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Terms and Conditions

SM BRANDS PTY LTD trading as Fila
Version Date: July 2017

Welcome to this SM Brands Pty Ltd (ABN 76 100 717 968) trading as Fila (“Fila”) website.

1.         Introduction

Please carefully review the following terms and conditions of use (the “Terms”), which govern your access to and use of the Fila website www.fila.com.au (the “Site”) on any computer, mobile phone, tablet, console or other device, which is operated by Fila. Your use of the Site constitutes your agreement to follow and be bound by the Terms. These Terms do not alter in any way the terms or conditions of any other agreement you may have with Fila for products, services or otherwise.

2.         Right to Modify Terms

Fila reserves the right to update or modify the Terms at any time without prior notice. Any changes or modification of the Terms will be effective immediately upon posting the revisions on the Site and shall apply to all use of the Site and all acts or omissions occurring after the effective date of the revised Terms. You waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Site following the posting of changes or modifications will confirm your acceptance of such changes or modifications. When we make changes, we will post them here. For these reasons, we encourage you to review the Terms whenever you use the Site. If you do not agree to these Terms, please do not use the Site.

3.         Permitted Uses

The Site may be used only for lawful purposes and is available only for your personal, non-commercial use, which shall be limited to viewing the Site, purchasing products, providing permitted information to the Site, and downloading product information for your personal review. You are responsible for your own communications, including the transmission, posting, and uploading of information and are responsible for the consequences of such communications to the Site.

4.         Access and Use of the Site

4.1 You must only use the Site in accordance with these Terms and any applicable law.

4.2 You must not (and must not attempt to):

(a) interfere (or attempt to interfere) or disrupt (or attempt to disrupt) the Site or the servers or networks that host the Site;
(b) use (or attempt to use) data mining, robots, screen scraping or similar data gathering and extraction tools on the Site; or
(c) interfere (or attempt to interfere) with security-related or other features of the Site.

4.3 To place Orders and access some features of the Site, you must register an Account with us. To register an Account, you must:
(a) give us accurate and current personal information including your name, address, and a valid email address.
(b) be at least 18 years old, and have the capacity to enter into a legally binding agreement with us.

4.4 You are solely responsible for the activity that occurs on your Account (including Orders placed using your Account), and you must keep your Account password secure. We are not responsible for any unauthorised activity on your Account if you fail to keep your Account login information secure. We may refer fraudulent or abusive or illegal activity to the relevant authorities. You agree to accept responsibility for all activities that occur under your account.

4.5 You must not use another person’s Account without our, and/or the other person’s, express permission. If you suspect or become aware of any unauthorised use of your Account or that your password is no longer secure, you must notify us immediately and take immediate steps to re-secure your Account (including by changing your password).

4.6 We do not warrant that the Site will be available at all times and without disruption and we provide no warranties in relation to the content of any other website linked to or from our Site.

4.7 You must not link to our Site or any part of our Site in a way that damages or takes advantage of our reputation, including but not limited to:
(a) in a way to suggest or imply that you have any kind of association and affiliation with us, or approval and endorsement from us when there is none; or
(b) in a way that is illegal or unfair.

5.          Information on this Site

5.1 The Site and the content on the Site are subject to copyright, trademarks and other intellectual property rights. These rights are owned by or licensed to Fila.

5.2 You must not reproduce, transmit, communicate, adapt, distribute, sell, modify or publish or otherwise use any of the material on the Site, including audio and video excerpts, except as permitted by statute or with our prior written consent.

5.3 Fila attempts to be as accurate as possible and eliminate errors on the Site. However, there may be information on the Site that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers and availability. If a product offered on the Site is not as described or pictured, your sole remedy is to return it in an unused condition for a refund. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order), and your sole remedy in the event of such error is to cancel your order.

5.4 Due to photographic and screen limitations associated with the representation of products, some actual products (including, in particular, clothing, apparel and shoes) may differ to a small extent in visual appearance (for example in colour) from the way they appear on the Site. In addition, where it is suitable to do so, some depictions of products are created or chosen by us for promotional purposes, and may not be an exact representation of the products received.

6.         Prohibited Uses

Fila specifically prohibits any misuse of the Site and requires all users to agree not to use the Site for any of the following:

(a)  posting any information which is incomplete, false, inaccurate or not your own;

(b)  changing or deleting any ownership notices from materials downloaded or printed from the Site;

(c) engaging in conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any state, national or international law or regulation that would fail to comply with accepted Internet protocol;

(d)  impersonating a third party or otherwise misrepresenting your affiliation with a third party or age;

(e)  soliciting personal information from anyone under 18 or soliciting passwords or personally identifying information for commercial or unlawful purposes;

7.         Right to Monitor and Terminate Use

7.1 Although Fila has no obligation to monitor any user conduct on the Site, Fila reserves the right, and has absolute discretion, to monitor any user conduct on the Site at any time and for any reason without notice.

7.2 Fila reserves the right, without notice and in its sole discretion, to terminate your licence to use the Site, and to block or prevent your future access to and use of the Site. Any use of the Site in violation of these Terms may result in, among other things, termination or suspension of your rights to use the Site. These Terms remain in effect even if your Account is terminated.

8.         Terms of Sale

All sales from www.fila.com.au are sold by SM Brands Pty Ltd. The following terms and conditions of sale (the “Sales Terms”) apply to your purchases of any products from Fila, except to the extent that you have entered into a separate written agreement with Fila that supersedes some or all of these Sale Terms. These Sales Terms are subject to change without prior written notice at any time, in Fila’s sole discretion. By placing an order for products through this Site, you agree to be bound by and accept the Sales Terms in effect at the time of such order. Other than as specifically provided in any separate written agreement between you and Fila, these Sales Terms may NOT be altered, supplemented or amended by the use of any other document(s), and all sales are expressly conditioned upon your agreement to these Sales Terms.

9.          Order and Formation of Contract

9.1 When placing an Order, you must follow the instructions on the Site as to how to place your Order and for making changes to your Order before you submit it.

9.2 Once you select a product that you wish to order, irrespective of any previous price you have seen or heard, you will then be shown or told (on the Site) the price you must pay including GST and any other applicable charges, including any delivery charges. Unless otherwise stated all charges are in Australian Dollars.

9.3 You must pay for the Order in full at the time of ordering by one of the payment methods we provide on the Site. You must be fully entitled to use the payment method or account used for purchases. The payment method or account must have sufficient funds or credit facilities to cover the purchase.

9.4 If you discover that you have made a mistake with your Order after you have submitted it to the Site, please contact our Customer Service Team. However, we cannot guarantee that we will be able to amend your Order in accordance with your instructions.

9.5 When you place an order, you will receive from us a Confirmation of Order by e-mail. This email will only be an acknowledgement and will not constitute acceptance of your order. A contract between us for the purchase of the products will not be formed until you receive a shipment confirmation email from us. We are not obliged to supply the product to you until we have accepted your Order. We may in our discretion refuse to accept an Order from you for any reason, including but not limited to:

(a) unavailability of stock or we may offer you an alternative product (in which case we may require you to re-submit Your Order);
(b) if you are a stylist, a blogger or an influencer, we require you to utilise our services via our PR forum. If you email info@fila.com.au, our PR manager will be in contract for future wardrobe opportunities through our showroom; or
(c) we suspect that you might onsell our products to other consumers.

9.6 Until the time when we accept your Order, we reserve the right to refuse to process your Order and you have the right to cancel your Order. We will notify you if we are unable to accept your Order. If we or you have cancelled your Order before it has been accepted, we will promptly refund any payment already made by you to your original payment method.

9.7 We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the email and/or billing phone number provided at the time the order was made. We do not authorise the purchase of our merchandise for resale purposes. To enforce this policy, we reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. We reserve the right to cease doing business with those customers violating this policy. We may modify this policy at any time without prior notice.

10.       Payment Terms

The Site currently accepts PayPal and Afterpay, VISA, MasterCard and American Express credit cards.

11.          New Zealand GST, Customs Charges and Duties

As our Site is based in Australia, we charge you for your order in Australian dollars. The actual price charged to New Zealand customers will be subject to the exchange rate applied by the customer’s credit or debit card company.  Please note orders which are more than the equivalent of NZ$200 and shipped to New Zealand may incur GST, customs charges and duties charged by the NZ Customs Service once the parcel reaches its destination port and must be paid by the recipient directly to the NZ Customs Service or its authorised service provider. We are not responsible for and will not reimburse any of these GST, charges or duties. You can find out more information at: http://www.customs.govt.nz/features/internetshopping/Pages/default.aspx

12.           Delivery

12.1 We aim to deliver products to you at the place of delivery requested by you within the time indicated by us at the time of your Order, but we cannot guarantee any firm delivery dates.

12.2 We will try to let you know if we expect to be unable to meet our estimated delivery date, but, to the extent permitted by law, we will not be liable to you for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery.

12.3 You may grant us an ‘authority to leave’ when placing your Order. If you do, you understand and agree that this authority to leave gives us and/or our couriers permission to leave the Order in question unattended by the front door – or, where applicable, at the reception or concierge desk, or in accordance with your instructions – of the delivery address without obtaining a signature confirming delivery at the delivery location. In these circumstances, you understand and agree that by granting us authority to leave, we and our couriers are released of all responsibility and liability for the Orders delivered and left unattended, and that this responsibility and liability transfer to you on delivery.

12.4 You must ensure that you are able to take delivery of the product without undue delay and at any time reasonably specified by us. If you are not, the couriers may leave a card giving you instructions on either re-delivery or collection from the carrier. If delivery or collection is delayed through your unreasonable refusal to accept delivery or if you do not (within two weeks of our first attempt to deliver the product to you) accept delivery or collect the product from the carrier, then we may (without affecting any other right or remedy available to us) do either or both of the following:

(a) charge you for our reasonable storage fee and other costs reasonably incurred by us; or

(b) no longer make the product available for delivery or collection and notify you that we are cancelling the applicable Contract, in which case we will refund to you or your credit or debit card company as applicable any money paid to us, less our reasonable administration charges (including for attempting to deliver and then returning the product, and any storage fees as provided for above).

12.5 Please note that it might not be possible for us to deliver to some locations. If this is the case, we will inform you using the contact details that you provide to us when you make your Order and arrange for cancellation of the Order or delivery to an alternative delivery address.

12.6 Unless otherwise specified by you, all risk in the product shall pass to you upon delivery. If delivery is delayed, risk shall pass at the date when delivery would have occurred. From the time when risk passes to you, we will not be liable for loss or destruction of the product.

12.7 You must take care when opening the product so as not to damage it, particularly when using any sharp instruments.

13.       Shipping Terms and Policies

13.1 We strive to process all orders for in stock items within two (2) Business Days. Our standard business days are Monday through Friday, 8 am to 5 pm Eastern Standard Time. Standard shipping is typically via Australia Post eParcel and you should allow 7-10 business days for delivery once an order has been shipped. Ownership of products passes from Fila to you upon shipment, and we are not responsible for any shipping delays or problems once the product has been shipped.

We reserve the right to substitute another carrier of equal or lesser cost to deliver your order. If expedited shipping is required (at additional cost), please select that as your shipping choice.

13.2 Occasionally, orders with multiple items will ship separately. In the event this occurs, Fila will only charge the customer for the first package shipped; the remaining packages will be sent at the expense of Fila.

13.3 Shipping charges will be included on your invoice and can be viewed on a summary screen prior to finalising your order. Shipping charges are based on the delivery location and method you select during the checkout process. The shipping charge shown during the checkout process is subject to verification. Shipping charges are subject to change without notice, provided that if the actual shipping charge is more than the amount shown on your invoice, we will contact you with the correct shipping costs before processing your order, and you will have an opportunity to cancel your order.

13.4 For orders placed outside Australia, please note that you are responsible for any customs and import duties and clearance fees (where applicable) in your own country and to check the duties and clearance fees with your local authorities.

14.          Cancellation

14.1 We may terminate a Contract if the product is not available for any reason. We will notify you if this is the case and return any payment that you have made. We will usually refund any money received from you using the same method originally used by you to pay for the product.

14.2 If you wish to cancel your order, please contact our Customer Service Team via info@fila.com.au. No cancellation fees will apply. Once an Order has been processed it cannot be cancelled and the item must instead be returned to us in accordance with our returns policy as set out below.

15.          Faulty Product Returns

15.1 We aim to provide you with products of the highest standard and quality. If you have received a product with a defect, please contact us via info@fila.com.au as soon as possible so we can guide you through the returns process and help resolve the problem as swiftly as possible. In order to assist the return process, you may be required to send us images of the damage, defect or fault for preliminary assessment.

15.2 If the product is confirmed to have a defect, we will replace the product or refund the price of the product to your original payment method at your request. If the product is found not to have a defect or deemed out of warranty, we will ship the product back to you.

15.3 It does not constitute a defect, if in our reasonable opinion, the product has, following the sale to you, become of unacceptable quality due to fair wear and tear, misuse, failure to use in accordance with manufacturers’ instructions, using it in an abnormal way or failure to take reasonable care.

16.          Change of Mind Returns

16.1 In addition to your rights in relation to faulty products in clause 15, you can return any product:
(a) within 30 days of purchase;
(b) unworn and unused with the original tags still attached; and
(c) in the original packaging, which must be in the original condition, including branded dust bags and shoe boxes (you do not need the clear plastic packaging).
Please note that products sealed for hygiene reasons can only be returned under change of mind return policy if the seal is intact.  Occasionally, some products may be excluded from the change of mind return policy. The exclusion will be noted on the product page on our Site.

16.2 To ensure the returns are assessed and processed swiftly, you must follow the instructions set out under “Returns”.

16.3 Upon receiving and inspection of your return, we will contact you about next steps. Once determined the return is in compliance with clause 16.1, we will, at your request,
(a) refund the price of the product returned; or
(b) exchange the product for another size.

16.4 However, we will not be able to refund any delivery fees that you have paid at purchase to have the product shipped to you. If the return, in our reasonable opinion, is not in compliance with clause 16.1, we will contact you to ship the product back to you.

16.5 Nothing in this clause is intended to exclude any rights in clause 15 or any of your statutory rights as a consumer under Australian Consumer Law.

17.          Vouchers, Gift Cards and Store Credit

17.1 You may use gift vouchers as payment for certain products on the Site. We may email vouchers to you. We accept no Liability for errors in the email address provided to us. We assume no Liability for the loss, theft or illegibility of vouchers. In the event of fraud, an attempt at deception or in the event of the suspicion of other illegal activities in connection with the redemption of vouchers on the Site, we are entitled to close your Account and/or require a different means of payment.

17.2     Conditions for the redemption of vouchers

(a) From time to time we may release vouchers that may be used on the Site. Vouchers can only be redeemed on the Site in accordance with the special terms and conditions stated on them.
(b) Vouchers are valid for the specified period stated on them only. If no time period is stated, then a voucher is valid for 12 months from date of issue. Certain products may be excluded from voucher promotions.
(c) Vouchers cannot be redeemed for cash. If you place an Order for a product less than the value of a voucher, no refund or residual credit will be returned to you. If the credit of a voucher is insufficient for the Order you wish to make, you may make up the difference through payment by other means (but not by using another voucher or attempting to rely on any other offer). Please note that only one voucher can be used per Order.
(d) Vouchers are applied to invoices as a whole. Accordingly, in circumstances where multiple products are purchased using a voucher, and one or more products are returned, the discount is applied on a pro rata basis to each product for the purpose of establishing refund values.

(e) If an Order made using a voucher is cancelled or returned, the portion of the purchase attributable to the voucher will be refunded as a store credit voucher only.

18.       Right to Change Site

We reserve the right, at any time and in our sole discretion, to:

You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, or any service, content, feature or product offered through the Site.

19.       Site Contents and Limited Licence

19.1 Unless otherwise noted, the Site, and all materials on the Site, including text, images, illustrations, designs, icons, photographs, video clips and other materials, and the copyrights, trademarks, trade dress and/or other intellectual property in such materials (collectively, the “Contents”), are owned, controlled or licensed by SM Brands Pty Ltd., and are protected by Australian. and international copyright laws. Fila® and other Fila-owned trademarks or logos displayed on the Site are owned by Fila Luxembourg S.a.r.l. and are used under licence.

19.2 The Site and the Contents are intended solely for personal, non-commercial use. You may only download or copy the Contents and other downloadable materials displayed on the Site for your personal use. No right, title or interest in any downloaded Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the Contents or the Site.

19.3 Unless otherwise specified, the Site and the Contents are intended to promote Fila’s products and services available in Australia, New Zealand, Fiji, New Caledonia and Papua New Guinea. The Site is controlled and operated by SM Brands Pty Ltd. from its offices in Victoria, Australia.

19.4 The Content of this Site may include features that promote physical activity. Consider the risks involved and consult with your medical professional before engaging in any physical activity. The Content of this Site does not constitute medical advice. You should consult your doctor before beginning any exercise, training or athletic program utilising any product offered on this Site. Fila is not responsible for any medical or health problems that may result from your engaging in any activities described on the Site or from any information you obtain from the Site.

20.          Copyright Complaints

Fila respects the intellectual property of others. If you believe that your work has been copied in any way that constitutes infringement, we suggest that first you consult your legal advisor, and then please provide Fila’s copyright agent, at the address below, the following written information:

 

Fila’s copyright agent for notice of claims of copyright infringement on the Site can be reached as follows:

c/- SM Brands Pty Ltd.
PO Box 251

Tullamarine

Victoria, Australia, 3043
Attention: The Directors

 

Please note that this procedure is exclusively for notifying Fila that your copyrighted material has been infringed.

21.       Repeat Infringer Policy

In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable laws, Fila has adopted a policy of terminating, in appropriate circumstances and at Fila’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. Fila may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

22.          Security Rules

Violations of system or network security may result in civil or criminal liability. Fila will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting any user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:

23.       User Submissions

23.1 Any and all information, including but not limited to feedback, data, questions, comments, suggestions or ideas that you submit on the Site shall not be deemed confidential, and Fila will not have any obligation to keep such information confidential and will be free to reproduce, use, disclose and distribute the information to others without limitation or liability. All such submissions shall be deemed the property of Fila, and your submission of information shall constitute an irrevocable assignment to Fila of all worldwide rights, titles and interests in and to such information.

23.2 You agree that your submissions:

(a) shall be true, accurate, current, complete and not misleading;

(b) shall not violate the rights of any third party, including, but not limited to, intellectual property and proprietary rights;

(c) shall not be fraudulent or involve counterfeit or stolen information or items;

(d) shall not violate any law, statute, ordinance or regulation;

(e) shall not contain libelous or otherwise unlawful, abusive or obscene material, or contain any virus or malware that could in any way affect the operation of the Site; and

(f) shall not create any liability for Fila.

We do not encourage idea submissions.

24.       Links to Other Websites and Services

The Site may contain links to other websites that are not under the control of Fila. Fila has no responsibility for the linked websites nor does linking constitute an endorsement of any linked website. Links are provided solely for the convenience and information of the Site‘s users.

25.       User Created Hyperlinks to Site

Fila grants users a limited, non-exclusive right to create a text hyperlink to the Site for non-commercial purposes, provided such link does not portray Fila or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable.

This limited right may be revoked at any time.

You may not use a Fila logo or other proprietary graphic of Fila to link to the Site without the express written permission of Fila.

Further, you may not use, frame or utilize framing techniques to enclose any Fila trademark, logo or other proprietary information, including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without Fila’s express written consent.

Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Fila or any third party.

Fila makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site, or websites linking to the Site. Such sites are not under the control of Fila and Fila is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Fila provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Fila of any site or any information contained therein. When you leave the Site, you should be aware that the Terms no longer apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.

26.       Disclaimer

The Site is provided “as is” and “as available” without warranties of any kind, either express or implied, including without limitation, warranties of title, implied warranties of merchantability, fitness for a particular purpose or non-infringement of intellectual property. Fila expressly disclaims any duty to update or revise the Site, although Fila may modify the Site at any time without notice. Your use of the Site is at your sole risk.

27.       Limitation of Liability

IN NO EVENT SHALL FILA, ITS AFFILIATES, LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF THE SITE OR THE CONTENT AND MATERIALS OR FUNCTIONALITY ON OR ACCESSED THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES OR ANY OTHER TYPE OF DAMAGE, TANGIBLE OR INTANGIBLE IN NATURE, EVEN IF FILA OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULL EXTENT PERMITTED BY LAW, FILA’S LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE PURCHASE OF PRODUCTS FROM THIS SITE.

FILA IS NOT RESPONSIBLE OR LIABLE FOR THE CONDUCT OF, OR YOUR INTERACTIONS WITH, USERS OF THE SITE (WHETHER ONLINE OR OFFLINE), NOR IS FILA RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE, INJURY, OR HARM ASSOCIATED THEREWITH.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, SOME OF THE EXCLUSIONS OR LIMITATIONS IN THIS AND THE “DISCLAIMER” SECTION ABOVE MAY NOT APPLY TO YOU.

28.          Disclaimer and Liability

28.1 This clause prevails over all other clauses, and, to the extent permitted by law, states our entire Liability, and your sole and exclusive remedies, for:
(a) the performance, non-performance, purported performance or delay in performance of these Terms or a Contract or the Site (or any part of it or them); or
(b) otherwise in relation to these Terms or the entering into or performance of these Terms.

28.2 Nothing in these Terms excludes or limits your statutory rights as a consumer or our Liability for:
(a) fraud;
(b) death or personal injury caused by our Breach of Duty;
(c) any breach of the obligations implied by law; or
(d) any other Liability which cannot be excluded or limited by applicable law.

28.3 In performing any obligation under these Terms, our only duty is to exercise reasonable care and skill.

28.4 Subject to clause 28.2:
(a) to the extent permitted by law, we do not warrant and we exclude all Liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Site;
(b) we exclude all Liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature;
(c) you should not rely on any information accessed using the Site to make a purchasing decision – you should make your own enquiries before forming your own opinion and taking any action based on any such information.
(d) it is your responsibility to ensure that the products are sufficient and suitable for your purposes and meet your individual requirements. We do not warrant that the products will meet your individual requirements. You acknowledge that the products are standard and not made bespoke to fit any particular requirements that you may have.
(e) we do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the provisions of these Terms.
(f) to the extent permitted by law in no event shall we, our affiliates and related entities or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with the Site, our services or these Terms.
(g) our total Liability under any Contract shall in no circumstances exceed:
(i) in the case of products, the replacement of the products or the supply of equivalent products, the repair of the products, the payment of the cost of replacing the products or of acquiring equivalent products, or the payment of the cost of having the products repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

29.       Disputes

By visiting the Site or otherwise making a purchase from the Site, you and Fila agree that, if there is any controversy, claim, action or dispute arising out of or related to any transaction conducted on the Site, or the breach, enforcement, interpretation, or validity of these Terms or any part of them (collectively, a “Dispute”), both parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute.

Notice shall be sent:

To Fila at PO Box 251, Tullamarine, Victoria, Australia, 3043, Attention: The Directors, or

To you at: your last-used billing address or the billing and/or shipping address in your online profile.

Both you and Fila agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party.

IF ANY DISPUTE CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION FOR SUCH DISPUTE WILL BE THE COURTS OF VICTORIA, AUSTRALIA.

The courts of Victoria, Australia shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability or formation of these Terms, including any claim that all or any part of these Terms is void or voidable.

30.          Indemnity

You indemnify and hold us and our related entities, affiliates, licensors, and our and their respective officers, agents, and employees, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable legal fees, made by any third party due to or arising out of your breach of these Terms or your breach of any law or the rights of a third party.

31.          Privacy Policy

Your submission of personal information through the Site is governed by our privacy policy, which can be reached by clicking on the “Privacy Policy” link located in the footer section of the Site (the “Privacy Policy”). The Terms incorporates by reference the terms and conditions of the Privacy Policy.

32.          Mediation and Dispute Resolution

In the event of any dispute under these Terms the parties agree to negotiate in good faith to resolve the dispute. Any dispute or difference whatsoever arising out of or in connection with these Terms which cannot be resolved by the parties shall be submitted to mediation in accordance with, and subject to, the Resolution Institute Mediation Rules.

33.          General

33.1     Entire agreement

These Terms contain all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to these Terms except as expressly stated in these Terms. However, the services and products are provided to you under our operating rules, policies, and procedures as published from time to time on the Site. These Terms constitute the entire agreement between you and Fila and govern your use of the Site. You also may be subject to additional terms and conditions that are applicable to certain parts of the Site.

33.2     Assignment 

You may not assign or delegate or otherwise deal with all or any of your rights or obligations under these Terms. We shall have the right to assign or otherwise delegate all or any of our rights or obligations under these Terms to any person.

33.3     Force majeure

We shall not be liable for any breach of our obligations under these Terms where we are hindered or prevented from carrying out our obligations by any cause outside our reasonable control, including by lightning, fire, flood, extremely severe weather, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, failure of any telecommunications or computer system, compliance with any law, accident (or by any damage caused by any of such events).

33.4     No waiver

No waiver by us of any default of yours under these Terms shall operate or be construed as a waiver by us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by us to you shall in any way release, discharge or otherwise affect your liability under these Terms.

33.5     Termination

Fila may terminate these Terms and deny you access to the Site at any time, immediately and without notice if, in Fila’s sole discretion, you fail to comply with any provision of these Terms.

33.6     Notices

Unless otherwise stated within these Terms, notices to be given to either party shall be in writing and shall be delivered by electronic mail at the email address you supplied to us or to us at our registered office.

33.7     Third party rights

All provisions of these Terms apply equally to and are for the benefit of Fila, its subsidiaries, any holding companies of SM Brands Pty Ltd, its (or their) affiliates and its (or their) third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf (save that these Terms may be varied or rescinded without the consent of those parties).

33.8     Survival

The provisions of clauses that either are expressed to survive a Contract’s expiry or termination or from their nature or context it is contemplated that they are to survive such expiry or termination shall survive the expiry or termination.

33.9     Severability

If any provision of these Terms is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of these Terms shall not be affected.

33.10   Governing law: These Terms (and all non-contractual relationships between you and us) shall be governed by and construed in accordance with the law of Victoria, Australia and both parties hereby submit to the jurisdiction of the courts of Victoria.

33.11   Change of the Terms and Conditions

We reserve the right to amend these Terms at any time. All amendments to these Terms will be posted online. However, continued use of the Site will be deemed to constitute acceptance of the new Terms.

34.          Definitions and Interpretation

34.1 Definitions
In these Terms, unless the contrary intention appears:

Account means the account that you will need to register for on the Site if you would like to submit an Order on the Site in accordance with clauses 4 and 9 of these Terms;

Breach of Duty means the breach of any:
(a) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or
(b) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);

Business Day means a day which is not a Saturday, Sunday or a public holiday in Melbourne, Victoria, Australia;
 
Confirmation of Order means our email to you, in which we accept your Order;
 
Contract means the sale of goods agreement between you and us for the supply of products you have ordered in accordance with these Terms;
 
Delivery means the process in clause 12 of these Terms and Conditions;
 
Delivery Fee means any charges you are liable to have the products delivered to the address provided by you;

Fila means SM Brands Pty Ltd (ABN 76 100 717 968) and its representatives, subsidiaries, affiliates, related parties, officers, directors, employees, agents, partners, and independent contractors and (where applicable) its licensors;

GST  has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Liability means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms, including, without limitation, liability expressly provided for under these Terms or arising by reason of the invalidity or unenforceability of any term of these Terms (and for the purposes of this definition, all references to these Terms shall be deemed to include any collateral contract);
 
Order means the order submitted by you to the Site to purchase products from us.

34.2     Interpretation

(a) Headings are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.

(b) Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.

(c) Words denoting persons includes natural persons, partnerships, limited liability partnerships, bodies corporate and unincorporated associations of persons.

(d) References to “includes” or “including” or like words or expressions shall mean “without limitation”.

35.       Contact Information

Questions or comments about the Site may be directed to Fila at the email address info@fila.com.au or by calling us at 1800 000 339.