Gardenvity Rules and Conditions of Purchase
(valid from November 18, 2020)
These Gardenvity Rules and Conditions (hereinafter referred to as “Rules” or “Agreement”) apply to all transactions that take place at the online shop www.gardenvity.com.au or related actions and legal relationships. Upon the approval of these Rules, they become mandatory to the Seller and the Buyer. These Rules lay down the rights and obligations of the Seller and the Buyer, the procedure for purchasing and settlement for the products, the procedure for the delivery of the products, making claims, returning the purchased product(s), liabilities of the parties and other provisions related to the purchase–sale of products at the online shop www.gardenvity.com.au.
The following documents form an integral part of these Rules:
(1) Instructions for the Installation and Operation of the Product, attached as Annex 1 to these Rules (see below);
(2) Conditions for the Provision of Guarantee Obligations, attached as Annex 2 to these Rules (see below).
If the Buyer wishes to receive any additional information or explanation, or to forward any information or documents to the Seller, all information and/or documents are to be sent to the following email addresses: info@gardenvity.com.au, or submitted through the Seller’s internet website at https://www.gardenvity.com.au/contact/ or by other electronic means of communication (WhatsApp, Messenger, etc.), if such have been indicated and verified by the Seller. The documents and requests submitted to the Seller by any of the indicated information submission means shall be held duly served.
1. DEFINITIONS
1.1. Rules – these Rules and Conditions of Purchase and additional documents defining the provisions related to the purchase of product(s) from the Seller’s online shop. It is understood that by approving these Rules, the Parties enter into an agreement, and the provisions laid down in these Rules as well as the provisions laid down in the documents referenced herein shall become the Rules of the agreement between the Parties.
1.2. Seller – joint-stock company Feroxi whose details and contacts are indicated at https://www.gardenvity.com.au/contact/.
1.3. Buyer – a natural or legal person purchasing the products sold by the Seller for non-commercial purposes.
1.4. Online shop – online shop located at gardenvity.com.au, where the Buyer may purchase the products sold by the Seller.
1.5. Party/Parties – Seller and/or Buyer, together referred to as the “Parties”.
1.6. Third Party – any natural or legal person with the exception of the Parties.
1.7. Product – or Article – movable items being sold by the Seller and purchased by the Buyer from the Seller’s online shop at the price and under the procedure indicated therein.
1.8. Additional Service – a service requested by the Buyer that is not indicated on the website at the time of ordering the Product(s), including, but not limited to, services of Product transportation, method of delivery, assembly, installation, etc.
1.9. GST – Goods and services tax.
1.10. Order – an order placed by the Buyer to the Seller at the online shop regarding the purchase of product(s) and indicating the product(s), their specifications, configuration and other important conditions.
1.11. CMR – a document accompanying cargo where the Buyer provides all information regarding the delivery of product(s), including, but not limited to, the apparent deficiencies in the volume, configuration and quality of the product(s).
1.12. DAP – requirements for the transportation of the product(s) (Incoterms) under which the Seller transfers the product(s) into the Buyer’s disposal at their indicated location. The Seller bears all expenses for the transportation of the product(s) to the indicated location. The Seller also undertakes the risk of potential losses due to any damages to or loss of product(s) prior to their transfer into the Buyer’s disposal at their indicated location. The risk passes to the Buyer only upon the moment of delivery of the product(s) at their indicated address.
1.13. PERTH METRO – Perth Metropolitan area.
1.14. FINAL PLACEMENT – a method of delivery when the Product(s) is/are delivered to the Buyer’s final location at their indicated address and at the specific location indicated.
1.15. TO THE GATE – a method of delivery when the Product(s) is/are delivered to the Buyer at parcel boundaries of the address indicated by the Buyer in the order. The transportation of the Product to its final location is organized by the Buyer themselves. The Buyer also assumes the responsibility for the Product.
1.16. Individually Customised Product(s) – Product(s) ordered by the Buyer and customized according to the Buyer’s individual request, including, but not limited to, cases where a part or a component individually discussed with the Buyer that is different from the usual system has been installed into or included with the standard Article. Such Product(s) is/are considered (an) individually customized Product(s) and is/are non-returnable.
2. GENERAL PROVISIONS
2.1. These Rules are not signed separately, but presented to the Buyer for access and to submit questions or comments about, and/or to be confirmed upon consent at the Seller’s website https://www.gardenvity.com.au/. The Buyer may separately download these Rules and related documents.
2.2. If the Buyer has any questions and/or comments regarding the application and/or meaning of the provisions laid down in these Rules or related documents, the Buyer shall address the Seller in writing prior to ordering the product(s), i.e., prior to agreeing to the Rules and placing the order, and submit a request by electronic means of communication at the contacts indicated above.
2.3. By clicking “I agree”, the Buyer agrees to the Rules and the related documents.
2.4. The Agreement between the Buyer and the Seller shall enter into force from the moment when the Buyer assembles their shopping basket at the online shop, enters their name, surname, delivery address, telephone number, email address, selects a payment method and having read the Rules and the Privacy Policy, clicks on “Place order”.
2.5. None of the Buyer’s or any third party’s standard rules and conditions shall apply or be applied to the sale-purchase agreements entered into by the Seller and the Buyer, with the exception of cases where the Buyer and the Seller conclude a separate contract or agreement that provides otherwise.
2.6. Any amendments made by both Parties in writing or any written agreements regarding the exemption from certain provisions of these Rules and/or their supplementation shall only apply to the one particular order for which they were made.
3. OBJECT OF THE AGREEMENT
3.1. The Seller undertakes to hand over to the Buyer by the right of ownership the quality Product(s) ordered by the latter, and the Buyer undertakes to accept the ordered Product(s) and pay for them the price agreed on by the Parties and in accordance with the conditions, terms and procedure laid down in these Rules.
4. ORDERING PRODUCTS
4.1. The Buyer selects their preferred product(s) from the online shop, assembles a shopping basket that fits their needs, and submits it to the Seller. If the Buyer has any questions regarding the products, their operation, configuration and/or other, the Buyer shall present all questions to the Seller prior to placing the order via electronic means of communication at the contacts listed above.
4.2. All comments and requests regarding the product(s) and/or its/their delivery date and conditions are to be addressed by the Buyer to the Seller in writing prior to or along with the order.
4.3. After an order has been placed, the Seller immediately begins performing it, therefore, the order cannot be modified after it has been placed, unless such changes are separately approved by the Seller in writing. The order may be supplemented with additional product(s), but in that case it shall be considered a separate order. The Seller shall only give their decision regarding the “FINAL PLACEMENT” delivery method of the Product(s) after having received from the Buyer all information indicated in clause 6.7 of the Rules. The Seller’s refusal to accept the “FINAL PLACEMENT” delivery method shall not constitute the cancelation of the order and/or of its part.
4.4. The Buyer has the right to cancel a placed order by informing the Seller about it in writing, but in all cases not later than within 2 (two) business days from the order placement date. When cancelling an order, the Buyer must indicate the reason(s) for such cancellation in writing.
4.5. The Seller has the right to consider that the delay of the Buyer to pay the full price for the product for more than 2 (two) business days and/or other actions of the Buyer that prevent the Seller from fully performing the order (including, but not limited to, situations where the ordered product(s) is/are not accepted and/or no confirmation is received regarding the exact delivery date and time, etc. for a period of more than 2 (two) business days) equal a cancellation of the order.
4.6. If an order is cancelled later than within 2 (two) business days from the order placement date, the Buyer shall reimburse the Seller for the minimum storage period of 5 days at the rate agreed on by the Parties ($30/24 hours), the packing costs ($100) and the transportation cancellation costs ($350) which the Seller is not required to separately prove.
4.7. If the Buyer cancels an order upon receiving the information from the Seller regarding the delivery date and time, the Buyer shall additionally reimburse the Seller for the product transportation and storage costs at the minimum amount of $1000 which, at the mutual agreement of the Parties, does not have to be separately proven. The minimum storage period to be covered by the Buyer in this case is 5 days.
4.8. In the event that the Buyer places and cancels a placed order for a second time within the past three months, The Seller shall have the right not to accept the Buyer’s order and/or to cancel it not later than within 2 (two) business days from the order placement date.
4.9. The Seller shall also have the right to cancel an order placed by the Buyer on other grounds by informing the Buyer about it in writing at the Buyer’s indicated email address. If the Seller cancels the order later than within 2 (two) business days from its placement date, the Seller shall compensate the Buyer for all direct losses sustained as the result.
5. PRODUCT PRICE AND SETTLEMENT PROCEDURE
5.1. The product prices at the Seller’s online shop are indicated in Australian Dollars ($) and include all taxes paid by the Seller under legislative acts. The Buyer shall not have to cover any additional taxes and/or payments if such taxes and/or payments were not indicated at the Seller’s online shop at the time of ordering the product(s) or are not indicated in these Rules, unless legislative acts provide for such taxes to be additionally paid by the Buyer. These provisions do not apply to the orders and/or purchases of additional services and/or products.
5.2. The Seller shall deliver the ordered Product(s) to the Buyer under such conditions as were indicated in the order of the Product(s), unless it or was otherwise agreed between the parties in writing.
5.3. The Seller undertakes to deliver the Product(s) ordered by the Buyer under the conditions discussed in the order and these Rules. The transportation cost of the Products is included in the price of the Product if it is indicated at the Seller’s online shop at the time of placing the order. In other cases, the transportation of the product(s) is to be paid for additionally, depending on the Products, their amount and the delivery location indicated by the Buyer. The additional price for the delivery of the Product(s) is indicated next to the price of the Product before submitting the order to the Seller and may be later adjusted by the parties in writing, depending on the preferred location of the delivery of the Product(s).
5.3. The Buyer shall pay the full price for the Product at the time of placing the order. In the event that the order is cancelled or unfulfilled not the fault of the Buyer, the Seller shall return to the Buyer the full amount paid within 14 days from the day of such order cancellation and/or termination.
5.4. All payments by the Buyer shall be made by bank or PayPal transfer into the Seller’s bank account. Both credit and debit card payments are accepted. The day of payment for the products is considered to be the day when the payment is credited to the Seller’s bank account. Each party to the Agreement shall cover its bank fees and other expenses related to the payment.
5.5. The term of delivery of the Products shall start after 2 (two) business days from the submission of the order of the Product(s) to the Seller.
5.6. The Seller shall have the right to change the price of the Product(s) and/or its/their parts as well as other conditions without a separate written notification by announcing all changes at the online shop. The Seller shall not have the right to change the price of the Product(s) or its/their parts if the Buyer has already submitted their order, however, such changes in the price and other conditions are prohibited only to the extent of that particular Buyer and the order submitted by them. Separate orders are governed by the Rules announced and in force at the time of placing the particular order.
5.7. The Seller is entitled to deduct all losses, expenses and/or penalties from the amount paid by the Buyer by informing the Buyer about it via email and indicating the grounds for and the calculation of such costs.
6. ORDER FULFILMENT, PRODUCT DELIVERY
6.1. Once the order is placed and confirmed by the Seller, the order execution process is started.
6.2. The Seller delivers products to Perth Metro without additional transportation and/or delivery fees. Delivery is also available to Peel and the South West regions in WA and offered at an additional cost. When possible and if indicated by the Seller, the Product(s) may also be delivered to territories not listed in this provision for an additional fee.
6.3. The Seller shall have the right to cancel a product order by informing the Buyer about it in writing and reimbursing the price paid by the Buyer for the product(s) if the Seller does not, is not able to or does not want to deliver products to the delivery location (territory) indicated by the Buyer.
6.4. The Products are handed over to the Buyer at the location indicated in the Order (delivery address). If no particular delivery method is selected, the Products are delivered “to the driveway”. The Buyer is responsible for the acceptance of the Product(s) at the indicated address and at the time agreed on by the Seller and the Buyer.
6.5. The Products are delivered to the Buyer at the address indicated in the order or via the method separately agreed on by the Parties in writing. A single method of delivery is available: ”to the driveway”.
6.6. If the Product delivery method selected is “to the driveway”, the Seller is responsible for the delivery of the Products to the Buyer to the yard gate of their indicated address. The Buyer is responsible for the transportation of the Product from its place of delivery to its final destination.
6.7. The Parties agree that the Seller shall not be liable for any damage done to the surroundings, the road, the lawn, the infrastructure and/or other (done at the time of Product delivery to the gate).
6.8. Irrespective of the delivery method selected, the Buyer shall ensure that all conditions for the delivery and unloading of the Product(s) are provided at the time of the Product(s’) delivery by the Seller or its representatives.
6.9. The standard delivery period for the products is from 2 to 12 (from two to 12) weeks. The Seller has the right to deliver the Product(s) to the Buyer at an earlier time. The Buyer shall be informed by email about the exact delivery period and date (within the period indicated) in advance from 2 to 5 (from two to five) business days prior to the estimated date of delivery. The Buyer shall respond to the Seller or its authorized person by email within 1 (one) business day and confirm the indicated date and time of delivery or suggest other suitable delivery dates and times, provided they are not outside of the indicated period. In the event that the Buyer does not inform the Seller, the execution of the order is put on hold. If the Buyer fails to provide their answer within 2 (two) business days during the indicated period, the Seller shall have the right to consider the order cancelled by the Buyer under clause 4.5 and to apply the consequences laid down in clauses 4.6 and 4.7.
6.10. The Buyer confirms that they are aware of the fact that Products are delivered on business days and are not and will not be delivered on weekends and public holidays, unless otherwise agreed by the Parties in writing.
6.11. When placing an order, the Buyer shall indicate to the Seller the exact location for the delivery of the Products, their email address and a contact telephone number, which the Seller shall use to inform the Buyer about the exact delivery date and time. The Buyer is responsible for the correctness of the data and all possible consequences arising out of the possibility to contact the Buyer via the indicated contacts.
6.12. The Parties agree that the requirements of DAP Incoterms shall apply to the delivery of Products insofar as they are not incompatible with the provisions of this Agreement. DAP Incoterms require the Seller to assume the delivery costs for transporting the products to the location indicated by the Buyer. If the Buyer has additional questions regarding the delivery conditions, the Buyer shall immediately, i.e., prior to placing the order and making a payment, request in writing that the Seller provides an explanation.
6.13. The Buyer undertakes to ensure that the Products are accepted by the Buyer or their authorized representative at the time indicated and arranged by the Seller and the Buyer. The Seller is not required to verify that the person accepting the Products is authorized by the Buyer – it is the responsibility of the Buyer.
6.14. From the moment of unloading the Products at the indicated address (“to the gate”), the risk of damage to and/or loss of Products is transferred to the Buyer. If the Products are accepted by a third person in the name of the Buyer, the Buyer is responsible for the actions (not) carried out by this third person.
6.15. If it has not been otherwise agreed in writing, the Products shall be delivered only to the borders of the Buyer’s property (“to the gate”). The Seller shall have the right to help deliver the Product(s) to the Buyer’s yard upon the Buyer’s request despite the indicated method of delivery, however, all related risks are the responsibility of the Buyer. In the event that the Seller helps to deliver the Product(s) to the exact location indicated by the Buyer upon the Buyer’s request, the Buyer assumes all responsibility for damages incurred during such delivery (including, but not limited to, any damages to the Product(s), damage to health, damage to the lawn, paving or other surfaces, various damages to the plants, etc.).
6.16. The Buyer shall receive the Product(s) (wooden hot tub(s)) with (a) fully assembled housing(s), but shall have to install certain additional Product(s’) parts independently according to the instruction manual delivered by the Seller along with the Product(s). The Product’s instruction manual is an integral part of these Rules, presented as Annex 1. If the Buyer requests and the Seller agrees, the Seller or its representative may install the additional parts of the Product(s) for an additional fee.
6.17. The Buyer undertakes to assemble and/or set up the Product(s) for use, follow the Product’s instruction manual supplied and comply with the safety and other requirements provided for in local legislative acts. In the event that the Buyer does not fully understand any of the requirements for the assembly and/or the set up or any other operation requirements, they must submit a request to the Buyer in advance (prior to taking any set up or other actions) via email, to which the Seller must respond within 3 (three) business days.
6.18. The Seller confirms and guarantees that the Product(s) are safe to use and comply with all safety and quality requirements of the EU legislative acts. The Buyer confirms that they understand that they are ordering the Product(s) from the Seller who operates in the EU member state, therefore, the Product operation requirements laid down in the Product’s instruction manual comply with the requirements enforced by the EU legislative acts. The Buyer shall assemble and use the purchased Product(s) in such a way that complies with the safety requirements laid down in the legislative acts of the country where it is being used. If the Buyer has any questions, they must consult the Seller via email prior to taking any actions. In the event that the Buyer performs any action without consulting the Seller, they do it at their own risk. If there is a need to customize the Product(s) to fit additional requirements, the Buyer assumes all expenses for such customization of the Product(s).
6.19. Upon the delivery of the Product(s) to the Buyer, the following documents shall be presented: CMR waybill, invoice, configuration list, operating instruction manual. Prior to signing the CMR waybill, the Buyer must attentively and carefully inspect the delivered Product(s), make sure that it/they is/are of good quality and its/their configuration complies with the order. If there are any inconsistencies, including, but not limited to, external defects or damages to the Product(s), damage to the packaging, lack of parts and/or any mismatches of configuration, the Buyer shall indicate everything in detail in the CMR waybill and send a copy of the CMR waybill to the Seller within 2 business days from the delivery of the Product(s). Otherwise, the Buyer shall be held responsible for an untimely submission or non-submission of a claim, and claims regarding obvious defects of the Product(s) that could have been identified through a careful examination of the delivered Product(s) shall not be accepted.
6.20. If the Buyer marks in the CMR waybill that the Product(s) delivered to the Buyer is/are of poor quality in terms of amount, quality or configuration, and informs the Seller in due time, the Seller shall rectify such discrepancies within a reasonable time at their own expense and risk. In terms of the coordination of the inspection and/or pick-up of the Product(s), the terms and conditions regarding the notification of the Buyer about the arrival time and the due time in which to provide a response about a time suitable to the Buyer apply as laid down in clause 6.10.
6.21. In the event that the quality and/or the configuration of a Product is impossible to objectively evaluate at the time of its delivery (hidden defects), the Buyer shall submit all claims regarding the discrepancies between the Product(s) and the order, including the descriptions of these discrepancies, photographs and/or video material (required) to the Seller in writing via email within 5 days from the day of their delivery and/or, in the event that such discrepancies surface later, within 5 days from their appearance.
6.22. If any deficiencies of Product(s’) quality and/or configuration, and/or other are identified and it is decided under the procedure laid down in this Agreement that the Seller is responsible for them, and provided that the Buyer informed the Seller about them duly and in time, the Seller shall: 1) reduce the price of the Product(s) with regard to the deficiencies of the Product(s) or 2) replace the poor quality part of the Product(s) with quality parts in a reasonable time. The requirements laid down in the after-sales servicing rules (Annex 2) apply to the situation defined in this clause.
7. RETURN AND EXCHANGE OF QUALITY PRODUCT
7.1. The Buyer shall have the right to return to the Seller (a) good quality Product(s) or request that the Seller exchanges the Product(s) for (an)other (in this case, the Buyer undertakes to cover the price difference, if any exists) by informing the Seller about it not later than within 14 calendar days from the date of delivery. Quality Product(s) must be unused and/or otherwise undamaged.
7.2. The Buyer may return or exchange the Product(s) of good quality only if the Product(s) has/have not been used and is/are in the same condition as when delivered to the Buyer. The Product(s) must have all original tags and be properly prepared for transportation, i.e., packaged according to the Seller’s instructions using a special packing liner, placed vertically on a Euro-pallet and tightened with plastic belts.
7.3. The Buyer confirms that they are aware that the Product(s) will be delivered and unloaded with their original packaging, pallet, belts, etc. For this reason, it is advisable that the Buyer keeps the packaging of the Product(s) and all its parts for a minimum of 14 days (if the Product(s), is/are returned, it/they must be packaged).
7.4. The Buyer shall inform the Seller about the return or the exchange of a quality product in writing via email not later than within 14 days from the day of its delivery. The shipping and transportation costs, including, but not limited to, Product loading/unloading, storage and other costs related to returns and/or exchanges of quality products shall be paid in advance by the Buyer in accordance with these Rules or the documents and calculations provided by the Seller. If the Product(s) returned by the Buyer is/are not properly packaged or has/have been used or otherwise damaged, or the Buyer refuses to cover the costs related to the return of the Product(s), the Seller shall have the right to refuse to accept and/or exchange the Product(s).
7.5. In terms of the coordination of the inspection and/or pick-up, and/or transportation of the Product(s), the terms and conditions regarding the notification of the Buyer about the arrival time and the due time in which to provide a response about a time suitable to the Buyer apply as laid down in clause 6.09. In the event that the Buyer does not respond within the indicated periods, the Seller shall have the right to terminate the fulfilment of their obligations.
7.6. Quality products which have been manufactured for the Buyer per their individual order or request are non-exchangeable and non-returnable. In the event that the Buyer refuses to purchase and/or accept the Products manufactured per a customized order, the price of the Product(s) is non-refundable.
7.7. In the case of the return of quality product(s), the risk of loading, transportation and unloading of the product(s) is assumed by the Buyer, irrespective of whether the transport services have been ordered by the Buyer or the Seller.
7.8. The Parties agree that the Buyer shall in all cases record the packaging and configuration of the returnable Product(s) prior to loading it/them into the transportation vehicle and after. The Buyer shall send the photographs and the video material to the Seller not later than on the day of loading such product(s) or its/their part(s) into the transportation vehicle. This is an essential requirement. The video material shall provide visuals of the following: the packaging of the Product(s), Product(s’) parts and amounts as well as the way the Product(s) were loaded into and placed in the transportation vehicle. The Buyer shall be additionally informed about the importance of this information in the case of full or partial damage to the Product(s) during transportation. If the information provided by the Buyer confirms that the Buyer properly packaged the returned Product(s), they shall not be held responsible for the damages to the Product(s) that occurred during transportation.
7.9. Under the procedure and within the period specified in these Rules, upon the return of (a) quality Product(s), the amount paid is refunded to the Buyer, after deducting the costs related to the return of the Product(s). If the Buyer orders transportation services independently, transportation costs are not deducted, however, in this case, the Buyer must first obtain from the Seller a written confirmation of the address for returns in Lithuania.
7.10. Upon the delivery of a returned quality Product to the Seller, the Seller shall first inspect it and evaluate if there are any damages or deficiencies, and inform the Buyer about it via email within 5 (five) business days from their receipt. If the Product(s) is/are in the same condition as upon its/their delivery to the Buyer, the Seller shall refund the monetary amount paid by the Buyer, after deducting the return costs and related expenses within 30 days from the delivery of the returned Product(s) to the Seller.
7.11. If the Seller determines that the returned quality Product(s) is/are damaged, do not work, or are out-of-order, the Seller shall calculate the cost of rectifying such damages and present it to the Buyer. If the Buyer agrees, the remaining amount shall be refunded within 14 (fourteen) days from the day when this information was submitted to the Buyer. If the Buyer disagrees with the amount calculated by the Seller, the situation shall be settled by an agreement between the Parties, and if such agreement cannot be reached within 30 days from the date of submission of such calculations to the Buyer, the Seller shall deduct their indicated damage rectification amount from the amount paid by the Buyer and the dispute shall be settled in accordance with the procedure established in legal acts.
7.12. The provisions laid down in this part shall only apply to the returns of quality Product(s). Poor quality Products are returned at the Seller’s expense and risk, and under clauses 6.15, 6.16 and 6.17 of these Rules, as well as the requirements for after-sales service (Annex 2).
8. RESPONSIBILITIES OF THE PARTIES
8.1. The Seller is responsible for the quality of the Products and their conformity to the order: the configuration of Products, their amount and model.
8.2. Delivery of the Products and the date of delivery are the responsibility of the Seller. Having informed the Buyer, the exact time of Product delivery may differ by 12 (twelve) hours (before or after the agreed time) and it shall not be considered an infringement of the Agreement on the part of the Seller. This provision applies in the cases where the 12-hour difference does not mean that the Product(s) will be delivered the following day from the arranged delivery date. If the Seller delivers the Product(s) the following day from when delivery was arranged, clause 8.3 applies.
8.3. If the Seller is not able to deliver the Product(s) on the arranged day due to substantiated grounds, the Seller must inform the Buyer about it at 9 am at the latest on the date of delivery and arrange another day suitable for both the Buyer and the Seller. In this case, the Seller shall bear all costs related to the additional storage and transportation of the Product(s).
8.4. In the event of important and substantiated grounds, the Buyer shall have the right to inform the Seller in writing before 9 am three days before the date of delivery that the Buyer cannot accept the Product(s) on the agreed date. Having received such written notification from the Buyer regarding the Buyer’s delay to accept the Product(s), the Seller shall re-arrange the delivery.
8.5. If the Buyer fails to pick-up the Product(s) at the arranged time and location, the Seller shall transport it/them to the warehouse, and the Buyer shall additionally and in advance pay for the repeat delivery of the Product(s) at the time separately arranged by the Parties and cover the Product storage cost. If the Parties fail to arrange an additional time and location for the transportation of the Product(s) within 5 days from the last delivery attempt, or the Buyer fails to cover the repeat delivery expenses in advance, or repeatedly fails to accept the Product(s) at the arranged time, the Seller shall have the right to consider the order cancelled by the Buyer, and clauses 4.6 and 4.7 may be applied.
8.6. The Buyer is responsible for the formation of the order and its placement, as well as the payment for it. Acceptance of the Products, identification of all claims regarding Product defects and/or deficiencies, inconsistencies of the configuration and packaging damages in the CMR waybill, as well as the correct operation of the Products and the proper execution of other obligations are also the Buyer’s responsibilities.
8.7. Both parties are responsible for the execution of their obligations under the Agreement. If either party has questions regarding the execution of the agreement, it shall address the other party in writing and cooperate. The infringement of the cooperation obligation by a party is considered to be an infringement of this Agreement.
8.8. If the Buyer cancels an order at no fault of the Seller later than within 2 business days from the day of submitting the order for the product(s) to the Seller, the Buyer shall compensate the Seller in the minimum amount of $1000 as a penalty.
8.9. The Buyer confirms that they are aware of and agree that upon the failure to arrange suitable conditions for the delivery and unloading or pick-up of the Product(s) and/or the failure to facilitate the Seller in their delivery for more than 5 business days from the initial agreed Product delivery period, the Buyer shall compensate the Seller for the expenses sustained while storing the Product(s) at the terminal.
8.10. If the Seller cancels a confirmed order at no fault of the Buyer, the Seller shall refund all amounts paid by the Buyer under the Agreement within 14 days from the date of order cancellation and compensate all related direct losses.
8.11. The Buyer confirms that they are informed that the Product design is the property of the Seller, and any copying, reselling and other actions unrelated to personal use are prohibited and protected by the law.
8.12. The Parties agree that in all cases the Seller shall indemnify only for direct losses. This provision does not apply to the cases where the Product(s) is/are purchased by a natural person for their personal or household and family needs (consumers).
9. GUARANTEE
9.1. The Products are covered by a guarantee. The guarantee period is counted from the date of the Product’s delivery to the Buyer.
9.2. The guarantee applies to factory defects that become apparent while using the Product(s) as intended.
9.3. The Seller shall not be liable for Product defects that appear due to improper or negligent maintenance, storage, installation, usage, modification, repairs of the Products and/or their normal depreciation and/or in the case of mechanical damage. Different guarantee periods apply to different parts of the products.
9.4. Instructions for the Installation and Operation of the Product are attached as Annex 1. The Buyer undertakes to follow them. If the Buyer has questions on how to use the Products, maintain and/or clean them, they must inquire with the Seller via email in advance prior to taking any action, and use the Products as specified in the instructions and recommended by the Seller.
9.5. The guarantee terms are attached as Annex 2. The Buyer is informed that they may not perform any defect/deficiency rectification works without the Seller’s written permission, and that they are responsible for any consequences, expenses and losses sustained due to Product defect/deficiency rectification. The product guarantee terms and conditions shall seize to apply to the Buyer from the day of defect/deficiency rectification without the Seller’s permission.
9.6. The Buyer confirms that the instructions and rules in English are acceptable and understandable, and that they may have them translated into another language at their own expense.
10. FORCE MAJEURE OR UNFORESEEN CIRCUMSTANCES
10.1. With the exception of the Buyer’s obligation to settle with the Seller that the provisions of this chapter do not apply to, either Party may be released from its obligations under this Agreement and/or the Order due to the appearance of force majeure circumstances, including, but not limited to, fire, flood, tornado, earthquake, war, riot, rebellion, strike, lockout, economic slowdown, epidemic, quarantine restrictions, transport delays, lack of work force or strikes, lack of material or production capacity, incidents, boycott, embargo, actions or regulations of government or public authorities, as well as any other unforeseen circumstances that are out of the Party’s control.
10.2. A Party must inform the other Party about the appearance of force majeure circumstances in writing within a reasonable period after becoming aware of them.
10.3. If the force majeure circumstances persist for more than 3 (three) months, either Party shall have the right to terminate any order without any negative consequences by informing the other Party about it in writing 10 (ten) days in advance.
10.4. If the Seller or the Buyer are not able to fulfil their obligations in due time due to circumstances which are out of their control, do not depend on them and could not have been foreseen by them, including, but not limited to, COVID-19, accidents, traffic jams due to accidents, etc., the Party that is not able to fulfil its obligations due to unforeseen circumstances shall immediately inform the other Party in writing in order to be exempt from penalties. However, the appearance of unforeseen circumstances does not release the Party from its duty to execute its obligations at a later time, and the order may not be cancelled due to unforeseen circumstances, unless the Parties mutually agree otherwise in writing.
11. VALIDITY AND TERMINATION OF THE AGREEMENT
11.1. The validity and the termination of the Agreement (these Rules and their related documents) and the validity and the termination of a separate order are separate things that result in different legal consequences.
11.2. The Parties agree that the Agreement (these Rules, their related documents and provisions) come into force from the moment of their confirmation and are valid for an indefinite duration. The Agreement is confirmed by placing the first order. After completing a separate order, the Agreement remains in force. If a separate order is cancelled, the Agreement also remains in force. When placing a new order, the Rules of the Agreement (these Rules) are in force if at the time of submitting this new order they are unchanged. If the terms of the Agreement (these Rules or their related documents) have been changed at the time of submitting a new order, the amended (new) terms of the Agreement apply.
11.3. After submitting an order to the Seller, it becomes valid and remains valid until the moment of its full completion, unless one of the Parties cancels it under the terms and the procedure of these Rules. If an order is cancelled, it loses its validity from the moment when the notification about such cancellation is received.
11.4. In the event of a material breach of this Agreement by one of the Parties, it may be terminated unilaterally by informing the infringing party 30 days in advance, provided that it does not rectify the breach within the additional time that it was informed about in writing. Upon the termination of the Agreement, all incomplete orders shall be completed in full, unless otherwise agreed by the Parties in writing.
11.5. A separate order may be cancelled without any negative repercussions by informing the other Party about it in writing not later than within 2 business days from the date of its placement or receipt.
12. FINAL PROVISIONS
12.1. The terms of this agreement (Rules) shall come into force on November 18th, 2020 and shall apply to all orders submitted to the Seller starting from that date.
12.2. All information, notices and documents shall be sent by the Parties via email to the addresses indicated in the order. The Parties agree that the information and the documents sent to the other Party at its indicated email address shall be considered received on the following after they were sent out.
12.3. If any of the Parties’ details change, the Party whose contacts or details have changed shall inform the other Party about it in writing via email not later than within 1 (one) business day after this change takes place.
ANNEXES:
Annex 1. Instructions for the Installation and Operation of the Products;
Annex 2. Conditions for the Provision of Guarantee Obligations;
Annex 2.
Conditions for the Provision of Guarantee Obligations
The document consists of the following parts:
Chapter I – GENERAL PROVISIONS
Chapter II – GUARANTEE PERIOD AND PROVISION PROCEDURE
Chapter III – FULFILMENT OF GUARANTEE OBLIGATIONS
Chapter IV – FINAL PROVISIONS
CHAPTER I. GENERAL PROVISIONS
1. The Seller guarantees that the Article is of good quality and that the Buyer will be able to use it as intended for the entire period of its guarantee. In the event that any factory defects of the Article or its parts become apparent, the requirements for the fulfilment of guarantee obligations shall apply, under which the Seller undertakes to replace any parts/materials of the Article that are of poor quality with good quality ones or lower the price of the Agreement accordingly.1. The Seller guarantees that the Article is of good quality and that the Buyer will be able to use it as intended for the entire period of its guarantee. In the event that any factory defects of the Article or its parts become apparent, the requirements for the fulfilment of guarantee obligations shall apply, under which the Seller undertakes to replace any parts/materials of the Article that are of poor quality with good quality ones or lower the price of the Agreement accordingly.
2. These Conditions for the Provision of Guarantee Obligations are an integral part of the agreement and govern the questions regarding the application and the execution of guarantee obligations, their procedure, terms and conditions.
3. The Buyer is given access to these Rules on the Seller’s internet website https://www.gardenvity.com.au/. By confirming the Rules and Conditions of Purchase, the Buyer also confirms that they are aware of and agree to the conditions for the provision of guarantee obligations. The Buyer has the right to download a copy of these Rules.
4. In the event that the Buyer disagrees with any provision, they shall, prior to confirming, inform the Seller about it in writing. If the Buyer does not understand any of the conditions provided, they shall, prior to confirming, submit all inquiries to the Seller in writing. Otherwise, it shall be considered that all conditions are acceptable and clear to the Buyer, and the Buyer agrees to them.
5. The procedure and the conditions for the installation and the operation of the Articles are provided in the Article installation and operation conditions which must be followed in order to correctly operate the Articles.
6. Guarantee obligations shall only be provided if the requirements for the installation and operation of the Articles indicated in the Article installation and operation rules have not been breached, therefore, it is of key importance that the Buyer carefully reads the Article operation instructions and these conditions for the provision of guarantee obligations. If the Buyer has any questions concerning the requirements in question, the Buyer shall contact the Seller in writing and request an explanation, prior to taking any action.
7. The Product and/or its part’s guarantee is the Seller’s guarantee that the Article and/or its part will be suitable for use for the entire period of its guarantee. Guarantee obligations include the defects of the Product and/or its part that did not exist at the moment of its delivery to the Buyer and that surface (appear) during the guarantee period when using the product as intended and in accordance with the requirements for the installation and operation of the Articles.
8. The Seller undertakes to fulfil their commitments regarding the provision of guarantee obligations for the Articles or their parts to the Buyer free of charge and in due time for the entire guarantee period of the Product or its part.
9. It is additionally noted that all defects of the Article (related to its packaging, configuration, amount and quality) shall be inspected by the Buyer upon the delivery and unloading of the Articles, i.e., at the moment of their delivery. In the event of any discrepancies, the Buyer shall, at the time of Article delivery, note all such discrepancies in the CMR waybill in writing. A copy of the CMR waybill shall be sent to the Seller within 2 business days from the delivery of the Article. Otherwise, the Buyer shall be responsible for the non-submission of claims to the Seller, and such claims regarding obvious defects of the Article or its parts that may have been identified with close inspection of the delivered Article at the time of its delivery may be unaccepted on the grounds that they are not considered to be the object of guarantee obligations. The object of guarantee obligations are factory defects that appear on the Article or its parts during the guarantee period, provided that the Articles were properly installed, stored, operated and maintained.
CHAPTER II. GUARANTEE PERIOD AND PROVISION PROCEDURE
10. The Guarantee applies to and is provided for all new Articles and their parts purchased directly from the Gardenvity online shop. The Guarantee applies to and is provided for all new Articles and their parts purchased directly from the Gardenvity online shop.
11. A general 2-year (two-year) guarantee period applies to the Articles, with the exception of individual parts of the Articles which may be subject to a shorter guarantee period and which are listed in clause 16 of these Rules.
12. The Guarantee period begins on the day of the Article delivery to the Buyer. In the event that the Article and its parts are delivered to the Buyer at different times and the parts of the Article that are delivered at a later time are necessary in order to use the Article as intended and without them the Article cannot be operated, the period of Guarantee obligations is calculated from the moment when the Article and its parts are delivered to the Buyer.
13. After the rectification of defects that become apparent during the Guarantee period or other fulfilment of guarantee obligations, the Guarantee period does not start from the beginning, i.e., it is not renewed and is not counted from its beginning from the day when the Articles are transferred to the Buyer.
14. The Guarantee period is suspended and is not counted for the period when the Seller is carrying out the necessary actions under the guarantee obligations in order to rectify the quality defects, and for that reason the Buyer is not able to use the Article as intended. During this time, the guarantee period is not counted (it is suspended).
15. The Guarantee includes Gardenvity’s responsibility for the factory defects to the Article or its parts that appear or surface during the Guarantee period if the Article was properly installed, stored, operated and maintained.
16. A shorter Guarantee period than that indicated in clause 12 applies to some parts of the Article listed below. A 1-year (one-year) guarantee period applies to the following parts of the Article:
16.1. Steps;
16.2. Shelves;
16.3. Glass holders;
16.4. Cover;
16.5. Thermometer;
16.6. Heater doors;
16.7. Ash drawer.
17. The Guarantee applies if the Buyer has fully settled with the Seller. The Seller has the right to suspend their fulfilment of Guarantee obligations if the Buyer has not fulfilled their obligation to settle with the Seller for any payments or any Article or its part, or other services that has/have been ordered under any agreement entered into with the Seller.
18. The Guarantee applies provided that the Buyer follows the notification procedure laid down in these Rules (Chapter III) to be followed if any defects to the quality of the Article or its parts become apparent.
19. The Guarantee applies provided that the Article or its parts were installed, operated and maintained under the indicated procedure (INSTALLATION AND OPERATION OF ARTICLES is an integral part of Rules of Purchase). Gardenvity is not responsible for any defects to the Articles or their parts that appear as a result of their improper use, improper installation or other works.
20. The following cases shall not be covered by the Guarantee (including, but not limited to):
20.1. Gardenvity shall not be responsible for any defects to the Products or their parts that appear due to improper actions performed by the Buyer, persons hired by the Buyer or other persons, any external mechanical damages, etc. External damages include damages due to the appearance or the use of chemically active substances (including, but not limited to, chlorine, which cannot be used) that have an effect on the article and/or its part, with the exception of those substances that are commonly found in the natural environment.
20.2. Any defects that appear due to improper maintenance of the Articles (not cleaning the surface of the Article from the accumulated dirt and other sediment, any intentional action, negligence or improper use of the Articles).
20.3. Any defects that appear due to repainting or otherwise treating the Articles with a material that is not recommended for use on the Article.
20.4. Any defects in the event of a natural disaster or natural forces of equivalent effect (flood, fire, accident, etc.)
20.5. Cracks, splits and knots in the wood that appear in wood as a natural material in response to humidity and temperature fluctuations.
20.6. Changes in the shape of the heater doors and the ash drawer that usually appear due to metal reacting with high temperatures.
20.7. Any discoloration or fading of the colour of the Article or its parts.
20.8. Any defects that appear as the result of improper transportation, storage or installation of the Articles.
20.9. Any defects that result from the non-compliance with other requirements of the rules and conditions of operation and/or Gardenvity’s consultation(s).
21. The Buyer confirms and agrees that colour and wood pattern discrepancies (including, but not limited to, branching, unevenness, natural cracks that do not interfere with the intended use of the product), deformations of wood, steel or glass parts due to the changes in the weather conditions and aging, as well as any other defects that appear due to natural wear or improper operation and use of the Product(s) shall not be considered Product quality defects.
CHAPTER III. FULFILMENT OF GUARANTEE OBLIGATIONS
22. In the event that the Buyer becomes aware of defects to the Products that appear during the guarantee period, they must immediately, i.e., within 3 business days from the day of becoming aware of them, contact Gardenvity in writing and specify where and what defects have appeared, present their photographs and/or video material, as well as indicate and submit the purchase documents of the Products in question, the names of these Products and other information requested by Gardenvity.
23. Gardenvity shall have the right to ascertain the existence of defects, and all conditions to physically inspect the object must be ensured, all requested information must be presented, all necessary conditions for the provision of guarantee obligations requested by the Seller must be provided, and if such conditions are not provided within 5 business days without any explanation or reason, Gardenvity shall have the right to refuse to execute their guarantee obligations and consider that the Buyer has waived them.
24. Having evaluated the situation, Gardenvity shall submit a conclusion regarding the application of guarantee obligations. Gardenvity’s conclusion shall be submitted within a reasonable period from the day when all necessary information and documents are received from the Buyer. If the documents are submitted in parts, the period begins from the day of the submission of the last document and/or information.
25. If it is determined that the defects qualify for the after-sales service, the parties shall arrange reasonable options and periods for their elimination and/or other.
26. If it is determined that the quality defects of the Article are of factory origin and the guarantee applies to them, one of the options for the provision of guarantee obligations listed below may be applied at the request and agreement of the Buyer:
26.1. Gardenvity shall reimburse the Buyer for the price of poor quality materials or parts within 10 days from the date of the receipt of the Buyer’s confirmation regarding their choice of this option. In this case, it shall be considered that the price of the contract has been reduced and the Seller is not and will not be liable in the future for the provision of guarantee obligations for those parts that the Buyer has been reimbursed for.
26.2. Within 10 days after receiving the information from the Buyer regarding the selection of this option, Gardenvity shall take all necessary steps in order to rectify the Article and/or its parts’ defects in a reasonable time and make the Article fit to be used as intended (including, but not limited to, situations where unusable parts of the Article are replaced with proper parts, etc.). The Buyer undertakes to provide all conditions necessary for such works. If the necessary conditions for the Article repair and/or inspection were not provided to the Seller after having arranged them with the Buyer in writing, it shall be held that the Buyer has waived their right to after-sales service and the Seller shall have the right not to provide it.
26.3. Gardenvity shall reimburse the full price of the Article or provide a new analogous Article to the Buyer only provided that the Seller confirms in writing that Article repair or replacement of its parts is not justified due to its high price in comparison to the price of the Article, and that the Buyer returns the Article to the Seller.
27. The Buyer is aware and understands that after the Seller executes its guarantee commitments, the colour and/or the shape of certain parts of the Article may differ from the initial original colour and/or shape of the part of the Article due to their replacement with new parts and/or Article repairs. This shall not be considered a defect and/or a deficiency.
28. The Seller shall be deemed to have duly fulfilled its guarantee obligations when, in certain cases, the Seller replaces a defective part/component with a suitable one or rectifies another deficiency and provides the Buyer with detailed instructions and recommendations on how it is assembled and/or screwed on, and/or fixed, and/or attached.
29. In the event that the Seller determines that guarantee obligations do not apply, the Buyer shall be notified in writing.
30. In the event that the Buyer objects to the Seller’s conclusion regarding the non-application of guarantee obligations, the Buyer shall inform the Seller in writing within 10 days from the receipt of the conclusion.
31. The Seller’s conclusion regarding the non-application of the guarantee may be undermined if the Buyer informs the Seller under the procedure laid down in clause 28 and uses an independent expert whose involvement is pre-arranged with the Seller to undermine this conclusion.
32. In the event that the expert who is approved by both parties determines that certain specific defects are factory defects and guarantee obligations should apply in accordance with these rules, the Seller may choose to either request a re-examination or indemnify the Buyer for the costs of the expertise performed and execute its guarantee obligations.
33. In the event that the expert approved by both parties determines that specific defects are not factory defects, and guarantee obligations do not apply under these rules, the Buyer shall be obliged to cover the costs of the expertise performed.
CHAPTER IV. FINAL PROVISIONS
34. In order to amend or replace any provision of these Rules, the specific request to replace, withdraw or amend any provision of these Rules shall be submitted in writing prior to confirmation of the Order.
35. If the Buyer has any questions regarding the information provided in these Rules or lack thereof, the Buyer may apply in writing to receive an additional consultation related to the use and maintenance, etc. of the Product/Article.
36. This guarantee is the only valid Gardenvity article guarantee and it may not be replaced by any other guarantee issued by distributors or any other persons that are not authorized Gardenvity representatives, unless Gardenvity has explicitly agreed to it.
37. The Guarantee provided by the Seller does not include compensation for indirect losses.