Terms and Condition
1. EPIC – the basics
(a) "Epic" means of Epic Paddle Sports Pty Limited ACN 619 949 754 of 101E Old
Pittwater Rd Brookvale NSW Australia 2100. This document explains how the agreement is made up, and sets out the terms of our agreement with you.
(b) Epic operates a retail and wholesale business for “Epic Kayaks” and associated products in Australia.
(c) Your use and/or purchase of Epic’s products (“Good”), services and websites (including affiliated websites and pages, and including but not limited to the website at www.Epickayaks.com.au (referred to collectively, including where Goods are supplied, as the “Services” in this document) is subject to the terms of a legal agreement between you and Epic.
(d) Unless otherwise agreed in writing with Epic, your agreement with Epic will always include the terms and conditions set out in document (“Main Terms”).
(e) Your agreement with Epic will also include the terms of any additional notices we send you or post on any website owned or operated by Epic applicable to the Services, in addition to the Main Terms (“Additional Terms”). Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service.
(g) If there is any contradiction between what the Additional Terms say and what the Main Terms say, then the Additional Terms shall take precedence in relation to that Service.
2. Accepting the Terms
(a) In order to use the Services (including purchasing any Goods), you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
(a) You can accept the Terms by:
(i) clicking to accept or agree to the Terms, where this option is made available to you by Epic in the user interface for any Service (whether through a web browser, mobile app or otherwise); or
(ii) by actually using the Services. In this case, you understand and agree that Epic will treat your use of the Services as acceptance of the Terms from that point onwards.
(b) You may not use the Services or buy the Goods and may not accept the Terms if you are not of legal age or capacity to form a binding contract with Epic, or you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services, or otherwise do not operate an Asset Broker business (unless we have expressly authorised you to do so).
3. Provision of the Services by Epic
(a) Epic will use all reasonable endeavours to provide the Services and supply the Goods to you as represented on the Epic website, or any instructional or promotional material provided by or on behalf of Epic.
(b) You acknowledge and agree that the form and nature of the Services or Goods which Epic provides may change from time to time without prior notice to you, and you shall remain bound by the Terms when using the Services in any updated or amended version.
(c) You acknowledge and agree that Epic may refuse to allow you to access the Services or buy the Goods at its sole discretion, and/or may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Epic’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Epic when you stop using the Services. Epic is not required to act in good faith or reasonably.
(d) You acknowledge and agree that if Epic disables access to the website or any Services, you may be prevented from accessing the Services, your account details or any files or other content which is contained therein.
4. Supply of Epic Services
What is Epic?
(a) Epic is a retailer and wholesaler of “Epic Kayaks” Goods and Services in Australia.
(b) In providing the Services, Epic utilises and in some instances provides access to third party products and services (including without limitation the access to a cloud server). In this instance, Epic acts merely as an intermediary to facilitate access, and Epic:
(i) relies on representations made by those third parties and other suppliers, and will not be liable to you for any misrepresentation made, if we reasonably relied upon such representation in sourcing any supplying the Services, to the extent allowed by law;
(ii) does not warrant the accuracy or functionality of any such third party product or service and will not be liable for any fault or misdescription;
(iii) does not make any other warranty regarding the third party service or product, and you agree to rely on your own investigations and will indemnify Epic against all claims and loss in connection with your use of any third party service; and
(iv) does not warrant that any such product or service will be virus free, or free from any other error or defect, and will not be liable for any damage suffered as a result to the extent allowed by law.
(d) Information provided by you will be relied upon for the purposes of delivery of the Services. We will not be liable to you for incorrect information provided by you.
(e) Epic attempts to be as accurate as possible. However, Epic does not warrant that the Goods and Services supplied by Epic are accurate, complete, reliable, current or error-free. If a Good or Service offered by Epic is not as described, our liability to you shall be limited a refund for that Good or Service or provision of the Service again, alone.
(f) You expressly acknowledge that all Services supplied to you from Epic:
(i) are priced in Australian Dollars; and
(ii) will be charged, unless expressly stated otherwise, as exclusive of Goods and Services Tax pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth). We will issue a tax invoice for all purchases, delivered to your nominated email account
and that you will make no objection or claim in relation to any of these matters unless such restriction is prohibited by law.
5. Your Use of the Services
(b) Epic will rely on the accuracy of the information you provide. All Services will be provided in accordance with the information you have provided as at the date of provision of the Services. Epic will not be liable to you in any respect or for any amount for any loss suffered by you) if you have not provided accurate information.
(c) Any data you provide to Epic will be error free, legible (or audible) in a manner that will reasonably be considered to allow us to provide the Services. We will not be liable to you in any respect for any amount for any loss suffered by you if you have not provided information of such quality.
(d) You agree to use the Services only for purposes that are agreed at the time of using the Services (including in relation to any Content), and that are permitted by these Terms and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.
(e) You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Epic, unless you have been specifically allowed to do so in a separate agreement with Epic. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services, and you agree not to access the content directly from Contributors without the direct written agreement of Epic.
(f) You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
(g) Unless you have been specifically permitted to do so in a separate agreement with Epic, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. You must keep all aspects of the Services, including any source code, completely confidential and will not provide any such information to any other party. You will indemnify and hold harmless Epic for any loss it suffers if you breach this obligation.
(h) Unless you have been specifically permitted to do so in a separate agreement with Epic, you agree that you will not alter, modify, remove or otherwise obscure any content that you access by using the Services.
(i) You agree that you are solely responsible for (and that Epic has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Epic may suffer) of any such breach. You agree to indemnify Epic for any loss suffered by reason of any breach of your obligations under the Terms (including any consequential damages).
6. Your account security and data security
(a) You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
(b) Accordingly, you agree that you will be solely responsible to Epic for all activities that occur under your account, and Epic will not be responsible for any loss suffered by you or any other person by reason of unauthorised use of your account.
(c) You may not transfer your account to any other person, unless specifically agreed in writing by Epic.
(d) We will supply you with a generic password upon registration, however you must change your password prior to your first use of the Services.
(e) If you become aware of any unauthorised use of your password or of your account, you agree to change your account password and notify Epic immediately using the contact details at www.Epickayaks.com.au.
7. Privacy and personal information
8. Proprietary rights
(a) Epic has the right to use the “Epic” and “Epic Kayaks” intellectual property.
(b) You acknowledge and agree that Epic (or Epic’s licensors) own all legal right, title and interest in and to the Goods and Services, including any intellectual property rights which subsist in the Goods and Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Epic and that you shall not disclose such information without Epic’s prior written consent.
(c) You acknowledge that you have no ownership in the intellectual property comprised in the Goods and Services.
(d) Unless you have agreed otherwise in writing with Epic, nothing in the Terms gives you a right to use any of Epic’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features (whether owned or licensed by Epic).
(e) You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Goods or Services.
(f) Unless you have been expressly authorised to do so in writing by Epic, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos. You agree to wholly indemnify Epic for any loss or damage suffered by Epic by reason of any breach by you of this Clause.
(a) To the fullest extent permitted by law, you agree to fully and promptly indemnify Epic against any loss (either direct or indirect) damage or expense whatsoever which Epic may suffer or incur in respect of:
(1) Any breach by you of the provisions of the Terms;
(2) Any claim in connection with your use of the Goods or the Services by any person;
(3) Any claim by any person in connection with your infringement of any intellectual property rights arising from your use of the Goods or Services; and/or
(4) Any claim by any person against you arising out of or in respect of the exploitation of the intellectual property in the Goods or Services by Epic.
10. Terminating the agreement
(a) The Terms will continue to apply until terminated by either you or Epic as set out below.
(b) Subject to the balance of this clause, if you want to terminate your legal agreement with Epic, you may do so by:
(i) notifying Epic at any time using the contact page on our website; and
(ii) closing your accounts for all of the Services which you use, where Epic has made this option available to you.
(c) All Goods and Services are non-refundable unless in accordance with these terms or where required by law or otherwise identified in any refund policy published by Epic in existence from time to time.
(d) Epic may at any time, terminate its legal agreement with you if:
(i) you have breached any provision of this agreement (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this agreement); or
(ii) Epic is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(iii) any third party regarding whom Epic offered the Services to you has terminated its relationship with Epic or ceased to offer the Services to Epic or you; or
(iv) you have not made payment as required for the Services;
(v) Epic is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
(vi) the provision of the Services to you by Epic is, in Epic’s opinion, no longer commercially viable; or
(vii) for any other reason Epic in its reasonable discretion thinks fit.
(e) Termination of the agreement will result in an automatic revocation of any licence provided under it in relation to the Goods or the Services, unless otherwise agreed in writing with Epic.
(f) Nothing in this Section shall affect Epic’s rights regarding provision of Services under the Terms.
(g) When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Epic have benefited from (including any moneys owed for Services provided to you), 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 these Terms shall continue to apply to such rights, obligations and liabilities indefinitely.
11. EXCLUSION OF LIABILITY
(a) NOTHING IN THESE TERMS, SHALL EXCLUDE OR LIMIT EPIC’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW OR OTHERWISE CONTAINED IN ANY WARRANTY IDENTIFIED IN ANY ADDITIONAL TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(b) YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE GOODS AND SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE.”
(c) IN PARTICULAR, EPIC DO NOT REPRESENT OR WARRANT TO YOU THAT:
(i) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(ii) ALL GOODS AND SERVICES ARE IN STOCK AND AVAILABLE FOR PURCHASE;
(iii) ANY OF THE INFORMATION OR CONTENT YOU ACCESS USING THE SERVICES IS ACCURATE, RELIABLE, OR THAT ANY PARTICULAR RESULT OR EFFECT WILL BE ACHIEVED BY USING THE SERVICES OR ANY OF THE CONTENT ACCESSED OR DOWNLOADED USING THE SERVICES,
(iv) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR OR VIRUSES,
(v) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(vi) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
(d) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EPIC OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
(f) EPIC FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
12. LIMITATION OF LIABILITY
(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT EPIC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(i) 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 NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(ii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU., INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES.
(iii) ANY CHANGES WHICH EPIC MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(iv) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(v) YOUR FAILURE TO PROVIDE EPIC WITH ACCURATE ACCOUNT INFORMATION;
(vi) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
(b) THE LIMITATIONS ON EPIC’S LIABILITY TO YOU ABOVE SHALL APPLY WHETHER OR NOT EPIC HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
(c) WE SHALL NOT BE LIABLE TO YOU FOR ANY DELAY OR FAILURE TO PERFORM OR PROVIDE THE SERVICES BY REASON OF ANY CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL.
(d) TO THE EXTENT PERMITTED BY LAW, IN THE EVENT THAT EPIC IS FOUND TO BE LIABLE TO YOU, OUR LIABILITY SHALL BE LIMITED TO A REFUND OF AMOUNTS PAID BY YOU TO EPIC, A REPLACEMENT OF THE GOODS OR SERVICES SUPPLIED, OR REPERFORMANCE OF THE SERVICES SUPPLIED.
(a) Some of the Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
(a) The manner, mode and extent of advertising by Epic on the Services are subject to change without specific notice to you.
(b) In consideration for Epic granting you access to and use of the Services, you agree that Epic may place such advertising on the Services.
(c) Without limiting the effect of the above, Epic accepts no responsibility and will not be liable to you for any loss suffered by reason of the existence any advertising on the Services.
14. Other content
(a) The Services may include hyperlinks to other web sites or content or resources. Epic may have no control over any web sites or resources which are provided by companies or persons other than Epic.
(b) You acknowledge and agree that Epic is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
(c) You acknowledge and agree that Epic is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
15. Changes to the Terms
(a) Epic may make changes to the Terms from time to time. When these changes are made, Epic will make a new copy of the Terms available on any platform through which the Services are accessed. Epic shall not be required to otherwise notify you of any changes to the Terms, and you agree to be bound by the Terms as applicable from time to time.
(b) You understand and agree that if you use the Services after the date on which the Main Terms or Additional Terms have changed, Epic will treat your use as acceptance of the updated Terms.
(a) Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
(b) The Terms constitute the whole legal agreement between you and Epic and govern your use of the Services (but excluding any services which Epic may provide to you under a separate written agreement), and completely replace any prior agreements and/or representations between you and Epic in relation to the Services.
(c) You agree that Epic may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
(d) You agree that if Epic does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Epic has the benefit of under any applicable law), this will not be taken to be a waiver of Epic’s rights and that those rights or remedies will still be available to Epic.
(e) If any court of competent jurisdiction rules that any provision of these Terms is invalid, then that provision will be read down or removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
(f) No agency or partnership shall be construed to have been created by virtue of this agreement.
(g) You acknowledge and agree that each member of any company or entity to which Epic is directly affiliated (through whole or part ownership or control) shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favour of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.
(h) The Terms, and your relationship with Epic under the Terms, shall be governed by the laws of the State of New South Wales (or Australia where applicable). You and Epic agree to submit to the non-exclusive jurisdiction of the courts located within the State of New South Wales (or Australia, where applicable) to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Epic shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief, interlocutory or final) in any jurisdiction.
(h) You acknowledge and warrant that you are of legal capacity and have obtained, or had a reasonable opportunity to obtain independent legal advice in relation to the Terms and enter this agreement with an understanding of the legal and practical effect of the Terms. Epic shall not be liable for any breach of this warranty.