Fairbank’s Selected Seed Co. Pty Ltd – Terms of Trade

1.                 Interpretation

“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.
Agreementmeans this Agreement.
Customermeans the party Purchasing Products or Services from Fairbanks.
Fairbanks” means Fairbank’s Selected Seed Co. Pty Ltd.
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.
Productsmeans any Products, including seeds, which Fairbanks 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 Fairbanks.
Servicesmeans any services which Fairbanks sells or provides to the Customer from time to time.
“Site” means any location to which the Customer requests that Product be delivered or at which Services are to be performed.

2.                 Acceptance of Agreement

The Customer agrees that by purchasing any Products or Services from Fairbanks it thereby enters into this Agreement with Fairbanks and agrees to be bound by the terms contained herein.

3.                 Entire Agreement

a) These terms shall constitute a full and complete statement of the Agreement between Fairbanks and the Customer and no variations or modifications of any term of the Agreement shall be binding unless agreed to in writing by Fairbanks.
b) Fairbanks may vary or amend these terms by written notice to the Customer at any time. Any variations so made will only apply to orders placed by the Customer after the time that the variation has been bought to the Customer’s attention.

4.                 Term of agreement

This Agreement shall apply to all dealings between the parties until it is replaced by an alternate written Agreement or is terminated in accordance with its terms.

5.                 Supply of the Products and Services

a) The Customer may order from Fairbanks from time to time such quantities of Products and Services it requires, with orders to be in such format (whether written or otherwise) as Fairbanks may require.
b) Whilst Fairbanks 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 alleged to have been suffered by the Customer as a result of failure to supply or delay in supplying Products and Services, regardless of the reason for the failure to supply.  In this regard the customer acknowledges that availability of seed is unpredictable and, irrespective of whether seed or other Products are marketed by Fairbanks, no representation of ability to supply is given by Fairbanks to the Customer.
c) Fairbanks retains the absolute discretion at all time to refuse to accept any order made by the Customer for Products or Services.
d) Any period or date for delivery of Product or Services stated by or on behalf of Fairbanks shall be regarded by the Customer as an estimate only and not a contractual commitment or representation which may be relied upon.
e) The Customer acknowledges that Fairbanks may at its discretion engage agents or subcontractors in the provision of Products and Services to the Customer.

6.                 Site Requirements

a) The Customer shall provide suitable and practical means of access to the Site and ensure that the Site is suitable to allow the efficient and safe delivery of Products and Services.
b) The Customer warrants that it is the owner of the Site, or, if it is not, that it is authorised by the owner to allow for Services being performed at the Site.
c) The Customer shall ensure that any other parties performing works at the Site do not interfere with or otherwise hinder Fairbanks’s provision of Services. In this regard to the Customer shall provide to Fairbanks any information reasonably required by it in respect to the activities or proposed activities of any other party performing works at the Site.
d) At no time does Fairbanks take or accept any responsibility for the Site and all risk and liability in and relating to the Site remains with the Customer at all times.
e) Products are not sold on a consignment basis unless Fairbanks specifically agrees in writing to do so.

7.                 Information and Seed suitability

Any figures or data provided by Fairbanks to the Customer (whether before or after this Agreement is entered into) are for general comparative purposes and are not absolute values and are intended as an introductory guide only. Such information must be considered by the Customer in the context of location, climate, soil type and conditions and any other relevant growth and development factors.  Accordingly any purchases are made on the basis that the Customer acknowledges and agrees that-
a) Seed products will not necessarily be suitable for a given location, soil type, climate or season;
b) It will not purchase seed products from Fairbanks unless it has prior to placing any order obtained specific advice from a suitably qualified agronomist or direct from Fairbanks as to the desirability of growing the relevant seed –
(i)            In the location;
(ii)           At the time; and
(iii)          Under the conditions that it is proposed the seed will be grown;
c) It will in utilising any seed purchased from Fairbanks, follow accepted industry best growing practices and seek and follow suitable agronomy advice at all times; and
d) Fairbanks recommends that in all cases a small scale trial of the relevant product be conducted at the proposed site of production at the appropriate seasonal timing to test the suitability of the product for local conditions.

8.                 Pricing and payment

a) The Customer shall be charged for the Products and Services as set out in Fairbanks‘s Price List as it applies at the time of the Customer placing an order for Products and or Services. If a Product or Service does not appear on the Price List, or if the Price List does not or ceases to exist, then Fairbanks shall be entitled to charge a reasonable amount for that Product or Service.
b) The Customer acknowledges that the Products and the prices in the Price List may be modified by Fairbanks from time to time without notice throughout the currency of this Agreement and it shall be the responsibility of the Customer to check with Fairbanks as to the availability and price of any particular Product immediately prior to placing any order.
c) The terms of payment shall be as notified by Fairbanks from time to time save that Fairbanks shall be free at any time, at its sole discretion, to revoke payment terms in regard to any future orders and require payment in advance of supply of further Product or Services.
d) Payment by cheque is not deemed to have been made unless and until the proceeds of the cheque have cleared.
e) Unless otherwise stated quotes for Products or delivery are exclusive of GST and any other applicable taxes or duties. In addition to the price for the Products and Services the Customer shall also pay any applicable GST, taxes or duties.
f) Any quotation provided by Fairbanks 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 Fairbanks within that period.
g) In respect of payments required to be made by the Customer under this Agreement time shall be of the essence.

9.                 Breach By Customer

a) Interest shall be payable on any amounts outstanding outside payment terms by the Customer to Fairbanks at the rate of 2% over and above the rate applicable from time to time under the Penalty Interest Rates Act 1983 (Vic).
b) The Customer hereby indemnifies Fairbanks in respect of any costs incurred by Fairbanks (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.

10.               Retention of Title to Products

Until Fairbanks 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 Fairbanks
a) Title and property in all of the Products yet to be paid for remains vested in Fairbanks and does not pass to the Customer;
b) The Customer must hold the goods as bailee for Fairbanks;
c) The Customer must hold the proceeds of any sale of the Products on trust for Fairbanks; and
d) In addition to its rights under the PPSA Fairbanks may without notice, enter any premises where it suspects that the Products are and remove them, and for this purpose the Customer irrevocably licenses Fairbanks or its agents to enter onto such premises and also indemnifies Fairbanks from and against all costs, claims, demands or actions by any party arising from such action.
e) For the purposes of the PPSA, by executing this Agreement the Customer grants to Fairbanks a Security Interest in the Products and Fairbanks shall be entitled to register the Security Interest on the relevant Security Register.

11.               Personal Property Security Act

a) For the purposes of the PPSA –

(i)                 Terms used in this clause have the corresponding meaning to their use in the PPSA;
(ii)                These Terms constitute a security Agreement between Fairbanks and the Customer and Fairbanks has a Purchase Money Security Interest in all present and future Products supplied by Fairbanks to the Customer and the proceeds of those Products;
(iii)               The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer to Fairbanks at any particular point in time.
b) 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 Fairbanks on the Personal Property Securities Register. Without limiting the Customer’s obligations under this clause, the Customer must immediately upon Fairbanks‘s request –
(i)                 Execute all documents and do any other things necessary to give effect to the security interest created under these terms; and
(ii)                Procure from any person considered by Fairbanks to be relevant to its security position such Agreements and waivers as Fairbanks may require at any time.
c) The security interest arising under this clause attaches to the Products when the Products are collected from or dispatched from Fairbanks‘s premises and not at any later time.
d) Fairbanks shall be free to allocate sums received from the Customer in any manner Fairbanks 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.

12.               Risk, Insurance And Liability

a) The risk in the Products and all insurance responsibility for theft, fire or damage of any other kind 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), regardless of whether there is any further work to be completed by Fairbanks in regard to those Products.
b) 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.
c) If Fairbanks 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 –
(i)     The replacement of the Products or the supply of equivalent Products;
(ii)    The payment of the costs of replacing the Products or acquiring equivalent Products;
(iii)   The supplying of the Services again; or
(iv)  The payment of the cost of having the Services supplied again.

13.               Cancellation of Orders

No purported 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 Fairbanks once the order has been placed with Fairbanks.

14.               Force Majeure

Fairbanks 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-
a) Inability to source Products;
b) Inability to access the Site or part of the Site;
c) Lack of access to electricity or other required resources at the Site;
d) Lack of availability for whatever reason of staff or contractors;
e) Acts of God, accidents or machinery breakdown;
f) Acts or threats of terrorism or war; or
g) Industrial disputes or strikes.

15.               Termination on Notice

Either party may terminate this Agreement at by giving the other party 30 days’ notice of its intention to do so.

16.               Immediate Termination of Agreement

Fairbanks may terminate this Agreement immediately by giving written notice to the Customer if the Customer:
a)       Goes into liquidation;
b)       Has an administrator or a receiver to its property or assets appointed;
c)       Is made bankrupt;
d)       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; or
e)       Engages in any conduct (which includes any conduct by employees of the Customer) which in the opinion of Fairbanks is or might be damaging to the reputation of Fairbanks or any of the Products.

17.               Effect of Termination

The termination of this Agreement for whatever reason shall not in any way effect any rights or responsibilities accruing prior to the termination taking effect and Fairbanks’s rights in the event of default (including the ongoing accrual of interest and the right to indemnity for costs) shall continue beyond any termination.

18.               Relationship of parties

Nothing in this Agreement shall give rise to a partnership or relationship of employment between the parties.

19.               Waiver

Any failure or delay by Fairbanks 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.

20.               Reading down of Agreement

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.

21.               Jurisdiction

This Agreement shall be governed by the laws of Victoria.