Terms and conditions (updated – 24 May 2023) These terms and conditions are the contract between you and Living Desert Plants (Pty) Ltd (“us”, “we”, etc). By visiting or using Our Website, you agree to be bound by them. We are: Living Desert Plants (Pty) Ltd, a company registered in South Africa, with our address in Fish Hoek, Cape Town. We specialize in rare plants and offer a variety of plant species and related products for sale and export. You are: Anyone who uses Our Website. Please read this agreement carefully. If you do not agree with it, you should leave Our Website immediately. 1. Definitions In this agreement: “Carrier” means any person or business contracted by us to carry Goods from us to you. “Content” means any content in any form published on Our Website by us or any third party with our consent. “Goods” means any of the goods we offer for sale on Our Website, or, if the context requires, goods we sell to you. “Our Website” means any website of ours, and includes all web pages controlled by us. “Post” means display, exhibit, publish, distribute, transmit and/or disclose information, Content and/or other material on to Our Website, and the phrases “Posted” and “Posting” shall be interpreted accordingly. 2. Interpretation In this agreement unless the context otherwise requires: 2.1. a reference to a person is a reference to one or more individuals, whether or not formally in partnership, or to a corporation, government body, or other association or organisation. 2.2. these terms and conditions apply to all supplies of Goods by us to any customer. They prevail over any terms proposed by you. 2.3. any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing. 2.4. any obligation of any person arising from this agreement may be performed by any other person. 2.5. in this agreement references to a party include references to a person to whom those rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that party. 2.6. the headings to the paragraphs and schedules (if any) to this agreement do not affect the interpretation. 2.7. a reference to an act or regulation includes new law of substantially the same intent as that act or regulation. 2.8. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party. 2.9. these terms and conditions apply in any event to you as a buyer or prospective buyer of our Goods and so far as the context allows, to you as a visitor to Our Website. 2.10. this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail. 3. Our contract with you 3.1. This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties. 3.2. Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement. 3.3. If you use Our Website in any way and make an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you. 3.4. We do not guarantee that Goods advertised on Our Website are available. We may change these terms from time to time. The terms that apply to you are those posted here on Our Website on the day you order Goods. 3.5. The price of Goods may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time when you buy those Goods. 3.6. If in future, you buy Goods from us under any arrangement which does not involve your payment via Our Website; these terms still apply so far as they can be applied. 3.7. We do not sell the Goods in all countries. We may refuse to deliver the Goods if you live in a country we do not serve. 4. Acceptance of your order 4.1. Your order is an offer to buy from us. We shall accept your order by e-mail confirmation. That is when our contract is made. Our message will also confirm details of your purchase and tell you when we shall despatch your order. 4.2. If we do not have all of the Goods you order in stock, we will offer you alternatives. If this happens you may: 4.2.1 accept the alternatives we offer; 4.2.2 cancel all or part of your order. 5. Price and payment 5.1. The price payable for the Goods that you order is clearly set out on Our Website. 5.2. It is possible that the price may have increased from that posted on Our Website. If that happens, we will not despatch the Goods until you have confirmed that you wish to buy at the new price. 5.3. Prices include value added tax (“VAT”) for South African customers. 5.4. Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than Rand will be borne by you. 5.5. If, by mistake, we have under-priced Goods, we will not be liable to supply that those Goods to you at the stated price, provided that we notify you before we dispatch it to you. 5.6. The price of the Goods does not include the delivery charge which will be charged at the rates applicable at the date you place your order and which will be displayed on a page of Our Website before we ask you to pay. 5.7. If we owe you money (for this or any other reason), we will credit your credit or debit card as soon as reasonably practicable but in any event no later than 15 days from the date when we accept that repayment is due. 6. Security of your credit card We take care to make Our Website safe for you to use. 6.1. Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment. 6.2. We do not store your credit card details on Our Website. 7. If you buy as a Consumer This paragraph applies if and only if, you are a consumer as defined in the Electronic Communications and Transactions Act 2002. 7.1. As required by the law, details of our after-sales service and guarantees, if any, are given in Our Website terms and conditions. 7.2. You may cancel your order at any time before we have despatched your Goods. 7.3. In the event of cancellation of an order by you in compliance with these terms, we will refund any money due to you within 30 days. 7.4. This paragraph does not affect your rights in the event that the Goods are faulty. 8. South Africa: Delivery and pick up 8.1. Goods are delivered within 15 days from the day you place an order to purchase the Goods. 8.2. Deliveries will be made by the Carrier to the address stipulated in your order. You must ensure that someone is present to accept the delivery. 8.3. If we are not able to deliver your Goods within 15 days of the date of your order, we shall notify you by e-mail to arrange another date for delivery. 8.4. We may deliver the Goods in instalments if they are not all available at the same time for delivery. 8.5. Goods are sent without insurance, unless specifically requested by you. 8.6. All Goods must be received by an adult aged 18 years or over. If no one of that age is at the address when the delivery is attempted the Goods may be retained by the driver. When your Goods arrive, it is important that you check immediately the condition and quantity. If your Goods have been damaged in transit, you must refuse the delivery and immediately contact us so that we may dispatch a replacement quickly and minimise your inconvenience. 8.7. If we agree with you to deliver on a particular day or at a particular time, we will do our best to comply. But no time given is to be treated as contractual. So we are not liable to you for any expense or inconvenience you incur on account of delayed delivery or non-delivery. 8.8. We are happy for you to pick up Goods from our nursery provided you make an appointment in advance and payment has been received into our bank. 8.9. If you pick up Goods from our premises then: 8.9.1 we will not be able to assist you in loading heavy items; 8.9.2 Goods are at your risk from the moment they are picked up by you or your Carrier from our nursery; 8.9.3 you agree that you are responsible for everything that happens after you take possession of the Goods, both on and off our premises, including damage to property of any sort, belonging to any person. 9. International: Ordering and Delivery 9.1. If you are not in South Africa, we have no knowledge of, and no responsibility for, the laws in your country. 9.2. Placing an Order: To purchase products from our website, you must provide accurate and complete information during the ordering process. By placing an order, you agree to pay the specified price for the products, as well as any applicable shipping fees. You will be issued with a quote inclusive of shipping and permit costs once all relevant information has been confirmed. 9.3. Shipping: We will make reasonable efforts to ship your order promptly after payment is received. However, shipping times may vary depending on your location and other factors beyond our control. 9.4. Customs and Import Duties: As an international customer, you may be required to pay customs duties, taxes, or other fees imposed by your government. Any such additional charges are your responsibility. 9.5. Import permits: 9.5.1 Our plants will be inspected and certified according to the relevant phytosanitary regulations and requirements of the importing country. 9.5.2 As an international customer, you are responsible for complying with all applicable phytosanitary laws and regulations regarding the importation of our products into your country. You will be required to send us a copy of your plant import permit before we issue a quote. We cannot issue a phytosanitary certificate without your import permit. We cannot ship plants outside of South Africa without a phytosanitary certificate. We are not responsible for issues of any form arising in transit from incomplete, incorrect or outdated documentation provided to us. 9.6. Loss of products in transit: We are not responsible for and cannot be held liable for any delays, damages or losses of any form caused by shipping carriers or customs authorities once the parcel has left the borders of South Africa. We are not responsible and cannot be held liable for any confiscation of products by customs authorities outside of South Africa. 10. Refunds and Returns 10.1. Refunds: We strive to ensure your satisfaction with our products. If you receive a damaged or incorrect item, please contact us within three (3) days of receiving the order. We may request supporting evidence, such as photographs, to assess the situation. Refunds will be considered on a case-by-case basis, subject to the condition that the issue is due to a proven mistake on our part. Refunds will only be issued on a per item basis. No refunds will be issued in the event of issues arising from shipping delays or confiscation of products by customs authorities outside of South Africa. 10.2. Returns: No returns are accepted under any circumstances. 10.3. Shipping Costs: Please note that shipping costs are non-refundable. 11. Disclaimers 11.1. The law differs from one country to another. This paragraph applies so far as the applicable law allows. 11.2. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term. 11.3. We make no representation or warranty for: 11.3.1 the quality of the Goods; 11.3.2 any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose; 11.3.3 the correspondence of the Goods with any description; 11.3.4 the adequacy or appropriateness of the Goods for your purpose. 11.4. We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website. 11.5. All product descriptions, images, and prices are subject to change without prior notice. We strive to provide accurate and up-to-date information, but we cannot guarantee the availability or accuracy of any particular product. 11.6. We shall not be liable to you for any loss or expense arising out of or in connection with your use of Our Website, which is indirect or consequential loss, or economic loss or other loss of turnover, profits, business or goodwill. This applies whether in an action of contract, negligence or otherwise, even if such loss was reasonably foreseeable or we knew you might incur it. 11.7. We make no representation or warranty and accept no responsibility in law for: 11.7.1 accuracy of any Content or the impression or effect it gives; 11.7.2 delivery of Content, material or any message; 11.7.3 privacy of any transmission; 11.7.4 any act or omission of any person or the identity of any person who introduces himself to you through Our Website; 11.7.5 any aspect or characteristic of any goods or services advertised on Our Website; 11.8. Our Website includes Content Posted by third parties. We are not responsible for any such Content. If you come across any Content which offends you, please contact us via the “Contact us” page on Our Website. 11.9. We will do all we can to maintain access to Our Website, but it may be necessary for us to suspend all or part of our service for repairs, maintenance or other good reasons. We may do so without telling you first. 11.10. This paragraph (and any other paragraph which excludes or restricts our liability or provides an indemnity to us) applies to our directors, officers, employees, subcontractors, agents and affiliated companies, as well as to us. 11.11. If you become aware of any breach of any term of this agreement by any person, please tell us by email message. We welcome your input but do not guarantee to agree with your judgement. 11.12. Nothing in this agreement excludes liability for a party’s fraud. 12. Your account with us 12.1. You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods. 12.2. If you use Our Website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your account. 12.3. You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password. 13. Security of Our Website If you violate Our Website we shall take legal action against you. You now agree that you will not, and will not allow any other person to: 13.1. modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it. 13.2. link to Our Website in any way that would cause the appearance or presentation of Our Website to be different from what would be seen by a user who accessed Our Website by typing the URL into a standard browser; 13.3. download any part of Our Website, without our express written consent; 13.4. collect or use any product listings, descriptions, or prices; 13.5. collect or use any information obtained from or about Our Website or the Content except as intended by this agreement; 13.6. aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Website; 13.7. share with a third party any login credentials to Our Website. 13.8. Despite the above terms, we now grant a licence to you to: 13.8.1 create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any product or service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent. 13.8.2 you may copy the text of any page for your personal use in connection with the purpose of Our Website. 14. Indemnity You agree to indemnify us against all costs, claims and expense arising directly or indirectly from: 14.1. your failure to comply with the law of any country; 14.2. your breach of this agreement; 14.3. any act, neglect or default by any agent, employee, licensee or customer of yours; 14.4. a contractual claim arising from your use of the Goods; 14.5. a breach of the intellectual property rights of any person. 15. Intellectual Property 15.1. We will defend the intellectual property rights in connection with our Goods and Our Website, including copyright in the Content whether provided by us or by any other content provider (including copyright in: text, graphics, logos, icons, images, audio clips, digital downloads, data, and software). 15.2. Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part. 15.3. You may not use our name or logos or trademarks or any other Content on any website of yours or that of any other person. 15.4. Subject to the other terms of this agreement, you may download or copy Content only for your own personal use, provided that you maintain all copyright and other notices contained in it. You may not store electronically any significant portion of any Content. 16. Miscellaneous matters 16.1. When we communicate with you we do so by email. You agree that email communications are contractually binding in the same way as properly signed and dated paper sent by post. 16.2. Where we provide goods or services without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other Goods for which a charge is made. Accordingly, there is neither contractual nor other obligation upon us in respect of those goods or that service. 16.3. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms. 16.4. The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title. 16.5. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future. 16.6. Any communication to be served on either party by the other shall be by e-mail. It shall be deemed to have been delivered: If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender. 16.7. In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation. 16.8. So far as the law permits, and unless otherwise stated, this agreement does not give any right to any third party. 16.9. Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond his reasonable control. 16.10. In the event of any conflict between any term of this agreement and the provisions of the memorandum of incorporation of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail. 16.11. The validity, construction and performance of this agreement shall be governed by the laws of the Republic of South Africa and you agree that any dispute arising from it shall be litigated only in that country.