Terms of Service

Effective 14 February 2022

In these terms and conditions, ‘us’ ‘we’, ‘our’ or ‘Exersia’ means Exersia Pty Ltd (ACN 655 647 715) and each of our related bodies corporate from time to time.

By using our website you accept these terms and conditions

By accessing this website, you agree to be bound by these terms and conditions (these terms). If you do not accept these terms, you must not use this website.

These terms must be read in conjunction with any other applicable terms and conditions governing the use of this website.

We may make changes to these terms

We may change these terms from time to time by publishing changes to it on our website.

By using our website, you confirm that you accept these terms and that you agree to comply with them. If you do not agree to these terms, you must not use our website.

We may make changes to our website

We may update and change our website from time to time to reflect changes to our products, our users’ needs and our business priorities or for any other reason.

We may suspend or withdraw our website

Our website is made available free of charge. We do not guarantee that our website, or any content on it, will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our website for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.

You are also responsible for ensuring that all persons who access our website through your internet connection are aware of these terms and other applicable terms and conditions, and that they comply with them.

Eligibility to use our website

Our website is directed to users who are at least 18 years old and are residing in and using this website within Australia. We do not represent that content available on or through our website is appropriate for use or available in other locations. If you access our website from outside Australia, you do at your risk and you are responsible for compliance with laws applicable to your accessing the website from your location.

You must keep your account details safe

If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.

We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these terms.

If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at service@exersia.com.

How you may use material on our website

We are the owner or the licensee of all intellectual property rights in our website, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.

You may print off one copy, and may download extracts, of any page(s) from our website for your personal use and you may draw the attention of others to content posted on our website.

You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.

Our status (and that of any identified contributors) as the authors of content on our website must always be acknowledged.

You must not use any part of the content on our website for commercial purposes without obtaining a licence to do so from us or our licensors.

If you print off, copy or download any part of our website in breach of these terms, your right to use our website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

If we provide social media features such as the ability to share content, you may take such actions as are enabled by such features.

You must not delete or alter any copyright, trade mark or other proprietary rights notices from copies of materials from this website.

Do not rely on information on this website

This website is provided on an “as is” and “as available” basis, and we make no representations or warranties, express or implied, regarding the operation or availability of the website.

The content on our website is provided for general information only. It is not intended to amount to advice on which you should rely.

Although we make reasonable efforts to update the information on our website, we make no representations, warranties or guarantees, whether express or implied, that the content on our website is accurate, complete or up-to-date.

We are not responsible for websites we link to

Where our website contains links to other sites (including banner advertisements and sponsored links) and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. We have no control over the contents of those sites or resources, and you access third party websites entirely at your own risk and subject to the terms and conditions of use for those websites.

User-generated content

This website may include information and materials uploaded by other users of the website, including to bulletin boards and chat rooms. This information and these materials have not been verified or approved by us. The views expressed by other users on our website do not represent our views or values.

This website may from time to time contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards or order forms and other interactive features (collectively, Interactive Services) that allow users to post, submit, publish, display or transmit to other users or other persons (post) content or materials (collectively, User Contributions) on or through the website.

All User Contributions must comply with the content standards set out in these terms.

Any User Contribution you post to the website will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, however by providing any User Contribution on the website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.

We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our website constitutes a violation of their intellectual property rights, or of their right to privacy.

We have the right to remove any posting you make on our website if, in our opinion, your post does not comply with the content standards outlined below.

You are solely responsible for securing and backing up your content.

Where this website permits User Contributions, you represent and warrant that:

You own or control all rights in and to your User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns.
All of your User Contributions do and will comply with these terms.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you (and not us) have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the website.

We have the right to remove, refuse to post or take any action with respect to any User Contributions for any or no reason in our sole discretion. If you wish to complain about information and materials uploaded by other users please contact us at: service@exersia.com

Content standards

The content standards in these terms apply to any and all User Contributions and use of social media features. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. In particular, you warrant that your User Contributions will not:

Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
Contain or promote sexual or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
Infringe any patent, trade mark, trade secret, copyright or other intellectual property or other rights of any other person.
Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these terms and our privacy policy.
Be likely to deceive any person.
Promote any illegal activity, or advocate, promote or assist any unlawful act.
Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
Impersonate any person, or misrepresent your identity or affiliation with any person or organisation, including with us.
Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Whenever you make use of a feature that allows you to upload content to our website, or to make contact with other users of our website, you must comply with the content standards in this clause.

You warrant that any such contribution complies with these standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty. We may report any breach of your warranty to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our website will cease immediately.

Limitation of liability

In no event will we, our affiliates or their licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with any fundraising activities or your use, or inability to use, our website, any websites linked to it, any content on our website or such other websites or any services or items obtained through our website or such other websites, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.

Nothing in this clause affects any liability which cannot be excluded or limited under applicable law. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation. Where our liability cannot be excluded, we limit our liability to the fullest extent permitted by the Australian Consumer Law.

You agree to defend, indemnify and hold us, our affiliates, licensors and service providers, and each of their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns, harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these terms or your use of the website, including, but not limited to, your User Contributions (if any), your use of any information obtained from the website and any use of the website’s content, services and products other than as expressly authorised in these terms.

Different limitations and exclusions of liability may apply to liability arising as a result of the supply of any products to you, which will be set out in our terms of sale.

We are not responsible for viruses

We do not guarantee that our website will be secure or free from bugs or viruses.

You are responsible for configuring your technology to access our website. You should use your own virus protection software.

Rules about linking to our website

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. The website in which you are linking must comply in all respects with the content standards set out in these terms.

You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

Our website must not be framed on any other website, nor may you create a link to any part of our website other than the home page.

We reserve the right to withdraw linking permission without notice.

If you wish to link to or make any use of content on our website other than that set out above, please contact us via: service@exersia.com

Governing law

These terms, their subject matter and their formation, are governed by the laws of Queensland, Australia. You and we both agree that the courts in Queensland, Australia will have non-exclusive jurisdiction.

Our trade marks

“EXERSIA” and all related names, logos, product and service names, designs and slogans are our trademarks or the trademarks of our affiliates or licensors. You must not use such marks without our prior written permission unless they are part of material you are using as permitted under these terms. Other names, logos, product and service names, designs and slogans on this website are the trademarks of their respective owners and are used by us under licence.

Prohibited uses

You may use the website only for lawful purposes and in accordance with these terms. You agree not to use the website:

in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from other countries);
for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
to send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in these terms;
to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
to impersonate or attempt to impersonate us, any of our employees, another user or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing); or
to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the website, or which, as determined by us, may harm us or users of the website or expose them to liability.

Additionally, you agree not to:

use the website in any manner that could disable, overburden, damage, or impair the website or interfere with any other party’s use of the website, including their ability to engage in real time activities through the website;
use any robot, spider or other automatic device, process or means to access the website for any purpose, including monitoring or copying any of the material on the website;
use any manual process to monitor or copy any of the material on the website or for any other unauthorised purpose without our prior written consent;
use any device, software or routine that interferes with the proper working of the website;
introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
attempt to gain unauthorised access to, interfere with, damage or disrupt any parts of the website, the server on which the website is stored, or any server, computer or database connected to the website;
attack the website via a denial-of-service attack or a distributed denial-of-service attack; or
otherwise attempt to interfere with the proper working of the website.

We may report any of the activities above to the relevant law enforcement authorities and we will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our website will cease immediately.

Online purchases

All purchases through our website or other transactions for the sale of goods or services formed through the website or as a result of visits made by you are governed by our terms of sale, which are incorporated into these terms.

Other terms and conditions

Additional terms and conditions may also apply to specific portions, services or features of the website. All such additional terms and conditions are incorporated by this reference into these terms.

Terms and conditions of sale

Effective 14 February 2022

1. Definitions and interpretation

1.1 Definitions

In these terms and conditions of sale (terms and conditions), unless the context clearly indicates otherwise:

Buyer means the purchaser of the Goods, whose details are set out in the invoice.

Goods means the products and, if any, services specified in the invoice.

Seller means Exersia Pty Ltd (ACN 655 647 715) or such other seller of the Goods whose details are set out in the invoice.

1.2 Interpretation

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

2. General

These conditions (which will only be waived in writing signed by the Seller and Buyer) will prevail over all conditions of the Buyer’s order, to the extent of any inconsistency.

3. Terms of sale

The Goods and all other products sold by Seller are sold subject to these terms and conditions.

4. Seller’s quotations

Unless previously withdrawn, Seller’s quotations are an invitation to treat and orders may be submitted to the Seller within the period stated in them or, when no period is so stated, within 30 days only after its date. The Seller reserves the right to refuse any order based on its quotation following receipt of such order.

5. Packing

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer’s expense, even if that cost has been omitted from any quotation.

6. Shortage

The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within 2 business days from the date of receipt of Goods by the Buyer.

7. Specifications

(a) All specifications, images and particulars of weights and dimensions submitted to the Seller are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.

(b) The descriptions, illustrations and performances contained in the website, catalogues, price lists and other advertising matter of the Seller do not form part of the contract of sale of the Goods or of the description applied to the Goods.

(c) Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, the Seller’s price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Seller as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

8. Conditions for ordering

(a) The Seller does not offer to sell any Goods for delivery or use outside of Australia.

(b) If Buyer purchases or uses any Goods, the Buyer:-

(i) warrants and represents that they are at least 18 years of age;

(ii) is ordering the Goods for consumption in Australia;

(iii) warrants, represents and agrees that the Buyer has sought, and will continue to seek, advice from independent, appropriately qualified and licensed health practitioners relating to the proposed use of any Goods;

(iv) warrants, represents and agrees that the Buyer will only use the Goods and any information obtained from the website in accordance with the advice and supervision of independent, appropriately qualified and licensed health practitioners; and

(v) warrants, represents and agrees that the Buyer will not re-sell or otherwise re-supply any Goods.

9. Performance

Any performance figures given by the Seller are estimates only. To the maximum extent permitted by law, the Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

10. Information

(c) All information provided by the Seller on the website or on or in respect of any Goods is provided by the Seller as general information and is not in the nature of advice. The Seller reserves the right to update or otherwise change this information at any time.

(d) Except for losses attributable to breaches of the consumer guarantees contained in the Australian Consumer Law, the Seller is not liable for any direct, indirect loss or consequential loss resulting from any action taken or reliance made by the Buyer on any information, content or material on the website, or the Buyer’s use of the website or any Goods.

(e) The Buyer’s use of information provided on the website, and any Goods, is entirely at your own risk.

11. Delivery

(a) The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.

(b) The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.

(c) The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.

(d) If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:

(i) this does not constitute a repudiation of the contract of sale formed by these conditions; and

(ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.

(e) Subject to the Seller’s obligations under clause 18(b), under no circumstances will the Seller be liable for any direct, indirect or consequential losses arising due to:

(i) a failure or delay in the delivery of Goods;

(ii) delivery of Goods to an incorrect address; or

(iii) damage, loss or theft of Goods at any time after they are posted by the Seller.

12. Loss or damage in transit

(a) The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).

(b) The Seller must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Buyer:

(i) has notified the Seller and the carrier in writing immediately after loss or damage is discovered by the Buyer on receipt of Goods; and

(ii) serves a claim for compensation on the carrier within 3 days of the date of receipt of the Goods.

13. Disclaimer

(a) Except for losses attributable to breaches of the consumer guarantees in the Australian Consumer Law, we do not accept any liability for any direct loss, indirect loss, Consequential Loss or damage, however caused (including through negligence), which you may incur or suffer in connection with:

(i) our website;

(ii) the Goods; or

(iii) your use or reliance on information or content contained on or accessed through our website.

(b) Except for losses attributable to breaches of the consumer guarantees in the Australian Consumer Law, to the extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise in connection with the Goods or our website are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way.

(c) Where the Products are not acquired for personal, domestic or household use or consumption, our liability for any direct loss, indirect loss, Consequential Loss or damage, however caused (including through negligence), which you may incur or suffer in connection with:

(i) the website;

(ii) the Goods; or

(iii) your use or reliance on information or content obtained through our website;

is limited to (at our election) one or more of the following:-

(iv) replacement of the Goods or the supply of equivalent Goods; or

(v) the payment of the cost of replacing the Goods or of acquiring equivalent Goods.

(d) Nothing in these terms and conditions excludes any guarantees or liability arising under the Australian Consumer Law or any other statute if and to the extent that liability cannot be lawfully excluded.

14. Consumer guarantees

The Seller’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:

(a) in the case of Goods, any one or more of:

(i) the replacement of the Goods or the supply of equivalent goods;

(ii) the repair of the Goods;

(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; and

(iv) the payment of the cost of having the Goods repaired; or

(b) in the case of services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

15. Indemnification of suppliers by manufacturers

The Seller’s liability under section 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:

(a) the cost of replacing the Goods;

(b) the cost of obtaining equivalent goods; or

whichever is the lowest amount.

16. Prices

(a) Unless otherwise stated all prices quoted by vendor are inclusive of Goods and Services Tax (GST).

(b) Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates). Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.

(c) If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.

17. Payment

(a) The purchase price for the Goods plus GST where applicable is payable at the time the Customer places its order (Payment Due Date) unless other terms of payment are agreed in writing between the parties.

(b) The Buyer must pay interest on any outstanding amount not paid by Payment Due Date. Interest will be calculated on the basis of the Commonwealth Bank of Australia Business Indicator Rate as published from time to time plus 2%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.

18. Buyer’s property

(a) Ownership and risk in the Goods will pass to the Buyer from the moment they are posted by the Seller.

(b) Goods will be posted to the address notified in the Buyer’s order.

19. Storage

The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 3 business days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.

20. Returned Goods

(a) Except for any provisions to the contrary contained in these terms and conditions, or as required by law, the Seller is not under any duty to accept Goods returned by the Buyer. The Seller will do so only on terms to be agreed in writing in each individual case.

(b) If the Seller agrees to accept returned Goods from the Buyer under clause 20(a) of this clause, the Buyer must return the Goods to the Seller at the Seller’s place of business referred to at the head of these conditions.

(c) Other than returns for faulty Goods or where the Seller is otherwise legally required to provide a full refund, the Seller may charge a restocking fee of 20% of the price of the relevant Goods.¬† Customer acknowledges that such fee is a genuine pre-estimate of Seller’s costs and expenses in connection with the supply and return of such Goods.

21. Goods sold

All Goods to be supplied by the Seller to the Buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

22. Cancellation

No order may be cancelled by the Buyer except with the written consent of the Seller. If there is a cancellation of the order by the Buyer, the Seller has the right to claim indemnity against all losses suffered by the Seller as a result of such cancellation.

23. General

(a) The Seller is not liable for any failure to properly comply with the terms and conditions.

(b) If any clause or part of any clause of these terms and conditions is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal.¬† If this is not possible, the clause (or where possible, the offending part) is to be severed from these terms and conditions without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

(c) A right created by these terms and conditions cannot be waived by the Seller except in writing signed by the Seller.¬† Delay by the Seller in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by the Seller of a right operate as a subsequent waiver of the same right or of any other right of the Seller.

24. Governing law

These terms and conditions shall be governed by and construed in accordance with the laws of the State of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of Queensland.