Terms of Service and Conditions

1. Your Acceptance

Welcome to the Terms of Service for the Smart Fertility Choices website and any associated services. This is an agreement (“Agreement”) between, Kym Campbell (ABN 16 971 784 993), trading as “Smart Fertility Choices” the owner and operator of beatpcos.com (the “Site”, “Website”), any Smart Fertility Choices services (“Service(s)”) and you (“you”, “your” or “user(s)”), a user of the Site and Service.

Throughout this Agreement, the words “Smart Fertility Choices,” “us,” “we,” and “our,” refer to Kym Campbell (ABN 16 971 784 993) and our Site or any Services, as is appropriate in the context of the use of the words.

By using our Site or any Services you agree to be bound by this Agreement and the Privacy Policy. We may amend our Terms of Service or Privacy Policy and will notify you when we do so. If you do not agree to the Terms of Service or the Privacy Policy please cease using our Site and Service immediately.

Users of our Service must be 18 years of age or older, at a minimum you must be over the age of 13 with a parent’s permission to use our Site and Service. Users must be 18 years or older to purchase any of our products or Services.
 

2. Statements Have Not Been Evaluated; Speak With Your Doctor

All content created by Smart Fertility Choices is for informational and educational purposes only.

Any statements listed on our Site or Service have not been evaluated by any other national or international agencies.

None of the content or products offered on the Site are meant to diagnose, treat, alleviate or relieve any medical or health conditions.
The products and content found on the Site are not intended as a substitute for the advice provided by your physician or other healthcare professional.

You should always speak with your physician or other healthcare professional before adopting any treatment for a health problem or before using any of our products.

If you have or suspect that you have a medical problem, promptly contact your health care provider.
Never disregard, avoid, or delay obtaining medical advice from your doctor or other qualified health care provider because something you have read on our Site.

You should be in good health and physically fit when using our product or Service, failure to be in good health may result in adverse health consequences.

Please seek medical advice in regards to your health conditions and physical fitness.

If at any time you notice any unanticipated changes to your health (physical, mental or emotional), you should seek medical attention immediately.
 

3. Testimonials

Please be aware that any testimonials on the Site may not reflect the results that you may achieve. Results may vary and your experience may not be similar to the experience of the user testimonials.
 

4. Payment

In order to purchase any Smart Fertility Choices products you will be required to provide us with your credit card information. Please be aware that all credit card information may be shared with our third party payment processors such as Stripe and PayPal. By ordering a Smart Fertility Choices product or service, you agree that we may charge you the price listed at the checkout screen on our Site. If you have any issues with payment do not hesitate to contact us at kym@smartfertilitychoices.com.

The prices for services provided under this Agreement will be as set out on the website at the time you apply for the services.

All prices are in US dollars unless otherwise stated.
 

5. Contact Information

If you have any questions or concerns about your order or if you have any questions about our products do not hesitate to contact us. You may contact us by email at kym@smartfertilitychoices.com.
 

6. Taxes

You agree that we may charge you taxes such as GST for any purchases through our Site and Service. If we fail to charge you GST you agree to pay any applicable GST or other taxes as required by your local laws and ordinances. You agree that we are not responsible for providing you with advice in regards to your tax liabilities.
 

7. Modification of Service

We reserve the right to alter, update, or remove our Service at any time. We may conduct such modifications to our Service for security reasons, intellectual property or other legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Service for security, legal or other purposes.
 

8. Use of Website

When using our Service, you are responsible for your use of the Site, and for any use of the Site made using your device. You also agree that your use of the Site is for personal non-commercial use. You agree not to access, copy, or otherwise use the Site, including our intellectual property and trademarks, except as authorized by these Terms of Service or as otherwise authorized in writing by Smart Fertility Choices. You agree:

  • You will not copy, distribute or disclose any part of the Site or the Service in any medium, including without limitation by any automated or non-automated “scraping”;
  • You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site or Service;
  • You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
  • You will not collect or harvest any personally identifiable information, including account names, from the Service;
  • You agree not to stalk, harass, bully or harm another individual who uses our Site or Service;
  • You agree not to upload, post, transmit or otherwise make available any material that:
    • a) is not your original work, or which may infringe the intellectual property or other rights of another person;
    • b) is, or could reasonably be expected to be, defamatory, obscene, offensive, threatening, abusive, pornographic, vulgar, profane, indecent or otherwise unlawful, including material that racially or religiously vilifies, incites violence or hatred, or is likely to offend, insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation or any physical or mental disability;
    • c) includes an image or personal information of another person unless you have their consent;
    • d) you know or suspect, or should reasonably know or suspect, to be false, misleading or deceptive;
    • e) contains large amounts of untargeted, unwanted or repetitive content; or
    • f) contains financial, legal, medical or other professional advice.
  • You agree not to impersonate any person or entity or misrepresent your affiliation with a person or entity;
  • You agree that you will not hold Smart Fertility Choices responsible for your use of our Site;
  • You agree not to violate any requirements, procedures, policies or regulations of networks connected to Smart Fertility Choices;
  • You agree not to interfere with or disrupt the Site or Service;
  • You agree not to hack, spam or phish us or other users;
  • You agree to provide truthful and accurate content;
  • You agree to not violate any law or regulation and you are responsible for such violations;
  • You will not use our Site to post any false, misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, inflammatory, fraudulent content;
  • You agree not to cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of our Site, including the de-indexing or de-caching of any portion of our Site from a thirty party’s website, such as by requesting its removal from a search engine; You will not upload any content to our Site that includes any third party intellectual property unless you have permission from the owner to use it in the specific manner that you used it;

If you believe that a user has breached any of the above conditions, please contact us at kym@smartfertilitychoices.com.

      • We reserve the right to refuse service, block or suspend any user of the website, and to modify or remove any material uploaded, posted, transmitted or otherwise made available on the website by any user, without prior notice.
      • By uploading, transmitting, posting or otherwise making available any material via the website, including providing us with any comments, feedback, ideas or suggestions, you grant us a non-exclusive, worldwide, royalty-free, perpetual licence to use, reproduce, edit and exploit the material in any form and for any purpose, and unconditionally waive all moral rights as defined by the Commonwealth Copyright Act 1968.
      • We are not responsible for, and accept no liability with respect to, any material uploaded, posted, transmitted or otherwise made available on the website by any person other than us. We do not endorse any opinion, advice or statement made by any person other than us.
      • You agree to indemnify us and each of our officers, employees, agents, contractors, suppliers and licensors (collectively, Affiliates) in respect of any liability, loss or damages (including all legal and other costs on a full indemnity basis) suffered or incurred by them arising (in whole or part) out of the breach of or failure to comply with any of these terms and conditions, or any other default or wrongful conduct in relation to the subject matter of these terms and conditions, on the part of you or any of your Affiliates.

 

9. Site Availability

We do not guarantee that the Site will always be available, work, or be accessible at any particular time. We cannot guarantee that any products found on our Site or Service will work as advertised, or that they will give you the desired results.
 

10. Intellectual Property Rights and License Grant For Your Content

The design of the Smart Fertility Choices along with Smart Fertility Choices created text, templates, scripts, graphics, interactive features and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Kym Campbell (ABN 16 971 784 993), trading as “Smart Fertility Choices”, subject to copyright and other intellectual property rights under Australian and foreign laws and international conventions. Smart Fertility Choices reserves all rights not expressly granted in and to the Service and the Site. You agree to not engage in the use, copying, or distribution of anything contained within the Site or Service unless we have given express written permission.

By uploading, transmitting, posting or otherwise making available any material via the Site and associated social media platforms, including providing us with any comments, feedback, ideas or suggestions, you grant us a non-exclusive, worldwide, royalty-free, perpetual license to use, reproduce, edit and exploit the material in any form and for any purpose, and unconditionally waive all moral rights as defined by the Commonwealth Copyright Act 1968.
 

11. Linking and Third Party Content

      1. You must not frame, reformat, replicate or mirror any part of the website, or use any data mining robots or other extraction tools in relation to the website, without our prior written authorization.
      2. You may link to our website without our consent. Any such linking will be entirely your responsibility and at your expense. By linking, you must not alter any of our website’s contents, including any intellectual property notices. At our request, you must immediately remove any link to our website.
      3. The website may contain links to or display the content of third parties (Third Party Content), including links to websites operated by other organizations and individuals (Third Party Websites). Third Party Content and Third Party Websites are not under our control. We do not endorse, approve or make any warranty or claim regarding Third Party Content, Third Party Websites or the products, services or information available on any Third Party Website, or in respect of the owner or operator of a Third Party Website or their conduct, including privacy compliance. If you use or rely upon Third Party Content or Third Party Websites, you do so solely at your own risk.

 

12. Disclaimers

Your use of this site is at your risk. The information, materials and services provided on or through this site are provided “as is” without any warranties of any kind including warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property. Neither Smart Fertility Choices nor any of their respective affiliates warrant the accuracy or completeness of the information, materials or services provided on or through this web site. Although we in good faith believe that the information provided will help your PCOS, and promote good health in general, using our products or information may not give you the results you desire or may cause negative health consequences. For this reason we ask you to consult a doctor before using any of our products or programs and to be physically fit and in good health. The information, materials and services provided on or through this web site may be out of date, and neither Smart Fertility Choices nor any of their respective affiliates makes any commitment or assumes any duty to update such information, materials or services. The foregoing exclusions of implied warranties do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

To the fullest extent permissible by applicable law, we hereby disclaim all warranties of any kind, either express or implied, including, any implied warranties with respect to the products and services listed or purchased on or through this web site. Except for the purposes of any “consumer guarantees” as defined by the schedule 2 of the competition and consumer act 2010 (“consumer act”), we hereby expressly disclaim all liability for our service, for product defects or failures, claims that are due to your use of our service or products, product misuse, abuse, product modification, improper product selection, non-compliance with any codes, or misappropriation. The foregoing exclusions of implied warranties do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

By accessing our website, you assume all risks associated with its use, including but not limited to the risk that your computer, software or data may be damaged by any virus, worm, Trojan horse and/or malware transmitted by this website or by any Third Party Content or Third Party Website. To the extent permitted by law, all warranties, conditions and claims (whether express or implied) arising out of or in any way connected with this website are hereby excluded. By accessing our website, you agree to indemnify and hold us harmless for any loss, damage, costs or expenses (including legal fees) whatsoever suffered by any person or entity arising out of or in any way connected with your access to this website.

In regards to any breach or failure to comply with any “consumer guarantees”, we may replace any goods or supply equivalent goods, repair such goods, or pay for the cost of repair. For any services, we may resupply the service or pay for the service to be supplied again.
 

13. Limitations and Liability

1. Notwithstanding any limitations or restrictions placed on this limitation of liability by the Consumer Act, Smart Fertility Choices does not assume any responsibility or liability for any damages to you. In no event will Smart Fertility Choices, or any of their respective officers, directors, employees, shareholders, affiliates, agents, successors or assigns, nor any party involved in the creation, production or transmission of this web site or any products or services offered, be liable to you or anyone else for any direct, indirect, special, punitive, incidental or consequential damages arising out of the use, inability to use, or the results of use of this web site, any web sites linked to this web site, or the materials, information or services contained on any or all such web sites, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages. The foregoing limitations of liability do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

For the purposes of this clause: “Australian Consumer Law” means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation; “Consumer Guarantee” means right or guarantee you may have under the Australian Consumer Law or other rights in relation to the supply of goods or services that cannot lawfully be excluded; and “Consequential Loss” means any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of interest, damage to credit rating or loss or denial of opportunity.

2. With the exception of Consumer Guarantees, we exclude:

      • any term, condition or warranty that may otherwise be implied by custom, law or statute;
      • any liability for loss caused by our negligence; and
      • any liability for Consequential Loss.

3. To the extent permitted by law, our liability in respect of any breach of or failure to comply with any Consumer Guarantee is limited, at our option to any one or more of the following:

      • the replacement of the goods or the supply of equivalent goods;
      • the repair of the goods;
      • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      • the payment of the cost of having the goods repaired.

3.1 In the case of goods, to:

      • the replacement of the goods or the supply of equivalent goods;
      • the repair of the goods;
      • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      • the payment of the cost of having the goods repaired.

3.2 In the case of services, to:

      • the supplying of the services again; or
      • the payment of the cost of having the services supplied again.

In the event of any problem with this web site or any content, you agree that your sole remedy is to cease using this web site. In the event of any problem with the products or services that you have purchased on or through this web site, you agree that your sole remedy is to seek a return and refund for such product or services in accordance with the returns and refunds policies posted on our site.

For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.

If you are a resident of a jurisdiction that requires a specific statement regarding release then the following applies: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You hereby waive any provision in law, regulation, or code that has the same intent or effect as the aforementioned release. Your ability to use our site is contingent on your agreement with this and all other sections of this agreement. In the event that we may not limit our liability in your jurisdiction, you agree our total liability to you is not more than US$100 or the total amount you spent while using our site, products, and service within the last six months, whichever is greater.
 

14. Indemnity

You agree to defend, indemnify and hold harmless Smart Fertility Choices its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

      • your use of and access to the Smart Fertility Choices Site and Service;
      • your violation of any term of these Terms of Service;
      • your violation of any third party right, including without limitation any copyright, property, or privacy right; or
      • any claim that any of your content caused damage to a third party.

This defense and indemnification obligation will survive this Agreement and your use of the Smart Fertility Choices Service. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
 

15. Privacy and Child Protection

Smart Fertility Choices respects the privacy of its users in accordance with the terms of Smart Fertility Choices Privacy Policy. Smart Fertility Choices reserves the right to monitor the Site and to disclose any information recorded or posted on, submitted to or transmitted through the site to the extent, in its sole discretion, deems such disclosure necessary or appropriate (i) to comply with any law, regulation, subpoena or government request, (ii) to operate the site, or (iii) to protect the rights or property of Smart Fertility Choices.
 

16. Choice of Law

This Agreement shall be governed by the laws in force in the state of Queensland, Australia. The offer and acceptance of this contract is deemed to have occurred in Queensland, Australia.
 

17. Forum of Dispute

You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction nearest to the state of Queensland, Australia.

If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.

You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.
 

18. Force Majeure

You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
 

19. Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Smart Fertility Choices shall have the sole right to elect which provision remains in force. This Agreement is deemed to be the entire Agreement between you and Smart Fertility Choices.
 

20. Non-Waiver

We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
 

21. Assignment

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
 

22. Amendments

We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our website and our Service.
 

23. Electronic Communications

The communications between you and Smart Fertility Choices use electronic means, whether you visit the Site or Service or send Smart Fertility Choices e-mails, or whether Smart Fertility Choices posts notices on the Site or Service or communications with you via e-mail. For contractual purposes, you (1) consent to receive communications from Smart Fertility Choices in an electronic form; (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Smart Fertility Choices provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
 

24. General

a. This Agreement constitutes the whole of the agreement between the parties. It supersedes and extinguishes any previous agreement or understanding between the parties about the subject matter of this Agreement and any representation or warranty previously given.

b. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, it is severed from this Agreement. Any reading down or severance does not affect the validity and enforceability of the remaining provisions in that jurisdiction or the validity and enforceability of the offending provision in any other jurisdiction.

c. No failure by either party to exercise and no delay in exercising any right under this Agreement will be taken as a waiver of the right. No waiver of any right is effective unless made in writing. Waiver of any particular right does not in any way release the other party from strict compliance in the future with the same or any other obligation.

d. The rights and remedies provided in this Agreement are cumulative and do not exclude any other rights provided by law.

e. We may assign this Agreement at any time. You may assign this Agreement with our prior written consent.

f. We may subcontract any of our obligations under this Agreement to any person.

  • You agree not to impersonate any person or entity or misrepresent your affiliation with a person or entity;
  • You agree that you will not hold Smart Fertility Choices responsible for your use of our Site;
  • You agree not to violate any requirements, procedures, policies or regulations of networks connected to Smart Fertility Choices;
  • You agree not to interfere with or disrupt the Site or Service;
  • You agree not to hack, spam or phish us or other users;
  • You agree to provide truthful and accurate content;
  • You agree to not violate any law or regulation and you are responsible for such violations;
  • You will not use our Site to post any false, misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, inflammatory, fraudulent content;
  • You agree not to cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of our Site, including the de-indexing or de-caching of any portion of our Site from a thirty party’s website, such as by requesting its removal from a search engine; You will not upload any content to our Site that includes any third party intellectual property unless you have permission from the owner to use it in the specific manner that you used it;
  • If you believe that a user has breached any of the above conditions, please contact us at kym@smartfertilitychoices.com.

        • We reserve the right to refuse service, block or suspend any user of the website, and to modify or remove any material uploaded, posted, transmitted or otherwise made available on the website by any user, without prior notice.
        • By uploading, transmitting, posting or otherwise making available any material via the website, including providing us with any comments, feedback, ideas or suggestions, you grant us a non-exclusive, worldwide, royalty-free, perpetual licence to use, reproduce, edit and exploit the material in any form and for any purpose, and unconditionally waive all moral rights as defined by the Commonwealth Copyright Act 1968.
        • We are not responsible for, and accept no liability with respect to, any material uploaded, posted, transmitted or otherwise made available on the website by any person other than us. We do not endorse any opinion, advice or statement made by any person other than us.
        • You agree to indemnify us and each of our officers, employees, agents, contractors, suppliers and licensors (collectively, Affiliates) in respect of any liability, loss or damages (including all legal and other costs on a full indemnity basis) suffered or incurred by them arising (in whole or part) out of the breach of or failure to comply with any of these terms and conditions, or any other default or wrongful conduct in relation to the subject matter of these terms and conditions, on the part of you or any of your Affiliates.

     

    9. Site Availability

    We do not guarantee that the Site will always be available, work, or be accessible at any particular time. We cannot guarantee that any products found on our Site or Service will work as advertised, or that they will give you the desired results.
     

    10. Intellectual Property Rights and License Grant For Your Content

    The design of the Smart Fertility Choices along with Smart Fertility Choices created text, templates, scripts, graphics, interactive features and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Kym Campbell (ABN 16 971 784 993), trading as “Smart Fertility Choices”, subject to copyright and other intellectual property rights under Australian and foreign laws and international conventions. Smart Fertility Choices reserves all rights not expressly granted in and to the Service and the Site. You agree to not engage in the use, copying, or distribution of anything contained within the Site or Service unless we have given express written permission.

    By uploading, transmitting, posting or otherwise making available any material via the Site and associated social media platforms, including providing us with any comments, feedback, ideas or suggestions, you grant us a non-exclusive, worldwide, royalty-free, perpetual license to use, reproduce, edit and exploit the material in any form and for any purpose, and unconditionally waive all moral rights as defined by the Commonwealth Copyright Act 1968.
     

    11. Linking and Third Party Content

        1. You must not frame, reformat, replicate or mirror any part of the website, or use any data mining robots or other extraction tools in relation to the website, without our prior written authorization.
        2. You may link to our website without our consent. Any such linking will be entirely your responsibility and at your expense. By linking, you must not alter any of our website’s contents, including any intellectual property notices. At our request, you must immediately remove any link to our website.
        3. The website may contain links to or display the content of third parties (Third Party Content), including links to websites operated by other organizations and individuals (Third Party Websites). Third Party Content and Third Party Websites are not under our control. We do not endorse, approve or make any warranty or claim regarding Third Party Content, Third Party Websites or the products, services or information available on any Third Party Website, or in respect of the owner or operator of a Third Party Website or their conduct, including privacy compliance. If you use or rely upon Third Party Content or Third Party Websites, you do so solely at your own risk.

     

    12. Disclaimers

    Your use of this site is at your risk. The information, materials and services provided on or through this site are provided “as is” without any warranties of any kind including warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property. Neither Smart Fertility Choices nor any of their respective affiliates warrant the accuracy or completeness of the information, materials or services provided on or through this web site. Although we in good faith believe that the information provided will help your PCOS, and promote good health in general, using our products or information may not give you the results you desire or may cause negative health consequences. For this reason we ask you to consult a doctor before using any of our products or programs and to be physically fit and in good health. The information, materials and services provided on or through this web site may be out of date, and neither Smart Fertility Choices nor any of their respective affiliates makes any commitment or assumes any duty to update such information, materials or services. The foregoing exclusions of implied warranties do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

    To the fullest extent permissible by applicable law, we hereby disclaim all warranties of any kind, either express or implied, including, any implied warranties with respect to the products and services listed or purchased on or through this web site. Except for the purposes of any “consumer guarantees” as defined by the schedule 2 of the competition and consumer act 2010 (“consumer act”), we hereby expressly disclaim all liability for our service, for product defects or failures, claims that are due to your use of our service or products, product misuse, abuse, product modification, improper product selection, non-compliance with any codes, or misappropriation. The foregoing exclusions of implied warranties do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

    By accessing our website, you assume all risks associated with its use, including but not limited to the risk that your computer, software or data may be damaged by any virus, worm, Trojan horse and/or malware transmitted by this website or by any Third Party Content or Third Party Website. To the extent permitted by law, all warranties, conditions and claims (whether express or implied) arising out of or in any way connected with this website are hereby excluded. By accessing our website, you agree to indemnify and hold us harmless for any loss, damage, costs or expenses (including legal fees) whatsoever suffered by any person or entity arising out of or in any way connected with your access to this website.

    In regards to any breach or failure to comply with any “consumer guarantees”, we may replace any goods or supply equivalent goods, repair such goods, or pay for the cost of repair. For any services, we may resupply the service or pay for the service to be supplied again.
     

    13. Limitations and Liability

    1. Notwithstanding any limitations or restrictions placed on this limitation of liability by the Consumer Act, Smart Fertility Choices does not assume any responsibility or liability for any damages to you. In no event will Smart Fertility Choices, or any of their respective officers, directors, employees, shareholders, affiliates, agents, successors or assigns, nor any party involved in the creation, production or transmission of this web site or any products or services offered, be liable to you or anyone else for any direct, indirect, special, punitive, incidental or consequential damages arising out of the use, inability to use, or the results of use of this web site, any web sites linked to this web site, or the materials, information or services contained on any or all such web sites, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages. The foregoing limitations of liability do not apply to the extent prohibited by law. Please refer to your local laws for any such prohibitions.

    For the purposes of this clause: “Australian Consumer Law” means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation; “Consumer Guarantee” means right or guarantee you may have under the Australian Consumer Law or other rights in relation to the supply of goods or services that cannot lawfully be excluded; and “Consequential Loss” means any loss or damage suffered by a party or any other person that is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, loss of use, loss of interest, damage to credit rating or loss or denial of opportunity.

    2. With the exception of Consumer Guarantees, we exclude:

        • any term, condition or warranty that may otherwise be implied by custom, law or statute;
        • any liability for loss caused by our negligence; and
        • any liability for Consequential Loss.

    3. To the extent permitted by law, our liability in respect of any breach of or failure to comply with any Consumer Guarantee is limited, at our option to any one or more of the following:

        • the replacement of the goods or the supply of equivalent goods;
        • the repair of the goods;
        • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
        • the payment of the cost of having the goods repaired.

    3.1 In the case of goods, to:

        • the replacement of the goods or the supply of equivalent goods;
        • the repair of the goods;
        • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
        • the payment of the cost of having the goods repaired.

    3.2 In the case of services, to:

        • the supplying of the services again; or
        • the payment of the cost of having the services supplied again.

    In the event of any problem with this web site or any content, you agree that your sole remedy is to cease using this web site. In the event of any problem with the products or services that you have purchased on or through this web site, you agree that your sole remedy is to seek a return and refund for such product or services in accordance with the returns and refunds policies posted on our site.

    For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.

    If you are a resident of a jurisdiction that requires a specific statement regarding release then the following applies: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You hereby waive any provision in law, regulation, or code that has the same intent or effect as the aforementioned release. Your ability to use our site is contingent on your agreement with this and all other sections of this agreement. In the event that we may not limit our liability in your jurisdiction, you agree our total liability to you is not more than US$100 or the total amount you spent while using our site, products, and service within the last six months, whichever is greater.
     

    14. Indemnity

    You agree to defend, indemnify and hold harmless Smart Fertility Choices its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

        • your use of and access to the Smart Fertility Choices Site and Service;
        • your violation of any term of these Terms of Service;
        • your violation of any third party right, including without limitation any copyright, property, or privacy right; or
        • any claim that any of your content caused damage to a third party.

    This defense and indemnification obligation will survive this Agreement and your use of the Smart Fertility Choices Service. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
     

    15. Privacy and Child Protection

    Smart Fertility Choices respects the privacy of its users in accordance with the terms of Smart Fertility Choices Privacy Policy. Smart Fertility Choices reserves the right to monitor the Site and to disclose any information recorded or posted on, submitted to or transmitted through the site to the extent, in its sole discretion, deems such disclosure necessary or appropriate (i) to comply with any law, regulation, subpoena or government request, (ii) to operate the site, or (iii) to protect the rights or property of Smart Fertility Choices.
     

    16. Choice of Law

    This Agreement shall be governed by the laws in force in the state of Queensland, Australia. The offer and acceptance of this contract is deemed to have occurred in Queensland, Australia.
     

    17. Forum of Dispute

    You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction nearest to the state of Queensland, Australia.

    If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.

    You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.
     

    18. Force Majeure

    You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
     

    19. Severability

    In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

    If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Smart Fertility Choices shall have the sole right to elect which provision remains in force. This Agreement is deemed to be the entire Agreement between you and Smart Fertility Choices.
     

    20. Non-Waiver

    We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
     

    21. Assignment

    You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
     

    22. Amendments

    We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our website and our Service.
     

    23. Electronic Communications

    The communications between you and Smart Fertility Choices use electronic means, whether you visit the Site or Service or send Smart Fertility Choices e-mails, or whether Smart Fertility Choices posts notices on the Site or Service or communications with you via e-mail. For contractual purposes, you (1) consent to receive communications from Smart Fertility Choices in an electronic form; (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Smart Fertility Choices provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
     

    24. General

    a. This Agreement constitutes the whole of the agreement between the parties. It supersedes and extinguishes any previous agreement or understanding between the parties about the subject matter of this Agreement and any representation or warranty previously given.

    b. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, it is severed from this Agreement. Any reading down or severance does not affect the validity and enforceability of the remaining provisions in that jurisdiction or the validity and enforceability of the offending provision in any other jurisdiction.

    c. No failure by either party to exercise and no delay in exercising any right under this Agreement will be taken as a waiver of the right. No waiver of any right is effective unless made in writing. Waiver of any particular right does not in any way release the other party from strict compliance in the future with the same or any other obligation.

    d. The rights and remedies provided in this Agreement are cumulative and do not exclude any other rights provided by law.

    e. We may assign this Agreement at any time. You may assign this Agreement with our prior written consent.

    f. We may subcontract any of our obligations under this Agreement to any person.

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    Terms of Service and Conditions