WHO ARE WE

Garden Clinic Memberships and content subscriptions are supplied by The Garden Clinic(ABN 38 001 610 993). Our business address is 83 Beecroft Rd, Beecroft NSW 2119 Australia.

In these terms and conditions, where we refer to “us”, “we”or “our”, we are referring to the Garden Clinic or an employee of the Garden Clinic.

SUBSCRIPTION TERMS

The Garden Clinic website is owned and operated by The Garden Clinic.

These terms govern your recurring membership subscription to any product available through the Garden Clinic or any product purchased from the Garden Clinic online “shop”. These terms, together with the Conditions of Use, form part of the general terms and conditions governing the material on, use of and access to the Garden Clinic website. Garden Clinic may change these Membership Subscription Terms from time to time. If we do, any amendments will be posted on the Garden Clinic website. If you object to any changes to these Membership Subscription Terms, your only remedy is to cancel your subscription before 14 days after the changes come into effect (in which case, no cancellation fee will apply). If you do not cancel your subscription within that period, you will be deemed to have accepted all changes.

REGISTRATION, AUTHORISED USE, SECURITY & MONITORING

Your membership subscription will not be valid unless and until Garden Clinic accepts your registration.

You must ensure that your username (default being your email address) and password remain secure and confidential. You are entirely responsible for all use, activities and charges associated with or arising from any use of your username and password (regardless of whether you authorised such use), including unauthorised use of your or any other credit card. Each username and password must be used by a single user and is not transferable. An attempt to login with a username and password that is already in use will disconnect the other user. You must notify Garden Clinic immediately if you become aware of any unauthorised use of your username and password.

The Garden Clinic may (but has no obligation to) monitor usage of the Garden Clinic website via your account (including but not limited to concurrent usage of username and passwords) and may take any action it deems appropriate, including immediately terminating your subscription.

Please note that if you have a membership subscription to both the printed quarterly magazine and the digital members-only content of a Garden Clinic publication, the owner of the printed quarterly magazine subscription is the designated user of the digital members-only content. Your username and password must not be shared.

MEMBERSHIP SUBSCRIPTION CHARGES

For the current fees for products, services and other features offered in connection with the Garden Clinic Membership Packages, please go to the relevant “Join”page on the Garden Clinic website. The Garden Clinic reserves the right to change the fees it charges for products, services or features offered in connection with the Garden Clinic website, or introduce new fees, from time to time. If such a change increases the price payable by you for your existing products or services (including your subscription), The Garden Clinic will provide you with no less than one month’s prior notification of any such change. If you object to any such change, your only remedy is to cancel your subscription before 14 days after the change comes into effect (in which case, no cancellation fee will apply). If you do not cancel your subscription within that period, you will be deemed to have accepted the change.

Unless stated otherwise by The Garden Clinic, in order to register for or purchase a service or product, you must submit valid credit card details. Valid payments will be processed immediately or, if applicable, immediately upon the expiry of any free trial subscription. If you are paying by cheque then your subscription commences on the day that your cheque is banked by us. If, subsequently the cheque you sent is not cleared, your subscription will be cancelled and you will have to make a new payment. Whether you pay by credit card or cheque, you will be given notification via email of the commencement of your subscription.

Unless you notify us otherwise, recurring membership subscription fees and all other fees and charges associated with your subscription (including, but not limited to, any applicable federal, state, and local taxes) will be billed automatically to the credit card you provide when registering for the applicable service. If you do not notify us of changes to your billing details, The Garden Clinic will assume that all of the information related to your credit card remains valid and will submit to the card processor all information that it requires for approval.

If any recurring membership subscription fees or other charges billed to your credit card are not processed for any reason, The Garden Clinic shall have the right to suspend your subscription until such subscription fees or other charges are paid in full. You agree to pay all costs (including legal fees) incurred by The Garden Clinic in collecting any unpaid subscription fees or other charges from you. If payment in full is not received from you, The Garden Clinic reserves the right to cancel your membership subscription. Membership subscription fees will apply whether or not you actually use your subscription.

Unless stated to be otherwise, charges referred to for use of any services provided by The Garden Clinic are GST inclusive. Where GST applies, upon payment for online credit by you, The Garden Clinic will deduct the GST it incurs from each payment and The Garden Clinic will issue you with a Tax Invoice at the end of the tax year upon your request (which can be made to Member Services). The balance of the payment will be credited to your account. GST means the Australian goods and services tax charged under A New Tax System (Goods and Services Tax) Act 1999 (the “Act”). Tax invoice means tax invoice as defined by the Act.

TERMINATION OR CANCELLATION OF YOUR SUBSCRIPTION

Subject to any conditions and cancellation fees noted below, you may cancel you’re the Garden Clinic recurring membership subscription at any time by calling member services on 1300 133 100. You cannot suspend your subscription to the Garden Clinic website.

No refund will be paid (and no cancellation fee will apply) in relation to all membership subscriptions.

Month-to-month subscriptions will continue until the next billing date after you notify us that you wish to cancel your subscription (provided you give us at least 48 hours working days’notice prior to your next billing date). For the purposes of these Subscription Terms, “billing date”means the date in any month that you commenced your recurring membership subscription (for example, the 15th of each month).

For yearly subscriptions, we will contact you (either by phone, email or mail) within a reasonable time before the expiry of your subscription term to give you the opportunity to OPT OUT to renewing your Garden Clinic Membership subscription for a further year. If you fail to opt out, your subscription will automatically renew on the subscription expiry date, at the then current yearly subscription rate, and you will be charged accordingly.

You may upgrade your paid subscription at any time by calling Member Services on 1300 133 100.

When you provide us with notice to cancel your subscription, you will still be registered for and have access to the non-member website content at no charge.

The Garden Clinic may immediately cancel your subscription, without notice or liability (including for any refund or credit to you), if we determine, acting reasonably, that: (i) you have breached any portion of these Subscription Terms or the general terms and conditions for use of the Garden Clinic website or (ii) your use of or access to the Garden Clinic website violates any applicable law or regulation or otherwise inhibits any other subscriber from using or accessing the Garden Clinic website or any other service offered by the Garden Clinic.

Garden Clinic also reserves the right to cancel your subscription for any reason, provided that we give you written notice of such cancellation.

None of the foregoing limits any other legal, equitable, or contractual rights available to The Garden Clinic.

MEMBERSHIP SUBSCRIPTIONS WITH HELPLINE ACCESS

If you are a recurring membership subscriber to the “Platinum”membership level, access to call the Helpline 7 days a week between 10am and 2pm is included in the price of your subscription. To receive (and to continue to receive) the benefit, your subscription must be active on the day of your call. Only subscribers with active Membership Numbers quoted at the time of the call will qualify. For Gold and Silver membership packages, access to the email helpline is included in your subscription. To receive (and to continue to receive) the benefit, your subscription must be active on the day of receipt of your email. Subscribers should allow up to 72 hours (week days) to receive a response to email hotline enquiries.

TRIAL TERMS

If you receive a free trial subscription to the Garden Clinic website and/or application (“Trial”), it will begin on the date on which Garden Clinic accepts your registration. During the Trial you will not be charged a subscription fee. You may cancel or opt-out of the Trial prior to the expiry of the Trial online by calling Member Services on 1300 133 100.

However, if you do not cancel or opt out during the Trial, you will be automatically rolled onto a paid recurring membership subscription upon expiry of the Trial (either a month to month subscription or yearly subscription, depending on the option you have selected) and you’ll be charged accordingly, unless otherwise stated during the signup process.

If you have previously received a Trial, you will not be eligible to receive another Trial. You understand that the Trial may not include certain information, functionality or services, as specified from time to time.

TERMS OF SALE

By placing an order via the Garden Clinic Shop or purchasing a recurring membership subscription you are offering to purchase a product or service on and subject to the following terms and conditions. All orders are subject to availability and confirmation of the order price.

Dispatch times for products may vary according to availability and subject to any delays resulting from postal delays or force majeure for which we will not be responsible.

In order to contract with www.gardenclinic.com you must be over 18 years of age and possess a valid credit or debit card issued by a bank acceptable to us. The Garden Clinic website retains the right to refuse any request made by you. If your order is accepted we will inform you by email and we will confirm the identity of the party which you have contracted with. This will usually be www.gardenclinic.com or may in some cases be a third party. Where a contract is made with a third party, www.gardenclinic.com is not acting as either agent or principal and the contract is made between yourself and that third party and will be subject to the terms of sale which they supply you. When placing an order you undertake that all details you provide to us are true and accurate, that you are an authorized user of the credit or debit card used to place your order and that there are sufficient funds to cover the cost of the goods. The cost of foreign products and services may fluctuate. All prices advertised are subject to such changes.

(a) Our Contract

When you place an order for a product or subscription, you will receive an acknowledgement e-mail confirming receipt of your order: this email will only be an acknowledgement and will not constitute acceptance of your order. A contract between us will not be formed until we send you confirmation by e-mail that the goods which you ordered have been dispatched to you. Only those goods listed in the confirmation e-mail sent at the time of dispatch will be included in the contract formed.

(b) Pricing and Availability

Whilst we try and ensure that all details, descriptions and prices which appear on this Website are accurate, errors may occur. If we discover an error in the price of any goods which you have ordered we will inform you of this as soon as possible and give you the option of reconfirming your order at the correct price or cancelling it. If we are unable to contact you we will treat the order as cancelled. If you cancel and you have already paid for the goods, you will receive a full refund.

Delivery costs will be charged in addition; such additional charges are clearly displayed where applicable and included in the 'Total Cost'.

(c) Payment

Upon receiving your order we carry out a standard authorization check on your payment card to ensure there are sufficient funds to fulfil the transaction. Your card will be debited upon authorisation being received. The monies received upon the debiting of your card shall be treated as a deposit against the value of the goods you wish to purchase. Once the goods have been despatched and you have been sent a confirmation email the monies paid as a deposit shall be used as consideration for the value of goods you have purchased as listed in the confirmation email.

ARTICLE ARCHIVES

Content made available on the Garden Clinic website is strictly for personal use only. We may impose limitations on you if, at any time, we form the view that your usage of the site, and particularly your volume of article or magazine downloads, is unusual or excessive.

PERSONAL USE ONLY

Unless expressly agreed by us, subscriptions are strictly for personal or internal business use only.

SHIPPING

When you purchase a product from The Garden Clinic Shop you will be given the choice of various shipping options, depending on the type of product or service you have ordered. For most items we use Australia Post because of their timely service, insurance, and tracking services. We also offer a special Courier service with certain pricing packages relevant to MUST be signed for and if the shipping address is different from the billing address you must include the shipping address phone number.

SHIPPING SERVICES

For domestic shipments we offer Australia Post Standard and Express and a local Courier. For international shipping we offer Australia Post International only. We typically ship orders on the same day if received by 2PM Pacific Standard Time. Orders made after 2pm will be shipped the following business day. Orders placed Friday after 2pm or over the weekend will be shipped the following Monday.

Please Note: We will not deliver to a PO Box address.

SAME DAY COURIER

We do not offer a same day courier service.

IMPORTANT NOTE FOR INTERNATIONAL SHIPPING

We cannot calculate nor are we authorized to collect customs duties, VATs, and other local taxes. These charges are the responsibility of our international customers and typically due and collected upon receipt. In some cases customs authorities don't notify us of their charges until a much later date. In the event we are billed for any customs duties, VATs, or other local taxes, fees and duties we reserve the right to charge the party responsible for payment of the order should this occur. Documentation supporting these charges will be emailed to you.

PRIVACY

The Garden Clinic collects your personal information in order to provide you with products and services requested by you, and for secondary purposes related to that purpose. Please refer to The Garden Clinic‘s Privacy Policy for more information, including; what kind of information we collect, how we collect it, why we collect it, how we use and disclose it, and how to seek access to and update your personal information. You can access the Garden Clinic Privacy Policy at http://www.gardenclinic.com.au/privacy-policy.

As a membership subscriber, you acknowledge that we may contact you during the term of your subscription in connection with your subscription and/or with other offers or information that might be of interest to you. Beyond your subscription term, you also agree to receive communications relating to your lapsed or cancelled subscription and other Garden Clinic products and services for up to 36 months unless and until you notify us otherwise. If you do not wish to receive such communications, you can notify The Garden Clinic by email at info@gardenclinic.com, by phone on 1300 133 100, fax your request to (02) 9484 5111 or by post to: The Garden Clinic, at PO Box 500, Beecroft NSW 2119.

RECURRING MEMBERSHIP SUBSCRIPTION PACKAGES

The Garden Clinic website offers three different membership packages on a recurring subscription model. Package inclusions and pricing for each of the three are as follows:

1. 12 month Platinum Membership

This is The Garden Clinic’s premium membership package and comes with a membership card. This card displays a member’s full name and membership number.

Price is $99.95 a year (as at 5th June 2015)

Total Retail Value = $234.95

Includes:

- 4 printed issues of the Garden Clinic magazine (value $39.95)

- full online access to members-only content

- full access to horticulturist helpline, 7 days a week from 10am - 2pm (valued at $50 per year)

- Invitation to attend one Garden Class (valued at $65)

- 10% discount off plants from selected nursery partners (must show membership card)

- $50 gift on joining + $30 courier fee

- exclusive access to special Garden Clinic members-only events

- chance to win great prizes

2. 12 month Gold (Digital) Membership

This is The Garden Clinic’s yearly digital membership package and comes with a membership card. This card displays a member’s full name and membership number.

Price is $59.95 a year (as at 5th June 2015)

Includes:

- 4 digital issues of the Garden Clinic magazine

- full online access to members-only content

- full access to horticulturist helpline via email only

- 10% discount off plants from selected nursery partners (must show membership card)

- exclusive access to special Garden Clinic members-only events

- chance to win great prizes

Excludes:

Invitation to attend one Garden Class

full access to horticultural telephone helpline, 7 days a week from 10am - 2pm

4 printed issues of the Garden Clinic magazine

3. Monthly Silver (Digital) Membership

This is The Garden Clinic’s month-to-month subscription digital membership package.

Price is $6.95 a month (as at 5th June 2015)

Includes:

- 4 digital issues of the Garden Clinic magazine (if 12 consecutive months of membership is active)

- full online access to members-only content

- full access to horticultural helpline via email only

- 10% discount off plants from selected nursery partners (must show membership card)

- exclusive access to special Garden Clinic members-only events

- chance to win great prizes

Excludes:

Invitation to attend one Garden Class

full access to horticultural telephone helpline, 7 days a week from 10am - 2pm

4 printed issues of the Garden Clinic magazine

membership card

10% discount off plants from selected nursery partners (must show membership card)

4. 12 month Bronze Membership

The Garden Clinic also offers a 12 month Magazine Only subscription. 

Price is $39.95 a year (as at 5th June 2015)

Includes:

- 4 printed issues of the Garden Clinic magazine

- full online access to members-only content

- exclusive access to special Garden Clinic members-only events

- chance to win great prizes

Excludes:

Invitation to attend one Garden Class

access to horticultural helpline, 

membership card

10% discount off plants from selected nursery partners (must show membership card)

SUBSCRIPTION TERMS

1. Definitions

ln these terms:

“Administrator”means the Service administrator(s); an individual or individuals appointed by the Subscriber to provide access to and use of the gardenclinic.com Administrator to tailor the Service access levels and user functionality for the Subscriber’s specific needs.

“Additional Fees”means the additional fees specific to any service as set out in the Pricing Schedule or any other schedule.

“Client”means a customer or client of a Subscriber to whom Information may be provided, where permitted, subject to the Subscription Terms.

“Effective Date”means the date as set out in the Product Schedule, or if undated, the date of first availability of the Service for use by the Subscriber.

“The Garden Clinic”means the Garden Clinic company;

“Fees”means the aggregate of the fees for the Information and fees for the Service, payable by the Subscriber to The Garden Clinic being bundled, packaged or amended as set out in the Pricing Schedule.

“GST”means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (“the Act”). All other terms have the definitions in the Act and/or are construed in accordance with the Act.

“Information”means information, in whatever form, provided as part of the Service.

“Initial Term”means the “Initial Term”specified in the Product Schedule.

“Pricing Schedule”means the “Pricing Schedule”to the Subscription Agreement, including any updated or amended versions of it.

“Product Schedule”means the “Product Schedule”to the Subscription Agreement, including any updated or amended versions of it.

“Renewal Date”means the date immediately following the last date of the Initial Term.

“Representatives”means, in relation to the Subscriber:

1. agents of the Subscriber and each of its Subsidiaries;

in the case where the Subscriber is a higher education institution (as determined by The Garden Clinicin its discretion), faculty members and enrolled students of that institution.

“Service”means the information products and services available to the Subscriber through the Website, as set out in the Product Schedule, or any other service through which Information is supplied to the Subscriber by The Garden Clinic on garden clinic.com.

“Subscriber”or “Member”means the entity set out in the Subscription Agreement with the details in the Product Schedule, and any Subsidiary.

“Subscription Agreement”means the signed subscription letter agreement between the Subscriber and The Garden Clinic including the Product Schedule and the Pricing Schedule.

“Subscription Terms”means:

these Subscription Terms for Subscribers;

the terms of the Subscription Agreement;

the terms set out in the section of the “Subscription terms (pdf)”linked to the gardenclinic.com website above these Subscription Terms for Subscribers;

and

all other terms of use and disclaimers contained in or linked to the gardenclinic.com.au website.

“Subsidiary”means a subsidiary of the Subscriber within the meaning of the Corporations Act 2001 (Cth) and, in the case where the Subscriber is controlled by a partnership, that partnership (and each of its partners).

“Term”means the Initial Term and all renewals and extensions under clause 6.2.

“Trial Term”means the trial term of the Agreement which is the period of time set out in the Pricing Schedule or as agreed in writing by the parties, commencing on the Effective Date.

“User”means the “Subscriber”or “Member” to use the Service, subject to the permitted number of Users set out in the Product Schedule.

”Web Content”means publicly available content which may be accessed through gardenclinic.com.au via links to third party sites on the internet, and which is identified within gardenclinic.com.au as being from the internet.

”Members-only Content”means content which is made visible only after a “Subscriber”or “Member”logs into their account using their username and password on gardenclinic.com.au

2. Service

2.1. The Garden Clinic will supply the Information through the Service to the Subscriber and grants to the Subscriber a non-exclusive, non-transferable, non-sub licensable, non-assignable license to use the Information and the Service pursuant to the terms of this Agreement.


2.2. The Garden Clinic retains control and ownership of the form and content of the Service. Neither the Subscriber nor any User will acquire any ownership rights in the Service or the Information, and the Subscriber shall not alter the form or content of the Information or Service without the written permission of The Garden Clinic.


2.3. The Garden Clinic may alter the form and content of the Service from time to time. The Information is either licensed from third party information providers or is proprietary to The Garden Clinic. Should any license agreement with an information provider be terminated or suspended for any reason then the Information supplied by that information provider may be withdrawn from the Service.

3. Use of the Service

3.1 Users may:

a. view and print a single permanent copy of the Information ; and


3.2 The Subscriber, and each User, shall not:

a. use, copy, store, save, transmit, reproduce, distribute, display, sell, publish, broadcast or circulate the Information to any third party, other than as authorised in clause 3.1 and 3.2;

b. remove, conceal or alter any copyright notices contained in the Service or the Information;

c. create or store in electronic form any shared library or archive of Information which could be used as a research application;

d. sell or receive any compensation for Information distributed to Client (except for recovery at cost of Views incurred by Client), and for the avoidance of doubt, Subscriber may only forward Service Emails to Customers on an occasional and infrequent basis, but are not authorised to forward such emails as part of a regular and ongoing alerting service; or

e. share the password which they use to access the Service with any other person. Users should notify the Garden Clinic if they learn or suspect that any password(s) is either being used by any person not authorised by the Subscriber to use the Service or is being used by more than one User.


3.4 The Subscriber or Member shall:

a. ensure that each User is aware of and complies with the conditions of use of the Service and/or the Information contained in this Agreement;

b. ensure that each User complies with any additional restrictions notified by means of any onscreen notices contained within an article of Information to which the additional restriction relates. To the event that there is any inconsistency between the terms of this Agreement and any on-screen notice, then the terms of this Agreement will prevail;

c. ensure that each Client is aware of, and use reasonable endeavours to ensure each Client complies with, the conditions of use of the Service and/or the Information contained in this Agreement;

d. provide the Garden Clinic with reasonable assistance in complying with The Garden Clinic’s obligations under privacy laws relating to information in respect of individual Users. Subscriber warrants and represents to The Garden Clinic that it is authorised by each of the Users to receive the Users’personal information from The Garden Clinic.

3.5 The Garden Clinic will issue the Subscriber with one password for each User, each such password may only be used by one individual. The Subscriber must notify The Garden Clinic if it learns or suspects that any password(s) is either being used by any person not authorized by the Subscriber to use the Service or is being used by more than one individual. The Garden Clinic will then cancel the relevant password and give the Subscriber the ability to assign themselves a new password. The Garden Clinic may in its reasonable discretion attach conditions to the assignment of such new password(s).

3.6 In the event that the Subscriber or any User or Client breaches the terms of use of the Service as set out in this clause 3, the Subscriber acknowledges that damages may be an insufficient remedy. The parties acknowledge that any damages payable are without prejudice to any other injunctive relief or contractual liability that The Garden Clinic is entitled to, in accordance with, this Agreement as a result of any breach of this agreement, including but not limited to breach of The Garden Clinic’s intellectual property rights in the Service. Without limitation, The Garden Clinic may suspend the Service in the event of a breach described in this clause.

4. Fees and Taxes

4.1 The Subscriber agrees to pay the Fees and any Additional Fees to The Garden Clinic within 30 days of receipt of an invoice from The Garden Clinic (‘Invoice’).

4.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this agreement are inclusive of GST.

4.3 If GST is payable on any taxable supply made or to be made under this agreement, the consideration payable will be increased by an amount equal to the amount of GST payable by the Subscriber. The Subscriber agrees to pay such GST amount on receipt of a proper tax invoice from The Garden Clinic.

4.4 The Subscriber shall have the right to withhold any applicable taxes from payments due under this agreement as required by law. If any deduction from payments due under this agreement is required on account of a withholding tax, the Subscriber will provide The Garden Clinic with a certificate or other receipt signed by the appropriate taxing authority confirming the tax withheld and the subsequent payment of the tax to the taxing authority. Where there is a reduction in any Fees or Additional Fees due that is not supported by such a certificate or receipt, the reduction will be considered an underpayment by the Subscriber.

4.5 The Pricing Schedule may be amended from time to time in accordance with clause 4.6. Other than as set out in the Pricing Schedule or pursuant to clause 4.6, no change in the Fees payable by the Subscriber shall be effective unless agreed in writing between the parties.

4.6 The Garden Clinic may, following not less than 30 days’prior written notice to the Subscriber, amend the Pricing Schedule and/or any Schedule setting out the Additional Fees. If the amendment to the Pricing Schedule results in an increase in the Fees for the Subscriber, then the Subscriber may, within 30 days of receipt of such notice, terminate this Agreement by written notice to The Garden Clinic. If the amendment to any Schedule results in an increase in the Additional Fees for the Subscriber, then the Subscriber may, within 30 days of receipt of such notice, terminate that part of the Service that relates to the Additional Fees by written notice to The Garden Clinic. If the Subscriber gives notice pursuant to this clause 4.6 then such termination shall be effective on the date on which the Fees and/or any applicable Additional Fees would have increased and the Subscriber will be entitled to a pro rata refund of any Fees or Additional Fees paid in advance for services not rendered at the date of termination.

5. Warranty, liability and indemnity

5.1 The Garden Clinic shall make reasonable efforts to ensure: the accuracy and reliability of the Service; the timeliness of the Information; and that the Service does not contain any computer virus. Neither The Garden Clinic, nor any other member of the Garden Clinic, will be held liable in relation to the accuracy or timeliness of the Information or for any loss or damage of any type in connection with the provision of or failure to provide the Service, except as set out in this clause 5. This Agreement gives neither the Subscriber, nor any User or Customer any rights against third party information providers with respect to the use of Information.

5.2 Neither The Garden Clinic, nor any other member of the Garden Clinic excludes any rights or remedies available to you under the Trade Practices Act (1974) or any similar State or Territory based legislation in Australia that cannot be excluded, restricted or modified. Otherwise, all conditions and warranties in respect of gardenclinic.com and the Information that may be implied by law are excluded. To the extent The Garden Clinic or a member of the Garden Clinic is liable for breach of any implied warranty or condition which cannot be excluded, liability is restricted, at The Garden Clinic’s option, to:

1.in the case of services supplied or offered by The Garden Clinic, the re-supply of those services or the payment of the cost of having those services re-supplied; and in the case of goods supplied or offered by The Garden Clinic, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or the payment of the cost of having the goods repaired.

5.3 Subject to the above qualifications and clause 5.4, the Subscriber expressly agrees that in no circumstances will The Garden Clinic or any member of the Garden Clinic be liable for any damage or loss (including but not limited to any indirect or consequential loss or any loss of profits or revenues whatsoever) however caused (including but not limited to, by the negligence of The Garden Clinic or a member of the Garden Clinic) suffered or incurred by the Subscriber in connection of the use of gardenclinic.com.au

5.4 The Garden Clinic shall indemnify the Subscriber against any direct loss or damage suffered by the Subscriber arising out of any third party claim or action that the Information infringes the intellectual property rights of such third party, except for any claim or action arising out of a breach of this Agreement by the Subscriber, any User or Customer. The Subscriber agrees that if any such claim is made by a third party then the Subscriber will promptly notify and cooperate with The Garden Clinic, and The Garden Clinic shall at its request be given control of such action.

5.5 The Subscriber shall indemnify The Garden Clinic and, where relevant, any third party information provider or supplier, for any direct loss or damage (not including any consequential loss or special or punitive damages) arising out of any use of the Information by the Subscriber and/or Users and/or Clients beyond the rights expressly granted to the Subscriber and/or the Users and/or Clients under this Agreement.

5.6 The total liability of The Garden Clinic under this Agreement shall, to the extent permitted by law, under no circumstances exceed the Fees paid by the Subscriber in the twelve months preceding such claim.

6. Term and termination

6.1 The Trial Term, if any, is set out in the Product Schedule or as agreed and/or amended by writing between the parties.

6.2 After the Trial Term (if any), this Agreement shall be renewed for the Initial Term unless the Subscriber notifies The Garden Clinic otherwise in writing prior to the end of the Trial Term. Thereafter this Agreement shall automatically be renewed for successive 12 month periods on the Renewal Date and each anniversary of the Renewal Date, save that during the Term any Service may be cancelled by either The Garden Clinic or the Subscriber on 90 days’prior written notice to the other prior to the Renewal Date and each anniversary of the Renewal Date. No refund will be given for cancelling a subscription.

6.3 Without prejudice to any rights of either party, this Agreement may be terminated:

in the event of a party committing any breach of this Agreement which is remediable and not remedied within 21 days of written notice from the other party requiring such remedy;

immediately on written notice being given by a party if the other party commits any irremediable breach of this Agreement or repeats any breach as has previously been the subject of a notice under paragraph (a) above; immediately on a party giving written notice to the other party if:

i. an order is made or an effective resolution is passed for the liquidation or winding up of the other party;

ii. the other party enters into any composition with its creditors;

iii. the other party has a receiver, manager, administrative receiver or administrator appointed in respect of it or substantially all of its assets;

iv. the other party is affected in any jurisdiction other than New South Wales by any matter of substantially similar effect to any of the matters referred to in paragraphs (i) to (iii) above.

6.4 On termination of this Agreement for any reason other than for The Garden Clinic being in breach of this Agreement or being subject to an event listed in clause 6.3 (c), the Subscriber shall pay to the Garden Clinic any Fees or Additional Fees payable until the end of the then current Term.

6.5 lf the Subscriber commits a material breach of this Agreement, the Garden Clinic may suspend any Service without notice or penalty until such breach is remedied.

7. Confidentiality

7.1 The parties acknowledge and confirm that during the term of this Agreement and following its termination the parties shall treat as confidential and shall not (other than in the proper provision of the Service or as required by any applicable law) use or disclose to any person, firm or company, the terms of this Agreement, including the Pricing Schedule agreed between the parties, and any confidential information relating to the business of and belonging to the other party, nor permit its use or disclosure. This obligation of confidentiality shall not apply to information which is publicly known (through no fault of the non-disclosing party) or not of commercial value to such other party.

7.2 No public announcement, press release or circular (other than required by law or regulation) concerning this Agreement will be made by either party without the prior consent of the other party, which shall not be unreasonably withheld or delayed.

8. Web Content

8.1 The Garden Clinic chooses the internet sites through which some of the Web Content is made available and uses reasonable care in doing so. However, the Web Content is not made available through any licensing agreement with any third party, and accordingly the Garden Clinic does not and cannot license the use of such Web Content. The Subscriber and Users are solely responsible for determining the extent to which the Web Content is used.

8.2 The Web Content is not included as Information for the purposes of this Agreement and Garden Clinic does not accept any liability in relation to the Web Content.

9. General

9.1 The terms and conditions set out in The Subscription Terms represent the entire agreement between both parties relating to the Service and supersede all prior agreements and representations. No failure or delay by any party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power and/or remedy. Neither party will be liable for any loss or failure to perform an obligation due to circumstances beyond its reasonable control.

9.2 The Service subscribed for under the Subscription Terms, the level of the Fees and Additional Fees and other relevant details of such Service may be amended by written notice signed by both parties confirming the relevant amendment and the inclusion of any additional schedule.

9.3 In the event of conflict between these Subscription Terms for Library Services, the Subscription Agreement and any other document or information forming part of the Subscription Terms as defined in clause 1 (where “conflict”denotes, as between any two such document, an impossibility to comply with both of them in the relevant respect):

generally, these Subscription Terms for Library Services shall prevail; and

in relation to the provision of a particular product or element of the Service, the Product Schedule shall prevail.

9.4 All notices shall be in writing, and delivered by courier or registered mail, or by either facsimile or electronic mail with confirmation, to the addresses specified in the Product Schedule, or other address stipulated in writing by one party to the other. Notice shall be deemed received on the date 3 business days after being sent, if by courier or registered mail, or on the date actually received, if by fax or electronic mail.

9.5 Neither party may assign the Subscription Terms without the prior written consent of the other party, provided however that the Garden Clinic may transfer any of its rights and obligations to any member of the Garden Clinic.

9.6 The official language of the Subscription Terms shall be the English language and no translation into any other language may be used in its interpretation.

9.7 The Subscription Terms shall be governed by, construed and take effect in accordance with the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of New South Wales.

Last updated: 4 June 2015