Marine Design | Scuba imports

Terms and Conditions of Sale and Supply of Services

1.   Definitions

"Catalogue" means the catalogue (in whatever form, paper or electronic) in which these Conditions are set out;

"Company", "we", "us" or "our" means DiveTub, Divetub.com.au, their successors and assigns;

"Conditions" means these terms and conditions;

"Contract" means any contract between the Company and the Customer for the sale and purchase of Supplies;

"Customer", "you", "your" or "yours" means the person(s) or company whose order for the Supplies is accepted by the Company;

"Goods" means any goods supplied or to be supplied by the Company to the Customer and, in the context of Conditions 11(i), 12, 13, 17, 18 and 23 may refer to any goods detailed in the Catalogue;

"GST" means the goods and services tax imposed under A New Tax System (Goods and Services) Act 1999 (Cth) and the related imposition Acts of the Commonwealth of Australia;

"Services" means any services supplied or to be supplied by the Company to the Customer;

"Supplies" means any Goods or Services;

"in writing" includes electronic communications

Reference in these Conditions to any legislation or regulation includes any re-enactment, amendment or substitution of such legislation or regulation.

2.   Conditions

All orders are accepted by the Company subject to and in accordance with these Conditions. These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer's standard terms and conditions. If there is any conflict between:

the other provisions of this Catalogue and these Conditions;

the provisions of the order and these Conditions

these Conditions will prevail unless the Company agrees otherwise in writing. Together with any terms accepted by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorised in writing by a director of the Company

 

3.   Prices

All prices quoted include GST. The Company has used all reasonable endeavours to ensure that prices for the Supplies are accurately set out in the Catalogue but reserves the right to change prices without notice at any time. Prices charged will be those prevailing when an order is accepted.

4.   Payment

Payment is due at the time of ordering. If other arrangements are made and if the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to:

cancel the order or suspend any further deliveries or performance;

appropriate any payment made by the Customer to such of the Supplies (or the Supplies made under any other contract) as the Company may think fit; and/or

withdraw credit facilities or adjust the Customer's credit limit.

The Company reserves the right to charge for copy invoices or where the original has been lost or misplaced by the Customer. If legal action is taken to recover monies due to the Company then, in addition to any right which the Company may have to recover its costs as part of such action, the Company reserves the right to charge the Customer an administrative fee to cover all and any costs incurred.

5.   Orders

The Company reserves the right to decline to trade with any company or person. Telephone orders are assumed to be urgent and, where Goods are in stock, the Company will use all reasonable endeavours to despatch Goods ordered on the same day - providing instructions are received before 3.00 p.m. To avoid duplication, written confirmation of telephone orders must be clearly marked ‘Confirmation only' quoting the Company's reference number. Please note it is not necessary to forward ‘Confirmation Orders' unless your system dictates it. The Company will not accept liability for orders not so marked and duplicate orders will be charged accordingly. Orders are accepted by the Company by despatching the Goods provided, however, that despatch will not be acceptance where the price for the Supplies has been incorrectly quoted or referenced by the Customer in its order. Once accepted, no order may be cancelled without the prior written agreement of a director of the Company.

 

6.   Minimum Purchase

The Company does not impose any minimum order conditions on orders to be charged to a credit account with the Company. In relation to cash, debit or credit card transactions, a minimum order requirement of $10.00 plus carriage and packing plus GST will apply.

7.   Delivery

A nominal charge may be made against all orders to cover carriage, package and handling. Where we are unable to supply a complete order from stock, this charge will only apply to the original despatch and all subsequent shipments to complete the order will be sent carriage free.

The Company will ship in stock orders within 2 business days and delivery should be expected within 7 days. The Company will use reasonable endeavours to meet delivery and/or performance estimates but, except as set out in Condition 9 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance. Time for delivery and/or performance will not be of the essence. Delivery will be made to the address specified by the Customer. The Company may use any method of delivery available to it. The Company reserves the right to deliver or perform by instalments. Failure to meet a delivery or performance date where deliveries or performance are by instalment shall not preclude or restrict the Company's right to make further deliveries or render subsequent performance under the relevant Contract by instalment. Scheduled Deliveries can only be accepted for a period commencing not sooner than one month and terminating not later than 12 months from the date of the order.

8.   Inspection, defects and non delivery

The Customer must inspect the Supplies as soon as is reasonably practicable after delivery or, in the case of Services, performance and, except as set out in Condition 16 below, the Company shall not be liable for any defect in the Supplies unless written notice is given to the Company within 14 days of inspection. The Company does not write software comprised in the Goods and it is the Customer's responsibility to check for the presence of computer viruses before such Goods are used.

The quantity of any consignment of Goods, as recorded by the Company upon despatch from the Company’s place of business, shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 10 days of the date when Goods should have been delivered or the Services performed in the ordinary course of events. Any liability of the Company for non-delivery or non-performance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with this Condition 9 will be limited to replacing the Goods or re-performing the Services within a reasonable time or to refunding the price then paid in respect of such Supplies.

 

9.   Returns

The Company operates a 30 day return policy. To be accepted for return on this basis, Goods should be returned for receipt by the Company within 30 days of dispatch. The Customer should return the Goods to ‘The Returns Department, Scuba Import PO Box 2042 • Warwick • 6024 • WA • Australia

Any Goods returned after 30 days as "unwanted" or "incorrectly ordered" may be accepted at the discretion of the Company but may be subject to a restocking fee of 20% of the invoice value of the Goods.

The Company reserves the right to amend its returns policy from time to time.

10.  Description 

All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together "Descriptions") wherever they appear (including without limitation in this Catalogue, on despatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer’s description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and accepts no liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by the Company’s negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation.

 

11.        Retention of Title 

It is expressly agreed that the title to the Goods shall not pass to the Customer until payment has been received in full by the Company but the Goods and any part thereof delivered shall nevertheless be at the Customer's risk from the time of delivery and the Customer shall indemnify the Company against all loss of or damage to the Goods from whatever cause occurring after such time and the Company shall not be under any obligations to give any statutory notice or other notice that it accepts no responsibility.

12.        Performance and fitness for purpose 

Unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company's negligence or otherwise. 

The responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer's unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer's risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed. Except as set out in Condition 14, the liability of the Company to the Customer, should any warranty, statement, advice or recommendation confirmed in accordance with this Condition 12 prove to be incorrect, inaccurate or misleading, will be limited to the refund of the price paid for the Supplies or, at the Company’s option, the supply of replacement Supplies which are sufficient and suitable.

13.        Warranty/Guarantee 

The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of Goods on every item we sell where such a warranty is provided. We do not provide warranty service on items not purchased through us, even though we may be the sole authorised Australian distributor for those products. 

This obligation will not apply: 

if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;

because the Customer did not follow the manufacturers' instructions for storage, usage, installation, use or maintenance of the Goods;

if the Customer has failed to notify the Company of any defect in accordance with Condition 9 where the defect should have been reasonably apparent on reasonable inspection;

if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of despatch of the Goods or performance of the Services. 

Any replacement Supplies made or Goods repaired under this Condition 13 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company. 

The Customer grants to the Company and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under this Condition 13. The Customer shall ensure that the Company's employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Customer shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making back-up copies of any information on such computers or processors before the Company's arrival on site. 

Except as set out in 14 below and 9 above, this Condition is the Company’s sole obligation and the Customer’s sole remedy for defective Supplies and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded.

14.        Liability 

14.1.              The Company shall not be liable for any damage, loss or expense resulting from the failure to give advice or information or the giving of incorrect advice or information whether or not due to the negligence of the Company, its employees, agents or subcontractors. 

14.2.              These Conditions set out the entire liability of the Company to the Customer in respect of the Goods and shall be in lieu and to the exclusion of all other warranties, conditions, and other terms implied by statute or common law, save for any implied terms which by law cannot be excluded or restricted, including liability under Part V of the Trade Practices Act or equivalent State Legislation. 

14.3.              The Company shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and the like or otherwise) costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Company, its employees, agents or subcontractors and regardless of whether the Company or its employees, agents or subcontractors were aware of the possibility of such loss arising) which arise out of or in connection with any Contract. 

14.4.              Where the Supplies are not of a kind ordinarily supplied or acquired for personal, domestic or household use or consumption then the liability of the Company is limited to the cost of repairing or replacing the Goods or, in the case of Services, re-performing the Services (in each case, at the Company's option).

15.        Intellectual property rights 

The Supplies in this Catalogue may be subject to the intellectual and industrial property rights including patents, know-how, trademarks, copyright, design rights utility rights, database rights and or other rights of third parties. No right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer's ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising.

In particular, without limiting the above, title in any software program forming part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for informing itself of the terms of its licence or use and paying any royalty payable. Such programs may be used only with the Goods.

The Company owns full copyright in respect of this Catalogue and its reproduction in whole or part is prohibited without the Company’s prior written consent.

16.        Privacy

The information collected by us about you from time to time, is for the sole use of the Company. It shall be retained for use in all current and core activities, including those activities carried out for management, administration and accountability for those core activities or functions such as billing, and for informing you from time to time of products or services offered by DiveTub in which we think that you may be interested.

All use of personal information will be in accordance with the Company's Privacy Policy.

17.        Promotions

In the event that the Company sends promotional material to the Customer in relation to goods or services available from the Company, these Conditions shall apply to all Supplies purchased from such material.

 

18.        Country of origin

Unless otherwise confirmed by the Company in writing, nothing in this Catalogue is to be taken as representation of the source of origin, manufacturer or production of the Goods or any part of them.

19.        Export

The Customer is responsible at its own expense for obtaining any licence and complying with any export regulations in force within Australia and any import or export regulations in force in the country for which goods are destined.

Certain Goods imported from the United States of America are subject to specific restrictions. With respect to Goods manufactured in the United States, the Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not import, export or transfer for the purpose of re-export, any Goods to any prohibited or embargoed country or to any denied, blocked or designated persons or entity as mentioned in any such U.S. or foreign law or regulation. The Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Supplies.

The Company reserves the right not to supply to certain customers or countries and to require from the Customer full details of the end use and final destination of the Goods.

20.        Business customers

The Company is a business to business supplier. The Catalogue and any specialogues and other product brochures produced by the Company are intended for use by business customers and not consumers. By ordering, the Customer confirms that he, she or it wishes to obtain the Supplies for the purposes of his, her or its business and not as a consumer.

21.        Age requirements for certain Goods

Where the law requires a minimum age for the purchase of certain Goods, the Customer confirms that he or she is over the required age and that delivery of the Goods will be accepted by a person over the relevant age limit.

 

22.        Medical and Life Support Applications

The Goods are not designed or authorised for implantation in the body or for use in life support equipment, other medical equipment or systems for any other purpose where the malfunction of the Goods could reasonably be expected to result in personal injury. Customers using the Goods for any such purpose do so at their own risk and agree to indemnify the Company and its suppliers against any and all liability and expense (including costs) resulting from such use.

23.        Force majeure

The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company's obligations under these Conditions if the delay or failure was due to any cause beyond the Company's reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, acts of terrorism, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.

24.        Legal construction/Recovery Actions

All matters that may require legal determination as a result of this agreement shall be determined within the court jurisdiction of WA. It is specifically agreed by both parties that should the Company have any reason to initiate recovery action against the Customer for unpaid accounts and/or overdue accounts or return of goods pursuant to a Retention of Title clause, then any monies spent by the Company, including but not limited to Mercantile Agents' fees and commissions, legal costs on an indemnity basis became part of the principal debt and as such will be paid by the Customer together with the amount.

25.        General

Any provision of these Conditions which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions and the remainder of such provision shall not be affected.

Failure by the Company to enforce or partially enforce any provision of these Conditions will not be constrained as a waiver of any rights under these Conditions.

The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to any company in its group at any time. For the purposes of this Condition, "group" shall mean, in relation to the Company, the Company, any other body corporate which is the Company's holding company or subsidiary and any other body corporate which is a subsidiary of that holding company.

THESE CONDITIONS SUPERSEDE ALL PREVIOUS ISSUES

June 2009--