eShepherd Hardware Purchase Terms
These terms apply when you buy Gallagher eShepherd™ Hardware. They sit alongside the eShepherd Terms of Service, which cover the Service and Connectivity.
Questions? Contact us at eshepherd.support@gallagher.com.
1About these terms
1.1
What these terms cover. These terms apply when you buy Hardware. Your Order Form sets out what you're buying, the price and any other commercial terms. Capitalised terms have the meanings given in clause 11.1.
1.2
Who you contract with. Unless your Order Form says otherwise, you contract with the Gallagher Group company shown in clause 10.6 for the country where your Hardware will be used (Gallagher, we, us and our). We may exercise our rights and perform our obligations through other Gallagher Group companies and our service providers, and we remain responsible for them.
1.3
Accepting these terms. You accept these terms by signing or accepting an Order Form that refers to them, completing checkout, or accepting delivery after these terms have been made available to you. If you accept on behalf of a company, partnership, trust or other entity, you confirm you have authority to bind it.
1.4
What makes up our agreement. Our agreement for each purchase is made up of any Signed Agreement, your Order Form, these terms, the Warranty Policy, the Product Lifecycle and Support Commitment, the Privacy Statement and the Documentation. If there's a conflict, they apply in this order: (a) a Signed Agreement; (b) your Order Form, but only where it identifies the clause of these terms it overrides and has been signed by an authorised signatory of a Gallagher Group company (an online checkout can’t override these terms); (c) the Product Lifecycle and Support Commitment, for the matters it covers; (d) the Warranty Policy, for defects in Hardware; (e) the Privacy Statement, for how we handle Personal Data; (f) these terms (including clause 12); and (g) the Documentation. A document lower in this order applies to the extent it deals with something the documents above it don't.
1.5
Changes to these terms. The terms that apply to an order are those in place when it's accepted. We may update these terms for future orders. A change won't alter an existing order unless we both agree or the law requires it. Changes to the Warranty Policy or the Product Lifecycle and Support Commitment don't reduce the commitments for Hardware you've already bought.
1.6
Separate contracts. Hardware and the Service (including Connectivity) may be supplied under separate contracts and by different parties. The Service is governed by the Terms of Service. Ending or breaching one contract doesn't automatically end or breach the other.
1.7
Buying from an eShepherd Partner. If you buy Hardware from an eShepherd Partner, the Partner may adopt these terms as its own terms of sale. If it does, we means the Partner for that purchase, and the Partner is responsible for delivery, payment and its other obligations as seller. For that purchase, the Partner's liability is limited as set out in clause 9.5. That limit is separate from the single cap that applies to the Gallagher Group companies. Clauses 10.6 and 10.7 apply with the Partner's details set out in its order documentation. No Gallagher Group company is a party to the Partner's sale. However, the Warranty Policy and the Product Lifecycle and Support Commitment apply to you directly from the Gallagher Group company named in them. Your Partner is your first point of contact for warranty claims and support, as set out in the Warranty Policy.
1.8
Other Gallagher products. Your Order Form may include Gallagher products that aren’t eShepherd Hardware (Other Products). These terms apply to Other Products as if they were Hardware, except clauses 3, 4 and 5 and the Product Lifecycle and Support Commitment, which don’t apply to them. Instead, the Gallagher Animal Management Global Customer Warranty Policy available at am.gallagher.com/Warranty, and any product-specific terms we provide with an Other Product, apply.
2Orders and delivery
2.1
Your order. Your order (whether placed through an Order Form, at checkout or otherwise) is an offer to buy the Hardware described in it. A contract is formed when we confirm your order or dispatch the Hardware, whichever happens first. Each order is a separate contract.
2.2
Specifications and substitutions. The Hardware will materially match the description and specifications that apply when your order is accepted. We may make minor changes that don't materially reduce functionality, safety or quality. Any material substitution needs your agreement.
2.3
Delivery. We'll use reasonable efforts to deliver by the estimated date, but dates are estimates unless your Order Form says otherwise. Time isn’t of the essence for delivery. Any delivery date, including one in your Order Form, is extended by any period during which we're entitled to withhold dispatch under clause 7.3. You must give us an accurate, accessible delivery address and be ready to accept delivery. If delivery fails for reasons within your control, you must pay reasonable redelivery or storage costs.
2.4
Inspection. Please inspect the Hardware promptly after delivery and tell us within a reasonable time about missing items, transit damage or visible defects. This doesn't limit your warranty or any right under the law.
2.5
Risk. Risk passes to you on delivery.
2.6
Ownership. You don’t own the Hardware until we’ve received payment in full (including taxes). Until then, we keep legal and beneficial ownership and you must take reasonable care of it and must not sell, lease, grant security over or dispose of it.
3Site requirements and use
3.1
Site suitability. eShepherd performance depends on site conditions, including network coverage, GPS reception, terrain, vegetation, weather, power, Hardware placement and correct deployment. Before buying and deploying, you must review the site and operating requirements in the Documentation and give us accurate site information when we ask for it.
3.2
Site assessments. If we carry out a site assessment before you buy, it's an indicative, point-in-time assessment based on the information and conditions available at the time. It doesn't guarantee ongoing coverage, signal reliability, Hardware or Service performance, or that virtual fencing suits every part of a property.
3.3
Changing conditions and redeployment. You're responsible for monitoring site conditions after deployment. Please contact us before materially redeploying Hardware to a new property or a materially different area. Hardware is certified, and Connectivity is provided, region by region, so you may only use the System in a country where we've confirmed it's supported.
3.4
Installation and use. eShepherd is designed for you to install and set up yourself, using the Documentation and the remote support described in the Terms of Service. We don't install Hardware or attend your property unless your Order Form says so (clause 3.8). You must install, configure, fit, charge, maintain and use the Hardware in line with the Documentation.
3.5
You remain responsible for your livestock. You remain responsible for livestock welfare, monitoring and containment. eShepherd is a livestock management tool, not a physical fence. You must maintain any physical fencing or other measures required by law or prudent farming practice.
3.6
Safety notices and recalls. If we issue a safety notice, recall or required update for Hardware, you must follow it, including by making affected Hardware available for update, repair, replacement or return.
3.7
Site visits. If our personnel or contractors visit your property (for example, for installation or training), you must give them safe access and tell us in advance about any hazards and any biosecurity, safety or site rules they need to follow. We'll make sure they follow your reasonable directions while on site. Our personnel may refuse or stop work they reasonably believe is unsafe. We’ll take reasonable care not to damage your property.
3.8
Services. Any installation, training or other services we agree to provide will be described in your Order Form. We’ll provide them with reasonable care and skill. If they don’t meet that standard, and you tell us within 12 months of performance, we’ll re-perform them or, if we choose, refund the fees for the defective part. This doesn’t apply to the extent the problem was caused by you, work done by anyone else, third-party equipment or site conditions you didn’t tell us about. We won’t do work outside the agreed scope without your written agreement. Clause 9 applies to these services.
4Warranty
4.1
Hardware warranty. The warrantor named in the Warranty Policy warrants that the Hardware will be free from material defects in materials and workmanship during the Warranty Period. The Warranty Policy is given by that warrantor and applies alongside these terms. It sets out the Warranty Periods, what's covered and not covered, how to claim, the remedies and how the warranty transfers.
4.2
Firmware and the Service. The warranty covers Hardware only. Firmware and the Service are covered by the Terms of Service, including the commitment there to provide the Service with reasonable care and skill.
4.3
Service life estimates. Statements about expected, designed or estimated Hardware life (including on our website or in marketing materials) are engineering estimates only. They aren't a separate warranty and don't extend the Warranty Period. Actual service life depends on operating conditions, maintenance and use.
4.4
Other warranties excluded. Except as set out in these terms and the Warranty Policy, and subject to clause 9.2 and clause 12, all other warranties, conditions and terms, whether express or implied by law, are excluded to the extent the law allows. This includes implied terms about merchantable or satisfactory quality and fitness for a particular purpose.
5Connectivity and the Service
5.1
Active Connectivity is required. The Hardware doesn't provide virtual fencing or other eShepherd functions unless you have active Connectivity under the Terms of Service. Connectivity is charged separately and isn't included in the Hardware price.
5.2
If Connectivity ends. If Connectivity is suspended, cancelled or ended, the Hardware will stop communicating with the Service and virtual fencing won't work. Buying Hardware doesn't itself give you access to the Service or require us to provide Connectivity indefinitely.
5.3
eShepherd Partners can't bind us on the Service. Unless a Gallagher Group company confirms otherwise in writing, an eShepherd Partner can't set or change Connectivity pricing, grant or end access to the Service, change the Terms of Service, or make commitments about the Service, Firmware, data or Gallagher technology. A statement inconsistent with the Terms of Service or the Documentation doesn't bind any Gallagher Group company.
5.4
Data and Firmware. Data generated through the System, and your right to use Firmware, are governed by the Terms of Service. The seller of the Hardware doesn't grant you any right to use Firmware. That right is granted under the Terms of Service when you register the Hardware and accept them. These terms don't transfer ownership of Firmware, software, data or other Gallagher Group technology.
5.5
Product lifecycle. If we stop selling a Hardware model or retire the whole System, the eShepherd Product Lifecycle and Support Commitment available on our website applies, including our commitments on continued support and replacement parts.
6Intellectual property
6.1
Ownership. The Gallagher Group, and its licensors, own all intellectual property in the Hardware, including its designs, specifications, Documentation and branding.
6.2
Your rights. Buying Hardware gives you ownership of the physical Hardware only, not any intellectual property. Your right to use Firmware and the Service comes from the Terms of Service.
7Payment
7.1
Prices and taxes. Hardware prices are set out in your Order Form. Unless stated otherwise, they exclude GST, VAT, sales tax and similar taxes, which you must pay in addition. If you claim a tax exemption, provide us with a valid exemption certificate; the exemption applies only from when we receive and verify it. If you're legally required to deduct or withhold tax from a payment to us, you must increase the payment so that the amount we receive after the deduction equals the full amount otherwise due.
7.2
Payment. Hardware is payable when ordered, in the currency stated, unless your Order Form says otherwise.
7.3
Dispatch and overdue amounts. Unless your Order Form gives you credit terms, we don't have to dispatch Hardware until we've received its price in full. If an undisputed amount under any order is overdue, we may withhold dispatch of undelivered Hardware under any order until it's paid.
7.4
Disputed invoices and set-off. If you think an invoice is wrong, tell us in writing within 30 days, with your reasons, and pay the undisputed part. We'll work with you to resolve it promptly. This doesn't affect our right under clause 7.3 not to dispatch Hardware until its price has been paid in full. If it's agreed or decided that you've overpaid, we'll promptly refund or credit the difference. Otherwise, you can't withhold or set off amounts unless we agree in writing, a court or tribunal decides, or the law requires it. This doesn't limit any legal right you have to reverse a payment.
8Cancellation and termination
8.1
Before dispatch. You can ask to cancel an order before the Hardware is dispatched. We may accept, subject to reasonable non-cancellable costs we've already incurred. Any withdrawal right you have under the law also applies.
8.2
After dispatch. Once Hardware is dispatched, an order can be cancelled or Hardware returned only under the Warranty Policy, these terms or the law.
8.3
Ending an order for breach. Either of us may end an order by notice if the other materially breaches these terms and doesn't fix the breach within 14 days of written notice, or immediately if the breach can't be fixed.
8.4
What happens when an order ends. Ending an order doesn't affect ownership of Hardware you've paid for in full, amounts already due, rights that have already arisen, or the provisions on confidentiality, intellectual property, liability, indemnities, payment and disputes.
9Liability and indemnities
9.1
How this clause applies. This clause applies to all claims under or in connection with these terms, however they arise (including in negligence), subject to clause 9.2. Here, we and us include every Gallagher Group company involved in manufacturing, supplying, distributing or supporting the Hardware or the System and their officers, employees, contractors and licensors, and one combined limit applies to all of them. It doesn't make anyone liable who otherwise wouldn't be.
9.2
Rights that can’t be excluded. Nothing in these terms excludes, restricts or modifies any guarantee, warranty, right or remedy you have under law that can't lawfully be excluded, restricted or modified. Any term that would do so is read down to the minimum extent necessary or doesn't apply to you. The country-specific terms in clause 12 may also apply.
9.3
Virtual fencing is not a physical barrier. eShepherd is a livestock management tool, not a physical barrier. No virtual fencing system can guarantee containment or animal behaviour. Performance may be affected by animal behaviour, terrain, weather, site conditions, network and GPS coverage, power, correct deployment and other factors outside our control. A virtual fence being crossed, or livestock escaping or straying, is not by itself a breach of these terms or negligence on our part.
9.4
Losses neither of us is liable for. Subject to clause 9.6, neither of us is liable to the other for loss of profit, revenue or savings; loss of business, contracts, goodwill or data; business interruption or management time; indirect or consequential loss; fines, penalties or punitive damages; or any loss the affected party could reasonably have avoided or reduced.
9.5
Our liability cap. Subject to clause 9.6, our total liability to you for all events occurring in the same Contract Year is limited to the total amount paid or payable to Gallagher Group companies for the eShepherd System (including Hardware prices, Connectivity Charges and Add-On fees) in the 12 months before the first of those events. If the first of those events occurs in the first Contract Year, the limit is instead the total amount paid or payable to Gallagher Group companies for the eShepherd System for that first Contract Year. A series of related events, or an event that continues over time, is treated as one event occurring when it first occurs. This is a single cap for all Gallagher Group companies, shared with the caps in the Terms of Service and the User Terms. It is not a separate cap for each agreement, company or user. Where an eShepherd Partner adopts these terms under clause 1.7, references in this clause to amounts paid or payable to Gallagher Group companies mean amounts paid or payable to that Partner for the Hardware, and the Partner's cap is separate from the Gallagher Group cap. This cap doesn't limit the warrantor's obligations to repair, replace, credit or refund Hardware under the Warranty Policy, which is limited as set out in that policy.
9.6
When the exclusions and cap don't apply. The exclusions and cap in this clause don't apply to liability for death or personal injury caused by negligence, fraud, wilful misconduct, deliberate or reckless breach of confidentiality, wilful infringement of the other party's intellectual property, or anything else that can't lawfully be excluded or limited.
9.7
Your indemnity. To the extent the law allows, you indemnify each Gallagher Group company against losses, damages and reasonable costs it incurs from a third-party claim, to the extent the claim arises from: (a) your or your personnel's breach of these terms or misuse of the Hardware or the System; or (b) your failure to comply with the law, including animal welfare, fencing and livestock control laws (for example, livestock straying onto a road because containment required by law wasn't in place). Your liability under this clause is reduced to the extent that a Gallagher Group company's negligence or breach of these terms caused or contributed to the claim. If we want to rely on this clause, we'll tell you promptly about the claim, and act reasonably in incurring costs you'll be responsible for. You must give us reasonable help with the claim and must not, without our consent, make any admission or statement about it that could prejudice our defence. If the same claimant also claims against you, you can settle that claim, but not on terms that admit fault on our part or affect our rights.
9.8
Insurance and reducing loss. You should keep appropriate insurance for your livestock and farming operations, including cover for technology or equipment failure where available, and talk to your insurer before deploying the System. Each of us must take reasonable steps to reduce loss (for you, including responding to alerts and keeping alternative containment arrangements). No one can recover twice for the same loss, including under the Terms of Service or the User Terms, or by claiming against another Gallagher Group company or an eShepherd Partner.
10General
10.1
Confidentiality. Each of us must protect the other's Confidential Information with reasonable care and use it only for these terms. We may each share it with personnel, advisers, insurers, group companies, service providers and genuine purchasers who are bound by confidentiality, or where the law requires. Where legally permitted, a party required by law to disclose the other's Confidential Information must give reasonable advance notice. This doesn't apply to information that's public, already known, independently developed or lawfully received from someone else.
10.2
Privacy. The Privacy Statement explains how we handle Personal Data in connection with your purchase, and identifies which Gallagher Group company is responsible for it. Each of us must comply with the privacy laws that apply to us.
10.3
Events outside our control. Neither of us is responsible for failure or delay caused by events genuinely beyond our reasonable control. This doesn't excuse payments already due or your livestock welfare obligations. The affected party must notify the other promptly and work to resume. If an event affecting delivery lasts more than 90 days, either of us may cancel the affected order by notice, and we'll refund amounts paid for Hardware not yet delivered.
10.4
Transferring these terms. You need our written consent to transfer these terms, except to a buyer or successor of your farming operation who takes over the Hardware, if you've paid for it in full. You remain liable for obligations that arose before the transfer. If you sell your farming operation, the Warranty Policy explains how the warranty transfers, and the Terms of Service explain how your Service and Connectivity transfer. We may transfer these terms within the Gallagher Group or in a genuine sale or restructure, and we'll tell you within 30 days. We may subcontract but remain responsible for our obligations.
10.5
Resolving disputes
(a)
Talk to us first. If either of us has a dispute, we'll tell the other in writing, and people with authority to settle it will try in good faith to resolve it within 30 days (or any longer period set out in clause 12 for your country).
(b)
Where disputes go. If it isn't resolved, the dispute will be decided by the courts or by arbitration, as shown for your country in the table in clause 10.6, and under any additional terms for your country in clause 12. This clause and clause 10.6 apply to disputes between you and any Gallagher Group company under these terms, including under the Warranty Policy.
(c)
Always available. Whatever process applies, either of us may bring a claim in a small claims court or tribunal, bring proceedings to recover amounts that aren't genuinely disputed, or seek urgent injunctive or interim relief from any court.
(d)
Applying these terms. Any arbitrator must decide the dispute in accordance with these terms and the applicable law, including clause 9.
(e)
Public sector customers. If you're a government agency, public university or other public body, and the law that applies to you doesn't allow you to agree to arbitration, a class action or jury trial waiver, an indemnity, or the governing law or courts in clause 10.6, those terms apply to you only to the extent that law allows, and disputes will be resolved as that law requires.
(f)
Keep performing. We'll each keep performing these terms while a dispute is being resolved.
(g)
Related disputes. If a dispute under these terms is related to a dispute between you and a Gallagher Group company under the Terms of Service, and the same process applies to both under clause 10.6 and the Terms of Service, you and we consent to both being heard together in the same proceeding, and either of us may ask the court or arbitrator to do so.
10.6
Contracting entity, governing law and disputes. Unless your Order Form says otherwise, the table below shows the Gallagher Group company you contract with and where to send it notices, the law that governs these terms, and how disputes are decided for your country. If your country isn't listed, the “All other countries” row applies. Where the table refers to courts, their jurisdiction is non-exclusive unless the table says otherwise. Clause 10.5(c) and (e) apply in every country. The UN Convention on Contracts for the International Sale of Goods doesn't apply.
| Your country | Gallagher Group company | Notice address | Governing law | How disputes are decided |
|---|---|---|---|---|
| New Zealand | Gallagher Group Limited, company number 194068 | 181 Kahikatea Drive, Hamilton 3206, New Zealand | New Zealand | Courts of New Zealand |
| Australia | Gallagher Australia Pty Ltd, ACN 005 550 845 | 65 Scanlon Drive, Epping VIC 3076, Australia | Victoria, Australia | Courts of Victoria |
| United Kingdom | Gallagher Europe BV | Bornholmstraat 62a, 9723 AZ Groningen, the Netherlands | England and Wales | Courts of England and Wales |
| EEA | Gallagher Europe BV | Bornholmstraat 62a, 9723 AZ Groningen, the Netherlands | The Netherlands | Courts of Amsterdam |
| United States | Gallagher North America Inc | 5005 NW 41st Street, Riverside, MO 64150, United States | Missouri, USA | Individual arbitration by JAMS, seated in Kansas City, Missouri. |
| Canada | Gallagher Power Fencing Systems Inc | 2090 20th Avenue East, Owen Sound, Ontario N4K 5R1, Canada | Ontario, Canada | Courts of Ontario |
| All other countries | Gallagher Group Limited, company number 194068 | 181 Kahikatea Drive, Hamilton 3206, New Zealand | New Zealand | ICC arbitration seated in Auckland, New Zealand; courts of your country for claims of less than NZD 100,000 |
10.7
Notices. We'll send notices to the contact details in your Order Form or account. Formal notices to us must be in writing, sent to the address in clause 10.6 or your Order Form, copied to the Chief Legal & Risk Officer at legal@gallagher.com. You agree to receive communications electronically, and these terms and any Order Form may be accepted or signed electronically and in counterparts.
10.8
Gallagher Group companies can rely on these terms. Each Gallagher Group company may enforce the following provisions of these terms, subject to the same limits as us, as an intended beneficiary under the Contract and Commercial Law Act 2017 (NZ), the Contracts (Rights of Third Parties) Act 1999 (UK) and any equivalent law: (a) provisions that limit how you may use the Hardware, Firmware, Service or Gallagher Group technology, or that protect Gallagher Group intellectual property, data or confidentiality; (b) provisions that set out your responsibilities for your livestock, require you to follow safety notices or recalls, or require you to give us help, information or access; and (c) provisions that exclude, limit or relieve liability or warranties, or give an indemnity. If the law doesn't give a Gallagher Group company a direct right to enforce a provision, we hold the benefit of that provision on trust for that company and will enforce it at its request. We can vary or end these terms without the consent of any Gallagher Group company. Otherwise, no one else has rights under these terms.
10.9
Export controls. You must not export, re-export or transfer Hardware, Other Products or technical information in breach of export control, sanctions or import laws, or use Hardware in any country or territory subject to comprehensive sanctions or a trade embargo.
10.10
Other legal matters. These terms, your Order Form and the documents they incorporate or refer to as applying are our entire agreement about your Hardware purchase and replace all earlier communications on that subject. Terms in your purchase order don't apply unless we expressly accept them in writing. Waivers must be in writing, and delay in enforcing a right isn't a waiver. Invalid terms are read down or severed to the minimum extent necessary. We are independent contractors.
10.11
Language. These terms were written in English. If we give you a translation, it’s for convenience only, and if there’s any inconsistency, the English version applies, unless the law requires otherwise.
11Definitions and interpretation
11.1
Definitions. In these terms:
Base Station means the wireless communications unit that connects Neckbands to the Service.
Confidential Information means information one party discloses to the other in connection with these terms that is marked confidential or that a reasonable person would understand to be confidential. For us, it includes Hardware designs, non-public specifications, pricing and commercial models. For you, it includes your farm operational and financial information.
Connectivity, Connectivity Charges and Add-On have the meanings given in the Terms of Service.
Contract Year has the meaning given in the Terms of Service. If you haven't accepted the Terms of Service, a Contract Year is each 12-month period starting on the date your first Hardware is delivered.
Documentation means the user guides, training materials, specifications, instructions and safety guidance we make available for the System, as updated from time to time.
eShepherd Partner means a third party authorised by a Gallagher Group company to sell Hardware or provide support services.
Firmware means software embedded in, installed on or delivered to Hardware by or on behalf of any Gallagher Group company, including updates, patches and new versions.
Gallagher Group means Gallagher Group Limited and its subsidiaries and affiliates from time to time.
Hardware means physical eShepherd equipment, including Neckbands, Base Stations, magnet keys and related accessories.
Neckband means an eShepherd GPS-enabled virtual fencing neckband fitted to livestock, however configured (including cellular or LoRa).
Order Form means a written or electronic order, checkout confirmation or other ordering document that records the Hardware, price and commercial terms and is accepted by both parties.
Other Products has the meaning in clause 1.8.
Personal Data means personal information, personal data or the equivalent concept under the privacy or data protection law that applies.
Privacy Statement means the eShepherd privacy statement at eshepherd.com/privacy, as updated from time to time.
Product Lifecycle and Support Commitment means the eShepherd Product Lifecycle and Support Commitment available on our website, as updated in accordance with its terms.
Service has the meaning given in the Terms of Service.
Signed Agreement means a separate written agreement for Hardware, the Service or the System signed (including electronically) by you and a Gallagher Group company.
System means the Service and Hardware operating together as an integrated livestock management solution.
Terms of Service means the eShepherd Terms of Service at eshepherd.com/terms, as updated in line with those terms.
User Terms means the eShepherd User Terms available on our website.
Warranty Period has the meaning given in the Warranty Policy.
Warranty Policy means the eShepherd Warranty Policy available on our website, which applies to all Hardware whether bought from a Gallagher Group company or an eShepherd Partner.
you and your mean the customer that accepts these terms, including any entity on whose behalf they are accepted.
11.2
Interpretation. Headings are for convenience only and don't affect interpretation. The “Important things to know” summary is for convenience only and isn’t part of these terms. Words like “including” don't limit the words that follow. The singular includes the plural and the other way around. A reference to a law includes that law as amended or replaced.
12Country-specific terms
These terms apply where relevant to your country. If they conflict with the rest of these terms, they take priority for that country.
12.1
Australia
eShepherd Hardware is supplied for commercial farming, not personal, domestic or household use. However, guarantees under the Australian Consumer Law may still apply and can't be excluded. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
Where the law allows our liability for a non-excludable guarantee to be limited, it's limited, at our option, to replacing or repairing the goods, supplying equivalent goods, or paying the cost of doing so, unless that wouldn't be fair or reasonable.
12.2
New Zealand
Nothing in these terms excludes, restricts or modifies any right or remedy under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or other law that can't lawfully be excluded, restricted or modified.
If you acquire Hardware for the purposes of a business, the parties agree, for the purposes of section 43(2) of the Consumer Guarantees Act 1993, that the Consumer Guarantees Act doesn't apply. For the purposes of section 5D of the Fair Trading Act 1986, the parties agree that the Hardware is supplied and acquired in trade, both parties are in trade, sections 9, 12A, 13 and 14(1) of that Act don't apply, and it is fair and reasonable that the parties are bound by this clause.
12.3
United Kingdom and EEA
eShepherd Hardware is supplied for commercial farming, not personal use. If UK or EEA consumer law applies anyway, nothing in these terms limits rights under it that can't lawfully be excluded, including pre-contractual information rights and any right of withdrawal.
If you’re located in the European Union, or you’re buying Hardware to be registered and used there, we'll give you the information the EU Data Act requires about the data the Hardware generates before you buy.
If you’re located in the European Union, or you’re buying Hardware to be registered and used there, nothing in clause 9.4 or 9.5, or in section 8 of the Warranty Policy, limits our liability for intent or gross negligence, or for any other liability that can’t be excluded or limited under the law that applies to these terms.
12.4
United States
eShepherd Hardware is supplied for commercial farming, not personal use. To the maximum extent the law allows, including Article 2 of the Uniform Commercial Code, all warranties not expressly stated in these terms or the Warranty Policy are excluded, including implied warranties of merchantability and fitness for a particular purpose. Where the law doesn’t allow an implied warranty to be excluded, it is limited to the length of the Warranty Period, as set out in the Warranty Policy. Where a state doesn't allow implied warranties, or incidental or consequential damages, to be excluded or limited, our exclusions and limits apply only as far as that law permits.
Arbitration agreement. Please read this carefully. It means disputes are decided by an arbitrator, not a judge or jury, and you can't bring or take part in a class action.
(a)
Arbitration. Subject to clause 10.5(c), any dispute between you and us arising out of or in connection with these terms or the Hardware, including whether this clause applies or is valid, will be resolved by binding arbitration administered by JAMS under its applicable rules, before a single arbitrator, seated in Kansas City, Missouri. Hearings may be held by video.
(b)
Individual claims only. Claims may only be brought individually, not as part of any class, collective or representative proceeding, and the arbitrator may not award relief on a class basis. If this paragraph is found unenforceable for a claim, that claim will be decided by a court, without a jury to the extent the law allows, and not in arbitration.
(c)
Fees. For claims of US$25,000 or less, we'll pay the JAMS fees above what you would pay to file a claim in court. Otherwise, fees are shared as the JAMS rules provide. Each of us pays our own legal costs unless the law or the arbitrator decides otherwise.
(d)
Other terms. The Federal Arbitration Act governs this clause. Changes to this clause won't apply to disputes that have already arisen.
12.5
Canada
eShepherd Hardware is supplied for commercial farming, not personal use. To the maximum extent the law allows, including applicable provincial sale of goods legislation, all warranties not expressly stated in these terms or the Warranty Policy are excluded. Where a province doesn't allow implied warranties, or incidental or consequential damages, to be excluded or limited, our exclusions and limits apply only as far as that law permits.
12.6
Latin America, South Africa and other countries
This clause applies if your country is covered by the “All other countries” row in the table in clause 10.6.
(a)
Arbitration. Subject to clause 10.5(c), any dispute between you and us arising out of or in connection with these terms or the Hardware, including about their formation, validity, interpretation, performance, breach or termination, and any non-contractual claim, will be finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce, before a single arbitrator. The ICC Expedited Procedure Provisions apply where the ICC Rules provide for them.
(b)
Seat, language and hearings. The seat of arbitration is Auckland, New Zealand and the language is English, although the arbitrator may allow documents and evidence in Spanish or Portuguese. Hearings will be held by video unless the arbitrator decides otherwise. Judgment on an award may be entered in any court with jurisdiction.
(c)
Local courts for smaller claims. Either of us may instead bring a claim for less than NZD 100,000 (or its equivalent) in the courts of the country where you're located.
You've reached the end of this document. Thanks for reading it.