Down Under Ag Pty Ltd
ABN 91 663 296 231   ACN 663 296 231

1 Interpretation

In these terms and conditions:

(a) “Seller” means Down Under Ag Pty Ltd ABN 91 663 296 231 ACN 663 296 231 which is the seller of the Goods;

(b) “Buyer” means the purchaser of the Goods specified on the Order invoice;

(c) “Goods” means the goods to be supplied by the Seller to the Buyer, as described in the Order;

(d) “GST” means a goods and services tax imposed by or under the GST Law.

(e) “GST Law” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and any regulation made under that Act;

(f) “Law” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth), and any other applicable State or Territory fair trading legislation;

(g) “Order” means a purchase order for the Goods given by the Buyer to the Seller which incorporates these Conditions of Sale (“terms and conditions”);

(h) “Quotation” means the form of quotation submitted by the Seller to the Buyer setting out the price and any other special terms and conditions for the supply of Goods by the Seller to the Buyer; and

(i) Nothing in these terms and conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by Law.

2 General

These terms and conditions apply to each Order accepted by the Seller and prevail over inconsistent terms proposed by the Buyer, unless the parties agree otherwise in writing. Amendments published by the Seller apply to future Orders only. Changes to an accepted Order require the agreement of both parties.

3 Terms of Sale

The Goods sold by the Seller are sold in accordance with these terms and conditions.

4 Seller’s Quotations

Unless withdrawn by the Seller in writing, the Seller’s quotations are open for acceptance for the period stated in the quotation. A Quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until the Buyer’s Order has been accepted in writing by the Seller. The Seller reserves the right to refuse any Order based on a quotation within 7 days after the receipt of the Order.

5 Packing

The Buyer must pay for any special packaging requested by the Buyer or agreed with the Seller. Any additional packaging charge must be disclosed and agreed before the Order is accepted.

6 Shortage

A shortage means that the quantity of Goods delivered is less than the quantity stated in the relevant delivery docket or invoice, excluding any balance identified by the Seller as a separate or pending delivery. The Buyer should report a shortage to the Seller within seven (7) days of receipt, with the Order details and reasonable supporting evidence, so the Seller can investigate and arrange an appropriate remedy. This notification period does not exclude, restrict or modify any rights or remedies that cannot lawfully be excluded.

7 Specifications

(a) While the Buyer may provide the Seller with specifications and particulars of weight at the time of ordering, such specifications submitted to the Seller may be approximate only. Any approximate specification or permitted tolerance must be identified and agreed before the Order is accepted. Nothing in this clause limits the Seller’s obligation to supply Goods that comply with the agreed description and any applicable requirements of the Law.

(b) Where specifications or other particulars are supplied by the Buyer the Seller’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by Seller and set out in a Quotation, then any such increase or decrease is to be adjusted on a unit rate basis according to unit prices set out in the Quotation.

8 Delivery

(a) Any timeframes quoted by the Seller for delivery of Goods are estimates only. The Seller will use its reasonable endeavours to supply Goods in the quantities specified in the relevant Order.

(b) The Seller reserves the right to make part deliveries of any Order. Each part delivery may be invoiced separately and shall constitute a separate sale of Goods upon the same terms and conditions as those applying to the main Order. A part delivery of an Order shall not invalidate the balance of the Order.

(c) The Buyer shall inspect all Goods upon delivery, and shall within seven (7) days of delivery give notice to the Seller if the delivery is not in accordance with the Order. Failing such notice, and subject to any non-excludable rights, guarantees or conditions implied by Law, the Goods shall be deemed to have been delivered to and accepted by the Buyer.

(d) To the extent permitted by Law, the Seller shall not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery.

9 Loss or damage in transit

(a) To the extent permitted by Law, the Seller is not liable to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit.

(b) The Seller agrees to provide the Buyer with such assistance as may be necessary to press claims on the transport carrier responsible for the loss or damage to the Goods. In relying on this clause, the Buyer must notify the Seller and the relevant transport carrier in writing immediately after the loss or damage of Goods is discovered, and the Buyer must lodge a claim for compensation with the transport carrier within three (3) days of the date of receipt of the damaged Goods, or where the Goods are lost, within three (3) days of being notified by the carrier that the Goods cannot be located. These notification and carrier claim timeframes do not limit any non-excludable rights or remedies of the Buyer. Where the Seller is responsible under the Law, the Buyer may seek a remedy directly from the Seller and is not required to obtain compensation from the carrier first.

10 Force Majeure Event

(a) Neither party shall be liable for any failure or delay in the delivery of goods if the failure or delay is caused by events beyond reasonable control. These events include acts of God, natural disasters, war, terrorism, strikes, riots, epidemics or government restrictions.

(b) The affected party must notify the other party in writing within five (5) days of the event starting. The affected party must also use all reasonable efforts to lessen the delay or impact of the event.

(c) Delivery times shall be extended by a period equal to the time lost due to the event. If the delay lasts longer than thirty (30) days, either party may cancel the unfulfilled part of the Order without penalty. The Seller will refund any payment received for Goods in the cancelled, unfulfilled part of the Order.

11 Terms of Payment

(a) Payment to the Seller for Goods is due on or before the date stated in the invoice.

(b) The Seller is at liberty to cancel the Order if the Buyer fails to make payment by the due date stated on the invoice.

12 GST

Prices displayed on the Seller’s public retail website include GST where applicable. Unless expressly stated otherwise in a lawful business-to-business Quotation, prices quoted by the Seller also include GST where applicable. Where a Quotation expressly states that a price is exclusive of GST, the applicable GST amount and total amount payable will be identified before the Buyer accepts the Quotation. GST included in a price will not be added again. The Seller will issue a valid tax invoice for taxable supplies.

13 Returned Goods

(a) Other than when the Seller is required to accept a return of Goods under the Law, the return of Goods must first be approved in writing by the Seller.

(b) For voluntary returns approved under paragraph (a), the Seller will only accept returned Goods where the Goods are returned in a saleable condition, and unless otherwise agreed in writing with the Seller, are returned within fourteen (14) days of delivery to the Buyer.

(c) If the Seller agrees to accept returned Goods from the Buyer under paragraph (a) of this clause, the Buyer must return the Goods to the Seller’s address, as stated on the invoice and at the Buyer’s own expense. These conditions and return costs do not apply to returns required under the Law; those returns will be handled in accordance with the Buyer’s statutory rights.

14 Cancellation

(a) Unless otherwise agreed in writing, the Buyer shall have no right to cancel an Order which has been accepted by the Seller.  The Buyer in cancelling an Order agrees to indemnify the Seller against any and all losses.

(b) The Seller reserves the right to immediately suspend, cancel or discontinue the supply of Goods to the Buyer without further notice to the Buyer where the Buyer is in breach of these terms and conditions, or the Buyer is otherwise in breach of its payment obligations to the Seller, and the Seller will not incur any liability to the Buyer in respect of such suspended, cancelled or discontinued supply.

15 Plant Germination

(a) Seed germination and yield depend on factors including weather, soil conditions, storage, handling and planting practices. The Seller does not guarantee a particular germination result or yield beyond any express specifications or guarantees agreed for the Goods and any guarantees that apply under the Law. The Seller is not responsible for loss caused solely by factors outside its control, except to the extent that the Law requires otherwise. The Buyer agrees to indemnify the Seller against any and all such claims.

(b) The Buyer should report any seed germination issues to the Seller promptly after discovering them and, where reasonably practicable, within ten (10) days of planting. The Seller may request reasonable evidence to investigate the issue. This notification period does not limit any non-excludable rights or remedies.

(c) Subject to the Law, and only to the extent that such a limitation is lawful, the Seller’s liability for seed performance under this clause is limited to the original purchase price of the seed in question. This limitation does not apply to any liability or remedy that cannot lawfully be limited.

16 Default

To the extent permitted by the Law, the Buyer is responsible for reasonable legal costs and expenses actually incurred by the Seller in enforcing these terms following the Buyer’s breach, but only to the extent reasonably attributable to that breach and recoverable under the Law.

17 Governing Law

These terms and conditions shall be governed by and construed in accordance with the laws of the State of Victoria, and the Seller and Buyer agree to submit to the non-exclusive jurisdiction of the Courts of Victoria.