1. Definitions
In these standard terms and conditions ("Terms"), "EVO" means Evolution Systems Pty Limited; "Client" means the person(s), company or firm identified as the client on the invoice or Proposal; "Proposal" means the proposal and attachments issued to the Client by EVO, providing a quotation and describing the Goods and Services being offered; "Goods" means the products to be supplied to the Client by EVO as described in the Proposal; and "Services" means the services to be supplied to the Client by EVO as described in the Proposal.
2. Incorporation
2.1 These Terms govern all contracts for the sale of the Goods and/or supply of the Services by EVO to the Client and, together with the Proposal, constitute the entire agreement in connection with the sale of the Goods and/or supply of the Services agreed between EVO and the Client. All other terms and conditions, express or implied, are excluded to the fullest extent permitted by law, including without limitation, the terms and conditions of the Client.
2.2 These Terms shall not be varied except by written agreement of the parties.
2.3 These Terms supersede any terms and conditions which have previously governed a contract for the sale of goods and/or supply of services by EVO to the Client.
2.4 These Terms will prevail to the extent of any inconsistency between the Proposal and these Terms.
3. Validity Period
The Proposal is a mere invitation to treat and does not constitute a contractual offer. The Proposal is valid for a period of twenty five (25) days after issue, but EVO may vary or withdraw the Proposal at any time.
4. Supply and Orders
4.1 EVO agrees to supply the Goods and/or Services to the Client on these Terms.
4.2 Orders for Goods and/or Services shall not be binding upon EVO until accepted in writing by an authorised employee of EVO and a binding contract for the sale of the Goods and/or the supply of the Services comes into existence at this time.
4.3 Once the Proposal has been accepted by EVO, the Client may not alter or modify the Proposal without the prior written consent of EVO.
5. Fees and Payment
5.1 The Client agrees to pay to EVO the fees set out in the Proposal.
5.2 Unless otherwise stated, all fees are exclusive of GST and any other taxes, duties or government charges that may be imposed or levied in Australia. The Client shall be liable for all such charges.
5.3 Invoices must be paid within 14 days from the date of invoice. Goods and Services will be invoiced upon delivery. In the case of projects with a duration of greater than four (4) weeks, EVO reserves the right to submit an invoice every four (4) weeks following the commencement of the project.
5.4 All payments set out in an invoice must be paid without deduction or set off of any kind.
5.5 Time of payment is of the essence. Without prejudice to any other remedy, EVO may charge interest on any overdue payments at an annual rate equal to two per cent (2%) above the rate notified by National Australia Bank from time to time as being that bank's indicator lending rate, such interest to accrue from day to day.
6. Delivery and Risk
6.1 EVO will use its reasonable endeavours to deliver the Goods and/or the Services to the Client by the dates set out in the Proposal, but does not guarantee those dates and EVO shall not be liable to the Client for any loss or damage whatsoever should EVO be delayed or prevented from delivering the Goods and/or supplying the Services, or otherwise performing any of its contractual obligations due to any cause or circumstances of any kind whatsoever.
6.2 Risk in the Goods will pass to the Client upon the Goods being placed upon the vehicle which is to deliver the Goods to the Client.
6.3 Delivery charges incurred by EVO in delivering the Goods to the Client will be invoiced to the Client unless agreed otherwise.
7. Title
7.1 EVO shall retain title to the Goods supplied to the Client until EVO has received payment in full for the Goods.
7.2 Where the Client has not fully paid EVO for the Goods, or the Client enters into bankruptcy, liquidation, has a receiver or manager appointed over all or any part of its assets, enters into administration or becomes insolvent, the Client may not sell, use or part with possession of the Goods, and EVO shall be entitled, without prejudice to EVO's other remedies, to recover and repossess the Goods and to enter any premises without notice for this purpose.
8. Acceptance and Returns
8.1 The Client will notify EVO in writing of any issue with the Goods and Services within seven (7) days of delivery of the relevant Goods or performance of the relevant Services. The Client will be deemed to have accepted the Goods and/or Services if such written notice is not received by EVO within this time.
8.2 The Client may return any Goods supplied for a credit against subsequent orders, within seven (7) days of delivery, provided it has the written approval of EVO, the Goods are returned in their original condition, and the Client agrees to pay to EVO, a handling charge equal to 10% of the price paid or payable for the Goods.
9. Termination
9.1 Any contract for the supply of the Goods and/or the Services may be terminated by written agreement between the parties before the supply has been made provided that the Client agrees to pay any cancellation charge, being a genuine pre estimate of EVO's loss as a result of the termination and as determined and specified by EVO.
9.2 EVO reserves the right to immediately terminate or suspend EVO's performance of the whole or any outstanding part of any agreement for the supply of the Goods and/or the Services, without incurring any liability to the Client in the event that:
a) the Client fails to take delivery of, or to pay for, the Goods and/or the Services by the due date, or otherwise breaches the Terms;
b) the Client enters into bankruptcy, liquidation, has a receiver or manager appointed over all or any part of its assets, enters into administration or becomes insolvent; or
c) Contractual performance by either EVO or the Client is delayed or prevented due to any cause or circumstance.
10. Warranty
10.1 All of the Goods supplied under this agreement by EVO that are not manufactured or developed by EVO are supplied by EVO to the Client on an "as is" basis without a warranty of any kind other than any standard warranty given by the manufacturer or developer to the Client.
10.2 EVO warrants that if the Goods include any software developed by EVO then, for ninety (90) days from delivery, such software will perform substantially in accordance with the functions described in the specification for that software, when operated properly and in the manner specified in that specification. Further, in respect of such software, EVO warrants that from ninety (90) days from delivery, the media on which the software is provided will be free from defects in workmanship and materials during normal use and that it has tested for viruses in the software using commercially available virus checking software, consistent with current industry practice.
10.3 EVO warrants to perform any part of the Services that it will be carrying out itself with reasonable care and skill. EVO gives no warranty in respect of any part of the Services that will be supplied by a third party to the Client.
10.4 The Client acknowledges that it has assessed for itself the suitability of the Goods and Services for its requirements. EVO does not warrant that the Goods and/or the Services will be suitable for such requirements.
10.5 The Client's sole remedy for breach of any of the warranties in this clause 10, is to require EVO to repair or replace (at EVO's option) the defective item, or repeat the performance of the relevant part of the Services, within a reasonable time at no charge to the Client, provided that any such defect is notified to EVO during the applicable warranty period. The Client shall provide all information as may be reasonably necessary to assist EVO in resolving the defective item or Service including, without limitation, sufficient information to enable EVO to recreate the defect.
10.6 If EVO is unable to remedy such breach notified to it pursuant to clause 10.5 within a reasonable time, EVO may terminate the agreement by notice in writing to the Client and EVO shall reimburse any fees already paid by the Client in respect of such defective Goods or Services.
10.7 The warranties in this clause 10 shall not apply if:
a) the Client makes or causes to be made any modifications to the Goods and/or the Services without EVO's consent;
b) the Goods are used in combination with any software, hardware or other materials not supplied by, or notified to and authorised by, EVO; or
c) the Goods are used in a manner for which they were not intended, or used other than as permitted under these Terms.
11. Limitation of Liability
11.1 Subject to clause 11.2, clause 10 sets out the full extent of EVO's obligations and liability to the Client with respect to the Goods and/or the Services supplied pursuant to these Terms, and all other terms, conditions, warranties and representations that might otherwise be implied by statute or otherwise, or hereby expressly excluded.
11.2 EVO does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between EVO and the Client by law, including liability under the Trade Practices Act 1974 (Cth) or equivalent state legislation. Where such statutory provisions apply, to the extent to which EVO is entitled to do so, EVO's liability shall be limited at its option to:
(a) in the case of the supply of the Goods, or the replacement of the Goods or supply of equivalent goods, or the payment of the cost of replacing the Goods or acquiring equivalent goods, or the payment of the cost of having the Goods repaired, or the repair of the Goods; and
(b) in the case of the Services, the resupply of the Services, or the payment of the cost of having the Services resupplied.
11.3 EVO will not be liable to the Client for any indirect or consequential damages including loss of profits or loss of data, arising out of or in relation to the supply of the Goods and/or Services, howsoever caused, and whether or not EVO has been advised of the possibility of such loss.
11.4 To the extent permitted by law, EVO's liability arising out of or in connection with the Proposal or these Terms, or any collateral contract, whether in contract, tort or otherwise, shall be limited to an amount equal to the amount paid by the Client to EVO under these Terms.
12. Intellectual Property
The Client acknowledges that any and all intellectual property rights which subsist in or arise in connection with the Goods or the Services belong to EVO, or where the Goods and/or the Services are supplied by a third party, such rights are owned by that third party supplier, and the Client shall have no right in or to the Goods and/or the Services, save the rights as permitted by these Terms.
13. License of Software
Where the Goods supplied under these Terms include software, such software will be licensed to the Client on the terms of the licence agreement provided with such software or as otherwise agreed between EVO and the Client in writing. The rights of the Client under such licences will only commence upon the payment of all fees due to EVO in respect of such licences.
14. Dispute Resolution
14.1 Subject to clause 14.2, any dispute arising in connection with these Terms shall first be referred to a senior executive of each party, who the parties will procure to endeavour to resolve the dispute within twenty (20) business days or such other period as may be agreed between those parties. If the dispute cannot be resolved within this time, then the parties agree to submit the dispute to arbitration, in accordance with and subject to, The Institute of Arbitrators and Mediators Australia Rules for the Conduct of Commercial Arbitration.
14.2 A party may commence Court proceedings relating to any dispute arising out of these Terms, at any time, where that party seeks urgent interlocutory relief.
15. General
15.1 All clerical errors are subject to correction and shall not bind EVO.
15.2 The invalidity of unenforceability of any provision of these Terms shall not affect the validity or enforceability of the remaining provisions.
15.3 EVO's failure to enforce at any time or for any period of time, any of these Terms, shall not constitute a waiver of such term and shall in no way affect EVO's right later to enforce these Terms.
15.4 All notices in relation to these Terms must be in writing. A letter is taken to be received on the third day after posting. A facsimile is taken to be received at the time shown on a complete transmission report. An email is taken to be received at the time shown on a delivery confirmation report generated by the sender's email system.
15.5 These Terms are governed by the laws of the State of New South Wales and the parties agree to submit to the non exclusive jurisdiction of the Courts of New South Wales.
15.6 The relationship of the parties is that of independent contractors dealing at arm's length. Nothing in these Terms shall create or be deemed to create the relationship of employer and employee.
15.7 The Client may not assign, sublicense, charge or otherwise deal with any of its rights or obligations under these terms without the prior written consent of EVO, which may be granted or withheld by EVO in its absolute discretion.