Terms and Conditions — Above Water

Terms of Trade – Above Water Engineering Limited

(LAST UPDATED AUGUST 2023)

1. PROVISION OF SERVICES
1.1 Above Water Engineering Limited (Above Water) is a civil engineering company offering engineering services (Services).

1.2 The parties will agree on a statement of work (Statement of Work) detailing the Services that the Customer has asked Above Water to perform. Above Water shall perform the Services in accordance with the Statement
of Work and these terms and conditions (Terms), and the Customer shall pay Above Water the fees in accordance with the Statement of Work and these Terms (Fees).

1.3 The Statement of Work contains the entire list of Services the Customer has asked Above Water to provide, and bnothing contained in any prior correspondence (whether in writing or otherwise) will form part of this agreement or the Scope of Works. If the Customer asks Above Water to provide additional Services, Above Water shall be entitled to revise their estimated Fees for completing those Services.

1.4 If any part of the Statement of Work conflicts with the Terms, the Statement of Work shall prevail over the
Terms.

1.5 A Statement of Work may be completed in any writtenformat (for example, via an email exchange between
parties). Notwithstanding clauses 1.2 – 1.4, the Terms will continue to apply for all Services provided by Above
Water to the Customer, even if the parties fail to complete a Statement of Work.

1.6 These Terms or the Scope of Works may only be amended in writing with the consent of both parties.

1.7 Every time the Customer engages Above Water it is deemed to have reconfirmed the Customer’s agreement
to these Terms.

2. FEES AND PAYMENT
2.1 Any Fee estimates included in the Statement of Work are estimates only, based on the information reasonably
available to Above Water at the time the Statement of Work was issued. Sometimes Above Water is required to
undertake any additional work or use additional materials not reasonably foreseeable at the time the Statement of Work was agreed upon, in which case Above Water shall be entitled to revise any fee estimate and issue further Fees for such additional work or materials.

2.2 The Customer will pay all Fees invoiced by Above Water net 20th of the month following the receipt of invoice.

2.3 If a fee estimate has not been provided in the Statement of Work (or for any additional work that may be
requested or required that was not included in the Statement of Work), Above Water shall be entitled to
issue Fees on a time-spent basis.

2.4 All Fees noted in this agreement are GST exclusive unless stated otherwise, and are in New Zealand Dollars.

2.5 If more than one person or entity is listed as the Customer, each person or entity agrees to be jointly and
severally liable for payment of all Fees and other charges.

2.6 If Above Water provides any Services outside the Above Water normal place of work, the Customer shall be
responsible for all costs incurred by Above Water from the time they depart from, and until they return to, their
normal place of work.

3. CUSTOMER OBLIGATIONS:
3.1 To allow Above Water to provide the Services in a timely manner, the Customer acknowledges that:
(a) it must provide Above Water with allreasonably relevant information to theprovision of the Services, including (where relevant) information required from otherthird parties;

(b) it must provide Above Water with reasonable access to any Site that relates to the Services; it must communicate openly and punctually

(d) if required by Above Water, the supply of Services on credit shall not take effect until the Customer has completed a credit application with Above Water and it has been approved with a credit limit established for the account. If the supply of Services request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Above Water reserves the right to refuse to complete the Services. As an alternative, Above Water may request that a deposit be paid from time-to-time for work to be carried out;

(e) If Above Water makes a call-out to carry out Services at the Customer’s site (or other
location) that is above and beyond what has been accounted for in the Statement of Work, then Above Water may charge a minimum callout price based on Above Water’s standard hourly rate plus travel;

(f) If Above Water arrive at any external site to find the Site is unable to be safely accessed by any reason outside of Above Water’s control, then Above Water reserves the right to charge the Customer for the time taken to remedy the lack of accessibility, based on Above Water’s standard hourly rate plus travel, unless
otherwise agreed between Above Water and the Customer; and

(g) Both parties agree that they shall make every reasonable endeavour to enable the Services to be completed within a reasonable timeframe or by any time that was agreed in the Statement of Work, however any such time
is an estimate only and Above Water will not be liable for any loss or damage incurred by the Customer if any timeframes are not met. If Above Water is unable to complete the Services as agreed solely due to any action or
inaction of the Customer, then Above Water shall be entitled to charge a reasonable price for any costs incurred due to the delay.

4. ADDITIONAL CHARGES
4.1 Above Water reserves the right to change the Fees charged to the Customer:

(a) if a variation to the Scope of Works and/or theServices (including any applicable Plans,specifications or other information) isrequested or required, including any additionalServices or remedial works; or

(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to unexpected features found at the site or inclement weather which Above Water could not have reasonably been aware of, or were not made aware of by the Customer as the case may be); or

5. LIABILITY & LIMITATION
5.1 Services carried out by Above Water are usually only part of a larger Client project, and when providing Services Above Water often rely on data or other third-party service providers arranged by the Client, and are often implemented by another third party arranged by the Client. Accordingly, Above Water shall bear no liability in any way whatsoever for:

(a) the performance, quality, or suitability of any third parties’ designs where Above Water’s Services exclusively relate to stormwater or wastewater management devices including,but not limited to tanks and soakage trenches;

(b) the performance of any system which was the subject of Services or Plans provided by Above Water which the Customer constructs in reliance on any third parties’ designs regarding the finished surface level;

(c) any changes made to any of Above Water’s Plans and/or Services by any third party and
any consequences arising from these changes;
the performance of any stormwater or

(d) Wastewater systems which are not operated and maintained in accordance with Above Water’s recommendations contained in any Plans, manufacturers’ recommendations, or current Council regulations;

(e) the malfunction of any supplementary or additional stormwater or wastewater systems surrounding the systems which were constructed in reliance on Above Water’s Plans and/or Services;

(f) any future changes in Site levels and ground levels surrounding the Site which could not have been reasonably foreseen by Above Water when completing the Services;

(g) any future changes to Council standards which were not applicable at the time of Above Water undertaking Services for the Customer which may conflict with the Plans and/or Services; and

(h) any inaccuracies or anomalies in any data procured from NIWA’s HIRDS V4 and/or any third party consultancy, and relied on by Above Water for its use in the Plans or Services.

5.2 Above Water shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Above Water of these terms and conditions (alternatively Above Water’s liability shall be limited to damages which under no
circumstances shall exceed the Fees paid for the Plans and/or Services).

6. CPENG AND CMENGNZ OBLIGATIONS
6.1 Services and Plans provided by Above Water are subject to CPENG professional obligations contained in the
Chartered Professional Engineers of New Zealand Act 2002 and the most recent version of the Code of Ethical
Conduct for engineers pursuant to the Chartered Professional Engineers of New Zealand Rules (No 2) 2002.

6.2 These Terms shall in all cases be subject to Above Water’s obligations under the Chartered Professional Engineers of New Zealand Act 2002 or the Chartered Professional Engineers of New Zealand Rules (No 2) 2002.

7. COMPLIANCE AND CONSENTS
7.1 The Customer shall obtain (at the expense of the Customer) any certification that may be required from
third parties for the implementation of Plans made by Above Water

7.2 Where the Services and Plans are not solely intended to support the obtaining of consents for the Customer, the Customer shall procure any local authority or other consent required to use the Plan(s) for the purpose that
the Customer intends to apply it (Consent), and to comply with the Consent and any law, including any environmental law, governmental consent, governmental requisition, public utility consent and applicable industry code of conduct.

8. TITLE
8.1 Ownership of the Plans shall not pass until:
(a) the Customer has paid Above Water all amounts owing to Above Water; and

(b)the Customer has met all of its other obligations to Above Water.

9. DEFECTS
9.1 The Customer shall inspect the Plans upon Completion and shall within seven (7) days of Completion (time being of the essence) and notify Above Water of any alleged defect, miscalculation, damage or failure to comply with the description or quote. The Customer shall afford Above Water an opportunity to inspect the Plans within a reasonable time following Completion if the Customer believes the Plans are defective in any way. If the
Customer shall fail to comply with these provisions, the Plans shall be presumed to be free from any defect or
damage. For defective Plans, which Above Water has agreed in writing that the Customer is entitled to reject,
Above Water’s liability is limited to either (at Above Water’s discretion) the cost of replacing the Plans or
amending the Plans.

9.2 Plans will not be accepted for rejection other than in accordance with clause 9.1 above.

10. WARRANTY
10.1 The Customer is responsible to ensure that the Plans and Services are used in accordance with good practice and with Above Water’s specifications and guidelines (if any). Above Water will not be liable for any damage that arose, or was made worse, by the Customer’s failure to comply with this clause 10.1.

11. CONSUMER GUARANTEES ACT 1993
11.1 If the Customer is acquiring Plans for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Plans or Services by Above Water to the Customer.

12. FAIR TRADING ACT 1986
12.1 Pursuant to section 5D of the Fair Trading Act 1986, the Customer who is in trade, agrees that it is fair and
reasonable to contract out of sections 9, 12A, 13, and 14(1) of the Fair Trading Act 1986, with regard to the
Customer agreeing that:

(a) the terms of the Contract amount to the full extent of all representations made by Above Water about any agreed Services or Plans, irrespective of any previous discussions, negotiations, understandings, and prior agreements, such that the Customer has not relied on any representations when entering into these Terms and Scope of Works aside bfrom the wording of the Terms and Scope of Works alone; and

(b) all representations made by Above Water to the Customer in the Terms and Scope of Works are agreed to be made upon reasonable grounds; and

(c) the Customer entered into the Terms and Scope of Works by reason of their own judgement and due diligence, and not as a result of any representations made by Above Water.

13. INTELLECTUAL PROPERTY
13.1 Where Above Water has designed, drawn or developed Plans for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Above Water, unless and until all fees and costs associated with the Plans and associated Services have been paid for.

13.2 The Customer agrees that Above Water may (at no cost) use for the purposes of marketing or entry into any
competition, any documents, designs, drawings or Plans which Above Water has created for the Customer.

14. DEFAULT AND CONSEQUENCES OF DEFAULT
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of
payment, at a rate of 10% per annum.

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

14.3 All sums payable by the Customer shall be made in full without set-off or counterclaim and, except to the extent required by law, free and clear of any deduction on account of tax or otherwise. A dispute, mediation, or
arbitration, between Above Water and the Customer, does not entitle the Customer to set-off against, or withhold payment of, any sum owed to Above Water.

14.4 Without prejudice to Above Water’s other remedies at law, Above Water shall be entitled to suspend all work and all amounts owing to Above Water shall, whether or not due for payment, become immediately payable if:

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

(b) the Customer has exceeded any applicable credit limit provided by Above Water;

(c) the Customer becomes insolvent, 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; or

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

15. DISPUTE RESOLUTION
15.1 Where any dispute arises between the parties concerning these terms or the circumstances, representations, or conduct giving rise to agreement under these terms, no party may commence any court or arbitration
proceedings relating to the dispute unless that party has complied with the procedures set out in this clause.

15.2 The party initiating the dispute (the first party) must provide written notice of the dispute to the other party
(the other party) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days of receipt of the notice give written notice to the first party, naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.

15.3 If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation. 15.4 The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation agreement. The
mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his or her fee determined by the Chair for the time being of LEADR New Zealand Inc.

16. FORCE MAJEURE
16.1 Either party may suspend its obligations to perform this Agreement if it is unable to perform as a direct result of a war, riot, strike, natural or man-made disaster or other circumstance of a similar nature (“Force Majeure Event”). Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.

16.2 Where a party's obligations have been suspended pursuant to this clause for a period of 30 days or more,
the other party may immediately terminate this Agreement by giving notice in writing to the other party, and Above Water shall be entitled to invoice for all work completed up until that date.

17. CANCELLATION
17.1 Without prejudice to any other remedies Above Water may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions, Above Water may suspend or terminate the Services with the Customer. Above Water will not be liable to the Customer for any loss or damage the Customer suffers because Above Water has exercised its rights under this clause.

17.2 Above Water may cancel any contract to which these terms and conditions apply or cancel the Completion of Plans and/or Services at any time before the Plans and/or Services are completed by giving written notice to the Customer. On giving such notice, Above Water shall repay to the Customer any monies paid by the Customer for the Plans and/or Services, less Above Water’s reasonable Fees to date. Above Water shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.3 In the event that the Customer cancels (or purports to cancel) the completion of Plans and/or Services, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Above Water as a direct result of the cancellation (including, but not limited to, any loss of profits).

18. PRIVACY POLICY
18.1 All emails, documents, images or other recorded information held or used by Above Water is Personal Information and considered confidential and will only be released by Above Water in the reasonably provision of
the Services, as requited by the Customer or as required at law.

18.2 The Customer authorises Above Water or Above Water’s agent to:

(a) access, collect, retain and use any information about the Customer including, name, address, D.O.B, occupation, driver’s licence details and other contact information (where applicable), previous credit applications & credit history for the purpose of assessing the Customer’s creditworthiness; and

(b) disclose information about the Customer, whether collected by Above Water from the Customer directly or obtained by Above Water from any other source to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.

19. GENERAL
19.1 The failure by either party to enforce any provision of these terms and 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 and 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.

19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

19.3 Above Water may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by doing so. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of Above Water’s sub-contractors without the authority of Above Water.

19.4 The Customer agrees that Above Water may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for Above Water to provide Services to the Customer.

19.5 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary
authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid
legal obligations on them.

19.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

20. DEFINITIONS
20.1 “Contract” means these Terms, the Scope of Works together with any other document or amendments
expressed to be supplemental to this Contract.

20.2 “Above Water” means Above Water Engineering Limited, its successors and assigns or any person acting on behalf of and with the authority of Above Water Engineering Limited.

20.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the
Customer requesting Above Water to provide the Services as specified in any proposal, quotation, order,
invoice or other documentation, and:

(a) if there is more than one Customer, is a reference to each Customer jointly andseverally; and

(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and

(d) includes the Customer’s executors, administrators, successors and permitted assigns.

20.4 "Confidential Information” means information of a confidential nature whether oral, written or in electronic
form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s licence details, electronic contact and other contact information (where applicable), previous credit applications, credit history) and pricing details.

20.5 “Plans” means any engineering drawings, designs, diagrams, schematics or similar document for providing
technical information or guidance about an engineering system.

20.6 “Services” means all Services, Plans or Parts including but not limited to drawings, reports, designs, and any other terms which could have a synonymous meaning, supplied by Above Water, as per the Scope of Work at clause 1.1, to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Plans’, ‘Parts’ or ‘Services’ shall be interchangeable for the other).

20.7 “Site” means any location that Above Water is required to be in attendance at, or be present at, in order to
complete the Services required of them by the Customer including, but not limited to, the Customer’s premises,
and the location which the Services are intended to affect.