Terms and Conditions of Sale
These Terms are entered into between Company PTY LTD (we, us or our) and you, the person, organisation or entity described in the Order (you or your), together the Parties and each a Party
We specialise in the design and manufacture of pre-emergent degradable agricultural films. We produce a variety of film formats to suit both the horticultural and broadacre practices. Our films are uniquely designed to work in a variety of cropping systems across the majority of soil types and climates around the world
AcceptanceYou accept these Terms by the earlier of:
- creating an Account;
- confirming by email that you accept these Terms;
- confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, including the Site;
- instructing us (whether orally or in writing) to proceed with the provision of the Goods; and
- making part or full payment of the Price.
- You are required to create an account in order to purchase products from us (Account).
- When you create an Account, you will be asked to input basic contact information and choose a username and password. It is your responsibility to keep your Account details confidential. You are liable for all activity on your Account, including purchases made using your Account details.
- In consideration of your payment of the Price, we will provide the Goods in accordance with these Terms, whether ourselves or through our Personnel.
- If these Terms or the Site express a time within which the Goods are to be provided, you agree that such time is an estimate only, and creates no obligation on us to provide the Goods by that time.
- You may place an Order for Goods from us as set out on the Site. Any Order placed through the Site is an offer by you to purchase particular Goods for the Price at the time you place your order.
- We may, at our absolute discretion, accept or reject an Order. We will endeavour to notify you of a rejection at the time of the Order or within a reasonable time thereafter. We will only be required to comply with an Order if we have accepted the Order.
- It is your responsibility to check the Order details, including selected Goods and the Price, before you submit your Order through the Site.
- Each Order is subject to, and will be governed by, these Terms and any other conditions agreed to by the Parties. To the extent of any ambiguity or discrepancy between an Order and these Terms, the terms of these Terms will prevail.
- You are responsible for collecting the Goods from the Collection Location, and you agree to:
- pay all Delivery Costs;
- collect the Goods from the Collection Location in a timely manner; and
- comply with any policies and procedures which apply at the Collection Location from which you collect the Goods
- For clarity, the personnel at the Collection Location will notify you of their shipping price and options to transport the Goods from the Collection Location to a location nominated by you. You may accept this shipping option or organise your own collection. We take no responsibility in arranging the collection of the Goods from the Collection Location.
- You will be liable to pay any costs arising from your failure to collect the Goods in a timely manner from the Collection Location, including any storage costs
- Subject to clause 6.2, you may request a variation or change to the Goods, including the timing for the provision of the Goods, by providing written notice (including by email) to us, with details of the variation or change, (Variation Request).
We will not be obliged to comply with a Variation Request unless we:
- accept the Variation Request, including any variation to the Price to effect the Variation Request (Price Variation), in writing; and
- the Price has been adjusted to reflect the Price Variation.
- If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued in accordance with clause 6.1
- Where the Goods ordered are varied or changed by you (Variation Event) and the cause of that Variation Event relates to, or is connected with, an event or circumstance beyond our reasonable control, you agree to pay us our additional costs and expenses that we may suffer or incur as result of the Variation Event, as a debt due and immediately payable.
Your ObligationsYou agree to:
- comply with these Terms, our reasonable requests or requirements, and all applicable Laws;
- conduct due diligence to ensure that use of the Goods does not infringe any Laws in your jurisdiction;
- where you use the Goods on property not owned by you, that you have approval from the owner of the property to use the Goods, and remove any Goods from the property upon vacating that property;
- store the Goods in their original packaging, off ground and in a dry cool shed away from direct sunlight and radiant heat;
- use the Goods in accordance with the Documentation; and
- provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under these Terms or at Law.
Availability and cancelation
- All Orders made through the Site are subject to availability.
- We reserve the right to cancel, at any time before Delivery and for whatever reason, an Order that we have previously accepted, including where there is a considerable delay in dispatching your Order, if you have an Insolvency Event, if for any reason we cannot supply the Goods you order (for example for an event beyond our reasonable control) or if Goods ordered were subject to an error on our Site (for example in relation to a description, price or image).
- We do not accept cancellation of Orders by you once they have been placed and the Deposit has been paid. In the event that you request to cancel an Order, we may accept or reject the cancellation and may retain the Deposit in our sole discretion.
You agree to pay us:
- the Deposit;
- the balance of the Price;
- any Interest Payments; and
- any other amount payable to us under these Terms,
- If made available by us on the Site, you may pay us the Price by direct debit. In order to select this payment method, you may be required to enter into an additional agreement with us or a third-party services provider. You agree to comply with the terms and conditions of any such agreement.
- If you place an Order with us and you anticipate that you may be unable to pay the Price in accordance with the Payment Terms, you agree to notify us of this anticipated failure to pay as soon as possible.
- Where you have selected in the Order to pay the full Price prior to Delivery, you will not be entitled to any part of the Goods until all amounts under clause 9.1 have been paid in full.
- Where you have selected in the Order to pay the full Price other than in the manner set out in clause 9.4, you must pay the balance of the Price and any applicable Interest Payments in accordance with the applicable Payment Terms.
- If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
- immediately cease providing the Goods,
- enter any premises where the Goods the subject of any unpaid amount are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so;
- engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
- charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms,
and recover, as a debt due and immediately payable from you, our additional costs of doing so.
Title and RiskTitle in the Goods will pass to you on the date that you pay the Price (including the Deposit) and any applicable Interest Payments in full in accordance with these Terms. Risk in the Goods will pass to you at the earlier of:
- the Goods being delivered to Collection Location; and
- the payment of the Price (including the Deposit) and any applicable Interest Payments in full in accordance with these Terms
Contractual lien and security interest
- You agree that we hold a general lien over any Goods owned by us that are in your possession, for the satisfactory performance of your obligations under these Terms.
- You agree that these Terms and your obligations under these Terms create a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on any relevant securities register (and you must do all things to enable us to do so).
You represent, warrant and agree that:
- there are no legal restrictions preventing you from complying with these Terms;
- all information and documentation that you provide to us in connection with these Terms is true, correct and complete;
- you have not relied on any representations or warranties made by us in relation to the Goods (including as to whether the Goods are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
- any information, advice, material, work and services (including the Goods) provided by us under these Terms does not constitute due diligence or risk management advice;
- you are not and have not been the subject of an Insolvency Event;
- if applicable, you hold a valid ABN which has been advised to us; and
- if applicable, you are registered for GST purposes.
Subject to clause 13.2, you must (and must ensure that your Personnel do):
- keep confidential; and
- not use or permit any unauthorised use of,
Clause 13.1 does not apply where:
- the disclosure is required by Law; or
- the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that you ensure the adviser complies with the terms of clause 13.1.
- To the maximum extent permitted by law, you indemnify, and continue to indemnify, us against all Liability we suffer or incur arising from or as a consequence of a breach of this clause 13.
- Notwithstanding anything to the contrary in this Agreement, you must not, and must not allow any third party to analyse, test, reverse engineer, copy or alter the Goods, or use the Goods in any other way which may infringe our Intellectual Property Rights.
- This clause 13 will survive the termination or expiry of these Terms.
all Confidential Information.
Australian Consumer Law
- Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Goods by us to you which cannot be excluded, restricted or modified (Statutory Rights).
- Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
- If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Goods provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
- Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Goods) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.
- This clause 14 will survive the termination or expiry of these Terms.
WarrantyYour rights at law
- The benefits given to you under this Warranty are in addition to, and do not limit or derogate, your rights and remedies at law in relation to your Goods, including under the ACL. Warranty Period
- Subject to the terms of this Warranty, and without limiting your Statutory Rights, your entitlement under this Warranty will commence from the date of Delivery and will continue to operate until the conclusion of the first season after Delivery (Warranty Period).
- This Warranty only sets out the Warranty Period within which we will offer you a replacement or refund. Your rights under the ACL may extend beyond the Warranty Period. What we will do to honour this Warranty
- Subject to the terms of this Warranty, and without limiting your Statutory Rights, your entitlement under this Warranty will commence from the date of Delivery and will continue to operate until the conclusion of the first season after Delivery (Warranty Period).
We may, in our discretion, elect to:
- replace your Goods; or
- issue a full or partial refund to you with respect to any amounts paid,
for the Defective part (or all) of your Goods, which, to the maximum extent permitted by law, will be your sole and exclusive remedy in relation to the Defect. Again, this clause does not seek in any way to limit your Statutory Rights, including under the ACL.
- If any materials or parts required to facilitate any replacement pursuant to clause 15.5 are unavailable or no longer in production, we will use our best endeavours to use appropriate equivalent materials or parts.
- Subject to the terms of this Warranty, your Goods are warranted by us to be free from Defects for the duration of the Warranty Period.
- We set out below the circumstances where we will not be liable to you under this Warranty. Again, this clause does not seek in any way to limit your Statutory Rights, including under the ACL. When this Warranty applies and when it does not
To the maximum extent permitted by law, this Warranty does not cover, and we will have no Liability, and you waive and release us from any Liability (under this Warranty or otherwise) in relation to any Defect which is caused (or partly caused) or contributed to, by any:
- act or omission, accident, or negligence by you or any third party not engaged by us;
- failure on your part to properly maintain your Goods in accordance with any of our instructions or guidelines, including these Terms and the Documentation;
- failure on your part to follow any instructions or guidelines (including any Documentation) provided by us in relation to your Goods;
- use of your Goods otherwise than for any application or use specified by us;
- continued use of your Goods (where such use is not reasonable) after any Defect in your Goods becomes apparent or would have become apparent to a reasonably prudent person;
- incorporation or installation of other items into your Goods;
- failure by you to notify us of any Defect in your Goods within a reasonable period of time after you become aware of or ought to have reasonably become aware of the relevant Defect;
- reasonable wear and tear of your Goods;
- act of God or force majeure event (as set out in clause 9); or
- installation, repair, replacement, maintenance or other compromise of the Goods by you or any person other than us.
- We will have no Liability, and you waive and release us from any Liability, for any delays (including any costs arising out of any delays) in providing any work or services under this Warranty, or in assessing any claim made by you under or in relation to this Warranty. Making a valid Warranty claim
To claim the benefit of this Warranty, you must:
- notify us through the Site as soon as you become aware of the Defect, and in any event, within 14 days of when you become aware of the Defect;
- if we ask you to, you must return the Goods together with all packaging, Documentation and proof of purchase to the contact details set out on the Site; and
- provide any other information reasonably required by us to assess your claim, including photo and video evidence.
- Where you return the Goods as part of a Warranty claim under this clause 15, you will need to cover any associated costs of you returning the Goods to us.
- Subject to your satisfaction of the requirements in clause 15.11, we will notify you of our determination as to whether your claim is valid under this Warranty, and if so, this clause 15 will apply. To the maximum extent permitted by law, any determination we make under this clause 15.13 will be final and binding.
If you have any questions or concerns about the terms of this Warranty, please contact us at the following details or through the Site:
Company PTY LTD (ACN 168 384 647)
Exclusions to liability
Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
- your or your Personnel’s acts or omissions;
- failure to remove any Goods from leased property;
- weather events;
- any damage to crops;
- the incorrect laying of the Goods or any farm operation, including without limitation irrigation;
- any use or application of the Goods by a person or entity other than you, or other than as reasonably contemplated by these Terms;
- the Goods being unlawful in a country outside of Australia;
- any works, services, goods, materials or items which do not form part of the Goods (as expressed in these Terms), or which have not been provided by us;
- any Third Party Inputs;
- the storage of any uncollected Goods, including any Liability for any loss, damage, spoilage or theft of or to those stored Goods;
- the Goods being unavailable, or any delay in us providing the Goods to you, for whatever reason; and/or
- any event outside of our reasonable control.
- This clause 15 will survive the termination or expiry of these Terms.
Limitations on liability
Despite anything to the contrary, to the maximum extent permitted by law:
- we will not be liable for Consequential Loss;
- our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your Personnel); and
- our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Goods to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Goods to which the Liability relates.
- This clause 17 will survive the termination or expiry of these Terms.
- If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
- If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
- If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
- The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Goods to you, including on the Site or in our promotional material.
- No guarantee: We do not warrant, represent or guarantee that the use of our Goods will result in a successful crop, yield or germination of seed.
- Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
- Amendment: These Terms may only be amended by written instrument executed by the Parties.
- Assignment: You must not assign or deal with the whole or any part of its rights or obligations under these Terms without our prior written consent.
- Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, the Dispute shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Adelaide, Australia. The language of the arbitration shall be English.
- Entire agreement: These Terms contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
- Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.
- Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
- Governing law: These Terms is governed by the laws of South Australia. Subject to clause 19.6, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in South Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
- Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
DefinitionsIn these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
Account has the meaning set out in clause 2.1.
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Business Day means a day on which banks are open for general banking business in South Australia, excluding Saturdays, Sundays and public holidays.
Collection Location means the port or other location where we will deliver the Goods, as set out in the Order.
Confidential Information includes information which:
- is disclosed to you in connection with these Terms at any time;
- is prepared or produced under or in connection with these Terms at any time;
- relates to our business, assets or affairs; or
- relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.
Consequential Loss includes any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Defect means any non-compliance of the Goods with the requirements of these Terms as a result of our default, and Defective has a corresponding meaning.
Deposit means the portion of the Price required to be paid upon placement of an Order, as set out on the Site.
Delivery Costs means the costs associated with the delivery or provision of the Goods, including any insurance, placing of the Goods onto pallets if requested by you, customs, tariffs, duties or other such charges that may apply to the Goods, but excluding the cost of freight of the goods to the Collection Location.
Documentation means any documentation in relation to the Goods set out on the Site, included with the delivery of the Goods or as otherwise notified to you.
Insolvency Event means any of the following events or any analogous event:
- a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
- a Party ceases, or threatens to cease, carrying on business;
- a Party is unable to pay the Party’s debts as the debts fall due;
- any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
- any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not.
Interest Payment means the charges set out on the Site, payable where you have selected in the Order to pay the full Price other than in the manner set out in clause 9.4
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Goods.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
Order means an order placed by you (including an online order), for the provision of the Goods, in accordance with clause 4.
Payment Terms means the payment terms set out on the Site (or as otherwise notified to you) in relation to the Order, including without limitation the due date for payment, currency for payment and the available payment methods.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Price means the price set out in the Order and on the Site and includes the Deposit, if any.
Site is available at www.Company.com and may be available through other addresses or channels.
Statutory Rights has the meaning given in clause 14.1.
Terms means these terms and conditions and any agreed Order issued under it and any documents attached to, or referred to in, each of them.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Goods may be contingent on, or impacted by.