WEBSITE TERMS AND CONDITIONS
Last Updated 17th August 2021
GLANBIA PERFORMANCE NUTRITION PTY LIMITED (ABN 59 161 129 264) (“ON,” “Company” or “we”) located at 4/247 Ferntree Gully Rd, Mt Waverley Victoria 3149, Australia operates the website at www.optimumnutrition.com/en-au and associated mobile app (together, the “Site”).
We may change these Terms from time to time and we reserve the right to make changes to these Terms. Any such changes will take effect after notice of the changes has been provided by, for example, posting on the Site or notification by email. We will endeavour to notify you of any material changes to these Terms no less than 7 days before the changes come into effect. However, you will need to ensure that you regularly check these Terms to ensure that you are familiar with the latest version of these Terms. Your continued use of our Site will be deemed to be your acceptance of any changes to these Terms.
If you do not agree to these Terms, you must not use our Site.
TABLE OF CONTENTS
- Assignment; Waiver
- Governing Law
- Injunctive Relief
- Export of Products
- Legal Equivalency
PRODUCT DESCRIPTIONS AND PRICING
The Company strives to ensure that the Site is as accurate as possible, including the description of any products. However, it is possible that our Site will contain errors and we reserve the right to correct any errors or inaccuracies at any time. This may include information about pricing and availability of products. If you have purchased a product, and the information on our Site contains errors or is inaccurate, we will, at our discretion, either contact you for instructions before shipping your order or cancel your order and notify you of such cancellation. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. While it is our practice to confirm orders by email, receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information provided to us by you prior to the acceptance and/or shipment of any order. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws in regard to the possession, use and sale of any item purchased from the Site. By placing an order on our Site, you represent that the products ordered from us will be used by you only in a lawful manner.
PAYMENT TERMS; INTEREST; ORDERS
All orders placed through the Site are subject to Company’s acceptance of the order. Terms of payment are within the Company’s sole discretion, and unless otherwise agreed to by the Company, payment must be received by the Company prior to the Company’s acceptance of an order. Payment for product orders will be accepted via certain payment methods accepted by our third party payment processing service. Your order is subject to cancellation by Company at Company’s sole discretion. All amounts due are payable in AUS dollars. If the Company has accepted your order prior to full payment, any amount not paid to the Company by you when due will be subject to a finance charge of one and one-half percent (1-1/2%) per month, or the maximum amount allowed by law if lower, for the unpaid balance due. You shall be responsible for any expenses and/or fees (including but not limited to attorneys’ fees), incurred by the Company in collecting past due amounts from you.
SHIPPING; RISK OF LOSS; TITLE; TAXES
Shipping and handling charges are payable in addition to the product pricing listed on the Site unless otherwise expressly indicated at the time of sale. Shipping dates are estimates only. Risk of loss and title for all items purchased from the Company pass to you upon our delivery to the carrier. Title to all intellectual property rights in products will remain with the applicable licensor(s).
CONTENT AND TRADEMARKS
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code, including but not limited to the design, structure, selection, coordination, expression, "look and feel" and arrangement of such content, contained on the Site (collectively, "Content") is owned, controlled or licensed by or to the Company. Title to all intellectual property rights in the Content will at all times remain with Company.
Certain trademarks, trade names, service marks and logos used or displayed on the Site are registered and unregistered trademarks, trade names and service marks of the Company and its related bodies corporate, and other third party trademarks, trade names and service marks used or displayed on the Site are the registered and unregistered trademarks, trade names and service marks of their respective owners (collectively, "Trademarks"). Nothing in these Terms or otherwise provided on the Site grants or should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the Trademarks without express prior written consent of the Company or such other owner. Neither the Company's name nor any of the Trademarks may be used in any way, including but not limited to any advertising or publicity regarding distribution of materials on the Site, without the Company's prior written consent. Without limiting the generality of the foregoing, the Company prohibits the use of its name or any Trademarks as a link to any website unless such link is approved in advance by the Company in writing.
PERMITTED USE OF THE SITE AND CONTENT
Except as expressly provided in these Terms, no part of the Site and no Content may be used, copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way, including mirroring, to any other computer, server, web site or other medium for publication or distribution or for any commercial enterprise without the Company's express prior written consent. You may use information from the Site relating to products and services which is purposely made available by the Company for downloading from the Site, provided that you (i) do not remove any proprietary notice language in all copies of such documents; (ii) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (iii) make no modifications to any such information, and (iv) do not make any additional representations or warranties relating to such information.
VIRUSES, HACKING AND OTHER OFFENCES
You must not misuse the Site by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or harmful. You must not attempt to gain unauthorized access to the Site, the server on which the Site is stored, or any server, computer or database connected to the Site. You must not attack the Site via a denial-of-service attack or a distributed denial-of-service attack. By breaching this provision, you may commit a criminal offense. The Company will report any such breach to the relevant law enforcement authorities and will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Site will cease immediately.
The Company will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Site or your downloading any material posted on the Site or any third-party website linked to the Site.
From time to time, the Company may provide interactive services on the Site, including but not limited to chat rooms, bulletin boards, blogs and forums. The Company disclaims any obligation to oversee, monitor or moderate any interactive services provided on the Site, and in no event shall the Company be liable for any loss or damage arising from the use of any interactive service by a user in contravention with the Company's content standards. If you post any content to the Site, you hereby grant the Company and its related bodies corporate and licensees a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, publicly display, publicly perform, modify, sublicense, and distribute such content and incorporate it in other works, in whole or in part, in any manner and any media now known or hereafter developed. You grant the Company and its related bodies corporate and licensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own such content or otherwise have sufficient rights in the content to grant the foregoing license without infringing or violating the rights of any third party; 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 the Company for all claims resulting from the content you supply. The Company has the right but not the obligation to monitor and edit or remove any activity or content. The Company takes no responsibility and assumes no liability for any content posted on the Site by you or any third party.
The following standards apply to any and all material which you contribute to the Site ("Contributions") and to any associated interactive services:
- Be accurate (when they state facts);
- Be genuinely held (when they state opinions);
- Be appropriate and adhere to community morals, ethics and standards; and
- Comply with all applicable laws in Australia and in any country from which they are posted.
Contributions must not:
- Contain any material that is inappropriate, defamatory, obscene, offensive, discriminatory or hateful;
- Promote violence or any illegal activity;
- Make any therapeutic claims about products;
- Infringe any copyright, trademark or other intellectual property right of any other person;
- Be made in breach of any legal duty owed to any other person, such as a contractual or other duty of confidence;
- Abuse or invade another person's privacy or cause annoyance, inconvenience or needless anxiety;
- Be used to impersonate any person or misrepresent your identity or affiliation with any person; or
- Give the impression that they emanate from the Company, if that is not the case.
The Company will determine, in its sole discretion, whether there has been a breach of these content standards through your use of the Site. When the Company determines that a breach has occurred, the Company reserves the right to take such action as it deems appropriate (acting reasonably), including but not limited to one or more of the following:
- Immediate, temporary or permanent withdrawal of your right to use the Site;
- Immediate, temporary or permanent removal of any Contribution by you;
- Legal proceedings against you for reimbursement of all costs (including but not limited to administrative and legal costs) incurred by the Company resulting from the breach; and
- Disclosure of such information to law enforcement authorities as the Company deems reasonably necessary.
In no event shall the Company be liable for any actions taken in response to any breach of these content standards.
OTHER TERMS AND CONDITIONS
Additional terms and conditions may apply for specific features of the Site, including contests, promotions or other similar features, all of which are made a part of these Terms by this reference. These additional terms and conditions will be made available to you on the Site at the relevant time of the feature. You shall abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature. If there is an inconsistency between these Terms and the terms of the relevant feature, the latter terms shall apply to your access to, use or participation in the feature. The Company's obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on this Site should be construed to alter such agreements. The Company may make changes to any products or services offered on the Site at any time without notice.
The Site may be unavailable from time to time. We will not be liable for any reason if the Site is unavailable at any time for any period of time.
HEALTH RELATED INFORMATION
Information and statements regarding dietary supplements have not been evaluated by the Therapeutic Goods Administration and are not intended to diagnose, treat, cure, or prevent any disease. You should read carefully all product labels and packaging prior to use. Information available on or through the Site is not meant to substitute the advice provided by your doctor or other health care professional. You should not use the information available on or through the Site, including but not limited to information that may be provided by healthcare or nutrition professionals, for diagnosing or treating a health condition or disease.
ACCOUNTS, PASSWORDS AND SECURITY
Certain features or services offered on or through the Site may require you to open an account. You are entirely responsible for maintaining the accuracy and confidentiality of the information relating to your account, including your password, and for any and all activity that occurs under your account. You shall notify the Company immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by the Company or any other user of or visitor to the Site due to someone else using your account as a result of your failing to keep your account information secure and confidential. You may not use anyone else's account at any time without the express permission and consent of the holder of that account. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. The Company reserves the right to inactivate your account if the Company believes, acting reasonably, that you have provided inaccurate information or there is unauthorised use of your account.
By using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You acknowledge that any message or information that you send to the Site may be read or intercepted by others which is outside the control of the Company, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted. The Company is not liable to you for any loss or damage arising from your messages or information being read or intercepted by others.
LINKS TO THE SITE
The Company prohibits the creation or maintenance of any link from another website to the Site or any portion thereof without the Company’s prior written consent. Similarly, the Company prohibits the running or displaying of this Site or any Content in frames or through similar means on another website without the Company’s prior written permission. Any permitted links to the Site must comply with all applicable laws, rules and regulations.
LINKS TO OTHER SITES
The Company prohibits the creation or maintenance of any link to another website from the Site or any portion thereof without the Company's prior written consent. Any permitted links to the Site must comply with all applicable laws, rules and regulations.
The Company reserves the right to at any time, in its sole discretion and without prior notice, (i) modify the Site; and (ii) modify or discontinue any of the products or services available on the Site. The Company will not be liable to you for any loss or damage arising from any such modification.
You acknowledge and agree that Company may at any time (and without notice) restrict your access and use of the Site (including your account on the Site) if the Company believes in its sole discretion (acting reasonably) that you have breached these Terms. You agree that the Company will not be liable to you or any third party for restricting your access and use of the Site. You agree that upon termination of your access to the Site, the Company may hold all files and information related to your account for a period of time in accordance with its legal obligations and may delete or destroy those files and information following the conclusion of the relevant period of time. If the Company restricts your access to your account and the Site, you acknowledge that you will immediately return or destroy any Company Software in your possession or control.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW:
- YOUR USE OF THE SITE AND ANY OF THE PRODUCTS OR SERVICES AVAILABLE ON THE SITE ARE USED BY YOU AT YOUR SOLE RISK;
- THE SITE (INCLUDING SERVICES AND PRODUCTS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED ON THE SITE MAY INCLUDE INACCURACIES, ERRORS AND OMISSIONS.
THE COMPANY, ITS RELATED BODIES CORPORATE AND EACH OF THE OFFICERS, EMPLOYEES, AGENTS AND LICENSORS OF THE AFOREMENTIOEND: (A) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) MAKE NO WARRANTY THAT (I) THE SERVICE AND THE PRODUCTS AVAILABLE THEREIN WILL MEET YOUR REQUIREMENTS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) ANY PRODUCT, SERVICE OR INFORMATION ON THE SITE WILL BE ACCURATE, APPROPRIATE, COMPLETE, CORRECT, RELIABLE, SUFFICIENT OR TIMELY, (IV) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE, AND (V) ANY ERRORS IN THE SITE WILL BE FIXED; AND (C) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OR THE SITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY YOU THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. THE COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY LAW, THE COMPANY, ITS RELATED BODIES CORPORATE AND OFFICERS, EMPLOYEES, AGENTS AND LICENSORS OF THE AFOREMENTIONED, SHALL NOT BE LIABLE FOR AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL ACTUAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, INTERRUPTION OF BUSINESS, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE OR OTHER WEB SITE(S) YOU MAY ACCESS THROUGH THE SITE(IF ANY), CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, LOSS OF GOODWILL, LOSS OF USE, LOSS OF CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM: (I) THE USE OR THE INABILITY TO USE THE SITE; (II) ANY INFORMATION, PRODUCTS AND SERVICES OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE SITE; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ERROR OR INADEQUACY OF ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (VI) PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY REGULATIONS OR CODES, OR MISAPPROPRIATION; (VII) INJURY TO PERSON OR PROPERTY ARISING FROM OR RELATED TO YOUR ACCESS TO AND USE OF THE SITE; (VII) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (VIII) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (IX) ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER ACTUALLY OR POTENTIALLY HARMFUL CODE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE; AND/OR (X) ANY OTHER MATTER RELATING TO YOUR USE OF THE SITE AND/OR THE PRODUCTS OR SERVICES AVAILABLE ON THE SITE; WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU ALSO AGREE THAT THE COMPANY, ITS RELATED BODIES CORPORATE AND OFFICERS, EMPLOYEES, AGENTS AND LICENSORS OF THE AFOREMENTIONED, WILL NOT BE LIABLE FOR ANY (A) INTERRUPTION OF BUSINESS, (B) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE OR OTHER SITE(S) YOU ACCESS THROUGH THE SITE; (C) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; OR (D) EVENTS BEYOND COMPANY’S REASONABLE CONTROL. DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE LIABILITY OF THE COMPANY, ITS RELATED BODIES CORPORATE OR OFFICERS, EMPLOYEES, AGENTS, AND/OR LICENSORS OF THE AFOREMENTIONED, IF ANY, TO YOU OR TO ANY THIRD PARTY EXCEED FIFTY DOLLARS ($50.00). YOU SHALL NOT BE ENTITLED UNDER LOCAL LAW OR OTHERWISE TO RECEIVE ANY PAYMENT FROM THE COMPANY, ITS RELATED BODIES CORPORATE OR OFFICERS, EMPLOYEES, AGENTS AND LICENSORS OF THE AFOREMENTIONED, WHETHER FOR ACTUAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES AS A RESULT OF EXPIRATION OR TERMINATION OF THE TERMS OR TERMINATION OF YOUR ACCESS TO THE SITE, ALL OF WHICH YOU EXPRESSLY WAIVE.
YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY, ITS RELATED BODIES CORPORATE AND OFFICERS, EMPLOYEES, AGENTS AND LICENSORS OF THE AOFREMENTIONED, SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
1. Assignment; Waiver
You may not assign these Terms or any rights granted herein. Any attempt by you to transfer any of the rights, duties or obligations hereunder is void. The Company may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of the Company and its successors and assigns. The failure of the Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
2. Governing law
These Terms are governed by the laws of Victoria, Australia and are subject to the non-exclusive jurisdiction of the courts of Victoria.
3. Injunctive Relief
You hereby acknowledge that a breach by you of these Terms may cause irreparable harm and significant injury to the Company that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that the Company shall be entitled, without waiving any additional rights or remedies otherwise available to the Company at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by you. Notwithstanding anything to the contrary, the Company shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction.
You acknowledge and agree that, except in the case of legal action brought by the Company to obtain injunctive or other equitable relief of whatsoever kind, all of which may be brought in any court or other tribunal of competent jurisdiction, if you have any complaint or controversy, or allege a claim, dispute or breach by the Company of these Terms, you will contact the Company on [email protected] in the first instance and enter into good faith discussions to settle the issue.
5. Export of Products
You acknowledge that you shall not export or re-export, or allow the export or re-export of, any of the products and/or service obtained from the Site in breach of any applicable laws.
If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
7. Legal Equivalency
These Terms and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
FEEDBACK AND INFORMATION
Any feedback you provide at the Site shall be deemed to be non-confidential. The Company shall be free to use such information on an unrestricted basis. The information contained in the Site is subject to change without notice