FRP LIMITED

TERMS AND CONDITIONS OF TRADE

These Terms and Conditions of Trade are issued by FRP Limited, New Zealand company number 5715809, NZBN 9429041781814, referred to in these Terms as “FRP”.

1. Definitions

1.1 In these Terms, unless the context requires otherwise:

Business Day means a day other than a Saturday, Sunday or public holiday in Tauranga, New Zealand.

Consequential Loss means any indirect, special, incidental or consequential loss, and includes loss of profit, revenue, production, contract, opportunity, use, data, anticipated savings, business, reputation or goodwill.

Contract means the agreement between FRP and the Customer for the supply of Goods or Services, comprising the documents identified in clause 2.

Customer means the person, company, partnership, trust, public authority or other entity acquiring or agreeing to acquire Goods or Services from FRP.

Customer Information means all information, dimensions, drawings, specifications, designs, quantities, site information, performance requirements, instructions and other material supplied by or on behalf of the Customer.

Deliverables means all Goods, Services, drawings, documents, reports, records and other items FRP is expressly required to provide under the Contract.

FRP means FRP Limited, New Zealand company number 5715809, NZBN 9429041781814, and includes its successors and permitted assigns.

Goods means all goods, products, components, materials, equipment and other items supplied or agreed to be supplied by FRP.

Intellectual Property Rights means all copyright, design rights, patents, trade marks, know-how, confidential information and other intellectual property rights, whether registered or unregistered.

Order means an order or request by the Customer for Goods or Services.

Price means the price payable for the Goods or Services, as adjusted in accordance with the Contract.

Quote means a quotation, proposal, estimate or tender issued by FRP.

Services means all services performed or agreed to be performed by FRP, including drafting, design assistance, fabrication, installation, consultancy, inspection, testing and technical support.

Site means any location at which Goods are delivered or Services are performed.

Terms means these Terms and Conditions of Trade.

Variation means any change to the Goods, Services, Deliverables, scope, specifications, quantities, programme, delivery requirements or other requirements of the Contract.

1.2 References to legislation include amendments, replacements and regulations made under that legislation.

1.3 Headings are for convenience only and do not affect interpretation.

1.4 A reference to “including” does not limit the words preceding it.

1.5 An obligation not to do something includes an obligation not to permit it to be done.

2. Application and Contract Documents

2.1 These Terms apply to every Quote, Order and supply of Goods or Services by FRP unless FRP expressly agrees otherwise in writing.

2.2 The Contract comprises the following documents in descending order of priority:

(a) any written contract or special conditions signed by a director of FRP;

(b) FRP’s written order acknowledgement or acceptance;

(d) approved Variations;

(e) drawings and specifications expressly incorporated into the Contract;

(f) these Terms; and

(g) the Customer’s Order, solely to identify the Goods, Services, quantities, delivery details and other commercial information accepted by FRP.

2.3 If there is an inconsistency between Contract documents, the document with higher priority under clause 2.2 prevails.

2.4 Any terms contained in or referenced by the Customer’s Order, acceptance, tender document, portal, account documentation, correspondence or other document are expressly rejected and have no effect unless:

(a) the particular term is expressly identified;

(b) FRP expressly agrees to it in writing; and

2.5 FRP’s acknowledgement of an Order, commencement of work, supply, delivery, invoicing, silence, acceptance of payment or access to the Customer’s systems does not constitute acceptance of the Customer’s terms.

2.6 A reference in FRP’s documents to a Customer document does not incorporate any terms contained in that document unless FRP expressly says otherwise.

2.7 The version of these Terms applying to a Contract is the version provided, linked or published by FRP when the relevant Order is accepted.

2.8 FRP may amend these Terms for future Contracts or future Orders under an ongoing supply arrangement by giving reasonable notice, including by publication on its website.

2.9 An amendment to these Terms does not retrospectively alter an existing fixed Contract unless agreed in writing.

3. Quotes and Contract Formation

3.1 Unless stated otherwise, a Quote:

(a) is valid for 30 days from its date;

(b) is subject to withdrawal or amendment before acceptance;

(d) is subject to credit approval, availability and production capacity; and

(e) excludes work or supply not expressly stated.

3.2 A Quote is an invitation for the Customer to place an Order and does not oblige FRP to accept any Order.

3.3 A Contract is formed only when FRP:

(a) accepts the Order in writing;

(b) issues an order acknowledgement;

(d) otherwise confirms acceptance through an authorised representative.

3.4 FRP may accept or reject an Order at its discretion.

3.5 An Order accepted by FRP may not be cancelled, suspended or changed except with FRP’s written agreement.

3.6 Any person placing an Order on behalf of the Customer warrants that they have authority to bind the Customer.

3.7 Where an Order is placed by an agent, contractor, employee or representative, that person and the Customer are jointly responsible for ensuring that the Order is authorised and accurate.

4. Scope of Supply

4.1 FRP will supply the Goods and Services expressly identified in the Contract.

4.2 Anything not expressly included is excluded.

4.3 Unless expressly stated otherwise, FRP is not responsible for:

(a) engineering design or certification;

(b) structural adequacy of supporting structures;

(d) producer statements;

(e) survey or verification of the Site;

(f) removal or disposal of existing products or structures;

(g) electrical, civil, concrete, drainage, roofing or waterproofing work;

(h) cranage, scaffolding, traffic management or access equipment;

(i) protection or relocation of utilities and concealed services;

(j) work by other contractors;

(k) painting, touch-up work or surface remediation following installation;

(l) project management beyond FRP’s expressly stated scope; or

(m) compliance responsibilities allocated to the Customer, its designer, engineer, principal or contractor.

4.4 FRP may use employees, agents and subcontractors to perform the Contract.

4.5 FRP may make minor changes to materials, components or manufacturing methods where the change does not materially reduce the agreed function or performance of the Goods.

4.6 Product descriptions, photographs, samples and marketing information are illustrative unless expressly incorporated as binding specifications.

4.7 Minor variations in dimensions, colour, shade, texture, resin finish, surface appearance or manufacture that are normal for the relevant product or process do not constitute defects.

5. Customer Information and Reliance

5.1 The Customer must provide complete, accurate and timely Customer Information.

5.2 FRP may rely on Customer Information without independently verifying it unless the Contract expressly requires FRP to perform verification.

5.3 The Customer warrants that:

(a) the Customer Information is complete and accurate;

(b) FRP may lawfully use the Customer Information;

(d) the Customer has disclosed all requirements material to the Goods or Services.

5.4 FRP is not liable for any error, defect, non-compliance, delay or cost caused or contributed to by inaccurate, incomplete, inconsistent or late Customer Information.

5.5 If FRP identifies an apparent ambiguity or inconsistency, FRP may seek clarification, but is not responsible for failing to identify a matter that FRP was not expressly engaged to verify.

5.6 The Customer must promptly answer requests for information, approve drawings and make decisions necessary for FRP to proceed.

5.7 Any delivery or completion date is extended by:

(a) the period of Customer-caused delay;

(b) any resulting disruption to FRP’s production or delivery programme; and

5.8 FRP may charge all reasonable additional costs resulting from inaccurate or late Customer Information, delayed approvals or other Customer-caused delay.

6. Drawings, Design and Approvals

6.1 Unless FRP expressly agrees to provide engineering design, drawings prepared by FRP are shop, fabrication, layout, concept or coordination drawings only.

6.2 Shop or fabrication drawings do not constitute:

(a) engineering design;

(b) structural certification;

(d) confirmation of compliance with matters outside FRP’s scope; or

(e) acceptance of design responsibility allocated to another person.

6.3 The Customer must review and approve drawings within the timeframe requested by FRP.

6.4 Customer approval confirms that the Customer has checked and accepts:

(a) dimensions and quantities;

(b) layout and orientation;

(d) access and clearance requirements;

(e) appearance and project-specific requirements; and

(f) consistency with the Customer Information.

6.5 FRP remains responsible for manufacturing the Goods substantially in accordance with the approved drawings, subject to permitted manufacturing tolerances.

6.6 FRP is not responsible for project dimensions or interfaces that the Customer approved or supplied unless FRP expressly undertook to verify them.

6.7 Manufacture may commence once drawings are approved.

6.8 Any change requested after approval is a Variation and may affect the Price and delivery date.

6.9 If the Customer fails to respond within a reasonable period, FRP may suspend work, revise the programme and charge resulting costs.

6.10 FRP’s review of a Customer or third-party design does not make FRP responsible for that design.

6.11 Where FRP expressly provides professional design or engineering Services, the scope, standard of care, deliverables and any specific liability arrangements must be identified in the Quote or a separate written agreement.

7. Price and Taxes

7.1 The Customer must pay the Price stated in the Contract.

7.2 Unless expressly stated otherwise, all prices are:

(a) in New Zealand dollars;

(b) exclusive of GST;

(d) exclusive of duties, levies, permits and government charges; and

(e) based on delivery and performance during normal business hours.

7.3 GST and any other applicable taxes or government charges are payable by the Customer in addition to the Price.

7.4 Estimates, budgets and indicative prices are not fixed prices.

7.5 Where no fixed price has been agreed, FRP may charge:

(a) its current rates;

(b) the cost of materials and third-party services;

(d) a reasonable margin.

7.6 FRP may adjust the Price before accepting an Order.

7.7 After acceptance, FRP may adjust the Price where costs increase because of:

(a) a Variation;

(b) inaccurate or incomplete Customer Information;

(d) changes in law, tax, duty, levy or regulatory requirements;

(e) changes requested by the Customer;

(f) unforeseen Site conditions;

(g) storage, redelivery, remobilisation or additional handling;

(h) foreign exchange movements where the Quote identifies an exchange-rate basis;

(i) supplier price changes for indent or imported Goods where the Contract permits adjustment; or

(j) any other event for which the Contract permits additional payment.

7.8 Unless otherwise stated, freight charges quoted by FRP are estimates and may be adjusted to actual cost.

8. Deposits and Credit

8.1 FRP may require a deposit, progress payment, payment before manufacture or payment before delivery.

8.2 A deposit is not refundable where the Customer cancels, suspends or breaches the Contract, except to the extent the deposit exceeds FRP’s reasonable loss and entitlement under the Contract.

8.3 FRP may undertake credit checks and require credit references, guarantees, security or updated financial information.

8.4 Approval of a credit account does not oblige FRP to continue providing credit.

8.5 FRP may change, reduce, suspend or withdraw credit at any time where it reasonably considers its payment risk has changed.

8.6 FRP may require payment of outstanding or future amounts before continuing supply.

9. Invoicing and Payment

9.1 FRP may invoice:

(a) as stated in the Contract;

(b) on delivery;

(d) progressively as work is performed;

(e) when Goods are ready for delivery but delivery is delayed by the Customer; or

(f) following suspension, cancellation or termination.

9.2 Unless a different due date is stated, payment is due seven days from the invoice date.

9.3 Payment must be made in full in cleared funds and without deduction, withholding, set-off or counterclaim.

9.4 The Customer may not withhold payment because:

(a) it has not been paid by another person;

(b) another contract or invoice is disputed;

(d) a third party has made a claim; or

(e) the Customer asserts an unapproved backcharge.

9.5 Any retention, rebate, discount, contra or deduction applies only if expressly agreed by FRP in writing.

9.6 The Customer must notify FRP promptly in writing if it disputes an invoice and must identify:

(a) the invoice;

(b) the disputed amount;

(d) supporting evidence.

9.7 The Customer must pay all undisputed amounts by the due date.

9.8 A dispute concerning one invoice does not entitle the Customer to withhold unrelated amounts.

9.9 Payment is not acceptance of the Goods or Services and does not waive either party’s rights.

9.10 FRP may apply payments received in any order and to any debt it chooses, regardless of any allocation stated by the Customer.

10. Overdue Amounts

10.1 An overdue amount bears interest from its due date until payment at 2.5 percent per month, calculated daily and compounded monthly.

10.2 The Customer must reimburse FRP for all reasonable costs incurred in recovering or attempting to recover overdue amounts, including:

(a) debt collection fees;

(b) solicitor and client legal costs;

(d) PPSA registration and enforcement costs; and

(e) reasonable internal administration costs directly resulting from serious or repeated default.

10.3 FRP may suspend manufacture, supply, delivery, credit and performance while any amount is overdue.

10.4 Suspension does not relieve the Customer from its obligations or entitle it to cancel the Contract.

10.5 FRP is entitled to a reasonable extension of time and reimbursement of resulting costs following suspension.

10.6 FRP may require all amounts owing by the Customer to become immediately due where the Customer is in material payment default or an insolvency event occurs.

11. Variations and Additional Work

11.1 The Customer may request a Variation.

11.2 FRP is not required to undertake a Variation unless FRP agrees in writing.

11.3 Before or after agreeing to a Variation, FRP may confirm:

(a) the changed scope;

(b) the adjustment to the Price;

(d) any changed assumptions or exclusions; and

(e) any other effect on the Contract.

11.4 Where it is not reasonably practical to agree the price in advance, FRP may undertake the Variation and charge its reasonable costs, current rates and margin, provided FRP has informed the Customer that additional charges will apply.

11.5 A Variation includes additional work or cost resulting from:

(a) a Customer request or instruction;

(b) revised drawings or dimensions;

(d) new or changed compliance requirements;

(e) inaccurate or incomplete Customer Information;

(f) latent or unforeseen Site conditions;

(g) obstruction or delay caused by the Customer or another contractor;

(h) rework not caused by FRP;

(i) work outside normal hours requested by the Customer; or

(j) circumstances that materially differ from the basis of the Quote.

11.6 A Customer representative who requests or directs a Variation is deemed authorised to do so where FRP reasonably relies on that person’s apparent authority.

11.7 FRP may suspend affected work until the scope, Price and time consequences of a Variation are resolved.

11.8 The Customer must not direct FRP’s workers or subcontractors to undertake additional work without approval from FRP’s authorised representative.

12. Cancellation and Suspension by the Customer

12.1 The Customer may not cancel or suspend an accepted Order without FRP’s written agreement.

12.2 Custom, fabricated, modified, indent, imported, non-stock or specially procured Goods are non-cancellable and non-returnable once the Order is accepted.

12.3 If FRP agrees to cancellation or suspension, the Customer must pay:

(a) all Goods and Services completed;

(b) work in progress;

(d) materials and commitments incurred;

(e) supplier and subcontractor cancellation charges;

(f) freight, storage and disposal costs;

(g) reasonable demobilisation and remobilisation costs;

(h) a reasonable allowance for overhead and margin on work performed; and

(i) any other reasonable loss resulting from the cancellation or suspension.

12.4 FRP may retain possession of completed and partly completed Goods until all amounts owing are paid.

12.5 If suspension continues for more than 20 Business Days, FRP may treat the affected Contract as cancelled by the Customer.

13. Delivery

13.1 Delivery dates are estimates unless FRP expressly agrees in writing that a date is fixed and time is of the essence.

13.2 FRP will use reasonable endeavours to meet estimated delivery dates but is not liable merely because delivery occurs later than estimated.

13.3 Delivery may be made in instalments, and FRP may invoice each instalment separately.

13.4 The Customer must:

(a) provide safe and suitable access;

(b) provide accurate delivery instructions;

(d) provide suitable unloading equipment and labour unless included in FRP’s scope; and

(e) promptly unload the Goods.

13.5 Delivery occurs when the Goods are:

(a) collected from FRP’s premises by the Customer or its carrier;

(b) made available for collection where the Customer fails to collect them;

(d) otherwise delivered in accordance with the agreed Incoterm or delivery arrangement.

13.6 A signature on a delivery docket is evidence of delivery but is not required to establish delivery.

13.7 The Customer must inspect Goods promptly on delivery.

13.8 Apparent freight damage or quantity shortages must be recorded on the carrier’s delivery documentation and notified to FRP within two Business Days.

13.9 Failure to provide prompt notice may prejudice FRP’s carrier claim and may result in the Customer bearing loss that could otherwise have been recovered.

13.10 FRP is not responsible for unloading, placement, installation or protection after delivery unless expressly included.

14. Delayed Delivery, Storage and Redelivery

14.1 If the Customer fails or is unable to take delivery when the Goods are ready, FRP may:

(a) treat delivery as having occurred;

(b) invoice the Goods;

(d) charge storage, handling, insurance and administration costs;

(e) require payment before redelivery; and

(f) recover wasted freight, redelivery and demurrage costs.

14.2 FRP may store Goods at its premises or with a third party.

14.3 After giving reasonable notice, FRP may sell or dispose of Goods that remain uncollected or unpaid for an extended period, subject to applicable law.

14.4 Proceeds of sale may be applied against:

(a) amounts owing;

(b) storage and sale costs;

(d) other recoverable costs.

14.5 The Customer remains liable for any shortfall.

15. Risk and Insurance

15.1 Risk in the Goods passes to the Customer on delivery under clause 13.5.

15.2 Where freight is arranged by FRP, risk passes when the Goods are made available at the agreed delivery point unless the Contract expressly provides otherwise.

15.3 Where the Customer arranges collection or nominates a carrier, risk passes when the Goods are collected by or released to that carrier.

15.4 The Customer must insure the Goods for their full replacement value from the time risk passes.

15.5 The Customer is responsible for loss or damage occurring after risk passes, including while Goods are stored pending Customer collection or delivery.

15.6 Title passing later than risk does not require FRP to insure the Goods for the Customer.

16. Retention of Title

16.1 Title to all Goods remains with FRP until the Customer has paid in full:

(a) the Price for those Goods;

(b) all other amounts owing under the relevant Contract; and

16.2 Until title passes, the Customer:

(a) holds the Goods as bailee for FRP;

(b) must keep the Goods identifiable as FRP’s property where reasonably practicable;

(d) must keep the Goods properly stored, protected and insured;

(e) must not damage, alter or remove identifying marks; and

(f) must notify FRP immediately if the Goods are seized, damaged, lost or claimed by another person.

16.3 The Customer may use or resell the Goods in the ordinary course of its business before default, but does so subject to FRP’s security interest and the PPSA.

16.4 The Customer’s authority to use or resell unpaid Goods ends immediately if:

(a) an amount is overdue;

(b) FRP withdraws that authority in writing;

(d) a receiver, liquidator, administrator or statutory manager is appointed; or

(e) FRP reasonably believes payment is at risk.

16.5 After the Customer’s authority ends, FRP may require immediate return of the Goods.

16.6 Subject to applicable law, the Customer irrevocably authorises FRP and its representatives to enter premises where unpaid Goods are reasonably believed to be located, at a reasonable time and using reasonable means, to inspect, identify and recover those Goods.

16.7 FRP is not liable for reasonably unavoidable damage caused while lawfully recovering Goods, but must not use force or breach the peace.

16.8 Recovery of Goods does not discharge the Customer’s liability unless FRP confirms otherwise.

17. Personal Property Securities Act 1999

17.1 The Customer acknowledges that these Terms constitute a security agreement for the purposes of the Personal Property Securities Act 1999.

17.2 The Customer grants FRP a security interest in:

(a) all present and after-acquired Goods supplied by FRP;

(b) all proceeds of those Goods;

(d) all related rights and accounts arising from resale or other dealing with the Goods,

as security for all amounts and obligations owing to FRP.

17.3 The Customer must:

(a) provide all information reasonably required by FRP to register, maintain and enforce its security interest;

(b) promptly sign or deliver documents requested by FRP;

(d) notify FRP of any change to its name, address, entity type or identifying information at least 10 Business Days before the change where reasonably possible; and

(e) pay FRP’s reasonable registration, amendment, renewal and enforcement costs.

17.4 The Customer waives its right to receive a verification statement to the extent permitted by law.

17.5 To the maximum extent permitted by section 107 of the PPSA, the Customer waives or agrees that the following provisions will not apply:

(a) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 132, 133 and 134;

(b) the Customer’s rights under sections 107(2), 121, 125, 129, 131 and 132; and

(c) any other provision the parties may lawfully contract out of that is identified by FRP in a written security agreement.

17.6 The Customer agrees that FRP may allocate proceeds and payments in any manner permitted by law.

17.7 Nothing in this clause limits any other security or remedy held by FRP.

18. Inspection, Acceptance and Claims

18.1 The Customer must inspect the Goods and Services promptly.

18.2 The Customer must notify FRP in writing of:

(a) visible damage or quantity discrepancies within two Business Days after delivery;

(b) other reasonably discoverable non-compliance within 10 Business Days after delivery or completion; and

18.3 A notice must provide:

(a) the Order and invoice details;

(b) a description of the issue;

(d) details of storage, installation and use; and

(e) access for FRP to inspect.

18.4 The Customer must not repair, modify, remove, replace or engage another person to work on the affected Goods without giving FRP a reasonable opportunity to inspect and remedy the issue.

18.5 Failure to comply with clause 18.4 may reduce or exclude FRP’s liability to the extent FRP is prejudiced.

18.6 Use, installation or resale of Goods does not prevent a valid latent-defect claim but may be relevant when determining whether the Goods were damaged or altered after supply.

18.7 Acceptance does not waive rights that cannot reasonably be exercised until a latent defect becomes apparent.

19. Product and Service Warranty

19.1 Subject to these Terms, FRP warrants that:

(a) Goods manufactured by FRP will substantially comply with the agreed specifications;

(b) Services will be performed with reasonable care and skill;

(d) FRP will have the right to supply the Goods.

19.2 Unless a different written warranty applies, the warranty period is 12 months from:

(a) delivery of the Goods; or

(b) completion of the Services,

whichever applies to the relevant claim.

19.3 For Goods manufactured by a third party, FRP will pass through the benefit of any assignable manufacturer warranty available to FRP.

19.4 FRP does not provide a warranty broader than the relevant manufacturer’s warranty for third-party Goods unless expressly agreed.

19.5 The warranty does not cover loss, damage, deterioration or failure caused or contributed to by:

(a) normal wear and tear;

(b) misuse, abuse, overloading or impact;

(d) installation, alteration or repair by anyone other than FRP;

(e) failure to follow instructions or technical information;

(f) exposure to chemicals, temperatures, loads, UV conditions or environments outside the agreed specification;

(g) inaccurate Customer Information;

(h) Customer or third-party design;

(i) defective or unsuitable supporting structures;

(j) movement, settlement, vibration or failure of another structure;

(k) accidental or malicious damage;

(l) unauthorised modification;

(m) use for a purpose not disclosed to FRP;

(n) failure to promptly notify FRP of a problem;

(o) colour, shade, texture or surface variation within normal manufacturing tolerances; or

(p) a force majeure event.

19.6 Where a valid warranty claim is established, FRP may, at its option:

(a) repair the affected Goods;

(b) replace the affected Goods;

(d) supply a reasonable alternative; or

(e) refund the Price paid for the affected Goods or Services.

19.7 Unless FRP agrees otherwise, the Customer is responsible for:

(a) providing safe access;

(b) isolating and making the work area available;

(d) cranage, scaffolding and access equipment;

(e) reinstatement of finishes and third-party work; and

(f) costs beyond FRP’s expressly agreed warranty remedy.

19.8 FRP will bear reasonable freight costs for a confirmed warranty defect where return freight was authorised by FRP in advance.

19.9 Repaired or replacement Goods are warranted for the remainder of the original warranty period or three months from repair or replacement, whichever is longer.

19.10 No representative may give a warranty on FRP’s behalf unless it is recorded in writing by an authorised FRP representative.

20. Fitness for Purpose and Technical Advice

20.1 The Customer is responsible for determining whether the Goods and Services are suitable for its requirements unless:

(a) the Customer has clearly disclosed the particular purpose and relevant conditions;

(b) the Customer has expressly relied on FRP’s skill and judgment; and

20.2 General recommendations, product information or technical assistance do not amount to a guarantee of suitability for an undisclosed application.

20.3 Samples, test results and technical data indicate typical or tested performance under stated conditions and do not guarantee identical performance in every installation.

20.4 The Customer must obtain independent engineering, regulatory or professional advice where appropriate.

20.5 FRP is not responsible for confirming compliance of the Customer’s entire structure, system, project or installation unless expressly included in its scope.

21. Installation and Site Work

21.1 This clause applies where FRP performs Services at a Site.

21.2 The Customer must, at its cost:

(a) provide safe, clear and timely access to the Site;

(b) ensure the Site is ready for FRP’s work;

(d) obtain necessary permissions, permits and approvals;

(e) coordinate other contractors;

(f) provide suitable amenities and facilities;

(g) provide power, lighting, cranage, scaffolding or access equipment where stated in the Quote;

(h) ensure supporting structures and foundations are suitable;

(i) identify underground, concealed or overhead services;

(j) manage hazardous materials not introduced by FRP; and

(k) provide required inductions and Site rules before work begins.

21.3 FRP may refuse to commence or may suspend Site work where conditions are unsafe, unsuitable or materially different from those disclosed.

21.4 FRP is entitled to additional time and payment for:

(a) delayed or restricted access;

(b) Site inductions or procedures not disclosed before pricing;

(d) additional visits or remobilisation;

(e) changes in working hours;

(f) latent or unforeseen Site conditions;

(g) interference by others;

(h) incorrect dimensions or information;

(i) additional safety or access requirements; and

(j) work outside FRP’s agreed scope.

21.5 FRP will take reasonable care while performing Site work but is not responsible for pre-existing defects or unavoidable minor disturbance reasonably associated with the work.

21.6 The Customer must provide FRP a reasonable opportunity to remedy defective installation before engaging another contractor.

21.7 Practical completion occurs when the Services are substantially complete and capable of being used for their intended purpose, despite minor omissions or defects that do not materially prevent use.

21.8 Minor outstanding work does not entitle the Customer to withhold the whole Price.

22. Health and Safety

22.1 Each party must comply with the Health and Safety at Work Act 2015 and applicable health and safety requirements.

22.2 The parties must consult, cooperate and coordinate activities where they have overlapping duties.

22.3 The Customer must notify FRP of known Site hazards and provide all Site-specific safety information before FRP attends.

22.4 FRP may stop work where it reasonably believes there is a health or safety risk.

22.5 A safety-related suspension does not make FRP liable for delay where the risk was not caused by FRP.

22.6 The Customer must ensure that its personnel and other contractors do not interfere with FRP’s safety controls.

23. Returns and Credits

23.1 Goods may only be returned with FRP’s prior written approval and return authorisation.

23.2 Custom, fabricated, altered, cut, drilled, specially procured, indent, imported, clearance or non-stock Goods are not returnable unless defective.

23.3 Approved returns must:

(a) be returned within the period specified by FRP;

(b) be unused, undamaged and in saleable condition;

(d) include proof of purchase and return authorisation; and

(e) be freight-paid unless FRP agrees otherwise.

23.4 FRP may deduct:

(a) a restocking fee of 20 percent of the invoiced value;

(b) freight and handling costs;

(d) any reduction in value.

23.5 Approval to assess returned Goods does not confirm that a credit will be issued.

23.6 Any credit is subject to inspection and will be applied to the Customer’s account unless FRP agrees to a refund.

23.7 This clause does not limit rights that cannot lawfully be excluded.

24. Intellectual Property

24.1 Each party retains ownership of Intellectual Property Rights owned or developed independently of the Contract.

24.2 FRP retains all Intellectual Property Rights in:

(a) its products and systems;

(b) standard details and methods;

(d) drawings, calculations, models and documents;

(e) manufacturing processes, tooling and know-how;

(f) templates, software and data; and

(g) improvements and developments arising from the Contract,

except to the extent expressly agreed otherwise.

24.3 Upon full payment, FRP grants the Customer a non-exclusive, non-transferable licence to use project-specific Deliverables solely for:

(a) the project identified in the Contract; and

(b) operating and maintaining the Goods for their intended purpose.

24.4 The Customer must not, without FRP’s written consent:

(a) reproduce Goods or designs;

(b) use drawings for manufacture by another supplier;

(d) remove proprietary notices;

(e) reverse engineer FRP products; or

(f) use project-specific Deliverables for another project.

24.5 The Customer grants FRP a royalty-free licence to use Customer Information to perform the Contract.

24.6 The Customer indemnifies FRP against third-party intellectual property claims arising from FRP’s use of Customer Information, except to the extent caused by FRP’s unauthorised departure from that information.

24.7 FRP may retain copies of project records for legal, quality, insurance and business purposes.

25. Confidentiality and Publicity

25.1 Each party must protect the other party’s confidential information and use it only for the Contract.

25.2 Confidentiality does not apply to information that:

(a) is publicly available other than through breach;

(b) was lawfully known without restriction;

(d) is received lawfully from a third party; or

(e) must be disclosed by law.

25.3 FRP may disclose information to its employees, professional advisers, insurers, financiers, suppliers and subcontractors where reasonably necessary.

25.4 The Customer must not publicly attribute statements, warranties or project outcomes to FRP without FRP’s approval.

25.5 FRP must obtain the Customer’s consent before using confidential project details or the Customer’s trade marks in marketing.

25.6 FRP may identify the Customer as a trade customer unless the Customer has reasonably requested confidentiality.

26. Privacy and Credit Information

26.1 FRP may collect, hold, use and disclose personal information in accordance with the Privacy Act 2020.

26.2 The Customer authorises FRP to collect and use information for:

(a) opening and administering accounts;

(b) credit assessment and monitoring;

(d) verifying identity and authority;

(e) debt recovery and enforcement;

(f) fraud prevention;

(g) legal and regulatory compliance;

(h) customer service and business administration; and

(i) marketing, subject to applicable law and opt-out rights.

26.3 The Customer authorises FRP to obtain and disclose relevant information from or to:

(a) credit reporting agencies;

(b) trade referees;

(d) insurers and financiers;

(e) professional advisers; and

(f) related entities and service providers.

26.4 The Customer warrants that it has authority to provide personal information relating to its directors, employees, representatives and guarantors.

26.5 An individual may request access to and correction of their personal information in accordance with the Privacy Act 2020.

27. Liability

27.1 To the maximum extent permitted by law, FRP is not liable for:

(a) Consequential Loss;

(b) loss of profit, production, revenue, business, contract, opportunity, goodwill or anticipated savings;

(d) removal, access, cranage, scaffolding, reinstatement or third-party contractor costs, except where FRP expressly agrees to bear them;

(e) loss caused by inaccurate Customer Information;

(f) loss caused by Customer or third-party design, installation, alteration or misuse;

(g) loss arising from delay outside FRP’s reasonable control; or

(h) loss that the Customer could reasonably have avoided or mitigated.

27.2 FRP’s liability for any claim arising from particular Goods or Services is limited, at FRP’s option, to:

(a) repairing or replacing the affected Goods;

(b) reperforming the affected Services;

(d) paying an amount not exceeding the Price paid for the affected Goods or Services.

27.3 FRP’s aggregate liability for all claims arising from the same or related event is limited to the Price paid for the affected Goods or Services.

27.4 FRP’s total aggregate liability to the Customer arising during any 12-month period must not exceed the lesser of:

(a) the total amount paid by the Customer to FRP under the affected Contract during that period; and

(b) the Price paid for the Goods or Services giving rise to the claims.

27.5 The limitations and exclusions apply whether the claim arises in contract, tort including negligence, equity, statute, indemnity or otherwise.

27.6 The limitations apply for the benefit of FRP’s employees, agents and subcontractors.

27.7 Nothing in these Terms excludes or limits liability:

(a) to the extent it cannot lawfully be excluded or limited; or

(b) for fraud by FRP.

27.8 The Customer must take reasonable steps to mitigate any loss.

27.9 FRP is not liable for a claim unless the Customer gives FRP written notice within 12 months after the Customer became aware, or should reasonably have become aware, of the circumstances giving rise to the claim, except where a shorter or longer period is required by law.

28. Customer Indemnity

28.1 The Customer indemnifies FRP against reasonable loss, liability, cost, damage and expense arising from:

(a) the Customer’s breach of the Contract;

(b) inaccurate, incomplete or infringing Customer Information;

(d) Customer or third-party design;

(e) unsafe or undisclosed Site conditions;

(f) claims arising from commitments made by the Customer to another person that FRP did not accept;

(g) the Customer’s failure to comply with law or obtain approvals; or

(h) personal injury or property damage caused by the Customer or persons under its control.

28.2 The indemnity does not apply to the extent the relevant loss was directly caused by FRP’s breach, negligence or unlawful act.

28.3 FRP must take reasonable steps to mitigate indemnified loss.

29. Force Majeure

29.1 FRP is not liable for delay or failure caused by circumstances beyond its reasonable control.

29.2 Such circumstances include:

(a) natural disaster, severe weather, flood, fire or earthquake;

(b) epidemic, pandemic or public health restriction;

(d) industrial action;

(e) power, telecommunications or systems failure;

(f) transport or port disruption;

(g) shortage or unavailability of materials, labour or components;

(h) supplier or carrier failure caused by circumstances beyond FRP’s reasonable control;

(i) import or export restriction;

(j) cyber incident not caused by FRP’s failure to take reasonable precautions; and

(k) any comparable event beyond FRP’s reasonable control.

29.3 FRP may:

(a) suspend affected obligations;

(b) extend delivery dates;

(d) offer alternative Goods or methods; or

(e) terminate the affected part of the Contract if the event continues for an extended period.

29.4 The Customer must pay for Goods and Services supplied before suspension or termination.

29.5 An increase in cost alone is not force majeure, but FRP may rely on any separate price-adjustment right under the Contract.

30. Suspension and Termination by FRP

30.1 FRP may suspend or terminate all or part of a Contract by written notice if the Customer:

(a) fails to pay an amount when due;

(b) breaches the Contract and fails to remedy the breach within a reasonable period;

(d) becomes insolvent or unable to pay debts;

(e) enters liquidation, receivership, administration, statutory management or a creditor arrangement;

(f) has property seized or enforcement action taken;

(g) provides materially false or misleading information;

(h) creates an unacceptable credit, legal, safety or reputational risk; or

(i) undergoes a material change of control that increases FRP’s risk.

30.2 FRP may suspend immediately where necessary to protect health and safety, property, legal rights or payment security.

30.3 On suspension or termination:

(a) all amounts owing become immediately due;

(b) FRP may invoice work completed, work in progress and committed costs;

(d) FRP may cancel uncompleted supply;

(e) the Customer must return FRP property and confidential information; and

(f) FRP retains all accrued rights.

30.4 Termination does not affect clauses intended to survive, including payment, title, PPSA, intellectual property, confidentiality, indemnity, liability and dispute provisions.

31. Construction Contracts Act 2002

31.1 Where the Contract is a construction contract under the Construction Contracts Act 2002, that Act applies to the extent it cannot lawfully be excluded or modified.

31.2 FRP may issue payment claims under that Act.

31.3 The Customer must issue any payment schedule within the time and in the form required by the Act.

31.4 Nothing in these Terms limits FRP’s statutory rights concerning:

(a) payment claims;

(b) adjudication;

(d) recovery of debt; or

(e) enforcement.

31.5 If these Terms conflict with a mandatory provision of the Construction Contracts Act 2002, the mandatory provision prevails.

31.6 Unless expressly agreed, no retention may be deducted from amounts owing to FRP.

32. Consumer Guarantees Act and Fair Trading Act

32.1 Where the Customer acquires the Goods or Services in trade:

(a) the parties agree that the Consumer Guarantees Act 1993 does not apply to the supply, to the maximum extent permitted by section 43 of that Act; and

(b) the parties agree to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 to the maximum extent permitted by section 5D of that Act.

32.2 For the purposes of clause 32.1, the parties acknowledge that:

(a) they are both in trade;

(b) the Goods or Services are supplied and acquired in trade;

(d) it is fair and reasonable for the parties to be bound by clause 32.1.

32.3 Clause 32.1 does not apply where the statutory requirements for contracting out are not satisfied.

32.4 Nothing in these Terms excludes, restricts or modifies a right, guarantee, remedy or liability that cannot lawfully be excluded, restricted or modified.

32.5 If the Customer acquires Goods or Services as a consumer and the Consumer Guarantees Act applies, these Terms apply subject to that Act.

33. Contract and Commercial Law Act 2017

33.1 To the maximum extent permitted by law, all terms, conditions and warranties implied under Part 3 of the Contract and Commercial Law Act 2017 or otherwise by law are excluded or modified to the extent inconsistent with these Terms.

33.2 Clause 33.1 does not exclude any term or right that cannot lawfully be excluded.

33.3 The express warranties and remedies in these Terms replace other implied warranties to the extent legally permitted.

34. Dispute Resolution

34.1 A party claiming that a dispute has arisen must give written notice stating:

(a) the nature of the dispute;

(b) the relevant facts and Contract provisions;

(d) the outcome sought.

34.2 The parties must first attempt to resolve the dispute through good-faith discussions between representatives authorised to settle it.

34.3 If the dispute is not resolved within 10 Business Days, either party may propose mediation.

34.4 Unless urgent action is required, the parties should attempt mediation before commencing ordinary court proceedings.

34.5 Nothing in this clause prevents a party from:

(a) seeking urgent interim relief;

(b) recovering an undisputed debt;

(d) registering or enforcing a security interest; or

(e) exercising rights under the Construction Contracts Act 2002.

34.6 During a dispute:

(a) the Customer must pay all undisputed amounts; and

(b) both parties must continue performing undisputed obligations where reasonably practicable.

35. Notices and Communications

35.1 A formal notice must be in writing and delivered by hand, courier or email to the recipient’s notified address.

35.2 An email notice is deemed received:

(a) when acknowledged by the recipient; or

(b) if no delivery failure message is received, at 9:00 am on the next Business Day following transmission.

35.3 Routine correspondence does not vary the Contract unless it clearly records an agreed Variation or amendment from an authorised representative.

35.4 The Customer must promptly notify FRP of changes to its:

(a) contact details;

(b) billing details;

(d) legal name or entity type; and

(e) delivery or Site contacts.

36. Assignment and Subcontracting

36.1 The Customer may not assign, transfer or novate the Contract without FRP’s prior written consent.

36.2 FRP may assign or transfer:

(a) a debt or right to payment;

(b) the Contract to a related company;

(d) the Contract as part of a sale or restructuring of its business.

36.3 FRP may subcontract any part of the Services while remaining responsible for its contractual obligations.

37. General

37.1 Entire agreement: The Contract records the entire agreement concerning its subject matter and replaces prior discussions and representations, except for fraud.

37.2 Amendments: An amendment to a Contract must be in writing and approved by an authorised FRP representative.

37.3 Authority: Only a director of FRP may agree to:

(a) accept the Customer’s terms;

(b) materially increase FRP’s liability;

(d) provide an indemnity in favour of the Customer; or

(e) amend these Terms,

unless the director has expressly delegated that authority in writing.

37.4 No waiver: Failure or delay in exercising a right is not a waiver.

37.5 Cumulative remedies: Rights and remedies are cumulative.

37.6 Severability: If a provision is invalid or unenforceable, it is modified to the minimum extent necessary or severed, and the remaining provisions continue.

37.7 No relationship: Nothing creates a partnership, joint venture, fiduciary relationship, employment relationship or agency between the parties.

37.8 Further assurances: Each party must do anything reasonably required to give effect to the Contract.

37.9 Electronic acceptance: The Contract may be accepted electronically and in counterparts.

37.10 Governing law: The Contract is governed by New Zealand law.

37.11 Jurisdiction: The parties submit to the non-exclusive jurisdiction of the New Zealand courts.

37.12 Survival: Clauses concerning payment, title, PPSA, intellectual property, confidentiality, privacy, warranties, indemnities, liability, dispute resolution and governing law survive completion or termination.

FRP Limited | Company No. 5715809 | NZBN 9429041781814