Trading Terms Acceptance
The Purchaser acknowledges that they have, read and understood the SPORTSKINETICS
Warranty Terms and Conditions in force at the time of these Terms and Conditions and acknowledges that these Warranty Terms and Conditions may be amended from time to time and agrees to these Warranty Terms and Conditions. Your use of the website is conditional upon your acceptance and compliance with the terms and conditions and your use of the website is constitutes your agreement to the Terms and Condition.
SportsKinetics and its affiliates provide their services to you subject to the following conditions. If you visit or shop at SportsKinetics, you accept these conditions. Please read them carefully. In addition, when you use any current or future SportsKinetics service or visit or purchase from any business affiliated with SportsKinetics, whether or not included in the SportsKinetics Web site, you also will be subject to the guidelines and conditions applicable to such service or business.
SportsKinetics is operated under licences by PBM Fitness. Any reference to SportsKinetics includes PBM Fitness and their affiliates.
Electronic Communications
When you visit SportsKinetics or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Capacity
The products and services available on the website from time to time are only available for purchase by individuals who can make legally binding contracts. The products are not available to persons under the age of 18 years and any other persons who are legally prohibited from entering into binding contracts.
Orders
Any order placed by you the customer in the manner described in this website is an offer by the customer to purchase a the selected product or service for the price (including the delivery and other charges and taxes) as specified in this website at the time you place your order on these Terms and Conditions. SPORTSKINETICS reserves the right to accept or reject your offer for any reason at the sole discretion of SPORTSKINETICS, including, without limitation, the unavailability of any product, an error in the price or the product description posted on this website, an error in your order, or for any other reason. Your contract with SPORTSKINETICS only comes into existence when it forwards confirmation of receipt of your order and payment, and confirms that shipment will proceed. SPORTSKINETICS may cancel your order at any time any payment will be returned or reversed.
Delivery
The customer agrees that SportsKinetics will not be held liable for any delays in shipment or delivery that are out of the control of SportsKinetics
The means of delivering the Products shall be at SPORTSKINETICS’s discretion. SPORTSKINETICS shall be permitted to deliver any of the Products listed in an Order by part deliveries and shall be entitled to invoice each part delivery and be paid for same in accordance with these Terms and Conditions.
Notwithstanding the above, SPORTSKINETICS shall not be required by the Purchaser at any time to deliver the Products to any party other than the Purchaser
The customer acknowledges and accepts that any product purchased form this web site will be used for home use only and SPORTSKINETICS will not be liable for any circumstances that may arise if the product is used for other purposes than domestic home use.
Risk
All risk in the products will pass to the purchaser upon the delivery to the customer or collection by a postal or courier service that is arranged by the customer.
You should consider whether to obtain any suitable insurance for both transit and possession.
Freight
Freight, delivery and handling is payable and not included in the sale price unless otherwise stated.
Cancellations
The purchaser may cancel an order prior to shipment, in which a cancellation administration fee of 15% will be charged. Cancellations after shipment will incur a 40% cancellation administration fee. The original freight charges are payable if not already paid, and the return freight is also payable by the customer. See Shipping and returnes for further details.
GST
For the purposes of these Terms and Conditions of Trade:
"GST" means goods and services tax within the meaning of the GST Act;
"GST Act" means the New Tax System Goods & Services Tax Act 1999 (Cth) or any modification thereof;
If SPORTSKINETICS becomes liable for any GST in relation to any "supply" (as defined in the applicable GST Act) contemplated under these Terms and Conditions, the amounts payable by the Purchaser for the supply must be increased by the amount of the GST.
Limitations of Liability
a) Description
Any description of the Products is given by way of identification only and shall not constitute the contract a sale by description. The Purchaser shall take the Products at the Purchaser’s own risk as to their Products corresponding with a sample (if any) or as to their quality, conditions or suitability for any purpose.
b) Liability
SPORTSKINETICS’s liability for damages arising out of or in connection with the sale of Products to the Purchaser will be limited to claims in relation to faulty Products as set out in this clause. All conditions and warranties expressed or implied by statute, common law, equity, trade, custom or usage are hereby expressly excluded to the maximum extent permitted by law.
c) Faulty Products
SPORTSKINETICS shall have the sole right to decide whether the Products are capable of repair and SPORTSKINETICS’s liability (if any) in respect of all claims under any contract arising hereunder shall be limited to:
(i) where the Products are capable of repair, to the repair value of the Products or payment of the cost of having the Products repaired; or
(ii) where the Products are incapable of repair, to the replacement value of the Products or the supply of equivalent Products or payment of the cost of replacing the Products or of acquiring equivalent Products.
d) Indirect Loss
To the extent the law permits, SPORTSKINETICS and all or any of its officers, agents, employees shall not be liable in any way whatsoever for any loss whatsoever(whether indirect or consequential), loss of profit, including in particular but not limited to any loss by reason of delay, defective or faulty materials or workmanship, negligence or any act or matter or thing done, permitted or omitted by SPORTSKINETICS or any of its officers, agents or employees. The Purchaser shall have no rights to off-set claims against the invoiced prices for Products and/or Services under any circumstances.
e) Trade Practices
Nothing in these Terms and Conditions shall exclude any liability attaching to SPORTSKINETICS as a result of those provisions of the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1988 (Vic) or other similar State or Territory legislation, which may have application to a contract for the sale of Products or Services made pursuant to these Terms and Conditions, and which may not lawfully be excluded by the stated intention of the parties to the contract.
g) Occupational Health and Safety
The Customer, installing the Products in a workplace which is to be used by employees, shall comply with the obligations of the relevant Occupational Health and Safety legislation and shall undertake all necessary safety and precautionary measures to avoid personal injury and damage to property. In doing so, the Customer shall ensure that all instructions directions, and/or specifications provided by SPORTSKINETICS concerning the safe installation, erection or use of the Products shall be provided to the persons responsible for such installation, erection or use.
Indemnity
The Purchaser indemnifies SPORTSKINETICS against any loss, claim, demand or cost arising from or related in any way to any dealing between the Purchaser and SPORTSKINETICS or arising as a result of any breach of the Terms and Conditions.
Pricing
SportsKinetics reserves the right to change its pricing at any time.
Clerical Errors
Clerical errors are subject to correction without notification.
Reservation of Title
a) The ownership of and title in all Products delivered by SPORTSKINETICS to the Purchaser pursuant to these Terms and Conditions remains vested in SPORTSKINETICS, and shall not pass from SPORTSKINETICS to the Purchaser until the following have occurred:
(i) the Purchaser has paid to SPORTSKINETICS in full the Purchase Price for all Orders of the Products or Services; and
(ii) the Purchaser has paid to SPORTSKINETICS all other monies due and payable by the Purchaser to SPORTSKINETICS pursuant to these Terms and Conditions and the Orders; and
(iii) No other monies are due and owing by the Purchaser to SPORTSKINETICS on any account
whatsoever.
b) The Purchaser acknowledges and agrees that:
(i) until ownership has passed in accordance with clause (a), the Purchaser shall be a bailee of the Products and shall owe fiduciary obligations to SPORTSKINETICS in respect of the Products;
(ii) the Purchaser shall keep the Products separately stored from other products and Identified as the Products of SPORTSKINETICS and shall keep accurate records identifying the Products;
(iv) apart from as provided in clause (b)(iii), the Purchaser shall not in any way part with possession of or dispose of the Products until full payment has been received by SPORTSKINETICS for the Products;
(vi) in the event the Purchaser defaults in payment of any monies owing to SPORTSKINETICS or any term hereof or of any contract between the parties or any trading account facility is terminated by SPORTSKINETICS, SPORTSKINETICS shall be entitled at its election to the immediate return of the Products and shall have the right to enter, and is hereby expressly authorised to enter, upon the premises of the Purchaser or any other premises at which the Products are stored to repossess any of the Products supplied by SPORTSKINETICS;
(vii) in the event the permission of any third party is required for access of any premises to repossess the Products, the Purchaser shall obtain that permission at its own expense.
Upon the repossession of the Products by SPORTSKINETICS, SPORTSKINETICS shall be entitled to re-sell the Products for the best price it can obtain and to be paid by the Purchaser any and all shortfall between that sale price and the monies owing to SPORTSKINETICS together with the damages suffered by SPORTSKINETICS as a result of the default by the Purchaser, such damages to include but not be limited to the legal costs and other expenses incurred in obtaining possession of the Products. The Purchaser shall have no claim against SPORTSKINETICS for any damages or other monies whatsoever if SPORTSKINETICS repossesses or attempts to repossess the Products. The rights of SPORTSKINETICS hereunder are in addition to any other claim or rights SPORTSKINETICS has under any other term hereof or under any other contract between the parties.
c) For the purpose of exercising and giving effect to its rights specified in clause (b), SPORTSKINETICS shall be entitled, by itself, its servants and/or its agents for the purpose, at any time and from time to time, to enter upon any premises where the Products shall be stored, and the Purchaser hereby grants licence and permission for such entry, which shall be irrevocable. Furthermore, SPORTSKINETICS reserves the right at its sole discretion to value all Products that have been repossessed at a price SPORTSKINETICS determines to reflect the condition of the Products at their current market value, with any subsequent price decrease of the Products payable to SPORTSKINETICS. Any valuation, removal, freight, storage, legal, professional and other costs associated with repossession is payable by the Purchaser to SPORTSKINETICS.
Copyright
All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of SportsKinetics or its content suppliers and protected by international copyright laws. The compilation of all content on this site is the exclusive property of SportsKinetics and protected by international copyright laws. All software used on this site is the property of SportsKinetics or its software suppliers and protected by international copyright laws.
License and Site Access
SportsKinetics grants you a limited license to access and make personal use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of SportsKinetics. This license does not include any resale or commercial use of this site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of SportsKinetics. You may not frame or utilise framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of SportsKinetics and our affiliates without express written consent. You may not use any meta tags or any other "hidden text" utilizing SportsKinetics’ name or trademarks without the express written consent of SportsKinetics. Any unauthorised use terminates the permission or license granted by SportsKinetics. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of SportsKinetics so long as the link does not portray SportsKinetics, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any SportsKinetics logo or other proprietary graphic or trademark as part of the link without express written permission.
Your Account
If you use this site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. SportsKinetics does sell products for children, but it sells them to adults, who can purchase with a credit card. If you are under 18, you may use SportsKinetics only with involvement of a parent or guardian. SportsKinetics and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
Reviews, Comments, Communications, and Other Content
Visitors may post reviews, comments, and other content; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of content. SportsKinetics reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content. If you do post content or submit material, and unless we indicate otherwise, you grant SportsKinetics and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant SportsKinetics and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify SportsKinetics or its affiliates for all claims resulting from content you supply. SportsKinetics has the right but not the obligation to monitor and edit or remove any activity or content. SportsKinetics takes no responsibility and assumes no liability for any content posted by you or any third party.
Copyright Complaints
SportsKinetics and its affiliates respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, email us with your complaint.
Product Descriptions
SportsKinetics and its affiliates attempt to be as accurate as possible. However, SportsKinetics does not warrant that product descriptions or other content of this site is accurate, complete, reliable, current, or error-free. If a product offered by SportsKinetics itself is not as described, your sole remedy is to return it in unused condition.
Other Businesses
Parties other than SportsKinetics and its subsidiaries sell product lines on this site. In addition, we provide may links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their web sites. SportsKinetics does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
Disclaimer of Warranties and Limitation of Liability
THIS SITE IS PROVIDED BY SPORTSKINETICS ON AN "AS IS" AND "AS AVAILABLE" BASIS. SPORTSKINETICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, SPORTSKINETICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SPORTSKINETICS DOES NOT WARRANT THAT THIS SITE, ITS SERVERS, OR E-MAIL SENT FROM SPORTSKINETICS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SPORTSKINETICS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Disputes
Any dispute relating in any way to your visit to SportsKinetics or to products you purchase through SportsKinetics shall be submitted to confidential arbitration in Morwell Vic 3840, Australia, except that, to the extent you have in any manner violated or threatened to violate SportsKinetics’ intellectual property rights, SportsKinetics may seek injunctive or other appropriate relief in any court in Australia, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of an independent arbitrator. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
Site Policies, Modification, and Severability
Please review our other policies, posted on this site. These policies also govern your visit to SportsKinetics. We reserve the right to make changes to our site, policies, and these Conditions of Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
Waiver
The failure of SPORTSKINETICS at any time to require performance by the Purchaser of any provision of these Terms and Conditions shall not affect in any way the full rights of SPORTSKINETICS to require such performance at any such time thereafter nor shall the waiver by SPORTSKINETICS of a breach of any provisions of these Terms and Conditions be deemed a waiver of the provisions themselves or any other provisions of these Terms and Conditions.
Severance
Any part of these Terms and Conditions being the whole or part of any clause(s) shall be capable of severance without affecting any other part of the Terms and Conditions.
Law and Jurisdiction
By visiting SportsKinetics, you the purchaser agree that all contracts and Orders between SPORTSKINETICS and the Purchaser for the sale of Products and/or Services shall be governed by the laws of the State of Victoria. All litigation arising out of our relating to the supply of Products and/or Services by SPORTSKINETICS to the Purchaser must, to the exclusion of all other jurisdictions, be commenced in the Courts of Victoria or the Victorian District Registry of the Federal Court of Australia
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