In these Terms:
1. Application of Terms
Unless we agree otherwise in writing, these Terms will apply to every Agreement and cannot be varied or replaced by your own terms and conditions of purchase.
We may vary or amend these Terms at any time, at our discretion. We will notify you of any amendments or variations to the Terms, as soon as practicable
We may accept or reject orders, at our absolute discretion.
When placing an order you must advise us verbally or in writing of any specific requirements in relation to the goods or services. This includes any site induction requirements and site particulars.
If the Customer is a Company, its Directors must give written personal guarantees for the performance of the Company’s obligations, in the form provided by us for this purpose.
Prices quoted for the supply of goods and services are exclusive of GST and any other applicable taxes, duties and delivery charges. These are payable by you in addition to the Price.
A written quotation is valid for 30 days unless stock is sold out earlier.
If you request any variations after placing your order, the price will be adjusted accordingly.
Unless otherwise agreed in writing payment in full is due on or before delivery.
Approved Credit Customers will be invoiced upon delivery and payment must be made within 14 days from the date of invoice or within such longer credit period as has been approved in writing.
Terms for payment for Contract Growing will be as specified in the Contract Growing Acceptance form.
The time for payment is of the essence.
5. Default in Payment
If you do not pay by the due date we may, at our option and without prejudice to any other rights we may have:
(a) charge interest on any sum due at the rate of 10% per annum from the due date until the date of payment in full; charge you for all costs and expenses incurred by us as a result of your default; and/or
(b) terminate any uncompleted Agreement with you.
Unless we have agreed otherwise in writing, orders will only be dispatched upon payment in full of our invoice.
We will arrange for the delivery of goods to you, at your cost.
Delivery charges are calculated based on the delivery destination, quantity and size of trees. We will do our best to advise you of the estimated charges upon placement of your order. However, this estimate is not binding on us. The actual delivery costs may vary and are payable in full by you.
Any date for delivery of goods is an estimate only and not a contractual commitment. We will use our best endeavours to meet the delivery date but will not be liable for any loss or damage suffered by you or any third party if we fail to meet the delivery date. If we cannot make delivery on the delivery date we will make delivery as soon as practicable and within a reasonable time.
We reserve the right to make partial delivery of your order where necessary.
For orders where tree stock exceeds 100 Litres, we require you to supply a suitable person at the delivery address able to assist with unloading. If you are unable to supply such a person, and we may provide a second delivery person, subject to availability, at an additional cost to you.
Deliveries are subject to the rules and regulations of the relevant responsible authorities as in force from time to time.
If delivery is attempted at the agreed time and place and is unable to be completed through no fault of our own, you are deemed to have taken delivery of the goods. You will be liable for the costs of re-delivery and any storage and handling costs arising from the failed delivery attempt. These costs are payable upon demand.
If we have agreed that you will collect the goods from us:
(a) you must collect the goods within 30 days of being advised they are ready for collection;
(b) failure to collect the goods within this time, may result in us charging a holding fee calculated at the rate of 2.5% of stock value, per week.
7. Retention of Ownership
Until we receive payment from you in full:
(a) we retain ownership of all goods;
(b) you must hold the goods as fiduciary bailee and agent for us;
(c) you must keep the goods separate from your own goods and maintain our labelling and packaging;
(d) you must hold any proceeds of sale of the goods on trust for us in a separate account, however failure to do so will not affect your obligation to deal with the proceeds as trustee; (e) in addition to our rights under the PPSA, we may without notice, enter any premises where we suspect goods are and remove them, and for this purpose you irrevocably license us to enter such premises and you indemnify us from and against all costs, claims, demands or actions by any party arising from such action.
8. Defects and Shortages
Any shortage or damage to plants in transit must be drawn to the attention of the carrier at the time of delivery.
Any claims for defects must be notified to us within 3 days after delivery.
If we accept a claim for damage or shortage we may, at our option replace the goods or refund the purchase price.
Our liability is limited to the maximum extent permitted by the ACL. No liability is accepted in excess of the price paid.
Unless otherwise agreed with us in writing, we will not accept liability for the continued growth and health of trees after delivery.
We will not under any circumstances accept goods for return that:
(a) have been specifically produced, grown or acquired to fulfil the Agreement;
(b) are no longer stocked by us;
(c) have been altered in any way;
(d) have been used or planted; or
(e) are not in their original condition and packaging.
Except as expressly stated in these Terms or as provided by law, no terms conditions or warranties be implied in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, or performance of the goods or services or any contractual remedy for their failure.
Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
If we are unable to deliver the goods as ordered, we will contact you to discuss a suitable alternative. We reserve the right to cancel the Agreement by written notice to you if no suitable alternative can be agreed.
10. Force Majeure:
We are not liable in any way, to the extent that we are prevented from performing the Agreement by events beyond our reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, we may suspend or terminate the Agreement by written notice to you.
11. Risk and Insurance
All risk in the goods and all responsibility for insurance for theft, damage or otherwise will pass to you immediately on delivery or supply (ie: pickup by you or another freight carrier)
To the full extent permitted by law, we exclude all risk and liability for loss, damage or injury to persons or to property arising out of the use or possession of any goods sold.
12. Our Guarantee
We guarantee that all trees supplied by us will be true to type and in a sound and healthy condition at the time of delivery. If any trees do not meet these criteria, we will replace them or, at our discretion, refund the price provided that we must be notified of any defects within 3 days of delivery.
13. Personal Property Securities Act
The PPSA applies to these Terms and, for the purposes of the PPSA:
(a) terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement and we have a Purchase Money Security Interest in all present and future goods supplied by us to you and the proceeds of the goods;
(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by you at any time; and
(d) you must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by us on the Personal Property Securities Register.
The security interest arising under this clause attaches to the goods upon delivery.
Where permitted by the PPSA, you waive any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121 (4), 130, 132 (3)(d), 132 (4), 135 and 157 of the PPSA.
You agree to contract out of the provisions of sections 96, 125, 129, 142 and 143 of the PPSA.
To the extent permitted by the PPSA, you agree that:
(a) the provisions of Chapter 4 of the PPSA which are for your benefit or which place obligations on us will apply only to the extent that they are mandatory or that we agree to their application in writing; and (b) where we have rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
You must, immediately upon our request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by us to be relevant to our security position such agreements and waivers (including as equivalent to those above) as we may at any time require.
We may allocate amounts received from you in any manner we determine, including in any manner required to preserve any Purchase Money Security Interest we have in goods supplied by us.
For the purposes of section 275 (6) of the PPSA, you agree that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.
These Terms are governed by the laws in force in the State of Victoria from time to time. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts. Any failure by us to enforce any of these Terms shall not be construed as a waiver of any of our rights.
If any term is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
A notice, must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by prepaid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
The Customer must comply with the National Privacy Principles in connection with any personal information supplied to it in connection with this Agreement.
15. Contract Growing Additional Terms:
The following terms will apply to Contract Growing Agreements in addition to the above terms:
Upon receipt of your order we will forward to you a Contract Growing Acceptance form confirming your order, the agreed delivery date, the price and instalment payments. We will commence growing after we receive a satisfactorily completed Contract Growing Acceptance form and the initial deposit.
If you cancel the Contract Growing Agreement at any time after submitting the Contract Growing Acceptance form, the deposit will be forfeited.
Any price discount offered will be applied to the final payment and only if all payments are made in full by the due date.
Freight charges will be advised after you confirm delivery details. The payment schedule excludes freight charges unless we advise otherwise.
Trees will naturally vary in size, colour and height. Heights and other descriptions are provided in our brochures for general guidance only and will not be binding on us.
If you require us to hold goods for more than 30 days after the agreed delivery date, we will charge you a holding fee of 2.5% of stock value per week. We may, at our discretion, extend the hold period and/or adjust the hold fee percentage.
Your contract grow order will only be despatched after we receive your payment of the related invoice.
Version 1.0 (Last updated 18/04/2016)
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