1.1 In these Terms:
“Business” means Eumundi Frangipanis (which is also known as Frangipanis @ Eumundi and eFrangipanis).
“Customer” refers to members of the public who visit our website or nursery in our to browse or purchase from us.
“Goods” refers to our plants and any other products we sell.
“Terms” means these terms and conditions of sale.
“Website” includes all pages on frangipaniplants.com.au including blog and online shop.
2.1 These Terms apply to all sale of Goods by the Business.
2.2 No amendment, alteration, waiver or cancellation of any of these Terms is binding on the
Company unless confirmed by the owner of the business in writing.
2.3 No order submitted by the Customer shall be deemed to be accepted by the Supplier until confirmed in writing.
3.1 Prices are in Australian Dollars and indicated at the time of order and are subject to change without notice until payment has been received.
3.2 Delivery costs for destinations only within our targeted sales areas are displayed during purchase however in all cases the Business is required to confirm delivery costs for the customer to accept or reject.
4. Payment / Overdue accounts or invoices:
4.1 Payments for Goods are to be made to the Business in full before delivery.
4.2 A deposit of at least $100 or payment in full must be paid to ensure plants are not sold to any following order.
4.3 Interest is payable on all overdue amounts calculated at 20% per annum, or the cash rate plus 2%, whichever is the greater from the date due, until payment is received and cleared.
4.4 All collection fees, legal expenses or other costs associated with a later account or overdue invoice will be added to the total amount owed by the customer, and the customer agrees to be held liable for such costs.
5.1 The Customer must, within 14 days of being notified of the goods availability and delivery method, make payment in full, unless otherwise agreed to in writing by the owner of the business.
5.2 Upon lodgment to a 3rd party for delivery the Business takes no responsibility, or makes no commitments with respect to delivery times, or delivery dates.
5.3 Risk of damage passes to the customer upon lodgment with the courier. A customer can request insurance on their consignment should they desire and the business will provide a quote.
5.4 If the Customer fails to collect the Goods or accept delivery within 60 days of being notified of their availability, the Business may terminate this contract, keep monies received and resell the Goods.
5.6 The customer will be liable for any re-delivery fees, re-directions fees or other fees associated with changing the delivery address after the business has booked the item for collection.
6.1 Legal and beneficial ownership of the Goods will not pass to the Customer until such time as the Goods have been paid in full in cash or cleared funds, however, liability for damage or loss rests with the customer should the item have been dispatched.
7. Risk and Insurance:
7.1 The Goods are entirely at the risk of the Customer from the moment of dispatch to the Customer’s point of delivery or on collection, even though title in the Goods has not passed to the Customer at that time.
7.2 The Customer must, at its own expense, maintain the Goods and insure (or personally guarantee any loss) for the benefit of the Business against theft, fire, flood and other risks as from the moment of delivery to the Customer and until title in the Goods has passed to the Customer.
8. Misuse and Liability resulting from use:
8.1 The Business does not make any representation as to the suitability of the products sold with respect to a specific application.
9. Cancellations / refunds or exchanges:
9.1. Refunds will not be offered for a change of mind.
9.2. No order may be cancelled, modified or deferred without the written consent of the owner of the Business.
9.3. Where a customer changes their mind and wishes to exchange their order for an alternative product they may do so, however, all shipping costs to the customer and from the customer back to our Eumundi nursery will be borne by the customer, in addition to a 25% restocking fee (based on the item cost), or $100 whatever is the greater. The customer will be liable for the shipping of the new stock that is being dispatched. This can occur within 7 days of taking delivery.
9.4. If a customer has requested a plant order to be grown from seed or cutting or purchased elsewhere, the full amount is payable within 7 days of cancelling the order, or 7 days after the invoice date, whichever is the sooner.
9.5. In the unlikely event a purchased item is not of acceptable quality, eg. dead or dying, Eumundi Frangipanis will honor its obligations under Australian Law immediately and without hassle or delay.
9.6 The Business reserves the right to vary this document at any point, and without notice.
10. Limited Liability:
10.1 These Terms do not affect the rights, entitlements and remedies conferred by the common, or statue law.
10.2 The Business is not subject to, and the Customer releases the Business from, any liability (including but not limited to consequential loss or damage) because of any delay in delivery or fault or defect in the Goods. The Customer acknowledges that the Company is not:
(a) responsible if the Goods do not comply with any applicable safety standard or similar regulation; and
(b) liable for any claim, damage or demand resulting from such non-compliance.
10.3 If any statutory provisions under the relevant statue or common law apply to the contract between the Company and the Customer (C o n t r a c t) then, to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited, at the Company’s option, to:
(a) replacement or repair of the Goods or the supply of equivalent Goods; or
(b) payment of the cost of replacing or repairing the Goods or of acquiring equivalent goods;
and in either case, the Company will not be liable for any consequential loss or damage or other direct or indirect loss or damage.
10.4 The customer also indemnifies, and agrees not to take any action against the Business for negligence, or a breach of any duty of care established under common or statute law.
11.1 On discovery of any defect in the Goods, the Customer must immediately notify the Company in writing of such defect. The Customer must not carry out any remedial work to alleged defective Goods without first obtaining the written consent of the Business to do so.
11.2 The provisions of any act, law or common law implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the Contract are hereby expressly negated and excluded to the full extent permitted by law.
11.3 The Customer expressly acknowledges and agrees that it has not relied upon, and the Company is not liable for any advice given by the Company, its employees, agents or representatives in relation to the suitability for any purpose of the Goods.
11.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
13.1 The terms of the Contract are wholly contained in these Terms and any other writing signed by both parties. The Contract is deemed to have been made at the Company’s place of business where an order was placed and any cause of action is deemed to have arisen there.
14.1 The company does not make any guarantee about specific products unless stated otherwise.
15. Right to Enter Premises:
15.1 In any of the circumstances referred to in clause 14, the Customer:
(a) authorises the Company by itself, its agents or representatives at all reasonable times, without notice, to enter onto (with force if reasonably necessary) and to remain in and on any premises where the Goods are located in order to collect the Goods, without being guilty of any manner of trespass; and
(b) assigns to the Company all the Customer’s rights to enter onto and remain in and on such premises until all the Goods have been collected.
(c) the customer authorises the Business to enter the customer’s premises to deliver goods, or other services such as quotes or consultations as the Business deems necessary.
16. Force Majeure:
16.1 The Business will not be liable for any breach of contract due to any matter or thing beyond the Business’ control (including but not limited to transport stoppages, transport breakdown, fire, flood,
earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.
17. Waiver of breach:
17.1 No failure by the Company to insist on strict performance of any of these Terms is a waiver of any right or remedy which the Company may have, and is not a waiver of any subsequent breach or default by the Customer.
18. No Assignment:
18.1 Neither the Contract, nor any rights under the Contract may be assigned by the Customer without the prior written consent of the Company, which is at the Company’s absolute discretion.
19.1 If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.
20.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by registered post or sent by email.
21. Operation of Website / Ecommerce Facilities.
21.1 This article governs your relationship with the frangipaniplants.com.au Website, including; access to, and use of the Website and the products and services available through the Website. By using the Services, you are agreeing to all of the Terms and Conditions of Sale, as may be updated by us from time to time.
Access to the Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the Services without notice. We will not be liable if for any reason this Website is unavailable at any time or for any period. From time to time, we may restrict access to some or all of the website.
You must not misuse this Website. You will not: commit or encourage a criminal offense; transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; hack into any aspect of the Service; corrupt data; cause annoyance to other users; infringe upon the rights of any other person’s proprietary rights; send any unsolicited advertising or promotional material, commonly referred to as “spam”; or attempt to affect the performance or functionality of any computer facilities of or accessed through this Website. Breaching this provision would constitute a criminal offense and frangipaniplants.com.au will report any such breach to the relevant law enforcement authorities and disclose your identity to them.
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Website or to your downloading of any material posted on it, or on any website linked to it.
21.3 Intellectual Property, Software and Content
The intellectual property rights in all software and content (including photographic images) made available to you on or through this Website remains the property of frangipaniplants.com.au or its licensors and are protected by copyright laws and treaties around the world. All such rights are reserved by frangipaniplants.com.au and its licensors. You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on this Website nor may you use any such content in connection with any business or commercial enterprise.
21.4 Terms of Sale
By placing an order you are agreeing to the ‘Terms and Conditions of Sale’.
Purchases made via frangipaniplants.com.au may be cancelled at any time. It’s the customer’s responsibility to pay any shipping costs.
21.5 Disclaimer of Liability
The material displayed on this Website is provided without any guarantees, conditions or warranties as to its accuracy. Unless expressly stated to the contrary to the fullest extent permitted by law frangipaniplants.com.au and its suppliers, content providers and advertisers hereby expressly exclude all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity and shall not be liable for any damages whatsoever, including but without limitation to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, performance or failures of this Website or the Linked Sites and any materials posted thereon, irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law or otherwise. This does not affect frangipaniplants.com.au’s liability for death or personal injury arising from its negligence, fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
21.6 Linking to this Website
You may link to any page on our website, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. This Website must not be framed on any other site, nor may you create a link to any part of this Website other than the home page. We reserve the right to withdraw linking permission without notice.
22. Provision of Services:
All work and transportation services offered by the Business may be done so by a 3rd party, or a party not related to the Business. The Business makes no express or implied representation or guarantee that such parties are insured, or appropriately licenced. The Business does not in any way take responsibility or liability for any works performed.
23. Governing Law
23.1 These Terms and the Contract shall be governed by the law of Queensland and the parties submit to the courts of Queensland in respect of any dispute arising.
23.2 The Customer agrees to undertake mediation prior to the commencement of any legal proceedings.