The Member acknowledges that in deciding to pay for the Services and in entering into this Agreement the Member has not relied on the skill or judgment of Elite Sports Nutrition and that the Member has satisfied itself as to the condition and suitability of the Products/or Services and their own health and fitness for the Member’s purpose.
To the maximum extent permitted under applicable law, and without limiting any of the Member’s rights under the Competition and Consumer Act 2010 (Cth) Elite Sports Nutrition’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:
(a) is 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 or loss of goodwill; and
(b) is limited, insofar as concerns other liability, to the total money paid to Elite Sports Nutrition under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
LIMITATIONS AND LIABILITY
(a) Notwithstanding any limitations or restrictions placed on this limitation of liability by the Consumer Act, we do not assume any responsibility or liability for any damages to you. In no event will we, or any of our respective officers, directors, employees, shareholders, affiliates, agents, successors or assigns, nor any party involved in the creation, production or transmission of this Site or any Services offered, be liable to you or anyone else for any direct, indirect, special, punitive, incidental or consequential damages arising out of the use, inability to use, or the results of use of this Site, any web sites linked to this Site, or the materials, information or services contained on any or all such websites, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages. The foregoing limitations of liability do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.
(b) For the purposes of the following clause, in addition to the defined terms above “Consequential Loss” means any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of interest, damage to credit rating or loss or denial of opportunity.
(c) With the exception of Consumer Guarantees, we exclude:
(i) any term, condition or warranty that may otherwise be implied by custom, law or statute;
(ii) any liability for loss caused by our negligence; and
(iii) any liability for Consequential Loss.
- To the extent permitted by law, our liability in respect of any breach of or failure to comply with any Consumer Guarantee is limited, at our option to any one or more of the following:
(i) In the case of goods, to:
(A) the replacement of the goods or the supply of equivalent goods;
(B)the repair of the goods;
(C)the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D)the payment of the cost of having the goods repaired.
(ii) In the case of services, to:
(A)the supplying of the services again; or
(B)the payment of the cost of having the services supplied again.
(d) In the event of any problem with the Services (including any products) that you have purchased on or through this Site or otherwise from us, you agree that your sole remedy is to seek a return and refund for such Services (including any products) in accordance with the returns and refunds policies posted on our Site.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
If you are a resident of a jurisdiction that requires a specific statement regarding release then the following applies: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby waive any provision in law, regulation, or code that has the same intent or effect as the aforementioned release. Your ability to use our site is contingent on your agreement with this and all other sections of this Agreement. In the event that we may not limit our liability in your jurisdiction, you agree our total liability to you is not more than AUD$100 or the total amount you spent while using our Site, Services (and any products) within the last three months, whichever is greater.
You agree to defend, indemnify and hold harmless Elite Sports Nutrition its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
- your use of and access to our Site and Service;
- any breach of any term or condition of this Agreement;
- any negligent, fraudulent or criminal act or omission of the Member or its Personnel;
- an event, where circumstances giving rise to a claim, were caused or contributed to by the Member;
- any breach of any third party right, including without limitation any copyright, property, or privacy right; or
- any claim that any of your use caused damage to a third party.
This indemnity will survive this Agreement and your use of our Services. You also agree that you have a duty to defend us against such claims and we may require you to pay for a solicitor of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable solicitor’s fees, court costs, and disbursements including in relation to the settlement of any claim.
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c) The parties acknowledge that compliance with this clause 19 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except: (i) in the case of applications for urgent interlocutory relief; or (ii) a breach by another party of this clause
PRIVACY AND CHILD PROTECTION
We comply with the Privacy Act 1988 (Cth) (“Privacy Act”) and the applicable Privacy Principles in the Privacy Act when handling personal information, together with the Health Records Act 2001 (VIC) (“HRA”) and the applicable Health Privacy Principles in the HRA when handling personal information which is health information.
FGE complies with all Australian Child Protection legislation to the extent applicable.
HOICE OF LAW
This Agreement shall be governed by the laws in force in the state of Victoria, Australia. The offer and acceptance of this contract is deemed to have occurred in Victoria, Australia.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, we shall have the sole right to elect which provision remains in force.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.