1.1 The “purchaser” means Active Integrated Supply Limited.
1.2 The “supplier” means the addressee in the order.
1.3 The “customer” means the customer of the purchaser.
1.4 The “goods” means the goods and materials to be supplied by the supplier under the contract.
1.5 The “work” means the services to be provided by the supplier under the contract.
1.6 The “contract” means the contracts arising directly or indirectly from the order including all documents to which reference may properly be made to determine the rights and obligations of the parties thereunder.
1.7 The “order” means the purchasers purchase order.
1.8 The “conditions” means the conditions set out herein.
1.9 “confidential information” means confidential commercial, financial, marketing, technical, electronic or other information of whatever nature, including, know-how and trade secrets and all other information in any form or medium whether disclosed orally, in writing, in the form of machine readable code or embodied in hardware or any other physical medium, which is disclosed before or after the date of the contract or which is produced from such information (including any evaluations).
2.1 The conditions shall apply to the contract unless expressly agreed otherwise in writing by the purchaser.
2.2 The supplier shall acknowledge the order within 48 hours of receipt. The contract shall be formed upon the receipt by the purchaser of the acknowledgement or upon commencement of the work by the supplier following receipt of the order, either of which events shall be deemed to be an acceptance by the supplier of the conditions and an acknowledgement that any comment or conditions conflicting with or limiting or modifying the conditions set out in any communication from the purchaser (before or after the date of the order) shall be of no force or effect.
2.3 Should any of the documents forming the contract conflict, the supplier must ask the purchaser to resolve the conflict before proceeding with any portion of the work affected by the conflict. The purchaser shall not be responsible for any additional cost arising from the supplier’s failure to bring the conflict to the purchaser’s attention in sufficient time to resolve the matter.
3. Scope of Order
3.1 The goods and the work must be supplied and rendered strictly in accordance with the requirements of the contract.
3.2 The supplier is deemed to have included in the price all goods, materials, services and facilities required for the execution and completion of the contract.
3.3 The purchaser shall at all times have free use of all drawings, specifications and documents provided by the supplier under the contract. Approval of such drawings, specifications and documents by the purchaser shall not relieve the supplier of any responsibility for discrepancies, errors or omissions in drawings, specifications and documents and all particulars supplied by the supplier for the purpose of the contract.
4. Legal Construction
Unless otherwise agreed in writing the contract shall in all respects operate as an English contract and be governed by English law.
5. Statutory and Other Regulations
The supplier is to ensure that goods being supplied or services rendered comply with the requirements of all relevant acts and regulations. The cost of complying with all relevant regulations is deemed to be included in the contract price.
The supplier is required to indemnify the purchaser and the customer against any claim for infringement of any letters of patent, Registered Design, Trade Mark or copyright by the use or sale of any article or material supplied under this contract and against all costs and damages which the purchaser may incur in any action for such infringement or may become liable in any such action.
7. Programming & Expediting
The date(s) of delivery and/or completion will be those specified in the purchase order unless agreed otherwise between purchaser and supplier. The supplier shall provide un-priced copy orders and such programmes of manufacture, delivery and erection as the purchaser may reasonably require together with regular expediting status reports. The supplier shall grant to the purchaser its agent and client free access to the premises of the supplier, its suppliers or sub contractors for the purpose of expediting the contract. The supplier shall give notice to the purchaser immediately if any delays occur or are likely to occur. The purchaser may, by written notice, require the supplier to execute the works in such order or sequence as the purchaser may decide.
Delivery and/or completion time shall, subject to clause 18, be of the essence of the contract.
8.1 Any part of the goods found not to meet all contract requirements may be rejected by the purchaser and returned to the supplier for replacement, repair, rework or modification in order to meet all contract requirements. The supplier shall be responsible for all expenses and costs incurred by the purchaser and/or the customer as well as for all rectification costs.
8.2 Rejection shall vitiate delivery for all purposes from the delivery date for the goods set forth in the order, until such rejected part of the goods is re-delivered to the purchaser in compliance with the contract.
8.3 The risk of loss for any rejected goods shall remain with/revert to the supplier until all corrective work is performed (as the case may be) and the goods become again under the care, custody and control of the purchaser.
9. Drawings & Documentation
The drawings and documentation specified as required by the purchaser are an integral part of the order. The purchaser reserves the right to withhold payment of invoices if the drawings and documentation have not been submitted and approved as specified.
10. Inspection & Testing
Prior to dispatch the supplier is required to have carried out inspections and tests to ensure satisfactory operation and fitness for purpose. A certificate of conformity with the purchaser’s specification is to be issued by the supplier and dispatched with the goods.
11. Quality Assurance
The supplier is required to operate a Quality Assurance system in accordance with BS5750 or equivalent. The purchaser reserves the right to attend the premises of the supplier or their subcontractors to satisfy themselves that this requirement is being met.
12.1 The supplier will promptly make good by repair or replacement (at the purchasers option and free of charge) defects which under proper use appear in the goods or works within a period from the date of delivery of the goods or the completion of the work up to a date 12 calendar months from the putting into commercial use of the goods or the work.
12.2 The supplier’s obligations under clause 12.1 will continue in respect of any part of the goods or work repaired or replaced for a further period of 12 calendar months from the date of completion of such repair or replacement.
12.3 The supplier’s liability under clauses 12.1 and 12.2 does not relieve them of any responsibility for warranty or condition implied by law as to the quality or fitness for any particular purpose of the goods or work.
12.4 The supplier assures that any warranty may be assigned and transferred to the customer such that the customer can directly exercise the full rights of any warranty for such warranties normal lifetime.
All documentation and goods must carry the purchasers order number and job number.
14.1 Unless otherwise specified in the order, delivery carriage paid to the purchasers nominated address, is included in the contract price. Damage or loss in transit is the responsibility of the supplier, unless caused by hauliers of the purchasers undertaking.
14.2 Suitable packing for delivery is included within the contract price.
14.3 The passing of title shall be on delivery of the goods.
14.4 In the event the supplier fails to deliver an item of the goods in accordance with the dates specified in the order, the purchaser shall be entitled to liquidated damages of two (2) % of the total value of the goods per commenced week of delay up to a maximum of twenty (20) % of the contract price.
15. Terms of Payment
15.1 Unless otherwise agreed in writing, the terms of payment are 75 days from the completion of the contract in all respects.
15.2 The supplier shall submit invoices only upon completion of the contract, or at such intermediate points in the performance of the contract as specified in the order.
15.3 The contract will not be considered complete until all test certification, working instructions, drawings etc. as stipulated in the order, have been received by the purchaser.
16. Invoicing & Advice Notes
All invoices are to be submitted to the purchaser’s accounts department in duplicate.
One copy of the advice note is to accompany the goods and a signature of the purchaser’s representative or the customer obtained.
If at any time any question, dispute or difference arises between purchaser and supplier in relation to or in connection with the contract, either party may give the other notice in writing of the existence of such question, dispute or difference and the same shall be referred to the arbitration of a person to be mutually agreed upon.
18. Force Majeure
If either party shall be prevented or delayed in fulfilling their obligations under the contract by reason of circumstance beyond its reasonable control then it shall notify the other in writing within 7 days of occurrence thereof.
Provided that the said notification is given, and subject to all reasonable efforts being taken to minimise the effect of such circumstances, the party so delayed shall be relieved of such of its obligations under the contract as they are prevented or delayed for the duration of the circumstances concerned.
If the supplier is delayed on one or more occasions for more than 30 days in total, then the purchaser may cancel the contract in writing. Justifiable costs associated with such cancellation shall come within the contemplation of payment by the purchaser.
19. Default by Supplier
i) Should it appear to the purchaser:
a) that the supplier is not executing the contract in accordance with the purchase order or
b) that the supplier is not proceeding with sufficient expedition to ensure completion of the contract by the time stipulated in the purchase order or
c) that the supplier has refused or failed to carry out a reasonable instruction from the purchaser for the execution of the contract
d) that the supplier has committed any other breach of its obligations under the contract.
Then the purchaser may, at its discretion, give the supplier seven days written notice to make good his defaults.
ii) Should the supplier fail to comply with a notice under sub-clause i) hereof, the purchaser may then at the expense of the supplier and without prejudice to any other rights:
a) determine the contract.
b) take the contract wholly or in part, out of the supplier hands.
c) make such modifications, substitutions or
additions to the contract as he considers necessary to ensure satisfactory execution thereof.
iii) Wherever the purchaser has acted under sub-clause ii) hereof, the purchaser shall be entitled to take possession of, and remove from the supplier premises as and when it shall be convenient for the purchaser, all designs, drawings, specifications and plant necessary to complete the contract and the supplier shall afford the purchaser all rights of access and all reasonable facilities to enable the purchaser to remove such items as aforesaid at the suppliers cost.
iv) The supplier shall indemnify the purchaser against liabilities imposed on the purchaser by his customer as a result of default by the supplier under this clause. The purchaser shall be entitled to retain and apply any balance which may be otherwise due to the supplier or any part thereof as may be necessary for the execution of the portion of work taken out of the supplier’s hands. If the cost of completing the work exceeds this amount the supplier shall pay the excess.
20 General Liability, Indemnification and Insurance.
20.1.1 The supplier shall indemnify, defend and hold harmless the purchaser and the customer against all claims, proceedings, demands, damages or losses of whatsoever kind or nature, whether in regard to personal injury, damages to property, or pecuniary or financial losses arising out of any act, error or omission of the supplier related to or in connection with the contract, including, but not limited to, expenditures for and costs of investigations, expert fees, court costs, counsel fees, settlements, judgments, or otherwise. However, the supplier shall not be required to so indemnify the purchaser and the customer to the extent of their negligence.
20.1.2 The omission of the purchaser or the customer to call attention to improper or inadequate methods or to require taking any particular precautions shall not excuse the supplier under this clause 20.1
20.2.1 The Supplier shall carry Public and Product Liability Insurance to a value of £5 million throughout the performance of the Purchase Contract, as a minimum and at its expense and without prejudice to its liability to indemnify the purchaser and the customer, all necessary insurance to cover its liability towards the purchaser, the customer or any other third parties.
20.2.2 Upon contract execution and upon request by the purchaser at any time during the life of the contract, the supplier shall furnish the purchaser with current certificates of insurance evidencing that the insurance coverage are in full force and effect.
20.2.3 Neither the supplier’s obligation to indemnify, nor any general legal liability shall be deemed to be limited by any insurance requirements or limits of insurance contained in the contract, nor by the amount of insurance coverage provided by the supplier.
The supplier shall not subcontract any significant part of the contract without agreement in writing from the purchaser.
22. Site Works
Where under the terms of the contract the supplier is responsible for work on site, then this shall be conducted in accordance with the purchasers own safety rules and conditions except if there are additional conditions imposed by the customer. If the customer rules and conditions apply, then the supplier will comply with these in all respects and be responsible for the payment of any costs associated therewith.
23.1 All confidential information received by the supplier from the purchaser and all discussions with the purchaser and the supplier are the intellectual property of the purchaser and must not be distributed and/or shown to outsiders, such as any persons, firms, corporations, associations, groups or other entities outside of the suppliers or purchasers organisation.
23.2 Suppliers are given access to confidential information to enable them to supply services and products to Active Integrated Supply Limited and/or perform their duties as suppliers or potential suppliers. Suppliers understand that their engagement by receipt of confidential information creates a relationship of confidence and trust between them and the purchaser.
At all times, both during and after expiry and/or any termination of the contract, the supplier will keep confidence and trust and will not use or disclose any confidential information to anyone outside their organisation.