TERMS & CONDITIONS

TERMS & CONDITIONSArchitectural Window Systems Pty Ltd Licence Agreement

SpecifyAWS Terms of Use

Welcome to SpecifyAWS (the Website).  The Website is provided and operated by Architectural Window Systems Pty Ltd (AWS) (ACN 067 950 903) of 76-78 Jedda Road, Prestons NSW 2170.

The Website provides an online technical resource for all end users of the Website (Online Resource).  Access to certain elements of the Online Resource is, however, limited to a registered user (Registered User)of the Website (the Member Service).  The Member Service offers Registered Users access to additional materials and functionality not available to an unregistered user of the Website.

The following terms and conditions (Terms of Use) apply to the use and access to the Website, the Online Resource and the Member Service.  In these Terms of Use, we or us means AWS, and you means you, as an end user of the Website, the Online Resource or the Member Service.

By accessing or using the Website or registering an account (SpecifyAWS Account)for the Member Service you acknowledge that you have read, understand, and agree to be legally bound by these Terms of Use and our Privacy Policy (Privacy Policy).  We may amend these Terms of Use and Privacy Policy from time to time and any changes will be posted on the Website.  By continuing to use the Website, the Online Resource and the Member Service (as applicable), you accept the amended Terms of Use or Privacy Policy.  You may view the most current version of the Terms of Use and Privacy Policy on the Website at any time.

If you do not agree to the Terms of Use or Privacy Policy, please cease accessing or using the Website, the Online Resource and the Member Service immediately.

 

1.        These Terms of Use

These Terms of Use apply to all users of the Website, the Online Resource or the Member Service, save for clauses 2, 3.3, 3.4, 3.5 and 3.8 which apply to Registered Users only.

 

2.        SpecifyAWS Account

2.1      SpecifyAWS Account

You are not required to create a SpecifyAWS Account to use certain elements of the Online Resource. However, you will need to create a SpecifyAWS Account to become a Registered User to use the Member Service.  You may apply to become a Registered User by completing an online registration form on the Website.  You must be an architect, building designer related trade professional or student of a related profession to create a SpecifyAWS Account and become a Registered User.

2.2      Registration Process

You will not be able to access and use the Member Service until your registration is accepted by us and your SpecifyAWS Account is activated and verified by us, including verification that you are an architect, building designer, related trade professional or student of a related profession.  We may accept or reject your application at our discretion.  We will notify you via email once your SpecifyAWS Account is approved and provide you with the necessary information for you to access your SpecifyAWS Account.  As part of the registration process we will require you to create a password for your SpecifyAWS Account.

2.3      Use of your SpecifyAWS Account

Your SpecifyAWS Account is personal to you and is not transferable except as expressly stated in these Terms of Use.  You must not:

(a)       use a false identity to create a SpecifyAWS Account, or falsely state, impersonate or otherwise misrepresent your identity, your profession or your trade when creating the SpecifyAWS Account;

(b)       sell, lease, license, rent, loan, trade or transfer your SpecifyAWS Account to another party;

(c)       permit any other person to access or use your SpecifyAWS Account;  or

(d)       charge anyone for access to any information or materials within your SpecifyAWS Account.

We reserve the right to deny registration or restrict, suspend or close any SpecifyAWS Account if we determine, in our sole discretion, that doing so is necessary to enforce these Terms of Use or to protect the integrity or functionality of the Member Service or any user account.

2.4      User Name and Password

You must ensure your user name and the password for your SpecifyAWS Account are kept securely.  Do not disclose your user name or password to any person or allow them to be used by any other person at any time.  Whilst your account is active, you are entirely responsible for any misuse or abuse of your user names, passwords or other log in details by any person and for anything that happens through access to or use of your SpecifyAWS Account.  You must immediately notify us in writing via the “Contact” section on the Website of any actual or suspected unauthorised use or disclosure of any user names, passwords or other log in details in relation to your SpecifyAWS Account.

 

3.        What we Offer

3.1      Online Resource

The Online Resource includes documents of the following nature made available by us on the Website from time to time:

(a)       for all users of the Website, Product Information Sheets; and

(b)       for Registered Users, additional documents such as Specifier Manuals, REVIT, ArchiCAD, SketchUP, 2D CAD, Installation and Test Report documents made available through the Member Service.

We may modify the nature of the documents made available by us in the Online Resource at our discretion.

3.2      Access to the Online Resource (other than via the Member Service)

We grant to all users of the Website a limited, non-exclusive, non-transferable licence to access and use the Online Resource (other than documents made available via the Member Service) within Australia during the term of this agreement and subject to these Terms of Use.  The rights granted to you are personal and may not be transferred or sublicensed.

3.3      Access to the Online Resource (via the Member Service)

We grant to each Registered User from the date of registration of his or her SpecifyAWS Account a limited, non-exclusive, non-transferable licence to access and use the documents made available via the Member Service within Australia during the term of this agreement and subject to these Terms of Use.  The rights granted to you are personal and may not be transferred or sublicensed.

3.4      MyProjects Dashboard

The Member Service includes a “MyProjects Dashboard” function (MyProjects Dashboard), which enables all Registered Users to:

(a)       create project folios of selected documents in the Online Resource and store them for future use or download subject to these Terms of Use; and

(b)       create brochures (Brochure) from “Product Information Sheets” using the “Create Brochure” tool on the MyProjects Dashboard.  Your use of the Brochure is subject to these Terms of Use.

3.5      Restrictions on the use of technical drawings

You acknowledge that the REVIT, ArchiCAD, SketchUP or 2D CAD files (Technical Drawings) are made available solely for the purposes of detailing, specifying, using and promoting the use of AWS products in Australia.  You are authorised to reproduce and distribute exact copies or exact extracts of the Technical Drawings for the sole purpose of detailing, specifying, using and promoting the use of AWS products in Australia only.  You are entirely responsible for obtaining and maintaining any software applications necessary to view or utilise such files.

3.6      Conditions of use of the Online Resource

(a)       You are responsible for determining the suitability or otherwise of any particular product or any installation method for the specific project being undertaken, and for ensuring compliance with applicable standards, including by obtaining all necessary professional advice.  You agree that we are not responsible for inaccuracies or errors in the documents or information made available on the Online Resource, including, without limitation, those caused by incorrect information supplied to us or by manufacturers or suppliers changing product specifications without notice to us.

(b)       The Online Resource is provided as an indicative resource only and the content is suited only for general installation and set out purposes.  Without limiting the above, you acknowledge that some files may have minor alterations to protect proprietary rights.

(c)       Neither we nor any third party will be liable for any errors in the documents and information made available via the Online Resource, or for any actions you take in reliance on the documents or information in the Online Resource.  Neither you nor any other person may hold us liable for any delays, inaccuracies, errors or omissions in respect of the Online Resource or the transmission or delivery of the documents made available via the Online Resource, or for any liability, loss or damage arising from any of them.

3.7      Updates to the Online Resource

We may, at our discretion, remove, modify or update the documents or information in the Online Resource from time to time and without notice to you.  Such updates include any modifications, enhancements, improvements, or revisions to the documents or information, including any updates to correct errors or to comply with changes to law or industry guidelines.  For Registered Users, any documents saved to your MyProjects Dashboard will also be updated without notice to you.

3.8      Backup

Although we use reasonable endeavours to have in place appropriate back-up arrangements, you should at all times maintain separate records of all Online Resource stored on your SpecifyAWS Account (including projects and Brochures stored on your MyProjects Dashboard).  To the maximum extent permitted by law, we exclude all liability arising out of or in connection with loss or deletion of any Online Resource stored in your SpecifyAWS Account even where this occurs through our negligence.

 

4.        Access to and Using the Website

4.1      Access

We grant to you a limited, non-exclusive, non-transferable licence to access and use the Website within Australia during the term of this agreement and subject to these Terms of Use.  The Online Resource (including the Member Service) is provided via a web based application on the Website and none of the source or object codes of any software relating to the Website will be made available to you.

4.2      Availability

We will use reasonable efforts to provide you with access to the Website and the Online Resource.  We do not guarantee that the Website or the Online Resource will be available or accessible at all times.  You should be aware and agree that access to and use of the Website or the Online Resource may be temporarily suspended from time to time without notice in the event of technical failure, modification or maintenance of the Website or the Online Resource.

4.3      Use of the Website and the Online Resource

You agree at all times to access and use the Website and the Member Service in accordance with:

(a)       these Terms of Use and all variations of these Terms of Use made available on the Website;

(b)       all applicable laws and all relevant regulatory requirements;

(c)       our Privacy Policy.

4.4      Restrictions on Use

You must not, even after the termination or expiry of these Terms of Use:

(a)       collect, use, duplicate, license, sublicense, publish, distribute, rebrand, sell or otherwise make available to any third party, in whole or in part the Online Resource and any information, publications or other content published on or made available via the Website (Content) except as permitted in these Terms of Use or as expressly authorised by us;

(b)       remove, obliterate, or obscure from view any copyright, trade mark or confidentiality notice or legend appearing on or within the Content;

(c)       access, via automated or manual means or processes, the Website or the Online Resource for purposes of monitoring its availability, performance or functionality or for any competitive purpose;

(d)       decompile, disassemble, reverse engineer, attempt to derive the source code for, modify, adapt, translate or copy the software relating to the Website of the Online Resource, in whole or in part; or develop any software or create derivative works based upon the software;

(e)       use the Website or Online Resource for the purpose of operating a computer bureau; or

(f)        interfere with or disrupt the availability of the Website, including but not limited to any servers or networks connected with the Website.

4.5      Updates

We may, at our discretion, update the Website from time to time. Such updates include any modifications, enhancements, improvements, or revisions to the Website, including any updates to improve performance or correct errors or to comply with changes to law, industry guidelines or to make technological enhancements.  Use and access to all updates are subject to these Terms of Use. 

 

5.        Collection and disclosure of information and privacy

5.1      Information we collect

When you use the Website and the Member Service, we automatically collect and store certain information in our secure cloud-based CRM database, for our internal use.  This includes:

(a)       details of how you used the Website, the Online Resource and the Member Service, such as the webpages viewed and documents downloaded from the Online Resource, including the date and time of your requests;

(b)       details of your MyProjects Dashboard, such as projects and Brochures created by you and products included;

(c)       details of the date and time of login to your SpecifyAWS Account; and

(d)       Internet protocol address.

5.2      Permitted disclosure

You agree that we may access, preserve, use and disclose your personal information if required to do so by law (or by any judicial or regulatory body), where expressly authorised by you, or where in good faith we believe that such access, preservation, use or disclosure is reasonably necessary in our opinion to:

(a)       provide the Member Service;

(b)       respond to your enquiries;

(c)       enforce these Terms of Use;

(d)       comply with legal process, including but not limited to civil and criminal subpoenas, court orders or other compulsory disclosures; or

(e)       comply with required or commercially prudent record keeping practices.

5.3      Privacy

Our Privacy Policy governs how we collect, use, handle and disclose any personal information you provide or disclose to us and forms part of these Terms of Use.  You should carefully read and review our Privacy Policy in full before disclosing to us any personal information.

 

6.        Support and Maintenance

6.1      Support

You may request support from our team with respect to the use and access of the Website or the Online Resource, registration for and use of the Member Service and any other queries you may have via our “Contact” link on the Website or the “Request Support” link available to Registered Users when you log in to your SpecifyAWS Account.  We will use our reasonable endeavours to respond to all queries in a timely manner. 

6.2      Notifications and Member Service Messages

All service messages and notices generally about the Website or the Online Resource will be made available on the Website.  All service messages and notices specifically about the Member Service will be emailed to the email address nominated by you in your SpecifyAWS Account (even if we have other contact information) and made available on the Website.  You must ensure that the email address is kept current and that you take steps to avoid any messages from us being filtered by ‘spam’ filters or similar.  You acknowledge that we will have no liability arising from your failure to maintain accurate contact or other information.

7.        Intellectual Property Rights

7.1      Ownership

All intellectual property in and to the Website and the Online Resource (including any updates, development, modification, adaptation, enhancement or improvement) and all trade marks (registered and unregistered) used by us in connection with the Website, the Online Resources or the Member Service belongs to us, or alternatively where we are licensed or authorised to use that intellectual property to our licensor.  Apart from the permitted use under these Terms of Use, you acquire no right, title or interest in or to that intellectual property by virtue of these Terms of Use or your access to or use of the Website or Online Resource.

7.2      Infringement

Without limiting any other provision of these Terms of Use, if the Website or the Online Resource infringes or is alleged to infringe the intellectual property rights of any third party, we may at our discretion, modify or re-work the Website or the Online Resource so that such infringement is removed; procure the right for you to continue enjoying the benefit of the Website or the Online Resource in accordance with these Terms of Use; or immediately terminate these Terms of Use and your access to the Website, Online Resource and, where applicable, Member Service without liability.

 

8.        Warranties and indemnity

8.1      Your warranty

You warrant that you have all necessary right, power and authority to enter into these Terms of Use.  In addition, if you are a Registered User you warrant that:

(a)       you are an architect, building designer or related trade professional;

(b)       you will only use the documents made available via the Member Service within Australia;

(c)       to the best of your knowledge, the information provided to us for the purpose of using the Member Service, including for the purpose of registering your SpecifyAWS Account:

                          i.       is true, correct and current;

                         ii.       is able to be disclosed by you;

                        iii.       does not infringe the rights of any third party; and

                        iv.       is able to be legally provided to us and its disclosure does not breach any law or any obligation (whether of confidence or otherwise) owed to any person.

8.2      Acknowledgement

Subject to clause 9.1, you acknowledge and agree that:

(a)       you have not relied upon or been induced by any representation by us and we make no warranty or representation as to suitability, accuracy, reliability or otherwise of any information obtained through the Website, the Online Resource and Member Service; or

(b)       the Website, the Online Resource and Member Service are provided on an AS IS and AS AVAILABLE basis and you use the Website or the Online Resource entirely at your own risk; and

(c)       use of the Website, the Online Resource and Member Service may be subject to technical limitations such as internet connection, network coverage and third party service availability.

8.3      Indemnity

You release and indemnify us, our associated entities and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against us or them, whether on our own or jointly with you and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of or in connection with:

(a)       a breach of your warranties or obligations contained in these Terms of Use;

(b)       any illegal or wrongful act by you or your officers, contractors, employees or agents in connection with the use of the Website, the Online Resource or the Member Service;

(c)       your failure to use reasonable care in carrying out your obligations under these Terms of Use;

(d)       the use of the Website, the Online Resource or the Member Service by you or on your behalf; or

(e)       breach of intellectual property rights of third parties arising out of the use of the Content,

and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.

 

9.        Limitation of Liability

9.1      Non-excludable Terms

Nothing in these Terms of Use excludes, restricts or modifies the application of any legislation which by law of any jurisdiction cannot be excluded, restricted or modified. In particular, without limiting the foregoing, where you are considered a “consumer” within the meaning of the Australian Consumer Law (ACL), we give the guarantees to the extent required by the ACL (Consumer Guarantees) with respect to the Online Resource (including the Member Service).

9.2      No Express Warranty

Subject to this clause 9 and in addition to (where applicable) any Consumer Guarantees and any other rights and remedies you may have under applicable law which cannot be excluded, to the extent permitted by law, all representations, warranties, guarantees, terms and conditions which would otherwise be implied in or imposed on these Terms of Use in connection with any goods or services supplied by us or otherwise relating to the performance of our obligations under these Terms of Use, the Website, the Online Resource or the Member Service, are excluded.  Without limiting the foregoing, to the extent permitted by law we do not warrant that:

(a)       your use of the Website, the Online Resource or the Member Service will not infringe the Intellectual Property rights of third parties;

(b)       the Website, the Online Resource or the Member Service will be error free or that its use will be uninterrupted;

(c)       the Website will operate in combination with other software or any particular equipment, or other system; or

(d)       the Website will provide any particular function.

9.3      Limitation of Liability

Without limiting the generality of this clause 9 and to the extent permitted by law, in the event we have any liability to you:

(a)       for any failure of performance, error, omission, interruption, deletion, defect or delay in transmission or operation;

(b)       for any injury, loss or damage;

(c)       for any reliance on the information or materials available via the Website and the Online Resource (including via the Member Service); or

(d)       otherwise arising out of the provision of the Website, the Online Resource or the Member Service,

whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise, your sole remedy is limited to cancellation of your SpecifyAWS Account.

9.4      Permissible Limitation on Non-excluded Terms

To the extent permitted by law, our liability for any claim arising from a breach of any obligation or warranty under these Terms of Use or any term, condition or guarantee implied or imposed by statute, which by law cannot be excluded (including any Consumer Guarantees), is limited, at our option, to the re-supply of the relevant services or where applicable, the payment of the cost of re-supplying the relevant services.

9.5      Consequential Loss

To the fullest extent permissible at law, we are not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide access to the Website, the Online Resource or the Member Service, or otherwise arising out of the Website, the Online Resource or the Member Service, whether based on contract, tort (including negligence), strict liability or otherwise, even if we have been advised of the possibility of damages.

 

10.     Third Parties

10.1    Third Parties’ Websites

We may include links to Third Party Websites on the Website.  We are not responsible for and do not endorse any features, content, advertising, products or other materials on or available from Third Party Sites. 

10.2    Use of Third Party Website

You should review any applicable terms and/or privacy policy of a Third Party Website before using it or providing any information.  You are responsible for evaluating whether you would like to access or use a Third Party Website.  You agree and acknowledge that you access and use Third Party Sites entirely at your own risk and we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access and use of the Third Party Sites.

10.3    Advertisements

Unless we expressly state otherwise, we have no association with our advertisers and do not endorse any of their products or services.  We will not be responsible or liable for any content, products or services on the advertisements found on the Website.

 

 

11.     General

11.1    Severing any void term

If any part of these Terms of Use is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down so as to be valid and enforceable.  If this is not possible, and that part does not go the essence of these Terms of Use, that part will be severed from these Terms of Use and the rest of these Terms of Use continues to have full force and effect so as to give effect to the intention of the parties.

11.2    Force Majeure

If the performance of this agreement or any obligations under this agreement is prevented, restricted, or interfered with by reason of an act of God, fire, lightning, explosions, flood, subsidence, network failures, act of terrorism, insurrection or civil disorder or military operations, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected party’s control (Force Majeure), the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference.  The affected party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the utmost dispatch when the Force Majeure is removed.

11.3    Governing Law

The law in New South Wales governs these Terms of Use and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

 

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