Plant Force Investments Pty Ltd ABN 42 159 220 407 trading as Plantrite (Plantrite)
- Administration Fee means $40;
- Amount Payable means the amount determined by clause 8(a);
- Cancellation Fee means if there is no Deposit, 30% of the value of the remaining or cancelled Goods the subject of an Order;
- Credit Card Surcharge means 2%;
- Delivery Charges means the delivery charges specified in the Quotation or such charges advised by Plantrite to the Customer from time to time;
- Deposit means the amount specified in the Quotation or if no amount is specified, 30% of the value of the Order;
- Estimated Delivery Date means the date specified in clause 5(a).
- Interest Rate means 3% per annum calculated daily, above the annual business overdraft interest rate of its principal banker, as determined and calculated by Plantrite, in its discretion;
- Order has the meaning specified in clause 4(c);
- Quotation means a quotation issued to the Customer by Plantrite at the request of the Customer to purchase the Goods from Plantrite;
- Special Order means orders of the kind contemplated by clause 18 and include any Goods referred to on the Quotation as Special Orders; and
- Stock Maintenance Fee means the value equal to 10% of the value of the Goods held by Plantrite in accordance with clause 5(h) calculated by Plantrite and payable within 7 days of an invoice being issued by Plantrite to the Customer.
Application of Terms
- The terms set out in this document (Terms) apply in every case where Plantrite provides goods or services of any kind (Goods) to the customer placing the order or on whose behalf the order is placed (Customer), unless otherwise agreed in writing between Plantrite and the Customer.
- Acceptance of Goods by the Customer is conclusive evidence before any court that these Terms (as varied under clause 13) apply and are binding on it and the Guarantors referred to in clause 15.
- Subject to clause 22, if there is any inconsistency between these Terms and the terms of any Quotation for the provision of Goods, these Terms prevail.
- Any written Quotation is based on the quantities listed, and is exclusive of Delivery Charges that shall, unless otherwise stated in the Quotation, be borne by the Customer.
- The prices quoted do not include GST (and GST is to be borne by the Customer).
- A Quotation remains open for acceptance and the prices remain valid until the date specified in the Quotation, and if no date is specified, for 14 days from the date of the Quotation.
- The quantity, quality and description of and specifications of the Goods are unless otherwise agreed, as set out in the Quotation.
- Provision of a Quotation by Plantrite to the Customer does not constitute a contract.
- Plantrite may at any time, and in its absolute discretion, amend or withdraw a Quotation.
- The items listed on the Quotation are available with delivery times and the date as quoted but are subject to sale to other customers prior to the Customer accepting the Quotation and placing the Order for the Goods.
- If there is no Quotation, any Goods supplied to the Customer will be supplied on the basis of Plantrite’s then current price list (Price List).
- The Price List is subject to change from time to time by written notice from Plantrite to the Customer.
- If there is any dispute between the parties as to the Price List, the Price List of the Goods shall be deemed to be the price list published on Plantrite’s website at the time of placing the Order until such time as the dispute is resolved.
- Any order placed by the Customer with Plantrite for the supply of Goods shall be in accordance with the Quotation, (if applicable) and is subject to these Terms.
- Plantrite may, despite providing a Quotation and in its absolute discretion and for any reason, refuse to accept any order that may be placed with it by the Customer.
- Once a Customer has placed an order with Plantrite and Plantrite has accepted that order in full or in part (Order), the Customer may not vary, amend or cancel the Order without Plantrite’s prior written consent.
- Plantrite may state the estimated delivery date of the Goods in the Quotation, which date may be varied by Plantrite by prior written notice to the Customer (Estimated Delivery Date). Plantrite shall make all reasonable efforts to deliver the Goods on the Estimated Delivery Date but shall not be responsible for any consequential, indirect or other loss incurred as a result of any failure by Plantrite to do so. Where the Estimated Delivery Date is not stated in the Quotation, Plantrite shall deliver the Goods within a reasonable time.
- Any failure or inability by Plantrite to deliver the Goods on the Estimated Delivery Date shall not confer any right on the Customer to cancel or terminate these Terms, or to refuse to accept delivery of the Goods or to claim damages from Plantrite for breach of contract or to bring any other action against Plantrite.
- All Goods purchased by the Customer are at the risk of the Customer from the time the Goods are delivered to the Customer or its nominated agent.
- Delivery is deemed to occur when the Goods are delivered:
- to a carrier for transporting to the Customer; or
- if the Goods are delivered directly to the Customer, unless otherwise agreed in writing, at the kerbside of the Customer’s nominated premises,
whether Plantrite arranges, procures or effects the transport of the Goods at the request of the Customer or otherwise.
- Where delivery is to be made during a certain period, Plantrite may at its option deliver the Goods in instalments during that period.
- If Plantrite delivers the Goods to the Customer, then the Customer shall pay the Delivery Charges and Plantrite shall be entitled to choose the carrier for and manner of delivery or transport.
- Any measures requested by the Customer to protect the Goods in transit shall be at the Customer’s expense.
- If the Customer is, for any reason, unable or fails or refuses to take delivery of the Goods on the Estimated Delivery Date, including where Plantrite has specifically agreed to an extension to the Estimated Delivery Date, the Goods will be held by Plantrite in accordance with this clause:
- Plantrite will hold the Goods at no cost to the Customer until the last calendar day of the following month after the Estimated Delivery Date (Initial Holding Period);
- At the end of the Initial Holding Period Plantrite agrees to hold at its sole discretion the Goods and the Customer agrees to pay the Stock Maintenance Fee to Plantrite until such time as the Customer accepts delivery of the Goods up to a maximum period of 2 months after the Initial Holding Period (Final Holding Period).
- The Customer acknowledges that after the Final Holding Period:
- the customer must make payment in full for the Goods within 7 days; and
- Plantrite will hold the Goods for an additional 2 weeks after which the Customer must accept delivery of the Goods, failing which Plantrite may dispose of the Goods at its sole discretion without penalty and will be entitled to retain any amount payable to Plantrite without deduction of any kind.
- If the Customer fails to pay the Maintenance Fee or make payment in full for the Goods after the Final Holding Period, Plantrite may dispose of the Goods at its sole discretion without penalty and will be entitled to retain any amount payable to Plantrite without deduction of any kind.
- If the Customer cancels the Order at any time during the Initial Holding Period and the Final Holding Period, the Customer must pay to Plantrite the Cancellation Fee and the Stock Maintenance Fee within 7 days of cancellation.
- The Customer must pay the amount of the Deposit within 7 days of being notified of Plantrite’s acceptance of the Order.
- The Deposit will form part of the purchase price of the Goods only and is non-refundable and cannot be used as a credit for the payment of any Stock Maintenance Fee.
- The Deposit will be credited to the final invoice or account once the Goods have been delivered to the Customer in full.
- If the Customer cancels an Order without Plantrite’s prior written consent or subject to clause 10(a) fails or refuses to take delivery of any of the Goods then the Customer must pay the Cancellation Fee.
- The Customer acknowledges that the Cancellation Fee represents a genuine pre-estimate of Plantrite’s minimum probable loss in such circumstances.
Payments by the Customer
- The Customer must pay, the whole amount of any debit balance shown on an invoice or statement issued by Plantrite (Amount Payable) on or before the due date for payment shown on the invoice or statement (Due Date), which is 30 days from the date of the invoice or statement, unless otherwise stated, with time being of the essence.
- An Amount Payable by the Customer under these Terms must be paid without deduction, retention or set-off of any kind and for any reason.
- Plantrite may appropriate any money, including any Deposit paid to it by the Customer in such manner and at such times as Plantrite, in its absolute discretion, determines.
- The amount stated in a certificate signed by Plantrite’s duly authorised representative or solicitor as being due and payable by the Customer to Plantrite under these Terms is prima facie evidence that such amount is owing.
- Plantrite may, at its discretion, apply a credit balance in any of the Customer’s trading accounts with Plantrite towards satisfaction of a debit balance in any of the Customer’s other trading accounts.
- Payment by cheque or other negotiable instrument is not deemed to be payment of any money payable until the cheque or other negotiable instrument is met on first presentation for payment.
- In addition to the Amount Payable, payment of the Amount Payable by cheque will attract an Administration Fee and payment by credit card will attract a Credit Card Surcharge.
- The Amount Payable does not include the cost of delivering or transporting Goods to the Customer.
Retention of Title
- Title to all Goods purchased by the Customer that have not been paid for (Bailed Goods) remains with Plantrite until they are paid for in full.
- The Customer must hold all Bailed Goods in the possession of the Customer:
- as fiduciary, bailee and agent for Plantrite;
- in such a manner that the Bailed Goods remain clearly identifiable and are able to be matched to specific invoices; and
- safe and free from deterioration, destruction, loss or harm.
- The Customer must not sell, transfer, encumber or otherwise deal with any Bailed Goods without the prior written consent of the Supplier, which consent the Supplier may withhold in its absolute discretion.
- If the Customer or any person who has guaranteed the due payment of the Customer’s debts to Plantrite:
- becomes an ‘externally-administered body corporate’ within the meaning of the Corporations Act 2001;
- has any step taken for its winding up or dissolution;
- holds a meeting of directors which considers a resolution that an administrator should be appointed;
- is insolvent within the meaning of the Corporations Act 2001, or is taken or presumed to be insolvent;
- commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act 1966, as amended from time to time;
- has distress, attachment or other execution levied or enforced over any of its property;
- fails to pay the entire Amount Payable in accordance with these Terms;
- breaches any other provision of these Terms or any other agreement with Plantrite; or
- if, without the prior consent of Plantrite, there is a change in control of the Customer (as defined in the Corporations Act 2001) or the Customer’s business is sold to another person,
the Customer must immediately notify Plantrite and Plantrite may, at its election and without prejudice to other rights which Plantrite may have:
- declare the Amount Payable immediately due for payment; and
- enter the premises at which the Bailed Goods are kept (Premises) and remove the Bailed Goods from the Premises.
- Plantrite may sell or otherwise dispose of any Bailed Goods recovered by Plantrite under this clause 9 in its absolute discretion and on its own account, without limitation to any other rights which Plantrite may have.
- The Customer indemnifies Plantrite and every person acting on Plantrite’s behalf against any loss, damage, liability or expense incurred or sustained as a result of the reasonable exercise by Plantrite of its rights under this clause 9.
- This clause 9 is for the benefit of Plantrite, and Plantrite may waive the benefit of this clause by giving notice in writing to the Customer at any time.
- Despite the other provisions of this clause 9 and without prejudicing its rights in any way, Plantrite may take any action it deems necessary, including legal proceedings to recover any Amount Payable as a liquidated debt.
The Customer acknowledges and agrees:
- that Plantrite owns the Bailed Goods and has a security interest in the Bailed Goods which extends to the proceeds (including any account) and any accession;
- that to the extent to which the money owing by the Customer to Plantrite under these Terms represents all or part of the purchase price owing to Plantrite in respect of the Bailed Goods, that security interest will be a purchase money security interest;
- to execute any documents and provide all relevant information and full cooperation to Plantrite to ensure Plantrite has a first ranking perfected security interest in the Bailed Goods under the Personal Property Securities Act 2009 (Cth) (PPSA);
- not to change the Customer’s name or contact details (including address) without Plantrite’s prior written consent; and
- that Plantrite may register any financing statement, financing change statement or other documents and do all other things which are necessary or desirable to perfect and maintain Plantrite’s security interest under these Terms, to preserve its interest in the Bailed Goods and to realise Plantrite’s security interest with the agreed priority, at the Customer’s expense.
Clauses 16(e) to 16(h) inclusive of these Terms apply to the security interest referred to in this clause 9.
Risk in Goods and Customer Obligations
- The Customer must inspect all Goods delivered to the Customer or its nominated agent within 48 hours of delivery to the relevant Premises (Inspection Period) in order to ensure that Goods delivered are as ordered by the Customer and are not delivered in a damaged state. The Customer must notify Plantrite within the Inspection Period if Goods are found to be other than as ordered by the Customer or have been delivered in a damaged state.
- Subject to clause 12(a)(iii) if the Customer has not notified Plantrite within the Inspection Period that Goods delivered were not as ordered by the Customer, or that Goods were delivered in a damaged state, then the Goods will be deemed to have been delivered in good condition, as ordered and are accepted by the Customer (Acceptance).
- Goods supplied by Plantrite are taken to be resold by the Customer in the same consequential order as the Goods have been supplied by Plantrite. All Goods of the same type as the Bailed Goods will be deemed to have been supplied by Plantrite unless the Customer proves to the contrary at the time Plantrite claims to be entitled to possession of such Goods.
- To the extent permitted by law, if the Customer is in breach of these Terms, Plantrite may (without prejudice to any other rights) repossess the Bailed Goods and the Customer licences Plantrite and its employees and agents to enter its premises at any time without notice for such purpose, with all related costs of Plantrite to be paid by the Customer on demand.
Before Acceptance, the Customer has the right to return for replacement or reimbursement any Goods found to be defective provided that:
- the Goods must be returned in the same condition as delivered to the Customer; and
- Plantrite will refuse any claim for replacement or reimbursement in respect of any Goods that have been removed from their original containers and packaging or in Plantrite’s sole opinion, have been kept in an unhygienic condition.
- Subject to clause 10(b), Goods supplied by Plantrite are deemed to be defective if the Goods:
- are not of merchantable quality;
- being in the nature of services, are not of a reasonable standard, quality, value or grade; or
- do not comply with any consumer guarantee or implied warranty applicable to the supply of the Goods which cannot be excluded (including under the Competition and Consumer Act 2010 (CCA)).
- When Goods are defective (as defined in clause 12(a)) Plantrite may, at its option elect to:
- replace the Goods; or
- reimburse the Customer for the cost of supplying the Goods; or
- supply goods that are as far as reasonably possible equivalent to the Goods;
- in the case of Goods being in the nature of services, re-supply the service; or
- if payment of the purchase price for the Goods has not been made by the Customer – release the Customer from any obligation to pay the purchase price; or
- if payment of the purchase price for the Goods has been made by the Customer – refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the Goods to Plantrite; and
- in any case, reimburse to the Customer any cost incurred by the Customer in transporting back to Plantrite.
To the extent permitted by law and other than any remedies the Customer may have under the CCA, the sole remedies of the Customer under or in relation to these Terms or the supply of Goods under them, whether in contract, in tort (including the law of negligence), under statute or otherwise, are only as specified in these Terms and are subject to the limitations set out in clause 12(d) and the following limitations:
- Plantrite will use all reasonable efforts to ensure that, but does not warrant that, the Goods are free from and will not be responsible for any loss or damage caused by, pests, diseases and/or viruses latent or patent.
- Plantrite makes no guarantee as to the suitability of any of the Goods for any specific use. Plantrite does not recommend any one particular type of Goods in preference to any other, or claim to be an authority on any one of its Goods.
- Plantrite does not warrant or represent that any particular Goods, part of Goods or stock or service will be available or become available at any time. Goods advertised may differ in appearance from those advertised.
- Any description of the Goods under these Terms shall not create an express warranty that any Goods shall conform to that description.
- Provision of a sample does not constitute a warranty that all goods shall conform to the sample or model.
- The Customer shall make its own determination of the suitability of the material for the use contemplated by the Customer. All information is believed to be correct and is given in good faith. The Customer shall not rely upon any of Plantrite’s or its agent’s skill or judgment.
- Plantrite, and Plantrite’s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clause 12(a) except to comply with its obligations (subject to the other provisions and limitations in this clause 11) under clause 12(b);
- all conditions, warranties and other terms pertaining to the condition or quality of Goods are excluded to the extent permitted by law (including the CCA); and
- the Customer must not make any claim or demand, or take any action or other proceeding against Plantrite, or any of Plantrite’s officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss or corruption of data, loss of contract or opportunity, loss of goodwill or any indirect, special or consequential loss or damage of any nature arising out of, or in any way directly or indirectly related to these Terms and/or the supply of Goods under them including in relation to any of the matters referred to in clause 12(a).
- To the extent permitted by law, Plantrite’s total liability for any claim under or in relation to these Terms and/or the supply of Goods under them is limited to the price paid by the Customer for the Goods the subject of the claim.
Interest and Enforcement Costs
- If any Amount Payable is not paid by the Due Date in accordance with these Terms, Plantrite may charge and recover interest on the outstanding amount at a rate equivalent to the Interest Rate.
- If the Customer breaches its obligations under these Terms, the Customer must immediately pay to Plantrite on demand, all costs and expenses incurred by Plantrite in the enforcement of these Terms including, without limitation, costs and expenses including legal costs (on a full indemnity basis) freight costs, storage costs, electricity and telephone charges (except to the extent such costs and expenses directly result from Plantrite’s breach of these Terms). The Customer authorises Plantrite to debit any trading account held by the Customer (Trading Account) with such costs and expenses.
Plant Breeder’s Rights
- The Customer acknowledges that the Goods may be protected in that the rights to them are owned by a third party owner or breeder and they are subject to the Plant Breeder’s Rights Act 1994 (PBR).
- The Goods are supplied on the sole and express basis that they will not be propagated (as defined in the PBR) and that the Customer shall not breed the Goods in any way or sell or part with possession of the Goods to any person or entity who has not agreed to these Terms.
- The Customer acknowledges that damages may not be a sufficient remedy for breach of this provision and that injunctive relief would be appropriate in the event that Plantrite has reason to believe that the Customer or someone else may breach this provision.
- So far as permitted by law, in the event that the third party owner of the Goods has any preferential rights of ownership to any mutation derived from those Goods then the Customer agrees to acknowledge and accept those preferential rights and not to challenge any such rights.
- In this clause 15, Guarantor means each person who has agreed at any time to be a guarantor of the Customer’s obligations to Plantrite.
- In consideration of Plantrite agreeing to supply Goods to the Customer at the request of the Guarantor on these Terms, the Guarantor unconditionally and irrevocably guarantees (and if more than one, then jointly and severally) to Plantrite:
- the payment of any Amount Payable; and
- the performance of each of the Customer’s obligations under these Terms.
- If and to the extent that any Amount Payable is not paid when due, the Customer’s Guarantor must immediately on demand from Plantrite pay to Plantrite the amount of the Amount Payable and/or any other amount payable under these Terms that has not been paid.
- If the Customer fails to perform the Customer’s obligations under these Terms when they are due, the Guarantor must immediately on demand from Plantrite cause the Customer to perform the Customer’s obligations under these Terms.
- As a separate and principal obligation the Guarantor indemnifies Plantrite against any loss, cost or liability suffered, paid or incurred by Plantrite in relation to:
- any failure of the Customer to perform the Customer’s obligations under these Terms; or
- the failure of the Guarantor to cause the Customer to perform the Customer’s obligations under these Terms.
- This clause 15 is enforceable against a Guarantor whether or not Plantrite has:
- made demand upon the Customer;
- given notice to the Customer or any other person in respect of anything; or
- taken any other steps against the Customer or any other person, and whether or not the guarantee given by the Guarantor under this clause 15 is unenforceable for any reason, either in whole or in part.
- The Customer and the Guarantor each:
- grant a security interest in all of its present and after-acquired personal property (as defined in the PPSA) (Personal Property) and in all of its present and future rights in relation to any Personal Property to Plantrite;
- charge as a fixed charge all of its other rights, property and undertaking of any kind and wherever situated, whether present of future including, without limitation, any interest in any real property (both legal and beneficial) (other than any Personal Property to which the PPSA applies) to Plantrite; and
- agree to mortgage all of its present and future interests in any real property to Plantrite, on request from Plantrite, as security for the performance of its obligations under these Terms including payment of any Amount Payable.
- The Customer and the Guarantor must each:
- within 10 days of request from Plantrite, execute such documents as Plantrite requires to perfect the security interest, charge and mortgage; and
- pay on demand any duty (including any fines and penalties) assessed on the charge or mortgage.
- Unless Plantrite otherwise agrees, the costs of registering a financing statement must be paid by the Customer and may be debited against the Customer’s Trading Account.
- The Customer and each Guarantor acknowledge that Plantrite, by virtue of the charge and mortgage, has a caveatable interest in any real property of the Customer and/or the Guarantor which is or becomes subject to the charge and/or mortgage and may lodge a caveat over that property.
- The Customer and each Guarantor appoints Plantrite (and if Plantrite is a corporation, each officer of Plantrite for the time being) as its agent and authorised representative for the purpose of requesting information from other secured parties under section 275 of the PSSA.
- Without limiting any other provision of these Terms, the Customer and each Guarantor waives its rights to receive any notice under the PPSA (including a copy of any verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
- If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under these Terms, the Customer and each Guarantor agrees with Plantrite that:
- nothing in section 125, Division 6 of Part 4.3 and section 143 of the PPSA will apply to these Terms or the security interest under it; and
- it waives its rights to do any of the following:
- object to the purchase of the collateral by Plantrite under section 129;
- receive a statement of account under section 132(3)(d) following a disposal showing the amounts paid to other secured parties and whether security interests held by other secured parties have been discharged;
- receive a statement of account under section 132(4) if there is no disposal; and
- redeem the collateral under section 142.
- The Customer, the Guarantor or Plantrite will not disclose information of the kind mentioned in section 275(1) of the PPSA unless required by law.
- The Customer and each Guarantor irrevocably appoints Plantrite and each of Plantrite’s authorised officers, jointly and severally, to be its attorney to do any act or thing which it is required to do under these Terms.
- Plantrite may only exercise the power set out in clause 17(a) where the Customer or Guarantor (as applicable) is in breach of these Terms. Plantrite may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so.
- A third party may rely on a copy of these Terms certified by a solicitor as evidence of the appointment of Plantrite as the attorney of the Customer or Guarantor.
- The Customer and each Guarantor must ratify all acts and things done by Plantrite and its authorised officers in the exercise of the power of attorney granted in accordance with this clause.
Despite anything else to the contrary in these Terms or any Quotation, the Customer agrees that:
- Special Orders are orders for:
- Goods that are not normally stocked by Plantrite and must be specifically grown for the Customer; or
- Goods for supply to the Customer at a future time at least 2 months after placing the Order for the Goods.
- Unless otherwise agreed in writing, before commencing a Special Order, Plantrite requires receipt of payment upfront or payment of the Deposit as specified in the Quotation.
- The Customer agrees that Plantrite will only grow Goods that are for Special Orders on the undertaking that the Customer will accept delivery of, and effect payment for these Goods.
- The Customer agrees that there are no refunds or returns on Special Orders.
- Plantrite agrees that the Customer may reduce a Special Order in quantity or cost by up to 10% without charge but the balance of the Special Order must be paid in full in accordance with this clause 18.
If the Supplier has any liability to pay Goods and Services Tax (GST) on the supply of any Goods to the Customer, the Customer must pay to the Supplier an amount, equal to the Supplier’s GST liability, at the same time as the consideration is paid for the Goods, (unless the consideration for that supply is expressed specifically to be GST inclusive).
Privacy disclosure and consent
The Customer authorises Plantrite to:
- obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in this document and from any other credit provider or credit reporting agency for the purpose of assessing this application for credit, or in connection with any guarantee given by the Customer;
- use, disclose or exchange with other credit providers and entities, information about the Customer’s credit arrangements in order to assess this application for credit, monitor credit worthiness and collect overdue accounts; and
- disclose the contents of any credit report on the Customer to Plantrite and any of their solicitors and mercantile agents.
- Access by Customer
- On receipt of a written request by the Customer, Plantrite may, in its sole discretion and subject to any direction by Plantrite, grant the Customer access to the business premises of Plantrite for the sole purpose of examining the Goods for sale to the Customer.
- The Customer must access the business premises in such a way as to cause as little disruption as possible to Plantrite’s business.
- Additional Terms
The additional terms, covenants and conditions (if any) set out in the Quotation are deemed to be incorporated in this Agreement as if fully set out in this Agreement and if any inconsistency arises with the terms, covenants and conditions contained in this Agreement then the terms, covenants and conditions set out in the Quotation will prevail.
In these Terms, unless the context otherwise requires:
- a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
- a reference to a party to these Terms includes the party’s successors, permitted substitutes and permitted assigns and, where applicable, the party’s legal personal representatives; and
- a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, on each of them severally and on any two or more of them jointly.
- PPSA defined terms
In these Terms, the terms accession, account, collateral, financing statement, financing change statement, inventory, proceeds, purchase money security interest, secured party and security interest have the same meanings as in the PPSA.
- Nature of Goods
The Customer acknowledges that all Goods will be purchased for the purpose of re‑supply or in connection with a business carried on by the Customer with or without other persons and not for personal, domestic or household use.
- Time of essence
Time is to be of the essence insofar as it relates to the Customer’s or a Guarantor’s obligations to Plantrite under these Terms.
24.5 Delays – force majeure
The Customer agrees and acknowledges that growth and performance of the Goods is dependent on a wide range of conditions beyond Plantrite’s control. Plantrite is not responsible for any delay or failure of performance occasioned or caused by transport or traffic delays, fire, frost, hail, plant disease or contamination, breakdown of plant and equipment, shortage of materials or labour, flood, storm or tempest, theft, vandalism, civil unrest or accidents of any kind, strikes, riots, fire, insurrection, embargoes, failure of carriers or suppliers, inability to obtain materials or transportation facilities, acts of God or of the public enemy, governmental tariffs and quotas, compliance with any law, regulation or other governmental or court order (whether or not valid), or other causes beyond the control of Plantrite, even if the cause could be alleviated by the payment of money, or the performance is prevented or delayed because of the failure by Plantrite.
24.6 No waiver
(a) A failure to exercise or a delay in exercising any right, power or remedy under these Terms does not operate as a waiver.
(b) A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
(c) A waiver is not valid or binding on the party granting that waiver unless made in writing.
Plantrite may at any time assign its rights and interests or novate its rights and obligations (in whole or in part) under these Terms. The Customer must not assign its rights or obligations under these Terms without Plantrite’s prior written consent, which consent may be refused or given subject to such terms and conditions as Plantrite may determine in its absolute discretion.
If any provision of these Terms or their application to any person or circumstance is or becomes invalid or unenforceable, that provision will be taken to be omitted without invalidating or modifying the remaining provisions of these Terms, which will continue in full force and effect as if the invalid or unenforceable provision had not been included in them.
Each indemnity in these Terms is a continuing obligation, independent of the other obligations of the party giving it, and survives the end of these Terms or the supply arrangement between the Customer and Plantrite.
24.10 Further co-operation
The Customer must do anything (including executing a document) Plantrite reasonably requires in writing to give full effect to these Terms.
24.11 Terms binding
These Terms bind the Customer and each Guarantor both personally and as trustee of any trust of which it is trustee.
Notices in respect of these Terms may be provided to the Customer and Guarantors by mail or facsimile to the recipient’s address provided by it to Plantrite.
24.13 Variation of Terms
Plantrite reserves the right to vary these Terms from time to time. It may give notice of any variation of these Terms by publishing the revised Terms on its website and may (but is not obliged to) notify the Customer and/or the Guarantors that it has done so on an invoice, statement or other written communication. If the Customer continues to deal with and place orders for the supply of Goods with Plantrite after any such variation of these Terms, the Customer is taken to have agreed to those Terms as varied and to have taken the supply of Goods on those varied Terms.
24.14 Governing law
These Terms will be construed in accordance with and governed by the laws of Western Australia. The Customer and Plantrite submit to the non-exclusive jurisdiction of the courts of Western Australia.