TERMS AND CONDITIONS
Please take the time to read these terms and conditions.
By using our website, and / or our in- store services, taking part in an excursion with us, or if you read or rely on the information offered on our website, you are taken to be agreeing to these terms and conditions.
If you purchase products or booking services through our website, there may be additional terms and conditions relating to the purchase, you will be notified if this is the case. Please make sure you agree with these terms and conditions, which you will be directed to read prior to making your purchase / booking.
Services means our services provided to you these include; Boat Charters and Day Trips, Dive Courses and other Training, Servicing of Gear, Commercial Diving, Accommodation and Retail Sales both online and in our store and Hiring of gear for Scuba and or Snorkelling.
Excursion means any course or trip booked by you, the customer, either in or out of the water and undertaken with an Instructor, Dive Master or Skipper either on one of our boats or off the shore, and includes all travel to and from the location of the Diving, Experience or Event whether in a private or company vehicle or boat owned or operated by Us or another party on our behalf.
We / Us means Whale Waters Tonga Ltd ( trading as AX-Factor Dive ) and any subsidiaries, affiliates, employees, contractors, officers, agents or assigns.
You / your means you as a Website Visitor, Services Recipient or Customer of AX-Factor Dive.
We have taken proper care and precautions to ensure that the information we provide on this Website is accurate. However, we cannot guarantee, nor do we accept any legal liability arising from or connected to, the accuracy, reliability, currency or completeness of anything contained on this Website or on any linked site.
Whilst AX- Factor Dive uses reasonable measures to ensure the accuracy and current information on our site is up to date, we do not warrant or represent that the site is free from errors. Data entry errors and technical problems may result in inaccurate information being displayed. AX- Factor Dive reserves the right to correct such errors and shall have no liability for such errors.
The information contained on this Website should not take the place of professional advice.
Use of website and service:
The Website is made available for your use on your acceptance and compliance with these terms and conditions. By using this Website, you are agreeing to these terms and conditions and that is why they are made available to you.
You agree that you will use this website in accordance with all applicable local, state, national and international laws, rules and regulations.
You agree that you will not use, nor will you allow or authorize any third party to use, the Website for any purpose that is unlawful, defamatory, harassing, abusive, fraudulent or obscene or in any other inappropriate way or in a way which conflicts with the website or the services.
If you contribute to our forum (if any) or make any public comments on this website which are, in our opinion, unlawful, defamatory, harassing, abusive, fraudulent or obscene or in any other way inappropriate or which conflict with the website or the services offered, then we may at our discretion, refuse to publish such comments and/or remove them from the website.
We reserve the right to refuse or terminate service to anyone at any time without notice or reason.
Password and login:
You are responsible for maintaining the confidentiality of your passwords and login details and for all activities carried out under your password and login, including any sales made to a third party made by any person who uses your password and login.
Indemnity for loss or damage:
You agree to indemnify us and hold us harmless from and against any and all liabilities or expenses arising from or in any way related to your use of this website or the services or information offered on this website, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and solicitors fees of every kind and nature incurred by you or any third parties through you from using this website or from purchasing services from us.
Intellectual property and copyrights:
We hold the copyright to the content of this website, including all uploaded files, layout design, data, graphics, articles, file content, codes, news, tutorials, videos, reviews, forum posts and databases contained on the website or in connection with the services. You must not use or replicate our copyright material other than as permitted by law. Specifically, you must not use or replicate our copyright material for commercial purposes unless expressly agreed to by us, in which case we may require you to sign a License Agreement and pay a fee.
If you wish to use content, images or other of our intellectual property, you should submit your request to us at the following email address: email@example.com
External websites links:
This Website may contain links that direct you outside of this website. These links are provided for your convenience and are not an express or implied indication that we endorse or approve of the linked website, its contents or any associated website, product or service. We accept no liability for loss or damage arising out of or in connection to your use of these sites.
You may link to our articles or home page. However, you should not provide a link which suggests any association, approval or endorsement on our part in respect to your website, unless we have expressly agreed in writing. We may withdraw our consent to you linking to our site at any time by notice to you.
Limitation of Liability:
We take no responsibility for the accuracy of any of the content or statements contained on this website or in relation to our services. Statements made are by way of general comment only and you should satisfy yourself as to their accuracy. Further, all of our services are provided without a warranty with the exception of any warranties provided by law. We are not liable for any damages whatsoever, incurred as a result of or relating to the use of the website or our services.
Use of information you have provided us with, or that we have collected and retained relating to your use of the website and/or our services generally, is kept confidential as required by law. Please be aware that we may share your information with third parties at our discretion but only for the purpose for which it was collected. This may include SSI as our training authority and insurer as required by them.
Confidentiality / Privacy:
All personal information you give us will be dealt with and stored in a confidential manner. It maybe shared as required by the relevant legislation but will only be used for the purposes for which it was collected. However, due to circumstances outside of our control, we cannot guarantee that all aspects of your use of this website will be confidential due to the potential ability of third parties to intercept and access such information.
Scuba diving, free diving or snorkelling:
You must whenever you are a snorkeler, swimmer, skin diver, certified scuba diver or a student diver under the control and supervision of a certified scuba instructor, sign when required a SSI Medical History Form,
SSI Waiver and Release of Liability Assumption of Risk and Indemnity Agreement and a Statement of Understanding prior to any in-water training.
If you choose not to fill out these forms, you will not be able to dive with us.
The Statement of Understanding Form will require that you:
Agree that you thoroughly understand the hazards of being in the water including those hazards occurring during boat travel to and from the dive site (hereinafter collectively referred to as “excursion”).
You understand that these inherent risks include, but are not limited to, drowning, air expansion injuries, decompression sickness, embolism, or other hyperbaric injuries that require treatment in a recompression chamber; slipping or falling while on board, being cut or struck by a boat while in the water, injuries occurring while getting on or off the shore or a boat, and other perils of the sea; all of which can result in serious injury or death.
You understand the excursion will be conducted at a site that is extremely remote, either by time or distance or both, from a recompression chamber and emergency medical facilities AND you still choose to proceed with the excursion.
To dive with us you must understand and agree that neither Whale Waters Tonga Ltd trading as AX-Factor Dive ( SSI Dive Center # 764742) the dive professional(s); nor the crew or owner of the vessel; nor the vessel itself; nor SSI New Zealand (764001) nor its affiliate or subsidiary corporations; nor the owners, officers, employees, agents, contractors or assigns of the above listed individuals and/or entities (hereinafter “Released Parties”) may be held liable or responsible in any way for any personal injury, property damage, wrongful death or other damages to you or your family, estate, heirs or assigns that may occur as a result of your participation in this excursion, or as a result of the negligence of any party, including the Released Parties, whether passive or active.
You must affirm that you are in good mental and physical fitness to enter the water. Not be under the influence of alcohol or any drugs that are contradicted to diving when coming on an excursion.
You must also agree that you are not only giving up your right to sue the Released Parties but also any rights your heirs, assigns or beneficiaries may have to sue the Released Parties resulting from your death.
Hire Equipment must be used by the hirer or by a certified diver in the case of scuba gear hire. Issuing this equipment to someone else who is not certified is dangerous and could lead to accidental injury or death.
When hiring equipment from us, you must understand and agree that neither Whale Waters Tonga Ltd, trading as AX-Factor Dive ( SSI Dive Center # 764742) the dive professional(s); nor the crew or owner of our vessels; nor the vessel itself; nor AX-Factor Dive ( SSI Dive Center # 764742) nor its affiliate or subsidiary corporations; nor the owners, officers, employees, agents, contractors or assigns of the above listed individuals and/or entities (hereinafter “Released Parties”) may be held liable or responsible in any way for any personal injury, property damage, wrongful death or other damages to you or another person who you provide the gear to with or without or knowledge or consent, your or their family, estate, heirs or assigns that may occur as a result of your hiring of equipment off us, or as a result of the negligence of any party including yourself and the Released Parties, whether passive or active.
Hire equipment is hired in good faith that it is working correctly at the time of hire. It is the responsibility of the hirer to check all equipment prior to departure of the store.
AX-Factor Dive cannot be held liable for any weather changes or changes of plan beyond our control and if the equipment is not used by you, you are still responsible for the hire fees.
Once hired, this equipment is the full responsibility of the hirer until it is returned to the store in the same condition, which it left.
Any loss or damage to the hired equipment is to be the responsibility if the hirer and cost of repair or replacement of equipment is to be met by the hirer.
Any late hire equipment will be charged at the full daily hire rate until it is returned. This is not limited to the loss of deposit and may require further payment to meet total hire time.
AX-Factor Dive may not be held liable by you or your family for any accident or injury, which may occur whilst this equipment is in use. Neither AX-Factor Dive’s Directors nor employees may be held responsible or liable due to negligence whether direct or indirect in relation to the use or misuse of this equipment.
The hirer agrees to all terms and conditions of this hire and understand and accept the conditions when hiring AX-Factor Dive hire equipment.
Boat excursions and course bookings:
AX-Factor Dive’s Instructors, Dive Masters and Boat Skippers will decide on the location for each dive. This will be based on safety, environmental concerns, weather conditions and associated risks.
Any dive program or excursion may be shortened at any time due to any of the above factors or another emergency solely at the discretion of the Dive Master and / or Boat Skipper.
If using hire gear, it is your responsibility to examine the equipment and note that it is good condition, set up correctly and operable for diving before you enter the water.
All damages must be paid for and cleaning or repair fees may be charged if the gear is returned in an inappropriate condition.
Scuba Diving – you must be a fully certified diver to the level indicated or be undertaking in a course suited to your needs under the supervision of an instructor. Unless under instruction, you are responsible for your own dive plan; the Dive Master will provide a site briefing and will act in the capacity of a guide only. The Dive Master will not act as a dive buddy, nor are they responsible for your dive plan, gear set up, pre-dive safety checks, site navigation, air consumption, depth management or the actions and activities you decide to undertake while on the dive.
Snorkelling – Whilst you are in the water there will be limited supervision, further you must be able to easily swim 200m or you will need to use a floatation device.
You acknowledge that you will be diving in a fragile marine environment and Coral Reef and that whilst you can freely observe the marine life, you will not touch or harm the marine life in any way and you will leave nothing but bubbles. You acknowledge that if the Dive Master observes any inappropriate activity you may not be allowed to dive with AX-Factor Dive again.
Boat excursions and courses will only be run when minimum numbers are met. If minimum numbers are not met, AX-Factor Dive will arrange for an alternate date for your excursion to take place. Dates advertised are a guide only and are subject to change. If AX-Factor Dive decides to cancel your excursion you will be notified as soon as possible to reschedule your experience. AX-Factor Dive will not reimburse any travel, accommodation or any other expenses incurred by you or any other person due to cancelation of your excursion.
No refund is offered if you should be unable to complete all offered dives. You must not participate in scuba diving or snorkelling whilst under the influence of alcohol or any drugs.
We have no liability to any customer should they participate in diving or snorkelling whilst under the influence of alcohol or any drugs.
Customers under the age of 16 must be accompanied by a parent or guardian and under no circumstances do we allow babies on any of our trips due to safety reasons. Any child on board must be able to wear a life vest and respond to directions.
Returns and Refunds:
It is your responsibility to notify AX-Factor Dive as soon as possible if an item purchased is received in damaged condition or not as advertised. You are to contact AX-Factor Dive via email, ( firstname.lastname@example.org ) explaining the issue and requesting a refund or replacement. All goods are to be returned at the cost of the purchaser and only once an authority to return form has been received. All returned goods must be returned in an “as new condition” and in undamaged original packaging. Once the goods have been returned and assessed, AX-Factor Dive will replace or refund the said item. AX-Factor Dive will not refund an item if you simply change your mind. We will however offer you a store credit if appropriate. All sale items are sold as is and no refund will be issued after purchase.
AX-Factor Dive will issue a refund for boat bookings with the amount and type of the refund determined by the amount of notification time given by you to AX-Factor Dive prior to boat departure date.
– Cancellations prior to 7 days of the trip date will be refunded except for a TOP100 administration charge to cover costs, additionally trips can be moved at no charge with over 7 days notice.
– Between 7 days and 3 days of the date of the trip we will not provide a refund of the trip price, but we can move the trip to a different day if necessary or issue a gift voucher for the trip price except for the administration fee.
– Cancellations within 3 days of the date of the trip will result in full loss of the funds paid for the trip.
If a trip is cancelled by AX-Factor Dive for whatever reason, pro-rata refunds will be provided.
You must bring your Diver Certification Card as proof of certification or you will not be allowed to dive.
Please arrive at AX-Factor Dive shop approx 30mins prior to the boat departing. AX-Factor Dive will do its very best to ensure our boats will leave the wharf at the advertised departure time. There maybe be the occasional time when this is not possible and AX-Factor Dive will not be held accountable for any expenses this may occur to you for late departures or arrivals.
It is up to you, the customer, to ensure you arrive on time, have the relevant paperwork filled out correctly and be able to produce any relevant certification cards to allow you to go ahead with your excursion as refunds will not be issued if you miss the departure time, or do not have the correct qualifications or mislead us in anyway as to your qualifications.
If the boat is cancelled due to bad weather an alternate dive or booking date suitable to the customer and us will be made.
Courses and Training Refunds:
AX-Factor Dive will not issue a refund if you simply change your mind about doing your course, within 7 days of any cancellation by you.
If you are claiming that you are permanently unfit to dive following a dive medical, you are required to provide us a copy of the medical, certified by a practicing general practitioner that states you are permanently unfit to dive in accordance with the SSI Medical History Form. The cost of any consumables issued to you (i.e. SSI eLearning Pass, Text Books, etc.) and used by you will be subtracted from any refund, as will an administration fee.
Once you start the practical component of the course, no refund will be provided if you do not continue with the course for any reason.
If the student fails to complete all pre-tests and pre learning prior to the commence date of any course or fail to turn up on time to the set course, you will be liable for a $100 rescheduling fee to transfer to another course. It is essentially up to you, the student, to ensure you are prepared for your course.
At the discretion of AX-Factor Dive we may wavier the reschedule fee in a once off time period.
If you are unable to complete your course on the selected dates through your decision, a $100 rescheduling fee is payable. If however you fail to complete a required module or skill to the instructors satisfaction you will have 12 months to contact us and book into another course.
Contacting AX-Factor Dive and booking onto a course is totally your responsibility and AX-Factor Dive has no responsibility to contact you. If a student fails to book onto another course within the 12 months they will need to start the entire course again and pay full fees again.
These terms and conditions are governed by and construed in accordance with the laws of Tonga. Any disputes concerning this website are to be resolved by the courts having jurisdiction in Vava’u.
We retain the right to bring proceedings against you for breach of these Terms and Conditions, in your country of residence or any other appropriate country or jurisdiction.
The trademarks and logos contained on our Website and forms including the AX-Factor logos are trademarks of Whale Waters Tonga Ltd. Use of these trademarks is strictly prohibited except with our express, written consent.
English is the language spoken during your time at AX-Factor Dive. We do not offer translators. If AX-Factor Dive or any of it’s staff members have difficulties in communicating with you, we will for the safety of yourself and staff have to exclude you from your trip. If this happens, no refund will be offered.
When an item is not in stock and is requested to be order, a 50% deposit is to be made by you the customer. AX-Factor Dive will contact the supplier as soon as possible to arrange for the goods to be delivered. Upon delivery AX-Factor Dive will contact you via email and mobile phone to arrange for collection. If every effort has been made to contact you and you fail to contact AX-Factor Dive within 28 days from initial contact, you will forfeit your deposit and the item will be returned to the shelf for re sale.
Goods and Services Tax
All prices include CT ( Consumer Tax ) as required by law.