Terms & Conditions
Last Updated: 28/04/2020
Thank you for choosing Kiamba Valley Nursery as your advanced trees and plants supplier. Please note that all communication, transactions and any other activities conducted in connection with the business are subject to the terms and conditions set out in this agreement.
These Terms & Conditions constitute a legally binding agreement made between you, whether personally or on behalf of an entity, and Kateal Investments Pty Ltd, doing business as Kiamba Valley Nursery, concerning your access to and use of the www.kvn.net.au website as well as any other media form, media channel, sales channel, mobile website or mobile application related, linked, or otherwise connected thereto. You agree that by accessing the website, you have read, understood, and agreed to be bound by all of these Terms & Conditions. If you do not agree with all of these terms, then you are expressly prohibited from using the website and you must discontinue use immediately. A breach or violation of any of the Terms will result in an immediate termination of your Services.
“the business” “us” “we” “our” means the company under which this terms and conditions agreement applies; Kiamba Valley Nursery (ABN: 18 639 183 029). To clarify, actions or communications outlined in this agreement as completed by the business are considered to be completed by an authorised representative.
“authorised representative” refers to any employee, director or consultant for the business that has the relevant authority, knowledge and capability to execute the task.
“the website” means the website listed at www.kvn.net.au
“you” means any customer, subscriber or user of the services connected to the business for any other purpose.
“subscribers” means any person who has either a) contacted the business via telephone, email, social media or website; b) subscribed to the business via website, email or lightbox; or c) requested a quotation either in person, via email, telephone or through the website.
“GST” refers to Goods & Services Tax
“ATO” refers to Australian Taxation Office
“customers” means any person, company or organisation that has either a) requested a quotation in person, via email, telephone or through the website, or b) made a purchase or placed an order whether in person, via email, telephone, through the website, or through another medium.
“current customers” refers to any person who has an active quotation or unfulfilled order with the business.
“submissions” means any questions, comments, suggestions, ideas, feedback, or other information regarding the website provided by you to us.
“website content” or “the content” means all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on our website
We reserve the right to refuse service to anyone for any reason at any time.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
Supplemental terms and conditions or documents that may be posted on the website from time to time are hereby expressly incorporated herein by reference.
We reserve the right, in our sole discretion, to make changes or modifications to these Terms & Conditions at any time and for any reason. We will alert you about any changes by updating the “last updated” date of these terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these terms to stay informed of updates.
Notice will be given to all current customers if a change occurs. Any outstanding orders and transactions will be subject to the defunct terms and conditions. Quotes however, will be subject to the new terms and conditions.
You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised terms by your continued use of the website after the date such revised Terms & Conditions are posted.
The information provided on the website or in any other medium supported by or connected to the business is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the website or other mediums from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to use the website. If you are a minor, you must have your parent or guardian read and agree to these terms prior to you using the website.
Orders & Quotes
No quotation by Kiamba Valley Nursery shall constitute an offer. Quotes remain open at the business’ discretion, and can be rescinded at any time. They will generally indicate an expiry date, a thirty (30) day period from the date of quotation. Quotes are also subject to product availability as products will not be reserved until an order is placed, and are only accurate at the time of quotation. Customers will be given notice if prices are changed, as this usually constitutes a revocation.
All orders placed with the business shall only be accepted subject to these Terms and Conditions. Orders are not confirmed until a receipt has been received by the customer. If an error arises, the business retains the right to alter, if not cancel any order placed. The customer can request to not go through with the order if this occurs. If such an action must be taken, the business will refund the discrepancy in accordance with the ACL.
No advertising or marketing releases constitutes an offer, or a quotation. The customer must contact the business and order or request a quote.
If the customer purchases an item at the point of sale/order, whether in person or online, the payment will not be treated as confirmed until the business receives confirmation from the relevant payment merchant. If the customer purchases on invoice, payments made will only be treated as confirmed when the business receives confirmation from the relevant payment merchant.
Once ordered, the customer has thirty (30) days to collect the products. This can be extended if requested, but the business has no obligation to accept. If the customer fails to pick up the products and cannot be communicated with, the order will be cancelled, and the customer will be refunded in full, minus a 5% watering and maintenance fee (of the final GST inclusive sale price).
If a customer requires an altering of any order, the business will attempt to fulfil the change, however has no obligation to do so.
Prices & Delivery
All prices, whether listed on the website, on other sales channels, in marketing releases or in newsletters are in Australian Dollars (AUD, $). Any quotations made via phone, email or in person are also indicative of Australian Dollars.
The prices listed on the website and on other sales channels, are only valid for the day on which they are viewed. The business reserves the right to make changes to prices at any time due to market fluctuation and supply limitations. Prices listed in marketing releases and in newsletters are valid only for the time period specified. If the prices do not display an expiry date or valid period, it is to be assumed that the prices are only valid for the week from the date that they were published.
Goods and Services Tax shall be paid by the Customer to the business on every purchase made. All prices include GST unless explicitly specified otherwise. The business is registered for GST with the Australian Taxation Office.
Prices do not include delivery. Quotations and orders, unless specified otherwise, will not contain a delivery clause and delivery will not be included. Customers can request a quote for delivery if the destination is within twenty five (25) kilometres of the nursery. This will be quoted on an order-by-order basis. The business is not liable for any damage or loss while in transit.
Deliveries will be quoted at the business’ discretion. The business will attempt to send out deliveries within three (3) business days of the order being received, however this could extend up to fourteen (14) days. The customer must disclose a time and destination for delivery before it can be processed. Unless expressly stated, delivery quotes contain GST.
The availability of products is not guaranteed by the business. The business will strive to keep product availability up to date on the website and sales channels, but is not obligated to do so. If an error arises and a product ordered is not available, the business will attempt to fix the issue, but if impractical, the business will offer a refund. The business does not implement back-orders.
The availability of products advertised is not guaranteed by the business either. Products are sold on a first come first served basis.
Due to the nature of the products sold, if a line becomes unavailable, the business cannot guarantee a time for which it may come available again. Thus, the business does not allow for purchase orders in advance. However, the customer may request for a line to be sold in the future, but the business is not obligated to comply.
Payments & Terms
The business accepts all major credit and debit cards online and in person (MasterCard, Visa, and American Express) and EFT/Bank transfer payments upon request. The business also accepts Apple Pay, Samsung Pay and Google Pay, should it be applied by the customer. However, the business is not obligated to provide all of the methods mentioned here, and can prescribe methods or make a method required for a customer, should the business not be able to provide a desired method.
The business also offers for customers to pay on invoice. Should the customer decide to order on invoice, the order will be placed and reserved and an invoice shall be sent to the customer. The terms for repayment is net owed value is due within seven (7) days of purchase. Discounts may be offered for large orders, but at the business’ discretion. Repayments can be made either in person or by making payments online through the links supplied in the invoice. If the customer loses the invoice, the balance can be requested to be sent out again by the business.
Note that if the customer requires delivery and is paying on account, the delivery will be payable by the customer as a deposit before the order can be fulfilled
Returns, Refunds, Damages & Defects
If availability changes or unexpected circumstances prevent the sale of products ordered, the customer will be refunded in full. If delivery has been purchased, it will also be refunded in accordance with the ACL.
If the business suggests an alternative for products and the customer declines, the order will be refunded as above in section 7.1. However, if an order has been requested to be altered by the customer, and the business cannot do so, the rule of section 7.3 will apply.
The business will process any refund requested within seven (7) days of purchasing if the customer changes their mind before pickup or delivery. If a refund is requested after seven (7) days, in which the customer has not picked the product up nor had the product delivered, a 5% watering and maintenance fee will be deducted of the final GST-inclusive sale price.
If a customer requests a refund after delivery has been requested and paid for, they forfeit the right to a refund on the delivery cost.
Kiamba Valley Nursery upholds a growth and maturing process that ensures that the products are well maintained and cared for prior to sale. Due to the volatile nature of the products, there is no damages guarantee applicable to the products, and the customer agrees to having ultimate responsibility for the maintenance of the product after it leaves the nursery.
Should the product develop a defect that was procured before it was picked up or taken for delivery, and there is sufficient evidence of the fact, the business will offer a full refund in accordance with the ACL (although delivery cannot be refunded). However, the business does not offer refunds on any defect or damage that occurs after it leaves the nursery. The business strongly advises that all customers inspect their products before they pick them up or before the delivery begins.
Advice or information given by the business in assistance to a customer regarding product maintenance (or any other product related topic) is provided in good faith, however we make no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability or completeness of any information. The business is not liable for any damages caused by information or assistance given.
Intellectual Property Rights
Unless otherwise indicated, the website is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the website and the trademarks, service marks, and logos contained therein are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of Australia, international copyright laws, and international conventions.
Provided that you are eligible to use the website, you are granted a limited license to access and use the website and to download or print a copy of any portion of the content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the website and its content.
By using the website, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these terms & conditions; (4) you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the website; (5) you will not access the website through automated or non-human means, whether through a bot, script, or otherwise; (6) you will not use the website for any illegal or unauthorised purpose; and (7) your use of the website will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the website (or any portion thereof).
You may be required to register with the website. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
You may not access or use the website for any purpose other than that for which we make the website available. The website may not be used in connection with any commercial endeavours except those that are specifically endorsed or approved by us.
As a user of the website, you agree not to:
Systematically retrieve data or other content from the website to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
Circumvent, disable, or otherwise interfere with security-related features of the website, including features that prevent or restrict the use or copying of any content or enforce limitations on the use of the website and/or the content contained therein.
Disparage, tarnish, or otherwise harm, in our opinion, us and/or the website.
Use any information obtained from the website in order to harass, abuse, or harm another person.
Make improper use of our support services or submit false reports of abuse or misconduct.
Use the website in a manner inconsistent with any applicable laws or regulations.
Use the website to advertise or offer to sell goods and services.
Engage in unauthorised framing of or linking to the website.
Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the website or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the website.
Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
Delete the copyright or other proprietary rights notice from any content.
Attempt to impersonate another user or person or use the username of another user.
Sell or otherwise transfer your profile.
Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
Interfere with, disrupt, or create an undue burden on the website or the networks or services connected to the website.
Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the website to you.
Attempt to bypass any measures of the website designed to prevent or restrict access to the website, or any portion of the website.
Decipher, recompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the website.
Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the website, or using or launching any unauthorised script or other software.
Use a buying agent or purchasing agent to make purchases on the website.
Make any unauthorised use of the website, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretences.
Use the website as part of any effort to compete with us or otherwise use the website and/or the content for any revenue-generating endeavour or commercial enterprise.
We may provide you areas on the website to leave reviews or ratings. When posting a review, you must comply with the following criteria: (1) you should have firsthand experience with the person/entity being reviewed; (2) your reviews should not contain offensive profanity, or abusive, racist, offensive, or hate language; (3) your reviews should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (4) your reviews should not contain references to illegal activity; (5) you should not be affiliated with competitors if posting negative reviews; (6) you should not make any conclusions as to the legality of conduct; (7) you may not post any false or misleading statements; and (8) you may not organise a campaign encouraging others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen reviews or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review.
By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sub-licensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content relating to reviews.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the website provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these submissions for any lawful purpose, commercial or otherwise, without acknowledgement or compensation to you.
You hereby waive all moral rights to any such submissions, and you hereby warrant that any such submissions are original with you or that you have the right to submit such submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your submissions.
Third Party Websites & Content
The website may contain (or you may be sent via the website) links to other websites as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties. Such third party websites and third party content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any third party websites accessed through the website or any third party content posted on, available through, or installed from the website, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the third party websites or the third party content. Inclusion of, linking to, or permitting the use or installation of any third party websites or any third party content does not imply approval or endorsement thereof by us.
If you decide to leave the website and access the third party websites or to use or install any third party content, you do so at your own risk, and you should be aware these terms no longer govern your activity. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the website or relating to any applications you use or install from the website.
Any purchases you make through third party websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on third party websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any third party content or any contact with third party websites.
We reserve the right, but not the obligation, to: (1) monitor the website for violations of these terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these terms & conditions, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the website or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the website in a manner designed to protect our rights and property and to facilitate the proper functioning of the website and its contents.
We respect the intellectual property rights of others. If you believe that any material available on or through the website infringes upon any copyright you own or control, please immediately notify us using the contact information provided below. A copy of your notification will be sent to the person who posted or stored the material addressed in the notification. Please be advised that pursuant to applicable law you may be held liable for damages if you make material misrepresentations in a notification. Thus, if you are not sure that material located on or linked to by the website infringes your copyright, you should consider first contacting an attorney.
Term & Termination
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Modifications and Interruptions
We reserve the right to change, modify, or remove the contents of the website at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our website. We also reserve the right to modify or discontinue all or part of the website without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the website.
We cannot guarantee the website will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the website, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the website at any time or for any reason without notice.
These terms shall be governed by and defined following the laws of Australia. Kiamba Valley Nursery and yourself irrevocably consent that the courts of Australia shall have exclusive jurisdiction to resolve any dispute which may arise in connection with these terms.
There may be information on the website that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the website at any time, without prior notice.
The website is provided on an “as-is” and “as-available” basis. You agree that your use of the website and our services will be at your sole risk. To the fullest extent permitted by law, we disclaim all warranties, express or implied, in connection with the website and your use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
We make no warranties or representations about the accuracy or completeness of the website’s content or the content of any websites linked to the website and we will assume no liability or responsibility for any (1) errors, mistakes, or inaccuracies of content and materials, (2) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the website, (3) any unauthorised access to or use of our secure servers and/or any and all personal information and/or financial information stored therein, (4) any interruption or cessation of transmission to or from the website, (5) any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the website by any third party, and/or (6) any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the website.
We do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the website, any hyperlinked website, or any website or mobile application featured in any banner or other advertising, and we will not be a party to or in any way be responsible for monitoring any transaction between you and any third party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgement and exercise caution where appropriate.
Limitations of Liability
In no event will we or our directors, employees, or agents be liable to you or any third party for any direct, indirect, consequential, exemplary, incidental, special, or punitive damages, including lost profit, lost revenue, loss of data, or other damages arising from your use of the website, even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, our liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to us during the six (6) month period prior to any cause of action arising. Certain laws and international laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers or limitations may not apply to you, and you may have additional rights.
Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defence of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
We will maintain certain data that you transmit to the website for the purpose of managing the performance of the website, as well as data relating to your use of the website. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the website. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
Electronic Communications, Transactions & Signatures
Visiting the website, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the website, satisfy any legal requirement that such communication be in writing. You hereby agree to the use of electronic signatures, contracts, orders, and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by us or via the website. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
These Terms & Conditions and any policies or operating rules posted by us on the website or in respect to the website constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms & Conditions shall not operate as a waiver of such right or provision. These terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control.
If any provision or part of a provision of these Terms & Conditions is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms & Conditions and does not affect the validity and enforceability of any remaining provisions.
There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these terms or use of the website.
You agree that these Terms & Conditions will not be construed against us by virtue of having drafted them. You hereby waive any and all defences you may have based on the electronic form of these terms and the lack of signing by the parties hereto to execute these Terms & Conditions
In order to resolve a complaint regarding the website or to receive further information regarding use of the website, please contact us at:
Kiamba Valley Nursery
118 Kiamba Road
Kiamba, Queensland 4560
Phone: 0410 626 750
The current version of these Terms & Conditions can be viewed at www.kvn.net.au/terms.
This agreement was first valid on the 4th May 2020
These Terms & Conditions were last amended on the 28th April 2020.