TERMS AND CONDITIONS

1. Definitions

In these conditions:

“Agreement” means any agreement or contract entered into for the provision of goods or services by the Company to the Customer;

“Company” means Established Tree Transplanters Pty Ltd ACN 005 040 424;

“Customer” means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services from the Company;

“goods” means goods supplied by the Company to the Customer;

“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;

“services” means services supplied by the Company to the Customer; and

“Terms” means these Terms and Conditions of Trade.

2. Basis of Agreement

2.1 Unless otherwise agreed by the Company in writing, the Terms apply exclusively to every contract for the sale of goods or services by the Company to the Customer and cannot be varied or supplanted by any other conditions, including the Customer’s terms and conditions of purchase (if any).

2.2 Any written quotation provided by the Company to the Customer concerning the proposed supply of goods or services is:

(a) valid for 30 days;

(b) an invitation to treat only;

(c) subject to the Customer offering to enter into an Agreement and accepting these Terms.

2.3 The Terms may include additional terms in the Company’s quotation, which are not inconsistent with the Terms.

2.4 The Agreement is accepted by the Company when the Company confirms its acceptance of an offer from the Customer in writing or electronic means or provides the Customer with the goods or services.

2.5 The Company in its absolute discretion may refuse to accept any offer.

2.6 It is the Customer’s responsibility to provide the Company with its specific requirements in relation to the goods or services.

2.7 The Company may vary or amend these Terms by notice in writing to the Customer at any time. Any variations or amendments will apply to orders made by the Customer after the date of notice.

3. Pricing

3.1 Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services. In addition to payment of the price of goods or services, the Customer must pay any GST and any other taxes or duties imposed on the goods or services.

3.2 Prices for goods and services are set in accordance with the Company’s price list, which is subject to change from time to time and the price payable for goods is the price applicable at the date of delivery of goods contained in the written quotation.

3.3 If the Customer requests any variation to the Agreement, the Company may increase the price to account for the variation.

3.4  Where there is any change in the costs incurred by the Company in relation to the goods or services, the Company may vary its price for the goods or services in order to take account of any such change, by notifying the Customer.

4. Payment

4.1 Unless otherwise agreed in writing:

(a) Subject to clause 4.1(b), payment for goods or services must be made within fourteen (14) days of the Company’s invoice.

(b) The Company reserves the right to require payment in full on delivery of the goods or completion of the services.

4.2 Payment is to be made by Bank transfer, EFT or Credit card (fees apply) only.

4.3 Payment terms may be revoked or amended at the sole discretion of the Company immediately upon giving written notice to the Customer.

4.4 The Company, in its absolute discretion may review, alter or terminate the Customer’s credit limit or payment terms without notice.

5. Payment Default

5.1 If the Customer defaults in payment by the due date of any amount payable to the Company, then all money which would become payable by the Customer to the Company at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Company may, without prejudice to any other remedy available to it:

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full;

(b) charge the Customer for, and the Customer must indemnify the Company from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any goods;

(c) cease or suspend for such period as the Company thinks fit, supply of any further goods or services to the Customer;

(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Company;

without effect on the accrued rights of the Company under any contract.

5.2 Clauses 5.1(c) and (d) may also be relied upon, at the option of the Company:

(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or

(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

6. Passing of Property

6.1 Until full payment in cleared funds is received by the Company for all goods and services supplied by it to the Customer, as well as all other amounts owing to the Company by the Customer:

(a) title and property in all goods remain vested in the Company and do not pass to the Customer;

(b) the Customer must hold the goods as fiduciary bailee and agent for the Company;

(c) the Customer must keep the goods separate from its own goods and maintain the labelling and packaging of the Company;

(d) the Customer is required to hold the proceeds of any sale of the goods on trust for the Company in a separate account however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;

(e) the Company may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of the Company, and for this purpose the Customer irrevocably licences the Company to enter such premises and also indemnifies the Company from and against all costs, claims, demands or actions by any party arising from such action.

7. Risk and Insurance

7.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately on dispatch of the goods from the Company’s premises.

7.2 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.

7.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by the Company, whether such goods are used singularly, or in combination with other goods, substances, or any process.

8. Acknowledgements and Specifications

8.1 The Customer acknowledges that:

(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Company in relation to the goods or services or their use or application.

(b) it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer or any contemplated use by the Customer, whether or not such use is known by the Company.

(c) any description, illustrations and performances of the goods provided in a quotation, invoice or in Company’s catalogues, price lists and other advertising matter is given by way of identification only and the use of such description does not constitute a contract of sale by description and does not form part of the Agreement between the Company and the Customer.

8.2 All specifications, drawings and particulars of weights, heights, dimensions, identity, type or other characteristics of the goods submitted by the Company are approximate only and any deviation will not vitiate this Agreement or give rise to any claim against the Company.

9. Environmental Weeds Legislation

9.1 It is the responsibility of any Purchaser that trees purchased for use in certain areas are not in contravention of relevant Federal, State and Local Environmental Weeds Legislation.

10. Performance of Agreement

10.1 Any period or date for delivery of goods or provision of services stated by the Company is intended as an estimate only and is not a contractual commitment. The Company will use its reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services but will, in no circumstances whatsoever, be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.

10.2 A completed drivers manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of goods invoiced.

11. Delivery

11.1 The Company may, in its absolute discretion arrange for delivery of the goods.

11.2 Any period or date for delivery is intended as an estimate only and late delivery or supply will not entitle the Customer to vary or cancel the Agreement, or claim damages as a result.

11.3 Unless otherwise agreed in writing by the Company, the Customer will be responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.

11.4 The Customer must provide reasonable and proper access to the location specified for delivery.

11.5 The Customer authorises the Company to subcontract delivery in its absolute discretion.

11.6 The Customer indemnifies the Company against any loss or damage suffered by the Company, its sub- contractors or employees as a result of delivery, except where caused by the negligence of the Company.

11.7 If the Company does not receive forwarding instructions sufficient to enable it to dispatch the  goods or the goods are not picked up by the Customer within 14 days of notification that the goods are ready, the Customer shall be deemed to have taken delivery of the goods from such date. The Customer shall be liable for storage charges payable monthly on demand.

12. Liability

12.1 Except as specifically set out herein, or contained in any warranty statement provided with the goods or services, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, growth or productiveness of the goods, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

12.2 Replacement or repair of the goods or refund of the price of the goods paid or resupply of the services is the absolute limit of the Company’s liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods or services by the Customer or any third party.

12.3 The Company is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused including, but not limited to damage caused to fences, buildings plants, pipes, drains, conduits or any other structure as a result of the goods being planted in an inappropriate location.

12.4 The Company will not be liable for any loss or damage, claims or liabilities or for any consequential loss or damage of any kind arising out of the supply, planting, health and growth of the goods including, but not limited to, loss of turnover, profits, business or goodwill or any liability to any other party.

12.5 The Company will not be liable for any loss or damage suffered by the Customer where the Company has failed to deliver goods or services or fails to meet any delivery date or cancels or suspends the supply of goods or services.

12.6 Nothing in the 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.

13. Cancellation

13.1 If, through circumstances beyond the control of the Company, the Company is unable to effect delivery or provision of goods or services, then the Company may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer.

13.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on the Company after that order has been accepted.

14. Returns and Exchanges

14.1 Subject to clause 14.2, the Company will not be liable for any defects, shortages, damage or non-compliance with the specifications in the Agreement unless:

(a) the Customer delivers a written complaint to the Company with full details within 48 hours of inspection of goods specifying the shortage or defect; and

(b) the Company is, upon receipt of the complaint, given an opportunity to inspect the goods and investigate the complaint before any further dealing with the goods, or planting.

14.2 If the Customer fails to give the notice as required in clause 14.1, it is deemed to have accepted the goods and the Customer will be bound to pay for them.

14.3 When any defects, shortages, claim for damage or non-compliance with the Agreement specifications is accepted by the Company, the Company may, at its option, replace the goods, or refund the price of the goods.

14.4 The Company will not under any  circumstances accept goods for return that:

(a) have been specifically produced, imported or acquired to fulfil any contract;

(b) have been altered in any way;

(c) have been planted in a manner and/or location contrary to the Company’s instructions;

(d)have been damaged due to natural occurrences;

(e) are not in their original condition; or

(f) are not properly maintained in a healthy condition.

14.5 The Customer must;

(a) obtain the Company’s prior written approval for the return of goods; and

(b) pay all freight changes associated with return of the goods.

15. Force Majeure

15.1 The Company shall have no liability whatsoever under or in any way related to the sale and purchase of the goods or otherwise for any failure to fulfil any obligation hereunder to the extent that such fulfilment is prevented by circumstances beyond its reasonable control including but without limitation to industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threatened acts of terrorism, or acts or threatened acts of war. Should an event of force majeure occur the Company may terminate the Agreement by giving the Customer written notice.

16. Miscellaneous

16.1 The law of Victoria from time to time governs the Terms and 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.

16.2 Failure by the Company to enforce any of these Terms shall not be construed as a waiver of any of the Company’s rights.

16.3 If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the term shall be severed from these Terms without affecting the enforceability of the remaining terms.

16.4 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received  upon  posting. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission.

17. Privacy

17.1 The Company is bound by the Privacy Act 1988 as amended, and must ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the National Privacy Principles.

17.2 The Customer requires that the Company complies with the National Privacy Principles in connection with any personal information supplied to it by the Customer in connection with any agreement between the Company and Customer.