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1. User Agreement & Terms of Service
(a) the Evok3d.com website and any of its associated services and functionality; or
(b) the Evok3d.com mobile application,
(in each case, the "Website") you signify your agreement to be bound by these terms and conditions ("Agreement"). Please read this Agreement carefully before using the Website.
1. This Agreement is formed between you and Evok3d.com Pty Ltd (referred to in this Agreement as "We", "Us" and "Our").
2. Anyone who uses the Website is referred to in this Agreement as "you" and "your".
3. If you do not agree to any terms and conditions of this Agreement, you must not use the Website.
4. We reserve the right to make changes to this Agreement from time to time at our sole discretion. By continuing to use the Website, you agree to be bound by the changes.
1. You must be a registered member to make orders and access some features of the Website.
2. When registering and activating your account, you will provide us with personal information such as your name and address, and a valid email address. You must ensure this information is accurate and current.
3. User Representations
1. You represent and warrant that:
(a) you are at least eighteen (18) years of age;
(b) you possess the legal right and ability to enter into a legally binding agreement with us; and
(c) you will use the Website in accordance with this Agreement.
4. Your Use of the Website
1. The only authorised access point to the Website is via http://www.evok3d.com.au/
and its associated mobile application. We will not be responsible in any way for access outside these access points.
2. You agree to use the Website only for purposes that are permitted by:
(a) this Agreement;
(b) any applicable law or regulation; and/or
(c) generally accepted practice or guidelines.
3. You must not (or attempt to): (a) access any part of the Website by any means other than through the interface provided by us;
(b) engage in any activity that interferes with or disrupts the Website or the servers and networks that host the Website;
(c) interfere with security-related features of the Website or features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or the content on the Website; or
(d) use, copy, or distribute content except as permitted by this Agreement, by law or with our prior written consent.
4. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
5. You are solely responsible for the activity that occurs on your account (including orders placed using your account), and you must keep your account password secure. We are not responsible for any unauthorised activity on your account if you fail to keep your account login information secure.
6. You must not use another member's account without our, and/or the other user’s, express permission.
7. If you suspect or become aware of any unauthorised use of your account or that your password is no longer secure, you must notify us immediately and take immediate steps to re-secure your account (including by changing your password).
8. The Service provides users with the ability to post, view, offer to license and license Content from other users. “Content” includes, without limitation, computer files, models, three-dimensional CAD data, other three-dimensional data, images, photographs, designs, text, software, scripts, graphics, interactive applications, blog posts or comments, and other materials you may contribute to, access with, view on, or license through the Service.
9. evok3d reserves the right to discontinue any aspect of the Service at any time. evok3d may provide interactive areas (such as blogs, comment boards, etc.) where Content is not confidential. You should exercise the utmost discretion before providing any personal information or other sensitive information on these interactive areas of the Service. Users of interactive areas are solely responsible for the content and consequences of anything they post. evok3d will have no liability for the content and consequences of such postings.
11. Although evok3d is not obligated to monitor Content or accuracy of information on the Service, evok3d retains the right, in its sole and absolute discretion, to monitor, edit, prohibit, or remove any Content at any time, without notice, for any reason.
6. Restrictions and Conditions Relating to the Content
12. In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content:
13. The Content that you upload or post, offer to license, and license to others through the Service may be used, downloaded, copied, printed and otherwise licensed by a Content licensee after the license fee has been paid, provided that such use, possession and other activities by the licensee are subject to these Terms of Service and any reasonable terms and conditions not inconsistent with these Terms of Service that you expressly provide when making your Content available for license by others through the Service.
14. THE CONTENT THAT YOU ACCESS OR LICENSE THROUGH THE SERVICE IS PROVIDED TO YOU “AS IS,” “WITH ALL OF ITS FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES REGARDING SUCH CONTENT ARE HEREBY DISCLAIMED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. USE OF CONTENT ACCESSED OR OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service.
15. You will not post or otherwise make available to or on the Service any unlawful, threatening, pornographic, obscene, defamatory, libelous, profane, violent, or other offensive Content; any Content for fabricating operable guns, gun components, gun accessories, or other weapons; or any Content that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or violate any laws, statutes, ordinances, or regulations. evok3d may, in its sole and absolute discretion, remove such prohibited Content from the Services or take any other action We determine may be necessary to cure or prevent such violations of these Terms of Service. evok3d will fully cooperate with any law enforcement authorities, court order, or subpoena requesting or directing Us to disclose the identity of anyone posting such materials.
16. You will be exposed to Content from a variety of sources, and evok3d is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You may also be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and evok3d is not responsible for any offense, harm, or damage resulting from your exposure to such Content.
17. You will not use Content licensed through the Service in a manner that infringes the intellectual property rights, publicity rights or other rights of any other party. You will not reverse engineer any Content licensed, and your use of the Content must comply with these Terms of Service.
18. After your license payment for Content has been completed with a credit card or Paypal (as indicated by a confirmation number at the end of the checkout process), you may download the Content and use it in the manner permitted by these Terms of Service and any terms.
19. All licenses to Content are final and licensed Content may not be returned for a refund. In the event the licensed Content is defective or fails to comply with the written description of the Content, evok3d may assist you in resolving the problem with the licensor. If the problem is not resolved within a reasonable time, then evok3d may, in its sole and absolute discretion, provide a refund of the license fee, in which case such refund shall be your sole and exclusive remedy for such defect or failure to comply.
20. Licenses to use the Content are non-exclusive and non-transferrable. The Content licensee does not own any Content. Licensed Content may not be sold, given, licensed, or assigned to another person or entity in the form it is downloaded from the Service or in modified form.
21. If you use the licensed Content in software products, including but not limited to video games, simulations, or VR-worlds, you must take all reasonable measures to prevent the end user from gaining access to the Content. Methods of safeguarding the Content include, but are not limited to, (i) using a proprietary disc format, (ii) using a proprietary Content format, (iii) using a proprietary and/or password protected database or resource file that stores the Content data, or (iv) encrypting the Content data.
22. Licensors of Content through the Service receive royalty payments for their Content licensed to licensees. Information on royalties and payment options is provided here. All payments shall be made in AUS dollars. We reserve the right to change the royalty payment amounts from time-to-time in our discretion.
23. You will keep your User information accurate and up-to-date to allow proper payments to you by evok3d. If your User account information is incorrect or inaccurate, payments may be delayed or you might not receive your payment. If you are owed any royalty payments, We will attempt to transmit the payment to you using the contact information supplied by you in your User name. We will attempt to contact you for three (3) years starting from the date the royalty is earned. If We are unable to process your royalty payment within the three (3) year period, you will forfeit any payment owed to you, subject to any unclaimed, escheat, or abandoned property laws that may apply.
7. Termination of Services
1. We may stop (temporarily or permanently) providing access to the Website to you at our discretion and without prior notice.
2. We may terminate your account or restrict your access to the Website. If we do this, you may be prevented from accessing all or parts of the Website, your account details or other content contained in your account.
3. We will not be liable to you or any third party in the event of us taking actions under clauses 5.1 and 5.2.
8. Changes to the Website
1. We aim to provide a positive experience for you. We reserve the right to change the Website at any time. We do not guarantee that you will be able to access the Website in the same way or with the same equipment or software you used prior to the change.
9. Information on this Website
1. Information about products on the Website is based on material provided by suppliers and product manufacturers.
2. You understand and agree that except as required by law (including the Australian Consumer Law) we cannot be held responsible for inaccuracies or errors caused by incorrect information supplied to us or by manufacturers or suppliers changing product specifications without notice to us.
3. You agree to make your own enquiries to verify information provided and to assess the suitability of products before you order the products.
4. Due to photographic and screen limitations associated with the representation of products, some actual products may differ to a small extent in visual appearance (for example in colour) from the way they appear on the Website.
10. Disclaimer and Liability
1. We do not warrant that the Website will be available at all times or that it will be provided without fault or disruption.
2. Unless we are not permitted to do so by law (including under the Australian Consumer Law), we exclude all liability to you or anyone else for loss or damage of any kind or nature relating in any way to the Website including, but not limited to, loss or damage you might suffer as a result of:
(a) errors, mistakes or inaccuracies on the Website;
(b) you acting or not acting, on any information contained on or referred to on the Website and/or any linked Website;
(c) personal injury or property damage of any nature resulting from your access to or use of the Website;
(d) any unauthorised access to or use of our secure servers and/or personal information and/or financial information stored on those servers;
(e) any interruption or cessation of transmission to or from the Website;
(f) any bugs, viruses, trojan horses or other harmful code or communications which may be transmitted to or through our Website by any third party; and/or
(g) the quality of any product or service of any linked sites.
3. We do not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party through the Website or any linked Website or featured in any banner or other advertising. We will not be a party to or in any way responsible for monitoring any transaction between you and third party providers of products and services.
4. Due to photographic and screen limitations associated with the representation of products, some actual products may differ to a small extent in visual appearance (for example in colour) from the way they appear on the Website.
5. Where any law (including the Australian Consumer Law) provides a consumer guarantee which may not be lawfully excluded, our liability will be limited to that provided by law.
6. Except as required by law (including the Australian Consumer Law), in no event shall we, our affiliates and related entities or our suppliers be liable for any loss or any special, incidental or consequential damages arising out of or in connection with our Website or this Agreement (however arising, including negligence). You agree to accept sole responsibility for the legality of your actions under the laws which apply to you. You agree that we, our affiliates and related entities or our suppliers have no responsibility for the legality of your actions.
1. You will at all times indemnify, and keep indemnified, us and our directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by you or by us arising from any claim, demand, suit, action or proceeding by any person against you or us where such loss or liability arose out of, in connection with or in respect of your conduct or breach of this Agreement.
12. Placing Orders
1. Products displayed on the Website do not constitute an offer to sell. It is an invitation to treat only.
2. Orders placed by you are offers to purchase particular products under the terms and conditions in this Agreement at the price specified (including delivery and other charges).
3. Products in your cart are not reserved until you have completed the checkout process. Orders are only confirmed once payment is received in full.
4. To the extent permitted by law we reserve the right to accept or reject your offer for any reason (or no reason) including, but not limited to, the unavailability of any product, an error in the price or product description, or an error in your order.
5. You must review your order carefully before placing it. Once an order is confirmed, you are unable to cancel or change it. If you have any problems with your order, then you must go through the normal returns process outlined in clause 20. Please note that change of mind returns are given at our absolute discretion. As a general rule, we will not change or replace your order where you have made an error.
6. In the event that we cancel or are unable to fulfil your order (including because a product has become unavailable or we cease selling the product for any reason whatsoever), we will provide a full refund of any payment received. Except as required by law (including the Australian Consumer Law), we will not be liable to you for any other loss, such as any additional costs associated with you purchasing the product from another retailer at a higher price (including delivery and other charges).
13. Price, Payment and Use of Discount/Coupon Codes
1. The prices of products, delivery and other charges shown are in Australian dollars and include GST (except where explicitly stated Excl GST) where applicable.
2. Prices are current at the time of display but are subject to change.
3. All payments must be received in full prior to dispatch. Please read the Payment section of the Website for payment options.
4. If your payment is not received or is declined by your bank or credit card issuer, we cannot and will not hold the product against your order. In such instances we do not guarantee that the product will be available should you try to order it again.
5. A discount/coupon code may only be redeemed once per household for orders. These codes may not be used in conjunction with any other discounts. Only one discount/coupon code may be used per order.
14. Supply and Delivery of Products
1. Subject to this Agreement, we will supply the products shown on your order confirmation.
2. We will use our best endeavours to meet stated timeframes for delivery, however many factors (some of which are beyond our control) can affect these timeframes and we cannot guarantee that they will always be met.
3. We do not allow personal pick up, irrespective of reasons and/or circumstances of your order.
15. Software and Technology Purchases – Limitation of Liability
1. You understand and acknowledge that:
(a) storage media (such as hard drives) can fail without warning and if this occurs, programs, data or other information ("software") stored on the media may be at risk of corruption or irrecoverably lost; and
(b) if you order storage media from us, whether separately or as a part of a larger electronic or computing product, it is your responsibility to guard against loss or damage to software stored on the media and to implement strategies for the safe keeping of software.
2. We recommend that you regularly back up software stored on the media.
3. In the event that storage media ordered from us becomes faulty, fails or otherwise detrimentally affects software or data stored on it, except as required by law (including the Australian Consumer Law), we will not be liable for any loss or damage to the software or data, however arising.
4. You should maintain a backup of all software and data stored on your devices. If you return media (such as a hard disc drive), whether separately or as a part of a larger electronic or computing product, to us for any reason, including replacement or repair, we will not be responsible for any software or data stored on the media. We make no representation that we will be able to repair or replace any product without risk to or loss of the software or data.
16. Title and Risk
1. We retain ownership of products you order until payment is received in full for those products together with delivery and other charges.
2. Risk in the products you order, such as loss or damage, passes to you upon delivery.
17. Products Out of Stock
1. We reserve the right to notify you that products for which you placed orders have become unavailable.
2. In the event that you order a product from the Website and we later inform you that we no longer stock the product you had originally ordered, we may provide you with a substitute for the product of a quality and value equivalent to or greater than the originally ordered product.
3. If we are not able to provide you with a substitute for the product, we will (at your election) provide you with store credit or a refund to the value of the product that was not supplied to you including the delivery fee.
18. Change of Mind Returns
1. Please order carefully as we do not refund or exchange simply because you changed your mind or you have made an error in finalising your order (such as choosing an incorrect size or colour). We may allow a refund or store credit (at our election) on a case-by-case basis for such returns, provided that the item in question is:
(a) returned within 28 days of order;
(b) not used (with all original packaging); and
(c) not damaged in any way.
If we allow a return in these circumstances, we will ask you to follow the returns process outlined in this Agreement.
2. If we allow a return in these circumstances, we will provide you with a refund or store credit only when we receive the returned product. Except in circumstances where you have been sent an item that was not what you ordered, return postage is at your expense.
3. A $25.00 or 20% (whichever is lower) re-stocking fee will apply to returns accepted under this clause.
4. Store credits must be used within 12 months of issue. Store credits may only be used to order from us and are not redeemable for cash.
19. Defective Goods
1. The Australian Consumer Law provides certain guarantees to consumers when they purchase goods and these guarantees cannot be excluded, restricted or modified. These consumer guarantees are different to, and separate from, any warranty which is given voluntarily by Evok3d.com .au. The time limit of consumer guarantees varies depending on the price and quality of the goods and may extend beyond any warranty given by Evok3d.com or the manufacturer of the goods.
2. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement for or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
3. Any warranty given by us will apply in addition to other rights and remedies you may have under the Australian Consumer Law or any other law.
4. Where applicable, you may make a claim in relation to goods that are faulty in accordance with our 12 Month Warranty Terms & Conditions, which is available on our website.
5. The warranty under the 12 Month Warranty Terms & Conditions is given by Evok3d.com Pty Ltd of Mulgrave, Victoria 3170 and, where applicable, applies to defective goods for a period of 12 months, commencing from the date that your goods are received. To make a claim under this warranty, you must contact our Customer Service Team via our Customer Support email at: firstname.lastname@example.org .au, attach a copy of the document containing the warranty and describe the nature of the defect. If you are entitled to make a claim under this warranty, our Customer Support will provide you with instructions as to how the goods may be returned to us at our expense (either you will be reimbursed for standard postage or, for larger items, we will organise a courier to retrieve the items). Unless otherwise provided by law, you will bear any other costs incurred in making a claim under this warranty.
6. Goods that you purchase from us may contain warranty documents on or inside the packaging provided by the manufacturer of the product. Any such warranty documents are not given by Evok3d.com .au, and are separate from any warranty given by us. Some warranty documents provided by manufacturers of imported goods may not apply in Australia. You should contact the manufacturer identified on the warranty document to determine whether or not the warranty applies to the goods in Australia and, if so, how you should go about making a claim under such a warranty.
20. Process for Returns and Refunds
1. When returning a product, please contact us via the Customer Support email at: email@example.com .au. Once contacted we will advise you of the best way to return the product(s) and provide you with a Return Authorisation Number.
2. Refunds will be issued using the payment method used for purchase.
3. We aim to process refunds and replacements within 28 days of receipt by us of the original product.
4. Replacement of products, refunds and repairs will not be made until the original product is received by us and you’re claim is verified.
5. Subject to clause 15, we will not refund a purchase or replace a product where in our reasonable opinion the product has following sale to you become of unacceptable quality due to misuse, failure to use in accordance with manufacturer's instructions, using it in an abnormal way or failure to take reasonable care.
21. Intellectual Property
1. We reserve all intellectual property rights, including but not limited to, copyright in material and/or services provided by us. Nothing in the Agreement gives you a right to use any of our marketing material, business names, trademarks, logos, domain names or other distinctive brand features.
2. Other trademarks used on the Website that belong to third parties are used with permission and remain the intellectual property of the third party.
3. You may not:
(a) modify or copy the layout or appearance of the Website nor any computer software or code contained in the Website; and/or
(b) decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Website.
4. If you correspond or otherwise communicate with us, you automatically grant to us an irrevocable, perpetual, non-exclusive, royalty-free, world-wide licence to use, copy, display and distribute the content of your correspondence or communication and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote such content. This may include, but is not limited to, publishing testimonials on our Website and developing your ideas and suggestions for improved products or services we provide.
5. You may not post, offer for license, or license to others through the Service any Content in which you do not own all rights or have such licenses, rights, consents, releases and permissions as are necessary for you to legally post, offer for license and license such Content to others. The Content that you post, offer for license, or license to others through the Service must not contain third party patented, trademarked, or copyrighted material, or material that is subject to other third party proprietary rights such as publicity rights, privacy rights or trade secret rights, unless you have permission from the rightful owner of such rights in the material or you are otherwise legally entitled to post, offer for license, or license the material to others. You should consult your own legal advisors to determine whether you may legally post, offer for license or license to others through the Service any particular Content.
6. Content licensors (or, if applicable, their licensors) retain all of their ownership rights, or other rights, in Content that is posted, offered for license, or licensed to others through the Service, except for the licenses granted herein. By posting Content on the Service, you grant evok3d and its present and future affiliated companies a worldwide, non-exclusive, fully paid up, royalty-free, sublicenseable, and transferable license to copy, display, perform, distribute, digitally transmit, modify, use, advertise, and print such Content, in whatever medium, whether now known or hereafter created, in connection with the Service. The foregoing license includes, without limitation, the irrevocable, perpetual, royalty-free right of evok3d’ (and its successors' and affiliates') to display and use photographs of 3D objects printed from the Content in its marketing materials and on the Service for the purpose of promoting and advertising the Service and related services offered by evok3d and its affiliates. You also grant each user of the Service a non-exclusive license to: view Content that you upload for license through the Service; license and download such Content as permitted through the functionality of the Service and under these Terms of Service and print 3D object from such Content, all for personal, non-commercial use. Certain applications on the Service may allow users to modify and save Content such as 3D models that you upload into the Service. By uploading Content into such applications, you also grant Us and other users of the Service a license to modify and create derivative works from such Content. You may include reasonable additional license conditions that are not in conflict with the foregoing license when uploading Content into the Service for license to others. Unless specified otherwise by you, there is no limit to the number of times a user may print any 3D object associated with any 3D model that the user licenses through the Service. evok3d may retain, but not offer for addition license to others, copies of Content that you have uploaded in the Service for license to others after you remove or delete such Content solely for the purposes as are expressly set forth herein and for the purpose of providing access to the Content during the agreed upon time period after a licensee paid for a license to the Content.
7. Content licensees acknowledge that licensed Content may include third party copyrighted, patented or trademarked materials, images, logos, brand names, etc. or photographs and images that may require additional licensing, rights, permissions, releases, or clearance for use. It is the sole responsibility of the Content licensee and their legal advisor to determine, before licensing, downloading or using any Content, whether additional licensing rights, permissions, releases, or clearance are necessary for the intended use of the Content. It is the Content licensee’s sole responsibility to obtain any licensing rights, permissions, releases, or clearance. Each user licensing Content from the Service agrees that use of such Content and 3D printed objects made therefrom is limited to the licensed user’s personal, non-commercial use. Each user licensing Content from the Service agrees that use of such Content is governed by these Terms of Service (and the license granted herein) and any express license conditions presented at the time of license that were established by the applicable Content provider when making the Content available for license on the Service. Each user licensing Content from the Service agrees not to post such Content on any other web site or sublicense such Content to any other person.
22. Transfer and Assignment
1. You agree and acknowledge that, in the event that we merge, sell or otherwise change control of our company, our business or the Website to a third-party:
(a) we shall be permitted without giving notice or seeking prior consent from you, to disclose the personal information and other data that we have collected from you to the third party; and
(b) we shall be entitled to assign the benefit of any agreements we have with you to the third party.
1. We will not be liable for any delay in performing any of our obligations under this Agreement if such delay is caused by circumstances beyond our reasonable control.
2. This Agreement will be governed by and interpreted in accordance with the laws of Victoria, Australia. You irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia.
3. If any part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of this Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.
4. If we do not exercise or enforce any right or provision under this Agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this Agreement will only be effective if it is in writing and signed by us.
24. Privacy and Personal information
General Conditions of Sale of Equipment
Evok3d.com: shall mean Evok3d.com Pty. Ltd.
Equipment: shall mean the goods and/or services supplied by Evok3d.com to the Purchaser.
GST and Taxable Supply: shall have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Purchaser: shall mean the entity who has registered its details electronically with Evok3d.com through Evok3d.com’s website, and has subsequently ordered Equipment and accepted these terms and conditions through the log-on portal on the Evok3d.com website, and shall include executors, administrators, successors and permitted assigns.
1.2 An order placed by the Purchaser shall give rise to a binding contract (“Agreement”) which shall include these General Conditions of Sale (“Conditions”) and any other conditions stated in the quotation/offer.
1.3 Notwithstanding any prior or subsequent furnishing by the Purchaser of a purchase order that may contain any provision inconsistent with or purporting to vary or reject any of these Conditions, these Conditions shall prevail.
1.4 The provisions of these Conditions shall apply to any supply of Equipment whether in whole or in multiple deliveries.
2.1 The Agreement may be cancelled, varied or suspended only by notice in writing to Evok3d.com. In the event of such cancellation, variation or suspension the Purchaser shall compensate Evok3d.com for any costs or loss incurred plus a cancellation fee in the amount of 20% of the quoted price. Payment under this clause shall not exceed the total quoted price.
2.2 Equipment will be accepted for credit only by prior agreement or to the extent that it has been wrongly or over supplied. Equipment manufactured or purchased to special order cannot be returned or credited unless wrongly or over-supplied by Evok3d.com. Returned Equipment shall be delivered to Evok3d.com free of charge, in good order and condition, unused and in the original packaging, accompanied by a despatch note stating the original invoice number, date of supply and reason for return. Except where equipment has been wrongly or over supplied, a charge as determined by Evok3d.com will be made for handling costs.
3.1 Unless we agree otherwise the quoted price does include the cost of freight, transport, unloading, installation and commissioning.
3.2 Sales Tax, GST or other Government Imposts
a) The price offered is exclusive of Sales Tax, GST or other Government imposts. Should sales tax, GST or other Government imposts become applicable the Purchaser shall pay those amounts in addition to the prices offered in accordance with Clause 4.1.
b) If GST is payable in relation to a Taxable Supply the amount payable for that Taxable Supply will be the amount payable in accordance with this agreement plus GST.
4.1 Unless the Purchaser has existing credit facilities with Evok3d.com payment must be made in full at the time of order by credit card.
4.2 For existing credit facility holders, the following shall apply:
a) terms for payment are fourteen (14) days from the date of issue of invoice. Payment due to Evok3d.com shall be made in full, free of set off and without deduction or withholding.
b) The extension and maintenance of credit facilities is at the absolute discretion of Evok3d.com.
c) If the Purchaser delays the payment of any invoice or does not pay the invoice in full, Evok3d.com in addition to all other rights to which Evok3d.com is entitled at law, will defer manufacture or delivery or cancel any outstanding balance of the order.
5 Specifications and Drawings
5.1 All descriptive and shipping specifications, drawings, dimensions and weights detailed on Evok3d.com’s website are approximate only. In any event descriptions, illustrations and data contained in catalogues, price lists and other advertising matter are intended only to present a general idea of the work described therein and none of these shall form part of the contract. The Purchaser shall make, and shall be deemed to have made, such enquiries it deems necessary with Evok3d.com to verify any details prior to placing an order.
6.1 Delivery times are quoted in good faith and as accurately as Evok3d.com is able to estimate but are not guaranteed unless expressly done so separately in writing by Evok3d.com.
6.2 If delivery and/or manufacture is delayed or threatened to be delayed for any reason Evok3d.com will notify the Purchaser of the extent (or likely extent) of the delay and the reason for it.
6.3 The Purchaser must inspect the goods within and notify Evok3d.com of any shortages or damages in writing not later than five (5) days after delivery. Evok3d.com will not accept any claims for shortages in any delivery that is received after this period.
6.4 Evok3d.com reserves the right to make partial deliveries against an order and to separately invoice same unless otherwise agreed in writing. Payment thereof will fall due in accordance with clause 4.
7.1 Unless otherwise agreed the Equipment will be packed in a manner sufficiently robust to ensure safe delivery and in accordance with any other express requirements of this agreement. Any special packing required by the Purchaser will need to be arranged and paid for separately by the Purchaser.
8.1 Risk in the equipment and thereupon risk of damage, loss or deterioration of the Equipment from any cause whatsoever shall pass to the Purchaser at delivery.
9.1 Notwithstanding that the risk in the Equipment shall pass to the Purchaser as provided in Clause 8.1 title and property in the Equipment shall remain with Evok3d.com until such time as full payment is made to Evok3d.com for all amounts due under this Agreement.
9.2 In the event that the Purchaser fails to make payment for the Equipment in accordance with the terms of this Agreement then Evok3d.com shall have the right to recover from the Purchaser the Equipment.
Upon written notification from the Purchaser, Evok3d.com at its sole discretion shall replace or repair within a reasonable time defects caused by Evok3d.com’s failure to comply with the Agreement, or those arising from faulty design, material or workmanship provided that:
a) such equipment has been properly handled and used and has been operated and maintained in accordance with instructions issued by Evok3d.com;
b) such defects are not caused by incorrect lubricants, faulty civil or mechanical work, unsuitable soil conditions and all other chemical, electrochemical and/or electrical influences which have not been provided for in the Agreement;
c) such defects (whether apparent or not) occur within a period of twelve (12) months after delivery; and
d) Evok3d.com is notified in writing within seven (7) days of the alleged defect occurring; and
e) the Purchaser has fulfilled its obligations under this Agreement.
10.2 Repair or replacement
a) Where the Purchaser has notified Evok3d.com of an alleged defect he shall if Evok3d.com so requires, promptly, and at his own expense and risk return the defective parts(s) to the factory (as specified by Evok3d.com) free-of-charge for repair.
b) The removal of the defective part and the installation of any repaired or replacement part shall be performed by the Purchaser at his own expense. Where any defective part(s) has been replaced, such part(s) shall become the property of Evok3d.com
10.3 Evok3d.com shall not be liable for goods of a consumable nature, such as cables, antennas or those having a low rated service life or where any unauthorised repair or alteration to the Equipment has been performed by the Purchaser.
11.1 Terms implied by law
a) Evok3d.com excludes all conditions, warranties and terms implied by the Competition and Consumer Act 2010 or any other law or custom, except any such implied condition, warranty or term the exclusion of which would contravene any law or cause all or any part of this clause 11 to be void.
b) Evok3d.com makes no representation to the Purchaser concerning the suitability of the goods supplied or the fitness for the purpose supplied to the Purchaser. The Purchaser relies on its own inquires, skill and judgement concerning these matters.
c) Evok3d.coms liability to the Purchaser for breach of a condition, obligation, right, warranty or representation implied into this agreement that cannot be excluded but can be limited, will (at Evok3d.com’s option) be limited to:
i. Providing to the Purchaser equivalent goods or services to those goods or services to which that breach relates; or
ii. Paying the Purchaser the cost of acquiring goods or services which are equivalent to the goods or services to which that breach relates.
11.2 Exclusion of indirect or consequential loss.
A party will not be liable to the other under this Contract for any loss, expense, damage or liability which is not direct or does not flow naturally from the relevant breach of this Contract (including loss of profit and loss of revenue and pure economic loss), even if at the time the Purchaser and Evok3d.com entered into this Contract the loss, expense, damage or liability may reasonably be supposed to have been contemplated by both the Purchaser and Evok3d.com as a probable result of the breach.
12 Patents and Design Rights
12.1 In the event of any claim or claims in respect of any infringement of a Registered Design, Trademark, Copyright or Letters Patent, relating to any part of the Equipment (other than a part based on a design specified by the Purchaser), Evok3d.com will at their expense defend the claim or either replace or modify such part with a non-infringing part or procure for the Purchaser the right to use such a part provided Evok3d.com is given the full opportunity to conduct all negotiations in respect of such claim and such claim shall not be accepted by the Purchaser without prior written consent of Evok3d.com. In no event shall Evok3d.com incur any liability for losses arising from the use or non-use of any infringing part.
12.2 The Purchaser warrants that any design or instructions furnished or given by him shall not be such as to cause Evok3d.com to infringe any Letters Patent, Registered Design, Trademark or Copyright in the execution of the order.
12.3 The patent and design rights held by Evok3d.com and relating to Equipment shall remain the absolute property of Evok3d.com and Evok3d.com’s designs and drawings shall not be reproduced or disclosed without Evok3d.com’s written consent. The Purchaser will not, without Evok3d.com’s previous written consent, copy or allow others to copy any drawings, equipment or part thereof supplied by Evok3d.com.
13 Bankruptcy, Liquidation
13.1 Notwithstanding any other provisions within the Agreement and in particular Clause 4 any outstanding payment shall become due immediately upon the Purchaser committing any act of bankruptcy or committing any act which entitles any person to apply to wind up the Purchaser or if a liquidator, administrator, controller, mortgagee in possession, receiver or like officer is appointed over part or all of the Purchaser’s assets.
13.2 If the Purchaser enters or threatens to enter into bankruptcy, liquidation or any other form of insolvency, administration, management or receivership or the Purchaser enters into any scheme or arrangement with its creditors, Evok3d.com may by notice to the Purchaser:
i. immediately terminate the contract or suspend manufacture or delivery of any Equipment then outstanding; and
ii. retain any security given or moneys paid by the Purchaser and apply this against the assessed loss and damages incurred by Evok3d.com.
14.1 Legal costs - Each party must pay its own legal and other costs and expenses of negotiating, preparing and executing this Agreement.
14.2 Waiver - A failure or delay in exercising any right, power or remedy by a party does not operate as a waiver. A waiver is not valid or binding on the party granting the waiver unless made in writing.
14.3 Survival – All provisions of the Agreement which are capable of having effect after the termination of the Agreement shall remain in full force and effect despite any termination of the Agreement.
a) All notices given by a Party pursuant to the Agreement must be in writing and must be delivered by email, prepaid post, by hand or by facsimile to the last known address of the other party.
b) If a notice is deemed to be given on a day which is not a Business Day in the place which the notice is received, or is deemed to be received after 4.00 pm in that place, the notice will be deemed to be given on the next Business Day in that place.
14.5 Severance - If any provision of the Agreement is held to be invalid or unenforceable by a court of law or other competent authority, that provision shall be severed and all other provisions of the Agreement shall continue in full force and effect.
14.6 Business Day – If a payment or other act is required to be made or done under the Agreement on a day which is not a Business Day, the payment or act must be made or done on the next following Business Day.
14.7 Entire understanding
a) This Agreement contains the entire understanding between the parties as to the subject matter of this Agreement.
b) All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this Agreement are merged in and superseded by this Agreement and are of no effect. No party is liable to any other party in respect of those matters.
c) No oral explanation or information provided by any party to another:
i. affects the meaning or interpretation of this Agreement; or
ii. constitutes any collateral agreement, warranty or understanding between any of the parties.
14.8 Interpretation – In these Conditions:
a) a reference to the Agreement or any other document includes any variation or replacement of either of them;
b) a reference to a clause is a reference to a clause of these Conditions;
c) headings are for ease of reference and do not affect interpretation;
d) the singular includes the plural and vice versa;
e) a reference to “$” or “dollars” is a reference to Australian dollars; and
f) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have corresponding meanings.
14.9 Relationship of parties
This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.
15 Wassenaar Arrangement
15.1 The sale of the Equipment is fully conditional upon its end use being in Australia or the destination as previously agreed between Evok3d.com and the Purchaser. Other than as previously agreed should the Equipment be destined for export or re-export then:
a) Evok3d.com Pty Ltd. shall be notified in each case; and
b) There must be no impediments regarding export from Australia imposed by the Wassenaar Arrangement;
15.2 Any breach or alleged breach of this condition gives Evok3d.com the right (without the need for notice or further explanation) to immediately suspend, postpone or cancel, at its sole discretion, the order or any undelivered portion thereof.