Terms and Conditions of Sale

1. General

(a)          The following terms and conditions shall be applicable to all offers and transactions made by AustraHort Australia Pty Ltd (ABN 17 636 395 447) (Seller). The Seller reserves the right to refuse any offer of purchase for whatever reason.

(b)          A binding agreement (on the terms in these conditions of sale and the Sales Order) between the Seller and the Buyer arises in relation to the sale of Seeds at the time the Sales Order is issued to the Buyer.

(c)           For the purpose of these terms:

(i)            Buyer means the party entity which purchases the Seeds from the Seller;

(ii)           GST means goods and services tax applicable in Australia;

(iii)          Payment Requirements are detailed in the Quote;

(iv)         Purchase Order is a request from the Buyer to the Seller to purchase Seeds following receipt by the Buyer of a Quote from the Seller;

(v)          Quote means the quote from the Seller issued following its receipt of a purchase order from or on behalf of the Buyer.

(vi)         Sales Order means the order issued by the Seller for the sale of Seeds to the Buyer following receipt of a Purchase Order from the Buyer; and

(vii)        Seeds means the seeds identified in the Sales Order issued to the Buyer;

2. Buyer’s acceptance

2.1          Seed Analysis Certificate and Bag Label

(a)          The Buyer agrees that prior to the issue of the Sales Order it had the opportunity to request a seed analysis certificate for each species referred to in the Sales Order. If the Buyer requests a seed analysis certificate linked to the Seeds in the Sales Order it agrees that it is purchasing the relevant species in the Sales Order substantially consistent with the certificate.

(b)          The Buyer will not be able to make any claim against the Seller if the species in the Sales Order are delivered to the Buyer substantially consistent with the seed analysis certificate(s).

(c)           If the Buyer does not request a seed analysis certificate in relation to a Sales Order the Buyer will not be entitled to make any claim against the Seller in relation to the integrity of the Seeds and whether or not the Seeds provided pursuant to the Sales Order are fit for the purpose and use for which the Buyer intends in relation to the Seeds.

(d)          If a Purchase Order requires the supply of Seeds in multiple batches over a period of time then the Seller will if required by Buyer provide a seed analysis certificate for each batch that is supplied and ensure the certificate is to at least the standard referred to in the Quote. The Buyer will not be able to make any claim against the Seller if the species in any delivered batch is at least to the standard referred to in the Quote.

(e)          The Buyer agrees that it has the opportunity to read the bag label upon delivery and ensure the contents in the bag are consistent with the Purchase Order and (if appropriate, the relevant seed analysis certificate).

2.2          Buyer acknowledgement

(a)          The Buyer acknowledges:

(i)            the Seeds are biological material;

(ii)           that owing to the numerous variables associated with the collection, cleaning, treatment and response of biological material,

there is no guarantee of success in seed germination and genetic purity of Seed or for the accuracy of technical advice provided.

Accordingly, no warranty, representation, promise, condition or statement in relation to the matters in clause 2.2(a) whether express or implied and whether statutory or otherwise are to the fullest extent permitted by law, expressly excluded.

(b)          The Seller excludes all implied conditions and warranties except any implied condition or warranty except to the extent the exclusion of which would contravene any statute or cause any part of this clause 2 to be voided at law.

(c)           To the extent permitted by law, the Seller’s liability for a breach of a condition of a Seller’s warranty in this agreement is limited to any one or more of the following (at the Seller’s option):

(i)            the replacement of the goods or the supply of equivalent goods, or

(ii)           the refund of cost of the Seeds.

(d)          In no event will the Seller be liable for any special, incidental, indirect or consequential damages or exemplary or punitive damages or damage to personal property or injury or death to persons.

(e)          All technical advice, treatments and descriptions including but not limited to seed counts, growth form, germination rate and growth rate are provided gratis and in good faith as approximations. Significant variations may occur due to climate, location, husbandry conditions and factors beyond the control of the Seller.

(f)           If the sale relates to a blend of Seeds in package(s) the Buyer acknowledges:

(i)            the contents are blended prior to packing on weight;

(ii)           the contents may settle during handling and transit;

(iii)          the contents of the packaging of the Seeds may need to be removed and re-blended as a result of settling during transit and prior to use to maintain homogeneity; and

(iv)         the Buyer is to take appropriate steps to assess the contents of the packs of Seeds to ensure suitability for use with the intended planting machinery and method.

(g)          If the Buyer is a consumer within the meaning of the Competition and Consumer Act 2010 (ACL), the Buyer’s liability for the supply of the Seeds is limited to the extent permitted by section 64A of Schedule 2 of the ACL.

(h)          The invoiced weight of the Seeds has been determined at the time of packing the Seeds to deliver to the Buyer. The Buyer cannot make any claim against the Seller if the weight of the Seeds at or following delivery is less than the invoiced weight within 1%. Weight can vary due to air moisture levels during transport or storage.

3. Offers and prices

(a)          Unless otherwise stated all prices are in Australian Dollars (AUD) and include GST (unless the sale of the Seeds is exempt from GST).

(b)          Unless expressly included, postage/freight from the Seller’s premises are to be borne by the Buyer.

(c)           Prices are subject to change without notice.

(d)          The costs of permits, certificates, quarantine, biosecurity, phytosanitary certificates etc and any other costs resulting from the delivery of the Seeds and the fulfilment of the contract as required by the Buyer are for the Buyer’s account unless otherwise agreed. For example the cost of any phytosanitary certificate, inspections by or requirements of any law or government or authority are to be to the account of the Buyer and payable by the Buyer in accordance with the Payment Requirements. The costs imposed by Western Australian quarantine are to be paid by the Buyer. The cost of DPI Biosecurity in Tasmania is to be paid by the Buyer.

(e)          Payment to be made in accordance with the Payment Requirements .

(f)           All bank transfer costs to be to the Buyer’s account.

(g)          The Buyer shall not be entitled to retain all or part of a payment for compensation.

(h)          The Seller is entitled to demand full payment and/or sufficient security for payment by the Buyer before performing its obligation to provide Sseeds, if there is a valid reason to believe that the Buyer will not or cannot fulfill its obligations correctly and/ or in time.

(i)            If pursuant to the Payment Requirements payment is required in full before delivery then delivery will not occur until payment in full is made.

(j)           Loss of or damage to the Seeds after risk has passed to the Buyer does not discharge the Buyer from its obligation to pay the Price unless the loss or damage is due to the act or omission of the Seller.

(k)          A minimum order quantity applies to webstore orders of 25 grams if sold by weight and 100 seeds if sold by seed count.

(l)            The Seller reserves the right to charge interest at a rate of 12% per annum on all overdue amounts. Such interest to be charged monthly.

3.2          Account customers

Payment is due in accordance with the terms of the Quote.

3.3          Webstore customers

Credit card payment will only be processed upon delivery of available Seed.

3.4          Price structure

(a)          10 grams or less - calculated at half the 25 grams price.

(b)          25 grams to 249 grams - calculated in multiples of the 25 grams price.

(c)           250 grams and over - calculated using the kg price.

(d)          100 seeds and over - calculated using the 1000 seeds price.

4. Delivery and Risk

4.1          Title passes

Title to the Seeds remains with the Seller until the Seller has received full payment for the Seeds.

4.2          Risk

Risk in the Seeds passes to the Buyer on delivery of the Seeds to the Buyer.

4.3          Delivery

Delivery of the Seeds occurs:

(a)          if the Seeds are collected from the Seller’s premises by any of the Buyer or transport organised by the Buyer or the Seller- when the Seeds are collected from the Seller’s premises;

(b)          if the Seeds are delivered to a carrier (either nominated by the Buyer or the Seller) for delivery by the carrier (and sub-clause 4.3(c) does not apply) – at the time the Seeds are delivered to the carrier; or

(c)           If the Seeds are delivered to a freight forwarder or carrier (either nominated by the Buyer or the Seller) for the purpose of quarantine inspection and/ or overseas shipping to the Buyer – at the time the Seeds are delivered to the freight forwarder or carrier (as applicable).

The fact that the Seller is authorised to retain documents controlling disposition of the Seeds does not affect the delivery of Seeds.

4.4          Buyer must take delivery

The Buyer must take delivery of the Seeds by receipt or collection when tendered for delivery.

4.5          Instalment deliveries

The Seller may deliver the Seeds in separate instalments. Each separate instalment shall be invoiced and paid in accordance with these terms and conditions including the Payment Requirements.

4.6          Insurance

Prior to delivery of the Seeds the Buyer must effect transit insurance for the full replacement value of the Seeds. If the Buyer has not paid the Purchase Price in full prior to the delivery of the Seeds, the Buyer must provide evidence of its compliance with this clause prior to delivery of the Seeds.

5. Minimum order value

A minimum order value for non-account customers is $35.00 per order, including postage and GST.

6. Availability

Seed availability is seasonal and subject to crop. In the event there is not sufficient availability of Seed to the Seller, the Seller is not obliged to deliver the ordered amount. The Seller may at its sole election deliver pro-rata quantities. The Buyer is not entitled to any compensation if there is not sufficient Seed availability. However, if the Buyer has paid for the Seed which cannot be delivered because of it not being available to the Seller, the Seller will refund the relevant amount to the Buyer.

7. Placement of orders

(a)          If applicable, import permits or other authorizing documents of the country to which an order is to be sent must be advised by the Buyer with the Purchase Order.

(b)          Items not available shall be placed on backorder for supply as the items become available, unless specified to the contrary. Backorders over 12 months old will not automatically be sent (customers will be notified of availability and current price before despatching).

8. Delivery and shipping policy

(a)          For non-account customers, orders will be despatched as soon as payment has been received for the order.

(b)          Should an article arrive damaged during transit, please raise a case with the carrier directly. The Seller ensures all parcels are well packaged. The Seller is not liable for damage or loss during transit.

(c)           Export – the Seller will arrange for export documentation when required for overseas sales. The Buyer is responsible for the cost of export documentation and freight costs.

9. Refund policy

No Seeds may be returned without first obtaining written authorisation from the Seller. No returns will be considered unless they are in the original unopened packaging of the Seller.

10. Cancellation of orders

(a)          Once the Sales Order issues it may only be cancelled with the Seller’s consent.

(b)          In the event of liquidation, bankruptcy or suspension of payment by the Buyer for any reason whatsoever, all outstanding payments fall due and the Seller may cancel any agreement with the Buyer without prejudice to the Seller’s right to claim compensation or any other legal remedy against the Buyer.

11. Personal Property Securities Act (Cth) (PPSA)

11.1        This agreement is a security agreement. Expressions defined in the PPSA have the same meaning when used in this agreement.

11.2        The interest of the Seller in the Seeds and all proceeds from the sale of the Seeds by the Buyer to a third party is a security interest.

11.3        The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Seller to facilitate registration.

11.4        Until title in the Seeds has passed to the Buyer as contemplated by clause 4.1, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Seeds in a manner as to create, a security interest over, the Seeds in favour of the Buyer or any third party.

11.5        The Buyer waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.

11.6        The Seller and the Buyer agree:

(a)          that this agreement and all related information are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties except to the extent disclosure is permitted by this agreement or required by law; and

(b)          that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.

11.7        The Seller and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Seller’s security interest in the Seeds or this agreement:

(a)          any requirement for the Seller to give the Buyer a notice of removal of accession;

(b)          any requirement of the Seller to give the Buyer notice of the Seller’s proposed disposal of the Seeds;

(c)           any requirement for the Seller to include in a statement of account after the disposal of the Seeds, the details of any amounts paid to other secured parties;

(d)          any requirement for the Seller to give the Buyer a statement of account if the Seller does not dispose of the Seeds;

(e)          any right the Buyer has to redeem the Seeds before the Seller exercises a right of disposal; and

(f)           any right of the Buyer has to reinstate this agreement before the Seller exercises a right of disposal of the Seeds.

12. Applicable Law

The law of the State of Queensland will apply to this agreement between the Buyer and the Seller.

13. Privacy policy

The Buyer acknowledges that at the time of lodging its Purchase Order it was aware of the Seller’s privacy policy and agrees to the provisions of that policy.

14. Acceptance of these terms

14.1        The placing of a Purchase Order by any means conveys the Buyer’s acceptance of the foregoing terms and conditions.