GENERAL CONDITIONS OF SUPPLY

1. Definitions and Interpretation

1.1 In this Agreement the following words and expressions have the following meanings:

(a)“Affiliate” means with respect to a company or person, any other company or person that directly or indirectly, controls, is controlled by or is under common control with such company or person; “control”, “controlled by” and “under common control with”, shall mean: (i) the possession, directly or indirectly, of the power to direct the management or policies of a company or person, whether through the ownership of voting securities, by contract or otherwise; or (ii) the ownership, directly or indirectly, of at least fifty percent of the outstanding voting securities or other ownership interest of a company or person;

(b) “M&E PRO” means M&E Pro Limited (company number 11788710) of 15-17 Church Street, Stourbridge, West Midlands DY8 1LU

(c) “Confidential Information” means all information which ought reasonably be considered to be of a confidential or proprietary nature (whether marked as confidential or proprietary or not) which is obtained directly or indirectly by Supplier or its Representatives, from M&E PRO or its Representatives, at any time before, on, or after the Effective Date, without regard to the form or manner in which such information is disclosed or obtained (including information disclosed orally or in documentary or electronic form or by way of model, or obtained by observation) including:

I. ‘customer information’ which includes the name of customers of M&E PRO, their representatives, all customer contact information, contracts and their contents and parties, customer services, data provided by customers and the type, quantity and specifications of products and services provided by M&E PRO to the customers;

II. ‘intellectual property’ which includes information relating to M&E PRO’s proprietary rights prior to any public disclosure of such information including but not limited to the nature of the proprietary rights, technical and engineering data, technical concepts, research and development of products and services and information regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets);

III. ‘supplier information’ which includes the name. of suppliers of M&E PRO, their representatives, all supplier contact information, contracts and their contents and parties, agreements between other suppliers and M&E PRO including any commissions or rebates paid by the suppliers to M&E PRO;

IV. ‘affiliated company information’ which includes the name of companies associated with M&E PRO or their directors and shareholders including any management information, contact details, contracts and their contents and parties;

V. ‘marketing and development information’ which includes marketing and development plans of M&E PRO, price and cost data, price and fee amounts, pricing and billing policies, quotation templates and procedures, marketing technique and methods of obtaining business, forecasts and forecast assumptions and future plans and strategies for growth;

VI. ‘service information’ which includes but is not limited to all data and information relating to the services provided by M&E PRO including but not limited to plans, schedules, manpower, inspection and training information.

VII. ‘accounting information’ which includes, without limitation, all M&E PRO’s financial statements, annual reports, balance sheets, company asset information, company liability information, revenue and expense reporting, profit and loss reporting, cash flow reporting, accounts receivable, accounts payable, inventory reporting, purchasing information and payroll information.

VIII. ‘business operations’ which includes M&E PRO’s internal personnel and financial information, vendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost information, internal services and operational manuals, external business contacts including those stored on social media accounts or other similar platforms or databases operated by M&E PRO and the manner and methods of conducting M&E PRO’s business; and

IX. ‘other confidential information’ which includes M&E PRO’s products, computer software, data, algorithms, designs, business plans, business opportunities, investors, finances, pricing, research, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategy, know-how, personnel, third-party confidential information disclosed to Supplier by M&E PRO, any information, findings, data or analysis derived from Confidential Information, any other information which is identified as being confidential or proprietary in nature, the discussions concerning the proposed purpose between Supplier and M&E PRO, and in addition shall include: (i) the fact that the discussions between the Parties are taking place; (ii) any information in respect of which M&E PRO owes an obligation of confidence to a third party; and (iii) the existence and terms of this Agreement;

(d) “Good Industry Practice” means in relation to any undertaking and any circumstances, the exercise of that degree of care, diligence, foresight, innovation, integrity, judgment, productivity, professionalism, prudence and skill which would reasonably and/or ordinarily be expected from a skilled and experienced person or a recognised market-leading company engaged in the same type of activity under the same or similar circumstances;

(e) “Goods” means the provision of materials, plant, goods, equipment, consumables and other items (including any instalment of them or any part of them) as supplied by the Supplier under or in connection with the Works

(f) “Permitted Purpose” means internal evaluation of Confidential Information by the Supplier in order to price, design or deliver the Works; and

(g) “Representatives” means in relation to each Party: (i) its officers and employees; (ii) its professional advisers or consultants who are engaged to advise that Party in connection with the Permitted Purpose; (iii) its contractors and sub-contractors engaged by that Party in connection with the Permitted Purpose; and (iv) any other person to whom the other Party agrees in writing that Confidential Information may be disclosed in connection with the Permitted Purpose.

(h) “Supplier” means the supplier of the Works.

(i) “Works” means the scope of works undertaken or to be undertaken by the Supplier on behalf of M&E PRO. The scope of the Works can be identified from the initial enquiry by M&E PRO for which the Supplier has/will provide a quotation to be accepted by M&E PRO.

1.2 In this Agreement:

(a)    references to a Party include that Party’s Affiliates and its permitted assignees (if any) and/or the successors in title and;

(b)    references to a “person” shall include any natural person, individual, company, unincorporated association, firm, partnership, trust, government, state or agency of a state, and any undertaking (in each case, whether or not having separate legal personality and irrespective of the jurisdiction in or under the laws of which it was incorporated or exists) and any reference to any Party who is an individual is also deemed to include their respective legal personal representative(s);

(c)    any phrase prefaced 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 introduced by those terms;

(d)    the words “other” and “otherwise” are not to be construed as being limited by any words preceding them; and

(e)    headings are used for convenience only and do not affect its interpretation.

2. Works

(a) M&E PRO will engage the Supplier to undertake Works for which the Supplier has held itself out to be competent and have the necessary skills, experience and qualifications to successfully and safely deliver.

(b) M&E PRO will request a quotation from the Supplier for any Works required. The Supplier will subsequently return a quotation and if satisfied with the cost, M&E PRO will subsequently issue a purchase order and pay for the Works in line with the terms of the Agreement

(c) The Supplier warrants that they will exercise in the performance of the Works all the reasonable skill, care and diligence to be expected of a duly qualified and competent contractor experienced in undertaking Works of a similar size, scope, complexity, nature and value as those requested by M&E PRO

(d) M&E PRO will be entitled to rely upon and will continue to be entitled to rely upon the Supplier’s aforementioned skill, care and diligence in respect of all matters covered by Agreement

(e) The Supplier further warrants that they shall use all reasonable skill, care and diligence to see that the elements of the Works for which the Supplier is responsible complies with all statutory regulations, design requirements and any other consents, licences, permissions and approvals

(f) The Supplier warrants that they have the necessary skills, knowledge and experience to perform their obligations in compliance with their statutory duties under the CDM Regulations.

(g) The Supplier warrants that they will complete the Works to the satisfaction of the Client and will be responsible for the cost and completion of any remedial works including remedying defects, shrinkages, faults or damages prior to sign off of the works by the Client. M&E PRO reserves the right to withhold, set off or deduct any

(h) Where the Supplier has advised M&E PRO in writing that they shall be in attendance on site to complete the Works on any given day, in the event of non-attendance the Supplier will be liable to M&E PRO for the greater of:

(i) all costs incurred by M&E PRO under or in connection with the non-attendance

(ii) £1,000

M&E PRO reserves the right to set off or deduct this from any payments or invoices due to the Supplier

(i) The Supplier must not commence Works until in receipt of a purchase order from M&E PRO. Any Works undertaken by the Supplier prior to a purchase order being received will be at the Supplier’s risk. At its own discretion, M&E PRO will pay the Supplier a sum, which in the opinion of M&E PRO is reasonable, for all Works undertaken prior to receipt of a purchase order by the Supplier should a subsequent agreement between the Parties for these Works not be reached.

(j) M&E PRO reserves the right to withhold, suspend, cancel, set off or otherwise delay payment in respect of the Works until all required documentation and testing certification is provided by the Supplier to enable sign off of the works by M&E PRO. In the event the Supplier fails to undertake the required testing or certification in respect of their installation, any associated costs and delays will be the responsibility of the Supplier

(k) Title in the Goods shall pass to M&E PRO upon delivery, unless payment for the Goods (less any retention money) is made prior to delivery, in which case it shall pass to M&E PRO once payment has been made and the Goods shall be considered to have been appropriated to this Agreement and shall be marked “Property of the Customer”

(l) The Supplier shall at all times observe all health and safety rules and regulations and any other security requirements that apply at the Site or are communicated to them by M&E PRO or otherwise within M&E PRO’ Supplier Framework Agreement

(m) The Supplier shall ensure that where the Works integrate with the activities of any other suppliers or sub-contractors, full co-operation is maintained as far as reasonably practical. In the event that M&E PRO should incur any additional expense as a result of failure by the Supplier to fully integrate the Works with the activities of any other suppliers or sub-contractors, the Supplier shall be liable for any additional costs they may thereby incur.

(n) In providing a quotation for the Works, the Supplier will be deemed to have visited site, measured the route and quantities required for the Works and provided an accurate quotation for the Works required in accordance with the approved design. M&E PRO shall not be liable for any additional costs where the Supplier, using all the reasonable skill, care and diligence to be expected of a duly qualified and competent contractor experienced in undertaking Works of a similar size, scope, complexity, nature and value as those requested by M&E PRO, knew or ought reasonably to have known about the additional requirements or costs ahead of the quotation being provided.

(o) If, in the opinion of M&E PRO, the Supplier or their Works have caused or contributed to causing M&E PRO to suffer losses as a consequence of council fines, penalty notices or remedial costs then the Supplier shall pay to M&E PRO on demand all costs deemed payable by the council or their representatives

3. Insurances

a) The Supplier warrants that they have and will maintain Employer’s Liability insurance covering their liabilities under this Contract with a limit of indemnity of not less than £5 million. The Supplier further undertakes to maintain such insurance at all times until 6 years after the completion of the Works, provided such insurance is available at commercially reasonable terms, rates and conditions having regard (amongst other things) to premiums required and the policy terms obtainable. Payment of any increased or additional premiums required by insurers by reason of the Supplier’s own claims record or for other acts, omissions, matters or things peculiar to the Supplier will be deemed to be within their obligation and shall be disregarded in determining whether such insurance is available at commercially reasonable terms, rates and conditions

b) The Supplier warrants that they have and will maintain Product and Public Liability insurance covering their liabilities under this Contract with a limit of indemnity of not less than £5 million. The Supplier further undertakes to maintain such insurance at all times until 6 years after the completion of the Works, provided such insurance is available at commercially reasonable terms, rates and conditions having regard (amongst other things) to premiums required and the policy terms obtainable. Payment of any increased or additional premiums required by insurers by reason of the Supplier’s own claims record or for other acts, omissions, matters or things peculiar to the Supplier will be deemed to be within their obligation and shall be disregarded in determining whether such insurance is available at commercially reasonable terms, rates and conditions

4. Capacity/Independent Contractor

a) In providing the Work for M&E PRO, it is expressly agreed that the Supplier and its agents, subcontractors or representatives are acting as an independent contractor and not as an employee. Both Parties acknowledge that this Agreement does not create a partnership or joint venture between them and is exclusively a contract for service.

5. Payment

(a) The Supplier shall be entitled to invoice M&E PRO as per the payment stages outlined in their quotation. Where no such payment stages are outlined, the Supplier shall be entitled to invoice M&E PRO, upon completion of the Works to the satisfaction of M&E PRO

(b) M&E PRO shall be entitled to withhold any payments, without liability whatsoever, where the Supplier fails to produce to M&E PRO the required testing, commissioning or adoption paperwork as required for adoption by the DNO/IDNO/GT/IGT/Water Network or where M&E PRO has made a reasonable request for additional information which the Supplier has failed to provide.

(c) M&E PRO shall be further entitled to set off against any invoices produced by the Supplier, any sums owed to M&E PRO by the Supplier, whether under this Agreement, common law, tort or any other contract or arrangement between the parties.

(d) The Supplier shall defend, hold harmless and indemnify M&E PRO (and its directors, officers, employees, agents, subsidiaries, affiliates and each of their successors) from and against any loss, claim, damages, costs and liabilities of any kind (including reasonable legal fees and expenses) relating to the Goods and/or Works (as applicable).

6. Exclusivity

(a) The Parties acknowledge that this contract is non-exclusive and that either Party is free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services

7. Confidentiality Obligations

In consideration of disclosure of Confidential Information by M&E PRO, Supplier undertakes to:

(a) keep Confidential Information secret, confidential and separate from all other documents and records at all times;

(b) not disclose or permit the disclosure of any Confidential Information, in whole, in part, or in summary, to any person, except as expressly permitted by this Agreement;

(c) not use Confidential Information or permit it to be used, in whole or in part, for any purpose other than the Permitted Purpose;

(d) take measures in accordance with Good Industry Practice to ensure the confidentiality of Confidential Information and apply the same security measures and degree of care to such Confidential Information as Supplier applies to its own confidential information; and

(e) inform M&E PRO immediately if it becomes aware of the possession, use or knowledge of any Confidential Information by an unauthorised person, and to provide any assistance in relation to such unauthorised possession, use or knowledge that M&E PRO may require.

8. Exceptions to Confidentiality Obligations

8.1 Supplier’s obligations under this Agreement shall not apply to any Confidential Information that Supplier can prove by means of written evidence in a form satisfactory to M&E PRO:

(a) was known to Supplier on a non-confidential basis prior to disclosure by M&E PRO or its Representatives;

(b) is or becomes publicly known other than as a result of breach of this Agreement by Supplier or by anyone to whom Supplier disclosed Confidential Information;

(c) is received by Supplier without restriction on disclosure or use from a third party lawfully entitled to make the disclosure without such restrictions; or

(d) is developed by any of Supplier’s Representatives who have not had any direct or indirect access to, or use or knowledge of, Confidential Information.

8.2 Supplier will not be in breach of its obligations under this Agreement to the extent that it is required to disclose Confidential Information by applicable law or order of a court or other public body that has jurisdiction over it, provided that, before making such a disclosure, Supplier shall, to the extent it is legally permitted to do so:

(a) inform M&E PRO of the proposed disclosure immediately, and if possible before the court or other public body orders the disclosure;

(b) take into account requests of M&E PRO in relation to such disclosure;

(c) ask the court or other public body to treat such Confidential Information as confidential; and

(d) permit M&E PRO to make representations to the court or other public body in respect of the disclosure and/or confidential treatment of Confidential Information.

9. Disclosure to Representatives

9.1 Supplier shall permit access to Confidential Information only to those of its Representatives who require such access for the Permitted Purpose; and:

(a) have been informed of the confidential nature of Confidential Information, M&E PRO’s interest in Confidential Information, and the provisions of this Agreement, and have been instructed to comply with this Agreement; and

(b) have entered into legally binding confidentiality obligations to Supplier on terms that are no less onerous than those set out in this Agreement, and which extend to Confidential Information.

9.2 Supplier shall ensure those persons who have access to Confidential Information comply with this Agreement, and Supplier shall be liable for any breach of this Agreement by such persons.

10. Return of Confidential Information

At M&E PRO’s written request, and in any event at the end of 5 years after the Effective Date, Supplier shall (and shall procure that its Representatives shall) make no further use of Confidential Information and:

(a) immediately return to M&E PRO (or, if M&E PRO so requests, destroy or erase) all Confidential Information that Supplier has received under this Agreement including any copies;

(b) delete all electronic copies of any Confidential Information from Supplier’s computer systems; and

(c) provide to M&E PRO a certificate, signed by an officer of Supplier, confirming that the obligations in this clause have been complied with.

11. Reservation of rights and remedies

11.1 The Confidential Information is proprietary to M&E PRO and M&E PRO reserves all rights in Confidential Information. M&E PRO is the sole owner of all property rights in tangible records of Confidential Information and M&E PRO is and shall remain the sole owner of all intellectual property rights in Confidential Information.

11.2 No rights in respect of Confidential Information are granted to Supplier other than to use it in accordance with the terms of this Agreement, and no obligations are imposed on M&E PRO other than those expressly stated in this Agreement. In particular, nothing in this Agreement shall be construed or implied as obliging the disclosure of any specific type of information under this Agreement, whether Confidential Information or not and nothing in this Agreement shall oblige the Parties to negotiate or enter into a further agreement.

11.3 Supplier agrees that Confidential Information has been developed and obtained through substantial investment by M&E PRO and is of critical importance to M&E PRO’s business. Accordingly, Supplier agrees that any unauthorised disclosure or use of Confidential Information will cause serious and irreparable harm to M&E PRO, including:

(a) loss of exclusivity in relation to use of Confidential Information and loss of business, revenues, profits, investment and other opportunities that flow from loss of such exclusivity; and

(b) loss of, or damage to, reputation or goodwill, wasted management and other staff time.

11.4 Supplier agrees that damages alone may not be an adequate remedy for the breach of any of the provisions of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, M&E PRO shall be entitled to equitable relief (including injunctive relief and specific performance) in connection with any threatened or actual breach of this Agreement.

11.5 Supplier shall indemnify M&E PRO against all liabilities, costs, expenses, damages and losses (including direct and consequential losses, loss of profit, loss of reputation and all interest, penalties and all other professional costs and expenses (on a full indemnity basis)) incurred by M&E PRO arising out of or in connection with any breach of this Agreement by Supplier or its Representatives.

12. Publicity

12.1 The Supplier hereto agrees to seek and obtain the approval of M&E PRO prior to the issuance of any press releases relating to these terms of business and agree not to make or release any statement to the press which adversely reflects upon the other its image, goodwill or business

12.2 The Supplier warrants that they will do nothing which might adversely affect the reputation or image of M&E PRO and will use all reasonable endeavours to ensure that none of their directors, officers or employees, acting in the course of their employment, makes any statement that is knowingly defamatory, disparaging of or derogatory to M&E PRO;

13. General

13.1 Data Protection: The terms “controller”, “process” and “personal data” used in this clause have the meanings given in the General Data Protection Regulation (EU) 2016/679. Each Party is an independent controller in respect of personal data processed by it to issue and respond to communications and bring or defend a legal action under or in connection with this Agreement.

13.2 Non-solicitation: The Supplier agrees that, during the term of this Agreement and for a period of two (2) years thereafter, it will not, for itself or any trust, corporation or other entity for which it performs, or has an interest in performing, services in any capacity, directly or indirectly solicit, hire, contract for services or otherwise employ or retain the services of, accept business from, endeavour to entice away from the other Party or otherwise interfere with the relationship of M&E PRO with any person or company who is a customer, client, employee or contractor who has engaged or is employed by M&E PRO

13.3 Duration of obligations: Supplier’s obligations of confidentiality under this Agreement shall survive termination or expiry of this Agreement.

13.4 Notices and other communications: Any notice required to be given under this Agreement shall be effective only if given in writing in English and personally delivered or sent by pre-paid first class post or recorded delivery or commercial courier to the other Party at the address set out above.

13.5 Assignment: Supplier may not assign, sub-contract or deal in any way with, any of its rights or obligations under this Agreement, save that M&E PRO may assign its rights under this Agreement on prior written notice to Supplier.

13.6 Affiliate and third party rights: Confidential Information may include information of a confidential or proprietary nature which is held by an Affiliate of M&E PRO; such Affiliate may enforce the rights of M&E PRO hereunder against Supplier. Confidential Information may be disclosed by M&E PRO or Supplier to Affiliates of Supplier and their Representatives, in which case Supplier shall be liable for the timely and complete performance by its Affiliates and their Representatives of all obligations relating to Confidential Information, as fully as if such disclosure was made to Supplier, and M&E PRO may enforce its rights hereunder directly against such Affiliates and Representatives. Except as expressly provided herein, a person who is not a Party shall not have any rights under or in connection with it save that an Affiliate may enforce the rights herein as if it were a Party

13.7 Entire agreement: This Agreement constitutes the entire agreement between the Parties relating to its subject matter and supersedes all earlier understandings and agreements between the Parties. This Agreement may only be varied in writing signed by or on behalf of each of the Parties provided that such variation is an express variation of this contract. This Agreement will not be superseded by the terms and conditions contained within any quotations for work or order forms.

13.8 Precedence: This Agreement shall take precedence over all other order forms, documents or specifications issued by the Parties including the Supplier’s quotation. M&E PRO does not agree to (whether implicitly or expressly) the terms contained within the Supplier’s quotation which is issued only as evidence of cost.

13.9 Feedback: M&E PRO shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Supplier or its Representatives with respect to Confidential Information.

13.10 No representations or warranties: Each Party agrees that it has not entered into this Agreement in reliance upon any representation or warranty other than as set out in this Agreement. Confidential Information is disclosed on an “as is” basis and M&E PRO gives no warranty, condition or representation (whether express or implied) including those relating to the accuracy, completeness or ownership of Confidential Information. This clause shall not exclude the liability of a Party for fraud.

13.11 Relationship: Nothing in this Agreement creates, implies or evidences a partnership or joint venture between the Parties, or authorises a Party to act as agent for the other. If there is any inconsistency between the terms of this Agreement and any subsequent quotation relating to the Works, the terms of this Agreement shall prevail.

13.12 Waiver: No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that (or any other) right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that (or any other) right or remedy.

13.13 Severance: If the whole or any part of any provision of this Agreement is void or unenforceable by any judicial authority or other competent authority, all other provisions of this Agreement, and the rest of the unenforceable provision, will continue in force.

13.14 Counterparts: This Agreement may be executed in any number of counterparts, each of which is an original, but all of which together will constitute one document.

13.15 Governing law and jurisdiction: This Agreement (and any claim relating to it, its subject matter, its enforceability or its termination, including non-contractual claims) is governed by and construed in accordance with English law. The Parties irrevocably submit to the exclusive jurisdiction of the English courts to resolve any such claim.