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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 12th August 2022 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 10 November 2022. If you think you may be affected and you have not been contacted by us, please email us at shm-fbau-accc-help@fujifilm.com


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

  2. Support Services Agreement – versions 7.2 and 7.3 

  3. Rental Agreement – versions 7.2 and 7.3

  4. Purchase Agreement – versions 7.2 and 7.3

  5. Fixed Lease Rental Agreement – versions 7.2 and 7.3

  6. Preferred Customer Rental Agreement – versions 7.1A, 7.2 and 7.3

  7. Preferred Customer Rental Agreement (Interest Free Promotion) – version 7.2

  8. Docurent Agreement – versions 7.2 and 7.3 

  9. Fixed Term Rental Agreement – versions 7.2 and 7.3

  10. Documation Agreement – versions 7.2 and 7.3 

  11. Minimum Term Rental Agreement – version 3.0


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: