By purchasing or ordering any Goods, the Purchaser accepts and agrees to be bound by these Sale Terms in respect of those Goods.
In these Sale Terms:
ACL means the Australian Consumer Law set out in Schedule 2 to the CCA;
Aqua Lung means Aqua Lung Australia Pty Ltd (ACN 147 996 503);
CCA means the Competition and Consumer Act 2010 (Cth);
Claim means any, or any threatened, claim, demand, action or proceeding;
Credit Terms means the written credit terms on which Aqua Lung extends credit to the Purchaser;
Goods means and includes any product sold by Aqua Lung or its Representative to the Purchaser;
Loss means any loss, liability, expense, cost or damage in any form;
PPSA means the Personal Property Securities Act 2009 (Cth) as amended;
Purchaser means the person or entity that buys the Goods from Aqua Lung under these Sale Terms;
Representatives includes officers, employees, agents, contractors, dealers, distributors and related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth));
RRP means a recommended retail price that is specified by Aqua Lung to the Purchaser;
Statutory Guarantees means the guarantees that apply to goods and services purchased by Consumers (as defined in the CCA), as set out in Part 3-2, Division 1 of the ACL;
Sale Terms means these terms and conditions of sale pursuant to which Aqua Lung sells the Goods to the Purchaser;
Taxes means any tax, levy, duty, charge, deduction or withholding which may apply to the payment of the charges or other amounts to Aqua Lung under the Sale Terms and includes, without limitation, withholding tax, GST, value-added tax, sales tax and other similar taxes, but not taxes on a party’s income.
- These Sale Terms, which include the terms of any Credit Terms between the Purchaser and Aqua Lung, constitute a legally binding contract between the Purchaser and Aqua Lung and apply to the ordering, purchase, fulfilment and delivery of Goods.
- By purchasing or ordering any Goods (“Order”), the Purchaser accepts and agrees to be bound by these Sale Terms in respect of those Goods.
- To the extent of any inconsistency between these Sale Terms and any Credit Terms, the Credit Terms shall prevail unless otherwise expressly stated in writing by Aqua Lung.
- The Purchaser agrees to pay the price for the Goods as set out in an Order and any applicable delivery charges.
- The Purchaser can place an Order by any method available in store or through Aqua Lung’s authorised agents. Aqua Lung may accept or reject an Order in its absolute discretion.
- The Purchaser is responsible for verifying the accuracy of any Order (including any applicable specification).
- Each Order accepted by Aqua Lung will be a separate and binding agreement between Aqua Lung and the Purchaser for the supply by Aqua Lung to the Purchaser of the relevant Goods in accordance with these Sale Terms.
- Where the Purchaser places an Order which contains terms and conditions, the parties agree that they do not apply and that these Sale Terms apply.
- The Purchaser may not cancel any Order due to change of mind.
- Orders may not be able to be changed or cancelled once the Order has been accepted by Aqua Lung. Aqua Lung may (but is not required to) cancel or change an Order upon request by the Purchaser if it has not already been supplied or shipped. Where Aqua Lung agrees to cancel or change an Order, the Purchaser will be responsible for any costs and expenses incurred in connection with the cancellation or change.
- Aqua Lung may in its absolute discretion cancel any Order for any reason.
- Payment for the Goods is due within 30 days of the date of the invoice in relation to those Goods, or as set out in the Credit Terms (if applicable).
- Payment must be made in cleared funds to a bank account nominated in writing by Aqua Lung, or using any other method of payment specified by Aqua Lung from time to time.
- If Aqua Lung does not receive payment on or by the due date, Aqua Lung may:
- suspend or cancel delivery of the Goods; and
- charge the Purchaser interest on the overdue amount at a rate of 1.5% p.a. calculated monthly.
- Aqua Lung may charge an administration fee for any dishonoured cheques.
6. Delivery, Risk and Acceptance
- Subject to clause 7(g), where the total costs in respect of an Order exceeds $1000 (excluding GST), Aqua Lung will be responsible for the costs of delivering the Goods the subject of that Order to the address nominated by the Purchaser for delivery.
- Where the total costs in respect of an Order are less than $1000 (excluding GST), the Purchaser will be responsible for the costs of delivering the Goods the subject of that Order to the address nominated by the Purchaser for delivery.
- Delivery occurs by the Purchaser collecting the Goods at Aqua Lung’s premises (or Aqua Lung’s authorised agents’ premises, as applicable) at any time after Aqua Lung notifies the Purchaser that Goods are ready for collection, or when the Goods are delivered to the carrier or to the address nominated by the Purchaser for delivery, whichever occurs first.
- The Purchaser must verify every delivery of Goods on delivery and must notify the Purchaser of any damage, error, loss of, or non-delivery of any Goods within 48 hours of delivery (or in the case of non-delivery, within 48 hours of the expected delivery date).
- Risk in the Goods passes to the Purchaser on delivery.
- Transport and collection from the carrier, Aqua Lung’s premises or the address nominated by the Purchaser for delivery, whichever is the case, are at the Purchaser’s cost and risk.
- Delivery dates nominated by Aqua Lung or the carrier are non-binding and are estimates only.
- If delivery is delayed for any reason, the Purchaser fails to take delivery of Goods or the Purchaser fails to give adequate delivery instructions, Aqua Lung is not liable for any Loss caused by the delay and the Purchaser is not relieved of its payment obligations. In addition, where a delivery delay is caused by any reason other than Aqua Lung’s fault, Aqua Lung may elect to store the Goods until actual delivery and charge the Purchaser for Aqua Lung’s reasonable costs (including insurance) of storage and transport, or sell the Goods and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the price for which the Purchaser had agreed to purchase the Goods, or charge the Purchaser for any shortfall below the price for which the Purchaser had agreed to purchase the Goods.
- Aqua Lung may elect to deliver Goods in instalments.
- Subject to the Statutory Guarantees, Goods are deemed accepted by the Purchaser on delivery unless the Purchaser notifies Aqua Lung in writing within 7 days of delivery that Goods are not accepted and the reason why.
- Title in Goods passes to the Purchaser upon Aqua Lung receiving full payment for the Goods and payment in full of all other money owing by the Purchaser to Aqua Lung (whether in respect of money payable under a specific contract or on any other account whatsoever). Until that time, the Purchaser possesses the Goods as bailee and trustee.
- Until title passes, the Purchaser must:
- ensure that the Goods are stored safely and securely and are clearly marked as Aqua Lung’s property; and
- upon demand from Aqua Lung, deliver up the Goods and provide reasonable assistance to Aqua Lung’s Representatives to repossess the Goods.
- Subject to the PPSA, until title passes, the Purchaser may sell the Goods and if it does the Purchaser holds the sale proceeds on trust for Aqua Lung absolutely. The Purchaser must promptly pay to Aqua Lung such proceeds as are necessary to discharge any and all amounts owed by Purchaser to Aqua Lung under these Sale Terms.
8. Personal Property Securities Act
- All capitalised terms in this clause have the meanings given to them in the PPSA (unless defined otherwise in these Sale Terms).
- The Purchaser acknowledges and agrees that these Sale Terms evidence a Security Agreement and that a Security Interest exists in the Goods (whether supplied previously or in the future) and their proceeds. The Purchaser agrees to do all things necessary to allow Aqua Lung to register (or re-register) the Security Interest.
- To the extent possible at law, the Purchaser agrees to waive its rights under Ch 4 of the PPSA, in respect of the provisions set out in section 115(1) of the PPSA.
- The Purchaser agrees that it receives value on the date of delivery and does not wish to postpone the attachment of the Security Interest granted under these Sale Terms.
- The Purchaser irrevocably grants to Aqua Lung the right to enter upon the Purchaser’s premises, without notice, and without liability to the Purchaser or any other party, to seize or dispose of the Collateral.
- Any purchase by the Purchaser on Credit Terms or subject to the retention of title terms set out in clause 7 will constitute a Purchase Money Security Interest.
- Any Aqua Lung Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over any other registered or unregistered Security Interest. Until title passes, the Purchaser must keep all Goods free of any charge, lien or Security Interest and the Purchaser must not otherwise deal with the Goods in a way that will or may prejudice any rights of Aqua Lung under these Sale Terms or the PPSA.
- Where Aqua Lung exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Purchaser against Aqua Lung or any of its Representatives.
9. Warranties and Exclusions of Liability
- Except for the Statutory Guarantees and any express warranties made in writing by Aqua Lung, Aqua Lung disclaims and excludes all other warranties and representations in relation to the Goods or any services provided by it.
- The Purchaser acknowledges and agrees that it is fair and reasonable for Aqua Lung to limit its liability in the manner set out in this clause.
- The Purchaser agrees that Aqua Lung will not be liable in respect of any Claim by the Purchaser (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, or revenue arising out of or in connection with the provision of the Goods or any services under these Sale Terms and whether as a result of any breach or default by Aqua Lung, or any negligence of Aqua Lung.
- Aqua Lung limits its liability for any breach of these Sale Terms, negligence, breach of statutory duty or any other cause of action howsoever arising other than a breach of a Statutory Guarantee, to the remedies set out in any applicable express warranty provided in writing by Aqua Lung or, if there is no express warranty, in aggregate to the purchase price of the relevant Goods or services.
- If the CCA (or analogous legislation) applies to these Sale Terms and permits the limitation of liability for breach of Statutory Guarantees then, to the maximum extent permitted by section 64A and 276A of the ACL (or any similar provisions allowing for the limitation of liability in respect of any analogous legislation), Aqua Lung limits its liability, at its discretion:
- in the case of the Goods, to:
- the replacement of the Goods or the supply of equivalent goods;
- the repair of the Goods;
- 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; or
- in the case of services, to:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
- The Purchaser has no liability in respect of any defect in the Goods:
- arising from compliance with any designs or specifications supplied by the Purchaser;
- arising after delivery to the Purchaser, including in connection with wilful damage, negligence, abnormal working conditions, failure to follow the manufacturer’s instructions, defects or damages caused by improper use (including use outside of the recommended use, or use of the Goods beyond the designed or intended purpose), misuse or alteration or repair of the Goods without Aqua Lung’s approval; or
- caused during transportation of the Goods to the Purchaser.
- Aqua Lung is not liable to the Purchaser or deemed to be in breach of these Sale Terms by reason of any defect in the Goods or any delay in performing, or any failure to perform, any of Aqua Lung’s obligations under these Sale Terms or in relation to the Goods, if the defect, delay or failure was due to any cause beyond Aqua Lung's reasonable control or the Purchaser’s fault.
- Any of the terms and conditions of these Sale Terms which limit or exclude any term, condition or warranty, express or implied, or the liability of Aqua Lung will apply to the maximum extent permitted by law and will not be construed as excluding, qualifying or limiting the Purchaser’s statutory rights or remedies arising under any Statutory Guarantee.
- If the Purchaser is a consumer (as defined in the CCA), then nothing in these Sale Terms restricts, limits or modifies the Purchaser’s rights or remedies against Aqua Lung for the failure of a Statutory Guarantee where such restriction, limitation or modification would be prohibited by the CCA.
10. Returns and Credits
- Goods supplied to the Purchaser are not returnable except as provided in clauses 6 and 10b).
- Aqua Lung may accept return of Goods and may credit the Purchaser for Goods that are damaged prior to delivery, provided that a Return Authorisation Form is submitted to Aqua Lung and a Return Authorisation Number is allocated by Aqua Lung. Any returns without a valid Return Authorisation Number will be rejected. All returns must be made by pre-paid freight.
- Aqua Lung may credit the Purchaser for Goods lost or not delivered to the Purchaser. The Purchaser must notify Aqua Lung in writing of the loss of or non-delivery of any Goods.
- Aqua Lung will charge the Purchaser a re-stocking fee of 15% of the price of the replacement Goods.
- Subject to the Statutory Guarantees, any Claim by the Purchaser which is based on any defect in the quality or condition of the Goods or their failure to correspond with specifications (“Defect”) must (whether or not the Purchaser refuses delivery) be notified to Aqua Lung in writing within 7 days from the date of delivery. The Claim must specify the nature and extent of the Defect as well as any other details reasonably requested by the Aqua Lung for the purpose of assessing the Claim.
- The Purchaser will need to return to the place of purchase, or make available, any Goods the subject of the Claim for inspection by Aqua Lung or Aqua Lung’s Representative.
- Subject to the Statutory Guarantees, the Purchaser shall be responsible for the costs of making a Claim pursuant to this clause.
11. Purchaser's Dealings with the Goods
Subject to the Statutory Guarantees and Aqua Lung’s liability in respect of the Goods, the Purchaser acknowledges and agrees that, after delivery of the Goods, any dealings whatsoever that the Purchaser may have in respect of the Goods do not involve Aqua Lung and Aqua Lung has no liability in respect of any such dealings. Further, the Purchaser continually indemnifies Aqua Lung and Aqua Lung’s Representatives against all Loss of any nature, including, without limitation, for death, personal injury, property damage and consequential loss (including, but not limited to, any loss of profit, contract, or revenue) suffered or incurred by Aqua Lung in connection with the Purchaser’s dealings in respect of the Goods, including without limitation:
- the storage, handling or transport of the Goods by the Purchaser or any of its Representatives; and
- all representations (including representation(s) by silence), acts or omissions of the Purchaser or any of its Representatives in connection with the Goods.
12. Payment of Taxes
Unless expressly specified to the contrary, all quotes and charges are expressed as exclusive of all Taxes. If any Taxes are levied on Aqua Lung in respect of the fees and charges payable for the Goods, the Purchaser must, in addition to the amount payable to Aqua Lung for the Goods, and at the same time and in the same manner, pay an additional amount to Aqua Lung on account of those Taxes, such that after deduction of those Taxes, Aqua Lung receives no less than the original amount of its fees and charges.
13. Trade Marks
The Purchaser must not, and must not allow any other party to, alter, remove or in any way tamper with any of the trade marks used by Aqua Lung on its Goods, whether registered or unregistered. These Sale Terms do not confer any right on the Purchaser to use the trade marks. All goodwill in the use of the trade marks ensures to the benefit of Aqua Lung.
14. Resale of Goods
- The Purchaser may only resell the Goods to a third party or third parties subject to these Sale Terms and on terms no less favourable to Aqua Lung than these Sale Terms.
- The Purchaser acknowledges and agrees that:
- Aqua Lung provides customer service in respect of the Goods which may be critical to the safe and responsible use of the Goods; and
- in the interests of consumer safety and service, the Purchaser must not sell or purport to sell the Goods online, whether via online auction or otherwise, unless expressly authorised in writing to do so by Aqua Lung and subject to the conditions imposed by Aqua Lung.
- If Aqua Lung provides consent to sell the Goods online, consent will expire on the date being 6 months from the date the notice of consent is given by Aqua Lung. After that period, the Purchaser must re-apply to Aqua Lung for consent to sell Goods online (for additional 6 month periods).
- In respect of any sale by the Purchaser to a third party of any Goods provided by Aqua Lung, the Purchaser agrees to limit its liability, and to the extent possible Aqua Lung’s liability, to the third party in connection with the supply of those Goods to the maximum extent permitted by law.
Variation: Aqua Lung reserves the right to amend these Sale Terms at any time. Any amendment will take effect from the time that it is notified to the Purchaser, or placed on the website (whichever is earlier) and will apply to any Orders placed by the Purchaser after that time.
Notices: All notices required by the Sale Terms must be in writing, in English and signed by a person duly authorised by the sender. All notices to be served pursuant to the Sale Terms shall be deemed to have been received and effective:
- if hand delivered, on delivery;
- if sent by post, on the third clear day, not being a Saturday, Sunday or public holiday in the place of receipt (“Business Day”), after posting (or, in the case of international postage, on the seventh Business Day after posting); or
- in the case of email, one (1) hour after the notice is sent, unless the sender's machine receives a delivery failure report, but if the date and time of receipt determined in accordance with paragraphs (a) – (c) above is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.
Assignment: The Purchaser must not assign or transfer or purport to assign or transfer any of its rights or obligations under these Sale Terms. Aqua Lung may assign any of its rights or obligations under the Terms to a related body corporate or to a purchaser of its business.
Relationship: These Sale Terms are not intended to create a relationship such as a partnership, franchise, joint venture, agency, or employment relationship. Neither party may act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party.
Sub-contracting: Aqua Lung may sub-contract the performance of these Sale Terms or part of them to any other entity in its absolute discretion.
Governing law: These Sale Terms are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the Victorian Courts and courts of appeal from them.
Costs: Any expenses, costs or disbursements incurred by Aqua Lung in recovering any outstanding monies owed by the Purchaser, including reasonable debt collection fees and solicitors costs, must be paid by the Purchaser on demand from Aqua Lung.
Severability: If any term or provision of the Sale Terms (or part thereof) is unenforceable, illegal or void then it is severed to the extent it is unenforceable, illegal or void, and the rest of the Sale Terms remain in force.
Entire Agreement: The Sale Terms (including any Credit Terms) constitute the entire agreement between the parties which supersedes any prior arrangement or understanding whether written or oral relating to the subject matter of this agreement.
Waiver: Any express waiver or failure to exercise promptly any right under these Sale Terms will not create a continuing waiver or any expectation of non-enforcement. A single or partial exercise or waiver of a right relating to these Sale Terms will not prevent any other exercise of that right or the exercise of any other right. Any waiver of a right arising under the Sale Terms will only be effective if it is in writing and signed by the party granting the waiver.
Construction: The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or part of it.