While all the terms and conditions in our agreements are important (and we recommend you read them all), If you are a consumer, before entering into an agreement for supply of goods or services, we draw your particular attention to some key terms. They aim to help you understand the key terms and are not a substitute for, and do not form part of, your agreement is CBS or its related body corporates. When you sign an agreement with us, you will be acknowledging that you understand the substance and effect and want to proceed.
Unless otherwise agreed in writing by the parties, all products (including hardware and software) and services supplied by Canon Business Services Australia Pty Ltd (CBS) to the Customer are subject to these Terms and Conditions of Supply (Terms).
a) All orders and requests for products or services must be in writing.
b) Any quotation provided by CBS is given without any obligation. A binding obligation on CBS to deliver products and services only arises when CBS accepts the Customer’s order for those products or services in writing.
c) Subject to Australian Consumer Law, CBS will not accept cancellation of accepted orders or return of products for credit or exchange unless its authorised officer agrees in writing.
d) Each order is as a separate binding agreement between CBS and the Customer and these Terms apply to it.
a) The Customer must pay the full amount invoiced by CBS. Unless otherwise agreed before delivery, services are charged at CBS’s time and materials rate current at the time of order.
b) The Customer must pay all invoices within 30 days of invoice date.
c) If products or services are supplied in instalments, each instalment is deemed the subject of a separate agreement on these Terms.
d) If payment is not made when due, CBS may, at its discretion:
i) discontinue future supply of products;
ii) suspend the supply of services;
iii) charge interest on the unpaid amount at the rate of 5% above the current 90 day BBSW Rate per annum calculated daily, available at www2.asx.com.au/connectivity-and-data/information-services/benchmarks/benchmark-data/bbsw; and
iv) (where applicable) withdraw any credit.
e) The Customer must not set-off any sums payable against any claims it may have against CBS under these Terms or otherwise.
f) Without prejudice to its other rights and remedies, CBS has the right, at its discretion, to refuse an order, continue or suspend supply if the Customer:
i) becomes insolvent;
ii) (where applicable) exceeds any credit limit specified by CBS; or
iii) is otherwise in breach of these Terms.
g) (For Microsoft funded work only) For projects eligible for Microsoft funding support, Customer authorises CBS to invoice Microsoft direct at the agreed milestones. Customer agrees Microsoft funding is strictly for the scope of work and milestones as agree with Microsoft in the funding agreement. Customer further agrees to comply with any vendor terms and conditions prescribed by Microsoft from time to time. Customer remains liable for any costs in connection with services that are outside the agreed funding scope and milestones.
a) All prices quoted by CBS are exclusive of GST and all other applicable taxes, duties and levies, unless stated otherwise.
b) If any supply under this Agreement:
i) is a taxable supply (as defined in the GST Act), the party making the supply may, in addition to any payment for the supply, recover the amount of the GST applicable to the supply. Any amount of GST payable for a supply is payable at the same time as the payment for the supply to which it relates; and
ii) attracts any other tax, duty or levy that starts after the date of these Terms and CBS is required to pay such tax, duty or levy, the parties will negotiate in good faith to agree an outcome that does not result in a reduction of the Price as a result of the tax, duty or levy, except to the extent required by law.
a) To maintain CBS’s service level to and reduce delays and costs, Customer agrees to provide all assistance reasonably requested in a timely manner and with reasonable care, including disclosing all information relevant to the work, clear instructions on Customer’s objectives and the commercial context in which it has requested our services and any business or operational decisions required by Customer. If objectives change during the course of the project or services, Customer must advise CBS in writing. Any changes to scope or services may incur additional fees.
b) Unless otherwise agreed in writing, Customer will be responsible for the purchase of all software and hardware required for CBS to perform the services contemplated by these terms and conditions.
a) CBS will not be responsible for any delay or missed milestones where such delay or default is caused or attributable to acts or omissions by Customer or its representatives or third party suppliers, including:
i) delay in providing reasonable assistance and instructions upon request;
ii) frequent or material variation to scope; or
iii) projects put on hold due to customer business reasons.
b) In the event of such delay, CBS cannot guarantee availability of our resources and reserve the right to reallocate or remove resources from the project.
c) Delays may result in additional fees and disbursements including overtime rates, travel costs or resource re-engagement fees.
d) Where an act or omission by Customer results in delays exceeding 6 weeks or more, CBS reserves the right to terminate the services with notice and charge for all work carried out up to the date of termination.
a) Each party must comply with the Privacy Act 1988 (Cth) (the Act) and must not do any act or thing that causes either party to be in breach of that law.
b) Unless otherwise agreed in writing, Customer consents Personal Information (as defined in the Act) may be shared or accessed by our Related Body Corporates located in New Zealand or Philippines. Access will be limited to those with a need to know for the purpose of providing or facilitating our services.
c) Our Privacy Policy can be found at https://business.canon.com.au/privacy
a) Nothing in these terms and conditions obliges CBS to maintain or support the services or deliverables upon delivery, whether by providing upgrades, enhancements, consulting services or otherwise.
b) If Customer requires any managed services or ongoing support, the parties will negotiate in good faith and enter into a separate service agreement to further define our respective obligations under these terms and conditions.
a) Unless otherwise agreed, acceptance testing of all software must be completed within 10 business days of delivery or installation, after which acceptance is deemed.
b) Acceptance testing must be against acceptance criteria as agreed between the parties prior to testing. Customer agrees to provide CBS with reasonable opportunity to remedy any defects identified during the acceptance testing. Customer cannot fail the software or application without first providing CBS the opportunity to correct any defects in a timely manner.
a) CBS provides no warranty for any products or services supplied, apart from written warranties provided by the original manufacturer or vendor of products, including software. To the maximum extent permitted by law, CBS expressly disclaims any and all other additional warranties expressed or implied, in relation to fitness for particular purpose, acceptable quality or otherwise.
b) Any liability CBS may have for any failure to comply with a consumer guarantee imposed by the Australian Consumer Law or any condition or warranty implied into an agreement by legislation that cannot be excluded is not excluded, but to the extent the law permits is limited to (at CBS’s option):
i) in the case of the Products, any one or more of:
(1) replacing the Products or supplying equivalent Products;
(2) repairing the Products;
(3) paying the cost of replacing the Products or of acquiring equivalent Products;
(4) paying the cost of repairing the Products; or
ii) in the case of the Services:
(1) re-supplying the Services;
(2) paying the cost of re-supplying the Services.
c) Any other liability of either party under these terms will be limited to the total amount paid or payable by Customer (or Microsoft in the case of funded projects) under these terms.
d) Neither party is liable for any of the other party’s lost management or other staff time, loss of actual or anticipated profit, revenue, savings, use, production, opportunity, contracts, interest or good will or any consequential, indirect, incidental or special loss or damage or expense, even if it was reasonably foreseeable.
e) The liability of a party will be reduced proportionately to the extent the other party’s act or omission or any failure by the other party to comply with its obligations under these terms causes or contributes, directly or indirectly, to the loss or damage for which the first party is liable.
f) Each party accepts liability without limit for:
i) its fraud or deceit;
ii) death or personal injury caused by its breach or negligence;
ii) death or personal injury caused by its breach or negligence;
iii) its breach of confidentiality, IPR or Privacy; and
iv) any other liability that cannot be excluded or limited by law.
a) CBS retains title in products until all sums owing to CBS are paid.
b) Until title passes to the Customer:
i) the Customer must not authorise or pledge, credit or create any lien, mortgage, charge security interest or encumbrance on the product or proceeds; and
ii) CBS may take possession of the products (after notifying the Customer of its intent to do so) or its proceeds. The Customer must ensure CBS has access to products at all times to exercise its rights.
c) Risk in products passes to the Customer on delivery, which will be effected when the products are released to a third party carrier.
d) In-transit insurance is the responsibility of the Customer. If requested in writing, CBS may arrange in-transit insurance at the Customer’s expense.
e) Unless otherwise state, delivery is to the Customer’s address stated on the order.
f) Any delivery times CBS specifies are only estimates and CBS is not liable for delay in delivery for any reason.
g) If there is a shortage of, or damage to products during delivery, the Customer must notify CBS within 14 days of delivery or the delivery is deemed accepted as complete and undamaged.
h) CBS is not liable for any claim where the damage or loss is due to the Customer’s acts, omissions or negligence, including misuse, inappropriate storage, handling conditions or accident.
i) If the ordered products or services become unavailable, CBS may substitute similar products (of no lesser performance) to those ordered with prior notice.
a) The Customer agrees to grant a security interest in CBS’s favour in respect of any products and its proceeds, and to secure payment to CBS for all amounts payable under these Terms.
b) The Customer must do all things reasonably necessary to enable the perfection, re-perfection, and maintenance of perfection of the security interest the Customer grants CBS, allowing CBS the right to enter premises under Customer control and re-take possession of property.
c) To the extent permitted by law, Customer agrees to waive its rights to receive any notice that is required by any provision of the PPSA, including a notice of a verification statement under section 157 of the PPSA.
d) To the extent permitted by law, Customer agrees for the purposes of sections 115(1) and 115(7) of the PPSA:
i) CBS does not need to comply with sections 95, 123, 125, 130, 132(3)(d) or 132(4); and
ii) Sections 142 and 143 are excluded.
e) If CBS enforces a security interest granted under these Terms, CBS may apply any surplus to any other debt Customer may owe to CBS under any other agreement.
f) The parties agree not to disclose information of the kind described in section 275(1) of the PPSA except in the circumstances required by sections 275(7)(b) to 275(7)(e) of the PPSA. Unless otherwise agreed by CBS, Customer agrees it will only authorise the disclosure of information under section 275(7)(c) or request information under section 275(7)(d).
a) In this clause:
i) Customer Content means the content or data the Customer provides to CBS; and
ii) Customer Environment means the any system, software, network or application belonging or being used by the Customer.
b) The parties agree all Customer Content vests in and remains the Customer’s property. CBS will not obtain any interest in Customer Content and will not access or use it for any purpose except to provide the agreed services.
c) The Customer indemnifies CBS and its officers, employees and agents (Indemnified Parties) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of the Indemnified Parties, arising from any claim or proceedings alleging that the Customer Content or the Customer’s Environment infringes any law.
d) d) Customer will be solely responsible for instituting and operating all necessary back-up procedures to ensure that data integrity can be maintained in the event of loss of data for any reason.
a) In this clause, IPR means all intellectual property rights, whether registered or unregistered including patents, copyright, rights in circuit layouts, designs, trademarks, processes, formulate, technology, systems reports, drawings, specifications, software (including source codes and object codes) discoveries, inventions, improvements, trade secrets, technical data, research data and logos.
b) Ownership of any IPR in any item will not be transferred or assigned from one party to the other merely by virtue of the other party’s use.
c) To the extent CBS is the owner of the IPR in any products or services, CBS grants to the Customer a non-exclusive, royalty-free licence to use the products or services for its own internal purposes.
d) Where products or software contain any items in which IPR are owned by a third party, Customer may be required to enter into a separate end user agreement or third party licence agreement with the vendor.
e) All CBS’s system designs and copies of them are protected by copyright and must not be copied or distributed without CBS’s written permission.
a) In this clause, Confidential Information means information in any form or media relating to a party’s business and operations, including commercial, financial and legal information, customer information, employee records, products, services, pricing, know-how and concepts.
b) Each party agrees to keep confidential all Confidential Information of the other party with at least the same degree of precaution and safeguards it uses to protect its own Confidential Information, but in no case less than reasonable care.
c) A party must immediately on request, return or destroy all the other party’s Confidential Information it possesses or controls, whether in written or electronic form and all copies.
a) Customer may terminate with notice in the event CBS breaches any clause of these terms and fail to remedy the breach within 14 days of written notice or the breach is not capable or remedy.
b) CBS may terminate with notice in the event Customer breaches any clause of these terms, including failure to comply with clauses 2 and 4 above.
c) Either party terminate these terms if:
i) the other party threatens or resolves to cease conducting its business or a substantial part of it;
ii) is in the reasonable opinion of the first party, the other party is insolvent or unable to pay its debts when they are due;
iii) the other party has taken steps to appoint a liquidator, provisional liquidator, receiver, administrator or similar person to all or part of the party’s assets or business;
iv) if the other party is a partnership and the partnership is dissolved or an application is made to court to dissolve it;
v) an application for the winding-up of a party is presented and not withdrawn or dismissed within 21 days or an order is made or resolution is passed for the winding-up of the party; or
vi) an event occurs in relation to a party analogous to anything referred to above or which has a substantially similar effect.
a) If an order, statement or work or these terms are terminated, CBS may cease providing services and Customer must pay for all services delivered up to the date of termination. All other terms of these terms remain in force.
a) Customer acknowledges CBS is committed to ensuring compliance with the Modern Slavery Act 2018 (Cth). Canon Oceania Group’s annual modern slavery statement is available at https://modernslaveryregister.gov.au.
b) Customer will comply with all applicable anti-slavery and human rights related laws including the Modern Slavery Act 2018 (Cth) and take reasonable steps to ensure each of its subcontractors directly involved in the provision of services also comply with such laws.
c) Customer will notify CBS as soon as possible of any confirmed instances of modern slavery and actions taken to remedy the issue.
a) A party’s obligations (other than for payment of fees) are suspended during the continuance of any event not within its reasonable control, including labour dispute, strike, lockout, acts of God, acts of civil military authority, priority, fires, strikes, floods, epidemics, quarantine, restrictions, war, riot, product and component availability, constraints and delays in transportation (Force Majeure Event).
b) If there is a Force Majeure Event, the affected party will notify the other party as soon as reasonably possible.
c) If the Force Majeure Event continues for more than 6 weeks, either party may, by written notice, cancel an order but without prejudice to any rights either party has in respect to any monies owing as at the cancellation date or otherwise due to breach of these Terms.
a) A party may subcontract any of its obligations under these Terms with prior notice.
b) Neither party may novate or otherwise assign any right arising out of these Terms without the prior consent of the other party, unless to a related body corporate, as defined in the Corporations Act 2001, with notice.
c) A party’s failure to enforce any of these Terms will not constitute a waiver of them or affects its right to enforce them.
d) This Agreement is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of its courts.
