Terms of service

Terms and Conditions of Acceptance of Order and Sale of New Equipment

Standard Terms & Conditions of Evolve Medical Solutions Pty Ltd ABN 84619150373

 

Clause 1

Evolve Medical Solutions Pty Ltd (“Evolve”) is the distributor of:

 

  1. high quality radio frequency, laser, pulsed light and LED and associated systems;
  2. other medical technologies and equipment, consumables, parts, disposable accessories and support gear, collectively (referred to as the “Products”)
  3. for use in medical, cosmetic and beauty therapy; which products are sourced by Evolve from various original equipment manufacturer’s (referred to as the “OEM’s”);
  4. Evolve and OEM (are collectively referred to as the “Suppliers”).

 

Clause 2

The Purchaser whose details are set out in the invoice, agrees and consents that in purchasing the Products it acknowledges that it purchases the Products from Evolve however the Purchaser may rely, to the extent as permitted by law, on its rights as against the Suppliers. Nothing in this agreement should be read as a warranty or representation by Evolve in relation to the Products, their suitability or fitness for purpose or any other matter whatsoever.

 

Clause 3

Evolve is neither a manufacturer nor electronic nor mechanical expert and does not accept responsibility for the workmanship of the Suppliers, nor suitability for use of the Products in any circumstance whatsoever.

 

Clause 4

Evolve will at the Purchaser’s request and at Evolve’s cost, in the case of new Products engage international shippers and couriers, and customs agents, when arranging for the delivery of the Products to you. Evolve is not responsible to the Purchaser for any delay associated with the delivery of the Products.

 

Clause 5

The Purchaser acknowledges that before selecting and ordering the Products for purchase, it has properly considered and studied:

  1. the Product specifications and technical information and or OEM’s website,
  2. any publicly available information available on a search of the Supplier and or the Product on-line, as well as;
  3. any other material requested from or provided by Evolve,
  4. and the Purchaser has made a fully informed choice and decision as to the fitness and suitability of the Products for its own purposes of use.

 

Clause 6

Unless, contracted as urgent, and with additional payments for urgent service, Evolve will use its best efforts to arrange for the Products to be delivered to the Purchaser within the normal working cycle of the Suppliers.


 

 

Clause 7

The Purchaser acknowledges to Evolve that if the Products are incorrectly unpacked, and or assembled at the designated site for use, and/or not used carefully, and or not maintained and serviced in accordance with the Supplier’s specifications and manuals, they may be dangerous to people, animals and or property. Accordingly, it is a strict condition of this sale, that the purchaser will only access, use and operate the equipment as follows:

 

  1. Evolve or an agent approved by Evolve will unpack, assemble, test and commission the equipment prior to
  2. Evolve will offer technical training for a reasonable number of properly qualified users and operators nominated by the Purchaser. Thereafter further training or training of new users and operators will be at the Purchaser’s
  3. For this purpose a “properly trained user(s) and operator (s)” is a person certified in writing by Evolve or the OEM as a properly trained user or operator; who has the necessary academic, professional and trade qualifications as required to properly understand the Suppliers and or specific OEM’s requirements needed to safely use and operate the equipment, which user and or operator maintains his or her skills as a user and operator in an up to date manner by regularly reading and updated themselves with the Supplier’s bulletins as well as relevant health services and Australian Standards web sites and bulletin boards. It is the Purchaser’s and not Evolves responsibility to ensure each user and operator nominated by the Purchaser is properly
  4. All products must at all times be used and operated by properly trained users and operators and it is the Purchaser’s obligation to ensure that the qualifications and training of its properly trained and qualified users and operators is maintained. The Purchaser agrees that it is a term of its purchase that all users and operators are properly qualified and trained in the use of the Products, and will also maintain proper continuous update of education and training program for such users and
  5. The users and operators of equipment will only use and operate the equipment in strict compliance with the OEM’s health service requirements or relevant State Legislation, whichever is the more onerous. In addition, the users and operators, will exercise a standard of care in treatment of patients with full knowledge that any failure to comply may result in damage and or harm and if the user and operator as a fully qualified and properly trained person has any suspicions that harm or damage may occur, treatment will immediately cease and expert medical opinion
  6. The Purchaser will undertake and maintain a strict and thorough maintenance and service program in regards to the Products.
  7. The Purchaser shall ensure that the machine is used in accordance with its OEM’s instructions and detailed instructions for
  8. The Purchaser agrees to indemnify Evolve and hold it harmless from any damage or loss caused by the Products being used in any way other than in accordance with those standard operating instructions or otherwise in breach of any of the Purchaser’s commitments and undertakings in these terms and conditions or specified with the Purchaser
  9. The Purchaser assumes full responsibility for ensuring the site available for installation is suitable for installation of the goods sold and in particular has proper electrical installation and suitable wiring, compiling with the Product technical specifications and shall not make any claim in the event the site is unsuitable for such installation. The Purchaser undertakes to provide an electricity surge protection device to prevent damage to products
  10. The Purchaser undertakes to ensure at all times that the products and/or equipment supplied are not in any way misrepresented to patients or members of staff and that no claims are made which cannot be reasonably
  11. The Purchaser warrants that all operators of the equipment and venues in which the equipment will be operated are either licensed and trained as required by law and comply with all relevant State Legislation as to the use of the premises, and/or full and properly trained to use the

 

 

Clause 8

Evolve as the OEM’s distributor supplies to the Purchaser only the Products listed on the invoice and not any other equipment, parts accessories or services. The Purchaser acknowledges that any other equipment, part, accessories or service will be at an additional cost to the Purchaser, and unless otherwise negotiated in advance, at Evolves standard list price.

 

Clause 9

Subject to clause 10 and to the extent permitted by the Australian Consumer Law and relevant State legislation, the sole obligation of Evolve under this agreement is to use its best endeavours to provide the parts to repair the Products or replace the Products  (at Evolves absolute discretion) any part of a product which is found to be defective during the warranty period of 12 months from the date of delivery of the Products and in no event shall Evolve be liable to any staff, employee, agent, contractor, patient and customer, or to any other person whosoever for any other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, loss or injury or economic or consequential loss or injury arising from loss or use or misuse of the products, and any indirect, special or consequential damages or injury to any person, corporation or other entity.

 

Clause 10

If any products supplied pursuant to this agreement are supplied to the customer as a consumer' of goods or services within the meaning of that term in the Australian Consumer Law as amended or relevant state legislation the consumer will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the Australian Consumer Law or similar legislation is so conferred. However, if the product is a product not ordinarily acquired for personal, domestic or household use or consumption, pursuant to s 64A of the Australian Consumer Law and similar provisions of relevant state legislation then Evolve limits its liability to payment of an amount equal to the lowest of:

 

  1. the cost of replacing the goods or supplying equivalent goods;
  2. the cost of repair of the goods;
  3. the cost of having the goods repaired or

 

Clause 11

Subject to clause 10, Evolve is not be liable for default or failure in performance of its obligations pursuant to this agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials including ink, chemicals and paper, labour or transportation or any other cause beyond its reasonable control.

 

Clause 12

Subject to clause 10 Evolve is not responsible for any loss caused by an error or defect in the Products supplied by any person.

 

Clause 13

The purchase price for the Products together with any applicable GST and any other taxes, shipping, insurance, customs and government charges is payable to Evolve in full prior to delivery of the Products. The Purchaser has no right of set-off or cross demand for any matter whatsoever and howsoever calculated against Evolve. Until payment is received in full, the purchaser acknowledges and agrees that no title or right to ownership in the Products passes to the Purchaser.

 

Clause 14

The Purchaser acknowledges that Evolve retains title to the Products until the Products have been paid for in full.  This right permits Evolve to register its interest under the Personal Property Securities Act 2009 (Cth) and the Purchaser acknowledges and consent to such registration.


 

 

Clause 15

In the event that payment is not received by Evolve in full by the date on which the Products is delivered to the Purchaser or such other agreed due date, the Purchaser hereby provides Evolve with irrevocable authority to repossess the Products and an absolute right of entry to the place where the Products are held, and at Evolve absolution discretion, acknowledges Evolve may resell the Products and, keep the proceeds and claim any loss including the costs of recovery storage preservation sales  and interest from the purchaser. In the event the customer is late in payment, as a separate entitlement Evolve is entitled to interest on the balance outstanding at 2% above the current rate prescribed under the Penalty Interest Rate in South Australia.

 

Clause 16

The agreement for the supply of the goods is governed by the Law of the Commonwealth of Australia and construed in accordance with the laws in force in the State of South Australia and each party submits to the non-exclusive jurisdiction of the courts of that State.