Terms and Conditions
TERMS & CONDITIONS
1. EXHIBIT A (“End-User Terms and Conditions”)
The terms and conditions set forth below constitute the entire agreement between Envisian and customer with respect to the purchase of third-party products or software (“products”), third-party maintenance services (“maintenance”) and/or Envisian installation and/or consulting services (“services”) identified in the attached Envisian quote unless a signed and effective written agreement for the purchase of such products, maintenance and/or services is in effect between customer and Envisian. In the event of a conflict between such an agreement and these standard terms and conditions of sale, such agreement shall control.
2. CUSTOMER ORDER
Customer may accept the attached Envisian offer to sell (“Quote”) by issuing a purchase order in response to such Quote (each accepted Quote constitutes a “Customer Order”). Customer shall be deemed to unconditionally accept these terms and conditions by issuing such purchase order. No terms and conditions specified or pre-printed on any Customer purchase order or other form of acceptance shall add to or modify these terms and conditions.
Customer may accept the attached Envisian offer to sell (“Quote”) by issuing a purchase order in response to such Quote (each accepted Quote constitutes a “Customer Order”). Customer shall be deemed to unconditionally accept these terms and conditions by issuing such purchase order. No terms and conditions specified or pre-printed on any Customer purchase order or other form of acceptance shall add to or modify these terms and conditions.
3. SALE
When signed by Buyer and by Envisian. (“Seller”), for itself and for Envisian Pty Ltd. this Purchase Agreement (this “Agreement”) shall be a binding contract for the purchase and sale of the products (collectively, the “Equipment”) and/or services described in the Envisian Sales Quotation. This Agreement consists of the Envisian Sales Quotation (“Quote”), and these Terms and Conditions.
When signed by Buyer and by Envisian. (“Seller”), for itself and for Envisian Pty Ltd. this Purchase Agreement (this “Agreement”) shall be a binding contract for the purchase and sale of the products (collectively, the “Equipment”) and/or services described in the Envisian Sales Quotation. This Agreement consists of the Envisian Sales Quotation (“Quote”), and these Terms and Conditions.
4. PRICES AND TAXES
All Quotes are valid for twenty eight (28) days unless otherwise specified. All invoice prices are those specified in the Quote accepted by Customer. The Buyer shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority. GST will be invoiced unless Buyer supplies a valid tax-exempt certificate prior to delivery. Once a quote has passed the expired date, Envisian may cancel the quote or estimate without having to notify or receive an approval from customer. Envisian would appreciate it if customer could let us know if they no longer require the quote by email or by letting us know via correspondence in the quote.
All Quotes are valid for twenty eight (28) days unless otherwise specified. All invoice prices are those specified in the Quote accepted by Customer. The Buyer shall pay all taxes, fees, duty, levy, or charges imposed by any governmental authority. GST will be invoiced unless Buyer supplies a valid tax-exempt certificate prior to delivery. Once a quote has passed the expired date, Envisian may cancel the quote or estimate without having to notify or receive an approval from customer. Envisian would appreciate it if customer could let us know if they no longer require the quote by email or by letting us know via correspondence in the quote.
5. PAYMENT AND INVOICING TERMS
Payment in full of all invoices is due seven (7) days from date of invoice. Payment terms are subject to Customer maintaining a credit status acceptable to Envisian. Invoices for Products are issued upon shipment of Products from the manufacturer. Invoices for Services are invoiced at the start of any Service. Envisian has the right to charge a late payment fee of one and one half precent (1.5%) of the outstanding balance per month for each month, or partial month, any undisputed invoice remains unpaid beyond its due date. Customer will pay collection fees incurred by Envisian to effect settlement of any undisputed past due invoice. Products shipped to an Envisian facility for Services will be invoiced upon shipment from the manufacturer. Upon request, Envisian will cooperate with Customer’s third party leasing company to facilitate payment of the Customer Order by the leasing company. Notwithstanding the foregoing, Customer remains primarily responsible and liable for complete and timely payment of all invoices issued hereunder.In the event that products in the quote are subjected to any price and supply fluctuations that are outside of our control we reserve the right to update the price and product in the quote accordingly. If a product has undergone a price drop or a price increase, the quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on customer’s request and is subject to their final approval.
Payment in full of all invoices is due seven (7) days from date of invoice. Payment terms are subject to Customer maintaining a credit status acceptable to Envisian. Invoices for Products are issued upon shipment of Products from the manufacturer. Invoices for Services are invoiced at the start of any Service. Envisian has the right to charge a late payment fee of one and one half precent (1.5%) of the outstanding balance per month for each month, or partial month, any undisputed invoice remains unpaid beyond its due date. Customer will pay collection fees incurred by Envisian to effect settlement of any undisputed past due invoice. Products shipped to an Envisian facility for Services will be invoiced upon shipment from the manufacturer. Upon request, Envisian will cooperate with Customer’s third party leasing company to facilitate payment of the Customer Order by the leasing company. Notwithstanding the foregoing, Customer remains primarily responsible and liable for complete and timely payment of all invoices issued hereunder.In the event that products in the quote are subjected to any price and supply fluctuations that are outside of our control we reserve the right to update the price and product in the quote accordingly. If a product has undergone a price drop or a price increase, the quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on customer’s request and is subject to their final approval.
Price on non-stocked products are subjected to price and stock fluctuations and can only be confirmed once the quote is turned into an order. While we endeavour to honour every price quoted, if there is a price increase that is beyond our control, we reserve the right to increase the price as necessary.
6. FINANCING AND ASSIGNMENT
This Agreement binds Buyer, regardless of any financing arrangements, subrogations or assumptions. Buyer may not assign its rights or delegate its obligations hereunder except with the prior written consent of Seller (which consent may be withheld in its sole discretion).
This Agreement binds Buyer, regardless of any financing arrangements, subrogations or assumptions. Buyer may not assign its rights or delegate its obligations hereunder except with the prior written consent of Seller (which consent may be withheld in its sole discretion).
7. SHIPPING AND DELIVERY
Customer is responsible for all freight, handling and insurance charges which may be in addition to the price of the Products in the Quote. The carrier is not an agent of Envisian and in no event shall Envisian have any liability for loss or damage during shipment. Envisian shall endeavour to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery dates and Customer acknowledges that any delivery dates provided by Envisian are estimates only. Envisian shall not be liable for any delay in delivery or for failure to give notice of such delay. Customer shall accept and pay for partial shipments of Products.
Customer is responsible for all freight, handling and insurance charges which may be in addition to the price of the Products in the Quote. The carrier is not an agent of Envisian and in no event shall Envisian have any liability for loss or damage during shipment. Envisian shall endeavour to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery dates and Customer acknowledges that any delivery dates provided by Envisian are estimates only. Envisian shall not be liable for any delay in delivery or for failure to give notice of such delay. Customer shall accept and pay for partial shipments of Products.
8. CANCELLATION OF ORDERS
No Customer Order for Products or Maintenance may be cancelled or modified without Envisian’s consent. If Envisian consents to a Customer cancellation or modification request, Customer agrees to pay all actual resulting costs, expenses and fees incurred by Envisian from the manufacturer, the supplier and/or its shippers. Customer Orders for Services may be cancelled upon ten (10) days prior written notice. Customer will pay for all Services delivered through the date of cancellation.
No Customer Order for Products or Maintenance may be cancelled or modified without Envisian’s consent. If Envisian consents to a Customer cancellation or modification request, Customer agrees to pay all actual resulting costs, expenses and fees incurred by Envisian from the manufacturer, the supplier and/or its shippers. Customer Orders for Services may be cancelled upon ten (10) days prior written notice. Customer will pay for all Services delivered through the date of cancellation.
9. WARRANTY
All Products and Maintenance purchased hereunder are subject to the warranties provided by the manufacturer. Envisian hereby transfers to Customer such transferable warranties Envisian receives from the applicable manufacturer as legally permissible. Envisian warrants that its Services will be performed by qualified individuals in a professional and workmanlike manner conforming to generally accepted industry standards and practices. Services are supported against defects in workmanship for thirty (30) days after delivery. Envisian makes no warranty as to the results of any services provided. Except as set forth in this paragraph, all products and maintenance are provided “as is” and Envisian disclaims any and all warranties and remedies, whether express or implied, including but not limited to implied warranties of merchantability, suitability and fitness for a particular purpose or use, title and non-infringement.
All Products and Maintenance purchased hereunder are subject to the warranties provided by the manufacturer. Envisian hereby transfers to Customer such transferable warranties Envisian receives from the applicable manufacturer as legally permissible. Envisian warrants that its Services will be performed by qualified individuals in a professional and workmanlike manner conforming to generally accepted industry standards and practices. Services are supported against defects in workmanship for thirty (30) days after delivery. Envisian makes no warranty as to the results of any services provided. Except as set forth in this paragraph, all products and maintenance are provided “as is” and Envisian disclaims any and all warranties and remedies, whether express or implied, including but not limited to implied warranties of merchantability, suitability and fitness for a particular purpose or use, title and non-infringement.
10. LIMITATION OF LIABILITY
Notwithstanding anything else herein, all liability of Envisian under this agreement or otherwise shall be limited to money paid to Envisian under this agreement during the six (6) month period preceding the event or circumstances giving rise to such liability and in the case of damages relating to any allegedly defective product shall, under any legal or equitable theory, be further limited to the purchase price paid by customer for such product. In no event shall Envisian be liable for any incidental or consequential damages, lost profits, or lost data, or any other indirect damages even if Envisian has been informed of the possibility thereof.
Notwithstanding anything else herein, all liability of Envisian under this agreement or otherwise shall be limited to money paid to Envisian under this agreement during the six (6) month period preceding the event or circumstances giving rise to such liability and in the case of damages relating to any allegedly defective product shall, under any legal or equitable theory, be further limited to the purchase price paid by customer for such product. In no event shall Envisian be liable for any incidental or consequential damages, lost profits, or lost data, or any other indirect damages even if Envisian has been informed of the possibility thereof.
11. SERVICES
Customer may purchase Envisian Services identified in a Quote. Custom project-based services require a statement of work between the parties and are not governed by these terms and conditions. All prices for Services in the attached Quote are based on work being performed during normal business hours (Monday through Friday). Security arrangements and access for Envisian at the Customer’s location is the responsibility of Customer. Service prices for installations assume Customer provides a complete list of the installation sites at least two (2) weeks prior to the Services commencement. Customer will notify Envisian in writing of cancellations of scheduled site visits no less than five (5) business days prior to such scheduled site visit. Customer changes to the number of devices/office locations to be implemented may result in changes to prices and delivery requirements. Other than Customer Content, Envisian retains ownership rights to all intellectual property, including but not limited to all methodologies, tools, techniques or software, used or developed by Envisian during and as a result of Services provided hereunder. “Customer Content” means the specific data that results from the delivery of the Service and that is unique to the Customer, including Customer’s systems design and configuration specifications and related reports.
Customer may purchase Envisian Services identified in a Quote. Custom project-based services require a statement of work between the parties and are not governed by these terms and conditions. All prices for Services in the attached Quote are based on work being performed during normal business hours (Monday through Friday). Security arrangements and access for Envisian at the Customer’s location is the responsibility of Customer. Service prices for installations assume Customer provides a complete list of the installation sites at least two (2) weeks prior to the Services commencement. Customer will notify Envisian in writing of cancellations of scheduled site visits no less than five (5) business days prior to such scheduled site visit. Customer changes to the number of devices/office locations to be implemented may result in changes to prices and delivery requirements. Other than Customer Content, Envisian retains ownership rights to all intellectual property, including but not limited to all methodologies, tools, techniques or software, used or developed by Envisian during and as a result of Services provided hereunder. “Customer Content” means the specific data that results from the delivery of the Service and that is unique to the Customer, including Customer’s systems design and configuration specifications and related reports.
12. SUBCONTRACTORS
Envisian may engage subcontractors to perform installation, support and other services hereunder.
Envisian may engage subcontractors to perform installation, support and other services hereunder.
13. MAINTENANCE
Any Maintenance resold by Envisian hereunder is subject to the terms and conditions for such services identified by the third party provider. Envisian is not a party to any such third party terms and conditions.
Any Maintenance resold by Envisian hereunder is subject to the terms and conditions for such services identified by the third party provider. Envisian is not a party to any such third party terms and conditions.
14. SOFTWARE
Any software delivered under this Agreement is subject to the license terms provided with it. All software license terms are established directly between the Customer and the owner or licensor of the software. Envisian is not a party to any such software license and makes no warranties or representations related to the ownership, use or operation of the software.
Any software delivered under this Agreement is subject to the license terms provided with it. All software license terms are established directly between the Customer and the owner or licensor of the software. Envisian is not a party to any such software license and makes no warranties or representations related to the ownership, use or operation of the software.
15. GOVERNING LAW
All transactions made under this Agreement will be governed by the applicable state laws for the state of Victoria, Australia, excluding any conflict of laws rules that may apply in such state.
All transactions made under this Agreement will be governed by the applicable state laws for the state of Victoria, Australia, excluding any conflict of laws rules that may apply in such state.
16. NON-SOLICITATION BY CLIENTS Clients will not, directly, Indirectly or through any interposed entity, without the prior consent of the Company, solicit, canvass or secure the custom of any person who Employed by the Company. In certain instances Employee may accept employment with a client or provide services to a client (these instances will be reviewed by the Company and a decision will be made on a one off basis). For purposes of this Agreement, “Client” shall mean any individual, corporation, limited liability company, partnership, proprietorship, firm, association, or any other entity for which the Company has sold or performed any services and ”Employee” shall mean any individual, corporation, limited liability company, partnership, proprietorship, firm, association or any other entity that is contacted by the Company, either orally or in writing, to sell and/or deliver services.
17. CONFIDENTIALITY
Each party acknowledges that it or its employees may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is proprietary to or confidential to the other party or its affiliated companies or their clients or to third parties to whom the disclosing party owes a duty of confidentiality. Any and all non-public information of any form, including the terms of this Agreement, obtained by the receiving party or its employees in the performance of this Agreement shall be deemed to be confidential and proprietary information. Both parties agree to hold such information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or to use such information for any purposes whatsoever other than the provision of services as contemplated by this Agreement and to advise each of its employees who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential. It is understood and agreed that in the event of a breach of this Section 15 damages may not be an adequate remedy and the disclosing party shall be entitled to injunctive relief to restrain any such breach, threatened or actual. Envisian represents that aspects of the licensed materials, including the specific design and structure of individual programs, are the protected intellectual property of the manufacturer under trade secret, copyright, patent, trademark or any relevant law.
Each party acknowledges that it or its employees may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information which is proprietary to or confidential to the other party or its affiliated companies or their clients or to third parties to whom the disclosing party owes a duty of confidentiality. Any and all non-public information of any form, including the terms of this Agreement, obtained by the receiving party or its employees in the performance of this Agreement shall be deemed to be confidential and proprietary information. Both parties agree to hold such information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or to use such information for any purposes whatsoever other than the provision of services as contemplated by this Agreement and to advise each of its employees who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential. It is understood and agreed that in the event of a breach of this Section 15 damages may not be an adequate remedy and the disclosing party shall be entitled to injunctive relief to restrain any such breach, threatened or actual. Envisian represents that aspects of the licensed materials, including the specific design and structure of individual programs, are the protected intellectual property of the manufacturer under trade secret, copyright, patent, trademark or any relevant law.
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