1.1 “Eftco” means Eftco Limited, its successors and assigns or any person acting on behalf of and with the authority of Eftco Limited.
1.2 “Customer” means the person/s hiring the Goods (and/or purchasing the Goods) as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by Eftco to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Eftco to the Customer.
1.5 “Price” means the Price payable for the hire (or purchase) of the Goods as agreed between Eftco and the Customer in accordance with clause 5 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with Eftco’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Eftco.
2.3 It is the Customer’s responsibility to determine the suitability of the Goods for their business. Whilst Eftco has endeavoured to ensure that the Goods will work substantially as per the specifications published by Eftco, Eftco does not guarantee that the Goods will work on all computer hardware platforms or configurations. The Customer acknowledges that neither Eftco, nor any of its employees or representatives, have made any representations regarding the use, performance or results of the Goods. Eftco shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
2.4 Eftco is not responsible for the regular back up of database systems and the Goods do not automatically provide for systems backup. Systems backup is the responsibility of the Customer.
3. Electronic Transactions Act 2002
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Customer shall give Eftco not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Eftco as a result of the Customer’s failure to comply with this clause.
5. Price and Payment
5.1 At Eftco’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Eftco to the Customer; or
(b) Eftco’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 Eftco reserves the right to change the Price:
(a) if a variation to Eftco’s quotation is requested. Any variation from the specifications of the Goods (including, but not limited to, any variation as a result of increases to Eftco in the cost of taxes, levies, model upgrade, missed installation appointments, reinstallations, delays in delivery due to incomplete services required to operate the Goods including but not limited to, power, telephone or other required cabling) will be charged for on the basis of Eftco’s quotation and will be shown as variations on the invoice;
(b) in its sole discretion, by giving fourteen (14) days’ notice to the Customer. Where the variation does not exceed the initial Price previously agreed, the Customer shall be bound to pay the variation to the Price from the next monthly payment immediately before the expiry of the fourteen (14) day notice period. Where the variation Price exceeds the initial Price previously agreed, plus the standard annual increases, the Customer shall be entitled at any time within the fourteen (14) day notice period to give three (3) months’ written notice cancelling this agreement. During the said three (3) month period the customer shall continue to pay the Price applicable immediately prior to the variation. Despite clause 19.5, such notice shall be effective even if prior notice is given prior to the expiry of the Minimum Hire Period.
5.3 At Eftco’s sole discretion a deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Eftco, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of monthly instalment payments in accordance with Eftco’s payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Eftco.
5.5 Payment may be made by electronic/on-line banking, credit card or by any other method as agreed to between the Customer and Eftco.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Eftco an amount equal to any GST Eftco must pay for any supply by Eftco under this or any other agreement for the sale/hire of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.
6. Cabling and Internet Connection
6.1 The Customer acknowledges that:
(a) the installation of both power and data cabling is not the responsibility of Eftco, and all cabling must be completed before installation commences. If installation does occur prior to completion of cabling then Eftco’s current hourly rate will be charged for installations which exceed one (1) hour or if installations are required to be re-scheduled; and
(b) ADSL2+ is the preferred internet connection, although Eftco does accept ADSL1/Broadband (which will result in slower but acceptable speed), by no means is ‘dial-up’ internet connection viable. It is the responsibility of the Customer to ensure an appropriate internet connection is available prior to installation.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods are taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Eftco’s address; or
(b) Eftco (or Eftco’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At Eftco’s sole discretion, the cost of delivery is included in the Price.
7.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Eftco shall be entitled to charge a reasonable fee for redelivery of the Goods and/or the storage of the Goods.
7.4 Eftco may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.5 Any time or date given by Eftco to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Eftco will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
8.1 Where this is a hire agreement:
(a) the Goods are and will at all times remain the absolute property of Eftco, however the Customer accepts full responsibility for:
(i) the safekeeping of the Goods and indemnifies Eftco 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 Customer; and
(ii) shall keep Eftco 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 Customer or any other persons.
Furthermore, the Customer will insure, or self-insure, Eftco’s interest in the Goods against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Goods. Further the Customer will not use the Goods nor permit it to be used in such a manner as would permit an insurer to decline any claim.
(b) The Customer is not authorised to pledge Eftco’s credit for repairs to the Goods or to create a lien over the Goods in respect of any repairs.
8.2 Where is this an agreement for the purchase of the Goods:
(a) Eftco and the Customer agree that ownership of the Goods shall not pass until:
(i) the Customer has paid Eftco all amounts owing to Eftco; and
(ii) the Customer has met all of its other obligations to Eftco.
(b) Receipt by Eftco 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 Customer in accordance with clause (a):
(i) the Customer is only a bailee of the Goods and must return the Goods to Eftco on request.
(ii) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Eftco and must pay to Eftco the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(iii) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Eftco and must pay or deliver the proceeds to Eftco on demand.
(iv) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Eftco and must sell, dispose of or return the resulting product to Eftco as it so directs.
(v) the Customer irrevocably authorises Eftco to enter any premises where Eftco believes the Goods are kept and recover possession of the Goods.
(vi) Eftco may recover possession of any Goods in transit whether or not delivery has occurred.
(vii) the Customer 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 Eftco.
(viii) Eftco may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Customer.
8.3 If the Customer fails to return the Goods to Eftco then Eftco or Eftco’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Customer 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 Eftco to the Customer (if any) and all Goods that will be supplied in the future by Eftco to the Customer.
9.2 The Customer 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 Eftco may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Eftco 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 Eftco; and
(d) immediately advise Eftco of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
9.3 Eftco and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by Eftco, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Customer shall unconditionally ratify any actions taken by Eftco under clauses 9.1 to 9.5.
10. Security and Charge
10.1 In consideration of Eftco agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Customer indemnifies Eftco from and against all Eftco’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Eftco’s rights under this clause.
10.3 The Customer irrevocably appoints Eftco and each director of Eftco as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
11. Customer’s Disclaimer
11.1 The Customer hereby disclaims any right to rescind, or cancel any contract with Eftco or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by Eftco and the Customer acknowledges that the Goods are bought/hired relying solely upon the Customer’s skill and judgment.
12. Consumer Guarantees Act 1993
12.1 This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Hirer is contracting within the terms of a trade/business (which cases are specifically excluded).
13.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Eftco of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Eftco an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Eftco has agreed in writing that the Customer is entitled to reject, Eftco’s liability is limited to either (at Eftco’s discretion) replacing the Goods or repairing the Goods.
13.2 Returns of Goods will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 13.1; and
(b) Eftco has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned (with the courier ticket supplied by Eftco) within seven (7) days of the delivery date; and
(d) Eftco will not be liable for Goods which have not been stored or used in a proper manner; and
(e) 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. The Customer is responsible to ensure that Goods for return are adequately packaged to prevent damage. Any damage caused to the terminals in transit to Eftco is the responsibility of the Customer.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Eftco’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Customer owes Eftco any money the Customer shall indemnify Eftco from and against all costs and disbursements incurred by Eftco in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Eftco’s collection agency costs, and bank dishonour fees).
14.3 Without prejudice to any other remedies Eftco may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Eftco may suspend or terminate the supply of Goods to the Customer (including disable or disconnecting the Goods). Eftco will not be liable to the Customer for any loss or damage the Customer suffers because Eftco has exercised its rights under this clause.
14.4 Without prejudice to Eftco’s other remedies at law Eftco shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Eftco shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Eftco becomes overdue, or in Eftco’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
15.1 Eftco may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Eftco shall repay to the Customer any money paid by the Customer for the Goods. Eftco shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Eftco as a direct result of the cancellation (including, but not limited to, any loss of profits).
16. Privacy Act 1993
16.1 The Customer authorises Eftco or Eftco’s agent to:
(a) access, collect, retain and use any information about the Customer;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by Eftco from the Customer directly or obtained by Eftco from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
16.2 Where the Customer is an individual the authorities under clause 16.1 are authorities or consents for the purposes of the Privacy Act 1993.
16.3 The Customer shall have the right to request Eftco for a copy of the information about the Customer retained by Eftco and the right to request Eftco to correct any incorrect information about the Customer held by Eftco.
17. Credit Contracts and Consumer Finance Act 2003
17.1 I/we declare, for the purposes of section 14(1) of the Credit Contracts and Consumer Finance Act 2003 (the “Act”), that any rental/purchase agreement and related securities (“Agreement”) entered into with and/or in favour of any financier or discounter of the Customer’s agreement(s) upon acceptance of this order is not a ‘consumer credit contract’ as that term is defined by the Act because the credit to be made to me/us pursuant to the Agreement is to be used by me/us primarily for business or investment purposes. I/we hereby confirm that I/we have read this declaration, that I/we understand the terms hereof (including for the avoidance of doubt, this declaration) and that I/we hereby irrevocably waive any defence or counterclaim that I/we may have against the financier or the discounter of my/our agreement whether now or in the future in connection with the enforcement of this declaration by that financier or discounter which may arise as a consequence of my/our electing not to obtain independent legal advice prior to acceptance of this agreement.
18.1 The failure by Eftco to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Eftco’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.
18.2 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 Hamilton Courts of New Zealand.
18.3 Eftco shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Eftco of these terms and conditions (alternatively Eftco’s liability shall be limited to damages which under no circumstances shall exceed the Price).
18.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Eftco nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 Eftco may assign, license, sub-contract, or otherwise transfer all or any part of its rights and obligations without the Customer’s consent.
18.6 The Customer agrees that Eftco may amend these terms and conditions at any time. If Eftco makes a change to these terms and conditions, then that change will take effect from the date on which Eftco notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Eftco to provide Goods to the Customer.
18.7 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.
18.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
19. Terms Applicable to the Hire of Goods Only
19.1 Eftco retains property in the Goods nonetheless all risk for the Goods passes to the Customer on delivery.
19.2 The Customer accepts full responsibility for the safekeeping of the Goods and indemnifies Eftco 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 Customer.
19.3 The Customer will insure, or self insure, Eftco’s interest in the Goods against physical loss or damage including, but not limited to, the perils of accident, fire, theft, burglary, liquid damage, flood, negligence, abuse, pest infestation, customer error, computer malfunctions, power fluctuations, phone line faults and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Goods. Further the Customer will not use the Goods nor permit it to be used in such a manner as would permit an insurer to decline any claim.
19.4 Hire charges shall commence from the time specified in the agreement between Eftco and the Customer and will continue until the return of the Goods to Eftco’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs. In the event that the Goods are not returned to Eftco’s premises at the expiration of the Minimum Hire Period, the Customer shall be responsible for additional hire charges until such time as the Goods are returned to Eftco.
19.5 Subject to the expiry of the Minimum Hire Period, the Customer must advise Eftco in writing, giving at least thirty (30) days prior notice of intention, to terminate this agreement. If the Customer wishes to terminate the agreement prior to the expiry of the Minimum Hire Period, the Customer must pay to Eftco the remaining hire charges which would otherwise have been payable to Eftco during the Minimum Hire Period. Eftco may terminate this agreement at any time without giving the Customer written notice.
19.6 No allowance whatsoever can be made for time during which the Goods are not in use for any reason. In the event of Goods breakdown hiring charges will still be payable during the time the Goods are not working and Eftco will not be held liable for any financial loss incurred due to any Goods breakdown.
19.7 The Customer shall:
(a) notify Eftco immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Customer is not absolved from the requirements to safeguard the Goods by giving such notification;
(b) not tamper or attempt to carry out any repairs on the Goods;
(c) return (in the courier package provided by Eftco) any faulty Goods within seven (7) days, or a charge will apply equivalent to the value of the Goods;
(d) satisfy itself at commencement that the Goods are suitable for its purposes;
(e) operate the Goods safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Eftco or posted on the Goods;
(f) on termination of the hire, deliver the Goods complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Eftco;
(g) keep the Goods in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Goods;
(h) not remove the Goods from the business premises without the prior written consent from Eftco;
(i) not alter 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;
(j) 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;
(k) not fix any of the Goods in such a manner as to make it legally a fixture forming part of any freehold.
19.8 Immediately on request by Eftco the Customer will pay:
(a) the new list price of any Goods, accessories or consumables that are for whatever reason destroyed, written off or not returned to Eftco;
(b) all costs of repairing any damage caused by:
(i) wilful or negligent actions of the Customer or the Customer’s employees;
(ii) vandalism, or (in Eftco’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Goods by the Customer;
(c) the cost of consumables provided by Eftco and used by the Customer;
(d) any costs incurred by Eftco in picking up and returning the Goods to Eftco’s premises if the Customer does not return the Goods to Eftco’s premises or any pre-agreed pickup location when it was originally agreed that the Customer would do so;
(e) any lost hire fees Eftco would have otherwise been entitled to for the Goods, under this, or any other hire agreement;
(f) any insurance excess payable in relation to a claim made by either the Customer or Eftco in relation to any damage caused by, or to, the hire Goods whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or Eftco’s.
19.9 Further to clauses 19.8(a), 19.8(b), and 19.8(f) above, full payment for any loss or damage to hired Goods is the responsibility of the Customer, irrespective of whether or not the Customer’s insurance company has accepted and/or settled the Customer’s insurance claim.
19.10 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 9 apply, and this agreement a security agreement for the purposes of PPSA generally, and in particular Section 36.
20. Terms and Conditions applicable to the Sale of Goods Only
20.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
20.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Eftco is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Eftco is sufficient evidence of Eftco’s rights to receive the insurance proceeds without the need for any person dealing with Eftco to make further enquiries.
20.3 If the Customer requests Eftco to leave Goods outside Eftco’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
20.4 Returned goods may (at Eftco’s sole discretion), incur restocking and handling fees.
20.5 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
20.6 Subject to the conditions of warranty set out in Clause 20.7 Eftco warrants that if any defect in any workmanship of Eftco becomes apparent and is reported to Eftco within twelve (12) months of the date of delivery (time being of the essence) then Eftco will either (at Eftco’s sole discretion) replace or remedy the workmanship.
20.7 The conditions applicable to the warranty given by Clause 20.6 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Eftco; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Eftco shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Eftco’s consent.
(c) in respect of all claims Eftco shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
20.8 For Goods not manufactured by Eftco, the warranty shall be the current warranty provided by the manufacturer of the Goods. Eftco 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.
20.9 In the case of second hand Goods, the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by Eftco as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. Eftco shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
20.10 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.