FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928
ORDERS
DATE OF ORDER: |
NOTING THAT:
A. These declarations and orders adopt the following defined terms:
(i) ACL means the Australian Consumer Law as contained in Sch 2 to the Competition and Consumer Act 2010 (Cth);
(ii) ASIC Act means the Australian Securities and Investments Commission Act 2001 (Cth);
(iii) Captured Contracts means the following template agreements which are in exhibit A1:
• DMA, being FBAU’s Documation Agreement versions 7.2 and 7.3;
• DRA, being FBAU’s Docurent Agreement versions 7.2 and 7.3;
• FLRA, being FBAU’s Fixed Lease Rental Agreement versions 7.2 and 7.3;
• FTRA, being FBAU’s Fixed Term Rental Agreement versions 7.2 and 7.3;
• MTRA, being FLAU’s Minimum Term Rental Agreement version 3.0;
• PA, being FBAU’s Purchase Agreement versions 7.2 and 7.3;
• PCRA, being FBAU’s Preferred Customer Rental Agreement versions 7.1A, 7.2 and 7.3;
• PCRA (IFP), being FBAU’s Preferred Customer Rental Agreement (Interest Free Promotion) version 7.2;
• RA, being FBAU’s Rental Agreement versions 7.2 and 7.3;
• SLSSA, being the FBAU Software License and Support Services Agreement versions 7.3 and 7.4; and
• SSA, being FBAU’s Support Services Agreement versions 7.2 and 7.3;
(iv) FBAU means Fujifilm Business Innovation Australia Pty Ltd, the first respondent;
(v) FCA Act means the Federal Court of Australia Act 1976 (Cth);
(vi) FLAU means Fujifilm Leasing Australia Ltd, the second respondent;
(vii) Fuji means FBAU or FLAU;
(viii) Particular Business Unfair Term means any term declared to be an unfair contract term by declaration 2 of these orders; and
(ix) Unfair Term means any term declared to be an unfair contract term by declaration 1 of these orders.
AND UPON THE RESPONDENTS UNDERTAKING TO THE COURT THAT:
B. Within 90 days of the date of this order, Fuji will send a communication by email and/or by post and/or by an electronic workflow solution (such as DocuSign), in the form of the communication in Annexure A, to persons (the customer) who have entered into a contract with Fuji and:
(i) the contract was entered into, or renewed, after 12 November 2016;
(ii) the contract remains in force as at the date of this order;
(iii) the contract was made using any of the Captured Contracts; and
(iv) either the upfront price payable under the contract (inclusive of GST, if any) does not exceed $300,000 or the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000,
but excluding all government entities (including “government entities” as each term is defined by A New Tax System (Australian Business Number) Act 1999 (Cth)).
C. If the customer provides the confirmation that they are a small business as specified in Annexure A then Fuji may, but is not obliged to, request supporting evidence in the form of copies of payroll records or staff sign-in sheets (which may redact personal information of employees) for the sole purpose of Fuji confirming that, at the date the relevant contract was entered into, the customer employed fewer than 20 persons (Further Supporting Evidence). Within 21 days of the date Fuji receives either the confirmation that the customer is a small business as specified in Annexure A or Further Supporting Evidence if it was requested, Fuji will send a communication in the form of Annexure B setting out the terms of that parties’ contract which are void and unenforceable and that, unless the customer disagrees in writing, the words “without any deduction or set off” are deleted from clause 8.1 of the SLSSA (and its equivalent in the other ten Captured Contracts being clause 7(a) of the SSA, and clause 9(a) of the RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA, and DMA, and 8(a) of the MTRA).
D. If a customer has not responded to Fuji within 30 days of Fuji having sent that customer the communication in Annexure A, Fuji must re-send (by post and/or by email) that communication to the customer. If a customer does not respond to Fuji within 30 days of Fuji having re-sent Annexure A, Fuji may assume that that customer is not a small business customer, unless or until the customer advises Fuji otherwise, in which case Fuji may request Further Supporting Evidence. Within 21 days of the date Fuji receives either the confirmation specified in Annexure A or Further Supporting Evidence if it was requested, Fuji will send a communication in the form of Annexure B setting out the terms of that parties’ contract which are void and unenforceable and that, unless the customer disagrees in writing, the words “without any deduction or set off” are deleted from clause 8.1 of the SLSSA (and its equivalent in the other ten Captured Contracts being clause 7(a) of the SSA, and clause 9(a) of the RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA, and DMA, and 8(a) of the MTRA).
E. If Fuji wishes to enforce an Unfair Term against a customer who has not responded to Annexure A after it had been sent to the customer twice, the first time Fuji does so it must include in the notification sent to the customer the words “As [insert reference to applicable Captured Contract and Unfair Term] has been declared void by the Federal Court where it appears in small business contracts, FBAU [or FLAU as applicable] will reconsider its position if you confirm that you are a small business customer and respond to [Annexure A]” as well as enclose Annexure A for the third and final time.
BY CONSENT, THE COURT DECLARES THAT:
1. Pursuant to s 21 of the FCA Act, and/or s 250 of the ACL or s 12GND of the ASIC Act, the following terms of any small business contracts within the meaning of s 23(4) of the ACL or s 12BF(4) of the ASIC Act entered into, or renewed, after 12 November 2016 between either of FBAU or FLAU and any of their customers made using any of the Captured Contracts are unfair contract terms within the meaning of s 24 of the ACL or s 12BG of the ASIC Act and void by operation of s 23 of the ACL or s 12BF of the ASIC Act:
(a) Unilateral Variation Terms — clauses 2, 8.6 and 10.3 of the SLSSA, clauses 4(a)(vi), 7(c) and 7(e) of the SSA, clause 9(c) of the RA, PA, FLRA, PCRA and PCRA (IFP), and clauses 4(a)(vi), 7 and 9(f) of the RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA;
(b) Automatic Renewal Terms — clauses 5 and 7.2 of the SLSSA, clause 2(b) of the SSA, RA, PA, PCRA, PCRA (IFP), DRA and FTRA, and clause 2(c) of the DMA and FLRA, and clause 4(b) of the MTRA;
(c) Extraneous Documents Terms — clause 2 of the SLSSA, clause 4(a)(vi) of the SSA, RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA and clause 6(a)(iv) and 6(a)(v) of the MTRA;
(d) Liability Limitation Terms — clauses 4, 8.5, 9.2(iii), 9.3 and 12.9 of the SLSSA, clauses 3(a), 7(h), 9(b), 9(c) and 10(h) of the SSA, clauses 3(b), 9(i), 11(b)(v), 11(c), 13(h) of the RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA and clause 4(a)(ii) of the FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA, and clauses 6(a)(iii), 8(a)(iii), 9(a)(vi), 9(c), 9(d) and 11(c)(ii) of the MTRA;
(e) Disproportionate Termination Terms — clause 10 of the SLSSA, RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA, clause 8 of the SSA and clause 4(d) of the MTRA;
(f) Termination Payment Terms — clauses 10.5 and 10.6 of the SLSSA, clauses 8(d) and 8(e) of the SSA, and clauses 10(d) and 10(e) of the RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA, and clauses 4(e)(ii) and 4(f) of the MTRA;
(g) End of Contract Period Terms — clauses 2(b) and 3(e) of the FLRA;
(h) Irrevocable Offer Terms — clause 1.1 of the SLSSA, and clause 1(a) of the SSA, RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA, and clauses 2(a) and 2(b) of the MTRA;
(i) Non-reciprocal Obligation Terms — clauses 12.5 and 12.6 of the SLSSA, clauses 10(d) and 10(e) of the SSA, clauses 13(d) and 13(e) of the RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA, and clauses 11(a) and 11(b) of the MTRA; and
(j) Unfair Payment Terms — clause 9(d) of the RA, PA, FLRA, PCRA, PCRA (IFP), DRA, FTRA and DMA, and clause 9(b) of the PA.
2. Pursuant to s 21 of the FCA Act, s 250 of the ACL and s 12GND of the ASIC Act, the terms identified in column E of Annexure C of the small business contracts identified in columns A to D of Annexure C are unfair contract terms within the meaning of s 24 of the ACL and/or s 12BG of the ASIC Act and void by operation of s 23 of the ACL and s 12BF of the ASIC Act.
AND, BY CONSENT, THE COURT ORDERS THAT:
3. Pursuant to s 23 of the FCA Act, s 232 of the ACL and s 12GD of the ASIC Act, each of FBAU and FLAU, whether by itself, its servants, agents or otherwise, is restrained from applying or relying on, or purporting to apply or rely on:
(a) any Unfair Term contained in a Captured Contract; and
(b) any Particular Business Unfair Term.
4. Pursuant to s 23 of the FCA Act, s 232 of the ACL and s 12GD of the ASIC Act, each of FBAU and FLAU is restrained for a period of five years from the date of this order, whether by itself, its servants, agents or otherwise, from entering into small business contracts that are made using the Captured Contracts which contain the terms that have been declared by this Court as void.
5. Pursuant to s 232 of the ACL, s 12GD of the ASIC Act and s 23 of the FCA Act, within 14 days of the date of this order, the respondents shall publish at their own expense a written corrective notice (Corrective Notice) in terms set out in Annexure E to this order, on the websites with the URLs: https://fujifilm.com/fbau/, for a period of 180 days; https://myaccount-fbau.fujifilm.com/, for a period of 90 days; and https://supplies-fbau.fujifilm.com, for a period of 180 days (together, the Fuji Webpages), and ensure that the Corrective Notice complies with the following specifications:
(a) the Corrective Notice is viewable by clicking a “click through” icon located on the Fuji Webpages;
(b) the “click through” icon referred to in the previous paragraph:
(i) comprises the words: “On [date], the Federal Court of Australia made orders by consent that some Fujifilm contracts contain unfair terms, and declared that these terms are void and cannot be enforced. See here for further details including if you are affected.”;
(ii) appears on the Fuji Webpages in a form substantially equivalent to the sample icon reproduced in Annexure F;
(iii) is in an immediately visible area of the Fuji Webpages and is not obscured, blocked or interfered with by any operation of the Fuji website;
(c) the Corrective Notice must occupy the entire webpage that is accessed via the “click through” icon referred to above;
(d) the Corrective Notice must not be displayed as a “pop up” or “pop under” window; and
(e) the Corrective Notice must be crawlable (i.e., its contents may be indexed by a search engine).
6. Pursuant to s 232 of the ACL, s 12GD of the ASIC Act and s 23 of the FCA Act, within 14 days of the date of this order, Fuji shall, at its own expense, send a communication in the form of the communication in Annexure B to each party to a contract identified in Annexure C.
7. Pursuant to s 232 of the ACL, s 12GD of the ASIC Act and s 23 of the FCA Act, within 60 days of the date of this order, Fuji shall, at its own expense, send a communication in the form of the communication in Annexure B (with the words “Further to our previous correspondence with you about the judgment of the Federal Court of Australia” deleted), to any person who:
(a) is or was a party to a Captured Contract containing an Unfair Term; and
(b) has had proceedings commenced by Fuji against them:
(i) in which Fuji relies (as at the date of this order) or proposes to or will rely upon any of the Unfair Terms in support of any of the relief sought in the proceedings or in response to any defence or counter-claim made by the other party; and
(ii) which have not been resolved as at the date of this order.
8. Pursuant to s 232 of the ACL, s 12GD of the ASIC Act and s 23 of the FCA Act, FBAU is required to implement a compliance program in accordance with Annexure D within 90 days of the date of this order.
9. Fuji pay a contribution to the applicants’ costs of and incidental to this proceeding fixed in the amount of $250,000.
THE COURT DIRECTS THAT:
10. The Registry provide an electronic copy of the parties’ submissions and statement of agreed facts upon request to any person.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE A
Correspondence
[FBAU or FLAU letterhead]
Dear [insert]
ACTION REQUIRED: Confirm if you are a small business
Potential Unfair Contract Terms in your Agreement
Agreement: [to be populated by FBAU or FLAU, including the date the relevant contract was entered into]
On [insert], the Federal Court of Australia made orders by consent that some of our agreements with small business customers contain unfair contract terms. This means that those terms are void and cannot be enforced by us if they were in a ‘small business contract’.
‘Small business contract’ laws depend on how many employees your business had at the time we entered into or renewed our Agreement with you. Relevantly for our Agreement, you are only considered a small business if, when you entered into the Agreement, you employed less than 20 employees (including any casual employees employed on a regular and systematic basis).
Action required:
If you employed fewer than 20 people (including any casual employees employed on a regular and systematic basis) on [date the contract was entered into to be populated by FBAU or FLAU as the date of the agreement], then please complete the attached declaration and return it to us. You can return it to us either by scanning the declaration, or sending a photograph of it, to [email address] or by post to [Reply Paid [FBAU or FLAU to establish]] [or by responding within the electronic workflow (such as DocuSign) from which you received this communication [if sent by electronic workflow]]. It would assist us if you could reply within 21 days of the date of this letter.
If you employed 20 people or more on this date, you may either: (a) do nothing and not reply; or (b) complete the attached declaration to indicate you are not a small business customer either by scanning the declaration, or sending a photograph of it, to [email address] or by post to [Reply Paid [FBAU or FLAU to establish]] [or by responding within the electronic workflow (such as DocuSign) from which you received this communication [if sent by electronic workflow]]).
Next steps
If you complete the attached declaration and advise us that you employed fewer than 20 people and no further information is required, we will write to you to inform you which parts of your Agreement are void and unenforceable within 21 days.
In the meantime, for more information about the Court’s decision, see [link to ACCC media release]. If you have any questions about this letter, please feel free to email us at [insert email address].
Yours sincerely,
[Name and title of FBAU or FLAU representative]
Declaration
Customer: [To be populated by FBAU or FLAU]
Agreement: [To be populated by FBAU or FLAU, including commencement date]
Name of authorised Customer representative:
Position of authorised Customer representative:
I declare that, to the best of my knowledge and belief and after having made reasonable inquiries, on the commencement date of the Agreement, the Customer employed:
fewer than 20 employees (including any casual employees employed on a regular and systematic basis); or
20 or more employees (including any casual employees employed on a regular and systematic basis).
_____________________________
Signed
_____________________________
Print name
_____________________________
Position within business
ANNEXURE B
Correspondence
[FBAU or FLAU letterhead]
Dear [insert]
Re: Unfair Contract Terms in your Agreement
Agreement: [to be populated by FBAU or FLAU, including the date the relevant contract was entered into]
Further to our previous correspondence with you about the judgment of the Federal Court of Australia, we confirm that certain terms of your Agreement have been declared unfair by the Federal Court of Australia by consent, and are therefore void and unenforceable. ‘Void’ means they no longer have legal effect. ‘Unenforceable’ means we cannot rely on them.
The terms of the Agreement that are void and unenforceable are set out in the Attachment enclosed with this letter. If you negotiated amendments to your contract with Fuji at the time you entered into your agreement, it may be that one or more of those terms do not currently form part of your contract.
In addition, the words “without any deduction or set off” are deleted from clause [insert].
Our agreement with you otherwise remains on foot.
Further Information
For further information, see the following links:
• Justice Stewart’s judgment [hyperlink]; and
• The ACCC’s media release [hyperlink].
Yours sincerely,
[Name and title of FBAU or FLAU representative]
Terms that are void and not enforceable
The table below sets out which terms in your Agreement are void and not enforceable.
[Delete where not applicable]
Software Licence and Support Services Agreement
Versions 7.3 and 7.4
Term of Agreement | Description of Term |
Clause 1.1 | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the software and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm’s unconditional acceptance of the contract or Fujifilm has commenced providing the support services, whichever occurs first. |
Clause 2 | The customer's use of the software is subject to the relevant end user licence agreement which can be amended without notice to the customer and which Fujifilm is not required to provide to the customer. |
Clause 4 | Fujifilm is only obliged to use reasonable endeavours to deliver the software and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 5 and 7.2 | This clause provides for automatic renewals at Fujifilm’s standard rates at that time unless the customer gives notice of cancellation no less than 30 days before the renewal date. |
Clause 8.5 | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right for the customer. |
Clause 8.6 | Fujifilm has the right to immediately vary all or some of the charges payable by the customer by notifying the customer. |
Clause 9.2(iii) | The customer states they have read each document forming part of the contract (including any document incorporated by reference and not provided to the customer) and has based its acquisition decision solely on their contents. |
Clause 9.3 | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 10 | Fujifilm has significant rights to terminate the contract with no corresponding rights for the customer. |
Clause 10.2 | If the customer is in breach of the agreement, or another agreement with Fujifilm, then Fujifilm may suspend the provision of support services but the obligations of the customer to pay for the support services continues. |
Clause 10.3 | If the licensor or distributor ceases to supply software and support services to Fujifilm, Fujifilm may, but is not required to, vary the charges accordingly. |
Clause 10.4 | Fujifilm may terminate, on notice and for cause, the agreement immediately in whole or in part if the customer breaches any term. |
Clause 10.5 and 10.6 | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount which includes the unpaid balance of the licence fee for the remainder of the initial licence term and any other resource costs, including break costs, that Fujifilm incurs. |
Clause 12.5 | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 12.6 | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can assign the contract to another company without notice. |
Clause 12.9 | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Support Services Agreement
Versions 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has commenced providing the support services, whichever occurs first. |
Clause 2(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(a) | Fujifilm is only obliged to use reasonable endeavours to perform the services and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer" which Fujifilm is not required to provide to the customer. |
Clause 7(c) | Fujifilm may impose a "base support charge" for the remainder of the contract if, in any quarter, actual impressions are less than the aggregate average monthly print volume specified in the Fujifilm "customer expectation documents" which Fujifilm can amend without notice. |
Clause 7(e) | Fujifilm has the right, acting reasonably, to immediately vary all or some of the charges payable by the customer by notifying the customer. |
Clause 7(h) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 8 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 8(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 8(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach. |
Clauses 8(d) and 8(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, which includes any other resource costs, including break costs, that Fujifilm incurs as a result of the termination. |
Clause 9(b) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 9(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 10(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 10(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 10(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Rental Agreement
Versions 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer", which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it (but which the customer is provided a link to within the contract) and which can be amended without notice to the customer. |
Clause 9(c) | Fujifilm may impose a "base support charge" for the remainder of the contract if, in any quarter, actual impressions are less than the aggregate average monthly print volume specified in the Fujifilm "customer expectation documents" which Fujifilm can amend without notice. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably, to immediately vary the charges (but not the rental charge) payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, equal to the then unpaid balance of the rental charges for the remainder of the contract (which is then subject to a discount rate) and any other resource costs, including break costs, that Fujifilm incurs as a result of the termination. |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Purchase Agreement
Versions 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer", which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it and which can be amended without notice to the customer. |
Clause 9(b) | Fujifilm may invoice the customer the purchase price on formation of the contract, which may be before Fujifilm have delivered any of the goods or services the subject of the purchase price. |
Clause 9(c) | Fujifilm may impose a "base support charge" for the remainder of the contract if, in any quarter, actual impressions are less than the aggregate average monthly print volume specified in the Fujifilm "customer expectation documents" which Fujifilm can amend without notice. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably, to immediately vary the charges (but not the Purchase Price) payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach. |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm the Recoverable Amount (as defined) and unless otherwise stated, early termination does not affect Fujifilm’s rights to seek damages for any breach of the Agreement and does not entitle Customer to a refund of any prepaid Charges. |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Fixed Lease Rental Agreement
Versions 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(b) | Following the minimum term, the customer must either stay in possession of the equipment and pay Fujifilm the residual value and any other charges due or make the equipment available for collection by Fujifilm and pay Fujifilm the shortfall between the residual value and the market value as determined by Fujifilm and any other charges due. |
Clause 2(c) | If the customer chooses to keep the equipment following the minimum term then the contract in respect of support services will continue in hold over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 3(e) | Title in the equipment and parts does not pass to the customer at any time. |
Clause 4(a)(ii) | The customer indemnifies Fujifilm for loss or damage to the products (including all associated costs) with the only exclusions being normal wear and tear and to the extent attributable to Fujifilm's negligence or default. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer" , which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it and which can be amended without notice to the customer. |
Clause 9(c) | Fujifilm may impose a "base support charge" for the remainder of the contract if, in any quarter, actual impressions are less than the aggregate average monthly print volume specified in the Fujifilm "customer expectation documents" which Fujifilm can amend without notice. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably, to immediately vary the charges (but not the rental charge) payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach.. |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, which includes an amount equal to the then unpaid balance of the rental charges for the remainder of the minimum term (discounted by applying a discount rate), any other resource costs, including break costs, that Fujifilm incurs as a result of the termination |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Preferred Customer Rental Agreement
Versions 7.1A, 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(ii) | The customer indemnifies Fujifilm for loss or damage to the products (including all associated costs) with the only exclusions being normal wear and tear and to the extent attributable to Fujifilm's negligence or default. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer", which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it and which can be amended without notice to the customer. |
Clause 9(c) | Fujifilm may impose a "base support charge" for the remainder of the contract if, in any quarter, actual impressions are less than the aggregate average monthly print volume specified in the Fujifilm "customer expectation documents" which Fujifilm can amend without notice. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably, to immediately vary the charges (but not the rental charge) payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach. |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, equal to the then unpaid balance of the rental charges for the remainder of the contract (discounted by applying a discount rate), and any other resource costs, including break costs, that Fujifilm incurs as a result of the termination. |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Preferred Customer Rental Agreement (Interest Free Promotion)
Version 7.2
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(ii) | The customer indemnifies Fujifilm for loss or damage to the products (including all associated costs) with the only exclusions being normal wear and tear and to the extent attributable to Fujifilm's negligence or default. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer", which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it and which can be amended without notice to the customer. |
Clause 9(c) | Fujifilm may impose a "base support charge" for the remainder of the contract if, in any quarter, actual impressions are less than the aggregate average monthly print volume specified in the Fujifilm "customer expectation documents" which Fujifilm can amend without notice. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably to immediately vary the charges (but not the rental charge) payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited same rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach. |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, equal to the then unpaid balance of the rental charges for the remainder of the contract (discounted by applying a discount rate), and any other resource costs, including break costs, that Fujifilm incurs as a result of the termination. |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Docurent Agreement
Versions 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(ii) | The customer indemnifies Fujifilm for loss or damage to the products (including all associated costs) with the only exclusions being normal wear and tear and to the extent attributable to Fujifilm's negligence or default. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer", which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it and which can be amended without notice to the customer. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably, to immediately vary all or some of the charges payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach. |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, equal to the then unpaid balance of the rental charges and basic charges for the remainder of the contract (minus savings for repair costs Fujifilm does not have to provide) and then subject to a discount rate, plus any other resource costs, including break costs, that Fujifilm incurs as a result of the termination. |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Fixed Term Rental Agreement
Versions 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(ii) | The customer indemnifies Fujifilm for loss or damage to the products (including all associated costs) with the only exclusions being normal wear and tear and to the extent attributable to Fujifilm's negligence or default. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer", which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it and which can be amended without notice to the customer. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably, to immediately vary all or some of the charges payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach. |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, equal to the then unpaid balance of the basic charges for the remainder of the contract (minus savings for repair costs Fujifilm does not have to provide) and then subject to a discount rate, plus any other resource costs, including break costs, that Fujifilm incurs as a result of the termination. |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Documation Agreement
Versions 7.2 and 7.3
Term of Agreement | Description of Term Declared to be Unfair |
Clause 1(a) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to acquire the equipment and services under the contract but Fujifilm is not bound by the contract until the customer has been advised in writing of Fujifilm's unconditional acceptance of the contract or Fujifilm has delivered equipment, whichever occurs first. |
Clause 2(c) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 3(b) | Fujifilm is only obliged to use reasonable endeavours to deliver the software or equipment and is not liable to the customer, to the extent permitted by law, for any delay, but with no right for the Fuji Customer to be excused from the charges payable. |
Clause 4(a)(ii) | The customer indemnifies Fujifilm for loss or damage to the products (including all associated costs) with the only exclusions being normal wear and tear and to the extent attributable to Fujifilm's negligence or default. |
Clause 4(a)(vi) | The customer must comply with Fujifilm's "customer expectation documents" which can be amended without notifying the customer, and any reasonable directions issued by Fujifilm from time to time. This clause imposes obligations on the customer from the "customer expectation documents", or "(where none is available) any end user documentation, manual or specification published by the manufacturer", which Fujifilm is not required to provide to the customer. |
Clause 7 | The contract is subject to terms which are not stated in it and which can be amended without notice to the customer. |
Clause 9(d) | Fujifilm will invoice the customer for licensed software irrespective of delivery by Fujifilm. |
Clause 9(f) | Fujifilm has the right, acting reasonably, to immediately vary all or some of the charges payable by the customer by notifying the customer. |
Clause 9(i) | The customer must pay Fujifilm all costs and expenses incurred in exercising its contractual rights on a full indemnity basis, without any corresponding right. |
Clause 10 | Fujifilm has significant rights to terminate the contract and it must act reasonably when exercising those rights. The customer has only limited rights to terminate the contract. |
Clause 10(b) | Fujifilm can, acting reasonably, suspend the provision of the services if the customer breaches the contract or any other contract which Fujifilm reasonably considers is related, but the customer must continue paying all charges during the suspensions. |
Clause 10(c) | Fujifilm can, acting reasonably, immediately terminate the contract if the customer breaches any term of the contract which is not remedied within seven days of notice of the breach whereas the customer is only given rights to immediately terminate the contract if Fujifilm materially breaches the contract and such breach is not remedied within 30 days of notice of the breach. |
Clause 10(d) and 10(e) | If Fujifilm exercises its rights to terminate the contract then the customer must pay Fujifilm an amount, reasonably determined by Fujifilm, equal to the then unpaid balance of the basic charges for the remainder of the contract (minus savings for repair costs Fujifilm does not have to provide) and then subject to a discount rate, plus any other resource costs, including break costs, that Fujifilm incurs as a result of the termination. |
Clause 11(b)(v) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 11(c) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. |
Clause 13(d) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 13(e) | The customer must not assign or transfer the contract or any benefit or right under it to another company without Fujifilm's prior written consent but Fujifilm can, acting reasonably, assign the contract to another company without notice. |
Clause 13(h) | Subject to any rights of the customer which cannot be excluded, he customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
Minimum Term Rental Agreement
Version 3.0
Term of Agreement | Description of Term Declared to be Unfair |
Clause 2(a) and 2(b) | By signing and returning the contract to Fujifilm, the customer irrevocably offers to rent the goods but Fujifilm is not bound by the contract until it has purchased the products from the vendor named in the contract. |
Clause 4(b) | If neither party has given written notice to the other no later than 90 days before the end of the minimum term of the contract, the contract holds over and may then only be ended by either party on 90 days' written notice. |
Clause 4(d) | Fujifilm is permitted to immediately terminate the contract if the customer breaches any term of the contract or another agreement contained in the contract. |
Clause 4(e)(ii) and 4(f) | If Fujifilm terminates the contract under clause 4(d) or the parties otherwise agree to end the contract early then the customer must pay Fujifilm an amount equal to the then unpaid balance of the rental charges for the remainder of the minimum term discounted to their net present value at a rate of 5% per annum, minus any amount recovered under the customer's insurance policies (for goods that are lost, stolen, damaged or destroyed). |
Clause 6(a)(iii) | The customer indemnifies Fujifilm for loss or damage to the products (including all associated costs) with the only exclusions being normal wear and tear and to the extent attributable to Fujifilm's negligence or default. |
Clause 6(a)(iv) and 6(a)(v) | This clause imposes obligations from the “customer expectation document” which Fujifilm is not required to provide to the customer. |
Clause 8(a)(iii) | The customer must pay Fujifilm all costs and expenses incurred by Fujifilm as a result of the customer failing to comply with the contract, without any corresponding right for the customer. |
Clause 9(a)(vi) | The customer states they have read each document forming part of the contract (including any document incorporated by reference) and have based their decision to enter the contract solely on their contents. |
Clause 9(c) and 9(d) | Fujifilm is given significant caps, reductions or limitations on its total liability, but the customer is required to pay termination payments without any such reduction, cap or limitation. Subject to any rights of the customer which cannot be excluded, it includes a limitation period on the customer of six months. |
Clause 11(a) | Fujifilm is not liable to the customer for any delay or non-performance of its obligations arising from a defined force majeure event (the definition of which includes actions by third party suppliers), but there is no such protection for the customer. |
Clause 11(b) | The customer must not assign or transfer the contract or any benefit or right under it to another company but Fujifilm can assign the contract to another company without notice. |
Clause 11(c)(ii) | Subject to any rights of the customer which cannot be excluded, the customer agrees that it has not relied upon any representation made by Fujifilm not set out in the contract. |
ANNEXURE C
Particular Business Unfair Terms
No. | A Business Name of Party to the Contract | B Contract Type | C Version | D Date entered into | E Unfair Terms included in this Contract |
1. | Rex Brock Pty Ltd t/a Westminster Printing (ABN 17 009 675 745) | Preferred Customer Rental Agreement | 7.1A | 28/11/2016 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
2. | ABF Print Pty Limited (ABN 97 001 744 903) | Software Licence and Support Services Agreement | 7.3 | 9/06/2017 | Unilateral Variation Terms – clauses 2, 8.6 and 10.3 Automatic Renewal Terms – clauses 5 and 7.2 Extraneous Documents Term – clause 2 Liability Limitation Terms – clauses 4, 8.5, 9.2(iii), 9.3 and 12.9 Disproportionate Termination Term – clauses 10, 10.2 and 10.4 Termination Payment Terms – clauses 10.5 and 10.6 Irrevocable Offer Term – clause 1.1 Non-reciprocal Obligation Terms – clauses 12.5 and 12.6 |
3. | Hello Future Pty Ltd | Rental Agreement | 7.2 | 6/09/2017 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Terms – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
4. | RC & TJ Sander (ABN 86 371 869 893) t/a The Office Shop - Kadina | Fixed Lease Rental Agreement | 7.2 | 17/12/2019 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(c) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) End of Contract Period Terms – clauses 2(b) and 3(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
5. | Rainbow Education Ryde Pty Ltd (ABN 11 634 644 189) | Fixed Lease Rental Agreement | 7.3 | 27/02/2020 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(c) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) End of Contract Period Terms – clauses 2(b) and 3(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
6. | My Vet Animal Clinic Pty Ltd (ABN 20 160 033 974) | Docurent Agreement | 7.3 | 19/12/2019 | Unilateral Variation Terms – clauses 4(a)(vi), 7 and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clause 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
7. | My Vet Animal Clinic Pty Ltd (ABN 20 160 033 974) | Preferred Customer Rental Agreement | 7.3 | 13/08/2020 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
8. | Label Press QLD Pty Ltd (ABN 52 100 036 511) | Fixed Term Rental Agreement | 7.2 | 05/06/2019 | Unilateral Variation Terms – clauses 4(a)(vi), 7 and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
9. | Brian Mitchell Advertising and Marketing Pty Ltd (ACN 614 914 402) | Preferred Customer Rental Agreement (Interest Free Promotion) | 7.2 | 22/08/2017 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
10. | Manly Bowls Club Inc (ABN 85 807 511 946) | Documation Agreement | 7.2 | 18/09/2019 | Unilateral Variation Terms – clauses 4(a)(vi), 7 and 9(f) Automatic Renewal Term – clause 2(c) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
11. | Aluminium Trade Centre Pty Ltd (ACN 155 890 467) | Documation Agreement | 7.3 | 13/12/2019 | Unilateral Variation Terms – clauses 4(a)(vi), 7 and 9(f) Automatic Renewal Term – clause 2(c) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
12. | Hannah Zev Holdings Pty Ltd ATF The Colormaker Industries Trust | Preferred Customer Rental Agreement | 7.2 | 27/11/2019 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 4(a)(ii), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Term – clause 9(d) |
13. | Penrose Pty Ltd t/a Smithton Travel Centre | Minimum Term Rental Agreement | 3.0 | 14/05/2019 | Automatic Renewal Term – clause 4(b) Extraneous Documents Term – clause 6(a)(iv) and 6(a)(v) Liability Limitation Terms – clauses 6(a)(iii), 8(a)(iii), 9(a)(vi), 9(c), 9(d) and 11(c)(ii) Disproportionate Termination Term – clause 4(d) Termination Payment Terms – clauses 4(e)(ii) and 4(f) Irrevocable Offer Term – clauses 2(a) and 2(b) Non-reciprocal Obligation Terms – clauses 11(a) and 11(b) |
14. | Penrose Pty Ltd t/a Burnie Travel Centre | Minimum Term Rental Agreement | 3.0 | 14/05/2019 | Automatic Renewal Term – clause 4(b) Extraneous Documents Term – clause 6(a)(iv) and 6(a)(v) Liability Limitation Terms – clauses 6(a)(iii), 8(a)(iii), 9(a)(vi), 9(c), 9(d) and 11(c)(ii) Disproportionate Termination Term – clause 4(d) Termination Payment Terms – clauses 4(e)(ii) and 4(f) Irrevocable Offer Term – clauses 2(a) and 2(b) Non-reciprocal Obligation Terms – clauses 11(a) and 11(b) |
15. | Penrose Pty Ltd t/a Burnie Travel Centre | Minimum Term Rental Agreement | 3.0 | 15/09/2020 | Automatic Renewal Term – clause 4(b) Extraneous Documents Term – clause 6(a)(iv) and 6(a)(v) Liability Limitation Terms – clauses 6(a)(iii), 8(a)(iii), 9(a)(vi), 9(c), 9(d) and 11(c)(ii) Disproportionate Termination Term – clause 4(d) Termination Payment Terms – clauses 4(e)(ii) and 4(f) Irrevocable Offer Term – clauses 2(a) and 2(b) Non-reciprocal Obligation Terms – clauses 11(a) and 11(b) |
16. | Mather Architecture Pty Ltd | Purchase Agreement | 7.2 | 08/05/17 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10. 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Terms – clauses 9(b) and 9(d) |
17. | R.D. Gossip Pty Ltd | Purchase Agreement | 7.3 | 26/06/20 | Unilateral Variation Terms – clauses 4(a)(vi), 7, 9(c) and 9(f) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(b), 9(i), 11(b)(v), 11(c) and 13(h) Disproportionate Termination Term – clauses 10, 10(b) and 10(c) Termination Payment Terms – clauses 10(d) and 10(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 13(d) and 13(e) Unfair Payment Terms – clauses 9(b) and 9(d) |
18. | The Collaborative Event Design and Management Pty Ltd | Support Services Agreement | 7.2 | 29/09/2019 | Unilateral Variation Terms – clauses 4(a)(vi), 7(c) and 7(e) Automatic Renewal Term – clause 2(b) Extraneous Documents Term – clause 4(a)(vi) Liability Limitation Terms – clauses 3(a), 7(h), 9(b), 9(c) and 10(h) Disproportionate Termination Term – clause 8 Termination Payment Terms – clauses 8(d) and 8(e) Irrevocable Offer Term – clause 1(a) Non-reciprocal Obligation Terms – clauses 10(d) and 10(e) |
ANNEXURE D
Compliance Program
Pursuant to s 232 of the ACL, s 12GD of the ASIC Act and s 23 of the FCA Act, Fuji shall:
1. within 90 days of this order, establish and implement a compliance program (Compliance Program) to be undertaken by each employee of FBAU or FLAU and any other person involved in FBAU’s business or FLAU’s business who is involved in offering, drafting, negotiating, and enforcing contracts between customers and FBAU or FLAU, being a program designed to minimise FBAU’s and FLAU’s risk of future use, application or reliance on unfair contract terms (including the terms declared to be unfair contract terms in these orders) in standard form contracts that are small business contracts under the ACL or the ASIC Act, including in the Captured Contracts;
2. for a period of three years from the date of this order, maintain and continue to implement the Compliance Program;
3. at its own expense, cause annual reviews (Review) to be carried out in accordance with each of the following requirements for a period of three years from the date of this order:
(a) Scope of the Review – the purpose of the Review is to:
(i) assess the efficacy of Fuji’s Compliance Program insofar as that program is designed to minimise FBAU’s and FLAU’s risk of future use, application or reliance on unfair contract terms (including the terms declared to be unfair contract terms in these orders) in standard form contracts that are small business contracts under the ACL or the ASIC Act;
(ii) identify:
A. the contracts used by Fuji, including its employees, officers, agents and dealers acting on Fuji’s behalf, when entering into standard form contracts with small business customers;
B. whether those contracts contain any terms declared to be unfair terms in these orders; and
C. the steps taken by Fuji in the preparation of those contracts to minimise FBAU’s and FLAU’s risk of those contracts containing terms declared to be unfair contract terms in these orders.
The Review shall be broad and sufficiently rigorous to provide Fuji and the ACCC with evidence as to the matters set out above.
(b) Independence of Reviewer – Fuji shall retain for the purpose of conducting the Reviews a suitably qualified, independent compliance professional with expertise in matters arising under the ACL (the Reviewer). The Reviewer will qualify as independent on the basis that he or she:
(i) has not acted for Fuji in the implementation or maintenance of the Compliance Program;
(ii) is not a present or past employee or director of Fuji;
(iii) has not acted and does not act for Fuji in any matters concerning alleged contraventions of the ACL, in the preparation of any standard form contracts used by Fuji with small business customers and in enforcing any standard form contracts on behalf of Fuji as against small business customers;
(iv) has not and does not act for or consult to Fuji or provide other services on matters concerning alleged contraventions of the ACL other than as the Reviewer in a previous year; and
(v) does not have any significant shareholding or other interests in Fuji.
(c) Evidence – Fuji shall use its best endeavours to ensure that the Reviews are conducted on the basis that the Reviewer has access to all relevant sources of information in Fuji’s possession or control including without limitation access for the purposes of conducting the Review to:
(i) any officers, employees, representatives, agents and stakeholders of Fuji;
(ii) Fuji’s records relevant to the Compliance Program, including the company’s standard form contracts ; and
(iii) documents created by Fuji’s consultants or legal advisers (excluding documents subject to legal professional privilege) for use as training materials in the Compliance Program.
(d) Timing of Reviews – Fuji shall use its best endeavours to ensure that the first Review is completed within one year and one month of the date of this order coming into effect and that each subsequent Review is completed within one year thereafter.
(e) Reporting – Fuji shall use its best endeavours to ensure that the Reviewer sets out the findings of each Review in a report which provides particular and specific information regarding the scope of the Review and the effectiveness of Fuji’s Compliance Program including:
(i) details of the evidence gathered and examined during the Review;
(ii) the Reviewer’s opinion on whether Fuji has in place an effective Compliance Program that complies with the requirements detailed in paragraph 1 of this Annexure D;
(iii) details of the review conducted as to use of any of the terms declared to be unfair in these orders in Fuji’s standard form contracts and the steps taken to minimise that risk, being the matters referred to in sub-paragraph 3(a)(ii) of this Annexure D;
(iv) actions recommended by the Reviewer to ensure the continuing effectiveness of the Compliance Program;
(v) confirmation that any actual and potential inadequacies in Fuji’s Compliance Program have been brought to the attention of Fuji;
(vi) confirmation that the Reviewer has revisited any actual and potential inadequacies in the Compliance Program identified in any previous review and assessed how they have been addressed by Fuji;
(vii) any reservations that the Reviewer might have about the reliability and completeness of the information to which the Reviewer had access in the conduct and reporting of the Review; and
(viii) any comments or qualifications concerning the Review process that the Reviewer, in his or her professional opinion, considers necessary.
(the Review Report)
(f) Timing of Review Reports – Fuji will use its best endeavours to ensure that the Review Report is completed and provided to Fuji within one month of the conclusion of each Review. Fuji will retain a copy of the Review Report and cause a copy of the Review Report to be provided to the ACCC within 14 days of its receipt from the Reviewer.
(g) Recommendation – Fuji shall implement promptly, and with due diligence, any recommendations made by the Reviewer that are reasonably necessary to ensure that Fuji maintains and continues to implement the Compliance Program in accordance with the requirements of this order.
(h) Other matters – Fuji shall, at its own expense, if requested by the ACCC, provide copies of documents and information forming part of the Compliance Program and/or documents and information relevant to an issue considered in a Review Report including any standard form contracts used by Fuji with small business customers.
ANNEXURE E
Corrective Notice ordered by the Federal Court of Australia
Unfair contract terms contained in some of Fujifilm’s small business contracts
Following a settlement being reached between Fujifilm and the ACCC, the Federal Court has ordered, by consent, that Fujifilm Business Innovation Australia Pty Ltd (previously known as Fuji Xerox Australia Pty Limited) and Fujifilm Leasing Australia Ltd (previously Fuji Xerox Finance Limited) (together, Fujifilm), publish this notice.
Following action by the Australian Competition and Consumer Commission (ACCC) and a settlement being reached with Fujifilm, on [date] the Federal Court of Australia, by consent, found that a number of our agreements with small business customers contain unfair contract terms. This means that those terms are void and cannot be enforced by us.
Who is affected?
The decision of the Court relates to signed contracts with our customers which meet the following criteria:
• the contract is one of the types of contracts listed below, and
• the business is a ‘small business’, which means it had less than 20 employees at the time the contract was signed (including any casual employees employed on a regular and systematic basis), and
• either the upfront price payable under the contract does not exceed $300,000 or the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000, and
• the contract was signed or renewed after 12 November 2016.
We will be writing to all our customers who may be affected by [date]. If you think you may be affected and you have not been contacted by us, please email us at [insert email].
Types of terms
The types of terms which have been declared unfair and void include the following:
• Automatic renewal terms: permit Fujifilm to renew the contract for a further period unless customers cancel the contract a certain number of days before the end of the contract term.
• Disproportionate termination terms: allows Fujifilm to terminate the contract in a significantly wider range of circumstances than those which allow the customer to terminate the contract, if any.
• Liability limitation terms: limit Fujifilm’s liability or require the customer to indemnify Fujifilm without corresponding rights for the customer.
• Termination payment terms: require customers to pay extensive exit fees to Fujifilm in the event the contract is terminated, including certain charges which Fujifilm can set unilaterally.
• Unfair payment terms: require customers to pay Fujifilm for software licensed pursuant to the agreement irrespective of whether Fujifilm has delivered the software and, when goods are purchased, to pay the purchase price prior to delivery.
• Unilateral variation terms: permit Fujifilm to unilaterally vary some terms of the contract including the charges and terms contained in documents other than the signed contract.
Contracts
The unfair terms were contained in the following types of Fujifilm’s contracts:
1. Software Licence and Support Services Agreement – versions 7.3 and 7.4 [Hyperlink to table of terms]
2. Support Services Agreement – versions 7.2 and 7.3 [Hyperlink to table of terms]
3. Rental Agreement – versions 7.2 and 7.3 [Hyperlink to table of terms]
4. Purchase Agreement – versions 7.2 and 7.3 [Hyperlink to table of terms]
5. Fixed Lease Rental Agreement – versions 7.2 and 7.3 [Hyperlink to table of terms]
6. Preferred Customer Rental Agreement – versions 7.1A, 7.2 and 7.3 [Hyperlink to table of terms]
7. Preferred Customer Rental Agreement (Interest Free Promotion) – version 7.2 [Hyperlink to table of terms]
8. Docurent Agreement – versions 7.2 and 7.3 [Hyperlink to table of terms]
9. Fixed Term Rental Agreement – versions 7.2 and 7.3 [Hyperlink to table of terms]
10. Documation Agreement – versions 7.2 and 7.3 [Hyperlink to table of terms]
11. Minimum Term Rental Agreement – version 3.0 [Hyperlink to table of terms]
Customers can locate the version number of their contract at the bottom of the front page of their contract.
Further Information
For further information, see the following links:
• the ACCC’s media release [hyperlink]
• the judgment of the Federal Court of Australia [hyperlink]
ANNEXURE F
STEWART J:
Introduction
1 The respondents, which I will refer to as Fuji, carry on business supplying office equipment such as printers and photocopiers by way of sale, lease or license. They also provide associated software and ongoing support services. The applicants are the Australian Competition and Consumer Commission (ACCC) and Mr Rami Greiss, an employee of the ACCC who holds delegations from the Australian Securities and Investments Commission made under s 102 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) that enable him to bring this proceeding under that Act. I will refer to the applicants in the singular as the ACCC.
2 The ACCC commenced this proceeding against Fuji seeking declaratory and injunctive relief, and alleging that various of the template contracts pursuant to which Fuji provides its products and services contain unfair terms within the meaning of s 24 of the Australian Consumer Law (ACL), being Sch 2 of the Competition and Consumer Act 2010 (Cth), and/or s 12BG of the ASIC Act.
3 In October 2021, the parties were ordered to mediation. That mediation was ultimately successful and resulted in agreement as to the relief the parties submit should be made to resolve the proceeding. For the reasons that follow, I am satisfied that the consent orders should be made (although I have restructured them slightly). The consent orders are sought on the basis of a statement of agreed facts from which the following is drawn.
Unfair contract terms
4 Between November 2016 and December 2021, Fuji used the 21 template contract forms identified as “Captured Contracts” in notation A to the orders as a basis for entering into contracts with customers. Some 34,000 contracts were entered into or renewed using the Captured Contracts, some of which are still in force. Each contract entered into using a Captured Contract is a standard form contract for the purposes of s 23(1)(b) of the ACL or ss 12BF(1)(b) and 12BK of the ASIC Act.
5 Fuji used the Captured Contracts to enter into contracts:
(a) with customers who were businesses that, at the time the contract was entered into, employed fewer than 20 people; and
(b) with an upfront price payable of:
(i) less than $300,000 where the contract’s duration was 12 months or less; or
(ii) less than $1,000,000 where the contract’s duration was more than 12 months.
That is to say, it is agreed that Fuji used the Captured Contracts to enter into “small business contracts” within the meaning of s 23(4) of the ACL and s 12BF(4) of the ASIC Act.
6 The parties made detailed submissions as to the terms said to be unfair in the Captured Contracts. They say that each of the clauses identified in declaration 1 and set out in annexure B of the orders, either by itself or read in conjunction with other clauses, is an unfair term for one or more of the following reasons.
(1) It allows Fuji to unilaterally vary either the price charged to the customers and/or the rights and obligations between Fuji and the customer.
(2) It provides for automatic renewal of the contract unless the customer gives notice to cancel the contract in circumstances where there is no obligation on Fuji to notify the customer that the renewal will occur.
(3) It incorporates additional contractual terms by reference to one or more extraneous documents, which documents are difficult for the customer to locate or identify, and which Fuji can unilaterally vary with no obligation to give notice of the variation.
(4) It limits Fuji’s liability for any delay in supplying or delivering equipment to the customer in circumstances where the customer has no right to be excused from charges payable for the period of the delay.
(5) It provides that the customer must pay Fuji all costs and expenses Fuji incurs in exercising its rights under the contract on a full indemnity basis, in circumstances where there is no corresponding right on the part of the customer and where there is no requirement on Fuji to minimise its costs.
(6) The customer warrants by the term that it has read each document forming part of the contract, including extraneous documents that Fuji may not have provided, and that it enters into the contract solely on the contents of the contract, thereby purporting to exclude any liability on the part of Fuji for pre-contractual representations.
(7) It provides a significant cap, reduction or limitation on Fuji’s total liability to the customer and excludes a claim for consequential loss in circumstances where the customer’s liability has no limit.
(8) It requires the customer to indemnify Fuji for loss or damage to the products, including all associated costs, with exclusions only for limited wear and tear and anything directly attributable to Fuji’s negligence, thereby requiring the customer to indemnify Fuji for damage caused by third parties, or accidentally or indirectly by Fuji.
(9) It entitles Fuji to suspend the provision of services where the customer breaches any term while still requiring the customer to pay for services that are suspended.
(10) It entitles Fuji to terminate the contract immediately on notice and for cause if the customer breaches any term with no corresponding right of the customer and no right for the customer to remedy the breach.
(11) It provides for payments to Fuji upon Fuji exercising a right to terminate, including payments for the remaining term of the contract in circumstances where the customer receives nothing in return and forfeits any prepayments.
(12) It provides that, at the end of the minimum contract term, the customer must either:
(a) stay in possession of the equipment and pay Fuji the residual value, without receiving title to the equipment; or
(b) pay Fuji the shortfall between the residual value and market value as determined by Fuji.
(13) It provides that, by signing and returning the contract to Fuji, the customer makes an irrevocable offer to acquire the goods and services but that Fuji is not bound until the customer has been advised that the contract has been accepted or until Fuji commences providing services – leaving the customer bound yet without the required goods or services for an indefinite period.
(14) It provides that Fuji can invoice the customer regardless of whether the goods and services the subject of the contract have been provided.
7 For the reasons carefully and comprehensively set out in the parties’ submissions, I accept that the clauses identified by the parties in Fuji’s identified contracts are unfair terms when those contracts are used in circumstances that mean that they are small business contracts. Given that there are nearly 300 individual terms that are impugned, and that they are unfair in the context of the whole of each contract in which they appear and cannot be assessed in isolation, it would be a substantial task to set out the reasoning in respect of each term and little would be gained from doing so. See Australian Energy Regulator v EnergyAustralia Pty Ltd [2022] FCA 644. The parties have reached resolution on those questions and the explanation appears in their submissions. The remaining issue is to consider why the relief they seek should be granted.
Relief
8 The applicable principles with regard to granting relief where the parties are in agreement as to its terms are set out by Gordon J in ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [70]-[79]. In summary, the Court is entitled to treat Fuji’s consent as an admission of all facts necessary or appropriate to the granting of the relief sought. The Court, however, must be satisfied that it has the power to make the proposed orders and that they are appropriate. It should exercise restraint in scrutinising the proposed terms, particularly where the parties are represented.
9 Further, in respect of declarations, the Court must be satisfied that the question is real and not hypothetical or theoretical, the applicant has a real interest in raising it and there is a proper contradictor: Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 437-8 per Gibbs J.
Declarations
10 Declaration 1 of the orders applies to the unfair terms insofar as they are contained in “any small business contracts within the meaning of s 23(4) of the ACL or s 12BF(4) of the ASIC Act entered into, or renewed, after 12 November 2016 … made using any of the Captured Contracts”. Declaration 2 of the orders applies to unfair terms in identified example contracts between Fuji and certain customers and declares those identified terms to be void.
11 The way in which declaration 1 operates, namely in respect of terms in unidentified contracts, gives rise to a question of power that was raised by Fuji earlier in this proceeding by way of an interlocutory application: see ACCC v Fuji Xerox Australia Pty Ltd [2021] FCA 153. Fuji had applied for summary dismissal on the ground, inter alia, that the Court only had power in relation to identified contracts. It had sought to distinguish the present proceeding from other cases where the Court granted relief in terms similar to those now sought by consent on the basis that, in those other cases, the orders were sought by consent: see ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224; ASIC v Bendigo and Adelaide Bank Ltd [2020] FCA 716.
12 The parties are at present unable to identify how many of the 34,000 contracts entered into or renewed are small business contracts within the meaning of the relevant provisions. That is because Fuji makes no enquiries of its customers concerning employee numbers. Although not obliged to do so by the ACL or the ASIC Act, Fuji has undertaken to remedy that lack of information by giving the undertakings recorded in paragraphs B-E of the orders, the purpose of which is to enable it to identify which of its contracts are small business contracts and, as such, contain unfair terms.
13 That Fuji cannot at present identify which of its contracts other than those the subject of declaration 2 are small business contracts is in any event of no moment. That is because there is now no dispute that the contracts entered into using the Captured Contracts are standard term contracts and nor is it disputed that many of those contracts constitute small business contracts. Thus, the distinguishing features identified by Fuji at the hearing of its interlocutory application have fallen away and the orders are sought by consent.
14 Given that the Court has previously made declarations concerning unidentified contracts, I am satisfied that the Court has power to make the declarations. I am also satisfied that the declarations are appropriate; they serve to record the Court’s disapproval of the conduct, vindicate the ACCC’s action and assist it in carrying out its duties: see JJ Richards at [10].
15 Further, the three requirements set out by Gibbs J in Jododex are satisfied. As to the first, there is a significant legal controversy being resolved, namely whether certain conduct of Fuji contravenes the ACL or the ASIC Act; as to the second, there can be no doubt that the ACCC as regulator has a real interest in raising the question; and as to the third, Fuji is a proper contradictor as the terms of its contracts are the subject of the declarations and it has an interest in opposing the relief.
Injunctions
16 Turning now to the injunctive relief, order 3 restrains Fuji from relying on any small business contract clauses that are unfair terms and order 4 restrains Fuji from entering into any further small business contracts using the Captured Contracts containing the unfair terms. As I am satisfied that Fuji has engaged in contravening conduct, I am satisfied that the Court has the power to make the injunctions under s 232(1) of the ACL and s 12GD(1) of the ASIC Act. In any event, s 233 of the ACL and s 12GD(2) of the ASIC Act provide that the Court may grant an injunction by consent whether or not it is satisfied as required under s 232(1) of the ACL or s 12GD(1) of the ASIC Act. I am also satisfied that the injunctions are appropriate to restrain further contraventions of the ACL and ASIC Act.
Corrective notice and communications
17 Order 5 provides for the publication of a corrective notice on Fuji’s websites. Order 6 requires that Fuji send communications to each counterparty of the example contracts containing identified unfair terms informing those persons that certain terms of their agreement have been declared void and unenforceable. Order 7 requires that Fuji send communications to each person it is currently suing who is or was a party to a Captured Contract. These orders are sought under s 232 of the ACL and s 12GD of the ASIC Act although they equally may be sought under s 246 of the ACL and s 12GLA of the ASIC Act: see ACCC v Aveling Homes Pty Ltd [2017] FCA 1470 at [58]-[60].
18 The purpose of the notice and the communications is to maximise the likelihood that all affected customers and indeed potential customers will become aware of the Court’s orders. They also aid deterrence in preventing repetition of contravening conduct, not only by Fuji, but also by other businesses in the same industry. I am satisfied that the orders are appropriate.
Compliance program
19 Order 8 requires Fuji to implement the agreed compliance program set out in Annexure D to the orders. Although sought under s 232 of the ACL and s 12GD of the ASIC Act, the duration of the program is limited to three years as provided by s 246(2)(b) of the ACL and s 12GLA(2)(b) of the ASIC Act. The purpose of the compliance program is to reduce the risk of any future use of or reliance on unfair contract terms by Fuji. The terms of the agreed program also provide for annual independent reviews of the efficacy of the program. I am satisfied that the order is appropriate.
Costs
20 The parties have agreed that Fuji should pay the ACCC’s costs fixed in the amount of $250,000. There is no reason that the order should not be made.
Conclusion
21 In the result, I am satisfied that there should be orders substantially in accordance with those agreed by the parties. I will also direct that officers of the Registry provide electronic copies of the parties’ submissions and agreed facts upon request by any person. The parties accept that that is an appropriate course.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. |
Associate:
