THE DOWNPIPE VERTICAL GARDEN PTY LTD ABN 34 626 896 286
TERMS AND CONDITIONS
PART 1: GENERAL TERMS AND CONDITIONS
(a) These terms and conditions (Terms) apply:
(i) when you use the Company’s website located at verticalgardensperth.com (Website), as set out in Part 2; and
(ii) when you use the Website to offer to purchase any products available for purchase on our website (Goods), as set out in Part 3.
(b) You agree to be bound by these Terms which form a binding contractual agreement between you and us, THE DOWNPIPE VERTICAL GARDEN PTY LTD ABN 34 626 896 286 (the Company, our, we or us).
(c) We may change these Terms at any time by updating this page of the Website, and your continued use of the Website following such an update will represent an agreement by you to be bound by these Terms as amended.
(a) (Governing law) This agreement is governed by the law applying in WA.
(b) (Jurisdiction) Each party irrevocably submits to the exclusive jurisdiction of the courts of WA and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
(c) (Amendments) These Terms may only be amended by the Company in accordance with the Terms.
(d) (Waiver) No party to these Terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
(e) (Further acts) Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to these Terms.
(f) (Assignment) A party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
(g) (Entire Agreement) These Terms embody the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of the Terms.
(h) (Interpretation) In these Terms, the following rules of interpretation apply:
(i) (singular and plural) words in the singular includes the plural (and vice versa);
(ii) (gender) words indicating a gender includes the corresponding words of any other gender;
(iii) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(iv) (person) a reference to “person” or ”you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(v) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(vi) (these Terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these Terms, and a reference to these Terms includes all schedules, exhibits, attachments and annexures to it;
(vii) (document) a reference to a document (including these Terms) is to that document as varied, novated, ratified or replaced from time to time;
(viii) (headings and parts) headings and parts, and words in bold type, are for convenience only and do not affect interpretation;
(ix) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(x) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
PART 2: WEBSITE TERMS AND CONDITIONS
1. ACCESS AND USE OF THE WEBSITE
You must only use the Website in accordance with these Terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with these Terms and any applicable laws.
2. YOUR OBLIGATIONS
You must not:
(a) copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without the express consent of the Company;
(b) use the Website for any purpose other than the purposes of browsing, selecting or purchasing Goods;
(c) use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(d) use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;
(e) use the Website with the assistance of any automated scripting tool or software;
(f) act in a way that may diminish or adversely impact the reputation of the Company, including by linking to the Website on any other website; and
(g) attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:
(i) gaining unauthorised access to Website accounts or data;
(ii) scanning, probing or testing the Website for security vulnerabilities;
(iii) overloading, flooding, mailbombing, crashing or submitting a virus to the Website; or
(iv) instigate or participate in a denial-of-service attack against the Website.
3.INFORMATION ON THE WEBSITE
(a) While we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that we do not (to the maximum extent permitted by law) guarantee that:
(i) the Website will be free from errors or defects (or both, as the case may be);
(ii) the Website will be accessible at all times;
(iii) messages sent through the Website will be delivered promptly, or delivered at all;
(iv) information you receive or supply through the Website will be secure or confidential; and
(v) any information provided through the Website is accurate or true.
(b) We reserve the right to change any information or functionality on the Website by updating the Website at any time without notice, including product descriptions, prices and other Website Content.
4. INTELLECTUAL PROPERTY
(a) The Company retains ownership of the Website and all materials on the Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Website Content) and reserves all rights in any intellectual property rights owned or licensed by it not expressly granted to you.
(b) You may make a temporary electronic copy of all or part of the Website for the sole purpose of viewing it. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Website or any Website Content without prior written consent from the Company or as permitted by law.
(c) In this clause 4, “intellectual property rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world.
5. THIRD PARTY TERMS AND CONDITIONS
(a) The Customer acknowledges and agrees that third party terms & conditions (Third Party Terms) may apply.
(b) The Customer agrees to any Third Party Terms applicable to any third party goods and services, and the Company will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.
6. LINKS TO OTHER WEBSITES
(a) The Website may contain links to other websites that are not our responsibility. We have no control over the content of the linked websites and we are not responsible for that content.
(b) Inclusion of any linked website on the Website does not imply our approval or endorsement of the linked website.
The Company does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Website. You should take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference.
8. REPORTING MISUSE
If you become aware of misuse of the Website by any person, any errors in the material on the Website or any difficulty in accessing or using the Website, please contact us immediately using the contact details or form provided on our Website.
PART 3: SUPPLY TERMS AND CONDITIONS
1. OFFER TO PURCHASE
(a) By submitting an order for purchase of a Good using the Website’s functionality (Purchase Order) you represent and confirm that you:
(i) have the legal capacity and are of sufficient age to enter into a binding contract with us; and
(ii) are authorised to use the debit or credit card included in your order.
(b) Submitting a Purchase Order constitutes your intention and offer to enter into a contract, where we will provide you with the Goods you have ordered in exchange for your payment of the total amount listed upon checkout. A contract is not formed until we have approved your payment and you receive an email from us confirming that your order is being processed.
(a) (Payment obligations) Unless otherwise agreed in writing, you must pay for all Goods on or prior to the Company dispatching the Goods for delivery.
(b) (GST) Unless otherwise indicated, amounts stated on the Website do not include GST. In relation to any GST payable for a taxable supply by the Company, you must pay the GST subject to the Company providing a tax invoice.
(c) (Card surcharges) The Company reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
(d) (Online payment partner) We may use third-party payment providers (Payment Providers) to collect payments for Goods. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.
(e) (Pricing errors) In the event that we discover an error or inaccuracy in the price at which your order was purchased (including shipping prices), we will attempt to contact you and inform you of this as soon as possible. You will then have the option of purchasing your order at the correct price or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment, provided that you first return the Goods to us at your cost, if they have already been sent to you.
We reserve the right to cancel your order for any reason and will notify you of this as soon as possible. Where payment has already been debited, the full amount will be credited back to your original method of payment.
4. DELIVERY AND SHIPPING
(a) (Delivery) The Company may charge you for delivery at any time (notwithstanding that it may not have previously done so). Where prices are stated as inclusive of delivery, delivery is to the delivery point specifically accepted by the Company.
(b) (Shipping) All delivery times provided to you are estimates only and are subject to postal delays and reasons beyond our control. We do not warrant or make any representation that your order will be delivered within the times indicated. We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.
5. TITLE AND RISK
(a) (Title) Until the price of Goods is paid in full, title in those Goods is retained by the Company.
(b) (Risk) Risk in the Goods will pass to you on delivery. Delivery must not be refused by you.
6. CUSTOMS AND DUTIES
The Company reserves the right to refuse international orders. Approved international orders may be subject to customs and import duties upon reaching its country of destination. You will be responsible for paying all customs and import duties and acknowledge that failure to pay may result in your order being held at customs. We will not be liable for any costs you may incur in having your order released from customs, including reimbursing you for any customs or import duties you may pay.
7. RETURNS & EXCHANGES
(a) (Proof of Purchase) As a condition precedent to us considering any refund or exchange, you must be able to provide valid proof of purchase of the Goods you seek to return or exchange.
(b) (Change of mind returns) Generally, we do not accept change of mind returns. However, we may consider accepting returns in our absolute discretion.
(c) (Faulty products) Returns of Goods will only be accepted if the Goods are faulty and you comply with the provisions of this clause 7(c), as follows:
(i) If you believe your Goods are faulty, please contact us using the details provided on our website with a full description of the fault (including images if possible).
(ii) If we determine that your Goods may be faulty, we will request that you send the product back to us at your cost for further inspection, including any accessories, manuals, documentation or registration shipped with the product. We reserve the right to further inspection before deeming a product faulty.
(iii) If we determine in our reasonable opinion that the product is not faulty, or is faulty due to fair wear and tear, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care, we will refuse your return and send the product back to you at your cost.
(iv) If we determine that the product is faulty, you will be credited the full amount paid (including shipping costs) and you may request a refund or exchange. All refunds will be credited back to your original method of payment unless you request otherwise and we approve this request.
(v) If you fail to comply with the provisions of this clause 3.7 in respect of faulty Goods, we may, in our absolute discretion, issue only a partial refund or no refund in respect of such faulty Goods.
(vi) Nothing in this clause 3.7 is intended to limit or otherwise affect the operation of any manufacturers’ warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law.
(d) (Timeframe) All requests for refunds or exchanges must be made within 7 days from the date of purchase.
(a) To the maximum extent permitted by applicable law, the Company excludes completely all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to these Terms or any goods or services provided by the Company.
(b) Claims for loss of or damage to Goods in transit must be made against the carrier.
(c) Goods sold by the Company will have only the benefit of any warranty given, and insurance held, by the manufacturer. All other express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded. Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee into these Terms which may not lawfully be excluded, then to the maximum extent permitted by applicable law, the Company’s liability for breach of that non-excludable condition, warranty or guarantee will, at the Company’s option, be limited to:
(i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
(ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
(d) (Indemnity) You indemnify the Company and its employees and agents in respect of all liability for loss, damage or injury which is or may be suffered by any person arising from your or your representatives’ use of any Goods or services provided by the Company.
(e) (Consequential loss) Under no circumstances will the Company be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with these Terms or any goods or services provided by the Company.