Components of the Agreement
The Ogo 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 Ogo that you ordered (“Ogo”), confirms the base price for your Ogo (“Base Price”) excluding freight, marine insurance, taxes, and governmental or other official charges and fees (“Charges”). 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”). Please advise if you are to arrange your own freight and marine insurance (at your cost).
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”). This is the date you are also required to pay US$1,000 per Ogo to us as a deposit (“Deposit”).
- Device Configuration Notice: The Device Configuration Notice will be sent to you shortly after you make your order, confirming the Base Price for your Ogo.
- Week 2 until delivery: We commence manufacture of your Ogo (unless we have one already in stock). We anticipate manufacturing to take up to approximately five (5) months initially.
- 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 Ogo and 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 10 days of us issuing the Final Price Sheet.
- Shipping: Your Ogo will be shipped after payment of the Remainder on the next available shipping service to your nearest port.
a) We will endeavour to bulk ship via container in order to reduce your shipping costs
b) You may elect to arrange your own shipping
Terms & Conditions
1. Agreement to Purchase
1.1. Agreement: You agree to purchase the Ogo to be confirmed in your Device Configuration Notice from either:
1.1.1. Ogo Technology USA Inc. their affiliates or agents, if you are a resident of United States of America or Canada, or
1.1.2. Ogo Technology Pty. Limited their affiliates or agents, if you are a resident of Australia, or
1.1.3. Ogo Technology Limited or their affiliates or agents if you are a resident of any other jurisdiction.
(“we”, ”us” or “our”, as applicable), pursuant to the terms of this Agreement.
1.2. Availability of features: Your Ogo 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 Ogo.
1.3. 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 the Order Date.
2.1.2. Remainder: The Remainder is payable within 10 days of us issuing the Final Price Sheet, once a sale has been concluded. We will arrange shipping of the Ogo after receiving your payment of the Remainder.
2.2. Charges: The Base Price does not include any Charges. Because the Charges are constantly changing 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 held on trust
3.1. Refundable: Your Deposit will be held on trust by us and applied against the Final Price when you pay the Remainder. Your Deposit is only refundable to you where:
3.1.1 required by applicable law;
3.1.2. you withdraw your reservation within the time period set out in clause 4.1.1; or
3.1.3. we fail to deliver your Ogo in accordance with this Agreement (excluding situations where you do not pay the Remainder in accordance with this Agreement in which case you forfeit the Deposit).
4. Manufacture of the Ogo
4.1. Manufactured Ogo: The provisions of this clause 4 apply (and correspondingly, the provisions of clause 5 below do not apply) where you are purchasing an Ogo 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 the Order Date. 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 for the production of your Ogo, your Deposit becomes earned and non-refundable, except to the extent you are entitled to a refund under this Agreement. Because production of your Ogo 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 accept 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, 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 Ogo: Because your Ogo is custom ordered, we incur significant costs in starting production of your Ogo. We also incur significant costs for remarketing and reselling the Ogo 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 sent 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
5. Ogos in stock
5.1. Ogos in stock: The provisions of this clause 5 apply (and correspondingly, the provisions of clause 4 above do not apply) where you are purchasing an Ogo that has been manufactured as at the Order Date (as indicated by an existing Identification Number shown in your Device Configuration Notice).
5.2. Cancellation and default for Ogos in stock: Because we incur significant costs in preparing and coordinating the delivery of your Ogo, including shipping logistics, your Deposit is 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 Ogo to be ready for shipping by email (or any other reasonable means of communication available to us). You agree to confirm / notify us of the delivery address within one week of this date.
6.2. Notwithstanding above, shipping may be deferred until there there are sufficient Ogo’s to partially fill a container in order to reduce shipping costs. Alternatively you may choose to make your own shipping arrangements. We will work with you in this.
6.3. Extension: If you are unable to take delivery within the specified period, 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 Ogo arising during the time period after the specified delivery period, including any extension we may grant, has passed.
6.4. Breach: If you are unable to take delivery within the specified period, including any extension we may grant, you will be in breach of this Agreement and your Ogo may be made available for sale to other customers.
6.5. Estimate: The estimated shipping and delivery dates of your Ogo is an estimate only and is not a guarantee of when your Ogo will actually be shipped or delivered.
6.6. Risk/Title/Costs: Unless otherwise notified to you, we will coordinate delivery of the Ogo to you via a third-party carrier. In this respect, you agree that:
6.6.1. delivery of the Ogo, including the transfer of title and risk of loss, will occur at the time your Ogo is physically handed over or delivered to you;
6.6.2. you will pay us for third party carrier costs incurred or to be incurred;
6.6.3. if requested by us at the time, you will arrange any export/import clearances and you will be solely responsible for any ramifications in relation to the exportation/importation of the Ogo including paying any intermediary or import taxes or duties, or other outbound/inbound governmental fees.
6.7. Insurance: We are not responsible for insuring the Ogo after the title and risk has passed to you under this Agreement.
6.7.1. As it will usually be more cost effective for example bulk shipping, we will arrange marine (shipping) insurance for the Ogo, unless you advise us otherwise.
6.7.2. A proportionate amount of such insurance premiums are for your account and will be included in the Final Price Sheet.
6.7.3. You may however to elect to arrange your own marine insurance if for example, you arrange your own shipping.
6.8. Security: You are not entitled to register any security interest in relation to the Ogo prior to the title and risk passing to you under this Agreement.
7.1. Warranty: The Ogo Technology New Ogo 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.
8. Limitation of liability
8.1. 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.
8.2. 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.
8.3. Application of consumer law: If you are, or hold yourself out to be, acquiring the Ogo for business purposes, the provisions of the New Zealand Consumer Guarantees Act 1993 (and all other consumer guarantee legislation of the Home Jurisdiction capable of exclusion at law) shall not apply.
9.1. No resale: You acknowledge and agree that we sell Ogos directly to end consumers for personal use, and that you are not purchasing the Ogo 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 Ogos to any jurisdiction outside of the Home Jurisdiction 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 Ogos 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.