These General Terms and the Service Agreement form the complete agreement between each Customer and GOM (the Agreement). To the extent of any inconsistency between these General Terms and the Service Agreement, the Service Agreement will apply to the extent of the inconsistency.
By executing the Service Agreement, you are taken to have:
- read, acknowledged and understood the General Terms (together with this Service Agreement);
- agreed to be unconditionally bound by the General Terms (together with this Service Agreement); and
- warranted to GOM that you will comply with the General Terms (together with this Service Agreement) without limitation.
1. Definitions and interpretation
The following definitions apply in these General Terms:
- “Agreement” means the Service Agreement and any schedules and annexures thereto together with these terms General Terms;
- “Business Day” means any day other than a Saturday, Sunday or gazetted public holiday in the state where the Services are being provided by GOM;
- “Confidential Information” means any and all business and financial information (including without limitation, information concerning the business operations and methods) or technical information (including without limitation, any software design specifications and constructions), hardware design specifications and constructions or the like and acquired either directly or indirectly but excludes information which is known or becomes probably known through no wrongful act of the receiving party, is received without restriction from a third party without breach of any obligation or non-disclosure, is independently developed by the receiving party as shown to the satisfaction of the supplying party by written records, is disclosed to either party’s legal or financial advisers or is disclosed pursuant to covenants and all judicial requirements.
- “Customer” means the Customer named in the Service Agreement;
- “General Terms” means these general terms.
- “GOM” means L Corp Pty Ltd (ACN 135 077 593) ATF LC Trust t/as Global Office Machines.
- “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (NSW).
- “Indemnity Basis” means all costs, including fees, charges, disbursements and expenses incurred by a party to litigation in undertaking proceedings, provided they have not been unreasonably incurred or not of an unreasonable amount;
- A party is “Insolvent” if:
- the party informs the other party in writing or either generally that the party is insolvent or is financially unable to proceed with this Agreement;
- execution is levied against the party by a creditor;
- the party is in an individual person or a partnership, including individual person (and if that person):
- commits an act of bankruptcy;
- as a bankruptcy petition presented against him or her or present its or his or her own petition;
- is made bankrupt;
- makes a proposal for a scheme arrangement or a composition;
- has a Deed of Assignment or a Deed of Arrangement made (accepts a composition, is required to present a Debtors Petition or has a Sequestration Order made, under Part X of the Bankruptcy Act 1966 (Cth); and/or
- in relation to a party with incorporation:
- notice is given of a meeting with creditors with a view to the incorporation entering a Deed of Company Arrangement;
- if a party enters a Deed of Company Arrangement with creditors;
- a receiver, liquidator, controller or administrator is appointed;
- an application is made to the Court for the winding up of the party;
- a winding up order is made in respect of the party;
- it is subject to a strike off application by the Australian Securities and Investment Commission;
- it resolves by special resolution that it be wound-up voluntarily (other than for a members’ voluntary winding-up); or
- a mortgagee of any property of the party takes possession of that property.
- “Intellectual Property Rights” means includes any and all intellectual property rights whether subsisting now or in the future, including rights in:
- inventions, discoveries and novel designs, whether or not registered or registrable as patents, innovation patents or designs, including developments or improvements of equipment, technology, software, hardware, processes, methods or techniques;
- registered and unregistered trademarks and service marks, including goodwill in the business concerned in the relevant goods and/or services;
- trade, business or company names;
- internet domain names; and
- proprietary rights,
- whether created or in existence before or after the date of this Agreement and includes anything, whether tangible or intangible, which incorporates, embodies or is based on any of the things referred to in paragraphs (i) to (v) inclusive of this definition;
- “Related Entity” has the meaning given to those words in the Corporations Act 2001 (Cth).
- “Service Agreement” means the document entitled “service agreement entered” into between GOM and the Customer, as amended from time to time.
- “Services” has the meaning given in the Service Agreement.
In this Agreement, unless the context otherwise indicates:
- terms which are not defined in these General Terms but which are defined in the Service Agreement are also taken to have the same definition in these General Terms;
- headings are for convenience only and do not affect interpretation and unless the context indicates a contrary intention;
- “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
- a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;
- a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
- a reference to a statute includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
- a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender;
- a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
- a reference to “including” or “includes” is not a word of limitation and shall be deemed to be a reference to “including without limitation”;
- a reference to “$” or “dollar” is to Australia currency.
Nothing in, or arising out of or connection with, this Agreement, prevents GOM from performing services for any other entity, organisation or individual whatsoever.
3. Customer Obligations
3.1 The parties agree and acknowledge that the Customer is not a “consumer” as defined in the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth).
3.2 The Customer warrants and covenants that it will not seek to enforce any remedy under the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) including but not limited to reliance upon the existence of a “consumer guarantee”.
3.3 The parties acknowledge that GOM has relied upon the matters set out in this clause in entering into the Agreement with the Customer and in determination of the costs charged by GOM for the provision of the Services to the Customer under this Agreement.
3.4 The Customer acknowledges that if were to contravene the provisions of this clause 3, GOM would suffer considerable loss and damage.
4.1 Mutual Representations and Warranties
Each of the parties represents and warrants to the other that:
- it has full power and authority and the legal right to sign and deliver this Agreement and to perform its obligations under this Agreement;
- this Agreement and the matters contemplated by it do not contravene its constituent documents or any laws, regulations or official directive or any of its obligations or undertaking;
- this Agreement has been duly signed and delivered on its behalf;
- the obligations undertaken by it are enforceable against it, in accordance with the provisions of this Agreement; and
- its offices and representatives described in this Agreement or nominated under this Agreement have the authority to act for and on behalf of it in relation to the matters within their authority under this Agreement, unless the party notifies the other party to the contrary.
4.2 The parties acknowledge that each party has entered into this Agreement in reliance upon the warranties provided for in this clause 4.1.
4.3 The Customer further warrants that:
- has examined and reviewed GOM’s proposal to provide the Services and that such proposal is suitable, appropriate and adequate for the purposes which they are being provided;
- the premises (if any) where it is engaging GOM to provide the Services are suitable and allow for the Services to be provided by GOM;
- it has adequate resources (including financial, technological, physical and human resources) to comply with its obligations under this Agreement; and
- it has comprehensively reviewed the terms of this Agreement and the terms contained herein are reasonable and necessary for each party.
4.4 The Customer acknowledges that GOM have entered into this Agreement in reliance upon the warranties provided for in clause 4.3.
5. Intellectual property
5.1 All Intellectual Property Rights and newly created, designed or invented material that directly relates to or arises from GOM’s provision of the Services will be owned by GOM and the Customer must do all things necessary to assign or transfer ownership of any newly created materials to GOM.
5.2 For the purposes of clause 5.1, the Customer acknowledges that all Intellectual Property Rights arising out of, or in connection with the Services (Developed Material) will be GOM’s exclusive property, even if the Customer provides input, information, assistance or any other contribution to the creation of the Developed Material or the performance of the Services. The Customer acknowledges that any derivates, updates or modifications of the Developed Material will be GOM’s exclusive property.
5.3 The Customer has no and will not have any right, title or interest in the Developed Material except for the right to use it as permitted by GOM in its sole discretion.
5.4 Notwithstanding anything contained in this Agreement, GOM and the Customer will retain ownership of all Intellectual Property Rights which were in existence before provision of these Services by GOM under this Agreement.
6. Fair Policy
6.1 The Customer acknowledges that the price which has been offered by GOM has been calculated on the basis that the Customer complies with the obligations contained in this clause 6.
6.2 The Customer must ensure that when printing from the Machine, it prints at least 4 colour pages for every 6 black and white pages printed.
6.3 To the extent that the Customer does not comply with its obligation under clause 6.2, GOM may charge, in addition to the Fee, an additional amount on account of the costs which would have been payable by the Customer had it printed the number of pages required to comply with clause 6.2.
6.4 The Customer acknowledges that a failure to comply with clause 6 will cause GOM to suffer loss and damage and will entitle GOM to terminate the Agreement with immediate effect by giving notice to the Customer.
6.5 The Customer’s compliance with clause 6 will be tested at a frequency determined by GOM.
7. Debt collection
The Customer must pay to GOM any debt collection costs, including any legal fees on an Indemnity Basis and the costs associated with recovering or attempted recovery of an amount payable under this Agreement.
8.1 Before GOM commences work and provides the Services under the Agreement, the Customer must:
- effect a public liability policy of insurance of not less than $20,000,000.00 of which the coverage extends to GOM, consultants, subcontractors and other persons employed by GOM or with an interest in the premises to which GOM is providing the Services, in respect of personal injury or death arising by accident of any person whomsoever (not being a person who at the time of the accident is defined as a worker of the insured under any statute relating to workers compensation insurance) and in respect of any injury, loss or damage whatsoever arising by accident to any property, real or personal, including property belonging to the Customer and GOM or in which it is interested and where the accident arises out of or is caused by provision of the Services; and
- obtain any other policy of insurance as may be reasonably required by GOM from time to time.
8.2 The Customer must ensure all policies of insurance are current for the term of this Agreement.
8.3 Whenever requested in writing by GOM, the Customer must produce evidence to the satisfaction and approval of GOM of the insurance policy effected, is kept current and maintained.
8.4 If the Customer fails to comply with this clause 8, where possible, GOM may do any of the following at its absolute discretion:
- effect and maintain that insurance policy and pay the necessary premiums. If required to do so, GOM may recover from the Customer the costs of the premiums and GOM’s reasonable costs of effecting and maintaining the insurance, as a debt due and payable by the Customer to GOM; or
- terminate the Agreement without notice and penalty.
8.5 The Customer must bear all excesses payable under the policies and insurance taken out by the Customer, which are required under this Agreement.
8.6 The effecting of insurance shall not limit the liabilities and obligations of the Customer, under any other provision of this Agreement.
8.7 The Customer must immediately inform GOM in writing of any occurrence that may give rise to a claim under the policy of insurance required under this clause and must keep GOM informed of subsequent developments concerning that claim.
9.1 The Customer shall:
- take all measures necessary to protect people and property at the premises to which GOM are providing the Services;
- avoid unnecessary interference with people at the premises to which GOM are undertaking Services; and
- prevent nuisance and unreasonable noise and disturbance at the premises where GOM are undertaking the Services.
9.2 If loss or damage occurs to the premises to which GOM are providing the Services under this Agreement, the Customer must, at the Customer’s cost, rectify such loss or damage so that the premises is restored to the condition it was in prior to the damage occasioned. For the purposes of this clause, the Customer agrees that GOM shall not be liable under any circumstance for any loss or damage arising at the premises where GOM are providing the services even if such loss or damage is directly or indirectly occasioned by GOM in providing the Services.
9.3 The Customer must take all of the necessary steps to protect the premises where the Services are being provided, including when necessary, the provision of temporary covers and protection to prevent any damage.
9.4 The Customer must attend to rectification of any damage to the premises where services are being provided immediately, should the defective work be hazardous to the health or safety of any person, the public or any employee, agent or officer of GOM.
10.1 In consideration for GOM agreeing to provide the Services, the Customer hereby irrevocably indemnifies GOM and any Related Entity against all liability relating to or arising out of or in connection with:
- the provision of the Services in accordance with this Agreement;
- any breach of this Agreement by the Customer;
- any negligent act or omission of the Customer; and
- any damage to property or personal injury arising from the provision of the Services,
except to the extent caused by the gross negligence or intentional misconduct of GOM.
10.2 The parties acknowledge that the indemnity provided in clause 10.1 is a continuing obligation and does not merge upon termination or expiry of the Agreement.
10.3 GOM may enforce the benefit of the indemnity provided in clause 10.1 on behalf of each of its Related Entities and holds the benefit of that indemnity on trust for each of its Related Entities.
11. Limitation of liability
11.1 Under no circumstance shall GOM be liable for any special, punitive, incidental, exemplary or consequential arising out of or in connection with provision of the Services, failure to perform the Services or any other breach of this Agreement.
11.2 For the purpose of limitation of liability set out clause in 11.1, GOM’s maximum liability under this Agreement, whether arising out of contract, tort, negligence, statute or otherwise, to or on behalf of the Customer, any of its representatives or related or associated entities, shall not exceed the aggregate amount of all fees paid by the Customer to GOM (less 25%), pursuant to this Agreement as at the date the cause of action accrues.
11.3 In the event that the Customer brings any claim against GOM arising out of or in connection with this Agreement, such claim must be brought within twelve (12) months of when the cause of action first accrues. For the purposes of this clause, the Customer acknowledges that it will not be entitled to bring any claim against GOM unless that claim is brought within the time prescribed by this clause and acknowledges that the time limit imposed by this clause is entirely reasonable in the circumstances.
11.4 The provisions of this clause 11 apply, notwithstanding any representation made by GOM to the Customer or any representation made by the Customer to GOM.
12.1 During the term of this Agreement and for two (2) years after the expiry or termination of this Agreement, the Customer and all of its Related Entities, officers, agents and employees must not employ or solicit for employment, any person who is an employee of GOM or its Related Entities.
12.2 Clause 12.1 applies even in circumstances where:
- a person responds to a general advertisement for employment by the Customer; or
- the person seeks employment with the Customer of his or her own initiative.
12.3 The Customer acknowledges that the restrictions specified in clause 12.1 and are in the circumstances, reasonable and necessary to protect GOM’s legitimate interests and loss which GOM will suffer if the Customer contravenes those provisions.
12.4 This clause survives expiry and termination of this Agreement.
13.1 The Customer, must not, in any manner whatsoever disclose or communicate to any third party or to any person or entity that has no need to know any Confidential Information or use any Confidential Information for any purpose except for the purpose for which such Confidential Information was supplied, without the prior written consent of GOM.
13.2 Each party agrees that the terms of this Agreement are confidential and must not be disclosed to any third party (other than as required by law or to a party’s legal or financial advisers or as otherwise required for the purposes and performance of this Agreement, without the prior consent of the other party).
13.3 The operation of this clause 13 survives the expiry or termination of this Agreement.
14. Dispute resolution
14.1 If a dispute or a difference arises out of or in connection to this Agreement, the parties must continue to perform their obligations as required under this Agreement, unless GOM determines that the dispute involves a breach of this Agreement which renders performance of the obligations of the respective parties impossible.
14.2 Where any dispute or difference arises hereunder or in any way in connection with this Agreement, or these services, or otherwise, and whether or not this Agreement has been determined, either party shall give notice in writing, adequately identifying and providing details of the dispute and shall deliver by hand or by email or registered post to the other of such dispute or difference (Dispute Notice).
14.3 A party served with the Dispute Notice may give a written response to the notice to the other party within fourteen (14) days of receipt of the Dispute Notice (Response Notice).
14.4 If a dispute cannot be resolved cannot be resolved between the parties within seven (7) days after issue of the Response Notice, or the other party is not making reasonable efforts to resolve the dispute, either party may refer the dispute to expert determination before an expert agreed between the parties.
14.5 If the parties cannot agree upon an expert, the chairperson of the New South Wales chapter of the Institute of Arbitrators and Mediators Australia shall nominate the expert.
14.6 GOM and the Customer shall pay one-half (1/2) of the expert’s costs each, unless the expert determines otherwise.
14.7 The expert must not act as an arbitrator and, as a condition of appointment, the expert must agree to issue a written decision within fourteen (14) days after the expert’s appointment, unless the parties agree in writing to a longer period.
14.8 Any expert determination is to be conducted in accordance with the Rules for Expert Determination of Commercial Disputes of the Institute of Arbitrators and Mediators Australia.
14.9 The decision of the expert is not subject to a view under this Agreement. If any party disputes the decision of the expert, it may begin any legal proceedings available to it.
14.10 The parties agree that any communications whether verbally or written specified as being “without prejudice” must not be revealed or used in any other proceedings except for the question of costs.
15. Goods and services tax
15.1 All amounts payable under this Agreement are subject to GST. All prices will be treated as GST‑exclusive, unless specifically stated in writing to be inclusive of GST or words to a similar effect.
15.2 The Customer is the party liable to pay the proper amount of GST applicable under this Agreement, and that are applicable for Services provided by GOM under this Agreement.
16. Assignment and subcontracting
16.1 GOM may, at its absolute discretion, novate or assign this Agreement or any part thereof to an individual, organisation or entity of its choosing.
16.2 In the event that this Agreement or any part thereof (including the Services) is novated or assigned by GOM pursuant to clause 16.1, the Customer hereby irrevocably releases and discharges GOM from any liability arising out or in connection with the performance of this Agreement insofar as the Agreement was performed by the novatee or assignee of GOM. For that purpose, the Customer acknowledges that GOM is not liable under any circumstance for any act or omission of the assignee or subcontractor where this Agreement or any part thereof (including the Services) have been novated or assigned by GOM.
16.3 GOM may, at its absolute discretion, subcontract the Services or any part thereof to an individual, organisation or entity of its choosing.
16.4 The Customer must not assign its rights under this Agreement except without the prior written consent of GOM which may be withheld for any reason.
16.5 The Customer must do all things necessary to give effect to this clause of this Agreement.
GOM are an independent entity prior to the Customer and neither party has authority to bind the other party by Contract or otherwise, and neither GOM nor its employees are agents or employees of the Customer by virtue of this Agreement.
18. Further assurance and good faith
18.1 Each party must promptly, at its own cost, do all things (including, but not limited to executing all documents) necessary or desirable to give full effect to this Agreement.
18.2 Each party must act in good faith, honestly and reasonably in the performance of its obligation under this Agreement, with the object of achieving the commercial efficacy intended under this Agreement.
19. Exclusion of the contra-proferentum rule
In the interpretation of this Agreement or any part of it, no rule of construction shall apply to the disadvantage of any party on the basis that a party:
- Prepared this Agreement or any part of it or any amendment thereto; or
- Seeks to rely on this Agreement or any part of it or any amendment thereto.
20.1 Each covenant, obligation and restriction and any part of covenant, obligation and restriction contained in this Agreement is deemed to be severable and independent covenant, obligation or restriction.
20.2 If the provisions or part of any provisions of this Agreement are held by a Court of a competent jurisdiction to be void, invalid or otherwise enforceable, that any such provision or part provision is deemed to be eliminated or modified to the extent that it is necessary to make the remainder of the clause enforceable and the remainder of the Agreement shall have full force and effect.
21.1 A waiver of a breach of this Agreement or any right, power, authority, discretion or remedy arising upon a breach of or default under this Agreement must be in writing and signed by the party granting the waiver.
21.2 A breach or default under this Agreement is not waived by any failure to exercise or delay in exercising or partial exercise of any right, power, authority, discretion or remedy under this Agreement.
21.3 A right, power, authority, discretion or remedy created or arising upon a breach or default under this Agreement is not waived by any failure or delay in the exercise or a partial exercise of that or any other right, power, authority, discretion or remedy.
Any variation to this Agreement has no force or effect, unless effected by a document executed by the parties.
23. Prior agreements
23.1 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement.
23.2 The Customer acknowledges that it has not relied on any statement or representation made by GOM or any of its representatives in the course of negotiations or discussions leading to or arising out of this Agreement.
23.3 To the extent permissible by law, must not make, and waives any right it may have to make any claim against GOM in connection with or arising out of this Agreement pursuant to:
- section 18 of the Australian Consumer Law being Schedule 2 of the Competition and Consumer Act 2010 (Cth); and
- any corresponding or similar state legislation.
24. Governing law
The Law governing this Agreement, its interpretation and construction is the law of New South Wales. The parties hereto submit to the non-exclusive jurisdiction of the Courts of that state and any Court in appeal therefrom