e-Volve Terms and Conditions

 

1.      Definitions

Business Day means a day on which banks are open for business in Sydney, excluding a Saturday, Sunday or public holiday in that city.

Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against that party, however arising and whether present, unascertained, future or contingent.

Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential, and includes any information relating to the financial affairs, assets (including Intellectual Property Rights) or liability of a party, or any information relating to the internal management of a party, its Personnel, policies, plans, strategies, customers, suppliers, products or services. Confidential Information does not include information or material which:

(a)     is or becomes generally known to the public other than through a breach of the General Terms or a Contract (as applicable);

(b)     at the time it was first disclosed to a party, was already in that party's lawful possession;

(c)     is developed independently by a party as evidenced by written documentation; or

(d)     is disclosed to a party by a third party entitled to disclose it.

Contract has the meaning given in clause 2.4(a).

Contracted Item means a Service or Deliverable or any combination of them both.

Contract Start Date means the date specified in the Order or, if no date is specified, the date on which e-Volve accepted the Order.

Created Material means any Intellectual Property Rights which arise out of or in connection with the supply of the Contracted Items which are not Pre-existing IPR.  It includes any Intellectual Property Rights in materials created exclusively for You in the supply of the Contracted Items.

Defect means any failure of a Deliverable to comply with, or operate in accordance with, the specifications and requirements set out in a Contract.

Deliverables means:

(a)     all items supplied, or made accessible, by or on behalf of, e-Volve in the course of supplying the Services including, where the Services include the supply of, or access to, SaaS Software, that SaaS Software; and

(b)     any other item supplied, or made accessible, by or on behalf of, or to be supplied, or made accessible, by or on behalf of, e-Volve under a Contract,

but excludes the Services themselves.

e-Volve means e-Volve Corporate Technology Pty Ltd (ABN 43 093 057 624).

Exclusive Services means any Services which are specified in an Order to be exclusive services.

Fees means:

(a)     the amount specified as the 'fees' in the Order;

(b)     any export charges relating to the supply of the Contracted Items; and

(c)     any excess usage charges incurred by e-Volve as a result of Your use of the Contracted Items.

Force Majeure means a circumstance beyond the reasonable control of a party which results in that party being unable to observe or perform on time an obligation under the General Terms or a Contract. Such circumstances include acts of God, acts of war, acts of public enemies, civil commotion, malicious damage, sabotage and strikes.

General Terms means these general terms which are updated from time to time in accordance with clause 2.5.

Initial Term means the period specified as the 'Term' or 'Initial Term' in the Order.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to copyright (including ancillary rights such as Moral Rights), trade marks, designs, patents, circuit layouts, business and domain names, inventions and Confidential Information, and other results in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.  These rights include:

(a)     all rights in all applications to register these rights; and

(b)     all similar or corresponding rights.

Law means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in any relevant jurisdiction and includes any code of conduct.

Loss means Claims, losses, damages, liabilities (direct and indirect), costs or expenses of any kind and however arising, including legal costs (on a full indemnity basis), penalties, fines and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

Moral Rights means the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, as defined in the Copyright Act 1968 (Cth).

Notice has the meaning given to the term in clause 17.1.

Order means:

(a)     a Purchase Order which is accepted by e-Volve in accordance with clause 2.1;  

(b)     a Sales Order accepted by e-Volve in accordance with clause 2.2, or

(c)     a Proposal as set out in clause  2.3.

Pass-through Terms has the meaning given in clause 4.3(c)(iii).

Personal Information has the meaning given to that term in the Privacy Act.

Personnel means any natural person who is an employee, director, officer, agent or subcontractor of a party and, in relation to You, includes Your employees, officers, agents or subcontractors.

Pre-Existing IPR means any Intellectual Property Rights of a party which:

(a)     existed prior to the Contract Start Date for the first Contract between the parties; or

(b)     come into existence after that date independently of the General Terms or any Contract,

and includes, in the case of e-Volve, any Intellectual Property Rights embodied in or arising in connection with the Deliverables and any related documentation, parts or Software.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means the privacy policy specified on e-Volve's website at: https://www.e-volvetech.com/privacy-policy from time to time.

Proposal means an e-Volve Strategic Enterprise Partnership Proposal signed by e-Volve and You.

Related Body Corporate has the meaning given to it in section 9 of the Corporations Act 2001 (Cth).

Returns Policy means the returns policy specified on e-Volve's website at https://www.e-volvetech.com/returns-policy from time to time.

SaaS Software means any Software or solution to which the Supplier supplies access on a software-as-a-service basis as part of a Service.

Service means a service described in a Contract.

Software means computer software or firmware including:

(a)     object code licensed by You which is detailed in the relevant Contract; and

(b)     object code Deliverables.

Taxes means all duties, taxes, imposts, deductions, charges and withholdings imposed with respect to any transaction contemplated under the General Terms or a Contract including:

(a)     value added, goods and services, sales, use, service, consumption or business taxes;

(b)     excise, customs duties and other like taxes, fees or surcharges (including regulatory fees and surcharges); and

(c)     any interest, penalties, charges, fees or other amounts payable on or in relation to the taxes referred to in paragraphs (a) and (b),

and Tax has a corresponding meaning.

Term means the Initial Term and any extension in accordance with clause 3.2.

You means the party designated as the 'customer' in an Order and Your has a corresponding meaning.

Your Data means all data and information relating to You and Your operations, facilities, customers, clients, Personnel, assets and programs in whatever form that information may exist and whether entered into, stored in, generated by or processed as part of a Service and any other data relating to a Service, including Your Confidential Information.

Your Systems means the combination of Software, systems, hardware, solutions, facilities, networks, information technology and telecommunications services and infrastructure used by Your business.

 

2.      Orders and formation of a Contract

2.1    If You issue a Purchase Order

(a)     If You give e-Volve an order for Contracted Items (Draft Purchase Order), including through e-Volve's online portal, e-Volve may:

(i)      give You Notice that it accepts that Draft Purchase Order in its unamended form, in which case that it will be a Purchase Order; or

(ii)     negotiate amendments to the Draft Purchase Order with You and issue a draft sales order to You which reflects those amendments.

2.2    If e-Volve gives You a Sales Order

(a)     If e-Volve gives You a draft sales order (Draft Sales Order), whether or not You first gave e-Volve a Draft Purchase Order, You may:

(i)      give e-Volve Notice that You accept that Draft Sales Order in its unamended form; or

(ii)     negotiate amendments to the Draft Sales Order with e-Volve.

(b)     If clause 2.2(a)(ii) applies:

(i)      e-Volve will reissue the Draft Sales Order to reflect any terms negotiated by the parties; and

(ii)     if You give e-Volve Notice that You accept the terms of the Draft Sales Order, e-Volve may give You Notice that it accepts the Draft Sales Order and the Draft Sales Order will become a Sales Order.

2.3    If a Proposal is executed

If a Proposal is executed by e-Volve and You,  the Proposal is the Order. 

2.4    Formation of a Contract

(a)     Each Order incorporates the General Terms to form a Contract

(b)     The first time an Order is agreed between You and e-Volve, You need to sign a copy of these General Terms  at https://www.e-volvetech.com/terms-and-conditions A copy of these General Terms will then be countersigned and dated by e-Volve and emailed to You at the email address You specify, for Your records. e-Volve may elect not start supplying Contracted Items to You until You have signed a copy of these General Terms.

(c)     If there is any inconsistency between the terms of an Order and the General Terms, the General Terms will take priority to the extent of the inconsistency, unless the terms of the Order expressly override the General Terms.

(d)     Unless otherwise agreed in writing, You may not cancel a Purchase Order or Sales Order once it has been accepted by e-Volve.

2.5    Variation

(a)     e-Volve may vary the General Terms from time to time (Variation) by updating the terms on its website.

(b)     If the remaining term of a Contract is less than 180 days at the time of the Variation, then the Variation will not affect the terms of that Contract.

(c)     If the remaining term of a Contract is 180 days or more at the time of the Variation, then e-Volve may give You Notice that the Variation will apply to that Contract (Variation Notice).

(d)     If e-Volve gives You a Variation Notice, the Variation will apply from the later of:

(i)      60 days after the date of the Notice; and

(ii)     the date specified in the Notice,

unless You notify e-Volve before that date that You wish to terminate the affected Contract. 

(e)     If You exercise Your right to terminate a Contract in accordance with clause 2.5(d):

(i)      termination will be effective on the date on which the Variation would otherwise have come into effect;

(ii)     You will be entitled to a refund for any Contracted Items which were not supplied before the date of such termination; and

(iii)    You will not be liable to pay any early termination or minimum charges which would otherwise been payable for termination during the Initial Term.

2.6    Exclusivity

(a)     If an Order states that there are Exclusive Services, the supply of the Exclusive Services to You is on the condition that during the Term You:

(i)      will not acquire services which are the same or similar to the Exclusive Services; and

(ii)     must procure that none of Your Related Bodies Corporate acquires services which are the same or similar to the Exclusive Services,

from any third party.

 

3.      Term

3.1    Initial Term

Each Contract commences on the applicable Contract Start Date and continues for the Initial Term unless otherwise terminated earlier in accordance with its terms.

3.2    Renewal

Unless a Contract specifies that it is for a fixed term, on the expiry of the Initial Term, each Contract is automatically extended until either party gives the other party 90 days Notice of its intention to terminate that Contract.

 

4.      General supply obligations

4.1    Supply of Contracted Items

(a)     Subject to Your ongoing compliance with the terms of the applicable Contract, e-Volve will supply the Contracted Items to You on the terms of that Contract.

(b)     In supplying the Contracted Items, e-Volve will comply with applicable Laws.

4.2    Software

(a)     If a Deliverable is Software, then in addition to the terms of the relevant Contract, the Deliverable may be subject to the terms of the relevant licence agreement applicable to that Software (Third Party Terms).

(b)     You acknowledge that Third Party Terms may:

(i)      be packaged with Software;

(ii)     be separately provided to You for execution; or

(iii)    require on-screen acceptance.

(c)     You must comply with any Third Party Terms.

(d)     You indemnify and must keep e-Volve indemnified against any Loss arising out of or relating to a breach by You or Your Personnel of any Third Party Terms.

4.3    Pass-through Services

(a)     You acknowledge and agree that certain Contracted Items, such as cloud services, will be supplied by third parties on behalf of e-Volve (Pass-through Services).

(b)     To the extent the Contracted Items are Pass-through Services, e-Volve is not responsible for any aspect of that Contracted Item, including for the avoidance of doubt:

(i)      any failure by a third party service provider to provide a Pass-through Service; and

(ii)     any delay, malfunction, non performance or other degradation of performance of any of the Pass-through Services.

(c)     If the Contract specifies that e-Volve is to procure Pass-through Services as Your agent:

(i)      You appoint e-Volve as Your agent solely for the purpose of fulfilling its obligations under a Contract, and e-Volve accepts such appointment;

(ii)     e-Volve may negotiate on Your behalf but will not have the right to bind You; and

(iii)    the Contract may impose on You the same or similar terms and conditions as e-Volve agrees with the relevant provider of Pass-through Services (Pass-through Terms) and You must comply with those Pass-through Terms.

(d)     You indemnify and must keep e-Volve indemnified against any Loss arising out of or relating to:

(i)      use of or access to the Pass-through Services on Your account, regardless of the identity of the user, and whether or not You approved or consented to that use or access; and 

(ii)     a breach by You or Your Personnel of the Pass-through Terms.

 

5.      Your obligations

(a)     You must supply any items which are specified as 'customer inputs' in the Contract in accordance with the requirements of the Contract (including any timeframes specified in the applicable Order).

(b)     You must not, and must ensure that Your Related Bodies Corporate and their respective Personnel, and their respective customers, do not:

(i)      engage in or otherwise permit any unauthorised use of any of the Contracted Items;

(ii)     permit any third party to use or access any of the Contracted Items without e-Volve's prior written consent;

(iii)    use the Contracted Items in any way which may:

(A)    be unlawful or directly or indirectly lead to a contravention of any applicable Law;

(B)    contravene the terms of use of any third party services; or

(C)    bring e-Volve into disrepute;

(iv)    use or attempt to use protocols, procedures or scripts which have the effect of degrading, or potential to degrade, any Contracted Items; or

(v)     infringe the Intellectual Property rights of e-Volve or any third party.

(c)     You acknowledge that, unless otherwise specified in a Contract, You are responsible for ensuring that:

(i)      the Contracted Items integrate and interface with Your Systems; and

(ii)     You have adequate protections in place to protect Your Systems.

(d)     You must immediately inform e-Volve if You become aware of any infringement of Intellectual Property rights or any unauthorised access to or use of all or any of the Contracted Items by any person.

 

6.      Delivery, acceptance, risk and title

6.1    No liability for delays

You acknowledge and agree that any delivery times advised by e-Volve are estimates only and e-Volve will not be liable for any Loss suffered or incurred by You arising from late or non-delivery of any Contracted Items.

6.2    Digital Deliverables and Services

A Contracted Item that is transmitted electronically will be deemed "delivered" whenever it is downloaded, installed, accessed through an authorised login, or started remotely via a management console (as the case may be).

6.3    Acceptance

(a)     This clause 6.3 applies to Deliverables unless another process for acceptance testing is specified in the Contract.

(b)     In the case of Deliverables which are:

(i)      Software, You must:

(A)    test or inspect such Software when it is authorised by e-Volve for downloading by You; and

(B)    within 7 Business Days of delivery, give Notice to e-Volve of any Defects.

(ii)     physical Deliverables other than Software:

(A)    immediately inspect such Deliverables on delivery; and

(B)    reject such Deliverables if there are any Defects; and

(iii)    not physical Deliverables or Software:

(A)    test or inspect such Deliverable when it is delivered; and

(B)    within 7 Business Days of delivery, give Notice to e-Volve of any Defects.

(c)     If You do not give e-Volve Notice in accordance with clause 6.3(b), to the extent permitted by Law, You will be deemed to have accepted the Deliverable.

6.4    Risk

(a)     Risk in Deliverables:

(i)      passes to You immediately upon delivery:

(A)    to a carrier commissioned by e-Volve or You; or

(B)    into Your custody or control,

whichever is the sooner; and

(ii)     remains with You at all times unless e-Volve retakes possession of the Deliverables in accordance with clause 6.5(a)(iii) or otherwise in the supply of the Services.

6.5    Title

(a)     Until e-Volve has received full payment of all amounts payable to it under a Contract relating to Contracted Items:

(i)      full and absolute ownership of and title in the Deliverables shall remain with e-Volve;

(ii)     You hold any and all Deliverables as bailee and fiduciary for e-Volve and will immediately return the Deliverables to e-Volve or such condition as is deemed acceptable by e-Volve, upon demand by e-Volve and at Your cost;

(iii)    if You breach any Contract, You authorise and grant to e-Volve and its authorised representatives an irrevocable licence to enter any premises where any Deliverables are kept, or stored electronically, to:

(A)    repossess the Deliverables; or

(B)    if the Deliverables are in electronic form, to supervise Your deletion or destruction of any residual electronic copies of the Deliverables;

(iv)    You must not allow any person to have or acquire any interest in the Deliverables; and

(v)     You may only sell any Deliverables in the ordinary or usual course of business and as the fiduciary and agent of e-Volve and provided that:

(A)    the entire proceeds of the sale of those Deliverables is immediately paid to e-Volve or held by You on trust for e-Volve separately for its account, not mixed with Your other money, debts or property and payable immediately without demand;

(B)    e-Volve has the right to trace the proceeds of any such sales in accordance with equitable principles; and

(C)    You account fully to e-Volve for the proceeds of the sale unless and until all monies owing by You to e-Volve under each Contract are paid and received by e-Volve in full.

(b)     For clarity, clause 6.5(a) applies whether or not e-Volve has granted You credit.

 

7.      Returns

(a)     This clause 7 only applies to Deliverables which:

(i)      are not the subject of a Defect;

(ii)     are not specified in the Order as being sold on a 'no returns' basis:

(iii)    are not damaged or defective because of improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or unauthorised repair; and

(iv)    have not been added to, or varied by, any person other than e-Volve.

(b)     If You propose to return a Deliverable:

(i)      You must:

(A)    notify e-Volve in writing of any Deliverables You wish to return within 7 days from the date that those Deliverables were received; and

(B)    comply with e-Volve's Returns Policy,

and You acknowledge that You may not be entitled to a refund for the cost of Deliverables which You return, other than as specified in that policy.

 

8.      Warranty

(a)     e-Volve will notify You of any manufacturer's warranty which applies to the Deliverables.  To the extent permitted by law, and subject to this clause 8, e-Volve expressly excludes all other warranties (including implied warranties with respect to merchantability and fitness for purpose) and representations in relation to the Contracted Items. 

(b)     For the avoidance of doubt, and subject to clause 12(c):

(i)      no warranties are given by e-Volve relating to Deliverables which are Software; and

(ii)     the only warranties which apply to Software supplied by e-Volve are those set out in any applicable third party licence agreements that govern the use of such Software.

(c)     If:

(i)      Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any of the corresponding provisions of the fair trading legislation (together, the ACL) applies to any of the Contracted Items; and

(ii)     those items are not of a kind that is ordinarily acquired for personal, domestic or household use or consumption (as that expression is used in the ACL),

e-Volve's liability for any failure to comply with any consumer guarantee is limited to:

(iii)    in the case of Services, the re-supply of the Services or the payment of the cost of re-supply; and

(iv)    in the case of Deliverables, repairing or replacing those items or paying the costs of having those items replaced or repaired.

 

9.      Liability and indemnity

9.1    Excluded loss

To the extent permitted by law, each party will not be liable to the other party or any other party whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect, special or consequential loss or damage, or any loss of profits, revenue, interest or goodwill, or any non-compensatory damages (including punitive, aggravated, multiple, exemplary or liquidated damages) even if such party has been advised of the possibility of such loss or damage.

9.2    Liability cap

Subject to clauses 9.1 and 9.4, each party's total maximum liability to the other party for all Losses incurred or suffered by the other party and its Related Bodies Corporate, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, is limited in aggregate to the lesser of:

(a)     $100,000; and

(b)     in the case of a Contract:

(i)      an amount equal to 100% of the total Fees paid to e-Volve by You under that Contract in the 12 months before the event or circumstance giving rise to the liability; and

(ii)     the amount specified in the applicable Contract.

9.3    Indemnities

You must indemnify and keep indemnified e-Volve from and against any Loss arising out of or relating to any Claim brought or threatened against e-Volve , to the extent that such Claim relates to:

(a)     a breach of the General Terms or a Contract by You, any of Your Related Bodies Corporate, or any of their respective Personnel;

(b)     work done in accordance with Your specifications; or

(c)     Your combination or use of the Contracted Items with other equipment, parts or Software not supplied by e-Volve,

provided that You will have no liability under this indemnity to the extent that e-Volve caused or contributed to such Loss. 

9.4    Exclusions from Liability cap

Nothing in the General Terms or any Contract operates to limit or exclude either party's liability to the other in respect of Losses arising out of or in connection with:

(a)     damages for bodily injury (including death) and damage to real property and tangible personal property;

(b)     any fraudulent or unlawful acts or omissions, or wilful breach of the General Terms or a Contract by a party or its Personnel, or

(c)     liability under any indemnity under the General Terms or any Contract.

9.5    Defence of infringement claims

(a)     Subject to the remainder of this clause 9.5, if a third party brings a Claim against You alleging that Your use of the Contracted Items (other than any Pass-Through Services) in accordance with a Contract infringes that third party's Intellectual Property Rights, e-Volve will defend or settle that Claim on Your behalf.

(b)     e-Volve's liability under clause 9.5(a) will be subject to and/or reduced to the extent that the relevant infringement arises from, or Claim is based upon:

(i)      any use of the Contracted Items in breach of the General Terms or a Contract;

(ii)     the inclusion within the Contracted Items of any material provided by You;

(iii)    the compliance by e-Volve with Your instructions, directions, specifications or requirements;

(iv)    the use of the Contracted Items in combination with any hardware or third party software that is not provided by or on behalf of e-Volve;

(v)     the modification of the Contracted Items by a person other than e-Volve or its subcontractors; or

(vi)    Your failure to use or implement a revised version of a Contracted Item provided to You where that implementation would avoid the infringement.

 

10.    Intellectual Property Rights

10.1  Trade Marks and Logos

A party must not use any trade mark, trade name, logo or other designation of the other party in any way without the other party's prior written consent.  You agree and acknowledge that e-Volve may use any such trademark or logo, as may be required or incidental to e-Volve's carrying out of the Services pursuant to these General Terms or a Contract.

10.2  Ownership of Intellectual Property Rights and Your Data

(a)     The General Terms and the Contracts do not transfer ownership of:

(i)      any Pre-Existing IPR; or

(ii)     Your Data.

(b)     Any Created Material will be the absolute property of e-Volve on and from its creation and You must on request do all things necessary (including executing any relevant documentation) to transfer all rights and interests in any Created Material to e-Volve or its nominee.

10.3  Licences of Intellectual Property Rights and Your Data

(a)     If You give any of Your Pre-Existing IPR or Your Data to e-Volve, then You grant to e-Volve a non-exclusive, royalty-free licence to use, for the Term, the Pre-Existing IPR and Your Data solely for the purpose of exercising its rights and obligations under the General Terms or any Contract (including the right to sublicense that right to the extent required to exercise those rights and obligations).

(b)     If e-Volve gives any of its Pre-Existing IPR or Created Material to You, then e-Volve grants to You a non-transferable, non-exclusive, royalty-free licence to use, for the Term, the Pre-Existing IPR solely for the purpose of:

(i)      exercising Your rights and obligations under the General Terms or any Contract; and

(ii)     using the Contracted Items for Your internal business purposes.

 

11.    Confidential Information

11.1  Obligation to keep information confidential

Each party agrees to keep confidential, and not to use or disclose, other than as permitted under the General Terms or a Contract, any Confidential Information of the other party.

11.2  Permitted Disclosures

(a)     Each party may disclose the Confidential Information of the other party only on a 'need-to-know' and confidential basis:

(i)      if it is required to make such a disclosure by applicable Law or the rules of any stock exchange upon which the recipient’s securities are listed, provided that the recipient:

(A)    discloses only the minimum amount of Confidential Information required to satisfy the applicable law or stock exchange rules; and

(B)    prior to such a disclosure, the recipient provides a reasonable amount of written notice to the other party;

(ii)     to those of its Personnel who have a need to know the Confidential Information to enable the party to comply with its obligations under the General Terms or a Contract, and only to the extent required; or

(iii)    with the prior written consent of the other party.

(b)     Each party who discloses Confidential Information of the other party under this clause 11.2 must ensure that the information is kept confidential by the recipients.

11.3  Return or destruction of Confidential Information

Upon expiry or termination of the General Terms or a Contract (as applicable), each party must, at the other party’s sole election, return or destroy and certify the destruction of, any of that party’s Confidential Information relating to the General Terms or Contract (as applicable) in the first mentioned party’s possession or control.  Each party who receives Confidential Information may retain one copy of the Confidential Information in a secure location solely for the purposes of verifying compliance with the General Terms or a Contract, archival policy or audit purposes, or maintaining regulatory compliance.

 

12.    Credit

12.1  Credit assessment

(a)     If any Contracted Items are supplied to You on credit, e-Volve may need to disclose to a credit reporting agency certain information referred to in clause 12.1(c) about You when assessing Your application for credit and managing Your account with e-Volve. You authorise 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 and other applicable Laws, e-Volve may give the information referred to in clause 12.1(c) to a credit reporting agency to obtain a consumer credit report about You or to allow the credit reporting agency to create or maintain a credit information file about You. You agree 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 Your 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 12.1(a) and 12.1(b):

(i)      Your name and address;

(ii)     credit limits on Your 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, You has committed a serious credit infringement; and

(vii)   information that e-Volve has ceased to supply the Contracted Items to You.

(d)     You agree that e-Volve may obtain information about You from any business which provides information about the commercial credit-worthiness of persons for the purposes of assessing Your application to purchase the Contracted Items on credit and collecting any overdue amounts.

(e)     e-Volve may refuse to supply the Contracted Items to You on credit on the basis of e-Volve's credit assessment of You.

12.2  Termination or suspension of credit

e-Volve may, at any time and in its sole discretion, vary or cancel any credit facility it makes available to You.

 

13.    Privacy

13.1  Right to collect, store, use and disclose information

(a)     You agree that e-Volve may collect, store, use and disclose information about You (including Personal Information) as contemplated in the Privacy Policy and for various additional purposes, including to:

(i)      supply the Contracted Items to You and manage Your account;

(ii)     assess Your creditworthiness as outlined in clause 12;

(iii)    communicate with You about the Contracted Items which e-Volve or its partners or affiliates may provide to You;

(iv)    exercise its rights and obligations under the General Terms and any Contract; and

(v)     comply with applicable Laws.

(b)     You represent and warrant that You have made all necessary disclosures, and obtained all necessary consents, to make Personal Information available to e-Volve.

(c)     e-Volve agrees to comply with the Privacy Act and its Privacy Policy to the extent that it collects, stores, uses or discloses Your Personal Information.

 

14.    Fees, invoicing and payment

14.1  Fees

(a)     e-Volve may invoice You for the Fees at the times and in the manner specified in the Order.  You acknowledge that e-Volve may require the Fees to be paid directly to a supplier of Pass-through Services.

(b)     You must pay the Fees in the timeframe specified in the Contract or, if no timeframe is specified, within 14 days of the date of an invoice.

(c)     If You, acting in good faith, dispute the Fees set out in an invoice:

(i)      You must promptly give e-Volve Notice of the dispute, including Your reasons;

(ii)     the parties will follow the procedure in clause 16 to resolve the dispute; and

(iii)    You must pay the undisputed portion of the Fees in accordance with clause 14.1(b).

(d)     If You fail to pay any undisputed Fees in accordance with clause 14.1(b), e-Volve may do one or more of the following:

(i)      suspend the provision of credit to You;

(ii)     suspend the supply of Contracted Items; and

(iii)    charge interest 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 the undisputed amounts are paid in full.

14.2  GST

(a)     Words or expressions used in this clause that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning given to them in that Act.

(b)     Unless otherwise stated, any amount specified in a Contract as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.

(c)     If a party makes a taxable supply under a Contract (Service Provider), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.

(d)     The Recipient is not obliged to pay the amount of any GST payable until the Service Provider provides it with a valid tax invoice for the taxable supply.

(e)     If an adjustment event arises in relation to a taxable supply made by a Service Provider under a Contract, the amount paid or payable by the Recipient under clause 14.2(c) will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.

(f)      If a third party makes a taxable supply and this Contract requires a party (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.

14.3  Taxes

(a)     Without limiting clause 14.2, You must pay e-Volve, on demand (and without any right of set-off), any Taxes.

(b)     If You are obliged to make any deduction or withholding on account of any Taxes in connection with the General Terms or a Contract, You must:

(i)      withhold the amount due to e-Volve and promptly pay that amount to the relevant authority; and

(ii)     pay to e-Volve an additional amount so that the amount actually received by e-Volve is the same amount e-Volve would have received but for its withholding obligation.

14.4  General

(a)     You indemnify e-Volve relating to all costs incurred by e-Volve as a result of the late payment of undisputed fees, including legal fees and all other government and bank fees and Taxes. 

(b)     This clause does not merge on completion and will continue to apply after expiration or termination of the General Terms and each Contract.

 

15.    Termination

15.1  Your rights to terminate

Without limiting any other provisions in the General Terms or a Contract, You may terminate the General Terms or an affected Contract with immediate effect by giving Notice to e-Volve if e-Volve:

(a)     is bankrupt or insolvent, or appears likely to become bankrupt or insolvent, or

(b)     materially breaches the General Terms or Contract (as applicable) and does not remedy that breach within 30 days after Notice from You requiring e-Volve to remedy the breach.

15.2  e-Volve's rights to terminate

Without prejudicing its other rights under the General Terms, a Contract or at Law, e-Volve may terminate the General Terms or a Contract (either in whole or in part), or suspend or cancel the supply of Contracted Items to You with immediate effect by giving Notice to You if You:

(a)     do not pay any amount due to e-Volve by the due date, or if payment is tendered by cheque or credit/debit card but the funds do not clear within 5 days of payment;

(b)     are bankrupt or insolvent, or appear likely to become bankrupt or insolvent;

(c)     materially breach the General Terms or Contract (as applicable) and do not remedy that breach within 30 days after Notice from e-Volve requiring You to remedy the breach;

(d)     breach any Pass-through Terms or Third Party Terms; or

(e)     in e-Volve's reasonable opinion, experience a materially adverse change in Your credit standing.

15.3  Force majeure

If the performance of e-Volve's obligations under a Contract is prevented, restricted or affected by Force Majeure for more than 60 days, either party may terminate the relevant Contract without penalty.

15.4  Consequences of termination

(a)     Notwithstanding any other provision of this Agreement, if e-Volve gives Notice under clause 15.2, You will be liable for any Fees and all other monies payable to e-Volve pursuant to a Contract relating to the cancelled Contracted Items that are or have been incurred up until the date of termination including any cancellation or termination fees charged by any third party and any interest payable.

(b)     The termination of the General Terms, or the termination or expiry of a Contract does not affect the operation and continuation of any other Contracts then in existence which have not expired or been terminated. 

 

16.    Disputes

16.1  Dispute Notice

(a)     If a party claims that a dispute has arisen under or in connection with the General Terms or any Contract (Dispute), that party must give Notice of the Dispute (Dispute Notice) to the other party, specifying the nature of the Dispute.

(b)     A Dispute cannot be the subject of litigation until the provisions of clauses 16.2, 16.3 and 16.4 have been complied with (except where a party seeks urgent interlocutory relief from a court, in which case that party does not need to comply with the remainder of this clause 16 before seeking such relief).

16.2  Resolution by parties

Within three Business Days of the date of the Dispute Notice (or such other period as agreed between the parties to the Dispute) each of the parties to the Dispute must meet and use their best endeavours to resolve the Dispute.

16.3  Resolution by senior executives

If the Dispute is not resolved under clause 16.2 within 10 Business Days (or such other period agreed between the parties to the Dispute) after the date of the Dispute Notice, the Dispute must be referred to the senior executives of each of the parties to the Dispute, who must meet and use their best endeavours to resolve the Dispute.

16.4  Mediation

If the Dispute is not resolved under clause 16.3 within 15 Business Days (or such other period agreed between the parties to the Dispute) after the date of the Dispute Notice, the parties to the Dispute must refer the Dispute to mediation administered by the Australian Disputes Centre.

16.5  Litigation

If the Dispute is not resolved under clause 16.4 within 60 Business Days after the date of the Dispute Notice, either party may commence litigation proceedings.

16.6  Parties’ obligations

Pending resolution of any Dispute, the parties must continue to perform their obligations under each Contract without prejudice to their respective rights and remedies (except where such obligations are the subject of the Dispute).

16.7  Survival

This clause 16 will survive termination of this Agreement.

 

17.    Notices

17.1  Notice requirements

Any notice, demand, approval, consent or other communication under the General Terms or a Contract (Notice) must be in writing in English and must be:

(a)     delivered personally;

(b)     sent by email; or

(c)     sent by regular post (or airmail if posted to or from a place outside Australia),

to a party at the address, and for the attention of the person, specified in the Contract or updated contact details which have been notified from time to time. All Notices to e-Volve must be copied to sales@e-volvetech.com

17.2  When Notices considered given and received

A Notice given in accordance with clause 17.1 takes effect when received (or such later time as specified in it), and is taken to be received:

(a)     if hand delivered, on delivery;

(b)     if sent by email, at the time the sender's information system (as that term is defined in the Electronic Transactions Act 2000 (NSW)) recorded that email left the sender's information system unless, within eight Business Hours after that time, the sender is informed (by automatic notice or otherwise) that the email has not been received by the recipient;

(c)     if sent from and to a place within Australia by regular post, at 9:00 am on the sixth Business Day after the date of posting;

(d)     if sent from a place within Australia to a place outside Australia by airmail, at 9.00 am on the tenth Business Day after the date of posting; and

(e)     if sent from a place outside Australia by airmail, at 9.00 am on the twelfth Business Day after the date of posting,

but if the delivery, receipt or transmission is not on a Business Day or is after 5.00 pm on a Business Day, the Notice is taken to be received at 9.00 am on the next Business Day after that delivery, receipt or transmission.

 

18.    General

18.1  Assignment

(a)     The parties may not assign or otherwise deal with any of their rights under a Contract without the prior written consent of the other party. 

18.2  Waiver

(a)     A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver.

(b)     A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.

(c)     A waiver given by a party in accordance with clause 18.2(a):

(i)      is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and

(ii)     does not preclude that party from enforcing or exercising any other right, remedy or power under a Contract nor is it to be construed as a waiver of any other obligation or breach.

18.3  Severance

If a provision in the General Terms or a Contract is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from the General Terms or a Contract for the purposes of that jurisdiction.  This does not affect the validity or enforceability of the remainder of the provision or any other provision of the General Terms or a Contract.

18.4  Governing law and jurisdiction

(a)     The General Terms and each Contract is governed by and is to be construed under the laws in force in New South Wales.

(b)     Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with the General Terms or a Contract.  Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.

18.5  Further assurances

Each party must, at its own expense, do all things and execute all further documents necessary to give full effect to the General Terms or a Contract and the transactions contemplated by it.

18.6  No reliance

Neither party has relied on any statement by the other party which has not been expressly included in the General Terms or a Contract.

18.7  Entire agreement

The General Terms and each Contract  state all of the express terms of the agreement between the parties in respect of its subject matter.  It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.

18.8  Relationship of parties

Except as expressly set out in the General Terms or a Contract:

(a)     the parties are not and are not to be taken to be in a partnership, joint venture, employment or fiduciary relationship; and

(b)     nothing in the General Terms or a Contract gives a party authority to bind any other party in any way.

18.9  Exercise of rights

(a)     Unless expressly required by the terms of the General Terms or a Contract, a party is not required to act reasonably in giving or withholding any consent or approval or exercising any other right, power, authority, discretion or remedy, under or in connection with the General Terms or a Contract.

(b)     A party may (without any requirement to act reasonably) impose conditions on the grant by it of any consent or approval, or any waiver of any right, power, authority, discretion or remedy, under or in connection with the General Terms or a Contract.  Any conditions must be complied with by the party relying on the consent, approval or waiver.

18.10      Remedies cumulative

Except as provided in the General Terms or a Contract and permitted by law, the rights, powers and remedies provided in the General Terms and each Contract are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of that document.

18.11      Clauses that survive termination

(a)     Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiry of the General Terms or a Contract, clauses 2.5(e), 4.2(d), 4.3(d), 6.5, 8, 9, 10, 11, 13, 14.4, 15.4, 16 and 18 survive the termination or expiry of the General Terms or a Contract.

(b)     Each indemnity contained in this Agreement is a continuing obligation, independent from the other obligations of the parties and survives the termination or expiry of this Agreement.  It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.

 

19.    Interpretation

In the General Terms and any Contract, unless a contrary intention is expressed:

(a)     headings and italicised, highlighted or bold type do not affect the interpretation of the document;

(b)     the singular includes the plural and the plural includes the singular;

(c)     other parts of speech and grammatical forms of a word or phrase defined in the document have a corresponding meaning;

(d)     a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any government agency (whether or not having a separate legal personality);

(e)     a reference to any thing (including any right) includes a part of that thing, but nothing in this clause 19(e) implies that performance of part of an obligation constitutes performance of the obligation;

(f)      a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, that document and a reference to the document includes any clause, annexure, exhibit and schedule;

(g)     a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;

(h)     a reference to a party to any document includes that party's successors and permitted assigns;

(i)      a reference to time is to Sydney, New South Wales time;

(j)      a reference to any legislation includes all delegated legislation made under it and includes all amendments, consolidations, replacements or re enactments of any of them, from time to time;

(k)     a reference to an agreement other than the applicable document includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;

(l)      a reference to a document includes any agreement or contract in writing, or any certificate, notice, deed, instrument or other document of any kind;

(m)    a provision of a document may not be construed adversely to a party solely on the ground that the party (or that party's representative) was responsible for the preparation of that document;

(n)     a reference to a body, other than a party to the applicable document (including an institute, association or authority), whether statutory or not, which ceases to exist or whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions;

(o)     the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in a document do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary;

(p)     a reference to a day is to the period of time commencing at midnight and ending 24 hours later;

(q)     if an act or event must occur or be performed on or by a specified day and occurs or is performed after 5.00 pm on that day, it is taken to have occurred or been done on the next day;

(r)      a reference to '$', 'A$', 'AUD', 'dollars' or 'Dollars' is a reference to the lawful currency of the Commonwealth of Australia; and

(s)     if anything under a document is required to be done by or on a day that is not a Business Day that thing must be done by or on the next Business Day.

 

 

 

Last Updated 27th February 2018

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