1.1 Application means
the application for credit completed and signed by the Customer and accepted
by Highsun including the terms of any guarantee;
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 and assigns;
1.6 Delivery Date means
the estimated date of shipment or delivery of the Goods as specified in the
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 delivery;
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
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 Limit.
new Application must be completed if there has been no supply of Goods for
more than two (2) years.
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
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 Highsun.
3.1 All Orders are to be made in writing as
Orders of plugs, seeds and tissue culture from Highsun Express – by email to email@example.com
or fax to 1800 644 015;
Orders of propogation supplies from Proptec – by email to firstname.lastname@example.org
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:
Orders of plugs and seeds from Highsun Express – four (4) weeks;
Orders of tissue culture from Highsun Express – four (4) to eight (8) months;
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:
indicated on invoices or statements provided by Highsun to the Customer in
respect of Goods supplied or delivered; or
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
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.
5.1 The Customer acknowledges that the
Delivery Date specified on the Order Confirmation is an estimate only.
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 Friday.
5.3 At Highsun’s sole discretion, delivery of the Goods is deemed to have
taken place when:
Customer takes possession of the Goods at Highsun’s nominated business
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
Customer’s nominated carrier takes possession of the Goods in which event the
carrier will be deemed to be the Customer’s agent.
5.4 The cost of delivery of the Goods will be
in the Price; or
addition to the Price;
and will be advised to the Customer prior to delivery of any Goods.
5.5 Orders over five hundred dollars ($500.00)
exclusive of GST will receive free express delivery.
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:
Customer acknowledges and agrees that the quality and standard of the Goods
may be affected or diminished and Highsun accepts no responsibility for the
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
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
5.11.1 leave Goods outside Highsun’s nominated
business premises for collection; or
5.11.2 deliver the Goods to an unattended
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:
Customer has paid Highsun all amounts owing for any Goods supplied by Highsun;
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
6.2 The parties acknowledge and agree as
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
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 to Highsun.
will have the right of stopping the Goods in transit whether or not delivery
has been made.
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.
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.
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.
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
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 that time.
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:
replacement of the Goods or the supply of equivalent goods;
repair of the Goods;
payment of the cost of replacing the Goods or of acquiring equivalent goods;
payment of the cost of having the Goods repaired.
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.
liability under section 274 of the CCA is expressly limited to a liability to
pay the Customer an amount equal to:
cost of replacing the Goods;
cost of obtaining equivalent goods; or
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 &
a security agreement for the purposes of the PPSA; and
a security interest in:
Goods previously supplied by Highsun to the Customer (if any); and
Goods that will be supplied in the future by Highsun to the Customer.
9.3 The Customer undertakes to:
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:
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
a defect in a statement referred to in clause 9.3.1(i) or clause 9.3.1(ii);
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 charged thereby;
register a financing change statement in respect of a security interest
without the prior written consent of Highsun;
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
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 PPSA.
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
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
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 the Goods;
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
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 claim.
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
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 discretion.
11.5 Highsun will not be liable for Goods
which have not been stored, used, handled or cared for in a proper manner.
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
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
12.3.2 Highsun’s Solicitor and Client Legal
Costs, which the parties agree are to be recoverable on an indemnity basis.
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
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 creditors; or
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 purposes:
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
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
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 Goods;
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
14.5.4 processing of any payment instructions,
direct debit facilities and/or credit facilities requested by the Customer;
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 purposes:
14.6.1 to obtain a consumer credit report about
14.6.2 allow the credit reporting agency to create
or maintain a credit information file containing information about the
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 requested;
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
14.7.7 advice that cheques drawn by the Customer
for one hundred dollars ($100.00) or more, have been dishonoured more than
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 Liability
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 Highsun.
16.2 Significant 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.
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 inconsistency.
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
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
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.