1.  Purpose of these Terms and Conditions

This document sets out the terms and conditions of sale for physical personal fitness and electronic body monitoring products (Products) available for purchase on the Elanation website and mobile applications (Platform) and the subscription for premium features on the Platform (Premium Service) (Terms and Conditions). “Elanation”, “we” or “us” means Elanation Pty Ltd (ACN 610 638 796) and “you” means the person, organisation or entity that purchased the Product from us.

Please read through these Terms and Conditions carefully as they form the agreement under which we will supply Products and the Premium Service to you or your child (where applicable). If you are under 18 years of age, you acknowledge and agree that you may only access and use the Platform with the consent of, a parent or guardian.

You agree to be bound by these Terms and Conditions and where applicable agree that your child will be bound by these Terms and Conditions, as may be modified from time to time, before purchasing a Product or subscribing for the Premium Service. If you or your child do not agree to the terms of these Terms and Conditions, you or your child (where applicable) should not purchase a Product or subscribe for the Premium Service.

2.     Premium Service

You acknowledge and agree that to access the Premium Service:

(a)   the fee stated at the time of registration for the Premium Service must be paid (inclusive of any taxes as may be relevant from time to time) (Subscription Fee);

(b)  the Subscription Fee must be paid in accordance with the billing frequency specified at the time of registration (Due Date);

(c)  access to the Premium Service (Subscription) is conditional on the Subscription Fee being paid;

(d)  your Subscription will automatically renew on the Due Date unless cancelled in accordance with these Terms and Conditions; and

(e)   the Subscription Fee is subject to review by Elanation and may be varied by notice in writing to you not less than thirty (30) days prior to the Due Date, and you agree that such notice may occur via email or by other reasonable means.

You or your child (where applicable) may cancel your Subscription by either:

(a)    accessing the portal within the mobile application; or

(b)    following the prompts through your Apple Subscriptions or Google Play store.

Any cancellation of your Subscription by you or your child (where applicable) will take effect at the end of the period to which the Subscription Fee relates.

Upon cancellation of the Subscription, you and your child (where applicable) will no longer be permitted to have access to or the benefit of the Premium Service at the end of your paid subscription period.

You acknowledge and agree that Elanation may terminate your or your child’s (where applicable) access to the Premium Service in accordance with these Terms at any time and you accept that where any such termination occurs, there is no refund available for the Subscription Fee.

3.      Order for Products

When you have ordered a Product from us on our Platform by completing the online checkout process and paying for the Product in full, a binding agreement will come into existence between you and us. These Terms and Conditions will apply in relation to the supply of the Product.

4.     Price and Payment

All prices for Products and the Premium Service are advertised on the Platform at the time an order is placed and are inclusive of GST. We reserve the right to change the prices displayed on our Platform from time to time, including in relation to any errors in the price listed. Prices for our Products displayed on third party websites may not be correct and we are not bound by them.

All payments must be made in Australian dollars. We accept payment for the Products by PayPal, VISA, and MasterCard credit cards and other online payment methods, which may be modified or advertised on our Platform from time to time. Tax invoices will be sent electronically to your supplied contact email address when you have completed and paid for the Products. The tax invoice is proof of purchase and may be required for any warranty claims.

Payment of the Subscription Fee may be processed by third parties on our behalf. Payment details must be verified before a Subscription can be activated. If your initial payment authorisation is revoked, the Subscription will be terminated.

Payment must be made at the time of placing the order. If a payment of the Subscription Fee is rejected, invalid or otherwise unsuccessful, the Subscription may be automatically cancelled. All payments made of the Subscription Fee are non-refundable. The Subscription will rollover to full-priced monthly membership at the end of all promotional trials, discounts, offers or coupons unless the subscription is cancelled before the end of the promotional period.

You must not pay, or attempt to pay, for Products or the Premium Service through any fraudulent or unlawful means.

5.     Delivery of Products

We currently accept orders for delivery of Products to all locations in Australia and New Zealand.

A delivery fee may apply in addition to the purchase price on all our Products. If a delivery fee applies, it will be itemised in the checkout process.

Once the order has been completed, the Products will be packed and shipped and this usually takes between 3-7 business days to arrive. This is an estimate only, and delay in the delivery of an order will not entitle you or your child (where applicable) to refuse to take delivery of a Product or claim damages.

We may deliver the Products via a range of delivery methods. Some deliveries may need to be signed for. If you are not at home when delivery that requires signing takes place, a card may be left informing you of how to collect your delivery. In these circumstances, our obligation to deliver the Product is satisfied when the card is left at the delivery address.

Orders for Products may only be cancelled if the items have not been dispatched. Please contact us if you or your child (where applicable) wish to cancel an order.

6.   Title and Risk of Products

Notwithstanding delivery of the Products to you or your child (where applicable), title in the Products will not pass to you or your child (where applicable) until your payment has been processed or otherwise received by us. If your payment is declined for any reason we reserve the right to reclaim the Products from your possession, custody or control even if they have been delivered to you or moved from the delivery address. We reserve the right to keep or sell the Products. Risk of loss, damage or deterioration to any Products will pass to you or your child (where applicable) on delivery.

7.   Returns and Refunds of Products

Products are entitled to returns and refunds in accordance with the below:

(a)   Our Products come with guarantees that cannot be excluded under the Australian Consumer Law. For example, consumers are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage to the Products. Consumers are also entitled to have the Products repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Please refer to our Terms of Use for more information about consumer rights.

(b)   If you or your child (where applicable) are unsatisfied with a purchase from us and the Product has not been opened, you have 14 days from the date of purchase to request a full refund. If the Product has been opened then unfortunately we cannot grant you a refund unless the Product is faulty and is not of acceptable quality.

(c)   To qualify for a refund, all the following conditions must be met:

(i)     a Return Authorisation (RA) must be requested from our customer service team by supplying proof of purchase (for example a purchase receipt, email order confirmation, packing slip or credit card statement) within 14 days of the purchase date. To request an RA, please email our customer service team at info@elanation.com;

(ii)    the returned Product(s) must be unopened and in good physical condition (not physically broken or damaged);

(iii)  all accessories originally included with the purchase must be included with the return and be unopened and in good physical condition; and

(iv)   the returned Product must be accompanied by the RA number.

(d)   You acknowledge that all shipping and handling charges are not refundable.

(e)   You are responsible for and must prepay all shipping charges to return the Product to the delivery location specified by us, and you shall assume all risk of loss or damage to the Product while in transit to us.

(f)   Refunds will be processed and paid within two weeks of our receipt and acceptance of the Product.

(g)   If any of our Products are recalled, we will gladly accept all returns and we will process a refund to the original method of payment, as long as the Product is accompanied by a proof of purchase in the form of the emailed order confirmation, payment receipt or packing slip.

8.    Warranties and Limitation of Liabilities of Products

(a)   Limited Manufacturer Product Warranty

Elanation warrants to the original purchaser of a Product that the Product shall be free from defects in materials and workmanship under normal use for a period of one year from the date of purchase (the Warranty Period) (Limited Warranty). To the extent permitted by law, Elanation does not warrant that the operation of the Product will be uninterrupted or error-free. Elanation expressly disclaims any responsibility for loss or damage arising from the unauthorised use of the Product including the failure to follow instructions relating to the Product’s use.

(b)  Product Use

(i)   You and your child (where applicable) must always follow instructions included with the Product relating to the use of the Product. Do not use the Product in salt water or for prolonged use in chlorinated water. Prolonged contact with wearable devices may contribute to skin irritation or allergies in some users. Generally these can be reduced by following these guidelines: (1) keep wearable clean; (2) keep wearable dry; (3) don’t wear it too tight, and (4) give your wrist a rest by taking the wearable off for an hour after extended wear. If you notice any skin irritation, remove the device. If symptoms persist longer than 2-3 days after removing the device, consult a doctor.

(ii)    Some Products have a heart rate tracking feature that may pose risks to users with certain health conditions. Consult a doctor prior to use if you or your child (where applicable) (1) have a medical or heart condition, (2) are taking any photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily, or (5) have tendonitis, carpal tunnel syndrome, or other musculoskeletal disorders. If you or your child (where applicable) feel soreness, tingling, numbness, burning or stiffness in your hands or wrists while or after wearing the Product, please discontinue use.

(c)    Remedies

If a hardware defect arises with the Product and a valid claim is received by us within the Warranty Period, we will, to the extent permitted by law, either (1) repair the Product at no charge, using new or refurbished replacement parts or (2) replace the Product with a new or refurbished Product. In the event of a defect, to the extent permitted by law, these are your sole and exclusive remedies. Shipping and handling charges may apply except where prohibited by applicable law.

(d)    How to obtain Warranty Service

To make a claim under the Limited Warranty, all the following conditions must be met:

(i)     a Warranty Authorisation (WA) must be requested from our customer service team within the warranty period. To request a WA, please email our customer service team at info@elanation.com;

(ii)    the Product must be returned to the address provided by Elanation in either its original packaging or packaging providing an equal degree of protection;

(iii)   you may be required to furnish proof of purchase details and/or comply with registration requirements before receiving a warranty service;

(iv)   the WA number must be included along with the returned Product; and

(v)    it is your responsibility to sync any data, software, or other materials you may have stored or preserved on the Product. It is likely that such data, software, or other materials will be lost or reformatted during service, and Elanation will not be responsible for any such damage or loss.

(e)    Exclusions and Limitations

(i)     The Limited Warranty applies only to the Product manufactured by or for Elanation. The Limited Warranty does not apply to any (a) Elanation products and services other than the Product, (b) any non Elanation hardware Product, (c) consumables manufactured or supplied by third parties (such as batteries), or (d) any third party software, even if packaged or sold with the Product or embedded in the Product.

(ii)     The Limited Warranty does not apply to a Product or part of the Product that has been altered or modified (e.g., to alter functionality or capability) by anyone who is not an authorised representative of Elanation or if the Product is inserted or installed in a casing not provided by Elanation. In addition, this Limited Warranty does not apply: (a) to damage caused by use with non Elanation Products; (b) to damage caused by accident, abuse, misuse, flood, fire, earthquake or other external causes; (c) to damage caused by operating the Product outside the permitted or intended uses described by Elanation or with improper voltage or power supply; or (d) to damage caused by services (including upgrades and expansions) performed to the Product by anyone who is not an authorised representative of Elanation. Recovery and reinstallation of software programs and user data are not covered under this Limited Warranty.

(iii)      This Limited Warranty is valid only in the jurisdictions where the Products are sold by Elanation, and is valid to the extent permitted by the applicable laws of such jurisdictions. Any replacement hardware Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, or for any additional period of time that may be applicable in the jurisdiction where the Product was purchased.

(iv)     No Elanation employee is authorised to make any modification, extension, or addition to this Limited Warranty. If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.

(f)     Implied Warranties

To the extent permitted by applicable law, all implied warranties (including warranties of merchantability and fitness for a particular purpose) shall be limited in duration to the duration of the Limited Warranty.

9.     Warranties and Limitation of Liabilities of Premium Service

(a)      General

Nothing in these Terms and Conditions excludes or limits our liability for any liability which cannot be excluded or limited under applicable law, including the Australian Consumer Law. Nothing in these Terms affects your child’s (where applicable) or your statutory rights, including rights relating to the consumer guarantees applicable to the supply of services under these Terms and Conditions.

(b)     Exclusion of liability

Subject to your child’s (where applicable) and your statutory rights including under the Australian Consumer Law, we will under no circumstances be liable to you or your child (where applicable), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with the Premium Service (including the use, inability to use or the results of use of the Premium Service) or resulting from any violation by you or your child (where applicable) of these Terms and Conditions or any breach by you or your child (where applicable) of your responsibilities, representations and warranties.

(c)      Additional costs

You assume full and sole responsibility for any additional or associated costs that you or your child (where applicable) may incur in connection with or as a result of the use of the Premium Service, including without limitation, costs relating to the servicing, repair or adaptation of any equipment, software or data that you may own, lease, license or otherwise use.

10.    Limitation of Damages

To the extent permitted by applicable law, including the Australian Consumer Law, Elanation shall not be liable for any incidental, indirect, special, or consequential damages, including but not limited to loss of profits, revenue or data, resulting from any breach of express or implied warranty or condition, or under any other legal theory, even if Elanation has been advised of the possibility of such damages.

11.    General

(a)      These Terms and Conditions, together with the Terms of Use and Privacy Policy form the entire agreement between you, your child and us in relation to your child’s and your use of and access to the Platform and purchase of the Products and, unless expressly agreed to in writing by us, no additional terms or conditions of yours will be binding on us or have any legal effect.

(b)      We may change any provision in these Terms and Conditions at any time without notice so we advise that, even if you or your child (where applicable) are a frequent purchaser from us, you check these Terms and Conditions whenever you or your child (where applicable) want to purchase Products from us. Any change of these Terms and Conditions will only apply to future orders of our Products. None of our agents or employees or any third parties have any authority to change these Terms and Conditions.

(c)      We will not be liable for any delay or failure to perform our obligations under these Terms and Conditions if such delay is due to any circumstance beyond our reasonable control.

(d)    We reserve the right to refuse supply of the Products ordered by you or your child (where applicable), terminate our contract with you or terminate your child’s (where applicable) or your account with us, and to remove or edit content on our Platform at our sole discretion and without incurring any liability to you or your child (where applicable).

(e)    You must not assign any rights and obligations under these Terms and Conditions whether in whole or in part without our prior written consent.

(f)    Any notice in connection with these Terms and Conditions will be deemed to have been duly given when made in writing and delivered or sent by email, facsimile or post to the party to whom such notice is intended to be given or to such other address, email address or facsimile number as may from time to time be notified in writing to the other party.

(g)   If any provision of these Terms and Conditions is invalid, illegal or unenforceable, these Terms and Conditions take effect (where possible) as if they did not include that provision.

(h)    We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

(i)    Please refer to our Privacy Policy which can be accessed on our Platform to see how we collect, use and protect your child’s (where applicable) and your personal information.

(j)   Any failure by a party to insist upon strict performance by the other of any provision in these Terms and Conditions will not be taken to be a waiver of any existing or future rights in relation to the provision.

(k)  These Terms and Conditions are governed by the laws of New South Wales, Australia. The parties each agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

These Terms and Conditions were last updated on 21st November 2019