Terms of service

1. Introduction

Welcome to nestandbird.com.au (referred to as the “Website” or “Site”), an online store offering a variety of products including homeware, art, and designer pieces. Nest and Bird is owned and operated by the Trustee for Nest Egg Business Enterprise Trust (ABN 71 631 512 772). This Website is created and controlled by Us in the State of New South Wales, Australia, and these terms are governed by the laws of New South Wales.

2. Definitions and interpretatio

2.1 Definitions

(a) Australian Consumer Law (ACL) Refers to the national law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) which governs the rights and obligations of consumers and businesses in Australia. The ACL provides consumer protections and imposes obligations on businesses regarding product safety, fair trading, and guarantees of goods and services.

(b) Product(s) refer to any items available for sale on our Website.

(c) “We,” “Us,” and “Our” “Vendor” refers to Nest and Bird, including Our directors, employees, agents, assigns, contractors, contributors to our Site (“Contributors”), and Our associates and related entities.

(d) “You,” “Your,” “Customer” and “User” refer to any individual or entity who accesses, browses, purchases from, or contributes content to Our Site.

2.2 Interpretation

Nothing in these Terms exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the consumer guarantee provisions in the ACL) and which by law cannot be excluded, restricted or modified.

3. Our agreement with you

3.1 Agreement and acceptance

(a) By using the Website You accept these terms and conditions (Terms) that apply to the order(s) placed by You and supply of goods by Us to You (Agreement) and our Privacy Policy. No other terms are implied by trade, custom, practice or course of dealing. We may change these Terms at our sole discretion at any time, and changes will be posted on the Website. By continuing to use the Website You agree to be bound by the changes.

(b) By using, visiting, accessing, or subscribing to our Site or purchasing one of the Products, services or vouchers via our Site, You indicate that You have read, understood and accept these Terms. Please read them carefully. If You do not agree with any part of these terms, You must not use our Website. Any breach or violation of any of these Terms will result in an immediate termination of Your account.

3.2 Our Contract

(a) These Terms are between Nest and Bird and You.

(b) When You place an order via Our Website, You will receive an order confirmation email confirming receipt of Your order (Confirmation Email). This Confirmation Email will only be an acknowledgment of Your order and will not constitute acceptance of Your order. Please keep this e-mail as proof of Your purchase.

(c) A contract between Us will not be formed until We send You confirmation by email that the Products which You ordered have been sent to You (Dispatch Email).

(d) Only those Products listed in the Dispatch Email will be included in the contract formed between You and Us (Contract).

4. Access and use of the Website

(a) We will not be liable if our Site or part thereof is unavailable for any reason. Access to member-only pages is restricted to those who are current, approved, and registered members. The acceptance of such subscription is at our absolute discretion.

(b) If You choose or are provided with log-in details, a user identification name and/or password (“log-in information”), You must treat this log-in information as confidential and keep it secure.

(d) You must only use the Website through the interfaces provided by Us and in accordance with these Terms and any applicable law.

(e) We do not guarantee that the Website will be secure or free from bugs or viruses. You should use Your own virus protection and software.

(f) You must not (or attempt to):

(i) interfere or disrupt our Website or the servers or networks that host our Website;

(ii) use data mining, robots, screen scraping or similar data gathering and extraction tools on our Site;

(iii) interfere with security-related or other features of our Site; or

(iv) use, copy or distribute content without our express permission.

(g) We may refer fraudulent or abusive or illegal activity to the relevant authorities. If You have an account with Us, You are solely responsible for the activity that occurs on Your account (including orders placed using Your account). We are not responsible for any unauthorised activity on Your account if You fail to keep Your log-in information secure.

(h) You must not use another member's account without our, and/or the other user's, express permission. If You suspect or become aware of any unauthorised use of Your account or that Your password is no longer secure, You must notify Us immediately and take immediate steps to re-secure Your account (including by changing Your password).

(i) We do not warrant that the Website will be available at all times and without disruption and We provide no warranties in relation to the content of any other website linked to or from our Website.

5. Privacy

(a) Nest and Bird is committed to protecting Your privacy and treats Your personal information with the utmost confidentiality. All personal details You provide will be retained in a private database, accessible only to Nest and Bird and, where necessary, may be shared with third parties to facilitate the fulfilment of Your order or as required by law. For further details, please refer to our Privacy Policy.

(b) When making a purchase, Customers are required to provide accurate contact details, including their full name, phone number, email address, and any other necessary information. Customers warrant that the payment information provided is their own, valid, and correct.

6. Placing an order and its acceptance

6.1 Placing your order

You may place Your order via our Website by following the onscreen prompts to place an order. Each order is an offer by You to purchase the goods that have been added to the cart on the Website subject to these Terms. Provided that Your items are in stock and during non-peak seasons Your order will be processed within 2-4 working days of receiving payment.

Our customer service team will contact You if an ordered item is not available, or We are unable to fulfill Your order. We will notify You within 5 business days to arrange an agreeable alternative item, a backorder or a full refund.

6.2 Correcting errors

Our order process allows You to check and amend any errors for orders placed via our Website. You may check the order carefully before confirming it. You are responsible for ensuring that Your order and any specification submitted by You is complete and accurate. Once the order is received by us, it will be considered confirmed.

6.3 Accepting your order

After You place an order upon completing the process and payment is made in full, You will receive an order confirmation via email from Us (see clause 3.2(b)).

6.4 If we cannot accept your order

If We are unable to supply You with the Product(s) for any reason including but not limited to circumstances where We believe there may be:

(a) a credit card or payment fraud (detected prior to the Products being shipped);

(b) where Your order cannot be shipped; or

We will inform You of this by email and We will not process Your order. If You have already paid for the item, We will refund You the full amount including any delivery costs charged as soon as possible.

6.5 Inability to fulfil order for reasons beyond our control

We reserve the right to notify You that Products for which You placed orders have become unavailable for reasons beyond our control. Your order may be delayed, or You may receive a full refund or store credit (at Your discretion) in the event We cannot fulfil Your order.

6.6 Stock availability

Acceptance of any orders on this Website or by email will be subject to the availability of stock of Products and materials required to manufacture the Products. We are under no obligation to maintain stocks.

6.7 Preorders

In the instance that Your order includes any “preorder” items (as listed in the Product description) Your entire order will be held and shipped once the preordered item is in stock. Should You wish to receive split shipments, You will need to place two orders online, processing two sets of shipping costs.

6.8 Cancellation

Please choose carefully. Subject to clause 7(a), once Your order has been submitted and confirmed, it cannot be changed or cancelled.

7. Our Products

(a) We use reasonable commercial efforts to ensure that all details, descriptions and prices of the Products which appear on this Website (Products) are accurate. However, listing errors may occur in relation to such details, descriptions and prices (Error). If We discover an Error in relation to any Products You have purchased, We will endeavour to correct the Error as soon as practicable. If We discover an Error in the price of the Products You have ordered, We will contact You in writing to inform You of this Error and We will give You the option of continuing to purchase the Products at the correct price or cancelling Your order. We will not process Your order until We have Your instructions. If We are unable to contact You using the contact details You provided during the order process, We will treat the order as cancelled and notify You in writing. If We mistakenly accept and process Your order where a pricing Error is obvious and unmistakeable and could reasonably have been recognised by You as a mispricing, We may cancel supply of the Products and refund You any sums You have paid.

(b) The images of the Products on our Website are for illustrative purposes only. Although We have made every effort to display the dimensions and colours accurately, We cannot guarantee that Your computer's display of the colours accurately reflects the colour of the Products visually. The colour of Your Products may vary slightly from those images.

(c) We will make reasonable efforts to ensure the Products align with the Product description stated on the packaging. However, due to the inherent variability of raw materials, including differences in quality and strength, minor variations between batches may occur.

(d) The packaging and Product labels of Your Products may look visually different from that shown on images on our Website.

8. Price of products and payments

8.1 Prices

(a) Once We receive Your order, We carry out a standard authorisation check on the credit or debit card You provided to Us at the time of checkout (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 must be treated as a deposit against the value of the Products You wish to purchase. Once the Products have been dispatched and a Contract exists after Your Dispatch Email has been sent, the monies paid as a deposit must be used as consideration for the value of Products You have purchased as listed in the Confirmation Email.

(b) The prices of the Products will be per unit as quoted on our Website (inclusive of GST). We take all reasonable care to ensure that the prices of Products are correct at the time when the relevant information was entered onto the system. However, please refer to clause 7(a) regarding the course of action if an Error in pricing is discovered or there is a change of price of the Products between the order date and dispatch date due to any significant tariff changes pursuant to clause 8.1(d).

(c) Subject to clause 8, prices for our Products may change from time to time, but changes will not affect any Order You have already placed.

(d) The applicable current rate of GST chargeable in Australia for the time being will be notified to You during the check-out process on our Website. However, if the rate of GST changes between the date of Your order and the date of delivery, We will adjust the GST You pay, unless You have already paid for the Products in full before the change in GST takes effect.

8.2 Payments

(a) For our online retail Customers, We accept payment using PayPal or Credit Card. We do not accept cheques, cash or money orders.

(b) All payments are processed at the point of order. Please ensure all contact details are correct when placing an order so We can get in touch should there be any issues. Please note Your order will not be processed until the issue is resolved.

8.3 Currency and discount and payment security

(a) All Product prices, shipping prices and payment transactions on the Website are quoted in Australian Dollars (AUD).

(b) We use secure payment gateways to process all transactions to ensure Your payment information is protected.

(c) Discount codes are only valid for orders placed and processed online at the online checkout portal and are not to be used in conjunction with any other offer. Discount codes, loyalty coupons, or reductions are not valid on the purchase of gift cards, however if You have a valid gift card these can be used with the application of promotional discounts current at the time of gift card redemption. Discounts cannot be credited or edited post checkout.

9. Indemnification of suppliers by manufacturers

The Vendor of Products is indemnified by the manufacturer under section 274 of the ACL if the Vendor:

(a) is liable to pay damages under section 259(4) of the ACL to the consumer for loss or damage suffered by the consumer; and

(b) the manufacturer is or would be liable under section 271 of the ACL to pay damages to the consumer for the same loss or damage.

10. Limitation on claims

(a) have no liability to the extent that Our performance of the Contract is prevented by a Force Majeure Event.

(b) To the extent permitted by law, We expressly disclaim and exclude liability for any direct, indirect or consequential loss or damage, claims, costs, expenses or injury incurred by any person in connection with our Site and/or the Products and services provided via our Website (directly or indirectly).

(c) We have no liability to the extent that a failure of the Products is attributable to any act or omission on Your part.

(d) Our liability for failure to comply with a consumer guarantee is limited to:

(i) in the case of Products supplied by Us, the replacement of the Products or the supply of equivalent Products (or the payment of the cost of the replacement or supply), or the repair of the Products (or the payment of the cost of the repair); and

(ii) in the case of services supplied by Us, the supply of the services again or the payment of the cost to the Customer of having the services supplied again.

(e) Subject to the prior, no attempt is made to exclude or limit liability arising under the ACL to the extent that there is a statutory restriction on such exclusion or limitation.

(f) Subject to applicable law, our total liability for any loss or damage, whether:

(i) arising under these Terms; or

(ii) arising in any other way out of or in connection with the supply, sale, delivery, or performance of the Products, whether in tort, contract, or any other cause of action,

shall not exceed the lower of AUD $1,000.00 or the total amount paid by the Customer to Nest and Bird in the six-month period preceding the date of the claim.

(g) Except in relation to liability for personal injury (including sickness and death), and except as otherwise stipulated in these Terms, We do not accept liability to You in respect of any indirect or special loss or damage which may be suffered or incurred by You in respect of Products or services supplied pursuant to these Terms.

11. Warranty disclaimer

(a) To the extent permitted by law, any condition or warranty which would otherwise be implied into these Terms is hereby excluded.

(b) The application of the United Nations Convention on Contracts for the International Sale of Products (the Vienna Convention) to this agreement (by virtue of any law relevant to this agreement) is excluded.

12. Intellectual property

(a) Where applicable, the specifications and design of the Products (being all intellectual property, including but not limited to, copyright, design right, trademarks or other intellectual property) remain Our property. You acknowledge and agree that the Products and Website are protected by copyrights, trademarks, patents or other proprietary rights and laws. All rights are expressly reserved by us.

(b) You shall not use the trademark, trade name or brand of any other intellectual property rights of the Vendor, whether design or word, as part of Your own trademark, in any manner that is likely to cause confusion and or in any manner which shall cause damage to our reputation.

(c) You are only allowed to use the trademark as set out in this Agreement and nothing in this Website and/or the Products shall be construed as conferring any license or other transfer of rights to You of any of our intellectual property or other proprietary rights.

(d) You agree not to infringe upon the intellectual property rights of any third-party contractors or vendors associated with Nest and Bird. Any unauthorised use of such third-party intellectual property rights is strictly prohibited and may result in legal action.

13. Title and risk

Title in the Products does not pass to You until payment has been received. Risk of loss or damage to the Products passes to You upon dispatch of the Products regardless that they are shipped with a third party.

14. Force Majeure

We shall not be liable for any failure or delay in performing our obligations under this Agreement if such failure or delay is caused by an event beyond our reasonable control (“Force Majeure Event”). If a Force Majeure Event occurs, our obligations under this Agreement shall be suspended for the duration of the event. We will notify You as soon as reasonably possible and agree on a new delivery date or, if necessary, may terminate the Agreement. Force Majeure Events include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fires, wars, acts of God, government decrees, proclamations or orders, transport difficulties, and failures or malfunctions of computers or other information technology systems.

15. Termination

(a) We reserve the right to terminate or suspend Your account, access to the Website, or any services provided to You, at Our sole discretion, immediately and without notice, if:

(i) You breach any of these Terms;

(ii) You engage in any misuse of the Website, including but not limited to actions that interfere with the operation or security of the Website, or violate any applicable laws or regulations;

(iii) We determine that Your actions or conduct may cause harm to Us, Our business, or other Users, including any fraudulent or illegal activity;

(iv) You fail to provide accurate, current, and complete information as required during the account creation process or when placing orders;

(v) We are required to do so by law or due to regulatory changes affecting Our services or Website.

(b) Either You or We may terminate this Agreement and Your account by providing 30 days written notice to the other party. Upon receiving such notice, the termination will take effect at the end of the 30-day notice period.

(i) Your right to access and use the Website and any services will immediately cease;

(ii) Any orders placed by You that have been confirmed and dispatched prior to termination will be fulfilled in accordance with these Terms;

(iii) We may, at Our sole discretion, cancel any outstanding orders or services, refunding You in accordance with our refund policy, where applicable;

(iv) Any provisions of these Terms that by their nature should survive termination shall continue to apply, including but not limited to limitations of liability, indemnities, and intellectual property rights.

(d) You may terminate Your account and cease using the Website at any time by providing written notice to Us. Upon receiving such notice, We will deactivate Your account and cease providing services to You. Any obligations incurred by You prior to the termination will remain in effect, including payment obligations for Products or services provided.

(e) Following the termination of this Agreement, whether by You or Us, You agree not to make any negative, disparaging, or defamatory comments, whether online or otherwise, about Nest and Bird, its directors, employees, agents, contractors, products, or services. This obligation survives the termination of this Agreement and is enforceable indefinitely.

(f) Upon termination, You shall continue to comply with any confidentiality obligations set out in these Terms. Any confidential information provided to You by Us during the course of the agreement must not be disclosed to any third party, and You must take all necessary steps to ensure that such information remains confidential.

(g) Any provisions of these Terms that by their nature should survive termination, including but not limited to intellectual property rights, limitation of liability, indemnities, and this Post-Termination Obligations clause, shall continue to apply following termination.

16. Waiver and severance

Any waiver of any provision of the Terms will be effective only if in writing and signed by Us. Without limiting the foregoing, if You breach these conditions and We take no action, We will still be entitled to use Our rights and remedies in any other situation where You breach these conditions. If any provision in these terms of use is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the reminder of these terms, which will continue in full force and effect. If We fail to enforce any of these terms, it will not be considered a waiver.

17. Dispute Resolution

(a) In the event of any dispute, controversy, or claim arising out of or in connection with these Terms, including any questions regarding their existence, validity, or termination ("Dispute"), the parties agree to first attempt to resolve the Dispute through good faith negotiations. A party must provide written notice of the Dispute to the other party ("Dispute Notice"), and the parties shall meet (either in person or remotely) within 10 business days of receiving the Dispute Notice to attempt to resolve the Dispute.

(b) If the Dispute cannot be resolved through negotiation within 30 days of the Dispute Notice, the parties agree to attempt to resolve the Dispute by mediation. The mediation shall be conducted in accordance with the procedures of the Australian Disputes Centre (ADC) or another mutually agreed mediation service. The mediation shall take place in New South Wales, and the language of the mediation shall be English. Each party shall bear its own costs in relation to the mediation, and the parties shall equally share the mediator's fees.

(c) If the Dispute is not resolved through mediation within 60 days of the Dispute Notice, the Dispute shall be finally resolved by binding arbitration administered by the Australian Centre for International Commercial Arbitration (ACICA) in accordance with the ACICA Arbitration Rules. The arbitration shall be conducted by a single arbitrator, and the seat of arbitration shall be in New South Wales. The arbitration shall be conducted in English. The arbitrator's decision shall be final and binding on the parties, and any court of competent jurisdiction may enter judgment on the award.

(d) Notwithstanding the above, either party may seek interim or injunctive relief from a court of competent jurisdiction in New South Wales if such relief is necessary to protect its rights or property.

(e) These Terms and any Dispute arising out of or in connection with these Terms shall be governed by and construed in accordance with the laws of New South Wales, Australia.

18. Governing law

These Terms are governed by the laws in force in the state of New South Wales. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction.

19. Customer Service

Nest and Bird is committed to providing exceptional customer service and quality Products. If You have any questions about our Terms and Conditions, the practices of this Site, or Your dealings with this Site, please get in touch with our customer service team. We will get back to You in 24-48 hours.