Standard Terms of Trade

All services provided to you (the Customer) by Active Refrigeration Limited (or its related entities) (the Company) are supplied on these terms of trade (Terms) unless otherwise agreed in writing.

By requesting the supply of services from the Company, the Customer agrees to be bound by these Terms and these Terms apply to the exclusion of all other terms.

Definitions

In these Terms, the following terms have the meanings specified:

Business Day means any day other than a Saturday, Sunday, or public holiday, on which registered banks are generally open for business in Christchurch.

Completion means the completion of the Services (as notified to the Customer by the Company in writing).

Defect means, in respect of Services and Materials, any defect in design, performance or workmanship or any non-compliance with the requirements set out in these Terms and/or the relevant Purchase Order.

Defects Notification Period means the period of 6 months from Completion.

Deliverables means the deliverables set out in the relevant Purchase Order.

Expected Completion Date means any date specified in a Purchase Order for the provision of a Deliverable and for Completion of the Services.

Fee means the fee payable by the Customer for the Services.

Materials means the materials, parts and components provided by the Company as part of or incidental to the provision of the Services.

Purchase Order means a written order agreed in writing between the Customer and the Company from time to time for the provision of Services.

Services means all services (including any applicable Materials) the Company agrees to provide to the Customer in a Purchase Order, and any variations agreed in accordance with clause 6.

Site means the site at which the Company will perform the Services as set out in a Purchase Order.

1. Price

1.1 The Goods and Services are supplied at the price quoted and in the absence of a quote, at the Company’s list price and, in both cases, as invoiced.

2. Payment

2.1 Payment is to be made on the 20th of the month following invoicing. If payment is not made within this time, any discount allowed may be revoked and charged to the Customer.

2.2 The Customer shall make all payments without set−off or deduction of any kind. Receipt of a cheque, bill of exchange, or other negotiable instrument will not constitute payment and the Customer remains liable for payment until cleared payment is received by the Company.

2.3 Failure by the Customer to make payment of any amount payable pursuant to these Terms on the due date shall constitute default and without prejudice to any rights and remedies of the Company, the Customer shall pay to the Company penalty interest on such amount at a rate of 1.5% a month. Such interest shall be payable upon demand and shall accrue on a daily basis from the due date of payment.

2.4 The Company will apportion payments to outstanding accounts as it sees fit.

2.5 The Company is under no obligation to supply any Goods or Services to the Customer on credit or at any time when money is owed to the Company, unless the Company agrees otherwise in writing. The Company may notify the Customer at any time that the Company is going to stop supplying Goods or Services on credit, without prejudice to the Customer’s obligation to pay all amounts owing.

3. Services

3.1 The Customer may request Services from the Company from time to time, but no order is binding unless accepted by the Company in writing and recorded in a Purchase Order

3.2 The Company will provide the Services with reasonable skill, care, and diligence, in accordance with good industry practice and all applicable laws.

4. Timing for Provision of The Services

4.1 The Company will use reasonable endeavours to complete the Services on or prior to the Expected Completion Date or, if no date is specified, within a reasonable time. The Company is not liable for any delay caused by factors beyond the Company’s reasonable control.

4.2 The Company will advise the Customer as soon as practicable after it becomes aware of any delay or expected delay to the completion of the Services.

5. Risk and Title

5.1 Title to any Materials provided by the Company will pass to the Customer on full payment of the Services.

5.2 Risk in any Materials will pass to the Customer on Completion.

5.3 The Customer agrees that any Materials are subject to a security interest in favour of the Company to secure payment of all amounts owing under these Terms.

5.4 The Customer acknowledges that the Company may register its security interest on the Personal Property Securities Register.

5.5 To the maximum extent permitted by law, the Customer agrees to provide all requested information and assistance to allow the Company to register, maintain and enforce its security interest.

6. Variation

6.1 If a party proposes a variation, the parties will act in good faith to negotiate the terms of that variation, which may include a fair and reasonable adjustment to the Fee and the Expected Completion Date.

6.2 No variation is binding on either party until it is agreed in writing, including as to the adjustment to Fees and the Expected Completion Date.

7. Fees and Payment

7.1 The Fee will be specified in, or otherwise determined in accordance with, a Purchase Order, unless otherwise agreed by the parties in writing.

7.2 Unless otherwise agreed in a Purchase Order, the Fee excludes taxes, duties, levies or similar (such as GST) applicable to the Services. The Customer will be responsible for paying any such taxes, duties, levies or similar

7.3 Unless specified in a Purchase Order, payment of an invoice for the Services is due by the 20th day of the month following the month of the Company’s invoice and payable in accordance with the invoice without set-off, withholding or deduction of any kind.

7.4 The Company may charge default interest on overdue amounts at a rate of 1.5% per month calculated on a daily basis from the due date until the date of payment. Interest will be payable on demand.

7.5 If the Customer genuinely disputes an invoice, the Customer must notify the Company in writing before the due date for payment, stating the reasons for the dispute and instigating the dispute resolution process in clause 17. The Customer must pay any undisputed amount by the due date.

8. Customer Obligations

The Customer shall ensure:

(a) all information and documentation in its possession or control that is reasonably required for the Company to provide the Services is provided to the Company in a timely manner and is correct and complete; and

(b) the Company has access to the Site (and any required facilities or equipment) as reasonably required for it to perform the Services.

9. Defects

9.1 If the Customer notifies the Company of any Defect within the Defects Notification Period, the Company will, at its cost, remedy the notified Defect within a reasonable time, having regard to the nature and extent of the Defect and the lead times for any replacement Materials required.

9.2 If the Company does not remedy the notified Defects within such reasonable period, the Customer may rectify the Defect and recover the Customer’s reasonable actual costs of doing so from the Company.

10. Warranties

10.1 The Company warrants to the Customer that:

(a) it has the right, power, and authority to perform the Services and its obligations under these Terms and the Purchase Order;

(b) (unless agreed otherwise in writing) the Materials will be of merchantable quality, new and unused in good order and condition;

(d) the Services will be performed in accordance with all applicable laws; and

(e) the Services will comply with the requirements set out in these Terms and the Purchase Order.

10.2 In addition to the warranties given by the Company under clause 1, the Company will use reasonable endeavours to obtain and assign to the Customer the benefit of all supplier and manufacturer warranties provided by the relevant manufacturer or supplier in the ordinary course of its business in respect of any Materials. Where the Company is unable to assign such warranties to the Customer, the Company will hold those warranties (and all rights and interests in those warranties) in trust for the Customer’s benefit. The Company will, if requested by the Customer and at the Customer’s cost, exercise any rights and interests under those warranties and account to the Customer for all sums received on account of those warranties.

10.3 Except for the warranties set out in these Terms and any applicable Purchase Order, all other warranties and representations (including those expressed or implied by law) in respect of the Services and Materials are excluded to the extent permitted by law.

10.4 Each party agrees that the provision of the Services and Materials is for the purposes of trade and, having regard to all relevant circumstances, it is fair and reasonable that:

(a) the Consumer Guarantees Act 1993; and

(b) sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986,

do not apply to these Terms or any Purchase Order to the extent permitted by law.

11. Liability and Indemnity

11.1 Notwithstanding any other provision in these Terms and/or any Purchase Order, and to the extent permitted by law:

(a) the Company’s maximum liability to the Customer under or in connection with these Terms or a Purchase Order is limited to the total Fees paid by the Customer under the relevant Purchase Order giving rise to the liability;

(b) neither party will be liable to the other for any loss of profit, loss of revenue, loss of goodwill, loss of contract or opportunity, or any indirect, special or consequential loss arising under or in connection with these Terms and any Purchase Order; and

(c) the Company has no liability to the Customer for any loss or damage to the extent that loss or damage is caused by or arises from:

(i) delays due to the Customer’s failure to comply with its obligations under clause 8;

(ii) a force majeure event pursuant to clause 2; or

(iii) the Customer’s acts, omissions, or non-compliance with the Company’s or the manufacturer’s written instructions or manuals.

11.2 Nothing in these Terms limits or excludes the liability of either party for fraud, wilful default or gross negligence.

11.3 The limitations and exclusions in this clause 11 apply to any claim, whether in contract, equity, tort (including negligence) or otherwise.

11.4 Each party (the indemnifying party) indemnifies the other party (the indemnified party) against any loss, cost, liability, or expense (including reasonable legal costs) suffered or incurred by the indemnified party arising from any breach by the indemnifying party of these Terms.

12. Intellectual Property

12.1 Each party retains ownership of its pre-existing intellectual property.

12.2 Intellectual property created during the Services, including Deliverables, belongs to the Company unless agreed otherwise in writing.

12.3 The Company grants to the Customer a non-exclusive, non-sublicensable, non-transferable, licence fee-free and royalty-free licence to use the intellectual property and the Deliverables for the purpose for which the Services were provided.

13. Insurance

13.1 During the term of the provision of the Services, the Company will maintain:

(a) professional indemnity insurance of at least $5,000,000 per occurrence, and $10,000,000 in aggregate;

(b) third party motor vehicle insurance of $10,000,000 per occurrence; and

13.2 The Company will provide certificates of currency for any of the insurance policies referred to in clause 1 on request by the Customer.

14. Health and Safety

Where the Company is required to enter on to the Site to perform its obligations under these Terms, the Company will, and will ensure its employees, agents and subcontractors:

(a) comply with all relevant health and safety laws and regulations;

(b) comply with all health and safety rules, policies and procedures notified by the Customer to the Company in writing prior to the acceptance by the Company of the relevant order for Services;

(d) report to the Customer all notifiable accidents and/or incidents which occur while carrying out the Services while at the Site

15. Confidentiality

Each party shall treat all information and materials received from the other party as confidential and will not directly or indirectly disclose the same except to the extent:

(a) required by law or the rules of any applicable stock exchange;

(b) necessary to obtain the benefit of, or to carry out any obligation under, these Terms;

(d) that the information is publicly available other than by a breach of this clause.

16. Termination

16.1 Without limiting any other term in these Terms, either party (non-defaulting party) may terminate these Terms if the other party (defaulting party):

(a) has not remedied a material breach of these Terms within 10 Business Days of receiving written notice of such breach; or

(b) becomes insolvent.

16.2 Without limiting either party’s rights under clause 1, if the non-defaulting party is the Customer it may, as an alternative to termination, suspend the performance of its obligations under these Terms until such time as the breach is remedied.

16.3 On termination of these Terms for any reason, the Customer must pay all fees and costs for the Services provided up to the termination date, including any costs incurred by the Company in relation to the Services.

16.4 Termination does not affect any accrued rights or obligations under these Terms, or any clauses intended to survive termination.

17. Disputes

17.1 Where a dispute arises under these Terms, the parties shall use reasonable endeavours to resolve the dispute by way of good faith negotiations.

17.2 If the dispute cannot be resolved pursuant to clause 1, either party may refer the dispute to mediation. The mediation will be conducted by a sole mediator agreed by the parties, or failing agreement within 5 Business Days, appointed by the President of the New Zealand Law Society (or their nominee).

17.3 If the dispute is not resolved within 20 Business Days after the appointment of a mediator under clause 2 (or such longer period agreed in writing), the dispute must be referred to and resolved by arbitration in accordance with the Arbitration Act 1996. The arbitration will be conducted in either Auckland or Christchurch as agreed between the parties by a sole arbitrator agreed by the parties, or failing agreement within 10 Business Days, appointed by the President of the New Zealand Law Society (or their nominee). If the parties cannot agree on the location of the arbitration, the location shall be determined by the arbitrator (but must be either Auckland or Christchurch). The outcome of the arbitration will be binding on the parties.

17.4 Nothing in this clause prevents either party from seeking urgent injunctive or interlocutory relief from a court of competent jurisdiction.

18. Miscellaneous

18.1 Information/privacy: The Customer authorises the Company to collect, use, and disclose personal information required for the Services in accordance with the Privacy Act 2020. If either party provides personal information to the other party, the disclosing party warrants to the other that it has obtained the individuals’ consent to collect, use and disclose that personal information.

18.2 Force majeure: Neither party will be liable for any delay or non-performance of these Terms to the extent caused by an event beyond a party’s reasonable control which could not have reasonably avoided by that party by taking reasonable steps (excluding financial insufficiency).

18.3 Entire agreement: These Terms, together with a Purchase Order, is the entire agreement between the Customer and the Company for the supply of the Services and replaces all prior agreements and communications (either oral or written).

18.4 Waiver: Any waiver of these Terms must be in writing and signed by the waiving party.

18.5 Assignment and subcontracting: Neither party may assign rights or obligations under these Terms without the other’s prior written consent (which cannot be unreasonably withheld). The Company may subcontract its obligations at its discretion but will remain responsible to the Customer for the obligations so subcontracted as if such obligations had not been subcontracted.

18.6 Severability: If any provision in these Terms is held by any court or administrative body to be illegal, void or unenforceable, that provision will be amended to the extent necessary to make it legal and enforceable without altering its meaning or intent.

18.7 Governing law: These Terms will be governed by the laws of New Zealand, and the Customer and the Company agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.

18.8 CCA: Nothing in these Terms will negate or limit any rights of a party under the Construction Contracts Act 2002 (if any).