Refresh Your Stick
Terms and Conditions of Service/Waiver Agreement
PLEASE TAKE THE TIME TO READ THIS TERMS AND CONDITIONS OF SERVICE/WAIVER AGREEMENT VERY CAREFULLY AS IT PROVIDES INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS AS A CUSTOMER OF REFRESH YOUR STICK. ONLY AGREE AFTER YOU ARE FULLY SATISFIED THAT YOU UNDERSTAND AND ACCEPT ALL TERMS AND CONDITIONS.
IN THIS AGREEMENT, ‘REFRESH YOUR STICK’ INCLUDES THE ENTITY (REFRESH YOUR STICK), AND WHERE THE CONTEXT PERMITS, ITS DIRECTORS, OFFICERS, SERVANTS, AGENTS, LICENSEES AND AFFILIATES. IT ALSO INCLUDES THE REFRESH YOUR STICK WEBSITE, MOBILE APP AND ANY OTHER ENTITY ESTABLISHED AND DIRECTLY PERTAINING TO REFRESH YOUR STICK. ‘HIRED/DEMO PRODUCT(S)’ AND ‘SERVICE’ MEANS THE SURFING AND/OR OTHER EQUIPMENT HIRED BY ME FROM REFRESH YOUR STICK. ‘CLAIM’ REFERS TO AND INCLUDES ANY LEGALLY RECOGNISED ACTION, SUIT, PROCEEDING, DEMAND, DAMAGE, COST OR EXPENSE HOWEVER ARISING AND INCLUDING, BUT NOT LIMITED TO NEGLIGENCE.
PLEASE NOTE: IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW, YOU WILL NOT BE ABLE TO ACCESS THE SERVICES PROVIDED BY REFRESH YOUR STICK, OR THE REFRESH YOUR STICK WEBSITE OR ANY AFFILIATES AND/OR AGENTS IN THEIR CAPACITY AS AFFILIATES AND/OR AGENTS OF REFRESH YOUR STICK.
IN CONSIDERATION OF REFRESH YOUR STICK AGREEING TO PROVIDE THE SERVICES SPECIFIED ON THE REFRESH YOUR STICK WEBSITE AND IN CONJUNCTION WITH ANY AFFILIATED AGENCY I ACKNOWLEDGE AND AGREE THAT:
1. Registration: In order to utilise the services provided, I acknowledge that I am required by Refresh Your Stick to become a registered user. In this agreement, a registered user is a user who has created an account through the Refresh Your Stick website (www….com.au).
1a. In becoming a registered user with Refresh Your Stick, I agree to provide truthful, accurate and current information about myself as defined by the user registration form on the Refresh Your Stick website.
1b. I agree to promptly update any changes in registration data to maintain truthful, accurate and current information.
1c. I am over 18 years of age, or if considered a legal minor, have obtained consent of a legal parent and/or guardian to use the services offered by Refresh You Stick.
1d. I am not barred from using such services under Australian Federal or State Law.
1e. I agree that I am responsible for any account activity that occur under your Refresh Your Stick account. In so doing, I further agree to monitor my account to restrict use by minors and I accept full responsibility for any unauthorised use of Refresh Your Stick property or services under the auspices of my account.
1f. I may not share my account or account password with anyone and agree to immediately inform Refresh Your Stick of any unauthorised access to my account or other form of security breach.
1g. I agree that if I you provide any information that is untrue, inaccurate, not current or incomplete, or Refresh Your Stick has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Refresh Your Stick will suspend your account. If further investigation reveals that untrue information has been provided, Refresh Your Stick reserves the right to terminate your account and refuse any current or future use of Refresh Your Stick services. I further agree not to create a registered account using a false identity or information, or on behalf of someone other than myself. I agree that I will not have more than one account at any given time. I agree that in the event of my account being suspended or terminated, I will not create an account with Refresh Your Stick if I have previously been removed or banned from Refresh Your Stick.
1h. I acknowledge and agree that I have no ownership or other proprietary interest in my account and further acknowledge and agree that all rights in and to my account are and shall forever be owned by Refresh Your Stick.
2. Payment: I agree to pay all fees and charges on my account in strict accordance with the fees, charges and billing terms effective at the time a fee and/or charge is due and payable. I agree to provide Refresh Your Stick with a valid credit card (from any issuer accepted by Refresh Your Stick). In doing so, I acknowledge that my payment provider agreement with the issuer of my credit card governs my use of the designated credit card and I must refer to that agreement and not this agreement with Refresh Your Stick, to determine my rights and liabilities. By providing Refresh Your Stick with my credit card payment information, I agree that Refresh Your Stick is authorised to invoice my registered account for all fees and charges due and payable to Refresh Your Stick.
2a. I agree to immediately notify Refresh Your Stick of any change to the billing address or credit card payment information provided.
2b. Security: If, and as required by Refresh Your Stick, I will provide Refresh Your Stick with a monetary security payment which will be held by Refresh Your Stick for the duration of my use of the hired/demo product service period. Subject to clauses 5, 6 and 7 below, that security amount will be refunded to me at the cessation of the service period. I acknowledge that the service period ceases only once the hired/demo product(s) have been returned and assessed by Refresh Your Stick.
2c. I acknowledge and agree that Refresh Your Stick reserves the right at any time to change its prices and billing methods upon informing me by means of the email provided by me.
2d. I agree that in cases of damaged, lost, stolen and late return of hired/demo product(s), my credit card will be charged without further authorisation from myself in accordance with replacement costs and/or applicable late return fees. I further agree and acknowledge that these charges will be in addition to any fees and charges you may owe to Refresh Your Stick.
2e. If as part of my Refresh Your Stick registration I choose a subscription plan or upgrade to a subscription plan I acknowledge and agree that the subscription will continue running for its initial designated time period of three months with no opt out and, as such, I will be charged accordingly. Thereafter, subscriptions plans are automatically renewed on a monthly basis and my provided credit card will be accordingly charged. If I wish to terminate a subscription plan, I must do so by informing Refresh Your Stick and acknowledging and agreeing that Refresh Your Stick requires thirty (30) days notice. Refresh Your Stick also allows me to pause my subscription for up to one (1) month per calendar year. I acknowledge and agree that I must inform Refresh Your Stick of my intention to pause my membership fourteen (14) days prior.
2f. If I have become a registered user and created a registered user account to access Refresh Your Stick’s services as part of a free trial offer or promotion, I agree that the offer or promotion must be used within the offer’s specified time limits. At the cessation of the trial or promotional period, my access to services provided by Refresh Your Stick will cease. I agree that if I wish to continue accessing the hired/demo product(s) and services provided by Refresh Your Stick, I must pay either an applicable hire fee or become a subscriber.
2g. In cases where I believe I have been incorrectly billed, I agree it is my responsibility to notify Refresh Your Stick within seven (7) days. If I do not, I acknowledge any subsequent dispute will be waived.
3. Assumption of Risk: Surfing and the use of the hired/demo product(s), even in accordance with its intended use, is inherently dangerous. I acknowledge that I am exposed to certain risks in using the hired/demo product(s) including but not limited to physical hazards, unpredictable and sometimes dangerous surf and weather conditions and the actions of other persons. I acknowledge that accidents can and often do happen which may result in me being injured or even killed, and/or the hired/demo product(s) being lost or damaged. I have voluntarily read and understood this warning and accept and assume the inherent risks and any subsequent costs incurred in using the hired/demo product(s).
4. Use of Hired/Demo Product(s): I acknowledge and agree that any advice, recommendation, information or other services provided by Refresh Your Stick regarding the hired/demo product(s) and its use shall not be construed as contractual conditions, warranties or my exemption from liability for damage to the hired/demo products(s) or injury to myself. I agree that Refresh Your Stick shall not be liable, subject to clauses specifically outlined in this agreement, for any damage to hired/demo product(s) while in my possession, nor will Refresh Your Stick be liable for any injuries or death that may occur while the hired/demo product(s) are in my possession. I furthermore acknowledge and agree that Refresh Your Stick will not be held liable by me or any third party for any loss, damage, injury or death sustained by me as a result of incorrect advice, recommendation, information or services provided by Refresh Your Stick regarding the hired/demo product(s) or the methods or conditions of use of the hired/demo product(s) whether such loss was caused by any act of negligence, act of recklessness or any breach of duty of care which may be owed to me by Refresh Your Stick.
5. Exclusion of Implied Terms: Where I am a consumer of recreational services and equipment such as the hired/demo product(s) supplied by Refresh Your Stick, as defined by any relevant law, certain terms and rights usually implied in a contract for goods and services may be excluded. I acknowledge that these implied terms, as well as other terms and rights that may be commonly implied in consumer contracts by statute, and any liability of Refresh Your Stick flowing from them, are expressly excluded to the extent possible by law, by this agreement. To the extent of any liability arising, the liability of Refresh Your Stick will be limited to the resupply of the services or payment of having the service(s) resupplied. Under no circumstances will Refresh Your Stick’s liability extend to consequential loss.
6. Release and Indemnity: In consideration of Refresh Your Stick agreeing to hire/demo to me the hired/demo product(s) I, to the extent permitted by law: (a) release and will release Refresh Your Stick from all Claims that I may have or may have had but for this release arising from or in connection with my hire/demo and use of the hired/demo product(s); and (b) indemnify and will keep indemnified Refresh Your Stick in respect of any Claim by any person arising as a result of or in connection with my hire/demo or use of the hired/demo product(s).
7. Damage to Hired/Demo Product(s)/ Loss or Theft of Hired/Demo Products: I agree to accept all responsibility and liability for any loss of or damage to the hired/demo product(s), however caused, which occurs during the course of my hire/demo period of the hired/demo product(s). I agree to compensate Refresh Your Stick for any and all loss of or damage to the hired/demo product(s), including, if required by Refresh Your Stick, the replacement of the hired/demo product(s), which may occur during the course of my hire/demo of the hired/demo product(s) and authorise Refresh Your Stick to apply any security amount (as per clause 1 of this agreement) provided by me to Refresh Your Stick against the costs of such compensation. Furthermore, as per clause 2d above, I agree that in instances where the security amount is inadequate in covering the cost ($850 AUD), my credit card provided to Refresh Your Stick will be charged without further authorisation from myself.
8. Late Return of Hired/Demo Product(s): I agree that my failure to return hired/demo product(s) to Refresh Your Stick within the agreed upon time frame will result in additional fees. I authorise Refresh Your Stick to deduct these additional fees from the security amount provided by me to Refresh Your Stick, as per clause 2b of this agreement.
9. Non-return of Hired/Demo Product(s): In cases where Refresh Your Stick believe that hired/demo product(s) have been stolen, I acknowledge that I will be reported to law enforcement authorities, and subject to criminal investigation. I also acknowledge that in such instances I will forfeit the entire security amount provided to Refresh Your Stick. I further acknowledge that I may be pursued for further compensation costs by Refresh Your Stick and their legal representatives in instances where your credit card payment information cannot be used or does not adequately meet Refresh Your Stick’s compensation costs as per clause 2d above.
10. Fitness to Participate: I declare that I am medically and physically fit and able to participate in the sport of surfing and to use the hired/demo product(s). I understand and accept that Refresh Your Stick will rely upon this agreement as evidence of my fitness and ability to properly use the hired/demo product. As per clause 3 of this agreement, Refresh Your Stick will not be in any way liable for any injury or death caused while using the hired/demo product(s) suffered by myself or to third parties as a result of my physical condition or any medical conditions I may suffer from prior to or at the time of my use of the hired/demo product(s).
11. Privacy: I understand that the information I have provided above is necessary for the objects of Refresh Your Stick. I acknowledge and agree that the information will only be used for the objects of Refresh Your Stick and its general business. I understand that I will be able to access the information through Refresh Your Stick upon reasonable notice. If I neglect to provide any of the required information as specified by Refresh Your Stick in its application process, my application to use Refresh Your Stick’s services and hired/demo products may be rejected.
12. Severance: If any provision of this agreement is invalid or unenforceable in any jurisdiction, the phrase or clause is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable. If the phrase or clause cannot be so read down it will be severed to the extent of the invalidity or unenforceability. Such severance does not affect the remaining provisions of this agreement or affect the validity or enforceability of it in any other jurisdiction.
13. Governing Law: This agreement is governed by and construed in accordance with the law of the State of Victoria and the parties irrevocably submit to the jurisdiction of the courts of that State.
14. Statement: I declare that I have provided all the requested information as required above and I warrant that all information provided is true and correct. I acknowledge that I understand and comply with this agreement in full. I further acknowledge this agreement cannot be amended and any amendments made by myself or a related third party will result in its non-acceptance by Refresh Your Stick.
I have read, understood, acknowledge and agree to the above terms including the warning, exclusion of implied terms, release and indemnity.