Terms and Conditions

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Terms & Conditions

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Last updated on 8 December 2016

 

 

Terminology

In these terms and conditions, the expressions “we”, “us” and “our” are a reference to Smart Foal Pty Ltd ACN 611 822 701 as trustee for Smart Foal Trust (“Smart Foal”).

 

In General

Smart Foal owns and operate this website www.smartfoal.com (“Website”).  This document governs your relationship with this Website. Access to and use of this Website and the products and services available through this Website (collectively, the "Services") are subject to the following terms, conditions and notices (the "Terms of Service"). By using the Services, you are agreeing to all of the Terms of Service, as may be updated by us from time to time. You should check this page regularly to take notice of any changes we may have made to the Terms of Service.

 

Amendments to Terms of Service

Smart Foal reserve the right to amend these Terms of Service from time to time. Amendments will be effective immediately upon notification on this Website. Your continued use of the Website following such notification will represent an agreement by you to be bound by the terms and conditions as amended.

 

Website

Access to this Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the Services without notice. We will not be liable if for any reason this Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts or all of this Website.

 

Linked Sites

This Website may contain links to other websites (the "Linked Sites"), which are not operated by Smart Foal. Smart Foal has no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from your use of them. Your use of the Linked Sites will be subject to the terms of use and service contained within each such site.

 

Privacy Policy

Our privacy policy, which sets out how we will use your information, can be found at https://smart-foal.myshopify.com/pages/privacy-policy. By using this Website, you consent to the processing described therein and warrant that all data provided by you is accurate.

 

Prohibitions

You must not misuse this Website. You will not: commit or encourage a criminal offense; transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; hack into any aspect of the Service; corrupt data; cause annoyance to other users; infringe upon the rights of any other person's proprietary rights; send any unsolicited advertising or promotional material, commonly referred to as "spam"; or attempt to affect the performance or functionality of any computer facilities of or accessed through this Website. Breaching this provision would constitute a criminal offense and Smart Foal will report any such breach to the relevant law enforcement authorities and disclose your identity to them.

 

We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Website or to your downloading of any material posted on it, or on any Linked Sites.

 

Intellectual Property, Software and Content

The intellectual property rights in all software and content (including photographic images) made available to you on or through this Website remains the property of Smart Foal or its licensors and are protected by copyright laws and treaties around the world. All such rights are reserved by Smart Foal and its licensors. You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on this Website nor may you use any such content in connection with any business or commercial enterprise.

 

Disclaimer of Liability

The material displayed on this Website is provided without any guarantees, conditions or warranties as to its accuracy. Unless expressly stated to the contrary to the fullest extent permitted by law Smart Foal and its suppliers, content providers and advertisers hereby expressly exclude all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity and shall not be liable for any damages whatsoever, including but without limitation to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, performance or failures of this Website or the Linked Sites and any materials posted thereon, irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law or otherwise. This does not affect Smart Foal’s liability for death or personal injury arising from its negligence, fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.

 

Linking to this Website

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. This Website must not be framed on any other site, nor may you create a link to any part of this Website other than the home page. We reserve the right to withdraw linking permission without notice.

 

Disclaimer as to ownership of trade marks, images of personalities and third party copyright.

Except where expressly stated to the contrary all persons (including their names and images), third party trade marks and content, services and/or locations featured on this Website are in no way associated, linked or affiliated with Smart Foal and you should not rely on the existence of such a connection or affiliation. Any trade marks/names featured on this Website are owned by the respective trade mark owners. Where a trade mark or brand name is referred to it is used solely to describe or identify the products and services and is in no way an assertion that such products or services are endorsed by or connected to Smart Foal.

 

Indemnity

You agree to indemnify, defend and hold harmless Smart Foal, its directors, officers, employees, consultants, agents, and affiliates, from any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) arising from your use of this Website or your breach of the Terms of Service.

 

Variation

Smart Foal shall have the right in its absolute discretion at any time and without notice to amend, remove or vary the Services and/or any page of this Website.

 

Invalidity

If any part of the Terms of Service is unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of the Terms of Service will not be affected and all other clauses remain in full force and effect. So far as possible where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause shall be interpreted accordingly. Alternatively, you agree that the clause shall be rectified and interpreted in such a way that closely resembles the original meaning of the clause/sub-clause as is permitted by law.

 

Complaints

We operate a complaints handling procedure which we will use to try to resolve disputes when they first arise, please let us know if you have any complaints or comments.

 

Terms of Sale

By placing an order you are offering to purchase a product on and subject to our Terms of Service. All orders are subject to availability and confirmation of the order price.

Dispatch times may vary according to availability and subject to any delays resulting from postal delays or force majeure for which we will not be responsible. 

 

General Ordering Procedure

You may offer to purchase Goods described on this Website for the price specified on this Website. Your order must contain your name, email address, payment details and any other ordering information specified on this Website. Within seven days of receipt of your order, Smart Foal will at their discretion accept or reject your offer to purchase. You may not cancel an order once it has been submitted, even if Smart Foal’s acceptance or rejection of your offer is still pending. Smart Foal are not required to give reasons for rejecting your offer to purchase. If Smart Foal reject your offer to purchase the Goods for any reason, neither Smart Foal or you will be under any further liability to the other arising out of your original offer or out non-acceptance of that offer.

 

We give no undertaking as to the availability of products advertised on this Website. Delivery of the Goods will be effected in the manner described on this Website. Title in the Goods does not pass to you until payment has been received. Risk of loss or damage to the Goods passes to you upon dispatch.

 

Payment must be effected in the manner described on the Website. Prices are exclusive of Goods and Services Tax. In all other respects, the price is exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the supply of goods.

 

The Goods are offered for sale only to persons who can make legally binding contracts and who possess a valid credit or debit card issued by a bank acceptable to us. If your order is accepted we will inform you by email and we will confirm the identity of the party which you have contracted with. This will usually be Smart Foal or may in some cases be a third party. Where a contract is made with a third party Smart Foal is not acting as either agent or principal and the contract is made between yourself and that third party and will be subject to the terms of sale which they supply you. When placing an order you undertake that all details you provide to us are true and accurate, that you are an authorized user of the credit or debit card used to place your order and that there are sufficient funds to cover the cost of the goods. The cost of foreign products and services may fluctuate. All prices advertised are subject to such changes.

 

(a) Our Contract 

When you place an order, you will receive an acknowledgement e-mail confirming receipt of your order: this email will only be an acknowledgement and will not constitute acceptance of your order. A contract between us will not be formed until we send you confirmation by e-mail that the goods which you ordered have been dispatched to you. Only those goods listed in the confirmation e-mail sent at the time of dispatch will be included in the contract formed.

 

(b) Pricing and Availability

Whilst we try and ensure that all details, descriptions and prices which appear on this Website are accurate, errors may occur. If we discover an error in the price of any goods which you have ordered we will inform you of this as soon as possible and give you the option of reconfirming your order at the correct price or cancelling it. If we are unable to contact you we will treat the order as cancelled. If you cancel and you have already paid for the goods, you will receive a full refund.

 

Delivery costs will be charged in addition; such additional charges are clearly displayed where applicable and included in the 'Total Cost'.

 

(c) Payment 

Upon receiving your order we carry out a standard authorization check on your payment card to ensure there are sufficient funds to fulfil the transaction. Your card will be debited upon authorisation being received. The monies received upon the debiting of your card shall be treated as a deposit against the value of the goods you wish to purchase. Once the goods have been dispatched and you have been sent a confirmation email the monies paid as a deposit shall be used as consideration for the value of goods you have purchased as listed in the confirmation email.

 

(d) Delivery of Goods

 

Non Delivery Of Goods must be reported to Smart Foal as soon as possible

 

The risk to Goods is not the responsibility of Smart Foal once they have been DELIVERED TO AUSTRALIA POST.

 

 

International Customers

 

  1. Standard International Orders, unless requested otherwise by you prior to purchase, are sent by Australia Post Airmail without Insurance. Goods tracking is not available on any of the Australia Post Airmail services except Express Courier International.

 

  1. While we do everything we can to ensure your order is delivered in a timely manner, we will not be liable for any loss or damage incurred by any person as a result of delay caused by our carrier that we have no control over or by any event which is out of our reasonable control or foresight including but not limited to any delay caused by an incorrect delivery address being provided to us.

 

  1. Insurance is available at an extra cost on all delivery services. Smart Foal will not cover any loss of Goods that are not insured.

 

  1. Delivery to countries outside Australia can take 10+ working days, depending on region, to arrive. Airmail delivery times from Australia to the USA, UK, and NZ are generally faster than those to some European countries (including Italy and Greece) which may take up to 10 weeks to arrive. Delays may result from slower postal services or delays with customs in those countries. Please be patient and contact us first before trying to claim the loss of Goods. Goods claims cannot be made until at least 8 weeks after non delivery. Smart Foal can only claim loss on Goods from Australia Post if the goods were insured.

 

  1. We discourage customers that use Paypal to purchase goods using the Paypal Protection Policy which holds Smart Foal responsible for refunding money on Goods lost in the mail system. Any non-delivery of Goods should be reported to Smart Foal to investigate first before making any claims through the Paypal system. Smart Foal keeps records of all customer’s goods sent through the postal system and will challenge any claims with Paypal or the customer on the grounds that we have not sent the Goods. It is Smart Foal’s policy not to refund or replace Goods that have not been insured by the customer.

 

  1. All customs/import fees/taxes and duties are the responsibility of the customer.

 

Australia

 

  1. All standard orders in Australia, unless requested otherwise by you prior to purchase, are sent by Australia Post without Insurance or tracking. For an additional cost, we can organise delivery by Australia Post’s Registered Post, Parcel Post, Express Post or Courier Delivery if required.

 

  1. While we do everything we can to ensure your order is delivered in a timely manner, we will not be liable for any loss or damage incurred by any person as a result of delay caused by our carrier that we have no control over or by any event which is out of our reasonable control or foresight including but not limited to any delay caused by an incorrect delivery address being provided to us.

 

  1. Insurance is available at an extra cost on all delivery services. Smart Foal will not cover any loss of Goods that are not insured.

 

  1. For non-delivery of Goods, please notify Smart Foal by email as soon as possible. If you have purchased Goods with Parcel Post, Express Post or Registered Post, please ask us for the tracking number so that you can contact Australia Post who can then assist you to locate the Goods.

 

(e) Receipt of Goods

You must inspect the Goods immediately upon their arrival and if the Goods are not in accordance with the specified requirements then you must give notice to Smart Foal within fourteen (14) days of receipt of the Goods. If you fail to give such notice, the Goods shall be deemed to be in all respects in accordance with the specified requirements. No claim shall be recognised unless made in writing and received by Smart Foal within fourteen (14) days after receipt of the Goods by you.

 

Refund Policy

Please choose carefully. We do not normally give refunds if you change your mind or make the wrong decision.

 

Limitation on Claims

The total liability of Smart Foal for loss or damage of every kind:

 

  • whether arising pursuant to the Terms of Service; or

 

  • out of or in relation to the Goods, their sale, delivery or the way they behave in tort or contract or in any other cause of action, or in any other way whatsoever;

 

is limited to the amount paid by you to Smart Foal for the Goods.

 

Products Purpose

Smart Foal alarms are for monitoring purposes only. The Smart Foal App will show you your mare’s activity levels leading up to labour. Smart Foal does not guarantee that the alarm will sound if your mare goes into labour. Smart Foal alarms are not intended or designed for use in life threatening situations. If your mare or foal are in danger you should immediately contact a trained veterinary professional for assistance. It does not obviate the need for you to personally attend to monitor a mare’s progress during pregnancy.

 

Disclaimer

To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to the terms set out in the clauses ‘Products Warranty’ and ‘Limitations on Warranty’.

 

Except in relation to liability for personal injury (including sickness and death), and except as otherwise stipulated in these Terms of Service, Smart Foal will not accept liability to you in respect of any loss or damage (including indirect, special, or consequential loss or damage) which may be suffered or incurred by you or which may arise directly or indirectly in respect of goods or services supplied pursuant to an order placed on this Website or in respect of any failure or omission on the part of Smart Foal to comply with its obligations as set out in these Terms of Service.

 

Exception to Disclaimer

This disclaimer set out in these Terms of Service does not attempt or purport to exclude liability arising under statute if, and to the extent, such liability cannot be lawfully excluded.

Products Warranty
Smart Foal warrants that its products (“the Product”) are free from defects in workmanship and materials for a period of 12 months from the date of purchase. Subject to the Limitations on Warranty set out below, if the product is returned to Smart Foal, Smart Foal will repair or replace the product free of charge.

Limitations on Warranty
The warranty above is subject to the following:

  • the Product must be returned with proof of payment;

 

  • the Product must not be defaced or changed nor have been tampered with in any other way;

 

  • abuse or damage to the velcro on the product, caused by an animal, does not qualify as a failure of the product and no repair/replacement or refund will be issued;

 

  • failure of the Product must not be due to misuse or other abuse; and

 

  • Smart Foal will not be responsible for damage or loss caused during shipping.

All shipping costs incurred in returning defective products for repair or replacement to Smart Foal, together with the costs of returning the repaired or replacement product to you, must be paid by you.

THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SMART FOAL SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SMART FOAL, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT, FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS, OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.

 

Intellectual Property

The specifications and design of the Product (being all intellectual property, including but not limited to, copyright, design right, trade marks or other intellectual property) remains the property of Smart Foal.

 

Waiver

If you breach these conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these conditions.

 

Entire Agreement

The above Terms of Service constitute the entire agreement of the parties and supersede any and all preceding and contemporaneous agreements between you and Smart Foal. Any waiver of any provision of the Terms of Service will be effective only if in writing and signed by a Director of Smart Foal.

 

Governing Law

These Terms of Service are governed by the laws in force in the Australian Capital Territory, Australia. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction.