AL Technical Services new zealand Limited Terms and Conditions for Sale of Products and Services

NOTICE: Sale or supply of any Products or Services is expressly conditioned on the purchaser's agreement to these Terms and Conditions. Any acceptance of ALTS’s offer is expressly limited to acceptance of these Terms and Conditions and ALTS expressly objects to any additional or different terms proposed by the purchaser. No facility entry form shall modify these Terms and Conditions even if signed by ALTS’s representative. Any order to perform work and ALTS's performance of work shall constitute the purchaser’s assent to these Terms and Conditions. Unless otherwise specified in the quotation, ALTS’s quotation shall expire 30 days from its date and may be modified or withdrawn by ALTS before receipt of the purchaser’s conforming acceptance.

1. Definitions

a. "The purchaser" means the entity to which ALTS is providing Products or Services under the Contract.

b. “ALTS” means AL Technical Services New Zealand Limited, a duly registered company of New Zealand.

c. "Contract" means either the contract agreement signed by both parties, or the purchase order signed by The purchaser and accepted by ALTS in writing, for the sale of Products or Services, together with these Terms and Conditions, ALTS’s final quotation, the agreed scope(s) of work, and ALTS’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.

d. “Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.

e. “Hazardous Materials” means any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, radioactive material, petroleum or petroleum-derived products or by-products, or any other chemical, substance, material or emission, that is regulated, listed or controlled pursuant to any national, state, provincial, or local law, statute, ordinance, directive, regulation or other legal requirement of New Zealand (“NZ”) or the country of the Site.

f. “Insolvent/Bankrupt” means that a party is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency dissolution or liquidation laws.

g. “Products” means the equipment, parts, materials, supplies, software, and other goods ALTS has agreed to supply to the purchaser under the Contract.

h. "ALTS" means the entity providing Products or performing Services under the Contract.

i. “Services” means the services ALTS has agreed to perform for the purchaser under the Contract.

j. "Site" means the premises where Products are used or Services are performed, not including ALTS’s premises from which it performs Services.

k. “Terms and Conditions” means these “Terms and Conditions for Sale of Products and Services”, including any relevant addenda, together with any modifications or additional provisions specifically stated in ALTS’s final quotation or specifically agreed upon by ALTS in writing.

l. “Authorized Agent” means a third-party agent retained by ALTS to perform certain services such as audit services required under the certification process;

m. “Certificate” means a certificate of conformance to the specification delivered by ALTS;

n. “Purchaser” means the business or organization as identified in the Contract, whose System(s) has been or is to be Certified;

o. “Purchaser Group” means the Purchaser, its subcontractors, suppliers or customers, together with any of their employees, agents, officers or directors;

p. “Contract” means this document, together with the included Quotation Documents and Terms of Use, which together set the terms and conditions relating to the performance of the Services;

q. “Force Majeure” means any matter beyond a party’s reasonable control;

r. “Indemnitees” means ALTS, the Accreditation Body, or any of their respective affiliates, parent, or brother or sister corporations or their successors-in-interest or assigns, or the officers, directors, members and employees thereof;

s. “Intellectual Property” means all intellectual property rights, titles and interests in all service marks, trademarks, certification marks, names or logos, copyright works and inventions;

t. “Quotation Documents” means the application for quote and other quotation documents negotiated between the Purchaser and ALTS and/or its Authorized Agent, which form part of the Contract together with this document and the Terms of Use;

u. “Services” shall have the meaning ascribed to such term under clause 1.1;

v. “Services Fees” means the fees as quoted amended from time to time for services agreed to be supplied pursuant to the Contract;

w. “Standard” means a set of conditions and requirements for the issuance of a Certificate, including (but without limiting the generality thereof) all statutes, rules, regulations issued by any statutory or other competent authority, all recommendations, codes and similar matters issued by any authority pursuant to which in compliance with which or for the purpose of which the Certificate is issued or such other reasonable requirements of ALTS as are necessary to enable the Certificate to be issued and maintained in force in accordance with the standards reasonably expected of accredited or competent certification;.

x. “System” means the organizational structure, responsibilities, activities, resources and events that together provide organized procedures and methods of implementation to ensure the capability of the Purchaser to meet the Standard; and

y. “Terms of Use” means the terms of use of the ALTS Certificate of Conformity - Clause 22 (as amended from time to time)

2. Payment

a. The purchaser shall pay ALTS for the Products and Services by paying all invoiced amounts in NZ dollars, without set-off for any payment from ALTS not due under this Contract, within thirty (30) days from the invoice date.

b. If the Contract Price is less than (NZD) Two Hundred and Fifty Thousand Dollars ($250,000), ALTS shall issue invoices upon acceptance of quotation/contract and byers shall make full cleared payment to ALTSs escrow account before the Products and Services are delivered/performed.

c. If the Contract Price is (NZD) Two Hundred Fifty Thousand Dollars ($250,001) or more, progress payments shall be invoiced starting with twenty-five percent (25%) of the quotation/contract price for Products and Services upon the earlier of contract signature or issuance of ALTS’s order acknowledgement and continuing such that ninety percent (90%) of the Contract Price for Products is received before the earliest scheduled Product shipment and Services are invoiced as performed (“Progress Payments”). For each calendar month, or fraction thereof, that payment is late, the purchaser shall pay a late payment charge calculated at the rate of 2% per month on the overdue balance, or the maximum rate permitted by law, whichever is less.

d. As and if requested by ALTS, The purchaser shall at its expense establish and keep in force payment security in the form of an irrevocable, unconditional, sight letter of credit or bank guarantee allowing for pro-rata payments as Products are shipped and Services are performed, plus payment of cancellation and termination charges, and all other amounts due from The purchaser under the Contract

e. The Payment Security shall be (a) in a form, and issued or confirmed by a bank acceptable to ALTS, (b) payable at the counters of such acceptable bank or negotiating bank, (c) opened at least ten (10) business days days prior to both the earliest scheduled shipment of Products and commencement of Services, and (d) remain in effect until the latest of ninety (30) business days after the last scheduled Product shipment, completion of all Services and ALTS’s receipt of the final payment required under the Contract. The purchaser shall, at its expense, increase the amount(s), extend the validity period(s) and make other appropriate modifications to any Payment Security within ten (10) business days of ALTS’s notification that such adjustment is necessary in connection with The purchaser’s obligations under the Contract.

f. ALTS is not required to commence or continue its performance unless and until any required Payment Security is operative and in effect and all applicable Progress Payments have been received. For each day of delay in receiving Progress Payments or acceptable Payment Security, ALTS shall be entitled to a matching extension of the schedule. If at any time ALTS reasonably determines that The purchaser’s financial condition or payment history does not justify continuation of ALTS’s performance, ALTS shall be entitled to require full or partial payment in advance or otherwise restructure payments, request additional forms of Payment Security, suspend its performance or terminate the Contract.

3. Taxes and Duties

a. ALTS shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Contract (“ALTS Taxes”).

b. The purchaser shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, value-added or Goods and Services taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on The purchaser or ALTS or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than ALTS Taxes ("The purchaser Taxes").

c. The Contract Price does not include the amount of any the purchaser Taxes. If The purchaser deducts or withholds the purchaser Taxes, the purchaser shall pay additional amounts so that ALTS receives the full Contract Price without reduction for the purchaser Taxes. The purchaser shall provide to ALTS, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.

4. Deliveries; Title Transfer; Risk of Loss; Storage

a. For shipments that do not involve export, including shipments from within New Zealand ALTS shall deliver Products to the purchaser’s facility or warehouse

b. For export shipments, ALTS shall deliver Products to the purchaser FCA Port of Export.

c. The purchaser shall pay all delivery costs and charges or pay ALTS’s standard shipping charges plus up to twenty-five (25%) percent. Partial deliveries are permitted. ALTS may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by ALTS of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, the purchaser shall so notify ALTS within ten (10) days after receipt.

d. For shipments that do not involve export, title to Products shall pass to the purchaser upon delivery in accordance with Section 4-A. For export shipments from an ALTS facility or warehouse outside New Zealand., the title shall pass to the purchaser upon delivery in accordance with Section 4-A. For shipments from New Zealand to another country, the title shall pass to the purchaser immediately after each item departs from the territorial land, seas and overlying airspace of New Zealand. The 1982 United Nations Convention of the law of the Sea shall apply to determine the New Zealand territorial seas. For all other shipments, title to Products shall pass to The purchaser the earlier of (i) the port of export immediately after Products have been cleared for export or (ii) immediately after each item departs from the territorial land, seas and overlying airspace of the sending country. When The purchaser arranges the export or intercommunity shipment, the purchaser will provide ALTS evidence of exportation or intercommunity shipment acceptable to the relevant tax and custom authorities. Notwithstanding the foregoing, ALTS grants only a license, and does not pass title, for any software provided by ALTS under this Contract, and title to any leased equipment remains with ALTS.

e. Risk of loss shall pass to the purchaser upon delivery pursuant to Section 4-A, except that for export shipments from New Zealand., risk of loss shall transfer to the purchaser upon title passage.

f. If any Products to be delivered under this Contract or if any The purchaser equipment repaired at ALTS’s facilities cannot be shipped to or received by The purchaser when ready due to any cause attributable to The purchaser or its other contractors, ALTS may ship the Products and equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If ALTS places Products or equipment into storage, the following apply: (i) title and risk of loss immediately pass to The purchaser, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to ALTS upon delivery or shipment shall be due; (iii) all expenses and charges incurred by ALTS related to the storage shall be payable by The purchaser upon submission of ALTS’s invoices; and (iv) when conditions permit and upon payment of all amounts due, ALTS shall make Products and repaired equipment available to The purchaser for delivery.

g. If repair Services are to be performed on The purchaser’s equipment at ALTS’s facility, The purchaser shall be responsible for, and shall retain risk of loss of, such equipment at all times, except that ALTS shall be responsible for damage to the equipment while at ALTS’s facility to the extent such damage is caused by ALTS’s negligence.

5. Warranty

a. ALTS specifically disclaims any liability for damages or injury (including death) arising out of or caused by manipulation, dismantling, or misuse of the Products or the use or attempted use of the Products or any component as an instrument unrelated to its intended function.

b. Certification as conforming does not constitute a guarantee or warranty by ALTS that the product will function as expected. The products should not be relied upon as a complete solution. Anti-ligature, cell/room certification and welfare policies, including regular welfare checks, should be maintained by the purchaser to ensure safety of building occupants.

c. ALTS warrants that Products shall be delivered free from defects in material, workmanship and title and that Services shall be performed in a competent, diligent manner in accordance with the ALTSs specifications.

d. The warranty for Products shall expire one (1) year from initial certification, for a certified product or one (1) year from delivery for non-certified products. The warranty for Services shall expire one (1) year after performance of the Service.

e. If Products or Services do not meet the above warranties, the purchaser shall promptly notify ALTS in writing prior to expiration of the warranty period. ALTS shall (i) at its option, repair or replace defective Products and (ii) re-perform defective Services. If despite ALTS’s reasonable efforts, a non-conforming Product cannot be repaired or replaced, or non-conforming Services cannot be reperformed, ALTS shall refund, or credit monies paid by the purchaser for such non-conforming Products and Services. Warranty repair, replacement or re-performance by ALTS shall not extend or renew the applicable warranty period. The purchaser shall obtain ALTS’s agreement on the specifications of any tests it plans to conduct to determine whether a non-conformance exists.

f. The purchaser shall bear the costs of access for ALTS’s remedial warranty efforts (including removal and replacement of systems, structures or other parts of the purchaser’s facility), de-installation, decontamination, re-installation and transportation of defective Products to ALTS and back to the purchaser.

g. The warranties and remedies are conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, (b) The purchaser keeping accurate and complete records of operation and maintenance during the warranty period and providing ALTS access to those records, and (c) modification or repair of Products or Services only as authorized by ALTS in writing. Failure to meet any such conditions renders the warranty null and void. ALTS is not responsible for normal wear and tear.

h. This Clause 5 provides the exclusive remedies for all claims based on failure of or defect in Products or Services, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Clause 5 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.

6. Confidentiality

a. ALTS and the purchaser (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information in connection with this Contract. “Confidential Information” means

i. information that is designated in writing as “confidential”, “proprietary” or “commercial in confidence” by Disclosing Party at the time of written disclosure, and

ii. information that is orally designated as “confidential”, “proprietary” or “commercial in confidence” by Disclosing Party at the time of oral or visual disclosure and is confirmed to be “confidential” or “proprietary” in writing within twenty (20) days after the oral or visual disclosure. In addition, prices for Products and Services shall be considered ALTS’s Confidential Information.

b. Receiving Party agrees:

i. to use the Confidential Information only in connection with the Contract and use of Products and Services,

ii. to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and

iii. not to disclose the Confidential Information to a competitor of Disclosing Party. Notwithstanding these restrictions,

iv. ALTS may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Contract,

v. a Receiving Party may disclose Confidential Information to its auditors

vi. The purchaser may disclose Confidential Information to lenders as necessary for the purchaser to secure or retain financing needed to perform its obligations under the Contract, and

vii. a Receiving Party may disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such subcontractors, auditors, lenders or other permitted third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized use or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Receiving Party to retain an item of Confidential Information.

viii. ALTS may also retain one archive copy of the purchaser’s Confidential Information.

c. The obligations under this Clause 6 shall not apply to any portion of the Confidential Information that:

i. is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates;

ii. is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party;

iii. is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information;

iv. is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.

d. Each Disclosing Party warrants that it has the right to disclose the information that it discloses. Neither The purchaser nor ALTS shall make any public announcement about the Contract without prior written approval of the other party. As to any individual item of Confidential Information, the restrictions under this Clause 6 shall expire five (5) years after the date of disclosure. Clause 6 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.

7. Intellectual Property

a. The purchaser has no rights to any of ALTS concepts, inventions, processes, methodologies or trademarks, nor does the purchaser have any rights to any materials that have been copyrighted by the Company. The Company owns all rights to its patents, inventions, trademarks, service marks, trade names and other trade indicia.

b. ALTS owns all copyright rights to its materials, including materials prepared by the purchaser. Any inventions, concepts, processes, methodologies, trademarks, works or other material subject to copyright, that were created for the purchasers use. The purchaser shall cooperate fully with the Company to perfect its ownership and title thereto, at the purchaser’s sole expense and cost.

c. The sale of products does to the purchaser does not constitute a licence nor

d. Should any Product or Service, or any portion thereof, become the subject of a Claim, ALTS may at its option (a) procure for the purchaser the right to continue using the Product or Service, or applicable portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back infringing Products or Services and refund the price received by ALTS attributable to the infringing Products or Services.

e. Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract. All new intellectual property conceived or created by ALTS in the performance of this Contract, whether alone or with any contribution from the purchaser, shall be owned exclusively by ALTS. The purchaser agrees to deliver assignment documentation as necessary to achieve that result.

8. Indemnity

a. The purchaser shall indemnify ALTS (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract.

9. Insurance

a. During the term of the Contract, ALTS shall maintain for its protection the following insurance coverage:

i. Commercial General Liability and Public Liability insurance for bodily injury and property damage with a combined single limit of (NZD) $2,500,000.

ii. Professional Indemnity insurance with a combined single limit of (NZD) $2,500,000.

iii. If required by the purchaser, ALTS shall provide a certificate of insurance reflecting such coverage.

10. Excusable Events

a. ALTS shall not be liable or considered in breach of its obligations under this Contract to the extent that ALTS’s performance is delayed or prevented, directly or indirectly, by any cause beyond its reasonable control, or by armed conflict, acts or threats of terrorism, epidemics, strikes or other labour disturbances, or acts or omissions of any governmental authority or of the purchaser or The purchaser’s contractors or suppliers. If an excusable event occurs, the schedule for ALTS’s performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the purchaser or its contractors or suppliers cause the delay, ALTS shall also be entitled to an equitable price adjustment.

11. Termination and Suspension

a. The purchaser may terminate the Contract (or the portion affected) for cause if ALTS

i. becomes Insolvent/Bankrupt, or

ii. commits a material breach of the Contract which does not otherwise have a specified contractual remedy, provided that:

1. The purchaser shall first provide ALTS with detailed written notice of the breach and of The purchaser’s intention to terminate the Contract, and

2. ALTS shall have failed, within 30 days after receipt of the notice, to commence and diligently pursue cure of the breach.

b. If The purchaser terminates the Contract pursuant to Section 11-A,

i. ALTS shall reimburse the purchaser the difference between that portion of the Contract Price allocable to the terminated scope and the actual amounts reasonably incurred by The purchaser to complete that scope, and

ii. The purchaser shall pay to ALTS

1. the portion of the Contract Price allocable to Products completed,

2. lease fees incurred, and

3. amounts for Services performed before the effective date of termination. The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at ALTS’s then-current standard time and material rates.

c. ALTS may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if the purchaser

i. becomes Insolvent/Bankrupt, or

ii. materially breaches the Contract, including, but not limited to, failure or delay in the purchaser providing Payment Security, making any payment when due, or fulfilling any payment conditions.

d. If the Contract (or any portion thereof) is terminated for any reason other than ALTS’s default under Section 11-A, The purchaser shall pay ALTS for all Products completed, lease fees incurred and Services performed before the effective date of termination, plus expenses reasonably incurred by ALTS in connection with the termination. The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at ALTS’s then current standard time and material rates. In addition, the purchaser shall pay ALTS a cancellation charges equal to 80% of the Contract Price applicable to uncompleted made-to-order Products and 15% of the Contract Price applicable to all other uncompleted Products.

e. Either the purchaser or ALTS may terminate the Contract (or the portion affected) upon twenty (20) days advance notice if there is an excusable event (as described in Clause 10) lasting longer than one hundred and twenty (120) days. In such case, the purchaser shall pay to ALTS amounts payable under Section 11-D, excluding the cancellation charge for uncompleted Products.

f. The purchaser shall pay all reasonable expenses incurred by ALTS in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, demobilization/remobilization, and costs of storage during suspension. The schedule for ALTS’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.

12. Compliance with Laws, Codes and Standards

a. ALTS shall comply with laws applicable to the manufacture of Products and its performance of Services. The purchaser shall comply with laws applicable to the application, operation, use and disposal of the Products and Services.

b. ALTS’s obligations are conditioned upon the purchaser’s compliance with all New Zealand and other applicable trade control laws and regulations. The purchaser shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by the purchaser and specified as the country of ultimate destination on ALTS’s invoice.

c. Notwithstanding any other provision, The purchaser shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfilment of the purchaser’s obligations, except that ALTS shall obtain any license or registration necessary for ALTS to generally conduct business and visas or work permits, if any, necessary for ALTS’s personnel. The purchaser shall provide reasonable assistance to ALTS in obtaining such visas and work permits.

13. Environmental, Health and Safety

a. The purchaser shall maintain safe working conditions at the Site, including, without limitation, implementing appropriate procedures regarding Hazardous Materials, confined space entry, and energization and de-energization of power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out (“LOTO”) procedures including physical LOTO or a mutually agreed upon alternative method.

b. The purchaser shall timely advise ALTS in writing of all applicable Site-specific health, safety, security and environmental requirements and procedures. Without limiting the purchaser’s responsibilities under Clause 13, ALTS has the right but not the obligation to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the Site.

c. If, in ALTS’s reasonable opinion, the health, safety, or security of personnel or the Site is, or is apt to be, imperilled by security risks, terrorist acts or threats, the presence of or threat of exposure to Hazardous Materials, or unsafe working conditions, ALTS may, in addition to other rights or remedies available to it, evacuate some or all of its personnel from Site, suspend performance of all or any part of the Contract, and/or remotely perform or supervise work. Any such occurrence shall be considered an excusable event. The purchaser shall reasonably assist in any such evacuation.

d. Operation of the purchaser’s equipment is the responsibility of the purchaser. The purchaser shall not require or permit ALTS’s personnel to operate the purchaser’s equipment at Site.

e. The purchaser will make its Site medical facilities and resources available to ALTS personnel who need medical attention.

f. ALTS has no responsibility or liability for the pre-existing condition of The purchaser’s equipment or the Site. Prior to ALTS starting any work at Site, the purchaser will provide documentation that identifies the presence and condition of any Hazardous Materials existing in or about the purchaser’s equipment or the Site that ALTS may encounter while performing under this Contract. The purchaser shall disclose to ALTS industrial hygiene and environmental monitoring data regarding conditions that may affect ALTS’s work or personnel at the Site. The purchaser shall keep ALTS informed of changes in any such conditions.

g. ALTS shall notify the purchaser if ALTS becomes aware of: (i) conditions at the Site differing materially from those disclosed by The purchaser, or (ii) previously unknown physical conditions at Site differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. If any such conditions cause an increase in ALTS's cost of, or the time required for, performance of any part of the work under the Contract, an equitable adjustment in price and schedule shall be made.

h. If ALTS encounters Hazardous Materials in The purchaser’s equipment or at the Site that require special handling or disposal, ALTS is not obligated to continue work affected by the hazardous conditions. In such an event, The purchaser shall eliminate the hazardous conditions in accordance with applicable laws and regulations so that ALTS’s work under the Contract may safely proceed, and ALTS shall be entitled to an equitable adjustment of the price and schedule to compensate for any increase in ALTS’s cost of, or time required for, performance of any part of the work. The purchaser shall properly store, transport and dispose of all Hazardous Materials introduced, produced or generated in the course of ALTS’s work at the Site.

i. The purchaser shall indemnify ALTS for any and all claims, damages, losses, and expenses arising out of or relating to any Hazardous Materials which are or were (i) present in or about The purchaser’s equipment or the Site prior to the commencement of ALTS’s work, (ii) improperly handled or disposed of by The purchaser or The purchaser’s employees, agents, contractors or subcontractors, or (iii) brought, generated, produced or released on Site by parties other than ALTS.

14. Variations

a. Each party may at any time propose changes in the schedule or scope of Products or Services. ALTS is not obligated to proceed with any change until both parties agree upon such change in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price and other provisions, as agreed.

b. The scope, Contract Price, schedule, and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by ALTS resulting from a change, after ALTS’s proposal date, in The purchaser’s Site-specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations. However, no adjustment will be made on account of a general change in ALTS’s manufacturing or repair facilities resulting from a change in laws or regulations applicable to such facilities. Unless otherwise agreed by the parties, pricing for additional work arising from such changes shall be at ALTS’s time and material rates.

c. It shall be acceptable and not considered a change if ALTS delivers a Product that bears a different, superseding or new part or version number compared to the part or version number listed in the Contract.

15. Limitations of Liability

a. The total liability of ALTS for all claims of any kind arising from or related to the formation, performance or breach of this Contract, or any Products or Services, shall not exceed the (i) Contract Price, or (ii) if The purchaser places multiple order(s) under the Contract, the price of each particular order for all claims arising from or related to that order and ten thousand NZ dollars (NZD $10,000) for all claims not part of any particular order.

b. ALTS shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of The purchaser’s customers for any of the foregoing types of damages.

c. All ALTS liability shall end upon expiration of the applicable warranty or certification period, provided that The purchaser may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Contract, before expiration of any statute of limitations or other legal time limitation but in no event later than one year after expiration of such warranty period.

d. ALTS shall not be liable for advice or assistance that is not required for the work scope under this Contract.

e. If the purchaser is supplying Products or Services to a third party, or using Products or Services at a facility owned by a third party, The purchaser shall either (i) indemnify and defend ALTS from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this Clause 15, or (ii) require that the third party agree, for the benefit of and enforceable by ALTS, to be bound by all the limitations included in this Clause 15.

f. For purposes of this Clause 15, the term “ALTS” means ALTS, its affiliates, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Clause 15 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict ALTS’s liability.

g. A ALTS Certificate does not imply any guarantee or warranty, express or implied, including but not limited to any warranty of merchantability or fitness for any particular purpose, of any services inspected by ALTS or its Authorized Agent or certified by ALTS.

16. Governing Law and Dispute Resolution

a. This Contract shall be governed by and construed in accordance with the laws of New Zealand (the “Governing Law”). If the Contract includes the sale of Products and the purchaser is outside the ALTS’s country, the United Nations Convention on Contracts for the International Sale of Goods shall apply.

b. All disputes arising in connection with this Contract, including any question regarding its existence or validity, shall be resolved in accordance with this Clause 16. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management, to be held within twenty (20) business days after the giving of notice. If the dispute is not resolved within thirty (30) business days after the giving of notice, or such later date as may be mutually agreed, either party may commence arbitration or court proceedings, depending upon the location of the purchaser, in accordance with the following: (a) if the purchaser’s pertinent place of business is in New Zealand, legal action shall be commenced in the district or high court with jurisdiction applicable to or the location of the purchaser’s principal place of business; or (b) if the purchaser’s pertinent place of business is outside New Zealand the dispute shall be submitted to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The number of arbitrators shall be one, selected in accordance with the ICC rules, unless the amount in dispute exceeds the equivalent of NZD $5,000,000, in which event it shall be three. When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall appoint the third within thirty (30) days, who shall be the Chairman. The seat, or legal place, of arbitration, shall be London, England. The arbitration shall be conducted in English. In reaching their decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in the Contract, and if a solution is not found in the Contract, shall apply the governing law of the Contract. The decision of the arbitrator(s) shall be final and binding upon both parties, and neither party shall seek recourse to a law court or other authority to appeal for revisions of the decision.

c. Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Contract, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Clause 6 and/or the nuclear use restrictions set forth in Section 19-A, or to seek interim or conservatory measures. Monetary damages shall only be available in accordance with Section 16-B.

17. Inspection and Quality Assurance

a. ALTS will apply its quality control procedures as documented in ALTS’s quality policy manual. ALTS shall attempt to accommodate requests by the purchaser to witness ALTS’s factory tests of Products, subject to appropriate access restrictions, if such witnessing can be arranged without delaying the work.

b. ALTS will provide the purchaser on request copies of the test reporting records.

c. Exhaustive requests for records or additional testing outside ALTS normal procedures will be chargeable to the purchaser as a variation to the original contract. Charges at ALTS current hourly quality assurance rate.

d. ALTS will comply in all respects with all applicable legislation, health regulations and codes of practice, quality assurance will be conducted in strict accordance with the current ALTS quality policy manual

18. Software, Leased Equipment, Consulting Services

a. If ALTS provides any software to The purchaser, the Software License Addendum shall apply. If ALTS leases any of ALTS’s equipment or provides related Services to The purchaser, including placing ALTS’s equipment at The purchaser’s site to provide remote Services, the Lease Addendum shall apply. If ALTS provides remote diagnostic services to The purchaser, the Remote Diagnostic Services Addendum shall apply.

b. If ALTS provides Consulting Services to the purchaser, the Consulting Services Addendum shall apply. If there is any conflict between these “Terms and Conditions for the Sale of Products and Services, and the terms of any addendum incorporated pursuant to this Clause 18, the terms of the addendum shall take precedence with respect to the applicable scope.

19. General Clauses

a. Products and Services sold by ALTS are not intended for use in connection with any nuclear facility or activity, and the purchaser warrants that it shall not use or permit others to use Products or Services for such purposes, without the advance written consent of ALTS. If, in breach of this, any such use occurs, ALTS (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of ALTS, The purchaser shall indemnify and hold ALTS (and its parent, affiliates, suppliers and subcontractors) harmless against all such liability. Consent of ALTS to any such use, if any, will be conditioned upon additional terms and conditions that ALTS determines to be acceptable for protection against nuclear liability.

b. ALTS may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any party without the purchaser’s consent. The purchaser agrees to execute any documents that may be necessary to complete ALTS’s assignment or novation. ALTS may subcontract portions of the work, so long as ALTS remains responsible for it. The delegation or assignment by the purchaser of any or all of its rights or obligations under the Contract without ALTS’s prior written consent (which consent shall not be unreasonably withheld) shall be void.

c. The purchaser shall notify ALTS immediately upon any change in ownership of more than fifty percent (50%) of the purchaser's voting rights or of any controlling interest in the purchaser. If The purchaser fails to do so or ALTS objects to the change, ALTS may (a) terminate the Contract, (b) require The purchaser to provide adequate assurance of performance (including but not limited to payment), and/or (c) put in place special controls regarding ALTS’s Confidential Information.

d. If any Contract provision is found to be void or unenforceable, the remainder of the Contract shall not be affected. The parties will endeavour to replace any such void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable.

e. The following Clauses shall survive termination or cancellation of the Contract: 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 18, 19 and 20.

f. The Contract represents the entire agreement between the parties. No oral or written representation or warranty not contained in this Contract shall be binding on either party. The purchaser’s and ALTS’s rights, remedies and obligations arising from or related to Products and Services sold under this Contract are limited to the rights, remedies and obligations stated in this Contract. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing.

g. Except as provided in Clause 15 (Limitations of Liability) and in Section 19.1 (no nuclear, avionics, or life support use), this Contract is only for the benefit of the parties, and no third party shall have a right to enforce any provision of this Contract.

h. This Contract may be signed in multiple counterparts that together shall constitute one agreement.

20. Notices

a. Any notice provided for by the terms and conditions of this Contract shall be:

i. in writing, in English and signed by a person duly authorised by the sender; and

ii. hand delivered or sent by prepaid post or email to the recipient’s address for notices specified in the Contract Agreement, as may be varied by any notice given by one Party to the other. A notice given under this clause 18.12 takes effect when the notice is received. A notice is taken to be received:

iii. if delivered by hand, when such notice is delivered;

1. if sent by post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside of New Zealand); or

2. if sent by email, at the time and date at which the sender’s email system records that the email was successfully delivered to the recipient (provided that an automated ‘out of office’, deliver failure or similar message is not received), but if delivery, receipt or transmission is not on a Business Day or is after 5:00pm on a Business Day, the Notice is taken to be received at 9:00am on the next Business Day.

21. US Government Contracts

a. This Clause 20 applies only if the Contract is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government.

b. The purchaser agrees that all Products and Services provided by ALTS meet the definition of “commercial-off-the-shelf” (“COTS”) or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Products is unknown unless otherwise specifically stated by ALTS in this Contract. The purchaser agrees any Services offered by ALTS are exempt from the Service Contract Act of 1965 (FAR 52.222-41). The purchaser represents and agrees that this Contract is not funded in whole or in part by American Recovery Reinvestment Act funds unless otherwise specifically stated in the Contract. The version of any applicable FAR clause listed in this Clause 20 shall be the one in effect on the effective date of this Contract.

c. If The purchaser is an agency of the U.S. Government, then as permitted by FAR 12.302, The purchaser agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions. The purchaser further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.

d. If The purchaser is procuring the Products or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then The purchaser agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.

22. Certification

a. ALTS offers certification services (the “Services”) for prospective and existing purchasers to be able to demonstrate that specialty anti-ligature and security products conform with the technical specification for installation and ongoing maintenance.

b. The Purchaser hereby warrants the completeness and accuracy of all documents and accuracy of all information supplied to ALTS for the purposes of certification, both at the time of supply and subsequently. The Purchaser further warrants that if it discovers that certain information provided is not accurate or complete, it will notify ALTS in writing of this as soon as it becomes aware of it.

c. The Purchaser acknowledges, covenants and agrees as follows:

i. The Purchaser acknowledges and agrees to ALTS using outsourced resources in the performance of its obligations relating to this Contract, such as the services of an Authorized Agent;

ii. The Purchaser agrees to comply with all conditions and requirements for the issuance of a Certificate, including (but without limiting the generality thereof) all statutes, rules, regulations issued by any statutory or other competent authority, all recommendations, codes and similar matters issued by any authority pursuant to which in compliance with which or for the purpose of which the Certificate is issued or such other reasonable requirements of ALTS as are necessary to enable the Certificate to be issued and maintained in force in accordance with the standards reasonably expected of accredited or competent certification (collectively, the “Standard”), and the Purchaser recognizes that ALTS has clear and explicit rights to revise the requirements of certification within the period of validity of the Certificate;

iii. The Purchaser shall ensure that it complies with the current version of the ALTS Specification against which it is certified. Current version of the Specification can be obtained from ALTS;

iv. The Purchaser will declare to ALTS any activity which may create a conflict of interest in relation to its certification; and

v. Where necessary, the Purchaser will also enter into and maintain a maintenance agreement with ALTS for its certification scheme.

d. ALTS acknowledges, covenants and agrees as follows:

i. ALTS will provide the Services with reasonable care and skill;

ii. ALTS will appoint competent qualified auditors to conduct audits and assessments of the Purchaser’s System(s) in accordance with ALTS procedures and ALTS’s management system requirements;

iii. ALTS will ensure that audit and assessment services are delivered at a frequency determined by ALTS in order for ALTS to maintain confidence in the ongoing efficacy of the System;

iv. ALTS will issue audit and non-conformance reports, if appropriate, after each audit activity;

v. ALTS will issue a Certificate of Conformance on successful completion of the initial certification assessment to the satisfaction of ALTS; and

vi. If ALTS is not able to verify the implementation of corrections and corrective actions of any major nonconformance within 1 months after the last day of initial certification application, ALTS shall deem the system non-compliant and will require a chargeable onsite audit to ascertain compliance with the technical specification.

e. Subject to the foregoing provisions of this clause 22, all conditions, warranties, terms and undertakings applicable to ALTS, express or implied, statutory or otherwise, are hereby excluded to the fullest extent permitted by law.

f. ALTS’s Intellectual Property shall remain the property of ALTS and cannot be transferred or licensed by the Purchaser.

g. ALTS shall award a license to the Purchaser to use its Certificate of Conformance for the duration of this Contract when used in accordance with the applicable Terms of Use.

h. ALTS will audit the use of its Certificate of Conformance. ALTS reserves the right to substitute or withdraw the right to use any or all its Certificate of Conformance at any time in the event of non-compliance with the Terms of Use or should the Contract be terminated, for whatever reason.

i. ALTS reserves the right to use any information that is brought to its attention and to investigate any infringements of Intellectual Property rights.

j. The Purchaser agrees to undergo short notice surveillance evaluations and audits as determined by ALTS.

k. The Purchaser will provide ALTS with reasonable cooperation and assistance and allow ALTS access to all premises, documentation and information deemed necessary by ALTS to verify the maintenance of the System and perform said surveillance evaluations and audits.

l. Additional surveillance visits, as deemed necessary by ALTS, will be charged at ALTS’s rates current at the time of supply of such services.

m. A Certificate awarded by ALTS shall cover only those services or products manufactured and/or supplied strictly within the scope of the Certificate by ALTS;

n. Initial certification will only be granted once all non-compliances are corrected;

o. On-going certification is reliant on continued compliance with the technical, which may change from time to time, including the requirement to address any non-compliance to the satisfaction of ALTS in the specified time periods;

p. ALTS may implement higher surveillance frequencies based on a risk assessment of the Purchaser’s

system and location;

q. ALTS conducts its certification activity through a sampling process to determine if the product meets the technical specification. Any statement of conformance issued by ALTS in the form of reports, Certificates or other communications is based on these sampling processes. ALTS does not warrant, represent or undertake that these statements mean that all products are in conformance with the relevant technical specification at the time of the audit or that subsequent to the audit activity those activities audited will continue to be in conformance with the relevant technical specification. The Purchaser undertakes to make all customers and end users aware of the foregoing provisions of this clause. ALTS accepts no liability to the Purchaser in the event that any loss or claim is suffered by the Purchaser as a result of any finding that the product does not comply with the technical specification.

r. Additional surveillance visits, as deemed necessary by ALTS, will be charged at ALTS’s certification rates current at the time of supply of such services.

s. A Certificate awarded by ALTS shall cover only those services or products manufactured and/or supplied strictly within the scope of the Certificate by ALTS;

t. ALTS shall be entitled to suspend or withdraw the Purchaser’s certification on seven-day written notice (or with immediate effect in the case of urgent need, as determined at the sole discretion of ALTS) and reserves the right to make public the fact that such action has been taken when, in the opinion of ALTS:

i. the Purchaser’s acts, omissions or conduct bring or may bring ALTS into disrepute;

ii. the Purchaser represents, promotes or advertises any products or System which are outside the scope of its Certificate as certified by ALTS;

iii. the Purchaser makes a fraudulent misrepresentation or provides ALTS with any inaccurate or misleading information, which is not corrected within three business days or immediately on being notified by ALTS;

iv. the Purchaser is in material breach of any term of the Contract;

u. Where it considers it appropriate, ALTS may, at its sole discretion, inform the Purchaser of its intention to suspend or withdraw certification and to allow the Purchaser a reasonable opportunity to take corrective action, within such time frame as ALTS may reasonably specify, before the suspension or withdrawal takes effect.

v. The Purchaser shall notify all relevant existing customers or stakeholders of the suspension or withdrawal in writing within three business days (or any other period as determined by ALTS) of the withdrawal or suspension taking effect, and maintain records of that notice.

w. The Purchaser shall, at the request of ALTS, either destroy all electronic and hardcopy Certificates relating to the certification and at its own expense remove all claims, service marks, trademarks, other names or logos and copyright works from products, documents, advertising and marketing materials with immediate effect or return all such certification materials to ALTS. The Purchaser shall also cooperate with ALTS Body to confirm that these obligations have been met and shall, if requested, confirm in writing the destruction or return of all such certification materials by one of its directors.

x. The purchaser agrees that, if certification is requested, ALTS at any time request to audit supplied documentation and evidence supplied. Audits may include a site visit. The purchaser further agrees that:

i. ALTS may request an audit at its sole discretion

ii. The purchaser will not withhold any information requested by ALTS

iii. ALTS will provide 48hours written notice of any audit and the purchaser shall provide requested information or allow access the site within a 48hours of such request

iv. ALTS will charge the purchaser genuine chargeable time to complete the audit based on ALTS current certification rate card

v. If the purchaser refuses an audit, does not supply required documentation or allow site access within the above timeframes ALTS will withdraw all certification for the site

1. Subsequently if the purchaser requires the site to be re-certified a full site review and audit will undertaken to ensure compliance with the specification

2. If the purchaser fails the audit, Non-conformance notices will be issued to the purchaser and a specific time will be provided for remediating the non-conformances. If ALTS is not satisfied with the remedial works, or the time period for remedial works is exceeded certification will be withdrawn and the site will require re-certification

3. The purchaser agrees it shall have no claim for loss against ALTS if any of the conditions of 22-X are breached and certification is withdrawn

y. Services Fees are quoted (and amended from time to time) for services agreed to be supplied pursuant to the Contract on the assumption that the information supplied by the Purchaser was accurate and complete.

i. Expenses and disbursements may be charged separately in accordance with the quoted terms.

ii. Any service required or supplied additional to the agreed services will be charged at the rates current at the time of supply of such services.

iii. Services Fees may be reviewed and amended from time to time, normally but not exclusively on an annual basis.