STANDARD TERMS AND CONDITIONS OF JEWELS4POOLS
When You accept the terms and conditions of this Terms and Conditions. You hereby agree and acknowledge that at any time and in our sole discretion, we may effectively modify the terms and conditions of this Terms and Conditions by posting the modified Terms and Conditions with its new terms and conditions on the Jewels4Pools platform. JEWELS4POOLS will make a good faith effort to notify all active customers of any material changes made to this Terms and Conditions and the date in which such changes take effect. Notice of such changes will be posted to the Jewels4Pools website and or any other platforms, and in some cases a notice will be emailed to You directly.
All modified terms and conditions shall take effect immediately after posting to the Jewels4Pools, or upon the stated date included within the announcement. You are responsible for regularly reviewing this Terms and Conditions. Continued use of the JEWELS4POOLSPlatform or Software after any such changes shall constitute your consent to such changes. This Terms and Conditions may not be modified, amended, and/or changed by You in any manner. Furthermore, you agree that we may modify this Terms and Conditions or discontinue our Platform and its services at any time without notice and without any liability or responsibility to You. This Terms and Conditions is effective on 01 December 2020 for all Customers.
The legal entity You are entering into this Terms and Conditions with is Jewels4pools and its holding entity, if you reside in the Australia then the entity in which You are legally entering into this Terms and Conditions with is Wang-Kerr Industry (A.C.N. 602 835 405). The Supplier does not provide logistics or Courier and Delivery Services, and the Supplier is not a Logistics or Courier and Delivery Service Provider. It is up to the third-party Logistics or Courier and Delivery Provider, courier or vehicle operator to offer courier services which may be scheduled through the Supplier or the Jewels4Pools platform. The Supplier offers information and a method to obtain such third-party courier services but does not and does not intend to provide courier services or act in any way as a courier, and has no responsibility or liability for any courier other than stated herein provided to you by such third parties.
Users of Digital platform
By using the website, App Platforms or the Software provided by Jewels 4 Pools and its holding entity, Wang-Kerr Industry,(the Supplier), you agree that:
You will only use the website, App Platform or Software for lawful purposes; you will not use the website, App Platforms for sending or storing any unlawful material or for fraudulent purposes.
You will not use the website, App Platform or Software to cause nuisance, annoyance or inconvenience.
You will not impair the proper operation of the network.
You will not try to harm the Platform or Software in any way whatsoever.
You will not copy, or distribute the website, App or Software or other content without written permission from the Company.
You will only use the website, App and Platform for your own use and will not resell it to a third party.
You will keep secure and confidential your account password or any identification we provide you which allows access to the website, App or Platform.
You will provide us with whatever proof of identity we may reasonably request.
You will only use an access point which you are authorised to use.
Representations and Warranties for digital user
By using the Jewels4Pools ‘s Platform, you expressly represent and warrant that you are legally entitled to enter this Terms and Conditions. If you reside in a jurisdiction which restricts the use of the website, App or Platform because of age, or restricts the ability to enter into Terms and Conditions, such as this one due to age, you must abide by such age limits and you must not use the website, App and Platform.
By using Jewels4Pools Platforms, you represent and warrant that you have the right, authority and capacity to enter into this Terms and Conditions and to abide by the terms and conditions of this Terms and Conditions. Your participation in using the website, App or Platform is for individual entity use. You may not authorise others to use your user status, and you may not assign or otherwise transfer your user account to any other person or entity. When using Jewels4Pools ‘s platforms you agree to comply with all applicable laws from your home nation, the country, state and city in which you are present while using the Jewels4Pools ‘s Platform. You may only access the website, App or Platforms using authorised means. It is your responsibility to check to ensure you download the correct website and or App for your device. The Company is not liable if you do not have a compatible handset/device or if you have downloaded the wrong version of the Software for your handset/device. The Company reserves the right to terminate this Terms and Conditions should you be using the website, App or Platform with an incompatible or unauthorised device.
3.1 Unless the context otherwise requires:
a) “Business Day” a day that is not a Saturday, Sunday or public holiday in New South Wales Australia.
b) “Buyer” means any person, body corporate or entity which purchases or orders the Products from the Supplier.
c) “Supplier” means Wang-Kerr Industry Pty Ltd(A.C.N 602 835 405), includes its successors and assigns.
d) “Conditions” means these terms and conditions for the supply of Products by the Supplier to the Supplier.
e) “Conditions” means these terms and conditions for the supply of the Products by the Supplier to the Buyer, as amended or varied in writing by the Supplier.
f) “Contract” means a contract between the Supplier and the Buyer for the sale of the Products.
g) “Contract Price” means the price payable for the supply of the Products set out in each Purchase Order
h) “Delivery” means the product delivered to the Buyer.
i) “GST” means GST imposed by the GST law, applicable from time to time, as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) or a successor Act.
j) “Includes” or “Including” means includes/including but without limitation.
k) “Intellectual Property Rights” means all present and future rights conferred by law in or in relation to any copyright, trade-marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered or patentable.
l) “Order Specification” means the Supplier’s specifications for the Products as described in any Purchase Order.
m) “Other Relevant Requirements” means the requirements of all codes, standards, industry requirements, regulations, legislation, by-laws, ordinances, common law and other laws applying to the production, sale, use and consumption of the Products and the supply of the Services.
n) “Products” means the products and materials which Supplier is to supply to the buyer specified under the Contract, or onsite cash purchase, and as specified in the Purchase Order, including any Variations.
o) “Purchase Order” means a purchase order provided by Buyer in respect of the Products to be purchased.
p) “Supplier” means Wang-Kerr Industry.
q) “Site” means the location or address where the Products are to be sold and/or as specified in the Purchase Order or Contract.
r) “Supplier” means the Supplier, and or the party to whom a Purchase Order is addressed and includes (where the context permits) the Supplier’s officers, employees or agents.
s) “Variation” means a variation notified to Supplier in accordance with variation clause
t) “Wang-Kerr” means Wang-Kerr Industry Pty Ltd, ABN……
3.2 Where a word or expression has a defined meaning, its other grammatical forms have a corresponding meaning. A reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements or any of them.
Orders and Purchase
4.1 The Terms and Conditions apply to and govern all Orders placed by the Buyer and all contracts (Contracts) entered into by the Buyer whereby Products are supplied, provided and/or delivered (supply or supplied) to the Buyer.
No order is valid other than an order issued on a Purchase Order, a Contractual Agreement, or an one-off individual order in which the payments has been paid.
4.2 Unless otherwise agreed in writing by the Supplier, for each Contract, an Order and the Conditions will constitute the entire agreement between the Supplier and the Supplier under which Products and/or Services will be supplied by the Supplier to the Buyer. No terms and conditions stated by the Supplier in any quotation, invoice or other document will be binding upon the Supplier unless accepted in writing by the Supplier.
4.3 Unless otherwise agreed in writing by the Supplier, to the extent that any conflict exists between the Conditions and any other documentation or correspondence forming part of any Order or any Contract, the terms and conditions in this Terms and Conditions are paramount and prevail. The Conditions may only be varied by agreement in writing between the parties.
4.4 In the event of contractual purchase, within 3 business days of receipt of an Order, the Buyer must reply to the Supplier to confirm that the Order has been received and that the Order will be completed by the time stated in the Order. The above reply must be sent by email or facsimile to the email address or facsimile number, as appropriate, provided by the Supplier to the Buyer for the purposes of this clause.
4.5 Products supplied pursuant to an Order is free from defects of material and workmanship and:
(a) comply strictly with the quantity, volume and description as noted in the Order;
(b) comply strictly with any specifications as noted in the Order Specification;
(c) be fit for and of suitable quality for the purpose required by the Supplier;
(d) be to or of any standard specified in the Order;
(e) be of merchantable quality;
(f) be delivered by the time specified in and in accordance with all instructions in the Order;
(h) comply with the Other Relevant Requirements.
Application of Conditions
5.1 These Conditions apply to all orders placed by the Buyer with the Supplier unless otherwise agreed in writing by a duly authorised officer of the Supplier.
5.2 Any order made by the Buyer is not binding on the Supplier until the payment is made and accepted by the Supplier. A Contract will be formed upon the payment paid and products are sold.
5.3 In the event of any purchase placed under Purchase Order, the Contract will be formed, a written acceptance by the Supplier of an order for the Products by the Buyer, and deposit is paid by the Buyer. The Buyer acknowledges that it will be bound by these Conditions which will form part of the Contract. The Contract may only be varied with the Supplier’s prior written consent. To the extent any conflict 5.4 exists between these Conditions and any other documentation or correspondence forming part of the Contract, these Conditions are paramount and prevail.
5.5 No terms stated by the Buyer in making an order will be binding upon the Supplier unless accepted in writing by a duly authorised officer of the Supplier.
5.6 These Conditions supersede all terms and conditions of sale previously issued by the Supplier.
5.7 Any quotation issued by the Supplier is not and will not be construed as an offer capable of acceptance by the Buyer.
Supplier may decline order
The Supplier reserves the right, in its sole discretion, to decline any order or part thereof. Any order or part thereof not accepted is deemed cancelled. The Supplier requires that any order of Products be in writing.
7.1 Unless otherwise agreed in writing by the parties, prices are as set out in the current price list issued from time to time by the Supplier plus any GST payable by the Supplier and are subject to variation by the Supplier without notice. If between the date of acceptance of an order and issue of an invoice, there is an increase in the cost to the Supplier of supplying the Products which is beyond the control of the Supplier, then the Supplier may increase the amount of the invoice in line with the increase in cost.
7.2 Unless the Supplier expressly advises in writing, the price for any Products does not include the costs of delivery of the Products and all costs, charges or expenses incurred by the Supplier in relation to delivery are payable by the Buyer. Any GST payable by the Supplier in respect of the supply of the Products will be paid by the Buyer to the Supplier. The Buyer must supply the Supplier with its ABN prior to, or at the time of, placing an order with the Supplier.
7.3 The Supplier at any time may issue a written instruction to the Buyer requiring additions, deletions or changes to the Products to be supplied or in the arrangement of transportation of the Products.
7.4 Where an instruction under this clause results in an additional cost to the Supplier, the Buyer must acknowledge the increases in costs and provide necessary documentation to substantiate any increased cost of the Products.
The Supplier will invoice the Buyer on delivery of the Products. with a valid tax invoice for GST purposes in respect of each supply of Products.
All invoice must be paid on the date of delivery, unless otherwise specified in terms and conditions of each individual contract.
Unless otherwise agreed in writing by the Supplier, payment by the Buyer to the Supplier should be made on the time of site purchase. In the event of the Purchase is based on a contractual agreement. Then the payment should be refer to that individual contractual terms and conditions in which agreed in between the Supplier and Buyer.
Time for payment is of the essence of the Contract. Where payments are overdue, the Supplier may, in addition to any other rights it may have, in its sole discretion, either cancel orders or suspend delivery of outstanding Products.
If the invoice price is not paid by the due date then interest will accrue on that amount from the date of delivery of the Products until the price is paid in full. Interest will be paid at a rate of 12% per annum. Interest will accrue on a daily basis and be payable on demand.
If the Buyer defaults in payment or breaches these Conditions then it will be liable for all costs incurred by the Supplier and will indemnify the Supplier against any loss, liability, charge, expense, outgoing or payment which the Supplier suffers, incurs or is liable for in respect of the recovery of monies owing by the Buyer to the Supplier.
The Supplier does not provide logistics or Courier and Delivery Services, and the Supplier is not a Logistics or Courier and Delivery Service Provider. It is up to the third-party Logistics or Courier and Delivery Provider, courier or vehicle operator to offer courier services which may be scheduled through the Jewels4Pools or its platforms. In the event the Buyer needs the Supplier arrange the delivery, the Supplier will deliver Products purchased by the Buyer to the Buyer’s nominated warehouse or location within the capital city in which the Buyer predominantly carries on business, or to such other place as the Buyer specifies and the Supplier agrees. The Supplier reserves the right to make deliveries of any order by instalments in which case each instalment will be deemed to be the subject of a separate contract governed by these Conditions for which the Buyer must separately pay. The Supplier will not be liable in any way for any failure or delay in delivery or for any loss or damage resulting directly or indirectly from any failure or delay in delivery of the Products irrespective of whether such failure or delay is negligent or within the Supplier’s control or otherwise.
If, due to any act, matter or thing beyond the control of the Supplier, the address for delivery is unattended, delivery cannot otherwise be affected or the Products cannot be dispatched, the Supplier, in its sole discretion, may store the Products at the Buyer’s risk and expense or take such other steps as it considers appropriate.
If the Supplier delivers the Products then, unless otherwise agreed in writing by the Supplier, the Products must be unloaded by the Buyer immediately on arrival at the specified destination.
The Supplier reserves the right to withhold deliveries if:
(a) the Supplier, in its sole discretion, considers that the financial condition of the Buyer so warrants and that such action is advisable to protect the Supplier’s interests; or
(b) the terms of payment for any Products are not strictly adhered to by the Buyer.
To the fullest extent permitted by law, the Buyer has three (3) business days from the delivery of Products to accept or reject the Products in writing and if the there is faulty for the Products. Buyer fails to notify the Supplier within that period, the Buyer is deemed to have accepted such Products.
13.Return of Products
To the fullest extent permitted by law, no Products will be returned unless:
a) prior authorisation has been given by the Supplier;
b) the correct invoice number is quoted on the Buyer’s return docket;
c) the returns are due to faulty products and made within five (3) business days after delivery; and
d) the reason for return is clearly stated on the Buyer’s return docket.
The Buyer and Supplier acknowledge that the Buyer holds the Products as from the date of delivery as a bailee or agent and upon payment is fully made, the ownership of the product is transferred to the Buyer for the purpose of sale of the Products in the ordinary course of the Buyer’s business. The Buyer will not be entitled to return the Products to the Supplier except as stated above or with the written consent of the Supplier, at the discretion of the Supplier. All Products returned will be subject to a handling charge of 15% of the invoice price of the Products and the Buyer will pay all return freight costs. Without limiting the generality of the foregoing, the Supplier and the
Buyer agree that, to the fullest extent permitted by law, the Buyer will not be entitled in any circumstances to return Products which the Supplier has manufactured and acquired specifically for made to order products by the request of the Buyer.
The Supplier warrants that, at the time of delivery, it has the right to sell the Products and the Products are free from all liens, charges and encumbrances of any kind.
Risk in the Products passes to the Buyer on delivery of the Products or on dispatch of the relevant invoice whichever is the earlier and from that time the Buyer assumes all risk of loss and damage to the Products including without limitation all loss or damage in the course of unloading the Products following delivery.
15. Title to Products
Notwithstanding any other provisions in these Conditions and notwithstanding that the Buyer has possession of the Products, title to any and all Products supplied by the Supplier will remain with the Supplier and no legal or equitable interest or property in the Products whatsoever will pass to the Buyer until the Buyer has paid the full invoice price for all Products supplied by the Supplier under all invoices.
Until title passes the Buyer must:
(a) refrain from encumbering the Products;
(b) store, mark and keep appropriate records for the Products so that they can at all times be identified and distinguished as the products of the Supplier and in particular must refrain from mixing the Products with any Products owned by the Buyer or any other person;
(c) allow the Supplier full and free access to the Buyer’s premises where the Products are located to retake possession of such Products if the Buyer is in any way in breach of these Conditions;
(d) not dispose of the Products unless all of the following conditions are satisfied:
(i) the Products are disposed to a bona fide sub-Buyer in the ordinary course of the Buyer’s business;
(ii) no event as specified in clause 15(a), (b) or (c) has occurred in respect of the Buyer; and
(iii) the Buyer maintains records of all disposals of the Products and permits inspection of the records by the Supplier promptly upon request; and
(e) hold such money received by the Buyer on account of the Products as represents the amounts owing for such Products in trust for the Supplier in a separate bank account identified as the Supplier’s account and hold that money on trust for the Supplier until the full amount due for the Products has been paid.
The Buyer indemnifies the Supplier against any claim, action, damage, loss, liability, cost, expense or payment which the Supplier suffers, incurs or is liable for in respect of the Supplier’s exercise of its rights under this clause 13.
The Buyer must arrange adequate insurance coverage in respect of the Products in accordance with the reasonable requirements of the Supplier regarding the entities insured, the risks insured against and the amount of the insurance.
Without limiting clause 16, the Supplier must insure itself and the Supplier in relation to the Products against product liability and product.
17.Warranty and Liability
17.1 The supplier manufacture and supply 100% pure glass, non-fade, coloured and non-coloured glass aggregates and Geo polymer modifiers for all types of renders for using in swim pool construction. The Supplier warrants that all Products, at the time they are dispatched to the Buyers, are of merchantable quality, are fit for their proper purposes and comply with the Australian Consumer Law. These warranties do not in any way reduce or limit obligations of the Buyers in relation to its swim pool construction works in workmanship, materials, completion or other matters related to their quality of pool construction.
17.2 To the extent that the construction and building legislation applied to the pool and its related construction works carried out by the Buyers and its appointed contractors and personals, in which contains the Products and any combined materials contains Jewels4Pools Products, any warranties or other requirements which are required to be contained within or covered by any contract or works pursuant to that legislation are, solely under warranties of the Buyer itself; and the Buyers bears absolutely the risk of any error, omission, ambiguity, discrepancy, inconsistency or any other problem or defect concerning, and acknowledges that the Supplier makes no warranty as to the suitability, appropriateness and adequacy of using the Products or Jewels4Pools Products in its pool construction. The buyer further acknowledges and agrees that it will not be entitled to any warranties under this clause for any error, omission, ambiguity, discrepancy, inconsistency or any other problem or fault concerning its swim pool works or other related pool construction and related materials.
17.3 Further to clarity, the Buyer acknowledges that the Supplier makes no warranty as to whether Jewels4 Pools Products are suitable, appropriate and adequate for the purposes of any pool related work other than solely warrants its original products is 100% pure glass, non-fade, coloured and non-coloured glass aggregates and Geo polymer modifiers. The supplier makes no warranty to any product that made to order with specifications that requested by the Buyer which is differ from Supplier’s original formulated products.
17.4 The Supplier shall be under no liability to the Buyers in respect of any consequential loss or damage which may be suffered or incurred or which may arise directly or indirectly in respect of the Products or may other Jewels4Pools Products supplied pursuant to this Terms and Conditions or in respect of failure or omission on the part of the Buyer to comply with its obligations under Swimming Pool and related construction legislation.
17.5 Subject to any condition, warranty or right implied or imposed by the Competition and Consumer Act 2010 (Cth) (CCA) or any other law which cannot by law be excluded by agreement, or any express provision in these Conditions, the Supplier gives no warranties regarding any Products supplied and all other implied or imposed conditions, warranties and rights are excluded. Where any condition, warranty or right is implied or imposed by law and cannot be excluded, the Supplier limits its liability for breach of that implied or imposed condition, warranty or right to the fullest extent permitted by law.
17.6 Subject to the qualifications in section 64A of Schedule 2 of the CCA or any other law, the Supplier’s liability for any breach of any implied or imposed condition, warranty or right in connection with the supply of Products is limited to one or more of the following (at the election of the Supplier):
(i) replacement of the Products or supply of Products equivalent to the Products;
(ii) repair of the Products;
(iii) payment of the cost of replacing the Products or acquiring Products equivalent to the Products;
(iv) payment of the cost of having the Products repaired.
17.7 Subject to clauses 17.1 and 17.2 and despite any implication arising from any other provisions of these Conditions:
(i) to the fullest extent permitted by law, the Supplier will only be liable for a safety defect (as defined in the CCA) in any Product if the Buyer notifies the Supplier in writing of the safety defect (as defined in the CCA) in any such Product within three (3) business days after the date of receipt and the Supplier accepts such liability;
(ii) the Supplier is not liable to the Buyer, its servants, agents or contractors, in contract, in tort (including negligence), under any statute (to the fullest extent permitted by law) or otherwise for, or in respect of, any indirect or consequential loss or damage including without limitation financial loss or expense including loss of opportunity, loss of profits or loss of goodwill suffered by the Buyer or any other person arising directly or indirectly out of or in anyway attributable to the Products, or their delivery, or the performance of the Contract for the sale of the Products upon these Conditions even if that loss or damage was in the contemplation of the parties at the time of entry into the Contract; and
(iii) subject to clause 11, the aggregate liability of the Supplier in contract, in tort (including negligence), under statute (to the fullest extent permitted by law) or otherwise for, or in respect of, any loss or damage arising directly or indirectly out of or in anyway attributable to the Products, or their delivery, or the performance of the Contract will not exceed 10% of the amount payable to the Supplier under the Contract.
(d) Where the Supplier elects to replace the Products the Supplier will credit the cost of the Products being replaced and will replace them as soon as possible with other Products of the same or equivalent kind at the price charged for the original Products and otherwise upon the same terms and conditions as those to which the original Products were subject.
18. Product Specifications and Design Changes
The Supplier may make any changes or improvements to the design or specification of the Products at any time without giving prior written notice to the Buyer.
19. Termination by the Supplier
Without prejudice to any of its other rights, powers or remedies, the Supplier may cancel any order for the delivery of Products and terminate any contract governed by these Conditions if:
(a) the terms of payment for any Products delivered to the Buyer by the Supplier have not been strictly adhered to by the Buyer;
(b) the Buyer defaults under any of its obligations under these Conditions; or
(c) the Buyer becomes insolvent, commits an act of bankruptcy or, being a Supplier, a liquidator, provisional liquidator, receiver, receiver and manager, administrator or official manager is appointed in respect of the Buyer, a mortgagee goes into possession of the Buyer’s assets or business, an application is made to appoint a liquidator or to have the Supplier wound up, the Buyer is made subject to the supervision of a court or enters into a scheme of arrangement with its creditors or if anything analogous occurs in respect of the Buyer, in which case, the Supplier will be released from all liability under the Contract.
The Supplier will be entitled to payment for all Products delivered up to the effective date of termination. Termination of a Contract is without prejudice to the rights of the Supplier accruing up to the date of termination.
20. Intellectual Property
The products supplied by the Supplier are the unique products designed and owned by the Supplier. The supply of Products to the Buyer does not constitute a transfer of any intellectual property rights in the Products or any part thereof. The Buyer must not do anything inconsistent with or in infringement of such intellectual property rights. The Supplier does not warrant that the supply by it and the use by the Buyer of the Products does not and will not infringe the intellectual property rights of any third party.
The Buyer must indemnify the Supplier and its affiliates from and against any loss, damage, injury, cost (including legal costs), action, claim, demand or proceedings arising from or incurred by reason of, directly or indirectly, any infringement or alleged infringement of patents, registered designs, trademarks, copyright and/or any other industrial or intellectual property right in connection directly or indirectly with the Supplier’s provision of the Products or performance of the Services.
21. Confidential Information
All drawings, specifications, know-how and other information relating to the Products, the Supplier’s operations or affairs which the Buyers becomes aware of during the terms of the Order, including information which by its nature should reasonably be considered to be confidential information, (collectively, Information) are confidential to the Supplier. Information does not include any information which the Buyer can prove either is in the public domain or was known by the Buyer at the time of disclosure, other than through a breach of the Conditions.
The Buyer must keep the Information confidential and must not disclose the Information to any third party except that the Buyer may disclose the Information:
(a) as expressly required or permitted by the Contract;
(b) with the written consent of the Supplier;
(c) to the extent required by a law, by an order of a court or of a regulatory body or by the Listing Rules of the ASX Limited; or
(d) to the extent necessary, to any employee or agent of the Supplier or any other person who is bound by terms no less onerous than those contained in this clause.
The Buyer indemnifies the Supplier from all damages, losses, expenses, claims or actions arising out of a breach by the Buyer of any obligation under this Clause 11 or a breach by any third party of any confidentiality obligation which is imposed on that party and which applies to the Information.
The Buyer must not use or permit to use of any Information for any purpose other than that contemplated by the Order or the Contract, unless authorised by a separate agreement between the parties.
The Buyer must comply with the Privacy Law with respect to any act done or practice engaged in by the Buyer for the purposes of this Contract, including, without limitation, in relation to the collection, use disclosure, storage, destruction or de-identification of Personal Information. The Buyer must also enter into a contractual arrangement to this effect with any subcontractor or third party to which it discloses Personal Information in connection with this Contract.
23. Information Customer Submit
23.1 You, as a customer/ buyer of the Supplier, are solely responsible for any information You provide to us or other users in the registration, delivery, transportation process, or any other information submitted via our platform. Your personal information and any orders must be true, legal, accurate, and non-fraudulent. You authorise Jewels4 Pools to use the information You supply to us in connection with our platform and in accordance with this Terms and Conditions.
23.2 In the event of information you provide through our online platform, You acknowledge and agree that our online platform act as a passive conduit for any and all communication and/or distribution of information. We have no control, editorial or otherwise, over any communication, information, and specifically, over the content of such communication or information. We do not and will not ensure the accuracy or reliability of such communication or information nor will we act as a monitor over the content of such communication for information. However, we do reserve the absolute right to remove or restrict any communication or information that You may post to the Jewels4Pools platforms that is in violation of this Terms and Conditions, illegal, threatening, or lewd. You assume legal responsibility for all damages incurred as a result of any of your online communication or distribution of information.
23.3 Furthermore, you expressly represent and warrant the following: (1) You are the owner, with all appurtenant rights thereto, of any and all communication, content and/or information that You provided to us, or on our Jewels4Pools website, or; (2) You are the legitimate and rightful grantee of a worldwide, royalty free, perpetual, irrevocable, sub-licensable, non-exclusive license to use, distribute, reproduce and distribute such communication, content and/or information. To only that extent to allow us to use your communication, content and/or information and not violate your rights in the same, You grant to us a royalty free, transferable, worldwide, perpetual, irrevocable, sub-licensable, non-exclusive license to exercise the copyright, publicity and database rights that You have in your communication, content and/or information.
23.4 You further represent and warrant that any and all of your online communication, content and/or information:
(a) Will not violate any international, federal or state law, regulation, rule, or statute;
(b) Will not violate the terms of this Terms and Conditions;
(c) Will not infringe upon any third party’s intellectual property rights including but not limited to copyright, patent, or trademark rights;
(d) Will not contain obscene, lewd, or suggestive content and under no circumstances will it contain pornography;
(e) Will not be libellous, threatening, harassing, or defamatory. This specifically includes making legal claims of any sort about JEWEL4POOLS employees, agents, other Users, or any of the JEWEL4POOLS website or Platform;
(f) Will not knowingly contain any computer hardware or software, viruses, trojan horses, worms, or any other computer programming that may interfere with the operation of our website, operation of any of our systems, and/or create or impose a large burden or load on our website;
(g) Will not scan or test the vulnerability or security of our website or the system within which our Servicer operate;
(h) Will not be used for commercial or public purposes outside of the requirements of this Terms and Conditions;
(i) Will not knowingly create liability for JEWEL4POOLS through your use of JEWEL4POOLS’s website;
(j)Will not frame or link to our website or link our website to other unlawful website without our written permission; and
(k) Will not knowingly involve the upload, or insertion of, any programming language or code into or onto our website.
m) Some portions of the Jewel4pools website platform implement Google Maps mapping services, including Google Maps API(s). Your use of Google for search our business, and or google Maps to locate our office or other facilitated business venue, is subject to Google’s Terms of Service.
24. Discontinuance By Supplier
The Supplier reserves the rights of discontinuance in supply any of its products and may provide the Buyer with a written notice time to time it wishes to cease providing or supplying the Products where there is no fixed period of the Contract.
An order placed by the Buyer and accepted by the Supplier cannot be cancelled without the Supplier’s prior written consent (in its sole discretion). No application for cancellation or delay in delivery will be considered unless made by the Buyer in writing to the Supplier. The Supplier will consider an application for cancellation or delay in delivery in its sole discretion.
In the event of a pre-contractual orders, The Supplier may, on providing notice at least 30 days prior to the time for supply of the Products or the completion of the Services, cancel an Order for any Products not supplied and the Supplier will not supply those Products in accordance with and to the extent specified in the notice.
The Supplier will refund the repaid deposit of Products ordered but not supplied which the Supplier is legally bound, at the time of receipt of the notice under clause 14.1, provided that the Supplier will have no other liability for any damages or losses (whether direct, indirect or consequential), costs or expenses in connection with the Orders or their cancellation.
26. Supplier’s Obligations
(a) Notwithstanding any other provision of these Conditions, if the Buyer breaches a term of a Contract, the Supplier is not bound to perform its obligations under that Contract until the breach is remedied by the Buyer.
(b) The Supplier is not liable for any failure to observe its obligations under these Conditions where such failure is wholly or substantially due to a force majeure event, which includes any cause beyond the control of the Supplier, including strike, industrial action, war, sabotage, terrorist activity, national emergency, blockade or governmental action, inaction or request, and act of God.
27.1 Unless the context requires otherwise, terms and expressions used in this clause have the meanings given to them in, or by virtue of, the Personal Property Securities Act 2009 (Cth) (PPSA).
(b) In the event of a long-term contractual obligation with buyer’s installing account operated Orders, The Buyer grants the Supplier a security interest in all Products to which Supplier retains title under these Conditions. If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under that Contract, the Buyer agrees that the following provisions of the PPSA will not apply:
a) section 95 (notice of removal of accession) to the extent that it requires the Supplier to give a notice to the Buyer;
b) section 121(4) (enforcement of liquid assets – notice to grantor);
c) section 130 (notice of disposal), to the extent that it requires the Supplier to give a notice to the Buyer; paragraph 132(3)(d) contents of statement of account after disposal);
d) subsection 132(4) (statement of account if no disposal);
e) section 135 (notice of retention); section 142 (redemption of collateral);
f) section 143 (reinstatement of security agreement).
27.2 The Buyer must:
(a) promptly sign any documents and provide all information reasonably required by the Supplier to register a financing statement or financing change statement on the Personal Property Securities Register or that the Supplier may require in connection with such registrations;
(b) notify the Supplier in writing of any proposed change to its name or address at least 7 days before the change takes effect;
(c) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register, releasing any Products from a security interest perfected by such registration or any other action taken by the Supplier to comply with the PPSA (including complying with a demand given under section 178 of the PPSA or to protect its position under the PPSA;
(d) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier; and
(e) immediately notify the Supplier of any material change in its business practices of selling the Products which would result in a change in the nature of proceeds derived from such sales.
(f) Any time the Buyer makes a payment to the Supplier, irrespective of whether the payment is made under or in connection with a particular supply of Products, the Supplier may apply that payment in any manner and order it sees fit.
(g) Sections 96 and 125 of the PPSA do not apply to the security agreement created by these Conditions.
(h) The Buyer waives its rights to receive a verification statement in accordance with section 157 of the PPSA.
27.3 The Buyer:
(a) waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), and 135 of the PPSA and its rights as a grantor and a debtor under sections 142 and 143 of the PPSA; and
(b) agrees that where the Supplier has rights in addition to those in chapter 4 of the PPSA, those rights will continue to apply and, in particular, will not be limited by section 123 of the PPSA.
c) This PPSA clause does not apply to Buyer with one-off purchase. All payment transaction should be made in each individual one-off purchase.
28. Force Majeure
28.1 Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to observe any of these conditions (other than an obligation to pay money) as a result of any circumstance beyond the party’s control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage or breakdown in machinery. The party affected must notify the other party as soon as possible of such circumstance.
28.2 During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.
29. Governing Law & Submission to jurisdiction.
All of the Conditions and the Contracts will be governed by and interpreted in accordance with the laws of the State of New South Wales, Australia.
30. Significant Regulatory Changes
Should any significant change in law or regulation occur during the Term, the Supplier will subject to clause 7 be entitled, by 10 days notice in writing to the Buyer, to increase the price payable by the Buyer for Products by an amount equal to the increased cost that will be incurred by the Supplier in supplying the Products to the Buyer as a result of such significant change.
31. No Agency
You hereby agree and acknowledge that your execution of this Terms and Conditions, enter into our website, purchase our products and/or your use of Jewels4Pools website, app and other platforms, does not confer or imply any contractor (independent or otherwise), agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship with us and furthermore that no affiliation, association or connection exists between You and Jewels4Pools and its holding entity.
The Buyer must not assign, novate or subcontract, in whole or in part, an Order or a Contract or assign money due to the Supplier under an Order, except with the prior written consent of the Supplier.
The Buyer must not claim any liens, attachments or similar claims in connection with the Products and must defend and indemnify the Supplier against any liens, attachments or other similar claims arising out of or in connection with an Order.
Any waiver of any right or remedy of the Supplier under a Contract:
a) is effective only if it is issued in writing and properly signed on behalf of the Supplier;
b) is effective to the extent that the Supplier expressly states in writing; and
c) does not constitute a waiver of any other right or remedy under the Contract.
35. Dispute Resolution
Any dispute between the Supplier and the Supplier arising out of or in any way connected with an Order which is not resolved by the Supplier within 14 days of a notice by either party to the other advising that it is a notice pursuant to this clause 21 shall be referred for determination to the person agreed between the Supplier and the Supplier or, failing such agreement, to the nominee of the Supplier, who will act as an independent expert and not as an arbitrator and the expert’s written determination is final and binding on the parties.
Any of these conditions may be varied in writing by the Supplier unless otherwise agreed between the parties. Any variation to these conditions will only apply to Purchase Orders placed after the condition has been varied. The Supplier may set-off any amounts owed by it to the Buyer under the Contract against amounts owed by the Supplier to the Buyer on any account whatsoever. The waiver by the Supplier of any provision, or breach of any provision, of the Contract is not to be construed as a waiver of any other provision or a breach of any other provision, or further breach of the same or any other provision of the Contract. If any provision of the Contract is unenforceable or void either in whole or in part for any reason, then that provision (or part) is deemed to be deleted without in any way affecting the validity or enforceability of any other provision. The Contract (including the details appearing on the Purchase Order) constitute the entire agreement between the Buyer and the Supplier and no modification is binding in relation to the Contract unless agreed to in writing by the Supplier. Any dispute arising out of the Contract is governed by the laws of the State of New South Wales of Australia where the Supplier is located and the Buyer submits to the jurisdiction of and agrees to be bound by the Federal Courts of Australia and of that State.