OUR TERMS
Conditions of Purchase
ACTIVE ELECTRONICS PLC STANDARD CONDITIONS OF PURCHASE
1. INTERPRETATION
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day. Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.4.
Contract: the contract between ACTIVE ELECTRONICS PLC and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
Customer: ACTIVE ELECTRONICS PLC (registered in England and Wales with company number 01531348).
Customer Materials: has the meaning set out in clause 8.
Delivery Date: the date specified in the Order.
Delivery Location: the address for delivery of Goods as set out in the Order.
Goods: the goods (or any part of them) set out in the Order.
Warranty Period: the period specified in the Order, or if no period is set out is in accordance with the manufacturer’s warranty period.
Order: ACTIVE ELECTRONICS PLC’s order for the Goods, as set out in ACTIVE ELECTRONICS PLC’s purchase order form.
Specification: the specification for the Goods, including any related plans and drawings, that is agreed in writing by ACTIVE ELECTRONICS PLC and the Supplier.
Supplier: the person or firm from whom ACTIVE ELECTRONICS PLC purchases the Goods.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written excludes fax but not email.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by ACTIVE ELECTRONICS PLC to purchase the Goods in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing a written acceptance of the Order; and
(b) the Supplier doing any act consistent with fulfilling the Order, including acceptance of any deposit paid by ACTIVE ELECTRONICS PLC at which point the Contract shall come into existence.
2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. THE GOODS
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and the applicable Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by ACTIVE ELECTRONICS PLC expressly or by implication, and in this respect ACTIVE ELECTRONICS PLC relies on the Supplier’s skill and judgement;
(c) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery;
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
(e) comply with the terms of the Montreal Protocol and any subsequent variations, unless explicitly agreed otherwise;
(f) where a sample or samples are provided by the Supplier, the Goods shall conform in all respects with the sample or samples. The Supplier shall on demand supply to ACTIVE ELECTRONICS PLC the name and address of any person other than the Supplier, who actually or apparently produced the Goods (or any part or component thereof) or imported them into the EEC or the United Kingdom or previously supplied them.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.3 The Seller must advise ACTIVE ELECTRONICS PLC should they amend or alter in any way the product description of any Goods before Delivery or completion of the Order.
3.4 The Seller shall forthwith notify ACTIVE ELECTRONICS PLC if the Goods are subject to any export regulations including, but not limited to, United States export control regulations such as ITAR and EAR. If any regulations apply it is incumbent upon the Supplier to obtain and maintain all necessary export licences so that ACTIVE ELECTRONICS PLC may purchase the Goods or services and resell such goods and services in compliance with all appropriate laws. ACTIVE ELECTRONICS PLC relies upon the Supplier to ensure ACTIVE ELECTRONICS PLC is advised of all relevant requirements and further the Supplier shall notify ACTIVE ELECTRONICS PLC of any change in the regulations during the lifetime of the Order. Any noncompliance with or withdrawal of the applicable license shall entitle ACTIVE ELECTRONICS PLC to cancel the Order and recover from the Supplier damages including consequential loss and loss of profit arising directly or indirectly from the Seller’s failure to comply with theprovisions of this Condition or the regulations. Notwithstanding and in addition to, the foregoing provisions, the Seller shall fully indemnify, and keep full indemnified ACTIVE ELECTRONICS PLC from and against all losses, actions, cost, expenses, claims or demands whatsoever and all loss or damage (including consequential loss or damage and loss of profit), suffered by ACTIVE ELECTRONICS PLC as a result of the supply of the Goods, any misrepresentation by the Seller, delays in production or lost orders or any other loss caused by, or arising out of, the Seller’s failure to supply Goods in conformity with the Order or delay in delivery of the Goods. The Seller shall advise ACTIVE ELECTRONICS PLC should any products that have been sold or shipped to us subsequently at some time in the future be found to be faulty or incorrect.
3.5 The Supplier (electronic component distributor or custom electronic assembler) is hereby notified that the delivery of counterfeit Goods or parts thereof is of special concern to ACTIVE ELECTRONICS PLC. If counterfeit parts are furnished under this Order or discovered or suspected to be contained in any of the custom assembled Goods delivered hereunder, such items will be impounded by ACTIVE ELECTRONICS PLC. The Supplier shall promptly replace such Goods with parts acceptable to ACTIVE ELECTRONICS PLC. To further mitigate the possibility of the inadvertent use of counterfeit parts, the supplier shall only purchase electronic component parts directly from the Original Component Manufacturer (OCM) / Original Equipment Manufacturer (OEM) or through authorized distributors.
3.6 ACTIVE ELECTRONICS PLC may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwiseaffect the Supplier’s obligations under the Contract.
3.7 If following such inspection or testing ACTIVE ELECTRONICS PLC considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at Clause 3.1, ACTIVE ELECTRONICS PLC shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.8 ACTIVE ELECTRONICS PLC may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. DELIVERY
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the Order number (if any), the type and quantity of the Goods, (including the code number of the Goods, where applicable), special storage instructions (if any); and
(c) on each delivery of the Goods, an advice note will be posted to ACTIVE ELECTRONICS PLC together with an invoice which shows the Order number (if any), the type and quantity of the Goods, (including the code number of the Goods, where applicable) and
(d) if the Supplier requires ACTIVE ELECTRONICS PLC to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
(a) on the Delivery Date, and it is agreed that time is of the essence;
(b) at the Delivery Location; and
(c) during ACTIVE ELECTRONICS PLC’s normal business hours, or as instructed by ACTIVE ELECTRONICS PLC.
4.3 ACTIVE ELECTRONICS PLC is entitled to suspend the Delivery Date on 5 days’ notice in the event of act of God, war, riots, strikes, lock outs, trade disputes, fires, breakdowns, mechanical failures, disruption of energy supplies, interruption of transport, Government action or any other cause whatsoever outside ACTIVE ELECTRONICS PLC’s control which affects ACTIVE ELECTRONICS PLC’s business whether or not of like nature to those specified above. The Supplier is responsible for storing the Goods until the rearranged Delivery Date. In the notice suspending the Delivery Date ACTIVE ELECTRONICS PLC will provide a long stop date to rearrange Delivery, at the expiry of which ACTIVE ELECTRONICS PLC may elect to cancel the Order.
4.4 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.5 The Supplier must deliver the exact quantity of Goods ordered, unless agreed otherwise in advance in writing. Should the incorrect quantity be delivered, ACTIVE ELECTRONICS PLC may at its discretion reject the Goods or the excess Goods, and any rejected Goods shall be returnable at the Supplier’s risk and expense.
4.6 The Supplier shall not deliver the Goods in instalments without ACTIVE ELECTRONICS PLC’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle ACTIVE ELECTRONICS PLC to the remedies set out in clause 5.
5. CUSTOMER REMEDIES
5.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, ACTIVE ELECTRONICS PLC may exercise any one or more of the following rights and remedies:
(a) to terminate the Contract;
(b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by ACTIVE ELECTRONICS PLC in obtaining substitute goods from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by ACTIVE ELECTRONICS PLC which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
5.2 If the Goods are not delivered on the Delivery Date ACTIVE ELECTRONICS PLC may, at its option, claim or deduct by way of liquidated damages {100%} of the price of the Goods for each week’s delay in delivery until the earlier of delivery or termination or abandonment of the Contract by ACTIVE ELECTRONICS PLC, up to a maximum of {100%} of the total price of the Goods. If ACTIVE ELECTRONICS PLC exercises its rights under this Clause 5.2, it shall not be entitled to any of the remedies set out in Clause 5.1 in respect of the Goods’ late delivery (but such remedies shall be available in respect of the Goods’ condition).
5.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.4 ACTIVE ELECTRONICS PLC’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6. TITLE AND RISK
Title and risk in the Goods shall pass to ACTIVE ELECTRONICS PLC on completion of delivery. The Seller shall forthwith replace any Goods destroyed, damaged, lost or which have deteriorated during the course of transit. Section 3.3 of the Sale of Goods Act 1979 shall not apply.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.
7.2 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which ACTIVE ELECTRONICS PLC shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) includes the costs of packaging, insurance and carriage of the Goods.
7.3 No extra charges shall be effective unless agreed in writing with ACTIVE ELECTRONICS PLC.
7.4 The Supplier may invoice ACTIVE ELECTRONICS PLC for the price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, ACTIVE ELECTRONICS PLC’s order number, the Supplier’s VAT registration number, and any supporting documents that ACTIVE ELECTRONICS PLC may reasonably require.
7.5 ACTIVE ELECTRONICS PLC shall pay correctly rendered invoices as agreed with supplier Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
7.7 ACTIVE ELECTRONICS PLC may at any time, without notice to the Supplier, set off any liability of the Supplier to ACTIVE ELECTRONICS PLC against any liability of ACTIVE ELECTRONICS PLC to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, ACTIVE ELECTRONICS PLC may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by ACTIVE ELECTRONICS PLC of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
8. CUSTOMER MATERIALS
The Supplier acknowledges that all materials, equipment and tools, drawings, specifications, and data supplied by ACTIVE ELECTRONICS PLC to the Supplier (Customer Materials) and all rights in the Customer Materials are and shall remain the exclusive property of ACTIVE ELECTRONICS PLC. The Supplier shall keep the Customer Materials in safe custody at its own risk, maintain them in good condition until returned to ACTIVE ELECTRONICS PLC, and not dispose or use the same other than in accordance with ACTIVE ELECTRONICS PLC’s written instructions or authorisation.
9. INDEMNITY
9.1 The Supplier shall indemnify ACTIVE ELECTRONICS PLC against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ACTIVE ELECTRONICS PLC as a result of or in connection with:
(a) any claim made against ACTIVE ELECTRONICS PLC for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against ACTIVE ELECTRONICS PLC by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against ACTIVE ELECTRONICS PLC by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
9.2 This clause 9 shall survive termination of the Contract.
10. WARRANTY
10.1 During the Warranty Period, the Seller agrees that if ACTIVE ELECTRONICS PLC gives notice in writing to the Seller of any defect in the Goods which shall arise under proper use from faulty manufacture or design (other than a design made, furnished, or specified by ACTIVE ELECTRONICS PLC for which the Seller has in writing disclaimed responsibility), materials or workmanship, then the Seller shall forthwith replace the Goods so as to remedy the defects without cost to ACTIVE ELECTRONICS PLC, in line with the manufacturer warranty unless agreed otherwise in advance in writing.
10.2 ACTIVE ELECTRONICS PLC shall as soon as practicable after discovering any such defect or failure notify the Seller of the defects and return the defective Goods or parts thereof to the Seller at the Seller’s risk and expense unless it has been agreed between the parties that the necessary replacement or repair shall be carried out by the Seller on ACTIVE ELECTRONICS PLC’s premises.
11. INSURANCE, AUDITS AND RECORD KEEPING
11.1 During the term of the Contract and for a period of 13 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on ACTIVE ELECTRONICS PLC’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
11.2 The Seller shall provide right of access to ACTIVE ELECTRONICS PLC, their customer, any professional auditors and regulatory authorities to the Seller’s premises, warehouse, and any other applicable areas of all facilities, at any level of the supply chain including the premises or facilities of any producer, involved in sourcing, manufacturing or in any way connected to the Order and to all applicable records connected to the Order.
11.3 The Seller shall retain all records of the Order for a minimum period of 7 years unless agreed otherwise in writing, after which they should be irrecoverably destroyed and disposed of.
12. CONFIDENTIALITY
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13. COMPLIANCE WITH RELEVANT LAWS AND POLICIES
13.1 In performing its obligations under the Contract, the Supplier shall:
(a) comply with all applicable laws, statutes, regulations and codes from time to time in force;
(b) comply with the Mandatory Policies.
13.2 ACTIVE ELECTRONICS PLC may immediately terminate the Contract for any breach of clause 13.
14. TERMINATION
14.1 ACTIVE ELECTRONICS PLC may terminate the Contract in whole or in part at any time before delivery of the Goods with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. ACTIVE ELECTRONICS PLC shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
14.2 Without limiting its other rights or remedies, ACTIVE ELECTRONICS PLC may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 2 days of the Supplier being notified in writing to do so;
(b) the Supplier 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;
(c) the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his 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;
(d) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the Supplier’s financial 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.
14.3 On termination or expiry of the Contract, the Supplier shall immediately return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
14.4 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at 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.
14.5 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.
15. FORCE MAJEURE
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non- performance continues unreasonably, the party not affected may terminate the Contract by giving 5 days’ written notice. to the affected party.
16. GENERAL
16.1 Assignment and other dealings
(a) ACTIVE ELECTRONICS PLC may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(b) The Supplier may not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of ACTIVE ELECTRONICS PLC.
16.2 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of ACTIVE ELECTRONICS PLC. If ACTIVE ELECTRONICS PLC consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
16.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on 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.
16.4 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by ACTIVE ELECTRONICS PLC.
16.5 Waiver.
(a) Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
16.6 Severance. If any provision or part-provision of the Contract 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 the Contract. If any provision of the Contract is deemed deleted under this clause 16.6 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.
16.7 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) Delivered by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the following addresses (or an address substituted in writing by the party to be served):
(A) Supplier: the email address entered on to any purchase order.
(B) ACTIVE ELECTRONICS PLC:
(b) Any notice shall be deemed to have been received
(i) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second Business Day after posting; and
(ii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.8 Third party rights.
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.
16.9 Governing law. 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.
16.10 Jurisdiction. 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.
QSD100 Issue 4