Terms and Conditions of Supply of Products & Services
Every quotation or purchase of Products and/or Services from Evongo Pty Ltd, are subject to the following terms and conditions without limitation or qualification. Evongo reserves the right to change these terms and conditions at any time, effective upon the posting of new terms and conditions on its website. It is the Customers responsibility to ensure that they have read, understood and agree to the most recent terms and conditions available on the website.
“Agreement” means these Terms and Conditions of Supply of Products and Services.”Confidential Information” includes trademarks, service marks, domain names, logos and other branding elements (“Marks”); and patents, copyrights, inventions, know-how, processes and software; and all associated rights in these. “Customer” means a person, firm or corporation, jointly and severally if there is more than one, acquiring Products or Services from Evongo; “Evongo ” means Evongo Pty. Ltd; “Intellectual Property Right” means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered; “Managed Equipment” means networking equipment and devices that Evongo has agreed to support under a Managed Services plan; “Managed Services” means a service provided by Evongo to the Customer to support the Customer’s Managed Equipment and end users; “Products” means any item, goods, equipment supplied by Evongo to the Customer; “Services” means Managed Services, hosting services, training services, consultation services supplied by Evongo or a third party to the Customer. “Services Schedule” means a document identifying the Managed Equipment and number of users that Evongo has agreed to support under a Managed Services Agreement. “Term” means the minimum duration of the Managed Services plan.
1. BASIS OF THE AGREEMENT
a. Unless otherwise agreed by Evongo in writing, these terms and conditions apply exclusively to every sale of Products or Services by Evongo to the Customer and cannot be varied or supplanted by any other conditions without the prior written consent of Evongo.
b. Any written quotation provided by Evongo to the Customer concerning the proposed supply of Products or Services is valid for as per quote expiry and is an invitation only to the Customer to place an order based upon that quotation.
2. TRADING HOURS
a. Normal business hours are from 8.30am to 5pm Monday to Friday (except Victorian public holidays).
b. Any work done outside of normal business hours will be considered after hours and will be charged at Evongo’s current after hours rate.
3. PAYMENT OBLIGATIONS
a. Payment for all Products and Services must be made by cash, cheque or EFTPOS.
b. The Customer shall make all payments due according to the due date on the invoice, without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Evongo to the Customer.
c. The Customer must notify Evongo of any dispute within 7 days of receipt of an invoice. Failure to notify Evongo within this time, will be construed as a waiver of any of its rights to dispute the invoice.
d. If the Customer fails to pay Evongo any sum due, Evongo may without prejudice to any other remedy available to it:
i. charge the Customer interest at the current legal rate on any sum due for the period from the due date until the date of payment in full;
ii. charge the Customer for all expenses and costs (including legal costs, debt collection fees and dishonoured cheque fees) incurred by Evongo resulting from the default and in taking whatever action it deems appropriate to recover any sum due;
iii. suspend or terminate the supply of any Products or Services to the Customer by giving written notice to the Customer and Evongo shall not be liable for any damages whatsoever resulting from the action taken.
e. Evongo shall be entitled at any time and from time to time to increase its fees by giving the Customer not less than 90 days prior written notice.
4. RETENTION OF TITLE
a. Until full payment in cleared funds is received by Evongo for all Products supplied by it to the Customer, as well as all other amounts owing to Evongo by the Customer, title and property in all Products remain vested in Evongo and do not pass to the Customer.
b. Until ownership of the Products has passed to the Customer, the Customer must:
i. hold the Products on a fiduciary basis as Evongo’s bailee;
ii. store the Products (at no cost to Evongo) separately from all other Products or any third party in such a way that they remain readily identifiable as property of Evongo;
iii. not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;
iv. maintain the Products in a satisfactory condition and keep them insured on behalf of Evongo for their full price against all risks to Evongo’s
c. Until ownership of the Products has passed to the Customer, the Customers right to possession of the Products shall terminate immediately if:
i. the Customer has a bankruptcy order made against them or makes an arrangement or composition with creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) the Customers convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of the Customers undertaking or any part thereof, or a resolution is passed or a petition presented to any court for winding up or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
ii. the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against the Customer, or the Customer fails to observe/perform any of its obligations under this agreement or any other contract between the Customer and Evongo, or the Customer is unable to pay its debts within the meaning of the Insolvency Act 2008 or the Customer ceases to trade; or the Customer encumbers or in any way charges any of the Products.
d. Evongo shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from Evongo.
e. The Customer grants Evongo, its agents and its employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customers rights to possession has terminated, to recover them and Evongo would be indemnified from and against all costs, claims, demands or actions by any party arising from such action.
5. PRODUCT RETURNS
a. It is not the policy of Evongo to accept the return of Products that were correctly supplied, except by the approval of management of Evongo. If Evongo in it’s sole discretion agrees to accept the returned Products, all such Products must be returned in their original condition including packaging and manuals.
b. A restocking fee may be charged at the sole discretion of Evongo. Before returning any Products an RA number must be obtained from Evongo, this should be clearly affixed to the item.
6. RISK AND INSURANCE
a. The risk in the Products and all insurance responsibility for theft, damage or otherwise in respect of the Products will pass to the Customer immediately upon delivery of the Products to the premises nominated by the Customer.
7. LATE DELIVERY
a. Any period or date for delivery of Products or provision of Services stated by Evongo is intended as an estimate only and is not a contractual commitment.
b. Evongo will not be liable for any consequences of late delivery howsoever caused.
c. If, through circumstances beyond the control of Evongo, Evongo is unable to effect delivery or provision of Products or Services, then Evongo may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer.
a. Evongo warrants that all Services will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
b. Evongo warrants that all Products supplied to the Customer will be free from material defect for a period of 30 days from the date of delivery. This warranty shall be limited to the replacement of or repair of the faulty Products, or the issue of a credit note, or the granting of a refund or other such compensatory measures as Evongo at its discretion considers appropriate in the circumstances, and shall be conditional upon the Customer complying with the conditions of the manufactures warranty (where applicable). Such measures shall relate only to the actual faulty Products or their value.
c. Where possible Evongo will transfer to the Customer the benefit of any warranty or guarantee given to Evongo.
d. Except as expressly provided in these Terms and Conditions, no warranty, condition, undertaking or term, express or implied, statutory or otherwise is given or assumed by Evongo, and all such warranties, conditions, undertakings and terms are hereby excluded to the fullest extent permitted by law.
a. Evongo does not exclude its liability to the Customer for direct damage to tangible property caused by the negligence of Evongo’s employees in connection with the performance of their duties or by defects in any Product supplied. Evongo’s total liability under this clause shall be limited to $2,500 for any one event or series of connected events.
b. Save in respect of claims for death or personal injury arising from Evongo’s negligence, in no event will Evongo be liable for any damages resulting from lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission by Evongo, whether such damages were reasonably foreseeable or actually foreseen.
c. Except as provided above in the case of personal injury, death and damage to tangible property, Evongo’s maximum liability to the Customer for any cause whatsoever (whether in the form of the additional cost of remedial Services or otherwise) will be for direct costs and damages only and will be limited to the amount received by Evongo from the Customer in respect of the managed services in the previous 12 months.
d. The Customer is responsible for the safety of Evongo’s employees or of its subcontractors whilst on the Customer’s premises, and must comply with all relevant statutory requirements and maintain adequate insurance against the appropriate risks.
e. Evongo shall have no liability to the Customer for any loss of original data due to any error or omission by the Customer, or due to any event that takes place at the Customer’s Premises, unless such event is caused by Evongo’s negligence.
f. The Customer’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this agreement is hereby excluded to the fullest extent permitted by law. These limitations will apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
g. The parties hereby acknowledge and agree that the limitations contained in this clause 9 are reasonable in light of all the circumstances.
a. Unless the relevant party has prior written consent of the other or unless required to do so by law, neither party will disclose or make any Confidential Information available to any other person, or use the same for its own benefit, other than as contemplated by these terms and conditions.
b. Each party’s obligations under this clause will survive termination of these terms.
c. The provisions of clauses 10.a and 10.b shall not apply to any information which:
i. is or becomes public knowledge other than by a breach of this clause;
ii. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
iii. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
iv. is independently developed without access to the Confidential Information.
a. Evongo will not be responsible to the Customer or any third party for any breach of any software license in respect of software provided to Evongo by the Customer to be installed on a Customer’s computer.
b. All software (third party or line of business applications) require a vendor support agreement
c. The Customer hereby indemnifies Evongo against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of Evongo installing software at the request of the Customer.
d. Where Evongo provides software to enable the Customer to use its Services, Evongo grants the Customer a non-exclusive, non-transferable licence to use the software solely in connection with those Services.
e. The Customer hereby agrees to comply with any terms and conditions reasonably required by the owner of the copyright in any software to protect the owner’s interest in that software.
a. Evongo undertakes to comply with the provisions of the Data Protection Act 1998 and any related legislation insofar as the same relates to the provisions and obligations of this Agreement.
b. Evongo gathers and holds personal data about the Customer, including name, physical and email addresses, and telephone numbers.
c. Evongo does not hold credit card information.
d. The obligations set out in this clause 12 shall remain in force notwithstanding termination of this Agreement.
e. The Customer understands that in certain situations Evongo’s employees may be in a position to see the contents of the Customers files.
f. It is the Customer’s obligation to use encryption and personal security programs to increase the security and privacy of their files if any of their files are particularly private or are required under any professional or statutory regulations to be kept confidential.
g. All Evongo employees sign a client data confidentiality agreement, a copy of which is available on request.
13. MANAGED SERVICES CONDITIONS
a. Where Evongo agrees to support the Customer’s end users via a Managed Services plan:
i. the Managed Service will only be available for the Managed Equipment and number of users as set out in the Services Schedule.
ii. the Managed Services will cover up to 3 devices per user (1 x mobile phone, 1 x tablet, 1 x PC or laptop) devices must be used in the business by a named user in the Services Schedule
iii. Evongo may not cover all devices due to age or unreliability issues and advice given to upgrade or replace these
iv. Only business grade hardware is supported
v. Evongo may make a reasonable recommendation to implement software or hardware to improve security and/or reliability and this is not implemented in a timely fashion, liability for outages caused or remediation of issues may not be covered by Evongo Managed Services
vi. the Customer must give Evongo Administrator-level access to all Managed Equipment at all times and Evongo may refuse to give the Customer Administrator-level access to it.
vii. The Customer must allow Evongo remote access the Managed Equipment at all times.
viii. Evongo will monitor the Managed Equipment to give advance warning of and reduce the likelihood of any failure or breakdown. However the Customer agrees that the monitoring tools cannot detect all impending faults and may not always prevent hardware failure.
ix. The Managed Services does not include setting up, installing or moving hardware, software or Services.
14. TERMINATING A SERVICE
a. Either party may cancel any Service at any time by giving the other party 30 days prior written notice following expiry of the contract Term.
b. Upon termination of a Service the Customer will immediately return to Evongo all Products that the Customer does not own but has been licensed to use during the term of Service.
c. Upon termination of a Service Evongo will make available to the Customer all usernames and passwords once:
i. all Products licensed to the Customer to use during the term of service are returned to Evongo; and
ii. all monies owed to Evongo are paid in full.
15. EVONGO EMPLOYEES
a. The Customer acknowledges that Evongo has a substantial investment in it’s employees that provide service to the Customer and that such employees are subject to Evongo’s control and supervision. In consideration of this investment, the Customer agrees not to solicit, hire, employ, retain or contract with any Evongo employee, without first receiving Evongo’s written consent.
b. If any employee of Evongo Pty Ltd terminates or is terminated of employment with Evongo (regardless of the reason for termination) and is employed by the Customer (or any affiliate or subsidiary of the Customer) in any capacity either during or within a 6 month period, the Customer shall immediately pay Evongo Pty Ltd an amount equal to 50% of the then current yearly salary or wage paid by Evongo to such employee.