PRODUCT SUPPLY TERMS AND CONDITIONS

These Conditions are the terms and conditions under which Prosthetic Solutions Limited, trading as Pro Armour (us or our or we) supplies Products to the purchaser named in the applicable order form, purchase order, quotation or invoice for the Products (you or your). These Conditions prevail over any additional or inconsistent conditions specified by you, or appearing in any purchase order from you, and no variation to these Conditions will be binding on us, unless specifically accepted by us in writing.

1.                  DEFINITIONS

1.1                For the purposes of these Conditions, the following terms have the following meanings:

                     Conditions means these product supply terms and conditions;

                     Products means the products as more particularly described in the applicable quotation, order form, invoice,                                   packing slip or purchase order for those products; and

                     Incoterms 2020 means the International Chamber of Commerce official rules for the interpretation of trade terms,                         which came into force on 1 January 2020, as amended or revised from time to time.

2.                  QUOTATIONS

2.1                No quotation for Products will be binding on us if it is not given in writing.

2.2                Any quotation given by us for the Products will lapse and be invalid if it has not been accepted by you by the date for                       acceptance specified on the quotation form. If no date for acceptance is given on the quotation form, then the                                   quotation will lapse and be invalid if it has not been accepted by you within 30 days following the date of issue of the                       quotation.

2.3                We may, but are not required to, agree to extend the date for acceptance of any quotation. No extension will be                                binding on us unless it has been given in writing.

2.4                We may withdraw a quotation at any time before acceptance by you.  No quotation will be binding on us if the                                    quotation was given based on incomplete, inaccurate or misleading information provided by you.

2.5                In the event of any conflict or inconsistency between any terms and conditions of any quotation and these                                         Conditions, the relevant terms and conditions of the quotation will prevail.

2.6                We reserve the right to alter any quotation as a result of circumstances beyond our control.

3.                  PRICE

3.1                The price for the Products will be the price set out in the applicable quotation or written order confirmation from us,                        or as otherwise agreed by the parties in writing. Pricing errors may be corrected at any time.  All prices are in New                            Zealand dollars unless otherwise set out in the applicable quotation or agreed by the parties in writing.

4.                  ORDERS

4.1                All orders for Products must be submitted to us in writing, by email or by such other means as we may specify from                         time to time, and must include a Purchase Order number. We are not obliged to acknowledge or process any order                         for Products not submitted by such means.

4.2                Your acceptance of a written quotation from us, or our written acceptance of an order form or purchase order from                        you, will create a legally binding order by you for the Products. You may not cancel any order without our consent,                          which consent (if any) may be given on such terms as we may determine at our discretion. We may, for any reason                          and without any liability on our part, cancel any order for Products before delivery of the Products.

5.                  PAYMENT TERMS

5.1                We will invoice you for the Products in the manner and on the dates agreed by the parties in writing. In the absence                          of any such express written agreement, we will invoice you for the Products on or before delivery, and you must pay                        all such invoices in full on or before the 20th day of the month following the month in which the invoice was issued.

5.2                Despite clause 5.1:

(a)                 we reserve the right to require you to pay a deposit for any Products to be provided, and our invoice for any such                             deposit must be paid in full before we accept an order for those Products; and

(b)                 we may also require you to agree different invoicing and payment terms as a condition of accepting any particular                            order for Products (for example, we may require payment in full before delivery of an order).

5.3                All sums due to us under these Conditions will be paid without deduction or set-off of any kind, to the credit of a                               bank account to be designated in writing by us, and you will be responsible for any bank fees incurred in the course                         of making any payment to us, and in the event of any failure by you to make any payment as required under these                           Conditions:

(a)                 we may charge interest on any outstanding amount on a daily basis at an annual rate equivalent to our banker’s                                standard annual interest rate for commercial overdrafts plus 5%, from the due date until the date of actual payment;

(b)                 you will reimburse us for all costs and expenses that we incur in connection with any actions or proceedings for                                recovery of any amounts required to be paid by you, including all reasonable accounting costs, attorney costs (on a                          solicitor and own client basis), court costs and debt collection costs; and

(c)                  we may elect to terminate any orders for Products then in progress, or to suspend any such orders until the failure                          to pay has been rectified.

5.4                We may at any time and for any reason modify the invoicing and payment terms applicable to orders of Products by                        you.

5.5                As security for payment, we may require you to provide us with a letter of credit from a reputable bank in a form                             and for an amount acceptable to us prior to delivery of the Products to you. If you do not provide us with such letter                       of credit, we may withhold delivery of the Products, or cancel any order for Products.

6.                  DELIVERY

6.1                Delivery of the Products will be DAP (Incoterms 2020) to the port or terminal identified in the applicable quotation or                       otherwise notified by us to you in writing. You are responsible for reimbursing to us all freight and insurance costs                           and expenses and import or export duties incurred by us in delivering the Products DAP, and these costs and                                   expenses will be included in the invoice for the applicable Products. The provisions of Incoterms 2020 will otherwise                       govern the allocation between the parties of costs, risks and responsibilities in relation to such delivery, except as                             otherwise set out in the applicable quotation or agreed by the parties in writing.

6.2                You acknowledge and agree that we may deliver the Products in instalments.

6.3                Any delivery or lead times given by us are estimates only, and we will not be liable for failure to deliver Products                               within any estimate timeframe. Time for delivery will not be of the essence.

6.4                In the event of any delay by you in taking delivery of the Products, we will be entitled to charge you for our                                         reasonable costs incurred in storing them.

6.5                You must inspect the Products upon delivery to determine whether they have been delivered in good condition. You                       must give written notice to us of:

(a)                 any defects in or damage to the Products that would be reasonably visible from any such inspection; and

(b)                any Products short supplied,

                     within seven days of delivery. Failure to do so will be regarded as an acceptance of the Products.

7.                  FORCE MAJEURE

7.1                We will not be liable for any failure to perform the contract or any part of it due to an event of Force Majeure.  We                            may cancel the order if the cost to us of supplying any Products is increased materially as a result of such Force                                Majeure and the parties cannot agree on how the additional cost is to be borne. For the purposes of this clause 7,                            Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, s                    storm, adverse weather conditions, pandemic, or other matters beyond our reasonable control.

8.                  RISK AND TITLE  

8.1                Risk of loss of or damage to the Products will pass to you in accordance with the DAP provisions of Incoterms 2020.

8.2                Title in the Products will not pass to you until all Products provided by us to you have been paid for in full.  Until such                        title passes:

(a)                  you will keep the Products clearly identified as our property in a separate part of your premises, in good order and                          condition, and fully insured with a reputable insurer for their full replacement value;

(b)                 you will not sell or dispose of the Products, other than in the ordinary course of your business, and you will hold the                        proceeds of such sale or disposal in a separate account on trust for us;

(c)                  you will return the Products to us immediately if called upon by us to do so; and

(d)                 we or our agents may, where we have any concerns about your creditworthiness, enter your premises or any other                          place where the Products are situated at any time in order to take possession of them, and you will indemnify us                              and our agents against any claim or demand that may be brought in relation to such entry and taking of possession.

9.                  INTELLECTUAL PROPERTY RIGHTS

9.1                Unless we agree otherwise with you in writing:

(a)                 all copyright, patent rights, design rights and other intellectual property rights (Intellectual Property Rights) in or                           to the Products will be exclusively owned by us or our third party licensors.  Neither you nor any of your affiliates,                             agents or contractors will assert or claim ownership of any such Intellectual Property Rights;

(b)                 you and subsequent purchasers of the Products are granted a royalty-free, non-exclusive licence under such                                      Intellectual Property Rights solely to the extent necessary to use the Products in the manner recommended by us;                            and

(c)                 we will be free to manufacture, copy, use, sell or otherwise commercially exploit any designs, goods or products the                         subject of such Intellectual Property Rights as we please at our sole discretion.

9.2                Any use or copying of the Products except as expressly permitted under clause 9.1 is strictly prohibited and will be                           regarded as a material breach by you of these Conditions.

10.                WARRANTIES

10.1              We warrant that there are no liens, encumbrances or other interests in the Products that would prevent title to the                          Products passing to you upon payment pursuant to clause 8.2.

10.2              We provide a standard six month warranty with the Products, under which we warrant that that for the period of six                        months following delivery to the customer the Products will be free from defects in materials and workmanship.

10.3              Our warranty under clause 10.2 will not apply in respect of any Products that:

(a)                 have not been purchased from us or one of our authorised distributors or dealers;

(b)                 have been altered in any way without our authorisation;

(c)                 have not been used in accordance with the instructions for use provided by us with the Products; or

(d)                 have been damaged due to accidents, neglect, misuse, operation beyond capacity, or improper application,

or in any other circumstance expressly specified in the warranty information provided by us with the Products as being excluded from the warranty.

10.4                In the event that:

(a)                   any Products do not comply with the warranty under clause 10.2; or

(b)                   an inspection of the Products under clause 6.5 establishes that the Products are defective or damaged,

we will repair or replace such Products or their defective components, or provide a credit or refund for such Products (at our option and cost). This will be the sole remedy against us and our sole obligation for any Products that do not comply with the warranty in clause 10.2 or that are otherwise defective.

10.5                In relation to any Products the subject of a claim under clauses 6.5 or 10.2, you will:

(a)                   give us or our agents the opportunity to inspect the Products;

(b)                   provide us with reasonable co-operation and information requested by us regarding the claim; and

(c)                   if requested by us, return to us at our cost the relevant Products.

10.6                We will not be obliged to accept the return of any Products, except in the circumstances set out in clauses 10.4 and                         10.5. If we do agree in writing to accept the return of any Products that are not defective, they must be returned to                            us in an original, unused, undamaged, resalable, unsoiled condition.

10.7                You acknowledge that except as expressly provided in these Conditions, and subject to clause 12, we give no                                      warranties in relation to the Products, either express or implied, including but not limited to any implied                                              warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result. All                                          statements, technical information and recommendations about the Products are believed to be reliable, but do not                          constitute a guarantee or warranty.

10.8               We are not medical professionals and do not provide any advice, warranties or representations about the                                           appropriateness or suitability of the Products for any person. All such warranties and representations are expressly                         disclaimed. In particular, users of the Products should consult with their own health care professionals about such                           matters, or if they have any questions about how the Products might apply to their specific medical condition.                                   Users of the Products should also immediately consult with a health care professional if they experience any                                     adverse medical reactions following use of the Products. The use of the Products are not a guarantee against injury.

11.                  LIABILITY

11.1                In no event will we be liable (whether in contract, tort, negligence or in any other way) to you for:

                        (a)          loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production,                                              loss or corruption of data or wasted management or staff time; or

                        (b)          loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,

                                      arising directly or indirectly from any Products supplied by us to you, even if we had been advised of the                                              possibility of such loss, damage, cost or expense, and even if such loss, damage, cost or expense was                                                  reasonably foreseeable by us.

11.2                In no event will our total liability under any claim of whatever nature arising directly or indirectly from the Products                          supplied by us to you exceed the price paid by you for the specific Products to which the relevant claim relates.

12.                  EXCLUSIONS

12.1                None of the exclusions or limitations set out in these Conditions will have the effect of limiting or excluding any                               form of liability where such liability cannot be so limited or excluded under applicable law.

13.                  GENERAL

13.1                These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions                            and supersede all prior understandings, communications and representations between the parties, whether oral                              or  written.

13.2                You may not assign, transfer or sub-contract any of your rights or obligations under these Conditions, without first                            obtaining our written consent.

13.3                No amendment to these Conditions will be effective unless in writing and signed by an authorised representative                              of us.

13.4                The United Nations Convention on Agreements for the International Sale of Goods will not apply to the supply of                              any Products under these Conditions.

13.5                These Conditions will be governed by the laws of New Zealand, and the parties submit to the non-exclusive                                        jurisdiction of the Courts of New Zealand.