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Terms & Conditions | OvuSense Fertility and Ovulation Monitor

DEFINITIONS

Save where context dictates otherwise, in these Terms & Conditions the following expressions shall have the following meanings:

  1. "the Buyer" means the person or company who makes the Contract with the Company, whether directly or indirectly, and unless otherwise stated, shall be the person whose details are entered on the 'Billing Address' page in the 'Checkout' section of the Company Website;
  2. "the Company" means Promedx Pty Ltd trading as OvuSense Australia;
  3. "Company's Premises" means the Company's offices at PO Box 6245, Dural DC, NSW 2158, Australia;
  4. "Company Website" means www.ovusense.com/au;
  5. "Countries" means the countries from which orders for Goods can be placed and to which orders can be shipped, as identified in Schedule 1 of these Terms & Conditions.
  6. "the Contract" means these Conditions of Sale, and any other written document where an agreed price has been paid by the Buyer for supply of the Goods by the Company;
  7. "Goods" means the articles described as 'items' sold via the 'Cart' on the Company Website.

GENERAL

  1. The Buyer understands that by ordering the Goods, they agree to be bound by these terms and conditions.
  2. The Buyer understands that the accessories and contents of the packaging, other than the form and function of the OvuSense Sensor, are subject to change from time to time; and that the accessories may vary from those shown on the website at the time of order.
  3. These conditions shall be deemed to be incorporated in all contracts of the Company to sell Goods. If in any particular case any of these conditions shall be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
  4. The information provided on the Company Websites is for information purposes only and is not a substitute for professional medical advice. Such advice should always be sought prior to the personal use of the Goods, or in the case of concerns regarding the use of the Goods. Fertility Focus Ltd is not responsible or liable, directly or indirectly for any form of damages whatsoever resulting from the use, misuse or reliance on information contained in or implied by information on its websites or information obtained from Goods.
  5. The Buyer understands that the temperature data ('Results') stored in the OvuSense App are uploaded in an encrypted format and stored in a secure database. The Buyer understands that the Results will be held separately from the billing and shipping address, and any payment details, but for the purposes of identification may contain user information such as email address, sensor serial number and licence code. The Company will store the Results indefinitely, but reserves the right to archive data in the future for Buyers that have been inactive for more than (10) ten years. The Buyer agrees that the Results can be used by the Company for the purposes of scientific research or product development, but that they will remain anonymous in any materials shared outside of the Company.
  6. The Buyer understands that in the case of the OvuSense Reader used with OvuSense 'classic' product, if returned to the company for whatever reason, the temperature and other data ('Results') stored on the OvuSense Reader may be downloaded from the Reader once returned and be held in a fully anonymous format so they cannot be traced to the original user. The Buyer understands that the Results can be used by the Company for research and other purposes.
  7. The OvuSense App has functionality allowing the Buyer to share their charts and message information ('Shared Information') with other parties ('Viewers') by sending them an invitation email from the OvuSense App. The Buyer understands that the sharing of this information is entirely at the Buyer's discretion and the Company shall bear no responsibility for such Shared Information howsoever it is interpreted or used by the Viewers. The Buyer understands that by sending an invitation to a Viewer, the Viewer shall on acceptance of the invitation also become bound by these Terms and Conditions.
  8. The Company and its authorised distributors acting on its behalf reserve the right to alter product specifications at any time after initial delivery without prior notice to the Buyer. Where practicable the Company will offer an alternative product with the same or enhanced functionality.

ORDERS

  1. All orders shall be confirmed in "writing" either by direct action on the company website, or by email sent to the Buyer by the Company.
  2. No quotation shall be binding on the Company until the price is paid in full by the Buyer, and the order is confirmed in writing by the Company.
  3. The payment process is managed for the Company by PayPal, a well known secure payment gateway. So the Buyer can be assured that it is safe to use. The Buyer can choose to pay directly through their PayPal account, or by using a debit or credit card through Paypal.
  4. By signing up for an OvuSense Monthly Subscription on the Company Websites the Buyer understands that they are agreeing to purchase the Subscription each month in perpetuity until the Subscription is cancelled. It remains the responsibility of the Buyer to cancel a Subscription before each monthly becomes due if they wish to stop using OvuSense. In exceptional circumstances the Company and at the request of the Buyer only the Company may cancel a Subscription on behalf of a Buyer.
  5. By signing up for an OvuSense Annual Subscription on the Company Websites the Buyer understands that they are agreeing to purchase a Subscription which shall last 360 consecutive days from the point of the order. The Buyer shall not be able to suspend usage or take a usage 'holiday' at any point during the 360 day period. Nor shall the Buyer be entitled to any refund or part refund for unused months.
  6. The Buyer shall retain ownership of all Results, and the ability to view past data in the OvuSense App even if they have cancelled a Subscription. It is the Buyer's responsibility to maintain the current version of the OvuSense App, and in the case of changing mobile device to load the data onto the new device by means of downloading the current version of the OvuSense App and logging in with prior user details.

PRICES

  1. The price payable for Goods shall, be as displayed on the Company's Website or otherwise agreed in writing at the time of purchase.
  2. Unless otherwise stated, all prices include Goods and Services Tax (GST) charged at the appropriate rate, and carriage.
  3. The Company reserves the right to adjust prices from time to time, at its discretion.

TERMS OF PAYMENT

  1. Subject to these Terms & Conditions, and unless otherwise stated by the Company in writing and recorded on the Company's acknowledgement of order, payment for all Goods shall be made in advance of delivery.
  2. Without prejudice to any other rights it may have, the Company is entitled to charge interest on any portion of the purchase price for which payment is overdue at a rate of 2% above the then current business loan variable rate where security is other than residential property of Commonwealth Bank of Australia Limited on overdue payments of the price of the Goods.

DELIVERY

  1. All times or dates given for delivery of the goods are given in good faith. Time of delivery is not of the essence of any Contract nor shall the Company be under any liability for any delay beyond the Company's control.
  2. Delivery of the Goods shall be limited to Buyers who are over the age of 18, legally able to enter into the Contract, resident in, and accessing the Company Website from one of the Countries.
  3. The Buyer must notify the Company in writing of any claim for loss due to damage in transit or non-delivery:
    (a) in the case of reported damage, within seven days of the actual delivery date; or
    (b) in the case of non-delivery, within ten days of the date of the invoice.
  4. If the Company accepts the Buyer's claim for loss due to damage or non-delivery, then the Company must either repair or replace the Goods at its expense, but shall not be under any further liability.
  5. If the Buyer fails to give notice in accordance with condition 3 above, the Goods shall be deemed to have been delivered in accordance with the Contract.

ORDERING & CONTRACTS COMPANY WEBSITE

Some Goods can be ordered using the "Cart" mechanism on the Company Website. The Contract is formed by the following steps. The Buyer fills the "Cart" with the required items and continues to the appropriate payment screen. The Buyer then enters payment details on the payment screen. The Company will acknowledge receipt of the order via email. Once the Company has received payment and acknowledged receipt of the order, the Contract is in place and the Goods will be dispatched.

CONSUMER RIGHTS & RETURNS POLICY

  1. A return can be made under the OvuSense Ovulation Promise; read more...
  2. The Buyer should retain the original packaging in which the Goods are shipped. All returns for whatever reason should be made in the original packaging. Subject to any applicable requirements arising from Part 3-2 of the Australian Consumer Law, if the Buyer returns Goods seeking a full refund, the Company is not obligated to consider granting that refund unless the Goods are returned unopened.
  3. Goods supplied via the Company Website are subject to certain consumer guarantees arising under Part 3-2 of the Australian Consumer Law.
  4. The Buyer shall make any arrangements for return of Goods in writing through the company email address: ovusense@promedx.com.au The Buyer should request an appropriate Return Materials Authorisation (RMA) number to allow the Company to properly co-ordinate the return process.
  5. The Buyer shall then either arrange for immediate return of the Goods to the Company's Premises at their own expense, or require the Company to arrange an appropriate collection (with the Company's collection fee charged to the Buyer at cost).
  6. The cost of the Goods and where appropriate the cost of return carriage shall be fully refunded to the Buyer upon confirmation of receipt of the Goods at the Company's Premises in an appropriate condition, and following appropriate data checks.
  7. Refunds wherever practicable shall be made using the original method of payment.
  8. It shall be at the sole discretion of the Company whether it chooses to accept returns of opened or partially opened Goods.

DEFECTIVE GOODS

  1. If the Buyer, after proper and reasonable use in accordance with any directions provided by the Company or the Goods' manufacturer, discovers a defect (with the exception of fair wear and tear) in Goods supplied under this Contract, then the Buyer shall notify the Company in writing of that defect within 7 days after its discovery. If such notice is provided within time then the Company shall, at its discretion, repair or replace the Goods in question.
  2. Nothing in the Contract shall impose any liability on the Company in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer including any failure by the Buyer to comply with any recommendations of the Company or the Goods' manufacturer as to storage and use of the Goods.

PASSING OF TITLE AND RISK

  1. The Goods shall remain the property of the Company until all payments under the Contract have been made in full and unconditionally. Once all payments are made and from the time of delivery the Goods shall become the property of the Buyer.
  2. In the event of the Buyer fails to pay the price in accordance with the Contract, the Company shall have power to resell the Goods.
  3. The Buyer consents to the Company taking all steps reasonably necessary to perfect and/or enforce its retention of title as a 'security interest' for the purposes of the Person Property Securities Act 2009 (Cth).

CONDITIONS AND WARRANTIES

  1. The Contract does not constitute a sale by sample, nor is it a lay-by agreement, for the purposes of Part 3-2 of the Australian Consumer Law.
  2. Any conditions or warranties (whether express, or implied by general law or any statute save for Part 3-2 of the Australian Consumer Law, or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality of the Goods, their fitness for any particular purpose, or correspondence with any description or sample are hereby expressly excluded.
  3. By entering into the Contract, the Buyer warrants to the Company that the Buyer is:
    (a) over the age of 18 years;
    (b) of legal capacity to enter into binding contractual relations;
    (c) resident in and accessing the Company Website from one of the Countries; and
    (d) authorised by the holder of the PayPal account, credit card, or other payment method (if that holder is a person other than the Buyer) to use that account, card, or other method to pay the purchase price to the Company.
  4. No representation (whether oral or in writing) made by or on behalf of the Company by of its any employees, officers, or agents that is contained in any page of the Company Website, catalogue, price list, advertisement, or communication shall vary or override in any way any of these Terms & Conditions.

LIMITATION OF LIABILITY

  1. The liability of the Company to the Buyer for any loss or damage shall in no circumstances exceed the price of the Goods.
  2. To the extent permitted by law, the Company shall not be liable for any costs claims or damages or expenses arising out of any omission or breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals by reference to accrual of such costs, claims, damages or expenses on a time basis.

DEFAULT ON INSOLVENCY OF THE BUYER

If the Buyer:

  1. is a corporation, and any of the following occur:
    (a) the Buyer enters into an arrangement under Part 5.1 of the Corporations Act 2001 (Cth);
    (b) a receiver, or receiver and manager, is appointed in respect of the whole or any part of the Buyer's assets and undertakings;
    (c) the Buyer is placed into Voluntary Administration within the meaning of Part 5.3A of the Corporations Act;
    (d) an application is made to a court of competent jurisdiction for an order that the Buyer be wound up in insolvency under ss.459B or 461 of the Corporations Act;
    (e) ASIC orders the winding up of the Buyer under s.489EA of the Corporations Act; or
    (f) a resolution that the Buyer be wound up is passed pursuant to s.491 of the Corporations Act;
  2. is a natural person, and commits any act of bankruptcy within the meaning of s.40 of the Bankruptcy Act 1966 (Cth); or
  3. otherwise breaches any of its obligations under the Contract, then

the Company, in its discretion and without prejudice to any other right or claim, may by notice in writing determine wholly or in part any and every contract between the Company and the Buyer or may (without prejudice to the Company's right subsequently to determine the contract for the same cause should it so decide) by notice in writing suspend further deliveries of Goods until any defaults of the Buyer be remedied.

FORCE MAJEURE

The Company shall be entitled to delay or cancel delivery or to reduce the amount or delivering the Goods by normal route or means of delivery through any circumstances beyond its control including but not limited to strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal source of supply.

OTHER MATTERS

  1. The headings in these Terms & Conditions are intended for reference only and shall not affect their construction.
  2. The Contract shall in all respects be governed by Australian Law and shall be deemed to have been made in Australia and the Buyer and the Company agree to submit to the non-exclusive jurisdiction of the Australian Courts.
  3. The Company may assign any of its rights or obligations arising under the Contract to any non-party, and without notice to the Buyer.
  4. The Buyer may not assign any of its rights or obligations arising under the Contract to any non-party without first obtaining the consent of the Company, which consent must not be unreasonably withheld by the Company.
  5. The Company confirms that any communications in relation to the Contract required to be made in writing may be sent electronically by the Buyer to the following email address: ovusense@promedx.com.au
  6. The Buyer confirms that any communications in relation to the Contract required to be made in writing may be sent electronically by the Company to the email listed by the Buyer on the 'Billing Address' page of the 'Checkout' section on the Company Website, or to such other email address as the Buyer may from time to time use (or purport to use) to communicate with the Company in relation to the Contract.
  7. The Buyer understands that the Company has authorised Team Medical Supplies Pty Ltd (including Team Medical Supplies Pty Ltd's employees, officers, and agents) to exercise any rights, and perform any obligations, that fall on the Company pursuant to the terms of the Contract. This is not intended to exclude, limit, or otherwise defeat any liability that may be incurred by the Company pursuant to Part 3-2 of the Australian Consumer Law.

SCHEDULE 1 – COUNTRIES

The OvuSense product can currently be ordered directly from and shipped to the following jurisdictions from this site entity: Australia. For all other countries please enquire by sending an email to info@ovusense.com