Terms and Conditions Commercial

By in
  1. By placing an order with Sweet’s Strawberry Runners (SSR) the Purchaser agrees to be bound by these terms and conditions. Where the Purchaser intends to use a third party to assist it with fruit production (contract grower), the Purchaser must obtain a signed agreement from the contract grower as set out on page 3 of this order form prior to providing the contract grower with any strawberry runners. The signed agreement must confirm, without limitation, that the contract grower agrees to be bound by these terms and conditions as if it were the Purchaser.
  2. The strawberry runners supplied under this order will only be used for the production of fruit and will not, under any circumstances, be used for propagation or reproduction of plants by any means whatsoever. The strawberry runners will not be sold, transferred, leased, hired, bartered, given, shared or in any way parted with other than in circumstances where they are provided to a contract grower and the Purchaser and contract grower fully comply with these terms and conditions.
  3. All plants supplied are subject to protection by the Australian Plant Breeders Rights Act and the regulations therein. The Purchaser agrees to comply with those laws. SSR, its authorised agents, or the owner of the Plant Rights, is given the right to enter any land or area used by the Purchaser for planting the strawberry runners between 7am and 6pm on any day and from time to time for the purpose of determining whether the Purchaser is breaching the Plant Breeders Rights Act. Refusal by the Purchaser or a contract grower to allow such entry shall be “prima facie” evidence without further proof that the Purchaser has contravened the Plant Breeders Rights Act.
  4. The Purchaser will fully and accurately complete the “Planting Declaration” provided by SSR and return the same to SSR as soon as reasonably practicable after planting the strawberry runners, but in any event, within 28 days of the strawberry runners being delivered. The Purchaser consents to SSR reporting all information provided on the Planting Declaration to any party who has a legitimate interest in the intellectual property associated with the strawberry runners including, but not limited to, the holder of the plant breeding rights and the owner or licensor of the intellectual property associated with the strawberry runners purchased.
  5. The Purchaser will pay the deposit and any balance payments by either sending a non-negotiable cheque or money order to: Sweets Strawberry Runners Pty Ltd, MS 312, Stanthorpe, QLD, 4380 or by direct deposit to the bank account details for SSR as set out in the Order Form. The balance payment for the order (including GST, levies and freight costs) must be paid in clear funds by the due date of the invoice issued by SSR unless the Purchaser has entered into a separate credit contract with SSR which provides for a different payment method on terms acceptable to SSR (in its absolute discretion). As part of the balance payment for an order, the Purchaser must pay SSR; 1) the compulsory National Levy of $8 per thousand plants on all orders within Australia; and, in addition, a compulsory State Research and Development levy of $12 per thousand plants for all strawberry runners to be planted in Victoria.
  6. SSR is not required to dispatch plants to a Purchaser who has failed to make a balance payment (including GST, levies and freight costs) by the due date for payment. SSR may, but is not required to, and in its absolute discretion, sell any strawberry runners it has set aside to fulfil the Purchaser’s order that have not been paid for by the due date for payment. The Purchaser remains liable for the full order cost of all strawberry runners set aside to fulfil its order as a debt due and payable, less the proceeds of any sale by SSR of those strawberry runners to another purchaser.
  7. Before delivery, SSR may cancel the Purchaser’s order in whole or in part, but must act reasonably in doing so and must refund the relevant part of any deposit paid that relates to the cancelled order or part thereof. Without limiting the circumstances which may be taken into account in determining SSR’s reasonableness under this condition, SSR is taken to have acted reasonably where it allocates available runners to priority orders, allocates available runners on a pro rata basis and/or reduces the quantities of runners supplied to fulfil orders due to lower than expected yields in a given season. Save for the circumstances set out in this condition, any deposit paid by a Purchaser is not refundable.
  8. The placement of an order with SSR does not entitle the Purchaser to ownership of any specific strawberry runners grown by SSR other than those strawberry runners that are actually delivered to the Purchaser’s delivery address in fulfilment of the order. SSR is not responsible for damage or loss of strawberry runners delivered to a Purchaser or any damage or loss that results from the use of those strawberry runners that is caused by circumstances beyond the SSR’s reasonable control. In circumstances where SSR is liable for damage or loss to, or caused by the use of, the strawberry runners, the maximum liability of SSR for the damage or loss is limited to (exercisable in SSR’s absolute discretion):
    1. replacement of the damaged or lost plants with the same or a similar yielding and marketable variety; or
    2. a refund of the order cost of the damaged or lost plants.
  9. Despite condition 8, any plants delivered to a Purchaser that are certified by an inspector within two days of delivery as having been of an unsatisfactory grade or in an unsuitable condition for planting at delivery will be replaced by SSR or the equivalent order cost will be refunded by SSR to the Purchaser (at SSR’s absolute discretion). The certifying inspector must be a person agreed to by SSR and the Purchaser or, if SSR and the Purchaser cannot agree on an inspector, an inspector nominated by the Queensland Strawberry Growers Association for the inspection.
  10. The Purchaser indemnifies fully and completely SSR against all liabilities, costs, damages, claims and losses arising out of any breach of these terms and conditions by the Purchaser or a contract grower to the fullest extent permitted by law.
  11. Other than any warrantees implied under statute that cannot be contracted out of, SSR makes no claims and warranties of the suitability of the strawberry runners and shall have no liability to the Purchaser for any failure of the plants except as required by Queensland Strawberry Growers Association’s “Dispute Notification and Resolution Process.”
  12. These conditions contain the entire understanding between the parties as to the terms and conditions of sale. All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the sale are merged in and superseded by this document and are of no effect. No oral explanation or information provided by any party to another affects the meaning or interpretation of these conditions.
  13. These conditions are governed by, and are to be construed in accordance with, the laws applicable in Queensland. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland and any courts which have jurisdiction to hear appeals from any of those courts.
  14. An obligation of two or more persons binds them jointly and severally.
  15. Any provision of the Agreement that is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction so as to be valid and enforceable to the fullest extent possible.