Terms of service
1 General
(a) These Terms and Conditions (Terms) apply to the provision of materials, plans or our designs (Goods) to you by JW Applied Tech Pty Ltd (ABN 63 681 203 510) ('we' or 'us').
(b) These Terms:
(i) are in addition to any quotations, contracts and variations and take precedence over any other terms and conditions between you and us in any quotations, contracts and variations; and
(ii) contain the entire agreement between you and us in relation to its subject matter.
2 Orders
(a) Any request for the supply of Goods must be placed through our website or via email to us (Order) and we may accept or reject any order at our discretion.
(b) An Order will only be deemed accepted after we send an email to you to formally accept it (Order Confirmation), upon which a contract will be formed based on these Terms that will apply to the provision of the Goods confirmed in the Order Confirmation.
(c) We have sole discretion to require you to pay a deposit for the Goods, and we may withhold the provision of such Goods until the deposit is paid.
(d) Orders accepted by us cannot be cancelled without prior written consent from us. If we agree to cancel an order you have made, subject to our absolute discretion, you may be required to forfeit to us any deposit you have paid.
3 Payment
(a) Prices for Goods will be:
(i) the amount for the Goods provided in a written quote before an order confirmation; or
(ii) if no quote has been provided by us, in accordance with our current price list set out in the Order Confirmation or on our website.
(b) We may also change additional fees if we incur any additional costs as a result of relying on inadequate or incorrect information or material you provide us.
(c) We will invoice you the total cost for the Goods and you must pay us:
(i) in full before the date specified on an invoice issued to the Customer for the Goods; or
(ii) in accordance with a payment schedule agreed in writing between you and us,
(Invoice).
(d) If any Invoice is due but unpaid, we may withhold the provision of any further Goods until the overdue amount is paid in full.
(e) If any amount is not paid by the due date, then we may charge interest on the outstanding amount at a rate equal to 5 percentage points above the Reserve Bank of Australia cash rate, calculated on a daily basis for each day until the outstanding amount is due. All costs and expenses associated with collecting overdue amounts, including (but not limited to) our legal fees and internal costs and expenses, are to be paid by you as a debt due and payable under these Terms.
4 Delivery of Goods
(a) Delivery of the Goods is taken to occur when:
(i) you take possession of the Goods at our address;
(ii) the Goods arrive at the address nominated by you (even if you are not present at the address); or
(iii) in the case of digital Goods, you receive the digital file,
(Delivery).
(b) We have sole discretion to choose the method of transport of the Goods and may subcontract Delivery or deliver the Goods to you in instalments.
(c) Any time quoted for the Delivery of Goods is only approximate and you agree that:
(i) you will have no right to damages or to cancel any Order due to a quoted delivery time not being met; and
(ii) we will not be liable for any delay in Delivery of the Goods.
5 Title and risk
(a) Risk in the Goods passes to you immediately upon Delivery.
(b) Property and title to the Goods passes to you until after Delivery has occurred and all money due and payable by you to us has been paid in full.
(c) If we Deliver the Goods to you without payment in full, you:
(i) must not allow any person to have or acquire any security interest in the Goods; and
(ii) agree that we can repossess the Goods if payment is not made before a date as approved by us.
6 Intellectual Property Rights
6.1 Our Intellectual Property
(a) If we provide you designs, specifications, drawings, models, instructions or any other material (collectively, the JW Pre-Existing Materials), you acknowledge and agree that all Intellectual Property rights in the JW Pre-Existing Materials remain our exclusive property, and you are not authorised to:
(i) alter, modify, adapt or make any derivative works of any portion of the JW Pre-Existing Materials under any circumstances unless you have received our express written consent; or
(ii) distribute or otherwise make available any portion of the JW Pre-Existing Materials to a third party,
(Restrictions).
(b) Unless specifically agreed in writing between you and us, all Intellectual Property Rights we create on your behalf that is in any way related to the Goods (Developed IP) belongs to us and vest in us upon creation and remain our property.
(c) Subject to payment of all invoices due in respect of the Goods, we grant you a perpetual, non-exclusive, non-transferable and non-sublicensable licence to use the Developed IP and JW Pre-Existing Materials incorporated in the Goods for your internal purposes so as to enjoy the benefit of the Goods subject always to the Restrictions.
6.2 Your Intellectual Property
(a) Intellectual Property Rights means all intellectual property rights of whatever nature throughout the world including all rights conferred under statute, common law or equity, whether existing now or at any time in the future, including rights in all copyright, patents, trade marks, business names, trade names, domain names, designs, confidential information, trade secrets and know-how.
(b) You retain ownership of the Intellectual Property Rights in all designs, specifications, drawings, models, instructions or any other materials you provide to us as part of us fulfilling your order (Customer Pre-existing Materials).
(c) You grant us a non-exclusive and non-transferable licence to use the Intellectual Property Rights in all Customer Pre-existing Materials for the sole purpose of us fulfilling your Order.
(d) You represent and warrant that:
(i) you own all Intellectual Property Rights in Customer Pre-existing Materials for the purpose of fulfilling the Order, or have obtained all necessary licenses, consents and permissions to use, reproduce, and otherwise exploit the Customer Pre-existing Materials for the purpose of fulfilling the Order; and
(ii) use of the Customer Pre-existing Materials by us will not infringe upon the Intellectual Property Rights of any third-party.
(e) In the event of any claim, action, or demand alleging that the use of the Customer Pre-existing Materials infringes or violates the Intellectual Property Rights of any third party, you agree to indemnify us and our officers, contractors, agents employees (JW Persons) against all losses, damages, liabilities, costs, and expenses (including reasonable legal fees) resulting from or arising out of such claim, allegation, or action made against a JW Person.
7 Indemnity
7.1 No Warranties
(a) You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Terms.
(b) We do not give any representation or warranty, express or implied:
(i) regarding the merchantability, quality, fitness for a particular purpose of the Goods; and
(ii) that the JW Pre-existing Materials and Developed IP does not infringe any third party Intellectual Property Rights.
(c) We will have no liability for any damage to Goods which result from:
(i) accident;
(ii) your failure to follow the instructions that come with the Goods or that we otherwise provide; and
(iii) operation of the Goods outside of standard usage parameters.
7.2 Liability
(a) To the fullest extent permitted by law, you will indemnify and hold us harmless for any liabilities associated with and/or arising from claims related to the development, delivery or use of the Goods, including but not limited to claims, allegations or actions arising from or on account of:
(i) infringement of third-party IP (whether actual or alleged) resulting from your use of the JW Pre-existing Materials or Developed IP;
(ii) bodily injury (including death) and/or property damage in any manner caused by, incidental to, or growing out of any act (negligent, wilful, intentional or otherwise) of yours regardless of location, except to the extent caused or contributed by the negligent act or omission of ours;
(iii) usage of our Goods for unlawful purposes; and
(iv) our compliance with the Customer Pre-existing Materials to fulfil the Order.
(b) You also indemnify us for any loss we incur as a result of a cancellation of an Order.
(c) To the fullest extent permitted by law, we are not liable for any direct, indirect, punitive, incidental, special or consequential damages whatsoever, including (without limitation), damages for loss of revenue or profits, goodwill or reputation, loss of or interruption to business, arising out of or in any way connected with the provision of or failure to provide Goods, even if we have been advised of the possibility of damages.
(d) Subject to clause 7.2(a) to 7.2(c)and to the extent permitted by law, our liability to you is limited to (at our sole discretion):
(i) the replacement of your Goods or supply of Goods which are equivalent;
(ii) the payment of the cost of replacing your Goods or of the supply of an equivalent Good; or
(iii) refunding the amount of your Order,
and in no case will our liability to you exceed the total price paid by you for the Goods supplied under an Order.
(e) Each party's liability under or in relation to these Terms is reduced to the extent that any damages, liability, loss or costs arises from or is attributable to, any breach of contract by, or any unlawful or negligent act or omission of, the other party.
(f) Nothing in this clause is intended to affect or affects your rights under the Australian Consumer Law.
8 Uncontrollable Events
(a) We are not liable for delay or non-performance of our obligations to the extent caused by an uncontrollable event.
(b) We will notify you if we are impacted by an uncontrollable event and use reasonable endeavours to overcome it.
(c) Circumstances beyond our control include, but are not limited to, unavailability of materials or components, strikes, natural disasters, transport difficulties and failures or malfunctions of computer systems.
9 GST
(a) In this clause 9, a term or expression starting with a capital letter which is defined in the GST Law but not defined in these Terms has the same meaning as in the GST Law.
(b) Unless expressly stated to be exclusive of GST, each consideration or payment obligation in connection with these Terms is inclusive of GST.
(c) If GST is or becomes payable on a Supply made under or in connection with these Terms, an additional amount is payable by the party providing consideration for the Supply equal to the amount of GST payable on that Supply as calculated by the party making the Supply in accordance with the GST Law.
(d) The additional amount payable under paragraph (c) is payable at the same time and in the same manner as the Consideration for the Supply.
(e) Unless otherwise stated, if a party is entitled under an Order to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with an Order, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed.
(f) If an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.
10 Governing Law
These Terms are governed by the laws of the State of New South Wales.