Terms & Conditions

Article 1. Application of Terms and Conditions of Sale

1. These Terms and Conditions apply to all offers and all agreements made between Westranell Horticultural Solutions Pty Ltd, hereinafter to be called the Seller, and a Buyer, except in so far as expressly otherwise provided in writing.
2. The” International Seed Trade Federation Rules and Usage for the Trade in Seeds for Sowing Purposes” apply to all agreements and/or offers for sale addressed to buyers located outside the Seller’s country, except in so far as otherwise provided below.
3. The application of any Terms and Conditions of the Buyer is expressly rejected.

Article 2. Offers and Prices

1. The offers made by the Seller are without commitment.  An offer without commitment may be withdrawn up to 5 working days after receipt of its acceptance.  The prices specified in an offer are exclusive of GST.
2. The Seller reserves the right to change prices periodically.  Each new price listing will invalidate the preceding one with regard to all orders placed after the issue of the new price list.

Article 3. Harvesting and Processing Reserve

1.  All deliveries are subject to the customary seed trade harvesting and processing reserve.  If the Seller invokes the harvesting or processing reserve, the Seller is not obliged, but will, if possible, try to supply pro rata to the quantity ordered or equivalent alternatives.
2. The Buyer is not entitled to damages if the Seller invokes this reserve.

Article 4. Ordering and Delivery

1. If the quantity ordered in any order differs from the standard quantity applied by the Seller or a multiple thereof, the Seller is free to deliver the next highest quantity.
2. The Seller will always act to the best of his ability in fulfilling his obligation to deliver.
3. Sound fulfillment of the Seller’s obligation to deliver allows for delivery with a minor difference in size, packaging, number or weight.
4. The Seller is permitted to make split-deliveries of the goods sold.  If the goods are split-delivered, the Seller has the right to invoice each delivery separately.
5. The Inco terms applicable at the date of conclusion of the agreement will apply to each delivery. Delivery will be ex works (EXW) of the Seller.
6. The Seller undertakes to dispatch within a reasonable period, (usually within 1 to 2 working days) in accordance with the sowing or planting season following the conclusion of the purchase agreement.
7. An agreed delivery period will not be of the essence.  In the event of late delivery, the Buyer must therefore give the Seller notice of default in writing and grant a reasonable period in which the Seller may complete the agreement.
8. For orders with a value of less than AUD 250, - the Seller reserves the right to charge an administrative and order handling fee.

Article 5. Suspension

1. If the Buyer fails to fulfill one or more of its obligations or to do so correctly and/or in time:

• the Seller’s obligations will automatically and immediately be suspended until the Buyer has paid all amounts due and payable by it (including payment of any out-of-court costs);
• the Seller may demand full payment and/or sufficient security from the Buyer, for instance in the form of a bank guarantee to be issued by a reputable Australian banking institution, with regard to the performance by the Buyer.

2. The Seller is entitled to demand full payment and/or sufficient security for the performance by the Buyer before performing, if there is reason to believe that the Buyer will not or cannot fulfill its obligations correctly and/or in time.

Article 6. Use of Trademarks and Signs

The Buyer may not use trademarks and signs that are used by the Seller to distinguish his products from those of other legal entities/companies, or use trademarks and signs that are not clearly distinguishable from those of the Seller.

An exception applies to the trade in products in the original packaging of the Seller with the trademarks and signs placed on them by the Seller.

Article 7. Retention of Title

1. Title to the goods delivered by the Seller will remain vested in the Seller until the Buyer has paid the purchase price in full.  This retention of title also applies to any claims that the Seller may acquire against the Buyer due to the Buyer’s failure to fulfill one of his obligations towards the Seller.
2. Goods delivered by the Seller to which the retention of title pursuant to article 7 paragraph 1 applies, may be resold or used only in the normal course of business.  If they resold, the Buyer is obliged to demand retention of title from his own buyers.
3. The Buyer is not permitted to pledge the goods or to create any other right with regard to the goods.

Article 8. Payment

1. Payment must be made prior to shipment where the customer does not have an account.
2. Payment must be received by the Seller within 30 days of the Statement date unless otherwise agreed in writing.  At the end of that period, the Buyer will be in default; the Buyer will owe interest at a rate of 5 (five) % a month on the outstanding amount as from the date of default.
3. If the Buyer is liquidated, declared bankrupt or granted a suspension of payments, the Buyer’s payment obligations will fall due immediately and the Seller will be entitled to suspend the further performance of the agreement or to dissolve the agreement, all of this without prejudice to the Seller’s right to claim damages.
4. If payment in installments has been agreed, the entire remaining amount will fall due immediately without notice of default required in the event of late payment of an installment.  The provisions of the last sentence of paragraph 1 apply accordingly.

Article 9. Collection Costs

If the Buyer fails to perform one or more of his payment obligations, all the costs of obtaining payment in and out of court will be for the Buyer’s account.

Article 10. Liability

1. The Seller is not liable for any damage resulting from a shortcoming in the performance rendered, except in the case of intent and/or gross negligence on the part of the Seller and/or his employees. The Buyer is required to limit as much as possible the damage with regard to performance about which a complaint is filed with the Seller.
2. If the Seller is liable on the basis of one or more conditions, such liability will be limited to the invoice value of the delivery in question; the Seller will in no event be liable for any form of consequential damage.

Article 11. Use and Guarantee

1. The Seller guarantees that the performance rended will comply to the best of the Seller’s ability with the relevant product specifications.  However, the product specifications will not apply as a guarantee.  If the goods delivered do not comply with the product specifications. The Buyer will be informed.  The Seller furthermore does not guarantee that the performances’ rendered will comply with the purpose to which the seeds are put by the Buyer.
2. All information on quality provided by the Seller will exclusively be based on reproducible tests.  No direct relationship may be assumed between the information provided and the results achieved by the Buyer.  The supplied information or indicated quality merely indicate the result as achieved at the time when the test was performed, with regard to the seed sample used in such test and the conditions under which it was performed.  The result depends, among other factors, on the location, the conditions (climate, soil, nutrition, etc.) and the measures taken during cultivation.
3. Any and all guarantees on the part of the Seller will lapse if the Buyer processes the goods or has them processed, repackages the goods or has them repackaged, or uses the goods incorrectly.

Article 12. Notification of Defects, Deficiencies and Returns

1.The Buyer must inspect the goods purchased upon delivery, or as soon as possible after delivery.  In doing so the Buyer must check whether the goods delivered comply with the agreement, i.e.:

• whether the correct goods have been delivered;
• whether the quantity of the goods delivered corresponds with the agreement;
• whether the goods delivered meet the agreed quality requirements or – if non were agreed – the requirements that may be stipulated for normal use and/or trading purposes.

2. If visible defects or deficiencies are established, the Buyer must inform the Seller in writing within 3 working days after discovery, specifying the lot number, delivery note and/or invoice details.

          The Buyer must report any defects not immediately visible to the Seller in writing within 3 working days after discovery, specifying the lot number, delivery note and/or invoice details, including test-results when relevant.  If the customer is not satisfied they may return the seed (unopened) within 3 days for a full refund minus freight charges.

3. Complaints must be described in such a manner that the Seller or a third party can verify them.  For that purpose the Buyer must also keep records with regards to the use of the goods and, in the event of resale of the goods, with regards to his buyers.  If the Buyer does not file a complaint within the aforesaid period, the complaint will not be dealt with and rights will expire.

4. In the event of a permanent dispute between the parties concerning the germination capacity, varietal trueness, varietal purity or technical purity and health, either party may request that an inspection be performed by a certified laboratory, the cost of such inspection will be for the amount of the unsuccessful party.  The inspection will be carried out on the basis of a sample taken at Seller by a certified Seeds person and forwarded by them.  The result of the inspection will be binding on both partied, without prejudice to the parties’ right to submit disputes on the consequences of this outcome to the institutes referred to in article 16.

Article 13. Provisions of Information

1. Information provided by the Seller in any form whatsoever is without commitment. Descriptions, recommendations and illustrations in brochures and leaflets are based as closely as possible on experiences in tests and in practice.  The Seller in no event accepts any liability, however, on the basis of such information for different results obtained in the cultivated product.  The Buyer must determine whether the goods are suitable for the intended horticultural crop and/or can be used under local conditions.
2. In the information provided by the Seller, the term ‘immune’ means that the variety is not susceptible to a certain disease (immune is an absolute concept); the term ‘resistant’ refers to the plant’s ability to prevent or impede the development of a certain disease or certain forms of that disease; the term ‘tolerant’ refers to the plant’s ability to endure a certain disease or harmful environmental factor, with limited harmful effects on growth and production; the term ‘susceptible’ refers to the plant’s inability to impede or prevent the growth or development of a certain disease or harmful environmental factor.

Article 14. Force Majeure

1. Force majeure means circumstances that the stand in the way of fulfilling the obligation and cannot be attributed to the Seller.  If and in so far as these circumstances make performance impossible or unreasonably complicated beyond natural disasters, they include strikes at companies other than the Seller’s company, unofficial strikes at the Seller’s company, a general lack of the necessary raw materials and other goods or services required to render the agreed performance, unforeseeable delays at a sub-suppliers or other third parties on which the Seller is dependant, and general transport problems.
2. The Seller will inform the Buyer as soon as possible if it is unable to deliver or to deliver in time due to an event of force majeure.
3.  In the event of force majeure lasts longer than 60 days, both parties will be entitled to dissolve the agreement.  In that case the Seller will not be required to pay any damages.

Article 15. Conversion

1. If a provision if these Terms and Conditions is invalid, the provisions will automatically (by operation of law) be replaced by a valid provision that corresponds as closely as possible to the purport of the invalid provision.  The parties must, if necessary, enter into reasonable consultations about the text of that new provision.
2. In that case the other provisions of the Terms and Conditions will remain fully valid in so far as possible.

Article 16. Settlement of Disputes

1. Unless the parties have agreed on arbitration in consultation, any disputes will be settles by the civil court that is competent in first instance in the place where the Seller has his registered office, unless another court is competent pursuant to the applicable mandatory rules of the law chosen in article 17.
2. In the event of a dispute the partied will, however, first try to reach a solution in consultation, or otherwise by means of mediation, before the partied submit the dispute to an arbitration tribunal or to the civil court.
3. The Seller will at all times have the right to summon the Buyer before the court that is competent by law or pursuant to the applicable international convention.

Article 17. Applicable Law

1. All agreements between the Seller and the Buyer are governed by law of the Australia, where the Seller has his registered office.
2. If the Seller and the Buyer do not have their registered offices in the same country, the ‘United Nations Convention of the International Sales of Goods’ (the Vienna Sales Convention) will also apply, in so far as it does not differ from these Terms and Conditions and in so far as it does not conflict with the rules of mandatory law of the Seller’s country.