5.1. Subject to clause 5.7, to the extent permitted by law, neither party shall be liable to the other for consequential loss.
5.2. Subject to clause 5.7, to the maximum extent permitted by law, each party excludes all liability for any loss or damage which the other party suffers whether arising under contract, tort (including negligence), equity, statute or any other cause of action, or, in the case of Flybuys, otherwise as a result of using the Website or any content, information or service available on or from the Website, and each party releases the other party from all such claims and liability.
5.3. The limitation of liability in clause 5.2 does not apply or limit liability of a party in respect of:
5.3.1. negligence;
5.3.2. wilful misconduct;
5.3.3. breach of law; or
5.3.4. in your case:
5.3.4.1. a breach of your obligations under clauses 2 and 3 of these Terms of Use; or
5.3.4.2. under the indemnity in clause 5.6
5.4. Each party will use reasonable endeavours to mitigate losses it suffers under or in connection with these Terms and Conditions.
5.5. Each party’s liability is reduced proportionally to the extent that any act or omission by the other party or their personnel caused or contributed to the act or omission giving rise to the first party’s liability.
5.6. You indemnify and hold flybuys and its directors, officers, employees and agents harmless from and against any third party action, claim, liability, loss or expense relating to or arising from your breach of these Terms of Use or any law, or any activity you engage in via the Website, except to the extent such claim, liability, loss or expense is caused by our negligence, wilful misconduct or breach of law. You have certain statutory guarantees, rights and remedies under the Australian Consumer Law and which cannot be excluded, restricted or modified. Nothing in these Terms of Use limits your rights under the Australian Consumer Law.
5.7. Subject to clause 5.7, the Website is provided “as is”. To the fullest extent permitted by law, flybuys excludes all warranties, representations, implied terms and guarantees about the currency, accuracy, suitability, functionality or reliability of the Website. Without limitation, flybuys does not warrant that:
5.7.1. the Website or any of its functions will be uninterrupted or error free;
5.7.2. defects will be corrected; or
5.7.3. the Website or any server that makes it available is free of errors, viruses or malicious code.