Components of the Agreement
The Omeo Purchase Agreement (“Agreement”) is made up of the following documents:
- Terms & Conditions: These Terms & Conditions, which become effective on the date you place your order (”Order Date”).
- Purchase Invoice and Device Configuration Confirmation: The Purchase Invoice including the Device Configuration confirmation, which describes the configuration of the Omeo that you ordered (“Omeo”), confirms the base price for your Omeo (“Base Price”) plus freight and marine insurance and excluding taxes, and governmental or other official charges and fees (“Charges”) if applicable. If you are the Importer of Record, we will not include any tariffs or import duties. These will be payable by the Purchaser on importation. The Purchase Invoice including the Device Configuration confirmation will be sent to you shortly after you make your order.
High-level summary of the order process (as set out in these Terms and Conditions):
- Order Date: The date you place your order ( Order Date”).
- Purchase Invoice and Device Configuration Confirmation: The Purchase Invoice including the Device Configuration Confirmation will be sent to you shortly after you make your order, confirming the configuration of your order and the Omeo Price, the freight costs and marine insurance for your Omeo but excluding and tariffs, duties or government charges.
- Deposit: In order for your order to be valid, you must pay us the deposit (in full) on receipt of the invoice sent with your Device Configuration Confirmation (“Deposit”). The amount of your Deposit is set out in the table under ‘Global Pricing’.
- Week 2 until delivery: We will prioritise assembly of your Omeo (unless we have one already in stock). We anticipate the commencement of assembly will take up to approximately 10 weeks.
- Payment of the Balance of the Purchase Price: You will pay the balance owing on the Purchase Invoice less any Deposit(s) already paid (the “Remainder”), within 7 days of us confirming that assembly is underway and that shipment is being scheduled.
- Shipping by Omeo: If we are organising shipping of your Omeo to you:
6.1. We will endeavour to ship your Omeo on the next available shipping service to your nearest port after payment in full of the remainder.
6.2 We ship by sea in order to reduce your shipping costs.
- Alternative shipping: You may elect to use an alternative shipping arrangement (for example, air freight). Please advise us as soon as practicable if you wish to use an alternative shipping arrangement and insurance, the cost of which will be for your account.
Terms & Conditions
1. Agreement to Purchase
1.1. Agreement: When you place an order you will purchase the Omeo from either:
1.1.1. Omeo Technology USA Inc. their affiliates or Agents, if you are a resident of the United States of America, or
1.1.2. Omeo Technology Pty Limited their affiliates or Agents if you are a resident of Australia, or
1.1.3. Omeo Technology Limited or their affiliates or Agents, in all other cases (“we”, ”us” or “our”, as applicable), pursuant to the terms of this Agreement.
1.2. Authorised Agent: When you place your order with us or an Authorised Omeo Agent, you will be required to undertake a Pre-Trial Assessment and undergo a trial with the Omeo, and have a declaration signed by you and the relevant Authorised Agent, stating that you have demonstrated the ability to be a competent, safe and responsible user of an Omeo. Your order will not be confirmed as a valid order until both the assessment and trial have been completed by your Authorised Agent.
1.3. Availability of features: Omeo is priced and configured based on features and options available at the time of order. Options or features released after you place your order may not be included in your Omeo.
1.4. Discontinuation: We may cancel your order and refund your Deposit if we discontinue a product, feature or option after the Order Date.
2. Payments and charges
2.1. Timing of payments:
2.1.1. Deposit: The Deposit is payable on receipt of the Purchase Invoice
2.1.2. Remainder: The Remainders payable within 7 days of us confirming that your Omeo has been scheduled for assembly. Shipping of your Omeo will occur in accordance with clause 6 of this Agreement following payment in full of the balance of the Purchase Price, after deduction of the deposit paid.
3. Your deposit
3.1. Refundable: Your Deposit will be held by us and applied against the Purchase Price. If your order does not proceed to a sale, your Deposit will only be refunded to you where:
3.1.1 required by applicable law;
3.1.2. if applicable, you withdraw your order within the time period set out in clause 4.1.1; or
3.1.3. you are not (and have not been) in breach of any of your obligations under this Agreement (including any payment obligation) and we fail to make your Omeo available for shipping to you in accordance with this Agreement.
4. Assembly of the Omeo
4.1. The provisions of this clause 4 apply (and correspondingly, the provisions of clause 5 below do not apply) where you are purchasing an Omeo that has not yet been assembled as at the Order Date:
4.1.1 Week 1: We will submit your order to our assembly plant for production one (1) week after receipt of the Deposit. During this period, you may cancel your order or make any changes to your Device Configuration without incurring any costs.
4.1.2. Week 2 until delivery: When we submit an instruction to our assembly plant for the assembly of your Omeo, your Deposit becomes earned and non-refundable, except to the extent you are entitled to a refund under clause 3.1 of this Agreement. Once the assembly of your Omeo is actually underway, changes to your Device Configuration will be difficult, if not impossible, for us to accommodate. If you want to make changes to your Device Configuration, we will try to accommodate your request. If we can accommodate your request, you will be subject to potential price increases for any pricing adjustments made since your original Order Date. Any changes made to your Device Configuration, including changes to the Base Price, estimated freight and marine insurance, will be reflected in a revised Purchase Invoice and Device Configuration confirmation that once prepared, will replace the original Purchase Invoice and Device Configuration confirmation and form part of this Agreement.
4.1.3. Cancellation and default for manufactured Omeo: Because your Omeo is custom ordered, we incur significant costs in starting assembly of your Omeo. As a result, your Deposit is non-refundable (except to the extent you are entitled to a refund under clause 3 above) once your order is submitted by us to our Assembly Plant. We will credit your Deposit toward the amount owing under the Purchase Invoice. You acknowledge that this Deposit and this Agreement are not made or entered into in anticipation of or pending any conditional sale contract.
4.1.4. The Purchase Price is not refundable in full once the Omeo is Shipped. We will also incur significant costs for re–marketing, re–selling and re-shipping the Omeo if you cancel or default in this Agreement. Accordingly, the Purchase Price, once paid and the Omeo shipped, is not refundable in full (except to the extent of Clause 3 above). All costs associated with the assembly, packaging, shipping and re-packaging, re-shipping and re-configuration of the Omeo will be deducted from the Purchase Price that has been paid prior to the balance being refunded.
6. Shipping, Delivery, Title and Risk
6.1. Notification of shipping and delivery: We will notify you of when we expect your Omeo to be ready for shipping by email (or any other reasonable means of communication available to us) (“Delivery Notification”). We will arrange for your Omeo to be shipped to your Authorised Omeo Agent for delivery to you (or you may pick up from the agent), so that he can induct you in the features and train you in the use of your Omeo (“Omeo Training”), or, if you require your Omeo to be delivered directly to you, you must arrange Omeo Training with your Authorised Omeo Agent prior to using your Omeo.
6.2. Shipping by Omeo: If we are organising shipping (by sea freight) of your Omeo, we will endeavour to ship your Omeo on the next available shipping service to your nearest port after payment in full of the Remainder. However, shipping may be deferred by us until there are sufficient Omeo’s to partially fill a container in order to reduce your shipping costs.
6.3. Alternative arrangements: Despite clause 6.2, you may elect to have your Omeo delivered by alternative means (such as air freight). You must advise us as soon as practicable (and in any event prior to or within one week of our completing assembly if you require alternative shipping arrangements (along with your delivery address). We cannot guarantee an airline will freight Lithium-ion batteries.
6.4. Extension: If you are unable to take delivery at the specified delivery date, please contact us to request additional time, which we may grant at our sole discretion. You will be responsible for the risks of the loss of and damage to the Omeo arising during the time period after the originally specified delivery date, including after any extension we may grant has passed.
6.5. Breach: Despite clause 6.4, if you are unable to take delivery at the specified delivery date, including, if applicable, any extension we may (in our sole discretion) grant, you will be in breach of this Agreement and your Omeo may be made available for sale to other customers.
6.6. Estimate: The estimated shipping and delivery dates of your Omeo is an estimate only and is not a guarantee of when your Omeo will actually be shipped or delivered.
6.7. Risk/Title/Costs: Unless otherwise notified to you, we will coordinate delivery of the Omeo to you via our Agent, or where we have specifically agreed, by a third-party carrier. In this respect, you agree that:
6.7.1. subject to clause 6.8.3, delivery of the Omeo, including the transfer of title and risk of loss, will occur at the time your Omeo is physically handed over or delivered to you;
6.7.2. you will pay us for third-party carrier costs and associated insurance costs incurred or to be incurred to be included in the Purchase Invoice; If we are arranging shipping by sea freight, these costs will be included in the Purchase Invoice for one Omeo unit shipped by LCL (Less than Container Load) and may include a fee for Dangerous Goods (Lithium-ion batteries). If you have selected an alternative shipping arrangement, all costs incurred by us in connection with the transportation of your Omeo to you (and associated insurance) will be included in the Purchase Invoice.
6.6.3. if requested by us at the time, you will (at your own cost) arrange any export/import clearances and you will be solely responsible for any ramifications in relation to the exportation/importation of the Omeo including paying any intermediary or import taxes or duties, or other outbound/inbound governmental fees.
6.8. Insurance: We are not responsible for insuring the Omeo after the title and risk have passed to you under this Agreement.
6.8.1. If we are arranging to ship by sea freight, as it will usually be more cost-effective for example bulk shipping, we will arrange marine (shipping) insurance for the Omeo.
6.8.2. A proportionate amount of such insurance premiums are for your account and will be included in the Purchase Invoice.
6.8.3. If you have selected an alternative shipping arrangement, we will pass on to you the full cost of obtaining associated insurance, or you may elect to arrange your own transportation insurance, in which case risk in the Product will pass to you immediately it is handed on to the shippers.
6.8.4. Security: You are not entitled to register any security interest in relation to the Omeo prior to the title and risk passing to you under this Agreement.
7.1. Warranty: Subject to clause 8.1, the Omeo Technology New Omeo Warranty set out at Schedule 1 and updated from time to time (the “Warranty”) will apply on and from the passing of title and risk under this Agreement.
7.2. Except as specified in schedule 1 and to the extent that we cannot exclude any warranty implied by law, you acknowledge and agree that we provide no additional warranties in respect of your Omeo.
8. Limitation of liability
8.1. Omeo Training: if you do not undertake the Omeo Training referred to in clause 6.1:
8.1.1. to the extent permitted by law, you will be deemed to have waived your rights to claim under any Warranty which arises as a consequence of your use of your Omeo, where such claim would not (or would be unlikely to) have arisen had you undertaken Omeo Training (as determined by us, acting reasonably);
8.1.2. you acknowledge and agree that we (and our associates and agents) shall have no responsibility or liability to you whatsoever in respect of your use of your Omeo or any loss or damage suffered or incurred by you in connection with your use of your Omeo; and
8.1.3. you will indemnify us (and our authorised agents and affiliates) (“indemnified persons”) against any loss, liability, cost or claim suffered or incurred by an indemnified person (“Loss”) as a consequence of your use of your Omeo, where such Loss would not (or would be unlikely to) have arisen had you undertaken Omeo Training (as determined by us, acting reasonably).
8.2. No consequential damages: We accept liability to you for our breach of contract or negligence under the principles applied by the courts and for breach of any non-excludable rights under consumer protection laws and otherwise on the terms of this Agreement but, to the maximum extent permitted by law, we are not liable for any incidental, special, consequential or punitive damages.
8.3. Liability cap and time limit: Our aggregate liability under this Agreement is capped at the price actually paid to us by you under this Agreement. Any claim against us under this clause 8 must be made within one (1) year from the occurrence of the first event giving rise to that claim.
8.4. Application of consumer law: If you are, or hold yourself out to be, acquiring the Omeo for business purposes, the provisions of the New Zealand Consumer Guarantees Act 1993 (and all other consumer guarantee legislation of New Zealand capable of exclusion at law) shall not apply.
9.1. No resale: You acknowledge and agree that we sell Omeos directly to end consumers for personal use, and that you are not purchasing the Omeo for any other purpose, including the purposes of resale or reverse engineering (or to enable another person to carry out that purpose). We may unilaterally cancel any order that we believe (in our sole discretion) has been made for this purpose (or a similar purpose) or has otherwise been made in bad faith, without compensation to you.
10.1. Export and Import: We do not provide any assistance or support with respect to the export, homologation or registration of any of our Omeos to any jurisdiction outside of New Zealand other than as specifically required to be provided by us under applicable law. This means, among other things, that we will not, to the extent permitted by applicable laws, provide any documents, test reports, certifications or any other correspondence regarding the status of any of our Omeos for purposes of facilitating any export or import outside our authorised channels.
10.2. Severability: If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
10.3. Force Majeure: Despite any other provision of this Agreement, we will not be liable to you under this Agreement to the extent that any breach of this Agreement by us was caused by an event (or events) outside of our reasonable control, including acts of God, war, civil unrest, sabotage, epidemics, legislative change, labour stoppages or disputes, and electrical or telecommunications faults.
10.4. Governing law: The terms of this Agreement are governed by, and to be interpreted according to, the laws of New Zealand.
10.5. Assignment: We may assign this Agreement, at our sole discretion, by notice to you.
10.6. Entire Agreement: The terms of this Agreement constitute the entire understanding and agreement in relation of the subject matter of this Agreement between us and you. Terms not expressly contained herein are not binding.