1. Definitions and Interpretation
1.1. In these General Terms and Conditions of Supply (the "Conditions") (unless the context otherwise requires) the following terms shall have the following meanings:
"Active" Active Supply and Design (CDM) Limited whose principal place of business is at The Mill House, Crewe Green Road, Crewe, Cheshire, CW1 5NW;
"Client" the person detailed in the applicable Order or Quotation who agrees to purchase the Products from Active;
"Contract" the agreement between Active and the Client for the supply and purchase of the Products comprising the applicable Order or Quotation and these Conditions;
"Delivery" provision of the Products in accordance with clause 4;
"Delivery Address" the address for Delivery which shall be the Client's principal place of business unless specified otherwise in the Order or Quotation;
"Estimated Delivery Date" the date on which Active estimates that the Goods will be delivered and/or the Services will be provided which may be set out in the applicable Order or Quotation;
"Estimated Installation Date" the date (as may be set out in the applicable Order or Quotation) on which Active estimates that Goods will be installed or on which any installation services described in the relevant Order or Quotation will be carried out;
"Goods" goods supplied by Active to the Client as listed in the applicable Order or Quotation;
"Installation Work" any installation work carried out by Active in accordance with these Conditions as detailed in the applicable Order or Quotation and, where appropriate, "Installation” shall mean the result thereof;
"Materials" shall include, but not be limited to, any and all plans, designs, recommendations and other materials produced by Active in its performance of Services and /or provision of Goods;
"Normal Working Hours" the hours of 8am to 6pm Delivery Address local time on weekdays excluding English public and bank holidays;
"Order" an order for Products placed by the Client and accepted by Active;
"Price" the price for provision of the Products as detailed in the applicable Order or Quotation or, in the absence of such provision the price listed in Active's then current price list;
"Products" the Goods and/or Services listed in the applicable Order or Quotation and/or Materials and/or Installation;
"Quotation" a quotation for the supply of Products made by Active and accepted by the Client;
"Services" services supplied by Active to the Client as detailed in the applicable Order or Quotation.
2. Basis of sale
2.1 These Conditions apply to all Contracts for the sale of Products entered into by Active. By placing an Order with Active or accepting a quotation, the Client agrees to deal with Active on these Conditions to the exclusion of all other terms, conditions, warranties or representations.
2.2 Active's quotations are open for acceptance for a period of thirty (30) days from their date of issue. Active reserves the right to amend any quotation not accepted within 30 days of the date of issue.
2.3 Active reserves the right to vary these Conditions at any time save that (other than as provided in clause 2.5) variations to these Conditions shall be valid in respect of a Contract already in existence at the time of variation only if such variation is in writing and is signed on behalf of each of Active and the Client.
2.4 Active's employees or agents are not authorised to make any representations concerning the Products and their application and/or use unless confirmed by Active in writing
2.5 Any typographical, clerical or other error or omission in these Conditions or any Order, Quotation, Materials, sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Active shall be subject to correction at any time without any liability on the part of Active.
3.1 The Client agrees to purchase the Products from Active and Active agrees to sell the Products to the Client in accordance with these Conditions and the applicable Order or Quotation.
3.2 The Client shall not be entitled to cancel any Contract in whole or in part.
3.3 If Goods are to be manufactured or any process is to be applied to them by Active in accordance with the specifications submitted by the Client or if Goods, Materials or any other Products are to be marked with any trade mark at the request of the Client, the Client shall indemnify Active and hold Active harmless against all loss, damages, costs and expenses awarded against or incurred by Active in connection with or, paid or agreed to be paid by Active in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights or misuse of any confidential information of any other person or any other liability whatsoever which results from Active's use of the Client's specifications or the marking of the Goods, Materials or Products or from the sale or supply of such Goods, Materials or Products by Active.
3.4 Active reserves the right at any time to make any changes in the specifications of the Products which are required to conform with any applicable safety or other requirements or which do not materially affect their quality or performance.
4.1 Active shall use its reasonable endeavours to deliver Goods to the Client at the Delivery Address on or around the Estimated Delivery Date, but time of Delivery shall not be of the essence and Active accepts no liability for any delay in Delivery howsoever caused.
4.2 Unless otherwise expressly agreed in writing Delivery of Goods shall be deemed to have been duly effected by Active:-
4.2.1 in the case of Goods agreed to be collected by the Client (save in the circumstances referred to in clause 4.4) when Active has notified the Client that the Goods are ready for collection; or
4.2.2 in all other cases by delivery of the Goods ex Active's works to a carrier for transportation to the Client's premises or other destination agreed by the parties.
4.3 Where the Goods are to be collected by the Client, the Client must remove the Goods from Active's works or other relevant place of collection not later than the third working day after Active notifies the Client in writing that the Goods are ready for collection.
4.4 Active shall be entitled to deliver Goods in instalments in which case each instalment shall be treated as an entirely separate Contract and any default or breach by Active in respect of any such instalment shall not entitle the Client to cancel any other instalment or treat the Contract as a whole as repudiated.
4.5 The Client shall be deemed to accept the Goods on Delivery notwithstanding any late delivery by Active.
4.6 If the Client fails to take delivery of or collect the Goods in accordance with this clause 4 or fails to give Active adequate delivery instructions before the Estimated Delivery Date then, without prejudice to any other right or remedy available to Active, Active may:-
4.6.1 store the Goods until actual delivery is made and charge the Client for the costs (including insurance) of storage; and/or
4.6.2 sell or supply the Goods (whether or not such Goods were manufactured or marked by Active pursuant to the provisions of clause 3.3 above) to a third party at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Client for any shortfall below the Price under the Contract.
5.1 If the relevant Order or Quotation specifies that Active is to perform Installation Work then Active shall use reasonable endeavours to carry out the Installation Work at the Delivery Address on or around the Estimated Installation Date but time of performance of Installation Work shall not be of the essence and Active accepts no liability for any delay in Installation howsoever caused. Subject to this Active shall perform the Installation Work with reasonable care and skill.
5.2 The Client shall give full access to the Delivery Address to Active for the purpose of the Installation Work, shall undertake any preparatory work specified by Active before commencement of the Installation Work and shall compensate Active for any additional costs which Active incurs by reason of the Client's failure properly to undertake any such preparatory work.
5.3 Active shall procure that its employees and sub-contractors who carry out the Installation Work comply with all reasonable safety, security and other regulations which are in force or apply at the Delivery Address and are notified in it and the Client shall indemnify Active against any loss, damages, costs and expenses awarded against or incurred by Active in connection with or, paid or agreed to be paid by Active in settlement of, any claim which Active may suffer or incur as a result of any injury to its employees or damage to or loss of its property whilst at the Delivery Address resulting from anything other than the negligence of Active or its employees or any non-compliance by the Products with the warranty set out in clause 8 below.
5.4 Active shall use reasonable endeavours to carry out the Installation Work in the manner specified in the applicable Order or Quotation and in accordance with the reasonable instructions of the Client but reserves the right to make modifications to the Installation Work and/or methods provided that such modifications shall not materially affect the Goods or other items being installed.
6. Ownership of Materials
6.1 All Materials are and shall at all times remain the property of Active. Client acknowledges that it shall obtain no right or title in or to the Materials.
7. Prices and payment
7.1 Active reserves the right, by giving notice to the Client at any time before Delivery, to increase the Price to reflect any increase in Active's costs which is due to any factor beyond Active's control, any change in delivery dates, quantities or specifications for the Products which is requested by the Client or any delay caused by any instructions of the Client or failure of the Client to give Active adequate information or instructions.
7.2 Unless otherwise stated in the applicable Order or Quotation or in any price list of Active, all prices are given and accepted by Active on an ex works basis, and the Client shall be additionally liable to pay:
7.2.1 Active's charges for transport, packaging and insurance together with any additional expenses, licence fees or duties paid or incurred by Active as a result of the Delivery Address not being in the UK;
7.2.2 any applicable value added tax;
7.2.3 (at Active's standard rates in force from time to time) for any preparatory work carried out by Active prior to Delivery of the Goods and/or Installation (which shall include, but not be limited to, cleaning and/or preparation of the installation site, packing or levelling of floors, walls or ceilings, provision of scaffolding and/or hoists, the unloading, carting and safe custody of material and fittings, cut outs for pipes, radiators, skirting and beams, and the provision of a 240 AC electricity supply for Active's fitters tools); and
7.2.4 (in the event that Active is installing the Products) Active's travel costs and (at Active's standard rates in force from time to time) Active's travelling and waiting time.
7.3 Any price given or accepted by Active is, unless otherwise stated in the applicable Order or Quotation or relevant price list of Active, based upon performance of Installation (if any) during Normal Working Hours. Any Installation Work carried out outside Normal Working Hours at the Client's request or other than as a result of Active's default shall be charged at the rates set out in Active's standard price list from time to time.
7.4 Active shall be entitled to invoice the Client for all amounts due under the Contract on or at any time after Delivery of the relevant Goods or Materials or, where Installation is to be carried out, on or at any time after the completion of the Installation or as otherwise detailed in the applicable Order or Quotation.
7.5 The Client shall make payment to Active in respect of all invoices in full and without any deduction or set off (whether in relation to such invoice or otherwise). In the absence of written agreement between the parties to the contrary payment shall be made within 30 days of the date of the invoice. Time of payment shall be of the essence.
7.6 All payments shall be applied to invoices and to Products listed in such invoices in the order determined by Active in its discretion.
7.7 If full payment is not received by Active by the due date then, without prejudice to its rights under these Conditions, any Contract or at law, Active shall be entitled:-
7.7.1 to suspend or terminate work under any Contract; and/or
7.7.2 to sue for the entire Price; and/or
7.7.3 to charge interest (both before and after any judgment) at the rate of 4% per annum over the base rate from time to time of National Westminster Bank PLC on the outstanding balance; and/or
7.7.4 to require the immediate return to Active of all Goods delivered to the Client in which the property has not passed to the Client in accordance with the provisions of clause 10 below and the Client hereby agrees to reimburse to Active upon demand Active's costs or expenses in recovering such Goods.
8. Warranty and liability
8.1 Active warrants that the Goods and Installation will, at the time of Delivery or completion of Installation Works, conform with any specifications set out in the relevant Order or Quotation and will, for a period of six (6) months from Delivery, be free from defects in material and workmanship PROVIDED THAT:-
8.1.1 Active shall be under no liability in respect of any defects in the Goods and/or Installation arising from any drawing, design or specifications supplied by the Client;
8.1.2 Active shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage or negligence by the Client or persons using the Goods and/or Installation, abnormal working conditions, failure to follow Active's instructions (whether oral or in writing) or misuse or alteration or repair of the Goods and/or Installation without Active's approval;
8.1.3 Active shall be under no liability if the Price has not been paid by the due date for payment;
8.1.4 any defect in or failure to conform to any such specification by the Products shall be notified to Active in writing as soon as reasonably possible after the Client discovers such defect or non-conformity; and
8.1.5 the above warranty does not extend to parts, materials or equipment not manufactured by Active, in respect of which the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Active and which Active hereby assigns to the Client so far as it is able.
8.2 In the event of any valid claim under clause 8.1 above being made by the Client, Active shall be entitled to replace or repair the Goods and/or Installation (or the part in question) free of charge or, at Active's sole discretion, refund to the Client the Price of the Goods and/or Installation (or a proportionate part of the Price as appropriate) but Active shall have no further liability to the Client.
8.3 There are no warranties, conditions, guarantees or representations as to quality or fitness for a particular purpose of the Products or other warranties, conditions, guarantees or representations whether express or implied, oral or in writing, except as expressly stated in these Conditions. Any such warranties implied into the Contract by statute or common law are hereby excluded to the fullest extent permitted by law.
8.4 Active does not seek to exclude or limit its liability for fraud or for death or personal injury resulting from negligence of Active or its employees.
8.5 Active shall be liable to the Client for any direct physical damage to the extent that its results from the negligence of Active or its employees up to a maximum in respect of any Contract of the monies received by Active from the Client under such Contract.
8.6 Except pursuant to sub-clause 8.4 above, Active shall not in any event be liable for any indirect, special or consequential loss or damage, howsoever arising or in respect of any loss of profits revenues or goodwill or wasted overheads or similar costs in connection with or arising out of the furnishing, functioning or use of the Products, or any item or service provided, or any losses not flowing naturally and directly from the breach complained of and shall not be liable for any other damages except as provided in the Contract.
8.7 Except pursuant to sub-clauses 8.4 and 8.5 above in no event shall Active's liability in respect of any of the Products exceed the price paid by the Client for those Products.
8.8 Except pursuant to sub-clause 8.4 above, no action, regardless of form, arising out of the transactions under the Contract may be brought by the Client more than two years after the cause of action has accrued.
9. Third party rights
9.1 Active shall, at its an expense, defend any action against the Client and pay all damages and costs awarded against the Client (except to the extent that the Client is entitled to recover such sums under any policy of insurance) based on a claim that any of the Products constitute an infringement of any patent or copyright or other intellectual property rights of the United Kingdom or misuse of any confidential information belonging to any third party (a "Claim") PROVIDED THAT:-
9.1.1. Active shall be notified promptly in writing by the Client of any notice of a Claim;
9.1.2 Active shall have the sole control of the defence of any action on a Claim and all negotiations for settlement or compromise;
9.1.3 the Client shall allow its name to be used in proceedings if necessary and, at Active's request, provide all reasonable assistance in defending any action; and
9.1.4 the Client shall take all steps reasonably possible to mitigate or reduce any damages and costs which may be awarded against it as a result of a Claim.
9.2 If a Claim is successful or, Active considers that it is likely to be successful, Active may, at its option or as part of a settlement or compromise, procure for the Client the right to continue using the Products, modify the Products so that they are non-infringing or terminate the Contract in so far as it applies to those Products subject to the Claim, in which latter case Active shall refund to the Client the price paid for such Products less depreciation on a straight line basis over the life of the Products as determined by Active.
9.3 In no event shall Active have any liability under this clause 9 with respect to any Claim based on the use of the Products in combination with any other product or equipment not supplied or authorised by Active.
9.4 This clause 9 states the entire obligation and liability of Active with respect to infringement of intellectual property rights and misuse of confidential information.
10. Risk and title
10.1 Risk of loss of or damage to the Goods shall pass to the Client on Delivery and the Client shall (where insurance is applicable) insure the Goods from that time until ownership of and title to them passes to the Client.
10.2 Notwithstanding Delivery and the passing of risk in the Goods to the Client or any other provisions of these Conditions or the Contract, ownership of and title to the Goods shall not pass to the Client and shall be retained by Active until Active has received in cash or cleared funds payment in full of the Price and of the price of any other goods supplied to the Client by Active at any time whether or not the price has become due.
10.3 If any of the Goods owned by Active is incorporated into other goods and is not identifiable in and separable from the resulting composite or mixed goods, title to the resulting composite or mixed goods shall vest in Active and shall be retained by Active for so long as and on the same terms as those on which it would have retained title to the Goods in question.
10.4 Until ownership of and title to all Goods owned by Active passes to the Client, the Client shall hold the Goods in the Client's possession or control as Active's fiduciary agent and bailee and shall keep them separate from those of the Client and third parties and properly stored, protected and insured and identified as Active's property. The Client shall be entitled to resell or use such Goods in the ordinary course of its business but shall account to Active for the entire proceeds of sale or otherwise of such Goods whether tangible or intangible, including insurance proceeds, and shall keep all such amounts separate from any monies or property of the Client and third parties and, in the case of tangible proceeds, properly stored, protected and insured. The Client shall maintain records of the persons to whom it sells or disposes of such Goods and of the payments made by such persons for such Goods and will allow Active to inspect those records and the Goods themselves on request. Active shall be entitled to trace the proceeds of sale or otherwise of such Goods.
10.6 Until ownership of and title to any Goods owned by Active passes to the Client (and providing the Goods are still in existence and have not been resold), Active shall be entitled at any time to require the Client to deliver up such Goods to Active and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where such Goods are stored and repossess them. The Client shall procure that any third party which holds such Goods shall permit Active to take possession of them and shall indemnify Active and hold Active harmless against any all loss, damages, costs and expenses awarded against or incurred by Active in connection with or, paid or agreed to be paid by Active in connection with taking or attempting to take possession of them. Active shall be entitled to use or dispose of such Goods as it wishes. Unless Active expressly elects otherwise any contract between it and the Client for the supply of the Goods shall remain in existence notwithstanding any exercise by Active of any of its rights under this clause.
10.7 The Client shall not be entitled to pledge or in any way charge by way of security for any indebtedness any Goods which remain the property of Active but, if the Client does so, all monies owing by the Client to Active shall (without prejudice to any other right or remedy of Active) forthwith become due and payable.
11. Laws and regulations
The Client shall comply with all laws and regulations relating to the installation, ownership and use of the Products including building, planning and health and safety requirements including, where applicable, any export control legislation and Active shall bear no liability in respect of the same.
12.1 Either party shall be entitled to terminate the Contract forthwith by notice in writing to the other if:-
12.1.1 the other commits an irremediable breach of the Contract, persistently repeats a remediable breach or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same; or
12.1.2 the other makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction).
12.2 Active shall be entitled to terminate the Contract forthwith by notice to the Client in writing if:
12.2.1 the Client ceases or threatens to cease to carry on business; or
12.2.2 there is at any time a material change in the management, ownership or control of the Client; or
12.2.3 the Client is resident in a jurisdiction other than England and Wales, if an event similar to any of those specified in clause 12.1.2 occurs to or in relation to the Client; or
12.2.4 if Active reasonably apprehends that any of the events specified in clauses 12.1.2, 12.2.1, 12.2.2 or 12.2.3 is about to occur in relation to the Client and notifies the Client accordingly.
12.3 In the event of termination by Active pursuant to clause 12.1 above then, without prejudice to any other right or remedy available to Active, Active shall be entitled to cancel the Contract and/or suspend any further deliveries under it without any liability to the Client and, if the Products have already been delivered or performed but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and Active shall be entitled to charge interest (both before and after any judgment) at the rate of 4% per annum over the base rate from time to time of National Westminster Bank PLC from the time of such cancellation or suspension until Active receives payment.
13 Export Terms
13.1 Unless otherwise agreed in writing between the Client and Active, the Goods shall be Delivered ex-works pursuant to clause 4.2 and Active shall be under no obligation to give notice under section 2(3) of the Sale of Goods Act 1979 (as amended from time to time).
13.2 Unless otherwise agreed between the parties in writing payment of all amounts due to Active shall be made by an irrevocable letter of credit opened by the Client in favor of Active and confirmed by a bank in the United Kingdom acceptable to Active.
13.3 The export of certain products from the United Kingdom and their re-export from the country to which they were originally exported is subject to control and prohibitions by virtue of the legislation of the United Kingdom, United States and European Economic Community. The Client agrees not to export or re-export in breach of any such control or prohibition. The Client undertakes fully and effectually to indemnify Active in respect of any breach of this obligation.
13.4 Insofar as the consent of any authority of any country is required for the lawful performance of this Agreement the Client warrants to Active that it has obtained such consent and the Client further agrees that it shall on request provide a copy of such consent to the Client.
14.1 The remedies available to the parties under the Contract shall be without prejudice to any other rights, either at common law or under statute, which each may have against the other.
14.2 The failure or delay of either party to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect either party's right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
14.3 The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
14.4 Any notice or written communication required or permitted to be served on or given to either party under the Contract shall be delivered by hand or sent by recorded delivery mail to the other party at its address set out above or in the relevant Contract or to such other address which it has previously notified to the sending party and shall be deemed to have been given when actually received or, if sent by recorded delivery mail and returned marked "gone away" or to the like effect, on return of such recorded delivery mail.
14.5 The Contract is personal to the Client and the Client may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without the prior written consent of Active.
14.6 Neither party shall be liable to the other if its performance of its obligations under the Contract (other than an obligation to pay money) is prevented or hindered due to any circumstances outside its control.
14.7 Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.
14.8 The Contract contains all the terms agreed by the parties relating to the subject matter of the Contract and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation (unless made fraudulently), undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in the Contract. The Client irrevocably and unconditionally waives any right it may have to claim damages for and/or rescind the Contract as a result of any misrepresentation whether or not contained in the Contract unless such misrepresentation was made fraudulently.
14.9 No variation or amendment to the Contract shall be effective unless in writing signed by authorised representatives of the parties.
14.10 In the event of any conflict between the provisions of the Contract and of any other agreement or document referred to in the Contract, the provisions of the Contract shall prevail.
14.11 Nothing in the Contract shall be construed so as to give any right to any party who is not a party to it whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.12 The construction, validity and performance of the Contract is governed by the law of England and the parties accept the exclusive jurisdiction of the English Courts.
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