Australian Retail Innovators Awards Finalist 2022
1. About the Website
1.1. Welcome to www.aquagardening.com.au (the 'Website'). The Website provides you with an opportunity to browse and purchase various products that have been listed for sale through the Website (the 'Products'). The Website provides this service by way of granting you access to the content on the Website (the 'Purchase Services').
1.2. The Website is operated by Aqua Evolutions Pty Ltd (ABN 69 167 108 367) trading as Aqua Gardening. Access to and use of the Website, or any of its associated Products or Services, is provided by Aqua Gardening . Please read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
1.3. Aqua Gardening reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Aqua Gardening updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2. Acceptance of the Terms
3. Registration to use the Purchase Services
3.1. To access the Purchase Services, you must first register as a user of the Website. As part of the registration process, or as part of your continued use of the Purchase Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(a) email address;
(b) mailing address; and
(c) telephone number.
3.2. You warrant that any information you give to Aqua Gardening in the course of completing the registration process will always be accurate, correct and up to date.
3.3. Once you have completed the registration process, you will be a registered member of the Website ('Member') and agree to be bound by the Terms. As a Member, you will be granted immediate access to the Purchase Services and be automatically added to Growing with Benefits (‘Reward Program’).
3.4. You may check out as a guest and will only receive transactional emails. We will maintain your details for the purposes of purchase history and warranty claims
3.5. You may not use the Purchase Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Aqua Gardening; or
(b) you are a person barred from receiving the Purchase Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Purchase Services.
4. Your obligations as a Member
5. Purchase of Products and Returns Policy
(b) custom made items, for example, NFT channels and aluminium frames cut to specification;
(c) Special orders, for products not regularly stocked this item, are marked as ‘Special Order’ in the availability description;
(d) Any items specifically cut to size at your request, for example, items we cut per liner meter as pond liners, fabrics, flower support mesh and more;
(e) Commercial quantities are non-refundable; and
(f) Clearance items are non-refundable.
6. Warranty
6.1. Aqua Gardening's Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure (the 'Warranty').
6.2. You may make a claim under this clause (the 'Warranty Claim') for material defects and workmanship in the Products within the manufacturer's warranty. Please refer to the Information tab on each product for the warranty details. In addition, our products come with guarantees per Australian Consumer Law from the date of purchase (the 'Warranty Period').
6.3. To make a Warranty Claim during the Warranty Period, you must provide proof of purchase to Aqua Gardening showing the date of purchase of the Products, provide a description of the Products and the price paid for the Products by contacting us at https://www.aquagardening.com.au/form/contact-support/
6.4. Where the Warranty Claim is accepted then Aqua Gardening will, at its sole discretion, either repair or replace any defective Products or part thereof with a new or remanufactured equivalent during the Warranty Period at no charge to you for parts or labour. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.
6.5. The Warranty shall be the sole and exclusive warranty granted by Aqua Gardening and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.
6.6. All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.
6.7. The Warranty does not apply to any appearance of the supplied Products nor to the additional excluded items set forth below nor to any supplied Products where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.
6.8. You may make a claim for foreseeable loss or damage against the manufacturer directly. Aqua Gardening may provide you with assistance in this regard.
7. Delivery
7.1. You acknowledge that the Purchase Services offered by Aqua Gardening integrate delivery (the 'Delivery Services') through the use of third party delivery companies (the 'Delivery Service Providers').
7.2. In providing the Products and Purchase Services, Aqua Gardening will automatically select a courier dependent on the time and cost of the Delivery Service. You acknowledge and agree that Aqua Gardening is not the provider of these delivery and insurance options and merely engages the Delivery Service Providers for providing the Delivery Services.
7.3. If an item is lost or damaged in the course of the Delivery Services, Aqua Gardening asks that you:
7.4. contact Aqua Gardening within 24 hours of receiving the goods to report the damage and provide photos of the damaged box and damaged Product.
(a) contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and
(b) contact us at https://www.aquagardening.com.au/form/contact-support/ in what way the Products were damaged in transit so we can determine if the Delivery Service Provider should be removed from the Purchase Services.
8. Copyright and Intellectual Property
8.1. The Website, the Purchase Services and all of the related products of Aqua Gardening are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the 'Content') are owned or controlled for these purposes and are reserved by Aqua Gardening or its contributors.
8.2. Aqua Gardening retains all rights, title and interest in and to the Website and all related content. Nothing you do on or concerning the Website will transfer to you:
(a) the business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright of Aqua Gardening ; or
(b) the right to use or exploit a business name, trading name, domain name, trademark or industrial design; or
(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).
9. Privacy
Aqua Gardening takes your privacy seriously and any information provided through your use of the Website and/or the Purchase Services are subject to Aqua Gardening's Privacy Policy, which is available on the Website.
10. General Disclaimer
10.1. You acknowledge that Aqua Gardening does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.
10.2. Aqua Gardening will not honour or credit any discounts that are not displayed on the Website.
10.3. Aqua Gardening will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website. Special orders and backorder items are subject to availability from the supplier.
10.4. Aqua Gardening does not make any guarantees on the stock levels of products. If the information on the Website is incorrect , Aqua Gardening will contact you and offer an alternative or a refund.
10.5. Aqua Gardening will cancel unpaid orders 2 days after the payment falls due.
10.6. Aqua Gardening will cancel click and collect orders if the items are not collected within 30 days without notice and will charge an additional 20% re-stocking or holding fee should it be collected more than 30 days after the order was placed.
10.7. Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
10.8. Subject to this clause, and the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
(b) Aqua Gardening will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet any applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Purchase Services or these Terms (including as a result of not being able to use the Purchase Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
(b) the accuracy, suitability or currency of any information on the Website, the Purchase Service, or any of its Content related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Purchase Services or any of the Products;
(d) the Content or operation in respect to links which are provided for the User's convenience;
(e) any failure to complete a transaction or any loss arising from e-commerce transacted on the Website; or
(f) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
11. Limitation of Liability
11.1. Aqua Gardening's total liability arising out of or in connection with the Purchase Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then the total liability of Aqua Gardening is the resupply of the information or Purchase Services to you.
11.2. You expressly understand and agree that Aqua Gardening, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however, caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
11.3. Aqua Gardening is not responsible or liable in any manner for any site content (including the Content and Third Party Content) posted on the Website that is not authored by Aqua Gardening in connection with the Purchase Services, whether posted or caused by users of the Website of Aqua Gardening , by third parties in respect of any of the Products or Purchase Services offered by Aqua Gardening.
11.4. You acknowledge that Aqua Gardening does not provide the Delivery Services to you and you agree that Aqua Gardening will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.
11.5. If incorrect content or advice has been provided, Aqua Gardening will take reasonable steps to ensure the issue is resolved with you. Aqua Gardening is not responsible or liable for any losses incurred by our recommendations, and will assess in its own sole discretion whether a refund or replacement ought to be issued by contacting us at https://www.aquagardening.com.au/form/contact-support/
12. Termination of Contract
12.1. The Terms will continue to apply until terminated by either you or by Aqua Gardening as set out below.
12.2. If you want to terminate the Terms, you may do so by:
(a) notifying Aqua Gardening at any time; and closing your accounts for all of the Purchase Services which you use, where Aqua Gardening has made this option available to you.
(b) Your notice should be sent, in writing, to Aqua Gardening via the 'Contact Us' link on our homepage.
13. Indemnity
13.1. You agree to indemnify Aqua Gardening, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any Content you post through the Website;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so and any breach by you or your agents of these Terms; and/or any breach of the Terms.
14. Dispute Resolution
14.1. Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought.
14.2. Notice:
A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
14.3. Resolution:
On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:
(a) Within 30 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 40 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association (Phone: 1300 633 428) or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their costs associated with the mediation;
(d) The mediation will be held in Brisbane, Australia.
15. Venue and Jurisdiction
The Purchase Services offered by Aqua Gardening is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.
16. Governing Law
The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
17. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties have taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
18. Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
Aqua Gardening Australia is committed to protecting your personal information in accordance with the Australian Privacy Principles (APPs) under the Privacy Act and other applicable legislation, such as the Spam Act, the Do Not Call Register Act, and health privacy laws. This Privacy Policy is available on the Aqua Gardening Australia website at www.aquagardening.com.au, or you can request a copy by contacting our office.
The personal information we collect about you depends on your interactions with us. Personal Information includes any data about an individual who is reasonably identifiable. For example, if you:
Collection of Personal Information through Websites and Apps
Information is automatically collected through your use of the Aqua Gardening website and affiliated sites via cookies. Cookies are small text files that websites or apps may place on your device. They are typically used to recognize return visitors, remember user preferences, and track usage behavior. For example, when you visit our website, we may use cookies to record your server address, date and time of visit, pages viewed, any documents downloaded, and the type of browser and operating system you’re using. This information is used for statistical analysis and to improve the functionality and usability of our website.
Sensitive Information
Aqua Gardening only collects sensitive information (e.g., health information) where it is reasonably necessary for our functions or activities and only with your consent or when required or authorised by law.
Main Purposes
The primary purposes for which we collect, hold, use, and disclose personal information are:
We may also use personal information for other purposes as explained at the time of collection or as required or authorised by law, with your consent.
i. Direct Marketing and Opting Out
By providing your address, email, and telephone number to Aqua Gardening, you consent to us contacting you for the aforementioned purposes. We may send you communications via mail, email, social media, SMS, MMS, or telephone. You can opt out of receiving these communications by:
ii. Email and Mobile Communication
If you provide an email address or phone number, you consent to receiving electronic communications such as notices or reminders via that address or number. We recommend providing your personal email or phone number instead of one that is accessible to colleagues.
We may share your personal information with third parties when necessary for the purposes outlined above. These may include:
We may instruct these third parties to contact you directly for specific purposes and pass on information collected from you while providing the relevant products or services.
We may disclose your personal information to recipients overseas, such as in the United States or other jurisdictions, depending on the services provided (e.g., data storage via cloud services, hosting of our customer relationship management systems, or managing delivery address information for online orders).
General
We hold personal information in various forms, including printed documents, electronic databases, and email contact lists. Printed documents may reside at our head office or be archived in secure offsite facilities. We take reasonable steps to:
You can help us maintain accurate records by informing us of any changes to your details.
i. Security
Our security measures include website protection, restricted access to our computer systems, and controlled access to our facilities. While we endeavour to secure all personal information, we cannot guarantee the security of information transmitted over the internet—it is at your own risk. To further protect your information, please keep your account details confidential and notify us immediately if you suspect a security breach.
i. General
If you wish to access or correct any personal information we hold about you, please contact our Privacy Officer. We may require verification of your identity before processing your request to ensure the proper protection of your information.
ii. Access
We usually provide access to your personal information within 30 days, subject to legal exceptions. We will accommodate your preferred format (e.g., photocopies or direct viewing) if it is reasonable and practicable. A fee may be charged to cover our costs of locating and providing the information.
iii. Correction
If you request corrections to your personal information or we determine that your information is inaccurate, outdated, incomplete, irrelevant, or misleading, we will take reasonable steps to correct it. If the information has already been disclosed to a third party, we may, upon your request, notify them of the correction, unless this is impractical or unlawful.
If you have any questions about how Aqua Gardening manages your personal information, or if you wish to lodge a complaint regarding a potential breach of the Privacy Act, please contact our Privacy Officer using the details below:
We will handle all complaints fairly and promptly. Typically, we aim to resolve complaints within 30 days. Should an investigation require additional time, we will inform you of an expected timeframe.
Aqua Gardening may update this Privacy Policy from time to time. The latest version will always be posted on our website, and you can obtain a copy by contacting our Customer Service Centre.