TERMS AND CONDITIONS FOR GOODS AND SERVICES

These terms apply when you order Goods and/or Services from Sea Sherpa Pty Ltd ABN 28 612 889 291, trading as Xplora Watercraft.

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Placing orders

1. Our Goods and Services come with consumer guarantees that cannot be excluded under the Australian Consumer Law. You may be entitled to remedies including a replacement, repair, refund and compensation for any other reasonably foreseeable loss or damage should our Goods and Services fail to comply with the consumer guarantees.

2. Except where the Australian Consumer Law does not permit it, these terms apply to the exclusion of all other documents and prior discussions between us.

3. When you place an order, this constitutes an offer by you to acquire the Goods or Services from us on and subject to these terms.

4. If you intend to use the Goods or Services for a specific purpose, which is unusual or uncommon for Goods or Services of this type, you must notify us of this specific purpose in writing before or at the time of placing the order for the Goods or Services. 

5. We may refuse to accept an order placed by you without giving reasons.

6. Once we have accepted your order, unless you are permitted to do so pursuant to the Australian Consumer Law, you must not vary or cancel it unless we agree in writing.

Price and payment

1. All prices quoted for Goods and Services are in Australian dollars and except as otherwise stated, exclusive of insurance, delivery charges and GST.

2. We reserve the right to revoke or vary prices quoted any time before we accept an order. If you have placed an order and the relevant price is changed, we will notify you and give you the opportunity to cancel your order.

3. You must pay for the Goods and/or Services within the time stated on our invoice. If no time is stated, you must pay for Goods prior to delivery of the Goods and pay for Services on performance of the Services.

4. We may withhold delivery of goods (including your goods presented to us for repair or other Services) until you have paid for the Goods or the Services performed in full.

5. You must pay for the Goods and/or Services using one of the payment methods specified on our invoice, quotation or any other documents.

6. We may require payment of a deposit, which must be paid by you upon us accepting the order.  If you do not pay the deposit within the time we reasonably request, we may cancel the order and terminate our agreement.  

7. Where you have paid a deposit, we may deduct amounts owed to us pursuant to these terms from the deposit. If you fail to pay the final balance for the Goods and/or Services, we may retain the deposit as a genuine pre-estimate of the loss we suffer as a result of your non-payment.

8. Except for any initial deposit, we do not agree to receive payment for Goods or Services in instalments.

9. If we take action to recover any amount due to us by you, you must pay us all losses incurred by us in recovering the monies due.

Trade-ins

1. Any trade-in goods accepted in lieu of all or part of the price must be agreed in writing by us.

2. You must deliver the trade-in goods to us before or at the time we deliver the Goods to you, and full ownership, free from encumbrances, in the trade-in goods will pass to us on delivery.

3. Any defect in or encumbrance on the trade-in or departure of the trade-in from the description whether discovered before or after we deliver the Goods to you, will entitle us to rescind this agreement or to, acting reasonably, reduce the amount agreed in respect of the trade-in or to return the trade-in to you without liability and in such case, we are entitled to recover from you any additional balance due as a result of such reduction or return.

Delivery

1. We will use all commercially reasonable efforts to deliver the Goods within a reasonable time.  Provided that we deliver the Goods within a reasonable time, you may not terminate our agreement due to delays. Except where our liability may not be excluded under the Australian Consumer Law, we are not liable for any loss due to our failure to deliver the Goods promptly or at all, other than to refund any price paid by you where the Goods are not delivered at all.

2. Where we personally deliver the Goods to you or where we use our nominated transport provider, risk in the Goods passes to you upon the Goods being signed for at the delivery location. In all other circumstances, risk in the Goods passes to you when the Goods are loaded at our warehouse for delivery to you.  Delivery of the Goods to a third party nominated by you is deemed to be delivery to you.  

3. Title to the Goods passes to you on payment in full of the price for the Goods.

Defective Goods or Services

1. If required by us, you must complete a checklist to confirm the condition of the Goods at the time of delivery of the Goods and the condition of the Services, upon our performance of the Services.

2. Even if we do not require you to complete a checklist, you must, as soon as possible after delivery of the Goods or the performance of the Services and in any event, prior to using the Goods, check whether the Goods are defective goods and whether the Services are defective services.  If, as part of this check, you become aware of any damage or defect, you must notify us within five business days.

3. If you give us notice of a damage or defect, you must:

   • preserve the Goods in the state in which they were delivered; and

   • during that period, allow us access to inspect the Goods or provide us with evidence of the damage or defect in the form and manner reasonably required by us; and

   • if we request it, return the Goods or cooperate with us to effect the return of Goods, within ten Business Days of our request, in the condition in which they were delivered.

Returns for change of mind and other circumstances which are not covered by the Australian Consumer Law  

1. Except where you have rights under the Australian Consumer Law which cannot be lawfully excluded, restricted or modified, Goods may only be returned with our prior agreement and:

   • Goods will be returned for credit only;

   • Goods must be returned in the same re-saleable condition as when they were originally sold;

   • the costs of return must be borne by you;  

   • you may be charged a genuine pre-estimate of our loss arising from the cancellation or return of the Good;

   • where you have paid a deposit, we may deduct amounts owed to us pursuant to these terms from the deposit; and

   • any Goods manufactured, processed or purchased on behalf of you that meet your specific request, for example, Goods which are custom built or which are of a colour or design that in our reasonable opinion, would be difficult to sell to a third party, may not be accepted for return.

Claims and limitation of liability

1. Our Goods and Services come with consumer guarantees that cannot be excluded under the Australian Consumer Law. You may be entitled to remedies including a replacement, repair, refund and compensation for any other reasonably foreseeable loss or damage should our Goods and Services fail to comply with the consumer guarantees.  The limitations of liability set out in these terms are therefore subject to, and will not apply to the extent that they limit or exclude such consumer guarantees.

2. If you are acquiring Goods or Services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then our liability for any loss suffered or incurred by you which arises out of or in connection with our supply of the Goods or Services is limited to, at our election, the replacement of the relevant Goods, the supplying of the relevant Services again or the payment of the cost of replacing the relevant Goods and supplying the relevant Services again.

3. Except only for those rights and remedies that you have in respect of the Goods or Services under the Australian Consumer Law which cannot be lawfully excluded, restricted or modified:

   • our liability for any loss suffered or incurred in connection with the supply of the Goods and Services is limited to the price of the Goods and Services;

   • we exclude any liability for Consequential Loss; and

   • we exclude all conditions, warranties and implied terms, whether statutory or otherwise, in relation to the Goods and Services.

Repairs and spare parts

1. We give you notice that facilities for the repair of the Goods and spare parts for the Goods will cease to be available upon the earlier of:

   • two years after the Goods are supplied to you; and

   • us no longer operating a business supplying the Goods or goods which are similar to the goods.

2. Unless you are entitled to them under the Australian Consumer Law, repairs and spare parts will be provided to you at your cost.

3. Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.

Intellectual Property

1. We remain the owner or licensee (as the case may be) of all Intellectual Property Rights owned or used by us. You agree that any Intellectual Property Rights created or developed under or in connection with our agreement or in the course of supplying the Goods are owned by us.

2. Where any designs or specifications have been supplied by you, then you warrant that the use of those designs or specifications for the manufacturing, processing, assembly or supply of the Goods does not infringe the rights of any third party.

Privacy

1. You agree that Personal Information provided by you to us may be used and retained by us for the following purposes:

   • the provision of Goods and/or Services;

   • the marketing of goods or services by us and our agents or distributors to you and other third parties;

   • processing of any payment instructions requested by you.

Force Majeure

1. In these terms, Force Majeure means an act of God; war, revolution or any other unlawful act against public order or authority; an industrial dispute including strike or other labour disturbances; a governmental restraint; a shortage or unavailability of raw materials, production capacity or transportation; and any other event not within the reasonable control of us.

2. Where Force Majeure prevents or delays us from performing any obligation under this agreement, the requirement to perform that obligation is suspended as long as the Force Majeure continues.

General

1. Our agreement is governed by the laws of Melbourne, Australia. We both submit to the non-exclusive jurisdiction of the courts of Melbourne, Australia and courts entitled to hear appeals from those courts.

2. If a provision in these terms is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this agreement for the purposes of that jurisdiction.

3. Definitions

In these terms:

• Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant State and Territory fair trading acts;

• Consequential Loss means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity;

• Goods means goods supplied by us to you as set out in our invoice;

• Intellectual Property Rights includes inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques, copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist, confidential information, trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up and proprietary rights under the Circuit Layouts Act 1989 (Cth);

• Personal Information means 'personal information' as defined in the Privacy Act 1988 (Cth);

• Services mean services supplied by us to you, including repairs, refurbishments, fit outs and advice;

• terms means these sale terms and conditions;

• you means the person or other entity that acquires Goods or Services from us pursuant to these terms, the details of which are set out in our invoice; and

• we, us and our means Sea Sherpa Pty Ltd ABN 28 612 889 291, trading as Xplora Watercraft.