12. Limitation of Liability and Implied Terms
The User acknowledges that the Provider and its third party providers have made no warranties that the Services will be error free. The User agrees that the Provider and its third party providers will not be liable or responsible for any failure in, or delay to, the provision of the Services or in the Provider complying with its obligations under this Agreement where such failure or delay has a arisen as a direct or indirect result of: fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike; denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications; a significant demand is placed on the Provider's services which is above the usual level of demand and which results in a failure of the Provider's software and hardware to function correctly; the failure of any third party (including without limitation, any bank or other financial organisation) to fulfil any obligations to the Provider; or any other circumstances or event similar to the above which are beyond the reasonable control of the Provider. The User acknowledges and agrees that the Provider and its third party providers have not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by the Provider under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clause REF 12, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded. Subject to clause REF 12, the User agrees that the Provider and its third party providers will not be liable in respect of any claim by the User (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services on the Site or the provision of any other goods or services under this Agreement and whether as a result of any breach or default by, or any negligence of, the Provider or its third party providers. The maximum liability of the Provider under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement, will not exceed the amount of the Fee paid for the Services by the User. If no Fee is paid, then the maximum liability of the Provider for the forgoing will be AUD $2.00. If the Trade Practices Act 1974 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by legislation, the liability of the Provider is limited, at the option of the Provider, to: 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 in the case of services: the supplying of the services again; or the payment of the cost of having the services supplied again. Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of the Provider will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.