TERMS AND CONDITIONS, RETURNS AND WARRANTIES

HARDWARE TERMS AND WARRANTY

Smart Paddock (Smart Paddock, we, us, and our)

Name: Smart Paddock Pty Ltd

ABN: 72 620 505 811

Address: 15 Cochranes Road, Unit 45A, Moorabbin VIC 3189

Email: info@smartpaddock.com

About Smart Paddock

Smart Paddock manufactures and distributes Hardware, including:

1. Smart Paddock’s Bluebell Livestock GPS ear tag

2. On-farm infrastructure monitoring devices including electric fence sensors, equipment trackers and water sensors, and

3. Third-party equipment,

for use in conjunction with Smart Paddock’s Platform.

Limited Warranty Period

1 year from date of activation of the Hardware

1. AGREEMENT AND ACCEPTANCE OF TERMS

1.1 Your agreement with Smart Paddock consists of:

(a) The Smart Paddock Platform Terms of Use;

(b) our Privacy Policy;

(c) these Hardware Terms, which sets out the terms and conditions on which Smart Paddock provides any Hardware or Third Party Equipment to you (You, Purchaser); and

(d) Invoices, Order Confirmations, and Delivery Confirmations provided by us to You.

1.2 All supply of Hardware and Third Party Equipment is made on the understanding that these Hardware Terms apply to Orders given to and accepted by Smart Paddock.

1.3 If there is any inconsistency between the documents referred to in clause 1.1, the Smart Paddock Platform Terms shall take precedence, and thereafter in accordance with the order listed above.

1.4 By placing an Order and receiving an Order Confirmation and Invoice, You are deemed to accept, and agree to be bound by, these Hardware Terms.

1.5 Smart Paddock may amend these Hardware Terms, remove or update descriptions of Hardware, and remove or update Hardware and Third Party Equipment available for purchase, at any time at its sole discretion. By continuing to use the Hardware, You will be deemed to have accepted any revised terms published from time to time on the Website.

2. SUPPLY OF GOODS

2.1 When You place an Order with Smart Paddock, we will send You an Order Confirmation and an Invoice for payment.

2.2 An Order Confirmation will constitute proof of the Purchaser's offer to purchase the Goods, and proof of Smart Paddock’s acceptance of the offer.

2.3 Delivery

(a) You grant all authority required to Smart Paddock in order to deliver the Goods and make representations in relation to You. We acknowledge that we do not have the authority to act as your agent except as directed by You in writing.

(b) You agree to provide all reasonable assistance to Smart Paddock to enable us to deliver the Goods, including providing us with complete and accurate information, identification, and registrations.

(c) Smart Paddock will use reasonable endeavours to supply the Goods to You in accordance with the location You specify in an Order Confirmation.

(d) Smart Paddock will have no liability to You to the extent that Goods are reasonably unavailable, or for any delays arising in connection with Smart Paddock obtaining sufficient quantities of Goods to fulfil the Order.

(e) Smart Paddock will be under no obligation to supply Goods to You if any amounts owed to us are outstanding, whether in relation to previous Orders, Platform access, or otherwise.

(f) We may subcontract our delivery of the Goods at any time without prior notice to You. You agree and acknowledge that any Contractors, including third party couriers, used are independent contractors and are not employees or agents of Smart Paddock. Smart Paddock is not liable for any actions of its Contractors.

(g) Delivery and shipping of Goods may be separated into multiple parcels, as needed and in Smart Paddock’s sole discretion. You agree that each shipped parcel is a separate sale of Goods for the purposes of delivery, title and risk.

(h) Smart Paddock is not liable for any delays, Loss or damage of Goods in transit.

2.4 Title, risk and security interest

(a) Title to and risk of loss in the Goods shall pass to You on the Dispatch Date when Goods leave Smart Paddock’s premises.

(b) You must accept delivery of the Goods within 30 days of receiving notice that the Goods have been delivered to You (Acceptance Date).

(i) You fail to accept delivery of any Goods by the Acceptance Date,

(ii) You fail to provide accurate instructions, addresses, documents or authorisations to allow Smart Paddock or its Contractors to deliver the Goods to You; or

(iii) Smart Paddock is unable to deliver the Goods to you, or Goods are retuned as undeliverable,

then,

(iv) the Goods shall be deemed to have been delivered on the Acceptance Date;

(v) Smart Paddock may, at its sole discretion, store the Goods until You pick them up or otherwise arrange for re-delivery; and

(vi) You will be solely liable for any costs and expenses relating to the re-delivery of the Goods, including without limitation, storage, delivery, and insurance.

2.2 Proof of delivery

(a) Goods shipped by Smart Paddock and showing as ‘delivered’ in Smart Paddock’s records, or on any tracking provided by a Contractor, shall be conclusive evidence of the Goods being received unless You provide conclusive evidence to the contrary.

(b) Smart Paddock shall not be liable for any non-delivery of Goods, unless You give Smart Paddock written notice of non-delivery within 5 days of receiving a Delivery Confirmation, in which case Smart Paddock will be liable only to investigate the non-delivery and provide you with reasonable assistance with claiming on any insurance policies provided by a third party courier.

3. ORDER SPECIFICATIONS, REFUNDS AND EXCHANGES

3.1 You are exclusively responsible for:

(a) properly and accurately specifying the requirements for the Goods to be provided in an Order Confirmation;

(b) any delays, costs, expenses and/or losses associated with You varying or changing the initial requirements specified in the Order Confirmation, which includes but is not limited to a variation to original order quantities, delivery details, or Platform subscriptions originally set out in an Order Confirmation; and

3.2 Any variations to the initial Goods outlined in the Order Confirmation must be first agreed upon by both parties. The amount payable may be amended in the Invoice in accordance with any agreed variations or at our discretion.

3.3 Refunds and exchanges

(a) You may contact us at support@smartpaddock.com if You wish to return Goods which have been delivered to You. You must notify us within 15 days of the Acceptance Date if You wish to request a change-of-mind return of some or all of the Goods.

(b) We may, in our sole discretion, allow a refund of the Goods if they are unopened, unused, and remain in their original packaging.

(d) We will process approved refunds within 30 days of receipt of the returned Goods. Where Goods returned to us are not eligible for refund, we will reship them to You at your sole cost.

3.2 Cancellations: Where Goods have been ordered, but are no longer required, You will bear all cost and responsibility of cancelling an Order, including all expenses and costs incurred by Smart Paddock in fulfilling the Order up to and including the date of cancellation, except in case of breach of these Hardware Terms by Smart Paddock.

4. FEES, PAYMENT and TAXES

4.1 We will provide you an Invoice for the Fees, which includes amounts payable for Hardware Fees.

4.2 You agree to pay the Hardware Fees as consideration for the supply of the Goods, and to pay Smart Paddock for all Fees, including Hardware Fees, within 14 days of the date of any Invoice, unless otherwise agreed in writing between you and Smart Paddock.

4.3 The Hardware Fees are subject to fair and reasonable adjustment prior to the Dispatch Date of the Goods if Smart Paddock is subject to not insignificant changes in the cost of supply and/or manufacture of the Goods.

4.4 The Purchaser acknowledges and agrees that, except where otherwise agreed with Smart Paddock, the Purchaser is liable for all third-party expenses associated with the provision of Goods. The Purchaser may elect for third party expenses to be paid either:

(a) by Smart Paddock, in which case You agree to reimburse Smart Paddock for all such expenses; or

(b) by You directly, in which case You agree to promptly pay such expenses as directed by Smart Paddock.

4.2 In the event You do not pay the Hardware Fees in accordance with these Hardware Terms:

(a) Smart Paddock reserves the right to suspend delivery of the Goods until all outstanding amounts are paid to Smart Paddock;

(b) Smart Paddock may refer the outstanding amounts for debt collection or recovery by a third party; and

(c) Smart Paddock may charge interest at a rate of 10% per annum, compounding monthly, in respect of any unpaid amounts, additional fees, and charges, including costs of debt collection and recovery by a third party.

4.5 Unless otherwise stated, all amounts payable under these Hardware Terms are expressed as GST exclusive but subject to GST. If GST applies to a taxable supply made under these Terms, the party to which the taxable supply is made must pay GST on that taxable supply, in addition to any consideration (excluding GST) that is payable for that taxable supply. It must do so at the same time and in the same way as it is required to pay the consideration for the taxable supply. If You are located overseas, You acknowledge that the total Fees payable by You may be subject to increase to the extent required to cover any taxes payable on our supply of services to You. We are not liable to make payment of any taxes or surcharges appliable in your jurisdiction on your behalf.

4.6 Any taxes whatsoever on sales or duties payable on revenue must be paid by You.

4.7 You shall have no right of set off against any amounts payable to Smart Paddock.

4.8 PPS Act: From the Acceptance Date for particular Goods until the Purchaser has fully complied with its payment obligations under these Hardware Terms for those Goods:

(a) the Purchaser grants to the Company a security interest over the Collateral to secure payment of the Fees and any other amounts payable to the Company for those Goods or otherwise; and

(b) for the purposes of the PPS Act and for any other purposes:

(i) the Purchaser consents to the Company registering these Hardware Terms as a security agreement

(ii) once the Purchaser pays in full for particular Goods then they will cease to be Collateral; and

(iii) if the Purchaser becomes in breach of its payment obligations in relation to particular Goods, we may enforce our security interest over the Collateral immediately (including entering onto the Purchaser's premises or any other property where the Collateral is located and re-taking possession of the Collateral).

(i) its rights to receive any notice that is required by:

A. any provision of the PPS Act (including a notice of a verification statement); or

B. any other law before a secured party or receiver exercises a right, power or remedy; and

(ii) any time period that must otherwise lapse under any law before a secured party or receiver exercises a right, power or remedy. If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).

(d) However, nothing in this clause prohibits the Company or any receiver from giving a notice under the PPS Act or any other law.

(e) Words used in this clause 4.8 that are defined in the PPS Act have the meaning given in the PPS Act unless they are otherwise defined in these Hardware Terms.

5. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION

5.1 The ownership of any Intellectual Property Rights produced by Smart Paddock will remain with the Purchaser. By accepting a delivery of Goods, the Purchaser does not, in any way, obtain rights to any Intellectual Property Rights in the Goods.

5.2 You indemnify Smart Paddock for any and all Loss that we may incur or suffer as a direct result of a breach by You of the Intellectual Property Rights of us or any third party in connection with these Hardware Terms.

5.3 Notwithstanding the expiry or termination of these Hardware Terms, no party will disclose to any third party any Confidential Information without the prior written consent of the party to which the information relates.

5.4 Upon request by a party, the other party must return all materials and other information in its possession to the other party.

5.5 Each party must keep the Confidential Information of the other party a secret, protect and preserve its confidential nature, and not use it or disclose it to any person (or allow or assist or make it possible for any person to observe or have access to it), except to the extent necessary to obtain professional advice, to comply with these Hardware Terms, or as required by law.

5.6 You acknowledge and agree that disclosure of Smart Paddock’s Confidential Information, including specifications, re-compiled or re-assembled designs of or relating to the Hardware, will result in considerable Loss to Smart Paddock, and You indemnify Smart Paddock against any and all Loss resulting from your breach of this clause 5.

6. TERMINATION

6.1 Without prejudice to any other rights, remedies or liabilities, these Hardware Terms may be immediately terminated or suspended by Smart Paddock upon written notice:

(a) where a party becomes incapable of continuing by reason by death, bankruptcy, or insolvency (as defined by the Corporations Act); or

(b) where a party is in breach of these Hardware Terms or an Order and fails to remedy the breach within 30 days of written notice requiring it to do so.

6.2 If the Purchaser:

(a) fails to carry out any part of these Hardware Terms, the Order Confirmation, or repudiates the Hardware Terms or any other contract with Smart Paddock; or

(b) becomes insolvent, commits an act of bankruptcy, stops payments of debts, calls a meeting of or enters into composition with or for the benefit of its creditors, or has a receiver, manager, administrator, controller or liquidator (or any like person) appointed to its undertaking or assets or any part thereof, or a winding up petition is presented against the Purchaser, or the Purchaser goes into liquidation (except for the purpose of reconstruction or amalgamation); or

(c) does anything which in the reasonable opinion of Smart Paddock has the effect, or may have the effect, or bringing either the Purchaser or Smart Paddock into disrepute,

Smart Paddock may at its discretion and regardless of any default or failure, and without prejudice to its other rights under these Hardware Terms or otherwise, terminate or suspend the Hardware Terms and any unfulfilled Orders.

6.3 In the event of such termination or suspension, Smart Paddock shall not be liable for any Claims howsoever arising from that termination or suspension. In the event of termination, Smart Paddock may enter any premises where the Goods are located to re-take possession of any Goods that have not at that time been paid for in full by the Purchaser and the Smart Paddock may subsequently re-sell those Goods to a third party without any liability to the Purchaser whatsoever.

6.4 Smart Paddock may terminate these Hardware Terms, or any Order made in accordance with these Hardware Terms, with 30 days-notice upon the happening of any of the following events:

(a) in the event that Smart Paddock is unable to deliver the Goods for any reason outside of its control, including but not limited to a Force Majeure Event; or

(b) if the nature of an Order materially and substantively changes.

6.5 Any clause of these Hardware Terms that makes provision for continued operation or is intended to survive expiry or termination of these Hardware Terms will survive the expiry termination of these Hardware Terms.

6.6 Upon termination or expiry of these Hardware Terms, all amounts owing by the Purchaser to Smart Paddock for Goods delivered, or Services performed (including Platform access) become immediately due and payable to Smart Paddock.

7. FORCE MAJEURE

7.1 On the occurrence of a Force Majeure event, we may, in our sole discretion elect to:

(a) terminate these Hardware Terms in accordance with clause 6.4(a);

(b) suspend our obligations for the period of the delay or failure caused by the Force Majeure event; and

(c) pass any additional costs of delay or materials onto You where it is possible to continue delivering the Goods, and where You have agreed to the additional increase in costs and elects to continue.

7.2 If Smart Paddock elects to suspend delivery of its obligations under these Hardware Terms in accordance with clause 7.1(b):

(a) we will notify You as soon as possible of the anticipated delay or failure, and promptly and diligently act to mitigate the Force Majeure event and its effect;

(b) performance of our obligations is suspended for the period of the delay or failure; and

(c) if the delay caused by the relevant Force Majeure event exceeds twelve (12) months, You may terminate these Hardware Terms, and any outstanding Orders, by providing 30 days written notice to us, and termination will occur thirty (30) days following receipt of the notice.

8. PROHIBITED ACTIVITIES

You must not:

8.1 violate the Acceptable Use Policy in relation to the Platform, any Smart Paddock services, or the Hardware;

8.2 distribute, or re-sell the Hardware, or any components of the Hardware, without our prior written approval and subject to negotiation and entering into a supply agreement with Smart Paddock;

8.3 use the Hardware contrary to any guidelines or manuals provided by Smart Paddock from time to time;

8.4 pass off the Hardware as being manufactured, supplied or otherwise distributed by You.

9. PURCHASER WARRANTIES

You represent, warrant, and undertake to Smart Paddock that:

9.1 You have the right, full capacity, and authority to enter into and perform these Hardware Terms;

9.2 You have properly and accurately specified all requirements for Goods as set out in the Order Confirmation; and

9.3 You are fully responsible for its employees, agents, officers and subcontractors in relation to its obligations under these Hardware Terms.

10. PURCHASER INDEMNITY AND INSURANCE

10.1 You agree to, and must, indemnify, defend and hold Smart Paddock and its employees, agents, officers and subcontractors, harmless from and against all Claims and Losses arising out of or related to:

(a) any actual or alleged breach by You of a term of these Hardware Terms, and any other agreement between You and us;

(b) any actual or alleged illegal act or omission by You;

(c) any actual or alleged negligent conduct or wilful misconduct by You, your employees, agents, offices, and subcontractors;

(d) any actual or alleged infringement of any third-party Intellectual Property Rights or proprietary rights arising from or connected with the designs, specifications or any other instructions given in relation to the Hardware Terms, our Confidential Information, or Order Confirmation; and

(e) the improper use of the Goods by the Purchaser or any third party obtaining them from the Purchaser, regardless of whether the third party obtained the Goods from the Purchaser with Smart Paddock’s prior written approval.

10.2 Insurance requirement: From the time at which the Goods leave Smart Paddock’s premises until the Acceptance Date, the Goods will be insured by the third party courier engaged to deliver the Goods. You are solely responsible for making payment of the additional insurance premiums to insure the Goods in transit with any third party courier, and submitting evidence of Loss if you wish to claim on the insurance provided by them. If you wish to insure the Goods for an additional amount beyond the limits provided by the third party courier, the Purchaser shall insure the Goods with a reputable and solvent insurer for their full replacement value against all risks of loss or damage that a prudent business operator in the Purchaser’s position would be reasonably expected to anticipate. You will provide a copy of the relevant insurance policy to the Smart Paddock immediately on request.

10.3 In addition to the insurance contemplated under clause 10.2, the Purchaser will ensure that at all times policies of insurance covering the ordinary business risks of the Purchaser (including public liability and worker’s compensation insurance) are in force for coverage amounts that a prudent business operator in the Purchaser’s position would be reasonably expected to carry. To the extent that any Claim arises in connection with use or possession of the Goods by the Purchaser or any third party that falls within the scope of such insurances, the Purchaser will claim against the relevant policy of insurance prior to making any claim against Smart Paddock or the manufacturer of the goods with respect to those Goods.

11. STATUTORY CONDITIONS, WARRANTY AND LIMITATION OF LIABILITY

11.1 Smart Paddock will use best endeavours to ensure that the Goods and other Smart Paddock services directly provided by Smart Paddock shall be fit for purpose and carried out with due care and skill. Smart Paddock however makes no warranties either express or implied, about the Goods, other than as set out in clause 13 (limited product warranty) below.

11.2 You acknowledge that the Goods may not function if used in imperfect conditions. The Goods are intended to function properly only where they are attached or affixed securely and in accordance with instructions provided to you, in sunny conditions with no wind or rain, and with unimpeded internet and network connectivity. Smart Paddock does not guarantee that Goods can function in other conditions.

11.3 Consumer Notice: Some of the Goods supplied to You by Smart Paddock may come with guarantees that cannot be excluded under the Australian Consumer Law if You have engaged us for the provision of Goods as a consumer and not for commercial or business use. Nothing in these Hardware Terms purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded.

11.4 Where any law implies a warranty into these Hardware Terms, Smart Paddock’s liability is limited to any one of the following as determined by us:

(a) the replacement of the Goods or the supply of equivalent Goods;

(b) the repair of the Goods; or

11.5 Warranties do not apply where the services, including Hardware, are acquired for rental, hire or other commercial purpose.

11.6 To the extent permitted by law, the following are not covered by warranty:

(a) failure or defect resulting from your improper care or use;

(b) incompatibility or failed interactions, interruptions or transmission failures or delays between the Platform, Hardware, your network, and any required connections;

(d) any modification or alteration to the Hardware not conducted or authorised by Smart Paddock;

(e) failure to receive alerts from the Platform or Hardware for any reason;

(f) any unauthorised access to or use of the Hardware, and information of any kind stored on the servers that host information generated by the Hardware;

(g) any Viruses or other harmful code or communications which may be transmitted to or through the Application or via the Hardware or by any third party; and

(h) any Claims suffered, or incurred by, or brought or recovered by any person (whether the Purchaser or any third party) against the Purchaser or Smart Paddock in connection with the use of the Goods by the Purchaser or a third party that received the Goods from the Purchaser, and the Purchaser indemnifies Smart Paddock in relation to all such claims.

11.7 To the extent permitted by law, Smart Paddock shall not be liable to You or any third party for any Excluded Loss, howsoever caused.

11.8 Except as expressly set out in these Hardware Terms and the Australian Consumer Law, Smart Paddock makes no warranties or other representations to You in relation to the Goods. Smart Paddock’s liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.

12. SUPPORT

12.1 If You experience issues with set up, installation, or operation of the Goods, You may access support in our troubleshooting guide.

12.2 If You are unable to resolve the issues, You must first contact us at support@smartpaddock.com or through the contact us form on the Website. We will endeavour to respond to all technical issue requests within 48 hours of receipt, during business hours only.

12.3 While Smart Paddock will make reasonable efforts to rectify any technical issues impeding performance of the Hardware, Smart Paddock does not guarantee that technical issues will be resolved within any specific timeframes.

12.4 If we are unable to resolve your issue, we may, in our sole discretion, send replacement Hardware for a reduced Hardware Fee, provided that:

(a) The Hardware issues are caused by factors outside of your control;

(b) You agree to ship, at your expense, the Hardware to us, for further analysis; and

13. LIMITED PRODUCT WARRANTY

13.1 Smart Paddock provides a limited product warranty for Hardware manufactured by Smart Paddock, during the Limited Warranty Period set out in the Schedule.

13.1 Provided that all Hardware is used in accordance with specifications set out by Smart Paddock, if a particular Hardware has an issue that cannot be resolved after:

(a) reasonable attempts to follow the troubleshooting guide;

(b) contacting our support team; and

then, during the Limited Warranty Period, we will provide a replacement for the Hardware. You must pay all shipping and handling fees for the replacement Hardware.

13.2 To claim a replacement for Hardware under the limited product warranty, you must contact us at support@smartpaddock.com and first follow all steps set out in clause 12.

13.3 The limited product warranty for Hardware is provided subject to:

(a) the Hardware having been used according to the intended use case and within the recommended performance levels set out from time to time by Smart Paddock, including proper installation, placement and positioning of batteries or solar power cells, and minimum network coverage requirements;

(b) the Hardware not having been subjected to treatment or use outside of the specified use case scenarios as set out from time to time by Smart Paddock; and

(c) the Purchaser paying for the carriage of any Hardware and expenses incurred by Smart Paddock removing, refitting, replacing or redelivering the Hardware.

13.4 The limited product warranty does not apply:

(a) for Third Party Equipment; and

(b) in cases where You are in breach of the Hardware Terms or the Acceptable Use Policy, including provisions in the Hardware Terms as to appropriate use and care of the Hardware.

13.5 Third Party Equipment

(a) Smart Paddock will use its reasonable endeavours to assign and transfer to the Purchaser the benefit of any manufacturer warranties or guarantees in relation to Third Party Equipment, provided that the Purchaser will be liable for Smart Paddock’s reasonable costs in perfecting such assignment and transfer.

(b) The Purchaser specifically agrees and acknowledges that where Smart Paddock is not the manufacturer of the Third Party Equipment, to the extent permitted by law, Smart Paddock makes no representations and gives no warranties as to whether Third Party Equipment:

(i) are of merchantable quality, are new, are fit for the purpose for which they are sold or are fit for the specific purposes of the Purchaser;

(ii) are free of defects in materials, workmanship and design; or

(iii) may infringe, or are capable of infringing, any Intellectual Property Rights of third parties,

provided that Smart Paddock is not as at the date of the Order Confirmation aware of any such defects or infringement of the kind mentioned in this clause.

(c) Smart Paddock agrees that, to the best of its knowledge, Goods supplied under these Hardware Terms are free from all liens and encumbrances, and that Smart Paddock has good title to them.

(d) Except to the extent required by applicable law, Smart Paddock makes no representations, nor does it give any warranties or guarantees, whatsoever in relation to the Third Party Equipment manufactured by third parties.

14. TRANSFER AND ASSIGNMENT

14.1 In the event that Smart Paddock merges, sells or otherwise undergoes a Change of Control (as that term is defined in the Corporations Act) of its business to a third-party, it reserves the right, without giving notice or seeking consent, to transfer or assign the rights that it has collected from You and any agreements between You and Smart Paddock.

14.2 You may not assign or otherwise transfer your rights in these Hardware Terms without Smart Paddock’s prior written consent.

15. DISPUTE RESOLUTION

15.1 Neither party may initiate litigation or arbitration in relation to any matter relating to these Hardware Terms without first complying with this clause 15.

15.2 In the event of any complaint or claim arising out of these Terms or your use of the Platform or Hardware, You must first provide notice of the dispute in writing to Smart Paddock by email to support@smartpaddock.com and include details of the dispute, complaint or claim, surrounding circumstances and any evidence to allow us to investigate the matter.

15.3 Upon receipt of your notice, we will provide a reply acknowledging the complaint. You must provide us a reasonable period of time, being not less than 4 weeks, to offer a suitable resolution to your complaint or claim.

15.4 If we are unable to resolve your complaint or claim within a reasonable period of time, either party may, by notice in writing, require the other party to refer the dispute to mediation (Mediation Notice).

15.5 Within 30 days of the receipt of a Mediation Notice, the parties must refer the dispute to a mediator as agreed between the parties and, failing agreement, to a mediator appointed by the President of the Law Institute of Victoria.

15.6 The costs of the mediator will be paid equally by the parties.

15.7 The parties must approach the mediation in good faith and make a reasonable attempt to settle the dispute by mediation and within a framework determined by the mediation.

15.8 If the mediation fails to settle the dispute, the parties may commence litigation or arbitration.

15.9 Nothing in these Hardware Terms prevents a party from seeking urgent interlocutory or injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations, or enforcement of an award or order in the appropriate jurisdiction.

16. GENERAL

16.1 Variations to these Hardware Terms will become effective from the date the hardware Terms are updated on the Website. Where variations are major, we will notify you of the changes by email.

16.2 Notices sent under these Hardware Terms must be in writing and delivered by post or email. A notice given under these Hardware Terms is taken as having been given and received on the second business day after post, if by post, and on transmission, if by email.

16.3 Nothing in these Hardware Terms creates any partnership, joint venture, employment or similar relationship between You and us.

16.4 If either party does not exercise or enforce any right or provision under these Hardware Terms, it will not constitute a waiver of such right or provision. Any waiver of any provision under these Hardware Terms will only be effective if it is in writing and signed by Smart Paddock.

16.5 These Hardware Terms and any agreement between us will be governed by and interpreted in accordance with the laws of Victoria, Australia. You irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.

16.6 If any part of these Hardware Terms is found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of these Hardware Terms or any agreement between Smart Paddock and the Purchaser, the severed part will not affect the validity and enforceability of any remaining provisions.

16.7 In these Hardware Terms, unless otherwise indicated by context:

(a) a reference to days is a reference to calendar days;

(b) capitalised terms have the meaning set out in the Definitions section;

(d) headings are for convenience only and do not affect interpretation of these Hardware Terms; and

(e) a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of these Hardware Terms.

17. DEFINITIONS

Acceptance Date means the date on which You accept delivery of Goods, or are deemed to have accepted delivery of Goods;

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State fair trading legislation;

Claim means any claim, action, investigation, suit, proceeding, demand, judgment, cost, loss, damage, liability, fine, penalty, expense (including legal costs) or obligation of whatever nature whether present, unascertained, contingent or prospective and including any interest;

Confidential Information means all information relating directly or indirectly to any party to which any other party has access and includes information that is by its nature is confidential, information and information that the disclosing party knows or ought to know is confidential including but not limited to the business performance, strategy and processes of a party, designs and specifications of Goods;

Contractor means an independent service provider engaged by Smart Paddock to carry out some or all of its obligations under these Hardware Terms, including delivery of Goods;

Corporations Act means the Corporations Act 2001 (Cth);

Delivery Confirmation means a notification provided to You by Smart Paddock, or a Contractor, that a parcel has been delivered to you;

Dispatch Date means the date that Smart Paddock or its Contractor marks the Goods as ‘shipped’;

Excluded Loss means any loss or damage suffered by the Purchaser:

a) which is indirect or consequential;

b) which results from some supervening event or special circumstance;

c) which is by way of loss of revenue, loss of contract loss of profits or loss of opportunity;

d) which is not an immediate consequence of the breach or alleged breach by Smart Paddock of these Hardware Terms, or any contract between Smart Paddock and the Purchaser;

e) which is suffered by the Purchaser as a result of a claim upon it by a third party; or

f) as to the likelihood of which Smart Paddock did not have actual knowledge;

Goods means the Hardware and/or Third Party Equipment set out in an Order Confirmation, and the Hardware or Third Party Equipment’s component products, parts or materials;

Intellectual Property Rights means all intellectual property rights (whether created before, on or after the date of these Terms and whether registered or unregistered) in respect of copyright, any patents, trademarks, logos, designs, software, domain names, business or trade name, together with marketing concepts and designs, product knowledge, training Platforms and materials, protection of confidential information, circuit layouts, inventions, know-how, product or business concepts, details of product development, and any other identifiable result of intellectual endeavour, whether arising under statute or otherwise or any similar industrial property right or any right to, or application for registration of, any of them;

Fees means all amounts payable under an Invoice, which may include Fees for Platform access;

Force Majeure means any act or event caused by any factor that is not within our reasonable control, including without limitation, act of God; war; national emergency; cyber-attack; explosion; damage to telecommunications infrastructure or internet services;

GST legislation means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related and subordinate legislation, and GST has the meaning given to it in the GST legislation;

Hardware means Smart Paddock’s Bluebell GPS smart ear tags, on-premises monitoring devices, and other products manufactured by Smart Paddock;

Hardware Fees means the amounts payable in relation to the supply of Goods;

Invoice means a document that satisfies the tax invoice requirements of the GST Legislation and, in relation to an Order, means the document that sets out the Fees payable in relation to that Order;

Loss includes any loss, damage, liability or obligation, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense on a full indemnity basis) however it arises and whether it is present or future, fixed or unascertained, actual, consequential or contingent and including any loss of profits, loss of revenue and loss of opportunity;

Manufacturer has the meaning given to it in the Australian Consumer Law;

Order means an order made by the Purchaser for the supply of Goods and/or other Smart Paddock services, placed with Smart Paddock in writing or verbally, and confirmed by Smart Paddock in an Order Confirmation;

Order Confirmation means the Order confirmation to which these Hardware Terms apply, being a confirmation of an Order, which refers to these Hardware Terms, and which has been emailed, delivered personally, posted or otherwise delivered in writing to the Purchaser;

PPS Act means the Personal Properties Securities Act 2009 (Cth).

Privacy Act means Privacy Act 1988 (Cth) as amended from time to time;

Platform means the software known as Smart Paddock and all of its associated services and/or functionality, together with all of Smart Paddock’s Intellectual Property Rights attaching to or in respect of same;

Supplier has the meaning given to it in the Australian Consumer Law;

Taxable supply has the meaning given to it in the GST legislation;

Third Party Equipment means products manufactured by third parties and sold by Smart Paddock to you. For the purposes of the Australian Consumer Law, Smart Paddock is a Supplier and not a Manufacturer of Third Party Equipment;

Virus means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and

Website means www.smartpaddock.com and its associated services and/or functionality, including the login portal to the Platform.