1.1 “Us”, ”our” and “we” and similar words used in this agreement means Wavez, ACN 616080374.
1.2 “You” and “your” and similar words used in these terms means the person, persons or entity identified on the Order that is not us.
2.1 Any advertisement of the Goods, including pricing or quotations for pricing or supply, constitutes an invitation to treat only.
2.2 The Order and these terms together constitute an offer by you to us to provide you with goods as described in the Order (“Goods”) in accordance with these terms.
2.3 Acceptance by us of your Order or our communication to you confirming that your Order has been accepted will constitute your agreement as to the contents of these terms.
3. Payment Terms and Title
3.1 All our prices, unless otherwise stated, are inclusive of Goods and Services Tax.
3.2 If you are paying in advance, payment is due immediately upon our receipt of your completed Order. Our obligation to supply you with the Goods remains conditional upon receipt of the whole of that payment.
3.3 If you are paying a deposit for your order then:
(a) The deposit is payable immediately upon our receipt of your Order; and
(b) The balance payable is due upon us providing you with written notification that the Goods are ready for shipping; and
(c) Our obligation to supply the Goods, and any further Goods or Services (including Warranty repairs) remains conditional upon receipt of the balance outstanding in relation to your order.
3.4 You agree that no title in the Goods shall pass until you have made all payments due under this Agreement and until that time, if you have received any Goods, you hold them on trust for us and in a fiduciary capacity ending only when payment has been made in full for the Goods.
4. Shipping and delivery
4.1 While we use best endeavours to ensure that shipping occurs within a reasonable period of time and close to the estimated shipping time, we do not provide any warranty or representation as to the time for delivery of the Goods where the shipping is being performed by the manufacturer or a third party shipping company and the delay arises for a reason outside of our control.
4.2 You acknowledge and agree that we are not responsible for any damage which occurs to the Goods during shipping and that you have been offered the opportunity to purchase your own insurance coverage for this risk.
4.3 In the event that you nominate delivery to be made in your absence, for example having the Goods left outside your premises, in a carport or other area, you accept full responsibility for any damage or theft which may occur as a result of that direction.
4.4 In the event that any delivery or shipping to you cannot be completed and the Goods are returned to us, you agree to pay for any storage costs we reasonably incurred in our storing the Goods until delivery occurs.
5. Refunds, Licensing and Registration
5.1 If for any reason you are dissatisfied with the Goods supplied to you, you must contact us and provide details of your concern. In the event you wish to return the Goods you agree to pay shipping costs to return the Goods to us in the first instance.
5.2 We are not required to provide a refund or replacement if you change your mind. But you can choose a refund or exchange if an item has a major problem. This is when the item:
• has a problem that would have stopped someone from buying the item if they had known about it;
• is unsafe;
• is significantly different from the sample or description; or
• doesn’t do what we said it would, or what you asked for, and can’t be easily fixed.
Alternatively, you can choose to keep the item and we will compensate you for any drop in value. If the problem is not major, we will repair the item within a reasonable time. If it is not repaired in a reasonable time you can choose a refund or replacement. Please keep your proof of purchase – e.g. your receipt.
5.3 In the event that any licensing or registration is required by any Government authority or agency, you agree that you will take all steps to procure such license or registration prior to using the Goods. You further agree to use the Goods in accordance with all applicable local laws, rules and regulations.
6.1 All products except batteries provided by us come with a one year RECREATIONAL-USE parts and labour warranty with services to be provided by an approved service centre within your Australian state or territory. Batteries come with a six months RECREATIONAL-USE parts and labour warranty with services to be provided by a Wavez-approved service centre within your Australian state or territory. You can claim on your warranty by notifying us by email or phone of the nature of the issue. We will identify your nearest Wavez-approved service centre and advise them of the issue and our recommendations regarding resolution. Upon our confirmation, you should then take your product to the service centre for repair or parts replacement.
6.2 All products provided by us come with a three month year COMMERCIAL-USE parts and labour warranty with services to be provided by an approved service centre within your Australian state or territory. The battery COMMERCIAL-USE warranty excludes reduced capacity due to frequent usage normally associated with a rental operation. You can claim on your warranty by notifying us by email or phone of the nature of the issue. We will identify your nearest Wavez-approved service centre and advise them of the issue and our recommendations regarding resolution. Upon our confirmation, you should then take your product to the service centre for repair or parts replacement.
6.4 You acknowledge and agree that watercraft may include batteries which may have a reduced capacity over time depending upon the care and use of the batteries as an inherent feature of the battery.
6.5 All warranties except battery warranties can be extended and enhanced by entering a premium service and support agreement with Wavez Pty Ltd or eRentals (as appropriate).
6.6 You acknowledge and agree that the Goods delivered to you may differ in colour and appearance from the advertising and photographs you have seen in relation to the Goods.
6.7 You acknowledge that the Goods must be cleaned and properly maintained following each use strictly in accordance with Wavez's and the manufacturer’s recommendations to prevent premature discolouration and degradation of any operational parts of the Goods. You further acknowledge that any operating parts (such as electronics or moving parts) will be regularly serviced by an approved technician. We will not accept responsibility for any damage or degradation to the Goods arising from your failure to maintain or service the Goods.
6.8 You acknowledge that watercraft are not to be used for racing or in shallow water or in close proximity to other persons or watercraft and are never to be used in enclosed waterways such as a pool. The use of watercraft in such environments may be unsafe and lead to damage to the watercraft for which we will not accept responsibility and also carry the risk of personal injury or death.
6.9 You may be entitled to the benefit of statutory warranties and Consumer Guarantees under the Australian Consumer Law in relation to the supply of the Goods which may not be excluded under this Agreement and no part of this agreement is intended to derogate from any condition, warranty or guarantee that you are entitled to under the Australian Consumer Law save that our sole liability in respect of any breach of a condition, warranty or guarantee under the Australian Consumer Law is limited to the replacement of the Goods, the supply of equivalent Goods, payment of the cost of replacing the Goods or acquiring equivalent Goods, or the repair of the Goods or the payment of the cost of having the Goods repaired.
6.10 To the extent permitted at law, all conditions, warranties, representations and promises concerning the quality and/or fitness for use of the Goods are hereby excluded to the furthest extent permitted at law.
7. Reverse engineering, resale and export prohibited
7.1 You agree not to permit, and not to procure, any form of reverse engineering or deconstruction of the Kymera Body Board or to attempt to make any modification to the Kymera Body Board in any way without written permission from the manufacturer, Kymera Body Board LLC (www.kymera.com).
7.2 You acknowledge that APAC Distribution Pty Ltd has the exclusive distribution rights in relation to the Kymera Body Board in Australia, Fiji, Japan, New Zealand and Thailand and you agree that you will not advertise the Kymera Body Board for resale as new to any third party at a wholesale or retail level or to sell the Kymera Body Board at the wholesale or retail level or take any other step to circumvent our exclusive rights in relation to the sale of the Kymera Body Board, or those of any other Kymera Body Board distributor, without permission in writing from APAC Distribution Pty Ltd.
7.3 You agree not to permit, and not to procure, exportation of the Kymera Body Board from the country in which the Kymera Body Board was purchased. You acknowledge that any such export is not only in breach of this agreement, but likely to be illegal due to misrepresentation of the batteries on the Material Safety data Sheet (MSDS) which must accompany Dangerous Goods (DG) shipped overseas.
7.4 You agree that any proposed or actual resale or export by you in breach of 7.2 or 7.3 above is a breach of this Agreement for which damages will be an inadequate remedy.
8. Use of the Goods, Indemnity and Release
8.1 THE USE OF WATERCRAFT IS AN INHERENTLY RISKY ACTIVITY AND YOU HEREBY ACKNOWLEDGE AND UNDERSTAND THAT THE USE OF THE GOODS IN A WATERWAY, EITHER PROPERLY OR IMPROPERLY, CARRIES WITH IT A REAL RISK OF PERSONAL INJURY OR DEATH. YOU MUST ENSURE THAT ALL USE OF THE GOODS EITHER BY YOU OR BY ANY PERSON YOU PERMIT TO USE THE GOODS (WHETHER UNDER A RENTAL AGREEMENT OR OTHERWISE) IS CONDUCTED IN A SUPERVISED, SAFE AND SENSIBLE MANNER AND IN ACCORDANCE WITH ALL APPLICABLE LOCAL LAWS, RULES AND REGULATIONS.
8.2 You acknowledge that eRentals, a trading name of APAC Distribution Pty Ltd, has the exclusive rental rights in relation to the Kymera Body Board in Australia, Fiji, Japan, New Zealand and Thailand and you agree that you will not advertise Kymera Body Boards for rental to any third party or to rent Kymera Body Boards or take any other step to circumvent our exclusive rights in relation to the rental of Kymera Body Boards without permission in writing from APAC Distribution Pty Ltd or eRentals.
8.3 You agree that any proposed or actual rental by you in breach of 8.2 above is a breach of this Agreement for which damages will be an inadequate remedy.
8.4 In the event that you intend to make watercraft available for rental you must not do so without procuring an appropriate insurance policy providing coverage for any injury occurring to any person arising from their use of the watercraft.
8.5 You hereby release, hold us harmless and indemnify us in relation to any claim made against us in respect of loss or damage (including for personal injury or death) howsoever arising in connection with your use or the use by any other person (whether under hire or rental agreement or not) of the Goods.
8.6 The above indemnity extends to legal costs we incur in any action require by us against you to enforce Our rights, including any legal costs incurred in relation to any breach of this agreement.8
8.7 We will not be liable to you for any consequential loss, loss of profit, loss of opportunity or loss of chance you suffer from a breach of this agreement or arising from your use or misuse of the Goods (or the use or misuse of the Goods by a person who has rented or hired the Goods from you).
9. Outstanding amounts
9.1 We may recover from you, as a debt due, any amount due and payable under these terms and you agree to pay interest compounding monthly on any sum due to us from time to time at the rate of 2% per month compounding.
11. No Waiver
11.1 To the extent that we do not enforce any right we may have under this agreement, such action will not constitute a waiver of that right.
12.1 To the extent that any part of these terms is found to be unenforceable by operation of law or otherwise invalid, that part only is to be severed from this agreement and the balance of the agreement will stand.
13. Whole agreement/Legal advice
13.1 You confirm that you have been provided with the opportunity to negotiate the terms of this agreement and have had the opportunity to obtain your own legal advice in respect of the effect of this agreement.
13.2 This document and your acceptance of same constitutes the whole of the agreement between the parties and may only be varied in writing signed by both parties.
13.3 You warrant that you have not entered into this agreement on the basis of any representation made by us not recorded in this agreement.
14.1 You agree that any communications with our office concerning your experience with the Goods, including any issues raised concerning quality or fitness for purpose of the Goods is to be treated with the utmost confidentiality and you agree not to place any negative comments or reviews of the Goods online without first contacting us in writing and providing us with an opportunity to respond to your concerns.
14.2 You agree that a breach of this clause would cause irreparable harm to us and that this clause does not constitute a penalty.
15.1 The parties agree to accept service of any written notice, including payment claims, payment schedules, court processes or other documents by post, facsimile or email if an address, facsimile or email address is provided in the Purchase Order.
15.2 The parties agree that an email which includes a working link to a third party document storage/delivery service (such as DropBox or Google Drive) will constitute valid service of the documents available from the download link within the email.
16. Dispute resolution
16.1 Any dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation Rules.
16.2 The parties to this agreement agree that the laws of New South Wales shall govern this agreement and the courts of that State shall have non-exclusive jurisdiction over any dispute arising from this agreement.
16.3 Nothing in this clause prevents either party from seeking urgent interlocutory relief from a court of competent jurisdiction.
29 May 2017