This is an important document which you must consider carefully when choosing whether to use the Store website at any time.
This Agreement was last modified on 30 June, 2014.
THE FOLLOWING DESCRIBES THE TERMS ON WHICH THE STORE OFFERS YOU ACCESS TO OUR SERVICES.
Acceptance of User Agreement
This user agreement (“User Agreement” or “Agreement”) is a contract between you and Freelancer Marketplace (Switzerland) GmbH, trading as Freelancer Marketplace, including its corporate subsidiaries and affiliates, (together “Store”, “we” or “us”) which operates the Freelancer Marketplace (“Site”). The Site is offered to you conditional on your acceptance of the User Agreement. Please review the terms and conditions set out below before using the Site. Your continued use of the Site after such time will signify your acceptance of this User Agreement.
This User Agreement and all policies and terms incorporated by reference constitute the entire agreement between you and the Store as to its subject matter.
If you do not agree to any of these terms and conditions you should immediately cease to use the Site. Please note that we may close, suspend, or limit your access to your Store account (“Account”) or the Services provided by us on the Site (“Services”), and/or limit access to your funds if you carry out activities which are in contravention of this User Agreement and its associated policies incorporated by reference.
Amendment of User Agreement
The Store may amend or modify this User Agreement in whole or in part from time to time, without notice, by posting an amended User Agreement on the Site or any linked information. Such updated version of the User Agreement will be effective at the time we post it.
The Store offers its Services to its Users. We shall have absolute discretion as to whether or not we accept a particular applicant or site for participation in the service. The Site is available only to individuals or corporate entities who can form legally binding contracts under applicable law. Without limiting the foregoing, this Site are not available to persons under 18 years of age. If Users do not qualify, they cannot use any of the Store's Services including, but not limited to, those that require the User's ability to form legally binding contracts. Each User is responsible for what occurs on their Account and must report any unauthorised use of their Account to us.
The terms "You", "Your", "User", or "Users" refer to anyone accessing our Services or Site for any reason. "Products" means any products available for sale on the Site. “Transaction” means a sale of Products on the Site.
The Store provides an online venue for Users to sell Products (“Sellers”) and Users to buy such Products (“Buyers”)(respectively or jointly as the "Parties" and individually as a "Party").
3. LEGAL RELATIONSHIP BETWEEN YOU AND THE STORE
The Store reserves the right to terminate the participation of any User without reason but expressly including any User that we judge to be in violation of the User Agreement. Without limiting the foregoing, we may terminate the participation of a User if we think that they are creating problems, legal liabilities (actual or potential), infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
3.2 Consequences of termination
In the event of termination, Users found in violation of the User Agreement will not receive any credit or payment from the Store.
Without limiting the Store's other remedies, to the extent you are in violation of this User Agreement, you must pay the Store for all fees owed to us and reimburse us for all losses and costs (including any and all Store employee time) and reasonable expenses (including legal fees) related to investigating such breach and collecting such fees.
You and the Store agree that the damages that the Store will sustain as a result of actions that breach the User Agreement will be substantial, potentially including (without limitation) fines and other related expenses from its payment processors and service providers, but may be extremely difficult and impracticable to ascertain. If you engage in such activities, then the Store may fine you up to US$3,000.00 for each such violation and/or the Store may take legal action against you to recover losses that are in excess of the amount charged. You acknowledge and agree that a fine up to US$3,000.00 is presently a reasonable pre-estimate or minimum estimate of the Store's damages, considering all currently existing circumstances, including (without limitation) the relationship of the sum to the range of harm to the Store that reasonably could be anticipated and the anticipation that proof of actual damages may be impractical or extremely difficult.
You agree that the Store is entitled to deduct such charges directly from any existing balance in the offending Account, or any other Account owned by you.
Users that are terminated by us on any basis other than violation of this User Agreement will be entitled to receive any payment due from us.
In the event of termination, you will have no claim whatsoever against us in respect of any such suspension or termination of your membership.
3.3 Relationship between Users
The only parties to a Transaction are the Seller and the Buyer. Upon the Buyer buying a Product from a Seller, the Seller agrees to deliver the Product in accordance with the following agreements: (1) the User Agreement; and (2) the User Sales Agreement between the Buyer and Seller available on the Site, as amended from time to time; (3) any other contractual provisions accepted by both the Seller and Buyer uploaded to the Site, to the extent not inconsistent with the User Agreement; and (4) the Product terms as posted to the Site, to the extent not inconsistent with the User Agreement.
You agree not to enter into any contractual provisions in conflict with the User Agreement. Any provision of a member contract in conflict with the User Agreement is void.
3.4 User Responsibilities
The responsibilities of the Seller and Buyer are set out in the User Sales Agreement between the Seller and Buyer.
When you enter into a transaction you create a legally binding contract with another User, unless the transaction is prohibited by law or by this User Agreement.
You are responsible for ensuring that you comply with your obligations to other Users. If you do not, you may become liable to that User(s). You must ensure that you are aware of any domestic laws (including common law) international laws, statutes, ordinances and regulations relevant to you as a Seller or Buyer, or in any other uses you make of the Site.
If another user breaches any obligation to you are solely responsible for enforcing any rights that you may have. For the avoidance of doubt, the Store has no responsibility for enforcing any User rights.
3.5 No Insurance
The Store does not offer any form of insurance or other Buyer protection which will assist you, because our Site merely provides the online venue for Users to offer, sell, and buy Products and we are not otherwise involved in the transactions and interactions between Buyers and Sellers. However, some forms of payment permitted on the Site, such as PayPal or credit card, may offer limited buyer or seller protection or chargeback services and you should familiarise yourself with these before proceeding with a transaction of any kind through the Site.
Because user identification on the Internet is difficult, we cannot and do not confirm each User's purported identity.
3.6 Independent Contractors
Each User acknowledges and agrees that the relationship between Users is that of independent contractors. Nothing in this User Agreement creates a partnership, joint venture, agency or employment relationship between: (1) Users; or (2) between us and any User.
3.7 Services offered by the Store
The Store offers a wide range of tools, content, products, services, benefits, and other resources on the Site of particular interest to Sellers and to enable Sellers to efficiently sell Products online. These Services are for use only under a non-exclusive, non-transferable, and non-assignable license under these terms and conditions of use. You do not have the right to copy, sell, or otherwise exploit for any commercial purpose the Services or content of the Site (in whole or in part), access to this service or use of this service.
Some of the Services offered at the Site may include feedback to questions by Users of this service and/or articles with original content and opinions. Use of this content or links to this content is at the User's own risk. No warranty is made that the information is accurate or reliable and the Store and its related entities, directors, officers and agents disclaim all liability and responsibility for any direct or indirect loss or damage you may suffer relying on anything contained in or omitted from this content.
The User understands and agrees to the following terms:
• Our Site merely acts as an online venue to allow Users to offer and buy Products. You acknowledge and agree that the Store is not involved in the actual transaction between the Sellers and Buyers. As a result, the Store has no control over the quality or legality of the Products provided by Users on our Site, or the ability of Sellers to provide the Products described on the Site or the Buyers to pay for the Products. We do not guarantee that a User will actually complete a transaction or act lawfully in using the Site.
• Some of the content provided at the Site may relate to various subjects such as information pertaining to legal matters, financial matters, health matters, and other matters for which the content of is provided in an advisory nature. This information is provided solely for informational and general non-advisory purposes. If desired, Users should use their own efforts to confirm such information with a professional(s) in the pertinent field(s). All of the information that the Store provides should not be considered professional, medical, legal, technical, or any other discipline-specific advice.
• The Site is a dynamic time-sensitive web site. As such, the information on the Site will be changed frequently. It is possible that some information could be considered offensive, harmful, or inaccurate, and in some cases may be mislabeled or deceptively labeled accidentally by the Store or accidentally or purposefully by a third-party, regardless of whether such third parties are with or without a legitimate business purpose.
• The Store provides unmonitored access to third-party content. The Store is only acting as a venue and/or portal, and has no liability based on, or related to, the third-party content on this Site, whether arising under the laws of copyright or other intellectual property, defamation, libel, privacy, obscenity, or any other legal discipline. The Site may contain links to third-party web sites. The Store does not control nor always review the web sites to which we link from the Site. We, therefore, cannot endorse the content, products, services, practices, policies, or performance of the web sites we link to from the Site, and Users should not treat any link as such an endorsement or acceptance of veracity or value.
• The Store does not have the resources to, nor does it undertake any obligation to, control, research, verify, validate, or approve the content that is received or viewed on the Site. We expect that the User will undertake necessary activities and practices and will use caution and common sense when using the Store for User's Account.
All fees are set forth in the summary of the Store’s fees and charges which can be found on the Site. All fees will be assessed in US dollars. Your Account and all transactions are made and displayed in US dollars unless otherwise specified.
The Store earns fees for creating, hosting, maintaining, and providing the Site, and for all Services delivered by the Store that are accessible through the Site and to cover expenses and fees the Store incurs to banks, credit card companies, PayPal, and payment processors. After deducting such amounts, the Store transfers the remaining payment amount to the Seller.
The Store charges fees in relation to posting a featured Product; a sale fee; and other miscellaneous fees that are described on the Site. Sellers make a commission on every item sold according to the currently posted rate schedule, which the Store reserves the right to amend at any time (See: http://www.freelancer.com/marketplace/exclusivity.php).
Users can choose various membership programs to subscribe to different levels of
participation on the Site which will incur additional fees.
5. AFFILIATE PROGRAM
Participants in the affiliate program may receive referral commissions. The referral commission paid out will be the one listed on the affiliate page of the Site related to Store sales. You may not refer yourself, nor sign up for multiple Accounts to collect referral fees. You may also not partner with any other User to share/transfer the commission made from your own Account, or else both parties will be immediately suspended from the service without payment. The Store reserves the right to delay or cancel sending affiliate earnings if it believes the referred User will not pay the fees they were charged, since affiliate commissions are based on those fees.
6.1 Opening Account
To become a User and access the Site and Services you must register for an "Account”. You agree to provide true, accurate and complete information as prompted by the registration form and all forms you access on the Site, and to update this information to maintain its truthfulness, accuracy and completeness.
You agree that you will not receive interest or other earnings on the funds that the Store handles. The Store may receive interest on those funds. The Store will not be liable for any lost interest on such funds.
All amounts are stated in and all payments will be made in US funds. The Store reserves the right to suspend a withdrawal if the source of the funds is suspected to be fraudulent. Any funds received from an Account having made a fraudulent deposit (e.g. stolen credit card) will be reversed immediately. If in a fraudulent payment situation a withdrawal has already been processed, you will be expected to return the funds to your Account or face Account termination and any other remedies available to the Store to recover its funds.
Any User that the Store removes from the service due to violation of the User Agreement will receive no credit or payment and will become liable for certain fees described in this User Agreement.
The Store requires you to make all payments to the Store and to make payments to and accept payments from other Users in the purchase and sale of Products for directly through the mechanisms available on the Site. You understand and agree that the Store will not hold funds delivered to the Store from Users for the purchase and sale of Services in a separate account, but may commingle and deposit such funds with other funds to be paid to other Users and with funds of the Store in any account, at any institution, or in any other manner the Store may decide in its sole discretion from time to time. In addition, you understand that such commingled funds could be used to pay other Users and by the Store for general corporate purposes or otherwise, provided that the Store will remain contractually obligated to make payment to you, as a Seller or Buyer, for any purchases and sales of Products provided by you through the Store. To the extent the Store is obligated to make payment to you, you will be an unsecured creditor of the Store.
You acknowledge that: (1) the Store is not a bank or other licensed financial institution and does not provide banking services; (2) the amounts shown as on deposit in a User Account are not segregated into a separate account but represent unsecured obligations of the Store to the User with respect to the purchase and sale of Services through the Store; (3) the Store is not acting as a trustee or fiduciary with respect to such funds or payments, but is acting only as an agent and (4) amounts transferred through or stored in the payment service are not insured or guaranteed deposits. Your Account will not constitute a milestone. By initiating and sending payments through the Store, you appoint the Store as your agent to deal with those funds subject to these terms and conditions.
6.4 Inactive Accounts
User Accounts that have been inactive for more than 365 days (“Inactive Accounts”) will incur a monthly inactive account fee of US$10, until either the Account is terminated or reactivated.
The Store reserves the right to cancel Inactive Accounts with a nil or negative balance.
You acknowledge and agree that any chargebacks (a chargeback occurs when a Buyer rejects or reverses a charge on his or her credit card through the credit card issuer) on funds paid to you by Buyers through the Site are your responsibility and you will not hold the Store liable for such. You agree that the Store may reverse any such payments that are subject to chargeback via our payment processors. To cover the cost of processing chargebacks, the Store assesses a US$20.00 fee to Users for credit and debit card payment chargebacks.
6.6 Insufficient funds in Accounts
If there are not sufficient funds in your User Account to meet outstanding fees and charges, the Store reserves the right to collect any amounts owing to the Store by any other legal means.
You are responsible for paying any taxes, including any goods and services or value added taxes, which may be applicable depending on the jurisdiction of the Services provided by the Store. These taxes will be added to fees billed to you, if applicable.
7. AVOIDING COMMISSIONS
7.1 Prohibition on negotiation of fee outside of Site
You are strictly prohibited from attempting to negotiate the fee for a Product with another User directly (outside of the Store) after that Product has been posted to the Site. Both the Seller and Buyer are responsible for notifying the Store if a User attempts to circumvent this requirement. If we discover that a User has sought to be paid for a Product outside of the terms of this User Agreement, we reserve the right to deduct double the fee for the amount that should have been reported. We believe our commissions are very fair and justified for the service we provide, therefore we will absolutely not tolerate any of this activity on the Site.
Users agree not to post their e-mail address on the site, except in the e-mail field of the sign-up form, or when asked by us at any other time. There should be no need to give anyone your e-mail address. All communication can be done via the message board on the Site. This restriction does not only apply to e-mail addresses, but to all methods of communication, including phone, ICQ, AIM, Skype, Gtalk, MSN Messenger.
7.3 Providing contact information
You are prohibited from making direct contact with another User. This includes giving out your e-mail address, ICQ number, Skype, Gtalk, AIM, MSN, phone number, or any other method of contact outside of this site. The Store provides you with message boards, which should be sufficient for pre-sale communication.
8. USER CONTENT
The User is solely responsible for content or any other information the User provides to the Store. User understands and agrees to the following:
• The Store is only acting as a venue for the online distribution and publication of User content. However, no warranties as to the actual distribution or publication of User content are made or implied. The Store has the right (but no obligation) to take any action deemed appropriate with respect to User content if it is believed that such content may create liability for the Store, harm its business operation or reputation, or cause the Store to lose the services of its suppliers.
• User represents and warrants that User's content (including all Products): (a) will not infringe upon or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right or proprietary right or right of publicity or privacy; (b) will not violate any law or regulation; (c) will not be defamatory or trade libelous; (d) will not be obscene or contain child pornography; (e) will not include incomplete, false or inaccurate information about User or any other individual; and (f) will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
• By submitting User content to the Store (including, but not limited to creating your Account; posting a Product for sale, resume, posting a profile or sending messages through or to the Store). You hereby grant to the Store a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, display, and perform User content, under all User intellectual property and proprietary rights worldwide.
• No copyrighted material can be posted on the Site except where the User has the legal right to post such material.
9. USER RESTRICTIONS
Users are prohibited from advertising a website on the Site. Any URL posted in a bid, Product description, or the message board, must relate to a Product for sale at the Store.
9.2 Purchase price
Buyers can only purchase Products for the total amount of money that the Seller is requesting for the Product.
9.3 Terms governing purchase
If you buy a Product, you do so on the following terms:
• You cannot cancel an order for a Product once the order has been submitted.
• Unless otherwise specified at the time of purchase, the purchase of the Product includes a non-exclusive, non-transferable licence to use the Product in accordance with the conditions of the applicable licence.
• Ownership of the Product remains with the Seller.
• The Product may not be re-sold by the Buyer unless explicit permission is granted by the license.
You acknowledge and agree that despite the Store’s reasonable precautions, Products may be listed at an incorrect price or with incorrect information due. If this occurs, we expressly reserve the right to cancel or reverse a transaction, even after your order has been confirmed and a payment has been processed. If a transaction is cancelled, we will immediately arrange for any payment to be refunded.
The Buyer agrees that:
• When the Buyer purchases a Product, the Buyer acquires a licence to use that Product. There are different types of licenses and conditions of use, which are set out on the Site. You are responsible for choosing, and warrant that you have chosen, the correct licence to use a Product meet your requirements.
• The Buyer is strictly forbidden from redistributing any of the content of the Site, including but not necessary limited to private messages, documents, support tickets.
• The Buyer will not do anything that, in the judgment and discretion of the Store, is inappropriate to the Store's audience, viewers, or visitors.
• The Buyer will not falsify the Buyer's own or any other identity.
• The Buyer will comply with all of the Store's policies as posted on the Site from time to time.
The Seller agrees that in relation to each Product offered for sale on the Site:
• The Seller owns the intellectual property rights in that Product and no third party intellectual property rights are infringed by that Product.
• that Product does not violate any applicable law or regulation (including any third party's copyright, patent, trademark, trade secret or other proprietary rights or intellectual property rights, rights of publicity, confidentiality or privacy).
• that Product is not obscene and does not contain pornography of any kind and does not constitute or contain material that is adult in nature or harmful to person under the age of 18 years.
• The Product description is not false, inaccurate or misleading or deceptive.
• The Product does not involve fraud or counterfeit or stolen items.
• the Product is safe in every respect and does not contain viruses or other computer codes, files or programs which could cause harm to computer software or hardware.
• the Product would not create any real or potential liability for the Store or cause us to lose any of the services of any of our suppliers (including our internet service provider).
• The sale price of each Product is set by the Store.
• We have the right to remove any Product from sale at our sole discretion and are not required to provide notice or reasons for doing so.
• The Seller will not redistribute any of the content of the Site, including but not necessary limited to private messages, documents, support tickets.
• The Seller will not falsify their own or any other identity.
• The Seller will comply with all Store policies as posted on the Site from time to time.
9.7 General restrictions
Users agree that:
• Users will not use any automated collection mechanism or any manual process to monitor or copy the web pages comprising the Site or the content contained therein without the prior written permission of the Store.
• Users will not distribute unsolicited commercial messages (‘spam’) through the User's Account.
• Users will not contact Sellers through the Site or through information gained from our Site with the intent of subverting them from using our Services.
• Users will not engage in personal attacks, negative or other unfair criticism or other forms of discourteous and unprofessional online conduct or practices.
• Users will not create multiple user Accounts to avoid fees, suspension or bad ratings on the Site.
10. REGISTRATION AND PROCESSING OF YOUR PERSONAL DATA
Your personal information will be processed by the Store in order to fulfil the agreement with You, perform delivery of products etc. Furthermore, we will process your personal information for marketing of campaigns, offers, new products or services. Your personal information may also be transferred between the Store and any associated entity within the Store organisation. At such transfer, personal data may be transferred outside the EEC-area. By entering into this agreement, You hereby approve such processing of your personal information as set forth above, including processing of your personal identification number, and hereby give such consent as required by the Swedish Personal Data Protection Act (Sw. personuppgiftslagen 1998:204). The consent hereby given can in whole or in part be recalled by giving written notice to us. Should you choose to recall your consent, and such recall should make our due performance of the agreement or other obligations difficult, we reserve the right to immediately terminate the agreement. Should you require further information regarding our processing of your personal information, please contact us at the address set forth below.
The Store discloses sensitive personal information only if required to comply with legal obligations or with your consent.
11. TRADE MARKS
Freelancer Marketplace, Freelancer and EUFreelance are trademarks of Freelancer Technology Pty Limited (ACN 142 189 759).
12.1 Copyright of the Store
The content and compilation of content included on the Site, such as text, graphics, logos, icons, images, audio clips, digital downloads and software, are the property of the Store and are protected by Australian and international copyright laws.
12.2 Copyright infringement
It is our policy to respond to clear notices of alleged copyright infringement. Our policy, set out below, is designed to make submitting notices of alleged infringement to us as straightforward as possible while reducing the number of notices that we receive that are fraudulent or difficult to understand or verify.
12.3 DMCA Digital Millennium Copyright Act (United States)
The Digital Millennium Copyright Act 1998, found at 17 U.S.C. § 512 (“DMCA”), provides recourse for owners of copyrighted materials who believe that their rights under United States copyright law have been infringed upon on the Internet.
Under the DMCA, the bona fide owner of copyrighted materials who has a good faith belief that their copyright has been infringed may contact not only the person or entity infringing on their copyright, but may also contact the designated agent of an Internet service provider to report alleged infringements of their protected works, when such alleged infringements appear on pages contained within the system of the Internet service provider (“ISP”).
As the owner of the Site, we are committed to complying with the DMCA. Upon receipt of a properly filed complaint under the DMCA, we will block access to the allegedly infringing material. We will forward a copy of the notification of claimed copyright infringement to the alleged infringer. Anyone who believes in good faith that a notice of copyright infringement has wrongfully been filed against them, may submit a notice as set out below.
12.4 DMCA Notice
If you believe that your copyrighted works are contained on our system and you are a person authorised to act on behalf of the owner of an exclusive right that is allegedly infringed, then we want you to know the proper procedure for notifying us. You should send us a written notice which contains the following:
• Identification of the copyrighted work(s) claimed to have been infringed.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled.
• Information reasonably sufficient to permit us to locate the material.
• Information reasonably sufficient to permit us to contact you, such as a physical address, telephone number, and, if available, an electronic mail address.
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorised by the copyright owner, your agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorised to act on behalf of the owner of an exclusive right that is allegedly infringed.
• A physical signature. You must be a person authorised to act on behalf of the owner of an exclusive right that is allegedly infringed. (Together, “Notice”.)
The Notice specified above is consistent with the form suggested by the United States Digital Millennium Copyright Act (the text of which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov) but we will respond to notices of this form from other jurisdictions as well.
Your Notice to us should be sent to us via a reliable means to "Legal Department - DMCA Compliance" at the address in our ‘contact us’ section of the Site. Generally, you should use certified mail or a carrier that provides not only delivery confirmation but that also requires a signature. While you may email us or call us, this does not constitute a proper Notice to us.
In appropriate circumstances, we will terminate the membership of Users that are repeat infringers. If you believe that a User is a repeat infringer, please follow the instructions above to contact us and provide information sufficient for us to verify that the User is a repeat infringer.
Once we receive your Notice we will follow the procedures outlined above and in the Digital Millennium Copyright Act (United States).
If a Notice has been filed with us against you, the owner will attempt to notify you and provide you with a copy of the notice of copyright infringement. If you have a good faith belief that you have been wrongfully accused, you may file a counter-notice with us. If we receive a valid counter-notice, the DMCA provides that the removed or blocked information will be restored or access re-enabled.
We will replace the removed material and cease disabling access to it in not less than 10, nor more than 14, business days following receipt of the counter-notice, unless we first receive notice from the complaining party that such complaining party has filed an action seeking a court order to restrain the alleged infringer from engaging in infringing activity relating to the material on this Site.
Please be advised that United States copyright law provides substantial penalties for a false counter-notice filed in response to a notice of copyright infringement. Accordingly, if you are not sure whether certain material of yours is protected by copyright laws, we suggest that you obtain legal advice.
13. NO WARRANTY
The Store is not involved in the actual transaction between Sellers and Buyers. Our Services, the Site and all content on it are provided on an “as is” basis and without warranties of any kind either express or implied. Without limiting the foregoing, we do not represent or warrant that:
• the Site will be accurate, reliable, uninterrupted, secure or error-free;
• defects in the Site will be corrected;
• the Site or the server that makes it available are free of viruses or other harmful components.
To the extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
To the extent that the Store are able to limit the remedies available under this User Agreement, the Store expressly limits its liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at the Store's sole discretion):
(1) in the case of goods, any one or more of the following:
• the replacement of the goods or the supply of equivalent goods;
• the repair of the goods;
• the payment of the cost of replacing the goods or of acquiring equivalent goods; or
• the payment of the cost of having the goods repaired; and
(2) in the case of services:
• the supply of the services again; or
• the payment of the cost of having the services supplied again.
14. LIMITATION OF LIABILITY
14.1 Limitation of liability
In no event shall the Store, its affiliates or staff be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for:
• any indirect, special, incidental or consequential damages that may be incurred by you;
• any loss of income, business or profits (whether direct or indirect) that may be incurred by you; and
• any claim, damage, or loss which may be incurred by you as a result of any of your transactions involving the Site.
The limitations on the Store’s liability to you above shall apply whether or not the Store, its affiliates or staff have been advised of the possibility of such losses or damages arising.
Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of the Store and its affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including those within the Trade Practices Act 1974 (Cth) and relevant state fair trading legislation.
14.2 Jurisdiction’s Limitations
As some jurisdictions do not allow some of the exclusions or limitations as established above, some of these exclusions or limitations may not apply to you. In that event the liability will be limited as far as legally possible under the applicable legislation.
14.3 Bar to action
The Store may plead this User Agreement in bar to any claim, action, proceeding or suit brought by you, against the Store for any matter arising out of any transaction or otherwise in respect of this User Agreement.
You agree to indemnify and hold us and (as applicable) our related entities, affiliates, and our and their respective officers, directors, 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 this User Agreement or your violation of any law or the rights of a third party.
16. APPLICABLE LAW
We control and operate the Sites from our offices in Switzerland in accordance with the laws of Switzerland. We do not represent that materials on the Site are appropriate or available for use in other locations. Persons who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Any dispute arising out of or in connection with this User Agreement shall be governed by the laws of Switzerland. You and the Store irrevocably submit to the non-exclusive jurisdiction of the courts of Switzerland.
The provisions of this User Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforced. This Agreement may be assigned by the Store to a third party without your consent in the event of a sale or other transfer of some or all of the assets of the Store. In the event of any sale or transfer you will remain bound by the User Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to an anticipated or actual breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Nothing in this clause shall exclude or restrict your liability arising out of fraud or fraudulent misrepresentation.