The following terms and conditions (Terms) apply to the goods sold to you (the "Purchaser") from Seed Terminator Pty. Ltd. (ACN 614 984 093) (the "Company"). Clause 1 applies to sales of Seed Terminator machines (Machines), clause 2 applies to sales of spare parts (Parts) and clauses 3 to 12 inclusive apply to sales of either Machines or Parts. A reference to “Goods” is a reference to Machines and/or Parts.
1. Seed Terminator - New Machine Sales
(a) Where the Purchaser is acquiring the Machine for the purpose of resale to a customer (Customer), the Purchaser must ensure that:
(i) the Customer is provided with a physical copy of the user manual provided with the Machine and is directed to read the user manual before operating the Machine;
(ii) the Machine is set up prior to delivery to the Customer in accordance with the instructions and procedures provided to the Purchaser by the Company; and
(iii) after installation, a technician authorised by the Company performs a demonstration of the safe use and proper operation and maintenance of the Machine to the Customer, and highlights all risks associated with the Machine.
(b) The Purchaser may not return a Machine, other than pursuant to its rights under the Australian Consumer Law or a warranty claim under clause 9.
2. Seed Terminator - Spare Parts Sales
(a) The Purchaser may return Parts to the Company provided that:
(i) the Parts were despatched to the Purchaser within the last 12 months;
(ii) except for faulty or defective Parts, the Purchaser pays the cost of freight of the Parts to the Company;
(iii) except for faulty or defective Parts, the Parts are accompanied by original packaging, remain unused and in original condition; and
(iv) the Parts are accompanied by the original proof of purchase or other relevant original documentation.
(b) In the case of Parts which are not faulty or defective, the Company will refund the GST inclusive price paid by the Purchaser for the Parts less a 20% restocking fee.
(c) In the case of faulty or defective Parts, the Company will refund the GST inclusive price paid by the Purchaser for the Parts.
3. Orders
(a) Orders will be initiated by the Purchaser making a request for Goods from the Company. When placing an order with the Company, the Purchaser must comply with any ordering procedures (including the required form of any order) notified to the Purchaser from time to time by the Company.
(b) All orders for Goods are subject to the approval and acceptance by the Company. The Company may reject any order received from the Purchaser for any reason including without limitation due to inventory shortages or where the Purchaser is in default of any of these Terms.
(c) The Purchaser is deemed to have accepted these Terms if the Purchaser:
(i) accepts a quote to which these Terms are attached;
(ii) issues a purchase order to the Company for Goods;
(iii) pays a deposit for Goods; or
(iv) otherwise orders Goods from the Company.4. Price, Payment and Credit Terms
(a) The Company will invoice all orders at its current prices. The Purchaser agrees to pay the purchase price and any delivery fees so invoiced.
(b) Unless otherwise agreed in writing by the Company, all Goods must be paid for in cleared funds before the Goods will be despatched to the Purchaser or made available for collection by the Purchaser. If requested by the Company, payment by cash or equivalent must be received by the Company before processing an order.
(c) The Purchaser is not entitled to withhold payment in whole or in part, or claim any right to set off in respect of the purchase price of the Goods.
(d) Unless otherwise agreed in writing the Company will not commence manufacture of a Machine until the deposit amount requested by the Company has been received in cleared funds.
(e) Where the Company issues Goods on credit terms, unless otherwise agreed in writing:
(i) the Company may withdraw any credit facility at any time, and may demand at any time payment in full of all outstanding amounts;
(ii) all moneys owing to the Company from the sale and purchase of Goods must be paid to the Company within 14 days of the Company’s demand;
(iii) if any of the purchase price remains unpaid after 14 days, the Company may charge interest at a rate that is equal to the rate charged from time to time by the Company’s principal banker for unsecured overdrafts of less than $100,000;
(iv) the Company may refuse to supply further Goods to the Purchaser if there is a breach of this clause 4(e) (“Event of Default”); and
(v) where an Event of Default occurs, all outstanding amounts become due and payable immediately.
5. Quotations
(a) Quotations are not valid unless they are provided to the Purchaser in writing.
(b) All quotations provided to the Purchaser by the Company in writing are open for acceptance for a period of 30 days from the date of the quotation. Acceptance must be in writing and signed by the Purchaser within that time period.
(c) Until the quotation is accepted by the Purchaser, the Company reserves the right to withdraw the quotation or to vary or alter any part, including without limitation any price or fee specified in the quotation.
6. Delivery
(a) The Company makes no warranty as to time of delivery or the availability of Goods. The Company is not liable to the Purchaser for direct, indirect or consequential losses from unavailability of Goods or from unreasonable delays in manufacture or delivery of the Goods.
(b) The Company may, by notice in writing to the Purchaser, reasonably extend the period for delivery, reasonably change the delivery schedule or cancel an order without liability to the Purchaser for any loss or damage of any kind.
(c) If so requested by the Purchaser the Company may deliver the Goods in part. The Purchaser agrees to pay any additional delivery fees incurred as a result of the Goods being delivered in part.
(d) The Goods will be delivered to the address specified by the Purchaser.
(e) All freight booked on freight accounts not managed by Seed Terminator will incur a $10.00 admin charge.
7. Title, Risk & Insurance
(a) Subject to clause 7(d) , title and risk in the Goods shall pass to the Purchaser on despatch of the Goods to the Purchaser, irrespective of whether the Purchaser or the Company arranges and/or pays freight costs.
(b) The Purchaser shall take out at its own expense adequate and comprehensive all risks insurance cover on the Goods for transportation to the Purchaser’s chosen delivery destination.
(c) The Purchaser acknowledges that the Company will not provide, and is not required to provide, any insurance cover for the Goods or their operation.
(e) Until the Amounts Owing have been paid, the Purchaser:
(i) may, subject to clause 7(f) , take possession of the Goods and hold them as trustee and agent for the Company;
(ii) must ensure that the Goods are insured and stored or identified so that they are readily distinguishable from other goods held by the Purchaser or other persons.
(i) the Purchaser may sell the Goods, but only as trustee and agent for the Company; and
(ii) the Purchaser must hold the proceeds it receives from any sale of the Goods as trustee and agent for the Company; and
(iii) the Purchaser must place the whole of the monetary proceeds in an account separate from its own monies and maintain proper records of that account; and
(iv) if the Goods become part of a product or mass through manufacturing, processing, assembly or becoming commingled, the Company's security interest continues in that product or mass (“Commingled Property”) to the extent permitted by law.
(g) Despite clause 7(f)(i) , the Purchaser must not represent to any third parties that it is acting as agent of the Company and the Company will not be bound by any contracts with third parties to which the Purchaser is a party.
(h) If the Purchaser fails to comply with any part of these Terms in relation to the payment of any Amount Owing or otherwise, then:
(i) immediately on the Company's request the Purchaser must return to the Company any Goods acquired from the Company on which there are outstanding Amounts Owing; and
(ii) the Company may enter the premises at which those Goods are stored, and seize possession of them; and
(iii) the Company may retain, sell or otherwise dispose of those Goods.
(i) The Purchaser must not assign or grant a security interest in respect of any accounts owed to it in relation to the Goods without the Company's prior written consent.
(j) Without limiting the meaning of Amounts Owing, if the Purchaser makes a payment to the Company at any time whether in connection with these Terms or otherwise the Company may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
(k) If Chapter 4 of the PPSA would otherwise apply to the enforcement of these Terms the Purchaser agrees the following provisions of the PPSA will not apply to the enforcement of these Terms: section 95 (notice of removal of accession), to the extent that it requires the Company to give a notice to the Purchaser; section 96 (when a person with an interest in the whole may retain an accession); subsection 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Purchaser; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
(l) Notices or documents required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.
(m) The Purchaser consents to the Company effecting a registration on the PPSA register (in any manner the Company considers appropriate) in relation to any security interest contemplated by these Terms and the Purchaser agrees to provide all assistance reasonably required to facilitate this. The Purchaser waives the right to receive notice of a verification statement in relation to any registration on the register.
(n) In this clause 7:
(i) a reference to Goods means the original goods supplied as described in each Invoice and also includes proceeds and Commingled Property when the context permits;
(ii) paid means receipt of cash or cleared funds by the Company in full satisfaction of the Amounts Owing;
(iii) PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it;
(iv) the following words have the respective meanings given to them in the PPSA: account, commingled, proceeds, purchase money security interest, register, registration, security interest and verification statement.
8. Safety & Liability
(a) In the installation, use, operation and maintenance of the Goods, the Purchaser shall be responsible for compliance with all applicable laws, regulations and standards and with any operating policies or guidelines provided by the Company.
(b) The Purchaser acknowledges that:
(i) the Machine contains high speed rotating parts and that significant risk of physical injury and/or death may arise from improper use or operation;
(ii) the operation of the Machines other than in accordance with the proper health and safety procedures and in accordance with the user manual may cause significant harm, physical injury, death or damage; and
(iii) modification of the Machine carries a significant risk of serious and/or life threatening injury.
(c) The Purchaser agrees and warrants to the Company that it (including any employees and subcontractors to the Purchaser) will not make any alterations, adjustments, modifications, changes to the Goods in any way or otherwise interfere with the Good’s integrity. The Purchaser hereby releases and indemnifies the Company from any claim, action, demand and all losses (including without limitation indirect and consequential losses), costs, liabilities and expenses (including legal costs on a solicitor and own-client basis), arising directly or indirectly out of a breach of this clause.
9. Warranty
(a) The Company may publish on its website from time to time the terms of any express warranty that it offers to purchasers of the Goods (Warranty).The Company will comply with the terms of any express warranty given or made by the Company in relation to the Goods.
(b) To the maximum extent permitted by law:
(i) the Company excludes all other warranties in relation to the Goods, whether express or implied;
(ii) the Company is not liable for and the Purchaser hereby releases the Company from any consequential loss or damages of any type including without limitation incidental, special, indirect, punitive or otherwise, including loss of profit, whatever the claim (tort, breach of contract or warranty or otherwise) and whatever the forum, whether arising out of or in connection with the Goods or any other cause whatsoever.
(iii) the Purchaser releases the Company from all liability, in respect of personal injury or death or damage or loss of property of any person including the Purchaser or the Purchaser's employees, agents, contractors or customers, arising wholly or in part from the Purchaser's acts, omissions, negligence, breach of duty, breach of contract, or breach of these Terms.
(c) Without limiting the generality of the foregoing, and to the maximum extent permitted by law, the Company’s liability for any breach of a term, condition or warranty not excluded by these Terms will, at the Company’s election, be limited to the replacement of Goods delivered, repair of the Goods or the payment of the cost of replacing the Goods or acquiring equivalent goods from an alternate supplier and/or the resupply of any services rendered or the cost of having those services resupplied.
(d) To the extent that a Warranty applies to the purchase of the Goods or any part of them:
(i) the terms of the Warranty are to be read together with these Terms;
(ii) if any inconsistency applies between the Warranty and these Terms, these Terms prevail.
10. Purchaser's Acknowledgement
(a) The Purchaser acknowledges that it has the sole responsibility of satisfying itself that the Goods are suitable for the use of the Purchaser or any contemplated use of the Purchaser and that it has conducted its own investigations and has not relied upon any information, statement, advice or representation by the Company of or in relation to:
(i) the operating and/or performance parameters of the Goods;
(ii) the outcomes that the Goods may achieve;
(iii) the suitability of the Goods to any particular application, installation or physical environment; and
(iv) the appropriateness of the use of the goods in a particular geographic region or climatic environment.
11. Intellectual Property
(a) The Purchaser must not deface or remove any mark, label or plate affixed by the Company on the Goods.
(b) The Purchaser acknowledges that all intellectual property in the Goods is the property of the Company at all times.
(c) The Purchaser must not, and must take all reasonable precautions to ensure that no employee, agent, contractor, or any other person does not, either directly or indirectly:
(i) copy any intellectual property in the Goods or record or replicate it by any other means;
(ii) make copies of or replicate the Goods;
(iii) translate, reverse engineer, decompile or disassemble the Goods;
(iv) copy, publish, disclose or distribute any documentation associated with the Goods (including without limitation, operating instructions and manuals);
(v) make any representations, whether written, pictorial, visual, electronic or verbal, about the Goods, their capabilities and capacities, the Company’s intellectual property, or any other thing incidental to the Goods to any third party.
12. General
(a) The Company makes every effort to ensure the accuracy of information shown on the Company’s documents, including without limitation its sales flyers, catalogues and databases. Such information may contain technical inaccuracies or typographical errors. The Company makes no representation or warranty as to the accuracy of any information.
(b) The contract between the Company and the Purchaser established by these Terms shall be governed and construed in accordance with the laws of the State of South Australia and the Commonwealth of Australia and the Purchaser agrees to submit to the non-exclusive jurisdiction of the courts of South Australia and the courts which hear appeals from them.
(c) If any part of these Terms is or becomes for any reason wholly or partially void, voidable or unenforceable, then that part of these Term shall be severed without prejudice to the continuing force and validity of the remaining terms and conditions.
(d) Any waiver or relaxation by the Company partly or wholly of any clause or right under these Terms is only valid if in writing and signed by the Company, applies to a particular occasion only and is restricted to its written terms.
(e) The Company reserves the right to vary these Terms at any time in its sole discretion.
(f) These Terms (together with any quotation given to the Purchaser by the Company) constitute the entire agreement between the Company and the Purchaser and supersede all prior negotiations, representations, proposals, undertakings and agreements, whether written or oral, relating to the subject matter of these Terms.
(g) No course of dealing or performance, usage of trade or failure to enforce any term will or will be construed to modify these Terms.
(h) Unless expressly agreed in writing by the parties, these Terms takes precedence over any conflicting term in a purchase order or other document or correspondence issued by the Purchaser whether or not before or after these Terms were issued to the Purchaser by the Company.
(i) Unless otherwise stated, all prices are exclusive of GST. Any government charges or duties including sales tax, GST, use, excise, import, export or other duties and taxes shall be borne by the Purchaser. In this clause, GST means a tax levied under the A New Tax System (Goods and Services Tax) Act 2009.
(j) Where the Purchaser and the Company are parties to a dealer distribution agreement (Dealer Agreement), the terms of the Dealer Agreement shall prevail over these Terms to the extent of any inconsistency.