Terms of Sale
The terms and conditions set out in this document and its schedules are the standard terms and conditions for the supply of Products and Services by Ricoh Australia Pty Ltd ACN 000 593 171 (Ricoh) to its customers (Standard Terms). Ricoh’s customers are bound by these Standard Terms when they submit to Ricoh a Purchase Order which is accepted by Ricoh or when they use Products or Services supplied by Ricoh which are stated as being subject to these Standard Terms. These Standard Terms are the only terms and conditions which apply in respect of the supply of Products and Services under a Purchase Order, any terms and conditions included in a Purchase Order by a Customer will be null and void.
Supply of Products and Services
For each Purchase Order, Ricoh will supply the Products and Services to Customer in accordance with these Standard Terms. Products and Services will be described in the Purchase Order and any additional documents which reference or are attached to the Purchase Order, such as a Statement of Work. These additional documents are incorporated into and form part of the Purchase Order. Services will be provided during the service hours and at the locations specified in the Purchase Order and in accordance with any service levels agreed in writing between Ricoh and Customer. Services which include a third party component, such as cloud, data centre or telecommunications services will be provided in accordance with the third party’s standard terms and Ricoh is not liable for any loss or damage suffered by Customer as a result of any act or omission of the third party service provider.
Customer’s licence rights in respect of third party software supplied under a Purchase Order are set out in the applicable third party terms which may be in the form of: (i) an end user licence agreement between the third party and Customer; or (ii) a sublicence granted by Ricoh to Customer on the same terms as Ricoh's licence agreement with the third party. For software which is specified as supported software in the Purchase Order, Ricoh will provide Customer with any update or new release made available by the software licensor and installation provided by Ricoh will be subject to additional charge. If Customer terminates support services and subsequently desires to restart such services, Customer will pay Ricoh for support services backdated to the termination date plus the then current support fees for the next support term. Support services are limited to those services expressly specified in the Purchase Order and exclude the following:
- services for supported software not at a minimum current software version or not satisfying the minimum operating requirements specified in the Purchase Order or the third party’s terms;
- data correction, data transfer or data conversion; and
- bugs, errors or malfunctions arising from or caused by any of the matters set out in clause 12.
Fees and Charges
Customer agrees to pay Ricoh all fees and charges for the Products and Services provided under the Purchase Order. Ricoh may increase the fees and charges in accordance with the Purchase Order. Where fees and charges payable for a Service are calculated on usage volume, if Customer’s usage is less than any applicable low volume band specified in the Purchase Order, Customer will pay the minimum charge applicable for that Service.
Payment terms are based on any credit application agreed between Ricoh and the Customer. If a credit application is not entered into, the following payment terms will apply:
- Products will be invoiced and paid on delivery; and
- Services will be invoiced in accordance with the milestones agreed in the Purchase Order. If no milestones are agreed, Services will be invoiced upon completion. All invoices are payable by the Customer within 30 days of the invoice date.
Unless otherwise stated in the Purchase Order, fees and charges are exclusive of taxes, duties, and other charges (Taxes). Any applicable Taxes will be added to Ricoh’s invoice. Ricoh will charge separately for reasonable out-of-pocket expenses incurred in providing the Products and Services.
Responsibility for freight, transit insurance and associated charges will be detailed in each Purchase Order. In the absence of such terms, Customer will be responsible for freight, transit insurance and associated charges from the point at which Products are available for dispatch from Ricoh’s or its supplier’s premises.
If any Products or Services provided by Ricoh under a Purchase Order are subject to an operating lease, rental or other financial arrangement, the terms and conditions of that arrangement will be the subject of a separate agreement between Ricoh (or its nominee) and Customer (Financing Agreement). If Customer fails to comply with the terms and conditions of any Financing Agreement, Ricoh will be entitled to immediately suspend or terminate any Purchase Order with Customer, without penalty or prejudice to any of Ricoh’s (or its nominee’s) rights under the relevant Financing Agreement.
If a delivery date is specified in a Purchase Order, that date is an estimate only and Ricoh is not liable for any delay in delivery. Where Ricoh is aware of or anticipates a delay in delivery, it shall promptly notify Customer of the delay and the revised estimated delivery date. If Customer requests a delay to the delivery date or is unable to accept delivery of the Products on the delivery date or the delivery date is delayed due to a cause beyond the reasonable control and without fault of Ricoh then Customer shall be liable for any extra charges, losses or expenses incurred by Ricoh.
Installation and commissioning
Unless specified otherwise in the Purchase Order, installation and commissioning of Products is not included. Customer is responsible for all site approvals (including landlord and council, if any), cabling, power and environment preparation required for installation and use of Products and Services.
Title and risk
This clause is subject to any Financing Agreement, such agreement prevails over this clause to the extent necessary to resolve any inconsistency, ambiguity or uncertainty. Title in Products transfers to the Customer upon Ricoh’s receipt of payment in full. Customer accepts risk of loss or damage to the Products upon the earlier of delivery to the Customer, possession by the Customer and delivery to any carrier contracted by the Customer.
Where Products are delivered prior to payment in full, Customer holds those products as fiduciary agent and bailee of Ricoh and subject to a charge on those Products in favour of Ricoh. If Customer fails to pay any money when due, Ricoh may, without notice, enter upon the Customer’s premises and take possession of the Products. This right is without prejudice to any other rights Ricoh may have.
Products will be accepted by Customer on delivery. Services will be accepted by the Customer when the acceptance criteria and acceptance procedure, if any, specified in the Purchase Order, have been met, or when the Customer uses the deliverables in a production environment, whichever occurs first. If Customer fails to complete acceptance testing within the period specified in the acceptance procedure or where no acceptance criteria or procedure are specified in the Purchase Order, deliverables will be deemed accepted upon the date of delivery to the Customer.
Ricoh makes no warranty in relation to the Products and Services other than as contained in these Standard Terms or as prescribed by a law which cannot be excluded, or in the case of Products as provided by the Product’s manufacturer in documents supplied on delivery of the Products (Manufacturer’s Warranty). Failure of Products or Services to comply with their written specification (Defects) will be rectified:
- in the case of Products, in the accordance with the Manufacturer’s Warranty; and
- in the case of Services, free of charge by Ricoh provided that such Defects are notified in writing to Ricoh within 30 days of delivery, and
Ricoh does not warrant that Products or Services will be error-free or operate without interruption or that they will operate in hardware and software combinations other than as authorized by Ricoh. Ricoh will not be liable for any Defects in Products or Services which are caused by:
- failure of Customer to comply with its obligations under the applicable Purchase Order;
- removal of the factory seal, modifications, maintenance or repair of a Product by any one other than Ricoh or its authorized repairers;
- damage to Products by an external source, including without limitation, transportation, fire, accident, vandalism, water, lightning, power irregularities, exposure to extreme environmental conditions such as salt, chlorination or temperatures outside the manufacturer or Ricoh’s recommendation;
- improper use, or environmental or system preparation or conditions not compliant with the manufacturer or Ricoh’s recommendation;
- any part of the Customer’s environment which is outside of Ricoh’s control;
- malware (e.g. virus, worm, etc.) not introduced by Ricoh or any person under Ricoh’s control;
- third party components incorporated in the Products and/or Services, including but not limited to, software, cloud services, telecommunications services and data centre services provided by third parties. Such components are provided subject to the third party’s terms.
Australian Consumer Law
If any Products or Services supplied under a Purchase Order constitute a consumer good or service under the Australian Consumer Law, then:
- the consumer guarantees apply to those goods and/or services and nothing in the Purchase Order is intended to exclude or modify the Customer's rights in respect of those guarantees; and
- during the process of repair, some or all of Customer's stored data may be lost. Customer must ensure that data has been saved elsewhere prior to repair. Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods. (This is a mandatory notice under the Australian Consumer Law).
These Standard Terms, together with any applicable third party terms state all remedies for warranty claims in respect of the Products and Service provided under each Purchase Order. If any condition or warranty is implied into a Purchase Order which cannot be excluded by agreement, the liability of Ricoh for breach of that warranty shall be limited, at the option of Ricoh, to the re-supply or repair of the relevant Product or Service or the payment of the cost of having the Product or Service repaired or supplied again.
Products returned to Ricoh will be credited to the Customer’s account if the return is authorised by Ricoh, the Products are in the same condition as delivered by Ricoh and received by Ricoh within 14 days of delivery. Ricoh has the right to charge the Customer for any costs or losses incurred by Ricoh where Products are returned which do not satisfy the foregoing criteria.
The Purchase Order may only be amended by agreement in writing between the parties.
Intellectual Property Rights
Unless otherwise agreed in the Purchase Order, all intellectual property rights in the Products and Services (IP) are and will remain the property of Ricoh or its third party suppliers. If any Ricoh IP is made available to the Customer in connection with a Product or Service, the following terms and conditions shall apply to Customer’s use of that intellectual property:
- Grant of rights
Ricoh grants Customer, during the term of the Purchase Order, a personal, non-exclusive, non-transferable licence to use the Ricoh IP for Customer's internal business purposes.
Except as expressly authorised in the Purchase Order, Customer shall ensure that Ricoh IP is not modified or made available to any third party through any means including but not limited to uploading the Ricoh IP to a network or file-sharing service or through any cloud service. Customer shall not commercialise the Ricoh IP or use the Ricoh IP to process the business of any third party or to operate a bureau service.
- Reverse engineering
Customer shall not disassemble, decompile or reverse engineer the Ricoh IP or use any other methods to gain access to source code of the Ricoh IP or any trade secrets embodied in the Ricoh IP or for any other purpose, except to the extent such restrictions are prohibited by law.
- Grant of rights
Each party will keep confidential and secure any information disclosed to it by the other party. These obligations do not cover information in the public domain or that becomes known to the receiving party without obligation of confidentiality, is independently developed by the receiving party or where disclosure is required by law or a governmental agency.
Unless the Purchase Order expressly provides otherwise, Customer is solely responsible for:
- accuracy and integrity of its data as entered into and processed by its users when utilizing the Products and Services;
- migration and conversion of its data from or to the Products and Services; and
- back up of its data and implementation of disaster recovery and business continuity plans for its environment.
Customer will be responsible for complying with applicable export and import laws and regulations in respect of its receipt and use of the Products and Services. Both parties must comply with all applicable laws and regulations relating to anti-bribery and anti-corruption. Ricoh may suspend its performance under a Purchase Order to the extent required by law.
Limitation of liability
Except for liability which may not be excluded or limited by applicable law:
- Consequential loss
Neither party will be liable for any lost profit, revenue, savings or goodwill, downtime costs, indirect, incidental, special or consequential loss or damage suffered in connection with a Purchase Order, whether arising in contract, tort (including negligence), statute, equity or otherwise.
- Liability cap
The aggregate liability of Ricoh for all events giving rise to liability under or in connection with a Purchase Order, whether arising in contract, tort (including negligence), statute, equity or otherwise is limited to the amount of direct loss or damage suffered by Customer, up to a maximum amount of the fees paid and payable by Customer under that Purchase Order in the 12 months prior to the date of the last event which Customer alleges gave rise to liability on Ricoh’s part, except in respect of liabilty for death, personal injury or damage to tangible property.
- Proportional liability
Any liability of a party for loss or damage, however caused (including by negligence), in connection with a Purchase Order is reduced to the extent that the other party contributed to the loss or damage.
- Liability for third parties
To the extent that any components of the Products or Services are provided by third parties, Customer’s rights and obligations with regard to those components will be governed by the applicable third party terms. Ricoh will have no liability to Customer for those components.
- Consequential loss
Ricoh will not be responsible for any delay or failure to provide Products and Services in accordance with a Purchase Order where such failure or delay arises from:
- any failure or delay by Customer to perform its obligations under the Purchase Order;
- a force majeure event as described in clause 28;
- reasonable reliance by Ricoh on Customer’s instructions, authorizations, approvals or other information; or
- any act or omission of a third party not under Ricoh’s control.
Where the delay or failure is capable of remedy, Ricoh shall be entitled to additional payment and an extension of time, that is reasonable in the circumstances.
Services provided under a Purchase Order will be provided for the term specified in that Purchase Order, subject to the following:
- each Service will commence on the later of: (i) the commencement date specified in the Purchase Order for that Service; and (ii) the date on which any transition obligations for that Service are completed;
- each Service will terminate on expiry of the term or any renewal term specified in the Purchase Order or upon a party providing the termination notice period specified in the Purchase Order; and
- if Services are provided on a renewal or subscription basis, Customer acknowledges that continued provision of the Services is conditional on the Customer's regular periodic payment of renewal or subscription fees specified in the Purchase Order.
Either party may terminate a Purchase Order on written notice to the other party if the other party:
- fails to meet any material obligation (including payment obligations) under the applicable Purchase Order and fails to remedy the breach within 15 days of being notified in writing of the breach;
- becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment;
- Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or
- Customer, being a natural person, dies.
Consequences of termination
Termination of a Purchase Order will not terminate any other Purchase Order or relieve a party of any accrued payment obligations. In the event of termination of a Purchase Order:
- each party will return to the other all assets, confidential information, intellectual property and personal information belonging to the other party or its licensors;
- any terms in a Purchase Order which by their nature extend beyond termination will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns; and
- payment shall immediately be due for Products and Services provided up to and including the effective date of termination, including any early termination fees specified in the Purchase Order and any costs incurred by Ricoh in connection with discontinuance of the work in an agreed, orderly fashion.
Neither party shall commence any court or arbitration proceedings in respect of a Purchase Order (Dispute) unless the parties have complied with this clause. A party claiming a Dispute has arisen must give written notice (Notice) to the other party specifying the nature of the Dispute. Within 7 days of receipt of the Notice senior management of each party shall meet to resolve the Dispute. If resolution is not reached within 7 days of such meeting, the parties shall, within 30 days of receipt of the Notice, mediate the Dispute in accordance with mediation administered by the Australian Commercial Disputes Centre. Nothing in this clause shall prevent a party from seeking urgent interlocutory or equitable relief.
Except for payment obligations, neither party will be liable for performance delays or non-performance due to causes beyond its reasonable control and without fault, including but not limited to, fire, flood, earthquake, elements of nature, acts of God, riot, civil disorder, rebellion, revolution or industrial disputes. If an event of force majeure is ongoing for more than 60 days, either party may terminate the affected Purchase Order without penalty, except that Customer shall be liable for all accrued payment obligations.
For the period from the date the Purchase Order is signed until the date which is twelve (12) months after completion of that Purchase Order, neither party will solicit for employment or engagement as an independent contractor, the employees or contractors of the other party who have been involved in rendering or receiving the Products and Services. This clause does not prevent either party from employing or engaging a person that independently responds to a genuine public advertisement placed by that party in good faith and without prior discussion with the respondent individual.
Relationship of parties
The parties are independent contractors. Nothing in this these Standard Terms or any Purchase Order is intended to create or imply a joint venture, partnership, employment or agency relationship between the parties.
A notice or other communication is properly given by a party if posted or emailed to the other party’s address for notices listed in the Purchase Order, and is taken to be received after 3 working days in the case of post, and in the case of email on the earlier of the time the recipient acknowledges receipt or a read receipt is received from the recipient’s email system.
Each Purchase Order will be governed by the laws of New South Wales and each party submits to the non-exclusive jurisdiction of the courts operating in New South Wales. Customer and Ricoh agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
Each Purchase Order represents the entire understanding of the parties with respect to its subject matter and supersedes any previous communication, agreement or any terms on a Customer Purchase Order or other Customer document in respect of that subject matter. Modifications to these a Purchase Order will be made only through a written amendment signed by both parties. The parties shall not be deemed to have waived any term or condition a Purchase Order unless such waiver is in writing and signed by the relevant party and any such waiver shall only apply to the particular transaction, dealing or matter in respect of which it was given. Ricoh may subcontract any of its obligations under a Purchase Order, provided that subcontracting will not relieve Ricoh of its responsibility for the performance of its obligations under the Purchase Order. Customer may not assign any of its obligations under a Purchase Order without the prior written consent of Ricoh. These Standard Terms and each Purchase Order may be executed in any number of counterparts and all such counterparts taken together will be deemed to constitute one instrument.
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