Terms and Conditions of Sale and Acceptance of Orders

1. All certified seed supplied to the seed buyer by the seed grower listed in the Seed Buyer’s Directory is supplied strictly pursuant to these terms and conditions and in addition to the terms and conditions of the individual Horticulture Produce Agreement (HPA) between the seed grower and the seed buyer.

2. The seed grower has taken all reasonable precautions to ensure that:

a. These seed potatoes comply with all specifications of the AuSPICA Seed Potato Certification Scheme (the certification scheme) and are fit to be used as seed.

b. The materials supplied have been grown from seed supplied through the certification scheme and the seed crop has performed in a manner consistent with the attributes of each variety. The seed grower has not performed any test as to the purity of each variety other than the visual observations and the taking of all reasonable care to maintain variety purity.

c. The soil in which the crop has been grown has been subject to DEDJTR approved testing protocols and implemented by AuSPICA for the prevention of potato cyst nematode.

d. The seed has been graded to within the standard as set by the certification scheme but no claim is made or to be implied on behalf of the seed grower that the seed is free from all pests and/or disease and the seed grower shall not be liable for any defect or defects in the seed which exist notwithstanding such reasonable precautions.

3. The seed grower makes no warranty nor representation directly or otherwise that the seed supplied will grow a crop that is fit for any particular end use or purpose and the seed buyer has made his own enquiry and assessment of the quality and suitability of the seed for the intended purpose.

4. Unless stated to the contrary in these conditions, all previous conditions, warranties, undertakings, inducements or representations whether expressed or implied relating in any way to the seed are excluded with the exception of the terms and conditions of the HPA.

5. Where any Act implies terms and conditions and prohibits provisions modifying any such implied terms and conditions then those terms and conditions are deemed included in these terms.

6. The seed buyer shall inspect the delivered seed promptly upon arrival and must report any visual defects, problems or concerns to the seed grower in writing within 14 days of dispatch of the seed from the seed grower’s property or within a timeframe as agreed in the HPA.

7. The seed grower shall not be liable for or responsible to the seed buyer in respect of any loss or damage including consequential loss or loss of profits howsoever caused or arising, legal costs or administrative charges in respect of the sale of the seed or the failure or omission on the part of the seed grower to comply with his obligations under these conditions.

8. Any liability of the seed grower pursuant to these terms and conditions shall be limited entirely at the option of the seed grower to either the replacement of the seed or a refund of any money paid pursuant to the sale.

9. Prices stated are exclusive of GST and in the event of this sale being subject to goods and services tax pursuant to the Goods and Services Tax Act 1999 then the seed buyer shall, upon receipt of a valid Tax Invoice, also pay the amount of any GST payable in respect of such taxable supply at the same time and in the same manner as the agreed price or value of the taxable supply is otherwise payable.

10. The seed buyer shall carry the risk for loss or damage to the seed as and from the point of its departure from the seed grower’s premises.

11. The seed buyer agrees to indemnify and keep indemnified, the seed grower against all claims made against it by or on behalf of a Third Party for loss or damage of whatsoever kind as a consequence of having consumed, used, been affected by or come into contact with the seed or any product produced from it.

12. These terms shall be governed by the laws of the State of Victoria and the parties hereto irrevocably submit to the jurisdiction of the Victorian Courts and these terms may be pleaded as a bar to an action brought in Courts outside this jurisdiction.

13. These terms may not be modified or amended unless by instrument in writing signed by all parties hereto. If any provision of these terms is void or voidable it shall be read down so as to give affect to the clause and if it cannot be read down the provision shall be severed and the remaining provisions will continue in full force and effect.

14. In these terms where the context permits reference to the singular shall include the plural and reference to one gender shall include the other gender and the neuter.

15. Any party consisting of more than one person shall be bound to these terms jointly and severally and the term seed grower and seed buyer where the context permits shall be deemed to include transferees, executor, administrators and other deriving title under those respective parties and shall include successors and assigns.

16. Any notices to be served will be sent in writing to the address of the parties given or as notified in writing from time to time. If served by prepaid post any notice of demand will be deemed to have been received on the day following the day of posting unless the contrary is established.

17. No time or other indulgence granted to the seed buyer shall operate as a waiver of the seed grower’s rights in respect of any continuing or recurring breach.

18. Nothing contained in these terms shall in any way constitute a relationship or partnership of employer and employee between the parties hereto and it is the expressed intention of the parties that any such relationships are denied.

Revised October 2018