1. DEFINITION
"Evopos” means the business of Evopos or any other subsidiary or associated company.
"Customer” means the party identified as the Customer in this Agreement to whom Evopos may agree to supply Products and Services.
"Products” means goods or services including but not limited to equipment, software and services.
"Third Part Software” means all software owned by or licensed to the Customer from a third party owner (whether or not supplied by Evopos) and which comprises part of the products.
2. ORDER ACCEPTANCE
2.1 All orders placed with Evopos by the Customer for Products shall constitute an offer to Evopos, under these terms and conditions, subject to availability of the products and to acceptance of the order by Evopos Pty Ltd’s authorised representative.
2.2 Orders are accepted and Products supplied subject to these express terms and conditions only.
2.3 It is agreed that these terms and conditions prevail over the Customer’s terms and conditions of purchase unless these latter terms and conditions are amended by Evopos in writing and signed by Evopos.
3. INDEPENDENT CONTRACTOR
3.1 The relationship between the Supplier and Customer is that of Independent Contractor, Neither party is the agent of each other, and neither party has any authority to make any obligation expressly or impliedly in the name of the other party, without that party’s prior written consent for express purposes connected with the performance of this agreement.
4. DESPATCH
4.1 Any time quoted for despatch is to be treated as an estimate only. Despatch maybe postponed because of conditions beyond Evopos Pty Ltd’s reasonable control, and in no event shall Evopos be liable for a damages or penalty for delay in despatch or delivery.
5. CANCELLATIONS AND RESCHEDULING
5.1 Subject to clause 8.2, any request by the Customer for cancellation of any order or for rescheduling of any deliveries will only be considered by Evopos if made at least 12 hours before despatch of the products, and shall be subject to acceptance by Evopos at Evopos sole discretion, and subject to a reasonable administration charge therefore by Evopos. The Customer hereby agrees to indemnify Evopos against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
6. PRICING
6.1 Catalogues, price lists and other advertising literature or material as used by Evopos are intended only as an indication as to the price and range of goods offered and no prices, descriptions or other particulars contained therein shall be binding to Evopos.
6.2 All prices are given by Evopos at the time of order on ex-works basis and the Customer is liable to pay for transport, packing and insurance.
6.3 All quoted or listed prices are based on the cost to Evopos of supplying the Products to the Customer. If before delivery of the Products there occurs any increase in any way of such costs in respect of the Products, which have not, yet been delivered, the price payable maybe subject to amendment without notice at Evopos.
6.4 All prices are exclusive of Value Added Tax and any similiar taxes. All such taxes are payable by the Customer and will be supplied in accordance with UK legislation in force at the tax point date.
7. PAYMENT TERMS
7.1 Unless otherwise specifically agreed, invoices will be payable at the time of sale or installation. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at the rate of 4% per annum above the base rate for the time being of the Nat West Bank Plc.(UK) or ANZ Bank (Aus). Such interest shall accrue on a daily basis and be payable on demand after as well as before judgement.
7.2 When all prices, taxes, and charges due in respect of the Products and any Products supplied previously to the Customer have been paid in full, title to hardware Products only shall pass to the Customer.
7.3 Notwithstanding despatch and the passing of risk in the Products to the Customer pursuant to Clause 4, or any other provision of these conditions, the property of hardware shall not pass to the customer until Evopos has received cash or cleared funds payment of the price of the Products and all of the products agreed to be sold by Evopos to the Customer for which payment is then due.
7.4 Until such time the title of the Products passes to the Customer, the Customer shall hold the Products as Evopos fiduciary agent and bailee, and shall keep the Products properly stored, protected and insured and identified as Evopos property. Until that time the customer shall be entitled to resell or use the products in the ordinary course of business, but shall account to Evopos for the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from monies or properties of the Customer and third parties and, in the case of tangible proceeds, property stored, protected and insured.
7.5 Until such time as the title of the products passes to the Customer (and provided the products are still in existence and not been resold), Evopos shall be entitled at any time to require the Products be delivered to Evopos and, if the Customer fails to do forthwith, to enter upon any premises of the Customer or any third party where the Products are stored and repossess the Products.
7.6 The Customer power of sale or right to use such Products shall immediately cease if an Administrative receiver is appointed over all or any part of its assets or if it adjudicated bankrupt or enters liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts within in the meaning of the Insolvency Act 1986.
7.7 On termination of the Company’s power of sale or right to use the Products the Customer will immediately hold the Products to the order of Evopos.
7.8 The Customer shall not be entitled to pledge or in anyway charge by way of security for any indebtedness any of the Products which remain the property of Evopos, but if the Customer does so, all monies owing by the Customer to Evopos shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.
7.9 Evopos reserves the right to cease supplies of Products to the Customer at any time. On such cessation of supplies, Evopos reserve the right to withdraw any credit facility such that the whole of the Customer’s account becomes payable forthwith.
8. SPECIFICATION OF PRODUCTS
8.1 Evopos will not be liable in respect of any loss or damage caused by or resulting from any variation for whatsoever reason in the manufacturers specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. Evopos will use its reasonable endeavours to advise the Customer of any such impending variation as soon as its receives any such notice thereof from the manufacturer.
8.2 Unless otherwise agreed, the Products are supplied in accordance with the manufacturers standard specifications as these may be improved, substituted or modified. Evopos reserves the right to increase its quoted or listed price, or to charge accordingly in respect of any orders accepted for Products of non-standard specifications and in no circumstances will it consider cancellation of such orders or return of such orders.
9. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
9.1 The Customer hereby acknowledges that any proprietary rights in any Software supplied hereunder including, but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vested in the Software manufacturer.
9.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of license attaching to Software supplied and delivered by Evopos (including if so required the execution and return of a Software license). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused software license or having the same revoked by the proprietary owner. The Customer further agrees to indemnify Evopos in respect of any costs, charges or expenses incurred by Evopos at the suit of a Third Party Software owner as a result of any breach by the Customer of such conditions.
9.3 NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR THIRD PARTY SOFTWARE LICENSED TO THE CUSTOMER UNDER THIS AGREEMENT IS TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
10. RETURNS
10.1 Evopos reserves the right to levy an administration charge in respect of returned Products.
10.2 Returns must be made subject to the following:
a) Prior authority having obtained from Evopos which will be given at Evopos sole discretion after being supplied with the original Invoice Number and full details of the reason for return
b) The Products must be properly packed and returned at the Customer's expense and risk
c) Items not returned under warranty must be applied for return within 30 days of the date of the invoice and be in a saleable condition and in original packing
d) Items returned under warranty must meet with conditions in Warranty section (see section 11)
10.3 Evopos reserves the right to reject any Products which do not comply with the set out clause 10.2
10.4 If Evopos nevertheless agrees to accept any Products returned which are not in a saleable condition, Evopos reserves the right to charge the cost to the Customer of bringing the Products into a saleable condition.
11. WARRANTY
11.1 Evopos warrants that it has good title to or license to supply all Products to the Customer.
11.2 If any part of the Products should prove defective in materials or workmanship under normal operation or service, such part will be repaired or replaced only in accordance with any warranty cover or terms as provided by the manufacturer of the Products PROVIDED THAT authorisation has been given by Evopos and no unauthorised modifications to the Product or to the system of which the Product forms part have taken place. Evopos is not responsible for any labour or other expenses incurred in regard to defective or non-conforming Products. If warranty is approved Evopos will provide details of where to return the product or part. The cost and risk of returning the goods are the responsibility of the Customer unless otherwise stated.
11.3 Evopos is not responsible for the cost of installing or configuring any replacement products. Replacement products may be collected from Evopos main office or may at Evopos discretion be delivered to the Customer. Evopos can normally offer a service to install and / or re-configure products under warranty but this is charged for on a time basis and may be subject to travel expenses.
11.4 lf the Products are rejected by the Customer as not being in accordance with the Customer order pursuant to this clause written notification thereof giving detailed reasons for rejection must be given.
11.3 All software Products supplied hereunder are supplied ‘as is’ and the sole obligation of Evopos in connection with the supply of software Products is to use reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that such software Product should fail to conform to product description PROVIDED ALWAYS THAT the Customer notifies Evopos of any such non-conformity within 90 days of the date of delivery of the application software Product.
11.4 In certain instances where an installation, training or work is included in the price the installation or a set price is given for the completion of a task the work will be deemed to be complete when a). The specific item that is being installed is working at the time of the completion of the installation to it’s basic function, or b). The work is unable to be completed due to factors beyond Evopos control. Any additional work needed is charged on a time basis.
11.5 All other Training, Configuration or Work of any kind carried out by Evopos personnel is charged on a time basis only and as such is not subject to a guaranteed Job completion or any warranty.
11.6 Evopos will not consider any claim for compensation, indemnity or refund under liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Customer until Evopos has passed a corresponding credit note.
11.7 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE, Evopos DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESCRIPTION, DESIGN, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF DEALING, USAGE OR TRADE PRACTICE.
12. REFUNDS
12.1 If a product authourised to be returned under warranty cannot be repaired or replaced within 90 days a refund may be given. If a period of use has been available to the Customer then an amount may be adjusted to reflect this
12.2 If a support contract is cancelled than a refund may be given pro-rata for the period remaining after receipt of a written cancellation notification and a administration charge deducted. There would normally also be an administration charge if the Customer later requests to re-initiate a support contract
12.3 Labour and Travelling expenses are not subject to refunds even if associated products are returned or refunded
13. INDEMNITIES AND LIMITS OF LIABILITY
13.1 Evopos disclaims and excludes all liability to the Customer in connections with these terms and conditions including the Customers use of the Products and in no event shall Evopos be liable to the Customer for special, indirect or consequential damage including but not limited to loss of profits arising from loss of data or in connection with the use of the Products. All terms of any nature, express or implied, statutory or otherwise, as to correspondence with any particular description or sample, fitness for purpose or merchantability, are hereby excluded.
13.2 The Customer shall indemnify and defend Evopos and its employees in respect of any claims by third parties which are occasioned by or arise from any Evopos performance or non-performance pursuant to the instructions of the Customer or its authorised representative.
14. TERMINATION FOR CLAUSE
This Agreement may be terminated forthwith by notice in writing.
14.1 By Evopos if the Customer fails to pay any sums due hereunder by the date notwithstanding the provisions for late payment as in clause 7.1
14.2 If either party fails to perform any of its obligations under this Agreement and such failure continues for a period of 14 days after written notice thereof, by the other party.
14.3 If either party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or a reconstruction, or makes an arrangement with creditors or petitions for an administration order or has a Receiver or Manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, then without prejudice to any other rights or remedies available to it, the other party shall have the right to terminate this Agreement forthwith.
14.4 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any accrued rights or liabilities of either party.
15. CONTRACT
15.1 The headings in this Agreement are for ease of reference only and shall not affect its interpretation or construction.
15.2 No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of either party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
15.3 The Customer agrees not to assign any of its rights herein without written consent of Evopos.
15.4 In the event of any of these terms and conditions or any part being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.
15.5 Neither party shall be liable to the other for any delay in failure to perform its obligations hereunder (other than payment of money) where such delay or failure results from force majeur, act of God, fire, explosion, accident, industrial dispute or any cause beyond its reasonable control.
15.6 Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post and in the case of post will be deemed to have been given 2 working days after the date of posting. Documents or notices shall be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in the normal course of trading in writing by either party to the other for the purpose of receiving documents or notices after the date of this Agreement.
15.7 These Terms and Conditions shall be construed in accordance with English and Australian Law.