TERMS OF USE 

Welcome to Breakawave Pty Ltd.

In these terms, we also refer to Breakawave Pty Ltd as “Company”,  “our”, “we”, or “us”.

And you are you!

What are these terms about?

These terms apply when you use this website, being https://www.breakawave.com.au/, https://www.breakawave.com, and any other websites we operate with the same domain name and a different extension (“Website”).

These terms also apply when you purchase products from our Preferred Business (“Preferred Business’ Offerings”) or when you purchase a subscription for any services listed on our Website (“Subscription”). 

If you’re looking for our Privacy Policy, which we will comply with and you also agree to be bound by, you can find it here www.breakawave.com.au/privacy. 

How do I read these terms?

We separated these terms into three parts, so they are easy to read and understand.

Those parts are:

• Part A: Terms for when you buy Preferred Business’ Offerings or a Subscription (applies when you buy)

• Part B: Terms for when you browse and interact with this Website (applies when you browse)

• Part C: Liability and warranties, and interpretation provisions (applies to both buying and browsing)

Please let us know if you have any questions about these terms, and don’t continue using this Website or purchase any Preferred Business’ Offerings unless you have read and agree to these terms.

I’ve returned to your Website, do I need to read these terms again?

Please note that we may change any part of these terms at any time by updating this page of the Website, so you may find that different terms apply next time you use this Website or purchase Preferred Business’ Offerings. You can check the date at the top of this page to see when we last updated these terms.

Part A: For When You Buy

1 Preferred Business’ Offerings

(a) The Company has curated a network of third party businesses that it has long-standing relationships with and are, in the opinion of the Company, of a high quality and standard (Preferred Business). 

(b) You acknowledge and agree that:

(i) if you agree to purchase a product or from form a Preferred Business, that will constitute your offer and intention to enter into a contract with the Preferred Business directly; 

(ii) any terms and conditions relating to services or a quote provided by the Preferred Business are solely between you and the relevant Preferred Business and does not involve the Company in any way, except that such terms and conditions must not be inconsistent with your or the Preferred Business’s obligations under this agreement; and 

(iii) the Company is a merely a medium that facilitates the introduction of customers (such as yourself) and Preferred Business as described on the Website. The Company simply collects a service fee in consideration for providing this introduction service and does not have any obligations or liabilities to, and is not a party to any contract between you and the Preferred Business in relation to such services or otherwise resulting from the introduction.

(c) All payment obligations will be organised between you and the Preferred Business.  We may have a record of such transaction but are in no way involved in the pricing or any payment obligations. 

2 CANCELLATIONS

(a) The Company will have no liability or obligation to you if a Preferred Business cancels a Preferred Business Product after it has been agreed and you will not be entitled to any compensation from the Company in relation to any such cancellation, including any portion of the Service Fee.

(b) If you wish to cancel services specified in an agreed Preferred Business Product, before the Preferred Business has performed them, you must contact the Preferred Business. If the Company decides to investigate your cancellation, you must provide assistance and information to the Company as reasonably requested.

3 Purchase of a subscription 

(a) (Scope of Subscription) If you purchase a Subscription from our Website, you agree that the Subscription includes the benefits and limitations set out on our Website for the tier of your subscription package as selected by you at the point of purchase (Subscription Type), or as otherwise communicated to you when you subscribe for your Subscription (as amended from time to time by notice to you). 

(b) (Term of Subscription) Your Subscription will start, (if applicable) on the date you make purchase and continue to automatically renew for your selected subscription period at the end of each subscription period unless you cancel your subscription for in accordance with these Terms. 

(c) (Fees) The applicable fees for the Subscription are as displayed on the Website. All Fees are in Australian Dollars.  

(d) (Payment obligations) Unless otherwise agreed in writing, you must pay the Fees for the Subscription at the point of purchase and full payment is required upfront prior to any Sessions.

(e) (GST) Unless otherwise indicated, amounts stated on the Website include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.

(f) (Card surcharges) We reserve the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

(g) (Online payment partner) We may use third-party payment providers (Payment Providers) to collect payments for the Subscription. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider. If an error does occur, we will use our best efforts to work with our Payment Providers to rectify the issues. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment of the Fees.

(h) (Pricing errors) In the event that we discover an error or inaccuracy in the Fees, we will attempt to contact you and inform you of this as soon as possible

4 LINKED BUSINESSES

You acknowledge and agree that:

(a) the Company provides introductions to Preferred Business owned and operated by third parties that are not under the control of the Company;

(b) you may be subject to the terms and conditions of that Preferred Business (Third Party Terms); 

(c) you have the right to reject any Third Party Terms however you reject the Third Party Terms, the Preferred Business may not be able to provide the Preferred Business’ Offerings to you;

(d) he provision by the Company of introductions to Preferred Business does not imply any endorsement or recommendation by the Company of any Preferred Business; 

(e) the Company does not examine, determine or warrant the certification and/or licensing, competence, solvency or information of any Preferred Business who uses or is listed on the Platform; and

(f) any terms and conditions relating to a Preferred Business Product or quote provided via the Company constitutes a contract between you and the Preferred Business once agreed and does not involve the Company in any way.

6. COMMUNICATION OUTSIDE THE PLATFORM

(a) You must not communicate with a Preferred Business, or request or entice a Preferred Business to communicate with you, outside the Platform (except in the course of accepting Preferred Business services that were agreed in a Preferred Business Product).

(b) The Company, in its absolute discretion, may suspend you from using the Services if it finds or suspects that you have breached or are in breach of this clause 5.

Part B: For When You Browse This Website

6 ACCESS AND USE OF THE WEBSITE

You must only use the Website in accordance with these terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with these terms and any applicable laws.

7 YOUR OBLIGATIONS

You must not:

(a) copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without the express consent of the Company;

(b) use the Website for any purpose other than the purposes of browsing, selecting or purchasing Preferred Business’ Offerings;

(c) use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;

(d) use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;

(e) use the Website with the assistance of any automated scripting tool or software;

(f) act in a way that may diminish or adversely impact the reputation of the Company, including by linking to the Website on any other website; and

(g) attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:

(i) gaining unauthorised access to Website accounts or data;

(ii) scanning, probing or testing the Website for security vulnerabilities;

(iii) overloading, flooding, mailbombing, crashing or submitting a virus to the Website; or

(iv) instigate or participate in a denial-of-service attack against the Website.

8 INFORMATION ON THE WEBSITE

(a) While we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that from time to time, you may encounter the following issues:

(i) the Website may have errors or defects (or both, as the case may be);

(ii) the Website may not be accessible at times;

(iii) messages sent through the Website may not be delivered promptly, or delivered at all;

(iv) information you receive or supply through the Website may not be secure or confidential; and

(v) any information provided through the Website may not be accurate or true.

(b) We reserve the right to change any information or functionality on the Website by updating the Website at any time without notice, including product descriptions, prices and other Website Content (as defined below).

9 INTELLECTUAL PROPERTY

(a) The Company retains ownership of the Website and all materials on the Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Website Content) and reserves all rights in any intellectual property rights owned or licensed by it not expressly granted to you.

(b) You may make a temporary electronic copy of all or part of the Website for the sole purpose of viewing it. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Website or any Website Content without prior written consent from the Company or as permitted by law.

(c) In this clause 9, “intellectual property rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.

10 LINKS TO OTHER WEBSITES

(a) The Website may contain links to other websites that are not our responsibility. We have no control over the content of any linked websites, and we are not responsible for that content.

(b) Inclusion of any linked website on the Website does not imply our approval or endorsement of the linked website.

11 THIRD PARTY PLATFORM

(a) This Website is powered by a third party platform and the terms and conditions of that third party may apply to your use of this Website to the extent applicable to you. Those terms can be accessed here: https://www.squarespace.com/terms-of-service. 

(b) To the maximum extent permitted under applicable law and our agreement with our third party platform provider, we will not be liable for any acts or omissions of that third party, including in relation to any fault or error of the Website or any issues experienced in placing an order for the Preferred Business’ Offerings.

12 SECURITY

To the maximum extent permitted by law, the Company does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Website. You should take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference.

13 REPORTING MISUSE

If you become aware of misuse of the Website by any person, any errors in the material on the Website or any difficulty in accessing or using the Website, please contact us immediately using the contact details or form provided on our Website.

Part C: Liability And Other Legal Terms

14 Disclaimer 

The Company merely facilitates the connection of end customers to Preferred Business and simply collects a fee in consideration for providing such services and does not have any obligations or liabilities to, and is not a party to any contract between the end customer and the Preferred Business in relation to such introductions or any other claims otherwise resulting from the introductions.

15 LIABILITY

15.1 WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.

(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Preferred Business may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

15.2 LIABILITY

(a) To the maximum extent permitted by law the total liability of each party in respect of loss or damage sustained by the other party in connection with these terms is limited to the total Fees paid by you to the Company in the 3 months preceding the date of the event giving rise to the relevant liability. 

(b) Claims for loss of or damage in connection with the Preferred Business’ Offerings must be made against the Preferred Business.

15.3 Consequential loss

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement, any Subscription, any Preferred Business’ Offerings or services provided by us, except:

(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or

(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

16 GENERAL

16.1 GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

16.2 WAIVER

No party to these terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

16.3 SEVERANCE

Any term of these terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of these terms is not limited or otherwise affected.

16.4 JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

16.5 ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under these terms without the prior written consent of the other party.

16.6 COSTS

Except as otherwise provided in these terms, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing these terms.

16.7 ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these terms.

16.8 INTERPRETATION

(a) (singular and plural) words in the singular includes the plural (and vice versa);

(b) (currency) a reference to $, or “dollar”, is to Australian currency;

(c) (gender) words indicating a gender includes the corresponding words of any other gender;

(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

(g) (these terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these terms, and a reference to these terms includes all schedules, exhibits, attachments and annexures to it;

(h) (document) a reference to a document (including these terms) is to that document as varied, novated, ratified or replaced from time to time;

(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;

(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and

(k) (adverse interpretation) no provision of these terms will be interpreted adversely to a party because that party was responsible for the preparation of these terms or that provision.

17 NOTICES 

(a) Any notices required to be sent under this agreement must be sent via email to support@breakawave.com.au using the party’s email addresses set out in this agreement, and the email’s subject heading must refer to the name and date of this agreement. 

(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent. 

(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.