BLACK OPS OFFROAD™ TERMS & CONDITIONS
Black Ops Motorsports Pty Ltd ACN 669 001 521 trading as Black Ops Offroad (“Black Ops Offroad”) has the authorised ownership and operation of the website located at https://blackopsoffroad.com.au/ and any associated social media platforms (“Site”). The terms “we”, “us”, “our” and similar grammatical forms used in these Terms & Conditions is a reference to Black Ops Offroad.
You confirm that you have read, understood and agreed to the terms and conditions described below.
Black Ops Offroad (operating under ABN 12 405 660 498) offers a wide variety of off-road vehicle accessories, modifications and other products available on the Site.
The purpose of these terms and conditions is to ensure that you understand the legal terms that govern your use of our products and services.
These terms and conditions are applicable to all users of the Site, including but not limited to browsers, vendors, buyers, clients, partners, customers, merchants and/or content contributors (referred to as “you”, “your” and similar grammatical forms).
Prior to accessing or using the Site, please carefully review the following terms and conditions.
By accessing or using any portion of the Site, you acknowledge and agree to be bound by these terms and conditions.
Should you disagree with any of the terms and conditions outlined herein, then you may not access the Site or use our Services.
If these terms and conditions are considered an offer, acceptance is expressly limited to these terms and conditions.
At any given time, you have the option to access the latest edition of the terms and conditions on the Site.
We retain the right to modify, alter, or substitute any portion of these terms and conditions by publishing updated versions and/or amendments on our Site.
It is your responsibility to periodically review this page for any revisions.
Your continued use of or access to the Site following the posting of any changes constitutes acceptance of those changes.
You hereby agree to indemnify and hold harmless Black Ops Offroad, its officers, directors, employees, agents, licensors and suppliers from and against all losses, expenses, damages, legal fees and costs, resulting from any violation of these terms and conditions or any activity related to your use of the Site or any other person accessing the Site on your behalf.
1.Definitions
1.1 “Buyer” means the Buyer or any person acting on behalf of and with the authority of the Buyer. This term may be used in place of or replaced by “Client”.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Digital Goods” means goods or services supplied by the Seller to the Buyer in a digital format or converted to a printed copy for applicable file types.
1.4 “Goods” means goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Partner” means any supplier or retailer that is contracted by Black Ops Offroad to supply the Buyer with goods or services, either directly or through the hands of Black Ops Offroad. It must be noted that Black Ops Offroad may not ever come into contact with such goods or services before delivery from a supplier (Partner). Black Ops Offroad has selected these Partners according to a strict criteria, Black Ops Offroad takes no responsibility to ensure the Buyers’ standards are met directly in terms of but not limited to, quality, colour, finish, materials, cost, voltage. It is the Buyers’ responsibility to ensure they complete the appropriate research to ensure the components meet their requirements before purchasing.
1.6 “Price” means the cost of the Goods and/or Services as agreed between the Seller and the Buyer subject to clause 3 of these terms and conditions.
1.7 “Seller” means Black Ops Offroad.
1.8 “Services” means all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
2.Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may be amended at the sole discretion of Black Ops Offroad, from time to time, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Black Ops Offroad.
3.Price and Payment
3.1 At Black Ops Offroad’s sole discretion, the Price shall be as indicated on the Site and thereafter displayed on any invoice or advertisement provided by Black Ops Offroad to the Client.
3.2 Payment for the Goods is required in full and expected via debit or credit card using the supplied payment gateways on this website, prior to the Goods being shipped to the Client.
4.Online Store Terms
4.1 We reserve the right to refuse service to anyone for any reason at any time.
4.2 By agreeing to these terms and conditions, you represent that you are at least the age of majority in your state or province of resident, or that you are the age of majority in your state or province of residence, and you have given us your consent to allow any of your minor
dependents to use the Site.
4.3 You may not use our Goods for any illegal or unauthorised purpose nor may you, in using the service or our Site, violate any laws in your jurisdiction (including but not limited to copyright and intellectual property laws).
4.4 A breach or violation of these terms and conditions will result in an immediate termination of your use or access to the Site or our obligation to provide Goods and/or services to you.
5.Delivery of Goods
See Shipping and Delivery Policy.
6.Risk
6.1 Risk of damage to or loss of the Goods passes to the Client on delivery.
6.2 If the Client requests Black Ops Offroad to leave Goods outside a premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the requested location at the Client’s sole risk.
6.3 Any advice, recommendation, information, assistance or service provided by Black Ops Offroad in relation to Goods or Services supplied is given in good faith, is based on Black Ops Offroad’s own knowledge and experience and shall be accepted without liability on the part of Black Ops Offroad.
6.4 It shall be the responsibility of the Client to confirm the accuracy and reliability of the Goods and/or Services in light of the use to which the Client makes or intends to make of the Goods and/or Services.
6.5 During the fabrication or assembly process of Goods supplied by Black Ops Offroad, all safety procedures should be put in place by the Client or Partner (as required). It is the Client’s responsibility to ensure they do not put themselves or others in danger during the installation of such parts/products/Goods. Black Ops Offroad will provide some safety data sheets for supplied materials as a courtesy service and will not take responsibility for missing or incorrect information regarding use of a supplied product.
6.6 Black Ops Offroad will take no responsibility for damages caused by the misuse of any of their products or designs, incorrect loading or incorrect assembly.
6.7 This Site contains links to other websites on the Internet owned and operated by third parties which are not under our control. We provide the links to other websites as a convenience to you. The existence of a link to other websites does not imply any endorsement by us of the contents of the linked website and we are not responsible for any material contained on those websites. In accessing the third party sites, you do so at your own risk.
7.Accuracy of Client’s Plans and Measurements
7.1 Black Ops Offroad shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, Black Ops Offroad accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
7.2 In the event the Client gives information relating to measurements and quantities of the Good required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or Black Ops Offroad places an order based on these measurements and quantities.
7.3 Black Ops Offroad accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause 7.
7.4 In the event of incorrect measurements or specifications supplied to Black Ops Offroad by you and the design process or parts being completed, the Buyer/Client is obligated to accept delivery of the goods and must take responsibility for any such mistakes.
8.Title
8.1 Black Ops Offroad and the Client agree that ownership of the Goods shall not pass until such time as:
8.1.1 the Client has paid Black Ops Offroad all amounts owing to Black Ops Offroad; and
8.1.2 the Client has met all of its other obligations to Black Ops Offroad.
8.2 Receipt by Black Ops Offroad of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that:
8.3.1 until ownership of the Goods passes to the Client in accordance with clause 8.1, the Client is only a bailee of the Goods and must return the Goods to Black Ops Offroad on request;
8.3.2 the Client holds the benefit of the Client’s insurance of the Goods on trust for Black Ops Offroad and must pay to Black Ops Offroad the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
8.3.3 the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Black Ops Offroad and must pay or deliver the proceeds to Black Ops Offroad on demand;
8.3.4 the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Black Ops Offroad and must sell, dispose of or return the resulting product to Black Ops Offroad as it so directs;
8.3.5 the Client irrevocably authorises Black Ops Offroad to enter any premises where Black Ops Offroad believes the Goods are kept and recover possession of the Goods;
8.3.6 Black Ops Offroad may recover possession of any Goods in transit whether or not delivery has occurred;
8.3.7 the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Black Ops Offroad; and
8.3.8 Black Ops Offroad may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
9.Disclaimer of Use
9.1 We do not warrant, guarantee or make any representation that:
9.1.1 the Site, or the server that makes the Site available on the Internet are free of software viruses;
9.1.2 the functions contained in any software contained on the Site will operate uninterrupted or are error-free; and
9.1.3 errors and defects in the Site will be corrected.
9.2 We are not liable to you for:
9.2.1 errors or omissions in the Site, or linked websites on the Internet;
9.2.2 delays to, interruptions of or cessation of the service or Goods provided on the Site or any linked websites; and
9.2.3 defamatory, offensive or illegal conduct of any user of the Site, whether caused through our negligence or the negligence of our employees, independent contractors, agents or through any other cause.
9.3 You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing the Site.
10.Limitation of Liability
10.1 We do not guarantee, represent or warrant that your use of our Site will be uninterrupted, timely, secure or error-free.
10.2 In no case shall Black Ops Offroad, our directors, partners, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation to lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort, strict liability or otherwise, arising from your use of any of the services or any Goods procured using the Site, or for any other claim related in any way to your use of the Site or any Goods, including but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Site or any content (or Goods) posted, transmitted or otherwise made available via the Site, event if advised of their possibility.
10.3 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he/she buys the Goods relying solely upon his own skill and judgment and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Seller which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
11.Indemnity
11.1 You agree to indemnify, defend and hold Black Ops Offroad and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensor, service providers, sub-contractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable solicitor’s fees made by any third party due to or arising out of your breach of these terms and conditions or the documents they incorporate by reference or your violation of any law or the rights of a third party.
12.Defect/Returns
See Returns and Refund Policy.
13.The CCA and Fair Trading Acts
13.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the relevant Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
14.Product Warranty
14.1 Subject to payment in full being made, Black Ops Offroad will use its best endeavors to pass on to the Client the benefit of any warranties or guarantees it receives in respect of Goods supplied to the Client/Buyer.
14.2 Due to the nature of the Goods themselves, Black Ops Offroad has no control over workmanship, tools and equipment, conditions that may affect the final product and hence it can offer no warranty on the installation of products or designs.
14.3 Black Ops Offroad does its best to provide information on the required tools to complete each project but sometimes the same may be assumed or missed. The service of recommending tools is a free service and not considered part of the purchased product. Black Ops Offroad endeavors to produce quality designs that are compliant to the appropriate standards where applicable in the state and country of design, being Queensland, Australia.
15.Exclusions
15.1 Black Ops Offroad warranty does not cover:
15.1.1 normal wear and tear;
15.1.2 fitting of the Black Ops Offroad Goods other than in accordance with the product information supplied from the Seller to the Buyer and all relevant vehicle safety and compliance laws, including incorrect fitting;
15.1.3 using the Black Ops Offroad Goods other than for the purpose for which it was originally designed or other than in accordance with the product information and all relevant vehicle safety and compliance laws, including unusual, improper or negligent
use or misuse or overloading;
15.1.4 misuse or neglect of the Black Ops Offroad Goods, including improper repair or maintenance or failing to repair and maintain;
15.1.5 alteration, abuse, acts of nature, terrorism, vandalism, collision, road hazards or adverse conditions;
15.1.6 formal or informal competitive events, such as racing, rallying, hill climbing, speed trials or similar activities (whether off-road or on-road); and/or
15.1.7 using the Black Ops Offroad Goods in highly corrosive environments.
15.2 Black Ops Offroad strives to offer cost effective solutions for the Client, however, as may sometimes be expected, there is a trade-off between cost, time and quality. As such, it is the Buyers responsibility to ensure they are happy with the components supplied and entire design of the relevant Black Ops Offroad Goods before purchase or installation.
15.3 Designs offered by Black Ops Offroad are based on personal opinion of its designers. Black Ops Offroad may offer different products to suit the opinions of the Buyer and it is the Buyers risk to take responsibility for the Goods and/or Services purchased.
15.4 Any modifications or variance to the intended designs and processes may void any warranty that may be passed from a Black Ops Offroad Partner to the Client.
15.5 Some Black Ops Offroad products are non-tangible and irrevocable digital goods. No refunds will be given for any purchases of digital products or services. You acknowledge that Digital Goods must not be provided to third parties without the express written authority of the Seller.
16.Intellectual Property
16.1 All media, information, trademarks, trade names, logos and other material provided through our Goods (including all copyright and other rights contained in them) are the property of Black Ops Offroad and must not be reproduced or dealt with in any way without our or the registered copyright/trademark owners express written consent. Unless expressly stated otherwise, all our digital goods are licensed for strictly personal use only unless purchased as commercial use. Any link you make to our plans or website pages must be in a way that presents the service as we intended. You must not directly link to, frame or manipulate the material contained in our
plans or pages or disguise its origin or ownership.
16.2 Personal use plans are licensed for single use only and are not to be shared with anyone except for the purpose of fabrication for that single use. Plans must not be reproduced, shared, copied, reverse engineered, modified or re-sold.
16.3 Commercial licenses allow repeated production of designs and can be used more than once, they must also not be reproduced, shared, copied, reverse engineered, modified or re-sold. By purchasing a commercial plan, the Buyer does not have sole ownership/rights over the purchased design unless organised otherwise. Personalisation or de-branding of the Black Ops Offroad logo can be completed by Black Ops Offroad only and may incur additional costs. De-branding of the Black Ops Offroad logo or similar without prior permission is a breach of the agreement entered during purchase.
16.4 You agree to us communicating with you regarding our various activities, events, goods by digital messages. We use reasonable care in preparing and presenting material we provide through our digital goods. Information may be provided by third parties, including other users, and we are under no obligation to verify this information.
16.5 Where Black Ops Offroad has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of Black Ops Offroad unless the parties agree otherwise.
16.6 The Client warrants that all designs, specifications or instructions given to Black Ops Offroad will not cause Black Ops Offroad to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Black Ops Offroad against any action taken by a third party against Black Ops Offroad in respect of any such infringement.
17.Default and Consequences of Default
17.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month (and at Black Ops Offroad’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
17.2 If any money owing by the Client to Black Ops Offroad becomes due and payable, the Client shall indemnify Black Ops Offroad from and against all costs and disbursements incurred by Black Ops Offroad in recovering or attempting to recover the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Black Ops Offroad contract default fee, and bank dishonor fees).
17.3 Without prejudice to any other remedies Black Ops Offroad may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions, Black Ops Offroad may suspend or terminate the supply of Goods to the Client. Black Ops Offroad will not be liable to the Client for any loss or damage the Client suffers as a result of Black Ops Offroad exercising its rights under this clause 17.
17.4 Without prejudice to Black Ops Offroad’s other remedies at law, Black Ops Offroad shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Black Ops Offroad shall, whether or not due for payment at the time, become immediately payable if:
17.4.1 any money payable to Black Ops Offroad becomes overdue, or in Black Ops Offroad’s sole and absolute discretion, the Client will be unable to make a payment when it falls due;
17.4.2 the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
17.4.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17.5 Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonored, the Seller shall have:
17.5.1 a lien on the goods;
17.5.2 the right to retain the Goods for the purchase price while the Seller is in possession of them;
17.5.3 a right of stopping the Goods in transit whether or not delivery has been made or ownership has passed;
17.5.4 a right of resale; and
17.5.5 the foregoing right of disposal, provided that the lien of the Seller shall continue despite the commencement of proceedings or judgment for the price having been obtained.
18.Cancellation
18.1 Black Ops Offroad may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Black Ops Offroad shall repay to the Client any money paid by the Client for the Goods. Black Ops Offroad shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.2 In the event that the Client cancels delivery of Goods, the Client shall be liable for any and all loss incurred (whether direct or indirect) by Black Ops Offroad as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stockist items, will definitely not be accepted once production has commenced, or an order has been placed. The Client places an order for Goods understanding this risk.
19.Privacy Act 1988 (Cth)
19.1 The Client acknowledges and agrees that Black Ops Offroad may obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Black Ops Offroad to the Client.
19.2 The Client agrees that Black Ops Offroad may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
19.2.1 to assess an application by the Client; and/or
19.2.2 to notify other credit providers of a default by the Client; and/or
19.2.3 to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
19.2.4 to assess the creditworthiness of the Client.
19.3 The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988 (Cth) (“Privacy Act”).
19.4 The Client consents to Black Ops Offroad being provided with a consumer credit report to collect overdue payment on commercial credit (see section 18K(1)(h) of the Privacy Act).
19.5 The Client agrees that personal credit information provided may be used and retained by Black Ops for the following purposes (and for other purposes as shall be agreed between the Client and Black Ops Offroad or required by law from time to time):
19.5.1 the provision of Goods; and/or
19.5.2 the marketing of Goods by Black Ops Offroad, its agents or distributors; and/or
19.5.3 analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
19.5.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or 19.5.6 enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
19.6 Black Ops Offroad may give information about the Client to a credit reporting agency for the following purposes:
19.6.1 to obtain a consumer credit report about the Client; and/or
19.6.2 allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
19.7 The information given to the credit reporting agency may include:
19.7.1 personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s license number);
19.7.2 details concerning the Client’s application for credit or commercial credit and the amount requested;
19.7.3 advice that Black Ops Offroad is a current credit provider to the Client;
19.7.4 advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
19.7.5 that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
19.7.6 information that, in the opinion of Black Ops Offroad, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
19.7.7 advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonored more than once; and/or
19.7.8 that credit provided to the Client by Black Ops Offroad has been paid or otherwise discharged.
20.Use of Personal Information
20.1 Further to clause 19 above, we and any people or legal entities authorised by us may gather and process your personal information which you may provide when accessing the Site, such as your name, address, e-mail address and any other personal information, and regarding the way in which you use the Site including, without limitation, information acquired through the use of ‘cookies’ delivered to your computer when you access the Site.
20.2 We will comply with the Privacy Act in respect to our collection, storage and use of your personal information.
20.3 For additional details of how we collect, store and use your personal information, please see our Privacy Policy.
21.Accuracy of Billing and Account Information
21.1 We reserve the right to refuse any order that you place with us through the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer name, credit card and/or orders using the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address or phone number provided at the time of placing the order. We reserve the right to limit or prohibit orders that, in our sole discretion, appear to be placed by dealers, resellers or distributors.
21.2 You agree to provide current, complete and accurate purchase and account information for all purchases made through our Site. You agree to promptly update your account and other information, including your email address and credit card numbers or expiration dates, so that we can complete your transactions and contact you if required.
22.Assumption of Risk, Waiver of Liability and Indemnity
22.1 READ THIS DOCUMENT CAREFULLY BEFORE PURCHASING OUR PRODUCTS. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL LIMIT YOUR LIABILITY TO BRING FUTURE LEGAL ACTIONS.
22.2 In this section: “Released Parties” include:
Black Ops Offroad and their directors, officers, employees, agents, contractors, insurers, spectators, co-participants, suppliers, volunteers and representatives of any of the foregoing; and “Releasing Parties” include: the Client, Buyer, Customer (referred to in this document as “I”), as well as that person’s spouse, children, parents, guardians, heirs, next of kin, and any legal or personal representatives, executors, administrators, successors and assigns, or anyone else who might claim or sue on participant’s behalf.
22.3 Warning of Assumption of Inherent Risks:
Use of the Goods may involve adventurous activities where there is always an element of personal responsibility and a level of risk. I acknowledge that use of the Goods may carry with it inherent risks of injury (physical and/or mental). Inherent risks are risks that cannot be eliminated completely (without changing the nature of the activity) regardless of the care and precautions taken by the Seller and the other Released Parties.
I understand and acknowledge that the inherent risks include, but are not limited to:
1) falls, tripping, uncontrolled landings, contact or collision with persons or objects (e.g., collision or contact with personnel, other participants, motor vehicles, machinery, natural obstacles);
2) encounter with natural obstacles with water, sand, road and surface hazards;
3) equipment related hazards (e.g., broken, defective or inadequate equipment, unexpected equipment
failure, imperfect conditions);
4) weather-related hazards (e.g., extreme heat, extreme cold, humidity, ice, rain, fog);
5) inadequate first aid and/or emergency measures;
6) judgment-and/or behavior-related problems (e.g., erratic or inappropriate co-participant or spectator behavior, errors in judgment by personnel);
7) natural hazards (e.g., uneven terrain, rock falls, lightning strikes, earthquakes, wildlife attacks, contact with flora or fauna); and
8) inadequate installation or application of the Goods.
I further understand and acknowledge that any of these risks and others, not specifically named, may cause injuries that may be categorised as minor, serious, or catastrophic. Minor injuries are common and include, but are not limited to: scrapes, bruises, sprains, nausea, and cuts. Serious injuries include, but are not limited to: property loss or damage, broken bones, fractures, torn or strained ligaments and tendons, concussions, exposure, dehydration, heat exhaustion and other heat-related illnesses, mental stress or exhaustion, infection, vomiting, dislocations, hyperthermia, hypothermia, anaemia, loss of consciousness, syncope, dizziness, fainting, seizures, eye irritations and/or injury, and neurological disorders/pain. Catastrophic injuries are rare; but are a possibility. These injuries can include but are not limited to, permanent disabilities, stroke, single or multiple organ failure or dysfunction, physical damage to organs, spinal injuries, paralysis, heart attack, blood cell disorder, brain swelling, and even death. I understand that it is my responsibility to inspect the Goods, products, guides, plans, facilities, equipment, and areas used as terrain, and if I believe or become aware that any are unsafe or pose unreasonable risks I will adjust my behavior appropriately and cease use of the Goods.
I fully understand the risks involved in the use of the products and assert that I (and/or my participating minor child or other user of the product) have read the preceding paragraphs and acknowledge that:
1) I know the nature of the use of the products;
2) I understand the demands of this activity relative to my physical condition; and
3) I appreciate the potential impact of the types of injuries that may result from the use of the products. I assert that I (and/or my minor child or other users to whom I have explained the inherent risks) knowingly assume all of the risks of the activity and take full responsibility for any and all damages, liabilities, losses, or expenses that I/we incur as a result of using the products. In short, I (and/or my participating minor child or other users) am/are using the products entirely at my (their) own risk.
22.4 Waiver of Liability for Ordinary Negligence: To the extent permitted by law, I agree that under this agreement the Seller and the other Released Parties shall be excluded from liability for ordinary negligence in the conduct of using the products and the application of any of the provisions of Subdivision B, Division 1, Part 3-2 of the Australian Consumer Law. Further, the Seller and the Released Parties shall be excluded from liability under any civil liability or consumer law applicable to the State in which the use of the products occurs subject to the exception that this exclusion of liability will not apply in circumstances where the conduct of the Seller or its officers, servants or agents is reckless. In consideration of using the products, to the extent permitted by law, I (on behalf of the Releasing Parties) hereby forever waive, release, covenant not to sue, and discharge the Seller and the other Released Parties from any and all claims, actions, suits, demands, losses and other liabilities in relation to any of death, physical or mental injury (including the aggravation, acceleration or occurrence of such an injury), the contraction, aggravation or acceleration of a disease or the coming into existence, aggravation, acceleration or occurrence of any other condition, circumstance, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to me (and/or my participating minor child or other users) or the community or that may result in harm or disadvantage to me (and/or my participating minor child or other users) or the community resulting from the INHERENT RISKS of the use of the products or the ORDINARY NEGLIGENCE of the Seller (or other Released Parties) that I (and/or my participating minor child or other users) may have arising out of my/our use of the products. This waiver does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of the Seller.
22.5 Indemnity: To the extent permitted by law, I hereby agree to hold harmless, defend, and indemnify (which for the avoidance of doubt includes defending and paying any judgment, court costs, investigation costs, attorney’s fees, and any other expenses incurred that relate to a breach of this contract) the Seller (and the other Released Parties) from any and all claims made by me (and/or my participating minor child, other user or any Releasing Party) arising from death, physical or mental injury (including the aggravation, acceleration or occurrence of such an injury), the contraction, aggravation or acceleration of a disease or the coming into existence, the aggravation, acceleration or occurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to me or the community or that may result in harm or disadvantage to me/us or the community due to my/our use of the products. This applies both to claims arising from the inherent risks of use of the products or the ordinary negligence of the Seller (or any Released Parties). I further agree to hold harmless, defend, and indemnify the Seller (and the other Released Parties) against any and all claims of co-participants, rescuers, and others arising from my (and/or my participating minor child’s or other users’) conduct in the course of my use of the products.
23.General
23.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforce-ability of the remaining provisions shall not be affected, prejudiced or impaired.
23.2 All Goods supplied by the Seller are subject to the laws of Queensland and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
23.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
23.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Services.
23.5 The Buyer shall not set off against the Price amounts due from the Seller.
23.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
23.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller updates the terms and conditions on this page. It is the Client’s responsibility to check this page for any updates to the terms and conditions from time to time.
23.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
23.9 If you do not agree to be bound by these terms and conditions, you must not use or agree to use any goods or services provided by Black Ops Offroad, including this website and any digital newsletters.
24.Contact Information
If there are any questions regarding these terms and conditions you may contact us using the information below. Or use our contact form through the website.
Black Ops Offroad
Attn: Joel Simms
Email: hello@blackopsoffroad.com.au
