ACCEPTANCE

This order (the “Order”) constitutes the offer of Active Brand Concepts Limited (the “Buyer”) to the person or company whose has agreed to supply the Goods to the Buyer. The terms and conditions are as set forth herein along with the Suppliers Handbook which details any further conditions relevant to the Order (the “Contract”). The Supplier’s execution of the Order, or the execution or commencement of delivery of the Goods constitutes the Supplier’s acceptance of the Order subject to the terms of this Contract.

TERMS & CONDITIONS OF PURCHASE

1. GENERAL

(a) The Buyer is not liable for the Order unless its duly authorised representatives have placed it on behalf of the Buyer and the Supplier confirms its acceptance of the Order and this Contract in the manner set out under “Acceptance” above (the “Contract”).
(b) The terms and conditions of this Contract shall prevail over any terms or conditions (whether or not inconsistent with the Contract’s) contained or referred to in any correspondence or documentation submitted by the Supplier or elsewhere or implied by custom, practice or course of dealing.
(c) In this Contract (unless the context otherwise requires) construction of the terms and conditions shall ignore the headings (all of which are for reference only) and the words “including” and “include” and words of similar effect shall not be deemed to limit the general effect of the words they proceed.
(d) In this Contract “Incoterms” means the category of the international rules for the interpretation of trade terms of the International Chamber of Commerce 2010 as may be specified by the Order. Unless the Order otherwise requires, any term or expression which is defined in or given a particular meaning by the Incoterms shall have the same meaning in this Contract and in the case of any conflict between the Incoterms and terms and conditions of this Contract, the latter shall prevail.

2. THE GOODS

(a) 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.
(b) The Supplier shall grant the Buyer, its authorised representatives, agents or customers access to its premises (or the premises of any subcontractor) for the purpose of inspecting and/or testing 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 otherwise affect the Supplier’s obligations under the Contract.
(c) If following such inspection or testing the Buyer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at Clause 15, the Buyer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3. DELIVERY

(a) The Supplier shall deliver the Goods at the date(s), time(s) and delivery location(s) specified in the Order (or as otherwise notified by the Buyer to the Supplier) and time of delivery shall be of the essence of the Contract.
(b) Delivery of the Goods shall be completed on completion of unloading the Goods at the delivery location(s) specified in the Order.
(c) The Supplier shall notify the Buyer as soon as possible if, at any stage, it is likely that the Goods (or any part of them) will not be delivered in accordance with the Contract. Any such notification is without prejudice to any rights of the Buyer and does not relieve the Supplier of any liability.
(d) If the Supplier fails to deliver the Goods in accordance with clause 3(a), the Supplier is liable for any additional expense incurred by either party in relation to the handling, storing and delivery of the Goods and the Buyer shall be entitled (without prejudice to any other rights the Buyer may have) to reject any Goods delivered late and/or cancel the Contract in respect of the Goods (whether delivered or undelivered).
(e) In the event that the Buyer is not able to receive delivery or installation in accordance with clause 3(a), the Supplier shall be responsible for arranging suitable storage at suitable premises of the Goods, in accordance with any instructions given by the Buyer, advising the Buyer beforehand of the particulars of such proposed storage.
(f) If the Supplier:
I. delivers less than 95% of the quantity of the Goods ordered, the Buyer may reject the Goods; or
II. delivers more than 105% of the quantity of Goods ordered, the Buyer may at its discretion reject the Goods or the excess Goods an any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice of the Goods.
(g) The Supplier shall not deliver the Goods in instalments without the Buyer’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 the Buyer to the remedies set out in Clause 5.
(h) If there are insufficient goods for the Supplier to fully meet its obligations to all its customers (including the Buyer), the Supplier shall give the Buyer priority over all other of its customers.

4. DELIVERY NOTES

Each consignment of the Goods must be accompanied by a delivery note (“Delivery Note”) containing such particulars as may be required from time to time including the following:
a) Date of delivery of the consignment of the Goods.
b) A unique delivery note number.
c) Supplier’s name and address.
d) The name and address of the company to which the Goods are being delivered.
e) Description of such Goods.
f) Quantity of cartons and pallets.
g) Quantity of items per carton.
h) Supplier’s part number and full description of Goods.
i) Purchase Order number.

5. REMEDIES

(a) If the Goods are not delivered at the date(s), time(s) and delivery location(s) specified in the Order or do not comply with the undertakings set out in Clause 2(a), then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Buyer may exercise any one or more of the following remedies:
I. to terminate the Contract in accordance with clause 12;
II. to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
III. to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
IV. to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
V. to recover from the Supplier any costs incurred by the Buyer in obtaining substitute goods from a third party; and
VI. to claim damages for any other costs, loss or expenses incurred by the Buyer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
(b) If the Goods are not delivered on the date specified in the Order, the Buyer may, at its option, claim or deduct up to 100 % of the price of the Goods that remains undelivered for each week’s delay in delivery by way of liquidated damages.. If the Buyer exercises its rights under the clause 5(b), it shall not be entitled to any of the remedies set out in clause 5(a) in respect of the Goods’ late delivery (but such remedies shall be available in respect of the Good’s condition).
(c) The Buyer’s rights and remedies under this Contract are in addition to its rights and remedies implied by statute and common law.

6. PASSING OF RISK AND PROPERTY

(a) The Incoterms shall apply to the Contract. Where the position as to delivery, acceptance, risk or loss is not determined by the Incoterms, the following two clauses shall apply.
(b) Until delivered in accordance with the Supplier’s obligations and until accepted by the Buyer, the Goods shall remain at the risk of the Supplier. Subject to the Buyers right of rejection, the property in the Goods shall pass to the Buyer upon acceptance of the Goods.
(c) Upon receipt of the Goods by the Buyer the Delivery Note shall be signed as unchecked.

7. PRICE AND PAYMENT

(a) Unless expressly agreed in writing, the price of the Goods shall be the price set out in the Order and no extra charges shall be effective.
(b) The price for each of the Goods:
I. excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Supplier at the prevailing rate subject to the receipt of a valid VAT invoice; and

I II. includes the cost of packaging, insurance and carriage of the Goods.
(c) The Supplier may invoice the Buyer for 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, the Buyer Order number, the Supplier’s VAT registration number and any supporting documents that the Buyer may reasonably require.
(d) The Buyer shall pay correctly rendered invoices within 60 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
(e) The Buyer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Buyer against any liability of the Buyer to the Supplier.
(f) No payment made by the Buyer shall imply acceptance of any Goods supplied and shall not in any way restrict any claims or rights the Buyer may otherwise have against the Supplier.

8. INDEMNITY

(a) The Supplier keep the Buyer indemnified 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 reasonable professional costs and expenses) suffered or incurred by Buyer as a result of or in connection with:
I. any claim made against the Buyer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the 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;
II. any claim made against the Buyer 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 omission of the Supplier, its employees, agents or subcontractors; and
III. any claim made against the Buyer 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. INSURANCE

The Supplier shall:
(a) at all times insure and keep itself insured with a reputable insurance company against all insurable liabilities under the Contract and in respect of the Goods including against all the Supplier’s liabilities under clause 15;
(b) produce, at the Buyer’s request, both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance; and
(c) provide all facilities, assistance and advice requested by the Buyer or the Buyer’s insurers for the purpose of contesting or dealing with any action, claim or matter arising out or relating to the Supplier’s performance or non-performance of the Contract.

10. CONFIDENTIALITY

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

11. ASSIGNMENT

The Supplier may not assign or deal in any way with all or any part of the benefit of, or its rights or benefits under the Contract without the prior written consent of the Buyer. The Supplier may not subcontract the performance of the whole or any part of this Contract without the prior written consent of the Buyer.

12. TERMINATION AND VARIATION

(a) The Buyer shall have the right to vary its Order or any part thereof at any time prior to delivery of the Goods and upon any such variation the Buyer shall have no obligation or liability to the Supplier in respect of such variation.
(b) The Buyer may terminate the Contract in whole or part at any time by giving written notice to the Supplier if:
I. the Supplier breaches any obligation under the Contract;
II. the Supplier is acquired by or merges with any third party;
III. 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), 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; or
IV. circumstance exist which in the Buyer’s reasonable opinion materially adversely affect the Buyer’s performance of the Contract or the basis on which it was entered into.
(c) Upon service of a written notice, in accordance with clause 14, the Supplier shall discontinue all work on the Contract and the Buyer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination; such compensation shall not include loss of anticipated profits or any consequential loss.
(d) The Buyer shall have the right to vary its Order or any part thereof at any time prior to delivery of the Goods and upon any such variation the Buyer shall have no obligation or liability to the Supplier in respect of such variation.

13. WAIVER

The rights and remedies provided by the Contract may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by the Buyer shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach or default of a term of the Contract shall not constitute a waiver of any other breach or default and shall not affect any other term and condition of the Contract.

14. NOTICE

(a) Any notice or other document to be given under the Contract must be in writing, in English and sent to the last known address of the intended recipient.
(b) Such notice shall be delivered personally, sent by telex, facsimile or electronic mail, or sent by pre-paid first class post.
(c) The notice will be deemed to have been given:
I. on delivery, if delivered personally;
II. on the sender receiving notification of receipt, if sent by telex, facsimile or electronic mail; and
III. three days (not counting weekends or UK public holidays) after the date of posting, if sent by pre-paid first class post.

15. WARRANTY AND LIABILITY

(a) The Supplier warrants and represents that:
I. the Goods will conform to the specifications referred to in the Order as to quantity, quality and description and any other specifications, requirements or instructions made known to the Supplier;
II. the Goods will be of satisfactory quality, fit for purpose, of good materials and workmanship and free from defects;
III. the design, construction and quality of the Goods will comply with any relevant statutory rules or regulations in force at the time of delivery, including UK safety standards and British Standards;
(b) The Supplier will pay or reimburse the Buyer for any costs incurred by it in relation to independent periodic surveillance testing and for any costs relating to analysis of the Supplier’s products.
(c) The Supplier will pass on to the Buyer the benefit of any additional warranties secured from the Supplier’s suppliers.
(d) The Supplier will immediately, at its own cost, repair or replace any defective Goods notified by the Buyer to the Supplier within 12 months (or any other period expressly agreed) from the date of the Buyer’s receipt of the Goods.
(e) The Supplier will liable for all costs and payments as set out in the Buyer’s QA charge card as set out in the Supplier Manual;
(f) The Supplier will indemnify the Buyer, its agents, employees, subsidiaries, associated companies and assigns in respect of all loss, liability and cost directly or indirectly arising from:
I. any alleged or actual infringement of any intellectual property right owned by a third party resulting from the purchase, use or resale by the Buyer, its agents, employees, subsidiaries, associated companies, customers and assigns of the whole or any part of the Goods; and/or
II. any act or omission in the performance or non-performance of or in connection with the obligations undertaken by the Supplier pursuant to the Contract, whether due to the negligence of the Supplier, its agents, employees or sub-contractors or otherwise, including, without limitation, any loss, liability or cost arising from an injury to a person but excluding any loss, liability or cost arising directly from the Buyer’s negligence.
(g) The rights and remedies of the Buyer provided in this Contract are cumulative and are not exclusive of any rights or remedies provided at law or in equity.

16. INTELLECTUAL PROPERTY RIGHTS

If the Supplier or its employees or agents design the Goods pursuant to a commission from the Buyer (whether to fulfil the Order or otherwise), any intellectual property rights created in relation to such Goods shall vest in the Buyer and the Supplier shall do or procure the doing of all such further acts and execute or procure the execution (as a deed or otherwise) of all such documents as may from time to time be necessary to give full effect to this clause.

17. SEVERANCE

If any of the terms and conditions of this Contract are found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other terms and conditions, which shall remain in full force and effect. If any of the terms and conditions of the Contract are so found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.

18. THIRD PARTIES

A person who is not party to this Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This clause does not affect any right or remedy of any person, which exists or is available otherwise than pursuant to that Act.

19. GOVERNING LAW

This Contract and any matter arising from or in connection with it shall be governed by and construed in accordance with the law of England and Wales and in respect of such matters each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales.

20. CODE OF PRACTICE

(a) Subject to clause 20(b), the Supplier warrants and represents that it will, and it will procure that its suppliers, comply at all times with the code of conduct for vendors in relation to moral and ethical responsibility (the “Vendor Code”) enclosed with this Contract or otherwise communicated to the Supplier at any time in writing before or after the formation of this Contract.
(b) The Buyer may cancel the whole or part of the Contract at any time by written notice to the Supplier if the Supplier breaches or otherwise fails to comply in any way with the Vendor Code.
(c) The Supplier shall grant (or shall procure the granting) to the Buyer and its authorised representatives, agents or customer s access to its premises (or the premises of any subcontractor) for the purpose of assessing the Supplier’s (or the subcontractors compliance) with the Vendor Code or for compliance with any applicable laws.