1.1 “Us”, ”our” and “we” and similar words used in this agreement means Wavez Pty Ltd, 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 in Australia.
3.2 Goods to be delivered to countries other than Australia are offered exclusive of any taxes and duties unless otherwise stated. It is your responsibility to pay such charges, if any, upon the importation of the Goods.
3.3 If you are paying in advance, payment is due immediately upon our receipt of your completed Order, unless agreed otherwise in advance of order placement. Our obligation to supply you with the Goods remains conditional upon receipt of the whole of that payment.
3.4 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 all balances outstanding in relation to your order.
3.5 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. You must not use Goods which have not been paid for in full, unless agreed otherwise in advance of use.
3.6 If any amount remains outstanding beyond the due date of payment agred when the order was placed, any discounts applied at the time of purchase will expire and the full RRP at the agreed date of payment (or, if higher, the full RRP at the order date) will come into effect.
4. Shipping and delivery
4.1 Overseas shipping, customs, and logistics activities are outside our control. As such, we are unable to offer any warranty or representation regarding the delivery schedule for Goods which have not yet arrived at our warehouse or the warehouse of our Australian supplier.
4.2 Many of the products we offer are innovative and cutting-edge products offered by exciting new startup businesses. Such startups may overestimate the maturity of their products, overestimate their delivery capacity and are often at the mercy of their upstream suppliers. As such, whilst we can pass on the manufacturers' target timeframes, we are unable to provide any warranty or representation regarding when the finalised product will leave the production line and be available to ship or deliver.
4.3 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.
4.4 You acknowledge and agree that we are not responsible for any damage which occurs to the Goods during delivery and that you have been offered the opportunity to purchase your own insurance coverage for this risk.
4.5 We engage the services of a third party company for delivery of Goods such as Australia Post, Couriers Please, Fastway, TNT, Toll and others. These companies may or may not accept any special instructions regarding delivery, and, even when they do, they may or may not deliver in accordance with such instructions. We do not have control over these companies other than to discontinue their use, but we have found that the level of service across the industry is comparable from one company to another.
4.6 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.
4.7 In the event that any delivery or shipping to you cannot be completed and the Goods are held for delivery at a later date and there are storage charges incurred, you agree to pay for such storage costs reasonably incurred.
4.8 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, shipping, delivery, handling or re-delivery charges related to the return of the Goods to us.
4.9 In the event that we are unable to identify a third party company who can reasonably deliver the Goods to your nominated delivery address (which may occur when Goods are oversized or contain lithium batteries), we will contact you to agree either an alternate delivery address or a refund. In the case of an alternative delivery address, if there is a difference in the price of shipping and delivery, that will be charged or refunded prior to delivery.
4.10 In the event that the price charged to you for shipping and delivery is lower than the price quoted to us by our third party shipping company, we may contact you to request payment of the difference, no higher than our cost price, or cancel the order and issue a refund. This is not common since the prices we charge are usually retrieved through a real-time pricing engine connected directly to our third party shipping company systems. However, international shipping prices of large watercraft and lithium batteries are usually flat rate based on shipping to major metro centres. If your delivery address is a long way from your country's major air or sea port, you may be required to pay additional delivery charges.
4.11 The Kymera Body Board may only be shipped to the following countries, as stated clearly in the product description: Australia, Fiji, Japan, Malaysia, New Zealand, The Philippines, Thailand or Vietnam, as well as the islands and island nations which are governed or jointly-governed by them, e.g. Cook Islands. Any orders placed for the Kymera Body Board to be shipped to another country may be canceled and a refund issued, less administration charges.
4.12 By default, Goods are shipped with "Authority to leave" in your absence, with no signature required. If this is not acceptable, please specify that you "require a signature upon delivery" when checking out.
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.
5.3 In the event that any operator licensing or vessel 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 Goods provided by us come with a one year parts and labour warranty with services to be provided by a Wavez-approved service centre. 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. DO NOT attempt to modify or repair your Goods without permission in writing from Wavez or you may void your warranty on part or all of the Goods.
6.2 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.
6.3 All warranties except battery warranties can be extended and enhanced by entering a premium service and support agreement with Wavez.
6.4 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.
6.5 You acknowledge that the Goods must be cleaned and properly maintained following each use strictly in accordance with Wavez's and the manufacturer’s instructions 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.
6.6 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 small 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.
6.7 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.
6.8 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 Goods or to attempt to make any modification to the Goods in any way without written permission from APAC Distribution Pty Ltd (Email firstname.lastname@example.org or Phone +61 2 9098 8958).
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, Malaysia, New Zealand, The Philippines, Thailand and Vietnam, as well as the islands and island nations which are governed or jointly-governed by them, 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 (Email email@example.com or Phone +61 2 9098 8958).
7.3 You agree not to permit, and not to procure, export of the Goods from the country to which they were delivered. You acknowledge that any such export is not only in breach of this agreement, but may also involve the illegal export of dangerous goods (lithium batteries) without appropriate authority and documentation.
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 APAC Distribution Pty Ltd, has the exclusive rental rights in relation to the Kymera Body Board in Australia, Fiji, Indonesia, Japan, Malaysia, New Zealand, Philippines and Thailand, as well as the islands and island nations which are governed or jointly-governed by them, 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.
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. Wholesale Customers
9.1 Only approved Wholesale Customers with logins on the Wavez website can buy at wholesale prices (except bulk quantities of products listed under the "Wholesale" category on the website, which may be purchased by anyone).
9.2 Wholesale Customers may only buy electric watercraft upon prior approval, and such purchases must be in minimum order quantities of 4 units per watercraft brand.
9.3 Wholesale Customers may refer customers to Wavez in return for a commission paid upon delivery of the Goods. Commissions vary by product.
9.4 Payment for goods purchased by Wholesale Customers must be sent by the payment method "Direct Deposit". If required goods are to be dispatched immediately, proof of bank transfer must be provided.
9.5 Wavez can dropship goods directly to Wholesale Customers' customers. The Wholesale Customer should choose the shipping option "Dropshipped To Your Customer" when checking out.
9.6 Wholesale Customers may have goods shipped to their warehouse by choosing the shipping option "Standard Delivery" when checking out.
9.7 There is a minimum order for wholesale purchases from Wavez.
9.8 Wholesale Customers who place less than 10 separate orders or purchase less than $1000 of Goods from Wavez in any 12 month period may be removed from the Wholesale Customer group.
10. Outstanding amounts
10.1 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.
12. No Waiver
12.1 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.
13.1 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.
14. Whole agreement/Legal advice
14.1 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.
14.2 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.
14.3 You warrant that you have not entered into this agreement on the basis of any representation made by us not recorded in this agreement.
15.1 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.
15.2 You agree that a breach of this clause would cause irreparable harm to us and that this clause does not constitute a penalty.
16.1 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.
16.2 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.
17. Dispute resolution
17.1 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.
17.2 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.
17.3 Nothing in this clause prevents either party from seeking urgent interlocutory relief from a court of competent jurisdiction.
24 December 2018