Trade Accounts Customer Terms

AVALON NURSERY HOLDINGS PTY LTD TERMS AND CONDITIONS OF SALE

1 DEFINITIONS

For the purpose of these Terms and Conditions of Sale (“Terms”):

1.1 Customer means the purchaser of the goods or services from Avalon Nursery.

1.2 Effective Control means the ability to control the composition of the board of directors or having more than 50% of the shares giving the right to vote at general meetings.

1.3 Avalon Nursery or we or us means Avalon Nursery Pty Ltd ACN 656 795 176

1.4 Avalon Nursery Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, plant breeders’ rights, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields owned or licensed to Avalon Nursery.

1.5 Goods means botanical plant material including but not limited to trees, cultivars, shrubs, rootstock, propagating material, potting mix, soil amendments, nutritional supplements, and fertilizers supplied by Avalon Nursery to the Customer.

1.6 Deposit means an amount paid by the Customer to Avalon Nursery when placing an order for the purpose of securing that order.

1.7 GST Act means A Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).

1.8 Insolvency Event means any of the following events:

1.8.1 in respect of a Customer that is a corporation, (a) a receiver, receiver and manager, trustee, other controller as defined in section 9 of the Corporations Act 2001 (Cth) or similar official is appointed over any of the assets or undertaking of the Customer; (b) the Customer suspends payment of its debts generally; (c) the Customer is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act 2001 (Cth); or (d) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator; (e) an application or order is made for the winding up or dissolution of the Customer or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Customer, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of Avalon Nursery; or (f) the Customer ceases to carry on business or threatens to cease to carry on business,

1.8.2 in respect of a customer who is an individual, the party becomes bankrupt or enters into any arrangement or composition with his or her creditors or proposes to do so.

1.9 Plant Breeder’s Rights or PBR has the definition attributed to PBR under the Plant Breeder’s Rights Act 1994 (Cth).

1.10 PPS Act means the Personal Property Securities Act 2009 (Cth).

1.11 Services means services provided or supplied to the Customer by Avalon Nursery, including but not limited to tree supply, planting, and maintenance.

1.12 Terms mean the terms and conditions as set out in this document.

2 APPLICATIONS OF TERMS

2.1 These Terms apply to the sale of goods from Avalon Nursery to the Customer and to the entire exclusion of any other terms or conditions which may be proffered by the Customer (including the Customer’s order) which are in any way inconsistent with these Terms and notwithstanding that but for this provision Avalon Nursery would or might otherwise be regarded as having accepted or agreed to be bound by such other terms and conditions.

2.2 By ordering goods from Avalon Nursery after receipt of these Terms, a customer is taken to have read and agreed to be bound by these Terms.

2.3 The Terms will be governed by the laws of Victoria and only the Courts of Victoria will have jurisdiction over any dispute arising under these Terms.

2.4 None of Avalon Nursery's agents, representatives, licensees, or associates are authorized to make any representations, statements, conditions, or agreements not confirmed in writing by us, and we will not be bound by any such unauthorized statements.

3 ORDERS

3.1 The Customer is not entitled, as of right to cancel any order placed with Avalon Nursery.

3.2 Avalon Nursery may allow the Customer to cancel an order, but this will be entirely at Avalon Nursery's discretion with such conditions as Avalon Nursery may impose. If, however, the Customer does cancel an order without Avalon Nursery's written permission or fails or refuses to take delivery of any of the goods, Avalon Nursery will be entitled to resell those goods, if possible, without prejudice to any other rights or remedies available to Avalon Nursery. Any deficiency on resale will be a debt due by the Customer to Avalon Nursery payable on demand.

3.3 Avalon Nursery may require the Customer to pay a deposit as part payment for the purchase price of the goods. Avalon Nursery's acceptance of the deposit will not constitute an acceptance of any offer made by the Customer and will not bring into force any binding legal agreement for Avalon Nursery to supply the Customer with the goods ordered. Where a customer who has paid a holding-deposit cancels an order without Avalon Nursery's written permission or fails or refuses to take delivery of any of the goods then the deposit will be forfeited to Avalon Nursery. The Customer acknowledges that the deposit represents a genuine pre-estimate of Avalon Nursery's minimum probable loss in such circumstances.

4 PAYMENT TERMS

4.1 Except where some other arrangement has been made (e.g., cash on delivery or cash in advance), Avalon Nursery's terms of payment are net 30 days from the date of delivery/collection/invoice, or, if the Customer fails or refuses to take delivery/collection, 30 days from such failure or refusal.

4.2 Avalon Nursery reserves the right to charge interest on overdue accounts at the rate being 2.00% more than the rate set pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic).

5 GST

5.1 All prices for goods are exclusive of GST, unless otherwise stated. In addition to the price for the goods, the Customer must pay GST at the prevailing GST rate on those amounts, if applicable. Avalon Nursery's tax invoice will include details of GST charged.

6 DELIVERIES OF GOODS

6.1 Avalon Nursery will use all reasonable endeavours to ensure that the goods are available for delivery by the date or dates (if any) specified in any of Avalon Nursery's documents but will not be liable if they are unable to have those goods available for delivery by the specified date or dates.

6.2 The Customer must notify Avalon Nursery of any alleged shortages or damage to or defect with the goods within 48 hours of delivery of the goods and confirm in writing within 14 days otherwise claims will not be recognized. Upon such notification, Avalon Nursery require the opportunity to inspect any of the goods relative to any form of claim following delivery.

6.3 Avalon Nursery are not liable for any damage to goods or loss of goods while the goods are in transit, unless otherwise agreed to in writing. All such claims are to be referred to the relevant freight provider.

6.4 Avalon Nursery will arrange delivery at the Customer’s cost.

6.5 On receipt of the goods by the Customer, the Customer agrees to assume liability for the performance of the goods. Any complaint by the Customer’s customer regarding the goods is the responsibility of the Customer.

7 ACKNOWLEDGEMENTS

7.1 The Customer acknowledges and agrees that: 7.1.1 where goods constitute plant material, growth and performance is dependent on a wide range of conditions beyond Avalon Nursery's control; 7.1.2 Avalon Nursery make no guarantee as to the suitability of any of the goods for any specific use; 7.1.3 Avalon Nursery do not recommend any one particular type of goods in preference to any other, and 7.1.4 Avalon Nursery do not claim to be an authority on any one of the goods.

7.2 The Customer acknowledges that the propagation of goods is subject to many influences, some of which are outside Avalon Nursery's control. These influences may affect Avalon Nursery's ability to deliver the goods that have been ordered. Avalon Nursery will not be liable to the Customer if their ability to deliver the number of goods ordered is affected by any of these influences.

8 INFORMATION

8.1 All information is believed to be correct at the time that it is conveyed to the Customer and is given in good faith. To the extent permitted by law, Avalon Nursery disclaims all liability for loss suffered as a result of reliance on any information provided. The Customer accepts responsibility for their own choices of goods, irrespective of any recommendations, advice, or information provided by Avalon Nursery.

9 RISK AND RETENTION OF TITLE

9.1 Property in the goods will not pass to the Customer until the Customer has paid for them in full.

9.2 Risk in the goods will pass to the Customer from the time at which Avalon Nursery have made them available for delivery or delivery of the goods has been accepted by the Customer.

9.3 The Customer understands that they are a bailee or custodian of the goods on Avalon Nursery's behalf until such time as the goods have been paid for in full. As custodian, the Customer is not allowed to sell them or alter the goods in any manner and the Customer must insure the goods for their full insurable value until they have been paid for in full. If however, the Customer does sell the goods then the proceeds of such sale will be deemed to be held on trust for Avalon Nursery until all of the goods have been paid for in full. If the Customer alters the goods in any way prior to payment in full, then they do so at their own risk.

10 APPLICATIONS OF PPS ACT

10.1 These Terms create a security interest in the goods and their proceeds in favour of Avalon Nursery.

10.2 If Avalon Nursery does not hold a registered security interest in the goods immediately prior to delivering the goods to the Customer, the Customer must, until title in the goods has passed: 10.2.1 not dispose of the goods, except in the ordinary course of business; 10.2.2 not lease, hire, bail or give possession of the goods to anyone else without Avalon Nursery's consent; 10.2.3 not create any security interest or lien over the goods other than a security interest that arises under these Terms; 10.2.4 enable the goods to be identified at all times as property of Avalon Nursery; 10.2.5 allow Avalon Nursery to access the premises and re-possess the goods if the Customer is in breach of these Terms or suffers an Insolvency Event.

10.3 The Customer agrees to: 10.3.1 sign any documents or do anything required by Avalon Nursery so that Avalon Nursery can obtain and maintain a registered security interest in the goods and their proceeds under the PPS Act; 10.3.2 indemnify Avalon Nursery against any costs incurred in registering, maintaining, discharging and/or enforcing the security interest created by these Terms; 10.3.3 pay Avalon Nursery's costs of any disputes arising under these Terms and in relation to any security interest created by these Terms.

11 WARRANTIES AND LIMITATION OF LIABILITY

11.1 Subject to the below, Avalon Nursery's liability in respect of a breach of any warranty or condition in relation to the goods will be limited to the replacement or repair of the goods or the supply of equivalent goods or the cost of replacing or repairing the goods or supplying equivalent goods at Avalon Nursery's sole discretion.

11.2 Where any law implies a warranty or condition into these Terms which cannot be excluded, restricted or modified, Avalon Nursery's liability for breach of any such implied warranty or condition is limited to the replacement or repair of the goods or the supply of equivalent goods or the cost of replacing or repairing the goods or supplying equivalent goods at Avalon Nursery's sole discretion.

11.3 To the fullest extent permitted by law, Avalon Nursery will not be liable for any consequential loss or damage howsoever caused (including by the negligence of Avalon Nursery or its servants, agents, contractors or employees).

12 INDEMNITIES

12.1 The Customer indemnifies Avalon Nursery against all losses, damages, costs, and expenses suffered or incurred by Avalon Nursery arising from or in connection with any act or omission of the Customer, including without limitation any breach of these Terms by the Customer or any of its employees, agents or contractors.

13 FORCE MAJEURE

13.1 If Avalon Nursery is prevented or delayed in the performance of any of its obligations under these Terms by a Force Majeure Event, Avalon Nursery may, in its absolute discretion, suspend or terminate performance of such obligations by notice to the Customer.

13.2 For the purpose of these Terms, Force Majeure Event means any event or circumstance beyond the reasonable control of Avalon Nursery, including without limitation any act of God, war, riot, fire, flood, explosion, accident, breakdown of plant or machinery, strikes, lockouts, shortage of labour or raw materials, transport delays, compliance with any law or regulation, inability to obtain any necessary import or export license, or other government restriction or restraint.

14 INTELLECTUAL PROPERTY

14.1 The Customer acknowledges and agrees that: 14.1.1 All rights, title, and interest in and to Avalon Nursery's Intellectual Property Rights will remain solely with Avalon Nursery or its licensors; 14.1.2 The Customer has no rights in or to Avalon Nursery's Intellectual Property Rights other than the rights expressly granted to the Customer under these Terms; 14.1.3 The Customer must not use Avalon Nursery's Intellectual Property Rights without Avalon Nursery's prior written consent.

15 CONFIDENTIALITIES

15.1 The Customer must not disclose any of Avalon Nursery's confidential information without Avalon Nursery's prior written consent, except as required by law.

16 GENERALS

16.1 These Terms contain the entire understanding between the parties concerning the subject matter of the agreement and supersede all prior communications.

16.2 Any variation to these Terms must be in writing and signed by the parties.

16.3 A waiver of any right under these Terms must be in writing and signed by Avalon Nursery.

16.4 The rights and remedies provided in these Terms are cumulative and do not exclude any other rights or remedies provided by law.