Please review our updated Terms & Conditions below:
It is agreed as follows:
In this agreement including the recitals unless contrary to or inconsistent with the context:
Credit Card means the credit card specified in the schedule and any credit card given in addition thereto or in substitution therefor;
Credit Period means the period described in the schedule as the Credit Period or if no period is specified, 30 days, from and including the Supply Date.
Credit Card Transaction Fee means a fee calculated by multiplying the amount of a payment made under this agreement by the Credit Card by the appropriate credit card rate published on the Web Site from time to time for each brand of credit card currently 4.5% for Dinners and American Express and 1% for all other types of credit card;
credit report and credit reporting agency has the meaning given to it by the Privacy Act 1988;
Customer, you, your means the person or persons specified in the schedule as the Customer;
Customer's Associates means:
(a) the owner, sender or receiver of the Delivered Goods;
(b) a person having an interest in the Delivered Goods;
(c) the Customer's principal; and
(d) any agent, representative, employee or sub-contractor of the Customer or those persons.
Default Rate means the rate per annum published on the Web Site currently, or if no such rate is published, 15% per annum.
Delivery means:
(a) if the Goods are collected by the Customer from the premises of Benara or inspected by the Customer prior to leaving the premises of Benara, the Goods leaving the premises of Benara, or otherwise
(b) the Goods being delivered to the address of the Customer herein or such other address specified by the Customer from time to time;
and “Delivered” has a corresponding meaning;
Goods means the plants chattels and any services supplied or agreed to be supplied to the Customer from time to time;
Guarantor means the person or persons specified in the schedule as a guarantor and any officer or agent of a Customer who signs this agreement for that Customer;
Land means the land described in the schedule or any part thereof or any interest therein.
Purchase Price means the price charged by Benara for goods and services supplied by it from time to time as published as its premises or on the Web Site or to the Customer whether orally or in writing.
Reversal means a reversal or partial reversal of a transaction effected by Benara using a Credit Card, and (where the context permits) all money taken out of the account of Benara with, or otherwise paid by Benara to, a financial institution pursuant thereto;
schedule means the schedule to this agreement;
Supply Date means the date of Delivery or the date Goods are available to leave the premises of Benara, whichever is the earlier date;
Supply Fee means the price charged for Goods ordered by the Customer;
taxable supply, tax invoice consideration, GST and supply have the meanings given to those expressions in the A New Tax System (Goods and Goods Tax) Act 1999;
this agreement means the agreement that incorporates these general conditions;
we, us, our means Benara.
Web Site means www.benaranurseries.com or www.benara.com.au
It is a condition precedent to the formation of this agreement that Benara receives a credit report on the Customer (and if there is a Guarantor, the Guarantor) from a credit reporting agency and otherwise satisfies itself as to the credit worthiness of the Customer and the Guarantor. Until this condition is fulfilled or until Benara waives the condition by accepting an order or supplying Goods to or at the direction of the Customer, this agreement is and is to be treated by the parties as an application for credit by the Customer. The Customer and the Guarantor agree and consent to Benara obtaining a credit report on the Customer and the Guarantor from a credit reporting agency for the purpose of assessing the Customer’s application for credit. If the said condition is not satisfied or waived as aforesaid within 10 days after the execution of this agreement Benara will notify the Customer accordingly in writing and if necessary comply with section 18M of the Privacy Act 1988. If the said condition is not satisfied the Guarantor authorises and directs Benara to disclose all or any part of the credit report it obtains on the Guarantor to the Customer for the purpose of explaining why the condition has not been satisfied.
We are not obliged to accept any order made by you. If your order is accepted, the Goods the subject of that order will be Delivered ( or available for delivery as the case may be) to you within a reasonable time after acceptance but in any event not less than 7 days after the order is made unless otherwise agreed in writing.
(a) If any money is paid to us by credit card the Credit Card Transaction Fee payable on the date of the payment to which it relates;
(b) all costs and expenses incurred by us or for which we become liable (including without limitation all legal court and debt collection costs and disbursements) of, concerning, arising out of or in any way relating to:
(i) the exercise by us of our rights under this agreement;
(ii) any default by you; and
(iii) any enforcement of this agreement or any security given by or pursuant to this agreement (including without limitation the costs of any court action),
payable within 2 days of being notified thereof, such costs and expenses to include all costs and expenses except so far as they are of an unreasonable amount or have been unreasonably incurred so that subject to the above exceptions we will be completely indemnified by you for our said costs and expenses.
If you default in the payment of any money payable by you under or by reason of this agreement for a period of more than 2 days then whether or not any formal demand therefor has been made all money then owing that is not already due and payable shall become due and owing by you to us. If you are in default of any other provision of this agreement and the default is not capable of being remedied, or you fail to remedy the default within 2 days of being notified of that default in writing, all money then owing shall become due and owing by you to us.
14.1 If there is a default by you under this agreement it shall be lawful for us, without any further consent or concurrence on your part, to enter into and upon the land, messuage, or tenement whereon any of the Delivered Goods is or may reasonably be supposed to be in the possession or under the control of any of you, or any Guarantor, and for that purpose to open or remove any outer or inner gate, door, fastening, or other obstruction, without liability to any action of trespass or other proceeding for so doing; but with liberty to plead the leave and license hereby given in bar to any such action or proceeding, if any such be brought or instituted, and to seize and take possession of all Delivered Goods, and to remove the same to any other place or places for safety, convenience of sale, or otherwise, or suffer them to remain in the place or places where the same may be found, and to sell and dispose thereof or any of them either together or in parcels, at such time or times, and place or places, and either by public auction or private contract, or partly by public auction and partly by private contract, to any person or persons, for such price or prices, either for cash or on credit, or partly for cash and partly on credit, and if either partly or wholly on credit, giving such time or times for payment, and taking or foregoing any security or securities for the payment of the unpaid purchase money as we may deem proper or expedient, with power for us to make any such other terms and conditions in regard to such sale or sales as we may think proper, and also to buy in all or any of the Delivered Goods at any such sale or sales by auction, and rescind or vary any contract for sale thereof, and again to resell or offer for resale the same from time to time, without being answerable or accountable for any loss, diminution in price, costs, or expenses to be occasioned by any such bringing in, rescission, variance, or actual or attempted resale.
14.2 It shall be lawful for us, upon or after any such sale as aforesaid, to make, enter into, sign, and execute all such contracts, agreements, deeds, instruments, and writings as may be necessary or expedient for the purpose of making and effectuating any such sale, and which shall be as binding and conclusive upon and against you as if you had joined therein, or assented thereto. The receipt or receipts in writing of us for all purchase money or other property which shall be paid or delivered to it under or by virtue of this bill of sale, shall be a good and sufficient discharge to all purchasers or other persons paying or delivering the same, and such purchaser or other persons shall not be required to see to the application or be answerable for the misapplication or non-application thereof, or be bound or concerned to inquire into the propriety or expediency of any such sale or resale.
14.3 We shall, out of the moneys which shall come to its hands by reason of any such sale or sales in the first place, discharge the costs and expenses incurred or sustained in or about such sale or sales, and all other costs, charges, and expenses incurred or occasioned in or about the execution of the powers and authorities contained in the bill of sale, and shall retain the balance of such moneys, or so much thereof as may be necessary, in or towards payment and satisfaction of the Secured Moneys, and shall pay to you any surplus then remaining.
We may add to vary or remove any provision of this agreement by publishing the change on the Web Site.
We will not be held liable where circumstances beyond our reasonable control prohibit us from performing our obligations under this Agreement. These include but are not limited to:
(a) an act of God, peril of the sea, accident of navigation, war, sabotage, riot, insurrection, civil commotion, national emergency (whether in fact in law), martial law, intentional damage to property or damage to property caused by the negligent act or omission of any person (including a servant or agent of a party) other than a party, fire, lightening, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the party concerned), epidemic, quarantine, radiation or radioactive contamination;
(b) any action or inaction of any government or governmental or other competent jurisdiction, including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; and
a breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material.
Except as herein provided, to the fullest extent permitted by law all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness for any purpose of goods or services supplied by Benara to the Customer are expressly excluded.
In this clause 'Customer' includes the Customer's Associates.
18.1 To the maximum extent permitted by law, under no circumstances will Benara be liable to the Customer for any indirect, incidental, special or consequential damages of any kind, including without limitation damages for loss of business or other profits, arising out of or referable to this agreement or any act done or omitted to be done under or by reason of this agreement, whether caused by the negligence of or breach of statutory duty by Benara or otherwise.
18.2 Notwithstanding any other clause of this agreement under no circumstances shall Benara be responsible to the Customer for any injurious act or default of Benara, nor, in any event, shall Benara be held responsible for any loss, injury or damage suffered by the Customer either in respect of:
(a) the theft, misdelivery, delay in delivery, loss, damage or destruction, by whatever cause, of any goods being carried or stored on behalf of the Customer by Benara at any time (and regardless of whether there has been any deviation from any agreed or customary route of carriage or place of storage);
(b) any consequential loss of profit, revenue, business, contracts or anticipated savings; or
(c) any other indirect consequential or special loss, injury or damage of any nature;
and whether in contract, tort (including without limitation, negligence or breach of statutory duty) or otherwise.
18.3 Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of Benara and its affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation.
18.4 The liability of Benara to the Customer for a breach of a condition or warranty implied by law and which cannot be excluded, is limited, to the extent possible, at Benara's option, to:
(a) the supply of the goods or services again; or
(b) the repair of the goods; or
(c) the payment of the cost of having the goods or services supplied again or repaired.
18.5 Every exemption from liability, defence and immunity of whatsoever nature applicable to Benara or to which Benara is entitled hereunder shall also be available and shall extend to protect Benara and every one of Benara’s servants or agents acting hereunder or making or giving statements information or advice and for the purposes of this clause Benara shall be or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of Benara and all persons who are or might be its servants or agents from time to time as well as on its own behalf and all such persons shall to this extent be or be deemed to be parties to this agreement.
18.6 You warrant to us that you enter into this agreement on your own account and as agent for every Customer's Associates and to indemnify Benara against all actions, suits, claims and demand whatsoever which may be brought against it and also all costs damages and expenses which Benara may in any wise pay or incur in or as a consequence of defending or settling the same or in any way relating thereto, in consequence of or by reason of or arising out of or in respect of any demand or claim brought by or on behalf of the Customer’s Associates arising out of, related to, or connected with this agreement.
If the Customer or a Guarantor relies on conduct that it has promised by this agreement they will not rely on, or a Customer’s Associate relies on any such conduct, the Customer hereby indemnifies Benara against all actions, suits, claims and demand whatsoever which may be brought against it and also all costs damages and expenses which Benara may in any wise pay or incur in or as a consequence of defending or settling the same or in any way relating thereto, in consequence of or by reason of or arising out of or in respect of that reliance including without limitation any claim made against it by any of its servants or agents whose conduct was relied upon.
No waiver or indulgence by any party to this agreement shall be binding upon that party unless in writing and in any event no waiver of one breach of any term or condition of this agreement shall operate as a continuing waiver unless so expressed nor shall it operate as a waiver of another breach of the same or any other term or condition of this agreement.
Any notice or other document or writing required to be served on any party hereto may be served by prepaid ordinary post and any such notice or other document in writing shall be deemed to be served two days after it was so posted. You nominate your address in the schedule as the address for service of notices by us on you by post. Any notice or other document or writing required to be served on you by us may be served by email at your email address herein (if any and if more than one the first mentioned email address) or at such other email address as you may have notified to us in writing from time to time as an email address for the service of notices or by fax to your facsimile number herein (if any and if more than one the first mentioned facsimile number) or to such other facsimile number as you may have notified to us in writing from time to time as your facsimile number for the service of notices. In the event of any legal proceeding in respect of this agreement being begun by us the process by which it is begun may be served by post on you at the same address and in the same manner prescribed for the service of any notice in writing by post.
Any notice or other information that Benara is entitled to serve or publish under this agreement may be served or published by displaying the notice or information on the Web Site. Publication of any notice or information in this way is deemed to effect service thereof on the Customer 7 days from but not including the date of publication.
The Customer consents to Benara sending unsolicited commercial electronic messages as defined in the Spam Act 2003 (Cth) to the Customer’s email address or mobile telephone number. In so doing Benara warrants that any such message shall clearly and accurately identify the individual or organisation who authorised the sending of the message and include accurate information about how the recipient can readily contact the individual or organisation. The Customer agrees that whilst money is owing by the Customer under this agreement Benara is not obliged to provide an unsubscribe facility in any of the said electronic messages.
Words importing the singular number or plural number shall include the plural number and the singular number respectively; and words importing the masculine or neuter genders shall include every gender. When two or more parties enter into covenants, obligations and or agreements together, those covenants, obligations and or agreements on their part contained refer to and shall bind them and any two or greater number of them jointly and each of them severally. If you are a trustee of any trust, you enter into this agreement on your own behalf and in your capacity as trustee of that trust.
This agreement shall be deemed to have been made in the State of Western Australia and the construction, validity and performance of this agreement shall be governed in all respects by the laws of that State and the Customer irrevocably submits to the exclusive jurisdiction of the courts within Perth Western Australia, waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum and waives any immunity in respect of its obligations under this agreement that it may acquire from the jurisdiction of any court or any legal process for any reason including the service of notice, attachment before judgment, attachment in aid of execution or execution.
The use of the Credit Card or the supply of Goods to or at your direction is a sufficient communication by us to you that we have signed this agreement.
If there is a Reversal the parties agree that for the purposes of this agreement and determining their respective rights and obligations the Reversal was never paid. By way of example only, if there is a Reversal and the Reversal was payable to Benara, the Customer will be in breach of this agreement as from the due date for payment of the Reversal.
In consideration of Benara having agreed at the request of the Guarantor to enter into this agreement with the Customer the Guarantor does (and if more than one jointly and severally) HEREBY GUARANTEE to Benara the due and punctual performance by the Customer of its obligations under this agreement and the Guarantor HEREBY ACKNOWLEDGES and declares that this Guarantee shall be a continuing guarantee for the whole of the moneys hereby secured and shall not be avoided released or affected in any way by:
(a) any agreement or arrangement made between Benara and the Customer whether with or without the consent of the Guarantor or by any alterations or variations to the rights or obligations of either of them;
(b) the granting of any time or other indulgence or forbearance by Benara to the Customer whether or not the granting of such further time or other indulgence imposes further liabilities on the Guarantor;
(c) the fact of or notice of the death mental incapacity bankruptcy or liquidation of the Customer or the Guarantor or any of them;
(d) any composition or arrangement with or release of the Customer or any composition or arrangement with or release of any one or more of the Guarantor or any other surety or person by Benara whether the consent of the Guarantor or any of them to any of the foregoing shall have been obtained or notice thereof given to him or not or any omission or delay on the part of Benara;
(e) the fact that any money payable by the Customer is not or may cease to be or any part thereof cease to be recoverable from him or from any of the Guarantor or other person or that the Customer be discharged from all or any of Customer's obligations to pay such money or any part thereof for any reason other than that the same have been paid;
(f) any change in membership of the Customer or any partnership or firm of which the Customer is a member or the death liquidation or bankruptcy of the Customer or any member of the Customer or the assent of Benara to any composition arrangement or scheme in respect of the Customer or the acceptance by Benara of any dividend or sum of money thereunder,
and Benara shall be at liberty to regard the Guarantor in all respects as principal debtors and shall not be obliged to take action first against the Customer.
28.2 The Guarantor further acknowledges and declares that the obligations of the Guarantor hereunder shall not merge or be deemed to have merged in any judgement obtained by Benara against the Customer and the Guarantor shall remain liable to Benara in the terms of this Guarantee notwithstanding that Benara may in the meantime obtain a judgement against the Customer.
28.3 Any payment made to Benara and later avoided by the application of any statutory provision shall be deemed not to discharge the Guarantor’s liability and in any such event the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
28.4 Further in consideration of Benara having agreed to enter into this agreement with the Customer on the terms and conditions herein contained at the request of the Guarantor the Guarantor further covenants with Benara to save harmless and indemnify Benara from and against all losses damages costs and expenses which Benara may suffer as a result of Benara entering into this agreement including but without limitation all costs incurred by Benara as a result of or arising out of enforcing its rights under this agreement or any other security held by Benara in respect of the obligations of the Customer hereunder or in any way incidental to this agreement or any other such security or in defending any action, claim or demand made against it by the Customer and insofar as it may be necessary so to do in order to give full effect to this indemnity the Guarantor shall waive any rights of recourse they might otherwise have or have had against the Customer arising out of this indemnity.
28.5 In the event that the Customer is wound up and a liquidator of the Customer shall lawfully disclaim these presents at any time, no such disclaimer shall operate so as to relieve the obligations of the Guarantor to Benara pursuant to this indemnity AND IT IS EXPRESSLY AGREED THAT the provisions of this indemnity shall survive any termination of this agreement arising out of any such disclaimer.
28.6 It is expressly agreed that this indemnity shall continue notwithstanding any agreement or arrangement or variation of any agreement between Benara and the Customer and the provisions of the Guarantee hereinbefore given shall with the necessary changes apply to this indemnity.
28.7 In the event that there is more than one person or corporation constituting the Guarantor or there is any other co-surety then it is expressly agreed between each Guarantor who executes this agreement and Benara that the failure of any one or more Guarantor or any other co-surety to execute this agreement or any document as the case may be or the fact that this guarantee is not binding on any one or more Guarantor who executes the same for any reason whatsoever or that any one or more Guarantor is for any reason whatsoever discharged from their obligations hereunder shall not in any way relieve them or the others of them as the case may be from liability under this guarantee and indemnity.
28.8 In the event that the consideration specified herein is found to be past consideration the Guarantor agrees that Benara may adduce evidence of other consideration to support the Guarantee.
For the said consideration the Guarantor hereby charges their respective right, title and interest in and to the Land and all other land which they or any of them now have or at any time hereafter may have to secure their obligations under this agreement. If Benara lodges a caveat over all or any of the said real estate it is under no obligation to withdraw that caveat but must execute a withdrawal of that caveat presented to it by the Guarantor for that purpose once the Guarantor has satisfied all of its obligations under this agreement.
The types of organisations to which Benara usually discloses personal information include credit reporting agencies, government departments and authorities, insurers and underwriters, guarantors, agents, contractors, proposed assignees of Benara's assets and other third parties associated with Benara who enable or assist Benara to carry out its functions, for example, mailing houses, debt collection agencies, mercantile agents, archive companies, valuers, call centre operators, solicitors, accountants, other people who provide funding, introducers and brokers. Benara may also disclose your personal information to third parties for marketing purposes. You consent to Benara collecting your personal information and using it for the purposes outlined in this document including disclosing your personal information to the types of organisations set out above.
You authorise Benara to give a credit reporting agency certain personal information about you for the purposes of enabling Benara to obtain a credit report about you and/or to allow the credit reporting agency to create or maintain a credit information file containing information about you. The information which Benara may disclose to the credit reporting agency is limited to: your identification (including your name, sex, address and the previous two addresses, date of birth, name of employer and driver’s licence number); the fact that credit has been applied for and the amount; the fact that Benara is or may be a current credit provider to you; details of payments which become overdue for more than 60 days and for which collection action has commenced; the fact that payments are no longer overdue; details of cheques drawn by you which have been dishonoured more than once; the fact that in Benara’s opinion you have committed a serious credit infringement; and the fact that credit provided to you by Benara has been paid or discharged. You authorise Benara to obtain from: a credit reporting agency a credit report containing information about you in relation to personal or commercial credit provided to you; and a business which provides information about the commercial credit worthiness of persons information about your commercial activities or commercial credit worthiness. You authorise Benara to give to and obtain from other credit providers information about your credit worthiness, credit standing, credit history or credit capacity.
You understand that if Benara declines your credit application or application to become a guarantor due to adverse information on your personal credit file, then each applicant for the credit may be notified that the application has been declined wholly or partly on information derived from the personal credit report relating to you.
You consent to Benara providing information about you to any person who proposes to guarantee your obligations to Benara for the purpose of allowing that person to assess whether to act as your guarantor and/or indemnifier. After the guarantee is given, you consent to Benara providing information about you to the guarantor and/or indemnifier. You consent to Benara exchanging information concerning your financial affairs with any person acting on your behalf including your agent, accountant, solicitor or broker.
You authorise Benara to obtain from a credit reporting agency a credit report containing personal credit information about you to assess whether to accept you as a guarantor for the personal or commercial credit applied for by the applicant. You authorise Benara to give to or receive from another credit provider an opinion for purposes connected with your business trade or profession.
You acknowledge that Benara may exchange information with government authorities as required or authorised by law including the Australian Taxation Office.
You agree that Benara may use your personal information either alone or in conjunction with third parties for marketing purposes to tell you about other related services and products which could suit your needs. If you do not want this to happen please tell us.
You acknowledge that the above authorities and consents will continue until the credit facility provided is repaid in full and the credit facility terminated.
If you would like to know more about the personal information which we hold about you; or our personal information handling practices; or gaining access to the personal information which we hold about you; or our handling of personal information about you, please contact Benara by writing to Benara’s Privacy Officer at Benara’s address in this agreement or such other address as Benara may have notified to you in writing from time to time 2.
Benara will provide you with a copy of this information for which a fee may be payable. You should let us know if you think any information we hold about you is inaccurate so that we may correct it.
Benara Nurseries, originally established in 1963, has grown over the years to become the leading destination of trade and wholesale plant supply for garden retailers, revegetation projects and the wider landscaping industry throughout Australia.
Learn moreWe grow an extensive range of high-quality plants, from seedlings and revegetation tubestock, through to advanced trees. We also supply a wide range of garden features. Browse collections personally compiled by our Sales team and updated weekly to show you which premium stock is currently available.
