Terms of Trade

1. CONTRACT DOCUMENTS

1.1 These Terms of Trade apply to all transactions between the Buyer and Seller relating to the provision of Goods and Services. This includes all quotations, orders, variations and invoices.
1.2 These Terms of Trade shall take precedence over any other terms of trade contained in any document of the Buyer or otherwise.

2. AGREEMENT TO BUY AND SELL

In return for the Buyer paying the purchase price specified in the Order Confirmation Form, the Seller agrees to sell and the Buyer agrees to buys the Goods and Services in accordance with these Terms of Trade.

3. QUOTES

3.1 Any quotation given by the Seller must be in writing and will remain current for fourteen (14) days from the date upon which it is given, and the Seller reserves the right to alter its prices for the quoted goods after that period has expired.
3.2 All prices quoted or estimated by the Seller are:
- (a) exclusive of GST, unless otherwise stated; and
- (b) inclusive of freight and transport charges for delivery of the Goods to the Buyer’s premises or other nominated delivery address.
3.3 The Buyer acknowledges that prices quoted or estimated by the Seller are based in part on currency exchange rates and shipping and transport costs that are current at the time the quote was prepared.
3.4 In the event of a fluctuation in currency exchange rates or shipping and transport costs between acceptance of an Order and delivery of the Goods the subject of the Order, the Seller reserves the right to amend the quoted price, provided the Buyer is notified of the amended price as soon as reasonably practicable.
3.5 Any indication in a quote of the time frame for the provision of the Goods is an estimate only and is not a fixed time frame that the Seller is bound to comply with.

4. ORDERS

4.1 The Buyer must order the Goods and Services from the Seller in writing. Each Order must be signed by the Buyer and clearly specify:
- (a) the Goods the Buyer wishes to purchase;
- (b) the quantity of Goods the Buyer wishes to purchase;
- (c) any special conditions that are to apply to the Order; and
- (d) the delivery address and the preferred delivery date for the Goods.
4.2 The Seller will advise the Buyer within seven (7) days of receipt of the Order whether it is possible to deliver the Goods on the preferred delivery date. If the Seller is unable to deliver the Goods on the preferred delivery date, the Seller will agree a new delivery date with the Buyer.
4.3 The Buyer is liable for any fees, expenses or charges incurred by the Seller in reliance on any incorrect or inadequate information provided by the Buyer in the Order.
4.4 Placement of an Order by the Buyer signifies acceptance by the Buyer of these Terms of Trade and the more recent Quote provided by the Seller relating to that Order.
4.5 An Order cannot be cancelled without the prior written consent of the Seller. Where an Order is cancelled, the Buyer indemnifies the Seller against any losses incurred by the Seller as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

5. ACCEPTANCE OF ORDERS

The Seller may, in its absolute discretion, refuse to accept any Order and no Order will bind the Seller unless the Seller renders an Invoice in respect of the Order, or otherwise explicitly indicates its acceptance of the Order in writing.

6. VARIATIONS

6.1 Any request by the Buyer to vary the Order must be provided to the Seller in writing. Any variation must be agreed to in writing by the Seller.
6.2 By agreeing to vary the Order, the Seller will receive an automatic extension of time for provision of the Goods to the Buyer, equal to the delay caused by the variation.

7. INVOICING AND PAYMENT

7.1 The Buyer agrees to pay:
- (a) 75% of the purchase price upon the Seller accepting the Order; and
- (b) the final 25% of the purchase price within fourteen (14) days after the Buyer has received the Goods, provided the Seller has rendered a Invoice for the whole or relevant portion (as the case may be) of the price that is payable by the Buyer.
7.2 Time for payment is of the essence and nothing in this Agreement obliges the Seller to order, obtain, or supply any Goods, or perform any Services, unless the Buyer has complied with their payment obligations.
7.3 If any invoice is due but unpaid, the Seller may withhold the provision of any further Goods or Services until the overdue amounts are paid in full.
7.4 The Seller may in its absolute discretion apply any payment received from the Buyer to any amount owing by the Buyer to the Seller.
7.5 The Buyer is not entitled to retain any money owing to the Seller notwithstanding an default or alleged default by the Seller of these Terms of Trade including (but not limited to) the supply of allegedly faulty or defective goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Buyer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
7.6 All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Seller, are to be paid by the Buyer as a debt due and payable under these Terms of Trade.
7.7 The Buyer and Seller agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.

8. CONFIDENTIAL INFORMATION

8.1 The Buyer acknowledges that in the course of its dealings with the Seller, it may have access to the Seller’s Confidential Information, which is valuable to the Seller.
8.2 The Buyer covenants and undertakes to keep any of the Seller’s Confidential Information it may receive confidential, and to ensure that any of its employees or contractors who may receive such Confidential Information are bound by the Buyer’s obligations of confidentiality under this clause, provided always that nothing in this Agreement is to be taken to prevent the Buyer from:
- (a) complying with any valid order or requisition for information made by a court of competent jurisdiction, or under any legislative enactment or regulation; or
- (b) disclosing information to such of its employees or contractors who need such information for the purposes of the Buyer’s business; or
- (c) disclosing information to the Buyer’s professional legal, financial, technical, or accounting advisers, provided that such advisers undertake to keep such information confidential to the same extent as the Buyer is obliged.

9. INTELLECTUAL PROPERTY

The Buyers acknowledges that the Seller has the sole right to any Intellectual Property used or generated by the Seller in the course of its performance of this Agreement, and covenants and undertakes that it will take all necessary actions at the Seller’s expense to assist the Seller in obtaining registration of such rights, and will not hinder the Seller in obtaining such registration.

10. TITLE AND RISK

10.1 Risk in the Goods passes to the Buyer immediately upon delivery to the Buyer or collection of that Order by the Buyer’s agent or courier as the case may be.
10.2 Property and title in Goods supplied to the Buyer under these Terms of Trade does not pass to the Buyer until all money (including money owing in respect of other transactions between the Seller and the Buyer) due and payable to the Seller by the Buyer have been paid in full.
10.3 If the Buyer sells or resells the Goods or sells products made using the Goods, the Buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of such products in a separate identifiable account as the beneficial property of the Seller and shall pay such amount to the Seller upon request.
10.4 Notwithstanding clause 10.3 of this Agreement:
- (a) the Seller shall be entitled to maintain an action against the Buyer for the purchase price; and
- (b) the Buyer shall be entitled to sell or resell the Goods in the normal course of its business.

11. PRIVACY

The Buyer consents to the Seller using any information relating to the Buyer (including but not limited to personal information within the meaning given to that term in the Privacy Act 1988 (Cth)) that the Seller may come to possess for the purpose of obtaining credit references, or otherwise investigating and satisfying itself as to the Buyer’s creditworthiness and financial position.

12. DEFAULT

12.1 If any payment due under clause 5.1(a) is not received in accordance with the Seller’s payment terms as stipulated on the invoice, the Seller retains the right to terminate the Agreement and is released of all of its obligations under this Agreement.
12.2 If the Seller chooses not to terminate the Agreement in accordance with the above paragraph, the Seller retains the right to withhold the provision of any Goods or services until payment of the amount due under clause 5.1(a) of this Agreement is received is full. The Buyer accepts that any delay in payment, may cause a delay in the date of delivery stipulated on the Order.
12.3 The Buyer agrees to pay interest at a rate of 6% per annum, in respect of any moneys due and owing to the Buyer under this Agreement but unpaid for 90 days or more.
12.4 In the event that the Buyer fails to pay the Seller any moneys owing under this Agreement (including interest levied under clause 6.4), the Buyer must pay the Seller’s reasonable debt collection and legal costs of recovering such moneys as a debt due and owing to the Buyer under this Agreement.
12.5 If the Buyer is in default of any of its obligations under this Agreement, except the obligation to make payment, the Seller has no obligation to perform any obligation imposed on it under this Agreement unless and until the Buyer makes good its default.
12.6 Without limitation to the above paragraph, if the seller fails to made good its default within 14 days of the default occurring, the Seller may:
- (a) terminate this Agreement;
- (b) terminate any or all Orders with the Buyer;
- (c) refuse to deliver the Goods or provide further services to the Buyer;
- (d) on sell any Goods intended to be delivered to the Buyer;
- (e) retain (where applicable) all money paid by the Buyer on account of the Goods or otherwise.

13. LIABILITY

13.1 The Buyer acknowledges that it is solely responsible for investigating the quality of any Goods it orders, and their suitability for its purposes, and that it has not relied on any representation made by the Seller in respect of such matters.
13.2 The Seller is not liable for any defect or deficiency in any Goods, and all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose are expressly excluded to the greatest extent allowable by law. The seller is not liable 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 Seller’s negligence or in any way whatsoever.
13.3 The ACL or SOGA may give the Buyer certain guarantees. Where liability for breach of any such guarantee can be limited, the Seller’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

14. INDEMNITY

14.1 The Buyer agrees to indemnify and keep indemnified the Seller, its servants and agents in respect of any claim or demand made or action commenced by any person (including but not limited to the Buyer) against the Seller or, for which the Seller is liable, in connection with any Loss arising from or incidental to the provision of the Goods or Services, and Order or the subject matter of these Terms of Trade.
14.2 The includes, but is not limited to, any legal costs incurred by the Seller is relation to meeting any claim or demand or any party/party legal costs for which the Seller is liable in connection with any such claim or demand.
14.3 This obligation remains in force after the termination of this Agreement.

15. Force Majeure

15.1 If circumstances beyond the Seller’s control prevent or hinder its provision of the Goods or services, the Seller is free from any obligation to provide the Goods while those circumstances continue. The Seller may elect to terminate this Agreement or keep the Agreement on foot until such circumstances have ceased.
15.2 Circumstances beyond the Seller’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

16. Dispute Resolution

16.1 If a dispute arises between the Buyer and the Seller, the following procedure applies:
- (a) either party may give the other party notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
- (b) a party must not commence legal proceedings (except legal proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
- (c) a party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
16.2 If a party issues a notice of dispute, the dispute my immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within fourteen (14) Business Days.
16.3 If the parties cannot resolve the dispute in accordance with clause 16.2, then the parties must endeavour to resolve the dispute by mediation using the following procedure:
- (a) either party can give the other party notice stating that the dispute has not been resolved and therefore the dispute should be referred to a mediation; and
- (b) within fourteen (14) days of receipt of the notice under clause 16.3(a), the parties agree to appoint a mediator and if the appointment of a mediator cannot be agreed, then the parties agree to the appointment of a mediator by LEADR – Association of Dispute Resolvers.
16.4 The parties shall share the cost of the mediator equally but will each be responsible for their own costs of the mediation.
16.5 If the dispute cannot be resolved in accordance with clause 16.3, either party may, by notice in writing of not less than fourteen (14) days to the other, refer the dispute to legal action. Service of notice under this clause is a condition precedent to the commencement of any litigation proceedings in respect of such dispute.

17. General Provisions

17.1 No Assignment the rights and obligations of each party under this Agreement are personal and cannot be assigned, discharged or otherwise dealt with by any other person.
17.2 Waiver no failure to exercise, and no delay in exercising any right under this Agreement will operate as a waiver. No single or partial exercise of ant rights will preclude any other, or further exercise of that or any other right.
17.3 All Reasonable Steps each party agreed to take all reasonable steps, execute all documents and do all acts and things as may be reasonably required by the other party to give effect to the transaction contemplated by this Agreement.
17.4 Severance if a Court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable that part of the Agreement will be modified (if possible) so that it is enforceable. If the part cannot be modified it will be severed and the rest of the Agreement will continue to operate.
17.5 Variation the parties may amend this Agreement by written agreement.
17.6 Entire Agreement this Agreement contains the entire agreement between the parties as to its subject matter and in relation to that subject matter supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party.
17.7. Governing Law this Agreement is governed by the law in force in Western Australia and each party submits to the non-exclusive jurisdiction of the courts of Western Australia.

18. FINISHED SUPPLY OF GOODS

18.1 The Seller shall perform the Goods and Services for the Buyer in accordance with the Order Confirmation.
18.2 The Seller will use all reasonable efforts to ensure that, and shall inspect the Goods for, but does not warrant that, the Goods are free from and the Seller will not be responsible for, any loss or damage caused by pests, diseases and or virus.
18.3 Provision of a sample does not constitute a warranty or representation that all Goods shall conform to the sample or model or be a measure or standard of continued provision of Goods by the Seller.
18.4 The Buyer accepts and acknowledges that the Goods (plant material and seed) grow at various rates and sizes and that a lot of variables and factors beyond the control of the Seller (whether grown by the Seller or Buyer) contribute to the growth of the Goods. Whilst the Seller will make reasonable efforts to achieve any requested specifications by the Buyer in the finished Goods, no warranty is made that it will be achievable and the Buyer acknowledges that natural variances in size and structure will occur and are allowed for in the Seller producing and or selling the Goods.
18.5 Any discussion or description of the Goods with the Buyer under these terms shall not create any warranty or binding obligation on the Seller that all Goods shall conform to that description.
18.6 The Seller makes no guarantee as to the suitability of any of the Goods for any specific use or the success of any Goods once they have left the Seller’s premises.
18.7 The Buyer accepts and acknowledges that where the Goods provided are seeds that variances may exist within the seed and factors may impact the seed beyond the control of the Seller including without limitation size, variety, germination rate, pests or weather conditions and the Seller makes no warranty or representation as to the yield or growth ability of the seed other than what the Seller can provide in these conditions and from the manufacturer or producer of seed.
18.8 If the Goods provided by the Seller is seed (whether sold or free of charge) whether imported by the Seller or through third parties, directly or indirectly and whether for trial, propagation or any other purposes the Seller acknowledges and the Buyer acknowledges that all seed:
- (a) has been pooled into the required sample sizes as required by either the Department of Agriculture, Water and the Environment or Australian Quarantine Import Service (AQIS) staff as applicable;
- (b) has been tested by authorised laboratories for pathology testing in accordance with Australian standards and protocols for testing; and
- (c) has been cleared and released out of quarantine and deemed fit for use in Australia by either the Department of Agriculture, Water and the Environment or AQIS.
18.9 Any importation of seeds by the Seller is (as required) in accordance with selected import permits obtained by the Seller under the Biosecurity Act 2015 and tested appropriately in accordance with the import permit granted to the Seller for those seeds.

19. Definitions

ACL means the Australian Consumer Law, located in Competition and Consumer Act 2010 (Cth) Sch 2.

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.

Buyer means the person identified on a Quote or Order as the buyer and includes the Buyer’s agents and permitted assigns.

Confidential Information means all information pertaining to the Seller’s business, including but not limited to its operations, finances, trading partners, horticultural techniques, technical specifications, product composition, and including trade secrets, with the exception of:

(a) any information that is generally known amongst persons other than the parties, other than by breach of this Agreement; and
(b) any information that the parties agree between themselves in excluded from the scope of this definition.

Contract Documents means the documents referred to in clause 1 of this Agreement.

Goods means any seeds, seedlings, plants, growing media, fertilizers or nutritional supplements, or equipment or other goods provided or to be provided by the Seller;

GST has the meaning given to that term in the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property includes all rights in or in the nature of patents, copyrights, trademarks, patentable inventions, industrial designs, and plant breeder’s rights.

Loss includes, but is not limited to, costs (including party to party legal costs and the Seller’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Order means a written and signed Order placed by the Buyer and as varied in writing from time to time by the parties.

Quote means a written description of the Goods or Services to be provided, an estimate of the Seller’s charges for the performance of the required work and an estimate of the time frame for the performance of the work.

Schedule means a schedule to this Agreement.

Seller means Trandos Hydroponic Growers Pty Ltd (ACN 078 447 364).

Services means the services to be provided by the Seller to the Buyer in accordance with the Quote and these terms of trade.

Terms of Trade means these Terms of Trade as varied in writing from time to time by the parties.

SOGA means Sale of Goods Act 1895 (WA).

20. Construction

Background, Clauses, Schedules and Appendices: references to Background, Clauses and Appendices are to Background and Clauses of and Schedules and Appendices to this Agreement, and unless stated otherwise, a reference in a schedule to a clause is a reference to a clause in that schedule.

Business Day: anything required by this Agreement to be done on a day which is not a Business Day may be done effectually on the next Business Day.

Headings: headings appear as a matter of convenience and do not affect the construction of this Agreement.

Parties: a reference to a party to this Agreement or any other document includes that party’s personal representatives/successors and permitted assignees.

Person: a reference to a person includes a reference to a body corporate, a Governmental agency and to an unincorporated body of persons.

Construction: these terms shall be construed fairly as to all and not to the detriment of the Seller merely because they were responsible for their drafting.

Singular, Plural and Gender: the singular includes the plural and vice versa, and words importing gender include the other genders.

Statutes and Regulations: a reference to an enactment or any other regulation is a reference to that enactment or those regulations as amended, or to any enactments or regulations subsisted for that enactment or those regulations.

Writing: a reference to written or in writing includes all modes of presenting and reproducing words, figures and symbols in a tangible and permanently visible form.