FLEMING’S NURSERIES PTY LTD TERMS AND CONDITIONS OF SALE
1 DEFINITIONS
For the purpose of these Terms and Conditions of Sale (“Terms”):
1.1 Customer means the purchaser of the goods or services from Fleming’s.
1.2 Effective Control means the ability to control the composition of the board of directors or having more than 50% of the shares giving the right to vote at general meetings.
1.3 Fleming’s or we or us means Fleming’s Nurseries Pty Ltd ACN 006 532 556.
1.4 Fleming’s Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, plant breeders’ rights, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields owned or licensed to Fleming’s.
1.5 Goods means botanical plant material including but not limited to trees, cultivars, shrubs, rootstock, propagating material, potting mix, soil amendments, nutritional supplements and fertilizers supplied by Fleming’s to the Customer.
1.6 Deposit means an amount paid by the Customer to Fleming’s when placing an order for the purpose of securing that order.
1.7 GST Act means A Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
1.8 Insolvency Event means any of the following events:
1.8.1 in respect of a Customer that is a corporation,
(a) a receiver, receiver and manager, trustee, other controller as defined in section 9 of the Corporations Act 2001 (Cth) or similar official is appointed over any of the assets or undertaking of the Customer;
(b) the Customer suspends payment of its debts generally;
(c) the Customer is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act 2001 (Cth); or
(d) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator;
(e) an application or order is made for the winding up or dissolution of the Customer or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Customer, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of Fleming’s; or
(f) the Customer ceases to carry on business or threatens to cease to carry on business,
1.8.2 in respect of a Customer who is an individual, the party becomes bankrupt or enters into any arrangement or composition with his or her creditors or proposes to do so.
1.9 Plant Breeder’s Rights or PBR has the definition attributed to PBR under the Plant Breeder’s Rights Act 1994 (Cth).
1.10 PPS Act means the Personal Property Securities Act 2009 (Cth).
1.11 Services means services provided or supplied to the Customer by Fleming’s, including but not limited to tree supply, planting and maintenance.
1.12 Terms mean the terms and conditions as set out in this document.
2 APPLICATION OF TERMS
2.1 These Terms apply to the sale of goods from Fleming’s to the Customer and to the entire exclusion of any other terms or conditions which may be proffered by the Customer (including the Customer’s order) which are in any way inconsistent with these Terms and notwithstanding that but for this provision Fleming’s would or might otherwise be regarded as having accepted or agreed to be bound by such other terms and conditions.
2.2 By ordering goods from Fleming’s after receipt of these Terms, a Customer is taken to have read and agreed to be bound by these Terms.
2.3 The Terms will be governed by the laws of Victoria and only the Courts of Victoria will have jurisdiction over any dispute arising under these Terms.
2.4 None of Fleming’s agents, representatives, licensees or associates are authorised to make any representations, statements, conditions or agreements not confirmed in writing by us and we will not be bound by any such unauthorised statements.
3 ORDERS
3.1 The Customer is not entitled, as of right to cancel any order placed with Fleming’s.
3.2 Fleming’s may allow the Customer to cancel an order, but this will be entirely at Fleming’s discretion with such conditions as Fleming’s may impose. If, however, the Customer does cancel an order without Fleming’s written permission or fails or refuses to take delivery of any of goods, Fleming’s will be entitled to resell those goods if possible, without prejudice to any other rights or remedies available to Fleming’s. Any deficiency on resale will be a debt due by the Customer to Fleming’s payable on demand.
3.3 Fleming’s may require the Customer to pay a deposit as part payment for the purchase price of the goods. Fleming’s acceptance of the deposit will not constitute an acceptance of any offer made by the Customer and will not bring into force any binding legal agreement for Fleming’s to supply the Customer with the goods ordered. Where a Customer who has paid a holding-deposit cancels an order without Fleming’s written permission or fails or refuses to take delivery of any of the goods then the deposit will be forfeited to Fleming’s. The Customer acknowledges that the deposit represents a genuine pre-estimate of Fleming’s minimum probable loss in such circumstances.
4 PAYMENT TERMS
4.1 Except where some other arrangement has been made (e.g. cash on delivery or cash in advance), Fleming’s terms of payment are net 30 days from date of delivery, or, if the Customer fails or refuses to take delivery, 30 days from such failure or refusal.
4.2 Fleming’s reserves the right to charge interest on overdue accounts at the rate being 2.00% more than the rate set pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic).
5 GST
5.1 All prices for goods are exclusive of GST, unless otherwise stated. In addition to the price for the goods, the Customer must pay GST at the prevailing GST rate on those amounts, if applicable. Fleming’s tax invoice will include details of GST charged.
6 DELIVERY OF GOODS
6.1 Fleming’s will use all reasonable endeavours to ensure that the goods are available for delivery by the date or dates (if any) specified in any of Fleming’s documents but will not be liable if they are unable to have those goods available for delivery by the specified date or dates.
6.2 The Customer must notify Fleming’s of any alleged shortages or damage to or defect with the goods within 48 hours of delivery of the goods and confirm in writing within 14 days otherwise claims will not be recognised. Upon such notification, Fleming’s require the opportunity to inspect any of the goods relative to any form of claim following delivery.
6.3 Fleming’s are not liable for any damage to goods or loss of goods while the goods are in transit, unless otherwise agreed to in writing. All such claims are to be referred to the relevant freight provider.
6.4 Fleming’s will arrange delivery at the Customer’s cost.
6.5 On receipt of the goods by the Customer, the Customer agrees to assume liability for the performance of the goods. Any complaint by the Customer’s customer regarding the goods is the responsibility of the Customer.
7 ACKNOWLEDGEMENTS
7.1 The Customer acknowledges and agrees that:
7.1.1 where goods constitute plant material, growth and performance is dependent on a wide range of conditions beyond Fleming’s control;
7.1.2 Fleming’s make no guarantee as to the suitability of any of the goods for any specific use
7.1.3 Fleming’s do not recommend any one particular type of goods in preference to any other, and
7.1.4 Fleming’s do not claim to be an authority on any one of the goods.
7.2 The Customer acknowledges that the propagation of goods is subject to many influences, some of which are outside Fleming’s control. These influences may affect Fleming’s ability to deliver the goods that have been ordered. Fleming’s will not be liable to the Customer if their ability to deliver the number of goods ordered is affected by any of these influences.
8 INFORMATION
8.1 All information is believed to be correct at the time that it is conveyed to the Customer and is given in good faith. To the extent permitted by law, Fleming’s disclaims all liability for loss suffered as a result of reliance on any information provided. The Customer accepts responsibility for their own choices of goods, irrespective of any recommendations, advice or information provided by Fleming’s.
9 RISK AND RETENTION OF TITLE
9.1 Property in the goods will not pass to the Customer until the Customer has paid for them in full.
9.2 Risk in the goods will pass to the Customer from the time at which Fleming’s have made them available for delivery or delivery of the goods has been accepted by the Customer.
9.3 The Customer understands that they are a bailee or custodian of the goods on Fleming’s behalf until such time as the goods have been paid for in full. As custodian the Customer is not allowed to sell them or alter the goods in any manner and the Customer must insure the goods for their full insurable value until they have been paid for in full. If however the Customer does sell the goods then the proceeds of such sale will be deemed to be held on trust for Fleming’s until all of the goods have been paid for in full. If the Customer alters the goods in any way prior to payment in full, then they do so at their own risk.
10 SECURITY INTEREST
10.1 Expressions used in this clause 10 have the same meanings as when used in the PPS Act.
10.2 If Fleming’s already has a perfected security interest in goods previously supplied to the Customer together with their proceeds, that security interest continues in relation to those goods and the goods supplied or to be supplied under these Terms. Otherwise, the Customer grants to Fleming’s a security interest in the goods supplied on credit and any proceeds in the goods supplied on credit and all the Customer’s present and future rights in those goods and any proceeds as security for payment of all amounts the Customer owes Fleming’s.
10.3 The Customer acknowledges that:
10.3.1 Fleming’s may register this security interest with the Registrar of Personal Property Securities pursuant to the PPS Act in order to perfect its security interest;
10.3.2 the Customer agrees that the security interest granted to Fleming’s pursuant to these Terms may be registered as a purchase money security interest in relation to the goods and the proceeds of the goods;
10.3.3 if requested, the Customer must pay or reimburse the costs of registering the security interest, and provide Fleming’s with all assistance reasonably required in order for Fleming’s to register the security interest; and
10.3.4 for the purpose of section 115 of the PPS Act, the following sections of the Act do not apply to these Terms: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and 135.
10.4 Where goods that Fleming’s has supplied to the Customer become mixed with other similar goods supplied by other persons or converted, the Customer grants Fleming’s a security interest in the mixed or converted goods to the value of the goods that Fleming’s has supplied to the Customer, but which have not yet been paid for, together with their proceeds.
10.5 The Customer consents to Fleming’s searching the Personal Property Securities Register at any time for any information about the Customer.
10.6 The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest granted under these Terms.
10.7 In the event that a third party has registered a security interest that has priority over the goods, the Customer must procure that the third party enters into a deed of priority with Fleming’s to ensure that Fleming’s security interest in the goods has first priority.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 Nothing in these Terms affects the right, title or interest in Fleming’s Intellectual Property Rights and Fleming’s retains the full, right title and interest in Fleming’s Intellectual Property Rights to the exclusion of the Customer.
11.2 The Customer must not claim ownership of or any interest in Fleming’s Intellectual Property Rights.
11.3 The Customer acknowledges that certain goods may be subject to Plant Breeder’s Rights . The Customer undertakes not to exploit any goods which are subject to these rights, except in accordance with the Plant Breeder’s Rights Act 1994.
11.4 Unless otherwise agreed to in writing, the Customer is not permitted to use any of the Fleming’s Intellectual Property Rights.
12 DEFAULT
12.1 If:
12.1.1 the Customer defaults in payment of any amount owed by the Customer to Fleming’s;
12.1.2 the Customer fails to comply with any provision of these Terms;
12.1.3 without Fleming’s written consent the Customer, being a corporation, has a different person in effective control of the Customer as a result of changes in:
(a) membership of the company or its holding company,
(b) beneficial ownership of the shares in the company or its holding company, or
(c) beneficial ownership of the business or assets of the company, unless the Customer is a public company listed on the Australian Stock Exchange, or a subsidiary of one;
12.1.4 the Customer, being an individual, dies or becomes of unsound mind; or
12.1.5 an Insolvency Event occurs in relation to the Customer; then, except as otherwise provided by law, the Customer is deemed to be in default of the Terms.
12.2 Upon an Event of default occurring under clause 12.1 of these Terms:
12.2.1 Fleming’s and/or its duly authorised agents may, without affecting any of Fleming’s other rights or remedies and without notice to the Customer, enter the Customer’s premises or any other premises where goods, the subject of a retention of title under clause 9, are situated for the purpose of recovering possession of the goods (without liability for trespass or any resulting damage) and recover possession of and retain or resell the goods;
12.2.2 if the Customer has sold the goods or utilised, mixed, built into any other products or disposed of or stored the goods in such a manner as to render the goods irrecoverable or unidentifiable, the cost of the goods will immediately be a debt due by the Customer and recoverable by an action in law; and
12.2.3 the Customer appoints Fleming’s as its attorney, in connection with Fleming’s rights and remedies pursuant to these Terms and any other rights or remedies which may accrue to Fleming’s, to do all things, execute all documents and otherwise act in place of the Customer for the purposes of giving effect to these Terms. Without limiting this provision, the attorney may recover possession of the goods and recover the proceeds of the sale of the goods which may at any time be received or receivable by the Customer.
12.3 The rights of Fleming’s under this clause 12 are in addition to any other rights or remedies that Fleming’s may have at law or otherwise.
13 FLEMING’S WARRANTIES AND LIMITATION OF LIABILITY
13.1 Fleming’s will take reasonable care to ensure that where labels are affixed to the goods, that the goods will be correctly labelled.
13.2 Any warranty in relation to any defect concerning the goods will not apply and is expressly excluded if the defect is due to or caused by:
13.2.1 abnormal or extreme temperatures;
13.2.2 other abnormal weather conditions;
13.2.3 tampering with goods, other than by Fleming’s;
13.2.4 unauthorised modification of goods;
13.2.5 damage during transportation of goods without fault on the part of Fleming’s; or
13.2.6 the Customer’s failure to ensure proper storage and maintenance of goods.
13.3 To the maximum extent permitted by law, Fleming’s are not liable and the Customer must indemnify Fleming’s in respect of all claims for physical or financial injury, loss or damage, or for consequential loss or damage of any kind arising out of the supply of the goods or arising out of the Customer’s negligence or in any way whatsoever.
13.4 All other express or implied conditions and warranties under statute, general law or trade usage including, in particular, but not limited to any related to identity, quality, description, trueness to type, merchantability or fitness of the goods for any particular purpose, are hereby expressly excluded.
13.5 Subject to clause 13.6, and with the exception of any warranties expressly provided in the Fleming’s product catalogue to the maximum extent permitted by law, Fleming’s makes no warranties or representations and the Customer releases Fleming’s from all liability for any loss, claim, damage or injury suffered in connection with the supply of the goods.
13.6 Fleming’s liability to the Customer in respect of any non-excludable warranty or condition shall be limited to the maximum extent possible to either of the following (as Fleming’s may decide):
13.6.1 the replacement of the goods or the supply of equivalent goods; or
13.6.2 the payment of the cost of replacing the goods or of acquiring equivalent goods.
13.7 Whilst Fleming’s will use all reasonable endeavours to ensure that the goods sold to the Customer are propagated using the best available propagation material available at the time of propagation, Fleming’s will not be responsible for any loss or damage caused by pests, diseases and/or viruses latent or patent. Any liability in this regard will be limited on the same basis as set out in clause 13.4.
14 CUSTOMER WARRANTIES
14.1 The Customer warrants and represents to Fleming’s that:
14.1.1 all information provided by the Customer to Fleming’s is true and correct, and not misleading in any way;
14.1.2 the Customer has full power and lawful authority to execute and deliver these Terms and to perform or cause to be performed its obligations under these Terms;
14.1.3 these Terms constitutes a binding obligation of the Customer enforceable in accordance with its terms by appropriate legal remedy; and
14.1.4 the entry into and performance of these Terms does not breach:
(a) any obligation (including any statutory, contractual or fiduciary obligation) of the Customer;
(b) any law; or
(c) the constitution (or any trust deed of the Customer).
15 GUARANTEE
15.1 If the Customer is a company or partnership Fleming’s may require that a Guarantee & Indemnity be signed by each of the Customers directors or partners.
16 GENERAL
16.1 The Customer authorises Fleming’s to obtain credit reports from credit reporting agencies and trading information from references supplied, and to disclose trading information to other suppliers and credit agencies.
16.2 The Customer undertakes to provide Fleming’s with not less than twenty-one (21) days prior written notice of any proposed change in the Customer’s business name and or any changes in the Customer’s details (including but not limited to, changes in the Customer’s street address or email address, telephone and facsimile numbers, or business practice).
16.3 The Customers agrees and undertakes to fully indemnify Fleming’s in regard to any breach of the provisions of these Terms by the Customer or by its agents, employees, or representatives.
16.4 If the Customer is a trustee, the Customer is bound both personally and in the Customer’s capacity as trustee.
16.5 Fleming’s may vary or replace these Terms from time to time on 30-days notice to the Customer. If the Customer continues to order goods after receipt of the notice of variation, the Customer is deemed to have agreed to the variations.
16.6 No rule of contract interpretation must be applied in the interpretation of these Terms to the disadvantage of one party on the basis that it prepared or put forward these Terms or any document comprising part of these Terms.