2.1OFFER TO PURCHASE

• By submitting an order for purchase of guided motorcycle tours, travel to and from guided tours and related activities (together, the Activities) using the Website’s functionality (Purchase Order) you represent and confirm that you:

  (i)have the legal capacity and are of sufficient age to enter into a binding contract with us; and

  (ii) are authorised to use the debit or credit card included in your order.

• Submitting a Purchase Order constitutes your intention and offer to enter into a contract, where we will provide you with the Activities you have ordered in exchange for your payment of the total amount listed upon checkout. A contract is not formed until we have approved your payment and you receive an email from us confirming that your order is being processed.
• DACA Tours has a minimum number of participants required for each Activity. After you submit a Purchase Order and your payment is approved, our email to you (in accordance with clause 1.1(b)) will specify whether that minimum has been reached for each Activity in your Purchase Order. If the minimum number of participants has not been reached for an Activity in your Purchase Order, then DACA Tours does not guarantee the supply of the Activity until the minimum number is reached, and your booking will only constitute a tentative booking. DACA Tours will notify you via email when the minimum number of participants is reached. If the minimum number of participants is not reached by the date [insert period of time] before the start date of the Activity, then we will notify you and issue you with a refund for the amount paid in respect of that Activity.
• These terms will apply to all your dealings with DACA Tours, from the date the Activities start being provided, including by being incorporated in all agreements, quotations, invoices or orders under which DACA Tours is to provide services to you, together with any additional terms (provided such additional terms are agreed in writing).
• You will be taken to have accepted these terms if you accept a quotation or invoice, or if you order, accept or pay for any services provided by DACA Tours after receiving or becoming aware of these terms.
• In the event of any inconsistency between these terms and any additional terms recorded in writing, the clauses of these terms will prevail to the extent of such inconsistency.

2.2SERVICES

• Subject to these Terms and your fulfilment of your payment obligations, DACA Tours will provide you with the Activities specified in the relevant Purchase Order.
• Unless otherwise agreed in writing, DACA Tours may, in its discretion, withhold any Activities or other services until you have paid amounts due and payable to us in respect of such Activities.

2.3CUSTOMER OBLIGATIONS

• (General obligations) The Customer must:

  (i)undertake all Activities in accordance with all oral and written instructions given to them by DACA Tours or its personnel;

  (ii) communicate with DACA Tours as reasonably requested for the purpose of enabling DACA Tours to provide the Activities;

  (iii)on the start date of an Activity, arrive promptly at the pick-up point, and on or before the pick-up time, notified to you by DACA Tours;

  (iv)provide DACA Tours with all documentation, information and assistance reasonably required for DACA Tours to provide the Activities;

  (v)comply with any safety guidelines and rules that DACA Tours’ personnel provide to them; and

  (vi)stop participating in any Activities, and alert DACA Tours or its personnel, if they have any concerns about their health or safety.

• (Pick up) If the Customer fails to arrive at a designated pick-up point on or before the time notified to the Customer, DACA Tours may conduct the Activity without the Customer and the Customer will not be entitled to a refund for the Activity.
• (Valid driver licence) The Customer represents and warrants that they will at all times during the course of the Activities maintain a valid driver licence for the motorcycle vehicle specified in the Purchase Order, or the Customer’s own vehicle to be used during the Activities, approved by DACA Tours (Vehicle).
• (Driver obligations) The Customer must ensure that the Vehicle is only used:

  (i)as part of the Activities;

  (ii)while the Customer is being supervised by DACA Tours’ personnel;

  (iii)in accordance with DACA Tours’ directions;

  (iv)in a proper and skilful manner;

  (v)in accordance with the Vehicle manufacturer’s requirements, recommendations and instruction manuals; and

  (vi)in accordance with all laws, rules and regulations applicable to the Vehicle and its use.

• (Driver prohibitions) The Customer must not, and must not allow any third party to:

  (i)use the Vehicle for any dangerous or illegal purpose, contest or performance test;

  (ii)allow the Vehicle to be driven by anyone else;

  (iii)use or allow the Vehicle to be used while the driver is under the influence of alcohol or drugs;

  (iv)use the Vehicle when it is damaged or unsafe;

  (v)make any alterations to the Vehicle;

  (vi)affix or install any accessories, equipment or device on or to the Vehicle without DACA Tours’ prior written consent; or

  (vii)use the Vehicle for the conveyance or towing of any load unless the Customer receives DACA Tours’ prior written consent and the load is correctly loaded and secured and not in excess of that for which the Vehicle was manufactured.

• (Accidents) If the Vehicle is involved in a road accident or claim while it is in the Customer’s possession, or if damage or loss is sustained to the Vehicle or the property of any third party in connection with the Vehicle, the Customer must:

  (i)promptly report the incident to the local police (if required by law);

  (ii)promptly report the incident in writing to DACA Tours;

  (iii)not, without DACA Tours’ prior written consent, make or give any offer, promise of payment, settlement, waiver, release or admission of liability in relation to the incident, except as required by law;

  (iv)permit DACA Tours or an insurer to bring, defend, enforce or settle any legal proceedings in the Customer’s name in relation to the incident; and

  (v)provide to DACA Tours, within a reasonable time, any statement, information or assistance which DACA Tours or an insurer requests, including by attending a lawyer’s office or a court to give evidence.

• (Insurance and damage) The Customer agrees and acknowledges that:

  (i) if the Vehicle is your Vehicle (which DACA Tours has approved), loss or damage to the Vehicle during the Activities, or otherwise while the Vehicle is in your possession, is your responsibility, and you release DACA Tours from all liability in respect of such loss or damage, and waive any and all claims or liabilities of any nature you may have against DACA Tours in this regard;

  (ii)while insurance exists in relation to the Vehicle (provided it isn’t your Vehicle), such insurance may not cover the Customer or the Customer’s use of the Vehicle and DACA Tours will have no obligation or requirement to insure the Customer’s use of the Vehicle under these Terms;

  (iii)unless it is your Vehicle, if the Vehicle is damaged, destroyed or stolen during the Activities, or otherwise when the Vehicle is in the Customer’s possession, the Customer must compensate DACA Tours for any costs of repair or replacement in relation to any loss, theft, damage or destruction;

  (iv)if the Vehicle is damaged, destroyed or stolen during the Activities, or otherwise when the Vehicle is in the Customer’s possession, and such damage, destruction or theft is covered by and compensated to DACA Tours under an insurance policy, then the Customer must pay the relevant excess amount to DACA Tours, as well as any other reasonable costs that DACA Tours incurs in relation to such damage, destruction or theft;

  (v)DACA Tours will invoice the Customer for any payment required to be made in under clause 2.3(g) and such an invoice will be payable immediately. The Customer must provide a proof of payment to DACA Tours as soon as the payment is made;

  (vi)the Customer must not do or permit anything to be done which may make the insurance in respect of the Vehicle invalid or able to be cancelled or which may increase the relevant insurance premiums; and

  (vii)if the Customer does anything which causes an insurance provider to decline to accept responsibility for any loss of, or damage to, the Vehicle arising during the Activities, or otherwise when the Vehicle is in the Customer’s possession, then the Customer will be responsible for the costs of repair or replacement of such loss or damage.

• (Travel insurance) The Customer must hold a travel insurance policy, reasonably acceptable to DACA Tours, for the duration of the Activities. The Customer must, on request, provide DACA Tours with a certificate of currency in respect of the travel insurance policy under this clause 2.3(g).

2.4VEHICLE OWNERSHIP, TITLE AND POSSESSION

• (Ownership)Unless the Vehicle is the property of the Customer (which has been approved by DACA Tours), the Vehicle is, and will at all times be and remain, the property of DACA Tours, (or the third party that DACA Tours has licensed or leased the Vehicle from, as applicable), notwithstanding delivery of the Vehicle to the Customer or the possession and use of the Vehicle by the Customer. The Customer will not have any right, title or interest in or to the Vehicle except as expressly set out in these Terms.
• (Possession)The Customer must not, without DACA Tours’ prior written consent, part with possession of the Vehicle during the Activities.
• (Encumbrances)The Customer must not allow any security interest, encumbrance, charge or lien of any kind to arise or remain in relation to the Vehicle, including a repairer’s lien, except:

  (i)if a repairer’s lien arises, the Customer must take all necessary steps to have it removed or satisfied, or, at DACA Tours’ option, DACA Tours may remove or satisfy the lien at the Customer’s cost; and

  (ii)a security interest, lien or charge that arises by law in respect of unpaid rates, taxes, fees or duties of any kind, in which event the Customer must pay any money due so that the Vehicle will be free of the lien or charge.

2.5CUSTOMER WARRANTIES

The Customer warrants that they:

• are over 18 years of age;
• are not pregnant;
• do not have any medical condition which might have the effect of making it more likely that they will be involved in an accident; and
• are not, and will not be during the Activities, under the influence of alcohol, drugs or any illicit substances.

2.6DISCLAIMERS

• Participating in the Activities involves the potential for injury and the Customer is voluntarily participating in the Activities with knowledge of the dangers involved. The Customer agrees to accept any and all risks of loss, injury, damage or death.
• To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in these terms are excluded. Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, DACA Tours’ liability for breach of that non-excludable condition, warranty or guarantee will, at DACA Tours’ option, be limited to:

  (i)in the case of goods, their replacement or the supply of equivalent goods or their repair; and

  (ii)in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.

2.7LIMITATION OF LIABILITY

DACA Tours’ liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with these terms or the Activities:

• is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and
• is limited, insofar as it concerns other liability, to the total money paid to DACA Tours by the Customer for the Activities.

2.8RELEASE AND INDEMNITY

• In the event of an accident or any loss, damage, injury or death arising in connection with an Activity the Customer is involved in, including loss or damage to the Customer’s personal property, the Customer:

  (i)releases DACA Tours from and waives any and all claims or liabilities of any nature they may have against DACA Tours arising from such an event; and

  (ii)agrees to indemnify, defend and hold harmless DACA Tours and any of its personnel or agents against any and all claims made by any third party arising from such an event, where the circumstances giving rise to such claim were caused or contributed to by the Customer.

• The Customer indemnifies DACA Tours from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:

  (i)any breach of these Terms by the Customer; or

  (ii)any negligent, fraudulent or criminal act or omission of the Customer or its personnel.

2.9PAYMENT

• (Payment obligations) Unless otherwise agreed in writing:

  (i)if DACA Tours issues an invoice to you, payment must be made by the time specified in such invoice;

  (ii)in all other circumstances, you must pay for all Activities in two instalments, as follows:

  A.a first instalment in the amount specified on the Website, payable up front using the functionality of the Website (Deposit); and

  B.a second instalment in the amount, and payable before the date, specified in a Purchase Order (Second Instalment); and

  (iii)you must not set off any money alleged to be owing by DACA Tours against money due by you to DACA Tours.

• (Security bond) You must pay a security bond to DACA Tours in an amount equal to the Deposit, on or before the date specified in a Purchase Order. This sum will be held by DACA Tours as security for the performance by you of your obligations under these Terms, including your obligations under clause 2.3(g) to pay any costs of repair to, or replacement of, the Vehicle. DACA Tours will be entitled to deduct from that bond in or towards satisfaction of any amounts payable by the Customer under these Terms or in or towards satisfaction of any amount which may be payable for any breach of these Terms by the Customer. DACA Tours deducting any amount from the bond will not be deemed to be a waiver or release of any breach by the Customer. DACA Tours will return any remaining security bond amount to the Customer, within 7 days after the final date of the Activities.
• (Late payment) If you do not pay DACA Tours the amount due and payable under an invoice on or before its due date, without limiting any of DACA Tours’ other rights under these Terms, you must pay DACA Tours interest at the rate of 12% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by DACA Tours.
• (Payment method) You must pay fees using the payment method specified on the Website or in an invoice issued by DACA Tours.
• (Refunds) DACA Tours generally does not offer refunds for any of its Activities and any refunds issued will be solely at DACA Tours’ discretion.
• (GST) Unless otherwise indicated, amounts stated on the Website do not include GST. In relation to any GST payable for a taxable supply by DACA Tours, you must pay the GST subject to DACA Tours providing a tax invoice.
• (Card surcharges) DACA Tours reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
• (Online payment partner) You acknowledge and agree:

  (i)that we may use third-party payment providers, such as Stripe.com, (Payment Providers) to collect payments for the Activities. 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 and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

  (ii) to release DACA Tours and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Payment Provider, including any issue with security or performance of the Payment Provider’s platform or any error or mistake in processing your payment.

2.10CANCELLATION BY YOU

To the maximum extent permitted by applicable law, if DACA Tours has accepted a Purchase Order in respect of an Activity, you have paid any fees to DACA Tours for that Activity, and you subsequently seek to cancel the Activity, then the fees will be dealt with as follows:

• if you notify DACA Tours of the cancelation before the date and time 30 days before the start time of the Activity, DACA Tours will provide you with a full refund;
• if you notify DACA Tours of the cancelation after the date and time 30 days before the start time of the Activity, but before the date and time 14 days before the start time of the Activity, DACA Tours will refund you the Deposit for that Activity; and
• if you notify DACA Tours of the cancelation after the date and time 14 days before the start time of the Activity, DACA Tours will retain the fees for that Activity and you will not be provided with a refund.

2.11CANCELLATION BY US

We reserve the right to cancel your order for any reason, and will notify you of this as soon as possible. Where any payment has already been debited, the full amount will be credited back to your original method of payment.

2.12PRICING ERRORS

In the event that we discover an error or inaccuracy in the price at which your order was purchased, we will attempt to contact you and inform you of this as soon as possible. You will then have the option of purchasing your order at the correct price, or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment.

2.13THIRD PARTY TERMS

• Any Activities that require DACA Tours to acquire goods or services supplied by a third party on behalf of the Customer may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
• The Customer agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Customer acquires as part of the Activities and DACA Tours will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.

2.14CHANGES

• The Customer must pay additional charges for changes to Activities requested by the Customer which are outside the scope of the Activities specified in a Purchase Order (Changes).
• Generally, where Changes are required, DACA Tours will provide a fixed-fee quote for the additional Activities in advance of them being provided.
• DACA Tours may at its discretion extend or modify any Activities as may be reasonably required by any Changes.

2.15SUBCONTRACTING

DACA Tours may subcontract any aspect of providing the Activities and the Customer hereby consents to such subcontracting.

2.16DISPUTE RESOLUTION

• The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with these terms or the Activities prior to commencing any proceedings.
• If the parties have complied with clause 2.16(a) and have failed to resolve a dispute after 30 days, the parties shall endeavour to settle any dispute arising out of or relating to these terms, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
• The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines).
• The terms of the Guidelines are hereby deemed incorporated into these terms.

2.17FORCE MAJEURE

DACA Tours will not be liable for any delay in performing its obligations or for a failure to perform its obligations under these terms if the delay or failure resulted from unforeseeable circumstances beyond its reasonable control including where third parties’ goods or services are used in performing the Activities and they fail to deliver or are subject to delays, errors or system updates, and including any weather event, predicted weather event other unforeseeable event which would, in the opinion of DACA Tours, make any of the Activities dangerous or undesirable.

3GENERAL

• (Governing law) This agreement is governed by the law applying in Western Australia, Australia
• (Jurisdiction) Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia, Australia, and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. 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.
• (Amendments) These Terms may only be amended by DACA Tours in accordance with the Terms.
• (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.
• (Further acts) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these Terms.
• (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.
• (Entire Agreement) These Terms embody the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the Terms.
• (Interpretation) In these Terms, the following rules of interpretation apply:

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

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

  (iii)(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;

  (iv)(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;

  (v)(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;

  (vi)(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;

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

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

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

  (x)(adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.