OUR TERMS

Conditions of Sale

ACTIVE ELECTRONICS PLC STANDARD CONDITIONS OF SALE

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 13.4.

Contract: the contract between ACTIVE ELECTRONICS PLC and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from ACTIVE ELECTRONICS PLC.

Delivery Location: has the meaning given in clause 4.2.

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

Goods: the goods (or any part of them) set out in the Order.

Order: the Customer's order for the Goods, as set out in the Customer's purchase order form.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed by the Customer and ACTIVE ELECTRONICS PLC.

Supplier: ACTIVE ELECTRONICS PLC (registered in England and Wales with company number 01531348).

Warranty Period: has the meaning given in clause 5.1.

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 Customer 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 the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3 The Order shall only be deemed to be accepted when ACTIVE ELECTRONICS PLC issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5 Any samples, drawings, descriptive matter or advertising produced by ACTIVE ELECTRONICS PLC and any descriptions or illustrations contained in ACTIVE ELECTRONICS PLC’s website or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6 A quotation for the Goods given by ACTIVE ELECTRONICS PLC shall not constitute an offer. A quotation shall only be valid for a period of 30 calendar days from its date of issue, unless otherwise specified, and subject to clause 7.2.

3. GOODS

3.1 The Goods are described in the Specification.

3.2 The Customer shall indemnify ACTIVE ELECTRONICS PLC against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by ACTIVE ELECTRONICS PLC in connection with 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 ACTIVE ELECTRONICS PLC's use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 ACTIVE ELECTRONICS PLC reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and ACTIVE ELECTRONICS PLC shall notify the Customer in any such event.

4. DELIVERY

4.1 ACTIVE ELECTRONICS PLC shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

4.2 ACTIVE ELECTRONICS PLC shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after ACTIVE ELECTRONICS PLC notifies the Customer that the Goods are ready.

4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location, unless agreed otherwise by the INCOTERMS set out in the order confirmation.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. ACTIVE ELECTRONICS PLC shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure toprovide ACTIVE ELECTRONICS PLC with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If ACTIVE ELECTRONICS PLC fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. ACTIVE ELECTRONICS PLC shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide ACTIVE ELECTRONICS PLC with adequate deliveryinstructions or any other instructions that are relevant to the supply of the Goods.

4.6 ACTIVE ELECTRONICS PLC may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY

5.1 Unless otherwise specified, ACTIVE ELECTRONICS PLC warrants that on delivery, and for a period of 12 months (or such other period as specified in the quotation or Order) from the date of delivery (Warranty Period), the Goods shall:

(a) conform with the Specification; and

(b) be free from material defects in design, material and workmanship.

5.2 Subject to clause 5.3, if:

(a) the Customer gives notice in writing to ACTIVE ELECTRONICS PLC during the Warranty Period within seven calendar days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b) ACTIVE ELECTRONICS PLC is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by ACTIVE ELECTRONICS PLC) returns such Goods to ACTIVE ELECTRONICS PLC place of business at the Customer’s cost,

ACTIVE ELECTRONICS PLC shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 ACTIVE ELECTRONICS PLC shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow ACTIVE ELECTRONICS PLC's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of ACTIVE ELECTRONICS PLC following any drawing, design or specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of ACTIVE ELECTRONICS PLC;

(e) the defect arises as a result of fair wear and tear, misuse, accident, wilful damage, negligence, or abnormal storage or working conditions; or

(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 This warranty does not apply to:

(a) Any software

(b) Solvents, glues and chemicals

(d) Any Goods or parts thereof supplied but not manufactured by ACTIVE ELECTRONICS PLC, but ACTIVE ELECTRONICS PLC will, so far as possible, pass to the Customer the benefit of any guarantee given to the ACTIVE ELECTRONICS PLC by the manufacture thereof,

5.5 Goods sold are not designed for use in Nuclear or life support equipment, devices or systems where malfunction of such Goods can reasonably be expected to result in a personal injury. The Customer’s customers using or selling such Goods for use in nuclear or life support equipment devices or systems do so at their own risk and agree to fully indemnify the Customer and the manufacturer of such Goods for any damages and costs of whatever nature for which the Customer and/or the manufacturer are liable resulting from such use or sale.

5.6 Unless otherwise confirmed, nothing in this document is to be taken as a representation of the source or origin of manufacture or production of the Goods or any part thereof.

5.7 Except as provided in this clause 5, ACTIVE ELECTRONICS PLC shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.9 These Conditions shall apply to any repaired or replacement Goods supplied by ACTIVE ELECTRONICS PLC.

6. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until ACTIVE ELECTRONICS PLC receives payment in full (in cash or cleared funds) for the Goods and any other goods that ACTIVE ELECTRONICS PLC has supplied to the Customer in respect of which payment has become due.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that

they remain readily identifiable as ACTIVE ELECTRONICS PLC's property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify ACTIVE ELECTRONICS PLC immediately if it becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(d); and

(e) give ACTIVE ELECTRONICS PLC such information as ACTIVE ELECTRONICS PLC may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

6.4 Subject to Clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before ACTIVE ELECTRONICS PLC receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as ACTIVE ELECTRONICS PLC agent; and

(b) title to the Goods shall pass from ACTIVE ELECTRONICS PLC to the Customer immediately before the time at which resale by the Customer occurs.

6.5 At any time before title to the Goods passes to the Customer, ACTIVE ELECTRONICS PLC may:

(a) by notice in writing, terminate the Customer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and

(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6.6 At any time before title to the Goods passes to the Customer, ACTIVE ELECTRONICS PLC may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. PRICE AND PAYMENT

7.1 The price of the Goods shall be the price set out in the Order, subject to 7.2.

7.2 ACTIVE ELECTRONICS PLC may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond ACTIVE ELECTRONICS PLC’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) to correct any errors or omissions;

(c) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(d) any delay caused by any instructions of the Customer or failure of the Customer to give ACTIVE ELECTRONICS PLC adequate or accurate information or instructions.

7.3 The price of the Goods:

(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to ACTIVE ELECTRONICS PLC at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

7.4 ACTIVE ELECTRONICS PLC may invoice the Customer for the Goods on or at any time after the completion of delivery.

7.5 The Customer shall pay each invoice submitted by ACTIVE ELECTRONICS PLC:

(a) within 30 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated in writing by ACTIVE ELECTRONICS PLC, and

7.6 If the Customer fails to make a payment due to ACTIVE ELECTRONICS PLC under the Contract by the due date, then, without limiting ACTIVE ELECTRONICS PLC’s remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7.8 A Customer wishing to open a credit account must furnish such information as may be requested by the Seller and the Seller may make a search with a credit reference agency. The Seller reserves the right in its absolute discretion to grant, refuse or discontinue any credit facilities or reduce or suspend any credit limit at any time.

8. RETURNED GOODS

8.1 Save under 5.2:

(a) No Goods may be returned to the Seller without the previous consent in writing of the Seller and a RMA .

(b) If returns are accepted, a charge will be levied on Goods returned, to the value of £50.00 or 10% of the value of the Goods invoice value net of all taxes and discount, whichever is the greater.

(d) Returned Goods must be in the same condition as when sold

(e) All costs of returning any Goods shall be borne by the Customer

(f) All returned Goods must be received by the Seller at to the Sellers warehouse within thirty days of the original delivery date

(g) All returned Goods must be accompanied by the original Sellers packing note together with the full reason for returning the Goods, and returned in the original packaging.

8.2 This condition shall not affect the statutory rights of the Customer as defined by English law, neither shall it affect any manufacturers guarantee passed on by the seller to the customer.

9. LIMITATION OF LIABILITY

9.1 ACTIVE ELECTRONICS PLC has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £10,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover ACTIVE ELECTRONICS PLC has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.][ACTIVE ELECTRONICS PLC has been unable to obtain insurance in respect of certain types of loss at a commercially viable price.]

9.2 The restrictions on liability in this clause 9.1 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.3 Nothing in in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

(d) defective products under the Consumer Protection Act 1987.

9.4 Subject to clause 9.3 ACTIVE ELECTRONICS PLC's total liability to the Customer shall not exceed £10,000,000

9.5 Subject to clause 9.3, the following types of loss are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

9.6 This clause 9 shall survive termination of the Contract.

10. EXPORT

The Customer is responsible at its own expense for obtaining any licence and complying with any export regulations in force within the United Kingdom and in the country for which the Goods are destined. Certain Goods imported from the United States of America by the Seller are subject to specific restrictions. With respect to goods manufactured in or originating from the United States, the Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities and shall not import, export or transfer for the purpose of re-export, any product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such U.S. or foreign law or regulation. The Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Goods. The Seller reserves the right not to supply certain customers or countries and to require from the Customer full details of the end use and final destination of the Goods.

11. TERMINATION

11.1 Without limiting its other rights or remedies, ACTIVE ELECTRONICS PLC may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 of that party being notified in writing to do so;

(b) the Customer 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;

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer’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.

11.2 Without limiting its other rights or remedies, ACTIVE ELECTRONICS PLC may suspend provision of the Goods under the Contract or any other contract between the Customer and ACTIVE ELECTRONICS PLC if the Customer becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(d), or ACTIVE ELECTRONICS PLC reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

11.3 Without limiting its other rights or remedies, ACTIVE ELECTRONICS PLC may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

11.4 On termination of the Contract for any reason the Customer shall immediately pay to ACTIVE ELECTRONICS PLC all of ACTIVE ELECTRONICS PLC’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, ACTIVE ELECTRONICS PLC shall submit an invoice, which shall be payable by the Customer immediately on receipt.

11.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11.7 The Customer may terminate the Contract providing:

(a) the Goods have not already been ordered or purchased by the Seller to meet the Customer’s requirements.

12. 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 a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two months, the party not affected may terminate the Contract by giving 10 days’ written notice to the affected party.

13. GENERAL

13.1 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 all or any of its rights or obligations under the Contract.

(b) The Customer may not 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 without the prior written consent of ACTIVE ELECTRONICS PLC.

13.2 Confidentiality.

(a) 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 13.2(b).

(b) Each party may disclose the other party’s confidential information:

(i) 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 13.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) 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.

13.3 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.

13.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.5 Waiver.

(a) 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.

13.6 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 13.6 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.

13.7 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or 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) For ACTIVE ELECTRONICS PLC:

(B) For the Customer, the email address entered on to any purchase order.

(b) Any notice shall be deemed to have been received

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by [pre-paid first-class post or other] next working day delivery service, at 9:00 am on the two Business Day after posting; and

(iii) 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. In this clause 13.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(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.

13.8 Third party rights.
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.

13.9 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.

13.10 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.

QSD102 Issue 2