These Terms and Conditions apply to the sale of goods
to the Customer by Highsun.
1.1 Application means the application for credit completed and
signed by the Customer and accepted by Highsun including the terms of any
1.2 CCA means the Competition and
Consumer Act 2010 (Cth) as amended;
1.3 Consequential Loss means loss of expected savings, loss of use, loss of
opportunity, loss of profit, loss of revenue, increased financing costs, loss
arising from delay, or any consequential, special or indirect loss or damage,
whether or not the possibility or potential extent of the loss or damage was
known or foreseeable, and whether arising from a claim under indemnity,
contract, tort (including negligence, statute or otherwise;
1.4 Credit Limit means the credit limit for any account of the
Customer approved by Highsun;
1.5 Customer means the Customer (or any person acting on behalf
of and with the authority of the Customer) as described on any Application or
other form provided by Highsun to the Customer together with their successors
1.6 Delivery Date means the estimated date of shipment or delivery of
the Goods as specified in the Order Confirmation;
1.7 Deposit means the portion of the Price specified in the
Order Confirmation payable by the Customer prior to dispatch of the Goods for
1.8 Guarantor means that person (or persons) who agrees to be
liable for the debts of the Customer on a principal debtor basis as set out
in the Application;
1.9 Goods mean all goods supplied by Highsun to the Customer from time to time
and are as described on any order, invoices, quotation or any other forms as
provided by Highsun to the Customer;
1.10 Highsun means Highsun Express Seeds Pty
Ltd A.C.N. 083 501 615 trading as “Highsun Express” and “Proptec”, its successors and assigns or
any person acting on behalf of and with the authority of Highsun;
1.11 Loss means any loss, expense, cost, liability or damage of any kind and
includes Consequential Loss and any fine or penalty imposed by a statutory or
other authority and whether aririnsg from a claim under indemnity, contract,
tort (including negligence), statute or otherwise;
1.12 Minimum Order Price means fifty dollars ($50.00) exclusive of GST;
1.13 Order means an order placed in writing by a Customer specifying the type and
quantity of Goods required (including details of any special requirements);
1.14 Order Confirmation means a confirmation of an Order in writing issued
by Highsun to the Customer.
1.15 PPSA means the Personal Property
Securities Act 2009 (Cth) as amended;
1.16 PPSR means the Personal Property Securities Register;
1.17 Price means the price payable for the Goods as agreed between Highsun and the
Customer in accordance with clause 3 of the Terms & Conditions;
1.18 Solicitor and Client Legal Costs means all legal costs and disbursements
incurred by Highsun in pursuing any debt arising from any default in payment
of the Price or any invoice when due, except for those of an unreasonable
amount or unreasonably incurred, unless approved by the Customer; and
1.19 Terms & Conditions means these terms and conditions, the Application
(if applicable), any invoice and any other documentation relating to the
supply of the Goods and attached to these Terms & Conditions.
2.1 These Terms &
Conditions apply and are incorporated into each and every Order for the
supply of Goods or the Customer’s acceptance of Goods.
2.2 The following terms
will apply to Customers who have completed an Application and been approved
with a Credit Limit:
The Customer acknowledges that the supply of Goods
on credit will not take effect until the Customer has completed the
Application with Highsun and the Customer has been approved with a Credit
A new Application must be completed if there has
been no supply of Goods for more than two (2) years.
In the event that the supply of Goods request
exceeds the Credit Limit and/or the account exceeds the payment terms, Highsun
reserves the right to refuse supply and/or delivery of any Goods or require
payment on a cash on delivery basis.
2.3 Where more than one
(1) Customer has entered into these Terms & Conditions, the Customers
will be jointly and severally liable for all payments of the Price.
2.4 The Customer will
give Highsun not less than fourteen (14) days prior written notice of any
proposed change of ownership of the Customer or any change in the Customer’s
name and/or any other change in the Customer’s details (including but not
limited to, changes in the Customer’s address, telephone number, or business
practice). The Customer will be liable for any Loss incurred by Highsun as a
result of the Customer’s failure to comply with this clause.
2.5 If Highsun varies
these Terms & Conditions and provides reasonable notice to the Customer
of the variation, these Terms & Conditions are varied and incorporated
into each and every contract for the supply of Goods made between Highsun and
the Customer after the date of such notice.
2.6 Goods are supplied
by Highsun only on these Terms & Conditions to the exclusion of anything
to the contrary in the terms of the Customer’s Order notwithstanding that any
such Order is placed on terms that purport to override these Terms &
Conditions unless such terms and conditions have been agreed in writing by
3.1 All Orders are to be
made in writing as follows:
for Orders of plugs, seeds and tissue culture from
Highsun Express – by email to firstname.lastname@example.org
or fax to 1800 644 015;
for Orders of propogation supplies from Proptec – by
email to email@example.com
or fax to 1800 644 015.
3.2 Orders are not
accepted until an Order Confirmation is issued to the Customer by Highsun.
3.3 The Customer acknowledges
that Orders of certain Goods are subject to the following lead times:
for Orders of plugs and seeds from Highsun Express –
four (4) weeks;
for Orders of tissue culture from Highsun Express –
four (4) to eight (8) months;
for Orders of propagation supplies from Proptec –
six (6) to eight (8) weeks.
3.4 The sum of an Order
for plugs and seeds from Highsun Express must be equal to or greater than the
Minimum Order Price. Where the Order is less than the Minimum Order Price, Highsun
reserves the right to increase the Order to meet the Minimum Order Price.
3.5 Highsun has the
right to substitute Goods ordered by the Customer for another type or
quantity of goods (provided that such substituted goods are of similar nature
and quality), unless the Customer specifically advises Highsun in writing prior
to the Goods being dispatched that substituted goods will not be accepted.
4. Price and Payment
4.1 At Highsun’s sole
discretion the Price will be either:
as indicated on invoices or statements provided by Highsun
to the Customer in respect of Goods supplied or delivered; or
Highsun’s price for the Goods as at the Delivery
Date of the Goods according to Highsun’s current advertised catalogue.
4.2 Highsun may request
payment by the Customer of a non-refundable Deposit prior to the supply or
delivery of the Goods.
4.3 Highsun may, in its
sole discretion, require payment of the Price by the Customer either prior to
or on delivery of the Goods. If pre-payment of the Price is required, payment
must be received by Highsun by 12pm the day prior to dispatch of the Goods.
4.4 Payment of the Price
will be as stated on the invoice or any other form provided by Highsun to the
Customer. If no time for payment of the Price is stated then payment of the
Price will be thirty (30) days following the date of the relevant invoice or
statement (as the case may be).
4.5 Payment of the Price
must be made by cash, personal cheque, bank cheque, credit card, direct
credit, or by any other method as agreed to between the Customer and Highsun. Any payment of the Price by credit card may
incur a surcharge of up to three percent (3%) of the Price.
4.6 Unless otherwise
stated, GST and other taxes and duties that may be applicable to the supply
of the Goods by Highsun will be added to the Price.
4.7 Prices shown in any
catalogue published by Highsun may be varied without notice to the Customer
at any time.
Delivery of Goods
5.1 The Customer
acknowledges that the Delivery Date specified on the Order Confirmation is an
5.2 The Customer may
collect the Goods from Highsun’s nominated business premises by giving
forty-eight (48) hours notice in writing to Highsun. Collection hours are
strictly between 9:00am to 4:00pm Monday to Thursday and 9:00am to 12:00pm
5.3 At Highsun’s sole discretion, delivery of the Goods is deemed to have
taken place when:
the Customer takes possession of the Goods at Highsun’s
nominated business address; or
the Goods are delivered to the Customer’s address as
specified in the Order (in the event that the Goods are delivered by Highsun
or Highsun’s nominated carrier); or
the Customer’s nominated carrier takes possession of
the Goods in which event the carrier will be deemed to be the Customer’s
5.4 The cost of delivery
of the Goods will be either:
included in the Price; or
in addition to the Price;
and will be advised to the Customer prior to delivery of any Goods.
5.5 All Seed Orders over
five hundred dollars ($500.00) exclusive of GST requiring Express Delivery
will be sent free of freight charge.
5.6 The Customer is
liable to pay Highsun for the costs of any special packing or packing
materials used for the Goods.
5.7 The Customer will
make all arrangements necessary to take delivery of the Goods on the day and
time nominated by Highsun. In the event that the Customer is unable to take
delivery of the Goods at the nominated day and time:
the Customer acknowledges and agrees that the
quality and standard of the Goods may be affected or diminished and Highsun
accepts no responsibility for the same; and
Highsun will be entitled to charge a reasonable fee
for redelivery of the Goods.
5.8 Delivery of the
Goods to a third party nominated by the Customer is deemed to be delivery to
the Customer for the purposes of these Terms & Conditions.
5.9 Highsun may, in its
sole discretion, deliver the Goods by separate installments. Each separate installment
will be invoiced by Highsun and paid by the Customer in accordance with these
Terms & Conditions.
5.10 The Customer will
take delivery of the Goods notwithstanding that the quantity so delivered may
be either greater or lesser than the Order Confirmation provided that:
5.10.1 such discrepancy in
quantity does not exceed five percent (5%); and
5.10.2 the Price is
adjusted pro rata to the extent of the discrepancy.
5.11 Where the Customer
expressly requests Highsun to either:
5.11.1 leave Goods outside Highsun’s
nominated business premises for collection; or
5.11.2 deliver the Goods to
an unattended location,
such Goods are at the Customer’s sole risk.
5.12 Any failure or delay
in delivery of the Goods by Highsun will not entitle either party to treat
the Terms & Conditions as repudiated.
5.13 Highsun will not be
liable for any Loss whatsoever due to any failure by Highsun to deliver the
Goods (or any part of them) promptly or at all, where such failure is due to
circumstances beyond the control of Highsun.
6.1 The Customer agrees
that title in and to the Goods will not pass to the Customer until:
the Customer has paid Highsun all amounts owing for
any Goods supplied by Highsun; and
the Customer has met all other obligations due by
the Customer to Highsun in respect of all invoices and contracts as and
between Highsun and the Customer.
6.2 The parties
acknowledge and agree as follows:
Where practicable, the Customer will keep the Goods
separate and identifiable until Highsun has received payment in full of all
outstanding monies the Customer owes Highsun and all other obligations of the
Customer have been complied with.
Until such time as title in and to the Goods passes
from Highsun to the Customer pursuant to these Terms & Conditions, Highsun
may give notice in writing to the Customer to return the Goods or any of them
Highsun will have the right of stopping the Goods in
transit whether or not delivery has been made.
If the Customer fails to return the Goods to Highsun
then Highsun or Highsun’s agent may (as the invitee of the Customer) enter
upon and into land and premises owned, occupied or used by the Customer, or
any premises where the Goods are situated and take possession of the Goods.
The Customer is only a bailee of the Goods and until
such time as Highsun has received payment in full of all outstanding monies
the Customer owes Highsun and the Customer will hold any proceeds from the
sale or disposal of the Goods, up to and including the amount the Customer
owes to Highsun for the Goods, on trust for Highsun. The Customer will not deal with the money
of Highsun in any way which may be adverse to Highsun’s interests.
The Customer will not charge the Goods in any way
nor grant nor otherwise give any interest (including any security interest)
in the Goods until title in the Goods pass to the Customer.
Highsun may issue proceedings to recover any monies
owing by the Customer, notwithstanding that title to or in the Goods may not
have passed to the Customer.
Until such time as title to or in the Goods passes
to the Customer by the operation of this clause 6, if the Goods are converted into other
products, the parties agree that Highsun will be the owner of any end
products comprising the Goods.
7.1 Notwithstanding anything
else in these Terms & Conditions, all risk in the Goods passes to the
Customer at the time of delivery and the Customer must insure the Goods from
7.2 If any of the Goods
are damaged or destroyed after delivery of the Goods but prior to title in
the Goods passing to the Customer, Highsun is entitled to receive all
insurance proceeds received by the Customer for the Goods.
7.3 The production of
these Terms and Conditions by Highsun is sufficient evidence of Highsun’s
rights to receive the insurance proceeds without the need for any person
dealing with Highsun to make further enquiries.
8.1 Subject to Highsun’s
statutory obligations under the CCA the following provisions apply:
liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of
the CCA is limited to any one (1) or more of the following:
the replacement of the Goods or the supply of
the repair of the Goods;
the payment of the cost of replacing the Goods or of
acquiring equivalent goods; or
the payment of the cost of having the Goods
to Highsun’s statutory obligations under the CCA and except as provided in
these Terms & Conditions, all express and implied warranties, guarantees
and conditions under statute or general law as to merchantability,
description, quality, suitability or fitness of goods for any purpose or as
to design, assembly, installation, materials or workmanship or otherwise are
is not liable to the Customer for any physical or financial injury, Loss or Consequential
Loss of any kind arising out of the supply, layout, assembly, installation or
operation of the Goods or arising out of negligence or in any way whatsoever.
Highsun’s liability under section 274 of the CCA is
expressly limited to a liability to pay the Customer an amount equal to:
the cost of replacing the Goods;
the cost of obtaining equivalent goods; or
the cost of having the Goods repaired,
whichever is the lowest amount.
9.1 In this clause:
financing statement has the meaning given to it by the PPSA;
financing change statement has the meaning given to it by the PPSA;
security agreement means the security agreement under the
PPSA created between the Customer and Highsun by the Terms & Conditions;
security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to
these Terms and Conditions in writing the Customer acknowledges and agrees
that these Terms & Conditions:
constitute a security agreement for the purposes of
the PPSA; and
create a security interest in:
all Goods previously supplied by Highsun to the
Customer (if any); and
all Goods that will be supplied in the future by Highsun
to the Customer.
9.3 The Customer
promptly sign any further documents and/or provide
any further information (such information to be complete, accurate and
up-to-date in all respects) which Highsun may reasonably require to:
register a financing statement or financing change
statement in relation to a security interest on the PPSR;
(ii) register any other document
required to be registered by the PPSA; or
correct a defect in a statement referred to in
clause 9.3.1(i) or clause 9.3.1(ii);
indemnify, and upon demand reimburse, Highsun for
all expenses incurred in registering a financing statement or financing
change statement on the PPSR established by the PPSA or releasing any Goods
not register a financing change statement in respect
of a security interest without the prior written consent of Highsun;
not register, or permit to be registered, a
financing statement or a financing change statement in relation to the Goods
in favour of a third party without the prior written consent of Highsun; and
immediately advise Highsun of any material change in
its business practices of selling the Goods which would result in a change in
the nature of proceeds derived from such sales.
9.4 Highsun and the
Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the
security agreement created by these Terms & Conditions.
9.5 The Customer hereby
waives its rights to receive notices under sections 95, 118, 121(4), 130,
132(3)(d), 132(4) and 135of the PPSA.
9.6 The Customer waives
its rights as a grantor and/or a debtor under sections 142 and 143 of the
9.7 Unless otherwise
agreed to in writing by Highsun, the Customer waives its right to receive a
verification statement in accordance with section 157 of the PPSA.
9.8 The Customer will
unconditionally ratify any actions taken by Highsun under clauses 9.3, 9.4 and 9.5.
10.1 To the extent
permitted by law, Highsun does not warrant the following:
10.1.1 any of the Goods
that are not manufactured or produced by Highsun; or
10.1.2 defects or deterioration
in or of the Goods which, in the opinion of Highsun, have been caused by
careless or improper handling, negligence, misuse, non-adherence to care,
operating, cleaning or maintenance instructions, alterations or repairs
carried out by anyone other than Highsun’s authorised representatives, or by
fair wear and tear; or
10.1.3 that the Goods are
fit for use. The Customer acknowledges and agrees that they have had the
opportunity to review the variety of Goods offered by Highsun together with
their specifications and quality.
10.2 Highsun will not be
liable to the Customer in any way for any costs or Loss of any kind
whatsoever (including, without limitation, liability for Consequential Loss)
incurred or sustained by the Customer or any third party arising from or in
connection with the Goods and any damage caused. The Customer must take
reasonable steps to mitigate any Loss it suffers or incurs.
10.3 Where a Good or any
part of a Good is not manufactured or produced by Highsun, Highsun will use
reasonable endeavours to assign to the Customer the benefit of any warranty
in respect of that part of the Good.
10.4 Any warranty of Highsun
cannot be assigned or transferred to any third party.
11.1 Other than
non-catalogue items or Goods made to the Customer’s specifications (which
cannot be returned or credited), where a Customer is not satisfied with the
Goods, the Customer may, at its cost, make a claim in writing to Highsun.
11.2 For the purpose of
making any claim under this clause 11,
the Customer must:
11.2.1 immediately upon
becoming aware of circumstances giving rise to a claim, notify Highsun in
writing setting out full details of the claim and providing the Customer’s
contact details and not later than forty-eight (48) hours after delivery of
11.2.2 provide Highsun with
a descriptopm of the defect and proof of purchase of the Goods in relation to
which the claim is made;
11.2.3 allow Highsun, its
employees and/or agents full and free access to the Goods in relation to
which the claim is made and to the place where the Goods are located for the
purpose of conducting any inspection and tests that Highsun may in its
absolute discretion consider necessary to determine whether to admit the
11.3 Any return of Goods
by the Customer will only be accepted by Highsun provided that:
11.3.1 Highsun has agreed
in writing to accept a return of the Goods;
11.3.2 the Goods are
returned to Highsun by the Customer within seven (7) days of receipt of the
Goods by the Customer;
11.3.3 with the exception
of plugs and tissue culture, the Goods together with all packaging material,
brochures and instruction materials are returned in the condition in which
they were delivered;
11.3.4 any freight charges
that are incurred in the return of the Goods are paid by the Customer.
11.4 Highsun may elect to
repair or replace the Goods or grant a credit to the Customer in its absolute
11.5 Highsun will not be
liable for Goods which have not been stored, used, handled or cared for in a
12.1 Interest on any
monies owed by the Customer to Highsun will accrue daily from the date when
payment becomes due, until the date payment is made, at a rate of ten percent
(10%) per annum (and at Highsun’s sole discretion such interest will compound
daily at such a rate).
12.2 In the event that
the Customer’s payment is dishonoured for any reason the Customer will be
liable for any dishonour fees incurred by Highsun.
12.3 If the Customer
defaults in payment of any monies due and payable to Highsun by the Customer,
the Customer indemnifies Highsun from and against all costs and disbursements
incurred by Highsun in pursuing the debt, including:
12.3.1 Highsun’s collection
agency costs actually incurred; and
12.3.2 Highsun’s Solicitor
and Client Legal Costs, which the parties agree are to be recoverable on an
12.4 A statement in
writing signed by an authorised officer of Highsun setting out the moneys due
or owing to Highsun at the date of the statement shall be sufficient evidence
of the amount so due or owing.
12.5 Without prejudice to
any other rights or remedies Highsun may have against the Customer, if at any
time the Customer is in breach of any obligation (including those relating to
payment) Highsun may suspend or terminate the supply of Goods to the Customer
and any of its other obligations under these Terms & Conditions. Highsun
will not be liable to the Customer for any Loss the Customer suffers because Highsun
has exercised its rights under this clause.
12.6 Without prejudice to
Highsun’s other remedies at law Highsun will be entitled to cancel all or any
part of any Order of the Customer that has not been delivered and all monies
owing to Highsun will, whether or not due for payment, become immediately
payable in the event that:
12.6.1 any money payable to
Highsun becomes overdue, or in Highsun’s opinion the Customer will be unable
to meet its payments as they fall due; or
12.6.2 the Customer becomes
insolvent, convenes a meeting with its creditors or proposes or enters into
an arrangement with creditors, or makes an assignment for the benefit of its
12.6.3 a receiver, manager,
liquidator (provisional or otherwise) or similar person is appointed in
respect of the Customer or any asset of the Customer; or
12.6.4 the Customer dies or
ceases to be of legal capacity or otherwise becomes incapable of managing the
Customer’s own affairs for any reason.
13.1 Notwithstanding any
other clause in these Terms & Conditions, Highsun may cancel any supply
or delivery of Goods to which these Terms & Conditions apply at any time
before the Goods are delivered by giving written notice to the Customer. On giving such notice Highsun will repay to
the Customer any sums paid in respect of the Price for Goods not delivered. Highsun
will not be liable for any Loss whatsoever arising from such cancellation.
13.2 Any Order
cancellations by a Customer must be made in writing in the same manner
required by clause 3.1.
In the event that the Customer cancels any Order the Customer will be liable
for any Loss incurred by Highsun (including, but not limited to, any loss of
profits) up to the time of cancellation.
13.3 Cancellation of Orders
for Goods made to the Customer’s specifications or non-catalogue items will
not be accepted once an Order Confirmation has been delivered to the Customer.
13.4 In the event that an
Order is cancelled by a Customer, the Customer may request that Highsun
endeavour to onsell the Goods to third party customers which request may be
granted or declined in Highsun’s absolute discretion. The Price of any Goods
successfully onsold shall be offset against any monies owed by the Customer
to Highsun pursuant to clause 13.2 provided that the Customer pays to
Highsun an administrative fee equal to fifteen percent (15%) of all Goods
14. Privacy Act 1988
14.1 The Customer and/or
the Guarantors (in this clause referred to as the Customer) agree for Highsun
to obtain from a credit reporting agency a credit report containing personal
credit information about the Customer in relation to credit provided by Highsun.
14.2 The Customer agrees
that Highsun may exchange information about the Customer with those credit
providers either named as trade referees by the Customer or named in a
consumer credit report issued by a credit reporting agency for the following
14.2.1 to assess an
application by the Customer;
14.2.2 to notify other
credit providers of a default by the Customer;
14.2.3 to exchange
information with other credit providers as to the status of this Credit
Accound, where the Customer is in default with other credit providers; and/or
14.2.4 to assess the
creditworthiness of the Customer.
14.3 The Customer
understands and agrees that the information exchanged can include anything
about the Customer’s creditworthiness, credit standing, credit history or
credit capacity that credit providers are allowed to exchange under the Privacy Act 1988 (Cth).
14.4 The Customer
consents to Highsun being given a consumer credit report to collect overdue
payment on commercial credit (section 18K(1)(h) Privacy Act 1988 (Cth)).
14.5 The Customer agrees
that personal credit information provided may be used and retained by Highsun
for the following purposes (and for other purposes as will be agreed between
the Customer and Highsun or required by law from time to time):
14.5.1 the provision of
14.5.2 the marketing of
Goods by Highsun, its agents or distributors;
14.5.3 analysing, verifying
and/or checking the Customer’s credit, payment and/or status in relation to
the provision of Goods;
14.5.4 processing of any
payment instructions, direct debit facilities and/or credit facilities
requested by the Customer; and/or
14.5.5 enabling the daily
operation of Customer’s account and/or the collection of amounts outstanding
in the Customer’s account in relation to the Goods.
14.6 Highsun may give
information about the Customer to a credit reporting agency for the following
14.6.1 to obtain a consumer
credit report about the Customer;
14.6.2 allow the credit reporting
agency to create or maintain a credit information file containing information
about the Customer.
14.7 The information
given to the credit reporting agency may include:
14.7.1 personal particulars
(including the Customer’s name, address, previous addresses, date of birth,
name of employer and driver’s license number);
14.7.2 details concerning
the Customer’s application for credit or commercial credit and the amount
14.7.3 advice that Highsun
is a current credit provider to the Customer;
14.7.4 advice of any
overdue accounts, loan repayments, and/or any outstanding monies owing which
are overdue by more than sixty (60) days, and for which debt collection
action has been started;
14.7.5 that the Customer’s
overdue accounts, loan repayments and/or any outstanding monies are no longer
overdue in respect of any default that has been listed;
14.7.6 information that, in
the opinion of Highsun, the Customer has committed a serious credit
infringement (that is, fraudulently or shown an intention not to comply with
the Customers credit obligations);
14.7.7 advice that cheques
drawn by the Customer for one hundred dollars ($100.00) or more, have been
dishonoured more than once;
14.7.8 that credit provided
to the Customer by Highsun has been paid or otherwise discharged.
15. Force Majeure
15.1 Notwithstanding any
other provision of these Terms & Conditions, no default or failure to
perform on the part of Highsun will be considered to be a breach of these
Terms & Conditions if such default, delay or failure to perform is due to
causes beyond the reasonable control of Highsun including but not limited to
causes such as strikes, lock-outs or other labour disputes, civil
disturbance, action of government authorities or suppliers, storms, floods,
fires, earthquakes, acts of God, unavailability or delay in availability of
materials, equipment or transport and default of a carrier.
16. Limitation of
16.1 Any cultural,
varietal and descriptive information or other advice, recommendation,
information, assistance or service provided by Highsun is intended as a
general guide only and should not be relied upon and is provided without
liability or responsibility (including for negligence) on the part of
variations in the variety, performance and crop outcomes of plug, seed and
tissue culture Goods may occur depending on geographic location, climate,
soil type, soil conditions, cultural management practices and other growth
and development factors. It is recommended that in all cases a small scale
trial production is undertaken in order to test local conditions and
circumstances that may affect the crop.
16.3 No liability will be
accepted by Highsun for any inaccuracy in the information provided or the
quality and performance of any Goods.
17. Customer Obligations
17.1 Customers who have
ordered any plant cuttings from Highsun will only use the cuttings for cut
flower or pot production and shall not engage in any type of propogation or
reproduction of these plants. The Customer is liable for any Loss incurred by
Highsun for a breach of this clause.
18.1 These Terms &
Conditions are governed by the laws of the State of Queensland, Australia and
the Customer irrevocably submit to the exclusive jurisdiction of the courts
of that State.
18.2 Reference to any
amount of money is a reference to the amount of lawful currency of the
Commonwealth of Australia.
18.3 If any provision of these Terms &
Conditions is deemed to be invalid, void, illegal or unenforceable the
validity, existence, legality and enforceability of the remaining provisions
will not be affected, prejudiced or impaired.
18.4 If any provisions of
these Terms & Conditions are inconsistent with the PPSA or CCA, the PPSA
or the CCA (as the case may be) will prevail to the extent of that
18.5 The Customer will
not be entitled to set off against, or deduct from the Price, any sums owed
or claimed to be owed to the Customer by Highsun nor to withhold payment of
any invoice because part of that invoice is in dispute.
18.6 Highsun may assign,
license or sub-contract all or any part of its rights and obligations without
the Customer’s consent.
18.7 Neither party will
be liable for any default due to any act of God, war, terrorism, strike,
lock-out, industrial action, fire, flood, storm or other event beyond the
reasonable control of either party.
18.8 The failure by Highsun
to enforce any provision of these Terms & Conditions will not be treated
as a waiver of that provision, nor will it affect Highsun’s right to
subsequently enforce that provision.
18.9 These Terms &
Conditions supersede all prior representations, arrangements, understandings
and agreements between Highsun and the Customer and represents the entire and
exclusive agreement between the parties.