FIRETRACE TERMS AND CONDITIONS OF SALE

1.                  DEFINITIONS AND INTERPRETATIONS

1.1.            The following words and expressions have the following meanings in our terms and conditions unless the context requires otherwise:

1.1.1.            “Anti-Corruption Laws and Anti-Slavery Laws” refer to anti-bribery and anti-corruption laws including, but not limited to the following: local and national laws in the territories in which Customer and Supplier operate; the UK Bribery Act 2010; the US Foreign Corrupt Practices Act of 1977; the UN Convention Against Corruption; and any and all laws including statutes, statutory instruments, bylaws, orders, regulations, directives, treaties, decrees, decisions (as referred to in Article 288 of the Treaty on the Functioning of the European Union) (including any judgment, order or decision of any court, regulator or tribunal) anywhere in the world which relate to anti-slavery or servitude, anti-forced or compulsory labor and/or anti-human trafficking, including the Modern Slavery Act 2015.

1.1.2.            “Applicable Law(s)” means any: (a) law including any statute, statutory instrument, by‑law, order, ordinance, regulation, directive, treaty, decree of any governmental, statutory or regulatory body, whether local, state, federal or otherwise; (b) legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body, whether local, state, federal or otherwise; and/or (c) legally binding industry code of conduct or guideline, in each case in force from time to time which relates to the Contract and/or the Goods and/or the Services.

1.1.3.            “Authorized Firetrace Distributor” means an entity distributing Supplier products within the terms of a current distributor agreement with Supplier.

1.1.4.            “Business Day” means a day that is not a Saturday, Sunday or public or bank holiday in Arizona.

1.1.5.            “Cancellation Period” means the 24 hour period following the Order Acknowledgement during which the Customer may cancel or modify the Order without penalty or charge.

1.1.6.            “Commercial Invoice” means a document used in trade that contains information such as the parties involved in the transaction, the goods being transported, the country of manufacture and the harmonized system codes for those goods.

1.1.7.            “Contract” means the contract between the Supplier and the Customer for the supply of the Goods and Services formed in accordance with Section 2.

1.1.8.            “Certificate of Conformity” means the document that states the Supplier products meet the required Specifications.

1.1.9.            “Certificate of Origin” means the document widely used in international trade transactions which attests that the Supplier products listed therein have met the criteria to be originating in the exporting country.

1.1.10.        “Customer” means the person named as the customer in the Purchase Order document.

1.1.11.        “Cylinder Test Certificates” means a non-standard document required by some customers providing serial numbers and test results for cylinders that meet minimum standards.

1.1.12.        “Data Processing Agreement” means the Supplier’s then-current data processing agreement.

1.1.13.        “Data Protection Laws” means all Applicable Laws relating to data protection and privacy in force from time to time in those parts of the world in which Supplier or Customer operate and/or process personal data (either directly or via a third party), including, but not limited to, the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the GDPR and the Data Protection Act 2018, to the extent applicable.

1.1.14.        “Declaration of Conformity” means the mandatory document for Supplier products that fall within the scope of any applicable European Union Directive requiring certification that such products have been tested to make sure such products are fully operable and safe.

1.1.15.        “Deliver(y)” means the time at which delivery or making available (if that is the case depending on the method of delivery/Incoterm used) of the Goods is deemed to occur.

1.1.16.        “Economic Sanctions Laws” all Applicable Laws, regulations, codes and sanctions relating to import, export control and sanctions, including, but not limited to, all Applicable Laws administered by Office of Foreign Assets Control of the US Treasury Department (OFAC) and other similar Applicable Laws of the United States and any other applicable jurisdiction.

1.1.17.        “Fire Detection Tubing Test Certificate” means an export document required for shipments going to India and some Middle Eastern countries that demonstrates the tubing has been tested to the UL standard.

1.1.18.        “Force Majeure Event” refers to (a) acts of God; (b) war, invasion, hostilities (whether war is declared or not), insurrection, riot or other civil unrest, or act or threat of terrorism; (c) lightning, earthquake, fire, flood, storm, extreme weather condition, or explosion; (d) theft, malicious damage; (e) strike, lockout, labor stoppages or slowdowns, industrial disputes or disturbances (whether affecting the workforce of a party and/or any other person); (f) breakdown or failure of plant or machinery; (g) embargoes, blockades or other delay or inability to obtain adequate or suitable supplies or materials; (h) order or action by any governmental or regulatory authority or requirements of law; (i) change in Applicable Law; (j) any failure or default of a supplier or sub-contractor of the Supplier; (k) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, or inadequate transportation services (l) epidemic, pandemic, or contagion; (m) national or regional emergency; or (n) any other event or circumstance to the extent it is beyond the reasonable control of the Supplier.

1.1.19.        “Goods” means the goods set out in the Purchase Order, to the extent incorporated into an Order by an Order Acknowledgement; provided, however, that “Goods” shall not include any products sold or offered for sale by Supplier’s subsidiary Firetrace Aerospace LLC, which shall be subject to separate terms and conditions.

1.1.20.        “Group” means in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.

1.1.21.        “Insolvent” means, with respect to a party, that any of the following has occurred with respect to such party: (a) commencement a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect (b) the filing of a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law, (c) the appointment of a receiver, administrator, trustee, or provisional liquidator; (d) a notice of intention to appoint an administrator, receiver, trustee, or provisional liquidator; (e) the governing body of such party passes a resolution for its winding-up; (f) a winding up order has been made by a court in respect of such party; (g) the making of any general assignment for the benefit of creditors; (h) such party has ceased to carry on business; (i) the failure of such party generally to pay its debts as such debts become due (j) any steps or actions have been taken in connection with any of these procedures; or (k) such party is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction.

1.1.22.        “Intellectual Property Rights” refers to all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in know-how, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United States, the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions.

1.1.23.        “Lead Time” means the time between the initiation and completion of production of the Goods.

1.1.24.        “Liability” means liabilities, claims, demands or expenses (including, without limitation, legal or other professional fees) arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in the Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence or if caused by a deliberate and/or repudiatory breach by that party.

1.1.25.        “Non-Stock Products” means (a) any Supplier product not listed on Supplier’s standard commercial pricelist in effect at the time of Order Acknowledgement and (b) any custom kit assembled by Supplier for specific Customer applications which includes one or more components that are not listed on Supplier’s standard commercial pricelist.

1.1.26.        “Order” means the Customer’s Purchase Order for the supply of Goods and Services by the Supplier which has been accepted by Supplier pursuant to an Order Acknowledgement.

1.1.27.        “Order Acknowledgement” means the Supplier’s written acceptance of the Order.

1.1.28.        “Packing List” means the shipping document that details the Goods being transported.

1.1.29.        “Prices” means the prices for the Goods set out in the Quotation as those prices may be varied from time to time in accordance with Section 4.1.

1.1.30.        “Purchase Order” means the Customer’s order for the supply of goods and services by the Supplier.

1.1.31.        “Quotation” means an invitation to bargain; will be construed as information on which the Customer may base its Purchase Order to the Supplier.

1.1.32.        “Services” means the services set out in the Purchase Order.

1.1.33.        “Specification” means the written technical specification for the Goods.

1.1.34.        “Supplier” means Firetrace USA LLC dba Firetrace International.

1.1.35.        “T&Cs” means our standard terms and conditions of supply, as varied from time to time in accordance with Section 1.6.

1.1.36.        “Warranty Period” means the following:

(a)      If the following conditions are met, the Warranty Period shall be a period of 24 months from the date of shipment:

(i)         the Goods were purchased from Supplier or an Authorized Firetrace Distributor;

(ii)        the Goods were properly installed by an Authorized Firetrace Distributor in complete accordance with the written instructions contained in the instruction manuals, or other data supplied by Supplier; and

(iii)       Customer maintains a semi-annual maintenance service agreement with an Authorized Firetrace Distributor, commencing with the date the Goods were accepted by the Customer and placed into service and remain in effect for the duration of the warranty.

(b)      If the conditions set forth in subsection (a) above are not met, the Warranty Period shall be a period of 12 months from the date of shipment.

1.2.            In these T&Cs:

1.2.1.            all headings are for ease of reference only and will not affect the construction or interpretation of these T&Cs;

1.3.            references to “in writing” or “written” shall include e-mail;

1.4.            any reference to:

1.4.1.            the time of day is to the local time in Arizona.

1.4.2.            a day is a period of 24 hours running from midnight to midnight;

1.5.            any notice given under or in connection with the Order will be in the English language and:

1.5.1.      sent to the relevant party at the relevant party’s physical address by pre-paid certified or registered US mail or other reliable express delivery service with proof of delivery;

1.5.2.      hand delivered to the relevant party at the relevant party’s physical address; or

1.5.3.      sent by e-mail to the relevant party’s e-mail address with delivery receipt.

1.6.            No variation or amendment to these T&Cs will be effective unless made in writing and signed by an authorized representative on behalf of the Supplier.

2.                  CONTRACT FORMATION

2.1.            Quotations

2.1.1.            Any Quotation issued by the Supplier will be valid for 30 days from and including its issue date, unless expressly stated otherwise.

2.2.            Purchase Orders

2.2.1.            The Purchase Order constitutes an offer by the Customer to purchase Goods and Services from the Supplier on these T&Cs.

2.2.2.            Supplier is under no obligation to accept any Purchase Order.

2.2.3.            Each Purchase Order is subject to a minimum order value of USD $200.

2.3.            Orders

2.3.1.            A Contract for the supply of Goods and Services by Supplier to the Customer on these T&Cs will be formed when Supplier accepts the Purchase Order by issuing an Order Acknowledgement to the Customer.

2.3.2.            These T&Cs are the only terms and conditions on which the Supplier will supply Goods and Services to the Customer and will apply to the exclusion of all other terms and conditions including and terms and conditions the Customer may purport to apply under any Purchase Order or similar document, all of which Supplier expressly rejects, and any terms and conditions which may otherwise be implied by trade, customer, practice or course of dealing. Fulfillment of Customer’s Purchase Order does not constitute acceptance of any of Customer’s terms and conditions or serve to modify or amend these T&Cs.

2.3.3.            Supplier may, at any time, alter or suspend credit, refuse or delay shipment or cancel unfilled Contracts when the Customer becomes Insolvent or when the Customer has failed to timely make payment on any Purchase Order.

2.3.4.            Commencement of the performance or delivery of the Goods and Services will be deemed conclusive evidence of the Customer’s acceptance of these T&Cs if not expressly accepted elsewhere.

2.3.5.            Supplier may, at its discretion, levy an expedite charge of USD $100 for Orders under USD $1,000 and 10% for Orders of USD $1,000 or more on all Purchase Orders requiring rushed processing (sooner than the Lead Time set forth in the Quotation) or special handling. If applicable, the expediting charge will be presented to the Customer no later than the Order Acknowledgement.

2.4.            Cancellation of Orders

2.4.1.            The Customer shall have the ability to change or cancel any Contract within the Cancellation Period. Following the Cancellation Period the following apply:

2.4.1.1.                  The Customer shall pay a 25% restocking fee for any stocked or standard item.

2.4.1.2.                  Contracts for non-stock, custom or special-order items cannot be cancelled after the Cancellation Period and will be invoiced in accordance with the Contract.

2.4.1.3.                  Upon receipt of Customer’s request to cancel a Contract, the Supplier will make the Customer aware of the applicable fee prior to Contract cancellation. If Customer does not agree to the fee, the Contract shall remain in full force and effect.

2.5.            The Contract may be terminated by the non-breaching party if:

2.5.1.            A party commits a material breach or the Contract which cannot be remedied;

2.5.2.            Customer fails to make any payment within 10 days of when due; or

2.5.3.            A party commits a material breach of the Contract which can be remedied but fails to remedy that breach within 30 days of a written notice setting out the breach and requiring it to be remedied.

2.6.            Following the expiration or termination of the Contract:

2.6.1.            Sections 1, 2.6, 4, 5.6, 7, 8, 9, 12, 13, 14, 15 and 16 will remain in force, as well as any other provisions that, in order to give proper effect to its intent, should survive such expiration; and

2.6.2.            all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including any damages for breach of contract or right to indemnity) and Liabilities which have accrued prior to the date of expiration or termination.

3.                  THE GOODS AND SERVICES

3.1.            The Supplier will obtain the Customer’s prior approval in order to:

3.1.1.            Vary the Specification of Goods and/or their packaging if the change would have a material impact; and/or

3.1.2.            Substitute any materials or parts which are used in Goods and are unavailable for any reason with alternative materials or parts, unless the variation or substitution is minimal in nature or necessary to comply with Applicable Law, in which case the Supplier will use reasonable efforts to give the Customer prior written notice of any such variation or substitution.

3.2.            Except for the Specification, all samples, drawings, descriptive and illustrative matter and advertising issued or published by the Supplier (or the manufacturer of the Goods) are for the sole purpose of giving an approximate idea of the relevant Goods.

3.3.            The Customer shall be solely responsible for removal, collection, recovery, and recycling of the Goods once they become waste and/or non-functional, and for any replaced Goods or parts of the Goods provided to the Customer.

3.4.            Supplier shall provide a Packing List and Commercial Invoice with all Orders as well as a Declaration of Conformity and/or a Certificate of Origin, to the extent required by Applicable Law. If requested in Customer’s Purchase Order or by notice to Supplier prior to issuance of the Order Acknowledgement, Supplier shall provide one or more of the following documents: Certificate of Conformity, Cylinder Test Certificates, and/or Fire Detection Tubing Test Certificates, each of which will be billed at $50 per certificate.

3.5.            All Supplier systems are required to use Supplier components, including those connections made to Supplier tubing.

3.6.            Failure to exclusively use Supplier components will void the Limited Warranty with respect to the Goods and release Supplier from any and all Liability with respect to the performance of the Goods.

3.7.            Regarding the handling and/or transportation of charged cylinders:

3.7.1.            the Customer agrees it must never remove or transport a pressurized cylinder (regardless of high or low pressure) from a bracket or other secure position without safety port plugs and/or safety caps in place; and

3.7.2.            The Customer is responsible for ensuring that all relevant parties are completely knowledgeable and trained on the safety procedures for handling and transporting pressurized containers.

3.8.            The Customer acknowledges that it is solely responsible for engineering systems so that any change in the status of the system such as activation will be immediately made known to those who can take additional positive fire protection action. This may include, but is not limited to:

3.8.1.            connection of the Supplier system into the building alarm system;

3.8.2.            connection of the Supplier system to a local annunciation system;

3.8.3.            operation of a local alarm; or

3.8.4.            connection to a local visual device.

In addition, Customer acknowledges that Customer is solely responsible for consulting with applicable governmental or regulatory authorities to ensure that such engineering systems comply with all Applicable Laws.

3.9.            The advice provided in this Section is for the Customer’s safety and responsibility for implementing these measures rests solely with the Customer.

4.                  PRICE AND PAYMENT

4.1.            Prices quoted by the Supplier are in United States Dollars (USD). The Price applicable to an Order shall be the Supplier’s then-current price in effect at the time of shipment of the Goods.

4.2.            Unless expressly stated, Quotations are exclusive of packaging, insurance, freight and delivery costs and such expenses are due and payable by the Customer in addition to the quoted Price if applicable.

4.3.            Any sum payable under the Contract is exclusive of sales tax (and any other similar or equivalent taxes, duties, fees and levies imposed by any governmental or regulatory authority). Customer shall be responsible for all such taxes, duties, fees and levies in addition to the Price.

4.4.            Unless notified by the Supplier to the Customer in the Order Acknowledgement (for example, if prepayment is required), Supplier will invoice the Customer for the Price of the Goods and Services plus any packaging, insurance, carriage and delivery upon shipment.

4.5.            Unless expressly otherwise stated in the Order Acknowledgement, each invoice will be payable within 30 days of the date of the Supplier’s invoice. Notwithstanding the foregoing, all Purchase Orders are subject to the approval of Supplier’s credit department. Supplier may at any time refuse to make shipment or delivery if Customer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with Supplier’s credit policies. Supplier policies or practices may be changed at any time. Supplier may require payment in full or other security in advance. Without limiting the generality of the foregoing, if Customer becomes Insolvent, or fails to pay Supplier’s invoices as they become due, Supplier reserves the right to: (a) cancel all or any part of a Contract; (b) modify the terms of payment prior to shipment; (c) require “Cash in Advance” terms; or (d) delay or cancel any shipment of Goods.

4.6.            The Supplier may, at their discretion and with the agreement of the Customer, offer the Customer extended payment terms for an additional charge.

4.7.            All payments will be made in USD in available cleared funds by electronic transfer to the bank account advised by Supplier or by domestic check payment.

4.8.            If any amount payable under the Contract is not paid on or before the due date, Supplier will be entitled to charge the Customer interest equal to the lesser of one percent (1%) per month or the maximum allowable by law until the date of payment. Customer shall also reimburse Supplier for any and all costs incurred in collecting any late payment, including, without limitation, reasonable attorneys’ fees.

4.9.            If the Customer fails to make any payment due to the Supplier under the Contract or any other contract between the Customer and the Supplier within 10 Business Days after the due date, the Supplier will be entitled to withhold further deliveries of Goods and to suspend or terminate provision of the Services until that payment has been made (whether the Goods/Services under the Contract or whether the Goods/Services under the delinquent contract or any other contract) and shall not be held responsible for any resulting Liabilities of any kind.

4.10.        Unless otherwise expressly provided in these T&Cs or required by law, all payments made by the Customer to the Supplier under the Contract will be made in full and without any set-off or any deduction or withholding including any counterclaim.

5.                  DELIVERY

5.1.            Shipping and Delivery dates are estimates only based on current conditions and Supplier’s ability to secure labor, materials and parts. Supplier will make reasonable efforts to Deliver the Goods on the estimated date set out in the Order acknowledgement, but such date is not guaranteed.

5.2.            There shall be no penalty for any delay without Supplier’s express written agreement.

5.3.            Unless otherwise specified in the Order Acknowledgement, the Goods will be delivered Carriage Paid To (CPT), as defined in the then-current Intercoms, at the named place of delivery specified in the Order Acknowledgement.

5.4.            In the event the Order payment involves a letter of credit, Ex-Works (as defined in Intercoms 2020) or other terms wherein the obligation to export lies with the Customer will not be accepted.

5.5.            Delivery of the Goods will be deemed to occur when the Supplier completes its delivery obligations under that Incoterm or as otherwise set out in the Order Acknowledgement. In the event of a conflict between the Order Acknowledgement and the then-current Incoterm, the Order Acknowledgement takes precedence.

5.6.            If Delivery occurs but the Customer fails to accept delivery, or to collect, the Goods, the Supplier will be entitled to:

5.6.1.            store or arrange for storage of the Goods at the Customer’s expense until the Customer accepts delivery of them or they are disposed of and to take any action to attempt to re-deliver the Goods; and

5.6.2.            charge the Customer for all costs and expenses under Section 5.6.1 such that two calendar weeks after agreed to delivery date, Supplier will begin charging USD $75 per pallet or 0.5% of the Order value per week or partial week, whichever is greater.

5.7.            Customer has 90 days from Supplier’s committed ship date to accept delivery of finished Goods. After 90 days, Supplier shall invoice Customer for the entire Order amount. Storage fees will continue to accrue until Goods are picked up by Customer.

5.8.            Any change to packaging or mode of freight requested by the Customer after the Goods have been fully assembled and moved to the shipping lane will incur a change fee of USD $500 per pallet, not to exceed USD $2,500 per Purchase Order. Any change to the ‘ship to’ location will incur a USD $50 fee per address change. Both fees will be invoiced with the Order and due with the corresponding remittance.

6.                  INSPECTION AND ACCEPTANCE; LIMITED RETURNS

6.1.            The Customer will inspect the Goods on Delivery and will, within 10 Business Days from and including the date of Delivery, give written notice to the Supplier of any shortages in the delivered Goods or any breach of the Limited Warranty in relation to those Goods (collectively, “Nonconforming Goods”).

6.1.1.            If the Customer does not give notice to the Supplier under Section 6.1 in respect of the Goods, the Customer will be deemed to have accepted the Goods on expiration of the 10 Business Day period from and including the date of Delivery and waived any claims with respect to shortages.

6.1.2.            If there is any loss or damage to any Goods in transit, such loss or damage is the sole responsibility of the carrier.

6.1.3.            If Customer timely notifies Supplier of any Nonconforming Goods, Supplier shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods (including supplying any shortage), or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Supplier in accordance with Supplier’s instructions. If Supplier exercises its option to replace Nonconforming Goods, Supplier shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the delivery point set forth in the Order Acknowledgement. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for Nonconforming Goods.

6.2.            Except as provided under this Section 6, all sales of Goods to Customer are made on a one-way basis and, once Goods are shipped, Customer has no right to return conforming Goods purchased under a Contract to Supplier except as follows:

6.2.1.            Goods which are Non-Stock Products may not be returned for any reason. Additionally, individual components of Goods comprised of custom kits may not be returned.

6.2.2.            Goods other than Non-Stock Products may be returned within 30 days following receipt of such Goods by the Customer subject to the following conditions:

6.2.2.1.                  prior to return, the Customer must secure a Return Material Authorization (“RMA”) number;

6.2.2.2.                  RMA must be completed within 15 days of receiving the RMA number, with evidence of shipping provided within 30 days;

6.2.2.3.                  Goods returned for credit must be in like new condition, such that it can be restocked and resold, and shall be subject to a 25% restocking charge;

6.2.2.4.                  Customer is responsible for freight for return shipment; and

6.2.2.5.                  RMA replacement orders will only be expedited upon request from the Customer and at Customer’s expense.

7.                  INTELLECTUAL PROPERTY

7.1.            Nothing in the Contract will transfer to the Customer or grant to the Customer any license or other right to use any of the Supplier’s Intellectual Property Rights, except that the Customer may use the Supplier’s Intellectual Property Rights in the Goods and Services solely to the extent necessary to resell or use the Goods and Services for the purpose for which they were supplied.

7.2.            If the Customer’s drawings or specifications infringe upon any Intellectual Property Rights of a third party, Supplier will in no way be responsible for any claims or damages resulting from such infringement.

8.                  WARRANTY

8.1.            For the applicable Warranty Period, Supplier warrants the Goods will be free of defects in materials and workmanship (the “Limited Warranty”), subject to the conditions and obligations set forth in Section 8, Section 10 below, and the other provisions of these T&Cs.

8.2.            If, at any time during the Warranty Period, the Customer becomes aware of a breach of the Limited Warranty, the Customer will:

8.2.1.            give written notice of the breach to the Supplier, such notice to be given within 5 days after the Customer becomes aware of the breach and prior to expiration of the applicable Warranty Period;

8.2.2.            at the Supplier’s option, either return to the Supplier (at the Customer’s cost) the relevant Goods or permit the Supplier or its agent or subcontractor to inspect it at the Customer’s premises; and

8.2.3.            provide to the Supplier all information and assistance which the Supplier may reasonably require to investigate the alleged breach.

8.3.            If Supplier's inspection and testing reveals, to Supplier's satisfaction, that such Goods do not conform with the Limited Warranty, Supplier shall in its sole discretion, and at its expense (subject to Customer's compliance with this Section 8), either repair or replace such Goods. In such case, Supplier shall, after receiving Customer's shipment of such Goods, ship to Customer, at Supplier's expense and risk of loss, the repaired or replacement Goods to a location designated by Supplier. THIS SECTION 8 SETS FORTH THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SUPPLIER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.

8.4.            The Supplier will not have any Liability for a breach of the warranty in Section 8.1 if:

8.4.1.            the Goods have been modified or altered following shipment, unless by express written direction or consent from Supplier;

8.4.2.            the Customer does not comply with its obligations in Section 8.2 in respect of the breach;

8.4.3.            notice of the breach should have been but was not given to the Supplier in connection with inspection under Section 6.1;

8.4.4.            the relevant defect was caused by damage in transit after shipment;

8.4.5.            the relevant defect was caused by ordinary wear and tear;

8.4.6.            alterations and/or modifications were made to the Goods other than by Supplier or an Authorized Firetrace Distributor;

8.4.7.            the relevant defect was caused or exacerbated by improper use, handling, alteration, installation, repair, maintenance, service, storage or failure to comply with instructions provided by the Supplier or the manufacturer;

8.4.8.            the relevant defect was caused by the negligence (or more culpable conduct) of Customer or a third party; and/or

8.4.9.            the Customer makes further use of the relevant Goods after discovering the relevant breach.

8.5.            Supplier acts solely as the supplier of the Goods and bears no responsibility for installation and/or service work carried out by a third party, regardless of referral.

8.6.            In the event that any Goods are repaired or replaced under this Section 8, the balance of the original Warranty Period shall apply to such repaired or replaced Goods.

8.7.            THE LIMITED WARRANTY IS STRICTLY LIMITED TO ITS TERMS. EXCEPT FOR THE LIMITED WARRANTY, SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE LIMITED WARRANTY IS MADE SOLELY TO CUSTOMER AND IS NOT TRANSFERRABLE TO ANY OTHER PERSON OR ENTITY.

9.                  EXCLUSIONS AND LIMITATIONS OF LIABILITY

9.1.            THE SUPPLIER’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED A SUM THAT IS EQUAL TO ONE HUNDRED PERCENT (100%) OF THE PRICE ACTUALLY PAID BY CUSTOMER TO SUPPLIER UNDER SUCH CONTRACT DURING THE 6 MONTH PERIOD PRECEDING THE ACT GIVING RISE TO THE CLAIM.

9.2.            IN NO EVENT SHALL SUPPLIER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES ARISING OUT OF OR RELATING TO ANY CONTRACT OR THE PURCHASE AND/OR USE OF THE GOODS, INCLUDING BUT NOT LIMITED TO:

9.2.1.            LOSS OF USE OR PRODUCTION;

9.2.2.            LOST PROFITS OR INCOME;

9.2.3.            DIMINUTION IN VALUE;

9.2.4.            REPLACEMENT OF DISCHARGED SUPPRESSION AGENT;

9.2.5.            REPUTATIONAL DAMAGE OR LOSS OF GOODWILL;

9.2.6.            LIABILITY TO THIRD PARTIES;

9.2.7.            HARM TO PROPERTY OTHER THAN THE SUPPLIER’S GOODS; OR

9.2.8.            LOST MANAGEMENT, OPERATIONAL OR OTHER TIME.

9.3.            THE FOREGOING LIMITATIONS IN THIS SECTION 9 SHALL APPLY REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

10.              DESIGN AND USE CONSIDERATIONS

10.1.        The Goods have been designed and engineered to provide protection for a limited duration of time against fire, both existing and imminent. Notwithstanding the foregoing, the duration of such protection is affected by many and varied factors, making the effectiveness of the Goods in providing suppression for a particular time period unpredictable. Accordingly, Supplier makes no warranty with respect to the duration of the protection against fire from any Goods, and the Limited Warranty expressly excludes any such representations or warranties.

10.2.        Without limiting the generality of the foregoing, Customer expressly acknowledges and agrees as follows:

10.2.1.        Supplier shall have no obligation with respect to any Goods (or their component parts) which are not: (i) activated in accordance with the applicable manual; (ii) used in their normal, expected environment; or (iii) properly installed, maintained or operated in strict accordance with the written or digital manuals published by Supplier with respect to the Goods.

10.2.2.        The Goods may comprise different types of fire suppression systems and the duration of the protection against fires is dependent upon different factors dependent on the type of fire suppression system being used.

(a)               For total flooding type fire suppression systems sufficient concentration of agent must be maintained in the protected hazard area for a determined period of time. The duration will be shortened by conditions or circumstances that may ventilate, leak, or cause agent concentration dilution within the protected hazard area, thereby causing insufficient concentration of agent needed to suppress or prevent the existence or re-ignition of combustion or fire.

(b)               For local application type fire suppression systems the duration of protection is dependent upon the amount of fire suppressant contained within the fire suppression system as well as nozzle type selection, quantity, and positioning relative to the fire hazard.

10.2.3.        All hazard areas have different rates of airflow, ventilation, leakage, or agent dilution that, in many cases, may be impossible to predict or determine: air vents, air conditioning systems, gaps and cracks in the enclosure, windows, cable and pipe penetrations, etc., all may impact the agent concentration and the duration of the protection against fire.

10.2.4.        Unforeseen changes in the configuration of a hazard area such as removal of a wall, an explosion or fire external to the protected space, or changes in the enclosure’s configuration, etc., can influence the duration of the fire protection.

10.2.5.        The effectiveness of an agent, such as FK-5-1-12, HFC-227ea, ABC, Purple K, or Black Widow Dry Chemicals, Class D Powders and/or CO₂, as a fire suppressant is directly related to the concentration or application rate of the agent required to suppress fires igniting various substances. Not all substances require the same agent concentration for a fire to be suppressed. It is the Customer’s responsibility to properly define the fire hazard class(s) of the substances being protected and choose the Goods appropriate for such classes.

10.2.6.        The effectiveness of the Goods is dependent upon the timely discharge of the Goods comprising the fire suppression system into or onto the protected area. If unforeseen circumstances such as, but not limited to, explosion, failure of the detection system to activate the suppression system, failure to manually activate the system, etc., occur, they can prevent the system discharge from being accomplished in a timely manner, and the fire may become deep seated or out of control and completely destroy the hazard area.

10.2.7.        Even if the Goods are completely effective in suppressing a fire, failure to remove the ignition source of the fire could result in a re-ignition of the fire. When possible, the source of the fire should immediately be eliminated to prevent re-ignition. Protection against re-ignition only exists when a sufficient concentration of agent remains in the hazard area.

10.2.8.        The judgment of operating personnel as to when to activate the Goods in an emergency affects the protection provided by the Goods.

10.3.        In the event of fire, evacuation of personnel from the protected area must be accomplished without delay.

10.4.        Customer acknowledges that the factors listed in this Section 10 are provided as advice for the safety of Customer and that Customer is solely responsible for implementing the procedures described herein.

11.              FORCE MAJEURE

11.1.        The Supplier will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under the Contract to the extent that such failure or delay is due to a Force Majeure Event.

11.2.        If a Force Majeure Event occurs, the Supplier will as soon as reasonably practicable after becoming aware of the Force Majeure Event give written notice to the Customer that the Force Majeure Event has occurred.

11.3.        If the Supplier is affected by a Force Majeure Event, the Customer will continue to pay the Supplier’s invoices in accordance with Section 4 in respect of any Goods and Services which the Supplier has supplied or continues to supply notwithstanding the occurrence of the Force Majeure Event.

11.4.        If a Force Majeure Event which gives rise to relief from Liability under Section 11.1 continues for a period of more than 90 days, then Supplier will be entitled to terminate the Contract and any other contract between Supplier and Customer immediately by giving written notice to that effect to Customer. Upon such termination, Customer shall be entitled to a refund for any Goods not Delivered and any Services not provided under the terminated Contract.

12.              CONFIDENTIALITY

12.1.        Neither party shall at any time disclose to any person any confidential information concerning the business, affairs, customers, or suppliers of the other party or of any member of the Group to which the other party belongs (“Confidential Information”) except as permitted below in Section 12.2.

12.2.        Each party may disclose the other party’s Confidential Information:

12.2.1.        To is employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure those employees, officers, representatives and advisors to whom it discloses the other party’s Confidential Information comply with this Section 12; and

12.2.2.        As may be required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3.        Neither party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

12.4.        Within 30 days after the date of expiration or termination of the Contract, on request by the other party, each party will return to the other party or destroy the other party’s Confidential Information in its possession.

13.              DATA PROTECTION

13.1.        Each party will comply with the Data Protection Laws applicable to it.

13.2.        In the event that the supply of Goods and/or Services requires the Supplier to process personal data on the Customer’s behalf as data processor, this will be set out in the Order, the Data Processing Agreement will be applicable to the Contract and the parties will comply with the Data Processing Agreement.

14.              ANTI-SLAVERY, ANTI-CORRUPTION AND ECONOMIC SANCTIONS

14.1.        Customer will comply with all applicable Anti-Corruption Laws and Anti-Slavery Laws.

14.2.        Customer shall ensure that the Goods and/or Services will not be received, imported, exported, re-exported, transferred, sold or used EXCEPT in compliance with all Anti-Corruption Laws and Anti-Slavery Laws.

14.3.        Customer will comply with all Economic Sanctions Laws. Customer shall not:

14.3.1.        directly or indirectly export, re-export, transship, or otherwise deliver the Goods or any portion of the Goods to any person or country designated in such Economic Sanctions Laws as an embargoed or sanctioned target, or

14.3.2.        broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.

14.4.        Without limiting its other obligations under the T&Cs, Customer will:

14.4.1.        abide by the Supplier’s Group code of conduct found at www.halma.com;

14.4.2.        have in place its own policies and procedures to ensure compliance with this Section 14;

14.4.3.        ensure that all parties with which it is associated or who are providing goods and services in connection with a Contract (including subcontractors, agents, consultants and other intermediaries) are aware of and comply with the requirements of this Section 14;

14.4.4.        conduct proper and adequate checks and screening on any parties with which it is associated or who are providing goods or services in connection with the Goods and/or Services;

14.4.5.        agree not to engage in business practices that are illegal under any Anti-Corruption Laws and Anti-Slavery Laws.

14.5.        If bribery or corruption is suspected, Supplier has the right to terminate any relationship with immediate effect, regardless of outstanding deliverables between parties.

14.6.        Customer hereby indemnifies and holds Supplier harmless from any Liability arising from or relating to noncompliance with the provisions of this Section 14 by Customer.

14.7.        If Customer breaches Section 14, Supplier will have the right to terminate any and all Orders and Contracts with immediate effect on serving written notice to Customer and Supplier will have no Liability to Customer in respect of such termination including for payment of damages or any other form of compensation.

15.              INDEMNIFICATION

15.1.        Customer shall indemnify, defend and hold harmless Supplier and its officers, directors, employees, agents, affiliates, successors and assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these T&Cs and the cost of pursuing any insurance providers, arising out of or resulting from any claim of a third party alleging (i) breach of any representation, warranty or covenant under these T&Cs or any Contract, (ii) any negligent, grossly negligent or willful misconduct or more culpable act or omission of Customer or any Customer Party, (iii) any failure of Customer or any Customer Party to comply with any Applicable Laws, and/or (iv) any breach of Intellectual Property Rights of a third party. “Customer Party” means Customer’s agents, employees and subcontractors. This Section 15 shall survive the expiration or termination of any Contract.

16.              MISCELLANEOUS

16.1.        These T&Cs are made under, and for all purposes shall be construed and enforced in accordance with and governed by, the laws of the State of Arizona. All actions arising hereunder shall be instituted in Maricopa County, Arizona, and Customer hereby consents to the jurisdiction of the state and federal courts with jurisdiction over Maricopa County, Arizona, provided that Supplier may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.

16.2.        A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving such waiver and only in the circumstances and for the purpose for which such waiver was given and will not constitute a waiver of any other right, remedy, breach or default.

16.3.        If any term of the Contract is found by any court or governmental or regulatory authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.

16.4.        Each party agrees that it is an independent contractor. Nothing in the Contract and no action taken by the parties in connection with it or each other will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.

16.5.        The Contract benefits solely the Supplier and Customer. Nothing in a Contract or these T&Cs, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of a Contract.

16.6.        The Supplier’s rights and remedies set out in these T&Cs are in addition to and not exclusive of any rights and remedies provided by law.

The Customer will not be entitled to assign, transfer, charge, hold in trust for any person or deal in any other manner with any of its rights under the Contract without the Supplier’s prior written consent. A change of control shall be deemed an assignment for purposes of the foregoing.