Terms and conditions - AViloo Flash test

These are the Terms and Conditions on which Test EV Pty Ltd ACN 683 175 724 or its Partners will carry out the Aviloo Flash Tests for you. 

1. DEFINITIONS

For the purposes of these Terms and Conditions:

(a) “Aviloo” means AVILOO GmbH, IZ NÖ Süd, Straße 16, Objekt 69/5, 2355 Wiener Neudorf, Austria, corporate registry number FN 502117 h.

(b) “Aviloo Battery Software” means the analysis and test software to evaluate the Test Data and generate the Aviloo battery report obtained during an Aviloo Flash Test. 

(c) “Aviloo Box” means:

(i) the technical device;

(ii) the set of OBD cables that are used to connect the technical device to an electronic or plug-in hybrid vehicle via an analysis plug; and

(iii) associated accessories (including but not limited to connection or power cables). 

(d) “Aviloo Flash Test” has the meaning given to it in clause 2 of these Terms and Conditions. 

(e) “Customer” is the Customer named on the Order Form provided by Test EV or its Partners to the Customer.

(f) “Fees” means the fees payable by the Customer

(g) “Intellectual Property Rights” includes all worldwide registered and unregistered copyrights, trade marks, designs, patents, inventions, protocols, patents, formulae, compositions, mathematical equations, processes, applications, treatment and methodology, brands, logos, circuit layout rights, concepts, catch phrases, trade secrets and other similar industrial property rights and rights to registration of such rights. 

(h) “Partners” are those businesses that licence an Aviloo Box and have the right to sell and conduct the Aviloo Flash Tests to Customers. 

(i) “Order Form” means the online booking form, statement of purchase, invoice or other document provided by Test EV or its Partners to the Customer, specifying the type of Aviloo Flash Test purchased by the Customer and the applicable Fees. 

(j) “Test Data” means vehicle data read from a vehicle’s electronics. 

2. Aviloo Flash Test

The Aviloo Flash Test provides information about the condition of the batter in an electric or plug-in hybrid vehicle. The Aviloo Box is required to be connected to the vehicle but the vehicle is not required to drive or move. During this connection, the Test Data is sent to the Aviloo server, evaluated, and an Aviloo battery report providing details as to the condition of the battery is issued. The Aviloo battery report determines an Aviloo score and may detect cell defects when the vehicle is not in motion. 

3. fees and PAYMENT

3.1 Fees are payable at the time that the Test Data or Aviloo battery report (as the case may be) is provided to the Customer or any party on behalf of the Customer (including but not limited to the Customer’s nominated dealership or mechanic). 

3.2 Test EV and its Partners may withhold the release of Test Data or the Aviloo battery report until any overdue Fees are paid by the Customer. 

4. CANCELLATION

4.1 Without affecting any other remedy available to Test EV, Test EV and its Partners will be entitled to cancel all or any part of the Aviloo Flash Test that has not yet been completed and all amounts owing to Test EV will, whether or not due for payment, become immediately payable in the event that:

(a) any Fees become overdue or in the opinion of Test EV or its Partners, the Customer will be unable to make payment when due;

(b) Test EV or its Partners find that the vehicle is unsuitable for conducting the Aviloo Flash Test; 

(c) Test EV or its Partners believes it will be unsafe for the Aviloo Box to be connected to the vehicle; or

(d) Test EV or its Partners is unable or unwilling to carry out the Aviloo Flash Test for any reason, acting reasonably.

4.2 The Customer shall repay to Test EV or its Partners for any costs, losses or expenses incurred by Test EV or its Partners should the Customer cancel the Aviloo Flash Test within twenty-four (24) hours of the booking date and time. 

5. CUSTOMER RESPONSIBILITIES

5.1 The Customer must not have any other diagnostic device attached to the vehicle at the time of completing the Aviloo Flash Test. 

5.2 The Customer must have the vehicle fully insured with comprehensive vehicle insurance at all times during the Aviloo Flash Test. 

6. WARRANTY

6.1 The Customer acknowledges that the results of the Aviloo Flash Test are limited to the health of the vehicle’s battery at the time the test is performed and is designed to be for information purposes only. The Aviloo Flash Test looks at the vehicle’s battery in isolation to any other component of the vehicle and is not intended to be the sole diagnostic tool in determining the condition or status of the remainder of components of the vehicle. Test EV does not rectify any faults found during the Aviloo Flash Test. 

6.2 Test EV will not be responsible for any future issues or faults with the vehicle or the battery of the vehicle after the Aviloo Flash Test is performed. It will also not be liable to the Customer for any compensation for such. 

6.3 Where a fault or issue with the vehicle’s battery occurs within one (1) month of completion of the Aviloo Flash Test, the Customer may contact Test EV to have the Test Data investigated further. If necessary and at the request of the Customer, the Test Data may be detailed for use by the Client in any third-party proceedings or claims.

6.4 Test EV reserves the right to withhold the Test Data or the Aviloo battery report should the Aviloo Box or the vehicle be modified, altered, damaged or put to any undue stress other than in the way they were designed to perform.

6.5 Test EV shall not be liable to compensate the Customer for any delay in the processing of the Test Data or the release of the Aviloo battery report as a result of a breach of this clause 7. 

7. LIABILITY

7.1 Non-excludable Rights

The parties acknowledge that the services of Test EV come with guarantees that cannot be excluded under the Australian Consumer Law. These guarantees cannot be excluded, restricted or modified by these Terms and Conditions (“Non-excludable Rights”).

7.2 Disclaimer of Liability

Test EV and its Partners rejects all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of Test EV or its Partners for a breach of a Non-Excludable Right is limited, at Test EV’s option, to the supplying of the Aviloo Flash Test again or payment of the cost of having the Aviloo Flash Test supplied again.

7.3 Indirect Losses

Except for where allowed under these Terms and Conditions, Test EV or its Partners are in no circumstances (whatever the cause) liable in contract or tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:

(a) any increased costs or expenses;

(b) any loss of profit, revenue, business, contracts or anticipated savings;

(c) any loss or expense resulting from a claim by a third party; or 

(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by Test EV’s failure or delay in providing the Test Data or the Aviloo battery report (as the case may be). 

7.4 Limitation of Liability

Test EV and its Partners will not be responsible for any loss, damage, claims, errors, inaccuracies or performance failures of the Aviloo Box or Aviloo Battery Software that is a result of or contributable to by:

(a) a breach of any provision of these Terms and Conditions by the Customer; 

(b) the Customer interfering with the Aviloo Flash Test in any way;

(c) the Customer’s use of the vehicle, including using the vehicle in any way that is illegal or unlawful; 

(d) changes to operating systems, third-party software or interfaces and parameters; and

(e) virus, hacking event or other external influences outside the control of Test EV or its Partners.

7.5 Indemnity

(a) Each party agrees to indemnify and hold harmless the other party with respect to any loss, damage or claim arising from their breach of these Terms and Conditions. 

7.6 Force Majeure

Test EV will have no responsibility to the Customer in relation to any loss, damage or expense caused by Test EV’s failure to complete the Aviloo Flash Test as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, damage to the vehicle (however caused, except to the extent it is caused by the Aviloo Box or Aviloo Battery Software) or any other matter beyond Test EV’s control.

8. PRIVACY

8.1 The Customer acknowledges that as part of the Aviloo Flash Test, Test EV may collect vehicle data. This data will only be collected while the Aviloo Box is attached to the vehicle. 

8.2 The Customer hereby authorises Test EV to collect, retain, record, use and disclose commercial and/or consumer information about the Customer, in accordance with the Privacy Act 1988 (Cth), to persons and/or legal entities who are a solicitor, any other professional consultant engaged by Test EV or a debt collector (if required).

9. INTELLECTUAL PROPERTY 

The Customer acknowledges that all Intellectual Property Rights to the Aviloo Box, the Aviloo Battery Software, the mechanisms for the Aviloo Flash Tests, the Test Data (insofar as the Test Data is the original result of an evaluation and/or recombination of data read out of the Aviloo Box), and associated components and programs remains with Aviloo at all times. 

10. GENERAL MATTERS

10.1 Severability

Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.

10.2 Governing Law and Jurisdiction

These Terms and Conditions are governed by the laws of the State of Queensland and each party conclusively submits to the non-exclusive jurisdiction of the courts of Queensland. 

10.3 Dispute Resolution

The parties agree to attempt in good faith to resolve any dispute regarding these Terms and Conditions.

If the dispute or difference is not resolved to the satisfaction of the parties within thirty (30) days, either party may refer the matter to a mediator.

Mediation shall be effected:

(a) by a mediator agreed upon in writing by the parties; or

(b) in the absence of such agreement, by a mediator appointed by the Queensland Law Society.