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”).
- Device Configuration Notice: The Device Configuration Notice, which describes the configuration of the Omeo that you ordered (“Omeo”), confirms the base price for your Omeo (“Base Price”) plus estimated freight and marine insurance and excluding taxes, and governmental or other official charges and fees (“Charges”) if applicable. The Device Configuration Notice will be sent to you shortly after you make your order.
- Final Price Sheet: The Final Price Sheet will be provided to you as your delivery date nears. It will include the Base Price from your Device Configuration Notice, acknowledge any Deposit(s) paid in advance, and confirm the Charges (the Base Price and Charges together being the “Final Price”).
- Order Date: The date you place your order ( Order Date”).
- Device Configuration Notice: The Device Configuration Notice will be sent to you shortly after you make your order, confirming the configuration of your order and the Base Price, estimated freight and marine insurance for your Omeo and excluding 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 Notice (“Deposit”). The amount of your Deposit is set out in the table under ‘Global Pricing’, but as from 1st July 2019 it will be 20% of the Base Price.
- Week 2 until delivery: We commence manufacture of your Omeo (unless we have one already in stock). We anticipate manufacturing to take up to approximately 10 weeks.
- Final Price Sheet: The Final Price Sheet will be provided to you as your shipping date nears. It will confirm the Base Price for your Omeo, final freight and marine insurance and any additional Charges (together being the “Final Price”), and anticipated shipping and delivery dates.
- Payment of the Remainder: You will pay the Final Price less any Deposit(s) already paid (the “Remainder”), within 7 days of us issuing the Final Price Sheet.
- Shipping by Omeo: If we are organising shipping of your Omeo to you:
7.1. We will endeavour to ship your Omeo on the next available shipping service to your nearest port after payment in full of the remainder.
7.2 We ship by
seain 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 (and in any event prior to or within one week of receiving the Final Price Sheet referred to in clause 6.1) if you wish to use an alternative shipping arrangement and insurance, cost of which will be for your account.
Terms & Conditions
1. Agreement to Purchase
1.1. Agreement: You may only place an order and purchase the Omeo (to be confirmed in your Device Configuration Notice) from either:
1.1.1. Omeo Technology USA Inc. their affiliates or agents, or
1.1.2. Omeo Technology Pty. Limited their affiliates or agents, or
1.1.3. Omeo Technology Limited or their affiliates or agents,
(“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 Needs and Ability Assessment 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
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 Device Configuration Notice and invoice
2.1.2. Remainder: The Remainders payable within 7 days of us issuing the Final Price Sheet to you. Shipping of your Omeo will occur in accordance with clause 6 of this Agreement following payment in full of the Remainder.
2.2. Charges: The Base Price does not include any Charges. Because the Charges are constantly changing (for example, exchange rates and customs fees) and will depend on other factors, they will be calculated closer to the time of delivery and indicated on your Final Price Sheet.
3. Your deposit
3.1. Refundable: Your Deposit held by us and applied against the Final Price when you pay the Remainder. 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. Manufacture of the Omeo
4.1. Manufactured Omeo: 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 manufactured 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 Notice without incurring any costs.
4.1.2. Week 2 until delivery: When we submit an instruction to our assembly plant for the production 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. Because production of your Omeo is already underway, changes to your Device Configuration Notice during this time will be difficult, if not impossible, for us to accommodate. If you want to make changes to your Device Configuration Notice, 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 Notice, including changes to the Base Price, estimated freight and marine insurance, will be reflected in a subsequent Device Configuration Notice that once prepared, will replace the original Device Configuration Notice and form part of this Agreement.
4.1.3. Cancellation and default for manufactured Omeo: Because yourOmeo is custom ordered, we incur significant costs in starting production of your Omeo. We also incur significant costs for remarketing and reselling the Omeo if you cancel or default in this Agreement. 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 Final Price. You acknowledge that this Deposit and this Agreement are not made or entered into in anticipation of or pending any conditional sale contract.
The Final Price is non-refundable (except to the extent of Clause 3 above).
Omeos in stock
5.2. Cancellation and default for Omeos in stock: Because we incur significant costs in preparing and coordinating the delivery of your Omeo, including shipping logistics, from the time you make payment of your Deposit, your Deposit will be non-refundable, except to the extent you are entitled to a refund under clause 3 above. We will credit your Deposit toward the Final Price. You acknowledge that this Deposit and this Agreement are not made or entered into in anticipation of or pending any conditional sale contract.
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. You must notify us of your delivery address prior to or at least one week prior to the Final Price Sheet,
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 receiving the Final Price Sheet if you require alternative shipping arrangements (along with your delivery address). We cannot guarantees 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 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 as part of the Charges; If we are arranging shipping by sea freight, these costs are quoted for one Omeo unit shipped by LCL (Less than Container Load) and may include a fee for Dangerous Goods (Lithium-ion batteries). We will use our reasonable endeavours to collate orders in order to reduce shipping costs. If you have elected for an alternative shipping arrangement, all costs incurred by us in connection with the transportation of your Omeo to you (and associated insurance) will be passed on to you in the Charges.
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 notresponsible for insuring the Omeo after the title and risk has passed to you under this Agreement.
6.8.1. If we are arranging shipping 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 Device Configuration Notice and again in the Final Price Sheet.
6.8.3. If you have elected 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, we cannot exclude any warranty implied by law, you acknowledge and agree that we provide no 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
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
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