1. Application of Terms
1.1
These Terms and Conditions govern our supply of Goods and Services to you, including supplies provided on a cash basis.
1.2
If you wish to negotiate any part of these Terms and Conditions, you must notify us in writing, clearly identify the proposed changes, and obtain our written agreement before any amendments will apply.
1.3
We do not generally review or accept any terms and conditions contained in documents issued by you, including purchase orders or similar documents.
1.4
Unless expressly agreed by us in writing, we do not accept and will not be bound by any terms or conditions included in, attached to, or referenced in any document provided by you, including any purchase order.
2. Quotations
2.1
Each quotation that we issue: (a) is an estimate only; (b) is not an offer or obligation to supply any Goods or to perform any Services; (c) is exclusive of GST; (d) does not include the costs of delivering Goods; (e) remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn by us before a contract for supply is formed; and (f) contains a price on the basis that all Services are performed, and all Goods delivered, during our usual business hours, unless the quotation states otherwise.
2.2
Quotations provided orally are subject to written confirmation.
2.3
A quotation may include additional terms or conditions, which will supplement these Terms.
2.4
Should you wish to have Services performed or Goods delivered outside our usual business hours please let us know as additional charges may apply.
2.5
We reserve the right to correct any clerical, administrative, pricing, or typographical error in any quotation, Order, invoice, or other document.
3. Formation of contract
3.1
We are not obliged to supply any Goods or provide Services until after a contract for supply is formed.
3.2
A contract for supply is formed, and you have accepted these Terms, when: (a) you have placed an Order with us; and (b) we have received any deposit we have required from you in respect of the Order before progressing it; and either we have: (c) accepted your Order in writing; or (d) supplied you with any Goods or performed any Services following receipt of your Order.
3.3
A contract for supply is formed when we accept a purchase order issued by you, issue an order confirmation, commence fulfilment of the Order, or otherwise indicate acceptance of the Order.
3.4
If you revoke or cancel an Order:
(a) before a contract for supply is formed, we will refund any deposit paid and no cancellation fee will apply; or
(b) after a contract for supply is formed, then unless we are in breach of the contract for supply:
(i) you must pay our reasonable costs, losses and expenses arising from the cancellation or fulfilment of the Order; and
(ii) we may retain and apply any deposit paid towards those amounts.
4. Price
4.1
The price payable for the Goods or Services will be: (a) the price agreed in writing; or alternatively (b) the price set out in our prevailing price list or rates applicable at the time you place your Order.
4.2
We may vary our price or rates by notice to you if you request: (a) the Goods or Services be rendered outside our usual business hours; (b) different Goods or Services to be supplied to the contract for supply; or (c) that we delay provision of the Goods or Services for sixty (60) days or more.
4.3
Where we vary the price or rates payable for the Goods or Services pursuant to clause 4.2, we will notify you of the new price or rates.
4.4
Thereafter you may reject the new price or rates within seven (7) days and terminate the contract for supply without any cost or penalty to you, otherwise you agree that the revised price or rates will apply to the contract.
5. Delivery and risk
5.1
We will use reasonable endeavours to deliver the Goods at the time and place agreed for delivery. You will make arrangements necessary to take delivery of the Goods.
5.2
You acknowledge and agree that: (a) unless the contract for supply expressly states otherwise, time in respect of delivery is not of the essence; and (b) any timeframe or date for delivery is an estimate only and is not a contractual commitment.
5.3
Risk of loss, damage, or deterioration to the Goods passes to you, and delivery is deemed to occur, at the time: (a) you or any third party on your behalf collect the Goods from us; (b) we or our nominated carrier deliver the Goods to the delivery location stated in your Order (or to such other location as agreed in writing); or (c) your nominated carrier takes possession of the Goods; (d) (d) the nominated pickup date specified in the Order occurs and you or your nominated third party have not collected the Goods.
5.4
You acknowledge and agree to: (a) insure and keep insured at all times Goods that we supply to you; and (b) upon our reasonable request, provide us with any insurance certificates or copies of the relevant insurance policy.
5.5
For the avoidance of doubt, clause 5.4 shall apply to partial deliveries of Goods.
5.6
It is your responsibility to provide suitable, practical, and safe means of access and egress to the place agreed for delivery. If the site is deemed unsuitable or unsafe (at the delivery driver’s sole discretion), then the delivery driver may: (a) refuse to deliver the Goods and return the Goods to the point of dispatch (in which case an additional delivery fee will apply to any subsequent delivery attempt); or (b) deliver the Goods to the location nearest to the agreed place for delivery where delivery can be safely effected.
5.7
You agree to sign our delivery docket or consignment note or that of our nominated carrier as confirmation that you have received the Goods, and if appropriate, certify that you have received the Goods in apparent good order and condition in the quantity or volume you have ordered. If you or your nominated representative fail or refuse to sign the delivery documentation at the time of delivery, the Goods will nevertheless be deemed to have been delivered and received in good order and condition unless you notify us in writing of any alleged shortage, damage, or defect within 24 hours of delivery.
5.8
If you authorise us to deliver the Goods to an unattended location or to leave them outside the agreed place for delivery, we may deliver the Goods as requested at your risk.
5.9
If delivery or collection of the Goods is deferred: (a) at your request; or (b) due to you being unable or unwilling to accept delivery of the Goods (other than as a result of the Goods delivered not being in accordance with the contract for supply); in circumstances where: (i) we are ready to deliver the Goods and a delivery date has not been agreed; or (ii) the Goods are due to be delivered or collected on an agreed delivery date, then you will pay to us: (A) reasonable daily storage charges (which will continue to accrue until such time as the Goods are delivered or collected); and (B) any costs associated with us or our nominated carrier attempting to re-deliver the Goods (where we or our nominated carrier has previously attempted to deliver the Goods): (C) the Goods will during any period of delayed delivery or collection be stored at your sole risk, and we will not be liable for any deterioration in the condition or quality of the Goods arising during that period, including deterioration caused by moisture, pests, insects, vermin, contamination, spoilage, or bag deterioration, except to the extent caused by our negligence.
5.10
You acknowledge and agree that we may deliver the Goods in one or more lots and may invoice you for pro rata progress in respect thereof.
6. Goods on Consignment
6.1
Any Goods delivered to you on consignment shall remain our property until paid for in full.
6.2
Any Goods delivered to you on consignment will be at your risk from the time of delivery.
6.3
You acknowledge and agree that you are responsible for the maintenance and repair of any Goods on consignment.
6.4
You will forthwith return any Goods on consignment to us upon our written demand.
7. Seed treatment, storage, and testing
7.1
You acknowledge and agree that, given the nature of the Goods and Services: (a) seed treatments, coatings, or other similar procedures (the ‘Treatment’) may vary depending on the nature of the seed the subject of the Treatment; (b) weight or volume measurements of the seed after Treatment may not be an accurate measure of the Treatment and we make no warranties concerning the weight or volume of seeds following Treatment; (c) Treatment may impact on the quality or efficacy of seeds due to the nature of the Treatment; and (d) the quality and efficacy of any Treatment can be impacted by environmental conditions, including but not limited to moisture and temperature.
7.2
You must make all necessary inquiries to ensure any Goods that you provide to us for Treatment are suitable for the selected Treatment.
7.3
You acknowledge and agree that Goods comprising seeds and seed products (including live seed) must be stored appropriately to ensure maximal shelf life, usability, and quality. You will endeavour to store Goods correctly having regard to proper storage conditions, including (i) humidity; (ii) temperature; (iii) lighting, including avoiding direct sunlight; and (iv) pest and disease prevention.
7.4
Where Goods are stored for more than six (6) months, it is recommended that Goods be tested at an accredited laboratory using the same methodology or experimental design as original seed testing to ensure continued viability, quality, and usability.
7.5
You acknowledge and agree that Goods comprising mixed seeds (or other seed combinations) require blending which may result in finished Goods exhibiting variations in uniformity or approximate seed ratios.
8. Pesticides and treated seeds
8.1
We may use herbicides, insecticides, fungicides, or other pesticides (collectively, the ‘Pesticides’) at any stage of seed production or when treating Goods.
8.2
You should exercise caution and endeavour to consult us before repurposing or using Goods (or any storage containers or vessels used to deliver Goods) for a purpose other than of a kind ordinarily intended for similar goods (for example, where you intend to repurpose seed bags into jewellery or other personal effects).
9. Payment terms
9.1
Unless you have a Credit Facility with us which is not in default: (a) deposits we have requested must be paid before we commence providing Goods and Services; (b) you must pay for all Goods before they are dispatched (in cash or cleared funds); and (c) you must pay for all Services on a progressive hourly basis as performed.
9.2
Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
9.3
We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance (including credit card processing and bank transaction fees).
9.4
You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply. You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding. You must not withhold payment or make any deduction from amounts owing unless expressly agreed in writing.
10. Claims
10.1
Clauses 10.2 to 10.3 only apply if the contract for supply is not a Consumer Contract and not a Small Business Contract.
10.2
You must, within seven (7) days of the date of delivery: (a) give us notice in writing, with particulars, of any Claim that the Goods delivered are not in accordance with the contract for supply (including any Claim for shortfall, incorrect supply, or damage to the Goods); and (b) at our request, provide photographic evidence (to our satisfaction) of any alleged damage to the Goods. You must notify us in writing of any Claim for non-delivery within seven (7) days of the date of the invoice relating to the Goods the subject of your Claim.
10.3
If you fail to notify us in accordance with clause 10.2, then, to the extent permitted by law, the Goods are deemed to have been delivered in good condition and in accordance with the contract for supply.
11. Returns
11.1
We will accept the return of any Goods if: (a) the Goods supplied do not conform with the contract for supply; (b) the Goods are defective; or (c) we are required by law to accept the return of the Goods.
11.2
You indemnify and release us from any damage that occurs to any Goods in return transit. You should ensure that any returned Goods are insured against such damage.
12. Retention of title
12.1
Until such time as you have made payment in full (in cash or cleared funds) for any Goods we have supplied: (a) title in the Goods does not pass to you and we retain legal and equitable title; (b) you will hold the Goods as fiduciary and bailee and store them so they remain identifiable as our property; (c) you must not mix the Goods with similar goods; (d) unless we notify otherwise, you may sell the Goods in the ordinary course of business as our agent and bailee provided sales are at arm’s length and market terms; and (e) you must hold any proceeds of sale on trust for us absolutely.
12.2
The Customer must not resell the Goods unless the resale occurs in the ordinary course of business and the Customer is not in default of payment to us.
12.3
While title in the Goods remains with us, you permit us to enter any premises you occupy (or any premises occupied by a receiver, administrator, liquidator, or trustee) as your invitee to inspect the Goods and, when in default of payment, to repossess Goods in your possession, custody, or control.
12.4
You agree that any exercise of our right of entry under clause 12.3 will not give rise to any claim for trespass or similar action against us or our officers, employees, or agents.
12.5
Where we retake possession of Goods, we may sell or deal with those Goods, including Goods bearing your name or trademark, and you grant us an irrevocable licence to do all things necessary to effect such sale.
12.6
For the avoidance of doubt, our interest under this clause constitutes a purchase money security interest for the purposes of the PPS Act.
12.7
Where the Goods comprise seed and are planted, mixed, processed, or incorporated into a crop before payment in full: (i) title to the resulting crop and any proceeds of sale vest in and remain with us until all amounts are paid in full; and (ii) you grant us a security interest in the crop and all proceeds for securing payment of monies owing in connection with the supply of Goods.
13. Security interest
13.1
Unless you have obtained our prior written and fully informed consent, you undertake not to: (a) register a financing change statement in respect of a security interest in our favour; or (b) create or purport to create any security interest in the Goods (or any proceeds derived from the sale of such Goods), nor register or permit to be registered any financing statement or financing change statement in relation to the Goods in favour of any third party.
13.2
You waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act.
13.3
To the extent permitted by the PPS Act, you agree that sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 do not apply and are contracted out of.
13.4
You waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
13.5
We are not required to disclose information of the kind detailed in section 275(1) of the PPS Act unless required by law. Any additional rights we have under the PPS Act continue to apply.
13.6
The Customer must immediately notify us in writing if: (a) any person claims a security interest, lien, charge, or other encumbrance over the Goods; (b) the Customer becomes insolvent or subject to external administration; (c) any step is taken to seize, levy against, or repossess the Goods; or (d) the Customer loses possession or control of the Goods.
14. Particular Purpose
If you require any Goods for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Goods will meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Goods will be fit for your particular purpose, then you agree that you did not rely upon our skill or judgment in relation to the suitability of the Goods for that purpose.
To the extent permitted by law, we do not warrant or guarantee crop yield, field performance, disease resistance, merchantability, or suitability for any particular environmental or growing conditions.
15. Default
15.1
Clauses 15.2 to 15.4 apply if you fail to pay sums to us when they fall due.
15.2
You must pay the price of the Goods and/or Services on or before the due date shown on the invoice unless we have approved extended payment terms in writing. If payment is overdue, we may charge interest at our bank’s highest current overdraft rate (10% per annum as at the date of these Terms), calculated daily from the due date until payment is received.
15.3
If payment is overdue, we may cancel or suspend delivery of any other Goods or Services yet to be supplied and may require pre-payment in full for any future Goods or Services.
15.4
If the Customer fails to make payment when due, we may without liability: (a) suspend manufacture, treatment, bagging, dispatch, loading, or delivery; (b) refuse collection of Goods by the Customer or its carrier; (c) cancel any unfulfilled Orders; and (d) require payment in full before accepting any further Orders.
16. Indemnity
16.1
If you default in the performance or observance of your obligations under any contract of which these Terms form part, then: (a) we will take reasonable steps to mitigate our loss and act reasonably in relation to any default; (b) we will give you notice requesting payment for loss and damage and requesting that you remedy any breach within a reasonable time; and (c) if the demand is not met, you indemnify us in respect of all loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) arising from the default.
16.2
Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or any breach of our obligations under the contract has contributed to the Claim, loss, damage, or cost.
16.3
Your indemnity obligations are continuing, separate, and independent obligations and survive termination or performance of any contract to which these Terms apply.
17. Limitation of liability
17.1
Our maximum aggregate liability is limited to the purchase price of the relevant Goods supplied.
17.2
No party is liable to the other for any Consequential Loss, including under clause 16, however caused arising out of or in connection with any contract for supply of which these Terms form part.
17.3
While we will take reasonable endeavours to meet any estimated delivery date or timeframe for Goods and Services, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
17.4
If the contract for supply is not a Consumer Contract or a Small Business Contract, then to the extent permitted by law, our liability is limited to: (a) in the case of Goods: (i) repairing or replacing the Goods; or (ii) paying the cost of repair or replacement; and (b) in the case of Services: (i) supplying the Services again; or (ii) paying the cost of having equivalent Services supplied.
18. Termination
A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party: (a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or (b) has failed to pay sums due to the party within seven (7) days; or (c) has indicated that it is, or may become, insolvent; or (d) ceases to carry on business; or (e) comprises an entity which is the subject of the appointment of receivers or managers; or (f) comprises a natural person who: (i) has committed an act of bankruptcy; or (ii) has been made bankrupt; or (g) comprises a corporation which: (i) enters into voluntary administration; (ii) is subject to a deed of company arrangement; or (iii) is subject to the appointment of liquidators or provisional liquidators. We may also terminate any contract for supply with immediate effect by written notice if we are unable to supply the Goods, or supply becomes impractical or uneconomic, due to circumstances beyond our reasonable control, including crop failure, shortage of supply, supplier failure, seasonal availability, contamination, transport disruption, export restrictions, government action, force majeure events, or other unforeseen circumstances affecting supply.
18. Termination
A party may, with immediate effect, terminate any contract for supply of which these Terms form part by notice in writing, if the other party: (a) commits a material or persistent breach of these Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or (b) has failed to pay sums due to the party within seven (7) days; or (c) has indicated that it is, or may become, insolvent; or (d) ceases to carry on business; or (e) comprises an entity which is the subject of the appointment of receivers or managers; or (f) comprises a natural person who: (i) has committed an act of bankruptcy; or (ii) has been made bankrupt; or (g) comprises a corporation which: (i) enters into voluntary administration; (ii) is subject to a deed of company arrangement; or (iii) is subject to the appointment of liquidators or provisional liquidators. We may also terminate any contract for supply with immediate effect by written notice if we are unable to supply the Goods, or supply becomes impractical or uneconomic, due to circumstances beyond our reasonable control, including crop failure, shortage of supply, supplier failure, seasonal availability, contamination, transport disruption, export restrictions, government action, force majeure events, or other unforeseen circumstances affecting supply.
19. Force majeure
19.1
If a party is wholly or partly unable to carry out any obligation under a contract of which these Terms form part (other than a payment obligation) due to a Force Majeure Event, and the affected party: (a) gives prompt written notice to the other party with details of the event and the expected extent of delay or inability to perform; and (b) uses all reasonable diligence to remove or remedy the Force Majeure Event as quickly as possible, then the affected obligation is suspended for the duration of the Force Majeure Event.
19.2
Despite clause 19.1, the non-affected party may terminate the contract immediately by written notice if the suspension of obligations continues for more than one (1) month.
20. Trustees
20.1
If you are the trustee of a trust (whether disclosed to us or not), you warrant that: (a) you enter into the contract for supply in both your capacity as trustee and in your personal capacity; (b) you have the right to be reasonably indemnified out of trust assets; (c) you have the power under the trust deed to enter into the contract for supply; and (d) you will not retire as trustee or appoint any new or additional trustee without first notifying us in writing and ensuring the incoming trustee enters into an agreement on terms substantially the same as those governing your Credit Facility (where applicable).
20.2
You must provide us with a true and complete copy of the trust deed upon request.
21. Variation
We may amend these Terms in the future by notifying you in writing. The amended Terms will thereafter apply to each Order you place unless you give us written notice in advance of placing a further Order.
22. Assignment
A party may only assign its rights under the contract for supply with the written consent of the other party.
23. Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest): (a) any additional terms or conditions contained in our quotation applicable to the supply of Goods or Services; (b) any terms governing your Credit Facility; and
(c) these Terms.
24. Severance
If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
25. Notices
Notices may be given by email or post to the last notified email address or postal address of the party. Email notices will deemed to be received on the business day they are sent provided they are sent between 9am and 5pm on a business day. Posted notices will be deemed to be received if sent within Australia on the 5th business day following posting, and if sent from outside Australia on the 10th business day following posting. A party must promptly notify the other party in writing of any change to their contact details (phone number, email address and postal address). The Seed Shop Pty Ltd t/as Shepherd Grain, address is:
[email protected], PO Box 1234, Moree NSW 2400.
26. Privacy
You acknowledge and agree that We may collect, use and disclose your personal information. We respect your privacy. Your details are only kept in order to provide services to you, for marketing purposes and in the event that there are overdue monies owing to Us, information about You may be disclosed to a debt collection agency or other parties determined by Us. If you want your details removed from our marketing database, please advise Us in writing.
27. Disputes
If we direct, the parties must endeavour to settle any dispute in connection with these Terms by mediation conducted by a mediator who is independent of the parties and appointed by their agreement. It is a condition precedent to the right of the Customer to commence any legal action (other than in relation to interlocutory relief) concerning any dispute that they first offer to submit the dispute to mediation.
28. Governing law and jurisdiction
28.1
Our relationship is governed by and must be construed in accordance with the laws of the State of New South Wales.
28.2
The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of New South Wales in respect of any proceedings arising out of or in connection with this relationship.
29. Definitions In these Terms
In these Terms, unless the context otherwise requires, the following definitions apply.
29.1
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
29.2
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, statute or otherwise and whether involving a third party or a party to a contract for supply.
29.3
Consequential Loss includes any consequential loss; loss of anticipated or actual profits or revenue; loss of production or use; financial or holding costs; loss of failure to realise any anticipated savings; loss of business or commercial opportunity; loss of goodwill or reputation; loss or corruption of data; downtime costs; wasted overheads; or special, punitive, or exemplary damages.
29.4
Consumer Contract has the meaning given in section 23(3) of the Australian Consumer Law.
29.5
Credit Facility means an account we have opened for you on which we may, from time to time, extend additional time to pay for our Goods, Services, and associated charges.
29.6
Customer, you and your means the person or entity who has placed an Order with us for Goods or Services (or on whose behalf an Order is placed).
29.7
Force Majeure Event means any act of God, government action, casualty, fire, explosion, storm, flood, earthquake, embargo, industrial action, war, epidemic, pandemic, equipment failure, supplier failure, or any other event beyond the reasonable control of the affected party.
29.8
Goods means all goods supplied by us as described in our quotation, invoice, or any other document issued by us.
29.9
Order means a written or oral request placed by you for the supply of Goods or Services.
30. PPS Act
PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
31. Services
31.1
Small Business Contract has the meaning given in section 23(4) of the Australian Consumer Law.
31.2
Supplier, we, us and our means The Seed Shop Pty Ltd t/as Shepherd Grain (ABN: 41643999473).
32. Interpretation In these Terms
unless the context otherwise requires:
32.1
A time is a reference to the time zone of Adelaide, Australia unless otherwise specified.
32.2
$, dollar, or AUD is a reference to the lawful currency of Australia.
32.3
A party includes that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, any substituted or additional trustee.
32.4
A right includes a benefit, remedy, authority, discretion, or power.
32.5
The singular includes the plural and vice versa, and a gender includes other genders.
32.6
“In writing” or “written” means any expression of information in words, numbers, or symbols that can be read, reproduced, and later communicated, including electronically transmitted and stored information.
32.7
Where a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
32.8
Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by “without limitation”.
32.9
A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.
By placing your next order with us you are deemed to have agreed to and accepted all Terms and Conditions specified in this document.
