terms and conditions of trade

Freedom Pools South Island Limited — Terms & Conditions of Trade

Version 3.1 (updated August 2023)

 

1. Definitions

1.1 ‘Contract’ refers to the agreement comprising the Terms & Conditions contained herein, along with any Price, order, invoice, or other document or amendments expressed to be supplemental to this Contract.

1.2 ‘Contractor’ or ‘FPSIL’ means Freedom Pools South Island Ltd, its successors and assigns, or any person acting on behalf of and with the authority of Freedom Pools South Island Ltd.

1.3 ‘Client’ refers to the person/s, entities, or any person acting on behalf of and with the authority of the Client requesting FPSIL to provide the Works as specified in any proposal, price, order, invoice, or other documentation.

(a) If there is more than one Client, it shall be a reference to each Client jointly and severally.

(b) If the Client is a partnership, it shall bind each partner jointly and severally.

(c) If the Client is a part of a Trust, it shall be bound in their capacity as a trustee.

(d) Includes the Client’s executors, administrators, successors, and permitted assigns.

1.4 ‘Works’ encompasses all services, including project consultation, swimming pool importing, and/or installation services, or Materials supplied by FPSIL to the Client at the Client’s request from time to time. (Where the context permits, the terms ‘Works,’ ‘Materials,’ or ‘Services’ shall be interchangeable for each other).

1.5 ‘Price’ refers to the total amount payable (plus any Goods and Services Tax, “GST,” where applicable) for the Works as agreed between FPSIL and the Client in accordance with clause 6 below.

1.6 ‘Materials’ or ‘Goods’ means all goods, products, equipment, or items supplied by FPSIL to the Client at the Client’s request from time to time, including but not limited to swimming pool shells, pool equipment, related accessories, and any other items necessary for the completion of the Works. Where the context permits, the terms “Materials” and “Goods” shall be interchangeable.

 

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms & Conditions if the Client places an order for or accepts delivery of any Works.

2.2 Amendment to any document forming part of the Contract may only be made in writing by the mutual consent of both parties.

2.3 In the event of any inconsistency between this and any other document forming part of the Contract, these Terms & Conditions shall prevail.

2.4 The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a Client information form with FPSIL and it has been approved with a credit limit established for the account, if required.

2.5 In the event that the supply of Works request exceeds the Clients credit limit and/or the account exceeds the payment terms, FPSIL reserves the right to refuse delivery.

2.6 Any advice, recommendation, information, assistance, or service provided by FPSIL to the Client or the Client’s agent, in relation to Materials or Works supplied, is given in good faith and is based on FPSIL’s own knowledge and experience. FPSIL shall not be held liable for such advice or recommendations.

2.7 Where FPSIL gives advice or recommendations to the Client or the Client’s agent, and such advice or recommendations are not acted upon, then FPSIL shall require the Client or their agent to authorise commencement of the Works in writing. FPSIL shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.

2.8 The Client acknowledges that, after receiving a signed copy of the agreement between the Client and FPSIL, there is no official cooling-off period in this contract. Therefore, any decision to withdraw from the contract shall be at FPSIL’s sole discretion. The Client is encouraged to carefully review all aspects of the contract and seek independent advice before signing.

2.9 If the Client asks FPSIL to prepare a price that involves multiple site visits or third-party involvement, including but not limited to engineers, surveyors, or local councils, the Client shall be responsible for covering all associated costs. These expenses will be charged to the Client, regardless of whether the Works ultimately proceed.

2.10 Electronic Signatures shall be deemed to be accepted and legally binding by either party, provided that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act, including any relevant Regulations referred to therein. The parties acknowledge that electronic signatures, when used in accordance with the aforementioned legal requirements, shall have the same force and effect as handwritten signatures and shall be admissible as evidence in any legal proceedings to the fullest extent permitted by law.

2.11 If this contract is subject to finance approval, the Client shall provide written confirmation of loan approval to FPSIL before commencing any Works. The Client acknowledges that securing necessary finance approval is their responsibility. If finance approval is not obtained, this contract will be deemed cancelled. FPSIL will assess the situation and determine any possible refund of the deposit on a case-by-case basis, considering any reasonable expenses incurred by FPSIL.

 

3. Errors and Omissions

3.1 The Client acknowledges and accepts that FPSIL shall not be held liable for any alleged or actual error(s) and/or omission(s) without prejudice.

3.2 In the event that an error and/or omission occurs in accordance with clause 3.1 and such occurrence is not attributable to the negligence and/or willful misconduct of FPSIL, the Client shall not have the right to treat this Contract as repudiated or render it invalid.

 

4. Authorised Representatives

4.1 The Client acknowledges that FPSIL shall (for the duration of the Works) liaise directly with one authorised representative, and that once introduced as such to FPSIL, that person shall have the full authority of the Client to order any Works, and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to FPSIL for all additional costs incurred by FPSIL (including FPSIL’s profit margin) in providing any Works, or variation/s requested thereto by the Client’s duly authorised representative.

 

5. Change in Control

5.1 The Client shall promptly notify FPSIL in writing of any proposed change in ownership or any other modifications to the Client’s details, including but not limited to changes in the Client’s name, address, contact details, directors, trustees, or business practices. The Client shall provide this notice at least fourteen (14) days prior to the intended change.

5.2 If the Client fails to comply with the notice requirement stated in clause 5.1 and proceeds with the change in control or other details without prior written notice, the Client shall be held liable for any loss incurred by FPSIL as a result of such non-compliance.

 

6. Price and Payment

6.1 At FPSIL’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by FPSIL to the Client in respect of Works performed or Materials supplied; or

(b) FPSIL’s quoted Price (subject to clause 6.2) which shall be binding upon FPSIL provided that the Client shall accept FPSIL’s price in writing within thirty (30) days.

6.2 FPSIL reserves the right to change the Price:

(a) if a variation to the Materials which are to be supplied is requested; or

(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or

(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to site access, ready availability of Materials, variations in quantity or volume of Materials to be supplied, prerequisite work by a third party not being completed, inaccurate measurements, non- consented plans or specifications supplied by the Client, remedial work, ground work required, dewatering, presence of shale, sand, hard rock or other barriers below the surface, requirement for piering, latent soil conditions, etc.) which are only discovered on commencement of the Works; or

(d) in the event of increases to FPSIL in the cost of labour or materials which are beyond FPSIL’s control.

6.3 Variations will be charged based on FPSIL’s price, and will be detailed in writing, and shown as variations on FPSIL’s invoice. The Client shall be required to respond to any variation submitted by FPSIL within ten (10) working days. Failure to do so will entitle FPSIL to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4 At FPSIL’s sole discretion a non-refundable deposit may be required.

6.5 Payment for the Works is due on milestones determined by FPSIL, and prompt payment is essential. The Price may be payable by the Client as follows:

(a) on completion of the Works;

(b) in accordance with FPSIL’s specified progress payment schedule, which includes:

(i) 1st Progress Payment: 30% Deposit due upon signing of Terms & Conditions of Trade

(ii) 2nd Progress Payment: 50% Due (7) days prior to pool installation or 12 months from date of acceptance, whichever occurs first.

(iii) 3rd Progress Payment: 20% Due on practical completion of all contracted FPSIL works.

(c) variation payment(s), as required.

(d) any alternative payment schedule must be mutually agreed upon by both parties in writing and shall override the default payment terms stated in this section. In the event of any uncertainty, the payment schedule outlined in clause 6.5(b) will take precedence.

(e) the date specified on any invoice or other form as being the date for payment.

(f) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is sent to the Client.

(g) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by FPSIL.

(h) immediately payable at the time the Client places an order for any non-stock list item or bespoke Goods that FPSIL must pay to any third-party supplier.

(i) FPSIL will endeavour to follow the agreed payment schedule; however, FPSIL reserves the right to invoice for the Works undertaken to-date in situations where Materials and Services are out of FPSIL’s control, and/or if the completion of all FPSIL contracted works is hindered by homeowner delays, such as access or privately arranged works. Any further visits to the site required due to such delays may result in additional costs payable by the client.

6.6 Payment to be made by electronic/online banking only.

6.7 FPSIL has the discretion to apply any payment received from the Client towards the outstanding balance on any invoice as FPSIL deems appropriate. This allocation may occur at the time of receipt or at a later time as determined by FPSIL. In the event of a default by the Client, FPSIL reserves the right to re-allocate any previously received and allocated payments. If FPSIL does not explicitly specify an allocation, the payment will be deemed to be allocated in a manner that maximises FPSIL’s Purchase Money Security Interest, as defined in the Personal Property Securities Act 1999 (PPSA), in the Materials.

6.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by FPSIL nor to withhold payment of any invoice because part of that invoice is in dispute, unless the request for payment by FPSIL is a claim made under the Construction Contracts Act 2002.

6.9 Unless otherwise stated, the Price does not include GST. The Client is responsible for paying the GST amount in addition to the Price, as required by FPSIL. Any other applicable taxes and duties are also the responsibility of the Client, unless expressly included in the Price.

 

7. Provision of the Works

7.1 Subject to clauses 7.2 and 7.3, it is FPSIL’s responsibility to ensure that the Works start as soon as reasonably possible.

7.2 The project commencement date shall be subject to the following conditions:

(a) Approved Council consent and any resource consents

(b) FPSIL’s possession of the pool shell and other necessary Materials

(c) Confirmation to proceed from the Client

(d) Receipt of the second progress payment as outlined in the payment structure (see clause 6.5(b))

7.3  The Works’ commencement date will be extended by a reasonable period if FPSIL claims an extension of time (by providing written notice to the Client) due to events beyond FPSIL’s control. Such events may include, but are not limited to:

(a) Extreme weather or temperature; or

(b) Delays caused by third-party contractors engaged by the Client; or

(c) The Client’s failure to:

(i)  Select; or

(ii) Have the site ready for the Works; or

(iii) Notify FPSIL that the site is ready.

7.4 Any costs incurred by FPSIL in relation to clauses 7.2 and 7.3 will be passed on to the Client.

7.5 The Client acknowledges and accepts that FPSIL must be notified in writing within forty-eight (48) hours of the proposed commencement date, as agreed between both parties, if the Client wishes to postpone the Works. Notice received outside this timeframe may result in FPSIL charging a reasonable fee for the delay in the commencement of the Works.

7.6 Any time specified by FPSIL for the delivery of the Works is an estimate only, and FPSIL will not be liable for any loss or damage incurred by the Client as a result of late delivery. However, both parties agree to make every endeavor to enable the Works to be supplied at the agreed time and place. In the event that FPSIL is unable to supply the Works as agreed solely due to any action or inaction of the Client, FPSIL shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date and/or for storage of the Materials.

7.7 If the Client has purchased only the swimming pool from FPSIL, it is understood that inspection and acceptance will take place on delivery of the swimming pool.

 

8. Dimensions, Plans and Specifications

8.1 FPSIL shall be entitled to rely on the accuracy of any plans, specifications, and other information provided by the Client. The Client acknowledges and agrees that if any of this information provided by the Client is inaccurate, FPSIL accepts no responsibility for any loss, damages, or costs resulting from such inaccuracies in the plans, specifications, or other information.

8.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Works unless FPSIL and the Client agree otherwise in writing.

8.3 Where the Client is responsible for supplying FPSIL with any design specifications (including, but not limited to CAD drawings), the Client shall ensure the accuracy of the data provided. FPSIL shall not be liable for any errors in the Works that are caused by incorrect or inaccurate data supplied by the Client.

8.4 In the event the Client provides information relating to measurements and quantities of Materials required for completing the Works, the Client is responsible for verifying the accuracy of the measurements and quantities before placing an order based on this information. FPSIL accepts no responsibility for any loss, damages, or costs resulting from the Client’s failure to comply with this clause.

 

9. Access

9.1 The Client shall ensure that FPSIL has clear and free access to the worksite to enable them to undertake the Works. FPSIL shall not be liable for any loss, damage, or costs to the worksite and its surroundings, including but not limited to pathways, trees, shrubs, driveways, concreted or paved areas, lawns, underground pipes, and above-ground services unless due to the negligence of FPSIL or engaged contractors.

9.2 It is the responsibility of the Client to ensure that access to the worksite is suitable to accommodate the weight of laden trucks, front-end loaders, or other earth-moving equipment as may be deemed necessary by FPSIL. The Client agrees to indemnify FPSIL against all costs incurred by FPSIL in recovering such vehicles in the event they become stuck or otherwise immovable.

9.3 The Client acknowledges and agrees that in the event FPSIL requires access, in order to undertake the Works, to an adjoining or adjacent property or land not owned by the Client, then it is the Client’s responsibility to gain permission from the landowner to use the above-mentioned property throughout the process of delivering the Works. In the event the landowner denies access or use of the land or property, the Client shall be liable for all costs incurred by FPSIL in gaining permission to access and/or use the property through any legal process that may be deemed necessary.

9.4 The Client shall ensure that the correct traffic and pedestrian measures are in place. Failure to do so will result in the Client becoming liable for any costs incurred by FPSIL.

9.5 The Client must ensure that there are no height restrictions or overhead power lines (or any other obstruction) likely to hinder FPSIL from undertaking the Works.

9.6 FPSIL may exclude persons from the site, other than the Client or the Client’s representative, however, the Client and the Client’s representative must not interfere with the performance of the Works.

9.7 If the Client fails to comply with this clause, the Client is liable to FPSIL for any delay, and any increase in cost to FPSIL in carrying out the Works as a result.

 

10. Risk

10.1 If FPSIL retains ownership of the Materials under clause 16, then where FPSIL is supplying Materials without installation, all risk for the Materials shall immediately pass to the Client on delivery, and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by FPSIL or FPSIL’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

10.2 FPSIL may, at its discretion, offer damaged or ‘seconds’ Materials for purchase by the Client at a reduced price. These Materials may have cosmetic or functional imperfections, and the Client acknowledges and accepts them in their current condition. FPSIL will provide the Client with information about the condition of these Materials before purchase. The Client shall inspect and accept the Materials as presented by FPSIL. Any associated risk or liability concerning the condition of the Materials is assumed by the Client upon acceptance. FPSIL shall not be held responsible for any defects or issues related to the damaged or ‘seconds’ Materials following their purchase or installation.

10.3 Where FPSIL is to both supply and install Materials, then as agreed between the parties, FPSIL or the Client shall maintain a Contract Works Insurance Policy (evidence of which will be required) until the Works are completed. Upon completion of the Works, all risk for the Works shall immediately pass to the Client.

10.4 Notwithstanding the provisions of clause 10.1, if the Client specifically requests FPSIL to leave Materials outside FPSIL’s premises for collection or to deliver the Materials to an unattended location, then such materials shall always be left at the sole risk and liability of the Client. It shall be the Client’s responsibility to ensure the Materials are adequately insured. If such Materials are lost, damaged, or destroyed, then the replacement of the Materials shall be at the Client’s expense.

10.5 The Client agrees that all materials supplied by the Client or the Client’s third-party sub-contractors will:

(a) be supplied in accordance with all legislative requirements and up to the appropriate industry standard; and

(b) be suitable for use in the Works.

10.6 Where the Client has supplied materials for FPSIL to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose, quality, and any faults inherent in those materials. However, if, in FPSIL’s opinion, it is believed that the materials supplied by the Client will not conform to New Zealand regulations, then FPSIL shall be entitled, without prejudice, to halt the Works until the appropriate conforming materials are sourced by the Client, and all costs associated with such a change to the plans will be invoiced to the Client in accordance with clause 6.2.

Concrete Risk

10.7The Client acknowledges that Materials supplied may:

(a) fade or change color over time; and

(b) expand, contract, or distort as a result of exposure to heat, cold, weather; and

(c) mark or stain if exposed to certain substances; and

(d) be damaged or disfigured by impact or scratching.

10.8 FPSIL gives no guarantee (expressed or implied) as to the length of time the concrete curing process will take and/or against cracking of concrete that may occur naturally in the Works, such as:

(a) cracks in the concrete, which are considered a natural characteristic of concrete and do not compromise its structural integrity; or

(b) damage caused by contact with chemicals, solvents, oils, or any other substances; or

(c) the effects of elements such as heat exposure or wet weather conditions that may prolong the curing process in concrete.

10.9 The Client acknowledges and agrees that:

(a) it is their responsibility to organize and be liable for all costs associated with protecting the concrete during the Works.

(b) The Client shall take all reasonable precautions to protect against destruction or damage to the concrete, including but not limited to vandalism, children, animals, and any hazards within their control.

(c) the Client shall notify FPSIL of any concerns regarding potential hazards that are beyond their control. FPSIL will take reasonable care during the course of the Works but shall not be liable for any loss or damage caused by factors beyond its control. In the event that the concrete is destroyed or damaged due to these reasons, the cost of repair or replacement will be borne by the Client; and

(d) variations of color and texture are inherent in concrete. FPSIL shall not be liable for any loss, damages, or costs arising from any variation of the color or texture between different batches of the product. This includes coloured concrete.

Fencing Risk

10.10 The Client shall ensure their presence on the worksite to supervise the marking out of the fence line, placement of boundary pegs, and during the fence installation. If the Client disagrees with any decisions made by FPSIL during their absence and requires rectification, the cost of such rectification shall be borne by the Client. If the Client fails to comply with this clause and is absent during the installation, FPSIL accepts no responsibility for installation decisions that need to be made in the Client’s absence.

10.11 The Client acknowledges and agrees that it is their responsibility to arrange for the removal of any existing fence (including existing footings), trees, vines, and shrubs to provide FPSIL with unobstructed access along the proposed fence line before the commencement of work. This is unless otherwise agreed in writing between FPSIL and the Client. It is essential to note that FPSIL will not handle the removal of any asbestos products under any circumstances.

10.12 The Client shall provide FPSIL with a suitable and exclusive power source, free of charge, for the duration of the fence installation. FPSIL will take all due care during the process, it will not accept any responsibility for tiles or pavers damaged during the installation.

10.13 For fencing installed on a retaining wall, FPSIL shall not be liable for:

(a) any movement in the fence due to consolidation (settling or compacting of the soil), or

(b) the movement of soil or any other component of the retaining wall.

10.14 FPSIL shall not assume any liability or responsibility for any issues related to the excavation of land under fence lines. Additionally, FPSIL retains the sole discretion to determine whether any renewal or replenishment of soil at the worksite shall be undertaken.

10.15 FPSIL reserves the right to rectify any imperfections or damages to products supplied during the works.

 

11. Temporary Fencing

11.1 Temporary Fencing Duration:

(a) Unless otherwise specified in the quote, the standard duration of temporary fencing provided by FPSIL is four weeks. If temporary fencing is not included in the quote, there shall be no expectation for FPSIL to provide or cover the cost of temporary fencing.

11.2 Temporary Fencing Responsibilities:

(a) When FPSIL is responsible for providing and installing temporary fencing:

(i) FPSIL shall ensure that the temporary fencing is installed and maintained in a safe and secure manner throughout the duration specified in the quote.

(ii) If delays caused by FPSIL extend the duration of the project beyond the initially specified period, including the duration of the temporary fencing, FPSIL will cover any fair and reasonable additional cost for the extended duration, including the possibility of hiring additional temporary fencing to cover all active work sites, unless such delays are out of FPSIL’s control, including but not limited to delays caused by third parties.

(b) When the Client is responsible for arranging and installing temporary fencing:

(i) The Client acknowledges their responsibility for complying with regulatory standards and FPSIL’s public liability insurance conditions regarding the installation and maintenance of temporary fencing.

(ii) In the event of delays caused by Client-arranged works, resulting in an extended project timeline beyond the agreed-upon schedule, the Client shall be responsible for covering the ongoing costs of temporary fencing and shall bear all liability arising from the absence or alteration of the temporary fencing.

11.3 Adjustments to Ongoing Cost:

(a) FPSIL, at its sole discretion, may consider reimbursing the Client for the ongoing fair and reasonable cost of Client-arranged temporary fencing if delays are caused by FPSIL, unless such delays are out of FPSIL’s control, including but not limited to delays caused by third parties. The decision to reimburse and the reimbursement amount shall be determined by FPSIL and shall remain subject to change. The reimbursement amount shall not exceed $125.00+GST (NZD) per week.

11.4 Payment and Reimbursement:

(a) If the Client fails to make payment for the ongoing costs of any additional duration of FPSIL-arranged temporary fencing within 7 days from the date of FPSIL’s invoice, FPSIL shall issue a written warning to the Client, notifying them of the outstanding payment. An administration charge of $50.00+GST (NZD) will then be applied.

(b) In addition to the outstanding payment and the administration charge, the Client shall also reimburse FPSIL for any and all weeks above the initial four-week duration of FPSIL-arranged temporary fencing, as well as any other outstanding incurred costs for the temporary fencing above what was specified in the accepted quote.

11.5 Default and Enforcement:

(a) If payment for the ongoing costs, outstanding amounts, and additional charges is not made within 7 days of the written warning mentioned in clause 11.4(a), FPSIL reserves the right to take further action to enforce payment.

11.6 Additionally Required FPSIL-Arranged Temporary Fencing:

(a) If, during the course of the project, FPSIL determines that additional temporary fencing is required beyond what was initially quoted, FPSIL shall notify the Client of the need for such fencing and provide a separate quote for the cost.

(b) The Client acknowledges and agrees that any additionally required FPSIL-arranged temporary fencing shall be a cost borne by the Client. The Client shall be responsible for covering the cost of the additional temporary fencing whether invoiced immediately or not.

(c) The cost of the additionally required FPSIL-arranged temporary fencing shall be charged at the same rate as quoted, unless otherwise agreed by both parties in writing.

(d) If this additional cost is not paid within 7 days of the invoice being sent to the Client, clause 11.5 will take effect.

11.7 Liability:

(a) FPSIL shall not be held liable for any injury, damage, or death resulting from the Client’s negligence, alteration, removal, or failure to comply with regulatory standards, FPSIL’s public liability insurance conditions, or the agreed-upon provisions regarding the temporary fencing.

(b) The Client acknowledges and accepts that any liability for accidents, injuries, deaths, or fines from authorities arising from the absence, alteration, or non-compliance of temporary fencing, whether FPSIL-arranged or Client-arranged, shall rest solely with the Client.

11.8 Additional Provisions:

(a) The Client shall promptly notify FPSIL of any concerns, damages, or necessary repairs related to the temporary fencing, regardless of whether it was provided and installed by FPSIL or arranged by the Client.

(b) FPSIL retains the right to inspect the temporary fencing at any time during the project and may request repairs or adjustments if necessary to maintain compliance with safety standards.

(c) FPSIL shall not be held liable for any injury, damage, or death resulting from the Client’s negligence or failure to comply with regulatory standards, FPSIL’s public liability insurance conditions, or the agreed-upon provisions regarding temporary fencing.

(d) The Client understands that the removal of temporary fencing may only occur upon completion of the project and approval from the relevant authorities, as required by applicable laws and regulations. Any costs associated with repairs, replacements, or additional temporary fencing required due to the Client’s actions or non-compliance shall be the sole responsibility of the Client.

 

12. Client Responsibilities

12.1 Where FPSIL requires that Materials, tools etc. required for the Works be stored at the site, the Client shall supply FPSIL a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. If any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.

12.2 FPSIL is not responsible for the removal of rubbish from or cleaning of the building/construction site. This is the responsibility of the Client unless otherwise specified.

12.3 The Client acknowledges and agrees to fulfill the following responsibilities, unless otherwise stated:

(a) Provide and erect scaffolding, where deemed necessary by FPSIL, to facilitate the Works. All scaffolding must adhere to industry safety standards. The Client shall ensure that any person erecting the scaffolding is suitably qualified to ensure its safe and proper erection, and where necessary, holds a current certificate of competency and/or is fully licensed. The Client shall also be responsible for the timely dismantling and removal of the scaffolding upon completion of the Works.

(b) Remove any furniture or personal items from the vicinity of the Works. FPSIL shall not be liable for any damage caused to these items resulting from the Client’s failure to comply with this clause.

(c) Assume full responsibility for the presence and safety of any animals and/or children at the worksite.

(d) Provide any heavy equipment, as requested by FPSIL for the Works. The equipment must be in good working order and comply with all safety regulations, with sufficient fuel for the Works.

12.4 The Client acknowledges that no other tradespeople will interfere with any Works and/or Materials supplied under this Contract. FPSIL shall not be liable for any costs, damages, or loss, however arising from the Client’s failure to comply with this clause.

12.5 In the event that during the course of the Works, FPSIL discovers any fossils, artifacts, or any other remains of geological or archaeological interest, FPSIL reserves the right to halt all Works, remove any of their equipment from the Worksite, and immediately notify the Client. Unless subject to clause 29.1, the Client acknowledges and agrees that any additional costs incurred by FPSIL as a result of any such delays (including, but not limited to, in the event FPSIL is unable to remove their equipment from the Worksite, etc.) shall be borne by the Client and treated as a variation in accordance with clause 6.2.

12.6 Where FPSIL has completed delivery, all risk passes to the Client as per clause 10.1. If the Client claims the Materials have been stolen, it shall be the Client’s responsibility to contact the police and shall not excuse the Client from fulfilling their financial obligations under this contract.

12.7 Where FPSIL relies on the accuracy and completeness of any surveyed boundary lines, plans, specifications, and other information supplied by the Client, the Client acknowledges and agrees that this information is accurate and complete. FPSIL accepts no responsibility for any loss, damages, or costs resulting from inaccurate or incomplete information.

12.8 FPSIL or its authorised representative will provide the Client with a manufacturer’s information sheet on pool chemical usage for optimal maintenance. Additionally. FPSIL or its authorised representative will provide a training session on pool maintenance. The Client will be required to sign a form acknowledging receipt of the training.

12.9 The Client acknowledges and agrees to take full responsibility for maintaining the installed swimming pool and associated equipment, in addition to the obligations set forth in this clause:

(a) The Client shall proactively test and balance the pool water chemicals to ensure water quality remains within recommended parameters. Chlorine levels must not exceed 2.5 parts per million (PPM). This also includes maintaining proper pH levels and other chemical balances as advised during the training session.

(b) The Client shall operate, maintain, and clean the pool equipment, including pumps, filters, and heaters, strictly following the manufacturer’s guidelines and instructions provided during the training session.

(c) The Client shall routinely clean the pool filter to prevent clogs and maintain efficient water circulation. Neglecting filter maintenance may result in reduced water quality and equipment damage.

(d) If applicable, the Client shall regularly perform backwashing of the pool filter system in an environmentally compliant manner to remove debris and sustain optimal filtration.

(e) The Client shall not drain the pool without obtaining prior consultation and approval from FPSIL or another suitably experienced professional. Draining the pool without adhering to proper guidance may lead to structural damage or complications, and any resultant issues shall be the Client’s responsibility.

(f) Prior to cleaning the pool or its surroundings, the Client shall ensure the filter pump is turned off to prevent debris from entering the filter system. Failing to do so may lead to equipment damage, and the Client shall be accountable for such outcomes.

(g) To maintain the pool’s functionality and condition, the Client must arrange for professional maintenance services, as recommended by industry experts. Disregarding this maintenance requirement may result in water quality deterioration, equipment malfunction, and related issues. The Client shall bear full responsibility for adhering to best practices in pool maintenance, acknowledging that FPSIL is not liable for any issues arising from insufficient maintenance.

12.10 Prior to the commencement of the Works, the Client acknowledges that pools located on reactive clay soils may present specific structural challenges. The Client is advised to consider the soil conditions at the pool installation site. Proper precautions and professional assessments may be necessary to address potential issues arising from clay soils. The Client understands and agrees that any concerns or issues related to the soil conditions shall be the sole responsibility of the Client. FPSIL shall not be held liable for any structural problems or complications that may arise due to the characteristics of the soil at the installation site. The Client is encouraged to seek appropriate expert advice in such cases.

 

13. Asbestos/Hazardous Materials

13.1 Prior to FPSIL commencing any works, the Client must advise FPSIL of the precise location of all known Asbestos/Hazardous Materials on the site and provide clear and specific identification or labeling of these materials. Removal from the site and the disposal of asbestos/hazardous materials shall at all times be the Client’s responsibility unless otherwise agreed in writing.

13.2 If FPSIL discovers Asbestos/Hazardous materials while undertaking any works, FPSIL shall immediately advise the Client. FPSIL may also suspend the Works pending a risk assessment in relation to those materials. The Client shall be liable for all additional costs incurred by FPSIL as a result of the discovery of asbestos/hazardous materials and/or any suspension of works related to them.

13.3 As per clause 13.1; In situations where the presence of Asbestos/Hazardous Materials is discovered during the course of the Works, the Client shall be solely responsible for the safe and compliant removal of such materials. FPSIL will not handle the removal of any Asbestos products, and the Client agrees that any costs or actions related to the removal and disposal of Asbestos/Hazardous Materials shall be borne by the Client.

 

14. Legal and Regulatory Compliance

14.1 The Client and FPSIL shall comply with the provisions of all statutes, regulations, and bylaws of government, local, and other public authorities that may be applicable to the Works, including any other Worksafe health and safety laws relating to worksites and any other safety standards or legislation.

14.2 The Client shall be responsible for obtaining any necessary building consent, resource consent, and other licenses and approvals required for the Works. FPSIL will require confirmation that all consents and approvals have been obtained by the Client prior to the commencement of the Works. If any required consents are only obtained following the commencement of the Works, any additional cost incurred due to any changes to the original plans and specifications provided by the Client shall be charged as a variation.

14.3 FPSIL agrees at all times to comply with sections 28 and 34 of the Health & Safety at Work Act 2015 (the “HSW Act”), meeting their obligations for health and safety.

14.4 FPSIL shall, upon installation, ensure that all Materials are manufactured and installed in a manner that is fully compliant with industry standards, most notably AS/NZS 1838:1994, 1839:1994, and Building Act 2004, clause F9. 2004. If the Client requires the Materials to be installed in a way that does not meet these standards, FPSIL offers no warranty and reserves the right to rescind the contract without any loss or damages liability to them.

 

15. Protection of Underground Services

15.1 Prior to commencing any work, the Client must inform FPSIL of the precise location of all underground services on the site and clearly mark them. The underground mains and services to be identified by the Client include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fiber optic cables, oil pumping mains, and any other services that may be present on the site.

15.2 While FPSIL will exercise all due care to avoid damage to any underground services, the Client agrees to indemnify FPSIL against any liability claims, losses, damages, costs, and fines resulting from damage to services not precisely located and notified as per Clause 15.1.

 

16. Ownership of Materials and Fixtures

16.1 FPSIL and the Client agree that ownership of the Materials and Fixtures shall not pass to the Client until all payment obligations to FPSIL have been fulfilled, and all other obligations to FPSIL have been met.

16.2 It is further agreed that:

(a) Any excess Materials will remain the property of FPSIL and shall be removed from the site on completion of the Works, unless the Materials have become Fixtures.

(b) Until ownership of the Materials and Fixtures passes to the Client in accordance with Clause 16.1, the Client is only a bailee of the Materials and Fixtures, and unless they have become fixtures, the Client must return them to FPSIL upon request.

(c) The Client shall promptly obtain and maintain adequate insurance coverage for the Materials and Fixtures from the commencement of the Works until ownership passes to the Client in accordance with Clause 16.1. The Client shall provide evidence of such insurance coverage to FPSIL upon request.

(d) The Client shall promptly pursue any insurance claims with their insurer for the Materials and Fixtures being lost, damaged, or destroyed. FPSIL shall not be responsible for directly contacting the Client’s insurer, but the Client shall cooperate with FPSIL to facilitate the claim process, as required.

(e) Upon entering into this contract, the Client acknowledges that FPSIL is entitled to receive the insurance proceeds directly from the insurer without the need for any further enquiries, upon successful insurance claim settlement.

(f) The Client must not sell, dispose of, or otherwise part with possession of the Materials and Fixtures other than in the ordinary course of business and for market value. If the Client sells, disposes of, or parts with possession of the Materials and Fixtures, then the Client must hold the proceeds of any such act on trust for FPSIL and must pay or deliver the proceeds to FPSIL on demand.

(g) The Client should not convert or process the Materials and Fixtures or intermix them with other goods, but if the Client does so, then the Client holds the resulting product on trust for the benefit of FPSIL and must sell, dispose of, or return the resulting product to FPSIL as it so directs.

(h) The Client irrevocably authorises FPSIL to enter any premises where FPSIL believes the Materials and Fixtures are kept and recover possession of the Materials and Fixtures, unless they have become fixtures or full payment has been made.

(i) FPSIL may recover possession of any Materials in transit whether delivery has occurred or not.

(j) The Client shall not charge or grant an encumbrance over the Materials and Fixtures nor grant nor otherwise give away any interest in the Materials and Fixtures while they remain the property of FPSIL.

 

17. Ownership and Security Interest

17.1 A security interest is taken by FPSIL in all present or after-acquired Materials and Fixtures supplied by FPSIL to the Client. Ownership of the Materials and Fixtures shall remain with FPSIL until the completion of the Works and full payment of all amounts owing to FPSIL by the Client. The Client further acknowledges that these Terms & Conditions of Trade constitute a security agreement that creates a security interest in favor of FPSIL for all Materials and Fixtures previously supplied, present and after-acquired Materials and Fixtures, and intellectual property arising out of or in connection with the Services.

17.2 The Client also agrees to grant a “Purchase Money Security Interest” to FPSIL in respect of all amounts owed by the Client to FPSIL, as defined in the PPSA.

17.3 Where Materials and Fixtures supplied by FPSIL remain unpaid and are sold by the Client, the following provisions shall apply:

(a) The book debt created on the sale and the proceeds of sale, when received, shall be held by the Client for FPSIL in terms of section 45 of the PPSA.

(b) If any proceeds of sale are placed in the Client’s bank account, the funds in the Client’s bank account shall be deemed to be held in trust for FPSIL to the extent of the proceeds of sale.

(c) Where any payments are made from the Client’s bank account otherwise than to FPSIL, payment shall be deemed to have been made from all other funds in the Client’s bank account and not from funds held in trust for FPSIL.

(d) The trust obligation imposed by this clause and FPSIL’s entitlements under the PPSA shall continue for as long as FPSIL remains unpaid for all Materials and Fixtures supplied to the Client.

17.4 By accepting the specific goods and services mentioned in the Contract or Quote provided by FPSIL, the Client acknowledges and agrees that FPSIL may take necessary actions to protect its interests, including registering any applicable security interest or financing statement related to the Materials and Fixtures provided for the completion of the Works.

17.5 The Client agrees that the following sections of the PPSA shall not apply to these Terms & Conditions: 114(1)(a), 133, and 134.

17.6 If any of the Goods are incorporated in or used as material for other goods before payment is made, ownership of the whole of the other goods shall remain with FPSIL until payment is made. FPSIL’s Security Interest in the Goods shall continue in accordance with the terms of section 82 of the PPSA.

17.7 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

17.8 Unless otherwise agreed to in writing by FPSIL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

17.9 The Client shall unconditionally ratify any actions taken by FPSIL under clauses 17.1 to 17.8.

 

18. Security and Charge

18.1 In consideration of FPSIL agreeing to supply the Works, the Client hereby grants FPSIL a security interest in all of its present and after-acquired rights, title, and interest in any land, realty, or other assets capable of being charged, whether owned solely or jointly by the Client, to secure the due and punctual performance by the Client of its obligations under these Terms & Conditions, including the payment of any money owed to FPSIL.

18.2 The Client agrees to indemnify FPSIL against all costs and disbursements, including legal costs on a solicitor and own Client basis, incurred by FPSIL in exercising its rights under this clause.

 

19. Defects

19.1 The Client must inspect the Materials and Works promptly upon completion and inform FPSIL of any alleged defect, shortage, damage, or failure to meet the agreed description or quote within three (3) days (time is of the essence). If the Client believes there are defects, FPSIL must be given a reasonable opportunity to inspect the Materials and Works. Failure to comply with these provisions will presume the Materials and Works are free from any defect or damage. For Materials or Works that FPSIL agrees in writing to be defective, FPSIL’s liability is limited to either (at FPSIL’s discretion) replacing or repairing the defective Materials or Works.

19.2 If the Client reports any defects in the Works within 12 months from the date of completion and communicates them to FPSIL in writing during this period, FPSIL shall promptly rectify such defects. FPSIL will make reasonable efforts to address any reported defects within this 12-month period.

19.3 The Client’s rights under this clause are in addition to any other rights and remedies the Client may have under the New Zealand Building Act 2004 and the Consumer Guarantees Act 1993. These acts provide essential protections and warranties for construction projects and set guarantees for goods and services supplied in trade, ensuring they meet certain standards of quality and fitness for purpose.

19.4 Materials will not be accepted for return except in accordance with Clause 19.1 above.

 

20. Warranties

20.1 Workmanship Warranty:

Subject to the conditions of warranty set out in clause 20.3, FPSIL warrants that any defects in workmanship for the Marbletech range shall become apparent and be reported to FPSIL within twelve (12) years for both residential and commercial Clients. For the Marbletech Shimmer Range, the warranty period is six (6) years for both residential and commercial Clients. The warranty takes effect from the completion date of the Works (time being of the essence). In such cases, FPSIL will, at its sole discretion, either repair the defective workmanship or replace the Materials with new ones. Additionally, the Marbletech range includes a twelve (12) year fade-resistant warranty (cosmetic only), and the Marbletech Shimmer Range includes a six (6) year fade-resistant warranty (cosmetic only). To claim this warranty, the Client must notify FPSIL promptly and allow inspection of the Materials or review of the Works upon discovering any defects covered under this warranty.

20.2 Client Responsibility:

Notwithstanding the provisions of clause 19; in order to ensure the validity of the warranty, the Client must grant FPSIL the first refusal to inspect and remedy any alleged claim. Engaging a third party for rectification without FPSIL’s consent will void any previously offered warranty.

20.3 Warranty Conditions:

(a) The warranty shall not cover defects or damages caused or partly caused by:

(i) Improper maintenance of Materials by the Client.

(ii) Failure to follow instructions or guidelines provided on the Client responsibility sheet by FPSIL.

(iii) Use of Materials for applications other than specified on the quote or order form.

(iv) Continued use of Materials after defects became or should have become apparent.

(v) Fair wear and tear, accidents, or acts of God (see clause 29.1).

(b) The warranty shall cease if workmanship is repaired, altered, or overhauled without FPSIL’s consent.

(c) FPSIL shall not be liable for compensation for delays in replacing, remedying, or assessing claims.

20.4 Manufacturer’s Warranty:

For Materials not manufactured by FPSIL, the warranty shall be based on the current warranty provided by the manufacturer of the Materials. FPSIL is not bound by nor responsible for any other terms, conditions, representations, or warranties given by the manufacturer of the Materials.

20.5 Fibreglass Pools Warranty:

All fibreglass pools manufactured and processed by FPSIL are covered by a thirty-five (35) year structural warranty coupled with a three (3) year cosmetic warranty against manufacturing defects.

 

21. Consumer Guarantees Act 1993

21.1 If the Client is acquiring Materials for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Materials by FPSIL to the Client.

 

22. Intellectual Property

22.1 Where FPSIL has designed, drawn, written plans, or created any products for the Client, the copyright in all such designs, drawings, documents, plans, schedules, and products shall remain vested in FPSIL, and the Client shall only use them with FPSIL’s express written approval. Under no circumstances may such designs, drawings, and documents be used without the prior written consent of FPSIL.

22.2 The Client warrants that all designs, specifications, or instructions given to FPSIL will not cause FPSIL to infringe any patent, registered design, or trademark in the execution of the Client’s order. The Client agrees to indemnify FPSIL against any action taken by a third party against FPSIL in respect of any such infringement. Any approval or written consent required from FPSIL shall be obtained in writing.

22.3 The Client agrees that FPSIL may, at no cost to FPSIL, use for marketing or promotional purposes, or for entry into any competition, any documents, designs, drawings, plans, products, photos, and videos which FPSIL has created for or taken on-site during the project for the Client.

 

23. Overdue Invoices

23.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment at a rate of two and a half percent (2.5%) per calendar month (and at FPSIL’s sole discretion, such interest shall compound monthly at such a rate).

23.2 If the Client owes FPSIL any money, the Client shall indemnify FPSIL from and against all costs and disbursements incurred by FPSIL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Client basis, FPSIL’s collection agency costs, and bank dishonour fees).

23.3 Further to any other rights or remedies FPSIL may have under this Contract, if a Client has made payment to FPSIL, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by FPSIL under this clause 23, where it is found that such reversal is illegal, fraudulent, or in contravention of the Client’s obligations under this Contract.

23.4 Without prejudice to FPSIL’s other remedies at law, FPSIL shall be entitled to cancel any or all parts of any contract or agreement with the Client which remains unfulfilled, and all amounts owing to FPSIL shall, whether due for payment or not, become immediately payable if:

(a) any money payable to FPSIL becomes overdue, or in FPSIL’s opinion, the Client will be unable to make a payment when it falls due; or

(b) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors. The Client agrees that any amounts owed to FPSIL shall be paid in priority to all other creditors and obligations of the Client.

(c) a receiver, manager, liquidator (provisional or otherwise), or similar person is appointed in respect of the Client or any asset of the Client.

 

24. Cancellation

24.1 Without prejudice to any other rights or remedies FPSIL may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Client of such notice/s), FPSIL may suspend the Works immediately. FPSIL will not be liable to the Client for any loss or damage the Client suffers as a result of FPSIL exercising its rights under this clause.

24.2 FPSIL may cancel any contract to which these Terms & Conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice, FPSIL shall refund to the Client any sums paid in respect of the Works, less any amounts owing by the Client to FPSIL for Works already performed. Cancellation fees or charges from contractors involved in job-specific equipment or services may also apply, at FPSIL’s sole discretion. FPSIL reserves the right to apply its own cancellation fee, at its discretion, to cover costs related to the cancelled order.

24.3 In the event that the Client cancels the delivery of Works, the Client shall be liable for any and all loss incurred (whether direct or indirect) by FPSIL as a direct result of the cancellation (including, but not limited to, any loss of profits).

24.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed. In exceptional circumstances, where FPSIL determines them to be valid, FPSIL may, at its discretion, review the potential return of funds (minus any costs accrued) related to the cancelled order.

 

25. Privacy Policy

25.1 All emails, documents, images, or other recorded information held or used by FPSIL is Personal Information as defined and referred to in clause 25.3 and therefore considered confidential. FPSIL acknowledges its obligation in relation to the handling, use, disclosure, and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”). FPSIL acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by FPSIL, that may result in serious harm to the Client, FPSIL will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.

25.2 Notwithstanding clause 25.1, privacy limitations will extend to FPSIL in respect of Cookies used for transactions conducted directly through FPSIL’s website. FPSIL agrees to display references to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable). These technologies may collect Personal Information, including the Client’s IP address, browser, email Client type, and other similar details; track website usage and traffic; and provide reports to FPSIL when sending emails to the Client. In order to enable/disable the collection of Personal Information through Cookies, the Client shall have the right to do so by selecting the appropriate option on the website before proceeding with a transaction via FPSIL’s website.

25.3 The Client authorises FPSIL or FPSIL’s agent to:

(a) access, collect, retain, and use any information about the Client for the following purposes:

(i) assessing the Client’s creditworthiness, which may include personal details (name, address, date of birth, occupation, contact information, etc.), credit history, and any other relevant information required for credit assessment; or

(ii) marketing products and services to the Client, subject to the Client’s consent where required by applicable laws.

(iii) disclose information about the Client, including personal and credit-related information, to any other credit provider or credit reporting agency for the purposes of obtaining a credit reference, debt collection, or notifying a default by the Client.

25.4 Where the Client is an individual, the authorities granted under clause 25.3 are considered authorities or consents for the purposes of the Privacy Act 2020.

25.5 The Client shall have the right to request from FPSIL a copy of the personal information about the Client retained by FPSIL, and the right to request FPSIL to correct any incorrect personal information about the Client held by FPSIL.

 

26. Service of Notices

26.1 Any written notice required by these Terms & Conditions shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person; or

(b) by leaving it at the address of the other party as specified in these Terms & Conditions; or

(c) by sending it by registered post to the address of the other party as specified in these Terms & Conditions, with proof of delivery; or

(d) if sent by email to the other party’s last known email address and obtaining a delivery receipt or read receipt.

 

27. Trusts

27.1 If the Client is acting as a trustee of any trust (“Trust”) upon or subsequent to entering into the Contract:

(a) The Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund.

(b) The Client has full and complete power and authority under the Trust to enter into the Contract, and the provisions of the Trust do not exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any action that might prejudice that right of indemnity.

(c) The Client will not, without the prior written consent of FPSIL (which will not be unreasonably withheld), cause, permit, or suffer the occurrence of any of the following events:

(i) The removal, replacement, or retirement of the Client as trustee of the Trust.

(ii) Any alteration or variation of the terms of the Trust.

(iii) Any advancement or distribution of capital of the Trust.

(iv) Any resettlement of the trust property.

 

28. Dispute Resolution, Mediation, and Communication

28.1 The failure by either party to enforce any provision of these Terms & Conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these Terms & Conditions shall be invalid, void, illegal, or unenforceable, the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.

28.2 These Terms & Conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Christchurch, New Zealand.

28.3 If any dispute or difference arises between the parties (FPSIL and the Client) concerning the Agreement, Contract or any aspect of FPSIL’s products, services, or dealings with each other, the parties agree to first attempt to resolve the matter in good faith through negotiation.

28.4 Upon the occurrence of a dispute, the initiating party shall promptly provide written notice to the other party, setting out the details of the matter and requesting a resolution in good faith. The receiving party shall respond in writing within a reasonable timeframe, as mutually agreed upon by the parties, not to exceed 20 working days from the date of receiving the notice.

28.5 If the receiving party fails to respond within the agreed-upon timeframe or if the parties cannot reach a mutually acceptable resolution through negotiation, the parties shall, in the first instance, have the right to submit the matter to mediation.

28.6 Mediation shall specifically address the disputed issues as outlined in the written notice provided by either party. The parties shall equally share the reasonable cost of mediation, unless either party (FPSIL or the Client) is determined to be at fault. If either party is determined to be at fault, that party shall bear the entire reasonable cost of mediation.

28.7 The parties agree to make a genuine effort to complete the mediation process within 30 working days from the initiation of mediation or any other agreed-upon period.

28.8 If mediation successfully resolves the dispute, the terms of the resolution shall be reduced to writing and signed by both parties as evidence of their agreement.

28.9 If mediation fails to resolve the dispute or if either party refuses to participate in the negotiation, the parties shall, as the next step, have the right to submit the matter to arbitration in accordance with the Arbitration Act 1996 or its replacement(s).

28.10 If arbitration fails to resolve the dispute, then the parties have the right to submit the dispute to the exclusive jurisdiction of the courts of New Zealand.

28.11 FPSIL is not a party to any disputes between the Client and contractors/subcontractors engaged by the Client or FPSIL, regardless of who introduced or engaged them. FPSIL shall have no direct involvement in the resolution of such disputes. However, FPSIL and the contractors/subcontractors may, if required, provide factual and non-biased assistance to either the Client or FPSIL in resolving the disputes in an advisory capacity.

28.12 FPSIL may elect to subcontract out any part of the Works but shall remain responsible for the satisfactory completion of the entire Contract with the Client. The parties (FPSIL and the Client) agree and understand that FPSIL has the authority to give instructions to any of FPSIL’s subcontractors concerning the Works without requiring further approval from the Client. However, the Client agrees not to provide any instructions directly to FPSIL’s subcontractors without prior approval from FPSIL.

28.13 FPSIL shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by FPSIL of these Terms & Conditions (alternatively FPSIL’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

28.14 The parties (FPSIL and the Client) agree not to create, distribute, or engage in any negative communication, including but not limited to negative press, written statements, spoken words, online reviews, social media content, or any other form of communication, either directly or through third parties acting on their behalf, that could impact the other party’s reputation or future business prospects.

 

29. General

29.1 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, or other event beyond the reasonable control of either party (referenced as Force-Majeure).

29.2 FPSIL’s Terms & Conditions of Trade may be amended from time to time by FPSIL, and the updated version shall be effective upon posting on FPSIL’s official website or providing notice to the Client. Any such amendments shall supersede and override any prior versions of the Terms & Conditions, regardless of the version in force at the time an agreement was entered into. Any agreement entered into prior to the effective date of a new version of the Terms & Conditions shall be subject to the newer version of the Terms & Conditions, unless expressly agreed otherwise in writing.

29.3 Both parties (FPSIL and the Client) warrant that they have the power and necessary authorizations to enter into this Contract. The Client acknowledges having the opportunity to review the Agreement, Contract, and Terms & Conditions with a legal representative, thereby confirming the enforceability and legality of this binding agreement. Additionally, both parties confirm their solvency at the time of entering into this Contract.