Terms of Trade |

1. Definitions and Interpretation

1.1 Definitions In these Terms:

ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Business Day means a day other than a Saturday, Sunday or public holiday in Victoria.

Boomaroo, we, us or our means Boomaroo Nurseries & Wholesale Supplies Pty Ltd ACN 007 005 861 and includes its successors and permitted assigns.

Claim includes any claim, demand, action, proceeding, liability, loss, damage, cost or expense.

Consequential Loss includes loss of profit, loss of revenue, loss of production, loss of crop, loss of yield, business interruption, loss of opportunity and any indirect or consequential loss.

Customer means the person or entity acquiring Goods from Boomaroo and includes its employees, agents, contractors, successors and permitted assigns.

Goods means all seedlings, nursery stock, propagated material, horticultural products, agricultural products, trays, transport equipment and associated goods supplied by Boomaroo.

GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means where a person:

enters liquidation, administration, receivership or bankruptcy;
enters into any arrangement or compromise with creditors; or
is otherwise unable to pay debts as and when they fall
enters voluntary deregistration, is struck off or otherwise ceases to carry on

PPSA means the Personal Property Securities Act 2009 (Cth).

Purchase Order means any order or request for Goods placed by the Customer.

Security Interest has the meaning given in the PPSA.

Terms means these Terms of Trade, including the schedules, as amended from time to time.

1.2 Interpretation

Unless the context otherwise requires:

headings are for convenience only and do not affect interpretation;
the singular includes the plural and vice versa;
a reference to legislation includes amendments and replacements; and
a reference to a person includes a corporation, trust, partnership and other legal

2. Application of Terms

2.1 These Terms apply to all supplies of Goods by Boomaroo

2.2 These Terms prevail over any inconsistent terms contained in any document issued by the Customer unless expressly agreed in writing by Boomaroo.

2.3 Placement of a Purchase Order, acceptance of delivery, or payment for Goods constitutes acceptance of these Terms.

2.4 Boomaroo may amend these Terms by providing written notice to the Customer. Any amended Terms apply to Purchase Orders placed after the date of notice unless otherwise

3. Quotations and Orders

3.1 Any quotation issued by Boomaroo:

(a) is indicative only;
(b) is not an offer capable of acceptance; and
(c) may be withdrawn or amended at any time prior to acceptance.

3.2 Unless otherwise stated, quotations remain valid for five (5) Business Days.

3.3 A Purchase Order is not binding on Boomaroo until accepted in writing

3.4 Boomaroo may:

(a) reject any order;
(b) allocate stock between customers;
(c) substitute comparable Goods where reasonably necessary;
(d) limit supply quantities; and
(e) refuse supply where account terms are not complied with.

3.5 Once accepted, a Purchase Order may not be cancelled without Boomaroo’s written consent.

3.6 Any variation requested by the Customer after acceptance of a Purchase Order is subject to Boomaroo’s written approval and the Customer remains liable for all resulting costs, losses and expenses.

3.7 Boomaroo may impose minimum order quantities, lead times, forecasting requirements or production allocation requirements from time to time having regard to seasonal, operational, propagation and supply chain considerations.

3.8 The Customer acknowledges that certain Goods may be propagated, grown, sourced or allocated specifically in anticipation of forecast demand, indicative volumes or Purchase Orders communicated by the Customer.

3.9 Boomaroo is not obliged to accept or fulfil any Purchase Order that does not comply with any notified minimum quantities, lead times or ordering requirements.

4. Price and Payment

4.1 Unless otherwise agreed in writing, prices quoted by Boomaroo are:

(a) exclusive of GST;
(b) exclusive of delivery, freight and unloading costs; and
(c) subject to variation prior to acceptance of a Purchase Order.

4.2 Boomaroo may vary pricing where there are increases in:

(a) input costs;
(b) labour costs;
(c) freight or logistics costs;
(d) supplier costs;
(e) government charges, duties or levies; or
(f) costs arising from circumstances beyond Boomaroo’s reasonable control

4.3 Without limiting clause 4.2, Boomaroo may apply reasonable fuel surcharges, freight recovery charges or delivery-related surcharges having regard to increases in fuel, transport or logistics costs.

4.4 Unless otherwise agreed in writing, payment for Goods is due prior to delivery.

4.5 Approved trading accounts must be paid strictly within thirty (30) days from the invoice date.

4.6 Time for payment is of the essence.

4.7 Boomaroo may:

(a) require full or partial prepayment;
(b) impose or vary credit limits;
(c) require additional security or guarantees; and
(d) suspend or refuse further supply

4.8 Interest accrues on overdue amounts at the rate of 12% per annum calculated daily from the due date until payment in full.

4.9 The Customer must pay all reasonable costs incurred by Boomaroo in recovering overdue amounts including legal costs, mercantile agent costs and internal administration costs.

4.10 Payments received may be applied by Boomaroo against any outstanding amounts at its discretion.

4.11 The Customer must not:

(a) withhold payment;
(b) deduct amounts; or
(c) claim set-off,
unless required by law or agreed in writing by Boomaroo.

4.12 Boomaroo may suspend supply immediately where any amount remains overdue.

4.13 If GST is payable on any taxable supply made under or in connection with these Terms, the Customer must pay to Boomaroo an additional amount equal to the GST payable at the same time as payment for the taxable supply is due.

4.14 If a party is required to reimburse or indemnify another party for any cost, expense, loss or liability, the amount payable must be reduced by any input tax credit to which the receiving party is entitled and increased by any GST payable in relation to the reimbursement or indemnity.

4.15 The Customer indemnifies Boomaroo against any liability, loss, cost, penalty, interest or expense incurred arising from any incorrect, incomplete or misleading information provided by the Customer in relation to GST treatment, exemptions, classifications or entitlements.

5. Credit Facilities

5.1 Boomaroo may require the Customer to complete a credit application.

5.2 The Customer authorises Boomaroo to conduct credit and financial enquiries.

5.3 Boomaroo may require directors’ guarantees or additional security. Without limiting this clause, Boomaroo may require directors, trustees or related entities to execute guarantees, indemnities or other security documents as a condition of supply, and any such document forms part of the broader commercial arrangements between the parties.

5.4 Boomaroo may suspend supply if:

(a) payment remains overdue;
(b) credit limits are exceeded; or
(c) Boomaroo reasonably considers the Customer’s creditworthiness unsatisfactory.

6. Nature of Goods and Agricultural Risk

6.1 The Customer acknowledges that horticultural and agricultural products are inherently subject to biological, environmental and seasonal variability.

6.2 Germination, vigour, survival, crop performance, harvest yield and profitability are affected by factors beyond Boomaroo’s reasonable control.

6.3 Such factors include:

(a) climate and weather;
(b) irrigation and soil conditions;
(c) cultivation methods;
(d) storage and handling;
(e) pests and disease;
(f) chemical application; and
(g) transport conditions.

6.4 Subject to any non-excludable rights under the ACL, Boomaroo does not warrant:

(a) crop outcome;
(b) survival rates;
(c) profitability;
(d) suitability for a particular purpose; or
(e) harvest yield.

6.5 The Customer assumes all cultivation and production risk following delivery.

7. Delivery and Risk

7.1 Any delivery dates quoted by Boomaroo are estimates only and are not guaranteed.

7.2 Boomaroo is not liable for delay, shortage or failure to supply arising from:

(a) weather events;
(b) seasonal conditions;
(c) crop failure;
(d) transport disruption;
(e) labour shortages;
(f) supplier shortages;
(g) biosecurity events;
(h) disease outbreaks; or
(i) events beyond Boomaroo’s reasonable control.

7.3 Boomaroo may make partial deliveries.

7.4 Partial delivery does not entitle the Customer to reject the balance of any order.

7.5 Boomaroo may allocate available stock between customers at its discretion.

7.6 Risk in the Goods passes immediately upon delivery.

7.7 Delivery occurs when the Goods are:

(a) collected by the Customer;
(b) delivered to the Customer’s nominated site; or
(c) delivered to a carrier nominated by the Customer.

7.8 The Customer must:

(a) provide safe and suitable site access;
(b) provide suitable unloading facilities; and
(c) comply with all workplace health and safety obligations.

7.9 Boomaroo may charge additional costs arising from:

(a) delayed unloading;
(b) waiting time;
(c) inaccessible delivery sites;
(d) failed delivery attempts; and
(e) re-delivery requirements.

7.10 The Customer indemnifies Boomaroo against claims arising from delivery site conditions or unsafe access, except to the extent caused by Boomaroo’s negligence or willful misconduct.

7.11 Where delivery is delayed at the Customer’s request, risk in the Goods passes to the Customer from the date the Goods are ready for dispatch and Boomaroo may charge reasonable storage and handling costs.

7.12 If the Customer refuses or fails to accept delivery, the Goods are deemed delivered and Boomaroo may charge storage, re-delivery and disposal costs reasonably incurred.

8. Inspection and Claims

8.1 The Customer must inspect the Goods immediately upon delivery.

8.2 Claims relating to shortages, defects, transport damage or incorrect Goods must be notified in writing within twenty-four (24) hours of delivery.

8.3 Claims must include photographs and sufficient particulars.

8.4 Failure to notify within the required timeframe constitutes acceptance of the Goods.

8.5 Boomaroo is not liable for claims arising after planting, propagation or further processing, except to the extent required by law.

8.6 Approved claims and returns are dealt with in accordance with Schedule A.

9. Returns and Replacement

9.1 Returns are not accepted unless approved by Boomaroo.

9.2 Approved returns must be returned at the Customer’s expense unless otherwise agreed in writing.

9.3 Subject to the ACL and Schedule A, Boomaroo may elect to:

(a) replace the Goods; or
(b) credit or refund the purchase price.

10. Retention of Title

10.1 Title to the Goods remains with Boomaroo until all monies owing by the Customer are paid in full.

10.2 Until title passes, the Customer:

(a) holds the Goods as fiduciary bailee for Boomaroo;
(b) must separately identify the Goods; and
(c) must not grant or permit any Security Interest over the Goods, crops, produce, harvested material, proceeds or receivables arising from the Goods without Boomaroo’s prior written consent.

10.3 Boomaroo may enter premises occupied by the Customer to recover unpaid Goods.

10.4 The Customer irrevocably authorises Boomaroo to enter such premises for recovery purposes.

10.5 Boomaroo has a general lien over any Goods, equipment or property of the Customer in Boomaroo’s possession as security for all monies owing by the Customer to Boomaroo.

10.6 Until Boomaroo has been paid in full, all proceeds arising from the sale or dealing with crops, produce or products grown or derived from the Goods are held on trust for Boomaroo to the extent of monies owing.

11. PPSA

11.1 The Customer grants Boomaroo a Security Interest in:

(a) the Goods;
(b) all crops, produce, harvested material and other products grown, derived or produced from the Goods;
(c) all proceeds, receivables, accounts, insurance proceeds and identifiable sale proceeds arising from the Goods, crops or produce; and
(d) all present and after-acquired property of the Customer.

11.2 Boomaroo may register one or more Purchase Money Security Interests (PMSIs) and other Security Interests under the PPSA and the Customer acknowledges that Boomaroo intends to preserve and enforce any PMSI priority available under the PPSA.

11.3 The Customer must do all things reasonably required to perfect or protect Boomaroo’s Security Interest.

11.4 The Customer warrants that the Goods are acquired wholly or predominantly for commercial purposes and will not be used for personal, domestic or household purposes.

11.5 To the extent permitted by law, the Customer waives its rights under sections 95, 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA.

11.6 To the extent permitted by law, the Customer waives rights to notices under the PPSA

12. Trays and Transport Equipment

12.1 All trays, frames, racks and transport equipment supplied by Boomaroo remain Boomaroo property.

12.2 The Customer must:

(a) keep such equipment secure and in good condition; and
(b) return equipment promptly upon request.

12.3 Boomaroo may charge replacement costs for lost or damaged equipment.

13. Customer Acknowledgements

13.1 The Customer acknowledges that:

(a) Goods are propagated and grown in response to forecast demand and orders;
(b) availability may vary due to seasonal and biological factors; and
(c) Boomaroo relies upon information provided by the Customer regarding timing, volumes and intended use.

13.2 The Customer warrants that:

(a) it possesses the necessary expertise and skill regarding cultivation and use of the Goods; and
(b) it has independently assessed the suitability of the Goods.

13.3 The Customer must not propagate, reproduce, clone, commercialise or otherwise deal with any protected plant variety, proprietary cultivar or propagating material supplied by Boomaroo except as expressly authorised in writing.

14. Warranties and ACL

14.1 Nothing in these Terms excludes rights that cannot lawfully be excluded under the ACL.

14.2 Subject to clause 14.1 and to the fullest extent permitted by law, all warranties, conditions and guarantees not expressly contained in these Terms are excluded.

14.3 Where the ACL applies, Boomaroo’s liability is limited to:

(a) replacement of the Goods; or
(b) repayment of the purchase price, at Boomaroo’s election, to the extent permitted by law

15. Limitation of Liability

15.1 Nothing in these Terms excludes, restricts or modifies rights which cannot lawfully be excluded under the ACL.

15.2 Subject to clause 15.1, Boomaroo excludes all conditions, warranties, guarantees and representations not expressly contained in these Terms.

15.3 Subject to any non-excludable rights under the ACL, Boomaroo’s total aggregate liability arising out of or in connection with the supply of Goods is limited, at Boomaroo’s election, to:

(a) replacement of the Goods;
(b) repayment of the purchase price paid for the Goods; or
(c) resupply of equivalent Goods.

15.4 Boomaroo is not liable for any Consequential Loss.

15.5 Without limitation, Boomaroo is not liable for:

(a) loss of crop;
(b) loss of yield;
(c) reduced germination;
(d) reduced vigour;
(e) business interruption;
(f) delayed planting;
(g) delayed harvest; or
(h) reduced profitability.

15.6 The Customer acknowledges that:

(a) horticultural and agricultural production inherently involves risk;
(b) Boomaroo has no control over cultivation practices following delivery; and
(c) pricing reflects the allocation of risk contained in these Terms.

15.7 Any Claim against Boomaroo must be commenced within twelve (12) months of delivery, except to the extent such limitation is prohibited by law.

15.8 Clause 15.7 does not apply to any claim or right to the extent that the applicable statutory limitation period cannot lawfully be excluded or restricted.

16. Indemnities

16.1 The Customer indemnifies Boomaroo against claims, loss, damage, cost or liability arising from:

(a) misuse of the Goods;
(b) improper storage or handling;
(c) the Customer’s cultivation methods;
(d) breach of these Terms; or
(e) injury or damage arising after delivery,
except to the extent caused by Boomaroo’s negligence or wilful misconduct.

17. Suspension and Termination

17.1 Boomaroo may suspend supply immediately where:

(a) payment remains overdue;
(b) an Insolvency Event occurs; or
(c) the Customer breaches these Terms.

17.2 Boomaroo may terminate trading arrangements without liability following material breach.

17.3 Upon suspension or termination, all outstanding amounts become immediately due and payable and Boomaroo’s rights under these Terms, including any Security Interest, indemnity or recovery right, survive termination.

18. Force Majeure

18.1 Boomaroo is not liable for failure or delay arising from events beyond its reasonable control.

18.2 Such events include:

(a) drought;
(b) flood;
(c) bushfire;
(d) disease outbreak;
(e) labour shortages;
(f) supplier failure;
(g) transport disruption; and
(h) government restrictions.

18.3 Where a biosecurity event, product recall, contamination issue or government direction affects the Goods, Boomaroo may require the Customer to quarantine, return, destroy or cease distributing affected Goods and the Customer must reasonably cooperate with Boomaroo.

19. Privacy

19.1 Boomaroo may collect, use and disclose personal information for purposes relating to:

(a) supply of Goods;
(b) account administration;
(c) debt recovery; and
(d) credit assessment.

19.2 Boomaroo may disclose information to credit agencies, insurers, lawyers and collection agents.

19.3 Further information regarding collection, use and disclosure of personal information is set out in Schedule B.

19.4 The Customer must promptly notify Boomaroo of any change in ownership, shareholding, directorship, trustee structure, address or contact details.

20. Dispute Resolution

20.1 The parties must first attempt to resolve disputes through good faith negotiations.

20.2 Nothing prevents either party seeking urgent interlocutory relief.

20.3 The Customer must keep confidential all pricing, credit arrangements and other commercially sensitive information relating to Boomaroo except where disclosure is required by law.

20.4 Electronic communications, approvals, acceptances and notices satisfy any writing requirement under these Terms.

21. Governing Law

21.1 These Terms are governed by the laws of Victoria.

21.2 The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

22. General

22.1 If any provision is unenforceable, it is severed to the extent necessary without affecting he remainder.

22.2 Failure to exercise rights does not constitute waiver.

22.3 Boomaroo may assign its rights without the Customer’s consent.

22.4 The Customer may not assign rights without Boomaroo’s written consent.

22.5 These Terms form part of the broader commercial arrangements between the parties, including any credit application, guarantee, security document, acknowledgement, quotation, account arrangement or other document entered into in connection with the supply of Goods. Schedule A, Schedule B and Schedule C also form part of these Terms.

22.6 Subject to clause 22.5, these Terms constitute the entire agreement between the parties in relation to their subject matter and supersede prior discussions, negotiations and understandings relating to the supply of Goods.

22.7 The Customer acknowledges that it has not relied upon any representation, warranty or statement not expressly set out in these Terms or any document expressly incorporated into the parties’ trading arrangements.

22.8 The Customer must keep confidential and must not disclose to any third party any pricing information, credit arrangements, forecasts, production information, supply arrangements, commercial information, proprietary information or other commercially sensitive information relating to Boomaroo or the parties’ trading relationship, except where disclosure is required by law or authorised in writing by Boomaroo.

23. Trustee Capacity

23.1 If the Customer enters these Terms as trustee of a trust:

(a) the Customer warrants authority to do so;
(b) the Customer is personally liable; and
(c) the Customer indemnifies Boomaroo against breach of trust.

SCHEDULE A

RETURNS POLICY

1. Eligibility and Approval

1.1 Returns are only accepted with Boomaroo’s prior written approval.

1.2 Non-defective returns require prior written approval and remain subject to this Schedule

2. Timeframes

2.1 Non-perishable Goods: return requests must be initiated within fourteen (14) days of delivery.

2.2 Defective or non-conforming Goods: claims must be raised within seven (7) days of delivery unless clause 8.2 applies.

2.3 Perishable Goods: claims must be raised within twenty-four (24) hours of delivery

3. Condition and Documentation

3.1 Goods must be in their original, unopened condition and packaging, with all labels intact, unless the return relates to an alleged defect or supply error.

3.2 The Customer must provide the original packing slip, sales order or delivery docket, together with photographs and sufficient particulars if a defect or discrepancy is claimed.

4. Restocking and Costs

4.1 Restocking fees may apply, up to 20% of the purchase price or such other amount as Boomaroo notifies in writing.

4.2 Returns are at the Customer’s cost unless Boomaroo agrees otherwise

5. Remedy

5.1 Boomaroo may, at its option:

(a) replace the Goods; or
(b) credit or refund the purchase price.

5.2 Credits or refunds may be issued by credit note or refunded to the original payment
method.

6. Exclusions

6.1 Returns may be declined for:

(a) custom-made Goods;
(b) special-order Goods;
(c) seed or germination stock in production; or
(d) Goods returned without Boomaroo’s approval.

7. Processing

7.1 Approved returns will be processed within a reasonable period after receipt and
inspection of the Goods.

SCHEDULE B

PRIVACY NOTICE

1. Information Collected

1.1 Boomaroo may collect personal information necessary to:

(a) supply Goods;
(b) administer accounts;
(c) manage debt recovery; and
(d) conduct credit assessments.

1.2 Information collected may include name, business name, contact details, billing information and relevant financial information.

2. Use of Information

2.1 Boomaroo may use personal information to:

(a) provide and administer Goods;
(b) manage accounts;
(c) process payments;
(d) perform credit checks; and
(e) enforce rights under these Terms

3. Disclosure of Information

3.1 Boomaroo may disclose personal information to:

(a) delivery providers;
(b) payment processors;
(c) IT service providers;
(d) lenders and credit agencies;
(e) insurers;
(f) lawyers; and
(g) debt collection agents,
where reasonably necessary and consistent with applicable privacy law

4. Retention and Access

4.1 Boomaroo retains personal information in accordance with applicable law and its internal privacy practices.

4.2 Individuals may request access to or correction of personal information, subject to applicable law

5. Overseas Disclosure

5.1 If applicable, information may be disclosed to overseas service providers with appropriate safeguards.

6. Contact

6.1 Privacy enquiries, access requests and correction requests may be directed to:

Privacy Officer:

Boomaroo Nurseries & Wholesale Supplies Pty Ltd

PO Box 50 Lara VIC 3212

Email: post@boomaroo.com

Telephone: (03) 5282 2199

SCHEDULE C

INSURANCE REQUIREMENTS

1. Required Insurances

1.1 The Customer must, if requested by Boomaroo or where reasonably necessary for the supply arrangement, maintain:

(a) Public Liability Insurance of at least AU$5,000,000 per occurrence;
(b) Product Liability Insurance of at least AU$5,000,000 per occurrence;
(c) Transit or Cargo Insurance with adequate cover for stock in transit, with a minimum cover of AU$1,000,000 unless otherwise agreed;
(d) Workers’ Compensation or Employers’ Liability Insurance as required by law; and
(e) any other insurance Boomaroo reasonably requests having regard to the nature of the Goods and the supply chain risk.

2. Evidence of Insurance

2.1 The Customer must provide current certificates of currency upon request.

2.2 Policies must be issued by reputable insurers.

3. Failure to Maintain Insurance

3.1 Failure to maintain required insurance may result in suspension or termination of supply until satisfactory evidence of coverage is provided.

By placing an order with Boomaroo, accepting delivery of Goods, or making payment for Goods, the Customer acknowledges and agrees to be bound by these Terms of Trade.

END OF TERMS OF TRADE