Terms of Use

WEBSITE TERMS AND CONDITIONS

1. About the Website

(a) Welcome to www.agardentellsastory.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‘).

(b) The Website is operated by Kathryn Hayes. Access to and use of the Website, or any of its associated Products or Services, is provided by Kathryn Hayes. 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.

(c) Kathryn Hayes reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Kathryn Hayes 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

(a) You accept the Terms by remaining on the Website.   You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Kathryn Hayes in the user interface.

 

3. Subscription to use the Services

(a)  In order to access the Services, you must first purchase a subscription through the Website (the ‘Subscription‘) and pay the applicable fee for the selected Subscription (the ‘Subscription Fee‘).

(b) In purchasing the Subscription, you acknowledge and agree that it is your responsibility to ensure that the Subscription you elect to purchase is suitable for your use.

(c) Once you have purchased the Subscription, you will then be required to register for an account through the Website before you can access the Services (the ‘Account‘).

(d) As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including but not limited to, the following:

(i) Email address;

(ii) Preferred username;

(iii) Mailing address;

(iv) Telephone number;

(v)  Password

(e)  You warrant that any information you give to Kathryn Hayes in the course of completing the registration process will always be accurate, correct and up to date.

(f)  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 Services from the time you have completed the registration process until the subscription period expires (the ‘Subscription Period‘).

(g)  You may not use the Services and may not accept the Terms if:

(i)  you are not of legal age to form a binding contract with Kathryn Hayes; or

(ii)  you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

 

4. Registration to use the Purchase Service

(a) In order 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 but not limited to, the following:

(i) Email address;

(ii)  Preferred username;

(iii) Mailing address;

(iv)  Telephone number;

(v)  Password

(b) You warrant that any information you give to Kathryn Hayes in the course of completing the registration process will always be accurate, correct and up to date.

(c) 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.

(d) You may not use the Purchase Services and may not accept the Terms if:

(i) you are not of legal age to form a binding contract with Kathryn Hayes; or

(ii) 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.

 

5. Your obligations as a Member

(a) As a Member, you agree to comply with the following: You will use the Purchase Services only for purposes that are permitted by:

(i) the Terms;

(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;

(iii) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Purchase Services;

(iv) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Kathryn Hayes of any unauthorised use of your password or email address or any breach of security of which you have become aware;

(v)  access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Kathryn Hayes providing the Purchase Services;

(vi)  you will not use the Purchase Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;

(vii) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Purchase Services. Appropriate legal action will be taken by Kathryn Hayes for any illegal or unauthorised use of the Website; and

(viii) you acknowledge and agree that any automated use of the Website or it Purchase Services is prohibited.

 

6. Purchase of Products and Returns Policy

(a) In using the Purchase Services to purchase the Product through the Website, you will agree to the payment of the purchase price listed on the Website for the Product (the ‘Purchase Price‘).

(b) Payment of the Purchase Price may be made through Shopify, Paypal, Amazon or other payment providers  (the ‘Payment Gateway Provider‘). In using the Purchase Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Providers.

(c) Following payment of the Purchase Price being confirmed by Kathryn Hayes, you will be issued with a receipt to confirm that the payment has been received and Kathryn Hayes may record your purchase details for future use.

(d) Kathryn Hayes may, at their sole discretion, provide a refund on the return of the Products within 5 days where the Product packaging is unopened and remains in a saleable condition. You acknowledge and agree that you are liable for any postage, handling, shipping costs and expenses associated with any refund pursuant to this clause.

7. Payment for the Service and Returns Policy

(a) Where the option is given to you, you may make payment of the Subscription Fee by way of:

(i) Electronic funds transfer (‘EFT ‘) into our nominated bank account;

(ii) Credit Card Payment (‘Credit Card‘);

(iii) PayPal (‘PayPal‘);

(iv) Cash (‘Cash‘);

(v) Cheque (‘Cheque‘).

(vi) Third Party Payment Providers

 

(b) All payments made in the course of your use of the Services are made using Pay Pal or other Third Party Options . In using the Website, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the  Pay Pal or other third party payment gateway terms and conditions which are available on their website.

(c) You acknowledge and agree that where a request for the payment of the Subscription Fee is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Subscription Fee.

(d) You agree and acknowledge that Kathryn Hayes can vary the Subscription Fee at any time and that the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period.

(e) Kathryn Hayes will only provide you with a refund of the Subscription Fee in the event they are unable to continue to provide the Services or if the manager of Kathryn Hayes makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances. Where this occurs, the refund will be in the proportional amount of the Subscription Fee that remains unused by the Member (the ‘Refund‘)

 

8. Warranty

(a) Kathryn Hayes’s Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product and compensation for any other reasonably foreseeable loss or damage. 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 ‘).

(b)  You may make a claim under this clause (the ‘Warranty Claim‘) for material defects and workmanship in the Products within 5 days from the date of purchase (the ‘Warranty Period‘).

(c) In order to make a Warranty Claim during the Warranty Period, you must provide proof of purchase to Kathryn Hayes showing the date of purchase of the Products, provide a description of the Products and the price paid for the Products by sending written notice to Kathryn Hayes at PO Box 5119, Bentleigh East, Victoria 3165 or by email at info@agardentellsastory.com.au.

(d) Where the Warranty Claim is accepted then Kathryn Hayes 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.

(e) The Warranty shall be the sole and exclusive warranty granted by Kathryn Hayes 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.

(f)  All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.

(g) 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.

 9. Delivery

(a) You acknowledge that the Purchase Services offered by Kathryn Hayes integrate delivery (the ‘ Delivery Services‘) through the use of third party delivery companies (the ‘ Delivery Service Providers‘).

(b)  In providing the Purchase Services, Kathryn Hayes may provide you with a variety of delivery and insurance options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that Kathryn Hayes is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.

(c)  In the event that an item is lost or damaged in the course of the Delivery Services, Kathryn Hayes asks that you:

contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and

contact us by sending an email to info@agardentellsastory.com.au outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed from the Purchase Services.

 

10. Copyright and Intellectual Property

(a) The Website, the Purchase Services and all of the related products of Kathryn Hayes 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 Kathryn Hayes or its contributors.

(b) Kathryn Hayes retains all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer to you:

(i) the business name, trading name, domain name, trade mark, industrial design, patent, registered design or  copyright of Kathryn Hayes; or

(ii) the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or

(iii) 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).

(c) You may not, without the prior written permission of Kathryn Hayes and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.

(d) All trade marks, service marks and trade names are owned, registered and/or licensed by Kathryn Hayes, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:

(i) use the Website pursuant to the Terms;

(ii)  copy and store the Website and the material contained in the Website in your device’s cache memory; and

(iii) print pages from the Website for your own personal and non-commercial use.

Kathryn Hayes does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Kathryn Hayes.

 

11.  Privacy

(a) Kathryn Hayes takes your privacy seriously and any information provided through your use of the Website and/or the Purchase Services are subject to Kathryn Hayes’s Privacy Policy, which is available on the Website.

 

12.  General Disclaimer

(a)  You acknowledge that Kathryn Hayes does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.

(b)  Kathryn Hayes 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.

(c) 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.

(d) Subject to this clause, and to the extent permitted by law:

(i) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and

(ii) Kathryn Hayes 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 an 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.

(e)  Use of the Website, the Purchase Services, and any of the products of Kathryn Hayes (including the Delivery Services), is at your own risk. Everything on the Website, the Purchase Services, and the Products of Kathryn Hayes, are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Kathryn Hayes including any third party where the Delivery Services are made available to you) make any express or implied representation or warranty about its Content or any products or Purchase Services (including the products or Purchase Services of Kathryn Hayes) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

(i) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;

(ii)  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);

(iii)  costs incurred as a result of you using the Website, the Purchase Services or any of the Products;

(iv) the Content or operation in respect to links which are provided for the User’s convenience;

(v) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

 

13. Limitation of liability

(a) Kathryn Hayes’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 Kathryn Hayes is the resupply of information or Purchase Services to you.

(b) You expressly understand and agree that Kathryn Hayes, 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.

(c) Kathryn Hayes is not responsible or liable in any manner for any site content (including the Content and Third Party Content) posted on the Website or in connection with the Purchase Services, whether posted or caused by users of the website of Kathryn Hayes, by third parties or by any of the Purchase Services offered by Kathryn Hayes.

(d) You acknowledge that Kathryn Hayes does not provide the Delivery Services to you and you agree that Kathryn Hayes 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.

14.Termination of Contract of Subscription

(a) The Terms will continue to apply until terminated by either you or by Kathryn Hayes as set out below.

(b) If you want to terminate the Terms, you may do so by:

i. not renewing the Subscription prior to the end of the Subscription Period;

ii. providing Kathryn Hayes with 5 days’ notice of your intention to terminate; and

iii. closing your accounts for all of the services which you use, where Kathryn Hayes has made this option available to you.

Your notice should be sent, in writing, to Kathryn Hayes via the ‘Contact Us’ link on our homepage.

(c)  Kathryn Hayes may at any time, terminate the Terms with you if:

i. you do not renew the Subscription at the end of the Subscription Period;

ii. you have breached any provision of the Terms or intend to breach any provision;

iii. Kathryn Hayes is required to do so by law;

iv. the provision of the Services to you by Kathryn Hayes is, in the opinion of Kathryn Hayes, no longer commercially viable.

Your notice should be sent, in writing, to Kathryn Hayes via the ‘Contact Us’ link on our homepage

(d)    Subject to local applicable laws, Kathryn Hayes reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Kathryn Hayes’s name or reputation or violates the rights of those of another party

15. Termination of Contract of purchasing product

 (a) The Terms will continue to apply until terminated by either you or by Kathryn Hayes as set out below.

(b) If you want to terminate the Terms, you may do so by:

(i)  notifying Kathryn Hayes at any time; and

(ii) closing your accounts for all of the Purchase Services which you use, where Kathryn Hayes has made this option available to you.

(c) Your notice should be sent, in writing, to Kathryn Hayes via the ‘Contact Us’ link on our homepage.

(d) Kathryn Hayes may at any time, terminate the Terms with you if:

(i) you have breached any provision of the Terms or intend to breach any provision;

(ii) Kathryn Hayes is required to do so by law;

(iii) the partner with whom Kathryn Hayes offered the Purchase Services to you has terminated its relationship with Kathryn Hayes or ceased to offer the Purchase Services to you;

(iv)  Kathryn Hayes is transitioning to no longer providing the Purchase Services to Users in the country in which you are resident or from which you use the service; or

the provision of the Purchase Services to you by Kathryn Hayes is, in the opinion of Kathryn Hayes, no longer commercially viable.

(e) Subject to local applicable laws, Kathryn Hayes reserves the right to discontinue or cancel your membership to the Website at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Purchase Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Kathryn Hayes’s name or reputation or violates the rights of those of another party.

(f) When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Kathryn Hayes have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

16. Indemnity

 (a) You agree to indemnify Kathryn Hayes, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:

(i) 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;

(ii) 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.

17. Dispute Resolution

 (a) 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).

(b) 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.

(c) Resolution:

On receipt of that notice (‘Notice‘) by that other party, the parties to the Terms (‘Parties ‘) must:

(i) Within 5 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;

(ii) If for any reason whatsoever, 5 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 TBC or his or her nominee;

(iii) 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 pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

(iv) The mediation will be held in Melbourne, Victoria, Australia.

(d) Confidential:

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

(e) Termination of Mediation:

If TBC have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

18. Venue and Jurisdiction

The Purchase Services offered by Kathryn Hayes 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 Victoria, Australia.

19. Governing law

The Terms are governed by the laws of Victoria, 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 Victoria 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.

20. Independent Legal Advice

(a) Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having 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.

 

21. Severance

(a)   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.

22. Links and Third-Party Websites

(a)  This Site may contain links to other websites and resources provided by third parties. These links are provided for your convenience only. We have no control over the content of third-party websites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites or resources linked to this Site, you do so entirely at your own risk and subject to the terms and conditions for such websites. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused in connection with your use or reliance on any such content, information, goods, or services available on or through any such third-party website or resource.

 

23. Photography Prints

(a) Images are printed on Photography Lustre Paper unless otherwise stated. Photography prints are fragile and should be handled with care.    This product is subject to many variables that can impact  display quality and product condition.   This includes but is not limited to development process, exposure, light (both natural and artificial), heat, dust, moisture, human impact, display choices, water, misuse, handling, storage, intentional and unintentional damage. You acknowledge and agree that all care and responsibility for the image belongs with you and that photography prints are offered and priced as a short term display option only.

24.  Digital Downloads

(a) Digital Wallpaper images are sized at 16:9 ratio (540×960 at 72 dpi).  You acknowledge and agree that it is your responsibility to ensure this is the right size for your mobile phone wallpaper and display requirements prior to purchase.  Digital downloads are for the exclusive use as mobile phone wallpapers.  They may not be shared, copied, printed, or used in any way that infringes on copyright. There is a one time only download available per purchase.

(b) Digital downloads (unless specified otherwise) are saved in jpg format and sRGB colour profile.  They are made available electronically and not as a physical product.  Digital Images are printable to the size they are provided, i.e. a 5×7 digital image is printable to 5×7 (or smaller).  Digital images are made available for personal use only.  They may not be used for commercial or other purposes. Images are not transferable for the use by other people or parties.  Copyright remains with the photographer. You are responsible for ensuring the images are suitable for your purpose including but not limited to printing and displaying as there is no refund or exchange on digital download products.  Due to printing and technology differences, the digital images when printed or displayed may differ to what appears on the website.  This will be determined or impacted by your choices for display and printing options.