Konica Minolta's Standard Terms & Conditions
These are the terms and conditions (Terms) and any and all statements of work (“SOW”) on which Konica Minolta Business Solutions Australia Pty Ltd ABN 50 001 065 096 (we, us or our) supplies the person identified as the "Customer" (you and your) on the Customer Order to which these Terms are attached (Order) with the Equipment (including any accessories, spare parts or consumables), Software (including any software supplied under our brand and third party software) and Services (including installation and support services) specified in the Order. Where these Terms refer to information available on our website, that information is available at www.konicaminolta.com.au (the Website).
(a) These Terms any and all SOWs and the Order together comprise the Agreement for the supply of the Products and Services, which becomes binding on both parties when you have signed the Order and continues in effect until all Services have been performed, unless terminated earlier in accordance with its terms. This Agreement solely governs our supply to you of Equipment and Software (Products), any Product user manuals or other documentation provided (Documentation), and Services. Any other terms and conditions issued by you do, including but not limited to purchase order terms do not form part of the contract for our supply of Products and Services and are deemed to be rejected. To the extent of any inconsistency, the documents are to be read in the following order: SOW, the Order, and these Terms.
(b) Attached to this Agreement are terms and conditions (Finance Agreement) which, if entered, govern the financing and rental of the Products to you where you acquire them from us as agent for an undisclosed principal. The Finance Agreement operates as a separate and independent agreement between you and the undisclosed principal (Owner). The Owner is not responsible for any of our obligations under this Agreement.
(c) We enter this Agreement in our capacity as supplier of the Products and/or Services (as applicable). The Owner is not liable for our obligations under this Agreement.
(a) We will use reasonable efforts to deliver the Products on the date specified in the Order and you must be ready to take delivery on that date or on any alternate date as agreed. If we are unable to deliver the Products on the date specified in the Order we will agree a revised delivery date with you. If you use your own carrier to deliver Products then delivery occurs when we make the Products available to your carrier for collection, prior to loading. You will bear all costs, expenses, losses, or liabilities arising from the transportation of such Products. If specified for Software, we will use reasonable efforts to make the Software available for download on the date specified in the Order. Risk in the Products passes to you on delivery.
(b) When you receive our Products, you must check to confirm the number and condition of the Products you received. You must notify us in writing within 5 business days of delivery if there is any damage to the Products or if you did not receive the quantity of Products ordered. You must retain all Product packaging in your possession until you are satisfied with the condition of the Products. You must retain all Documentation.
(c) If we receive notification from you of any damage to the Products in accordance with clause (b) above, we will replace any damaged Products and supply any shortfall in the Products ordered, provided that:
(i) you have notified us within the timeframe specified in (b); and
(ii) you return all damaged Products and the associated packaging and Documentation to us.
(d) Title in the Products passes to you when the total amount payable for the Products under the Order is paid in full. If you are in default in any payments with respect to the Products, then until title passes, we may enter your premises on reasonable written notice to you and repossess the Products. If you rent or lease the Products title will not pass to you at any time during the Term.
(e) If the Order specifies one or more devices for trade into us (Trade-Ins), you irrevocably direct us to pay money due in respect of all Trade-Ins and we will have no obligation to provide any Products until we have full right and title to all Trade-Ins. You warrant and represent that you hold title in all Trade-Ins, and they are free of all encumbrances and will be responsible to us for remedying any defect in title or encumbrance because of any breach of this warranty and representation. You are responsible for deleting any data residing on any Trade-In before delivering it.
(f) Where you have previously leased or rented equipment and you request, we collect that equipment other than as a Trade-In, you must ensure that your lease or rental agreement with your financier has been terminated by you. If we agree to collect and dispose of any such equipment, then we do so on the understanding that you have received approval from your financier to do so and act as your agent in such collection and disposal. We are not liable to you for any claims, damages, losses, expenses or costs you incur that arise from any return or disposal by us, unless due to our negligence or unlawful act or omission.
(g) Unless otherwise specified in the Finance Agreement, the amount payable for Products will be invoiced to you on delivery, excluding Software provided by download only which will be invoiced when made available for download. Where you enter into a Finance Agreement or other financing arrangement, the amount payable for Products will be invoiced either to the Owner pursuant to the terms of the Finance Agreement or, if you obtain financing independently, to you to arrange for payment by your financier to us (or failing such payment, then payment by you directly) on delivery.
(h) These Terms apply in their entirety if you purchase the Products outright from us without financing arrangements. We take no responsibility for and do not guarantee the availability or granting of finance.
(i) If we determine that this Agreement (or a transaction in connection with it) contains or gives rise to a security interest under the Personal Property Securities Act 2009 (Cth), then you agree to do all things reasonably required by us (such as obtaining consents, signing documents, entering into a further agreement in relation to the security interest and supplying information) to ensure the security interest is enforceable, perfected and otherwise effective, to enable us to apply for any registration or give any notification or exercise our rights in connection with the security interest.
(a) If the Order specifies that we will perform Services, then any Service involving Product support and maintenance will be performed for the term specified in the Order (the Term). The Owner is not responsible for the provision of any Services. Unless otherwise agreed with you, after completion of the fixed Term we will continue to provide you with Services monthly until a party notifies the other in writing that they wish to terminate the Agreement, which will take effect:
(i) If we terminate, 30 days after receipt of our notice; or
(ii) If you terminate 7 days after receipt of your notice, whichever is received earlier.
(b) Any support or installation Service will be performed at your specified location and, if applicable, as set out in a SOW.
(c) You must ensure the Equipment and any installation location, your computer systems and network infrastructure (Your Systems) are ready for us to perform the Services, including providing:
(i) us with such access to your premises, Your Systems and the Products and requested assistance.
(ii) a suitable space for Equipment installation and access to electricity and any network to which it must be connected, and to any computers upon which any Software will be installed.
(d) Any Services to be performed outside of normal business hours or outside of metropolitan areas of capital cities will be subject to our then standard additional charges and payment of our reasonable travel expenses, which we will notify you of prior to performing any Services..
(e) If we perform any Services because of:
(i) your failure to comply with clause 3(c); or
(ii) faults in or damage to the Products arising out of your negligence, misuse, unauthorised alteration, environmental factors (including electrical storms), or use with accessories, consumables (including staples) or throughput materials other than those provided or approved by us; or
(iii) problems, errors, loss, or damage arising from any changes to Your Systems so that they no longer reflect any information you provided to us, you must pay to us additional charges at our then current rates for these Services, which we will notify you of prior to performing any Services. Alternatively, may also provide you with a quotation for these Services prior to agreeing to their performance. Unless required by law, it is at our discretion as to whether we perform such Services.
(f) You acknowledge and agree that:
(i) Products may need to be installed on Your Systems for the Equipment to function properly (Interface) and that Interface may collect print usage and other data;
(ii) issues with the compatibility or operation of the Products and Interface with Your Systems may not be rectifiable and that it may not be possible to identify these issues prior to installation;
(iii) Equipment may store private or confidential data which can be electronically accessed and may be lost or corrupted when Equipment is repaired. Unless agreed otherwise, it is your responsibility to back up and erase any data stored on Equipment before removal from your premises.
(g) To the extent permitted by law, we are not liable for any data loss or corruption or unauthorised disclosure of data, except in respect of any such data which we have expressly agreed in writing to back up or erase as part of the Services, and then only to the extent that:
(i) in the case of any loss or corruption of data, the loss or corruption of data could have been rectified if we had backed up the data, but we failed to do so; and
(ii) in the case of any unauthorised disclosure of data, the disclosure occurred because of our failure or erase such data.
(h) If we provide you with a Total Customer Care service, any OneRate service or Annual Charge Multi-Function Device service (as specified on the Order), then we will supply:
(i) labour (preventative maintenance and break down) and spare parts during our normal business hours and within capital cities, except where damage or loss to Products or Services are caused by you or any third party not authorised by us or as set out in clause 3(c). Any Services to be performed outside of normal business hours or outside of metropolitan areas of capital cities will be subject to additional charges and payment of travel expenses which we will notify you of prior to performing any Services; and
(ii) Consumables (being toner, developer, waste toner containers, facsimile drums or imaging units but excluding staples unless you are on a OneRate service and paper), during the fixed Term of this Agreement. We may charge an additional delivery fee for Consumables and spare parts. Use of any staples not approved by us may damage the Equipment. You may purchase approved staples from us at our recommended retail price, or from an authorised Konica Minolta reseller or dealer.
(i) If we provide you with a Customer Care Toner Excluded Service, then we will supply the services set out in clause 3(h) during the fixed Term of this Agreement, excluding toner, staples, and paper. Use of any toner or staples not approved by us may damage the Equipment. You may purchase approved toner and staples from us at our recommended retail price, or from an authorised Konica Minolta reseller or dealer.
(j) Unless indicated in the Order or otherwise agreed in writing, we will not:
(i) relocate the Equipment or the Interface, transport or migrate any data, rectify any lost or corrupted data, correct defects in Your Systems, develop systems or provide application development support;
(ii) except where clause 3(h) or 3(i) applies, supply any Consumables, staples, paper, additional copies of Documentation, or new or enhanced Software. If we agree to supply Consumables then, unless otherwise specified in the Order, they will be supplied at our then current recommended retail price. Consumables are also available from any authorised Konica Minolta reseller or dealer; or
(iii) rectify faults, damage, defects, or failures caused by your personnel or your programming errors, acts of nature, power supplies, attachments, accessories, impact with objects or liquids, unauthorised repairs, or maintenance.
(k) If you relocate the Equipment:
(i) from a location directly serviced by us to a location that is not serviced directly by us; or
(ii) from a location not directly serviced by us to a location that is directly serviced by us, then we may amend the Fees to reflect the change in location so that they align with our standard rates for the new location of the Equipment. We will notify you of these costs when you notify us of the actual or impending relocation of the Equipment.
(l) If the Order specifies that we will not perform Services, then unless the Order states otherwise and subject to clause 8 (d), we provide a 12-month warranty for the Equipment (excluding Third Party Supplies) from the date of delivery against manufacturing defects. The warranty does not cover normal wear and tear or customer or other third-party negligence including failure to property maintain the Equipment. Any servicing of the Equipment by us that is not covered by this warranty, and any servicing after the expiry of the warranty, will be subject to our standard call out costs (including any costs set out in clause 3(d)) and charged at our then current rates for these services (including provision of spare parts), which we will notify you of prior to performing. Alternatively, we may also provide you with a quotation for these services prior to agreeing to their performance.
(a) You must pay us the fees for Equipment, Software and Services (as applicable) specified in the Order (Fees). Where the Order states that the Fees are charged on:
(i) a print volume basis, the Fees are calculated on a copy cost per page (based on A4 equivalent pages, with A3 prints counting as two (2) A4 pages unless otherwise set out in the Order) as set out in the Order for both colour and black and white prints. If print volume data is not collected automatically for each printer in the Order by the Interface, then you must provide that data to us when required. If you do not, then until such times as you provide us with this information, we will determine print volumes based on your previous print volume data or if you have never provided us with print volume data for a printer listed in your Order then the average of print volume across printer(s) in your Order for which you have supplied print volume data, and you must pay any invoice based on that calculation. Once you have provided us with the correct print volume data, we will reconcile the Fees and where there is a shortfall, we may include that shortfall in our next invoice and where there is an overage, we will credit the overage on the next invoice;
(ii) a fixed charge basis, the amount set out in the Order (including where there is any qualification on that fixed charge).
(iii) a time and materials basis, we will charge you our then standard rates and charges which we will notify you of prior to performing any Services.
(b) You agree that the Consumables will not be used in any devices other than the Equipment and that you will not on-sell or give away any Consumables. If, in our reasonable opinion, the quantity of Consumables you ordered for the Equipment exceeds the quantity normally used in that piece of Equipment over a quarterly period and you are not able to provide a reasonable justification to explain that excessive usage, you agree that we may charge for the additional Consumables at our then current recommended retail price (plus any delivery fee), or you may purchase additional Consumables and staples from a Konica Minolta authorised reseller or dealer.
(c) If you elect not to install our device monitoring software on Your System, a monthly per device administration fee will be added to your Fees. We will notify you of this Fee at the time you elect not to install our device monitoring software.
(d) If you are a OneRate customer, then the Fees have been calculated on your anticipated monthly usage of the Equipment, which is based on the average usage of the Equipment by our customers, as set out in our rate card available on our Website. We may adjust this rate cards annually, with any adjustments being listed on our Website. If, in our reasonable opinion, the number of impressions exceeds the average impressions for the Equipment, then we may increase the Fees no more than once annually to reflect the increased usage of the Equipment.
(e) If you are not a OneRate customer, then unless otherwise agreed with you we may increase the Fees no more than once annually to reflect increases in our cost of supplying Services, such increases to be capped in accordance with the percentage specified in our rate card available on our Website. We may adjust this cap annually, with any adjustments being listed on our Website.
(f) We may suspend the supply of Products or the performance of any Services without penalty if you fail to pay any amount due to us under this Agreement when due and fail to pay within 14 days of a demand, and this suspension will continue until such time as we notify you that we have received payment of all outstanding amounts from you in full.
(g) All amounts payable under this Agreement must be paid within 30 days of the invoice date or as notified in writing. We may charge interest on any unpaid amount overdue by more than 14 days at the rate of 5% per annum above the indicator lending rate for business overdrafts specified by Westpac Banking Corporation or a comparable rate nominated by us.
All amounts are exclusive of GST unless stated otherwise. We will issue a tax invoice in respect of amounts due and you must pay all GST payable in respect of any taxable supplies made to you in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all associated regulations.
6. Intellectual property
(a) If any Software supplied is "Konica Minolta" branded, then subject to you paying for such Software, we grant you a perpetual, non-exclusive, non-transferable licence to use that Software and associated Documentation in connection with your use of the Equipment and our provision of the Services.
(b) You obtain no intellectual property rights in any Products except as expressly granted under this Agreement. You must not do, omit to do, or allow anyone to do anything which infringes our intellectual property rights, including make copies of any Documentation and except as expressly permitted by non-excludable laws, copy, modify, tamper with, decompile, reverse engineer, or attempt to reverse engineer, the Software, use the Software to develop other software, permit the Software to be combined with other software or use the Software to supply hosting or bureau services.
7. Third Party Supplies
(a) To the extent permitted by law:
(i) we do not support or accept any responsibility in relation to any Equipment or Software supplied which was manufactured by a third party (Third Party Supplies). Any Software or Hardware that is a Third-Party Supply is licensed to you directly by the licensor and is governed by their end user licence agreement and we are not liable to you for any defects in that Software or Hardware; and
(ii) we give no warranty in respect of Equipment that is a Third-Party Supply (Third Party Equipment) except as set out expressly in this Agreement.
(b) Any warranty provided under, and any warranty period referred to in, the Third-Party Equipment manufacturer's documentation refers to the manufacturer's warranty, not a warranty provided by us. Where we are able, we will pass any warranty given by that manufacturer on to you to the extent required for you to receive the benefit of such a warranty. However, we are not the Third-Party Equipment manufacturer's agent and any obligations we have as supplier of the Third-Party Equipment to remedy any failure to comply with an applicable consumer guarantee are limited as set out in clause 8(d).
(a) Subject to clause 8(d), any representation, warranty, condition, guarantee, indemnity or undertaking that would be implied in, or affect, this Agreement by legislation, common law, tort, equity, or by course of performance, dealing, trade, custom or usage is excluded to the maximum extent permitted by law.
(b) Subject to clause 8(d) and to the maximum extent permitted by law, the maximum aggregate liability of a party for all losses, damages, expenses and claims (Claims) arising out of, or in connection with this Agreement or the supply of any Products or Services (including the supply of spare parts or consumables in the course of supplying those Services), whether arising in or under contract, statute, tort (including for our negligence), equity or otherwise at law, is limited to the total amount paid by you in respect of the Order at the time the Claim arises or the value of the Product which is the subject of the relevant Claim, whichever is the greater. This liability cap does not apply to a party’s gross negligence (being an act or omission done with reckless disregard, whether consciously or not, for the consequences of the act or omission) or any willful, illegal, or fraudulent act or omission.
(c) To the maximum extent permitted by law, under no circumstances whatsoever will either party be liable in respect of any indirect or consequential loss or damage or for any loss of profit or loss of opportunity or loss or corruption of data (except to the extent we are liable under clause 3(g)), irrespective of whether a party previously notified the other of the possibility of such loss or damage.
(d) Nothing in this Agreement excludes, restricts, or modifies any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted, or modified by agreement. To the fullest extent permitted by law, our liability for a breach of a non- excludable guarantee referred to above is limited, at our option, to: (a) in the case of goods, any one or more of the following: (is) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or (b) in the case of services: (a) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
Either party may immediately terminate this Agreement by written notice if the other party:
(a) becomes insolvent or enters liquidation, receivership or other insolvency administration or makes a composition or arrangement with its creditors generally or takes advantage of any statute for the relief of insolvent debtors;
(b) a party breaches any laws or governmental regulations; or
(c) other than with respect to a service level breach (the resolution of which shall be set out in the SOW), breaches this Agreement and the breach is incapable of remedy, or otherwise fails to remedy within 14 days of receiving notice requiring it to do so.
If you satisfy all payment obligations in the Finance Agreement prior to the expiry of the term of the Finance Agreement and return the Equipment to the Owner, then you may terminate this Agreement upon the payment of the lesser of (i) three (3) months Fees (being an amount equal to the monthly average of the Fees paid by you over the previous six (6) months multiplied by three (3) or, if this Agreement commenced less than six (6) months prior to the satisfaction of all amounts due under the Finance Agreement by you, then an amount equal to three (3) times the Fees paid by you in the month preceding satisfaction of the Rental Agreement); and (ii) if there are less than three (3) months remaining on the fixed Term, then the equivalent of the Fees due up to the date of expiry of the Fixed Term (again determined by the monthly average of Fees paid by you over the previous six (6) months).
(c) You (if you are an individual) and your representatives have the right to access, and request correction of, any of your personal information held by us.
(a) This Agreement is the entire agreement between the parties in relation to its subject matter. This Agreement cannot be varied except by written agreement between the parties executed by an authorised officer of ours and an authorised representative of you. You must not assign this Agreement or any of its rights or obligations thereunder without our prior written consent, which we will not unreasonably withhold.
(b) This Agreement and any SOW may be executed and delivered by facsimile or other electronic signature (including portable document format) by either of the parties and the receiving party may rely on the receipt of such document so executed and delivered electronically or by facsimile as if the original had been received.
(c) This Agreement will be governed by, and construed in accordance with, the laws of the State of New South Wales, and the parties submit to the exclusive jurisdiction of the courts of that State.
(d) Clause 8 and any other clauses which by their nature survive expiry or termination of this Agreement will survive expiry or termination of this Agreement.