Terms & Conditions
Welcome to Ferti Grind! We specialise in the business for the sale and distribution of locally sourced
plant fertiliser products.
In these terms and conditions “we”, “our” and “us” means Ferti Grind & Co Pty Ltd.
These are the Terms & Conditions of Sale (“Terms & Conditions”) of all products and services supplied
by Ferti Grind & Co Pty Ltd, except as expressly agreed upon in writing between a duly authorised
representative of Ferti Grind & Co Pty Ltd and the Customer. The following Terms & Conditions shall
apply notwithstanding any provisions to the contrary which may appear on any document or agreement
between the customer and Ferti Grind & Co Pty Ltd.
The use and/ or accessing of our Site constitutes an agreement to these Terms & Conditions and our
Privacy Policy (available at www.fertigrind.com.au).
Please read these Terms & Conditions and if you do not agree to them, immediately stop accessing and/
or using this Site.
1. Definitions
1.1. “Ferti Grind” means Ferti Grind & Co Pty Ltd (ACN 669 728 492) (ABN 82 669 728 492).
1.2. “Customer” means any party that acquires Products and/or Services from Ferti Grind or
proposes to acquire Products and/or Services from Ferti Grind.
1.3. “GST” means in relation to a Taxable Supply the amount of GST payable in respect of
that Taxable Supply;
1.4. “Intellectual Property Rights” means patents, rights to inventions, trademarks, rights in
confidential information (including know-how and trade secrets), copyright, design
rights (and all similar or related rights existing anywhere in the world, whether
registered or not and including any applications for the same) in any materials,
equipment, tools, dies, moulds, drawings, specifications, data and software;
1.5. “Loss(es)” means all direct, indirect or consequential liability, all losses, damages,
expenses, costs, claims, proceedings or demands including legal and other professional
expenses;
1.6. “PPSA” means the Personal Property Securities Act 2009 and includes any variation or
amendments to the Act from time to time;
1.7. “Product” means any fertiliser product specified in the Purchase Order or offered for
sale by Ferti Grind from time to time;
1.8. “Purchase Order” means the purchase order placed by the Customer for the supply of
the Products (and may include any Special Conditions) and includes any quotation(s) by
Ferti Grind to the Customer for a particular order or order(s). All Purchase Orders accepted by Ferti Grind whether via electronic mail, facsimile or telephone will be
subject to these terms unless otherwise agreed;
1.9. “Security Interest” has the same meaning given under the PPSA;
1.10. “Special Conditions” mean any terms and conditions attached or referred to in a
Purchase Order applicable to a particular supply of Product. Where a special condition
conflicts with these terms and conditions, the Special Conditions will prevail to the
extent of the inconsistency;
1.11. “Supply” has the same meaning as it does in Section 9-10 of the GST Act and excludes
any “GST-free supplies” and “input tax supplies” as those terms are defined in section
195-1 of the GST Act.
1.12. “Site” means Ferti Grind’s website, the Universal Resource Locators (URL) of which is
www.fertigrind.com.au.
1.13. “Content” means information, graphics, text, and any other materials found on Ferti
Grind’s website or “Site”.
1.14. “Force Majeure” means any event or circumstance or occurrence as a direct or indirect
result of which Ferti Grind relying on it is prevented from performing any of its
obligations under this Agreement, that is beyond the reasonable control of Ferti Grind
and is not the direct or indirect result of the failure of Ferti Grind to perform its
obligations and includes act of war (whether declared or not) or terrorism, civil
commotion or riot, act of God, natural disaster, industrial action or labour disturbance,
action or inaction by a government agent, or a failure of a supplier, public utility or
common carrier;
2. Application of Terms & Conditions
2.1. Unless otherwise agreed in writing, the Terms & Conditions of Sale terms apply to all
supplies and sales of Ferti Grind Products to you as a Customer.
2.2. These terms will apply to the entire exclusion of all and prevail over other terms and
conditions (whether or not in conflict or inconsistent with these Terms & Conditions),
including those of the Customer, or which are implied by trade custom, practice, or
course of dealing, unless those conflicting or inconsistent clauses are inserted as part of
the Special Conditions and attached to a Purchase Order.
3. Variation
Ferti Grind may at any time vary these Terms & Conditions. Ferti Grind may alter the Terms &
Conditions at their complete discretion and may do so by publishing the altered Terms &
Conditions on our Site. The Site is subject to change without notice. Ferti Grind does not
undertake that the Site is up to date and Ferti Grind is not liable if any Content on the Site is
inaccurate or out of date.
4. Severance
In the event that a provision of these Terms & Conditions is held to be void, invalid, illegal or
unenforceable, that provision must be read down as narrowly as necessary to allow it to be
valid or enforceable. If it is not possible to read down a provision (in whole or in part), that
provision (or that part of that provision) is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these
Terms.
5. Placing an Order for Products
5.1. Any order made by the Customer is not binding on Ferti Grind until accepted by Ferti
Grind in writing (or via email).
5.2. Ferti Grind may at its discretion decline an order or any part of a Purchase Order.
5.3. An Agreement is formed Ferti Grind’s acceptance of the Customer’s Purchase Order.
5.4. The Customer is responsible for ensuring the accuracy of any Purchase Order.
6. Cancellation of a Purchase Order
The Customer may not cancel any Purchase Order (or any part of a Purchase Order) that has
been accepted by Ferti Grind without written consent from Ferti Grind for that cancellation.
7. Pricing
7.1. Unless accepted by Ferti Grind, all quoted pricing for any Product is valid for 30 days
only. Ferti Grind may at its sole discretion alter any quoted pricing for any of its
Products after the expiry of 30 days from any quotation date.
7.2. Prices of the Products will be fixed from the date of Ferti Grind’s acceptance of the
Customer’s Purchase Order. All pricing is exclusive of GST (unless otherwise confirmed
in writing).
8. Payment Terms
8.1. Unless otherwise specified in writing, all Products must be paid for prior to shipping or
collection.
8.2. if the Customer fails to pay the purchase price (or any amount due to Ferti Grind
pursuant to this Agreement) as and when due, Ferti Grind may treat the Customer as
having repudiated the Agreement AND Ferti Grind may suspend or withdraw all supply
of the Products to the Customer without incurring any liability whatsoever to the
Customer and the Customer may not Claim against Ferti Grind for damages for such
non-supply.
8.3. Ferti Grind may at its sole discretion permit the Customer to pay on credit terms
provided the Customer complete, sign and send back to Ferti Grind, the Credit
Application Form AND the Customer receives email confirmation from Ferti Grind that
Ferti Grind has agreed to extend to the Customer credit facility.
8.4. In consideration of Ferti Grind agreeing to extend to the Customer a credit facility on
such terms as set out in the Credit Application Form, the Customer charges (in favour of
Ferti Grind) all of its rights, title and interest in any land, realty, or other assets capable
of being charged to secure the performance by the Customer of its obligations under
these terms and under the credit facility granted. The Customer agrees that Ferti Grind
may lodge a private caveat over any land or realty (including any real property which is
jointly owned by the Customer) to secure its interest under the charge.
8.5. Ferti Grind may at its discretion charge default interest at the cash rate of interest last
set by the Reserve Bank of Australia from time to time, plus of 9% per annum
(calculated on a day-to-day basis) until payment is made in full. The Customer agrees that the interest imposed is a reasonable estimate of loss suffered by Ferti Grind as a
result of any non-payment or delay in payment by the Customer.
9. PPSA
9.1. Until Ferti Grind has received payment for the Products in full, the Customer
acknowledges that Ferti Grind has a “Purchase Money Security Interest” (PMSI) which
attaches over such Products and their proceeds and a Security Interest in relation to
other amounts owed by the Customer to Ferti Grind.
9.2. Ferti Grind may register a financing statement in relation to its PMSI and Security
Interest on the PPS Register established by the PPSA and where necessary amend such
registration from time to time.
9.3. The Customer agrees to do anything (such as obtaining consents, signing, and producing
documents, producing receipts and getting documents completed and signed) which
Ferti Grind may ask and consider necessary for the purpose of:
9.3.2. enabling Ferti Grind to apply for any registration, or give any notification, in
connection with a Security Interest created under these terms and
conditions so that the Security Interest has the priority required by Ferti
Grind, including anything Ferti Grind reasonably asks the Customer to do in
the connection with the PPSA.
9.4. To the extent permitted by law, if the PPSA is applied, the Customer irrevocably waives
any rights the Customer may have to:
9.4.1. receive notices or statements under Sections 95, 121(4), 125, 130, 132(3)(d),
132(4) and 135 of the PPSA;
9.4.2. redeem the goods under Section 142 of the PPSA;
9.4.3. reinstate these terms and conditions under Section 143 of the PPSA; and
9.4.4. receive a verification statement (as defined in the PPSA).
9.5. If the Customer fails to make full payment for any goods supplied by Ferti Grind, Ferti
Grind is entitled to possession of those goods and may recover and sell those goods.
The Customer must place those goods at the disposal of Ferti Grind and Ferti Grind is
entitled to enter upon any premises of the Customer and remove those goods.
9.6. The parties acknowledge that this clause 8 will survive the termination of this
Agreement to the extent permitted by law.
10. Warranties and Exclusions of Liability
10.1. Ferti Grind products are provided on an ‘as is’ and ‘as available’ basis, without any
warranties or guarantees, either expressed or implied, to the fullest extent as permitted
by law.
10.2. Save for the representations, warranties and guarantees (including those under the
Competition and Consumer Act 2010 (Cth) ) which cannot be lawfully excluded or
modified, all representations and warranties not expressly set out in these terms and
conditions are excluded.
10.3. Save for those rights and remedies (including those under the Competition and
Consumer Act 2010 (Cth)) which cannot lawfully be excluded or modified, to the extent
permitted by law, Ferti Grind’s liability to the Customer, in relation to, or in connection with any claim relating to the supply of any Product pursuant to this agreement or
relating to this Agreement and the offers set out in this Agreement (including any claim
in relation to, or in connection with, any negligence by Ferti Grind or any of its
employees, agents or contractors, and including in relation to, or in connection with,
the supply or non-supply of Products) is:
10.3.1. limited to the replacement of the Products, or at the election of Ferti Grind,
limited to the supply of equivalent Products or a full refund of the purchase
price collected for the Products;
10.4. To the extent permitted by law, Ferti Grind will not be liable for any indirect, incidental,
special, punitive and/or consequential loss or damage whatsoever, or any loss of
business opportunity, or profits, arising out of or in connection with this Agreement or
the supply or non-supply of the Products even if Ferti Grind have been advised of the
possibility of such damages or losses.
10.5. If Ferti Grind is interrupted in or prevented from carrying out all or part of its obligations
under this Agreement by reason of a Force Majeure event then Ferti Grind will be
excused from the performance of, and shall not be liable for any failure in, carrying out
any of its obligations to the extent and for the time that it is prevented in whole or in
part from doing so by the Force Majeure event. Any delay in performance as a result of
a Force Majeure event will not constitute a default or give rise to any claim for loss or
damage.
11. Application Rates & Use
11.1. All application rates and usage of the Products are as depicted in Ferti Grinds webpage
at www.fertigrind.com.au. The Customer must utilise its own judgement as to the
suitability of the Products prior to any placement of Purchase Order(s).
11.2. Ferti Grind Products should not be handled without suitable Personal Protective
Equipment (PPE)
11.3. The nutrient levels in Ferti Grind may change over time as the Product is bio-active. The
Customer accepts that the effectiveness of Ferti Grind products can vary over time and
depends upon various factors including, but not limited to; the plant(s) or vegetation,
soil, rain, humidity, altitude or other environmental conditions.
11.4. Puck Pellets are safe for use on all plants indoors or outdoors, however are specifically
formulated for plants in pots.
12. Safety & Storage of Products
12.1. All Products must be used or stored in a cool, dry location out of direct sunlight.
12.2. All Products must stored out of reach of children and/ or pets.
12.3. The Customer must take all appropriate safety precautions with respect to the storage
of any Products including referencing all safety fact sheets / leaflets provided with the
Products by Ferti Grind.
12.4. All goods are handled and stored at the risk of the Customer and Ferti Grind accepts no
liability in this regard.
12.5. Ferti Grind Products are not for human consumption.
12.6. If in the event irritation occurs from a Ferti Grind Products, cease use immediately,
move to wash or rinse the affected area and seek medical advice.
13. Returns Policy & Right to Rectify
13.1. Once the tamper seal is broken, the Product cannot be returned unless it is deemed not
to be of ‘acceptable quality’ as defined in the Australian Consumer Law (“Acceptable
Quality”).
13.2. In the above circumstance, the Customer must write to Ferti Grind and do all other
things necessary to allow us to investigate and determine whether the product is of
Acceptable Quality.
13.3. Only Ferti Grind will determine whether the product is of Acceptable Quality. If Ferti
Grind find that the product is not of Acceptable Quality, the Customer agrees to accept
a resupply of the same product that is of Acceptable Quality prior to making any
request or claim for a refund (“Right to Rectify”).
13.4. Customers are only entitled to a refund of the product if:
13.4.1. The Product has not been opened and the tamper sticker has not been
damaged; and
13.4.2. The Customer has done all things necessary to provide Ferti Grind with
evidence of the above clause 13.4.1; or
13.4.3. A Right to Rectify has been unsuccessful and exhausted.
13.5. All postage fees are the responsibility of the Customer.
14. Consumption by Animals
Ferti Grind’s Products are unlikely to be harmful to pets under normal circumstances, however
in the event of an animal consuming a Ferti Grind Product, it is recommended that advice from
an appropriate source be sought.
It is the purchaser and owners’ responsibility to avoid pets consuming.
Ferti Grind acknowledges that any companion animal may demonstrate various sensitivities and
therefore, it is always recommended to consider the unique needs of individual animals when
interpreting and adhering to the information supplied.
15. Default & Termination
15.1. If the customer:
(a) fails to pay any moneys due and payable pursuant to the Agreement; or
(b) breaches, repudiates, or terminates the Agreement; or
(c) (being a corporation) suffers an Insolvency Event; or
(d) (being a person) commits an act of bankruptcy (as defined by the Bankruptcy
Act 1966); or
(e) if Ferti Grind (acting reasonably) believes that the Customer is insolvent or a
third party may attempt to levy any form of execution against the Products
held under any credit facility arrangement; or
(f) suspends, or threatens to suspend, the conduct of its business; or
(g) becomes unable to pay its debts as and when they are due, then Ferti Grind
at its absolute discretion may by written notice terminates the Agreement
with the Customer.
15.2. In the event Ferti Grind terminates the Agreement with the Customer, Ferti Grind may
recover from the Customer all costs and expenses incurred by Ferti Grind in its
performance of the terms of the Agreement, and all loss and damages arising from or
relating to the termination or repudiation including but not limited to the costs of any
Products ordered by not collected (which Purchase Order cannot be cancelled).
16. Indemnity
16.1. The Customer must indemnify and keep indemnified Ferti Grind and each of its officers
and employees against any Loss which any such person may incur or be subjected to in
respect of or arising from:
16.1.1. the negligence, wrongful act or omission, breach of statutory duty or wilful
default of the Customer or its officers, employees, agents or contractors;
16.1.2. any injury to or death of any person or any damage to or loss of property
connected with the conduct, operations or performance of the business of
the Customer;
16.1.3. transport, storage, blending, repackaging, re-bagging, spreading or other
handling of the Products by the Customer;
16.1.4. misuse of Products by the Customer;
16.1.5. warranties or representations made by the Customer in relation to the
Products; or
16.1.6. any breach of these Terms and Conditions by the Customer.
17. Intellectual Property
The Customer confirms that the sale and supply of the Products by Ferti Grind does not confer
on the Customer any Intellectual Property Rights which shall at all relevant times remain with
Ferti Grind.
18. Governing Law & Jurisdiction
18.1. These Terms & Condirions will be implemented in accordance with the law of the state
of South Australia.
18.2. By acceptance of these Terms & Conditions the parties submit to the non-exclusive
jurisdiction of the courts of South Australia.
19. Merger
19.1. The Rights and Obligations of the parties under these Terms & Conditions will merge
upon purchase of Ferti Grind Products with:
19.1.1. Ferti Grind Website Terms of Use & Privacy Policy; and
19.1.2. Ferti Grind Shipping & Returns Policy.
20. General
20.1. Nothing in these terms is intended to have the effect of contracting out of any
applicable provisions of the Competition and Consumer Act 2010 or the applicable Fair
Trading Act in each of the States and Territories of Australia (including any substitute to
those Acts or re-enactment thereof), except to the extent permitted by those Acts
where applicable.
20.2. The failure by Ferti Grind to enforce any provision of these terms and conditions shall
not be treated as a waiver of that provision, nor shall it affect Ferti Grind’s right to
subsequently enforce that provision. If any provision of these terms and conditions shall
be invalid, void, illegal or unenforceable the validity, existence, legality, and
enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.3. Subject to clause 10 (Warranties and Exclusions of Liability) Ferti Grind shall be under no
liability whatsoever to the Customer for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Customer arising out of a breach by
Ferti Grind of these terms and conditions (alternatively Ferti Grind’s liability shall be
limited to damages which under no circumstances shall exceed the Price).
20.4. The Customer shall not be entitled to set off against, or deduct from the price of the
Products, any sums owed or claimed to be owed to the Customer by Ferti Grind nor to
withhold payment of any invoice because part of that invoice is in dispute.
20.5. Ferti Grind may license or sub-contract all or any part of its rights and obligations
without the Customer’s consent.
