Trading Terms

TERMS & CONDITIONS

1. Definitions and Interpretation

1.1 Definitions

In this document, unless contrary to or inconsistent with the context:

1.1.1 Associate means:

(i) in relation to a corporation, any Related Body Corporate of that corporation, any director of that corporation, any person that has a substantial holding (as that term is defined in section 9 of the Corporations Act) in the corporation, any person with whom the corporation is acting, or proposes to act, in concert and any person with whom the corporation is, or proposes to become, associated in any other way (whether formally or informally); and

(ii) in relation to a natural person (Primary Person), their spouse or any blood or adoptive relative provided that the person is sufficiently influenced, directly or indirectly by the Primary Person or is acting in concert with the Primary Person, or any corporation in respect of which the Primary Person is an Associate by virtue of clause 1.1.3(i), or any trust in respect of which the Primary Person or a spouse is a trustee or beneficiary.

(iii) in relation to a trust, any corporation in respect of which the trust is an Associate by virtue of clause 1.1.3(i), and any person who is a trustee or beneficiary of the trust.

1.1.2 Authority means any government authority or department, including Commonwealth and State governments authorities or departments, local governments authorities or departments, semi-government authorities, statutory bodies, other competent bodies or boards having or exercising government authority in relation to the Premises, and other regulatory agencies.

1.1.3 Buyer means the third party that uses the Marketplace to buy the Product of the Seller. 

1.1.4 Commencement Date means the date of this document.

1.1.5 Corporations Act means the Corporations Act 2001 (Cth).

1.1.6 General Liability Insurance means current insurance that provides cover for claims consisting of property damage, physical injury, or bodily injury. Additionally, this insurance covers any and all legal costs involved in disputes arising out of insurance claims. 

1.1.7 GST has the same meaning in this document as it does in the GST Act.

1.1.8 Intellectual Property means all of Everything About Garden’s or Everything About Garden’s Related Party’s discoveries, inventions, know-how, business advice, analytics, improvements, developments, processes, technology, compositions, designs, techniques, methods, industrial designs, compositions, prototypes, models, literary work, research, drawings, software, and trade secrets whether capable of patent, industrial design, copyright, or trade mark protection, or any other type of intellectual property protection.

1.1.9 Marketplace means the website administered by Everything About Garden for the buying and selling of plants and other related goods. 

1.1.10 Nominated Bank Account means the bank account nominated by the Supplier for payment from Everything About Garden for Product that has been delivered to or purchased from Everything About Garden. 

1.1.11 Parties means Everything About Garden and the Seller under this document.

1.1.12 Product means the products placed for sale on the Marketplace.

1.1.13 Product Liability Insurance means current insurance that provides cover in relation to claims related to the manufacture, or sale of goods to the public, including for any injury or losses suffered by the Buyer, or bystander.

1.1.14 Related Entity has the same meaning as under section 9 of the Corporations Act 2001 (Cth).

1.1.15 Related Party means Related Entity.

1.1.16 Sales Price means the amount specified on the Marketplace that the Product was sold for. 

1.1.17 Seedlings means flower and vegetable seeds in addition to plants that are up to five months of age. 

1.1.18 Shipping and Cargo Insurance means current insurance that protects shipments against any damage or loss that occurs while the shipment is in transit.

1.1.19 Everything About Garden Fee means 15% (inclusive of GST) of the Sales Price of any Sale as a debt due and payable to Everything About Garden.

1.1.20 Term means the period between the Commencement Date and at least two years from the Commencement Date. 

1.1.21 Violation Fee means 10% of the overall order price. 

1.2 Interpretation

1.2.1 Words defined in a Schedule or Annexure have the meaning given in that Schedule or Annexure.

1.2.2 A reference to a Schedule, Annexure, or clause is a reference to a Schedule, Annexure, or clause of this document, unless otherwise noted.

1.2.3 The words “including”, “includes”, and “in particular” do not limit the words which precede them or to which they refer.

1.2.4 Unless the contrary intention appears:

(i) a person includes a firm, a body corporate, an unincorporated association or an authority;

(ii) the singular includes the plural and vice versa;

(iii) words importing gender include all genders;

(iv) a reference to a statute, ordinance, code, or other law includes regulations and other instruments made under it and consolidations, amendments, re-enactments, or replacements or any of them;

(v) where any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning; and

(vi) cents, dollars, or $ means Australian cents and dollars.

1.2.5 Headings are inserted for convenience of reference only and are not to be used in the interpretation of this document.

1.2.6 If an act under this document to be done by a party on or by a given day is done after 5.30pm on that day, it is taken to be done on the next day in the place where the act is to be done.

1.2.7 If an event must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day.

1.2.8 Times of day in the document refer to times of day in Sydney NSW.

1.2.9 Unless specified or agreed otherwise, each payment referred to in this document must be made by deposit of cleared funds to the credit of the Nominated Bank Account.

2. Binding Agreement

2.1 By ticking the box, the Seller agrees to be bound by the provisions of this document.

2.2 In consideration of the Seller paying Everything About Garden Fee to Everything About Garden and all amounts owed under clause 4, Everything About Garden agrees to provide the Seller access to the Marketplace in accordance with the terms of this document.

3. Service

3.1 Membership in Marketplace is subject to the approval of Everything About Garden, which is provided at Everything About Garden’s absolute discretion.  

3.2 All Products sold on the Marketplace under this agreement include a five day quality guarantee from the date of delivery to the Buyer, excluding Seedlings and excluding all pest and disease damage. 

3.3 For the avoidance of doubt, risk in the Product remains with the Seller until the Product is delivered to the Buyer. 

3.4 A Product is not eligible for return under clause 8 if the damage complained of is:

(i) Minor branch breakage and minor leaf loss; or

(ii) Root ball and soil is loosened or disturbed; 

3.5 The Seller acknowledges that during periods of extreme weather, the Seller is liable for any losses suffered due to the damage of Product caused by these conditions and the Seller acknowledges that it is the sellers responsibility to maintain product insurance during transit. 

3.6 Everything About Garden acknowledges that the quality of Products will reasonably vary between batches, due to the fragile and perishable nature of the products.

3.7 The Seller acknowledges that the Products provided to any customer must reasonably match the pictures of the Products on the Marketplace. 

3.8 The Seller acknowledges that it will adhere to all relevant laws and regulations including all biosecurity requirements.  

3.9 All Products that Everything About Garden, in its sole discretion, determines to be carrying pest and disease will be disposed of by Everything About Garden at the sole cost of the Seller. 

3.10 The Seller acknowledges that delivery of the Product must be completed within three days to a Everything About Garden depot in the same state (the Agreed Delivery Time). 

4. Pricing and Payments

4.1 The Sales Price received on the Marketplace less the Everything About Garden Fee must be paid to the Seller within 30 days of the end of the month in which the Sale was completed.

 

4.2 Everything About Garden will pay the Sales Price less the Everything About Garden fee into the bank account nominated by the Seller. 

4.3 The Seller provides all consents necessary for Everything About Garden to retain the Everything About Garden Fee from any Sale.

4.4  The Seller is liable to pay the Violation Fee to Everything About Garden, where Everything About Garden deems any one of the following circumstances has occurred:

(i) Order is cancelled by the Seller;

(ii) Products are improperly packed;

(iii) An incorrect quantity is delivered;

(iv) Substitution (without the prior approval of Everything About Garden);

(v) Pest and disease;

(vi) Damage and deemed poor quality; or

(vii) The Product does not contain statutorily required labelling. 

 5. Indemnity

5.1 In the event that the Seller does not deliver any product within the Agreed Delivery Time, then the Seller indemnifies Everything About Garden for any costs incurred by Everything About Garden in relation to or in connection with Everything About Garden delivering the product to the final buyer. 

5.2  The Seller indemnifies Everything About Garden for any and all loss, liability, claim, damage, or other expense that Everything About Garden may incur that is due to or in connection with the products not containing the statutorily required labelling. 

5.3 In the event that Everything About Garden, in its sole discretion, determines that there is pest and disease present on any product, or any damage, or if the product is of poor quality, then the Supplier will receive a written warning from Everything About Garden of the above issue. If the Seller receives 3 written warnings from Everything About Garden, then Everything About Garden reserves the right to terminate this document and remove the Sellers products from any marketing materials or platform used by Everything About Garden to sell the Sellers products. 

6. Insurance

6.1 The Seller must hold current General Liability Insurance, and current Product Liability Insurance when selling items on the Marketplace.

6.2 The Seller must include Everything About Garden as interested party and provide a copy of the General Liability Insurance and Product Liability Insurance to Everything About Garden. 

6.3 The Seller acknowledges that Everything About Garden may at their sole discretion require the Seller to obtain Shipping and Cargo Insurance. For the avoidance of doubt, if the seller wishes to hold Shipping and Cargo Insurance, then the Seller must obtain the relevant insurance policy and it will not be provided by Everything About Garden. 

7.  Advertising

7.1 When advertising the Seller’s products in any form of promotional material, only Intellectual Property, including brand names, owned by the Seller, or Interllectual Property or Brand Names that the Seller has a licence to use, and attached to the affiliated products may be used. 

7.2 All promotional material manufactured by Everything About Garden containing any of the Seller’s Intellectual Property must be provided to the Seller prior for approval. 

8. Product Returns

8.1 In the event that a Product is damaged, not fit for purpose, defective, or not fit for sale:

8.1.1 the Seller must replace the Product, once it has been sighted and approved as damaged, not fit for purpose, defective, or not fit for sale, by Everything About Garden; or

8.1.2 the Seller must offer a refund of the equivalent value of the original purchase.

8.2 Everything About Garden may only rely on 8.1 once it has provided the Seller with sufficient evidence of damage. Sufficient evidence of damage as required under this 8.2 is taken to mean:

(i) A photo of the alleged damage or defect has been provided; and 

(ii) The photo has been provided to the Seller within 48 hours.

8.3 Everything About Garden may in our sole discretion accept, calculate and process cancellations, returns, refunds and adjustments  for the benefits of customers. We will not be liable to you if we cancel, or permit a customer to withraw from a transaction. 

8.4 The Seller will not deal directly with customers of Everything About Garden relating to product returns, the Seller will deal with Everything About Garden, and Everything About Garden will deal with their customers directly. 

8.5 The Seller acknowledges that they are able to offer their own flexible returns and refunds policy, as long as it fits in with the minimum standards expressed in this clause 8.

9. Intellectual Property

9.1 Everything About Garden acknowledges that at times it will be using the Seller’s Intellectual Property or Brand Names in the sale of the Product, and that the Seller grants an unequivocal free licence to Everything About Garden to use the Intellectual Property only for the purposes of selling the Product. 

9.2 In order to use any of the Seller Intellectual Property or Brand Names, Everything About Garden must first be given permission, in writing, to use that Intellectual Property or Brand Name in any advertising or promotional material.

9.3 Everything About Garden must clearly use the Seller’s Brand Names and Intellectual Property with respect to any Product being provided by the Seller.

10. Third Party Businesses

10.1 Parties other than Everything About Garden operate stores or sell Products on this website and we provide links to the sites of affiliated companies and certain other businesses. Everything About Garden is not responsible for examining or evaluating, and we do not warrant or accept any responsibility or liability for the actions or offerings of, any other party or the content of their websites. You can tell when a third party is involved in your transactions, and we may share your information related to those transactions with that third party. You should carefully review their privacy statements and other conditions of use.

11. Everything About Garden’s Role

11.1 Everything About Garden, through the Marketplace, allows third party sellers to list and sell their products on the Marketplace. The relevant Seller is indicated on the respective product detail page. While Everything About Garden helps facilitate transactions that are carried out on the Marketplace, Everything About Garden is neither the Buyer nor the Seller of the Seller’s items. Everything About Garden provides a venue for Buyers and Sellers to negotiate and complete transactions. Accordingly, the contract formed at the completion of a sale for these third party products is solely between the Buyer and Seller. Everything About Garden is not a party to this contract nor assumes any responsibility arising out of or in connection with it nor is it the Seller’s agent. The Seller is responsible for the sale of their Products and for dealing with any Buyer claims or any other issue arising out of or in connection with the contract between the Buyer and Seller. 

12. Everything About Garden’s Offering

12.1  Everything About Garden reserves the right to cease providing any service to any person, to discontinue any service offered by Everything About Garden and to make changes to any services at any time. A Buyers access to the services or Marketplace may be suspended or restricted in accordance with these terms and conditions and the applicable Seller Terms and Conditions, and as necessary for our business operations including without limitation to allow for repairs, maintenance or the introduction of new features or services.

13 . Notices

13.1 Any notice or other communication to or by a party to this document must be in writing, in the English language, and addressed in accordance with the details in Schedule 1, or as specified to the sender by the other party by notice.

13.2 Any notice is regarded as being given by the sender and received by the addressee:

13.2.1 If any delivery in person, when delivered to the address;

13.2.2 If by post, three business days from and including the date of postage;

13.2.3 If by email, at the time that the notice was sent, and provided that the sender is not provided with any notification of any error in sending, but if the delivery is on a day that is not a business day or is after 5:00pm (addressee’s time) it is regarded as received at 9:00am on the following business day;

13.3 Any notice can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct, and authorised by the sender.

13.4 In this clause 8, a reference to an addressee includes a reference to an addressee’s officers, agents, or employees.

14. General
14.1  Costs: Each party agrees to pay its own legal and other costs and expenses in connection with the negotiation, preparation, and execution of this document or any other negotiation.

14.2 Governing Law: This document is governed by the law in force in Australia and the State of New South Wales, and each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them. Each Party waives any right it has to object to an action being brought in those courts including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

14.3 Counterparts: This document may be executed in any number of counterparts. A Party may execute this document by signing any counterpart and those signed counterparts may be exchanged electronically or by email or by facsimile. Signed counterparts so exchanged shall be deemed, together, to constitute one binding instrument.

14.4 Severability: If any provision of this document is illegal, void, invalid, or unenforceable for any reason, all other provisions, which are self-sustaining and capable of separate enforcement, shall be, and continue to be, valid and enforceable.

14.5 Variation: Any amendment or variation of this document must be in writing and is not effective until agreed to in writing by all the Parties.

14.6 Waiver: A power or right under this document may only be waived in writing, signed by the Party to be bound by the waiver. 

14.7 Assignment: The Parties may not assign or deal with or purport to assign or deal with its rights or obligations under this document, or create, or allow to exist, any third-party interest over them, without the prior written consent of either Party.

14.8 Entire Document: This document contains the entire document between the Parties in relation to the above and any subject matter dealt with herein, and no earlier document, understanding, or representation, whether oral or in writing in relation to any matter dealt with in this document will have any effect from the date of this document and any such document, understanding, or representation is terminated with effect from the date of this document.

 Updated: 04/07/202