(1) Placing Orders 

(1) We agree to sell and you agree to buy Products in accordance with these Trading Terms. 

(2) You acknowledge that these Trading Terms are deemed to: 

(a) be incorporated into all Orders accepted by us and all supplies of Products to you; and

(b) prevail over any inconsistent terms in any documents and will supersede all previous negotiations and representations, whether oral or written for the same products as well as earlier sets of terms and conditions issued, unless otherwise agreed by us in writing.

(3) Any quotation prepared by Gro-Link for Products is not an offer by us and it may be withdrawn or altered without notice. 

(4) Orders submitted by you constitute an offer to buy the Products specified in the Order and will be subject to acceptance by us in our absolute discretion. 

(5) When we accept an Order, it represents an agreement by Gro-Link to supply you with the Products in accordance with the Order and these Trading Terms. By submitting an Order, you acknowledge that you have read, understood and agree to be bound by these Trading Terms following our acceptance of an Order.

(6) Once you submit your Order and we accept, cancellations of your Order or changes to the Products in your Order cannot be made and you will be liable for all costs incurred by Gro-Link in respect of any changes or cancellations of your Order (unless otherwise agreed by us in writing). 

(7) To the extent permitted by law, Gro-Link reserves the right to vary or cancel an Order, in whole or part, for any reason (or no reason) at any time including if the Product is no longer available or if our suppliers amend the terms on which they supply us. To the extent the law permits, if an Order is cancelled or varied, you will have no claim against us for any loss or damage (including consequential loss or damage) arising from the cancellation or variation of the Order.

(8) In submitting an Order, you agree to provide complete and accurate information as to your personal and/or business details to enable the processing and delivery of your Order. Gro-Link will not be liable to you for your loss or that of any third party for a delay or failure to process, fulfil or deliver the Products as specified in your Order to you due to inaccurate or incomplete personal and/or business details provided in respect of an Order by you.

(2) Title and risk

(9) We retain ownership of the Products under your Order until payment for all Charges is received in full for those Products, even where Products are delivered to you before full payment for the Products has been made. Risk in the Products passes to you upon delivery of the Products.

(3) Delivery of the Products

(10) Unless agreed otherwise in writing by the parties, the Products will be delivered to the address specified by you in the Order. 

(11) We have sole discretion as to the method and carrier for delivery of the Products.

(12) You must accept delivery of the Products specified in the Order during the delivery period specified by us from time to time.

(13) Any delivery date and time provided by us is an estimate only. From time to time, Gro-Link may not be able to achieve the delivery time frames. You acknowledge and agree that notwithstanding anything else in these Trading Terms:

(a) Gro-Link cannot guarantee that delivery will occur in the delivery time frames;

(b) late delivery of Products is not a breach of these Trading Terms by us;

(c) delivery time frames may change from time to time due to unforeseen circumstances; and

(d) Gro-Link is not liable with respect to any loss, damage, cost, expense or injury you or any third party suffers as a result of a change in delivery times or a delay in delivery by Gro-Link.

(5) To the extent permitted by law, you must indemnify us against:

(a) any and all loss or damage suffered, or cost or expense incurred by us as a result of your refusal or attempted refusal to accept delivery of the Products; and

(b) any claim, loss or damage suffered by us, or as a result of us becoming liable to any third party (directly or indirectly) as a result of entry into any premises for the purpose of delivering the Products by us or our employees, contractors or agents. 

(6) You acknowledge that Gro-Link equipment (including seedling racks and trays) used in delivering the Products that is left at your premises after delivery remains Gro-Link’s property and must be made available to us for collection immediately upon request. While Gro-Link’s equipment remains in your custody, you must keep Gro-Link’s equipment safe and not use it for any purpose other than holding the Products.

 (4) Quality Control and Inspection of the Products

(7) Upon delivery, you must immediately inspect your Products and check that the Products delivered match your Order. If the Products do not reflect the Order, are defective or there are Products missing, you must notify us in writing within 24 hours of delivery setting out complete particulars of your claim.

(8) If you fail to give us notice in accordance with clause 4.1, then to the extent permitted by law, you are deemed to have:

(a) accepted delivery of the Products and confirmed that the Products reflect those specified in the Order; and

(b) waived any and all entitlement to bring a claim against us in respect of the error, defect or shortage related to the Products and the Products are deemed to have been accepted by you in accordance with these Trading Terms.

(3) You acknowledge and agree that:

(c) the seeds used by Gro-Link from which the Products are grown are provided by third party suppliers;

(d) we are not liable for the survival, growth or performance of the Products once delivered;

(e) the survival, growth and performance of Products are subject to all or any number of factors beyond our control including, but not limited to, unsuitable soil or location, weather, chemical treatment, water quality, temperature, humidity or other climatic conditions, handling, storage, cultivation, attack by fungus, disease or insects or other pests;

(f) we have not given any express or implied warranties, representations, promises, undertakings or indemnities in relation to the condition, survival, growth or performance of the seeds supplied to us by our third party supplier or the Products supplied by us to you; and

(g) we are not liable or responsible for any damage and/or loss caused to you in the event any Products fail to survive or grow adequately, sufficiently, properly or at all except as implied by law, statute or regulations), whether such loss and/or damage be sustained directly and/or indirectly.

(5) Payment terms and GST

(5.1) We will issue an invoice to you with respect to the Products delivered pursuant to an Order. 

(5.2) Unless we have granted you Credit Facilities in accordance with clause 6 or agreed otherwise with you, payment of the invoice must be paid in full in cash by you upon delivery of the Products. 

(5.3) If GST applies to the supply of the Products pursuant to an Order, you must pay the applicable GST on all prices, delivery fees and other surcharges applicable to the Order (Charges) stated in our tax invoice, which we will issue in the form required by GST Law.

(6) Credit Facilities

(6.1) You may submit a Credit Application to us and by doing so, you irrevocably authorise us, our employees, contractors and agents to make inquiries to investigate your creditworthiness from time to time. 

(6.2) Gro-Link will assess and approve any Credit Application in our absolute discretion.

(6.3) If your Credit Application is approved by us, payment will be due and payable thirty (30) days from delivery of the Products unless otherwise agreed in writing (Credit Facilities).

(6.4) You acknowledge and agree that:

(n) you are not entitled to any Credit Facilities until you receive written notice from us stating that your Credit Application has been approved and confirming the monetary limit of the approved Credit Facilities;

(o) we may request payment when the monetary limit of the Credit Facilities has been reached or exceeded;

(p) we may suspend or terminate the Credit Facilities at any time and for any reason by giving you written notice;

(q) we may require that security be provided by you in support of the Credit Facilities;

(r) you must notify us of any facts that may reasonably affect our decision to provide Credit Facilities to you at the time an Order is submitted; and

(s) you are liable to pay our reasonable costs with respect to collecting any overdue monies, including legal fees, debt collection costs and payment of our administrative costs.

(6.5) Notwithstanding clause 6.3, we may demand immediate payment of all amounts outstanding (whether or not then due or payable) if:

(t) you do not comply with these Trading Terms;

(u) we consider your creditworthiness has become unsatisfactory;

(v) one or more Insolvency Events occur; or

(w) the Credit Facilities are terminated by us and notified to you in writing.

(6.6) For any overdue accounts, any discount appearing on the invoice for which payment is overdue will no longer be available to you and the non-discount price on the invoice must be paid.

(6.7) Without limiting any of our rights, we may charge interest at a rate of 18% per annum calculated daily and compounded monthly on any overdue amounts not paid by you by the date for payment on and from the date the monies first became due to us. 

(7) Limitation of liability

(7.1) Subject to any rights you have under consumer protection laws, Gro-Link excludes to the full extent possible, all implied terms and warranties whether statutory or otherwise, relating to the subject matter of these Trading Terms.

(7.2) Our liability to you for loss or damage of any kind arising out of these Trading Terms will be reduced or limited to the extent (if any) that you directly or indirectly cause or contribute to any of the loss or damage.

(7.3) Subject to clause 7.4 and any other applicable laws, you represent and warrant to us that Gro-Link, its employees, contractors and/or agents will not be liable to you for any expense or injury (including indirect and consequential loss such as loss of revenue, profits, anticipated savings, goodwill, business opportunity or injury to your reputation) in contract, tort, under statute or otherwise unless such loss arises as a result of our negligence or wilful misconduct.

(7.4) The Consumer Guarantees only apply in circumstances where you acquire the Products as a Consumer in accordance with the ACL. In circumstances where the Consumer Guarantees are applicable, to the maximum extent permitted by law we limit our liability for a breach of a Consumer Guarantee to replacing the relevant Products or refunding the price of the relevant Products at our election.

(8) PPSA

(8.1) You agree and acknowledge these Trading Terms give rise to a security agreement and you grant Gro-Link a Security Interest in favour of Gro-Link over all Products and the proceeds of sale of those Products where the Products delivered to you have not been paid in full.

(8.1) While any payment amount under these Trading Terms remains outstanding, you:

(x) warrants that the Products are not and will not be used for any personal, household or domestic purposes;

(y) authorise us to do anything which we consider reasonably necessary or desirable to affect the registration of our Security Interest on the Personal Property Securities Register to ensure that it is enforceable, perfected and otherwise effective and you agree to provide all assistance required to facilitate this;

must immediately provide us with a copy of any notice you receive under section 64 of the PPSA; and

(z) irrevocably authorises us if Gro-Link becomes entitled to repossess any or all of the Products, to enter upon any premises where we reasonably believe any of the Products are located and remove them.

(8.3) The parties agree that the following provisions of the PPSA do not apply to the enforcement by Gro-Link of its Security Interest in the Products: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA

(9) General

(9.1) (Entire Agreement) These Trading Terms constitute the entire agreement between the parties as to its subject matter and supersedes any prior understanding or agreement between the parties.

(9.2) (Variation) Gro-Link reserves the right to amend these Trading Terms from time to time by giving you written notice.

(9.3) (Severance) If any provision in these Trading Terms is held invalid, unenforceable or illegal for any reason, that provision will be deleted and the remaining provisions of these Trading Terms will remain in full force.

(9.4) (Assignment) You may not assign any rights under these Trading Terms without our prior written consent. 

(9.5) (Privacy) If you provide us with any ‘Personal Information’, as that term is defined in the Privacy Act 1988 (Cth), our Privacy Policy will govern how we will use or disclose that information. Our Privacy Policy can be found at www.grolink.com.a.

(9.6) (Waiver) A failure or delay by Gro-Link to exercise a power or right under these Trading Terms does not constitute as a waiver of that power or right.

(9.7) (Governing Law) These Trading Terms are governed by, construed and enforced in accordance with the laws of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts of Victoria, Australia.

(10) Definitions

(10.1) Defined terms in these Trading Terms have the following meaning:

(a) ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(a) Charges has the meaning set out in clause 5.3; 

(a) Consumer has the meaning attributed to that term in the ACL;

(a) Consumer Guarantees means the statutory guarantees in the ACL;

(a) Credit Application means a Gro-Link credit application form submitted by a customer to Gro-Link for credit facilities relating to Order(s) for Products;

(a) Gro-Link, we and/or us means M. Fragapane & Sons Pty Ltd (ACN 083 207 489) as trustee for the Fragapane Trading Trust (ABN 46 125 098 640) trading as Gro-Link Nursey;

(a) GST means a tax, levy, duty, charge or deduction, together with any related additional tax, interest, penalty, fine or other charge, imposed by or under the GST Law;

(a) GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(a) Insolvency Event means the winding up, dissolution or cessation of business, appointment of an administrator, liquidator, receiver or official manager, assignment for the benefit of creditors, scheme or arrangement with creditors, insolvency and bankruptcy of a person;

(a) Order means an order for the purchase of Products as communicated by you to Gro-Link;

(a) PPSA means the Personal Property Securities Act 2009 (Cth); 

(a) Products means any seedlings or other goods supplied by Gro-Link to you; 

(a) Security Interest has the meaning attribute to that term in the PPSA; and

(a) Trading Terms means these terms and conditions for sale of the Products to you.

These Trading Terms were last updated: 29 October 2020