mountain gem

kilby Terms & Conditions

1. 1.    Application of Terms and Conditions

   1. These terms and conditions of sale apply to and govern all tenders and quotations submitted by, all orders placed with, and all contracts entered into by The “The Tree Shop Pty Limited”   ACN 134 851 764 (“THE TREE SHOP”) whereby goods and/or services are supplied, provided and/or delivered (“supply”   or   “supplied”) by THE TREE SHOP(“Agreement”).
   2. Any Agreement may be varied only with THE TREE SHOP’s prior written consent.
   3. To the extent that any conflict exists between these terms and conditions of sale (or as they may be varied in accordance with this clause (1)) and any other documentation or correspondence forming part of any agreement these terms and conditions of sale (or as they may be varied in accordance with this clause (1)) shall be paramount and prevail.
   4. Any order or offer made by any purchaser shall not be binding on THE TREE SHOP until accepted by THE TREE SHOP in writing (which includes but is not limited to the issuing of an invoice by THE TREE SHOP) or in such manner as THE TREE SHOP in its sole discretion determines.
   5. A tender or quotation submitted by THE TREE SHOP may at any time prior to acceptance of an offer by THE TREE SHOP in respect of the supply of goods and/or services be varied or withdrawn by THE TREE SHOP. Clerical, typing or other errors made in, or in respect of, any tender or quotation shall be subject to correction by THE TREE SHOP and the corrected tender or quotation shall apply.
   6. To the extent that there is any inconsistency existing between any terms and conditions appearing in a purchaser’s order or any other document and these terms and conditions of sale then these terms and conditions shall only apply and the acceptance by a purchaser of the supply by THE TREE SHOP of goods and/or services the subject of such an order shall constitute an acceptance by the purchaser of the supply by THE TREE SHOP of such goods and/or services solely on these terms and conditions of sale.
   7. This Agreement replaces and supercedes in their entirety any previous communications, representations, inducements, undertakings, agreements, arrangements and terms and conditions of sale published, issued or used whether in writing or otherwise between THE TREE SHOP or any division or subsidiary of THE TREE SHOP and the purchaser or their respective officers, employees or agents, in respect of the supply of goods and/or services by THE TREE SHOP.
   8. In this Agreement, unless the context requires otherwise:
      1. “GST” means Goods and Services Tax or other tax that is substituted or replaces the GST tax.
      2. “the purchaser” means any person or persons, company or business entity to whom THE TREE SHOP sells or supplies, or proposes to sell or supply, goods or services.
   • “goods” means the goods or products supplied or sold by THE TREE SHOP to the purchaser from time to time.
   1. “services” means any services provided by THE TREE SHOP. Application of Terms and Conditions

   2.    Period of the Quotation or Tender

   Subject to clause 1(e) a quotation or tender submitted by THE TREE SHOP shall remain valid for 30 days from the date of such quotation or tender.

   3.    Price

   1. The prices quoted by THE TREE SHOP, in the price list, for the supply of goods excludes, as appropriate but subject to the other provisions of this clause 3, the cost of transport to the agreed place of delivery and maintenance costs.
   2. The prices quoted by THE TREE SHOP for the supply of goods and/or services excludes goods and services tax (“GST”) and the purchaser must also pay to THE TREE SHOP an additional amount in respect of the impact of GST on THE TREE SHOP, calculated by multiplying the price by the prevailing GST rate.
   3. A delivery service can be provided by THE TREE SHOP to the Melbourne metropolitan area being an area no greater than 50km from THE TREE SHOP located at 373 Canterbury Road, Surry Hills, Victoria, 3127, (“Melbourne Metropolitan Area”) at a reasonable cost to the purchaser with prices varying depending on the size of the order and delivery location. Deliveries outside the Melbourne Metropolitan Area or interstate can be organized with prices being made available upon application by the purchaser. It is essential that there is a point of contact at the delivery site which must be communicated to THE TREE SHOP at least 24 hours prior to the driver’s arrival.
   4. Any additions or increases in the cost of the supply of goods and/or services as a result of any additions or increases in charges, taxes (including the rate of GST) or costs associated with manufacture or supply of goods and/or services by THE TREE SHOP, including without limitation increases due to variations in exchange rates, the cost of materials or labour and/or the cost of conforming with any relevant legislation, court orders, regulations or bylaws, between the date of THE TREE SHOP’s relevant quotation or tender or, where there is no such quotation or tender, from the date of THE TREE SHOP’s acceptance of the purchaser’s order, as the case may be, and the date of supply of the relevant goods and/or services shall be borne by the purchaser. In addition, any credit card fees or bank charges associated with any payment by the purchaser to THE TREE SHOP for goods and/or services shall be borne by the purchaser.
   5. The prices quoted by THE TREE SHOP shall only apply to the specific goods and quantities of goods specified in such quotation or tender or accepted order.
   6. Unless otherwise stipulated all references to dollars are references to the lawful currency of Australia

   4.    Payment

   1. The purchaser shall be invoiced at either the time of acceptance by THE TREE SHOP of an offer or order placed by a purchaser, immediately prior to delivery of goods or supply of services or as THE TREE SHOP in its sole discretion considers appropriate and, unless contrary arrangements are made in writing whether pursuant to clause 4(c) or otherwise, all invoices issued by THE TREE SHOP are payable in full together with any other amounts payable under this Agreement on or before delivery by way of cash , visa, mastercard, bankcard and direct deposit . A reference in this clause 4 (including the sub-clauses below) to “delivery” includes collection by or on behalf of a purchaser.
   2. Cheque payments will only be accepted if the funds are cleared by THE TREE SHOP’s bank (three working days) prior to dispatch of the goods. Cheque payments will not be considered payment in full until they have been cleared in THE TREE SHOP’s Bank Account. For direct deposits a faxed copy of the lodgment receipt must be received by THE TREE SHOP prior to the dispatch of goods.
   3. Where THE TREE SHOP has confirmed in writing that payment on or before delivery in accordance with clause 4(a) is not required for particular orders, then unless otherwise agreed in writing, all such orders, where applicable, shall be due and payable within 30 days of the date of invoice issued for those orders, or as THE TREE SHOP in its sole discretion considers appropriate. Any invoices for orders or other amounts payable hereunder that remain unpaid outside THE TREE SHOP trading terms will attract penalty interest to be calculated in accordance with clause 4(d).
   4. The purchaser shall pay interest to THE TREE SHOP on all monies outstanding from the date that is 30 days after the date of invoice or, for a purchaser who has a line of credit/account with THE TREE SHOP, 30 days after the date of statement/account issued by THE TREE SHOP (as the case may be) (“the interest date”) calculated at monthly rests at the rate of the maximum per annum Reference Lending Rate published by the Commonwealth Bank of Australia Limited from time to time on the interest date plus 2%. Payments received by THE TREE SHOP shall be credited first against any interest accrued. At the option of THE TREE SHOP in its absolute discretion, interest may be capitalised monthly. Interest on overdue amounts shall not merge with interest recoverable under a judgment in respect of an action for any overdue account monies.
   5. The purchaser shall not (nor shall it be entitled to) set off or deduct from any amount payable to THE TREE SHOP under any agreement, any amounts payable by THE TREE SHOP to the purchaser under these terms and conditions of sale or any agreement.
   6. Any costs incurred by THE TREE SHOP in relation to the engagement of debt recovery agencies for outstanding monies will be charged to and recoverable in full from the purchaser.

   5.    Credit

   1. Any purchaser wishing to trade with THE TREE SHOP on any form of credit must fully read and agree to the terms of this Agreement, and complete the application for credit form used by THE TREE SHOP from time to time in a true and accurate way and return it to THE TREE SHOP.
   2. THE TREE SHOP may agree to provide credit or may decline to provide credit to the purchaser without reasons.
   3. All financial and other information provided by the purchaser to THE TREE SHOP must be fully accurate and up to date and the purchaser acknowledges confirms and agrees that THE TREE SHOP will rely upon all information provided to it. THE TREE SHOP is authorised to make all enquiries about the purchaser in relation to their application for credit and their continued request for credit from time to time.
   4. Any purchaser who is a corporation agrees that its directors and or shareholders may, at THE TREE SHOP’s unfettered discretion, be required to guarantee the purchase of any goods and/or services from THE TREE SHOP and agrees to provide such a guarantee if the purchaser executes the relevant application for credit form used by THE TREE SHOP from time to time. Where the purchaser is a natural person, the purchaser warrants and declares that the credit provided is to be applied wholly or predominantly for business or investment purposes (or for both purposes) and not for personal, domestic or household purposes.
   5. Disruption to supply (without liability to THE TREE SHOP) will occur if the purchaser’s account is overdue at any time whether in whole or part or the credit limit is exceeded. In this case, the account may be placed on hold at the sole and unfettered discretion of THE TREE SHOP. Any acceptance by THE TREE SHOP of payment or part payment by the purchaser shall not prejudice THE TREE SHOP’s rights in relation to recovery of any other unpaid monies owing by the purchaser to THE TREE SHOP.

   6.    Delivery

   1. Unless otherwise agreed, where the purchaser has nominated in writing an address to THE TREE SHOP (“the nominated address”), THE TREE SHOP shall deliver the goods to the nominated address.
   2. THE TREE SHOP shall not be responsible for unloading goods at the point of delivery.
   3. Where goods are to be delivered to a nominated address THE TREE SHOP shall be deemed to have delivered the goods in accordance with the contract if it obtains a receipt or signed delivery docket for the goods from any person at that address.
   4. If a nominated address is unattended or if delivery cannot otherwise be effected or the goods cannot be dispatched due to any act, matter or thing beyond the control of THE TREE SHOP, THE TREE SHOP in its sole discretion may store the goods at the purchaser’s risk and expense or take such other steps as it considers appropriate.
   5. THE TREE SHOP reserves the right to refuse to supply goods and/or services under an agreement if a purchaser is in default of any of its payment obligations under any one or more Agreements.
   6. THE TREE SHOP reserves the right to choose or vary the means, route and procedure of delivery, transport and handling of goods. If the purchaser requires a different means, route or procedure, the cost of delivery shall be borne by the purchaser notwithstanding any other provision of these terms and conditions of sale.
   7. THE TREE SHOP may supply goods and/or services in instalments and these terms and conditions of sale shall apply to each supply of goods and/or services by instalments as if each instalment constituted supply under a separate agreement and in particular the purchaser shall pay THE TREE SHOP for each instalment of goods and/or services so supplied irrespective of any failure or delay in the supply of any other instalment of goods and/or services.
   8. The risk of loss or damage to goods shall pass to the purchaser at the time of delivery or when the purchaser is notified that the goods are available for dispatch, as the case may be.
   9. THE TREE SHOP shall make all reasonable efforts to meet any date for supply of goods and/or services agreed between THE TREE SHOP and the purchaser. Where a delay in supply is caused by any act, matter or thing beyond the control of THE TREE SHOP, including without limitation a variation requested by the purchaser, the time for supply shall be extended by a period agreed between THE TREE SHOP and the purchaser or, failing such agreement, by a reasonable period. In no event shall THE TREE SHOP incur any liability due to any failure on its part to supply goods/and or services by an agreed date.
   10. THE TREE SHOP may in its discretion supply goods and/or services prior to any agreed date for such supply (including any extensions of that date).
   11. Hold orders (being orders placed by the purchaser but held / stored by THE TREE SHOP for a period before they are dispatched for delivery to the purchaser (“Hold Orders”)) are offered by THE TREE SHOP on the following conditions:
       1. Stock will be held for a period of one month (at no cost to the purchaser) from confirmation of the order (“the Free Holding Period”).
       2. If at the time of placing an order a purchaser requires THE TREE SHOP to retain any or all of the goods beyond the Free Holding Period a deposit of 50% of the total invoice value is required at the time of placing the order.
   • At the expiration of the Free Holding Period the following amounts are payable:
     (A) A deposit of 50% of the total invoice value is payable on or before close of business on the day after the expiry of the Free Holding Period unless already paid pursuant to clause 5(k)(ii) above; and
     (B) a holding fee equal to 5% of the total invoice value will be charged to the purchaser as a maintenance fee. This fee is charged on the 1st of each calendar month commencing on the first day of the month immediately following the expiry of the Free Holding Period and is due on the first day of each such month or prior to dispatch (whichever comes first).
   1. Goods will not be held beyond one day after the expiry of the Free Holding Period unless a 50%deposit has been received by THE TREE SHOP on or before the close of business on the day after the expiry of the Free Holding Period.
   2. Orders will only be held for a maximum of 3 months from the confirmation of the order (that is, including the Free Holding Period). If the goods are not delivered or collected by or on behalf of the purchaser prior to the expiry of the said 3 months, the order shall be deemed cancelled and the goods deemed abandoned by the purchaser. If an order is cancelled the deposit and maintenance fee is non-refundable as this covers losses including but not limited to the cost of lost business due to an inability to supply other purchasers.
   3. The balance of the total invoice price and any other amounts due under this clause (excluding any deposit and/or holding fee which are payable in accordance with clauses 5(k)(ii) and/or 5(k)(iii)), is payable in accordance with clause 4.

   7.    Claims

   1. No claim in relation to damaged goods or shortage of volume, length, quantity or weight may be made unless such claim is made by the purchaser in writing to THE TREE SHOP within 7 days of delivery of the goods to the purchaser.
   2. THE TREE SHOP’s only liability for any such loss or damage shall be, in its sole discretion, to replace or repair goods lost or damaged or pay for such goods to be replaced or repaired.
      1. Goods may only be returned for credit upon the written agreement of THE TREE SHOP. Written notification of a request for credit must be received by THE TREE SHOP management within 7 days of delivery of the goods to the purchaser. In all cases the original invoice or delivery docket must be quoted and return freight must be prepaid by the purchaser.
      2. Goods specifically ordered by THE TREE SHOP for the purchaser will not be accepted for credit.
   • THE TREE SHOP reserves the right to charge a restocking fee on goods accepted for credit.
   1. All goods returned for credit must be in their original pack and in a completely resalable condition
   2. THE TREE SHOP reserves the right to impose special conditions on the return of stock.

   8.    Packing

   THE TREE SHOP uses and at all times retains ownership of “Rocket Pots ©” air pruning containers which are used to grow a majority of its advanced trees. Where any products are delivered in Rocket Pots ©, THE TREE SHOP requires that all Rocket Pots © be returned back to THE TREE SHOP (at 8 Minogue Street, Kew) by the purchaser within 60 days from date the purchaser receives the goods failing which, the purchaser will be required to pay THE TREE SHOP on demand, the replacement cost of the same quantity of Rocket Pots © the purchaser failed to return within the said 60 days. If the purchaser wishes to retain the Rocket Pots © they can be purchased from THE TREE SHOP for an additional cost which will be provided once written application is made by the purchaser to THE TREE SHOP. If the purchaser requires the goods to be provided in any other manner the cost of the packing shall be the responsibility of the purchaser.

   9.    Warranty

   1. Subject to clause 9(b) THE TREE SHOP warrants that goods or services supplied by it:
      1. 1. will be true to name and of good health at the earlier of the time of collection or on behalf of the purchaser or delivery.
         2. where the stock purchased does not meet the criteria at 9(i) then on receipt of a claim which must be lodged immediately on delivery of the goods and by no later than one business day after delivery, THE TREE SHOP will, at their discretion, replace the goods and or refund the purchase price.

   The purchaser shall immediately notify THE TREE SHOP in writing of any defect in the goods supplied by THE TREE SHOP. The purchaser shall not carry out any remedial work to allegedly defective goods without first obtaining the written consent of THE TREE SHOP to do so. The provisions of this clause 9(a) do not constitute a warranty in relation to the quality or fitness of the goods, or require THE TREE SHOP to repair or replace goods, or offer a refund in relation to goods, in circumstances other than those set out in Australian Consumer Law (to the extent that the Australian Consumer Law applies to the goods).

   1. The warranty referred to in clause 9(a) does not apply to goods which:
      1. are affected by any conditions beyond the control of THE TREE SHOP including but not limited to watering, soil preparation, drainage, planting and handling procedures, mulching, insect damage, site suitability, climate and weather. No warranty is given in respect of plant growth or description. Responsibility and liability for the goods ends for THE TREE SHOP when goods are received and accepted by the purchaser.
      2. the defect arises from any act, matter or thing beyond the control of THE TREE SHOP or the goods are, or become, the subject of any product or safety recall, whether threatened or implemented and howsoever arising;
   • the purchaser has in any way modified, serviced or repaired the goods without THE TREE SHOP’s prior written consent;
   1. the purchaser has not complied with any written or oral instructions from THE TREE SHOP concerning the planting and storing of the goods; or
   2. the purchaser is in default in the observance or performance of any other provisions of the Agreement to which such goods relate.
   1. The goods shall be warranted by THE TREE SHOP only to the extent that they are warranted by the supplier or manufacturer of them and THE TREE SHOP is able to pass on the benefit of such warranty to the purchaser. The period of such warranty shall not in any event, however, exceed the applicable period set out in clause 9(a). The purchaser must address issues relating to a manufacturer’s warranty with the manufacturer on the terms of that warranty.
   2. Subject to clause 9(e), THE TREE SHOP warrants that any services supplied by it shall be provided with due care and skill and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.
   3. Where such a course is permitted by law, the warranty referred to in clause 9(c) will not apply where:
      1. the goods are, or become, the subject of any product or safety recall, whether threatened or implemented and howsoever arising;
      2. THE TREE SHOP’s ability to supply services is adversely affected by:
         (A) defects in any materials supplied by the purchaser or a design or drawings provided by the purchaser; or
         (B) any act, matter or thing beyond the reasonable control of THE TREE SHOP; or
   • the purchaser is in default in the observance or performance of any provision of the Agreement to which such services relate.
   1. Where the purchaser acquires goods under an agreement for the purpose of resupply (including by way of hire or rental) to a consumer within the meaning of the ACL, the purchaser shall ensure that at or before the time such goods are acquired by the consumer it has provided the consumer a written notice of the current period, if any, during which THE TREE SHOP’s warranty in respect of such goods, as set out in the relevant provision of this clause 9, is available to the consumer.
   2. Subject to clauses 9(a), 9(b) and 9(c), THE TREE SHOP shall, where the agreement is for the supply of goods at its option repair or replace defective goods at its own expense but THE TREE SHOP shall have no liability for the cost of the delivery to THE TREE SHOP and/or removal of the defective goods nor the cost of re installation of the goods.

   10. Limitation of Liability

   1. Subject only to clauses 6, 8 and 9(c) and notwithstanding any other provision of this or any agreement or otherwise, if any liability on the part of THE TREE SHOP arises to or in favour of the purchaser (whether in contract, tort or otherwise) for any loss, damage, harm or injury arising out of or in any way connected with the supply of or failure in the provision of or the purported supply of goods and/or services by THE TREE SHOP – THE TREE SHOPs liability for all such loss, damage, harm or injury in all and any circumstances shall be limited in aggregate to the payment by THE TREE SHOP of a sum not exceeding 5% of the monies payable to THE TREE SHOP pursuant to the relevant agreement under which the goods and/or services were supplied.
   2. Any purchaser of goods or services from THE TREE SHOP agrees to release, hold, harmless and indemnify THE TREE SHOP, its officers, employees, servants, agents contractors, successors, heirs and assigness from and against all liabilities, claims, damages, losses, costs and expenses of whatsoever nature and howsoever occurring including without limitation loss of market, loss of profit, loss of use, loss of production or for any financial or economic loss including indirect or consequential loss or damage which may be suffered by the purchaser or by any third party arising out of or in any way connected with the supply of the goods or the performance of services by THE TREE SHOP, by reason of breach of these terms and conditions of sale, or of statutory duty or by reason of tort (including but not limited to negligence).
   3. Except as otherwise expressly provided in these conditions and subject to clause 10(d), all statements, representations, provisions, conditions, promises, undertakings, covenants and other provisions, express or implied (and whether implied by law or otherwise) relating to any quotations or tenders submitted by THE TREE SHOP, orders accepted by THE TREE SHOP, goods (whether as to their quality or merchantability, fitness for any purpose, correspondence with any description or sample or otherwise) and/or services or their supply, being provisions which might otherwise form part of these terms and conditions of sale or any agreement or be collateral to form part of any agreement that is collateral to these terms and conditions of sale or any agreement, are hereby excluded in their entirety and are of no effect whatsoever.
   4. The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law guarantee certain conditions, warranties and undertakings, and give the purchaser other legal rights, in relation to the quality and fitness for purpose of consumer goods sold in Australia. These guarantees cannot be modified nor excluded by any contract. Nothing in these terms and conditions purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded. Except as expressly set out in this Agreement and the Australian Consumer Law, THE TREE SHOP makes no warranties or other representations under this Agreement. THE TREE SHOP’s liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law. For the avoidance of doubt, these terms and conditions of sale do not, and no provision of these terms and conditions of sale will or purports to exclude, restrict or modify or have the effect of excluding, restricting or modifying:
      1. the application in relation to the supply of goods and/or services ofany provision of the ACL;
      2. the exercise of any right conferred by any such provision, or
   • any liability of THE TREE SHOP for bfreach of a condition or warranty implied by any such provision.
   1. Without limiting clause 8(d), where THE TREE SHOP sells goods to the purchaser, and the purchaser purchases them as a consumer, then the Australian Consumer Law provides certain guarantees in relation to the goods. The rights of the purchaser buying goods as a consumer include those set out in clause 8(f) below.
   2. THE TREE SHOP’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. The purchaser is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The purchaser is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Where THE TREE SHOP is permitted under the ACL to limit its liability for breach of a condition or warranty that is implied by the ACL, THE TREE SHOP’s liability shall be limited at THE TREE SHOP’s sole discretion to:
      1. in the case of goods:
         1. the replacement of the goods or the supply of equivalent goods; or
         2. the repair of the goods; or
   • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
   1. the payment of the cost of having the goods repaired;
   1. in the case of services:
      1. the supply of the services again by THE TREE SHOP; or
      2. the payment of the cost of having the services supplied again.
   2. To the full extent permitted by law:
      1. the purchaser acknowledges that it relies on its own skill and judgment in relation to goods and/or services supplied to it by THE TREE SHOP; and
      2. THE TREE SHOP shall be under no liability for any unsuitability for any purpose of the goods irrespective of any knowledge which it may possess as to the purpose for which the goods were required by the purchaser unless that purpose has been specifically notified to THE TREE SHOP in writing prior to the formation of the relevant agreement.
   • All liability of THE TREE SHOP shall cease at the end of the warranty period as stated in clause 9(a) and no claim shall be made against THE TREE SHOP after that date.
   1. To the extent permitted by statute, all warranties, conditions and guarantees (whether express, implied, or applied, and whether given by THE TREE SHOP, the manufacturer or a third party) and any obligation of THE TREE SHOP to repair or replace any goods are void in respect of any goods which the purchaser tampers with or alters.
   2. In this clause, “consumer” means:
      1. a person acquiring Goods of a kind ordinarily acquired for personal, domestic or household use or consumption; or
      2. a person acquiring Goods at a price not exceeding $40,000; or
   • the Goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads,
     but excludes a person acquiring the Goods, or holding himself or herself out as acquiring the Goods for the purpose of:
   1. re-supply; or
   2. using them up or transforming them, in trade or commerce, in the course of a process or production or manufacture or in the course of repairing or treating other goods or fixtures on land.

   11. Passing of Title

   1. 1. Notwithstanding that the purchaser has possession of the goods, title to the goods remains with THE TREE SHOP, and no legal or equitable interest or property in the goods whatsoever will pass to the purchaser, until:
         1. the full amount for the goods has been paid to THE TREE SHOP; and
         2. there is no money owing by the purchaser to THE TREE SHOP for any other goods delivered by THE TREE SHOP or on any account whatsoever;
   • the purchaser has met all other obligations due by the purchaser to THE TREE SHOP and paid all monies due by the purchaser to THE TREE SHOP in respect of all contracts for goods and/or services between the purchaser and THE TREE SHOP.
   1. Payment is not deemed to have occurred until funds have cleared in THE TREE SHOP’s account. Until title and property in the goods passes:
      1. the purchaser must hold the goods as bailee for THE TREE SHOP, mark the goods or store them separately and keep all necessary records so that the goods can at all times be identified and distinguished as the property of THE TREE SHOP, and refrain from mixing or intermingling the goods with any goods owned by the purchaser or by any other person;
      2. the purchaser acknowledges that a fiduciary relationship exists between the purchaser and THE TREE SHOP whereby, subject to the provisions of this clause, the purchaser holds the goods and/or service and/or any other proceeds, rights and claims to the goods and/or services, or any new product created by the purchaser using the goods and/or services, in a fiduciary capacity for THE TREE SHOP.
   2. Where title and property in any particular goods has not passed, the purchaser may nevertheless dispose of those goods to a bona fide sub-purchaser (“sub-purchaser”) provided that:
      1. such disposals are in the ordinary course of the purchaser’s business; and
      2. no event as specified in clause 14(a) has occurred. The purchaser must not deal with those goods if both conditions are not met. It is agreed that by the disposal of such goods, the purchaser assigns to THE TREE SHOP (the assignment being absolute and not by way of security) all monetary proceeds received by or on behalf of the purchaser in respect of the goods.
   3. The purchaser must observe the following fiduciary obligations with respect to any disposal of goods to a sub-purchaser authorised by clause 11(c):
      1. the purchaser must maintain records of all disposals of the goods and must permit inspection of these records by THE TREE SHOP promptly upon request; and
      2. the purchaser must hold the assigned proceeds on trust for THE TREE SHOP and separate from its own monies, and must account to THE TREE SHOP for those proceeds. The total debts owing by the purchaser to THE TREE SHOP will be reduced by the proceeds of sales for which the purchaser has accounted to THE TREE SHOP in accordance with this clause 11(d). If these proceeds exceed the total debts owing by the purchaser to THE TREE SHOP at any time, the purchaser is entitled to receive an amount equivalent to the amount of this excess as commission.
   4. If the purchaser produces a product (“the Product”) that utilizes or incorporates any of the goods as a component of the Product, the terms of this clause 11(e) pertaining to title and proceeds apply in the following manner:
      1. in the case of goods that can be removed from the Product without destroying or seriously injuring the goods or other components of the Product, the terms of clause 11 apply to the relevant goods without modification except for the references in clause 11(c) and (d) to proceeds, which are to be read as if these references were to the portion of each Product’s proceeds attributable to the value of the incorporated good;
      2. in the case of goods that cannot be removed from the Product without destroying or seriously injuring the goods or other components of the Product, the terms of this clause 11 apply subject to the modification that THE TREE SHOP becomes a co-owner of the Product at the time the relevant goods are incorporated into the Product, and THE TREE SHOP’s co-ownership share being in the proportion that the value of the goods bears to the value of the other components of the Product. The terms of this clause 11 apply subject to the references to the goods in clause 11 being read as references to THE TREE SHOP’s co-ownership share of the Product.
   5. In the event that the purchaser fails to make payment to THE TREE SHOP in accordance with this Agreement, or if the purchaser is a company which has made an application for and been granted a line of credit with THE TREE SHOP and commits any breach of the terms of that credit application with THE TREE SHOP, then THE TREE SHOP may revoke the right of the purchaser to sell, dispose of, or in any way deal with or use the goods and/or services, and request the purchaser to deliver immediately any goods and/or services in its possession or under its control directly to THE TREE SHOP or take possession of the goods and/or services from the purchaser in whatever manner it might think fit including but not limited to holding a lien over any item whatsoever of the purchaser’s relating to the goods and/or services provided by THE TREE SHOP and in the possession from time to time of THE TREE SHOP at the time of the breach of any term of this Agreement by the purchaser or its termination (without prejudice to any of THE TREE SHOP other rights or remedies).
   6. The purchaser indemnifies THE TREE SHOP, its officers, employees, servants, agents contractors, successors, heirs and assigness against any claim, action, damage, loss, liability, cost, expense, outgoing or payment which THE TREE SHOP suffers, incurs or is liable for in respect of THE TREE SHOP’s exercise of its rights under this clause 11.
   7. In the event that legal proceedings are instituted for the recovery of monies held in trust in accordance with this clause, the purchaser irrevocably acknowledges the existence of monies held on trust as described in this Agreement.

   12. Drawings, Documentation and Information

   1. Any descriptive and shipping specifications, illustrations, drawings, data, dimensions and weights, either submitted by THE TREE SHOP with a quotation or tender or otherwise provided by THE TREE SHOP to the purchaser, are illustrative and approximate only and do not form part of any agreement entered into between THE TREE SHOP and the purchaser unless expressly agreed in writing by THE TREE SHOP.
   2. Any drawings or other documents submitted and any information supplied by THE TREE SHOP to the purchaser remains the property of THE TREE SHOP and constitutes confidential information of THE TREE SHOP (to the extent that it is not in the public domain) and the purchaser shall keep all such confidential information confidential and shall not use such drawings, documents and information for any purpose other than that stipulated by THE TREE SHOP nor provide the same to third parties.
   3. Where any drawings or other documents submitted by THE TREE SHOP with or as a part of a quotation or tender are not incorporated into an agreement between THE TREE SHOP and the party to which such quotation or tender was submitted they shall be returned to THE TREE SHOP within 7 days of expiry of the quotation or tender or otherwise as reasonably required by THE TREE SHOP.
   4. Where drawings and/or other materials referred to in clause 12(a) form part of an agreement they shall be subject to recognized tolerances.

   13. Subject and Limit of the Offer

   1. Following its submission of a quotation or tender or its acceptance of an order THE TREE SHOP shall not be required to comply with any additional standards, specifications, rules or other requirements whatsoever whether proposed by the purchaser or otherwise and if any such additional standards, specifications, rules or other requirements are proposed to apply to such quotation or tender or order THE TREE SHOP reserves the right to decline to proceed with the quotation or tender or fill the order, vary the quotation or tender or order, or adjust the price of the goods and/or services the subject of the quotation or tender or order, in its sole discretion.
   2. THE TREE SHOP shall use all reasonable endeavors to comply with all relevant legislation, court orders, requirements or bylaws having application to the manufacture, delivery and/or supply of goods or services by it.
   3. Unless expressly stated in a quotation or tender, the price of goods does not include installation, erection or commissioning.
   4. Unless expressly stated in a quotation or tender the price of goods and/or services does not include training of the purchaser’s employees, servants or agents by THE TREE SHOP.
   5. Unless otherwise notified in writing by THE TREE SHOP to the purchaser goods are of standard design and THE TREE SHOP shall not be obliged to comply with tender specifications of minor importance to the operation of the goods.

   14. Termination

   1. THE TREE SHOP may terminate any agreement without notice if the purchaser:
      • . is in breach of any term of the agreement and fails to remedy the breach within 14 days of notice in writing by THE TREE SHOP specifying the breach and requiring the purchaser to remedy it;
   1. fails to make payment to THE TREE SHOP in accordance with this Agreement or a payment or amount payable by the purchaser to THE TREE SHOP is overdue in whole or part;
   2. has failed or refused to take delivery of goods the subject of the agreement and such failure or refusal continues for a period of 14 days after THE TREE SHOP has notified the purchaser that the goods are ready for delivery or dispatch, as the case may be, and/or the purchaser has failed or refused to allow THE TREE SHOP to supply services the subject of the agreement and such failure or refusal continues for a period of 14 days after THE TREE SHOP has notified the purchaser that it is ready, willing and able to supply such services; or
   • is declared bankrupt, resolves to go into liquidation or has a petition for bankruptcy or winding up presented against it or enters into a scheme of arrangement with its creditors or if any liquidator, provisional liquidator, administrator, receiver, receiver and manager or official manager is appointed in respect of the purchaser or if anything analogous occurs in respect of the purchaser.
   1. In the event of such termination:
      • . notwithstanding any provision of this Agreement to the contrary and notwithstanding that any period of credit previously granted by THE TREE SHOP may not have expired, all amounts payable to THE TREE SHOP in respect of any goods and/or services supplied by it to the purchaser shall be immediately due and payable; and
   1. THE TREE SHOP shall, after taking into account payments made by the purchaser to THE TREE SHOP, be entitled to be paid by the purchaser for work done and expenditure made under the agreement up to and including the date of termination; and
   2. the purchaser shall be liable for and shall pay to THE TREE SHOP on demand any direct and indirect loss suffered by THE TREE SHOP including without limitation THE TREE SHOP’s loss of profit on the agreement and all costs and expenses incurred or charged to THE TREE SHOP (in the case of legal costs on a full indemnity basis) in relation to the termination and any prior breach and in exercising any rights and remedies as a consequence of the termination and any prior breach including but not limited to costs and expenses as a result of attempts and/or actual recovery of any overdue amount or interest (including costs charged by any mercantile collection agency on lodgment of an overdue account); and
   • the purchaser expressly and irrevocably authorizes THE TREE SHOP to enter the premises of the purchaser and remove any goods that are owned by THE TREE SHOP equal to but not in excess of all monies owing at any given time to THE TREE SHOP by the purchaser.
   1. THE TREE SHOP may terminate this Agreement, terminate any credit terms; and/or refuse to supply any goods to the purchaser.
   1. Termination of the agreement pursuant to this clause 14 shall be without prejudice to the rights of THE TREE SHOP accruing up to the date of termination.

   15. Intellectual Property

   THE TREE SHOP does not guarantee that the supply by it and the use by the purchaser of the goods does not and will not infringe any patent, registered design, trademark or intellectual property rights of any third party whether such rights take the form of letters patent, registered designs, copyright, trade mark rights, or any other similar right.

   16. THE TREE SHOP’s Obligations

   Notwithstanding any other provision of these terms and conditions of sale if the purchaser breaches a term of an agreement THE TREE SHOP shall not be bound to perform its obligations under that agreement until the breach is remedied by the purchaser.

   17. Severance

   If any provision or part of any provision of these terms and conditions of sale is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision of these terms and conditions of sale.

   18. Waiver

   Any waiver or purported or implied waiver by THE TREE SHOP of strict compliance with these terms and conditions of sale shall not be deemed a waiver unless it is in writing and signed by an authorised officer of THE TREE SHOP and shall not prejudice the rights of THE TREE SHOP in respect of any breach of these terms and conditions of sale to which such waiver does not specifically relate.

   19. Proper Law

   All agreements shall be governed by the laws of Victoria and the parties agree to submit to the nonexclusive jurisdiction of the courts of that State and the courts of the Commonwealth of Australia having jurisdiction therein.

   20. Vienna Convention

   The United Nations Convention on Agreements for the International Sale of Goods (“the Vienna Convention”) shall not apply to any agreement entered into between THE TREE SHOP and the purchaser.

   21. Dispute Resolution

   Any dispute between the purchaser and THE TREE SHOP arising out of or in any way connected with an agreement which is not resolved by the purchaser and THE TREE SHOP within 14 days of a notice by either party to the other advising that it is a notice pursuant to this clause 21 shall be referred for determination to a person agreed between THE TREE SHOP and the purchaser or, failing such agreement, to the nominee of THE TREE SHOP, who shall act as an independent expert and not as an arbitrator and the experts written determination is final and binding on the parties.

   22. Survivorship

   Clauses 6,8, 9, 10, , 14 18, 20, 24, 25 and 26 shall not merge but survive completion of the agreement.

   23. Force Majeure

   Should THE TREE SHOP be delayed, hindered, or otherwise prevented from complying with the terms of this Agreement by reason of events or circumstances beyond the reasonable control of THE TREE SHOP including but not limited to Acts of God, wars, riots, acts of terrorism, strikes, lockouts, trade disputes or labour disturbances, breakdown of plant or machinery, accident, storm, fire, flood, difficulties in obtaining materials, transport or labour or any other circumstances affecting the supply of goods or services, then THE TREE SHOP shall not be liable to the purchaser for any loss or damage which may be suffered by the purchaser whether as a direct or indirect result of any such occurrences.

   24. Privacy Act Consent – Credit Reports

   The purchaser (and each of its individual directors, partners or proprietors) and each person signing as guarantor of the purchaser’s obligations under the credit application (each a “Guarantor”) acknowledges and agrees that THE TREE SHOP and any related bodies corporate:

   1. may give certain information about them to related bodies corporate of THE TREE SHOP, a credit reporting agency, other credit providers, collecting agencies of legal firms (some being located in foreign countries) in order to obtain a credit report about them or to recover money which is due and payable from them. (The information which may be given is covered by s20 of the Privacy Act 1988 (Cth)(the “Privacy Act”) and may include, as relevant, identity particulars and the fact that the purchaser has applied for credit or the Guarantor has offered to act as a guarantor); and
   2. may in assessing whether to grant the purchaser’s credit application or whether to accept the Guarantor as a guarantor, seek and obtain information about them from a credit reporting agency or another credit provider and may give information about them to another credit provider. (The information may include anything about credit worthiness, history, standing or capacity (including information about commercial credit) which credit providers are permitted by the Privacy Act to obtain or receive.)

   25. Personal Property Security Act

   The purchaser agrees and undertakes to do anything THE TREE SHOP requires (such as obtaining consents and signing and producing documents) in connection with the registration of this document or any other document on any register established pursuant to the Personal Property Securities Act 2009 (Cth) as amended from time to time (the “PPSA”). In the event the purchaser neglects or fails to deliver such document(s), the purchaser hereby appoints THE TREE SHOP to be the purchaser’s lawful attorney for the purpose of executing and registering such document(s).
   The purchaser agrees and acknowledges that:

   1. these terms and conditions constitute a security agreement for the purposes of section 20 of the PPSA and that a security interest exists in all goods (and their proceeds) previously supplied by THE TREE SHOP to the purchaser pursuant to this Agreement and in all future goods (and their proceeds) including commingled goods;
   2. where the purchaser is paid in respect of the goods so delivered, the purchaser must, as THE TREE SHOP’s fiduciary, keep any such proceeds in a separate account and account to THE TREE SHOP in respect of those proceeds;
   3. the purchaser contracts out of and waives its rights under the following provisions of Chapter 4 of the PPSA:
      • . receive a notice of intention of removal of accession (section 95);
   1. to receive a notice that THE TREE SHOP decides to enforce its security interest in accordance with land law (section 118);
   2. to receive notice on enforcement of security interests in liquid assets (section 120);
   • to receive a notice of enforcement action against liquid assets (section 121(4));
   1. to receive a notice to seize collateral (section 123);
   2. to receive notice on enforcement of security interests in liquid assets (section 125);
   3. to receive a notice of disposal of goods by THE TREE SHOP purchasing the goods (section 129);
   • to receive a notice to dispose of goods (section 130);
   • to receive a statement of account following disposal of goods (section 132(2))
   1. to receive a statement of account if no disposal of goods for each 6 month period (section 132(4));
   2. to receive notice for THE TREE SHOP to retain goods (section 134(2));
   3. to receive notice of any proposal of THE TREE SHOP to retain goods (section 135(2));
   • to object to any proposal of THE TREE SHOP to either retain or dispose of goods (section 137(2));
   • to redeem the goods (section 142);
   • to reinstate the security agreement (section 143); and
   1. to receive a notice of any verification statement (see section 157(1) and section 157(3).
   1. Where THE TREE SHOP has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
   2. Until ownership of the goods passes, the purchaser must not give THE TREE SHOP a written demand or allow any other person to give THE TREE SHOP a written demand requiring THE TREE SHOP to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the Act.
   3. It has received value as at the date of first delivery of the goods and has not agreed to postpone the time for attachment of the security interest (as defined in the Act) granted to THE TREE SHOP under these terms and conditions.
   4. The purchaser irrevocably grants to THE TREE SHOP the right to enter upon the purchaser’s property or premises, without notice, and without being in any way liable to the purchaser or to any third party, if THE TREE SHOP has cause to exercise any of THE TREE SHOP’s rights under section 123 and/or 128 of the Act, and the purchaser agrees to indemnify THE TREE SHOP, its officers, employees, servants, agents contractors, successors, heirs and assigness from any claims made by any third party as a result of THE TREE SHOP exercising such right.

   26. Confidentiality

   1. Except as required by law, this Agreement and subject to the PPSA, THE TREE SHOP and the purchaser agree to treat these terms and conditions as confidential.
   2. THE TREE SHOP and the purchaser acknowledge and agree that sub-clauses 26(a), 26(c) and this sub-clause 26(b) constitute a confidentiality agreement pursuant to section 275(6) of the PPSA.
   3. Neither THE TREE SHOP or the purchaser will disclose, send or make available any of the information referred to in section 275(1) of the PPSA to any person except as required by law, these terms and conditions and subject to the PPSA.

   27. Refund Policy

   THE TREE SHOP will refund a purchaser when

   1. the claim for refund is made within 14 days of the invoice date;
   2. in the case where the refund relates to a return of goods, the goods must not have been purchases by THE TREE SHOP specifically to fill a purchaser’s order;
   • the goods must be returned in the original packaging (if applicable):
   1. the goods must not be damaged:
   2. the goods must not have been used or exhibited, in the opinion of a THE TREE SHOP Manager. Any evidence of use and the goods must be accompanied by the original THE TREE SHOP invoice under which they were purchased by the purchaser. In the case where the refund relates to a claim for incorrect invoicing, the claim must be accompanied by the original invoice which evidences the incorrect pricing. In all cases the final judgment as to whether a claim for a refund should be allowed rests with the sole discretion of the THE TREE SHOP Manager or Director.Additional Conditions Applicable To Contracts Relating To Or Including Installation, Planting, Erection Or Commissioning Of Goods.

   28. Access To Site

   • . The purchaser shall permit THE TREE SHOP such access to the site as THE TREE SHOP requires to perform its work under the agreement and shall take all reasonable measures to avoid interference with the work of THE TREE SHOP including, without limitation, coordinating THE TREE SHOP’s work with that of others on the site.
   1. The purchaser shall provide without cost to THE TREE SHOP every facility for the performance of THE TREE SHOP’s work under the agreement including, without limitation, providing proper foundations to receive the goods the subject of the agreement (in clauses 28 and 29 called “the goods”), adequate cranage, lifting tackle and scaffolding and suitable protection for the goods from the time of delivery until the time of taking over and the proper fencing, lighting and guarding of the goods until the time of taking over.

   29. Time of Taking Over

   • . Notwithstanding any other provision of these terms and conditions of sale or otherwise, the goods shall be deemed to have been delivered and taken over by the purchaser at the conclusion of the delivery (which includes but is not limited to collection by or on behalf of a purchaser),

   The party named below acknowledges that the document contained herein forms the Agreement for the Sale of Goods and/or Services.

   The purchaser acknowledges and warrants that he/she/it has full power to enter into this Agreement and do things required by it.

   The Purchaser acknowledges and warrants that the person signing this Agreement on behalf of the purchaser has full power and authority to sign this Agreement on behalf of the purchaser and is duly authorized to do so.

   The party named below further acknowledges that they have read and understood the contents of the document contain herein, the Terms and Conditions for the Sale of Goods and/or Services.