreed for the provision of the 

Services shall be amended accordingly; and/or

5.4.3 terminate the Contract in accordance with Condition 14.2.2.

5.5  If, by reason of any rise in costs beyond ENGINEERING SOLUTIONS Southwest’s reasonable control 

(including, without limitation, the cost of materials, storage, fuel, transport, shipping, 

insurance or the cost of complying with any statutory provision or order, regulation or by-law), 

the cost to ENGINEERING SOLUTIONS Southwest of providing the Services shall increase, ENGINEERING 

SOLUTIONS Southwest shall, in its sole discretion, be entitled to pass a fair and reasonable 

element of such increased cost on to the Client to be paid by the Client in addition to and with 

the Price in accordance with this Condition 5.

5.6  Where other professionals are engaged to act on your behalf, for example accountants, 

engineers, draughts person, quantity surveyors, or suppliers who are not consultants or 

subcontractors of ENGINEERING SOLUTIONS Southwest, we may require you to contract with them and to 

pay their charges directly. Where we engage other professionals on your behalf, we do so as your 

agent. We will take care in engaging them but we will not be liable for any act or omission of 

those professionals or for the payment of their fees unless this has been agreed in writing.

6  Client’s Responsibilities

6.1  The Client shall:

6.1.1  Supply to ENGINEERING SOLUTIONS Southwest, at its own expense, all Input Material and Site 

Information necessary for the execution of the Services, within sufficient time to enable 

ENGINEERING SOLUTIONS Southwest to provide the Services in accordance with the Contract as set out 

in the Quotation and otherwise from time to time as requested by ENGINEERING SOLUTIONS Southwest or 

as otherwise required to maintain the progress of the Services;

6.1.2 be responsible for ensuring that any Input Material and Site Information supplied is complete 

and accurate;

6.1.3  provide ENGINEERING SOLUTIONS Southwest’s employees, contractors and such other personnel 

involved in performing the Services, as identified by ENGINEERING SOLUTIONS Southwest, with 

training in the Client’s systems and equipment, as required for the satisfactory delivery of the 

Services. Such training will take place at ENGINEERING SOLUTIONS Southwest’s or the Client’s 

premises, as reasonably determined by ENGINEERING SOLUTIONS Southwest, at times agreed between the 

parties to meet the Services requirement and will be given in English. Any training materials and 

appropriate manuals will only be provided in English;

6.1.4  ensure and be responsible for the health and safety of ENGINEERING SOLUTIONS Southwest’s 

employees, contractors and personnel whilst on the Client’s premises and whilst using any of the 

Client’s employees, contractors and personnel whilst on the Client’s premises and whilst using any 

of the Client’s systems or equipment, including without limitation Input Materials, and whether on 

or off the Client’s premises; and

6.1.5  notify ENGINEERING SOLUTIONS Southwest promptly of any risk, safety issues or incidents 

arising in respect of the Input Material or in any processes or systems used at the Client’s 

premises.

6.1.6  be responsible for any and all planning consent, building regulations compliance, fire 

safety assessments and or other regulatory or statutory requirements without limitation, and shall 

be liable for all and any cost and delay arising from these not being provided or available to 

permit construction to proceed or the Deliverables to enter service.

6.1.7  review, comment upon and approve all construction drawings or data submitted for review by 

ENGINEERING SOLUTIONS Southwest in a timely way which does not delay the construction delivery 

schedule. It is for the Client to resource any necessary third-party professional skills to inform 

and assure itself of the suitability of ENGINEERING SOLUTIONS Southwest’s designs for the Client’s 

purposes.

7  Project Management

7.1  ENGINEERING SOLUTIONS Southwest shall appoint a Project Manager to manage the provision of the 

Services and liaise with the Client as necessary by appropriate means. The Client shall identify a 

representative to liaise with the Project Manager in respect of the provision of the Services. Any 

instruction given by the Client’s representative shall be binding on the Client.

8  Deliverables

8.1  The Deliverables shall be as specified in the Quotation. If documentary these will be sent to 

your nominated representative at the correspondence address you provide. In the case of hardware or 

objects and unless otherwise specified in the Quotation, such Deliverables will be delivered 

ex-works at ENGINEERING SOLUTIONS Southwest’s premises.

9  Risk and Property

9.1  Risk in the Deliverables shall pass to the Client immediately upon notification from 

ENGINEERING SOLUTIONS Southwest to the Client that the Deliverables are available.

9.2  Notwithstanding delivery and/or the passing of risk in the Deliverables or any other provision 

in these Conditions, property in the Deliverables shall not pass to the Client until ENGINEERING 

SOLUTIONS Southwest has been paid in full for the Services including the Deliverables. ENGINEERING 

SOLUTIONS Southwest shall be entitled to register a charge against the Deliverables until payment 

is made in full.

10  Rights

10.1  Upon payment by the Client of the total Price due to ENGINEERING SOLUTIONS Southwest and any 

other costs and expenses provided for under the Contract,

all Deliverables, but excluding any Intellectual Property Rights therein, shall become the sole 

property of the Client. For the avoidance of doubt the Price does not include the cost of searches 

in third party indexes to identify any existing third party rights and ENGINEERING SOLUTIONS 

Southwest shall not be obliged to carry out any such searches unless specifically requested to do 

so by the Client at the Client’s sole cost.

10.2  The Client accepts that, during the performance of the Services, ENGINEERING SOLUTIONS 

Southwest may use and/or apply its Background Information. The Client shall not obtain or have any 

rights in such Background Information or any development, modification, improvement or variation 

thereof made by ENGINEERING SOLUTIONS Southwest or on ENGINEERING SOLUTIONS Southwest’s behalf or 

any representation of the same whether developed or made by ENGINEERING SOLUTIONS Southwest or on 

ENGINEERING SOLUTIONS Southwest’s behalf in connection with the performance of the Services or 

otherwise. All title, rights and Intellectual Property Rights in the Background Information, and 

any development, modification, improvement or variation thereof made by ENGINEERING SOLUTIONS 

Southwest or on ENGINEERING SOLUTIONS Southwest’s behalf, is the sole and exclusive property of 

ENGINEERING SOLUTIONS Southwest provided that the Client may request the right to use such 

Background Information for the purposes of exploiting the Deliverables but such right will only be 

granted for internal use within the Client’s business.

10.3  Any Input Material provided by the Client shall belong to the Client subject to ENGINEERING 

SOLUTIONS Southwest’s right to use such Input Material as it requires in the performance of the 

Services or as otherwise provided for in the Contract.

10.4  Any background information developed by either party outside the scope of the Services shall 

belong to the party developing it.

10.5  Any know-how arising during the provision of the Services shall belong solely and exclusively 

to ENGINEERING SOLUTIONS Southwest and ENGINEERING SOLUTIONS Southwest shall be entitled to use 

such know-how as it determines in its sole discretion.

10.6  Subject to Condition 10.5, any inventions, designs and similar which the parties may develop 

or create during the execution of the Services shall belong to the party employing (whether as an 

employee, contractor or otherwise) the inventor, designer or author thereof. The parties shall 

notify each other of any proposed application for any Intellectual Property Rights protection or 

registration in respect of any such invention or design and shall keep each other informed in 

respect of progress.

10.7  Upon the passing of property in the Deliverables to the Client in accordance with Condition 

10.1, ENGINEERING SOLUTIONS Southwest shall grant the Client a non-exclusive, non- transferable, 

perpetual, royalty free license, but without the right of sub-license (save in accordance with this 

Condition), to use the Intellectual Property Rights in the Deliverables solely for the purpose of 

and in connection with the Deliverables and not for any other purpose without ENGINEERING SOLUTIONS 

Southwest’s express prior written consent. The rights granted by this Condition may only be 

sub-licensed to such of the Client’s Associated Company’s who have a need to know and solely on the 

basis that notice and details of such sub-license, including without limitation the name of the 

sub-licensee, are promptly given to ENGINEERING SOLUTIONS Southwest.

10.8  Notwithstanding any other provision of the Contract, the Client shall not be entitled to use 

in any way the name “ENGINEERING SOLUTIONS Southwest” without the express prior written consent of 

a Duly Authorised Officer to the specific use.

10.9  ENGINEERING SOLUTIONS Southwest shall be entitled to use all Intellectual Property Rights 

(including without limitation any patents) belonging to the Client for its own internal purposes 

and for other work for the Client. Copyright in any document created by us is and remains vested in 

ENGINEERING SOLUTIONS Southwest and will not be transferred to you. We may object to any misuse of 

such document.

11  Warranties and Liability

11.1  ENGINEERING SOLUTIONS Southwest warrants that:

11.1.1 it will perform the Services using all reasonable skill and care in accordance with good 

practice;

11.1.2 unless expressly indicated to the contrary any investigations, calculations, design, 

analysis, research and support is the property of ENGINEERING SOLUTIONS Southwest and/or one or 

more of its Associated Companies;

11.1.3 no third party rights are known to ENGINEERING SOLUTIONS Southwest at the date of the 

Quotation which may be infringed by the Deliverables;

11.1.4 ENGINEERING SOLUTIONS Southwest or one of its Associated Companies is the owner of the 

rights in the Background Information and the Deliverables and is free to transfer the Deliverables 

to the Client as indicated in the Contract save for those instances when, at the Client’s request, 

ENGINEERING SOLUTIONS Southwest has been asked to include third party proprietary products and 

information.

11.1.5 New buildings shall have a six month guarantee against structural defects from the date of 

Practical Completion. This warranty excludes damage to the building and misuse arising from use 

outside its design specification.

11.2  In the event of a breach of the warranty at Condition 11.1.3 above, ENGINEERING SOLUTIONS 

Southwest shall be entitled at its own expense and sole option and as the Client’s sole remedy for 

such breach either to:

11.2.1 procure the right for the Client to continue using the Deliverables; or

11.2.2 make such alterations, modifications or adjustments to the Deliverables so that they become 

non-infringing without incurring a material diminution in function; or

11.2.3 replace the Deliverables with non-infringing substitutes provided that such substitutes do 

not entail a material diminution in function.

11.3  The Client warrants that it is the owner of the beneficial rights in the Input Material and 

the Site Information, and its use by ENGINEERING SOLUTIONS Southwest for the purpose of providing 

the Services, will not infringe the copyright or any other rights or Intellectual Property Rights 

of any third party. ENGINEERING SOLUTIONS Southwest is not responsible for any warranty associated 

with Input Materials.

11.4  The Client agrees that any claim of any kind arising out of or in connection with the 

services or advice provided by ENGINEERING SOLUTIONS Southwest shall be brought only against 

ENGINEERING SOLUTIONS Southwest Enterprises Ltd and that no claims will be brought personally 

against any of its shareholders, directors, partners, employees or consultants involved in the 

provision of the services.

11.5  In the event of a breach of the warranty at Condition 11.3 above, ENGINEERING SOLUTIONS 

Southwest shall be entitled, at its sole option and without prejudice to any other right or remedy 

it may have, to suspend provision of the Services without liability to the Client to allow the 

Client a maximum of 14 days to:

11.5.1 procure the right for ENGINEERING SOLUTIONS Southwest to continue using the Input Material; 

or

11.5.2 make such alterations, modifications or adjustments to the Input Material so that it becomes 

non-infringing without incurring a material diminution in performance or function; or

11.5.3 replace the Input Material with non-infringing substitutes provided that such substitutes do 

not entail a material diminution in performance or function.

Provided that any times agreed for the provision of the Services shall be amended accordingly, the 

Client shall be additionally liable for ENGINEERING SOLUTIONS Southwest’s costs incurred during the 

period of suspension and, if the Client is unable to rectify the infringement in accordance with 

Condition 11.4.1, 11.4.2 or 11.4.3, ENGINEERING SOLUTIONS Southwest shall be entitled to terminate 

the Contract in accordance with Condition 14.2.1.

11.6  ENGINEERING SOLUTIONS Southwest gives no warranty that the Deliverables will be satisfactory 

for the purposes of the Client and the Client acknowledges and agrees that it is its sole 

responsibility to ensure the same. Subject as expressly provided in these Conditions, all 

warranties, conditions or other terms implied by statute or common law are excluded to the fullest 

extent permitted by law.

11.7  Where ENGINEERING SOLUTIONS Southwest provides any Deliverables which contain or rely upon 

information, software or other third party products, ENGINEERING SOLUTIONS Southwest gives no 

warranty, guarantee or other term as to their quality, fitness for purpose or otherwise. 

ENGINEERING SOLUTIONS Southwest shall to the extent possible and only at the Client’s specific 

request, assign to the Client the benefit of any warranty, guarantee or indemnity given by the 

supplier of the relevant information, software or third party products to ENGINEERING SOLUTIONS 

Southwest.

11.8  ENGINEERING SOLUTIONS Southwest shall not be liable for any failure or delay in respect of 

Input Material, any defect arising from misuse, alteration, amendment or repair of the 

Deliverables.

11.9  Except in the case of death or personal injury caused by ENGINEERING SOLUTIONS Southwest’s 

negligence or the negligence of its employees or agents or as expressly provided for in these 

Conditions in connection with or arising out of the provision of the Services (or any other advice 

provided by us to you of whatever nature):

11.9.1 ENGINEERING SOLUTIONS Southwest shall not be liable to the Client for any liability whether 

arising in contract or in tort including but not limited to negligence and breach of statutory 

duty, wilful default, misrepresentation (unless fraudulent), any breach of warranty whether express 

or implied, failure to properly advise or give ENGINEERING SOLUTIONS Southwest the correct 

information, delay in instructing or providing ENGINEERING SOLUTIONS Southwest with information 

requested, any condition or other term, or any duty at common law for any loss of profit or 

indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by 

the negligence of ENGINEERING SOLUTIONS Southwest, its servants, agents or otherwise) which arise 

out of or in connection with the provision of the Services or their use by the Client; and

11.9.2 ENGINEERING SOLUTIONS Southwest’s total liability to the Client shall not exceed the lower 

of the aggregate Price, or the sum paid by the Client in aggregate, and in any event shall be 

limited to a maximum of £200,000.

11.9.3 If, as well as ENGINEERING SOLUTIONS Southwest, the Client has appointed others to advise in 

relation to the services (or any other advice provided to the Client by ENGINEERING SOLUTIONS 

Southwest of whatever nature), the ENGINEERING SOLUTIONS Southwest aggregate liability shall be 

limited to that proportion of the loss or damage (including interest and costs) which is 

attributable to ENGINEERING SOLUTIONS Southwest having regard to the contribution to such loss and 

damage by any other person and subject to 11.9.2.

11.10 ENGINEERING SOLUTIONS Southwest will use its reasonable endeavours to deliver the 

Deliverables in accordance with the timetable set out in the Quotation. The timetable is an 

estimate only and ENGINEERING SOLUTIONS Southwest accepts no responsibility or liability, financial 

or otherwise, in the event that the estimated delivery schedule is not complied with. For the 

avoidance of doubt ENGINEERING SOLUTIONS Southwest shall not be liable to reimburse the Client in 

respect of any delay payments or other penalties for which the Client may become liable to third 

parties whether or not ENGINEERING SOLUTIONS Southwest was aware of such liability.

11.11 In the event that during the execution of the Services or during any subsequent development 

of the Deliverables information is discovered which indicates that the reported findings in the 

Deliverables are incorrect and that the reason for the failing is demonstrably due to the default 

of ENGINEERING SOLUTIONS Southwest because ENGINEERING SOLUTIONS Southwest ought reasonably to have 

known of the information which the findings rely upon, ENGINEERING SOLUTIONS Southwest shall seek 

to remedy the failing at its own cost.

11.12 If, as well as ENGINEERING SOLUTIONS Southwest, you have appointed others to advise you in 

relation to the Services (or any other advice provided by us to you of whatever nature), our

aggregate liability to you in respect of breach of contract, breach of statutory duty, tort 

(including negligence), or any other act or omission on our part shall be limited to that 

proportion of the loss or damage (including interest and costs) suffered by you which is 

attributable to us or our partners, employees and consultants having regard to the contribution to 

such loss and damage by any other person. This will remain the position, even if you have agreed a 

limitation of liability with any of your other advisers so that consequently you may not be able to 

recover a part of any loss for which they might have otherwise been liable.

12  Confidentiality

12.1  The parties acknowledge and agree that the Confidentiality Agreement (if any) shall continue 

to apply in respect of the Contract. If there is not a Confidentiality Agreement in place between 

the parties, the following terms of this Condition 12 shall apply.

12.2  The parties (as a “Receiving Party”) hereby acknowledge that the other (the “Disclosing 

Party”) has provided to the Receiving Party Confidential Information and in respect of all such 

Confidential Information the Receiving Party will:

12.2.1 Treat it as confidential;

12.2.2 Restrict its disclosure to such of its employees, agents and professional advisors as have a 

need to know and subject always to such employees and agents being under a similar duty of 

confidentiality; and

12.2.3 Not disclose it to any third party without the prior written consent of the Disclosing 

Party.

12.3  The requirements of Condition 12.2 shall not apply to any Confidential Information which:

12.3.1 is or becomes common knowledge without breach of this Condition by the Receiving Party; or

12.3.2 was in the Receiving Party’s possession prior to receipt from the Disclosing Party or 

developed for or by the Receiving Party at any time independently of any disclosure by the 

Disclosing Party; or

12.3.3 the Receiving Party is required to disclose by law or other competent authority provided 

that the Receiving Party notifies the Disclosing Party, if permitted by law, as soon as it receives 

such a request for disclosure and affords to the Disclosing Party all such reasonable assistance as 

the Disclosing Party may request to prevent or limit such disclosure.

13  Assignment

13.1  Subject to Condition 13.2 below, neither party may assign the Contract nor any of the 

benefits or liabilities hereof in whole or in part without the express prior written consent of the 

other party, save for the purpose of a solvent reconstruction or amalgamation.

13.2  ENGINEERING SOLUTIONS Southwest is entitled to sub-contract any of its rights or obligations 

under the Contract, whether in connection with the performance of the Services or otherwise, to any 

one or more of its Associated Companies as it may determine in its sole discretion.

14  Termination

14.1  The Contract shall continue in full force and effect until completion by both parties of 

their respective obligations hereunder unless terminated earlier in accordance with Condition 14.2.

14.2  This Agreement may be terminated by:

14.2.1 either party if the other continues in default of any obligation imposed upon it hereunder 

for more than 14 days after written notice has been dispatched by that party by recorded delivery 

or courier requesting the other to remedy such default;

14.2.2 ENGINEERING SOLUTIONS Southwest on written notice to the Client in the event that the Client 

fails to pay within the period allowed and/or fails to make payment within seven (7) days after a 

further request for payment;

14.2.3 either party on written notice to the other in the event that the other makes any voluntary 

arrangement with its creditors or becomes subject to an administration order or (being an 

individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for 

the purposes of a solvent amalgamation or reconstruction) or an encumbrancer takes possession, or a 

receiver is appointed, of any of the property or assets of the other or the other ceases, or 

threatens to cease, to carry on business; or

14.2.4 by either party on 14 days written notice to the other if an event of Force Majeure affects 

the other party from properly performing its obligations under the Contract for a continuous period 

of at least 4 weeks.

14.3  In the event of termination of the Contract for any reason, at ENGINEERING SOLUTIONS 

Southwest’s sole discretion and option the Client shall pay ENGINEERING SOLUTIONS Southwest for all 

Services performed up to the date of termination according to the Contract or on a quantum meruit 

basis assessed by an independent professionally qualified and experienced Quantity Surveyor.

14.4  Immediately upon notice of termination, ENGINEERING SOLUTIONS Southwest shall no longer be 

responsible for dates and deadlines that may apply or arise as a result of that matter.

14.5  In the event of termination of the Contract for any reason (other than by the Client pursuant 

to Condition 14.2.1), the Client shall additionally pay ENGINEERING SOLUTIONS Southwest for all 

costs incurred after the date of termination in winding down the Services including, inter alia and 

without limitation the dismantling of any test facilities, the storage and/or return of Input 

Material, delivery of the Deliverables the use of ENGINEERING SOLUTIONS Southwest’s facilities and 

resources which are unavailable as a result of the termination, any third party supplier costs in 

respect of goods and/or services which cannot be terminated and the labour costs for ENGINEERING 

SOLUTIONS Southwest’s personnel and/or sub-contractors, involved in the performance of the 

Services, for up to a maximum of four weeks from termination or such shorter period until 

ENGINEERING SOLUTIONS Southwest can place such personnel with alternative work. The Client shall 

also pay 10 per cent of the Price outstanding at the date of termination and which the parties 

agree is a reasonable pre- estimate of the loss ENGINEERING SOLUTIONS Southwest will suffer as a 

result of any such termination.

14.6  Unless otherwise specified in the Quotation, the Input Material will, at ENGINEERING 

SOLUTIONS Southwest’s sole option as notified to the Client, be returned to the Client by 

ENGINEERING SOLUTIONS Southwest and/or made available for collection from ENGINEERING SOLUTIONS 

Southwest’s premises and if the Client is responsible for collecting any of the Input Material from 

ENGINEERING SOLUTIONS Southwest’s premises, such collection may be made at any time during business 

hours and on at least 48 hours notice to ENGINEERING SOLUTIONS Southwest after ENGINEERING 

SOLUTIONS Southwest has given notice that the Input Material are available for collection.

14.7  If the Client fails to collect any Input Material or fails to provide delivery instructions 

within the time stated in the notification then, without prejudice to any other right or remedy 

which ENGINEERING SOLUTIONS Southwest may have, ENGINEERING SOLUTIONS Southwest may at its sole 

discretion:

14.7.1 Store the Input Material at its own premises or elsewhere and charge the Client for its 

reasonable costs including without limitation insurance for storage; and/or

14.7.2 On notice to the Client, destroy the Input Material and charge the Client for its reasonable 

costs.

14.8  Any termination of the Contract shall not affect the accrued rights and obligations of the 

parties nor shall it affect any provision which is expressly or by implication intended to come 

into force or continue in force on or after such termination.

15  Delays

15.1  ENGINEERING SOLUTIONS Southwest shall not be responsible for any delay caused by:

15.1.1 the inadequacy or the delay in provision of any Input Material to be supplied by the Client 

and/or third party suppliers whether or not nominated by the Client;

15.1.2 the failure, malfunction or material inadequacy of any Input Material .

15.1.3 the non-availability of access to the Client’s site at the date or time previously advised 

by the Client

In the event of such delay ENGINEERING SOLUTIONS Southwest may extend the timetable and charge the 

Client for any additional cost incurred in re-allocating resources.

16  Taxes

16.1  The Price is exclusive of all taxes including but not limited to VAT and Customs and import 

duties which will be invoiced to and payable by the Client in addition to the Price.

16.2  If ENGINEERING SOLUTIONS Southwest is liable for any tax levied by a foreign government in 

connection with the provision of the Services and/or the supply of the Deliverables the Client 

shall provide ENGINEERING SOLUTIONS Southwest with the necessary tax certificates to enable 

ENGINEERING SOLUTIONS Southwest to recover the taxes to the greatest extent possible under any 

agreement for the avoidance of double taxation between the UK Government and the foreign government 

levying the tax charge.

16.3  If any deduction or withholding is required by any law, practice or regulation (whether or 

not such practice or regulation has the force of the law) in respect of any payment due from the 

Client to ENGINEERING SOLUTIONS Southwest under the Contract or is in any event made, the relative 

sum payable by the Client shall be increased so that, after making the minimum deduction or 

withholding so required, the Client shall pay to ENGINEERING SOLUTIONS Southwest and ENGINEERING 

SOLUTIONS Southwest shall receive and be entitled to retain on the due date for payment a net sum 

at least equal to the sum which it would have received had no such deduction or withholding been 

required to be, or had been made.

17  Variations

17.1  To allow flexibility within the Services but with appropriate controls, a system of project 

variation requests will be used. The project variation request may be Client or ENGINEERING 

SOLUTIONS Southwest driven and may include, inter alia, changes to the objectives, scope of work, 

Deliverables, timing, responsibilities, assumptions, Price or delays

caused by the Client and/or third party suppliers, whether or not nominated by the Client, and 

shall be agreed by the parties in writing in a timely manner so as not to prejudice any timing 

schedule agreed between the parties. ENGINEERING SOLUTIONS Southwest shall be entitled to charge 

for any additional cost incurred as a result of any project variation. Subject to Condition 3.3, no 

project variation shall take effect unless and until agreed to in writing by the Project Manager of 

ENGINEERING SOLUTIONS Southwest or such other person who may be notified by ENGINEERING SOLUTIONS 

Southwest to the Client as duly authorised for the purposes of this Condition.

17.2  Unless we expressly agree otherwise, these terms and conditions of business shall apply to 

any future instructions you give us.

18  Insurance

18.1  The Client will list all Input Material supplied to ENGINEERING SOLUTIONS Southwest and will 

advise ENGINEERING SOLUTIONS Southwest of the value of that Input Material prior to delivery so 

that ENGINEERING SOLUTIONS Southwest may, subject to verification, take steps to insure the same 

for such value whilst at ENGINEERING SOLUTIONS Southwest’s premises and under ENGINEERING SOLUTIONS 

Southwest’s control. ENGINEERING SOLUTIONS Southwest shall not be obliged to insure Input Material 

which is being used by employees or representatives of the Client at ENGINEERING SOLUTIONS 

Southwest’s premises or elsewhere.

18.2  ENGINEERING SOLUTIONS Southwest shall maintain its own Employers Liability Insurance, 

Construction All-Risks Insurance, Third Party Liability Insurance and Professional Indemnity 

Insurance.

18.3  Where a site is not under the exclusive control of ENGINEERING SOLUTIONS