TERMS AND CONDITIONS OF SALE
1. Definitions and Interpretation
1.1 In these Terms: “Seller” means Surfbee Pty Ltd (ABN 13 667 014 100) of 248 Schubach Street, East Albury NSW 2640, Australia; “Buyer” means the person, company, or entity purchasing Goods from the Seller; “Goods” means the products supplied by the Seller, including autonomous surface vessels (ASVs), electronic hardware, cables, mounting hardware, sensors, spare parts, and accessories, together with any embedded software or firmware; “Reseller” means a Buyer that purchases Goods for resale under a Reseller Agreement; “Reseller Agreement” means a written distribution or reseller agreement executed between the Seller and a Reseller; “ACL” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth); “Incoterms” means Incoterms® 2020 published by the International Chamber of Commerce; “Warranty Conditions” means the Surfbee Limited Manufacturer's Warranty (document W-100) current at the date of the order, as published at [surfbee.io/warranty] and provided with the Goods.
1.2 These Terms apply to all quotations issued and all orders accepted by the Seller. They supersede any terms proposed by the Buyer, including terms contained in any purchase order, unless expressly accepted by the Seller in writing.
1.3 Where the Buyer is a Reseller with a current Reseller Agreement, the Reseller Agreement prevails over these Terms to the extent of any inconsistency. These Terms apply to all matters not addressed in the Reseller Agreement.
2. Quotations and Orders
2.1 Quotations are valid for thirty (30) days from the date of issue unless stated otherwise, and may be withdrawn or revised by the Seller at any time before acceptance of an order.
2.2 A binding contract is formed only when the Seller accepts the Buyer's order in writing (including by order confirmation issued from the Seller's ERP system) or delivers the Goods, whichever occurs first.
2.3 Orders accepted by the Seller are firm and may not be cancelled, varied, or rescheduled by the Buyer without the Seller's prior written consent. Where the Seller consents to a cancellation, the Buyer shall reimburse the Seller for all costs incurred up to the date of cancellation, including materials, labour, non-returnable components, and supplier commitments.
2.4 Configured or built-to-order Goods, including autonomous surface vessels and integrated sensor packages, are manufactured to the Buyer's specification and are non-cancellable and non-returnable once the order is accepted.
3. Prices and Taxes
3.1 Prices are as stated in the Seller's quotation. Unless stated otherwise, prices are exclusive of GST, other taxes, duties, levies, freight, insurance, packaging for export, and any charges arising from the applicable Incoterm.
3.2 For supplies made within Australia, GST will be added at the prevailing rate and itemised on the Seller's tax invoice. For export supplies, the Buyer is responsible for all import duties, tariffs, taxes, and clearance charges in the country of destination.
3.3 The Seller may adjust quoted prices before order acceptance to reflect changes in exchange rates, supplier costs, tariffs, or statutory charges.
4. Payment
4.1 Unless otherwise agreed in writing, payment is due in full in advance (prepaid) before the Goods are dispatched or made available for collection.
4.2 Buyers holding an approved credit account with the Seller may pay within fifteen (15) days from the date of invoice. Credit accounts are granted, limited, suspended, or withdrawn at the Seller's sole discretion.
4.3 If any amount is not paid when due, the Seller may, without limiting its other rights: charge interest on the overdue amount at the rate prescribed under section 101 of the Civil Procedure Act 2005 (NSW), calculated daily; suspend production, deliveries, warranty service, and technical support; require prepayment for further orders; and recover all costs of collection, including legal costs on a full indemnity basis.
4.4 The Buyer must pay all amounts without set-off, deduction, withholding, or counterclaim of any kind.
5. Delivery
5.1 International orders are delivered FCA (Free Carrier) at the Seller's nominated facility or point of handover in Australia, Incoterms® 2020, unless a different Incoterm is agreed in writing or specified in the applicable Reseller Agreement. The Buyer is responsible for nominating the carrier, main carriage, insurance, export documentation requirements it must satisfy as importer, and all costs from the point of delivery.
5.2 Domestic orders within Australia are delivered to the address stated in the order confirmation. Freight and handling are charged in addition to the price unless stated otherwise.
5.3 Delivery dates are estimates only, given in good faith. The Seller is not liable for any loss arising from delay in delivery, and delay does not entitle the Buyer to cancel an order except where the delay exceeds ninety (90) days and is not caused by the Buyer or a Force Majeure Event.
5.4 The Seller may deliver by instalments. Each instalment is treated as a separate contract and may be invoiced separately.
5.5 If the Buyer fails to take delivery or provide adequate shipping instructions, the Seller may store the Goods at the Buyer's risk and expense, and delivery is deemed to have occurred for the purposes of payment and risk.
6. Risk and Title
6.1 Risk in the Goods passes to the Buyer in accordance with the applicable Incoterm for international orders (for FCA, upon handover to the first carrier), and upon delivery to the nominated address for domestic orders.
6.2 Title in the Goods remains with the Seller until the Seller has received payment in full of all amounts owing by the Buyer on any account. Until title passes, the Buyer must store the Goods so they are identifiable as the Seller's property, must insure them for their full replacement value, and holds any proceeds of an authorised resale on trust for the Seller.
6.3 The Buyer acknowledges that clause 6.2 creates a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA) and consents to the Seller registering that interest on the Personal Property Securities Register. To the extent permitted, the parties contract out of the PPSA provisions listed in section 115(1) that may be excluded, and the Buyer waives its right to receive any notice or verification statement under the PPSA.
7. Inspection and Claims
7.1 The Buyer must inspect the Goods promptly on delivery and notify the Seller in writing of any shortage, incorrect supply, or visible transit damage within seven (7) days of delivery, failing which the Goods are deemed accepted as delivered, subject to clause 9 and any rights under the ACL that cannot be excluded.
7.2 Claims for transit damage on international orders must also be pursued by the Buyer against the carrier and its insurer, risk having passed under the applicable Incoterm.
8. Returns
8.1 Goods may not be returned except under a valid warranty claim in accordance with clause 9, or as required by the ACL. All sales are otherwise final.
8.2 No Goods may be returned without a Return Material Authorisation (RMA) number issued in advance by the Seller. Goods returned without a valid RMA number may be refused and returned to the Buyer at the Buyer's expense.
8.3 Returned Goods must comply with the conditions stated in the RMA, including being shipped in adequate protective packaging (in original packaging where available), with batteries prepared and declared in accordance with applicable dangerous-goods regulations, decontaminated where the Goods have been deployed in the field, and accompanied by the RMA number, a description of the fault, and proof of purchase.
9. Warranty
9.1 The Goods are covered by the Seller's manufacturer warranty against defects in materials and workmanship for twelve (12) months from the date of delivery, extended to a maximum of twenty-four (24) months where a longer minimum period is required by mandatory applicable law in the Buyer's jurisdiction.
9.2 The warranty is provided strictly subject to, and on the conditions, exclusions, limitations, and claim procedures set out in, the Warranty Conditions, which form part of these Terms and prevail over this clause 9 to the extent of any inconsistency. The Buyer acknowledges having been given the opportunity to review the Warranty Conditions before ordering, and copies are available from the Seller on request at any time.
9.3 Without limiting the Warranty Conditions, warranty coverage is conditional on the Goods being operated, maintained, stored, and transported in accordance with the Seller's documentation, and all warranty claims must follow the RMA procedure in clause 8. If no defect is found, or the claim is excluded under the Warranty Conditions, the Seller may charge a reasonable inspection fee plus return freight.
9.4 Third-party sensors and equipment not manufactured by the Seller carry their own manufacturer's warranty only, which the Seller will pass through to the Buyer to the extent it is able.
9.5 For Resellers: the warranty is provided to the Reseller. Any warranty the Reseller extends to its own customers is the Reseller's sole responsibility, and the Reseller must not make representations about the Goods or the warranty beyond the Seller's published documentation and the Warranty Conditions.
10. Australian Consumer Law
10.1 Nothing in these Terms excludes, restricts, or modifies any consumer guarantee, right, or remedy under the ACL or any other statute that cannot lawfully be excluded, restricted, or modified.
10.2 Where the Buyer acquires Goods as a “consumer” within the meaning of the ACL, the following applies: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
10.3 Where the Goods are not of a kind ordinarily acquired for personal, domestic, or household use, the Seller's liability for a failure to comply with a consumer guarantee is limited, at the Seller's option, to the replacement of the Goods or the supply of equivalent goods, the repair of the Goods, or the payment of the cost of replacement or repair, as permitted by section 64A of the ACL.
10.4 The benefits given by the warranty in clause 9 are in addition to other rights and remedies available to the Buyer under law.
11. Intended Use, Specifications, Technical Advice, and Buyer Equipment
11.1 The Goods are designed and recommended for use in hydrographic, hydrological, and related environmental monitoring applications in fresh water, and are not intended for military use. Use of the Goods outside their intended applications is at the Buyer's sole risk and may void warranty coverage as set out in the Warranty Conditions.
11.2 The Seller pursues continuous product improvement and may modify the design, components, firmware, or specifications of the Goods without notice, provided the modification does not materially reduce the performance of Goods already on order. Descriptions, images, and performance figures in catalogues, websites, and marketing material are indicative only and do not form part of the contract unless expressly stated in the quotation.
11.3 Any technical advice, application engineering, integration guidance, or recommendation provided by the Seller (including regarding mounting configurations, sensor selection, or deployment conditions) is given in good faith but without warranty. The Buyer is solely responsible for determining that the Goods are suitable for the Buyer's intended application, operating environment, and regulatory context, and does not rely on the Seller's skill or judgement in that respect except as expressly stated in the quotation.
11.4 Where the Buyer supplies its own equipment (including sensors, ADCPs, payloads, or communications hardware) for integration with or installation on the Goods, such equipment remains at the Buyer's risk, is not covered by the Seller's warranty, and the Buyer warrants it is fit for integration and lawful to supply. The Seller is not liable for damage to, or caused by, Buyer-supplied equipment except to the extent caused by the Seller's negligence.
12. Limitation of Liability and Indemnity
12.1 Subject to clause 10, and to the maximum extent permitted by law: (a) the Seller's total aggregate liability arising out of or in connection with any order, whether in contract, tort (including negligence), statute, or otherwise, is limited to the price paid by the Buyer for the Goods giving rise to the claim; and (b) the Seller is not liable for any loss of profit, revenue, data, use, or opportunity, business interruption, cost of substitute goods, vessel recovery or salvage costs, or any indirect, incidental, special, or consequential loss, even if advised of the possibility of such loss.
12.2 The Buyer is solely responsible for the safe and lawful deployment and operation of the Goods, including compliance with maritime, navigation, radio-spectrum, and safety regulations applicable in the area of operation, obtaining any required permits or authorisations, and maintaining appropriate insurance.
12.3 The Buyer indemnifies the Seller against all claims, losses, and costs (including legal costs) arising from third-party claims to the extent caused by the Buyer's use, deployment, modification, or resale of the Goods otherwise than in accordance with the Seller's documentation and these Terms, or by the Buyer's breach of law, except to the extent caused by the Seller's negligence or breach.
12.4 The Buyer must notify the Seller of any claim within twelve (12) months of the event giving rise to it, failing which the claim is barred to the extent permitted by law.
13. Intellectual Property and Software
13.1 All intellectual property rights in the Goods, including designs, hardware, firmware, software, documentation, and trade marks, are and remain the property of the Seller or its licensors. No rights are transferred to the Buyer other than the right to use the Goods as intended.
13.2 Embedded firmware and any supplied software are licensed, not sold, to the Buyer on a non-exclusive, non-transferable basis (transferable only with the Goods in which they are embedded) solely for use with the Goods. The Buyer must not copy, modify, decompile, reverse-engineer, or extract any software or firmware except to the extent permitted by law that cannot be excluded.
13.3 The Seller may make firmware or software updates available from time to time. The Buyer must install updates designated by the Seller as safety-critical or mandatory within a reasonable time; failure to do so may void warranty coverage for related failures as set out in the Warranty Conditions. The Seller has no obligation to maintain or update software beyond the Warranty Period.
13.4 Resellers may use the Seller's trade marks solely as authorised in the Reseller Agreement or otherwise in writing, and only to promote and resell the Goods.
14. Export Controls, Sanctions, and Anti-Bribery
14.1 The Goods, including associated software and technology, may be subject to export control laws and regulations of Australia and other jurisdictions, including the Defence Trade Controls Act 2012 (Cth) and the Customs Act 1901 (Cth). The Buyer must not export, re-export, transfer, or divert the Goods contrary to any applicable export control or sanctions law, and must obtain any licences required for its own import, use, or onward supply of the Goods.
14.2 The Buyer warrants that it is not, and is not owned or controlled by, a person listed on any applicable sanctions list, and that the Goods will not be used in connection with weapons of mass destruction or any prohibited military end use. On the Seller's request, the Buyer must provide end-user and end-use statements.
14.3 The Seller may withhold or suspend delivery, or cancel an order, without liability where it reasonably believes a supply would breach any export control or sanctions law, or where a required licence or approval has not been obtained.
14.4 Each party must comply with all applicable anti-bribery and anti-corruption laws in connection with the sale and resale of the Goods, and must not offer or accept any improper payment or advantage.
15. Confidentiality
15.1 Each party must keep confidential all non-public information received from the other in connection with an order, including pricing, technical documentation, and specifications, and use it only for the purpose of performing the contract. This obligation survives completion of the order and does not apply to information that is public through no fault of the recipient or that must be disclosed by law.
16. Force Majeure
16.1 The Seller is not liable for any failure or delay in performance caused by events beyond its reasonable control, including acts of God, natural disasters, epidemics, war, terrorism, civil unrest, government action, export or import restrictions, sanctions, strikes, component or supply shortages, carrier delays, and failures of utilities or communications (each a “Force Majeure Event”). Performance is suspended for the duration of the Force Majeure Event. If a Force Majeure Event continues for more than ninety (90) days, either party may cancel the affected order on written notice, and the Seller shall refund any prepayment for Goods not delivered, less costs reasonably incurred.
17. Default and Termination
17.1 The Seller may suspend supply or terminate any order on written notice if the Buyer fails to pay any amount when due, breaches these Terms and does not remedy the breach within fourteen (14) days of notice, or becomes insolvent, enters administration or liquidation, or ceases to carry on business.
17.2 On termination, all amounts owing by the Buyer become immediately due, and the Seller may exercise its rights under clause 6, including repossessing Goods in which title has not passed. For that purpose, the Buyer irrevocably authorises the Seller to enter premises where the Goods are located.
18. General
18.1 Notices must be in writing and are validly given by email to the address stated on the quotation or order confirmation.
18.2 The Buyer may not assign its rights or obligations without the Seller's prior written consent. The Seller may subcontract manufacture or delivery.
18.3 A failure or delay by either party to exercise a right is not a waiver of that right. If any provision of these Terms is invalid or unenforceable, it is severed and the remaining provisions continue in force.
18.4 These Terms, the Warranty Conditions, the Seller's quotation, the order confirmation, and any applicable Reseller Agreement constitute the entire agreement between the parties in relation to the Goods and supersede all prior negotiations and representations. Any variation must be in writing and signed by the Seller.
18.5 The Seller may update these Terms from time to time. The version current at the date of the quotation applies to the resulting order.
18.6 Nothing in these Terms creates a relationship of agency, partnership, employment, or joint venture. A Reseller purchases and resells in its own name and for its own account and has no authority to bind the Seller.
18.7 Clauses 4 (Payment), 6 (Risk and Title), 9 (Warranty), 10 (ACL), 12 (Liability and Indemnity), 13 (IP and Software), 14 (Export Controls), 15 (Confidentiality), and 19 (Governing Law) survive completion or termination of any order.
19. Governing Law and Jurisdiction
19.1 These Terms and every contract for the sale of Goods are governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.
19.2 The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) is expressly excluded.