TERMS OF TRADE

1. Definitions

1.1 “Seller” shall mean All Turf Solutions Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of All Turf Solutions Pty Ltd.

1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer.

1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4 “Goods” shall mean Goods supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer

1.5 “Services” shall mean all services supplied by the Seller to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Customer subject to clause 3 of this contract.

2. Acceptance

2.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.

2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be amended with the written consent of the Seller.

2.4 The Customer undertakes to give the Seller at least fourteen (14) days notice of any change in the Customer’s name, address and/or any other change in the Customer’s details.

3. Price And Payment

3.1 At the Seller’s sole discretion the Price shall be either;

(a) as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or

(b) the Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days.

3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.

3.3 At the Seller’s sole discretion a deposit may be required.

3.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.

3.5 At the Seller’s sole discretion;

(a) payment shall be due on delivery of the Goods, or

(b) payment shall be due before delivery of the Goods, or

(c) payment for approved Customers shall be made by instalments in accordance with the Seller’s payment schedule.

3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Seller.

3.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4. Delivery Of Goods

4.1 The Customer shall take delivery of the Goods (at the Customer’s cost) at the Seller’s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.

4.2 The Goods shall be delivered at the Customer’s cost to either the Customer’s nominated address or the Customer’s nominated carrier. The Customer’s nominated carrier shall be deemed to be the Customer’s agent. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.

4.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

4.4 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

4.5 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either

greater or less than the quantity purchased provided that;

(a) such discrepancy in quantity shall not exceed 5%, and

the Price shall be adjusted pro rata to the discrepancy.

The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

The customer is entitled to cancel an order at any time greater than 36 hours prior to the scheduled delivery of the Goods, cancellations inside this time period may result in a 100% cancellation fee and you will be required to pay to the seller the full amount of your order less any amount which you have already paid.

5. Risk

If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.

If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

6. Title

It is the intention of the Seller and agreed by the Customer that ownership of the Goods shall not pass until:

the Customer has paid all amounts owing for the particular Goods, and

the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.

Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.

It is further agreed that:

where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Customer are met; and

until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice, the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and

if the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and

the Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and

the Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and

the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and

the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and

until such time that ownership in the Goods passes to the Customer if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.

7. Customer’s Disclaimer

The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement.

8. Defects

The Customer shall inspect the Goods on delivery and shall within twelve (12) hours notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.

9. Warranty

9.1 No warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the goods or caused by the Goods, or any part thereof however arising.

10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

11. Default & Consequences Of Default

Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.

If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.

Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause.

If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

Without prejudice to the Seller’s other remedies at law, the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:

any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or

the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

12. Security And Charge

Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:

where the Customer and/or the Guarantor (if any) is the owner of the land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interests in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.

13. Cancellation

The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

14. Privacy Act 1988

The Customer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller.

The Customer and/or the Guarantor/s agree that the Seller may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

to assess an application by Customer; and/or

to notify other credit providers of a default by the Customer; and/or

to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

to assess the creditworthiness of Customers and/or Guarantor/s.

The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:

provision of Goods; and/or

marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or

analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or

processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or

enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.

The Seller may give information about the Customer to a credit reporting agency for the following purposes:

to obtain a consumer credit report about the Customer; and/or

to obtain a consumer credit report about the Customer; and/or

allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

15. General

If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.

The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions.

In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.

The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change.

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or another event beyond the reasonable control of either party.

Building and Construction Industry Payments Act 2004

16.1 At the Sellers sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.

16.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable