Terms and Conditions

1. GENERAL

1.1 All Services to be provided by Analytica Laboratories Ltd (ANALYTICA) will be governed by these Terms and Conditions (Terms) as varied by any special terms agreed to by ANALYTICA in writing (Special Terms).

1.2 No order for Services or any Special Terms relating to that order will be deemed to have been accepted by ANALYTICA unless ANALYTICA has confirmed acceptance of the order or the Special Terms in writing. In these Terms “in writing” means any confirmation by ANALYTICA in writing delivered personally or sent by post, facsimile or email.

1.3 These Terms will prevail over any other terms unless ANALYTICA specifically confirms acceptance of Special Terms in writing. Unless otherwise agreed to by ANALYTICA in writing any Special Terms shall apply only to that specific order.

2. SERVICES

2.1 In these Terms “Services” means any testing of products or other samples, that ANALYTICA agrees to provide to the Customer.

2.2 The submission of a sample to ANALYTICA for testing shall be deemed to be an acceptance by the Customer of these terms and conditions and agreement that these terms and conditions will apply to the Services provided.

2.3 ANALYTICA will provide the Services using reasonable care and skill, adopting such methods as ANALYTICA considers appropriate and in accordance with any Special Terms agreed to by ANALYTICA in writing.

2.4 The Services will be undertaken in the time period agreed to between ANALYTICA and the Customer and in the absence of agreement within a reasonable time. ANALYTICA will not be liable for any delay in providing the Services for any reason whatsoever.

2.5 Any reports issued by ANALYTICA relate exclusively to the samples provided by the Customer and do not relate to the lot from which samples have been obtained.

2.6 ANALYTICA may delegate the performance of part or all of the Services to a third party and the Customer authorises the release of all information necessary to the third party for the provision of the Services.

2.7 Any reports provided by ANALYTICA can only be relied upon by the party to whom the report is addressed and cannot be relied on by any other party. By providing the Services (and any reports) ANALYTICA will not be deemed to have assumed any obligation or liability that the Customer has to a third party.

3. OBLIGATIONS OF THE CUSTOMER

3.1 To enable ANALYTICA to provide the Services, the Customer will:

(a) ensure that adequate quantities of the samples and materials are provided in a safe condition;

(b) ensure that sufficient information instructions and documentation is provided;

(c) ensure that all necessary measures are taken to ensure safety in the performance of the Services including (without limitation) complying with all regulations relating to labelling, transportation of the samples and materials and treatment of hazardous materials;

(d) inform ANALYTICA in advance of any hazard or danger, actual or potential associated with any samples or testing;

(e) immediately inform ANALYTICA of any change that could affect the provision of the Services or the safety of its personnel.

4. FEES AND PAYMENT

4.1 The Customer will pay the fees agreed between the Customer and ANALYTICA for the Services. If the parties have not agreed on the fee payable for the Services then the Customer will pay ANALYTICA standard fees for the provision of the Services.

4.2 All fees are exclusive of GST and are payable in full by the Customer.

4.3 Unless otherwise agreed in writing all fees quoted are exclusive of all expenses such as travelling costs and any disbursements incurred on behalf of the Customer. These costs will be charged to the Customer where appropriate.

4.4 The fees will be paid by the 20th calendar day of the month following the issue of a tax invoice for the Services by ANALYTICA .

4.5 Fees will be paid without deduction, set off or counter claim and the Customer cannot retain or defer payment on account of any dispute with ANALYTICA .

4.6 If the Customer fails to pay any fees when due, ANALYTICA may:

(a) at its sole discretion, charge interest at the rate of 2% per month calculated on a daily basis for any fees or part of fees outstanding at the due date for payment;

(b) commence proceedings for the collection of unpaid fees and the Customer will be liable for all costs incurred by ANALYTICA (including all legal costs on a solicitor – client basis);

(c) withhold the release of any reports until all fees have been paid in full by the Customer;

(d) require that part or all of the fees be paid in advance of providing the Services;

(e) cease providing the Services to the Customer without notice.

4.7 In the event that any unforeseen circumstances or expenses arise in undertaking the Services, ANALYTICA will endeavour to inform the Customer of any additional costs incurred by ANALYTICA and unless the Customer advises ANALYTICA not to undertake any further works, the Customer will be responsible for the additional costs.

5. SAMPLES

5.1 All samples become the property of ANALYTICA to the extent necessary for the performance of the Services.

5.2 ANALYTICA will store samples for not less than 2 weeks following reporting and may thereafter destroy or otherwise dispose of the samples or return the samples to the Customer (at the Customer’s cost in all respects) immediately following analysis of the samples.

5.3 If the Customer requires samples to be stored for more than 4 weeks following testing the Customer will pay for storage of the samples and ANALYTICA will take commercially reasonable steps to store the samples for the agreed period in accordance with usual industry practice.

5.4 The Customer acknowledges and accepts that:

(a) it is solely responsible for the sampling process and warrants that the sample provided to ANALYTICA is representative of the lot from which the samples were drawn; and

(b) ANALYTICA expresses no opinion and accepts no liability in respect of the Customer’s production process or homogeneity of the sample.

6. TITLE TO PROPERTY AND REPORTS

6.1 ANALYTICA will retain title to any analysis, results, reports or software produced by ANALYTICA until all fees have been paid by the Customer.

6.2 ANALYTICA will be entitled to store, use, publish or otherwise deal with all analysis, results, report, or software so long as ANALYTICA does not identify the Customer, except where required by law.

6.3 All intellectual property rights created in the course of the provision of the Services by ANALYTICA pursuant to this agreement will vest in ANALYTICA immediately upon creation. If required by ANALYTICA , the Customer will execute all documents and do all acts and things require to enable the rights to vest in ANALYTICA .

6.4 Any report provided by ANALYTICA and the copyright contained therein shall be and remain the property of ANALYTICA and the Customer shall not alter or misrepresent the contents of such documents in any way. The Customer shall be entitled to make copies for its internal purposes only.

6.5 The Customer may only reproduce or publish any report by ANALYTICA in full without alteration. ANALYTICA ’s name, logo or service marks, or any other means of identification cannot be used in any publication by the Customer unless the Customer has obtained the prior written consent of ANALYTICA .

7. LIMITATION OF LIABILITY

7.1 The Customer acknowledges that the Services are provided using the then current state of technology and methods developed and generally applied by ANALYTICA and involve analysis, interpretations, consulting work and conclusions. ANALYTICA shall use commercially reasonable degree of care in providing the Services.

7.2 Reports are issued on the basis of information, documents and/or samples provided by, or on behalf of, the Customer and solely for the benefit of the Customer who is responsible for acting as it sees fit on the basis of such reports. Neither ANALYTICA nor any of its officers, employees, agents or subcontractors shall be liable to the Customer nor any third party for any actions taken or not taken on the basis of such reports nor for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to ANALYTICA .

7.3 ANALYTICA shall not be liable for any delayed, partial or total non-performance of the Services arising directly or indirectly from any event outside ANALYTICA ’s control including failure by the Customer to comply with any of its obligations hereunder.

7.4 The liability of ANALYTICA in respect of any claim for loss, damage or expense of any nature and howsoever arising shall in no circumstances exceed the lesser of an amount equal to 3 times the fee paid in respect of the Service which gives rise to such claim or $5,000.00.

7.5 ANALYTICA shall have no liability for any indirect or consequential loss including loss of contracts, loss of profits, loss of business or costs incurred from business interruption, loss of opportunity, loss of goodwill or damage to reputation and cost of product recall (including any losses suffered as a result of distribution of the Customer’s products subject of the Services prior to the report being released by ANALYTICA ). It shall further have no liability for any loss, damage or expenses arising from the claims of any third party (including, without limitation, product liability claims) that may be incurred by the Customer.

7.6 In the event of any claim, the Customer must give written notice to ANALYTICA within 60 days of discovery of the facts alleged to justify such claim and, in any case, ANALYTICA shall be discharged from all liability for all claims for loss, damage or expense unless proceedings are brought within 6 calendar months from:

(a) The date of performance by ANALYTICA of the Service which gives rise to the claim; or

(b) The date when the Service should have been completed in the event of any alleged non-performance.

7.7 Unless ANALYTICA explicitly agrees in writing, the Services shall be provided exclusively to the Customer and cannot be relied on by a third party. The Customer will indemnify and hold ANALYTICA harmless against any and all third party claims relating to the provision of the Services to the Customer.

7.8 The Customer shall be responsible for and indemnifies ANALYTICA against all costs, damages, liabilities, and injuries that may be caused to or incurred by ANALYTICA or its personnel or representatives including during transportation or in the laboratory by the Customer’s sample.

8. FORCE MAJEURE

8.1 If ANALYTICA is prevented from performing or completing the Services for any cause outside ANALYTICA ’s control, including, but not limited to, acts of god, pandemics, war, terrorist activity or industrial action; electricity outage; failure to obtain permits, licences or registrations; illness; death or resignation of personnel or failure by Customer to comply with any of its obligations the Customer will pay to ANALYTICA :

(a) The amount of all non-refundable expenses incurred by ANALYTICA ; and

(b) A proportion of the fee equal to the proportion of the Services actually carried out (provided that if the Services cannot be performed as a result of an act or omission on the part of the Customer, the Customer will pay the full fee and all expenses incurred by ANALYTICA ),

and ANALYTICA will be relieved of all responsibility whatsoever for the partial or total non-performance of the Services.

9. MISCELLANEOUS

9.1 If any one or more provisions of the Terms are found to be illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

9.2 Except as expressly provided in these Terms or the Special Terms, the Customer may not assign or transfer any of its rights without ANALYTICA s prior written consent.

9.3 The provisions of the Consumer Guarantees Act 1993 shall not apply to the Services provided by ANALYTICA to the Customer where the Services are acquired for the purposes of a business in terms of Section 2 and 43 of that Act.

9.4 The parties acknowledge that ANALYTICA provides the Services to the Customer as an independent contractor and that this agreement does not create any partnership, agency, employment or fiduciary relationship between ANALYTICA and the Customer.

9.5 Any failure by ANALYTICA to require the Customer to perform and of ANALYTICA ’s obligations under these Terms or Special Terms shall not constitute a waiver of its rights to require performance of that or any other obligation.

9.6 This agreement is exclusively governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.

9.7 The Terms may be modified in writing from time to time by ANALYTICA and the order for Services will be governed by the most recent version of these Terms that are in effect at the time ANALYTICA accepts the order.

9.8 Unless ANALYTICA specifically confirms acceptance in writing, ANALYTICA will not be bound by any terms and conditions set out in the Customer’s purchase order.

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