Terms and Conditions for Sale of Plants

Definitions

1. "Purchaser" means the client, customer, consumer who buys or intends to buy the tree/s from the Nursery as stated on the ‘Confirmation of Your Order’ and/or invoice. "Nursery" means Olea Nurseries Pty Ltd ABN 270 992 768 29. "Plants" means the plant (and any plants propagated from them) in the number and variety listed on the ‘Confirmation of Your Order’ or invoice.

Conditional Contract

2. A contract of sale is subject to the Purchaser entering into a Non-Propagation Deed provided by the Nursery to the Purchaser at or about the same time as it enters into this contract or prior to delivery of the Plants. This clause does not apply to the sale of Plants that are of a public variety and are not subject to any restrictions to propagation.

If the Purchaser has previously entered into a Non-Propagation Deed with the Nursery and others (if any), then no further Non-Propagation Deed is necessary unless the Nursery requires it, but the Purchaser must provide to the Nursery prior to delivery of the Plants a location map and address of where the Plants will be planted.

Sale and Purchase

3. A ‘Confirmation of Your Order’ constitutes an offer by the Nursery to sell the Plants to the Purchaser. All previous offers by the Purchaser to purchase the Plants from the Nursery are expressly rejected by the making of this offer by the Nursery. The Purchaser indicates its acceptance of the terms of this document by:

  • returning a signed copy of the Non-Propagation Deed; and
  • either
    • signing a ‘Confirmation of Your Order’; or
    • accepting delivery by the Nursery or collecting the Plants,

as the case may be.

4. The Purchaser has agreed to purchase from the Nursery and the Nursery has agreed to sell to the Purchaser the Plants at the price listed on a ‘Confirmation of Your Order’ or the current monthly Garden Centre catalogue.

5. The Purchased expressly waives any and all rights under section 17 of the Plant Breeder's Rights Act 1994 (Cth) and any similar or substituted laws to the maximum permitted by law.

6. The Nursery will use all reasonable endeavours to ensure that the Plants are propagated using healthy plant material. The Nursery will not be responsible for any loss or damage caused by pests, diseases or viruses, even if such pests, diseases or viruses subsists in the Plants at the time of delivery or collection by the Purchaser.

7. The Purchaser acknowledges that the propagation of Plants is subject to a variety of factors over which the Nursery has little or no control. These factors may result in the Nursery not being able to deliver the number of Plants contracted for. In such circumstances, the number of Plants ordered shall be deemed to be varied by agreement to the number of Plants that the Nursery delivers and the Nursery shall be deemed not to be in breach of this contract of sale by delivery of the reduced number of Plants.

8.

  1. Subject to clause 7, the Purchaser must notify the Nursery in writing:
    • of any alleged shortfall in the numbers of, or damage to, the Plants (or any of them) delivered within 3 days of the date of delivery to the Purchaser;
    • by 15 January immediately following the date of the contract of sale of any mortality on bare rooted trees (only if Plants include bare rooted trees); and
    • as soon as possible but in any event no later than three years from the date of the contract of sale of any alleged variety errors.
  2. If the Purchaser has not notified the Nursery in accordance with this clause 7, the Purchaser shall be deemed to have waived its rights against the Nursery for any claims arising from or related to the relevant notification.

9. The Nursery makes no recommendation of any one cultivar or rootstock in preference to any other, or claim to be an authority on any one cultivar or rootstock. The Purchaser acknowledges that it accepts responsibility for its own choices of Plant, cultivar or rootstock irrespective of any recommendations, advice or information provided by the Nursery.

No warranty

10. The Purchaser acknowledges that no information, representation or warranty has been made by the Nursery as to:

  • the origin, fitness for purpose or quality of the Plant;
  • the suitability of the plant for the Purchaser's needs and environment; and
  • the performance of the Plant and fruit variety to which it belongs,

and the Purchaser acknowledges that it has not relied on any such information, representation or warranty.

11. No warranties or representations are made whatsoever by the Nursery about the Plants. In particular, no warranties or representations are made by the Nursery:

  • that the Plants will grow;
  • that the Plants will grow into a crop that is fit for any particular purpose or end use;
  • that the Plants will produce fruit;
  • that the fruit produced by the Plants will be fit for:
    • any particular purpose, commercial or domestic;
    • end use; or
    • human consumption.

12. All other conditions and warranties which are implied by law or by trade usage including in particular any identity, trueness to type, merchantability or fitness of the Plants for any particular purpose here hereby excluded to the maximum extent permitted by law.

Limitation of Liability

13. Any liability of the Nursery incurred under the contract of sale shall be limited to the maximum extent permitted by law to replacement of the relevant Plants or a refund of the price of the relevant Plants, at the absolute discretion of the Nursery. The Purchaser hereby expressly waives its rights to and releases the Nursery from all claims and/or liabilities and indemnifies and holds harmless the Nursery accordingly.

14. Notwithstanding anything contained to the contrary in the ‘Confirmation of Your Order’ or invoice documents and to the fullest extent permitted by law, the Nursery shall not be liable to the Purchaser for any indirect, consequential, special, punitive or exemplary damages, or for damages for loss of anticipated profit, revenue, contract, opportunity or goodwill, regardless whether such claim is based on contract, tort, equity or otherwise.

Retention of Title and Risk

15. The risk in the Plants passes to the Purchaser at the point of departure of the Plants from the Nursery's premises, whether the Nursery delivers the Plants to the Purchaser or whether the Plants are collected by the Purchaser.

16. Ownership of the Plants does not pass to the Purchaser until the Purchaser has paid in full for the Plants the subject of the order.

17. Until the Purchaser has paid the Nursery the full price for the Plants, the Purchaser acknowledges and agrees that:

  • the Plants sold are held by the Purchaser in a fiduciary capacity as bailee (to be sold by it as agent for and on behalf of the Nursery);
  • the Plants will be kept in a healthy and proper condition by the Purchaser until ownership of the Plants passes to the Purchaser; and
  • the Nursery shall have the right to enter any land owned, leased or occupied by Purchaser as often as it considers reasonably necessary at any time between 8.00am and 6.00pm on any day in order to examine all plants and propagation materials on such land and take such cuttings, photographs or video recordings as it deems necessary for the purpose of ascertaining whether the Purchaser is complying with its obligations under this contract of sale, provided that such Plants (or any of them) are subject to the terms of a Non-Propagation Deed.

Mediation

18.

  1. If a dispute arises under or relates to the subject matter of a contract of sale, a party must not start legal proceedings until the mediation procedure specified in this clause has been completed. This requirement includes disputes as to breach or termination of contract and claims in tort, equity or under any law. However, a party may apply to the court for urgent interlocutory relief even if the mediation procedure has not started or been completed.
  2. The mediation procedure is as follows:
    • either party may start mediation by serving a mediation notice on the other, stating briefly and clearly the nature of the dispute;
    • when the other party receives the mediation notice, both parties must try to agree on a mediator. If they fail to agree within 14 days of service of the mediation notice, either party may apply to the President of the Institute of Arbitrators and Mediators to appoint a mediator;
    • each party must pay an equal share of the mediator's fees;
    • the parties must comply with the mediator's instructions about the conduct of the mediation;
    • if the dispute is settled by mediation, each party must sign the terms of settlement, which will bind the parties and override the terms of this Agreement if there is any conflict;
    • if the dispute is not settled within 90 days after the mediator has indicated to the parties his acceptance of the appointment (or within any other period the parties agree in writing), the mediation must cease.
  3. Mediation is to take place in Perth WA unless parties agree otherwise.
  4. Any terms of settlement may be used in evidence in any court proceedings.
  5. The mediation procedure is confidential and:
    • nothing the parties or the mediator say or do during the mediation procedure; and
    • no documents concerning the dispute created for the mediation procedure, may be used in or required to be produced in any court proceedings.

 

 

 


Notes

Terms and Conditons

 

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