Terms & Conditions

1. THE AGREEMENT
1.1. These Terms and Conditions and the material, information and
further conditions contained in the Invoice to which this
document is attached (“Invoice”), or the Credit Application to
which this document is attached (“Credit Application”),
constitute the Agreement between Harry’s Wholesale Nursery
Pty Ltd (“Harry’s”) and the customer (as named on the invoice)
(“Customer”) for the supply from Harry’s to the Customer of the
products described on the invoice (“Products”).
1.2. In the event of any inconsistency between these Terms and
Conditions and the further conditions contained in the Invoice
or the Credit Application, these Terms and Conditions shall
prevail.
1.3. These Terms and Conditions, the Invoice and Credit Application
comprise the whole of the Agreement between Harry’s and the
Customer (“the Agreement”), and all other conditions,
representations or warranties not contained in these Terms and
Conditions, the Invoice and the Credit Application do not apply
to the Agreement.
2. THE PRODUCTS
2.1. In the event that Harry’s supplies Products to the Customer, the
Products to be supplied by Harry’s to the Customer are as
specified in the Invoice. The Customer acknowledges that:
2.1.1. they are satisfied from their own enquiries that the
product specifications are correct and appropriate for
the purposes for which the Customer requires the
Products;
2.1.2. the quantity of Products specified has been calculated
and verified by the Customer; and
2.1.3. the Customer has no right to return the Products to
Harry’s or to claim any credit for returned or unused
Products.
2.2. Harry’s does not accept liability or responsibility if the product
specifications or the Customer’s calculation of the quantity of
Products does not meet the Customer’s own needs or
requirements. Any liability in respect of the supply of the
Products is limited in the manner set out in this Agreement.
2.3. The Customer acknowledges that the Products are natural
goods, including but not limited to, flowers, plants, seeds, soil
and other landscaping goods, which are subject to variations in
colour and size or other natural qualities. The Customer agrees
that Harry’s is not liable or responsible for any natural variations
in the Products and is not required to offer a refund or return.
3. PAYMENT AND TRADING TERMS
3.1. The price payable by the Customer to Harry’s for the purchase
of the Products is as prescribed in the Invoice.
3.2. Except as provided for in the Invoice or as provided in clause
3.4, the price payable must be paid in full prior to delivery or
collection of the Products.
3.3. Where Products and/or Services are ordered by a Customer in
advance of delivery or collection, then the Customer must pay
a deposit of ten per cent (10%) of the purchase price at the time
the order is placed, unless Harry’s agrees to waive this
requirement. At Harry’s direction, any such deposit shall be
refundable on cancellation of the order if Harry’s is not itself
committed to the supplier to take up the order.
3.4. Where Harry’s agrees to grant credit to a Customer, in the
absence of written agreement to the contrary, the price must
be paid in full within 30 days of delivery of the Products, failing
which the Customer must pay interest to Harry’s on the unpaid
price calculated from the date for payment until the date the
amount owing is paid at a rate of interest equivalent to the Cash
Rate Target set by the Reserve Bank of Australia at the date for
payment, plus two per cent (2%).
3.5. If payment for any amount due under this Agreement is not
made in accordance with the terms of this Agreement:
3.5.1. Harry’s may terminate this Agreement;
3.5.2. the Customer will be liable to pay interest in
accordance with clause 3.4 above; and
3.5.3. the Customer will be liable to pay the reasonable costs
and charges Harry’s incurs in recovering or attempting
to recover the overdue amount, including all
mercantile or debt collection fees, commission and
any legal or court costs.
3.6. In the event that the Customer requests to return the Products
to Harry’s, Harry’s is only required to do so if the request is
made within twenty-four (24) hours’ and the Products (being
perishable goods) are in a state capable of being resold. No
liability is accepted by Harry’s for Products not capable of being
returned for any reason.
4. WARRANTIES AND CONDITIONS
4.1. The Customer warrants to Harry’s that it has received the
Products for the purposes of a business and/or for re-supply in
trade and to the extent permitted by law, no warranty is given
by Harry’s as to the quality or suitability of the Products and/or
the Services for any purpose, and any implied warranty is
expressly excluded.
4.2. Apart from any warranties given in this clause and any other
warranties implied by statute, Harry’s gives no further
warranties and the Customer acknowledges that in entering
into this Agreement they have not relied on any warranties by
or on behalf of Harry’s which are not recorded in this
Agreement.
4.3. To the extent that the law permits, Harry’s liability for any
breach of warranty contained or implied in this Agreement, and
for any other breach of this Agreement, is limited to, in Harry’s
absolute discretion, one of the following:
4.3.1. replacement of the Products or the supply of
equivalent products; or
4.3.2. payment of the cost of either replacing the Products or
the supply of equivalent products.
5. TITLE AND RISK
5.1. The Customer and Harry’s agree that ownership of the Products
remains with Harry’s until Harry’s has received all amounts
owing for any and all Products supplied to the Customer, and all
other obligations due to Harry’s are met in respect of all
contracts or agreements between Harry’s and the Customer. In
addition to any right of lien or other security to which Harry’s
may be entitled to by law or under this Agreement, Harry’s is
entitled to a general lien on all Products in Harry’s or the
Customer’s possession, even if the Products or some of them
may have been paid for, against any amount outstanding under
this Agreement or otherwise owing from the Customer to
Harry’s.
5.2. The Customer consents to Harry’s effecting a registration on the
Personal Properties and Securities Register (“PPSR”) in relation
to any security interest contemplated by this Agreement and
the Customer agrees to provide all assistance reasonably
required to facilitate this. The Customer further waives any 

right to receive notice of a verification statement in relation to
any registration on the PPSR.
5.3. It is further agreed that:
5.3.1. where practicable the Products shall be kept in the
Customer’s possession until Harry’s have received
payment, and all other obligations of the Customer are
met;
5.3.2. until such time as ownership of the Products passes
from Harry’s to the Customer, Harry’s may give notice
in writing to the Customer to return the Products to
Harry’s. Upon such notice the rights of the Customer
(or any third party) to the obtain ownership or any
other interest in the Products shall cease;
5.3.3. if the Customer fails to return any Products to Harry’s,
then Harry’s (or its agent) may enter upon and into
land and premises owned, occupied or used by the
Customer, where the Products are situated and take
possession of the Products;
5.3.4. the Customer is only a bailee of the Products and until
such time as Harry’s has received payment in full for
all of the Products then the Customer shall hold any
proceeds from the sale or disposal of the Products
(and any insurance proceeds) up to and including the
amount the Customer owes to Harry’s for the
Products, on trust for Harry’s;
5.3.5. the Customer will not deal with the money of Harry’s
in any way which may be adverse to Harry’s;
5.3.6. the Customer will not charge the Products in any way
nor grant nor otherwise give any interest in the
Products while the Products remain the property of
Harry’s;
5.3.7. Harry’s may recover from the Customer the price of
the Products sold notwithstanding that ownership of
the Products may not have passed; and
5.3.8. notwithstanding that ownership of the Products
remains with Harry’s until such time as that provided
for in this clause 5.3, all risk associated with the
Products passes to the Customer upon delivery.
6. DEFAULT
Without prejudice to any other remedies Harry’s may have,
Harry’s will be entitled to cease supply of the Products or the
further supply of Products to the Customer and all amounts
owing to Harry’s, whether pursuant to the Invoice or otherwise,
will become immediately payable (whether or not due for
payment) in the event that:
6.1. any money payable to Harry’s becomes overdue, or in Harry’s
opinion the Customer will be unable to meet payments as they
fall due;
6.2. the Customer becomes insolvent, or 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
under the laws relating to insolvency; or
6.3. a receiver, manager, administrator, liquidator (provisional or
otherwise) or similar person is appointed in respect of the
Customer or any asset of the Customer.
7. SECURITY AND CHARGE
Without prejudice to any other remedies Harry’s may have, and
despite anything to the contrary in this Agreement, the
Customer:
7.1. charges to Harry’s all of its present and future right, title and
interest in any real property to secure payment of all monies
and actual or contingent liabilities owed or payable to Harry’s;
7.2. acknowledges Harry’s right to lodge a caveat on title to any real
property in which the Customer has an interest (now or in the
future) as described in clause 7.1 above;
7.3. agrees to execute a mortgage in favour of Harry’s over any real
property referred to in clause 7.1 above in a form approved by
Harry’s solicitors, upon request by Harry’s, and to do or cause
to be done all acts and things that are necessary to give effect
to such mortgage and the charge referred to in clause 7.1
above;
7.4. should Harry’s elect to proceed in any manner in accordance
with this clause 7, shall indemnify Harry’s from and against all
of Harry’s costs and disbursements arising therefrom or in
connection therewith, including legal costs on an indemnity
basis; and
7.5. irrevocably nominates, constitutes and appoints Harry’s or
Harry’s nominee as the Customer’s attorney to perform all
necessary acts to give effect to the provisions of this clause 7.
8. DEFINITIONS
8.1. “Customer” means the person, business or company which is
supplied goods by Harry’s or is named on the invoice.
8.2. “Harry’s” means Harry’s Wholesale Nursery Pty Ltd ACN
004017038.
8.3. “Products” means those products or goods itemised on the
Invoice.
9. GENERAL
9.1. All orders placed with Harry’s shall only be accepted subject to
these Terms and Conditions. Harry’s reserves the right to
change prices without notice. Further, Harry’s may at any
time, and from time to time, alter these Terms and Conditions
which shall apply after notification by Harry’s to the Customer.
9.2. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, then such provision shall be
severable, and its severance will not affect the enforceability
of the remaining provisions of this Agreement.
9.3. In this Agreement, where the Customer comprises more than
one party, those parties will be bound by this Agreement
jointly and each of them severally.
9.4. This Agreement shall be interpreted according to the laws of
New South Wales and the parties irrevocable submit
exclusively to the jurisdiction of the courts and tribunals of
New South Wales to determine any dispute between them.
9.5. The failure of Harry’s to enforce any provision of this
Agreement will not be treated as a waiver of that provision,
nor shall it affect Harry’s right to subsequently enforce that
provision.
9.6. Neither party shall be liable for any default due to any act of
God, war, terrorism, strike, lock-out, industrial action, fire,
flood or storm.