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Terms & Conditions

Website Terms and Conditions of Use

 

  1. About the Website

 

1.1. Welcome to https://phoceasurf.com/ (the 'Website'). The Website provides you

with an opportunity to browse and purchase various products that have been

listed for sale through the Website (the 'Products'). The Website provides this

service by way of granting you access to the content on the Website (the

'Purchase Services').

 

1.2. The Website is operated by Phocea Surf (ABN 25462702949). Access to and

use of the Website, or any of its associated Products or Purchase Services, is

provided by Phocea Surf. Please read these terms and conditions (the 'Terms')

carefully. By using, browsing and/or reading the Website, this signifies that you

have read, understood and agree to be bound by the Terms. If you do not agree

with the Terms, you must cease usage of the Website, or any of the Purchase

Services, immediately.

 

1.3. Phocea Surf reserves the right to review and change any of the Terms by

updating this page at its sole discretion. When Phocea Surf updates the Terms, it

will use reasonable endeavours to provide you with notice of updates to the

Terms. Any changes to the Terms take immediate effect from the date of their

publication. Before you continue, we recommend you keep a copy of the Terms

for your records.

 

  1. Acceptance of the Terms

 

You accept the Terms by remaining on the Website. You may also accept the Terms

by clicking to accept or agree to the Terms where this option is made available to you

by Phocea Surf in the user interface.

 

  1. Registration to use the Purchase Services

 

3.1. In order to access the Purchase Services, you must first register as a user of the

Website. As part of the registration process, or as part of your continued use of

the Purchase Services, you may be required to provide personal information

about yourself (such as identification or contact details), including:

(a) an email address

(b) preferred username

(c) a mailing address

(d) a telephone number

(e) a password

(f) First name, last name, billing address

 

3.2. You warrant that any information you give to Phocea Surf in the course of

completing the registration process will always be accurate, correct and up to

date.

 

3.3. Once you have completed the registration process, you will be a registered

member of the Website ('Member') and agree to be bound by the Terms. As a

Member you will be granted immediate access to the Purchase Services.

 

3.4. You may not use the Purchase Services and may not accept the Terms if:

(a) you are not of legal age to form a binding contract with Phocea Surf; or

(b) you are a person barred from receiving the Purchase Services under the

laws of Australia or other countries including the country in which you are

resident or from which you use the Purchase Services.

 

  1. Your obligations as a Member

 

4.1. As a Member, you agree to comply with the following:

You will use the Purchase Services only for purposes that are permitted by:

(a) the Terms;

(b) any applicable law, regulation or generally accepted practices or guidelines

in the relevant jurisdictions;

(c) you have the sole responsibility for protecting the confidentiality of your

password and/or email address. Use of your password by any other person

may result in the immediate cancellation of the Purchase Services;

(d) any use of your registration information by any other person, or third

parties, is strictly prohibited. You agree to immediately notify Phocea Surf

of any unauthorised use of your password or email address or any breach

of security of which you have become aware;

(e) access and use of the Website is limited, non-transferable and allows for

the sole use of the Website by you for the purposes of Phocea Surf

providing the Purchase Services;

(f) you will not use the Purchase Services or Website for any illegal and/or

unauthorised use which includes collecting email addresses of Members by

electronic or other means for the purpose of sending unsolicited email or

unauthorised framing of or linking to the Website;

(g) you agree that commercial advertisements, affiliate links, and other forms

of solicitation may be removed from the Website without notice and may

result in termination of the Purchase Services. Appropriate legal action will

be taken by Phocea Surf for any illegal or unauthorised use of the Website;

and

(h) you acknowledge and agree that any automated use of the Website or its

Purchase Services is prohibited.

 

  1. Purchase of Products and Returns Policy

 

5.1. In using the Purchase Services to purchase the Product through the Website,

you will agree to the payment of the purchase price listed on the Website for the

Product (the 'Purchase Price').

 

5.2. Payment of the Purchase Price may be made through one of the following third

party providers:

(a) Paypal

(b) Shopify Payments (powered by Stripe)

(the 'Payment Gateway Providers')

(c) AfterPay

 

In using the Purchase Services, you warrant that you have familiarised yourself

with, and agree to be bound by, the applicable Terms and Conditions of Use,

Privacy Policy and other relevant legal documentation provided by the Payment

Gateway Providers.

 

5.3. Following payment of the Purchase Price being confirmed by Phocea Surf, you

will be issued with a receipt to confirm that the payment has been received and

Phocea Surf may record your purchase details for future use.

 

5.4. Phocea Surf may, at their sole discretion, provide a refund on the return of the

Products within 14 days where the Product packaging is unopened and remains in

a saleable condition. You acknowledge and agree that you are liable for any

postage and shipping costs associated with any refund pursuant to this clause.

 

  1. Warranty

 

6.1. Phocea Surf's Products come with guarantees that cannot be excluded under the

Australian Consumer Law. You are entitled to a replacement or refund for a

major failure of the Product. You are also entitled to have the Products repaired

or replaced if the Products fail to be of acceptable quality and the failure does not

amount to a major failure (the 'Warranty').

 

6.2. You may make a claim under this clause (the 'Warranty Claim') for material

defects and workmanship in the Products within 1 from the date of purchase (the

'Warranty Period').

 

6.3. In order to make a Warranty Claim during the Warranty Period, you must provide

proof of purchase to Phocea Surf showing the date of purchase of the Products,

provide a description of the Products and the price paid for the Products by

sending written notice to Phocea Surf at PO Box 230, STRATHFIELD, NSW

2135, Australia or by email at customercare@phoceasurf.com.

 

6.4. Where the Warranty Claim is accepted then Phocea Surf will, at its sole

discretion, either repair or replace any defective Products or part thereof with a

new or remanufactured equivalent during the Warranty Period at no charge to

you for parts or labour. You acknowledge and agree that you will be solely liable

for any postage or shipping costs incurred in facilitating the Warranty Claim.

 

6.5. The Warranty shall be the sole and exclusive warranty granted by Phocea Surf

and shall be the sole and exclusive remedy available to you in addition to other

rights and under a law in relation to the Products to which this warranty relates.

 

6.6. All implied warranties including the warranties of merchantability and fitness for

use are limited to the Warranty Period.

 

6.7. The Warranty does not apply to any appearance of the supplied Products nor to

the additional excluded items set forth below nor to any supplied Products where

the exterior of which has been damaged or defaced, which has been subjected to

misuse, abnormal service or handling, or which has been altered or modified in

design or construction.

 

  1. Copyright and Intellectual Property

 

7.1. The Website, the Purchase Services and all of the related products of Phocea

Surf are subject to copyright. The material on the Website is protected by

copyright under the laws of Australia and through international treaties. Unless

otherwise indicated, all rights (including copyright) in the site content and

compilation of the website (including text, graphics, logos, button icons, video

images, audio clips and software) (the 'Content') are owned or controlled for

these purposes, and are reserved by Phocea Surf or its contributors.

 

7.2. Phocea Surf retains all rights, title and interest in and to the Website and all

related content. Nothing you do on or in relation to the Website will transfer to

you:

(a) the business name, trading name, domain name, trade mark, industrial

design, patent, registered design or copyright of Phocea Surf; or

(b) the right to use or exploit a business name, trading name, domain name,

trade mark or industrial design; or

(c) a system or process that is the subject of a patent, registered design or

copyright (or an adaptation or modification of such a system or process).

 

7.3. You may not, without the prior written permission of Phocea Surf and the

permission of any other relevant rights owners: broadcast, republish, up-load to a

third party, transmit, post, distribute, show or play in public, adapt or change in

any way the Content or third party contact for any purpose. This prohibition does

not extend to materials on the Website which are freely available for re-use or are

in the public domain.

 

  1. Privacy

 

Phocea Surf takes your privacy seriously and any information provided through your

use of the Application and/or the Purchase Services are subject to Phocea Surf's

Privacy Policy, which is available on the Application.

 

  1. General Disclaimer

 

9.1. You acknowledge that Phocea Surf does not make any terms, guarantees,

warranties, representations or conditions whatsoever regarding the Products

other than provided for pursuant to these Terms.

 

9.2. Phocea Surf will make every effort to ensure a Product is accurately depicted on

the Website, however, you acknowledge that sizes, colours and packaging may

differ from what is displayed on the Website.

 

9.3. Nothing in these Terms limits or excludes any guarantees, warranties,

representations or conditions implied or imposed by law, including the Australian

Consumer Law (or any liability under them) which by law may not be limited or

excluded.

 

9.4. Subject to this clause, and to the extent permitted by law:

(a) all terms, guarantees, warranties, representations or conditions which are

not expressly stated in these Terms are excluded; and

(b) Phocea Surf we will not be liable for any special, indirect or consequential

loss or damage (unless such loss or damage is reasonably foreseeable

resulting from our failure to meet an applicable Consumer Guarantee), loss

of profit or opportunity, or damage to goodwill arising out of or in connection

with the Purchase Services or these Terms (including as a result of not

being able to use the Purchase Services or the late supply of the Purchase

Services), whether at common law, under contract, tort (including

negligence), in equity, pursuant to statute or otherwise.

 

9.5. Use of the Website, the Purchase Services, and any of the products of Phocea

Surf is at your own risk. Everything on Website, the Purchase Services, and the

Products of Phocea Surf, are provided to you on an "as is" and "as available"

basis, without warranty or condition of any kind. None of the affiliates, directors,

officers, employees, agents, contributors, third party content providers or

licensors of Phocea Surf make any express or implied representation or warranty

about its Content or any products or Purchase Services (including the products or

Purchase Services of Phocea Surf) referred to on the Website. This includes (but

is not restricted to) loss or damage you might suffer as a result of any of the

following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure

to correct defects, delay in operation or transmission, computer virus or

other harmful component, loss of data, communication line failure, unlawful

third party conduct, or theft, destruction, alteration or unauthorised access

to records;

(b) the accuracy, suitability or currency of any information on the Website, the

Purchase Service, or any of its Content related products (including third

party material and advertisements on the Website);

(c) costs incurred as a result of you using the Website, the Purchase Services

or any of the Products;

(d) the Content or operation in respect to links which are provided for the

User's convenience;

(e) any failure to complete a transaction, or any loss arising from e-commerce

transacted on the Website; or

(f) any defamatory, threatening, offensive or unlawful conduct of third parties

or publication of any materials relating to or constituting such conduct.

 

  1. Limitation of Liability

 

10.1. Phocea Surf's total liability arising out of or in connection with the Purchase

Services or these Terms, however arising, including under contract, tort

(including negligence), in equity, under statute or otherwise, will not exceed the

most recent Purchase Price paid by you under these Terms or where you have

not paid the Purchase, then the total liability of Phocea Surf is the resupply of

information or Purchase Services to you.

 

10.2. You expressly understand and agree that Phocea Surf, its affiliates, employees,

agents, contributors, third party content providers and licensors shall not be liable

to you for any direct, indirect, incidental, special consequential or exemplary

damages which may be incurred by you, however caused and under any theory

of liability. This shall include, but is not limited to, any loss of profit (whether

incurred directly or indirectly), any loss of goodwill or business reputation and any

other intangible loss.

 

10.3. Phocea Surf is not responsible or liable in any manner for any site content

(including the Content and Third Party Content) posted on the Website or in

connection with the Purchase Services, whether posted or caused by users of

the website of Phocea Surf, by third parties or by any of the Purchase Services

offered by Phocea Surf.

 

  1. Termination of Contract

 

11.1. The Terms will continue to apply until terminated by either you or by Phocea Surf

as set out below.

 

11.2. If you want to terminate the Terms, you may do so by:

(a) notifying Phocea Surf at any time; and

(b) closing your accounts for all of the Purchase Services which you use, where Phocea Surf has made this option available to you. Your notice should be sent, in writing, to Phocea Surf via the 'Contact Us' link on our homepage.

 

11.3. Phocea Surf may at any time, terminate the Terms with you if:

(a) you have breached any provision of the Terms or intend to breach any provision;

(b) Phocea Surf is required to do so by law;

(c) the partner with whom Phocea Surf offered the Purchase Services to you has terminated its relationship with Phocea Surf or ceased to offer the Purchase Services to you;

(d) Phocea Surf is transitioning to no longer providing the Purchase Services to

Users in the country in which you are resident or from which you use the

service; or

(e) the provision of the Purchase Services to you by Phocea Surf is, in the

opinion of Phocea Surf, no longer commercially viable.

 

11.4. Subject to local applicable laws, Phocea Surf reserves the right to discontinue or

cancel your membership to the Website at any time and may suspend or deny, in

its sole discretion, your access to all or any portion of the Website or the

Purchase Services without notice if you breach any provision of the Terms or any

applicable law or if your conduct impacts Phocea Surf's name or reputation or

violates the rights of those of another party.

 

11.5. When the Terms come to an end, all of the legal rights, obligations and liabilities

that you and Phocea Surf have benefited from, been subject to (or which have

accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions

of this clause shall continue to apply to such rights, obligations and liabilities

indefinitely.

 

  1. Indemnity

 

12.1. You agree to indemnify Phocea Surf, its affiliates, employees, agents,

contributors, third party content providers and licensors from and against:

(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and

damage (including legal fees on a full indemnity basis) incurred, suffered or

arising out of or in connection with any Content you post through the

Website;

(b) any direct or indirect consequences of you accessing, using or transacting

on the Website or attempts to do so and any breach by you or your agents

of these Terms; and/or

(c) any breach of the Terms.

 

  1. Dispute Resolution

 

13.1. Compulsory:

If a dispute arises out of or relates to the Terms, either party may not commence any

Tribunal or Court proceedings in relation to the dispute, unless the following clauses

have been complied with (except where urgent interlocutory relief is sought).

 

13.2. Notice:

A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must

give written notice to the other party detailing the nature of the dispute, the desired

outcome and the action required to settle the Dispute.

 

13.3. Resolution:

On receipt of that notice ('Notice') by that other party, the parties to the Terms

('Parties') must:

(a) Within 14 days of the Notice endeavour in good faith to resolve the Dispute

expeditiously by negotiation or such other means upon which they may

mutually agree;

(b) If for any reason whatsoever, 14 days after the date of the Notice, the

Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;

(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

(d) The mediation will be held in New South Wales, Australia.

 

13.4. Confidential

All communications concerning negotiations made by the Parties arising out of and in

connection with this dispute resolution clause are confidential and to the extent

possible, must be treated as "without prejudice" negotiations for the purpose of

applicable laws of evidence.

 

13.5. Termination of Mediation:

If 2 weeks have elapsed after the start of a mediation of the Dispute and the Dispute

has not been resolved, either Party may ask the mediator to terminate the mediation

and the mediator must do so.

 

  1. Venue and Jurisdiction

 

The Purchase Services offered by Phocea Surf is intended to be viewed by residents

of Australia. In the event of any dispute arising out of or in relation to the Website, you

agree that the exclusive venue for resolving any dispute shall be in the courts of New

South Wales, Australia.

 

  1. Governing Law

 

The Terms are governed by the laws of New South Wales, Australia. Any dispute,

controversy, proceeding or claim of whatever nature arising out of or in any way

relating to the Terms and the rights created hereby shall be governed, interpreted and

construed by, under and pursuant to the laws of New South Wales, Australia, without

reference to conflict of law principles, notwithstanding mandatory rules. The validity of

this governing law clause is not contested. The Terms shall be binding to the benefit of

the parties hereto and their successors and assigns.

 

  1. Independent Legal Advice

 

Both parties confirm and declare that the provisions of the Terms are fair and

reasonable and both parties having taken the opportunity to obtain independent legal

advice and declare the Terms are not against public policy on the grounds of inequality

or bargaining power or general grounds of restraint of trade.

 

  1. Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent

jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.