Terms and Conditions New Zealand

These Terms and Conditions of Supply (Terms and Conditions) apply to any and all products and services supplied by or on behalf of Ecolab New Zealand (Ecolab) to the customer identified overleaf, notwithstanding anything that may be stated to the contrary in Customer’s enquiries, on Customer’s orders or in Customer’s terms and conditions, save that where Customer and Ecolab have entered into a separate agreement for the supply of products and services the terms of that agreement will apply.

1 Price and Payment

1.1 Customer agrees to pay the prices stated for the products and services. Unless otherwise specified, the prices do not include the costs of insurance or any applicable taxes, such as sales tax or goods and services tax which shall be payable by Customer.

1.2 Customer must pay for the amount invoiced for the products and services within thirty (30) days of Ecolab’s invoice.

1.3 Unless Ecolab otherwise agreed in writing, if Customer does not pay any amount invoiced by the due date, then in addition and without prejudice to any rights or remedies available to Ecolab: (a) Ecolab will be entitled to impose default interest at the rate of 2% per annum plus in respect of any day of the month, the 90-day bank bill buy rate published on Reuters Monitor page BKBM (or any successor page displaying substantially the same information) under the heading FRA at 11.00 am on the first working day of that month (or, if such rate is not available at that time, the rate that Ecolab reasonably determines to be the nearest practicable equivalent) applicable on the due date on the full amount owing from the date payment became due, to accrue daily and be calculated on the balance owing until the date of full and final payment and be payable by Customer monthly on demand; (b) all amounts invoiced to or owing by Customer will become immediately due and payable; (c) Ecolab reserves the right to withhold any or all products and services including any service reports, testing results or other services or documentation; (d) Ecolab may enter into Customer’s premises and take back any products and Equipment supplied by or on behalf of Ecolab; and (e) to the maximum extent permitted by law, Ecolab accepts no liability whatsoever in connection with its performance or non-performance of its obligations under these Terms and Conditions.

1.4 Should any invoices be outstanding for 30 days or more at the time when any rebate is due, Ecolab reserves the right to offset any outstanding invoices over 40 days against any rebate otherwise due.

1.5 If Customer does not pay any amount by the due date, Customer will be liable for all costs reasonably incurred by Ecolab in connection with any debt recovery, legal proceedings or other action taken by Ecolab to enforce payment. The amount of such costs will be added to Customer’s account and will form part of the principal debt.

1.6 Ecolab may, at its discretion, suspend credit to Customer without notice at any time.

2 Delivery

2.1 Ecolab will use its reasonable endeavours to deliver the products and services to Customer in accordance with any agreed delivery requirements, but time of delivery shall not be of the essence and Ecolab will have no liability to Customer (whether for loss or damage or otherwise) if, notwithstanding such endeavours, there is a delay in delivery. If the products and services are not delivered in accordance with any delivery requirements, Customer is not relieved from its obligations to purchase and pay for the products and services.

2.2 Customer agrees to be bound by Ecolab’s Freight Policy outlined in clause 8 (and as communicated to Customer from time to time) and to pay any charges on the basis set out in the Freight Policy as and when required.

2.3 In addition to any other rights and remedies available to it, Ecolab will be entitled to withhold delivery of any products and services, cancel any order for products and services or discontinue supplying products and services to Customer until such time as any amounts due and owing by Customer to Ecolab are paid.

2.4 Customer must inspect the products immediately after delivery. Subject to clause 6.2(a) and to the full extent permitted by law, any products returned by Customer to Ecolab will be handled in accordance with Ecolab’s Returns Policy communicated to Customer from time to time. Any products not so returned will be deemed to be accepted by Customer. All returns are to be notified within 14 days of receipt of goods.

2.5 Customer must not resell products supplied by Ecolab without Ecolab’s prior written consent.

3 Risk

3.1 Unless otherwise agreed by Ecolab in writing, the risk of loss and damage to products passes to Customer on delivery to Customer or to Customer’s carrier or agent, whichever occurs earlier.

4 Equipment

4.1 Ecolab may provide equipment to Customer for Customer’s use (Equipment). All Equipment remains at all times the sole and exclusive property of Ecolab in accordance with clause 5. Any software and documentation provided by Ecolab with the Equipment remains at all times the sole and exclusive property of Ecolab and must only be used by Customer for purposes authorised by Ecolab.

4.2 Subject to clause 4.4 and for so long as only Ecolab’s products are dispensed in conjunction with the Equipment, Ecolab will provide regular service to maintain the Equipment in useable condition whenever Ecolab considers it necessary, at no charge to Customer, and shall repair or replace Equipment worn or damaged through normal use.

4.3 To the full extent permitted by law, Ecolab shall not be liable to Customer for any damages in relation to the supply or failure to supply or performance of the Equipment. Customer acknowledges that the Equipment is designed for use with Ecolab products. Ecolab shall not be responsible for any damage to the Equipment or Customer’s goods caused by use of any other products with the Equipment.

4.4 While the Equipment remains at Customer’s premises, or otherwise in Customer’s possession or under its control:

(a) Customer bears all risk of loss, theft, damage and destruction of the Equipment, excepting normal wear and tear;

(b) Customer must keep the Equipment clean, take all reasonable steps to prevent it from deterioration and comply with all directions of Ecolab regarding use of the Equipment;

(c) if the Equipment is lost, stolen, damaged or destroyed (including by use of non-Ecolab products with the Equipment), excepting normal wear and tear, Customer will reimburse Ecolab, at Ecolab’s election, for any repairs to or replacement of the Equipment or part thereof or for the reduction in value of the Equipment;

(d) if Customer makes more than 3 service call outs per year in respect of the Equipment which Ecolab determines relate to or are caused by Customer’s equipment, Customer will reimburse Ecolab the costs of the services call out;

(e) Customer must comply with all other reasonable directions given by Ecolab in relation to the Equipment;

(f) Customer must not remove or in any way interfere with or modify the Equipment without the prior written consent of Ecolab; and

(g) Customer must notify Ecolab of any change in ownership, control or disposal of its business.

4.5 Ecolab may replace the Equipment at any time without prior notice to Customer. Customer agrees that Ecolab has the right to enter Customer’s premises at all reasonable times to view, repair or replace the Equipment.

4.6 Customer must promptly return Equipment to Ecolab, or permit Ecolab to collect the Equipment, on written notice from Ecolab or upon termination of supply by Ecolab to Customer. Equipment must be returned in the same condition as received by Customer, ordinary wear and tear excepted. Transporters and tanks must be returned to Ecolab when empty.

5 Retention of Title and PPSA

5.1 Title to: (a) products supplied will not pass to Customer until Ecolab has received payment in full of the price for all products supplied by Ecolab to Customer and any other money owing by Customer to Ecolab; and (b) any Equipment provided to Customer by Ecolab in accordance with clause 4 will remain with Ecolab at all times.

5.2 Customer acknowledges and agrees that where Ecolab retains title to the products and Equipment:

(a) Customer holds the products and Equipment as fiduciary agent and bailee of Ecolab;

(b) Customer may use the products and Equipment only in the ordinary course of its business, and may not otherwise deal in any of them; and

(c) the products and Equipment must at all times be properly stored, protected and insured so as to enable them to be identified as property of Ecolab.

5.3 If:

(a) Customer exceeds any credit limit specified by Ecolab from time to time;

(b) execution is to be levied against the products or Equipment; or

(c) Customer becomes insolvent, has a receiver or administrator appointed over all or any part of its assets, enters into any arrangement or composition with its creditors or enters into liquidation, or is otherwise unable to pay its debts when due, to the extent that Ecolab retains title in the products and equipment, Ecolab has by itself or by its agent the unrestricted right to enter Customer’s premises, or the premises of any related body corporate or agent where products are located, without liability for trespass or any resulting damage, and to re-take possession of products and Equipment and keep or dispose of them.

5.4 Ecolab may register on the Personal Property Securities Register any and all Security Interests granted under this clause 5. Customer waives any right it may have to receive from Ecolab a copy of any financing statement, financing change statement or verification statement registered or received by Ecolab in respect of such Security Interests.

5.5 Customer agrees to do all things necessary, including executing all documents that Ecolab requires and providing all relevant information and cooperating fully with Ecolab, and at its own expense to enable Ecolab to register a financing statement on the Personal Property Securities Register to ensure that at all times Ecolab has a perfected Security Interest in respect of all Security Interests created under these Terms and Conditions, and wherever possible a Purchase Money Security Interest.

5.6 Customer must not grant any other Security Interest in respect of the products and Equipment which would rank equally with, or in priority to, a Security Interest held by Ecolab over the products and Equipment.

5.7 As between debts owed to Ecolab secured by Purchase Money Security Interests and other debts, Ecolab will be entitled to apply monies received from Customer against the other debts first at its sole discretion and despite any direction from Customer to the contrary.

5.8 Customer agrees that, to the extent permitted by law, sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the Personal Property Securities Act 1999) shall not apply on the enforcement by Ecolab of any Security Interest.

5.9 For the purposes of this clause 5, the terms “financing statement”, “financing change statement”, “Purchase Money Security Interest”, “Personal Property Securities Register”, “Security Interest” and “verification statement” have the meanings given in the Personal Property Securities Act 1999).

6 Warranties and Limitation of Liability

6.1 Warranties. To the maximum extent permitted by law:

(a) all conditions, representations, warranties and guarantees, whether express or implied, by statute or otherwise, in relation to the products and services are expressly excluded; and

(b) if applicable, Ecolab expressly disclaims any conditions, representations, warranties and guarantees with respect to water system biohazards from waterborne pathogens, including but not limited to Legionella bacteria.

6.2 Limitation of Liability.

(a) The limitations on Ecolab’s liability in these Terms and Conditions are made to the extent permitted by law. Nothing in these Terms and Conditions restricts the effect of any warranties or conditions which may be implied by law or any other rights or remedies which cannot be excluded, restricted or modified. Subject to those laws, to the extent to which Ecolab is entitled to do so, its liability under such implied conditions or warranties or other rights or remedies will be limited, at Ecolab’s option, to:

(i) in the case of goods: (A) the replacement or repair of the relevant goods, or the supply of equivalent goods; or (B) the payment of the cost of replacing or repairing the goods, or of acquiring equivalent goods; and

(ii) in the case of services: (A) supplying of the services again; or (B) the payment of the cost of having the services supplied again. (b) To the maximum extent permitted by law, Ecolab is not liable in any way whatsoever, whether in tort (including negligence), contract, breach of statute or otherwise, for any incidental, indirect, special or consequential losses or damages or economic loss, including any loss of clientele, loss of business revenues or loss of profits by Customer.

7 Force Majeure

Without prejudice to any other provisions hereof, Ecolab shall not be liable for any delay in performance or failure to perform any of its obligations, if such performance is prevented, restricted or affected by a force majeure event or any other cause beyond Ecolab’s control.

8 Freight Charges

8.1 Ecolab quotes customer prices inclusive of freight based on compliance with Ecolab’s Freight Policy, as communicated to Customer from time to time. Ecolab will, however, pass on the cost of freight to Customer for deliveries outside of the terms of Ecolab’s Freight Policy. This will be done on a cost-recovery basis only.

8.2 Details of the freight charges and the circumstances in which these will be charged to Customer are set out in Ecolab’s Freight Policy. Orders for products outside of the terms of Ecolab’s Freight Policy will be subject to the following principal charges:

(a) Minimum Order Charge – Customer will be charged a Minimum Order Charge for all orders.

(b) Maximum Order Charge – Customer will be charged a Maximum Order Charge if the maximum order threshold applicable to Customer is exceeded in any one month.

(c) Rush Order Charge – Customer will be charged a Rush Order Charge if Customer requests delivery of products outside of Ecolab’s prescribed delivery timelines.

8.3 The Minimum Order Charge and the Maximum Order Charge will not both be charged to Customer in relation to the same order. The Minimum Order Charge applies until the maximum order threshold is exceeded, after which the Maximum Order Charge applies. However, a Rush Order Charge and a Minimum Order Charge or Maximum Order Charge may apply to the same order.

9 Miscellaneous

9.1 These Terms and Conditions can only be altered, varied or added to by prior written approval of an authorised representative of Ecolab. Ecolab reserves the right to change its Terms and Conditions at any time. Any amendments to these Terms and Conditions shall apply to all orders accepted by Ecolab after such amendments have been notified to the Customer.

9.2 The parties are independent contractors and these Terms and Conditions are not intended to create any partnership, trust or agency relationship.

9.3 Customer may not assign or transfer, in whole or part, its rights and obligations under these Terms and Conditions without the prior written consent of Ecolab. Customer agrees that Ecolab may assign its rights and novate its obligations under these Terms and Conditions to an Ecolab parent, subsidiary or affiliate (Assignee) by providing 14 days written notice to Customer without further documentation. On and from the time of assignment and novation:

(a) Assignee will be treated as if it were the original contracting party in place of Ecolab; and

(b) Customer releases Ecolab from its rights and obligations under these Terms and Conditions and all claims, actions, demands, proceedings and liability which Customer may have or claim to have or might have had against Ecolab in connection with these Terms and Conditions. Customer must at the request of Ecolab do anything necessary or desirable to give full effect to this clause 9.3.

9.4 The provisions of these Terms and Conditions are binding upon and inure to the benefit of each party’s respective successors or permitted assigns.

9.5 If any provision of these Terms and Conditions is held by a court to be unlawful, invalid or unenforceable in any jurisdiction, it is to be read down and severed in that jurisdiction to the extent that it is unlawful, invalid or unenforceable, and the validity and enforceability of the remaining provisions shall not be thereby affected.

9.6 If at any time Ecolab does not enforce any of these Terms and Conditions or grants Customer time or other indulgence, Ecolab shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.

9.7 These Terms and Conditions are governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of that Country.