Jirotech Pty Ltd (ABN: 23 138 480 725) (“Jirotech”) agrees to supply goods (“Products”) and/or services (“Services”) to the Customer on these standard terms and conditions (“Terms”).
2. Purchase Orders
Purchase orders for Products or Services will constitute an offer by the Customer and may only be accepted by Jirotech in writing. Any amendments to purchase orders for Products or Services must be approved by Jirotech in writing to be effective. Only these Terms (not other terms and conditions which may be attached to or incorporated in a purchase order) form part of the agreement between the parties. Acceptance of a purchase order will not be acceptance of any such terms or conditions.
Payment terms are as specified on the quotation. Overdue accounts will be subject to interest at the rate of 13% p.a., calculated for the period the account is due until the date it is paid. In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including commission on collection of the additional costs and also including legal demand costs
Jirotech makes no warranty in relation to the Products or Services other than as contained in these Terms or a prescribed by a law which cannot be excluded or in the case of Products, as provided by the Products’ respective manufacturer. Defects in Services reported to Jirotech within 14 days of delivery of the Service will be rectified by Jirotech at no charge to the Customer. Jirotech will not provide claimed warranty services for defects or deficiencies in Product or Services which are caused by:
a. external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge or spike
b. the use of a Product for other than its intended purpose
c. the use with or connection of a Product to items not approved by Jirotech
d. the performance of maintenance or attempted repair by persons other than Jirotech
e. changes made to the deliverables created by performance of the operating environment
f. the relocation of Products by the Customer
g. any configuration or reconfiguration by the Customer of the Products or other equipment with which the Products interface
Jirotech will use its reasonable endeavours to deliver Product or Services to the Customer by the date agreed but will not be liable for any delays in delivery caused by matters beyond its control.
6. Product Returns
Products returned will only be credited to the Customer’s account if the return is authorised by Jirotech and the Products are in the same condition as delivered by Jirotech and only if received by Jirotech within 10 days of delivery. Jirotech will charge a re-stocking fee of $250 or 30% which ever is greater for items returned during this period. Item returned after 10 days and/or in a different condition to the condition the Products were in when delivered by Jirotech will not necessarily be credited. It should be noted that any specific manufacturer terms may override the above conditions. Jirotech will use its best endeavours to minimise additional costs.
7. Pre-Paid Services
Pre-Paid Services must be redeemed within 6 months from the date of invoice unless specified otherwise. In the event that these services are not redeemed during that time, then the remaining credit will be forfeited.
Cancellation of Products and/or Services will result in the charge of a cancellation fee of 30%.
9. Service Delays
"Jirotech is to be reasonably reimbursed for additional expenses, losses and/or damages incurred as a result of any delays which are reasonably considered as being within the Customer scope of responsibility, or items over which the customer has control.
Where engineering work is previously scheduled and is to be delayed, no less than five business days’ notice must be provided by The Customer in advance of the previously scheduled work. Failure to provide five days notification may result in additional charges at Jirotech’s discretion.
Charges for delays, expenses and/or damages will be calculated based on Jirotech’s reasonable losses, or at a daily rate of AUD $1,370 (ex GST), whichever is greater.
Jirotech may amend the Scope of Work as needed in instances where Customer delays would otherwise jeopardise the project delivery.
The following are examples of delays under this clause:
• Piecemeal work / inconsistent scheduling:
- Requiring work be performed in segmented time blocks, rather than a single work effort, where this was not originally specifically requested.
- Adjusting work effort where customer’s resources are unavailable, or request work be rescheduled without sufficient notice being provided (no less than five business days).
• Customer-specific delays, such as:
- Pre-requisites not being made available to Jirotech on scheduled timelines.
- Customer requesting projects be placed on hold or otherwise delayed for any reason outside of Jirotech’s direct control.
Unless the Customer gives Jirotech, written notice of any aspect of a deliverable which is alleged by the Customer to be otherwise than in accordance with these Terms or any applicable specifications, within 10 business days of the date of delivery of that deliverable, or the date at which the customer was notified of the completion of that deliverable, the Customer shall be deemed to have accepted that deliverable on delivery. Where the Customer puts a deliverable to commercial use, it shall be deemed to have accepted that deliverable on the first day of such use, whether or not a notice of the kind contemplated by this clause is given to Jirotech as required.
11. Risk and Insurance
Risk of loss, theft, damage, deterioration or destruction of Products passes to the Customer upon the earliest of:
a. delivery to the Customer site
b. the taking of possession by the Customer
c. the delivery to any carrier contracted to the Customer for delivery to the Customer
Jirotech and the Customer agree that they will keep at all times as strictly confidential any confidential information that is disclosed or provided by one party to the other. In this clause, “commercial in confidence” means information in any form but does not include information that is already in the public domain.
13. Intellectual Property
The Customer acknowledges that, unless otherwise agreed in writing, all intellectual property rights attaching to the Products or arising out of the provision of Services are and will remain the property of Jirotech (or its supplier, where such rights are owned by that supplier). Software will be licensed to the Customer on the terms of the relevant license agreement provided with the Product or as agreed between Jirotech and the Customer in writing. Any rights to be confirmed on the Customer will only commence on payment of all charges payable in conjunctions with those rights.
14. Open Source Materials
"If the products or services provided by Jirotech contains Open Source Material. Your rights to use this material are governed by the relevant Open Source Software license conditions developed by third parties. Jirotech does not provide warranty for any Open Source Material and you as the customer agree to use such material under the following terms;
“THE SOFTWARE IS PROVIDED ""AS IS"", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.”"
Without the prior written consent of Jirotech, the Customer will not recruit any personnel assigned by Jirotech to perform any Services for the Customer until one (1) year after completion of the applicable Project.
"Recruit" means to initiate personal contact for the purposes of hiring, but does not include responding to an unsolicited application, receiving unprompted responses to advertisements, or receiving candidates who are, without Customer involvement, presented to Customer by a recruiting firm.
If the Customer hires personnel in violation of this provision, Customer immediately will pay Jirotech liquidated damages in an amount equal to the hired employee's total compensation for the six (6) months preceding the date of hiring.
Where the Customer:
a. makes default in any payment or breaches any of these Terms
b. becomes unable to pay its debts as and when they fall due
c. commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up
Jirotech may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Customer
a. suspend further supply and require payment in advance for future supply
b. recover possession of any Product for which payment has not been made
c. terminate all or any purchase orders for Products or Services which have been accepted by Jirotech
d. claim immediate payment of all moneys due by the Customer in respect of all Products and Services which will then be immediately due and payable notwithstanding the due date or dates for payment or any terms agreed by Jirotech
e. continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.
17. Taxes and GST
The amount payable to Jirotech (“the Price”) is inclusive of existing taxes, duties and government charges imposed or levied in Australia in connection with the supply of the Services. The Customer shall be liable for any new or varied taxes, duties or charges imposed subsequent to Jirotech's quotation or proposal or to this agreement in respect of the supply of the Services. Jirotech will issue a valid tax invoice where GST is to be recovered.
18. Record Keeping
Jirotech will maintain, for a period of six (6) years, all records relating to the supply of Products and Services to the Customer. At the request of the Customer, Jirotech will make available any Customer records previously disclosed to Jirotech by the Customer. All other information or records will be disclosed to the Customer solely at Jirotech's discretion. These records are kept and made available on a best effort basis only, and no warranty or guarantee is made to their accuracy or completeness.
19. No Representations
The Customer acknowledges that Jirotech has not made any warranty or representation, express or implied, in relation to the Products or Services, including whether they are suitable for a particular purpose (whether such purpose was made known to Jirotech or not), unless provided in writing.
20. No Implied Terms
To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these Terms by any statute. The liability of Jirotech for a breach of a condition or warranty implied into these Terms by the Competition and Consumer Act 2010 (Cth) is limited at the option of Jirotech:
a. if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired
b. if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.
21. Limitation of Liability
a. Jirotech will not be liable to the Customer for any indirect or consequential damages including loss of profits, revenue, data or use arising out of or in relation to the supply of Product or Services, even if Jirotech knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.
b. Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, Jirotech's liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Product or Services pursuant to these Terms or in respect of a failure or omission on the part of Jirotech to comply with its obligations under these Terms, shall be, in aggregate, limited to an amount equal to the amount paid by the Customer to Jirotech under these Terms.
Any variation to these Terms must be in writing. This requirement pertains to all such requests including, but not limited to request for changes in project plans, scope, specifications, schedule or requirements. Jirotech will not be obliged to perform tasks described in the Customer’s request until both parties agree in writing. Variations to any of the Services agreed to be supplied will be charged by Jirotech at its then current rates for those additional services, unless otherwise agreed in writing.
All notices must be in writing and sent by mail, hand delivery or transmitted by facsimile to the address or facsimile number of the receiving party and shall be deemed delivered, in the case of:
a. hand delivery, on delivery
b. posting, three days after dispatch
c. facsimile, on completion of complete and legible transmission
No leniency, indulgence or extension of time granted by Jirotech to the Customer will prejudice any of Jirotech's rights in any way or constitute a waiver of any of Jirotech's rights.
If any of these Terms are for any reason declared to be or become unenforceable, invalid or illegal, the remaining Terms will remain in full force and effect.
These Terms are governed by the laws of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.