EVolution Terms of Sale

TERMS AND CONDITIONS OF SALE (Terms)

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1. GENERAL

1. All EVolution invoices shall be subject to these Terms unless expressly agreed to in writing by EVolution, and Buyer waives any terms and conditions of purchase which are inconsistent with these Terms.

2. Customer agrees that all transactions made with EVolution shall be deemed to be made in the State of Victoria and Customer agrees to submit to the jurisdiction of the appropriate Court in that State.

3. All sales are made at the ruling price of EVolution, unless otherwise agreed in writing.

4. All returns are at the discretion of EVolution Australia and will incur a 10% restocking fee

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2. DEFINITIONS

Confidential Information: in relation to a Discloser means all information relating to the products, services, business or affairs of the Discloser which is disclosed to the Recipient and includes but is not limited to Intellectual Property, plans, inventions, discoveries, formulae, processes, designs, specifications, software, object code, drawings, prototypes, products, samples, improvements, developments, medical methodologies, applications, engineering and manufacturing and marketing data, customer names, trademarks, trade names and trade secrets, whether or not the same are or may be patents, registered or otherwise publicly protected, as well as any commercial, financial or technical information.  Confidential Information does not however include information or material which:

• is now or becomes generally available to the public other than through a breach of these Terms; or 

• was known to the Recipient on a non-confidential basis prior to the disclosure pursuant to these Terms; or

• becomes available to the Recipient on a non-confidential basis from a Person other than the other party to these Terms; or

• the Recipient is required by law to disclose; or

• the Discloser agrees in writing that it can be disclosed to a third party without restriction.

 

Customer: means the Person named in the invoice which references these Terms that purchases or otherwise obtains goods, Deliverables or Services from EVolution and shall further include any partner, servant, agent, contractor or employee of Customer and in the case of two or more Persons shall refer to each of them jointly and severally.

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Deliverable: means the task completed or item, product, Service or deliverable provided to Customer by EVolution.

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Developed Intellectual Property: means any Intellectual Property created during Delivery of Services, or which has been or will be created in connection with or as a result of the Services. 

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Discloser: means a party whose business or affairs are the subject matter of the Confidential Information.

EVolution Intellectual Property means Intellectual Property that is owned by, or licensed to, EVolution prior to the commencement of these Terms, or developed by EVolution independently of these Terms. 

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Intellectual Property: means any intellectual and industrial property rights, including trade marks, copyright (including future copyright), inventions, patents, designs, circuits and other eligible layouts, database rights, and other intellectual property rights as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation dated 14 July 1967.

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Person: includes any natural person, corporation or body of persons whether or corporate or not.

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Personal Information: means information or an opinion, whether true or not, about an identified or reasonably identifiable individual, contact details of any Person, and the tax file number (as defined in Part VA of the Income Tax Assessment Act 1936 (Cth)) of any Person, in each case, which is collected, accessed or generated by EVolution, any of its subcontractors, or any of their respective officers, employees or agents as a consequence of or in the performance of the Services and Deliverables. 

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Recipient: means the party which receives, possesses or is given access to Confidential Information from the Discloser.

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Services: means the services performed or goods or products provided by EVolution to a Customer. 

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Source Code: means the complete high level language computer programs which, when compiled, generate the object and executable program that constitutes the useable software product. Source Code materials include the make files and other necessary instructions to the compiler and linker, as reasonably required for a programmer to understand how the software operates.

 

3. PAYMENT

Unless otherwise advised, the terms of payment are “Net 7 days”.

Should Customer not pay by the invoice due date, at EVolution’s discretion EVolution shall be immediately entitled to:-

• Suspend all further Delivery of Services until all outstanding monies have been paid; and/or

• charge Customer interest on overdue amounts at the Reserve Bank of Australia’s large business variable indicator rate (Reserve Bank Rate). The effective Reserve Bank Rate will be changed twice yearly as follows:

  • Reserve Bank Rate effective 1 April to 30 September: Reserve Bank Rate published for previous February;

  • Reserve Bank Rate effective 1 October to 31 March: Reserve Bank Rate published for previous August.

Where interest is charged, it will be calculated monthly on amounts outstanding from the date on which they were due and payable, until EVolution receives full payment of the outstanding amounts.

 

EVolution shall also be entitled to recover from Customer all damages, expenses, legal fees (including but not limited to all fees payable by EVolution to a Solicitor) and costs of collection incurred (which means and includes all fees, costs and commissions, whether actually payable or contingently liable to be paid to a mercantile agent on the recovery of a debt) by EVolution in exercising or attempting to exercise EVolution’s rights in relation to these Terms or howsoever otherwise incurred, in addition to all other remedies EVolution may have at law.

 

4. WARRANTIES

To the maximum extent permitted by law, all terms, conditions or warranties that would have been implied into this agreement or in connection with the supply of any goods and/or services by EVolution under law, statute or custom are excluded.

Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.

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5. LIMITATION OF LIABILITY

Except for any liability which EVolution may have under law EVolution’s liability to Customer is limited to (at EVolution’s election):

• repair or replacement of goods supplied;

• a partial or full (as relevant to circumstances) refund of the amount paid for the Services.

• Customer acknowledges this express limitation of liability and agrees to limit any claim accordingly.

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For the avoidance of doubt, Customer acknowledges that EVolution shall not be held liable for any:-

• consequential losses of Customer that arise from Customer’s receipt of the Services.

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6. CONFIDENTIALITY, PRIVACY AND INTELLECTUAL PROPERTY

• All Confidential Information disclosed by either party must be held in confidence by the Recipient who will not directly or indirectly disclose nor permit the disclosure of any such Confidential Information whether verbally or in writing to any Person other than in accordance with these Terms, and all such Confidential Information will at all times remain the exclusive property of the Discloser.  The Recipient agrees to return all Confidential Information to the Discloser immediately upon request.

• EVolution and Customer shall comply with: the Privacy Act 1988 (Cth) as amended from time to time (Privacy Act); the Australian Privacy Principles (as current) in the Privacy Act; the Do Not Call Register Act 2006 (Cth); the Spam Act 2003 (Cth); and any other requirement (to the extent applicable to either party) under law or industry code relating to privacy, data protection, surveillance, security, direct marketing or the handling of Personal Information.

• To the extent required to enable Delivery of Services, Customer grants EVolution a non-exclusive, licence to use Customer Intellectual Property.

• The unencumbered ownership of all Developed Intellectual Property vests in EVolution, and Customer assigns the unencumbered legal and beneficial ownership of all Developed Intellectual Property to EVolution. 

• No Source Code for any software, technology or application used to Deliver the Services will be provided to Customer. 

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(a) As between the parties, EVOLUTION GROUP PTY LTD owns all intellectual property rights in and to:

(i) any Material provided, created or developed by or on behalf of EVOLUTION GROUP PTY LTD in connection with this agreement; and

(ii) any modifications or enhancements to such Material, (EVOLUTION GROUP PTY LTD IP).

(b) Upon payment in full for the Supply, EVOLUTION GROUP PTY LTD grants you a non-exclusive, perpetual, irrevocable, royalty free licence to use EVOLUTION GROUP PTY LTD IP solely in order to enjoy the full benefit of the Supplies.

(c) As between the Parties, EVOLUTION GROUP PTY LTD owns all Material provided, created or developed in connection with this agreement.

(d) You must not:

(i) create derivative works based on, or directly or indirectly derive any income from any EVOLUTION GROUP PTY LTD IP;

(ii) access, copy, frame or mirror any EVOLUTION GROUP PTY LTD IP, other than copying or framing on its own intranet or otherwise for its own internal business purposes;

(iii) rent, lease, reverse engineer, decompile or disassemble any EVOLUTION GROUP PTY LTD IP; and

 (iv) directly, indirectly or take steps to register or apply for, any EVOLUTION GROUP PTY LTD PIP or any Intellectual Property Rights substantially similar to any EVOLUTION GROUP PTY LTD IP.

(v) resell any product, piece of equipment or software to a third party without the express permission of EVOLUTION GROUP PTY LTD

(e) In this clause 6, Materials means any hardware, software, firmware, tools, documentation, reports, data, diagrams, procedures, plans or other material.

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Customer acknowledges and accepts that the confidentiality, privacy and Intellectual Property obligations of these Terms remain ongoing and perpetual for both EVolution and Customer. 

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