Terms and Conditions of Purchase

Bribery Legislation: the Bribery Act 2010 and any and all similar anti-bribery and/or anti-corruption legislation of any jurisdiction applicable from time to time to the Supplier, the Customer, these Conditions and the Contract and/or its subject matter (including, the U.S. Foreign Corrupt Practices Act of 1977).

Business Day: a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales.

Change of Control: that a person who had Controlled any person ceases to do so or another person acquires Control of such person, unless such Change of Control happens for the purpose of a solvent voluntary reconstruction or amalgamation.

Code: the Customer’s Code of Business Conduct as updated from time to time and which is available at www.hsgroup.com

Commencement Date: has the meaning set out in clause 2.2.

Compliance Regulations: together, the Bribery Legislation, the Code, the Customer’s Modern Slavery Policy and the Modern Slavery Policy Laws and all applicable laws, regulations and guidance of the United Kingdom and any other applicable local law or regulation, including import and export laws, restrictions, sanctions, national security controls, anti-slavery and human trafficking legislation and anti-corruption legislation.

Conditions: these terms and conditions as amended from time to time in accordance with clause 19.8.

Conflict Minerals: tin, tungsten, tantalum and gold and their ores sourced in conditions of armed conflict and/or human rights abuses, whether in the eastern Democratic Republic of Congo or an adjoining country or otherwise.

Contract: the contract between the Customer and the Supplier for the purchase of Goods and/or Services pursuant to an Order and formed in accordance with clause 2.2.

Control: that a person possesses, directly or indirectly, the power to direct or cause the direction of the affairs and policies of the other person (whether through ownership or share capital, possession of voting power, ability to appoint directors, contract or otherwise) and “Controls” and “Controlled” shall be interpreted accordingly.

Customer: Prolectric Services Limited (Company number: 04607208), Westhaven House, Arleston Way, Shirley, Solihull, West Midlands B90 4LH

Customer Materials: has the meaning set out in clause 5.3(j).

Data Protection Laws: means any applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Services, including:

• the GDPR;
• the Data Protection Act 2018;
• any laws which implement any such laws;
• any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and
• all guidance, guidelines, codes of practice and codes of conduct issued by any relevant Data Protection Supervisory Authority relating to such Data Protection Laws (in each case whether or not legally binding).

Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Employment Liabilities: any costs, claims, demands, fines, or expenses (including reasonable legal and other professional expenses) and all losses, damages, compensation and other liabilities including those incurred by or attributed to any New Supplier or sub-contractor of the Customer (which shall include any incurred as a result of an indemnity or warranty given, or to be given, by the Customer to a New Supplier or sub-contractor).

GDPR: means the General Data Protection Regulation, Regulation (EU) 2016/679.

Goods: the goods (or any part of them) set out in the Order which the Supplier is to provide to the Customer in accordance with these Conditions.

Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Modern Slavery Laws: the Modern Slavery Act 2015 and all other applicable laws which relate to slavery, indentured workforces and human trafficking.

Modern Slavery Policy: an internal policy to ensure compliance with the Modern Slavery Laws, which shall include provision of appropriate and regular training for any Supplier Related Party.

MSA Offence: an offence under the Modern Slavery Laws.

New Supplier: any person that provides services in replacement of any of the Services whether those services are the same as or similar to any or all of the Services.

Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or such other form as the Customer may determine from time to time.

Services: the services, including without limitation any Deliverables, to be provided by the Supplier to the Customer under the Contract as set out in the Service Specification.

Service Specification: the description or specification for Services agreed in writing by the Customer and the Supplier.

Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.

Supplier Related Party: the Supplier’s officers, employees and agents and all other persons employed or engaged by the Supplier, including its own suppliers, in connection with the Contract or any part of it and/or any associate of such person.

Transfer Regulations: the Transfer of Undertakings (Protection of Employment) Regulations 2006.

• a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
• a reference to a party includes its personal representatives, successors or permitted assigns;
• references to any legislation or legislative provision will include any subordinate legislation made under it and will be construed as references to such legislation, legislative provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
• any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
• a reference to writing or written includes e-mail but not other methods of electronic messaging; and
• unless the context otherwise requires, a reference to one gender shall include a reference to the other genders and words expressed in the singular shall include the plural and vice versa.

• the Supplier issuing written acceptance of the Order; or
• any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

• correspond with their description and any applicable Goods Specification and all samples provided or given by the Supplier to the Customer, and all written descriptions published by the Supplier (whether specifically for the Customer or generally) in respect of the Goods;
• be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgment;
• where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery;
• not infringe the privacy rights or Intellectual Property Rights of any third party; and
• comply with all applicable laws, rules, statutes, regulations, bye-laws and codes of practice, including in relation to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

• the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
• each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
• if the Supplier requires the Customer to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the risk and cost of the Supplier.

• on the date specified in the Order or, if no such date is specified, then within three (3) days of the date of the Order;
• to the Customer’s premises at the address set out in the Order or as instructed by the Customer before delivery (Delivery Location);
• during the Customer’s normal hours of business on a Business Day, or as instructed by the Customer.

Time of delivery of the Goods is of the essence of the Contract.

• delivers less than ninety per cent (90%) of the quantity of Goods ordered, the Customer may reject the Goods; or
• delivers more than one hundred per cent (100%) of the quantity of Goods ordered, the Customer may at its sole discretion reject the Goods or the excess Goods and 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 Customer accepts the delivery, a pro rata adjustment shall be made to the price for such Goods.

• co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
• perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
• use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
• ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
• provide all equipment, tools and vehicles and such other items as are required to provide the Services;
• use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
• obtain and at all times maintain all necessary licences and consents, and comply with all (and not do or omit to do anything which may cause the Customer to breach any) applicable laws, statutes, regulations, bye-laws, licences and codes of practice;
• observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises and use best endeavours to cause minimum disruption to the Customer;
• immediately advise the Customer with as much notice as possible if it becomes aware of any circumstances that may cause delay, disruption or failure to perform the Services and the Supplier shall use all reasonable endeavours to mitigate against such problems;
• hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation; and
• not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services.

• comply fully with the Compliance Regulations;
• not breach or cause the Customer to breach or commit an offence under the Compliance Regulations
• maintain, monitor and enforce its own policies including a Modern Slavery Policy, that contains adequate procedures to prevent the Supplier and any Supplier Related Party from committing an offence under any of the Compliance Regulations;
• immediately notify the Customer if it discovers or suspects that it or any Supplier Related Party has or is likely to breach or commit an offence under any of the Compliance Regulations and take such remedial action as the Customer shall reasonably direct;
• maintain full and accurate records to enable the Customer to verify the Supplier’s compliance with this clause 6;
• sign an Anti-Corruption Certification substantially in the format set out in Schedule 1, as amended from time to time by the Customer, at least once in every 12 month period of the Contract;
• not use and will ensure that its supply chain does not use any Conflict Minerals in its manufacturing or contract manufacturing activities or in the provision of the Goods and Services; and
• promptly co-operate with the Customer and/or any regulator and/or prosecutor in any investigation relating to any breach, or alleged breach, of any Compliance Regulation by the Supplier or any of its Supplier Related Parties.

• be responsible for any and all customs, duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation, exportation and delivery of the Goods and Services and any associated technology; and
• not supply, and warrants that it has not supplied, Goods or Services and their associated technologies directly or indirectly to any person, entity or into any territory which is embargoed, prohibited, debarred or otherwise the subject of sanctions from the United Kingdom, the European Union, the United States of America or the territory in which the Supplier is located.

• to terminate the Contract with immediate effect by giving written notice to the Supplier;
• to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make without any liability of the Customer to the Supplier;
• to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
• where the Customer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
• to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to meet such dates.

• to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
• to terminate the Contract with immediate effect by giving written notice to the Supplier;
• to require the Supplier at its sole cost to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
• to require the Supplier at its sole cost to re-execute the Services in accordance with the Contract, or to provide a full refund of the price of the rejected Services;
• to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
• to refuse to make payment of the price of the Goods or Services;
• to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods and/or services from a third party; and
• to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1 and/or Services in accordance with clause 5.3.

• provide the Supplier with reasonable access at reasonable times to the Customer’s premises for the purpose of providing the Services in accordance with the Contract; and
• provide such information as the Supplier may reasonably request for the provision of the Services and the Customer considers reasonably necessary for the purpose of providing the Services in accordance with the Contract.

• shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the Commencement Date;
• shall be payable in the currency stated on the Order or, where no currency is stated, in pounds sterling; and
• shall be inclusive of all costs and expenses incurred by the Supplier, including the costs of packaging, labelling, loading, unloading, insurance, delivery, freight and carriage of the Goods, unless otherwise agreed in writing by the Customer. No extra charges shall be effective unless agreed in writing and signed by the Customer.

• if at any time the Supplier sells any Goods and/or Services to a comparable customer for less than the fees then in force for Goods and/or Services, the Supplier shall reduce the relevant fees to match the lower price for so long as the lower price is available and refund to the Customer the difference between the fees and the lower price in respect of the Customer’s purchases of the Goods and/or Services after the Supplier began charging the lower price. For these purposes, “comparable” means a customer that purchases goods and/or services in substantially similar volumes as the Customer on broadly similar terms and conditions; and
• the Customer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase that the Supplier customarily grants.
• The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract or otherwise.

• any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Deliverables and/or the Services;
• any claim made against the Customer by a third party for death, personal injury or loss or damage to property arising out of, or in connection with, defects in Goods and/or Deliverables, to the extent that the defects in the Goods and/or Deliverables;
• any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods or the Services, 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 or any Supplier Related Party; and
• any breach of clauses 6 and 14.

• the Supplier’s obligations and the Customer’s rights and remedies under this clause 14 are cumulative with, and additional to, any other provisions of this Contract; and
• this clause 14 shall prevail over any other provision of this Contract in the event of any conflict.

• comply with their respective obligations under the Data Protection Laws;
• use all reasonable efforts to assist the other to comply with such obligations as are respectively imposed on them by the Data Protection Laws; and
• ensure that all fair processing notices have been given (and/or, as applicable, consents obtained) and are sufficient in scope to enable the other party to Process the Common Data as required in order to obtain the benefit of its rights, and to fulfil its obligations, under the Contract in accordance with the Data Protection Laws.

• all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Supplier of its obligations under this clause 14; and
• all amounts paid or payable by the Customer to a third party which would not have been paid or payable if the Supplier’s breach of this clause 14 had not occurred.

• in respect of the supply of Services, by giving the Supplier one (1) months’ written notice; and
• in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress to the extent that the same cannot be redeployed or otherwise mitigated in respect of the Goods at the time of termination, but such compensation shall not include loss of anticipated profits (whether direct or indirect) or any consequential loss, special loss or indirect loss or damage whatsoever.

• the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of receipt of notice in writing to do so. For the avoidance of doubt a breach of clause ‎6 of these Conditions shall constitute a material breach for the purposes of this clause;
• the Supplier repeatedly or persistently breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
• the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or has having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
• the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
• a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
• the Supplier (being an individual) is the subject of a bankruptcy petition or order;
• a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days;
• an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
• the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
• a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
• any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.4((c) to clause 15.4((j)(inclusive);
• the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business;
• the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
• the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
• the Supplier undergoes a Change of Control.

• The Customer may at any time assign, transfer, mortgage, charge, subcontract, hold on trust for any person or deal in any other manner with all or any of its rights or obligations under the Contract.
• The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer.

• Any notice required to be given to a party under or in connection with the Contract shall be in writing and:
  • sent to the relevant party’s address by pre-paid first class post or mail delivery service providing proof of delivery;
  • delivered to or left at that party’s address; or
  • sent by e-mail to that party’s email address.

  The address for the service of notices will be the receiving party’s registered office (if a company) or (in any other case) its principal place of business and, in the case of email, such email address as confirmed by each party from time to time to be used for the receipt of notices under the Contract.

• Any notice given in accordance with clause (a) will be deemed to have been served if given:
  • by first class post or mail delivery service, in each case as set out in clause ‎19.2‎(a)‎(i), at 9.00 a.m. on the second Business Day after the date of posting;
  • as set out in clause 19.2 (ii), at the time the notice is delivered to or left at that party’s address; and
  • as set out in clause 19.2 (a) (iii), at the time of sending the e-mail;

  provided that if a notice is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.

• If a notice is given by e-mail the title to the e-mail will begin with the words “Service of Notice” and a copy of the notice will be sent to the receiving party’s address (in accordance with clause ‎19.2‎(a) by pre-paid first class post or mail delivery service providing proof of delivery within 24 hours after sending the e-mail. The requirements set out in this clause ‎19.2‎(c) are not conditions to valid service of the relevant notice by e-mail.

• Subject to cause 19.7((b), a person who is not a party to the Contract shall not have any rights to enforce its terms as though it were a party to it and the provisions of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded to the fullest extent permitted by law.
• The Customer and any member of its group may enforce the provisions of the Contract subject to and in accordance with clause 19.7((c).
• The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any person that is not a party to the Contract.