Ausallium Pty Ltd - Terms of Trade

1. Acceptance of Agreement

• This Agreement applies to the ordering, purchase and delivery of Products from Ausallium Pty Ltd (ACN 634 484 325) (Company) and form a contract between the Customer and the Company.  
• The Customer agrees that by purchasing any Products or Services from the Company, the Customer enters into this Agreement and agrees to be bound by the terms and conditions of this Agreement.
• Capitalised terms used in this Agreement have the meaning given to them in clause 17.

2. Entire Agreement

• These terms shall constitute a full and complete statement of the Agreement between the Company and the Customer and no variations or modifications of the Agreement shall be binding unless agreed to in writing by the Company.
• The Company may vary or amend this Agreement by written notice to the Customer at any time.
• For the avoidance of doubt, no terms or conditions of the Customer (including any terms or conditions referred to in the Customer’s offer to purchase or order) will be binding on the Company.

3. Supply of the Products and Services

• All orders for Products must be placed in the manner and form (whether written or otherwise) required by the Company from time to time.
• Each order will be subject to acceptance by the Company, which retains the absolute discretion at all time to refuse to accept any order (in whole or in part) made by the Customer for Products or Services.
• The Company may withdraw or suspend Products from sale at any time without notice, either temporarily or permanently. Whilst the Company will use its best endeavours to ensure that it is able to provide Products and Services to the Customer when required, it does not warrant or guarantee that it will be able to do so and will not be responsible for any losses suffered or alleged to have been suffered by the Customer as a result of failure to supply or delay in supplying Products and Services, or failure to deliver the Products in the requested quantities.  If the Company accepts an order which cannot be fulfilled, it will refund the Customer for the unavailable Products, and fulfil the rest of the order (if applicable).
• No cancellation, variation or suspension of an order for Products or Services (or any part of an order for Products or Services) shall be binding upon the Company once the order has been placed with the Company.
• For Products which are being delivered to a location outside Australia, the Customer accepts that the Company’s obligation to sell and deliver Products at locations outside Australia are subject to applicable biosecurity and quarantine laws. The Customer agrees to provide all information requested by the Company which is required to obtain export licences and approvals for any Products to be delivered overseas.

4. Delivery and Handling

• It is the Customer’s responsibility to ensure that the delivery information they have provided to the Company is accurate. The Company will not be responsible for any losses suffered by the Customer (including lost orders) as a result of incorrect delivery information being provided.
• Any timeframe for delivery of Product or Services stated by or on behalf of the Company is an estimate only and not a contractual commitment or representation which may be relied upon.
• Any freight or delivery charges incurred under or referred to in this Agreement will be subject to GST and must be paid by the Customer unless otherwise agreed in writing by the Company. A minimum order value may apply at the Company’s discretion, and a handling fee may be incurred if an order does not meet the minimum order value.

5. Delivery Location

• The Customer will provide suitable and practical means of access to the Delivery Location and ensure that the Delivery Location is suitable to allow the efficient and safe delivery of Products and Services.
• The Customer warrants that it is the owner of the Delivery Location, or, if it is not, that it is authorised to permit Services being performed at or Products being delivered to the Delivery Location.
• The Customer will ensure that no third party interferes with or hinders the Company’s delivery of Products or provision of Services at the Delivery Location and will provide to the Company any information reasonably required by it in respect to the activities or proposed activities of any third parties at the Delivery Location.
• At no time does the Company take or accept any responsibility for the Delivery Location and all risk and liability in and relating to the Delivery Location remains with the Customer at all times.

• All information provided by the Company on this website (including images and descriptions) or otherwise supplied by the Company to the Customer is for general informational purposes only, and the Company makes no representations or warranties regarding the completeness, accuracy, reliability or suitability of any information provided to the Customer.
• Any reliance the Customer places on the information is strictly at its own risk, and the Company excludes to the maximum extent permitted by law any liability which may arise as a result of using this website or the information supplied. Where liability cannot be excluded, liability is limited to the extent provided by the ACL. The Company will not be liable for any indirect or consequential loss or damage arising out of or in connection with the use of this website or other information supplied by the Company.
• Any information or advice provided by the Company to the Customer (whether before or after this Agreement is entered into) must be considered by the Customer in the context of location, climate, soil type and growing conditions and any other relevant growth and development factors relating to the Products. 
• Any purchases are made on the basis that the Customer acknowledges and agrees that significant variations in germination and growth of seed Products may occur due to differences in location, soil type, climate, season, moisture levels, growing medium and other environmental factors beyond the Company’s control. Seed products will not necessarily be suitable for a given location, soil type, climate or seasonal condition, and due to this variability the Company makes no representations or warranties regarding Product performance.
• The Company recommends that the Customer obtain advice from a suitably qualified agronomist regarding the location, timing, and growing conditions under which the Products will be grown before the Customer orders any Products.
• All seed counts are provided as a guide only, and seed Products will be sold by volume or weight.

7. Pricing and payment

• The Customer shall be charged for the Products and Services as listed on the Price List, or as otherwise notified to the Customer at the time of the Customer placing an order for Products and/or Services.
• The terms of payment shall be as notified by the Company from time to time, including requiring payment before the Products are despatched.
• Credit may be given to customers who have had a credit application approved by the Company prior to ordering Products. The granting of credit to a Customer shall be at the absolute discretion of the Company, and the Customer acknowledges that the Company is authorised to make all reasonable enquiries as to the creditworthiness and financial responsibility of a Customer who has made a credit application or been provided with credit, including obtaining reports from credit reporting agencies.
• The Customer acknowledges that the available Products and the Price List may be modified by the Company from time to time without notice and it shall be the responsibility of the Customer to check the availability and price of any particular Product immediately prior to placing any order. If the Customer has ordered a Product, the Company will supply the ordered Products at the price applicable at the time of order, despite any subsequent variation.
• Payments for Products are not deemed to have been made unless and until the payment has cleared. The Company may reject an order if the payment cannot be processed or cleared.
• Unless otherwise expressly stated, prices for Products are in Australian dollars and exclusive of GST and any other applicable taxes or duties. All payments will be processed in Australian dollars. In addition to the price for the Products and Services the Customer shall also pay any applicable GST, taxes or duties, including export charges or duties if the Products are being shipped internationally.
• Any quotation provided by the Company to the Customer shall, unless otherwise stated in the quotation, be valid only for 7 days from the time it was made and may be withdrawn at any time by Company within that period.

8. Consequences of Breach

• Interest shall be payable on any amounts outstanding outside payment terms by the Customer to Company at the rate of 2% over and above the rate applicable from time to time under the Penalty Interest Rates Act 1983 (Vic).
• The Customer hereby indemnifies the Company in respect of any liabilities, costs, expenses, damages and losses incurred by the Company (including any direct, indirect or consequential losses, penalties and other professional costs, including legal costs on a solicitor/client basis) as a result of any breach of this Agreement by the Customer, including any breach of terms of payment for Products or Services. Such costs include but are not limited to the costs of any demands made of the Customer to remedy any breach, and any legal proceedings to recover unpaid money.

9. Retention of Title to Products

• Until the Company receives full payment (in the form of clear funds) for any Products supplied by it to the Customer, together with any other amounts owing by the Customer to the Company:

 - The Customer must store the Products separately from other goods, and clearly label the Products as the property of the Company;

• For the purposes of the PPSA, by executing this Agreement the Customer grants to the Company a Security Interest in the Products and the Company shall be entitled to register the Security Interest on the PPS Register.

10. PPSA

• For the purposes of the PPSA:

• The Company may, at the Customer’s expense, register any Security Interest granted under this agreement on the PPS Register in any manner it chooses, and the Customer must provide the Company with any information it requires for the purposes of effecting such registration. For the purposes of section 157(3) of the PPSA, the Customer unconditionally and irrevocably waives its right to receive any notice from the Company in respect to the registration of a Security Interest pursuant to this Agreement.
• The Customer must do whatever shall be necessary in order to give a valid Security Interest over the Products and their proceeds which is able to be registered by Company on the PPS Register, and to maintain that registration. Without limiting the Customer’s obligations under this clause, the Customer must immediately upon the Company‘s request:

• The Security Interest arising under this clause attaches to the Products when the Products are collected from or dispatched from the Company‘s premises and not at any later time.
• The Company shall be free to allocate sums received from the Customer in any manner the Company determines, including in any manner required to preserve any Purchase Money Security Interest or any other security interest it has arising by virtue of supply of Products to the Customer.
• The Customer agrees that sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply to the enforcement by the Company of its Security Interest in the Products.

11. Risk, Insurance And Liability

• The risk in the Products and the responsibility for insuring the Products shall pass to the Customer immediately upon delivery of the Products to the Customer or upon collection by the Customer from the point of sale (whichever is applicable).
• The Customer warrants that it has and will have at the time of making any particular order for Products all necessary licenses or permits under all relevant laws and regulations to possess and use the Products;
• If the Company is liable for a breach of a guarantee implied by the ACL in respect to the provision of the Products or Services and those Products or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, to the extent permitted by the ACL, its liability to the Customer will be limited to:

• All freight charges and insurance for Products being returned is the responsibility of the Customer.

12. Force Majeure

The Company shall not be liable in any manner whatsoever to the extent that it has been prevented from performing any obligation under this Agreement by reason of matters beyond its control, including without limitation:

• Inability to source Products;
• Inability to access the Delivery Location or part of the Delivery Location,
• Lack of availability (for whatever reason) of staff or contractors;
• Acts of God, accidents or plant or machinery breakdowns;
• Acts or threats of armed conflict, terrorism or civil commotion;
• Industrial disputes, lockouts or strikes (whether involving the Company’s own workforce or a third party’s);
• Pandemic or epidemic;
• Fires, floods, storms, earthquakes, natural disasters or extreme adverse weather conditions; or
• Default of suppliers, contractors or subcontractors.

13. Termination on Notice

The Company may terminate this Agreement at any time by giving notice to the Customer.

14. Immediate Termination of Agreement

The Company may terminate this Agreement immediately by giving written notice to the Customer if the Customer:

• Goes into liquidation;
• Has an administrator or a receiver to its property or assets appointed;
• Is made bankrupt; or
• Materially breaches its obligations under this Agreement where such breach is either not capable of remedy or, if capable of remedy, the Customer fails to remedy such breach within 14 days after receipt of written notice of such breach by the other party.

The termination of this Agreement for whatever reason shall not in any way affect any rights or responsibilities accruing prior to the termination taking effect and the Company’s rights in the event of default (including the ongoing accrual of interest under clause 9a and indemnities under clauses 9b and 10e) shall continue beyond any termination.

16. General

• Nothing in this Agreement shall give rise to a partnership or relationship of employment between the parties.
• The Company is not liable and takes no responsibility for any foodborne illnesses that arise as a result of consuming the Company’s Products or any fresh Product grown from the Company’s Product. Seed borne bacterial and viral (including but not limited to listeria, salmonella and E.coli) infection can occur from time to time in the supplied Products.
• All trade marks, brand names and product names in the Products remain the property of the Company.
• Any failure or delay by the Company to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future of the exercise of any other power or right. A waiver is not effective unless it is in writing.
• If a clause in this Agreement is unenforceable it must be read down so as to be unenforceable or, if it cannot be so read down, it must be severed from this Agreement without affecting the enforceability of the remaining terms of the Agreement.
• This Agreement shall be governed by the laws of Victoria, Australia.

17. Interpretation

In this Agreement:

“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.

“Agreement” means this Agreement.

“Customer” means the party Purchasing Products or Services from the Company.

“Company” means Ausallium Pty Ltd (ACN 634 484 325).

“Delivery Location” means any location to which the Customer requests that Product be delivered or at which Services are to be performed.

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

“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended.

“PPS Register” means the Personal Property Securities Register established under the PPSA.

“Products” means any Products, including seeds or plants, which the Company sells or provides to the Customer from time to time.

“Price List” means the list prices for Products and Services kept and updated from time to time by the Company.

“Purchase Money Security Interest” has the meaning given in the PPSA.

“Security Interest” has the meaning given in the PPSA.

“Services” means any services which the Company sells or provides to the Customer from time to time.