About the Website
XCEL TECH PTY LTD’s website www.xceltech.com.au (the ‘Website’) provides you with an opportunity to browse various products that have been listed through the Website (the ‘Products’). The Website provides this service by way of granting you access to the information published on the Website.
The Website is operated by XCEL TECH PTY LTD (ACN 657 535 549). Access to and use of the Website, or any of its associated Products, is provided by XCEL TECH PTY LTD. Please read these terms and conditions (the ‘Terms’) carefully. By using, browsing, and/or reading the Website, this signifies that you have read, understood, and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
XCEL TECH PTY LTD reserves the right to review and change any of the Terms by updating the Terms and Conditions of Use page at its sole discretion. When XCEL TECH PTY LTD updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
- You accept the Terms by remaining on the Website.
- You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by XCEL TECH PTY LTD in the user interface.
Copyright and Intellectual Property
(a) The Website, the Purchase Services and all of the related products of XCEL TECH PTY LTD are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the ‘Content’) are owned or controlled for these purposes and are reserved by XCEL TECH PTY LTD or its contributors.
(b) XCEL TECH PTY LTD retains all rights, title, and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer to you:
- the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of XCEL TECH PTY LTD; or
- the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
- a system or process that is the subject of a patent, registered design, or copyright (or an adaptation or modification of such a system or process).
(c) You may not, without the prior written permission of XCEL TECH PTY LTD and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third-party content for any purpose. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
(b) Your personal information will not be disclosed to any third party or used in any other form or for any other purpose than to contact you in relation to your enquiries on our Website.
(a) You acknowledge that XCEL TECH PTY LTD does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.
(b) XCEL TECH PTY LTD will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.
(c) Nothing in these Terms limits or excludes any guarantees, warranties, representations, or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
(d) Subject to this clause, and to the extent permitted by law:
- all terms, guarantees, warranties, representations, or conditions which are not expressly stated in these Terms are excluded; and
- XCEL TECH PTY LTD will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with these Terms, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
(e) Use of the Website and any of the products of XCEL TECH PTY LTD is at your own risk. Everything on the Website and information about the Products of XCEL TECH PTY LTD are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of XCEL TECH PTY LTD make any express or implied representation or warranty about its Content or any products (including the products of XCEL TECH PTY LTD) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
- failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
- the accuracy, suitability or currency of any information on the Website, or any of its Content related products (including third party material and advertisements on the Website);
- costs incurred as a result of you using the Website, or any of the Products; the Content or operation in respect to links which are provided for the User’s;
- convenience; or
- any defamatory, threatening, offensive or unlawful conduct of third parties or
- publication of any materials relating to or constituting such conduct.
Limitation of Liability
(a) You expressly understand and agree that XCEL TECH PTY LTD, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
(b) XCEL TECH PTY LTD is not responsible or liable in any manner for any site content (including the Content and Third-Party Content) posted on the Website, whether posted or caused by users of the website of XCEL TECH PTY LTD, by third parties or by any of the Purchase Services offered by XCEL TECH PTY LTD.
You agree to indemnify XCEL TECH PTY LTD, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any Content you post through the Website;
(b) any direct or indirect consequences of you accessing or using the Website or attempts to do so and any breach by you or your agents of these Terms;
- any breach of the Terms.
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
- Within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
- If for any reason whatsoever, 28 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the General Manager of the XCEL TECH PTY LTD or his or her nominee;
- The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation; and
- The mediation will be held in Brisbane, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
(e) Termination of Mediation:
If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
Venue and Jurisdiction
(a) The Purchase Services offered by XCEL TECH PTY LTD is intended to be viewed by residents of Australia.
(b) In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.
(a) The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland Australia, without reference to conflict of law principles, notwithstanding mandatory rules.
(b)The validity of this governing law clause is not contested.
Independent Legal Advice
Both XCEL TECH PTY LTD and visitors of the Website confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.