Terms and Conditions

1. AGREEMENT This is an agreement between you, the purchaser (“Purchaser“) and ARGOSEE GREENHOUSE TECHNOLOGY PTY LTD: ACN: 110 702 906 of 6 Laurence Rd, Walliston 6076, Western Australia (“Argosee”) This Agreement applies to and forms part of all agreements for the supply of goods and related services by Argosee to the Purchaser (including the manufacture and supply of the goods by Argosee).

 

2. PURCHASE OF THE GOODS

2.1. Argosee agrees to sell and the Purchaser agrees to purchase the goods and/or services ordered by the Purchaser where the order is accepted by Argosee in the order and acceptance documentation subject to the terms and conditions set out herein.

2.2. The price of the goods or services may be subject to escalation even after the price has been accepted by the Purchaser. Argosee may in consultation with the Customer, increase the cost of the supply of the goods or services where there has been an increase in the costs of production, supply or cartage outside its control.

 

3. ACCEPTANCE & RISK

3.1. Acceptance of the goods shall take place at Argosee’s premises within 7 days of Argosee giving notice to the Purchaser that the goods are available.

3.2. The Purchaser will be deemed to have accepted the goods on full and final payment.  The Purchaser shall be responsible for all risks and insurance from that time.

3.3. Argosee reserves the right to withhold any delivery to the Purchaser if the Purchaser is the subject of an Insolvency Event (defined below).

3.4. The Purchaser acknowledges and agrees that any acceptance and availability dates provided by Argosee for the goods are approximate dates only. However, Argosee will use its best endeavours to meet those dates.

 

4. LEGAL TITLE & RELATED MATTERS

4.1. Legal and equitable title to the goods will only be transferred to the Purchaser when the Purchaser has paid to Argosee all that is owed to Argosee on any account whatsoever.

4.2. Purchaser acknowledges that until the Purchaser has met and paid all that is owed to Argosee on all accounts, the Purchaser holds the goods as bailee for Argosee and that a fiduciary relationship exists between the Purchaser and Argosee.

4.3. Until all accounts are paid, the Purchaser shall keep the goods in separate and good condition as a fiduciary of Argosee clearly showing Argosee’s ownership of the goods and shall keep accurate books showing Argosee’s ownership of the goods and the Purchaser’s sale or otherwise of the goods in accordance with sub-clause 4.5 below. The Purchaser will, if required, deliver the goods up to Argosee.

4.4. if the Purchaser defaults, in addition to sub-clause 4.2 above, Argosee may take possession of the goods wherever the goods are located and the Purchaser agrees that representatives of Argosee may enter upon the Purchaser’s premises for that purpose.

4.5. Despite sub-clause 4.1, the Purchaser may as fiduciary agent for Argosee sell the goods to a third party in the normal course of the Purchaser’s business provided that where the Purchaser is paid by that third party, the Purchaser holds the proceeds of the sale to the extent of the amount owing by the Purchaser to Argosee at the time of receipt of such proceeds on trust for Argosee. The Purchaser must keep those proceeds separate on trust for Argosee and not mix those proceeds with any other monies. If the Purchaser uses the goods in some mining, manufacturing or construction process of its own or  some third party, then the Purchaser shall hold such part of the proceeds of such mining, manufacturing or construction process as related to the goods on trust for Argosee.

4.5         Such part shall be deemed to equal in dollar terms the amount owing by the Purchaser to Argosee at the time of the receipt of such proceeds. The Purchaser must keep that part of the proceeds separate on trust for Argosee and not mix those proceeds with any other monies.

Notwithstanding the above, the Purchaser is still required to pay Argosee for goods already delivered and for goods manufactured or ordered to specification and not yet delivered.

 

5. SHORTAGES & DAMAGE

The Purchaser agrees to check all goods delivered immediately for any shortages and damage. The Purchaser agrees that it will not make any claim against Argosee for any shortage of goods, or that all or some of the goods are damaged unless that claim is made with 7 days of delivery of the goods.

 

6. PAYMENT

6.1. The Purchaser shall make payment in full at acceptance.

6.2. In the event that the Purchaser defaults in payment of the purchase price in accordance with clause 6.1 above, the Purchaser shall be required to pay interest as from the due date until the date of actual receipt of payment by the Purchaser. Unless otherwise agreed, the interest to be paid shall a rate of 5% (5 per cent) calculated monthly and compounded per month.

6.3. Argosee may require prompt payment or change the payment terms in the event of circumstances which, in the reasonable judgment of Argosee, have a material adverse effect on the creditworthiness of Purchaser and/or Purchaser’s ability to perform its obligations.

6.4. In the event of overdue payments, Argosee reserves the right to postpone further deliveries until outstanding debts have been settled.

6.5. In the event of overdue payments or the non-payment of monies due under this Agreement, Argosee agrees to pay the Purchaser all charges incurred by Argosee as a result of the over payment including but not limited to commercial credit account keeping fees, and all costs of collection of payment.

 

7. DEFAULT

7.1. The Purchaser will be in default if any of the following occurs:

(a) Purchaser breaches these terms and conditions;

(b) payment for the goods has not been received by Argosee by the due date of payment;

(c) the Purchaser is subject to an Insolvency Event;

(d) Argosee forms the opinion that the Purchaser’s credit worthiness or credit standing has deteriorated significantly.

7.2. If the Purchaser defaults, Argosee may:

(a) treat the whole of the Agreement and any other agreement with the Purchaser as repudiated and sue for breach of contract; and/or

(b) refuse to supply any goods to the Purchaser; and/or

(c) claim the return of any goods in the Purchaser’s possession where title has not passed to the Purchaser; and/or

(d) without notice to the Purchaser withdraw or vary any credit Argosee has provided to the Purchaser; and/or

(e) without notice to the Purchaser make all monies owing by the Purchaser to Argosee on any account immediately due and payable.

8. NOTICES

Any notice, request or other communication to be given by one party to the other in relation to the provisions of this Agreement shall be addressed in writing to the other party at its address set-out in this Agreement (as may be varied from time to time).

 

9.          NO REPRESENTATIONS OR WARRANTIES MADE

Except to the extent that Argosee provides to the Purchaser a Limited Warranty and except to the extent that conditions and warranties implied by law cannot be excluded, all representations, warranties, terms and conditions in relation to the goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law. The Purchaser agrees that if it is aware (or should be aware) that the goods, the subject of any order, are for any particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Purchaser will clearly identify that purpose or those characteristics in any order for the goods.

 

10. LIMITATION OF LIABILITY

Subject to Part 3-2, Division 1 of the Australian Consumer Law, Argosee’s liability to the Purchaser (and any party claiming through the Purchaser against Argosee) for any claim for loss or damages (including legal expenses) made in connection with this Agreement for breach of contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:

(a) if Argosee is in breach of this Agreement, Argosee’s liability is strictly limited:

(1) for goods, to the cost of replacement of the defective goods as soon as reasonably practicable, or the repair of the defective goods or the repayment (or allowance) of the invoice price of the defective goods at the option of Argosee;

(2) for services, to the provision of the services again or payment of the cost of having the relevant services provided again at the option of Argosee;

(b) Argosee’s liability for breach of this Agreement does not extend beyond the defective goods to any other goods that are part of an order or otherwise;

(c) Where loss or damage is not covered by sub-clause 10(a), Argosee is not liable to the Purchaser under statute, in equity or in tort (including negligence or otherwise) for any loss or damage to person or property arising from or caused in any way by the goods;

(d) Argosee shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the goods;

(e) “indirect, special or consequential loss or damage” includes:

(1) any loss of income, profit or business;

(2) any loss of goodwill or reputation;

(3) any loss of value of intellectual property.

(f) Any claim by the Purchaser in respect of defective goods and/or damaged goods must be made in writing within 14 days of the delivery of the goods;

(g) Argosee’s obligations in the event of sub-clause 10(a) applying do not include defects in goods caused by the improper installation or maintenance of goods (if not carried out by Argosee or at Argosee’s direction) and normal wear and tear damage to the goods over time.

 

11. INTELLECTUAL PROPERTY

The Purchaser acknowledges that Argosee is the owner and holds all rights, title and interest in the Argosee IP. The Purchaser will not attempt to seek or claim any interest in the Argosee IP or assist any other party to assert any interest in the Argosee IP. The Purchaser acknowledges that any improvement or enhancement of the Argosee IP which may result from work performed by the Purchaser shall remain the exclusive property of Argosee and the Purchaser irrevocably assigns to Argosee all right, title and interest the Purchaser may have in any improvements or enhancements to the Argosee IP. The Purchaser will not hinder Argosee in any application or other measure taken by Argosee to protect or exploit improvements to the Argosee IP. Argosee may at its option, without compensation to the Purchaser, discontinue the delivery of any goods or services where to do so may infringe the Intellectual Property rights of any third party.

 

12.        CONFIDENTIAL INFORMATION

12.1.     In performance of this Agreement, it may be necessary or desirable for either party to disclose to the other certain business and/or technical information which the disclosing party regards as proprietary and confidential (“Information”). The parties hereto agree to disclose such Information to each other only on the following terms and conditions:

(a) with respect to any Information, the receiving party agrees to make no use or disclosure of the Information for any purpose whatsoever at any time, other than for the purposes of this Agreement;

(b) nothing herein shall be construed as granting to either party, by implication, estoppel or otherwise, any right, title or interest in, or any licence under, any patent or Information;

(c) both parties will limit access to the Information of the other party to its trusted employees who will be advised of and agree to the conditions in this clause 12. At the disclosing party’s request, the receiving party shall return to the disclosing party, or any party designated by it, all of the Information received, without exception of any kind and without retaining any copies thereof, provided, however, that to assist in the resolution of any controversies about the Information arising after the return of the Information, the receiving party may retain descriptions of the documents containing the Information and the disclosing party will retain all the Information documents, bearing the other party’s identification numbers or symbols, that are returned to it;

12.2. The above restraints on use and disclosure shall not apply to information which:

(a) prior to the time of such disclosure is already in the possession of the party receiving the disclosure or is independently developed by it;

(b) at the time of disclosure or subsequent thereto is generally available to the public through no fault of the receiving party;

(c) subsequent to the disclosure becomes or is made available to the receiving party without restrictions as to use by a third party having the lawful right to do so;

(d) is released for disclosure with the consent of the disclosing party.

13. NO RELIANCE

The Purchaser acknowledges and agrees that it has not relied on any prior representation or promises made by Argosee except as set forth herein.

14. FORCE MAJEURE

Argosee shall not be responsible for any delay or failure of performance occasioned or caused by strikes, riots, fire, insurrection, embargoes, failure of carriers, inability to obtain materials or transportation facilities, acts of God or of the public enemy, governmental tariffs and quotas, compliance with any law, regulation or other governmental or court order whether or not valid, or other causes beyond the control of Argosee, irrespective of whether the cause could be alleviated by the payment of money, or the performance is prevented or delayed because of the failure of Argosee’s machinery; or failure of a supplier to Argosee. Without limiting the above, the Purchaser acknowledges and agrees that delivery and availability dates for the goods are approximate dates only.

 

15. NO WAIVER

No failure or delay by Argosee in exercising any right, power or privilege to which it is entitled shall operate as a waiver nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise. The terms of this Agreement and obligations and acknowledgments hereunder may only be waived or modified by Argosee by an agreement in writing between the parties hereto.

 

16.        UNENFORCEABILITY

In the event of any part of this Agreement becoming void or unenforceable, then that part shall be severed from this Agreement and the remaining terms and provisions hereof shall remain in full force and effect.

 

17.        APPLICABLE LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of Western Australia, Australia. The parties hereby agree to submit to the non-exclusive jurisdiction of the Western Australian Courts and any Court which may hear appeals there from.

 

18. SURVIVAL

The provisions of clauses 6, 9, 10,11, 12 and 13 shall survive termination or expiration of this Agreement.

 

19. GST

Prices quoted by Argosee do not includ GST unless otherwise stated. If anything supplied under or in connection with this agreement constitutes a taxable supply for the purposes of the GST Law, Argosee may recover from the Purchaser an amount on account of GST. The amount on account of GST is equal to the value of the supply calculated in accordance with the GST Law multiplied by the prevailing GST rate; and is payable even where the Purchaser is not required to pay or provide monetary consideration for the supply, upon issue of a tax invoice by Argosee. Argosee will issue a tax invoice to the Purchaser for each supply in accordance with GST Law.

20. INTERPRETATION

In this Agreement:

(a) ”Agreement” means this agreement.

(b)  Argosee IP” means all Intellectual Property rights held by Argosee at the time of entering into or during this Agreement including but not limited to Argosee’s technology relevant to greenhouses and specialised mobile growing structures including but not limited to Argosee’s Australian Provisional Patent Application No. 2011901210, this patent when granted (and all related patents and patent applications); and all Argosee’s Confidential Information.

(c)  “Insolvency Event” means, in the context of an individual, where he or she commits an act of bankruptcy, or in the case of a corporation, where the corporation becomes subject to any form of external administration within the meaning of Section 9 of the Australian Corporations Act or where the corporation is not Australian, any form of external administration imposed for the benefit of the corporation’s creditors.

(d) ”GST Law” means the goods and services tax implemented in Australia pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and includes all acts, regulations and subordinate legislation relating to that act, together with all amendments.

(e)  “Intellectual Property” means various rights and property conferred under statute, common law and equity in and in relation to patents, inventions, designs, copyright, trademarks, trade names, business names, corporate names, logos, get up, circuit layouts, know-how, trade secrets and confidential information and the right to have trade secrets and confidential information kept confidential.

(f)  “Limited Warranty” means Argosee’s trade warrantee granted from time to time in relation to goods subject to the Purchaser’s ongoing compliance with the terms of the Limited Warranty.

(g)  “party” means a party to this Agreement its successors and permitted assigns. “parties” has a corresponding meaning