1.1 This Agreement will commence on its date set out in the Schedule (Commencement Date) and will remain in force for the Term.
1.2 At the expiry of the Term, On-site Service and Support will cease unless the Customer requests at least 30 days before the end of the Term that it wishes to enter into an additional term arrangement at an Additional Charge and Canon expressly confirms acceptance of the Customer’s request.
2 Canon’s Obligations
2.1 Canon warrants it will supply the On-site Service and Support with all due care and skill and in a professional manner consistent with generally-accepted industry standards.
2.2 Canon’s entry into and performance of its obligations under this Agreement will not infringe the rights of any third party or cause the Customer to be in breach of any obligations to a third party.
3 Both Parties’ Obligations
3.1 Canon and the Customer agree:
(a) they have full power and authority to enter into and perform this Agreement;
(b) they will act reasonably in performing their obligations and exercising their rights under this Agreement;
(c) that in the course of communications with each other, it is each party’s responsibility to conduct appropriate virus checks on any electronic media sent or received to/from the other party; and
(d) To ensure any of their locations the other party’s personnel are required to attend, comply with all applicable legislative and regulatory requirements, such as occupational health and safety (including the responsibility to test and tag the Hardware), equal opportunity and anti-discrimination legislation and no smoking policies.
3.2 The Customer must grant Canon’s personnel access to its location(s) that is reasonably required by Canon’s personnel to perform Canon’s obligations under this Agreement. Canon will comply with the Customer’s security policies where they are provided to Canon in advance.
4 Customer’s Obligations
4.1 The Customer agrees:
(a) its Customer Environment is in good working order. The Customer accepts sole responsibility for the availability and integrity of the Customer Environment. Canon has no liability in relation to the Customer Environment;
(b) to follow Canon or the manufacturer’s written instructions for the Hardware;
(c) the Hardware is designed to work at its best using spare parts or other replaceable items (such as consumables) made or recommended for use by Canon. If anything else is used, the Customer may experience loss of quality or performance and Canon cannot be held liable for any complaint concerning that poor performance. Furthermore there could be instances where the use of such other products may cause actual damage to the Hardware and in such an event Canon reserves the right to refuse to carry out repairs or charge for such repairs and all associated costs and Canon may elect to withdraw On-site Service and Support entirely; and
(d) to let Canon know of any defect in the operation of the Hardware as soon as it become aware of the defect.
4.2 The Customer agrees that proof of purchase for the Hardware may be required before it is entitled to the On-site Service and Support.
5 On-site Service and Support
5.1 The benefits given to you in this On-site Service and Support are in addition to other rights and remedies you have under a law in relation to the Hardware under the Australian Consumer Law in the Competition and Consumer Act 2011 (Cth) (or any amendments thereof). The Hardware comes with guarantees that cannot be excluded under the Australian Consumer Law.
5.2 Unless otherwise agreed in writing, Canon has no liability for, and is not required to provide On-site Service and Support under this Agreement if it relates to:
(a) On-site Service and Support outside of Business Hours;
(b) damage caused by external causes outside Canon’s control including accident, disaster, electrical fault, power surges, lightning, internet connection fault or burglary;
(c) the Customer not following Canon or the manufacturer’s written instructions for the Hardware or using incompatible materials in it;
(d) unauthorised repairs or repair of damage caused by non-Canon personnel installing or modifying the Hardware;
(e) the Customer or third party’s abnormal use, storage or handling of the Hardware (including failure to provide appropriate environmental conditions) and/or any repair or damage caused by such use, storage or handling;
(f) any malfunction or specific requirement of any other item of hardware or software the Customer has linked to the Hardware;
(g) Customer data which is lost or damaged however so occurring;
(h) the Customer making changes to its Customer Environment (other than as agreed in writing);
(i) Hardware relocations not performed by Canon or performed without Canon’s consent;
(j) replacement of any consumables such as rollers, drums, lamps , ink and toner cartridges, maintenance cartridges and paper;
(k) third party software included with scanners
(l) Any other services not included in On-site Service and Support.
5.3 Canon may at its option provide the services for the issues stated in clause 5.2 for an Additional Charge.
6 Additional Charges
6.1 Unless otherwise advised,
(a) If the Customer has Regional location(s) more than 25 km radius from the Canon Business Partner’s location, travel charges (per kilometre) will be charged to the Customer on a one-way basis from the Canon Business Partner’s location to the Customer’s location.
(b) If the Customer has Remote location(s), two-way travel and other expenses may be charged to the Customer on a case-by-case basis. Where requested by the Customer, Canon will supply the Customer with proof of expenses when issuing its claim for payment.
7.1 GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other law dealing with the imposition or administration of a goods and services tax in Australia, as amended from time to time. Terms used in this clause have the meanings given in that law.
7.2 If GST is payable on any supply under this Agreement, the Customer will pay the amount of GST in addition to the Price.
7.3 Where required, Canon will issue the Customer a tax invoice.
8.1 Each party agrees to hold the other party’s Confidential Information in confidence and not to use or disclose it other than in connection with this Agreement.
8.2 On termination of this Agreement, the receiving party must return the disclosing party’s Confidential Information to that party or destroy it and confirm its compliance with this clause in writing.
9.1 Each party must not do any act or thing that causes the other party to be in breach of the Privacy Act 1998 (Cth) (Privacy Act) and each party must comply with its relevant obligations under the Privacy Act.
9.2 Subject to relevant legislation, Canon may send marketing materials to the Customer.
9.3 Subject to clause 9.2, Canon agrees it will only collect (directly or indirectly), use and/or disclose the information obtained under this Agreement, including Personal Information for the purposes of supplying the On-site Service and Support
10.1 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party breaches this Agreement and;
(i) the breach can not be remedied by the other party; or
(ii) if the breach can be remedied, the other party fails or refuses to do so within 30 days after receiving a notice specifying the breach and demanding it be remedied; or
(b) the other party loses, disposes of or destroys the Hardware.
10.2 On termination or expiration of this Agreement Canon will stop providing the On-site Service and Support;
10.3 Canon reserves the right to charge the Customer for On-site Service and Support received by the Customer but not yet paid for.
11 Liability and Indemnity
11.1 Each party (Indemnifying party) must indemnify and keep the other party (Indemnified party) indemnified from and against any direct loss, damage, costs and expenses (including reasonable legal expenses) or liability reasonably suffered or incurred by the Indemnified party, in connection with:
(a) bodily injury to or death of any person; or
(b) Physical damage to tangible property (neither corruption of magnetic media nor loss of data shall constitute physical damage to tangible property for the purpose of this clause), caused by the negligence or wilful misconduct of the Indemnifying party or its personnel, in connection with this Agreement or any Contract.
11.2 A party's liability under clause 11.1 will be reduced in proportion to the extent that any of the Indemnified party's acts or omissions, or those of its personnel, contributed to the loss or liability.
11.3 Canon’s liability for any failure to comply with a consumer guarantee imposed by the Australian Consumer Law under the Competition and Consumer Act 2011 (Cth) is not excluded, but to the full extent permitted by law, Canon limits its liability to (at Canon's option):
(a) re-supply of the On-site Service and Support; or
(b) Payment of the cost of having the On-site Service and Support re-supplied.
11.4 To the full extent permitted by law, neither party is liable for any of the other party’s lost management or other staff time, any loss of actual or anticipated profit, savings, customers, contracts, revenue, interest or goodwill, or any consequential, indirect, incidental or special loss, damage or expense, even if it has been advised of its possible existence and even if such loss, damage or expense is caused by the negligence of the other party, its employees, agents or contractors.
11.5 To the full extent permitted by law, Canon is not liable for loss or damage due to the negligent or improper use, operation, storage or handling of Hardware including the use or operation of it other than strictly in accordance with Canon’s instructions or any document supplied with the Hardware by the Customer.
11.6 With the exception of either party’s liability under clause 8 and/or 11.1(a) to the full extent permitted by law, each party’s liability, and a party’s remedies under this Agreement whether in contract, tort (including negligence), under statute or otherwise is restricted in aggregate to the amount payable by the Customer under the Agreement.
12 Force Majeure
12.1 If a Force Majeure Event occurs, the affected party will be excused from performing its obligations under the Agreement provided it has given notice to the other as soon as reasonably practical. During the force majeure period, both parties will take reasonable efforts and enter into discussions to seek to provide for the continued provision of the On-site Service and Support. If the Force Majeure Event continues for more than 20 Business Days, either party may terminate this Agreement.
13.1 A party may only assign this Agreement or any part of it if it first obtains the other party’s written consent, consent not to be unreasonably withheld.
13.2 Canon may subcontract any of its obligations under this Agreement. Canon remains liable to the Customer for its subcontractor(s) acts and defaults as if they were Canon’s own acts and defaults.
13.3 This Agreement records the entire Agreement between the parties in relation to its subject matter and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
13.4 No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. A waiver must be in writing to be effective.
13.5 Each provision of this Agreement will be read as separate and severable so if any provision is void or unenforceable for any reason, that provision will be severed and the remainder will be construed as if the severed provision had never existed.
13.6 No provision of this Agreement or a right conferred by it can be varied except in writing signed by the parties.
13.7 The covenants, conditions and provisions of this Agreement capable of having effect after the expiration of the Agreement will remain in full force and effect following its expiration or termination.
13.8 This Agreement is governed by the laws of New South Wales and the parties submit to the jurisdiction of its courts.
14 Definitions and Interpretation
14.1 Additional Charge means a charge in accordance with Canon’s Current Rate;
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Hardware or On-site Service and Support are to be supplied;
Business Hours mean 8:30 am to 5:00 pm local time on a Business Day;
Canon Business Partner means Canon’s personnel or authorised representative supplying On-site Service and Support to Regional and Remote locations;
Confidential Information means:
(a) All confidential or proprietary information disclosed orally or in writing by one party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information will not include information that:
(b) is or becomes a part of the public domain through no fault of the receiving party;
(c) was in the receiving party’s lawful possession prior to the disclosure;
(d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure or any breach of confidence;
(e) is independently developed by the receiving party; or
(f) is required to be disclosed by law.
Customer Environment means Customer’s information technology infrastructure relevant to the supply and operation of the Hardware and/or On-site Service and Support.
Force Majeure Event means anything outside the reasonable control of a party, including acts of God, strikes, lockouts, industrial disputes, civil disturbances, wars, fire, storm, flood and earthquake, act of terrorism and war and any act or omission of any government authority.
Hardware means the Canon hardware applicable to the On-site Service and Support that is purchased by the Customer and is one of the models set out in the Link;
Link means this webpage which supplements the terms and conditions in relation to the supply of On-site Service and Support
Metropolitan means a location within a 25km radius of the GPO of Sydney, Melbourne, Perth, Adelaide, Canberra and Brisbane, as applicable;
On-site Service and Support means maintenance services for repairs or fixes which are required to be supplied by Canon in respect of the Hardware;
Personal Information means information or opinion about a person whose identity is apparent or reasonably ascertainable from that information or opinion;
Price means the price payable by the Customer for On-site Service and Support stated in the Link or attached document;
Regional means a location in all of the Northern Territory, Tasmania or a location outside a Metropolitan area but not defined as Remote;
Remote means a location outside a 200km radius from a Canon Business Partner;
Specifications means technical or description specifications of functional, operational, performance or other characteristics required of the Hardware.
Term means the 12 month period of On-site Service and Support from date of purchase of the Hardware.