PTL STANDARD TERMS OF SUPPLY

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The following Terms govern the supply of Equipment by PTL to the Customer

1           Definitions and interpretation

Definitions

1.1         In these Conditions, unless the context otherwise requires:

Agreed Quotation means the quotation for the supply of the Equipment prepared by PTL as accepted in writing by the Customer (by order or otherwise) together with any variations subsequently agreed in writing by both parties.

Customer means the person who purchases Equipment from PTL, details of which are set out in the Agreed Quotation.

Delivery means the delivery of the Equipment to the Customer in accordance with clause 5.

Event of Default means any of the following:

(a)         The Customer fails to comply with any of its obligations under these Terms or any other agreement with PTL;

(b)         The Customer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, insolvency or receivership, or which generally precedes such an event; or

(c)         An event occurs or information becomes known to PTL which, in PTL’s opinion, might materially adversely affect Customer’s credit worthiness, the value of the Equipment or Customer’s ability or willingness to comply with its obligations under these Terms or any other agreement with PTL.

Equipment means equipment to be designed, manufactured and supplied by PTL to the Customer as set out in the Agreed Quotation.

Installation has the meaning given to that term in clause 6.1.

Intellectual Property means all and any patents, patent applications, trademarks, service marks, trade names, registered designs, unregistered design rights, copyright (including in all plans, drawings, specifications, and other written material) know how, trade secrets, domain names, internet addresses, rights in confidential information, rights to goodwill and all and any other intellectual property, whether registered or unregistered, and including all applications and rights to apply for any of the same.

Key Performance Measures means the key performance measures for the Equipment as set out in the Agreed Quotation or as otherwise agreed in writing between PTL and the Customer. Where there are no Key Performance Measures set out in the Agreed Quotation, or otherwise agreed between PTL and the Customer, the Key Performance Measures will be specified by PTL having regard to the Specifications and consistent with the principles set out in the One Voice Guidelines.

One Voice Guidelines means the One Voice for Hygienic Equipment Design for Low Moisture Food’s document prepared by PMMI (as updated from time to time).

Agreed Quotation Software means the executable version of any software included in the Equipment and, if set out in the Agreed Quotation, also includes the source code of that software.

Specifications means the specifications for the Equipment set out in the Agreed Quotation or as otherwise agreed in writing between PTL and the Customer.

Terms means these terms and conditions.

Warranties means the warranties set out in clause 7.1.

Warranty Period has the meaning given to that term in clause 7.1

Interpretation

1.2       In these Terms, unless the context otherwise requires:

1.2.1       This agreement extends to bind the parties and their respective successors, permitted assigns and administrators.

1.2.2      A reference to any statute or to statutes generally will include a reference to the statute as re-enacted, extended, consolidated, replaced or

amended from time to time and all ordinances, regulations, by-laws or rules made under them.

1.2.3       Headings have been inserted for guidance only and are not to be considered in interpreting any clause.

1.2.4       If any act is due to be performed on a day which is not a business day, the act will be performed on the firstbusiness day afterthat day.

1.2.5       A reference to a personincludes a reference to a companyor any other duly constituted entity having legalpersonality.

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2           Sale of Equipment

2.1         PTL will supply, and the Customer will purchase, the Equipment in accordance with the Agreed Quotation and these Terms.

3           Compliance with specifications

3.1         PTL will design and manufacture the Equipment so that the Equipment complies with the Specifications at delivery and, if applicable, on completion of the Installation.

3.2         PTL reserves the right to amend the Specifications if required by any applicable statutory or regulatory requirements.

4           Factory Testing

Factory testing of Equipment

4.1         When manufacture of the Equipment is complete, PTL will test the Equipment to ensure that the performance of the Equipment meets the Key Performance Measures in all material respects. The tests will be carried out in a manner determined by PTL (having regard to applicable industry standards and principles set out in the One Voice Guidelines),

4.2         If the Equipment fails to meet with the Key Performance Measures in any material respects, PTL will remedy any deficiencies or defects in the Equipment and repeat the tests until performance of the Equipment meets the Key Performance Measures to the required standard.

4.3         The Customer will have a reasonable opportunity, at its cost, to be present at PTL’s premises and observe the testing of the Equipment.

5           Delivery

Delivery of Equipment

5.1         Unless otherwise agreed in the Agreed Quotation, subject to the Customer payingfor the Equipment in accordance with clause 10, the factory tested Equipment will be deliveredEXW (Ex Works)as defined in the Incoterms 2010.

5.2         Delivery of Equipment which has been successfully factory tested under clause4 will discharge PTL’s obligation at the delivery date under clause3.1.

5.3         In the event of any conflict or inconsistency between these Terms and the Incoterms 2010 these Terms will prevail to the extent of any conflict or inconsistency.

Failure or refusal to accept delivery

5.4         If the Customer fails or refuses to accept delivery of Equipment, PTL may (without limiting any other rights or remediesPTL may have)charge the Customer for any expenses or additional costs incurred by PTL as a result of the failure or refusal to accept delivery of the Equipment (including any storage and transportation costs).

6           On-site Installation and site acceptance testing

Installation of Equipment

6.1         If specified in the Agreed Quotation, PTL will install the Equipment at the Customer’s premises (Installation).

Site AcceptanceTesting

6.2         Following Installation, PTL will test the Equipment to ensure that the performance of the installedEquipment meets the Key Performance Measures in all material respects.The tests will be carried out in a manner determined by PTL (having regard to applicable industry standards and the principles of the One Voice Guidelines),

6.3         The Customer will provide all reasonable assistance (including suitably qualified and experienced staff) as is necessary to ensure that testing can be carried out efficiently and in accordance with these Terms.

6.4         Successful site acceptance testing or retesting will discharge PTL’s obligations at Installation under clause 3.1.

Failure to pass site acceptance testing

6.5        Subject to clause 6.6, if the Equipment fails to meet the Key Performance Measures in any material respects, PTL will remedy any deficiencies or defects in the Equipment (which may include replacing some or all of the Equipment at its cost) and repeat the tests until performance of the Equipment meets the Key Performance Measures to the required standard.

6.6        PTL will not be responsible for any failure of the Equipment to pass site acceptance testingcaused or contributed to by:

6.6.1       a failure by the Customer to comply with clause 6.3;

6.6.2       performance of upstream and downstream equipment required for operation of the Equipment in accordance with the Agreed Quotation;

or

6.6.3       any other cause external to the Equipment reasonably outside the control of PTL.

6.7        Where clause 6.6 applies, PTL will notify the Customer and the Customer will be given a reasonable opportunity to remedy any default or otherwise remove the applicable cause of the failure to enable the Equipment to be retested. If theCustomer fails to do so, the Equipment will be deemed to comply with the Key Performance Measures for the purposes of clause 6.2.

Compliance with Customer’s reasonable requirements

6.8        During the Installation and site acceptance testing PTL will use reasonable endeavours to observe, ll health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises and that are notified to PTL by the Customer in advance in writing.

7           Warranties

PTL Warranties

7.1         Subject to this clause 7, PTL warrants to the Customer that:

7.1.1       PTL has the right to sell the Equipment at the time when title to the Equipment is to pass in accordance with these Terms.

7.1.2       PTL owns or has the right to use all Intellectual Property in the Equipment (including any Software).

7.1.3      for a period of 12 months from the later of the date of Delivery or, if applicable, successful site acceptance testing following Installation (Warranty Period), the Equipment and the Installation (if applicable) will be free from material defects in design, material or workmanship ( Defects Warranty)

7.2         The only warranties that PTL gives in respect of the Equipment and any Installation are the warranties in clause 7.1. To the fullest extent permitted by law, PTL expressly excludes all other warranties, guarantees or representations in relation to the Equipment or the Installation (if applicable) whether implied by statute, common law, custom of the trade or otherwise, including, but not limited to, implied warranties guarantees or conditions of merchantability and/or fitness for any purpose.

Defects duringWarranty Period

7.3         Subject to clauses 7.4 to 7.8, PTL will remedy any failure of the Equipment or any Installation to comply with the Defects Warranty that arises during the Warranty Period (which may include replacing some or all of the Equipment).

7.4         The Customer must notify PTL as soon as reasonably practicable, and not later than 20 business days from the date the Customer becomes aware of the relevant defect. The notice will contain a reason-able description of the defect. Unless otherwise agreed with PTL, the Customer will lose its right to have the defect remedied unless it complies with this clause 7.4.

7.5         PTL will not be responsible for defects caused by any of the following:

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7.5.1       The Equipment being operated and maintained other than in accordance with PTL’s operation, maintenance manuals and instructions.

7.5.2       The Equipment being modified or otherwise changed withoutthe prior written approval of PTL.

7.5.3       Fair wear and tear or deterioration.

7.5.4       Performance of upstream and downstream equipment required for operation of the Equipment in accordance with the Agreed Quotation

7.5.5       Any other cause or circumstances external to the Equipment or the Installation (if applicable).

7.6         If PTL considers that defect can be remedied by repair or replacement of a defective part and if dismantling and re-installation of the part does not require specialist skills, PTL may require the Customer to send to PTL the defective part for repair or replacement.

7.7         Where the defect cannot be remedied under clause 7.6, PTL will remedy the defect by way of repair or replacement of some or all of the Equipment at the Customer’s premises.

7.8         Unless otherwise agreed with PTL, any freight costs under clause 7.6 or steps taken by PTL to investigate any defects following a notice under clause 7.4 (including travel by PTL representatives to the Customer’s premises) will be at the cost of the Customer. Where required by PTL, travel costs will be paid in advance by the Customer following receipt of a valid invoice. However, if a defect is subsequently found by PTL which is covered by the Defects Warranty such costs will be reimbursed by PTL (to the extent already paid by the Customer) and subsequent actions by PTL to remedy the defect will be at the cost of PTL.

7.9         If PTL does not meet its obligations under clause 7.3 within a reasonable time, the Customer may by notice in writing give a final period for PTL to fix the defect (which will not be less than 3 months).

7.10        If the defect in the Equipment or the Installation remains un remedied at the end of this period, the Customer will be entitled to a reduction of the purchase price in proportion to the reduced value of the Equipment to the Customer. PTL will refund the Customer accordingly.

8          Exclusions and limitations of liability

Exclusion of liability for defective Equipment/Installation

8.1         TheCustomer agrees that its sole and exclusive rights and remedies in connectionwith defective Equipment or any defective Installation are as set out in clause7. Except as set out in that clause, PTL excludes all liability to the Customerin connection with defects arisingin the Equipment or any Installation howsoevercaused and includingall liability in contract, tort or otherwise(including negligence).

Limitation of other liability

8.2         Subject to clause 8.3 , any other liability of PTL to the Customerhowsoever arising in contract, tort or otherwise(including negligence) in connection with performance of its obligations under these Termsfor any event or occurance or any relatedseries of eventsor occurrences will be limitedto an amount equal to 5% of the price of the Equipment and any Installation as set out in the Agreed Quotation. 

8.3          PTL’s liability for breach by PTL of the warrantyset out in clause 7.1.1 (right to sell Equipment) is limited to an amountequal to the price of the Equipmentand any Installation as set out in the Agreed Quo- tation.

Exclusion of certain losses

8.4         Under no circumstances will PTL be liable to the Customerhowsoever arising in contract, tort or otherwise(including negligence) for any indirectloss, consequential loss, loss of use, loss of profit,loss of income or savings orloss of reputation.

Clause not to apply in contravention of laws

8.5         This clause8 does not exclude or limit the application of any laws of any jurisdiction whereto do so contravenes thoselaws or causes any part of clause8 to be void.

9           Risk and ownership

Risk 

9.1         The risk of any loss, damage or deterioration to the Equipment due to any causes whatsoever passes to the Customer on Delivery.

Title

9.2         Notwithstanding that risk and possession of the Equipment has passed to the Customer, neither legal nor beneficial title in the Equipment passes to the Customer until the Customer has paid to PTL all monies owing to PTL in respect of the Equipment.

9.3         The Customer grants to PTL, as security for all amounts payable under these Terms from time to time, a security interest in all Equipment supplied by PTL and all proceeds of such Equipment. Each security interest created under these Terms is a continuing security notwithstanding any intermediate payments or settlements of accounts.

Insurance

9.4         The Customer must, from Delivery, maintain an adequate insurance policy with a first-ranking insurance company of international standing to cover any physical loss or damage to the Equipment up to the full value of the Equipment. The Customer will on request provide PTL with copies of its insurance certificate(s).

10           Price and payment

Price

10.1         The price for the Equipment and any Installation will be the price set out in the Agreed Quotation. The price of the Equipment and any Installation is exclusive of all matters set out in the AgreedQuotation.

Invoicing

10.2         PTL will invoice the Customer for the Equipment and any Installation in accordance with the payment schedule set out in the Agreed Quotation.

10.3         Payment by the Customer to PTL is due in full, without deduction, withholding or set off in accordance with the payment schedule set out in the Agreed Quotation or, if no date for payment is set out in the Agreed Quotation, within 7 days of receipt of the relevant invoice.

10.4         PTL may, in its sole discretion, apportion payments made by the Customer to any outstanding amounts owing by the Customer to PTL.

Late payment

10.5         If any sum due for payment by the Customer to PTL is not paid on the due date the Customer must pay to PTL:

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10.5.1     interest on that sum from the due date until the date of actual payment calculated on a day to day basis at 10% per annum; and

10.5.2     an amount equal to the costs incurred by PTL to recover payment of the sum from the Customer (including all advisors fees).

11           Delay

11.1         Any date and time stated for the design, manufacture, delivery of the Equipment or the Installation set out in the Agreed Quotation is an estimate only. PTL is not liable for any delay in the design, manufacture, delivery of the Equipment or the Installation and the Customer may not cancel the Agreed Quotation due to a delay.

12         Software

12.1         PTL grants to the Customer a non-exclusive licence to use the Software solely in connection with operating the Equipment or for any other purposes expressly permitted in the Agreed Quotation.

12.2         The Customer has no right (and will not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part without the written consent of PTL or as expressly permitted in the Agreed Quotation.

13           Intellectual property

13.1         The Customer has no Intellectual Property rights in the Equipment. The Customer acknowledges and agrees that PTL owns all Intellectual Property used in connection with the design, manufacture, installation and use of the Equipment, including all technical material, branding and documentation provided by PTL.

13.2         The Customer has no right to use technical material, branding and/or documentation associated with the Equipment and provided by PTL for any purpose other than directly in relation to the Customer’s lawful use and maintenance of the Equipment.

13.3         The Customer must notify PTL as soon as it becomes aware of any suspected, threatened or actual infringement of any of PTL’s intellectual property rights in, or unauthorised use of, PTL’s technical materials, branding, documentation or other Intellectual Property.

14          Default

14.1         If an Event of Default occurs, and without affecting any other right or remedy PTL may have:

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14.1.1    PTL may suspend or terminate its supply of Equipment and any Installation to the Customer and any of its other obligations under these Terms including cancelling all or any part of an Agreed Quotation with the Customer that remains unperformed.

14.1.2     The Customer must immediately pay all amounts owing by the Customer to PTL notwithstanding that the due date for payment has not arisen.

14.1.3     PTL may enforce any security interest granted to it by the Customer.

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14.2         PTL will not be liable to the Customer for any loss or damage the Customer suffers as a result of PTL exercising, or not exercising, any rights, powers or remedies available to it under clause 14.1.

15        Miscellaneous

Assignment

15.1        The Customer must not assignor transfer any of its rights or obligations under these Terms without the written consent of PTL.

Entire agreement

15.2        These Terms and the Agreed Quotation together contain everything the parties have agreed in relation to their subject matter. No party can rely on an earlier document or anything said or done by or on behalf of another party before these Terms and the Agreed Quotation were accepted by the Customer.

Force Majeure

15.3        PTL is not liable for a failure to perform, or a delay in performing, an obligation set out in these Terms if the failure or delay arose from a cause beyond the reasonable control of PTL. A cause beyond the reasonable control of PTL includes an act of God, strike, lockout, other industrial disturbance or labour difficulty, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, fire, earthquake, explosion, embargo, unavailability of any essential equipment or materials, unavoidable accident, lack of transportation, or anything done or not done by or to a person, except the party relying on force majeure.

Fair Trading Act1986

15.4        The parties each agree, for the purposes of section 5D of the Fair TradingAct 1986, that they are contracting out of section 9, 12(a) and 13 of the Fair Trading Act 1986 in respect of all matters covered by these Terms and the Agreed Quotation.

Goods and Services Tax (GST)

15.5        All amounts specified as payable under these Terms or the AgreedQuotation are exclusive of GST, unless stated to be otherwise.

Governing Law

15.6        These Terms including any disputes which arises under, or in connection with these Terms or any Agreed Quotation are to be governed by, and construed in accordance with, the laws of New Zealand, and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of New Zealand with respect to all matters arising under or relating to these Terms or any Agreed Quotation.

15.7        The United Nations Convention on Contracts for the International Sale of Equipment does not apply to these Terms.

Severability

15.8        Each provision of these Terms is severable. If any provision is or becomes illegal, unenforceable or invalid, it is to be treated as being severed from these Terms but the legality, validity or enforceability of the rest of these Terms will not be affected.

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