Terms and Conditions
Sphere Communications Pty Ltd (ABN 61 003 102 663) (“We”, “Us”, “Our”) is an authorised Australian supplier of drones (“UAVs”), drone components and a range of other high-technology product (“Products”). We also provide a drone repair service (“Repairs”).
THESE TERMS AND CONDITIONS GOVERN YOUR PURCHASE OF PRODUCTS AND/OR REQUEST FOR REPAIRS AND FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. YOU ACKNOLWEDGE THAT THESE TERMS AND CONDITIONS APPLY TO YOUR PURCHASE OF PRODUCTS AND/OR REQUEST FOR REPAIRS. BY PURCHASING PRODUCTS AND/OR REQUESTING REPAIRS YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THESE TERMS AND CONDITIONS.
1. Compliance and Safety
1.1 You must not use the Products in any way that breaches a statute, rule, regulation, proclamation, order in council, ordinance or by-law, whether Commonwealth, state, territorial or local (“Law”), including, but not limited to, the Civil Aviation Safety Regulations 1998 (Cth) (“CASA Regulations”) as amended from time to time and available at <http://www.comlaw.gov.au/>.
1.2 Without limiting paragraph 1.1, you expressly acknowledge that, in accordance with the CASA Regulations, those of the Products which are capable of flight:
(a) must not be operated for a commercial purpose, unless a licence is obtained from the Civil Aviation Safety Authority; and
(b) must not be operated in certain areas, at certain heights, or within certain proximities of other people.
1.3 All of the Products are accompanied by safety instructions and, in some cases, manuals containing information relevant to the safe operation of the Products. By purchasing the Products, you agree to adhere to those safety instructions and any safety information contained in any product manual (whether available in hard copy or otherwise).
2. Conditions of Use
2.1 You must not use the Products in any manner which is unlawful, threatening or otherwise inappropriate.
2.2 You must ensure that your capturing or use of any data or information obtained through use of the Products (or any device subsequently fitted to the Products) is not illegal or prohibited by any applicable Law, in force from time to time, which pertains your use of the Products.
3. Damage and Total Loss to UAVs
3.1 You expressly acknowledge that you are aware that:
(a) the correct operation of the Products may be affected by radiofrequency (“RF”) interference including, but not limited to, RF emissions from mobile telephone towers;
(b) in particular, and without limiting paragraph (a) above, use of the Products may be adversely affected by RF and/or structural impediments such as buildings and bridges; and
(c) certain Products that are capable of flight have to been known to experience a “flyaway” issue as a result of interference by RF or structural impediments,
(together, the “Interferences”).
3.2 You expressly acknowledge that you fly any UAVs at your own risk. We are not responsible for any total loss of, or damage to, DJI Drones (or any Products fitted to any DJI Drones) due to any Interferences.
3.3 You expressly acknowledge that a number of the Products, including the DJI Drones, are capable of being modified by either:
(a) connecting the Products to a computer and modifying diagnostic software parameters; or
(b) replacing or adding new or modified parts to the Products;
3.4 You expressly acknowledge that any Modifications made to the Products are at your own risk.
3.5 For the avoidance of any doubt, you expressly acknowledge that total loss of, or damage to, the Products may arise, without any fault on Our behalf, due to:
(a) the effect of the Interferences on the Products, including, but not limited to, flyaway events;
(b) the effect of Modifications made by you, or someone on your behalf, to the Products;
(c) water damage to UAVs, as a result of You or an operator of the Products, allowing the UAV purchased by you to come into contact with rain, water or any other liquid, for whatever reason; and
(d) pilot error, being events that result in damage or total loss which occur whilst you or a third party is operating the Product, and do not arise due to the Interferences or mechanical or technical failure, but rather through inexperience or error of the operator.
3.6 We will not refund your purchase price where loss or damage to the Products arises in one or more of the circumstances described in paragraphs 3.5(a) to 3.5(c) above.
4. Warranties for Products manufactured by DJI
4.1 All DJI Products are covered by a manufacturer’s warranty, the details of which can be found [http://sphere.net.au/pages/dji-drone-warranty-terms-and-conditions] (“DJI Warranty”). You expressly acknowledge that the DJI Warranty terms limit the circumstances in which you may make a valid claim.
4.2 You are able to make a claim under the DJI Warranty via Us if you purchased a DJI Product from Us. While We will act as an intermediary between you and the manufacturer, you expressly acknowledge that any claim under the DJI Warranty is strictly a matter between you and the manufacturer.
4.3 If you wish to make a claim under the DJI Warranty, you must contact us and We will advise you on how to proceed under the DJI Warranty claim.
4.4 We make no guarantees as to whether or not the manufacturer will approve and repair your DJI Product under the DJI Warranty.
4.5 If you proceed with a claim under the DJI Warranty and you are directed by Us to send your DJI Product to Us, you are responsible for the cost of any associated postage.
5.1 You may request Us to conduct Repairs to Products you have purchased from Us or products you have purchased from a third party.
5.2 We will advise you of any costs associated with the Repairs.
5.3 If you contact us to seek to engage Us to assist you with Repairs, We will advise you with regard to the following:
(a) bringing or shipping your drone to us;
(b) our costs associated with conducting a preliminary inspection to determine what Repairs need to be made;
(c) our costs associated with conducting any Repairs;
(d) the costs for any parts or components on your drone that need to be replaced as part of the Repairs; and
(e) how long any Repairs will take to complete.
5.4 You are responsible for the cost of any postage associated with the Repairs.
6. Accuracy of Information
6.1 The information on Our website regarding the Products is sourced from third parties. While We endeavour to ensure that the content of Our website is correct and up to date, We take no responsibility for the accuracy, currency, reliability or correctness of any information that is sourced from third parties.
7. Limitation of liability
7.1 To the fullest extent permitted by law, We do not represent or warrant:
(a) that the Products will be suitable for your intended use; or
(b) that use of the Products will be error or defect-free, or that defects in the Products will be corrected.
7.2 Subject to these terms and conditions, to the fullest extent permitted by the law, We:
(a) exclude any and all liability to you for:
(1) any loss or damage of any kind (including liability to a third party), including but not limited to loss of revenue, business profits, goodwill or data, or indirect, consequential, incidental, special exemplary or punitive loss or damage (“Loss”), suffered by you in any way relating to these terms and conditions, including any Repairs and your use of the Products, regardless of the basis of such liability and even if advised of the likelihood of such Loss;
(2) any Loss suffered by you or any third party arising in any of the circumstances described in paragraphs 3.5(a) to 3.5(c) above, or any other circumstance beyond Our control;
(3) any Loss suffered by you or any third party arising from any Repairs;
(4) any Loss suffered by you or any third party arising during the transportation of the Products;
(5) any Loss suffered by you or any third party arising from your reliance on information on Our website sourced from third parties;
(b) exclude all terms, conditions, warranties and guarantees implied by custom, the general law or any Law;
(c) limit Our aggregate liability to you in connection with these terms and conditions, any Repairs or your purchase of the Products to the purchase price of the Products or the cost of the Repairs.
7.3 Any condition, warranty or guarantee that the Law applies to your purchase of the Products and/or request for Repairs under these terms and conditions is taken to be included in these terms and conditions, if that legislation renders void or prohibits contractual provisions which:
(a) exclude, restrict or modify; or
(b) which have the effect of excluding, restricting or modifying the application of, exercise of a right conferred by, or any liability under, such condition, warranty or guarantee (“Non-excludable Guarantee”).
7.4 To the maximum extent permitted by law, We limit Our liability for any breach of any Non-excludable Guarantee, at Our option, to one or more of the following:
(a) in respect of purchases of the Products:
(1) the replacement of the Product;
(2) the repair of the Product;
(3) the payment of the cost of replacing the Product; or
(4) the payment of the cost of having the Product repaired;
(b) in respect of requests for Repairs, the supplying of the Repair again, or the payment of the cost of having the Repair supplied again.
7.5 You expressly acknowledge and agree that:
(a) your use of the Products is entirely at your own risk;
(b) We make no warranties that the Products will be suitable for your intended use, that use of the Products will be fault-free, or that defects in the Products will be corrected;
(c) no advice or information, whether oral or written, obtained by you from Us, Our website or by your use of the Products will create any warranty not expressly included in these terms and conditions or required by law;
(d) to the maximum extent permitted by law, We exclude and limit Our liability to you in accordance with paragraphs 7.2(a) to 7.2(c) above.
8.1 You agree to indemnify and hold Us and Our officers, employees and agents (“Indemnified Parties”) harmless against all Loss suffered or incurred by the Indemnified Parties in connection with:
(a) any breach of these terms and conditions by you;
(b) any wilful misconduct by you; and/or
(c) any unlawful or negligent act or omission by you.
9. Orders and Payments
9.1 You may order Products by following the instructions on Our website.
9.2 Prices displayed on the Website are subject to change without notice. Once an Order has been accepted by Us and a Purchase Contract formed under clause 6, the price of the Product cannot be varied except by agreement in writing between you and Us.
9.3 We reserve the right to decline to sell Products to you and may cancel your order at any time prior to dispatch of the Products.
9.4 Any order for the Products must be paid for in full prior to delivery.
9.5 We do not accept any responsibility for orders that are declined, delayed or not accepted due to disruptions with internet connections.
9.6 Subject to clause 9.7 below, Your purchase of the Products is final. We will not refund the purchase price in circumstance where you have changed your mind or otherwise no longer wish to proceed with the transaction.
9.7 At our absolute discretion, we may provide you with a store credit to the value of your purchase in the event that you wish to exchange any Product purchased by you for another Product or Products in our store. We will provide such a credit only in circumstances where the Product and its packaging are returned complete and undamaged, that is in original condition, to Us by you.
9.8 We will not refund your purchase price where loss or damage to the Products arises in one or more of the circumstances described in paragraphs 3.5(a) to 3.5(c) above.
10. Dispute Resolution
10.1 Prior to a party initiating litigation (other than for equitable or interlocutory relief) due a dispute relating to these terms and conditions (“Dispute”), the affected party will notify the other party with the details of the Dispute and, within 14 days of the other party receiving that notification, a nominated representative from each party will meet together and attempt to resolve the Dispute in good faith.
11. Amendment to Terms and Conditions
11.1 We reserve the right to amend these terms and conditions at any time. Any amendments shall be effective immediately upon notification on Our website (http://sphere.net.au).
12. General Provisions
12.1 These terms and conditions constitute the entire agreement between you and Us regarding your purchase of the Products and/or request for Repairs.
12.2 Title and risk in the Products pass to you at the point of dispatch by Us to you. We do not accept any responsibility for any delays associated with the delivery of the Products to you by a third party.
12.3 If We waive, in whole or part, any rights available to Us under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
12.4 If any of these terms and conditions is held to be invalid, unenforceable or illegal for any reason, it is to be read down to give it as much effect as possible, or if it is not capable of having any effect at all, it is to be severed from these terms and conditions, in which case, the remainder of these terms and conditions shall nevertheless continue in full force.
12.5 The laws governing these terms and conditions will be the laws in the State of New South Wales, Australia and You irrevocably submit to the non-exclusive jurisdiction of the courts of that State, without regard to conflict of law provisions.