This legally binding SERVICE AGREEMENT (the “Agreement”) is made effective as of the date above (the “Effective Date”). BY AND BETWEEN OWEST (ABN 26 605 956 492) having its place of business at 26/51 Nelson Road Yennora NSW 2161 (hereinafter referred to as the “Service Provider” or “Provider” which expression shall unless excluded by or repugnant to the context include its legal heirs, executors, legal representatives, successors, administrators, and permitted assigns) of the FIRST PART; AND The Client stated on page 1 of the Agreement (hereinafter referred to as the “Client”) of the SECOND PART. Each of the Provider and the Client shall be referred to individually as a “Party”, and together they may be referred to as the “Parties”.

WITNESSETH

WHEREAS:

(A) The PROVIDER represents to the CLIENT that the PROVIDER has the necessary expertise and experience to provide Service(s) to the PROVIDER;

(B) The CLIENT desires to engage the PROVIDER to perform, provide and deliver the Service(s) subject to the terms and conditions set out in this Agreement;

(C) WHEREAS, each Party is duly authorized and capable of entering into this Agreement.

 

NOW, THEREFORE, for the mutual consideration set forth herein, the adequacy of which is hereby acknowledged, the PROVIDER and the CLIENT, intending to be legally bound, hereby agree as follows:

 

1. COVERED SERVICES:

The Provider shall provide all routine preventative maintenance, maintenance kits and emergency service necessary to keep the printers in good working order in accordance with this Agreement and Provider’s normal practice. Such service shall be performed during the Provider’s local regular business hours (9:00AM to 5:00PM Monday through Friday, excluding holidays). The Provider will respond to requests for service within the same business day where a call is placed before 3:00pm on the same day.

The Client shall afford the Provider full, free and safe access to the printer to perform on-site service. The Provider may terminate its maintenance obligations as to any Printers if the Client relocates it to a site outside the Provider’s authorized service territory. If, in the Provider’s opinion, any Printers cannot be maintained in good working order through the Provider’s routine maintenance services, the Provider shall, at its option, either (i) substitute comparable Printers at the Client’s expense or (ii) refund a portion of rental repayments representing the time the devices were not usable due to delays by the Provider. Parts replaced or removed by the Provider in connection with maintenance services hereunder shall become the property of the Provider and the Client disclaims any interest therein.

The Client shall have a piece of software that monitors the printer for usage and ink levels. If that software does not report to the Provider or where the Client did not allow or could not allow for the installation of the software, then the Provider may call or email for that information. If the Client does not respond in a timely manner, then the Provider shall need to estimate the print volume and also the Provider shall not be liable for not providing inks or service on time. Meter counts that are estimated shall be deemed as valid and billable and the Client agrees to this charge.

2. NON-COVERED SERVICE:

The Client acknowledges that the Provider shall not have obligations related to (i) overhauls and/or reconditioning of printers; (ii) printer user errors; (iii) the alteration, modification or customisation of any software controlling, used by, installed on or embedded in the Printers; (iv) the service or repair of devices, accessories, power, data or communication lines or other instruments which are external to or otherwise not a component part of the Printers; (v) data erasure or hard drive removal or (vi) supplying external communications or data transfer lines, paper or other throughput, staples, cassettes, exit trays or other like items or supplies changes in the local network environment, a standard technician charge will apply.

3. RESPONSIBILITIES OF THE CLIENT:

 

1. The Printers shall be in good working condition on the Start Date (as determined solely by the Provider in its reasonable discretion).
2. The Client shall provide the Provider with an accurate location and printed configuration page for each printer placed under this Agreement. The Client shall notify the Provider if the Client relocates any printers from the address indicated on Schedule A or any related Change Order.
3. The Client shall only use the Provider-approved parts and supplies for the Printers.
4. The Client shall have proper electrical and network connections and install and use the Provider approved surge protector(s) where appropriate.
5. The Client shall provide a Key Operator responsible for designated duties in the operator’s manual and insure that the proper supplies are being installed and/or used correctly with the Printers.
6. The Client shall be solely responsible for security of the Client’s electronic and other data.
7. The Client must install and keep the DA (Device Agent) installed on the Client’s network for networked devices and locally for non-networked devices throughout the Duration of this Agreement. If the DA does not communicate with the Provider, then the Client agrees to provide manual meter readings upon request.
8. The Client agrees that the Provider may use estimated meter readings without notice if it does not receive timely meter readings on any Printers covered by this Agreement.
9. The Client shall utilize the Provider’s ordering procedures for adding or deleting printers and ordering Toner Cartridges. The Client acknowledge that the Provider will not deliver services of toner for printers not listed on Schedule A or any related Change Order until the Client completes the proper ordering procedure to add the printer to the Agreement.
10. The Provider shall always possess clear assess to the asset. Assets shall be monitored by the Provider and the Client shall install the Provider’s software on the Client’s personal computer.
11. If required, the Provider will monitor the asset and supply consumables accordingly to the Client.

 

4. SERVICE FEE:

The Service Fee for a multifunction printer is a fixed as the service fee as outlined in “Service Fee” on page one of this Agreement. The weekly “Prints” included for the Service Fee are outlined in page 1 of the Agreement as “Black and White Prints” and “Colour Prints”. After above Prints are completed, then the costs for printing above this quantity are outlined in page one of this agreement as “Black and White $” for black and white prints and “Colour $” for colour prints.

The Client shall pay AUD 250 for initial delivery, installation and setup of the Printer at the Client’s place of business after which the order shall be considered to be placed. If there is more than one asset installed in one location then each additional device will cost AUD 70 extra.

Call out charge for out-of-scope repairs is AUD 120 an hour within Sydney which shall be the minimum charge and after the completion of the duration of one hour, the Call out charge for out-of-scope repairs will be charged on a 30-minute time interval basis. Call out charge for out-of-scope repairs is AUD 220 an hour outside Sydney with the same applicable terms as applicable to the Call out charge for out-of-scope repairs within Sydney.

The Service Fee be collected through direct debit from the nominated account of the Client. The Service Fee shall be collected on a weekly basis in advance. If a direct debit is missed the bank will charge AUD 21.90 in accordance with the Direct Debit Agreement. There shall be no option available with the Client to purchase the Printer from the Provider.

Per image charges and non-covered service charges shall be billed in arrears on a monthly basis. Invoices shall be due and payable within seven days of the invoice date. Applicable taxes shall be added to the charges. If payments are late, the Provider may charge you and you agree to pay a late fee equal to the higher of five percent (5%) of the amount due or ten dollars ($10) for each billing period or portion of a billing period such payment is delayed, as reasonable collection fees, not to exceed the maximum amount permitted by law. The Provider reserves the right to increase the per image charges above every six (6) months to reflect increased costs, unless otherwise stated in a special condition. Any monthly free prints offered in this plan shall expire after 12 months unless otherwise stated in the “notes” section of “Schedule A”.

5. HOLD:

If payment of invoices is overdue by 30 days, the Provider reserves the right to put the account on hold. In the above case the Client agrees to allow unrestricted access to the device in Schedule A for the purposes of consumable recovery i.e toners and waste toner bottles.

6. INSURANCE:

The Client must have a business insurance that covers the Printer. If the Client does not insure the Printer and the Printer is written off due to damage then the Provider shall be entitled to charge a fee for the damage caused as specified by the Provider. If the Client does not insure the Printer then the Client shall pay an yearly fee to the Provider which the Provider will use for getting an insurance for the Printer.

7. COMPETITOR:

If the Client is approached by a competitor of the Provider and if the competitors take the Provider’s printer away then the Client shall be liable for any damage or loss of the Printer and if the Printer is not returned in working order, then the Client shall be liable to pay for damages associated with the loss of the Printer.

8. OWNERSHIP:

The Printer is the property of the Provider and shall remain the Property of the Provider. The Hirer will not encumber the Printer or allow the Printer to be encumbered or pledge the Printer as a security in any manner.

9. DATA:

The Client acknowledges that the hard drive on the Equipment may retain images, content of other data during normal operation of the Equipment (“Data”) and that exposure or access to the Data by the Provider, if any, is purely incidental to the services performed by the Provider. Neither Provider nor any of their affiliates has an obligation to erase or overwrite Data upon the Client’s return of the Equipment to Provider or any leasing company. The Client is solely responsible for” (i) the Client’s compliance with applicable law and legal requirements pertaining to data privacy, security, retention and protection; and (ii) all decisions related to erasing or overwriting Data. Without limiting the foregoing, the Client should, prior to return or other disposition of the Equipment, utilize the Hard Disk Drive (HDD) (or comparable) formatting function found on the Equipment to perform a one pass overwrite of Data or, if the Client has higher security requirements, then the Client shall purchase from the Provider at current rates on available option for the equipment, which may include (a) an HDD Data Encryption Kit option which disguises information before it is written to the hard drive using encryption algorithms, (b) a HDD Data Erase Kit that can perform up to a 3-pass overwrite of Data or (c) a replacement hard drive (in which case the Client should properly destroy the replaced hard drive). The terms of this section shall solely govern as to Data, notwithstanding that any provisions of this Agreement or any separate confidentiality or data security or other agreement now or hereafter entered between the Client and Provider could be construed to apply to Data.

10. LIMITED WARRANTY:
11. a) To the extent permitted by law and without limiting any express warranties given by the Provider, it shall not be liable for, and the Client must indemnify and hold the Provider harmless for all claims occasioned by or arising from or in connection with any of the following:
12. the use or operation or possession of the Equipment or the Interface.
13. any breach by the Client of any warranty given in respect of the Product Installation Form.

• any change by the Client of any aspect of element of the Client’s System.

1. any loss or corruption of data or information residing in the Client’s System.
2. any business Interruptions
3. any corruption, crashing or destruction of the Client’s System.

• any Information obtained from the Equipment’s hard drive by a third party after it has been removed from the Client’s premises.
• any breach of this Agreement by the Client, or

1. any wrongful, willful or negligent act or omission of the Client or any of its officers, employee, agents or contractors.
2. b) The indemnity canvased in shall extend to any costs and expenses incurred by the Provider in connection with all such claims incurred including any costs and disbursements incurred in pursuing any debt recovery action and legal fees on an indemnity basis and shall survive the termination of this Agreement.
3. c) Subject to the clause (a), the Provider’s liability in respect of all Claims in connection with the Provider’s Agreement shall be limited to the amount paid to the Provider by the Client in respect of the piece of equipment which gave rise to the claim, including in the event of Provider’s negligence.
4. d) For the avoidance of doubt, the Provider’s shall not be liable for any indirect or consequential loss or damage for any loss of profit or loss of opportunity or loss of corruption of data, whether such a claim is brought under the CLA or not.
5. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY:

 

1. The Provider acknowledges that the CCA may imply warranties. conditions, obligations or guarantees on it in relation to its goods and services;
2. In the event any of these provisions are applicable, the Provider’s liability shall be limited (to the extent permitted by law) at Provider’s discretion to resupply, repair or replace the Equipment at an equal or equivalent cost to the original Equipment;
3. All representations, conditions and warranties within the CCA of any nature are expressly excluded to the extent permitted by law;
4. Nothing in clauses (a), (b), and (c) limits, restricts or modifies the Client’s rights under a mandatory term or guarantee and the parties acknowledge that the CCA does not permit limitation of liability in respect of goods or services of any kind ordinarily acquired for personal, domestic or household use or consumption;
5. The Provider must use reasonable endeavors to ensure the continued availability and supply of spare parts and consumables necessary to ensure the proper functioning of the Equipment;
6. The Provider warrants that Spare Parts and Consumables required to ensure the proper function of the Equipment will be reasonably available for a reasonable period after the Equipment is supplied;
7. Any express manufacturer warranties given by the Provider shall be void if the Client:

 

1. uses or operates the Equipment in a manner that is not strictly in accordance with any operation instructions provided with the Equipment or by the Provider (inducing misusing the equipment and using or operating the Equipment negligently); or
2. uses any consumable or materials other than those provided or approved by the manufacturer of the Equipment or Provider (nothing in this clause shall exclude, restrict or modify the Client’s rights under a term or guarantee that applies under a mandatory law).

 

12. DEFAULT:

The Client shall be in default of this Agreement if the Client fails to perform any of the Client’s obligations under this Agreement, including making prompt undisputed payments when due. The Provider may terminate this Agreement upon the Client’s default with thirty (30) days’ notice to the Client. If an overdue payment is disputed in good faith within thirty (30) days after the due date thereof, the Client shall pay all undisputed amounts and promptly make a good faith effort to resolve such dispute with the Provider. In the event of the Client’s default, the Provider may, without limiting its other rights and remedies available under applicable law and this Agreement, requires the Client to pay all charges then due but unpaid, including any applicable late charges, plus the remaining base charges for the balance of the term (not to exceed a period of 6 months), the Client agrees that such charges are reasonable liquidated damages for loss of bargain and not a penalty.

13. CONFIDENTIALITY:

The Parties shall keep all matters pertaining to any exchange of information relating to Service(s), any transaction(s) details and all information gathered, obtained, or exchanged as confidential including the Agreement herein and shall not disclose it to any third party not entitled to receive it.

14. RETURN OF PROPERTY:

Upon the expiry or termination of this Agreement, both the parties shall return to the other party, any property or documentation or records, or confidential information belonging to the either party.

15. AUTONOMY:

Except as otherwise provided in this Agreement, the Provider shall have full control over working time, methods, and decision making in relation to the performance of Service(s) in accordance with the Agreement. The Provider will work autonomously and not at the direction of the Client.

16. INDEPENDENT CONTRACTOR:

Nothing in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship between the Provider and Client.

17. SUB-CONTRACTOR:

The Provider may, at its absolute discretion, engage a third-party sub-contractor to perform some or all of the obligations of the Provider under this Agreement.

18. FURTHER ASSURANCES:

In connection with this Agreement, as well as all transactions contemplated by this Agreement, the Parties agree to execute and deliver such additional documents and to perform such additional actions as may be necessary, appropriate, or reasonably requested by either Party to carry out or evidence the transactions contemplated hereby.

19. DURATION:

This Agreement shall take effect immediately from the Effective Date and continue to remain in full force for a duration of 3 years until terminated as per the provisions of this Agreement.

20. TERMINATION:

This Agreement will terminate in any of the following ways:

1. This Agreement will terminate upon the expiry of its Duration;
2. This Agreement may terminate when the Client fails to pay the Service Fee for 2 (two) consecutive times and the Provider shall have the option to terminate this Agreement and re-collect the Provider’s Printer or any other related Equipment from the Client’s place of business.
3. This Agreement may be terminated by a party (non-breaching party) in the event of a material breach by the other party (breaching party) and by giving a 30 (thirty) business days prior written notice to the breaching party to cure the material breach and the material breach continues or hasn’t been cured within the duration specified in the notice. For the purpose of this clause, a “Material Breach” shall include any violation of the clauses of this Agreement, any other breach that the breaching party has failed to cure after the receipt of the prior written notice in this regard from the non-breaching party.

To terminate the Agreement at any time, either party must send a prior written notice of 60 (sixty) business days of the intention to terminate this Agreement.

21. WAIVER:

No waiver provided by a party for any default of the other shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.

22. AMENDMENTS:

Any change, alteration, amendment, or modification to this Agreement must be in writing and executed or signed by authorized representatives of both parties.

23. NOTICE:

Any and all notifications, notices, communications, requests, consents, approvals, agreements, authorizations, acknowledgments, waiver with regard to this Agreement shall be made in written form and delivered to the responding party through the means of Registered Postal Delivery or Registered Courier or Email or any other means as agreed between parties from time to time.

24. SEVERABILITY:

If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, then such provision shall either be modified to reflect the parties’ intention or completely deleted and the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

25. SURVIVABILITY:

The parties understand and agree that all terms of this Agreement that require continued performance, compliance, or effect beyond the termination date of the Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply.

26. FORCE MAJEURE:

Neither party shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, labor stoppage, war or military hostilities, pandemic, lockdown or inability of carriers to make scheduled deliveries, and any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event.

27. HEADINGS:

The numbering and headings are solely for convenience and reference only and shall not affect the scope, meaning, intent, or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect.

28. GOVERNING LAW & DISPUTE RESOLUTION:

This Agreement shall be governed, construed, and interpreted in accordance with the laws of the New South Wales and any applicable federal laws. If in case, any controversy or conflict, or dispute or claim or issue or difference or question [collectively “Dispute(s)”] of any nature between the parties, arising out of or in connection or in relation to this Agreement, the Parties shall spend at least 30 (thirty) days to try and use all means to amicably resolve the Dispute(s). In the event of failure to resolve such Dispute(s) through the means specified in the preceding sentence then any such Dispute(s) arising out of or in connection with this Agreement or in relation to the Agreement, including (but not limited to) any question regarding its existence, validity, interpretation, performance, discharge, and applicable remedies, shall be subject to the exclusive jurisdiction of the state and federal courts situated within the New South Wales.

29. COUNTERPARTS:

This Agreement may be signed in counterparts as necessary, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. The Agreement whether signed in digital mode or physical mode shall have the same validity and legal effect.