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Lease and Finance Terms and Conditions

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  1. Definitions

    The following words have the meaning shown:

    Alteration – means any change to the Goods, including without limitation, features and conversions installed on a Good after the commencement of a Lease Schedule;

    Composite Signature Agreement - a document in Our format that enables one or both parties to signify acceptance of the documents listed in it;

    End of Lease Services – means the Pre-paid Data Cleansing Services (off-site) at End of Lease and/or the Pack & Transport Services at End of Lease (as defined in Clause 16) to be provided by Us in relation to specified Goods if so designated in the Lease Schedule;

    Fair Market Value - the best price reasonably available at which We have sold or may sell the Goods, or the sum of money We estimate for which the Goods may reasonably be expected to be sold to an end user. Where there is a dispute over the amount, it will be the amount nominated by an independent valuer We appoint;

    Finance Application - a document in Our format referencing these terms with details of items in respect of which You request that We provide finance to You;

    Fixed Residual Lease - a lease which is indicated as such in the Lease Schedule and in which there is an agreed and stated Residual Value. Note the term of this type of lease cannot be extended;

    Goods - is any new or used physical item You lease from Us under the terms of this Agreement and to which We hold title;

    Government Duties - includes stamp duty, or other duties, fees, taxes (including, but not limited to GST) and charges imposed by the New Zealand Government in relation to a lease, a provision of finance or to a security;

    IBMNZ - IBM New Zealand Limited;

    IBM Group - IBM Corporation and its subsidiaries;

    Items - is any item which is not a Good and for which We provide financing under this Agreement;

    Lease Schedule - a document in Our format referencing these terms and detailing the Goods being leased;

    Net Proceeds of Sale - the amount remaining after deducting from the proceeds of sale of the Goods, the actual costs associated with the sale or disposal (including storage) plus, if We have collected the Goods, the costs associated with this collection. In the case of termination, the proceeds of sale shall be the Fair Market Value;

    Part – means any original component or element of the Goods or any replacement to such original component or element provided under warranty or maintenance service:

    Payment Schedule - a document in Our format containing a statement of payments, charges, Government Duties, Residual Value where applicable, value of Goods leased or Items financed;

    Periodical Payment Authority - a document in Our format which You use to authorise Your bank to make payments to Us;

    PPSA – means the Personal Property Securities Act 1999;

    Present Value - the Present Value of an amount is determined by Us applying a discount rate to a future cash flow to calculate its present value;

    Residual Value - the amount (if any) described in the Lease Schedule and Payment Schedule agreed by both parties to represent a fair estimate of the forecasted value of the Goods at the end of a lease. In the case of termination, references to Residual Value shall be taken to mean the Present Value of Residual Value as at the date of termination;

    Risk Residual Lease - a lease which is indicated as such in the Lease Schedule, and which does not have a stated Residual Value. Note this type of lease may be extended - refer Clause 14.2;

    Shortfall - the difference between the Residual Value and the Net Proceeds of Sale (if any) subject to Clause 15.3(b)(2);

    Supplier – means the company supplying Goods or Items under a Supply Agreement;

    Supply Agreement – means the agreement between You and the Supplier for the acquisition of the Goods or Items;

    "We", "Us” or “Our” - IBM Global Financing New Zealand Limited;

    “You” or “Your” - the client as stated in the Payment Schedule.

  2. Your Rights

    1. For a lease, We grant You a right as lessee to quiet possession of, and the right to use, the Goods for the period of the lease within New Zealand; and

    2. Where We agree to provide You with finance, We will pay the agreed amount to You or at Your direction, in accordance with the Finance Application; and

    3. Where We agree to provide You with End of Lease Services, We will provide the services We specify in the Lease Schedule for the Goods identified in the Lease Schedule;

    subject to the terms below.

  3. Selection of Products

    As lessor or financier, We have no responsibility for Your selection of Goods leased or Items financed nor for their performance, and You agree to this.

  4. Payments

    You agree to pay:

    1. all lease and finance payments and charges according to the Payment Schedule by means of a Periodical Payment Authority or Electronic Funds Transfer with Your bank (or other method We may agree);

    2. all other amounts due in respect of a lease or a provision of finance, on receipt of Our invoice or request;

    3. all existing and future Government Duties relating to these terms, a lease or a provision of finance, whether or not such amounts are specified in the Payment Schedule;

    4. all costs and expenses (including Our reasonable legal costs) in connection with the enforcement of these terms and in the drawing up or enforcement of any security given to Us in relation thereto;

    5. for any amount not paid in full by its due date, a fee in an amount equal to one and one-half percent (1.5%) of the unpaid amount for each month or any part thereof that such amount remains unpaid (“Unpaid Amount”) from the due date until the actual date such Unpaid Amount is paid in full, subject to maximum limitations of applicable law (the “Late Payment Fee”). If it is determined that any amounts received from You under the Agreement in respect of interest or finance charges were in excess of the highest rate allowed by applicable law then the amount representing such excess shall be credited to Your other obligations to Lessor or, in the event such other obligations have been satisfied in full, refunded to You;

    6. all amounts due in full, without set off or counterclaim, withholding, deduction, abatement or recoupment This obligation to pay is absolute and unconditional and applies regardless of any dispute, defence or claim You may have with or against the Supplier or any other third party, even if the Supplier is IBMNZ;

    7. on the preceding business day, if the date for payment falls on a weekend or public holiday; and

    8. any fees levied by Us and advised to You for activities undertaken at Your specific request.

  5. Representations and Warranties

    1. You represent and warrant to Us that:

      1. all representations made, and any information supplied (including those related to financial status, Goods or Items, and prices) are true, accurate and complete; and

      2. there exists no material default as to any other agreement, or material potential liability, legal or otherwise, which might impair Your ability to comply with this Agreement or any Lease Schedule.

    2. To the extent permitted by the applicable legislation, all conditions and warranties, express or implied, statutory or otherwise, made as to the condition, quality or description of the Goods or Items or Services or as to their purpose are expressly excluded by Us. You acknowledge that no other condition, warranty or representation of any kind (except as expressly stated herein) is given by Us in relation to any matter whatsoever including the Goods, Services or Items.

    3. The Consumer Guarantees Act 1993 will not apply in respect of any services which We provide under this Agreement if You require the services for the purposes of a business as defined in that Act.

    4. You agree to indemnify Us in full against any amounts of money ordered to be paid by Us through legal proceedings in respect of third party claims, or settled by Us with Your agreement, which arise in
      connection with this Agreement or any Lease Schedule or other transaction document or from Your possession and use of the Goods or Items, including all related liabilities, costs and reasonable legal and
      other expenses. This indemnity shall not apply to third party claims caused solely by Our fault.

    5. Except with respect to clause 5.4 above, in no event shall either party have any liability for, nor shall You have any remedy against Us for, special indirect or consequential damages, any loss of profits, business, revenue or anticipated savings, loss of use, loss of or damage to data or any other commercial loss. The foregoing does not limit, amend, modify or alter Your obligations to pay amounts due, taxes or any other payment obligations (including without limitation, Your indemnity obligations) under this Agreement. The limitation of liability in this clause 5.5 shall in no way affect Your rights under the Supply Agreement against the Supplier or the manufacturer of the Goods or Items. The foregoing shall not exclude any liability in respect of death or personal injury resulting from the negligence of either party, its employees or agents. We shall not be liable for any claim, damages or loss arising from the Goods or Items.

    6. With respect to the End of Lease Services We are liable for no more than the amount of any actual direct damages up to the actual charges for the End of Lease Services that are the subject of the claim. To the full extent permitted by law and subject to clause 5.5, this limitation is Our maximum aggregate limit for liability arising in relation to the End of Lease Services, regardless of the basis on which You are entitled to claim damages from Us (including fundamental breach, negligence, misrepresentation, or other contract or tort claim).

  6. Events of Default

    1. Events of Default are:

      1. any payment overdue by more than fourteen (14) days;

      2. failure to comply with or remedy any other obligation upon fourteen (14) days written notice by Us;

      3. circumstances where You become or are likely to become subject to any form of insolvency or other administration whether voluntary or not;

      4. any Event of Default occurring under any other lease or finance agreement that You have with Us (as defined in that agreement).

    2. We both agree that where there is an Event of Default, this amounts to breach of a fundamental term andWe will be entitled to treat this as a repudiation by You. Note that the circumstances in which You may have repudiated the lease are not limited to those defined above. Where there is an Event of Default or other repudiation by You, Clauses 15 and/or 17.4 will apply.

  7. Application of Monies

    1. We are authorised and directed to pay You or the relevant Supplier of the Goods leased or Items
      financed (unless otherwise instructed in writing). This applies as soon as We have accepted a
      Lease Schedule or where We have decided to accept Your application for finance.

    2. You authorise Us to apply any monies received by Us against any obligation owed by You
      regardless of the nature of the obligation, including in any manner required to preserve any
      purchase money security interest We have in any Goods or Items.

    3. For Goods or Items not supplied by IBMNZ, we may pay fees to the Supplier and/or other third-party
      firms for administrative services provided in connection with the transaction or transactions
      contemplated under this Agreement. Details are available upon request.

  8. Additional Terms

    1. Conflict

      The terms of this Agreement are paramount, and, to the extent that there is any conflict between any provision of them and any invoice or other document evidencing or describing any Items, the terms of this
      Agreement will prevail. Further, if there is any other document or arrangement which conflicts with this Agreement, this Agreement shall prevail.

    2. Assignment

      You agree not to assign, sub-lease or transfer any rights or obligations under a lease or provision of finance without Our prior written consent, such consent not to be unreasonably withheld. Where this
      occurs, note that the IBMNZ licensed program terms prevent the transfer of programs to others (even if We consent to the assignment, sub-lease or transfer). We may assign or otherwise transfer in whole or in
      part Our rights, title and interest in this Agreement and the Goods under this Agreement to any third party at Our discretion and without Your consent. You will not assert against any such assignee or transferee
      any set-off, defense or counterclaim that You may have against Supplier or any other person.

    3. Force Majeure

      Neither party is responsible for failure to fulfill any obligation (other than payment of amounts due by You) due to causes beyond their control.

    4. Waiver

      If either of Us waives any default by the other this is not to be construed as waiver of any other default by the other.

    5. Governing Law

      These terms and conditions are governed by and construed in accordance with New Zealand.

    6. Variation

      For a change to these terms and conditions to be valid, both parties must sign it. Additional or different terms in any written communications from You are void.

    7. No Representation

      Neither We nor any member of the IBM Group makes any representation whatsoever regarding Your accounting treatment applicable to this Agreement. International Business Machines Corporation
      accounts for receivables under this Agreement as financing receivables for US reporting purposes.

    8. PPSA

      You grant Us a security interest in respect of all Goods leased by Us to You or Items acquired by You with the proceeds of finance provided by Us to You under the terms of this Agreement and all proceeds of such Goods and Items as security for payment of any amounts owing by You to Us from time to time and for the performance by You of all of Your other obligations to Us from time to time.

      You agree to do anything We reasonably require to ensure that Our security interests remain perfected and current at all times, and that the maximum priority is obtained and maintained for them. In particular, You shall not change your name, unless You have provided us with no less than 10 business days’ prior written notice of any intended change and, in any event, shall not make any such change until all necessary filings are made to ensure the Our security interests remain perfected.

      You waive the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interests under this Agreement.

      You agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Agreement, or the security under this Agreement, and waive your rights under sections 120(2), 121, 125, 129 and 131 of
      the PPSA.

      We may allocate amounts received from You in any manner We determine, including any manner required to preserve any purchase money security interest We have in any Goods or Items.

      You agree to reimburse Us for all costs and/or expenses incurred or payable by Us in relation to registering, maintaining or releasing any financing statement in respect of any security interest under this Agreement.

      You will be in default in relation to all Goods or Items if any Goods or Items are at risk.

      At any time after a default occurs, We may (whether or not We have exercised any other right) appoint any person to be a receiver of all or any of the Goods or Items. In addition to, and without limiting or affecting any other powers and authorities conferred on a receiver (whether under the Receiverships Act 1993 or at law or otherwise), a receiver has the power to do all things in relation to the Goods or Items as if the receiver has absolute ownership of the Goods or Items.

      The terms “at risk”, “default”, “lease”, “perfected”, “proceeds”, “purchase money security interest”, “rights” and “security interests” have the respective meanings given to them under, or in the context of, the PPSA.

    9. Continuity

      This agreement forms the basis on which We lease and/or finance Goods and/or Items to You. Each such lease and/or finance shall be effected pursuant to the terms of this Agreement (unless in any
      specific case agreed otherwise in writing). Any invoice, Lease Schedule, Payment Schedule, or other document from Us evidencing or describing any Goods, Services or Items is incorporated into and forms
      part of this Agreement.

    10. Third Party Commissions

      Where You have been introduced to Us by a finance broker or business partner, You acknowledge that the broker or business partner may receive a benefit from Us as a percentage of the total amount leased
      or financed as a result of transactions under this Agreement. In addition, from time to time, We may offer other incentives to business partners pursuant to promotions conducted by Us. By signing this
      Agreement You are evidencing Your consent to the payment of the benefit or other incentive by Us to the business partner.

    11. Contact Information

      You agree to allow Us and Our related entities to store and use Your contact information, including names, phone numbers, and e-mail addresses, anywhere they do business. Such information will be
      processed and used in connection with Our business relationship, and may be provided to contractors, business partners, and assignees of International Business Machines Corporation and its related entities
      for uses consistent with their collective business activities, including communicating with You (for example, for processing orders, for promotions, and for market research).

    12. Counterparts

      Documents may be executed in counterparts and all executed counterparts will together be deemed to constitute one document.

    13. Notice

      Service of all notices hereunder shall be sufficient if delivered personally or mailed to the addresses of the parties specified in the Payment Schedule or as otherwise notified in writing to the other party from time
      to time. Notices by mail shall be effective on receipt or 3 days after being deposited in the Australian mail, duly addressed and with postage prepaid, whichever is earlier.

    14. Severence

      Each term and provision of this agreement shall be valid and enforceable to the fullest extent permitted by law and any invalid, illegal or unenforceable term or provision shall be deemed replaced by a term or
      provision that is valid and enforceable and that comes closest to expressing the intention of the invalid, illegal or unenforceable term or provision.

    15. Electronic Communications

      Each party may communicate with the other by electronic means and such communication is acceptable as a signed writing to the extent permissible under applicable law.

Lease Terms

  1. When Lease is Effective

    A lease of Goods and these terms take effect when a Lease Schedule (with Payment Schedule) has been signed by both parties, or a Composite Signature Agreement referencing these documents has been
    signed by both parties.

  2. Title and Warranty Service

    1. Where You have ordered the Goods from IBMNZ, You agree to assign to Us Your right to obtain title to the Goods from IBMNZ. In return, We agree to pay IBMNZ for the Goods on receipt of their invoice. We confirm to You that IBMNZ consents to this assignment and that IBMNZ agrees to provide any applicable warranty service to You. You acknowledge that in other respects the relevant terms of Your agreement with IBMNZ (including liability) remain in force (with any necessary changes that may be made). We have authorisation from IBMNZ for the purposes of this clause.

    2. For other situations, You warrant to Us that We will obtain title to the Goods upon payment by Us; and

      1. for Goods indicated as "Sale and Lease Back" in the Lease Schedule, You confirm that You have clear and unencumbered title and agree to pass it to Us, when We pay You. For such “Sale and Lease Back Goods” the purchase price is the amount equal to the Fair Market Value of the Goods as determined by Us. Any amount paid to You in excess of Fair Market Value is recorded by IBM Corporation as a loan under U.S. GAAP for U.S. reporting purposes. Details are available upon request;

      2. where the Supplier is not IBMNZ, You agree to assign to Us Your right to obtain title upon payment and to provide Us with invoices showing Us to be the purchaser.
        For any warranty service which still applies to these Goods, We both trust that the Supplier will continue to provide it directly to You. If not We assign it to You, to the extent We are able, for the
        duration of the warranty service or lease (whichever is shorter).

    3. No title or interest in the Goods will pass to You as a result of these terms or the Lease Agreement. The Goods will remain Our property, and Your only rights are as set out in these terms. Note that there is no express or implied option for You to purchase the Goods.

  3. Your Responsibilities

    You agree:

    1. to keep the Goods and their original Parts under Your possession and control in New Zealand at all times. You may temporarily take laptop computers overseas for business purposes without Our prior consent. 

    2. to keep Us notified of where the Goods are permanently installed; 

    3. to allow Us to inspect the Goods at mutually agreed times; 

    4. to comply with the manufacturer's instructions regarding maintenance and operation of the Goods, and keep them in good repair, using parts originally manufactured by, or for, the manufacturer of the Goods; 

    5. to ensure that the Goods qualify for the manufacturer's maintenance agreement service or other equivalent service when the lease ends or is terminated; 

    6. make no claim or represent that the Goods belong to You, nor attempt to dispose of them, or of any of their Parts, as Your own; 

    7. not allow or permit any act jeopardising Our rights and to inform Us where You become aware of any such act; and

    8. not to remove any label, plate or mark which identifies the Goods and the owner of the Goods.

  4. Risk of Loss or Damage

    1. Risk of loss or damage is assumed by You throughout the term of the lease. Throughout the term of a lease, You shall keep the Goods insured, at Your expense, against all risk of loss or damage from every cause whatsoever for not less than the full replacement value thereof, and shall carry public liability, professional indemnity and property damage insurance, each with a minimum coverage of $10,000,000 per occurrence. All such insurance shall be in commercially reasonable form with companies acceptable
      to Us. The insurance shall name Us and any assignee as additional insured with respect to any and all loss or damage from every cause whatsoever. You shall furnish to Us, upon request, evidence that such insurance coverage is in effect.. The occurrence of such loss or damage shall not relieve You of any obligations hereunder.

    2. If there is a loss or damage to, or theft of, the Goods, You will immediately notify Us and either:

      1. within five (5) business days of such occurrence, repair or replace the Goods at Your own expense, passing to Us full legal and beneficial title free of all liens to replacement Goods which is acceptable to Us and notify Us of the serial number of any replacement Goods; or

      2. pay an amount equal to any and all unpaid and remaining lease payments, plus any other amounts due under the Lease and/or Payment Schedule with respect to such Goods, plus either the projected Fair Market Value or Residual Value (as applicable) at the end of the lease term. Thereafter, You shall owe no lease payments for the transaction and the lease shall be terminated.

  5. Alterations and Additions

    1. You may only modify or alter the Goods subject to the following provisions:

      1. any Parts owned by Us which are removed as a result of an Alteration shall remain Our property and shall not be disposed of or sold by You without Our prior written consent. The foregoing shall not apply to removed Parts when the Alteration is due to a warranty repair or an engineering change from the manufacturer or from the manufacturer’s authorised service provider, or as a result of an Alteration provided by IBMNZ or by an IBMNZ authorised provider;

      2. prior to return to Us, You shall remove any Alterations not owned by Us and restore the Goods to their original condition (ordinary wear and tear excepted) and good working order;

      3. if the Goods are returned other than in their original condition (ordinary wear and tear excepted) or not in good working order, You agree to pay to Us any diminution in value of the Goods or the cost to restore the Goods to their original condition (ordinary wear and tear excepted);

      4. if We are not the owner of the Parts or Alterations not removed before the return of the Goods to Us they shall become Our property, without charge, free and clear of all liens and encumbrances and You agree to procure and pass to Us such free and clear title. You agree to indemnify Us in all respects for damages (and third party claims) as a result of Your failure to procure and pass clear title to the Parts or Alterations to Us;

    2. If required by the Goods’ manufacturer, We agree to (i) allow installation of any changes, additions, and/or capacity monitoring hardware or software on the Goods, or permit the manufacturer to monitor Goods’ capacity; and (ii) comply with any other terms between You and the Goods’ manufacturer, including, but not limited to, those that relate to the Goods’ capacity.

  6. Lease Expiry and Termination

    1. Unless terminated or extended, a lease expires on the expiry date stated in the Lease Schedule.

    2. For a Risk Residual Lease You must either:

      1. return the Goods to Us (in accordance with Clause 14.4) on expiry; or

      2. extend the current lease for the period determined by You with new monthly/quarterly payments based on the Fair Market Value of each leased item, subject to Our credit approval. The terms and conditions of Your current lease will apply. You must provide Us written notice of Your intention to extend the lease at least thirty (30) days prior to the lease expiry date; or

      3. make an offer to purchase any or all of the Goods. You must provide Us with a written offer to purchase the Goods at least thirty (30) days prior to the lease expiry date. We can accept or reject Your offer at Our absolute discretion.

    3. Notice of Your intention to return the Goods to Us, extend the lease, or Your offer to purchase the Goods, must be provided thirty (30) days in advance, or We will charge not more than the average monthly lease payments as a default rental option until the Goods are returned. You will continue to be charged this amount until Your disposition decision (ie return, extend or offer to purchase) is actioned or completed.

    4. On expiry or termination:

      1. You agree to immediately return the Goods (with all associated accessories) at Your expense to Our warehouse in New Zealand advised by Us, or other location agreed between us, clearly marked and labeled as We instruct including with Your name, return authorisation numbers and marked "IBM Global Financing Return";

      2. should You fail to do so:

        1. We may enter Your premises and collect the Goods and You agree to all allow Us entry and access. You agree however that We have no obligation to collect the Goods; and

        2. where We do not collect the Goods, You agree to pay to Us all lease payments and charges We bill You on a monthly basis as determined by Us and advised to You.

      3. You must erase all personal information from the hard drives of the Goods before returning the Goods to Us. You agree to indemnify Us in all respects for damages (and third party claims) as a result of Your failure to erase all personal information prior to Your return of the Goods to Us.

      4. If You fail to return the Goods, and We have not collected them, We may recover full damages from You as a result of Your failure. For a Fixed Residual Lease, these damages will include the full Residual Value. For a Risk Residual Lease, these damages will include the Fair Market Value.

    5. In relation to a Fixed Residual lease, You guarantee to Us recovery by Us of an amount equal to the Residual Value following expiry, and You indemnify Us in respect of the full Residual Value. You agree to pay the Residual Value (under either this clause or Clause 14.4(d)) promptly upon Our request.

    6. If You decide to keep the Goods (and You will be taken to have so decided if You do not give Us a notice under 14.2) the term of the lease is extended by the period specified in the notice under 14.2 (or, if no period is specified, on a monthly basis).

  7. Lease Default

    1. If there is an Event of Default or other repudiation by You, We may adopt any one or more of the following

      1. terminate the lease without prior notice to You. Termination is effected either upon notice to You, upon Our request that You return the Goods, or upon Our attempt to recover possession of the Goods;

      2. recover possession of the Goods upon termination (under Clause 14.4), without prior notice to You;

      3. recover damages;

      4. seek any other remedies available under these terms at law or in equity.

    2. If We terminate, in addition to returning the Goods pursuant to Clause 14.4, You must immediately pay to Us as liquidated damages the amounts listed below, less any amounts credited under Clause 15.3:

      1. all payments due and in arrears as at the date of termination;

      2. all costs incurred in restoring the Goods to a condition consistent with Your obligations under these terms; and

      3. for a Risk Residual Lease, all costs incurred in repossession of the Goods;

      4. all lease payments and charges relating to the unexpired portion of the lease at their Present Value; and

      5. for a Fixed Residual Lease, the Residual Value in accordance with either Clause 14.4(d) or Clause 14.5, as the case may be;

      6. an amount to compensate Us for changes in the tax benefits (if applicable) resulting from early termination; and

      7. interest to be determined in accordance with clause 4(e)on all amounts above from the dates due to the actual date of payment.

    3. Where, upon termination, You have returned the Goods to Us or We have collected them, We must:

      1. for a Risk Residual Lease, credit to You any additional value of the Goods (if any) realised by Us which is attributable to Our obtaining possession earlier than lease expiry date as reasonably calculated by Us; and

      2. for a Fixed Residual Lease:

        1. credit You with any surplus between the Net Proceeds of Sale and the Residual Value (if any, which is attributable to Our obtaining possession of the Goods earlier than the lease expiry date, as reasonably calculated by Us); and

        2. make reasonable endeavours within a reasonable period to sell the Goods to brokers, IBMNZ or other clients and calculate any Shortfall. Should We fail to make such endeavours, We will consider the Fair Market Value to be the Net Proceeds of Sale for the purposes of this calculation.

  8. End of Lease Services

    1. Where so indicated on the Lease Schedule We will provide You with the following end of lease services
      for Goods:

      1. Pre-paid Data Cleansing Services at End of Lease – namely the erasure of every sector of the hardware storage within the identified Goods; Where the Goods contain spinning hard disk drives, cleansing will be achieved by overwriting every sector of the storage device the number of times indicated on the Lease Schedule. Where the Goods contain solid state, flash or other forms of data storage, cleansing will be achieved through the use of methods certified under the New Zealand Information Security Manual. Erasure reports can be provided on request. Where data cannot be erased or cannot be verified as erased, the storage device will be physically destroyed.

      2. Pre-paid Pack & Transport Services at End of Lease – namely (i) packing and preparation of identified Goods for shipment; (ii) retrieval of identified Goods at Your location; and (iii) shipment of identified Goods to Our warehouse in New Zealand; or

      3. Pre-paid Data Cleansing (off-site) plus Pack & Transport Services at End of Lease – namely both Pre-paid Data Cleansing Services and Pack & Transport Services at End of Lease.

    2. The charges for End of Lease Services are to be pre-paid and are incorporated into the lease payments set out in the Payment Schedule. All references to lease payments in this Agreement are deemed to include amounts payable for End of Lease Services. The charges for End of Lease Services are nonrefundable in the event that We cannot provide some or all of the End of Lease Services through no fault of Our own. Where We agree to sell You the Goods We will deduct the cost of administering the refund from the charges for End of Lease Services refunded.

    3. Where We are providing Pre-paid Pack & Transport Services at End of Lease We shall assume the risk of loss for any loss or damage to the Goods upon pickup from Your designated pickup location by Us, Our affiliates or subcontractors. Otherwise the risk of loss or damage remains with You until the equipment is delivered to Our designated delivery location. You will make the Goods available for pickup at the agreed designated pickup location.

    4. You are solely responsible for complying with all applicable legal obligations concerning data confidentiality, data privacy or data transmission with regard to Goods to be returned to Us.

    5. Prior to delivery of Goods to Us (at Your location if We are providing Pre-paid Pack & Transport Services at End of Lease and at Our designated delivery location if We are not providing Pre-paid Pack & Transport Services at End of Lease) You will ensure removal of all passwords necessary to permit Us to perform the End of Lease Services. You will own and remain responsible for Your data at all times. We will not access data on hard drives and will secure data on the Goods using commercially reasonable efforts to protect the Goods from access by third parties while at Our facilities. We will not audit Goods for the presence of such data. Other than as set forth above in this clause 16.5, We do not have any responsibility or obligation of confidentiality for any such data, including personal data, encrypted data, passwords, software and programs contained in or on Goods. We reserve the right to withhold performance of End of Lease Services if You fail to comply with the requirements set out in this clause.

    6. We warrant that the End of Lease Services will be performed by Us or Our subcontractors using reasonable care and skill.

    7. You agree to indemnify Us in all respects for Our costs including actual damages and legal fees and third party claims incurred as a result of Your failure to comply with Your obligations in this clause 16.

Finance Terms

  1. Provision of Finance 

    1. Your signature on a Finance Application, or on a Composite Signature Agreement referencing that document, is Your request to Us to make finance available for the Items specified in it. You will know We have accepted Your request and that these terms apply, when We pay to You, or at Your written direction to a third party, the full amount financed. This is the only form that acceptance by Us will take. The following clauses will then apply:

    2. Subject to clause 17.1:

      1. You agree to pay all charges in the Payment Schedule as they become due or the amounts payable in respect of default, if the finance application is accepted by Us

      2. Where We are providing finance for Items or other chattels, and We pay the Supplier direct, You confirm that We are paying on Your behalf and You obtain title from the Supplier under Yourarrangements with the Supplier.

    3. You are responsible for insuring all Items provided pursuant to this Finance Agreement.

    4. If You default, the Present Value of the whole of the balance of the entire payment not then accrued, becomes immediately due and payable at Our option together with any amount which may be in arrears,
      including interest calculated in accordance with clause 4(e).

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