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1) Definitions

1.1.  “Supplier” means Topic Photography Ltd T/A Topic Rentals, its successors and assigns or any person acting on behalf of and with the authority of Topic Photography Ltd T/A Topic Rentals.
1.2.  “Client” means the person/s hiring and/or purchasing the Goods, as specified in the quotation, any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally, and includes its successors, executors, administrators and assigns.
1.3.  “Goods” means all Goods or Services supplied either by sale or by hire to the Client by the Supplier at the Client’s request from time to time, and:
    (a)  includes any parts, accessories and/or consumables supplied by the Supplier to the Client, either separately or deposited incidentally by the Supplier in the course of it conducting, or supplying to the Client, the Services; and
    (b)  where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other.
1.4.  “Price” means the Price payable for the hire and/or purchase of the Goods as agreed between the Supplier and the Client in accordance with clause 4 below.
1.5.  “Agreement” means the agreed arrangement, either verbal or written, between the Supplier and the Client, and include (and are meant to be read in conjunction with) these terms and conditions, quotation, document or order, or any other form/s as provided by the Supplier to the Client. The Client acknowledges that headings are inserted for convenience only and do not affect the interpretation of this Agreement.
1.6.  “Term” means the term of the hire of the Goods as specified in this Agreement, or such further period as agreed by the parties in writing.
1.7.  “Minimum Hire Period” means the minimum Term, as specified in this Agreement, and calculated at the appropriate hourly rate unless otherwise specified by the Supplier prior to commencement of the Term.
     
2)  Acceptance

2.1.  The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for Goods, or accepts Delivery.
2.2.  These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Supplier.
2.3.  The Client acknowledges that, to the extent permitted by law, no warranty is given by the Supplier as to the quality or suitability of the Goods for any purpose, and all express and implied terms, conditions and warranties (other than those expressly set out in this Agreement), statutory or otherwise, is expressly excluded
     
3) Change in Control

3.1.  The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
     
4) Price and Payment

4.1.  At the Supplier’s sole discretion the Price shall be either
    (a)  as indicated on any invoice provided by the Supplier to the Client; or
    (b)  the Price as at the date of Delivery according to the Supplier’s current price list; or
    (c)  the Supplier’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
     
4.2.  The Supplier reserves the right to change the Price:
    (a)  if a variation to the Goods which are to be supplied is requested; or
    (b)  where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, further faults which are found upon disassembly and/or further inspection) which are only discovered upon commencement of the Services; or
    (c)  in the event of increases to the Supplier in the cost of labour or materials, which are beyond the Supplier’s control.
4.3.  At the Supplier’s sole discretion, a non-refundable deposit may be required.
4.4.  Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:
    (a)  on Delivery;
    (b)  before Delivery;
    (c)  by way of installments/progress payments in accordance with the Supplier’s payment schedule;
    (d)  thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
    (e)  the date specified on any invoice or other form as being the date for payment; or
    (f)  failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.
     
4.5.  Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and the Supplier.
4.6.  Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for the sale/hire of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
     
5) Delivery

5.1.  Delivery of the Goods (“Delivery”) are taken to occur at the time that:
    (a)  the Client or the Client’s nominated carrier takes possession of the Goods at the Supplier’s address; or
    (b)  the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address.
5.2.  At the Supplier’s sole discretion, the cost of Delivery is either included in, or in addition to, the Price.
5.3.  The Client must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. In the event that the Client is unable to take Delivery as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery of the Goods and/or the storage of the Goods.
5.4.  Any time or date given by the Supplier to the Client is an estimate only. The Client must still accept Delivery even if late and the Supplier will not be liable for any loss or damage incurred by the Client as a result of the Delivery being late.
     
6) Title

6.1.  Where this is a hire agreement:
    (a)  The Goods are (and will at all times remain) the absolute property of the Supplier and Client has no ownership rights to the Goods at any time before, during or after the existence of this Agreement. However, the Client accepts full responsibility for:
        (i)  the safekeeping of the Goods and indemnifies the Supplier for all loss, theft, or damage to the Goods howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and
        (ii)  shall keep the Supplier indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Goods during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
    (b)  The Client is not authorised to pledge the Supplier’s credit for repairs to the Goods or to create a lien over the Goods in respect of any repairs.
     
6.2.  Where is this an agreement for the purchase of the Goods:
    (a)  The Supplier and the Client agree that ownership of the Goods shall not pass until:
        (i)  the Client has paid the Supplier all amounts owing to the Supplier; and
        (ii)  the Client has met all of its other obligations to the Supplier.
    (b)  Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
    (c)  It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause (a):
        (i)the Client is only a bailee of the Goods and must return the Goods to the Supplier on request.
        (ii)  the Client holds the benefit of the Client’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
        (iii)  the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
        (iv)  the Client should not convert or process the Goods 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 the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
        (v)  the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods.
        (vi)  the Supplier may recover possession of any Goods in transit whether or not Delivery has occurred.
        (vii)  the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier.
        (viii)  the Supplier may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
6.3.  If the Client fails to return the Goods to the Supplier then the Supplier or the Supplier’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
     
7) Personal Property Securities Act 1999 (“PPSA”)

7.1.  Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
    (a)  these terms and conditions constitute a security agreement for the purposes of the PPSA; and
    (b)  a security interest is taken in all Goods previously supplied by the Supplier to the Client (if any) and all Goods that will be supplied in the future by the Supplier to the Client.
7.2.  The Client undertakes to:
    (a)  sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
    (b)  indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
    (c)  not register a financing change statement or a change demand without the prior written consent of the Supplier; and
    (d)  immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
7.3.  The Supplier and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
7.4.  The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
7.5.  Unless otherwise agreed to in writing by the Supplier, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
7.6.  The Client shall unconditionally ratify any actions taken by the Supplier under clauses 7.1 to 7.5.
     
8) Security and Charge

8.1.  In consideration of the Supplier agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
8.2.  The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
8.3.  The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Client’s behalf.
     
9) Client’s Disclaimer

9.1.  The Client hereby disclaims any right to rescind, or cancel any contract with the Supplier or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Supplier and the Client acknowledges that:
    (a)  the Goods are purchased/hired relying solely upon the Client’s skill and judgment and not on any advice, information, representations or warranties from the Supplier or from any person acting, or purporting to act, on behalf of the Supplier;
    (b)  it has not received and/or does not reply upon any representation, condition, warranty or undertaking as to the condition, suitability of the Goods, their quality, fitness for purpose or safety from the Supplier, or from any person acting, or purporting to act, on behalf of the Supplier.
     
10) Defects

10.1.  The Client shall inspect the Goods on Delivery and shall within twenty-four (24) hours of such time (being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to examine/inspect the Goods within a reasonable time following such notification if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods. The Supplier will endeavour where possible to replace the Goods (or any part thereof) with the same or alternative goods, subject to the availability thereof. However, in the event the Supplier is unable to source alternative Goods, the Supplier shall not be held liable for any loss or damage suffered but the Client (including but not limited to, loss of bargain in relation to third parties).
     
11) Consumer Guarantees Act 1993

11.1.  If the Client is acquiring/hiring Goods 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 Goods by the Supplier to the Client.
     
12) Intellectual Property and Confidentiality

12.1.  Where the Supplier has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Supplier.
12.2.  The Client warrants that all designs, specifications or instructions given to the Supplier, or any use of the Goods, will not cause the infringement of any patent, registered design or trademark, and the Client agrees to indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.
12.3.  The Client agrees that the Supplier may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Supplier has created for the Client.
12.4.  The Client acknowledges that no intellectual property rights (including but not limited to, copyrights, patents and trademarks) in the Goods shall pass under this Agreement, and the Client represents and warrants that it will not (and will not permit) copying or breaching any intellectual property rights thereof.
12.5.  Both parties must keep confidential all information about each other which is, in its nature, or is advised by the other party in writing to be, confidential and which comes into the possession of the other party respectively. Neither party is permitted to disclose any confidential information about the other without the consent thereof, unless:
    (a)  that information has become publicly available;
    (b)  disclosure is required by law;
    (c)  disclosure is to any person participating, or potentially participating, in the funding, discounting or assignment of the Goods or this Agreement;
    (d)  disclosure is merely of the existence of a party as having a business relationship with the disclosing party.
     
13) Default and Consequences of Default

13.1.  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 the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2.  If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
13.3.  Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Goods to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
13.4.  Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
    (a)  any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;
    (b)  the Client 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
    (c)  a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
     
14) Cancellation

14.1.  The Supplier may cancel any contract to which these terms and conditions apply or cancel Delivery at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2.  In the event that the Client cancels Delivery the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits), and to fulfil the obligations to the Supplier as specified under clause 17.1(b) (where applicable).
14.3.  Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed.
     
15) Privacy Act 1993

15.1.  The Client authorises the Supplier or the Supplier’s agent to:
    (a)  access, collect, retain and use any information about the Client;
        (i)  (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
        (ii)  for the purpose of marketing products and services to the Client.
    (b)  disclose information about the Client, whether collected by the Supplier from the Client directly or obtained by the Supplier 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 Client.
15.2.  Where the Client is an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3.  The Client shall have the right to request the Supplier for a copy of the information about the Client retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Client held by the Supplier.
     
16) General

16.1.  The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’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.
16.2.  These terms and 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 New Zealand.  
16.3.  The Supplier 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 the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price).
16.4.  Unless there is a specific requirement to the contrary contained in this Agreement, any notices or communication to a party in respect of this Agreement may be given by hand delivery, pre-paid mail or facsimile transmission to the address of that party as set out in this Agreement or as last notified by that party to the other, and any such notices or communications sent by:
    (a)  pre-paid mail will be deemed received on the third (3rd) working day after positing; or
    (b)  facsimile transmission will be deemed received at the time they are indicated to have been successfully transmitted as evidenced by the production of a transmission report from the facsimile machine indicating a successful transmission.
16.5.  In addition to clause 13.2, the Client indemnifies the Supplier against:
    (a)  any loss arising from all or any part of this Agreement being invalid, void, voidable or unenforced for any reason;
    (b)  any loss or liability incurred by the Supplier resulting from the Client’s possession, use or operation of the Goods; and
    (c)  any liability which the Supplier may incur under any tax legislation by reason of use of the Goods for any purpose other than as stated by the Client to the Supplier.
16.6.  Each indemnity under clauses 6.1(a)(i) and 6.1(a)(ii), 12.2 and 16.5 are separate and independent obligations and continue after termination of this Agreement.
16.7.  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 the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
16.8.  The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.9.  The Client agrees that the Supplier may amend these terms and conditions at any time. If the Supplier makes a change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Supplier to provide Goods to the Client.
16.10.  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.
16.11.  Both parties warrant that they the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.
16.12.  The obligations of one party to the other under this Agreement shall continue notwithstanding the placing of either party into liquidation, or it otherwise becomes insolvent.
     
17) Terms Applicable to the Hire of Goods Only

17.1.  Hire Term
    (a)  The Supplier may, in its absolute discretion, either accept or reject any request made by the Client for the hire of the Goods. In the event the Supplier accepts the Client’s request, the Supplier will confirm such in writing and will reserve the requested Goods for the Client for the requested Term.
    (b)  In the event the Client wishes to cancel their confirmed reservation, the Client must give at least two (2) days written notice to the Supplier prior to the commencement of the Term. If cancellation falls within twenty-four (24) hours of the Term, the Client must pay to the Supplier a cancellation fee equivalent to one (1) days hire charges.
    (c)  On expiration of the Term, or earlier (for whatever reason) the Client will, at their own expense, deliver the Goods in good working order and undamaged condition (reasonable wear and tear excepted) to the Supplier’s premises or other location as reasonably directed by the Supplier. The late return of the Goods will incur a penalty charge of double the daily hire charges for each day (twenty-four (24) hour period) the Goods remain late until the day the Goods are returned, and this charge is calculated on individual Goods that are late being returned to the Supplier.
    (d)  Where the Client wishes to extend the Term, they must request the Supplier of this in writing, and the Supplier may accept or reject this request at their sole discretion. In the event the Supplier accepts an extension to the Term, it will accordingly amend the Price payable by the Client.
    (e)  The Supplier has absolute discretion to terminate this Agreement at any time without notice or cause and:
        (i)  shall not be liable for any consequential loss or profit or loss of bargain suffered by the Client in relation to third parties dependent on the use of the Goods in this Agreement;
        (ii)  such termination does not affect the Client’s obligations to pay the Supplier for any sums payable under this Agreement, and does not affect any other rights the Supplier has under this Agreement;
        (iii)  the Client will pay the Supplier for the Supplier’s loss of bargain, in regard to presently confirmed hire reservations which the Supplier may have with other parties requiring the Goods in this Agreement if the Goods have been rendered unfit or unavailable for hire due to damage, loss or theft during the Term. The amount payable is the full value of the presently confirmed hire reservations, notwithstanding any other costs as outlined in this Agreement.
    (f)  No allowance whatsoever can be made for time during which the Goods are not in use for any reason, unless the Supplier confirms special prior arrangements in writing. In the event of any failure of the Goods, provided the Client notifies the Supplier immediately, hiring charges will not be payable during the time the Goods are not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.
17.2.  Client’s Responsibilities
    (a)  The Client shall:
        (i)     notify the Supplier of the address(es) of the location(s) where the Goods will be used for the duration of the Term;
        (ii)    not take the Goods outside New Zealand without the prior written consent of the Supplier;
        (iii)   examine/inspect the Goods before accepting possession of them, and:
            (A)  satisfy itself as to the condition and suitability of the Goods for the Client’s purposes and its compliance with any prescribed safety standards; and
            (B)  note any defects to the Goods and bring them to the attention of the Supplier. The Supplier shall note the defects to which the Client has referred to. The Client shall not be liable to the Supplier for the defects noted by the Supplier.
        (iv)   maintain the Goods in good working order and condition as is required by the Supplier;
        (v)    ensure that the Goods are left locked and/or securely stored when not in use. The Supplier’s insurances does not cover Goods lost/stolen from an unlocked vehicle or in the open air;
        (vi)   the Client will not use the Goods, nor permit them to be used, in such a manner as would permit an insurer to decline any claim;
        (vii)  notify the Supplier immediately by telephone of the full circumstances of any loss of, or damage to, the Goods, howsoever arising and/or any situation that may have exposed the Goods to any future potential loss or damage. The Client is not absolved from the requirements to safeguard the Goods by giving such notification;
        (viii) operate the Goods safely, strictly in accordance with all relevant statutes, regulation and other laws (including where relating to the regulation or licensing of the Goods, and pay all requisite fees and charges), only for its intended use and only for the purpose as disclosed to the Supplier, and in accordance with any manufacturer’s instruction whether supplied by the Supplier or posted on the Goods;
        (ix)  ensure that all persons operating the Goods are suitably trained/instructed in its safe and proper use;
        (x)   on termination of the hire, deliver the Goods complete with all parts and accessories, clean and in good working order and condition as delivered, reasonable wear and tear excepted, to the Supplier;
        (xi)  keep the Goods in their own possession and control and shall not attempt to sell, assign, transfer or otherwise dispose of (whether by way of security or otherwise) the Goods or this Agreement (including the Client’s rights hereunder) to any third party or encumber the Goods in any way, nor be entitled to a lien over the Goods, without the prior written consent of the Supplier;
        (xii) not replace any components or parts of the Goods, or repair, alter, adjust modify or make any additions to the Goods (including, but without limitation, altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Goods or in any other manner interfere with the Goods) other than to perform normal manufacturer specified operator adjustments, except with prior written permission from the Supplier. In the event the Supplier gives its written consent:
            (A) it shall outline to the Client the brand, model, quality and design of the component/part that the Client must replace the component/part with; and
            (B) all costs, expense and liability for such replacement, alteration, addition or modification shall be borne by the Client, who shall indemnify the Supplier against such costs, expense and liability. Where the such replacement, alteration, addition or modification diminishes the utility, or impairs the condition, of the Goods the Supplier may (at its sole discretion) charge the Client for any cost incurred under sub-clause (b)(ii);
            (C) title to any component/part as replaced shall vest in the Supplier and be subject to this Agreement and deemed included in the Goods for all purposes hereof to the same extent as if the component/part had been originally incorporated or installed in or attached to the Goods.
        (xiii) not attempt to open the internal body of any camera or attempt to clean the sensor. Such action will damage the Goods. In the event the Supplied deems (upon their return) any Goods have been subject to such action, the Supplier may charge the Client for any costs incurred under sub-clause (b)(ii) or can elect to invoke sub-clause (b)(i);
        (xiv) allow the Supplier to inspect the Goods at any reasonable time upon the Supplier first giving the Client reasonable notice. This does not impede upon the Supplier’s absolute discretion to take repossession as outlined in clause 6.3;
        (xv)  not use or install the Goods in any manner that would lead to the Goods becoming a fixture;
        (xvi)  employ the Goods solely in its own work and shall not permit the Goods or any part thereof to be used by any other party for any other work.
    (b)  Immediately on request by the Supplier the Client will pay:
        (i)  either the new list price, or any applicable insurance excess and all freight and associated costs, of/for any Goods, accessories or consumables that are for whatever reason destroyed, written off or not returned to the Supplier;
        (ii)  all professional costs of inspection, cleaning, servicing and repair or other by a qualified agent appointed by the Supplier, to restore the Goods to a condition that is satisfactory to the Supplier which is a required as a result of:
            (A)  wilful or negligent actions (including any breach of any provision under this Agreement) of the Client or the Client’s employees;
            (B)  vandalism, or (in the Supplier’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Goods by the Client;
        (iii)  the cost of any consumables provided by the Supplier and used by the Client;
        (iv)  any costs incurred by the Supplier in picking up and returning the Goods to the Supplier’s premises if the Client does not return the Goods to the Supplier’s premises or any pre-agreed pickup location when it was originally agreed that the Client would do so;
        (v)  any lost hire charges the Supplier would have otherwise been entitled to for the Goods, under this, or any other hire agreement.
17.3.  Return of the Goods
    (a)  Upon return of the Goods, the Supplier shall examine and inspect the same. In the event that the Supplier discovers any defects or damage to any of the Goods, not already noted by the Supplier before the Client’s possession, or deems that the Goods have been subject to adverse conditions or use by the Client, the Supplier may charge the Client for any costs under clause 17.2(b)(ii) or can elect (at its sole discretion) to evoke clause 17.2(b)(i).
17.4.  Only to the extent that the hire of the Goods exceeds a twelve (12) month hire period (or a six (6) month hire period with the right of renewal), shall clause 7 apply, and this Agreement a security agreement for the purposes of PPSA generally, and in particular Section 20.
     
18) Terms and Conditions applicable to the Sale of Goods or Services only

18.1.  Services:
    (a)  Where the Supplier is requested to store the Client’s Goods or equipment, or where Goods or equipment are not collected within twenty-four (24) hours of advice to the Client that they are ready for collection, then the Supplier (at its sole discretion) may charge a reasonable fee for storage.
    (b)  If the Supplier has been requested by the Client to diagnose a fault that requires disassembly and/or testing, all costs involved will be charged to the Client irrespective of whether or not the repair goes ahead.
    (c)  The Client acknowledges that the Supplier is only responsible for parts that are replaced by the Supplier, and in the event that other components subsequently fail, the Client agrees to indemnify the Supplier against any loss or damage to the machine, Goods, or caused by the components, or any part thereof howsoever arising.
    (d)  The Supplier shall not be liable for the loss of or damage to the equipment, its accessories or contents while being serviced or being operated in connection with the authorised Services, unless caused by the negligence of the Supplier or the Supplier’s employees.
    (e)  It is the Client’s responsibility to ensure that the equipment is insured against all possible damage (including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored at the Supplier’s premises. The equipment is at all times stored and repaired at the Client’s sole risk.
    (f)  Where the Client has left any equipment with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the equipment and the Supplier has not received or been tendered the whole of any moneys owing to it by the Client, the Supplier shall have, until all moneys owing to the Supplier are paid:
        (i)  a lien on the equipment;
        (ii) the right to retain or sell the equipment, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods;
        (iii)  the lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Supplier having been obtained against the Client.
18.2.  Goods:
    (a)  Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
    (b)  If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
    (c)  If the Client requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
    (d)  Returns will only be accepted provided that:
        (i)   the Client has complied with the provisions of clause 10.1; and
        (ii)  the Supplier has agreed in writing to accept the return of the Goods; and
        (iii) the Goods are returned at the Client’s cost within three (3) days of Delivery; and
        (iv) the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
        (v)  the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
18.3.  Warranties
    (a)  Subject to the conditions of warranty set out in this sub-clause 18.3, the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within twelve (12) months of the date of Delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the workmanship. The conditions applicable to the warranty given by this sub-clause 18.3 are:
        (i)  the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
            (A)  failure on the part of the Client to properly maintain the Goods/equipment; or
            (B)  failure on the part of the Client to follow any instructions or guidelines provided by the Supplier; or
            (C)  any use of the Goods/equipment otherwise than for any application specified on a quote or order form; or
            (D)  the continued use of the Goods/equipment after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
            (E)  fair wear and tear, any accident or act of God.
        (ii)  the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent.
        (iii) in respect of all claims the Supplier shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
    (b)  For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
    (c)  The conditions applicable to the warranty given on Goods supplied by the Supplier are contained on the “Warranty Card” that will be supplied with the Goods.
    (d)  In the case of second-hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the Goods prior to Delivery and accepts them with all faults. The Client acknowledges and agrees that the Supplier has agreed to provide the Client with the Goods and calculated the Price thereof in reliance of this sub-clause 18.3.