TERMS AND CONDITIONS OF SALE

1. DEFINITION

(a) In these Terms and Conditions of Sale, unless the contrary intention appears:

Additional Charges includes all reasonable delivery, handling and storage charges, as well as goods and services tax, stamp duty and all other Government imposts, interest, legal and other costs on recovery of unpaid monies, and all moneys other than the Purchase Price of the Goods payable by the Buyer to SYNGENTA for or as a result of the sale of the Goods.

Agreed Date means the date determined in accordance with clause 6(e).

Buyer means the person to or for whom Goods are to be supplied by SYNGENTA.

CHEP means CHEP Australia Limited ACN 117 266 323.

Continuing Supply Agreement means any standing distribution agreement or similar entered into by SYNGENTA and the Buyer of which these Terms and Conditions of Sale form a part.

Delivery is deemed to have occurred at the moment that the Goods are physically collected by the Buyer or its representatives or loaded on a means of transport in accordance with clause 6(c) (irrespective of any delay between loading and actual transportation).

Due Date means that date determined in accordance with clause 7(b).

Goods means chemical products marketed by SYNGENTA and specified in an order submitted by the Buyer which has been accepted by SYNGENTA.

Person and words importing persons includes any corporation, partnership, or unincorporated association.

Purchase Price means the price payable by the Buyer for the Goods supplied or to be supplied by SYNGENTA which is specifically agreed by the Buyer and SYNGENTA (in writing or by telephone and recorded on the order form by SYNGENTA) before or during SYNGENTA's acceptance of an order or, if the Buyer and SYNGENTA do not specifically agree a price, the price for the Goods in SYNGENTA'S price list as at the date of delivery.  Unless otherwise agreed in writing between the parties, the Purchase Price is exclusive of Additional Charges.

Specifications means the specifications for the relevant Goods set out in the Australian Pesticides and Veterinary Medicines Authority product registration for those Goods.

Supply Contract means the agreement to supply a quantity of Goods formed when an order is accepted by SYNGENTA under clause 4.
 

SYNGENTA means Syngenta Australia Pty Ltd ACN 002 933 717.

2. INTERPRETATION

(a) Where the Buyer comprises two or more persons, an agreement or obligation to be performed or observed by the Buyer binds those persons jointly and each of them severally, and a reference to the Buyer includes a reference to any one or more of those persons.

(b) Words importing the singular include the plural and vice versa and words importing the masculine include the feminine and neuter.

(c) Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

(d) References to the Buyer and SYNGENTA include their respective successors and permitted assigns.

(e) Headings are included for convenience and do not affect the interpretation of these Terms and Conditions of Sale.

(f) Unless the context otherwise requires, a statute or regulation or a provision of a statute or regulation is a reference to that statute, regulation or provision as amended or a statute, regulation or provision replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws made or issued under that statute.

3. OPERATION

All orders for and supply of the Goods are, subject to the provisions of clause 15, governed solely by these Terms and Conditions of Sale.

4. ORDERS FOR GOODS

(a) Subject to clause 14, quantities of the Goods which the Buyer wishes to purchase from time to time must be ordered from SYNGENTA using the forms specified or approved by SYNGENTA from time to time.

(b) SYNGENTA is not obliged to accept any order for the Goods. If SYNGENTA accepts an order for the Goods received from the Buyer in whole or in part, it will either notify the Buyer in writing by electronic notification or by Delivering the Goods described in the order to the Buyer.  No other acknowledgment or receipt of money will constitute an acceptance of the order by SYNGENTA.

(c) For individual orders of less than $2000, SYNGENTA may accept the order subject to the imposition of a handling fee of $75 and other additional charges which will be notified to the Buyer at the time of receipt of the order.

(d) To the extent any order received from the Buyer is incomplete in a minor respect, the Buyer authorises SYNGENTA to complete the order (to the extent SYNGENTA is able) in order to allow for the acceptance of the order by SYNGENTA. For the avoidance of doubt, SYNGENTA will not add any material information to the order without the consent of the Buyer.

(e) The Buyer agrees to be bound by the terms of the completed order form under clause 4(d) as if the order had been completed at the time it was signed by the Buyer.

(f) An order from the Buyer which has been accepted in whole or in part by SYNGENTA cannot be cancelled by the Buyer without obtaining the prior written approval of SYNGENTA. Such approval will not be unreasonably withheld by SYNGENTA.

(g) All Goods are sold on the express condition that the Buyer does not re-pack, reformulate or re-label them.

(h) The inclusion of a particular product in SYNGENTA’s price list does not imply that it is registered and available for sale in any particular Australian State or Territory or in New Zealand.  Buyers should check the registration and availability of all products prior to submitting an order for those products.

(i) The description of the Goods on the order form accepted by SYNGENTA will be the definitive description of the Goods to be supplied by Syngenta under the Supply Contract, notwithstanding any description of the Goods contained in other documents, including any Buyers’ specifications, or used by the Buyer in any pre-sale enquiry.

(j) Upon acceptance of an order by SYNGENTA a binding agreement is created for the supply of the Goods described in the order form incorporating these Terms and Conditions of Sale ("Supply Contract").

5. WARRANTIES AND LIABILITY

(a) Syngenta warrants that all Goods supplied by it will comply with the Specifications for those Goods ("Express Warranty"). This Express Warranty will be voided if, post-delivery, the Goods are not stored, handled or used correctly and in accordance with directions on the label and/or the material safety data sheet.

(b) To the extent permitted by law, all implied terms and warranties in relation to the Goods are excluded from the Continuing Supply Agreement and each Supply Contract.

(c) The Buyer must not make any claims or representations about the Goods or their suitability for any purpose, beyond the claims, if any, made in the Specifications for the Goods.

(d) The Buyer's only remedy for breach by SYNGENTA of the Express Warranty, or of any non-excludable implied warranty or any consumer guarantee under the Australian Consumer Law (or similar legislation), will be for SYNGENTA  to pay to the Buyer the cost of replacing the defective Goods or to refund the price paid for those Goods, in SYNGENTA's sole discretion.

(e) SYNGENTA will not be liable for any claim for breach of the Express Warranty in respect of any Goods supplied to it by SYNGENTA unless the claim is made in writing to SYNGENTA, is accompanied by a sample of the Goods in sufficient quantity to enable SYNGENTA to properly test the relevant Goods to determine if they comply with the relevant Specifications, and the claim is received by SYNGENTA within the later of:

       (i) thirty (30) days after the Delivery of the relevant Goods to the Buyer; or

       (ii) seven (7) days after the Buyer becomes aware of a potential claim against SYNGENTA in respect of the relevant Goods.

(f) Suitability of the Goods for any purpose is limited to the purpose stated in the relevant Specifications.  The Buyer must (and must ensure that its terms of sale provide that each user of the Goods must) determine the suitability of the Goods for any particular purpose and take all proper precautions in the handling, storage and use of the Goods, including but not limited to, the precautions, safety directions and other instructions set out in the Specifications.

(g) In the event of a claim against SYNGENTA with respect to particular Goods supplied by SYNGENTA to the Buyer, the Buyer must cooperate with SYNGENTA in the investigation of the claim including but not limited to:

       (i) providing SYNGENTA with all information in the possession of the Buyer or its agents, representatives or customers relating to the handling, storage and use of the Goods; and

       (ii) authorising SYNGENTA to inspect the Goods at the Buyer’s premises, or taking all reasonable steps to obtain authorisation for SYNGENTA to inspect the Goods at such other premises where the Goods are stored (including but not limited to ensuring in the Buyer’s terms of sale a right for the Buyer to inspect Goods purchased from it, wherever they are stored, and whether on its own behalf or that of the manufacturer or supplier of the Goods).

(h) To the extent permitted by law and subject to clause 5(i), SYNGENTA excludes all liability to the Buyer, whether in contract, tort or otherwise, for any indirect, consequential, special, punitive or exemplary damages or losses arising in connection with the Continuing Supply Agreement, the supply or failure to supply any Goods  and each Supply Contract, including but not limited to loss of profit, loss of revenue and loss of opportunity.

(i) The exclusion in clause 5((h) will not apply in respect of any claims relating to personal injury or death of any person resulting from any negligent act or wilful misconduct of SYNGENTA.

(j) The Buyer must indemnify and keep indemnified SYNGENTA against any claim, including third-party claims, for injury, loss or damage caused by Goods which arises out of the Buyer's failure to safely store or handle the Goods in accordance with the relevant Specifications, directions on the label and/or the relevant Material Safety Data Sheet.

6. DELIVERY AND ADDITIONAL CHARGES

(a) Goods supplied to a Buyer outside Australia will be supplied Carrier and Insurance Paid to the agreed destination port (CIP) (Incoterms 2020).

(b) Goods supplied to a Buyer in Australia will be delivered at the premises of SYNGENTA or such other place as agreed by the parties.

(c) Delivery of the Goods will be made by:

       (i) physical collection by the Buyer or its representatives; or

       (ii) loading the Goods on a means of transport either:

              (A) arranged by the Buyer;

              (B) arranged on behalf of the Buyer by SYNGENTA; or

              (C) as otherwise agreed by the parties.

(d) All Delivery charges, including but not limited to all carrier charges and any Additional Charges thereon, must be paid by the Buyer direct to those to whom such payment is payable or to SYNGENTA, if so requested by SYNGENTA, where the carrier has been engaged by SYNGENTA.  All such Delivery charges must be paid by the Buyer on or before the due dates for payment.

(e) In relation to Goods supplied to a Buyer outside of Australia, the Buyer acknowledges and agrees that the Buyer is responsible for:

       (i) obtaining any necessary export or import clearances, licences or permits necessary for the delivery of Goods to the agreed destination port; and

       (ii) any insurance costs, customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Goods.

(f) SYNGENTA will take reasonable steps (subject to, amongst other things, the availability and/or performance of any carrier involved) to ensure that Delivery of Goods takes place on the date agreed by the parties (the “Agreed Date”) but the Buyer acknowledges and agrees that SYNGENTA will otherwise have no liability whatsoever for failure to make a Delivery on the Agreed Date.

(g) If SYNGENTA, for any reason whatsoever is able to make only a partial Delivery of the Goods, the Buyer will nevertheless accept partial Delivery and pay so much of the Purchase Price as equates to the proportion of the Goods Delivered and any Additional Charges for such Goods as are Delivered to it in the manner agreed herein.

(h) SYNGENTA will not be responsible for short Delivery of the Goods under any accepted order unless:

       (i) notification of short Delivery is received from the Buyer in writing within seven (7) working days following Delivery of the Goods; and

       (ii) if required by SYNGENTA, an inspection of the Goods Delivered and of the Buyer’s premises is carried out by SYNGENTA; and

       (iii) SYNGENTA confirms in writing the short Delivery of the Goods Delivered.

(i) SYNGENTA’s liability with respect to proven short Delivery as confirmed in writing in accordance with clause 6(g) is limited to replacement of the missing Goods as soon as reasonably practicable, or refunding the cost of the missing Goods to the Buyer where replacement is not possible.

(j) Goods cannot be returned to SYNGENTA for credit unless the Buyer has SYNGENTA’s prior written consent to do so, which shall not be unreasonably withheld. In obtaining such consent, the Buyer must ensure all returned Goods are accompanied by SYNGENTA’s “product returned for credit report” or “return delivery docket” completed by the Buyer’s local territory sales manager. Goods returned for credit without the aforementioned documents will be returned to the Buyer at the Buyer’s sole risk and expense. All Goods returned to SYNGENTA must be accompanied by the appropriate Material Safety Data Sheet or Emergency Procedure Guide.  All Goods are to be returned in a saleable condition. SYNGENTA will levy and the Buyer must pay a charge of 10% on any returned Goods that require repackaging. Any Goods that SYNGENTA reasonably determines to be un-saleable will be returned to the Buyer at the Buyer’s sole risk and expense.

(k) If Delivery instructions for the Goods are not provided by the Buyer within seven (7) days of a request by SYNGENTA for such information, SYNGENTA may impose a reasonable additional fee for the storage of the Goods.

(l) Any order requested for immediate delivery or collection will incur a $35 urgent processing fee.

7. PRICE AND PAYMENT

(a) The Buyer must pay the Purchase Price together with all Additional Charges relevant to the supply of the Goods as invoiced by SYNGENTA to the Buyer from time to time.

(b) Subject to the provisions of these Terms and Conditions of Sale and in particular clause 7(c), unless otherwise agreed in writing by SYNGENTA, payment of the Purchase Price and any Additional Charges under a Supply Contract is due and payable thirty (30) days after the date of invoicing ("Due Date”).

(c) Without limiting clause 10(b), the Purchase Price and the Additional Charges will become immediately due and payable (if not then already due and payable) if:

       (i) the Buyer takes or has taken or has or has had instituted against it any action or proceeding, whether involuntary or compulsory, which has as an object or may result in the winding up of the Buyer (other than voluntary winding up for the purposes of amalgamations or reconstruction);

       (ii) a provisional liquidator is appointed to the Buyer;

       (iii) a mortgagee or any other party enters into possession of the property of the Buyer;

       (iv) a charge is levied or placed upon any of the assets of the Buyer;

       (v) the Buyer enters into any arrangement, composition, compromise, agreement or understanding with the Buyer’s creditors pursuant to the Corporations Act 2001 (Cth); or

       (vi) the Buyer is placed under official management of a receiver or a receiver and manager is appointed over the whole or any part of its undertaking.

(d) SYNGENTA will not accept any new order and may withhold Delivery of any accepted order while payment of the Purchase Price and Additional Charges under any Supply Contract remains outstanding beyond the Due Date.

(e) Payment of the Purchase Price and Additional Charges by the Due Date is an essential term of each Supply Contract.

(f) Any remittance or tender in any medium other than cash will effect payment only to the extent of cash finally collected and received by SYNGENTA in respect of that remittance or tender.

8. RISK

(a) Risk in the Goods passes to the Buyer on Delivery.

9. OWNERSHIP AND RETENTION OF TITLE

(a) Title in the Goods will remain with SYNGENTA until the Buyer has paid to SYNGENTA all amounts owing by the Buyer to SYNGENTA for all the Goods Delivered to the Buyer including the Purchase Price and all Additional Charges in respect of the Goods in question.

(b) While monies remain due and payable to SYNGENTA:

       (i) SYNGENTA is entitled to the proceeds of any dealing in the Goods (including the proceeds of sale of the Goods); and

       (ii) the Buyer must hold and store the Goods as bailee in such a way that clearly identifies those Goods as being the property of SYNGENTA, and without limiting the generality thereof, the Buyer must ensure that the Goods are stored in a safe and proper position separate and apart from other goods which are not the property of SYNGENTA and clearly label the Goods so as to identity them as being the property of SYNGENTA.   

(c) Without limiting clause 9(e)(iii), any sale or use of the Goods by the Buyer is subject to SYNGENTA’s retained title to the Goods pending payment in full of the Purchase Price and any Additional Charges due.

(d) The Buyer must insure the Goods sold to it by SYNGENTA against all usual risks at least for the amount of the Purchase Price and Additional Charges thereon, and treat such Goods with all proper care.  The proceeds of any insurance claims in respect of damage to or destruction of the Goods are hereby assigned by the Buyer to SYNGENTA, to the extent that any amounts are owing to SYNGENTA in respect of the Goods. If any amount remains owing to SYNGENTA in respect of particular Goods following Delivery, the Buyer also indemnifies SYNGENTA against all loss or damage to those Goods however arising on or after Delivery up to an amount equal to the amount owing to SYNGENTA in respect of the Goods.

(e) Notwithstanding anything else contained herein, the Buyer must, while monies remain due and payable to SYNGENTA in respect of particular Goods, take the following steps or precautions to protect SYNGENTA’s interest in such Goods:

       (i) notify any person who seizes or attempts to seize all or any of the Goods of SYNGENTA’s ownership thereof immediately as any such seizure or attempted seizure is made or otherwise first becomes known to it;

       (ii) take all reasonable and lawful steps to prevent or otherwise hinder or obstruct the seizure or attempted seizure of the Goods, including but without limiting the generality thereof, arranging for the immediate intervention of the Police and the immediate notification of the seizure or attempted seizure to SYNGENTA;

       (iii) not purport to create or permit to subsist any lien or other encumbrance on the Goods by any person and otherwise expressly advise as soon as possible any proposed or existing mortgagee, chargee or other encumbrancee of the assets of the Buyer, of SYNGENTA’s title in the Goods;

       (iv) make no representations or warranties or otherwise act in such a manner as to create the understanding or impression or belief in any person that the Buyer has the right to deal with the Goods in any manner other than that permitted or provided for in these Terms and Conditions of Sale;

       (v) notify SYNGENTA immediately of any loss or damage to the Goods;

       (vi) permit SYNGENTA (without limiting the generality of clause 10(a)(ii)) at any time and from time to time to enter and remain upon the premises of the Buyer at which the Goods are stored with or without vehicles for the purpose of removing and repossessing, and allowing for the removal and repossession by SYNGENTA of, the said Goods in the event that SYNGENTA has reasonable grounds to believe that such an attendance and/or removal by it at that time is necessary, in all of the circumstances, to prevent the loss of the said Goods to SYNGENTA or from the control or possession of the Buyer, not being a loss arising from a bona fide sale or use of same by the Buyer; and

       (vii) disclose to SYNGENTA on request all information regarding the resale or use in production of the Goods.

(f) If there is any inconsistency between SYNGENTA’s rights under the above clause 9(e) and its rights under Chapter 4 of the Australian Personal Property Securities Act 2009 (Cth) (PPSA Australia) or similar provisions in the equivalent legislation in New Zealand, this clause 9 prevails.

(g) Without limiting the generality of clause 10(a)(ii), if SYNGENTA retakes possession pursuant to clause 9(e) SYNGENTA reserves the right to resell any repossessed Goods and to apply the proceeds of such resale in satisfaction of monies owing by the Buyer to SYNGENTA in relation to the Goods.

(h) The Buyer agrees to indemnify SYNGENTA from and against all proceedings, including all claims, suits or litigation whatsoever brought by any person and arising from or being incidental to or by virtue of the entry onto the Buyer’s premises and removal of the Goods by SYNGENTA pursuant to its right to do so under clause 9(e)(vi).

(i) The Buyer agrees that in the event that:

       (i) the Buyer attempts to sell the Goods, or asserts to have sold the Goods to a third party buyer; and

       (ii) the title and property of those Goods is retained by SYNGENTA pursuant to clause 9(a);

then any monies paid by the third party buyer to the Buyer for those Goods is held on trust for the benefit of SYNGENTA until such time as the Purchase Price and Additional Charges are paid in full to SYNGENTA.

(j) Despite any statement to the contrary by the Buyer, every payment to SYNGENTA in respect of the Goods must be taken as a payment:

       (i) first, of any debt which is not the subject of a security interest in favour of SYNGENTA;

       (ii) second, of the amounts held by the Buyer on trust for SYNGENTA or subject to a security interest in favour of SYNGENTA, to the extent that the trust or security interest is not a purchase money security interest under the PPSA Australia or in the case of Goods located in Australia, was not perfected by registration within the time specified by section 62 of the PPSA Australia;

       (iii) third, of the amounts held by the Buyer on trust for SYNGENTA or subject to a security interest in favour of SYNGENTA of amounts, to the extent that the trust or security interest is a purchase money security interest under the PPSA Australia and, in the case of Goods located in Australia, was perfected by registration within the time specified by section 62 of the PPSA Australia;

       (iv) fourth, for any Goods that the Buyer has sold but for which it has not received the proceeds; and

       (v) fifth, for whatever Goods the Buyer has not sold as SYNGENTA elects.

(k) The Buyer acknowledges and agrees that SYNGENTA has a security interest in all Goods Delivered to the Buyer, attaching at the time the Buyer takes possession of the Goods and whilst monies remain due and payable to SYNGENTA, and that SYNGENTA shall be entitled to register a security interest under the PPSA Australia or equivalent legislation in New Zealand in respect of any of its retention of title rights under this clause 9, and that the provisions of clauses 21 and 22 of these Terms and Conditions of Sale will apply.

10. REMEDIES

(a) In addition and without prejudice to any other right or remedy available to SYNGENTA, if the Buyer fails to pay SYNGENTA the Purchase Price and/or Additional Charges due in respect of the Goods sold or supplied by SYNGENTA under a Supply Contract by the Due Date, and provided that SYNGENTA has first given the Buyer ten (10) working days' notice of its intention to do so unless the outstanding amounts are paid, SYNGENTA may:

       (i) sue the Buyer for the Purchase Price and/or Additional Charges; or

       (ii) where the Goods are in the possession or control of the Buyer, SYNGENTA or its servants, agents or representatives may recover possession of the Goods wherever the Goods may be and the Buyer must assist and indemnify SYNGENTA in relation to such recovery and, if SYNGENTA thinks fit, SYNGENTA may:

              (A) resell the Goods AND retain the sale proceeds together with any deposit previously paid by the Buyer and recover from the Buyer any deficiency of monies then still outstanding to SYNGENTA (or account to the Buyer for any surplus) following resale, after charging the Buyer for all expenses incurred in connection with such resale; or

              (B) retain the Goods and recover from the Buyer the loss of profit to SYNGENTA on the transaction (after allowing for any deposit paid to SYNGENTA) which may then be retained by SYNGENTA; and

       (iii) recover from the Buyer interest on the unpaid and overdue Purchase Price and/or Additional Charges at the Reserve Bank of Australia’s cash rate plus a further 3.5% per annum on each overdue amount from the date or dates each overdue amount became due, until the full payment thereof has been made to SYNGENTA; and

       (iv) recover from the Buyer all reasonable costs, charges, fees or disbursements incurred or paid by SYNGENTA to a debt collector, solicitor or otherwise arising from or in relation to the recovery or attempted recovery made or undertaken by or on behalf of SYNGENTA of the unpaid Purchase Price and/or Additional Charges from the Buyer.

(b) If the Buyer takes or has taken or instituted against it any action or proceedings of the type or nature of that referred to in clause 7(c) then, SYNGENTA may without prejudice to any of its other rights (including but not limited its rights under clause 7(c));

       (i) suspend further Deliveries of Goods; and/or;

       (ii) require payment in advance for any further Deliveries of Goods; and/or

       (iii) terminate any Supply Contract by notice to the Buyer.

11. BUYER IS NOT SYNGENTA’S AGENT

The Buyer is not the agent of SYNGENTA in any respect and is not authorised to hold itself out as the agent of SYNGENTA or purport to incur any obligation or make or give any promise, undertaking, warranty or representation on behalf of SYNGENTA.

12. PALLETS

(a) The Buyer acknowledges and agrees that all pallets used in the Delivery of Goods must be treated as follows:

       (i) the Buyer must account for any pallets that are, or have been identified as, CHEP pallets or pallets that are otherwise not owned by SYNGENTA directly to the carrier of the Goods, regardless of whether that carrier was engaged by SYNGENTA or by the Buyer, on such terms as that carrier may nominate; and

       (ii) if the Buyer has paid for the Goods, all title and property in any pallets accompanying Goods that are the property of SYNGENTA passes to the Buyer on Delivery.

(b) All risk in respect of any pallets accompanying Goods passes to the Buyer upon Delivery.

(c) In no circumstance will SYNGENTA:

       (i) issue credit for the return of pallets; or

       (ii) accept hiring responsibility for pallets by a transfer of pallets from a Buyer’s CHEP account.

(d) SYNGENTA may, at the Buyer's cost, retake possession of the pallets accompanying the Goods if:

       (i) the Buyer breaches this clause 12; or

       (ii) it is required by law to do so.

(e) The Buyer indemnifies SYNGENTA for any loss and damage suffered as a result of a breach of this clause 12 by the Buyer.

13. WEIGHT & PRODUCT RECALL

(a) In the absence of a proven defect in SYNGENTA’s system of weighing, the weight of the Goods will be the last weight determined by the SYNGENTA system of weighing prior to Delivery.

(b) SYNGENTA may, on giving as much notice to the Buyer as is reasonably practicable in the circumstances, and without the need to provide reasons, remove any of the Goods from the SYNGENTA product list set out in Schedule 2 of the Trading Terms.

(c) SYNGENTA may institute a recall of any  Goods previously supplied to the Buyer in the event that:

       (i) SYNGENTA identifies that the relevant Goods do not meet relevant safety, trade, efficacy or labelling criteria specified in regulations or by any competent authority; or

       (ii) any competent authority requires the withdrawal from sale and/or the disposal of the Goods in question.

(d) The Buyer is responsible for effecting any recall of any of the Goods Delivered to it, as and when and in the manner advised by SYNGENTA.  SYNGENTA shall bear its own costs relating to the recall and the reasonable and direct costs incurred by the Buyer in relation to the recall, provided that if a recall of any of the Goods is necessary as a result of any act or omission (whether negligent or wilful misconduct or otherwise) by the Buyer or any of its agents, representatives or contractors, the Buyer shall bear all of its own costs of any recall and shall reimburse SYNGENTA’s reasonable and direct costs associated with the recall.

(e) The Buyer shall keep accurate and current records of the sale by it of each of the Goods as and when they are sold, and of the distribution of all samples and sample packs of any of the Goods in sufficient detail to enable a complete recall of any of the Goods and/or samples to be undertaken as and when and in the manner directed by SYNGENTA.

14. GOVERNING LAW AND JURISDICTION

(a) The Continuing Supply Agreement, these Terms and Conditions of Sale and each Supply Contract  will be governed by or construed in accordance with the laws from time to time of the State of New South Wales and the Commonwealth of Australia.

(b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of the State or Territory referred to in clause 14(a) and the Courts of Appeal from them for determining any dispute concerning the Continuing Supply Agreement, these Terms and Conditions of Sale or any Supply Contract.  Each party waives any right it has to object to an action being brought in those courts, including but not limited to claiming that an action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

15. WAIVERS, REPRESENTATIONS AND ENTIRE AGREEMENT

(a) Subject to clauses 15(b) and 15(e), the Buyer acknowledges that it has not relied upon any statement, representation, promise, warranty or condition, oral or written, made or given by SYNGENTA or anyone on its behalf in respect of the Goods or the terms and conditions of any contract other than these Terms and Conditions of Sale and any conditions and warranties necessarily implied by the law and not excluded herein.

(b) Subject to the provisions of clause 15(e), with respect to a supply of Goods these Terms and Conditions of Sale together with any SYNGENTA quotation, SYNGENTA confirmation of order, SYNGENTA invoice and/or SYNGENTA statement of account in relation to the Goods supersede all prior discussions and writing between SYNGENTA and the Buyer (other than the Continuing Supply Agreement) and together with any such Continuing Supply Agreement constitute the entire and only agreement between them as to this subject matter.

(c) A right created under these Terms and Conditions may not be waived except in writing signed by the party granting the waiver.

(d) Failure by SYNGENTA to insist upon strict performance by the Buyer of any provisions of these Terms and Conditions will not constitute a waiver thereof or of any rights of SYNGENTA in relation thereto, and in any event will not be taken to be a waiver of the same provisions on any subsequent occasion.

(e) Notwithstanding anything else contained herein, no addition to, nor any variation or waiver of these Terms and Conditions of Sale nor any terms and conditions proffered by the Buyer in any manner, including but not limited to any terms and conditions printed on the Buyer’s purchase order, shall have any legal effect unless expressly agreed to in writing on behalf of SYNGENTA by a duty authorised employee of SYNGENTA.

16. ASSIGNMENT & NO SET-OFF

(a) The Buyer may not assign its rights under the Continuing Supply Agreement or a Supply Contract without the prior written consent of SYNGENTA, which consent will not be unreasonably withheld.

(b) SYNGENTA may assign its obligations  the Continuing Supply Agreement or a Supply Contract as part of any sale or reorganisation of its business without the consent of the Buyer.

(c) It will not be unreasonable of SYNGENTA to withhold its consent under clause 16(a) while any amounts payable to SYNGENTA under a Supply Contract remain outstanding.

(d) Save as expressly provided in these Terms and Conditions of Sale, the Buyer shall not be entitled to set-off against any amount due by it to SYNGENTA, any amount which is or is alleged to be owing by SYNGENTA to the Buyer.

17. SEVERANCE

If any of these Terms and Conditions of Sale is void, unenforceable or illegal for any reason in any jurisdiction, that part of these Terms and Conditions of Sale will, in that jurisdiction only, be read down to the minimum extent necessary so that it is not invalid, unenforceable, illegal, void or voidable (if practical), or be severed from the Continuing Supply Agreement or Supply Contract in any other case.  The remainder of the Continuing Supply Agreement or the Supply Contract, as the case may be, will have full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.  This clause has no effect if the severance alters the basic nature of  the Continuing Supply Agreement or the Supply Contract or is contrary to public policy.

18. FORCE MAJEURE

(a) If a party (the "Affected Party") is unable wholly or in part by reason of Force Majeure to carry out any of its obligations under a Supply Contract (other than an obligation to pay the Purchase Price and/or any Additional Charges), and provided that the Affected Party promptly and diligently acts to mitigate or remove the Force Majeure and its effect:

       (i) that obligation will be suspended for so long as it is affected by Force Majeure during the continuance of the Force Majeure; or

       (ii) the Supply Contract will be terminated.

(b) If the Affected Party elects to terminate the Supply Contract the Affected Party must notify the other party of the termination in writing, and must nominate in writing the effective date of termination.  Any such termination shall be without prejudice to the Affected Party’s accrued rights prior to the effective date of termination.

(c) The Buyer acknowledges and agrees that SYNGENTA is not liable for any breach of a Supply Contract, any failure to supply the Goods, any delay in the supply of the Goods, or for the termination of a Supply Contract caused by Force Majeure.  The Buyer acknowledges that if SYNGENTA elects to terminate a Supply Contract SYNGENTA will be under no obligation at any future date to Deliver the Goods the subject of the terminated Supply Contract. Subject to these Terms and Conditions of Sale as incorporated into a Supply Contract, SYNGENTA will refund to the Buyer any monies paid by the Buyer to SYNGENTA for Goods that SYNGENTA is unable to deliver to the Buyer due to an event of Force Majeure.

(d) In this clause 18, "Force Majeure” means an act of God, strike, labour dispute or other interference with work, war, blockade, disturbance, act of terrorism, attempted act of terrorism, flood, explosion, governmental requirement, intervention or embargo, unavailability or delay in availability of raw materials, equipment or transport, pandemic and any other cause whatsoever (whether or not similar to those specifically enumerated above) which is not reasonably within the control of the Affected Party.

19. NOTICES

(a) Any notices to be given to SYNGENTA pursuant to these Terms and Conditions must be addressed to the Managing Director and either hand delivered or sent by prepaid post or email to the address stated on the relevant SYNGENTA invoice.

(b) Notices to be given to the Buyer shall be addressed to the General Manager or the manager of the Buyer and hand delivered or sent by prepaid post or email address to the Buyer’s addresses stated on the relevant order or other like correspondence.

(c) Notices delivered by hand to the Buyer will be deemed to be received on the day on which the delivery was made. Notices sent by prepaid post will be deemed to have been received four (4) working days after posting. Notices sent by email shall be deemed received 24 hours after being sent. It is the responsibility of the party disclaiming receipt of an email to prove non receipt.

20. ANTI-BRIBERY OBLIGATIONS

(a) The Buyer must, and must procure that any person associated with the Buyer including but not limited to its affiliates, its or their direct or indirect shareholders, employees, officers, agents, representatives, independent contractors, suppliers, sub-contractors and/or sub-Buyers :

       (i) comply with (i) all applicable Australian laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption (ii) all anti-bribery and like laws and regulations in force in the state or territory in which the Buyer carries on business and/or a Supply Contract is performed; and (iii) the Syngenta Anti-Bribery Policy and Syngenta Gifts & Entertainment Policy in force for the time being, both of which are available from Syngenta on request (collectively, the “Relevant Requirements”);

       (ii) not engage in any activity, practice or conduct which would constitute a breach of any Relevant Requirement;

       (iii) have and maintain in place throughout the term of the Continuing Supply Agreement and at the time it places any order under these Terms and Conditions its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate;

       (iv) not engage in any business with employees of SYNGENTA which may result in the personal interest of such employees conflicting with their duties to SYNGENTA. Such conflicts of interest will include offering any personal loans to SYNGENTA employees or persons related to them or giving or offering or lending to SYNGENTA employees or persons related to them any goods or products, including SYNGENTA products; and

       (v) cooperate fully in any investigation by SYNGENTA of a potential violation of any provision of this clause 20.

(b) The Buyer must:

       (i) report to SYNGENTA any request or demand for any undue financial or other advantage of any kind received by the Buyer in connection with the performance of the Continuing Supply Agreement or a Supply Contract;

       (ii) immediately notify SYNGENTA in writing if a foreign public official becomes an officer or employee, agent or contractor of the Buyer or any of its affiliates or acquires a direct or indirect interest in the Buyer or any of its affiliates and the Buyer warrants that, it has no foreign public officials as direct or indirect owners, officers, employees, agents or contractors at the date of the Continuing Supply Agreement and each Supply Contract;

       (iii) as and when requested by SYNGENTA, certify to SYNGENTA in writing signed by an officer of the Buyer, compliance with the provisions of this clause 20 by the Buyer, and the Buyer shall provide such supporting evidence of compliance as SYNGENTA may reasonably request; and

       (iv) maintain accurate books and records necessary to demonstrate compliance with the obligations under this clause 20.

(c) The Buyer represents, warrants and undertakes to SYNGENTA that it has not and shall not pay, offer, promise, or authorise any payment or other advantage, whether directly or through intermediaries, to improperly obtain, retain or direct business or to secure any other improper advantage in the conduct of business directly or indirectly in connection with the performance of the Continuing Supply Agreement and each Supply Contract.

(d) If the Buyer or its affiliates, or its or their direct or indirect owners, subcontractors, members, managers, directors, officers, employees, independent contractors, subcontractors, agents or representatives are made the subject of any claim, charge, or accusation of being, or are found to be, in violation of any Relevant Requirement, the Buyer will indemnify SYNGENTA and its affiliates and its and their employees and officers from any and all threatened or actual claims, suits, actions, or proceedings, and any reasonable associated costs (including pre-suit investigations, expert fees, attorney's fees) and any and all sums paid or awarded with respect thereto as penalties, damages, restitutions, or otherwise.

(e) The Buyer must immediately notify SYNGENTA if the Buyer becomes aware of any breach of any provision of this clause 20. Any breach of any provision of this clause 20 shall be deemed a material breach of the Continuing Supply Agreement.

21. PERSONAL PROPERTY SECURITIES ACT

(a) Unless otherwise stated, a reference in the Terms and Conditions of Sale to "PPSA" is a reference to the Personal Property Securities Act 2009 (Cth) ("PPSA Australia") if the Goods are located in Australia or the Personal Property Securities Act 1999 (NZ) ("PPSA NZ") if the Goods are located in New Zealand.

(b) Where the Goods are located in either Australia or New Zealand, the Buyer agrees that each Supply Contract creates or gives rise to a security interest in the Goods Delivered to the Buyer as well as the proceeds of any sale or insurance claim in respect of the Goods (or any other dealing in the Goods), as security for the Buyer's obligations to SYNGENTA, which is registrable on the Personal Property Securities Register under the relevant PPSA (including by way of registration of a financing statement).

(c) SYNGENTA's security interest in the Goods is a 'Purchase Money Security Interest' as that term is defined the PPSA.

(d) The Buyer agrees to do all such things and execute or arrange for execution of all such documents as SYNGENTA may require to ensure that SYNGENTA acquires and maintains a perfected first ranking security interest in the Goods under the PPSA.

(e) The Buyer agrees not to allow any third party to acquire a competing security interest in the Goods or proceeds of the Goods without the prior written consent of SYNGENTA.

(f) The Buyer must indemnify SYNGENTA for any costs SYNGENTA incurs in registering a financing statement, financing change statement, or responding to a change demand under the PPSA or enforcing SYNGENTA's security interest under the PPSA. The Buyer waives its right to receive a copy of any verification statement(s) under the PPSA and agrees that as between SYNGENTA and the Buyer, the Buyer will have no rights under (or by reference to) sections 114(1)(a), 116, 119, 120(2), 121, 125, 126, 127, 131, 133 and 134 of the PPSA NZ or sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142, 143 of the PPSA Australia (to the extent allowed by s 115 of the PPSA Australia).

(g) The Buyer and SYNGENTA agree that neither of them is required to disclose any information of a kind referred to in section 275(1) of the PPSA Australia that is not in the public domain unless section 275(7) would otherwise apply.

(h) The Buyer must immediately notify SYNGENTA of any change in the Buyer's name, address details and any other information provided to SYNGENTA to enable SYNGENTA to register a financing change statement if required.

22. NEW ZEALAND CONSUMER GUARANTEES ACT, SALE OF GOODS ACT AND FAIR TRADING ACT

(a) The Buyer acknowledges that the supply under this contract is a supply for business purposes in terms of section 2 and 43 of the Consumer Guarantees Act 1993 (Act) (NZ) ("Consumer Guarantees Act") and accordingly the provisions of the Consumer Guarantees Act do not apply to any supply of Goods made pursuant to a Supply Contract.

(b) If the Buyer on-supplies any Goods supplied to it by SYNGENTA under a Supply Contract, the Buyer must indicate in writing to the buyer of the Goods that the Consumer Guarantees Act will not apply where the Goods are on-supplied for business purposes in New Zealand.

(c) The provisions of the Sale of Goods Act 1908 (NZ) will not apply (including any subsequent statutory provision which amends or replaces it, and any bylaw, regulation, order, statutory instrument, determination or subordinate legislation made under it) to any Supply Contract.

(d) To the extent permitted by law, where the Goods are supplied in trade within the meaning of the Fair Trading Act 1986 (NZ) ("Fair Trading Act"), the parties agree that sections 9, 12A, 13 and 14(1) of the Fair Trading Act (including any subsequent statutory provision which amends or replaces it, and any bylaw, regulation, order, statutory instrument, determination or subordinate legislation made under it) will not apply to any Supply Contract.

23. Privacy and Use of Data

(a) Each party must comply with the Privacy Act 1988 (Cth) and the Privacy Act 2020 (NZ) (together and separately, Privacy Legislation) to the extent they apply to the collection, use, storage and handling of any personal information in connection with the Continuing Supply Agreement and the transactions contemplated by these Terms and Conditions of Sale.

(b) Without limiting paragraph 23(a), the Buyer warrants that it has made all disclosures and obtained all consents required under the Privacy Legislation in order to lawfully disclose to SYNGENTA the personal information provided to SYNGENTA for the purposes of these Terms and Conditions of Sale or any Supply Contract.

(c) The Buyer agrees that:

       (i) any information, including personal information, provided by the Buyer to SYNGENTA may be collected, stored, and used by SYNGENTA for any purpose connected with SYNGENTA's business including (but not limited to) direct marketing, debt collection and credit reporting or assessment;

       (ii) SYNGENTA is authorised to carry out credit checks in relation to the Buyer, and where the Buyer is a company, about the directors of the Buyer and to provide such information to any external agency or party for credit information and assessment purposes necessary for those purposes; and

       (iii) Subject to complying with the Privacy Legislation, SYNGENTA and any external agency or party may retain and/or use such information for as long as they reasonably require.

(d) Any personal information will be collected, stored, and used in accordance with our Privacy Policy located on our website. Should you wish to request access to or correction of any personal information held by SYNGENTA please see our Privacy Policy for directions.

24. Amendments

SYNGENTA may amend these Terms and Conditions of Sale at any time. The amended Terms and Conditions of Sale will apply in respect of any order submitted by the Buyer and accepted by SYGENTA for the supply of any Goods to the Buyer following the date the amended Terms and Conditions of Sale are provided to the Buyer in writing.

25. Inconsistency

In construing a Supply Contract, to the extent of any inconsistency between a provision of these Terms and Conditions of Sale and an order accepted by SYNGENTA in accordance with clause 4(b), the provisions will apply in the following descending order of priority:  

       (i) order accepted by SYNGENTA; and
       (ii) these Terms and Conditions of Sale,

provided that these Terms and Conditions of Sale will prevail over any other terms and conditions stipulated by the Buyer or included as part of any documentation the Buyer provides to SYNGENTA.