HIGHBOURNE GROUP PURCHASE TERMS (Goods and Services) (September 2011)

“Company” means the Highbourne Group Company which places the Order; “Contract” means the contract created by the Supplier’s acceptance of the Order which shall be on  the earlier of (a) the Supplier issuing a written acceptance of the Order or (b) the Supplier doing any  act consistent with fulfilling the Order; 

“Goods” means the products described in the Order (including their constituent raw materials and  processed materials, component parts, packaging, instructions and associated promotional material)  and any parts and materials supplied as part of the Services; 

“Intellectual Property” means any patent, copyright, design right, registered design, trade mark,  service mark, know-how, utility model, unregistered design right or where relevant, any application  for any such right, or other industrial or intellectual property right subsisting anywhere in the world; “Order” means any order from the Company to the Supplier for the supply of the Goods/Services; “Services” means the services described in the Order (including any ancillary services carried out  as part of the supply of Goods); and 

“Supplier” means the person, firm or company who accepts the Order. 

“Highbourne Group Company” means the ultimate parent company of City Plumbing Supplies  Holdings Limited and any such parent company’s subsidiary companies (as defined in s1159  Companies Act 2006) and any references to Group shall be construed accordingly;

1.2 References to any statutory provision shall include (i) any subordinate legislation made under  it (ii) any provision which it has modified or re-enacted and (iii) any provision which subsequently  supersedes it or re-enacts it. 

1.3 These terms are the only terms upon which the Company shall purchase Goods and Services  and shall be incorporated into the Contract to the entire exclusion of all other terms including any  terms referred to in any order acknowledgement form issued by the Supplier. Any reference to any  Supplier’s terms of sale or business shall have no effect. 

1.4 Nothing in these terms shall prevent the Company from relying on any terms or remedies implied  by statute or common law. 

1.5 All documentation and information to be provided pursuant to the Contract shall be in English.

2.1 The Company shall not be bound by any Order unless it is issued or confirmed on the  Company’s official order form and signed by a duly authorised signatory of the Company.

2.2 The Company may provide a forecast of the quantity of its anticipated sales of the Goods. Such  information is given in good faith but without imposing any obligation on the Company. 

2.3 The Supplier shall fulfil all accepted Orders and carry out its obligations with all reasonable skill  and care and in accordance with good industry practice.  

2.4 At any time prior to delivery of the Goods, the Company shall have the right to inspect and test  the Goods. 

2.5 In addition to its other rights to terminate, the Company may at any time and for any reason  terminate an Order in whole or part by giving the Supplier notice whereupon all work on the Order  shall cease and the Company shall pay to the Supplier fair and reasonable compensation for work in-progress at the time of termination but such compensation shall not include loss of anticipated  profits or any consequential loss. 

3.1 The Goods shall be delivered, carriage paid, to the delivery address stated in the Order or such  other delivery address as is agreed by the Company in writing prior to delivery of the Goods. Upon  arrival, the Supplier shall report to the Company or Company’s customer site representative to  receive and comply with instructions and shall offload the Goods at its own risk as directed by the  Company or Company’s customer site representative.  

3.2 Delivery of the Goods and performance of the Services shall be made within the time set out in  the Order or as otherwise agreed between the Company and the Supplier. Time for  delivery/performance shall be of the essence. If the Supplier believes that it may not be able to  complete an Order in accordance with its terms it shall immediately advise the individual from the  Company who placed the Order.

3.3 Delivery/performance shall only be accepted where it can be completed during the Company’s  normal working hours at the delivery address. The Supplier shall use all reasonable endeavours to  comply with any request from the Company to deliver/perform at specific times. The Company shall  be entitled to reject a delivery if it is of the opinion there is a health and safety issue with the load or  a container is not loaded properly. 

3.4 If the Company agrees to accept delivery of Goods or performance of Services by instalments,  each instalment shall nevertheless constitute part of one contract represented by the relevant Order.  Failure by the Supplier to deliver any one or more instalment shall entitle the Company to accept or  refuse to accept all or any of the instalments.  

3.5 If the Goods are delivered to the Company in excess of the quantities ordered, the Company  shall not be bound to pay for the excess and any excess shall be at the Supplier’s risk and shall be  returnable at the Supplier’s expense. 

3.6 If the Company claims that an Order has not been properly fulfilled, the Supplier shall be deemed  to accept the validity of the claim unless it serves written notice on the Company disputing the claim  and stating the reasons for its dispute within 3 days of the claim date. 

3.7 The Supplier represents that it is a competent person for the purposes of compliance with health  and safety legislation and acknowledges that the Company is relying on its skill and expertise in  carrying out the Services safely and in accordance with those requirements. The Supplier must  (where required) supply a suitable method statement and risk assessment for the Services to the  Company prior to commencement of the Services. 

3.8 All material and workmanship used in connection with the Services shall be guaranteed for a  minimum of twelve months from completion of the Services. 

3.9 Where the Services comprise property related services, the Supplier shall obtain all materials  and hire all plant from a Highbourne Group Company unless it can prove that there is a cost  disadvantage, time disadvantage or the materials and plant are not stocked by a Highbourne Group  Company. The Supplier shall provide interim and final reports on the source of materials or plant  supply to prove compliance. 

3.10 The Supplier shall (where applicable) maintain a Construction Industry Scheme class 5 or 6  card (or its equivalent if replaced) throughout the duration of the Contract and produce evidence to  the Company on request. 

4.1 The Supplier must ensure that all documents relating to the Goods/Services (including  advice/delivery notes and invoices) state the Company’s order number, product description, product  code and quantity.  

4.2 The packaging and labelling of the Goods must meet the quality requirements set by, and  otherwise be as specified by, the Company. The Company shall not be obliged to return to or  account to the Supplier for any packaging materials (including pallets). Any packaging materials  which are returned shall be at the Supplier’s risk and cost. 

5.1 The Supplier shall promptly inform the Company of any matter of which it is or reasonably should  be aware relating to the Goods or Services or the storage, transportation, handling, assembly or use  of Goods (including legislation or advice from responsible or professional or legal bodies in respect  of raw materials or chemicals used in the manufacture of the Goods) and the actions it has taken or  proposes to take and those that the Company or (where relevant) its customers should take in  relation to such matters. 

5.2 The Supplier shall provide to the Company full guidance documentation relating to “control of  substances hazardous to health” and all weight, noise and vibration information on the Goods. The  Supplier will ensure that all product literature, including instructions for use, is clear and not  misleading and complies with applicable laws and regulations, including those relating to consumers.  Amendments and additions will be provided by the Supplier immediately. 

5.3 The Supplier shall immediately notify the Company in writing together with all relevant details if  there is: 

(a) any defect in any Goods previously delivered to the Company or any Services already carried  out; or 

(b) any error or omission in the instructions for the use and/or assembly of the Goods;

(whether or not a breach of the Contract) which exposes or may expose any person to any risk of  death or injury or causes or may cause damage to property. 

5.4 The Supplier shall keep full and proper documentation relating to the provision of Goods and  Services under the Contract. The Supplier shall allow the Company access to and the right to  reproduce the Supplier’s documentation for the term of the Contract and six years after.

Title to and risk in the Goods shall pass to the Company on delivery of the Goods to the Company  in accordance with 3.1. Title to and risk in any display units to be located at the Company’s premises  (whether or not funded by the Supplier) shall pass to the Company on delivery.

7.1 The Company shall not be deemed to have accepted any Goods or Services until it has had a  reasonable time to inspect them following delivery or after any latent defect has become apparent.  Neither any inspection or testing by the Company or its representatives whether before or after  physical delivery of the Goods or completion of the Services nor the signing of any document  acknowledging physical receipt of any Goods or completion of any Services shall constitute  acceptance or approval of the Goods/Services by the Company.  

7.2 The Company may carry out such testing and inspection of Goods/Services as it considers  necessary to ensure that Goods/Services conform with the terms of the Contract. The Supplier shall  reimburse the testing costs of non-conforming Goods/Services. 

7.3 Without prejudice to any other right or remedy which the Company may have, if any Goods or  Services are not supplied in accordance with the Contract, the Company may: (a) reject the relevant Goods or Services (in whole or part) and (in respect of Goods) return them to  the Supplier (at the Supplier’s risk and cost) and raise a debit note against the Supplier's invoice for  them;  

(b) give the Supplier the opportunity at the Supplier’s expense either to remedy any defect in the  Goods or Services or (in respect of Goods) to immediately replace the Goods with Goods that  conform to the Contract; 

(c) carry out at the Supplier’s expense any work necessary to make the Goods or Services comply  with the Contract; and 

(d) claim such damages as may have been sustained in consequence of the Supplier’s breach of  the Contract.  

8.1 The Supplier warrants that the Goods shall: 

(a) be accompanied with accurate, complete and comprehensible instructions in English for the  treatment, assembly, use, handling, transportation and/or storage of the Goods; (b) be equal in all respects to and in conformity with the samples, drawings, patterns, specifications  or other descriptions of the Goods as specified in the Contract; 

(c) conform in all respects with any representations made by the Supplier and with all descriptions,  drawings and other standards given by the Supplier prior to the Order. 

(d) be manufactured to and in accordance with all applicable laws and regulations and codes of  practice in the country of manufacture and to British and European Standards; (e) be of satisfactory quality, free from defects in materials and workmanship and fit for purpose; (f) be free from design and other inherent defects; and 

(g) otherwise meet the requirements of the Contract. 

8.2 In relation to any Services to be provided by the Supplier, the Supplier undertakes: (a) to provide such Services with all reasonable skill and care and in good and workmanlike manner  in accordance with the provisions of the Contract; 

(b) that any advice or instructions given by the Supplier to the Company’s customers will be true,  complete, accurate and not misleading; 

(c) to comply with, and to ensure that its personnel comply with, all relevant laws, regulations and  codes of practice; 

(d) that all personnel providing such Services shall wear appropriate personal protection equipment  and comply with all site safety instructions; and 

(e) to supply to the Company from time to time such information and reports as the Company  reasonably requires in relation to the provision of the Services.

8.3 The Supplier shall be responsible for any errors or omissions in any drawings, calculations, or  other information or materials supplied by it whether such information has been approved by or on  behalf of the Company or not, provided that such errors or omissions are not due to inaccurate  information furnished in writing by the Company. 

8.4 In relation to any installation services, the Supplier shall (prior to commencement of the Services)  satisfy itself that the site is suitable for the Services to be carried out and check the Goods for  shortages and damage. 

8.5 The Supplier shall comply at all times with all relevant laws (including, without limitation, British  or European statute, statutory rule, order, directive, regulation or other instrument having force of  law and all other legislation for the time being in force). With reference to the Waste, Electrical and  Electronic Equipment Regulations 2007, the Supplier shall be responsible in full for all producer  compliance costs incurred in each calendar year to the relevant authority or scheme for all Goods,  save for those Goods which are branded in the Company name or directly imported into the United  Kingdom by the Company. 

8.6 The Supplier shall comply with the REACH Regulations in respect of all Goods and provide to  the Company all information, data and evidence of compliance as is required to enable the Company  to comply with its obligations under REACH. If any Goods shall contain substances requiring  authorisation/registration under the REACH Regulations the Supplier shall (a) provide full details of  such substances to the Company and (b) ensure such Goods will comply with the REACH  Regulations on import into the European Union; before supplying such Goods to the Company. 

8.7 The Supplier will be responsible for ensuring that it and the manufacturer of its products respect  the welfare of employees and of the local community and comply with all applicable laws (including  all labour, environmental and health and safety laws). The Supplier must have its own environmental  and health and safety policies acceptable to the Company and demonstrate its compliance with such  policies.  

8.8 The Supplier shall comply with the Company’s environment policy and QA standards in force  from time to time. 

9.1 The price shall be as set out in the Order or as otherwise agreed in writing by the Company and  the Supplier and is the only sum payable by the Company (other than VAT) for or in connection with  the supply of the Goods or Services.  

9.2 Invoices shall be in a form approved by the Company and shall be sent in accordance with the  Company’s instructions as advised from time to time. All invoices shall be issued within 30 days of  delivery of the Goods/completion of the Services. 

9.3 The Company shall pay invoices, in Pounds Sterling, by cheque or direct payment into a UK  bank account advised by the Supplier and in the Supplier’s name. Payment terms are 90 days from  date of receipt of invoice, unless otherwise agreed in writing.  

9.4 The Company may set off any claim for a money sum that the Company has against the Supplier  or any other company in the group of which the Supplier is a member, against any claim for a sum  of money that the Supplier has against the Company or any other Highbourne Group Company,  whether under the Contract or otherwise. 

9.5 If any sum is not paid when due then the party entitled to payment may charge interest on such  overdue sum from the due date until payment is made in full at 2% per annum over the Royal Bank  of Scotland plc base rate from time to time. The Supplier shall not suspend performance of the  Contract as a result of any sums being outstanding. 

10.1 The Company may (without prejudice to its other rights and remedies) terminate the Contract,  with immediate effect, on notice to the Supplier if: 

10.1.1 the Supplier commits a material or persistent breach of any Contract term; or 10.1.2 the Supplier becomes insolvent or suffers an insolvency event or other similar event or the  Company reasonably believes that the Supplier is about to become insolvent or suffer an insolvency  event or other similar event or ceases or threatens to cease to carry on business; or 10.1.3 the Supplier or any Supplier Group Company shall have offered or given or been offered or  given any gift or other consideration as an inducement for doing or refraining from doing any action  in relation to the Contract or any other contract with any Highbourne Group Company.

10.2 Any termination of the Contract shall be without prejudice to any rights or remedies which may  have accrued to either party before the termination date. 

10.3 Where the Company terminates the Contract pursuant to 10.1, the Company may on or within  14 days of giving the termination notice cancel any undelivered Orders without any liability to the Supplier. 

11.1 The Supplier acknowledges that all materials, equipment and tools, drawings, specifications,  and data supplied by a Highbourne Group Company to the Supplier (Company Materials) and all  rights in the Company Material are and shall remain the exclusive property of the relevant  Highbourne Group Company and shall be used by the Supplier solely for the purpose of performing  its obligations under the Contract. The Supplier shall keep the Company Materials in safe custody  at its own risk, maintain them in good condition until returned to the Company and not dispose or  use the same other than in accordance with the Company’s written instructions or authorisation. 

11.2 The Supplier shall promptly (on the Company's written request at any time and in any event on  termination of the Contract) either deliver to the Company or, at the Company's sole option, destroy  all Company Materials. In the case of Company Materials held in machine readable form  "destruction" shall involve erasing these from the medium on which they are held. 

11.3 Any Intellectual Property in or relating to any Goods/Services derived from or containing any  Company Intellectual Property and in any materials and information supplied by the Company shall  belong to the Company and the Supplier hereby assigns all such Intellectual Property to the  Company. The Company’s Intellectual Property, materials and information shall only be used by the  Supplier to the extent necessary to fulfil its obligations under the Contract. Under no circumstances  shall the Supplier (whether during or after termination of the Contract) sell, hire or otherwise dispose  or part with possession of any Goods derived from or containing any Company Intellectual Property,  other than to a Highbourne Group Company. 

11.4 The Supplier shall keep in strict confidence all information concerning the business, products  and customers of any Highbourne Group Company. The Supplier shall not without the Company's  prior written consent make use of the Company’s name or any of its Intellectual Property for  promotional or publicity purpose. 

11.5 Where the Company supplies data to the Supplier that is covered by the Data Protection Act  1998, the Supplier shall act only in the capacity of Data Processor in carrying out its obligations  under the Contract. The Supplier shall only process data in accordance with the Company’s  instructions and in full compliance with all applicable guidelines and codes of practice issued by the  Information Commissioner and the seventh principle of the 1998 Act. The Supplier shall provide a  copy of any data requested by the Company within 2 days of request. 

12.1 The Supplier agrees to indemnify the Company in full against all claims, demands, actions,  proceedings and all damages, losses, costs and expenses which are made against or incurred by  the Company resulting from:  

12.1.1 any claim by a third party that the manufacture, assembly, sale or supply, offer for sale or  supply, possession, advertisement, hire or use of any of the Goods and/or Services by the Company  or its customers infringes the Intellectual Property rights of that third party; 

12.1.2 any recall of any Goods already sold by the Company to its customers (and any unsold  Goods) and/or any notification to its customers issued by the Company about the manner of use or  operation of any Goods already sold by the Company to its customers;  

12.1.3 any liability incurred under the Consumer Protection Act 1987 in respect of the Goods and/or  their packaging; and/or 

12.1.4 any breach of any Contract term by the Supplier. 

12.2 The Supplier shall maintain such insurances as are appropriate having regard to its obligations  under the Contract and in particular public and product liability insurance for a minimum cover of  £10million per claim and employer’s liability insurance for a minimum of £5million per claim with an  insurer acceptable to the Company. The Supplier shall produce a copy of such policies and renewal  premium receipt on request. 

12.3 The Supplier undertakes not to structure its business and the provision of the Goods or Services  in any way that an employee of the Supplier (or agent or subcontractor) could claim to be entitled to transfer to the employment of a Highbourne Group Company pursuant to the Transfer of  Undertakings (Protection of Employment) Regulations 2006. In the event that any such employee  claims to be or is entitled to transfer pursuant to these Regulations, the Supplier shall indemnify the  relevant Highbourne Group Company in full against any costs, claims, losses or liabilities suffered  as a result. 

13.1 Any notice given pursuant to or in relation to the Contract shall be in writing to the registered  office of the other party. 

13.2 The Company reserves the right to defer the date of delivery or payment or to cancel the  Contract or reduce the volume of Goods or Services ordered if it is prevented from or delayed in  carrying out its business due to circumstances beyond its reasonable control. 13.3 Save for any Highbourne Group Company who shall be entitled to enforce any provision of the  Contract, no person who is not a party to the Contract shall have a right to enforce any term of the  Contract which expressly or by implication confers a benefit on that person. 13.4 The Supplier shall not be entitled to assign any of its right or obligations under the Contract.  Highbourne or any Company may assign any of its rights or obligations under the Contract at any  time. The Supplier shall not sub-contract, in whole or in part, performance of any of its obligations  under the Contract without the Company's prior written consent. Where the Supplier is allowed to  sub-contract it shall continue to be responsible for performance of the Contract. The Company may  at any time withdraw its consent for the Supplier to sub-contract any of its obligations under the  Contract. 

13.5 No waiver by one party of a breach of the Contract by the other party shall be considered as a  waiver of any subsequent breach of the same or any other provision. A failure or delay by one party  to exercise any right or remedy conferred by the Contract or law shall not be construed as a waiver  of that right or remedy unless the Contract imposes a specific period for the exercise of that right or  remedy. 

13.6 If at any time any term of the Contract is held to be or becomes void or otherwise unenforceable  for any reason under any applicable law, the same shall be deemed omitted from the Contract and  the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be  affected or impaired as a result of that omission. 

13.7 Any dispute or claim arising in connection with the Contract shall be governed by and construed  in accordance with English law. The English Courts shall have non-exclusive jurisdiction to resolve  any such dispute or claim. Where the Supplier is domiciled outside the United Kingdom, the  Company may, at its option, elect for a dispute or claim to be referred and finally resolved by  arbitration under the UNCITRAL arbitration rules. The London Court of International Arbitration shall  be the appointing authority and the number of arbitrators shall be one. The seat, or legal place, of  arbitration shall be London, England. The language used shall be English.