Standard Terms and Conditions - Goods and/or Services

  General

These Terms and Conditions (Terms) are incorporated in every Contract for the Supply of Goods and/or Services (Goods) by Imagetec Solutions Australia Pty Ltd ABN 68 074 715 718 (Imagetec) to its Customers.

Whenever a Customer orders or accepts Goods from Imagetec, it enters into a Sales Contract on the following Terms.

All quotations are specifically supplied on the basis that these Terms will apply and may only be varied in writing by Imagetec’s Chief Financial Officer.

These Terms set out the whole of the agreement (Agreement) between Imagetec and the Customer, except for any additional conditions which are implied and which cannot be excluded by law.

The Customer specifically acknowledges that sales representatives of Imagetec are not authorised to vary these Terms. Any other contractual terms (whether submitted with the Customer’s order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply, nor shall they constitute a counter-offer. By receiving delivery of all or a portion of the Goods and/or Services the Customer is deemed to have accepted these Terms and to have agreed that these Terms apply to the exclusion of all others.

No provision in this document will exclude, restrict or modify any condition, warranty or liability implied in this contract by law if doing so would render that provision void.

Where this Agreement relates to Goods which consist of Equipment, and more than one item of Equipment is listed on the invoice, it has effect as a separate and severable contract for each item of Equipment.

The Customer authorises Imagetec, either before or after formation of this Agreement, to complete any incomplete information and to correct any incorrect information in the invoice, including any installation date, serial number or identification date, pricing information or similar and no error or variation in that information will affect the validity of this Agreement.

If Imagetec arranges finance (Finance) on behalf of the Customer, either through itself or via a third party funder, disclosed or undisclosed or through any other associate or affiliate of Imagetec, then it does so only on behalf of the Customer, and as such does not constitute or infer any ongoing Finance relationship between the Customer and Imagetec, the Customer expressly acknowledges this and also acknowledges that the Financial arrangements concerning equipment are in no way related to any ongoing Service or Supply arrangement that may exist between Imagetec and the Customer and as such any dispute concerning the ongoing supply of Goods can not be extended to include any Financing arrangements. If a Customer ceases to honor its financial commitments to a Financing or Leasing Company or Imagetec on the grounds of any other dispute with Imagetec, then it does so at its own risk and any consequences flowing from such action are the sole responsibility of the Customer and the Customer expressly holds harmless and indemnifies Imagetec against any damages or consequences arising from such action.

1.   Definitions

‘Imagetec’ means Imagetec Solutions Australia Pty Ltd ABN 68 074 715 718 and any related body corporate as defined in the Corporations Law 		  ‘Customer’ means any person, company or business ordering or acquiring Goods and/or Services under these Terms & Conditions
‘Applicant’ means a person, company or business applying for credit terms
‘Delivery’ means the collection of the Goods from Imagetec’s premises by the Customer
‘Goods’ means Goods &/or Services supplied or to be supplied by Imagetec
‘Indent Order’ means an order placed by the Customer with Imagetec in which Imagetec must purchase Goods from a third party and not supply Imagetec’s Standard Goods or Services.
‘Return of Material Authorisation’ means a notice issued by Imagetec authorising the return of specified Goods by the Customer to Imagetec.
‘Sales Contract’ means these terms and conditions and any invoice or quotation relating to the sale of Goods and or Services to the Customer.
‘Contract for supply of Goods and/ or Services’ means a Sales Contract, a Service Agreement or any other Agreement between the Customer and Imagetec.
‘Services’ means Services performed or to be performed by Imagetec or any authorised agent of Imagetec.
‘Standard Goods’ means Goods usually stocked by Imagetec and does not include Goods purchased or supplied at the specific request of the Customer or have been modified or customised in any way in accordance with the Customer’s own specification or requirements.
‘Terms’ mean the Terms and Conditions of any Agreement between the Customer and Imagetec.
‘Service Period’ means the period set out in the Sales Contract as agreed by the parties for the Service Agreement to exist on eth proviso the Customer meets it obligations under these Terms
‘Agreement’ means all current Sales Contracts and Service Agreements.
‘Equipment’ means all hardware including, computers, printers, copiers, MFP’s, MFD’s and all associated peripherals, accessories and operating software
‘Finance’ means any financial mechanism used to purchase and pay for Goods and includes all types of lending, finance, hire purchase, commercial overdraft or lending, and credit provision.
‘Lease’ means any type of financial lease including, rental, operating, or finance lease.
‘Price’ means the quoted price that appears on a quotation from Imagetec. If no quotation is provided the Price will be as per Imagetec’s List Price. Unless otherwise expressly agreed to in writing by Imagetec, the Price is valid for either the date appearing on the quotation from Imagetec or if no quotation the date of the transaction. Unless otherwise expressly agreed to in writing by Imagetec the Price of the Goods and Services supplied by Imagetec will be Imagetec’s list price for the Goods and Services at the time the goods are delivered, and or Services performed, less any prior agreed and documented discounts.

2.   Price

All prices are based on the full quantities specified in the Customer’s order and do not necessarily operate pro rata for any greater or lesser quantities.

All prices may be varied by Imagetec without notice.

Prices quoted are current at the date of issue and based on rates of freight, insurance, customs duties, exchange rates, shipping expenses, sorting and stacking, cartage, wages, cost of materials and other charges affecting the cost of production. If the Goods have not been delivered and/or the Services not performed and the cost of any of the items increase then Imagetec may increase the quoted Price to allow for the increased cost to Imagetec. This Term can only be varied by Imagetec and must be in writing. 		 
  Price Discrepancies

If the Customer thinks that an incorrect charge has been made for Goods, the Customer must advise Imagetec within five (5) days of receipt of an invoice. Customers must otherwise submit payment for the whole of the invoice amount together with a written request for credit for the disputed amount within 14 days of the date of the invoice. Imagetec may, in its absolute discretion, refuse to give credit for the disputed amount if the request is not received within 14 days of the date of the invoice, and is not supported by a copy of a relevant purchase order.

3.   Delivery & Supply

3.1 Imagetec’s obligation to deliver Goods shall be discharged upon Imagetec making the goods available for pickup at the premises at which the Goods are stored. The Customer must at its cost take delivery of the Goods at such premises.
3.2 Any times quoted for delivery are estimates only and Imagetec will not be liable for delay in delivery. Any delay in delivery will not relieve the Customer of the obligation to accept and pay for Goods. Imagetec reserves the right to stop supply at any time if the Customer fails to comply with the Terms.
3.3 Imagetec may (but shall not be bound to) arrange for the carriage of the Goods to the Customer at the Customer’s cost (such cost to include, but not limited to, all freight, delivery and insurance charges) and the customer agrees to accept such cost.
Any unusual delivery charges incurred in complying with the Customer’s instructions will be paid for by the Customer in addition to the Price.
3.4 Notification of any incomplete or deficient shipments must be submitted by the Customer to Imagetec in writing within five (5) days of any delivery. Otherwise, the Customer is deemed to have accepted the delivery and to have affirmed that the Goods delivered is complete and in satisfactory condition.

4.   Equipment Installation

If any Goods require installation, and an installation fee has been specifically incorporated into the price, then it is the Customer’s responsibility to arrange a suitable time for installation. Imagetec will not be responsible for any delays in installation caused by the Customers unavailability or failure to arrange. Any delays or failure to install the equipment do not constitute a breach of contract and as such Imagetec’s only liability is to ensure installation takes place or refund the installation fee. The Customer’s liability for payment of the Equipment commences upon delivery only.
At the time of installation, Imagetec will train a nominated person or persons in the operation of the Equipment. It is the Customer’s responsibility to ensure that personnel are available for training at the time of installation. The Customer expressly acknowledges that any training conducted outside of the time of installation, or any subsequent training conducted with new personnel is not covered by the installation fee and as such Imagetec are entitled to charge for training at its then current rate.

4.1 Prior to installation the Customer shall ensure that the premises including the installation area, electrical outlets and access ways are suitable for the delivery and installation of the Equipment.
4.2 This Agreement covers the installation of stand-alone Equipment only. It specifically excludes installation of the Equipment in conjunction with any computer interfaces, computer software or Rip devices. If any such installation is requested by the Customer and Imagetec performs the installation, then the Customer acknowledges that such installation will be done at the sole risk of the Customer and the Customer indemnifies Imagetec against any loss or damage arising from such installation.
 
4.3 The Customer acknowledges that the specific location and environment of the Equipment will affect the performance and the maintenance needs of the Equipment, and acknowledges that the Equipment may be sensitive to movement, impact, variations in temperature and other external factors. Imagetec may make recommendations to the Customer at the time of installation of the Equipment (or later) about the specific location and environment of the Equipment, and the Customer must observe those recommendations.
4.4 It is the Customer’s sole responsibility to ensure the environment is suitable for the Equipment. Imagetec will not be responsible for any Equipment failure due to any unsatisfactory environmental factors and as such the Customer indemnifies Imagetec against all claims of this nature.


5.   Credit

A Customers Application to open a credit account must be submitted on an approved Company Credit Application form. Information disclosed by the Customer on this form must be accurate. The Customer must immediately notify Imagetec of any subsequent material change to the details. Imagetec may refuse at its absolute discretion or may allow credit on Terms that Imagetec considers appropriate. Payment of credit accounts must be received strictly within 14 days after the date of the invoice unless otherwise expressly agreed in writing by Imagetec. If the customer is in default of these payment terms Imagetec may take the following action against the Customer:

a) Withhold supply and dispose of Goods to be supplied to the Customer
b) Institute legal action for recovery of outstanding amounts
c) Terminate credit facilities and cancel any sales contracts
d) Charge interest at a rate one percent above the rate set by the CBC Banking Group, on overdraft over one hundred thousand dollars ($100,000) compounding daily
e) Take other steps available to it under Imagetec’s Terms or otherwise refuse to perform any service.


6.   Cash Sale Account Customers

Any goods or services ordered by a Cash Sale Account Customers cannot be delivered until confirmation has been received that payment has been received in advance in cleared and immediately available funds to a nominated Imagetec Bank Account.

7.   Payment for Equipment

7.1 All Equipment sales are made on a cash sale basis only as such and payment is due on delivery of the Equipment.
7.2 If the Equipment is to be Financed, the Customer is responsible for ensuring that all relevant information is promptly and accurately provided to the relevant Financier to ensure that the Financier is able to promptly make full payment to Imagetec of any financed proportion of the price. In completing the Finance Details, the Customer acknowledges that they have made their own enquiries about, and assessment of, the availability of finance to them, and the Customer’s obligations under this Agreement are not subject to the availability of finance.
 
  8.   Trade-In

Any trade-in value shown on the invoice is conditional upon the Customer completing the purchase of the Equipment, without any breach of these Terms by the Customer. The Customer warrants that it is the beneficial owner of any equipment offered for trade-in (“trade-in equipment”), that any trade-in equipment is free of all encumbrances, and that the Customer has accurately advised Imagetec of the usage, maintenance history, and current condition of trade-in equipment.

9.   Payment Terms – All Payments

9.1 Each price and amount stated in the invoice and these Terms is exclusive of GST. The Customer must pay Imagetec each such amount plus any GST which Imagetec is required to remit.
9.2 The Customer must promptly pay each amount owing to Imagetec as stipulated by these Terms.
9.3 Regardless of whether the Customer
a) asserts that it is owed money by Imagetec;
b) asserts that it has a claim against Imagetec; or
c) claims that there is any other basis for delaying or withholding a payment to Imagetec;
all payments to Imagetec must be made in full, without delay, without any deductions from or setoffs against the payment to Imagetec.
9.4 If the Customer fails to comply with any of these payment terms then Imagetec:
a) may charge interest at a rate of one percent above the rate set by the CBC Banking Group, on overdraft over one hundred thousand dollars ($100,000) compounding daily on any amount outstanding; and
b) may charge the Customer for all of its expenses incurred in connection with the recovery from the Customer of any amount outstanding, including enforcement expenses, debt collection commission, and legal costs on a full indemnity basis.
c) The Customer also indemnifies Imagetec against any loss, damage or claims which Imagetec may suffer, including consequential loss and damage, as a direct or indirect result of the Customer’s failure to comply with any part of these Terms.


10.   Property, Risk & Title

With the exception of Equipment under an operating lease, until full payment has been made for all Goods, and of any other sums in any way outstanding from the Customer to Imagetec from time to time:
10.1 The property in the Goods does not pass to the Customer and the Customer holds the Goods as bailee for Imagetec (and must return the same to Imagetec on request). The Goods shall nevertheless be at the risk of the Customer from the time of delivery and the Customer must insure the Goods for its full replacement value prior to the time of such delivery; and
 
10.2 Imagetec (acting personally or by its nominated agent) is irrevocably authorised to enter any premises where the Goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods; and
10.3 Imagetec has a lien on all property of the Customer in its possession or control and, after giving 14 days notification to the Customer, may sell or otherwise dispose of such property and apply the proceeds towards satisfaction of the sums owing to Imagetec and refund any surplus to the Customer; and
10.4 If an item of Goods is sold by the Customer to a third party, or if proceeds of an insurance claim in relation to Goods are received by the Customer, then all proceeds of the sale or claim must be held by the Customer in trust for Imagetec; and
10.5 The Customer indemnifies Imagetec and each related body corporate (as defined in the Corporations Act) of Imagetec against any expense, loss or damage that may result from recovering the Goods; and
10.6 Notwithstanding any other provisions of these Terms, or any indulgence granted to the Customer by Imagetec, all sums outstanding become immediately due and payable by the Customer to Imagetec if the Customer makes default in paying any other sums due to Imagetec, becomes bankrupt, commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court, or has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed.
10.7 All equipment under an operating lease must be returned to the Financier at the conclusion of the lease.


11.   Order Responsibility

The Customer bears all responsibility for all orders placed and in particular the goods ordered are fit for purpose and will be able to perform the tasks required by the Customer. Imagetec is not liable for any consequential loss arising from product or technical advice given prior to an order being placed. The Customer undertakes to pay for all goods supplied.

12.   Order Cancellation

The Customer may cancel a sales order in whole or part before delivery or performance only with the prior written approval of Imagetec provided the Customer pays a cancellation fee of 20% of the value of the sales order. A minimum fee of $250.00 must be paid by the Customer. The fee becomes immediately due and payable on cancellation.

Imagetec is under no obligation to approve the cancellation of any sales order and it is Imagetec’s sole discretion whether to do so or not

Imagetec may not approve the cancellation or alteration of Indent Orders or other orders to be supplied by Imagetec involving Goods, which are not Standard Goods.

No cancellation or partial cancellation of an order, nor any return of Goods by the Customer will be accepted by Imagetec unless it has first consented in writing to such cancellation or return. Imagetec may elect to render a cancellation or return charge which will indemnify Imagetec against any loss suffered by Imagetec, including without limitation freight charges, damage caused in the process of shipment (if returned), a restocking fee, and loss of profit as determined by Imagetec which shall be considered as a genuine pre-estimate of any liquidated damages. Any such cancellation or return charge is due for payment immediately upon demand by Imagetec to the Customer. 		 
  13.   Return of Goods

The Customer may only return the Goods to Imagetec for a credit on the following conditions

13.1 The Goods are Standard Goods and were not supplied in accordance with an Indent Order;
13.2 The Customer has requested and has obtained a Return of Goods Authorisation from Imagetec for the Goods;
13.3 The Return of Goods Authorisation number accompanies the Goods and the goods correspond with those advised by the Customer when obtaining the Return of Goods Authorisation;
13.4 The Customer complies with the reasonable conditions specified by Imagetec in the Return of Goods Authorisation;
13.5 The Goods are returned within 14 days of their delivery;
13.6 The Goods are returned at the Customers expense with all necessary freight and insurance prepaid: unless shipment occurred due to Imagetec’s fault;
13.7 The Goods are returned in the same condition as when delivered;
13.8 The Customers pays Imagetec a restocking fee of 12.5% of the invoiced value of the Goods;
13.9 Imagetec is entitled to deduct part or its entire fee from the credit given to the Customer.
13.10 Where the Goods returned and are not in the same condition as when delivered, Imagetec in its sole discretion, may refuse to credit the Goods;


14.   Default

Imagetec may by written notice and without prejudice to any of its accrued rights cancel any or all Sales Contracts with the Customer if one or more of the following events occur:

14.1 The Customer defaults in making any payment under a Sales Contract or fails to carry out any provision of any Sales Contract and the customer does not remedy that failure (where the failure is capable of remedy) within 7 days after written notice to the Customer requesting it to do so.
14.2 Execution or other process of a court or authority is levied for an amount exceeding $10,000.00 on any of the Customer’s property and is not satisfied, set aside or withdrawn within 7 days of its issue.
14.3 An order for payment is made or judgment for an amount exceeding $10,000.00 is entered or signed against the Customer, and is not satisfied within 7 days.
14.4 The Customer convenes a meeting of its creditors, and proposes or enters into a scheme of arrangement (except for the purposes of reconstruction or amalgamation) or a composition with any of its creditors.
14.5 An application to or order by a court to wind up the Customer or a resolution is passed to wind up the Customer, or a notice of intention to propose a resolution to wind up the Customer is given.
14.6 A receiver or a receiver and manager, or other controller as defined in Section 9 of the Corporations Law is appointed in respect of the Customer or the whole or any part of its undertakings property or assets or any steps are taken for the appointment of such person.
14.7 The Customer is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Law or suspends payments of its debts.
14.8 The Customer completes an act of bankruptcy or takes advantage of the provisions of Part X of the Bankruptcy Act 1966.
14.9 An Administrator of the Customer is appointed under Part 5.3 of the Corporations Law.
  15.   Service Agreement

An essential element of all Sales Contracts is the Service Agreement. Notated on your Sales Contract are the specific and customised details of your Service Agreement. The following Service Agreement Terms are implicit and essential in your Service Agreement.

15.1 Imagetec will install the Equipment, provide initial training to the Customers personnel in the operation of the machine, and provide all standard cleaning, lubrication, adjustments and spare parts, (excluding toner, staples, paper, glass parts and covers) necessary to maintain the Equipment covered by the Sales Contract in good working order for the term (Service Period) of the Service Agreement, providing the Customer is not in breach of any of the Terms of the Service Agreement.
15.2 The Customer agrees to engage Imagetec exclusively to provide the Services for the Service Period on the Terms set out in this Agreement
15.3 Imagetec will provide the Services during its normal business hours (currently 8.30am to 5.00pm from Monday to Friday, excluding statutory holidays), within the metropolitan area (as determined by Imagetec’s policy) in which the relevant Imagetec office is located. Imagetec may decline to provide Services outside those hours or outside that area. If Imagetec does provide Services outside those hours or outside that area, then it may charge extra amounts (as determined by Imagetec) to the Customer for that service, and may charge for travel time.
15.4 Imagetec will use its best endeavors to achieve service response times which are as prompt as possible, and in line with its significant competitors.
15.5 Imagetec shall be entitled, without notice, to immediately terminate the Services or alternatively restrict or suspend Services and/or supplies if:
a. The Customer is in breach of any term of this Agreement (including any terms of payment); or
b. The Equipment is sold or transferred to another party; or
c. The Equipment is relocated to an area where Imagetec does not provide Services; or
d. Imagetec is of the opinion that the Equipment has been subject to misuse or other adverse events as set out in clause 11.10; or
e. The Customer becomes subject to an arrangement, compromise, winding up, dissolution, official management, appointment of administrator, assignment for the benefit of a creditor, scheme of arrangement with creditors, insolvency, bankruptcy or a similar procedure, a merger, amalgamation, reconstruction or change in the constitution for the purpose of or having the effect of altering its rights with its creditors.
f. the customer fails to pay for any Services provided or is in breach of any other terms of their payment or Credit conditions.
15.6 Without limiting Imagetec’s rights, the Service Agreement can only be terminated prior to the expiry of the initial term by providing 270 days notice,(hereinafter called “the Termination Period”). If such notice is not provided, the Customer agrees to pay liquidated damages to the Supplier for a sum equivalent to the estimated number of copies that would have been used during the Termination Period, based upon the average monthly usage since the date of installation multiplied by the copy charge current at the time of notification of termination of this Agreement.
 
 
15.7 The Customer covenants that:
a. consumables, excluding through-put materials (e.g. plain paper) shall be supplied by Imagetec for use as per specifications in the operation of the Equipment;
b. Imagetec’s recommendation as regards copy volume and paper quality shall be followed;
c. Imagetec’s personnel only service the Equipment;
d. the Equipment is not subjected to damage caused by the Customer’s carelessness, improper handling and use or damage caused by any external force or maltreatment including from vermin or other pests, and Imagetec reserves the right to terminate or repair the Equipment depending on the extent of damage, such election to be in Imagetec’s sole direction, and Imagetec may recover all expenses associated with either election;
e. the Equipment is not transferred outside the normal service region of Imagetec;
f. Imagetec’s Terms are adhered to at all times;
g. in addition to other charges under this Agreement, the Customer agrees to pay all taxes (including but not limited to GST), charges, duties or other levies which are or become payable in respect of the goods or services supplied under this Agreement.
h. the premises in which the Equipment is located are satisfactory for the operation of the Equipment as recommended by the manufacturer or Imagetec.
15.8 If the Customer breaches any of the terms or conditions of this Agreement, Imagetec is entitled to charge for non-copy cycle prescribed calls, and the replacement of worn or damaged spare parts or consumables arising there from at current services rates and spare parts prices charged by Imagetec.
15.9 Service calls requested for key operator maintenance or training as defined in the Manufacturers Operation Manual for the Equipment are exempt from this Agreement.
15.10 Where a service(s) is not within the scope of this Agreement, then the Customer may in writing, seek an estimate of cost for the service(s) from Imagetec. Where an estimate is not obtained, and Imagetec carries out the additional services(s) then the Customer shall pay to Imagetec, the costs of the additional service(s) as invoiced by Imagetec.
15.11 Imagetec will not be liable for any loss, costs, damages or claims whatsoever arising out of this Agreement or for any acts or omissions of Imagetec, its employees, agents or contractors. The Customer shall indemnify Imagetec against any claims made by third parties arising out of the Agreement or for the acts or omissions of Imagetec, its employees, agents, representatives or contractors.
 
15.12 To the extent permitted under the Trade Practices Act 1974 (Cth), Imagetec excludes all warranties, expressed or implied, other than those warranties expressly contained in this Agreement.
15.13 This Agreement represents the entire Agreement between the parties. There is no oral or collateral representation, arguments, or undertakings of any kind whatsoever in respect of installation and service of the Equipment, including the Services. Any alterations made to these terms and conditions will automatically invalidate this Agreement and the default provisions in Clause 6 shall apply.
15.14 This Agreement covers the stand alone Equipment only.
a. It specifically excludes any computer interfaces, computer software or Rip devices, hard drives, print controllers, facsimile options and any other connectable items
b. Imagetec accepts no responsibility or liability for any 3rd party items purchased or installed independently by the Customer whether connected to the customer or not. Imagetec also accepts no responsibility or liability for the hardware or administration of any network connected to the equipment.
c. Imagetec will attempt to assist the Customer with the use of the Equipment with 3rd party software, however, Imagetec neither makes nor `accepts any guarantee or representation relating to the compatibility issues arising from 3rd party software unless expressly identified in the Sales Contract for which valuable consideration has been included.
d. Imagetec neither makes nor accepts any guarantee or representation relating to compatibility or connectivity issues arising from any other hardware attached to the Equipment.
15.15 Specific Inclusions/Exclusions

a. Plain Paper Facsimiles: This agreement specifically excludes the replacement of consumable items such as Drum Units, Developer Units and Toner Units
b. Computers, Printers, Laser Printers and MFD’s: All Service is quoted as being supplied in Imagetec’s workshop. This agreement specifically excludes service calls relating to software related problems and excludes Developer units, Drum units and Toner except where specifically included.
15.16 Payment of Service Charges

The Customer must pay Imagetec the charge for the services as specified in the invoice (“Service Charges”) within (14) days from the date of invoices.
The Customer acknowledges that Imagetec may vary the Service Charges for the Services without notice after the first 6 months of the Service Period,
 
 
15.17 Customer Maintenance Obligations
The customer must:
 
15.17.1 Advise Imagetec of accurate meter readings from the Equipment when requested. If meter readings are not received then the Customer authorises Imagetec to estimate the meter reading based on past usage (or usage which Imagetec considers typical) and make charges to the Customer based on this estimate, to be revised by Imagetec in the event that an actual meter reading is obtained; and
15.17.2 Use only supplies and materials approved by Imagetec; and
15.17.3 Not assign this Agreement; and
15.17.4 Appoint one Key Operator who will be instructed in the use and routine care of the Equipment by Imagetec, and ensure that the Key Operator performs the tasks required as set out in any Manual supplied by Imagetec, and advises meter readings as required by Imagetec. Imagetec is not obliged to perform any tasks which are required to be performed by the Key Operator. The Customer must advise Imagetec if a different Key Operator is appointed; and
15.17.5 Locate the Equipment in a suitable environment and allow Imagetec reasonable access for maintenance purposes; and
15.17.6 Lodge a service call with Imagetec whenever the Equipment malfunctions; and
15.17.7 Allow Imagetec to remove any supplies or parts fitted or supplied where any Service Charges (relating to the period when these items were fitted or supplied) remain unpaid; and
15.17.8 Where the Services includes the provision of toner, in addition to the Service Charge the Original End User will pay (at the Supplier’s discretion) for toner requested in excess of normal usage (based on 6 % coverage, or otherwise as per manufacturers coverage specification).
15.17.9 Pay the copy charge shown on the invoice (on the basis that the copy charge shown is in respect of an A4 size copy and that the copy charge for larger sizes are twice the amount shown in respect of the A4 size copy); and
15.17.10 Ensure that the Equipment is not subject to misuse or other adverse events such as:

a. misuse, abuse, interference or tampering;
b. relocation of the Equipment, including even minor relocations, by anyone other than Imagetec;
c. failure to maintain a location and environment for the Equipment in accordance with any Manual and in accordance with any recommendations of Imagetec under clause 6.3;
d. overuse (as determined by Imagetec’s policy);
e. repair by anyone other than Imagetec;
f. electrical supply problems, telephone circuit problems, power surges, lightning strikes and so on; and
g. flood, fire, earthquake, or damage arising from any activity or occurrence other than normal daily operation in a manner consistent with the Manual.
 
15.18 Additional Maintenance
 
Imagetec reserves the right to charge the Customer for any additional maintenance that is required due to the Customer’s failure to comply with Clauses 13, 14, and 15.


16.   Customer’s Premises

If Imagetec’s employees or agents work on the Customer’s premises or elsewhere at the Customer’s request in connection with particular Equipment, then the Customer releases Imagetec, its employees and agents from any claims for damage except where the liability incurred is wholly and exclusively due to the negligence of Imagetec’s employee or agents.

17.   Intellectual Property Rights

Confidential Information and Intellectual Property

The designs and specifications of the Goods, maintenance manuals and all documentation associated with the Goods, including sales proposals, quotes, suggested solutions, (together called the “Information”) are confidential and contain the intellectual property of Imagetec. Imagetec licenses the Customer to use the manuals and documentation to the extent necessary to facilitate the operation of the Goods, but otherwise reserves all intellectual property rights in relation to the Information. The Customer will not use, exploit or disclose the Information except for the genuine purpose of facilitating the operation of the Goods.

The Customer warrants that any design, specification or instructions furnished by the Customer to Imagetec will not cause Imagetec to infringe any patent, design, copyright or trade mark in carrying out the Customer’s order.

The Customer indemnifies Imagetec and its employees, directors and agents against any liability, loss or expense, including solicitors’ fees arising out of or concerning a breach of the warranty.

The sale and purchase of Goods does not confer on the Customer any licence or right under any patent, design, copyright or trade mark belonging to or used by Imagetec.

18.   Privacy

The Customer expressly and irrevocably, authorises Imagetec to give information about the Customer’s credit arrangements to (and obtain similar information from) any credit provider or credit reporting agency. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity.

The Customer understands that information which Imagetec collects about it can be used for the purposes of assisting it to avoid defaulting on its credit obligations, notifying other credit providers of a default by it and assessing its credit worthiness from time to time.

Imagetec will make relevant information in its records about the Customer available to the Customer upon written request, to the extent and in the manner required by applicable privacy legislation. 		 
  19.   Notification of Ownership Changes and other matters

The Customer must notify Imagetec in writing within seven (7) days of:-

19.1 Any alteration of the name or ownership of the Customer; and
19.2 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer; and
19.3 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to Imagetec for charges in relation to all supplies to the new owner by Imagetec until notice of any such change is received.
 
In the event that there is a change of ownership Imagetec reserves the right to not supply or provide credit to the new owner. Further, Imagetec may terminate this Agreement immediately by notice in writing.
 
20.   Limitation of Warranties and Liability
 
20.1 No warranties except those which are implied and which cannot be excluded by law are given by Imagetec in respect of the Goods and Services. Imagetec and the Customer agree pursuant to the Sale of Goods Act 1896 (Queensland) s.56 to specifically exclude any warranties or other terms which might be implied into the contract by that Act.
20.2 The Customer assumes responsibility for the suitability or fitness for any particular purpose of the Goods, and acknowledges that any statement or representation as to the suitability or fitness of Goods is a statement of opinion only and that no reliance is placed on it and the Customer must take measures to ensure suitability or fitness.
20.3 It is expressly agreed that any technical advice furnished by Imagetec is, unless furnished pursuant to an express agreement supported by valuable consideration, given gratis and accepted at the Customer’s risk, and Imagetec assumes no obligation or liability for any advice given or results obtained by the Customer.
20.4 To the extent permitted by law, Imagetec’s total liability under this Agreement and in connection with the Goods and Services will not exceed the sum of any amount(s) actually paid by the Customer under this Agreement.
20.5 If by law Imagetec’s total liability cannot be limited as set out in clause20.4 then, to the extent permitted by law, Imagetec’s total liability under this Agreement and in connection with the Goods and Services is limited at its option to:

a) in respect of the Goods such as consumables:
  i) the replacement of the consumables or the supply of equivalent goods;
  ii) the repair of the Goods;
  iii) the payment of the cost of replacing the Goods; or
  iv) the payment of the cost of having the Goods repaired (as determined by Imagetec); and


b) in respect of any services provided under this Agreement:
  i) the provision of the services again; or
  ii) the payment of the cost of having the services supplied again (as determined by Imagetec).
 
20.6 Notwithstanding anything in this Agreement, Imagetec will never be liable for any loss of profits, economic losses or any other consequential losses whether direct or indirect whatsoever arising out of or in connection with this Agreement in respect of the Goods.
20.7 If Imagetec is prevented from carrying out any of its obligations under this Agreement as a result of any cause beyond its control, then it will be relieved of its obligations and liabilities incurred under this Agreement in so far as and for as long as the performance of such obligation is prevented or impeded.


21.   Failure to Act

Imagetec’s failure to enforce or insist upon the timely performance of any term, condition, covenant or provision herein, or Imagetec’s failure to exercise any right or remedy available under these Terms or at law, or Imagetec’s failure to insist upon timely payment of monies when due or to demand the payment of any charges or fees which accrue herein, or any extension of credit or forbearance does not constitute a waiver of any default nor a waiver of Imagetec’s right to demand both timely performance of future obligations and strict compliance with these Terms.

22.   Legal Construction

These Terms shall be governed and interpreted according to the laws of New South Wales and Imagetec and the Customer consents to submit to the jurisdiction of the Courts of New South Wales. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.

23.   Notice

All notices to the Customer shall be considered sufficiently delivered if mailed in the ordinary course of post to the last known address of the Customer. All notices to Imagetec shall be considered sufficiently delivered if so mailed to Imagetec’s NSW office at Level 2, 3 Thomas Holt Drive North Ryde NSW 2113. All notices shall be deemed to have been delivered two business days after mailing.