Terms and conditions
GENERAL TERMS AND CONDITIONS:
These Terms apply to every provision of Services by Efoil Australia to the Customer:
1. DEFINITIONS AND INTERPRETATION 1.1 Definitions:
(a) Agents means Efoil’s directors, officers, employees, representatives as well the associated entity of Fliteboard Pty Ltd (ACN 621 061 569).
(b) Agreement means these “General Terms and Conditions” between the Customer and Efoil Australia and any policies implemented by Efoil Australia as amended by Efoil Australia from time to time which are available on the Site.
(c) Booking means confirmation by the Customer, either expressly, by conduct or any other means, including making a booking for the Services via the Site, that the Customer would like to engage Efoil Australia for the provision of the Services.
(d) Claim means in relation to a Party, a demand, claim, action, proceeding, judgment, damage, loss, cost, expense or liability incurred by or recovered by or against the Party, however arising and whether present, unascertained, immediate, future or contingent and whether or not arising in relation to matters which occurred in the past.
(e) Confidential Information means all business, trade and Customer information of Efoil Australia including but not limited to any asset listings, databases, source codes, methodologies, know-how, manuals and Intellectual Property of Efoil Australia.
(f) Customer means any person or entity accessing the Services or Site for any reason and any person or entity engaging the Services or representing the same.
(g) Dispute means a dispute, controversy or claim arising out of or in relation to the Agreement.
(h) Equipment means Fliteboards and any other related equipment provided by Efoil Australia in connection
with the provision of the Services.
(i) Fee means the fee/s payable in consideration of the provision of the Services, which are provided within
the Quotation and/or listed on the Site.
(j) GST means Goods and Services Tax as applies under the Goods and Services Tax Act 1999 (Cth) and
other related legislation.
(k) Intellectual Property means any type of intellectual property rights or rights of a similar nature including
all current and future trademarks, copyright, designs, circuit layouts, trademarks, know-how, Confidential Information, patents, inventions and discoveries, business and domain names and all other results of intellectual property activity, whether or not registrable, registered or patentable anywhere in the world including without limitation, all past, current and prospective financial, accounting, marketing, trading, technical and business information, social media accounts, websites, advertising and marketing materials, customer and supplier lists, databases, source codes, methodologies and manuals.
(l) Law means any legislation including regulations, by-laws, orders, awards and proclamations, common law and equity, any official requirements and consents, certificates, licences, permits and approvals (including conditions in respect of those consents, certificates, licences, permits and approvals) and any guidelines with which a Party is legally required to comply with.
(m) Parties means Efoil Australia and the Customer and Party means either of them.
(n) Quotation means any quotation provided to the Customer by Efoil Australia or a Booking generated by the Customer through the Site (and being the final estimated Fee and/or total cost of the Services) relating
to the provision of the Services.
(o) Services means the foiling lessons/coaching provided by Efoil Australia as well as the hire/use of the
Equipment from Efoil Australia, including any other products or services provided to the Customer in connection with the Services.
(p) www.efoilaustralia.com website including, without limitation, all sub-pages and any social media platform used by Efoil Australia.
(q) Term means the duration of the term during which Efoil Australia will provide the Services to the Customer.
(r) Terms means these “General Terms and Conditions” as amended from time to time.
(s) Waiver means the “Safety Information and Waiver Form”, as amended from time to time, signed by a
Customer prior to receiving the Services.
1.2 Rules for interpreting this Agreement:
(a) Words in the singular include the plural and vice versa;
(b) A reference to any Party includes that Party’s executors, administrators, substitutes, successors and
(c) All rights granted to and all obligations imposed on two or more Parties are joint and several in Quotation
unless expressed otherwise;
(d) Headings are for convenience only and do not affect interpretation of this Agreement; and
(e) No rule of construction applies to the disadvantage of a Party on the basis that the Party put forward this
Agreement or any part of it.
(a) By visiting the Site or contacting Efoil Australia via any other means and making a Booking, or by use or
continued use in any way whatsoever of the Site and/or Services, the Customer engages the Services of
Efoil Australia and is bound by this Agreement.
(b) The Site and Services being offered to and used by the Customer are conditional on the Customer’s
acceptance of the Terms.
(c) This Agreement applies to each occasion that Efoil Australia provides Services to the Customer.
(d) It is a condition precedent to the provision of Services to the Customer by Efoil Australia that the Customer
has complied with each of the Terms set out in this Agreement to the satisfaction of Efoil Australia.
(e) Efoil Australia may amend the terms of the Agreement at its sole discretion from time to time and the Customer acknowledges and accepts any amendments by continuing to use or access the Site and/or
3. PROVISION OF SERVICES
(a) Efoil Australia agrees to provide the Services to the Customer during the Term on the Terms of the
(b) Efoil Australia agrees to provide the Site and the Services with reasonable care and skill and in accordance
with all Laws.
(c) The provision of Services by Efoil Australia is weather dependent and Efoil Australia reserves the right to
postpone the provision of the Services if, in its total discretion, it considers that the Services could not be
provided on that occasion. An alternative date for the Services will be provided to the Customer.
(d) The Services can only be provided between the hours of sunrise and sunset as required by Law.
(e) Other than the express warranties set out in the Agreement and to the extent permissible by Law, Efoil
Australia provides no statements, warranties, undertakings, representations or guarantees in any way connected to the Site, the Services or any third-party person accessing or using the Site or Services, including in relation to the quality, suitability, safety or legality of any Customer or Services provided via the Site or the Services.
(f) Every Customer must sign the Waiver prior to the provision of the Services.
4. INFORMATION AND SUITABILITY OF SERVICES
(a) The Customer is fully responsible for assessing the suitability of the Services for their proposed use
provided by Efoil Australia in all respects and the Customer relies solely on their own judgment and expertise and not on any documents, information, advice or representations given by Efoil Australia through the Site or by any other means in entering into this Agreement.
(b) Efoil Australia may remove or alter any content, information or material posted or included on the Site at its sole and absolute discretion.
5. QUOTATIONS AND FEES
(a) Any Quotation provided by Efoil Australia are valid and capable of acceptance by the Customer for a
period of thirty (30) days from the date of the Quotation unless specified otherwise.
(b) In addition to the Fee, the Customer may be asked to pay other additional fees determined by Efoil Australia for any services requested by the Customer in addition to the Services or for Efoil Australia’ performance of any work or services reasonably necessary to be performed in connection with the Services.
(c) Any price list or Quotation supplied by Efoil Australia to the Customer or posted by Efoil Australia on the Site in respect of Services is a guide only and is subject to change without notice to the Customer.
(d) Efoil Australia may correct mistakes in prices quoted in any Quotation or in the Quotation by giving notice to the Customer at any time prior to the commencement of the provision of the Services. The Customer is deemed to accept the terms of the correction unless it gives 2 days’ written notice disputing the corrected Quotation or term of the Quotation.
(a) Unless otherwise agreed in writing by the parties, the Customer must pay the Fee in full at the time of
confirming and/or making the Booking.
(b) Efoil Australia may issue an invoice to the Customer in respect of the Fee together with any other fees and
costs owing by the Customer pursuant to this Agreement, with all amounts due and payable at the time of
(c) All Fees paid by the Customer for the Services are GST inclusive.
(d) If the Customer fails to pay any amount owing to Efoil Australia under the Agreement (including failure
to pay an invoice in accordance with this clause), the Customer’s Booking will be cancelled and Efoil
Australia may cease any further provision of Services to the Customer in the future.
(e) All expenses, costs or disbursements (including legal, debt collection and consultant costs on an indemnity basis) incurred by Efoil Australia in connection with recovering any outstanding monies shall be paid by
(f) All payments made to Efoil Australia under this Agreement are to be made by electronic transfer to the
bank account set out the relevant invoice or Quatation or via the payment methods listed on the Site.
7. CANCELLATIONS AND NO SHOWS
(a) Efoil Australia reserves the right to cancel any Booking in their sole discretion. In the event that a Booking
is cancelled by Efoil Ausralia, the Fee may be refunded to the Customer or the Booking to be rescheduled.
(b) Efoil Australia reserves the right to refuse the Services on the day of the Customer’s Booking if, in Efoil Australia’s sole discretion, the Customer appears to be intoxicated or otherwise unfit to receive the
(c) Any time-frames or Booking dates provided by Efoil Australia to the Customer for provision of the
Services are subject to change and Efoil Australia is not liable for any Claim relating to a failure to meet any time-frame or a Booking date due to circumstances beyond Efoil Australia control (such as a sudden change in weather conditions or a break-down of the Equipment).
(d) No refunds are offered if a Booking is cancelled by the Customer and a 72-hour re-scheduling period is required for all Bookings.
(e) In the event of the Customer not showing up for the Booking, 100% of the Fee will be forfeited by Efoil Australia.
8. RISK AND TITLE
(a) Risk in relation to the Services and the Equipment passes to the Customer at the time of provision of the
(b) Efoil Australia retains full legal and equitable title to the Equipment at all times, notwithstanding that the
Equipment is being used by and is in the possession of the Customer during the Term.
9. INTELLECTUAL PROPERTY
(a) Efoil Australia owns all Intellectual Property in any content posted or submitted on the Site and any
information provided to the Customer.
(b) To avoid doubt, any original Intellectual Property, know- how, work, process, design or other material
produced or developed by Efoil Australia arising from Efoil Australia relationship with the Customer or performance of its obligations under this Agreement will be the property of Efoil Australia which shall have full rights to the same whether those rights are exercised in any form during the Term.
10. CUSTOMER WARRANTIES
The Customer agrees and warrants that:
(a) they are at least 18 years of age, are in good general health and are able to swim;
(b) they have the power, authority and capacity to enter into the Agreement;
(c) they will do all things and provide all information reasonably necessary to assist Efoil Australia to provide
the Services and to perform its obligations under the Agreement;
(d) that any information or material provided to Efoil Australia for the purposes of receiving the Services is
true and correct and not misleading.
(e) they will advise Efoil Australia of any medications the Customer is taking that may affect the provision of the Services by Efoil Australia;
(f) they did not consume any alcohol on the day of the Booking;
(g) they will comply with all Laws in entering into this Agreement and comply with all directions given by
Efoil Australia in carrying out any activities and obligations in connection with this Agreement.
(h) the information provided to Efoil Australia in connection with this Agreement is true, accurate and correct. The Customer must provide all information requested by Efoil Australia reasonably necessary to enable
Efoil Australia to perform its obligations under this Agreement.
(a) Efoil Australia may immediately terminate the Agreement without liability if the Customer breaches any
term or condition of the Agreement and fails to remedy the breach or the Customer commits a breach of
the Agreement that cannot be remedied.
(b) Efoil Australia may terminate the Agreement without liability if the performance of its remaining
obligations under the Agreement is not reasonably possible or practicable due to circumstances outside Efoil Australia’ control including but not limited to war, strike, lockout, political conditions, natural disaster or other force majeure events.
(c) If the Agreement is terminated by Efoil Australia pursuant to clause 11(a) of these Terms, the Customer is liable for all Claims, costs, expenses, damages and losses incurred by Efoil Australia as a result of the termination including all legal and consultant costs (on an indemnity basis) and including all consequential losses such as loss of profit and damage to business reputation.
(a) Efoil Australia’ liability for any loss/damages under or related to the Agreement, including liability in
relation to the Equipment, is limited to general damages and Efoil Australia shall not be responsible for any special or consequential damages of whatsoever nature suffered by the Customer, including but not limited to personal injury, loss of income and damage to personal property.
(b) Despite any other term of this Agreement, Efoil Australia’ liability to the Customer in relation to the Services will be limited to price of the Services.
(c) Efoil Australia is not liable for any Claim directly or indirectly resulting from the Customer’s use of Services or the Equipment provided including any unlawful or improper use of the Equipment.
(d) Every Customer acknowledges that by signing the Waiver, they agree that the liability of Efoil Australia or its Agents in relation to recreational services (as defined in the Competition and Consumer Act 2010 (Cth), the Australian Consumer Law and section 5E of the Civil Liability Act 2002 (WA) for any death; physical or mental injury (including the aggravation, acceleration, or recurrence of such an injury); the contraction, aggravation, or acceleration of a disease; the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behavior, course of conduct, or state of affairs (that is or may be harmful or disadvantageous to you or the community or may result in harm or disadvantage to you or the community) that may be suffered by you (or a person for whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services or recreational activities is excluded.
(e) Efoil Australia is not liable for any non-provision of Services or cancellations that are outside of Efoil Australia’s control.
(f) Efoil Australia is not liable in any way whatsoever for any Claim arising from or connected to the acts and omissions of the Customer or any third-party.
(g) The Customer indemnifies, defends and holds harmless and will keep indemnified Efoil Australia and its Agents in relation to any Claim by the Customer or a third -party connected to a breach of the Agreement by the Customer and in respect of any Claim, negligence, personal injury or death arising out of the Customer’s acts or omissions in connection with this Agreement.
(h) The Customer is fully liable for any loss or damage caused to the Equipment during the Term where the loss or damage was caused by the Customer’s:
i. lack of reasonable care, misuse, abuse or improper use of the Equipment; or
ii. failure to follow the safety directions given to the Customer by Efoil Australia; or iii. any other act of negligence by the Customer.
13. DISPUTE RESOLUTION
(a) When a Dispute arises, the complaining Party must give notice to the other Party particularising the
Dispute. The parties must then act in good faith to attempt to resolve the Dispute.
(b) If the Dispute has not been resolved within 21 days of the date of the notice given pursuant to clause 13(a), the parties may take whatever action they consider appropriate, including commencing legal proceedings.
(c) The Customer must continue to perform its obligations under this Agreement notwithstanding the
existence of a Dispute.
Upon giving the Customer reasonable notice, Efoil Australia may vary the Agreement if the variation is reasonably necessary due to circumstances outside Efoil Australia’ control or if the variation is reasonably necessary in order for Efoil Australia to perform the Services.
(a) Subject to clause 15(b), the Customer must keep all Confidential Information confidential and not disclose
the Confidential Information, take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of the Confidential Information and use the Confidential Information only for the purposes of performing its obligations under this Agreement.
(b) Clause 15(a) does not apply to Confidential Information to the extent that the information is generally available to the public other than as a result of a breach of this Agreement, required to be disclosed by Law or permitted in writing to be disclosed by Efoil Australia.
Any notice, consent or communication to be given by Party under the Agreement must be given in writing via the Site or by e-mail or otherwise notified in writing to the other Party from time to time. Any notice, consent or communication so sent shall be deemed to have been duly given, served and received if personally delivered, upon receipt of the addressee, or if sent by e-mail, the notice will be deemed to be received on the next business day.
17. GOVERNING LAW
Agreement shall be governed by, take effect and be construed in accordance with the Laws in force in the State of Western Australia, and the parties submit to the exclusive jurisdiction of the Courts of that State.
Subject to the express terms of this Agreement, a right may only be waived in writing, signed by Efoil Australia; and no other conduct by Efoil Australia (including but not limited to a failure to exercise, or delay in exercising the right) operates as a waiver of that right or otherwise prevents the exercise of the right. A waiver of a right on one or more occasions does not operate as a waiver of that right if that occasion arises again and the exercise of a right does not prevent any further exercise of that right or of any other right.
19. INDEPENDENT LEGAL ADVICE
The Customer acknowledges that they have entered into the Agreement freely and willingly and that they have had the opportunity to obtain independent legal advice prior to entering into the Agreement.
If any term or condition of these Terms is or becomes for any reason wholly or partially invalid, that term or condition shall, to the extent of the invalidity, be severed without prejudice to the continuing force and validity of the remaining terms and conditions.
21. ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the parties with respect to its subject matter.