Terms and Conditions – Home Charging Installation Service
Last updated: 24 October 2023
- General
In consideration of the Customer paying the Charges, Fast Cities Australia Pty Ltd ACN 613 484 754 trading as Evie Networks (Evie) engage independent contractors to provide the installation services set out in the Order (Installation Services) for the Equipment at the installation location set out in the Order (Installation Location) to you (Customer) in accordance with the terms of this Agreement.
2. Definitions
In this Agreement:
Agreement means these terms and conditions.
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
ACL Claims means any Claims brought under or pursuant to the Australian Consumer Law.
Approvals means any approvals, licences, certifications or other permits required to perform the Installation Services.
Business Day means a day that is not a Saturday, Sunday or public holiday in Sydney, New South Wales.
Claims means all losses, liabilities, demands, claims, costs and expenses of any kind.
Connection Works means the connection works required to be undertaken by Evie under an agreement between Evie and the distributed network supply provider (DNSP) relevant to the Installation Location.
Consequential Loss means any consequential, special, indirect or incidental loss including without limitation loss of profit, business interruption, loss of business, loss of opportunity, loss of reputation or loss related to breach of third party contracts or arrangements.
Date of Completion means the date that Evie advises the Customer in writing that the Installation Services have been performed by the independent contractors.
Documentation means any Specifications, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Evie.
Evie IP means any existing or subsequently created Intellectual Property Rights owned or licensed by Evie and includes any improvements to such Intellectual Property Rights.
Equipment means equipment purchased by the Customer from Evie or through Evie’s authorised resellers under a separate agreement between Evie and the Customer, and for which Evie agrees to provide Installation Services.
Force Majeure means a matter beyond the reasonable control of a party and includes an act of God, national emergency, flood, storm, earthquake, fire, explosion, epidemic, pandemic, civil disturbance, riot, war, industrial action, quarantine, embargo and other similar governmental action or a general and continued energy shortage, power or utilities interruption, but cannot apply with respect to the payment of money due under this Agreement.
Insolvency Event means any of the following events occur to a party:
(a) if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;
(b) if the party is unable to pay their debts when they become due and payable;
(c) if the party ceases to carry on business; or
(d) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.
Order means an order issued by or on behalf of the Customer to Evie requesting Evie to engage independent contractors to provide the Installation Services.
Personnel means a party’s directors, officers, employees, agents, contractors and subcontractors, as the context permits.
Specifications means any plans or specifications prepared by independent contractors with respect to the Installation Services at the Installation Location.
Termination Costs means any reasonable, unavoidable third party costs directly attributable to termination by the Customer.
- Installation Services
(a) Evie will use its best endeavours to ensure that the independent contractors carry out the Installation Services on or before the date for completion set out in the Order (Date for Completion).
(b) Upon Evie’s or the independent contractors’ request, the Customer must provide Evie or the independent contractors with all information reasonably necessary for the independent contractors perform the Installation Services in accordance with this Agreement.
(c) Evie agrees to ensure that the independent contractors provide the Installation Services:
(i) with due care, skill and diligence, in a safe and lawful manner;
(ii) using appropriately qualified, licensed and trained personnel;
(iii) using all materials and equipment that are good and suitable for the purpose for which they are used;
(iv) in accordance with the Specifications, any Approvals made available to Evie, the building code of Australia published by the Australian Building Codes Board, all applicable laws and the terms of this Agreement.
(d) The Customer must:
(i) be in attendance at the Installation Location at all times while the Installation Services are being performed at the Installation Location;
(ii) keep and maintain the Installation Location in a clean, safe and secure condition;
(iii) obtain and maintain all Approvals;
(iv) permit, or obtain such permissions, to reasonably allow Evie and its personnel to enter, and perform the Installation Services at the Installation Location;
(v) cooperate with, act reasonably, provide true information and follow Evie’s and the independent contractors’ directions;
(vi) permit Evie and the independent contractors to take any photographs or record other evidence to confirm the progress of the Installation Services;
(vii) if required by Evie or the independent contractors, provide written confirmation of completion of the Installation Services on or after the Date of Completion; and
(viii) ensure that it has all necessary consents and notices in place to enable lawful transfer to or recording by Evie or the independent contractors of any personal information or data.
(e) If Connection Works are required to be provided by the independent contractors in connection with the Installation Services, then Evie agrees to ensure that the independent contractors cooperate and liaise with the DNSP and coordinate its access to, and work on, the Installation Location with the DNSP to eliminate or, if not possible, minimise any delays or disruption.
(f) If the independent contractors will not be able to provide the Installation Services by the Date for Completion, Evie will be entitled to a reasonable extension to the Date for Completion to the extent of the delay.
(g) For the avoidance of doubt and to the maximum extent permitted by law, the Equipment remains at the Customer’s risk at all times and the parties agree that these Terms do not displace or otherwise affect the Customer’s assumption of risk in relation to the Equipment.
2. Documentation
Evie must provide the Customer with any Documentation relevant to the Installation Services, within a reasonable time after the Date of Completion.
3. Variations to Installation Services
(a) If, during the provision of the Installation Services and following the commencement of the installation, Evie or the independent contractor identifies any additional work or costs that are required to be undertaken to provide the Installation Services in accordance with this Agreement for any reason, including without limitation physical conditions at any Installation Location or its near surrounds, Evie will provide the Customer with a proposal detailing completion of the Installation Services taking into account such additional work or costs, including any related amendments to the Specifications and the Charges (if any) (Variation Proposal) where the Charges will be calculated at the rates used in the Order, or where not relevant, reasonable rates.
(b) The Customer must accept a Variation Proposal provided under clause 6(a), except where the amended Charges exceeds the Charges applicable immediately before the Variation Proposal by more than 10%. If the amended Charges do exceed that amount, the Customer may terminate the Order and this Agreement provided that, and without limiting clause 8.2(a), the Customer pays Evie for all work and other costs incurred by Evie in engaging the independent contractors to provide the Installation Services up to the date of termination. The Customer agrees that Evie may apply the Deposit towards such costs.
4. Charges and invoicing
(a) The Customer will pay Evie the charges set out in the Order (Charges) in respect of the provision of the Installation Services. The Charges are exclusive of GST and other similar taxes and surcharges and net of withholding or other similar taxes.
(b) The Customer must pay the deposit set out in the Order (Deposit) to Evie within 2 Business Days of an Order being accepted by Evie. The Deposit will be applied by Evie towards the Charges.
(c) The Charges (less the Deposit) become due and payable on the Date of Completion. Evie will issue an invoice for the balance of the Charges after the Date of Completion.
(d) The Customer will pay Evie for any additional products or services outside of the Installation Services requested by the Customer at Evie’s or the independent contractor’s (as relevant) then current market rates for such products or services.
(e) If the independent contractors are required to perform any Connection Works, the Customer agrees to pay Evie at its then current rates for such Connection Works and all associated costs.
(f) The Customer must pay all invoices by the due date.
(g) If the Customer does not pay any invoice on or before the due date, Evie shall be entitled to receive interest on overdue payments of 1% per month and to withhold delivery of any Installation Services yet to be provided.
5. Termination
5.1 General
(a) Provided that the Customer pays Evie for any Termination Costs, the Customer may terminate this Agreement and the Order at any time prior to the independent contractors commencing the Installation Services. Without limiting Evie’s other rights, the Customer agrees that Evie may apply the Deposit towards any such Termination Costs.
(b) Provided that Evie refunds any Deposit paid by the Customer, Evie may terminate this Agreement and the Order at any time prior to the independent contractors commencing the Installation Services.
(c) A party may terminate this Agreement or the Order immediately without notice if the other party:
(i) is in material breach of this Agreement and, where capable of remedy, has failed to remedy such breach within 20 Business Days of being advised in writing of such breach by the party; or
(ii) suffers an Insolvency Event.
5.2 Obligations on termination or expiry
(a) On termination or expiry of this Agreement:
(i) the Customer must pay Evie for any Installation Services it or the independent contractors have provided up to the date of termination for which Evie has not been paid; and
(ii) Evie will cease to engage the independent contractors to provide the Installation Services.
(b) Termination of this Agreement will not affect any accrued rights, remedies, obligations or liabilities of the parties.
(c) Clauses 2, 8.2 to 10 and 12 survive the expiration or earlier termination of this Agreement.
6. Intellectual Property Rights
The Customer acknowledges that all Evie IP remains the exclusive property of Evie or, where applicable, the third party licensor from whom Evie derives the right to use them.
7. Limitation of liability
7.1 General
(a) Subject to clause 10.3, the total liability of Evie for any Claims arising under or in connection with this Agreement that are not ACL Claims will be limited to the total Charges paid by the Customer to Evie.
(b) To the extent permitted by law, neither party shall be liable to the other party for any Consequential Loss.
(c) Each party must mitigate any loss they suffer as a result of the breach by the other party of this Agreement or any warranty or indemnity provided under this Agreement.
(d) As far as the law permits and unless otherwise specified in this Agreement:
(i) the Customer shall be solely responsible, as against Evie and the independent contractors, for any opinions, recommendations, or other conclusions made or actions taken by the Customer or any other third party based (wholly or in part) on the results obtained from the Customer’s use of the Installation Services themselves or the Equipment following the Installation Services, whether before or after installation;
(ii) Evie shall have no liability for:
(A) any injury, loss or damage that does not arise from or in connection with the acts or omissions of Evie, the independent contractors or either of their Personnel, including without limitation where such injury, loss or damage arises from or in connection with:
(I) latent defects in or at the Installation Location or its near surrounds; or
(II) the electricity network or local power supply at the Installation Location;
(B) any injury, loss or damage caused by the DNSP;
(C) any injury, loss or damage caused by errors or omissions in any information or instructions that the Customer provide to Evie or the independent contractors in connection with the Installation Services;
(D) any injury, loss or damage caused by the integration and installation of the Equipment at the Installation Location of any kind whatsoever, except to the extent such loss or damage is caused by the gross negligence of Evie, the independent contractors or either of their Personnel; and
(E) the resilience, availability or capability of the electricity network or local power supply in connection with which the Equipment and/or the Installation Services are supplied or installed;
(iii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this Agreement.
(e) The Customer acknowledges that, in respect of any design, installation or other maintenance services (including without limitation the Installation Services), Evie does not itself provide electrical work of any kind as an electrical contractor or otherwise in a relevant construction occupation, including without limitation any electrical wiring services, electrical installation services or any related services. Where such electrical work is required, Evie engages independent contractors who hold, or undertake to hold, the requisite licences in the relevant Australian jurisdiction(s) to provide these services.
7.2 Additional Warranty
The Customer acknowledges and agrees that:
(a) Evie warrants that the Installation Services will be free of material defects for 12 months from the Date of Completion (Installation Services Warranty);
(b) if the Customer considers it may have a claim under the Installation Services Warranty, the Customer must contact Evie by email at homecharging@goevie.com.au to make us aware of the claim;
(c) once Evie receives a claim, Evie will review the information provided and:
(i) in the first instance, provide support to the Customer to troubleshoot the relevant issues via phone or email; and
(ii) if the troubleshooting support is unsuccessful, Evie will send out an independent contractor to assess the claim] within a reasonable time;
(d) Evie will be responsible for the cost of assessing a claim under the Installation Services Warranty;
(e) Evie’s obligations under the Installation Services Warranty are limited to, at Evie’s election, the repair, replacement or refund of the defective Installation Services and does not extend to any claim for damages that the Customer or any other person may have for any loss, or damage howsoever caused, whether or not such loss or damage arises as a result of any defect in the Installation Services;
(f) the Installation Services Warranty does not apply to damage caused by failure or improper use and abuse, fair wear and tear, accidents, misuse (including failure to follow the Documentation or any conditions under an original manufacturer warranty for the Equipment as related to the Installation Services (if any)), neglect, disassembly, alterations or external causes; and
(g) without limiting any of the Customer’s statutory rights, where Evie considers that the claim is not within the Installation Services Warranty, Evie will advise the Customer of this and the Customer may elect to proceed with any relevant repair or replacement in the Customer’s discretion and at the Customer’s cost;
(h) the benefits provided to the Customer under this Installation Services Warranty are in addition to other rights and remedies available to the Customer at law; and
(i) for the purposes of the Installation Services Warranty, Evie’s details are as follows:
(i) name: Fast Cities Australia Pty Ltd ACN 613 484 754 trading as Evie Networks
(ii) address: Level 4, 410 Queen Street, Brisbane Qld 4000;
(iii) email address: homecharging@goevie.com.au ;
(iv) phone number: 1300 463 843.
7.3 Australian Consumer Law
If the Australian Consumer Law in schedule 2 of the Competition and Consumer Act 2010 (Cth) applies to the supply of services under this Agreement, Evie acknowledges and agrees that its services come with a guarantee that cannot be excluded, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to the Customer will apply:
Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value
You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
.
8. Force Majeure
(a) Neither party shall be liable for any delay or failure to perform its obligations under this Agreement if due to Force Majeure.
(b) A party may terminate this Agreement on written notice to the other party if a Force Majeure continues for a period of 30 days.
- General
1.1 Notices
A notice, consent or communication under this Agreement must be in writing, signed by or on behalf of the person giving it, addressed to the receiving person, and will be given and received as follows:
(a) if it is hand delivered, on the day it is given;
(b) if it is sent by post, three Business Days after posting; and
(c) if it is sent by email, that day, if the time of departure from the sender’s mail server is before 5.00pm on a business day, or the next business day in any other case.
1.2 Assignment and Subcontracting
(a) A party must not assign or novate, in whole or in part, any of its rights and obligations under this Agreement without the prior written consent of the other party.
(b) Evie may subcontract, in whole or in part, any of its rights and obligations under this Agreement, including without limitation to independent contractors, without the prior written consent of the Customer, provided that Evie will not be relieved of its obligations under this Agreement as a result of such subcontracting.
1.3 Miscellaneous
(a) This Agreement may only be amended by written agreement between all parties.
(b) The laws of New South Wales govern this Agreement. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and courts competent to hear appeals from those courts.
(c) A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause of this Agreement continue in force.
(d) This Agreement supersedes all previous agreements about its subject matter. This agreement embodies the entire agreement between the parties.
(e) A right under this Agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
(f) The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.