Reseller Terms and Conditions
These Terms and any document(s) referred to in them constitute the entire agreement about e-Volve Corporate Technology’s supply of the Products and Services to Customers and supercedes all prior understandings, arrangements and agreements.
Words with special meanings are defined in clause 1. A reference in these Terms to:
a. the singular includes the plural and vice versa; and
b. the word “including” means “including, but not limited to,” and the word “includes” means “includes, without limitation,”.
In these Terms:
“Customer” means the person, business or company that is the purchaser of the Products;
“e-Volve” means e-Volve Corporate Technology (ABN 43 093 057 624);
“Products” means the products (including software) supplied to Customer by e-Volve and described in e-Volve’s invoice; and
“Sales Contract” means any sales contract entered into by Customer and e-Volve in respect of the Products and Services supplied to Customer in which these Terms are deemed to be incorporated.
a. All orders for Products placed by the Customer:
i. must be made in accordance with e-Volve’s order policy as amended by e-Volve from time to time, the current version of which is set out in these Terms and Conditions under Order Policy; and
ii. are subject to acceptance by e-Volve, and no order will be deemed to have been accepted by e-Volve unless such acceptance has been confirmed in writing by an authorised representative of e-Volve to Customer.
b. e-Volve may reject any order placed by Customer if there is an insufficient supply of Products which prevents e-Volve from being able to fulfil such order.
c. e-Volve will not be bound by any terms attaching to Customer’s order and, unless those terms are expressly agreed by an authorised representative of e-Volve, Customer agrees that those terms are excluded.
a. The price of the Products will be e-Volve’s quoted price.
b. Payment terms are strictly 14 days from the date of the invoice unless agreed otherwise by e-Volve or its authorised representative. If Customer fails to make payment in accordance with this clause 3(b) after demand for payment by e-Volve, all amounts owing by Customer to e-Volve on any account will immediately become due and payable.
c. e-Volve may, in its sole discretion:
i. suspend the provision of credit to Customer until all amounts owing are paid for in full; and
ii. from time to time and at any time, vary or cancel any credit facility it makes available to Customer.
d. Customer will be liable to pay interest on any overdue amount at the annual rate of 2% above the prevailing base lending rate quoted by the Commonwealth Bank. Interest will accrue daily from the date payment became overdue until e-Volve has received payment of the overdue amount, together with any interest accrued.
e. Unless stated otherwise in these Terms (or in writing by e-Volve’s authorised representative), all prices quoted for Products are exclusive of all taxes, handling, delivery, agents’ charges and any other charge, duty or impost.
f. Customer must pay e-Volve, on demand, any tax (other than income tax) payable under these Terms, any matter or thing done under these Terms or any payment, receipt or other transaction contemplated by these Terms, including any goods and services or value-added tax, customs duty, sales tax, excise duty, stamp duty, other duty, governmental charge, fee, levy or impost, together with any fine, penalty or interest payable because of a default by Customer.
g. Customer must pay to e-Volve any amount Customer must pay under clause 3(f) in full, despite any right of set-off that Customer may have.
h. Any amounts paid to e-Volve by Customer under this clause 3 must leave in the hands of e-Volve following payment of any relevant tax or other amount, the same amount, whether the tax or other amount is payable or not.
Delivery times advised to Customer are estimates only and e-Volve will not be liable for any loss, damage or delay suffered or incurred by Customer or its customers arising from late or non-delivery of the Products.
5. Part deliveries
e-Volve may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products upon these Terms.
a. To the extent that a Product supplied under these Terms is a software Product then, in addition to these Terms, that Product will be supplied subject to the terms and conditions of the relevant licence agreement applicable to it.
b. Software licence agreements may be packaged with the software, may be separately provided to Customer for execution or may require on-screen acceptance by Customer. Customer agrees to use the software Product in accordance with the terms and conditions of the relevant licence agreement.
c. Where the term “supply” is used in these Terms to refer to a software Product, such term means the sale and purchase of the licence to use that software Product.
7. Inspection and acceptance
a. in the case of all Products ordered (other than software Products), inspect such Products upon delivery to Customer’s premises; or,
b. in the case of software Products, test or inspect such software Products upon those Products being authorised by e-Volve for downloading by Customer, and must, within 7 days of delivery or downloading (as the case may be), give written notice to e-Volve of any matter or thing by which Customer alleges that the Products do not accord with Customer’s order. Failing such notice and to the extent permitted by law, the Products will be deemed to have been accepted by Customer.
8. Title and risk
a. Products supplied by e-Volve to Customer will be at Customer’s risk immediately upon delivery of the Products to a recognised carrier for transport to Customer or into Customer’s custody and control (whichever is the sooner).
b. Risk in the Products will remain with Customer at all times unless e-Volve retakes possession of the Products in accordance with clause 8(e)(ii).
c. Title in the Products supplied by e-Volve to Customer will not pass to Customer until those Products are paid for. Title to those Products which are software remains with e-Volve and/or the applicable third party licensor(s) at all times.
d. Until the Products have been paid for:
i. Customer must store the Products in such manner as to clearly indicate that they are the property of e-Volve; and
e. If Customer has breached these Terms or the terms of any relevant Sales Contract, Customer authorises e-Volve, at any time, to enter onto any premises upon which e-Volve’s Products are stored to enable e-Volve to:
i. inspect the Products; and/or
ii. reclaim the Products.
f. Customer agrees that the provisions of this clause 8 apply despite any arrangement under which e-Volve grants credit to Customer.
a. Customer must notify e-Volve in writing of any Products it wishes to return within 7 days from the date that those Products were received.
b. Returns will be subject to e-Volve’s returns policy as advised to Customer and amended by e-Volve from time to time, the current version of which is set out in these Terms and Conditions under Returns Policy.
c. Each claim for the return of Products by Customer will be dealt with in accordance with the Returns Policy. Any substitute Products to be shipped to Customer in accordance with the Returns Policy will be sent by e-Volve to Customer by ordinary freight pre-paid.
d. e-Volve will not be liable for any damage or defects in the Products that have been caused by the improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or unauthorised repair of e-Volve’s Products.
e. The provisions of this clause 9 do not extend to any Products which have been added to, or varied by, any person other than e-Volve.
10. Loss or damage in transit
e-Volve is not responsible for any loss or damage to Products in transit.
11. Force majeure
If the performance of e-Volve’s obligations under these Terms or any relevant Sales Contract is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of e-Volve, e-Volve will give notice of such cause to Customer and after 60 days from the receipt by Customer of such notice, either party may terminate the relevant Sales Contract without penalty.
12. Customer’s cancellation
a. Unless otherwise agreed in writing, Customer may not cancel an order which has been accepted by e-Volve.
b. If Customer’s right of cancellation is agreed to by the parties in writing, the right must be exercised by notice in writing from Customer to e-Volve not later than 7 days before the estimated date of shipment by the manufacturer or e-Volve (as the case may be).
c. Unless otherwise agreed between Customer and e-Volve, upon cancellation prior to shipment, any deposit paid by Customer will be forfeited to e-Volve.
13. Default of Customer
Without prejudice to any of e-Volve’s other rights under these Terms, if Customer fails to make any payment due to e-Volve under these Terms, e-Volve may, in its sole discretion, and without further liability to Customer:
a. refuse to make further supplies to Customer under the relevant Sales Contract; and/or
b. terminate the Sales Contract without notice.
a. e-Volve will notify Customer of any applicable manufacturers’ warranty in relation to the Products. To the extent permitted by law, e-Volve’s entire responsibility with respect to warranties for the Products is to pass on to Customer the benefit of any such warranties. Subject to clause 14(c), software Products are not warranted under these Terms. Such software Products are warranted in accordance with the relevant licence agreements that govern their use.
b. To the extent permitted by law, the manufacturers’ warranties referred to in clause 14(a) are in substitution for all other terms, conditions and warranties, whether implied by statute or otherwise (including implied warranties with respect to merchantability and fitness for purpose) and all such terms, conditions and warranties are expressly excluded.
c. Certain legislation may imply warranties or conditions or impose obligations upon e-Volve which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. These Terms must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which e-Volve is able to do so, its liability will be limited, at its option, to:
i. in the case of products: the replacement of the products or resupply of equivalent products; repair of the products; payment of the cost of replacing the products or acquiring equivalent products; or the payment of the cost of having the products repaired; and
ii. in the case of services: the supply of the services again; or the payment of the cost of having the services supplied again.
a. To the extent permitted by law, e-Volve will not be liable to Customer or any other person under any circumstances for any loss of use, profit, revenue, interest, goodwill or data, or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by Customer, whether such liability arises directly or indirectly as a result of:
i. any negligent act or omission or wilful misconduct of e-Volve or its employees or agents;
ii. the supply, performance or use of any Products or Services; or
iii. any breach by e-Volve of its obligations under these Terms or any relevant Sales Contract.
b. e-Volve does not promise that repair facilities or parts will be available in respect of the Products.
16. Credit assessment
a. If any Products are supplied to Customer on credit, e-Volve may need to disclose to a credit reporting agency certain information referred to in clause 16(c) about Customer when assessing Customer’s application for credit and managing Customer’s account with e-Volve. Customer authorises e-Volve to disclose such information to a credit reporting agency for these purposes.
b. Subject to e-Volve’s obligations under the Privacy Act 1988 and other applicable laws, e-Volve may give the information referred to in clause 16(c) to a credit reporting agency to obtain a consumer credit report about Customer or to allow the credit reporting agency to create or maintain a credit information file about Customer. Customer agrees that e-Volve may disclose a credit report about it to any credit provider, debt collecting agency or e-Volve’s insurers for the purposes of assessing Customer’s credit-worthiness or to collect any overdue payments (as the case may be).
c. e-Volve may disclose the following information relating to Customer in accordance with clauses 16(a) and (b):
i. Customer’s name and address;
ii. credit limits on Customer’s accounts;
iii. the amount of any payments which are overdue for at least 60 days;
iv. where an overdue payment has been previously reported, advice that the payment is no longer overdue;
v. cheques or credit card payments which have been dishonoured;
vi. information that, in the opinion of e-Volve, Customer has committed a serious credit infringement; and
vii. information that e-Volve has ceased to supply the Products and services to Customer.
d. Customer agrees that e-Volve may obtain information about Customer from any business which provides information about the commercial credit-worthiness of persons for the purposes of assessing Customer’s application to purchase the Products on credit and collecting any overdue amounts.
e. e-Volve may refuse to supply the Products to Customer on credit on the basis of e-Volve’s credit assessment of Customer.
a. Customer agrees to e-Volve collecting, using and disclosing information about Customer of the kind referred to in clause 16(c) for various purposes, including to:
i. assess credit worthiness as outlined in clause 16;
ii. supply the Products and services to Customer and the management of Customer’s account;
iii. communicate with Customer about the Products and services which e-Volve or its partners or affiliates may provide to Customer;
iv. implement these Terms and any Sales Contract; and
v. comply with relevant laws.
b. e-Volve, at the written request of Customer, will:
i. provide Customer with access to any personal information relating to Customer held by e-Volve; and
ii. correct or amend any personal information relating to Customer held by e-Volve which is inaccurate or out of date.
c. e-Volve will handle Customer’s personal information in accordance with relevant laws.
18. Intellectual property
a. Customer acknowledges that:
i. all trademarks, copyright and other intellectual property rights (“Intellectual Property”) embodied in or in connection with the Products and any related documentation, parts or software are the sole property of e-Volve or its suppliers; and
ii. all Intellectual Property of e-Volve or its suppliers may only be used by Customer with the consent of e-Volve or its suppliers, during the continuance of any relevant Sales Contract, and such consent extends only to use essential for the purposes stated in it. Any licensing of Intellectual Property rights in any software Products supplied to Customer will immediately cease upon expiry or termination of the relevant licence agreement that governs their use.
b. Customer must not, during or after the expiry or termination of any relevant Sales Contract, without the prior written consent of e-Volve or its suppliers, register or use any trade marks, trade name, domain name, trading style or commercial designation or design used by e-Volve or its suppliers in connection with the Products.
c. Customer will indemnify e-Volve against all liabilities, damages, costs and expenses which e-Volve may suffer or incur as a result of work done in accordance with Customer’s specifications or as a result of the combination or use of the Products with other equipment, parts or software not supplied by e-Volve, and which results in the infringement of any Intellectual Property of any person.
a. Customer acknowledges that e-Volve has disclosed and may from time to time disclose to Customer certain confidential information and documentation of e-Volve relating to the Products, their marketing, use, maintenance and software, including technical specifications (“Confidential Information”).
b. Subject to clause 19(e), Customer must:
i. only use the Confidential Information solely for the purposes contemplated under any relevant Sales Contract; and
ii. not, during the continuation of such Sales Contract or thereafter, disclose (whether directly or indirectly) to any third party the Confidential Information, other than is required to carry out such purposes.
c. If disclosure of Confidential Information to third parties is necessary, Customer will obtain from such third parties binding agreements to maintain in confidence the Confidential Information disclosed at least to the same extent as Customer is bound to protect e-Volve’s Confidential Information under this clause 19.
d. Upon the expiry or termination of any relevant Sales Contract, Customer must cease to use and must return or destroy (as e-Volve may instruct) e-Volve’s Confidential Information in its possession or control.
e. The provisions of this clause 19 do not extend to any information which is:
i. at the time of disclosure, rightfully known to or in the possession or control of Customer and which is not subject to an obligation or confidentiality;
ii. public knowledge (otherwise than as a result of a breach of this clause 19 or any other obligation of confidentiality);
iii. approved to be disclosed by e-Volve; or
iv. required to be disclosed by a government authority or by relevant laws.
a. e-Volve may amend these Terms at any time, by giving Customer notice by mail, e-mail or by posting a notice on e-Volve’s public website. By continuing to place orders for Products, Customer will be deemed to have accepted the revised Terms.
b. Any provision of these Terms which is invalid or unenforceable will be read down to the extent necessary, and the remaining provisions will continue unaffected.
c. Customer may not assign or attempt to assign any of its rights and obligations under these Terms.
d. These Terms are governed by the laws of the State of New South Wales.
The following procedures apply to all Customer orders for Products placed in accordance with clause 2 of the Customer Terms:
1. Minimum orders
Subject to availability, e-Volve will accept orders of any value.
2. Drop Ship Orders
a. Drop Ship orders are part of the Drop Ship Programme, as defined by e-Volve. The Drop Ship Programme refers to orders that are shipped by e-Volve directly from e-Volve’s suppliers to the Customer.
b. Consignment paperwork, e-Volve’s logo does not appear.
c. Freight charges will apply to all Drop Ship orders.
3. Payment Methods – Non Account Customers
e-Volve will also accept pre shipment payment for non account customer orders made by the following payment methods:
i. Direct deposit into e-Volve’s bank account
ii. Cheque or bank cheque (provided that such cheques have been received by e-Volve and cleared by the relevant bank);
iii. Electronic Funds Transfer (EFT); and
iv. Telegraphic Transfer.
4. Payment Methods – Account Customers
e-Volve will also accept payment for account customer orders made by the following payment methods payable based on the terms for the account:
i. Direct deposit into e-Volve’s bank account
ii. Cheque or bank cheque
iii. Electronic Funds Transfer (EFT); and
iv. Telegraphic Transfer.
The following provisions will apply in respect of the return of Products by Customer to e-Volve in accordance with clause 9 of the Customer Terms:
1. No Fault Products
A ‘no fault’ product (‘No Fault Product’) is a Product returned by Customer to e-Volve in circumstances where the return is not due to the fault of e-Volve or any fault with the Product.
2. Products sold on a ‘No Returns Basis’
a. e-Volve is entitled to supply certain No Fault Products on a ‘No Returns Basis’.
b. The expression ‘No Returns Basis’ means that e-Volve will not accept returns on No Fault Products.
c. To the extent permitted by law, e-Volve reserves the right to apply the No Returns Basis policy to any promotional or sale product(s) as it deems necessary
3. Returns procedure
a. When returning Products for credit, Customers must request a RA (Return Authorisation) Number via e-Volve Online. This RA number if authorised is valid for up to 14 days from the date of issue by e-Volve.
b. Customer must supply:
i. the date of purchase of the Products and the e-Volve invoice number, e-Volve order number and serial number of the Products; and
ii. a valid purchase order number when requesting an RA number, so that Customer’s e-Volve trading account can be charged for the return freight.
c. All Products returned for credit must be in a pristine and unopened condition with all seals intact. All inward freight will be the responsibility of Customer. e-Volve will not cover the cost of freight on returned Products and will not accept responsibility for any damage or loss suffered by Customer.
d. Customers must return the Product to e-Volve with the RA number clearly written on a removable sticky label on the outside of the shipping carton. This number must not be directly written on the carton. If proof of purchase is required by e-Volve, a copy of the e-Volve sales invoice must be faxed to the RA Department before the RA number can be issued.
e. If the RA number cannot be identified, or if the returned Product does not match the RA paperwork issued by e-Volve in terms of either quantity or e-Volve SKU (ie Product code), e-Volve may reject the returned Product at the e-Volve RA dock and return it to Customer, at Customer’s expense.