Equipment Licence Terms

EQUIPMENT LICENCE TERMS

(Effective April 2017)

The following terms (Equipment Licence Terms) apply to, are incorporated into and govern every contract or arrangement entered into between FUJIFILM NZ Limited (FUJIFILM NZ) and you under which FUJIFILM NZ permits you to possess and/or use certain items of equipment owned by FUJIFILM NZ (Equipment) (Equipment Licence).
FUJIFILM NZ can vary these Equipment Licence Terms at any time by notifying you of any amendments on its website at www.fujifilm.co.nz


1. Trade Terms: In addition to these Equipment Licence Terms, each Equipment Licence is also subject to FUJIFILM NZ’s Business Account Trade Terms displayed on its website at www.fujifilm.co.nz/support/standard-terms-of-trade (Trade Terms).
These Equipment Licence Terms will prevail in case of any inconsistency with the Trade Terms.

2. Equipment Licence:
Each Equipment Licence will consist of a grant by FUJIFLM NZ to you of a non-transferable licence to use the Equipment under these Equipment Licence Terms and such other terms as may be agreed by you and FUJIFILM NZ.

3. Equipment property of FUJIFILM NZ:
Unless expressly agreed otherwise in writing by you and FUJIFLIM NZ, the Equipment will at all times remain the property of FUJIFILM NZ, and you will possess the Equipment as bailee only.

4. Risk: All risk of loss or damage in, or in relation to, Equipment shall pass to you upon Delivery (as that term is defined in the Trade Terms) of such Equipment.

5. Your obligations:
You must:

5.1 Use the Equipment lawfully, properly and carefully, only for the purpose for which it was designed and in accordance with the manufacturer’s instructions and recommendations.

5.2 Not remove, obliterate or cover up any trade mark or sign or name affixed to the Equipment.

5.3 Observe FUJIFILM NZ’s reasonable directions from time to time about the operation and maintenance of the Equipment.

5.4 Maintain the Equipment in a good and clean condition and repair and service the Equipment as required.

5.5 Not remove the Equipment from the Premises, part with possession of the Equipment to any person other than FUJIFILM NZ or attempt to encumber, charge, sell or sub-let the Equipment

5.6 Not permit the Equipment to be affixed to any premises or land so that it becomes part thereof.

5.7 At your own expense comply with all acts, regulations, by-laws and guidelines relating to the operation of the Equipment.

5.8 Obtain any licences, permits and the like which may be necessary for the installation, operation and use of the Equipment at the Premises and pay all fees which may be payable in respect of such licences or permits.

5.9 Not alter or modify or permit the alteration or modification of the Equipment, except with the prior written consent of FUJIFILM NZ.

5.10 Notify FUJIFILM NZ within 2 business days of becoming aware of any defect, fault, malfunction or failure in the performance of the Equipment (if any).

6. Insurance:
You must insure the Equipment, while held by you, in your name and in the name of FUJIFILM NZ, against loss or damage for an amount no less than the market value of the Equipment.
You must produce evidence of insurance satisfactory to FUJIFILM NZ from time to time upon request by FUJIFILM NZ.

7. Premises:
You must not locate the Equipment at, or move the Equipment to, any place other than premises expressly approved by FUJIFILM NZ in writing (Premises).
You must not move the Equipment from the Premises to any new premises unless such move itself has been expressly approved by FUJIFILM NZ in writing.


8. Access: You must ensure that FUJIFILM NZ by its duly authorized representatives may enter the Premises at all reasonable times for the purpose of inspecting the Equipment or otherwise exercising its rights under the Agreement, including in particular its rights to remove the Equipment from the Premises.

9. Period:
Each Equipment Licence will continue for such period as you and FUJIFILM NZ have agreed, unless terminated earlier pursuant to its terms.
At the end of such period, unless otherwise agreed, such Equipment Licence will continue but either party may terminate it at any time upon giving the other party not less than 30 days’ notice in writing.

10. Termination:
FUJIFILM NZ may, by written notice to you, terminate any Equipment Licence with effect immediately if:

10.1 you fail to pay any amount owing to FUJIFILM, following demand by FUJIFILM NZ, in accordance with such demand;

10.2 you breach a material term of this Agreement and either the breach is incapable of remedy or you fail to remedy the breach within 10 business days of receipt of written notification from FUJIFILM NZ requiring you to do so;

10.3 you commit an act of bankruptcy; have a receiver, liquidator or administrator appointed in relation to your business or assets, or you go into any form of insolvency administration;

10.4
you cease to carry on business; or

10.5
you enter into a scheme or compromise with your creditors.



11. Actions following termination:
On termination of an Equipment Licence under clause
10

you must at your option either:

11.1 immediately return the Equipment to FUJIFILM NZ in good condition (fair wear and tear excepted); or

11.2 purchase the Equipment by paying FUJIFILM NZ the agreed fair market value of the Equipment within 28 days of the date of termination.

12. Purchase of Equipment: If you elect to purchase the Equipment under clause 11:

12.1 the sale of the Equipment will be subject to the Trade Terms; and

12.2 if FUJIFILM NZ and you cannot agree on the fair market value of the Equipment, then at FUJIFILM NZ’s option, it will be determined by an expert valuer appointed by FUJIFILM NZ at your cost, or you must immediately return the Equipment to FUJIFILM NZ.


13. Repossession:
If, following termination of an Equipment Licence, you fail to return or purchase the Equipment under clauses
11 or 12:

13.1 FUJIFILM NZ, its employees, agents or contractors may enter the Premises and repossess the Equipment and if necessary, remove the Equipment from any land or structure to which it is affixed;

13.2 you agree to indemnify FUJIFILM NZ, its employees, agents or contractors against any claim, action, damage loss, cost, charge, expense, outgoing or payment with FUJIFILM NZ, its employees, agents or contractors suffers, incurs or is liable for in respect of the exercise of its rights under this clause 13; and

13.3 you must reimburse FUJIFILM NZ upon demand for all costs incurred by FUJIFILM NZ in exercising such rights.

14. Security interests:

14.1 On entering into any Equipment Licence and taking possession of any Equipment, you grant a continuing security interest in favour of FUJIFILM NZ in such Equipment, as security for the performance of all your obligations under such Equipment Licence.

14.2 You acknowledge that FUJIFILM NZ may, at your cost, register its security interest in the Equipment, and all of your present and future rights in relation to the Equipment and any proceeds, on the Personal Property Securities Register established under the Personal Property Securities Act 1999 (PPSA).

14.3 You shall provide all information and do all things including the execution of documents as FUJIFILM NZ may require for the purpose of securing to FUJIFILM NZ the Equipment, the payment of all amounts owing and the performance of all of your obligations under these Equipment Licence Terms, and for the purpose of ensuring that FUJIFILM NZ has a perfected first ranking security interest in the Equipment and any proceeds under the PPSA. You shall give written notice to FUJIFILM NZ of any change to your name at least 14 days before such change takes effect.

14.4 You will:

(a) maintain and keep the Equipment in good working order and condition and protected against theft, loss or damage; and

(b) permit FUJIFILM NZ at all reasonable times by its agents, employees and officers to enter upon any land or premises owned or occupied by you to view and inspect the Equipment.

14.5 You waive your right to receive a copy of any verification statement under the PPSA and agree that as between you and FUJIFILM NZ:

(a) You will have no rights under sections 114(1)(a), 116, 120(2) and 121 of the PPSA; and

(b) any rights of FUJIFILM in addition to those in Part 9 of the PPSA shall continue to apply.

14.6 You will not:

(a) permit to subsist any other security interest in relation to the Equipment; or

(b) except in the normal course of business, sell, lease or dispose of, or permit the sale, lease or disposal of, the Equipment.

14.7 In addition to any rights that FUJIFILM NZ has under the PPSA, FUJIFILM NZ shall have the right, as your agent, at any time while any amounts owing by you to FUJIFILM NZ under the terms of any Equipment Licence remain outstanding, or while you have failed to perform any of your obligations under such Equipment Licence, to enter into any premises where Equipment are stored and remove them without being responsible for any damage caused in doing so.
You shall indemnify FUJIFILM NZ for all such moneys and all costs, charges and expenses in repossessing Equipment.


15. Consumer Guarantees Act:

15.1 You will not do or omit anything which gives rise to any liability on your part or on the part of FUJIFILM NZ under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986.

15.2 You will not make any representation or give any guarantee, warranty or other undertaking in relation to the Equipment or any services provided in connection with the Equipment to customers other than as shown on packaging, promotional material or documents supplied by FUJIFILM NZ to you or as otherwise authorised in writing by FUJIFILM NZ.

15.3 You shall not hold yourself out as an employee, agent or representative of FUJIFILM NZ to any person.

15.4 You acknowledge that any Equipment you possess will be for business purposes and that the provisions of the CGA are excluded.

16. FUJIFILM NZ Exclusions and liability:

To the extent permitted by law:

16.1 All terms, conditions, warranties and representations, express or implied by statute or otherwise as to the description, merchantable quality or fitness for purpose of the Equipment are excluded.

16.2 Any liability of FUJIFILM NZ which cannot be excluded in relation to the Equipment is limited, at the option of FUJIFILM NZ, to the replacement of the Equipment or the supply of equivalent equipment; repair of the Equipment; payment of the cost of replacing the Equipment; or payment of the cost of having the Equipment repaired.

16.3 FUJIFILM NZ shall not be liable to you or any third parties for any loss, damage, expenses, injury or consequential, indirect or special loss, loss of profits or loss of opportunity arising directly or indirectly from the supply of the Equipment to you; any breach of any of FUJIFILM NZ's obligations under these Equipment Licence Terms or any other agreement FUJIFILM NZ has with you; any cancellation of any contract or other agreement FUJIFILM NZ has with you; any late or non-delivery of Goods; or negligence on the part of FUJIFILM NZ, its servants, agents or contractors.

17. Your Indemnity:
To the extent permitted by law, you release FUJIFILM NZ, its employees, agents and contractors from, and agree to indemnify and hold FUJIFILM NZ, its employees, agents and contractors harmless against any liability for loss, damage, death or injury of any nature whatsoever arising out of or in any way attributable to or connected with your use of the Equipment, unless such damage is caused by the willful neglect or default of FUJIFILM NZ.



18. Your liability:
You covenant and agree with FUJIFILM NZ that you assume sole and entire responsibility for, and indemnify FUJIFILM NZ from, any and all claims, liabilities, losses, expenses, responsibilities and damages by reason of any claim, proceedings, action, liability or injury arising out of or as a result of:

18.1 a breach of the terms of the Equipment Licence Terms by you or by any person for whom you are responsible; or

18.2 any wilful, negligent or unlawful act or omission by you or any person for whom you are responsible.

19. No Assignment:
You may not assign any right, obligation, benefit or interest you may have under any Equipment Licence without first obtaining FUJIFILM NZ’s consent in writing, which consent will not be unreasonably withheld where you:

19.1 are not, at the date of such assignment, in breach of any term of such Equipment Licence;

19.2 pay to FUJIFILM NZ all costs and expenses incurred by it in connection with investigating the proposed assignee and considering whether to consent to such assignment, including legal costs;

19.3 prove to FUJIFILM NZ’s satisfaction that the proposed assignee is respectable, responsible, solvent and of high financial standing; and

19.4 procure the execution by the assignee of a covenant in favour of FUJIFILM NZ to the effect that the assignee will at all times during the term of such Equipment Licence observe and perform all of its obligations thereunder.

20. Clauses to survive:
Clauses 7, 17, 11 to 13 (inclusive), 14 to 16 (inclusive), 24 and 27 shall survive the termination or expiration of the Equipment Licence.

21. Force Majeure:
Neither party shall be liable for any delay or failure to perform any obligation in whole or in part under these Equipment Licence Terms or for any loss or damage (including indirect or consequential loss or damage) if such delay or failure is due to Force Majeure (as that term is commonly understood).
Nothing in this clause 21
shall excuse payment of any amount owing as it becomes due under these Equipment Licence Terms.

22. Non-waiver:
No failure to exercise or delay in exercising any right, power or remedy by a party operates as a waiver.
A waiver is not valid or binding on the party granting that waiver unless made in writing.

23. Severability:
I f any provision of any Equipment Licence is or becomes wholly or partly invalid or unenforceable then, from the date of the invalidity or unenforceability if the offending provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down to the extent necessary to achieve that result and otherwise the offending provision must be severed from such Equipment Licence and the remaining provisions will operate as if the severed provision had not been included.

24. Notice:
A notice to or by a party to any Equipment Licence must be in writing and may be given to a party personally or by leaving it at or sending it by post to the address as notified by that party.

25. No reliance:
You warrant and represent that, in entering into any Equipment Licence, you have not relied and will not rely on any statement, disclosure, representation, warranty, condition, promise or undertaking made by any person in connection with the subject matter of such Equipment Licence, not expressly restated in such Equipment Licence or some other written agreement between FUJIFILM NZ and you, and you acknowledge that FUJIFILM NZ has relied and will rely on this representation in entering into any Equipment Licence.

26. Variation:
No amendment or variation of any Equipment Licence is valid or binding on a party unless made in writing executed by all parties.

27. Jurisdiction:
Each Equipment Licence is governed and must be construed in accordance with the laws of New Zealand.
The parties submit to the exclusive jurisdiction of the Courts of New Zealand in respect of all matters or things arising out of such Equipment Licence.