Terms and Conditions

Definitions and Interpretation

In this Agreement:

• Unless the context otherwise requires, the following words and expressions have the following meanings:

Activities means the active or passive presence of a participant on or beneath the water surface including using Diving Equipment, Breathing Gasses, breath hold, and/or boating; and related education and training courses, logistics, preparation and travel.

Additional Services means such additional labour/services and/or consumables which are optional or otherwise not always required for the performance and completion of services.

Agreement means an agreement formed between you and us: (a) orally or in writing by any means including by telephone, electronic message (including email, SMS, social media message, or messaging application), completion of website checkout process, or in person (including at our physical store) and for which these Terms were referenced including as the express terms of the agreement; or (b) automatically by your use of the Website.

Breathing Gasses means any mix of oxygen, nitrogen, helium and any other gas howsoever described and intended for respiration (for example common mixes generically described as air, nitrox, trimix, helitrox or oxygen), including when such gas mixes are supplied in a compressed state.

Claim means any claim including demands, threatened or filed proceedings, fines, awards, penalties howsoever arising including any liability, damages, or cause of action.

Content means any creation of intellect and includes but is not limited to code, text, images, audio, video and links.

Cost means any cost, expense or disbursement incurred by reason of a Claim, including judgment debts, adverse costs orders, settlement sums, penalties, fines, professional legal fees, administrative costs of proceedings, expert witness costs, or costs required for compliance with orders for equitable relief.

Diving Equipment means any apparatus for the delivery of gas for respiration howsoever configured, including snorkel, hookah, open circuit SCUBA, and semi-closed or closed circuit rebreathers.

IPR means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in designs, rights in Software, database rights, moral rights, rights in confidential information, know-how, trade secrets, and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Services means activities, services, functions or events that are conducted online or offline including hire of equipment, equipment maintenance, training courses, boat diving, shore diving and other Activities.

Website means the website located at and identified by www.dss1770.com.au.

Website Information means Content on the Website.

we, us, our means Dive Spear and Sport Pty Ltd ACN 608 629 518

you, your means the purchaser of goods and/or services and/or user of the Website.

• Reference to any:
  
  1. Statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time, and any subsidiary legislation and/or subordinate instrument made under it;
  2. Person includes natural persons, companies, partnerships, associations, governments, organisations, states, government or state agencies, foundations, charities and trusts;
  3. Company shall include any company, corporation or other body corporate, wherever and however incorporated or established; and
  4. Party includes a reference to that Party’s successors in title, permitted assignees and transferees (if any).
• Words denoting the singular shall include the plural and words denoting the plural shall include the singular.
• Headings are for convenience only and do not affect the interpretation of these Terms.
• The word “including” and similar expressions will not be construed as words of limitation and shall be read as “including, but not limited to”.
• Where an oral representation by either Party is inconsistent with these Terms the Terms shall prevail. Where a written representation by us is inconsistent with these Terms the former shall prevail to the extent of the inconsistency.

2. Website Use
   
   • By accessing and using the Website, you acknowledge that you have had sufficient chance to read and understand these Terms and agree to be bound by them in full and without reservation. Every time you access or use the Website is a separate and discrete transaction by which a separate Agreement is formed.
   • We reserve all IPR in and to our Website, Website Information, icons, logos, slogans, processes and software, which you acknowledge shall belong exclusively to us. Subject to these Terms we grant you a temporary, non-exclusive, revocable, and limited license to access and use the Website in the normal manner for your own personal, non-commercial use. If at any time you do not agree to the Terms applicable to the Website as they exist at that time in full and without reservation then your authorisation to access the Website is immediately withdrawn and you must immediately exit the Website.
   • You shall not use any Website Content for commercial or derivative purposes unless you have obtained our express written agreement on an individual basis. You shall not modify or copy the layout or appearance of the Website nor any computer software or code contained in the Website. You shall not decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the website.
   • You acknowledge that websites are subject to interruption or breakdown, and accordingly the Website is provided on an “as is” and “as available” basis only.
   • We may, at our sole discretion, suspend, interrupt, alter, amend or cease the operation or content of the Website, in whole or in part, at any time, without notice to you.
   • The Website Information is provided for general information purposes only. You undertake to be responsible for determining the validity, quality and relevance of the Website Information and to take appropriate independent advice before acting or relying on the Website Information to ensure it meets your particular requirements. You acknowledge the Website Information:
     
     1. Is not guaranteed as accurate, correct or comprehensive;
     2. Does not constitute advice or instructions;
     3. Is not a substitute for consulting a suitably qualified professional or other person with specialised knowledge;
     4. Will not be relied upon by you for any purpose; and
     5. Will form no part of the cause of any injury, damage, misadventure, statement or otherwise detrimental act or omission as it relates to yourself or third parties.
   • The Google Maps service is made available to you under license from Google Inc. By using the Google Maps service and any data or information accessed from Google Maps, you also agree to be bound by the Google Maps terms and conditions available at the following url: http://www.google.com/intl/en_us/help/terms_maps.html.
   • You shall not engage in any activity that interferes with or disrupts the Website or the servers and networks that host the Website, nor attempt to circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or the content therein.
   • You may be required to register a member account in order to access, participate or contribute to certain features of the Website. We do not, and cannot, undertake or guarantee that we will verify the identity of any member or any other personal information they provide. We reserve the right to refuse, suspend or terminate membership or registration of any user for any reason and to decline to elaborate a reason. Your membership is not transferrable or assignable. You may terminate your membership account at any time by unsubscribing or deleting where that option is available through an account management area of the Website, or by contacting us. You acknowledge it is your responsibility to, and undertake to: (a) control the dissemination and use of sign-in name, screen name and passwords; (b) authorise, monitor, and control access to and use of your account and password; (c) restrict access to any device that stores your passwords or account details; and (d) promptly inform us if you believe your account or password has been compromised or if there is any other reason you need to deactivate a password.
3. Purchases
   
   • The Website, goods displayed in our physical store, and any advertisement shall be considered an invitation to treat by which we invite you to make an offer to purchase goods or services. You make an offer to purchase by completing the checkout process. Offers which are received on a weekend or a public holiday may not be processed until the next business day. Business days are Monday to Friday, excluding public holidays in Queensland. We accept your offer by communicating our acceptance to you whether orally, in writing or by automated confirmation. This clause applies notwithstanding language from which an intention to make an offer would otherwise be inferred, including for example the words “offer”, “buy now”, “purchase”; the specific labels and functions of website pages for example online store, shopping cart, checkout or payment.
   • You declare that any goods or services you offer to purchase are necessary to maintain your existing lifestyle or quality of life. We shall have the right to withhold any goods or services until any debt you owe to use and/or the total value of the goods or services is paid in full. You warrant that the value to you of any goods or services we have provided or will provide is at least equal to the amount you paid to us as consideration for the supply of those goods or services.
   • We reserve the right to change advertised prices for goods or services at any time.
   • You acknowledge that the following variations to goods (including when shown on the Website) may apply and will not invalidate an agreement for the sale of such goods in any way:
     
     1. Packaging may vary;
     2. Weights, dimensions and capacities are approximate only;
     3. Printed or electronic display of any colour may not accurately reflect the actual colour of physical goods.

4. Courses and other Services
   
   • Bookings for Services shall, unless we advise otherwise, be subject to completion of a form of liability release, waiver and/or indemnity. Bookings for Services that comprise training shall, unless we advise otherwise, be further subject to completion of a form of liability release, waiver and/or indemnity which is mandated by the training standards of the relevant certification agency.
   • Prices quoted for Services are for a base level of labour and those consumables which must always be applied with every such service, and do not include Additional Services. Prices quoted for Services are per person. Bookings for Services are subject to receipt of a deposit or if no deposit is agreed then payment in full. Cancellation of Services may incur a cancellation fee which is not a penalty and represents a genuine pre-estimate of our loss resulting from the cancellation.
   • All Activities are subject to weather conditions which cannot be accurately predicted in advance and are beyond our reasonable control. We have the right to cancel a course or other Activity on a particular date due to adverse weather conditions in our sole discretion.  If such a cancellation occurs the Activity shall be rescheduled or you shall be issued credit for any unused portion of the Activity and related services. Such credit shall be valid for twelve months and may be applied against another Activity or purchase of goods from us.
   • All Activities are subject to minimum participant numbers, including four students for open water courses, three students for all other scuba diving courses, five divers for recreational boat dives, and four divers for technical dives. We have the right to cancel an Activity involving transport by boat, and any course, on the basis of insufficient number of participants, at our sole discretion. If such a cancellation occurs the Activity shall be rescheduled or you shall be issued credit, valid for twelve months, to apply against another Activity or purchase of goods from us.
   • Where necessary or appropriate we will recommend Additional Services to you with a quote for the Additional Services. If our recommendation for Additional Services is not accepted, or if you direct us to use Additional Services other than those we recommend to you, then:
     
     1. You acknowledge that optimal performance or completion cannot be guaranteed; and
     2. We reserve the right to not complete the original Services and you agree to pay the pro-rata value of the Services to the extent they have already been completed.
   • If the Services comprise a training course, then an agreement to provide the training course is only for the conduct of a typical program of training, at the end of which you will only receive certification if the instructor considers you have achieved the required standard of competence, knowledge and skill, otherwise you will not receive certification and may need to enter into a new arrangement to purchase Additional Services comprising further training. The Agreement to provide a course of training shall be contingent on your payment of an upfront deposit of 50% of the course fees on come courses, and full 100% payment on selected courses. Any outstanding balances shall be due two days before the course is scheduled to commence. You may reschedule or cancel your course in advance of the scheduled commencement date by giving written notice, however you shall remain liable for 50% of the course fees if giving less than 7 days notice. If you fail to attend or are removed from a course prior to completion, your course fees shall not be refundable but any balance in excess of 50% will be available as a credit for 12 months following the date the course was scheduled to begin. These amounts represent a genuine pre-estimate of the losses caused by your non-attendance.
   • If the venue at which Services are to be conducted is a facility or premises within your control, you shall provide:
     
     1. Suitable parking and a safe working environment for us, our representative or the service provider;
     2. Sufficient space and seating for the number of people participating in Services;
     3. Facilities, audio-visual equipment, or other equipment indicated as required to conduct the Services; and
     4. An environment free from interruptions and compliant with all applicable health and safety laws, regulations and standards.
   • If the Services are for hire/rent of equipment then all equipment must be returned to 4 Jeffery Court, Agnes Water, Queensland 4677 in the same condition as when it was collected, by the date and time agreed for return. Your liability under this clause excludes fair wear and tear. If the equipment is not returned at the agreed return time then you shall pay additional charges for each day until the equipment is returned at the then current rates. You shall be liable for the cost of new replacement equipment where you fail to return equipment, including because it has been lost or stolen. You shall be liable for the cost of new replacement equipment or repair costs where the equipment is damaged during the period of hire. You are not entitled to any refund for unused equipment or remaining Breathing Gases.
   • If the Services involve interfering with, modifying, maintaining, using or otherwise affecting property, tangible or intangible goods, or software in your ownership, possession or control (“Your Items”) you authorise us to perform those Services and so affect Your Items.
   • We reserve the right to cancel or postpone any Services at any time for any reason, including without limitation due to weather conditions, unavailability of suitable facilities or equipment, insufficient participant numbers, or where we believe the safety of any participant may be at risk. If such a cancellation occurs the Activity shall be rescheduled or you shall be issued credit for any unused portion of the Activity and related services. Such credit shall be valid for twelve months and may be applied against another Activity or purchase of goods from us.
5. Third Party Payments
   
   • We make available a third party payment service to facilitate transfer of money from you to us (“payment provider”). You acknowledge that when you make a transaction using the payment provider you enter into a separate agreement with the payment provider to which we are not a party.
   • You acknowledge the payment provider may do either or both of the following as valuable consideration for its services:
     
     1. Retain an amount from the transaction notwithstanding that you may not know the amount retained; and/or
     2. Apply a surcharge to the transaction notwithstanding that this may not have been disclosed by us prior to your order progressing to the payment provider’s system.
   • You acknowledge that we do not request, transmit or record, and take no responsibility for the security or privacy of, credit card or any other personal information collected by the payment provider for the purpose of processing a payment.
   • You acknowledge that we incur no obligations to you until such time as any payment from you is deposited into our operating accounts by the payment provider, irrespective of whether or not payment has been deducted from your accounts by the payment provider.
6. Shipping
   
   • The price of goods shown on the website may exclude shipping costs, which may be shown separately when finalising your order and may not have been disclosed to you prior to the checkout process.
   • Delivery charges and timescales vary depending on the type of goods ordered, the service you select and the delivery address.
   • We use a third party shipping service provider (“shipping provider”) to facilitate transport of goods from us to you. You agree that when you make a purchase requiring delivery you enter into a separate agreement with the shipping provider to which we are not a party. We act as agent on your behalf to contract with the shipping provider to arrange and transfer payment for delivery of goods to you at the shipping address you nominated when making your offer to purchase or otherwise completing a purchase process. You acknowledge that you assume full title and risk for the goods once possession passes from us to the shipping provider, that we have no liability for damage or delay arising from transit of these goods, and that any such liability vests in the shipping provider.

7. Goods Return Policy

To the extent permitted by law, the following return policy on goods sold by us will apply:

• All sales of goods are final and you are not entitled to any refund on the return of goods unless such goods are defective or otherwise in breach of guarantees imposed by law.
• If you are entitled by law to return goods because you have changed your mind within any applicable cooling off period, then:
  
  1. We will not refund your original shipping costs and/or payment transaction costs;
  2. You must provide proof that the goods were originally provided by us;
  3. You must, at your own expense and risk, return the goods to us at the address we specify within the relevant cooling off period; and
  4. The goods must be undamaged, unused and in original packaging, failing which will exclude you from any entitlement to a refund or exchange
• Certain goods require a high degree of technical familiarity for service and support and so at the first instance or if directed by us, you must contact the manufacturer or other supplier for trouble-shooting assistance.
• Goods you have damaged through your own acts or omissions shall not be considered defective.
• If goods are defective:
  
  1. You must notify us of any claim for defective goods in writing within the later of (i) 30 days of receiving possession of the goods, or (ii) 7 days of becoming aware of the defect, and provide proof that the goods were originally purchased from us;
  2. You must provide proof that the goods were originally provided by us;
  3. You must, at your own expense and risk, return the goods to us at the address we specify;
  4. We shall not receive title or risk for the goods until they arrive at the address we specified;
  5. If we confirm the goods are defective you will be entitled to either repair, replacement or refund, and we will pay the shipping costs of returning any repaired or replaced goods to you by standard shipping; and
  6. If the goods are not defective they will only be returned to you on receipt payment for the shipping costs of doing so.
• We shall not under any circumstances be liable for any data lost as a result of returned, repaired, replaced or refunded goods.

8. Services Cancellation Policy

Diving and Snorkelling Day Tours Cancellation Policy:
Cancellations 48+ prior to departure incurs a 10% cancellation fee.
Cancellations made 24-48 hours prior to departure incurs a 20% cancellation fee.
Cancellation or no show within 24hours are 100% non-refundable.

Courses Cancellation Policy:
Course deposit is non-refundable upon commencement of e-learning modules. Cancellations made 30+ days before first day of practical course will forfeit the deposit amount. Cancellations made 7 – 30 days prior to first practical course day will incur a 50% cancellation fee. Cancellations with less than 7 days notice are 100% non-refundable.

9. Personal Information
   
   • The Privacy and Cookie Policy set out at Schedule 1 is incorporated into and shall apply as if set out in the main body of the Terms.
   • You acknowledge that delivering goods or services to you requires true and correct personal information including your name, address and other contact details as requested. You acknowledge your failure to provide true and correct personal information may result in failure to deliver goods or services to you or failure to bring any cancellation to your attention, and in those circumstances you will not be entitled to any refund of the amount paid by you as consideration for those goods or services (“Forfeited Amount”) and you will not be entitled to Costs for any damage incurred by reason of not receiving the goods or services.  You acknowledge the Forfeited Amount is a genuine pre-estimate of wasted costs and costs of administration likely to be incurred by us due to your failure to provide true and correct personal information and is not a penalty.
10. Warranties and Disclaimers
    
    • You acknowledge these clauses reflect an appropriate allocation of risk and that we would not enter into the Agreement, allow you to participate in Activities for which we could be liable, or license you to access and use the Website without the disclaimers and limitations of liability set out in these Terms.
    • You agree the Activities are inherently dangerous recreational activities in which you engage for enjoyment, relaxation or pleasure.
    • Nothing in these Terms excludes the application of consumer guarantees mandated by legislation or the operation of law. To the extent permitted by law we disclaim any guarantees, representations or warranties, express or implied, as to the availability, reliability, timeliness, performance, completeness, accuracy, merchantability, acceptable quality or fitness for purpose of the Website, the Website Information, and any Services or goods which we may provide.
    • We shall not be liable for any consequential, indirect, exemplary, punitive, special, incidental or reliance damages, or for any damages related to lost profits, lost data, lost opportunity or business interruption, howsoever caused and even if we knew or could/should have known of the possibility of, or could reasonably have prevented, such damages. In all other circumstances our aggregate liability to you shall not exceed the amount of $100.
    • To the extent that any exclusion of liability, warranty or guarantee in these Terms is deemed by a court of competent jurisdiction to have failed in its essential purpose, you agree that our liability is limited to the re-supply of the affected goods or services, or if re-supply is not practicable refund of the amount paid by you to us for the affected goods or services, or in all other circumstances the amount of $100.
    • We are not medical practitioners and do not purport to give medical advice, diagnosis, treatment or instructions. You are responsible for determining the validity, quality and relevance of the Information and to take appropriate independent advice from a suitably qualified medical practitioner before acting or relying on any of the Information.
    • We do not, and cannot, guarantee or warrant that any data transmission is totally secure, free from viruses, fault or other conditions that could damage or interfere with your computer systems. You acknowledge responsibility to take your own precautions to protect your computer systems.
    • We do not, and cannot, control or monitor the content and availability of external websites to which links may be made from or by the Website from time to time and shall have no liability therefrom.
11. General
    
    • These Terms are subject to change, such changes are not retroactive. Every Agreement is subject to the Terms as they exist at the time the Agreement is formed. It is your responsibility to inform yourself of the Terms that exist at any given time. You waive any requirement that we inform you as to any changes to these Terms.
    • Except as set out in this Terms neither Party shall assign, sublicense or otherwise deal in any other way with its rights under these Terms or any Agreement. Any purported assignment in breach of this clause shall be deemed null and void.
    • No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of, or seeks to rely on, these Term.
    • All prices quoted are in Australian dollars and include GST where applicable.
    • Entire Agreement. The Agreement constitutes the entire and final agreement and understanding between you and us. The Parties confirm that no reliance has been placed on any representations other than those set out in these Terms.
    • Force Majeure. To the extent permitted by law, we are not liable for any delay caused by circumstances beyond our reasonable control, including the acts or omissions of third parties, and we shall be entitled to a reasonable extension of time to perform any obligations under the Agreement.
    • These Terms, the Agreement and any dispute arising out of or in connection with their subject matter, shall be governed by and construed in accordance with the laws of Queensland. The parties irrevocably agree that the courts of Queensland shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, these Terms, the Agreement, the website, or the subject matter thereof.
    • You can contact us by the methods detailed on the “Contact Us” page of the Website for all purposes other than formal service of legal documents which must be served in accordance with civil procedure and service rules. You consent to receive all communications from us electronically, including by email or by posting notices on the Website, and that such communications will satisfy any legal requirement that such communications be in writing. Any notice given to you in connection with these Terms shall be to the email address you: (i) specified for the Agreement the subject of the notice, (ii) specified for your membership to the Website generally, or (iii) you previously used in correspondence with us. Notice shall be effective immediately upon transmission if sent before 5.00pm on a business day, otherwise the next business day. If notice cannot be given in accordance with this clause, notice shall be given in accordance with civil procedures and service rules.
    • If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable that provision will be severed from these Terms and the remainder of the Agreement shall continue in full force and effect to the maximum extent permitted by law.
    • These Terms shall be binding upon the Parties and their respective successors and assigns.
    • Each indemnity, disclaimer, warranty, undertaking as to defence and release in these Terms, survives the expiry or termination of the Agreement. All debts incurred pursuant to the Agreement prior to its termination or expiry shall survive the expiry or termination of the Agreement. We shall have the right to assign to a third party any debt you owe to us.
    • We reserve the right to terminate any Agreement for any reason and by giving notice by telephone or to the last email address you advised to us or used to correspond with us. Our liability is limited to return of amounts paid in advance in respect of the terminated Agreement.
    • No variation, modification or waiver of any provision in the Terms shall be effective unless in writing.
    • Failure or delay by either Party to enforce any right or remedy available under these Terms, or failure to act with respect to an anticipated or actual breach, shall not constitute a waiver of such right or remedy. If either Party waives any specific obligation or liability under the Agreement, such waiver shall not extent to any other obligations or liabilities, nor apply in relation to subsequent or similar circumstances.

Effective as of 15 May 2018, last amended 10 August 2024.