Pick of the Crop Fruit Trees

Transcription

1 2018 BAREROOT ORDER FORM : Contact Name Address: Telephone: Facsimile: Post Code: Order placed by: (Name) Signature: Date: / / Pick of the Crop Fruit Trees Please fill in details below and sign PAGE PRICES QUOTED ARE EXCLUSIVE OF GST. Cultivar Qty Cultivar Qty TRIXZIE MINIATURE FRUIT TREES Trixzie Miniature - Gala Apple Trixzie Miniature - Pink Lady Apple Trixzie Miniature - Black Cherree Cherry Trixzie Miniature - White Cherree Cherry Trixzie Miniature - Nectazee A Nectarine Trixzie Miniature - Pixzee A Peach Trixzie Miniature - Pyvert A Pear COLUMNAR FRUIT TREES Ballerina Apple - Bolero A Ballerina Apple - Charlotte A Ballerina Apple - Flamenco A Ballerina Apple - Maypole A Crab Apple Ballerina Apple - Polka A Ballerina Apple - Waltz A Skinny Apple - Dita A Skinny Peach - Crimson Rocket DWARF FRUIT TREES Dwarf Gala Dwarf Golden Delicious Dwarf Pink Lady ALMOND All-in-One Self-fertile APPLE Gala Golden Delicious Pink Lady APRICOT Moorpark CHERRY Lapins Self-fertile Royal Rainier A White Starkrimson Self-fertile NECTARINE Arctic Rose A May Grand Okee Dokee Nectarine Queen Giant PEACH Double Jewel Okee Dokee Peach EASYCARE APPLE Tasty Zee A Easy Care - Crimson Crisp A PEAR Easy Care - Pixie Crunch A Beurre Bosc F2 - NEW GENERATION FRUIT Cot N Candy A Apricot x Plum Flavor Rouge A Plum x Apricot Flavor Supreme A Plum x Apricot LittleChum A Plum x Cherry Marcia s Flavor A Plum x Apricot Spicezee Nectarine x Plum Sugar N Spice A Nectarine x Plum Williams syn. Bartlett NASHI (ASIAN PEAR) Nijisseiki syn. 20th Century PLUM Luisa A Self-fertile Mariposa Primetime A

2 Fruit Trees A to Z Cultivar Qty Cultivar Qty 2 APPLE Granny Smith Jonathan Red Delicious Red Fuji DWARF APPLE Dwarf Granny Smith Dwarf Red Fuji APRICOT Divinity Story Trevatt BERRY Elderberry CHERRY Morello Sour cherry Stella Self-fertile Sunburst Self-fertile CHESTNUT Fleming s Prolific Grafted Fleming s Special Grafted Seedling CURRANT - MIN. 10 PER CULTIVAR Black Jostaberry Red White FIG Adam Black Genoa Brown Turkey Preston Prolific White Adriatic White Genoa HAZELNUT American White Cosford Lambert Red Aveline KIWIFRUIT Chinese Gooseberry Bruno Female Hayward Female Male Cross-pollinator MEDLAR Dutch MULBERRY Black Hicks Fancy White NASHI (Asian Pear) NECTARINE Fantasia Goldmine Peacharine Sunbob Yellow flesh Low chill Sun Snow White flesh Low chill PEACH Anzac Daisy Elberta Flordagold Low chill Golden Queen Clingstone TropicBeauty Yellow flesh Low chill White Opal White flesh Low chill PEAR (European) Angelina Coe s Golden Drop Corella Damson Green Gage

3 Fruit Trees A to Z 3 Cultivar Qty Cultivar Qty PEAR (European) 2-Way Cherry Josephine Royal Rainier A / Stella White/black Packham s Triumph 2-Way Nashi President Nijisseiki / Shinseki Paradise Bite-size mini pear 2-Way Nectarine Sensation Goldmine / May Grand Sugar Plum 2-Way Peach PLUM (Japanese) Santa Rosa POMEGRANATE Mollar de Elche PRUNE d Agen Double Jewel / Tasty Zee A 2-Way Okee Dokee Tree Nectarine / Peach 2-Way Pear Packham s Triumph / Williams Robe de Sergeant 2-Way F2 Plum/Plum QUINCE Flavor Supreme A / Mariposa Champion 3-WAY MULTI GRAFTED FRUIT TREES Smyrna 3-Way Apple WALNUT Juglans nigra Black Walnut Juglans regia Common Walnut Easy Care Apple Crimson Crisp A / Pixie Crunch A / William s Pride Gala / Pink Lady / Red Delicious Gala / Pink Lady / Red Fuji Wilson Wonder Seedling Golden Delicious / Granny Smith / Jonathan TRIXZIE 2-WAY NECTARINE/ PEACH 3-Way Nectarine Nectazee A Nectarine / Pixzee A Peach A nectarine and a peach on the same tree! 2-WAY MULTI GRAFTED FRUIT TREES 2-Way Apple Fantasia / Goldmine / May Grand 3-Way Peach Double Jewel / Redhaven / Tasty Zee A Easy Care Apple Crimson Crisp A / Easy Care Apple Pixie Crunch A Gala / Red Delicious 3-Way Pear Beurre Bosc / Packham / Williams 3-Way New F2 Plum/Plum Gala / Red Fuji Flavor Supreme A / Mariposa / Santa Rosa Golden Delicious / Granny Smith 3-Way Peach / Nectarine Granny Smith / Jonathan Double Jewel / Queen Giant / Tasty Zee A

4 Ornamental Trees A to Z 4 ORNAMENTALS REG QTY ADV QTY ORNAMENTALS REG QTY ADV QTY ACER Lipstick Maple The best autumn colour! Acer x freemanii Autumn Blaze A. palmatum Shishigashira Dwarf A. palmatum Villa Taranto A. platanoides Crimson Sentry Extra large A. rubrum Fairview Flame A Purple foliage A. rubrum October Glory A. saccharum Fall Fiesta ACER - Maple Acer buergerianum Trident Maple A. campestre Hedge Maple A. japonicum Vitifolium A. negundo Box Elder A. negundo Flamingo A. negundo Kelly s Gold A. negundo Sensation Sterile A. negundo var. violaceum A. palmatum Atropurpureum A. palmatum Bonfire A. palmatum Butterfly A. palmatum Dissectum Crimsonwave A A. palmatum Dissectum Seiryu Upright A. palmatum Elegans A. palmatum Osakazuki A. palmatum (Polymorphum) A. palmatum Red Pygmy A. palmatum Sango Kaku syn. Senkaki A. palmatum Shaina Dwarf A. x freemanii Scarlet Sentinel A. x freemanii Celebration A. truncatum x A. platanoides Pacific Sunset A AESCULUS - Horse-Chestnut Aesculus hippocastanum BETULA - Birch Betula nigra Dura Heat Tropical Birch B. pendula Silver Birch B. pendula Dalecarlica Cut Leaf Birch B. pendula Fastigiata Betula platyphylla Dakota Pinnacle A Great form... B. platyphylla var. japonica Whitespire B. populifolia x Royal Frost Purple foliage B. utilis var. jacquemontii B. utilis var. jacquemontii Jermyns CARPINUS Carpinus betulus C. betulus Fastigiata C. betulus Franz Fontaine CELTIS - Hackberry Celtis australis

5 Ornamental Trees A to Z ORNAMENTALS REG QTY ADV QTY ORNAMENTALS REG QTY ADV QTY C. occidentalis CERCIDIPHYLLUM - Katsura Tree Cercidiphyllum japonicum CERCIS - Redbud GINKGO - Maidenhair Tree Ginkgo biloba GLEDITSIA - Honey-Locust Gleditsia Continental 5 Cercis canadensis Chain of Hearts A Golden foliage G. Elegantissima C. canadensis Forest Pansy G. Rubylace C. canadensis var. texensis Oklahoma Wow... G. Shademaster COTINUS G. Sunburst Cotinus purpurea HAMAMELIS CORNUS - Dogwood Hamamelis x intermedia Arnold Promise Cornus kousa x florida Rutban Aurora H. x intermedia Jelena Cornus florida Red Beauty A H. mollis Pallida C. kousa var. chinensis HIBISCUS C. sericea f. baileyi - Red Twig Dogwood Hibiscus Notwoodone Lavender Chiffon C. sericea Flaviramea - Yellow Twig Dogwood CORYLUS - Hazel Corylus colurna H. syr Notwoodtwo White Chiffon H. syiacus Aphrodite H. syiacus Diana CRATAEGUS - Hawthorn H. syiacus Helene Crataegus laevigata Paul s Scarlet DEUTZIA HYDRANGEA Hydrangea macrophylla Bloomstruck A Endless Summer Deutzia scabra Godsall Pink Deutzia scabra Candidissima FRAXINUS - Ash Fraxinus americana Autumn Applause H. macrophylla Blushing Bride A Endless Summer H. macrophylla Bailmer A Endless Summer The Original H. macrophylla PIIHM-I A Endless Summer Twist-n-Shout F. americana Sparticus H. paniculata Kyushu F. angustifolia Raywood Claret Ash H. paniculata Tardiva F. excelsior Aurea Golden Ash KOELREUTERIA - Golden-Rain Tree F. pennsylvanica Cimmaron Koelreuteria paniculata F. pennsylvanica Urbanite K. paniculata Golden Candles A Upright

6 Ornamental Trees A to Z ORNAMENTALS REG QTY ADV QTY ORNAMENTALS REG QTY ADV QTY LAGERSTROEMIA - Crepe Myrtle M. spectabilis Plena 6 the dream tree Lagerstroemia fauriei Fantasy White L. fauriei Kiowa White L. fauriei Townhouse White L. indica x L. fauriei Acoma White L. indica x L. fauriei Biloxi Pale pink L. indica x L. fauriei Lipan Lavender L. indica x L. fauriei Natchez White L. indica x L. fauriei Sioux Pink L. indica x L. fauriei Tonto Fuchsia Pink L. indica x L. fauriei Tuscarora Coral pink L. indica x L. fauriei Zuni Dark lavender LIRIODENDRON - Tulip Tree L. tulipifera MAGNOLIA Magnolia acuminata x M. denudata Sundance M. x loebneri Ballerina M. x soulangeana MALUS - Crab Apple Malus Crimson Knight M. floribunda M. Gorgeous M. ioensis Plena M. Rejoice Upright M. Royal Raindrops M. Showtime M. Sugar Tyme M. Tom Matthews M. transitoria Golden Raindrops M. tschonoskii MELIA Melia azedarach PARROTIA Parrotia persica PHILADELPHUS Philadelphus x virginalis Minnesota Snowflake PHYSOCARPUS Physocarpus opulifolius Monlo A Diabolo PLATANUS - Plane Tree Platanus x acerifolia (London Plane) P. x acerifolia Bloodgood P. orientalis var. insularis Autumn Glory POPULUS - Poplar Populus x canadensis Evergreen 65-1 P. deltoides x P. yunnanensis Kawa P. x euramericana Veronese P. euramericana x nigra Crow s Nest P. nigra Italica - Lombardy Poplar P. yunnanensis PRUNUS - Cherry Prunus Kojo No Mai Small growing P. Okame Small growing P. Kanzan (syn. P. Sekiyama ) P. Mt. Fuji (syn. P. Shirotae )

7 Ornamental Trees A to Z ORNAMENTALS REG QTY ADV QTY ORNAMENTALS REG QTY ADV QTY 7 P. Ukon PRUNUS PERSICA - Peach Prunus persica Alboplena Double white P. persica Klara Mayer Double pink P. persica Magnifica Double crimson P. persica Versicolour Pink & white flowers PRUNUS - Plum Prunus x blireana P. cerasifera Nigra P. cerasifera Oakville Crimson Spire A P. Elvins PYRUS - Ornamental Pear Pyrus betulaefolia Dancer P. calleryana Aristocrat P. calleryana Bradford P. calleryana Burgundy Snow P. calleryana Capital P. calleryana Chanticleer P. calleryana Frontier P. calleryana Valiant P. calleryana x P. betulaefolia Edgewood P. fauriei Korean Sun P. salicifolia Pendula P. ussuriensis Manchurian Pear QUERCUS - Oak Q. palustris Green Pillar Q. robur English Oak RIBES - Flowering Currant Ribes sanguineum ROBINIA - Robinia Robinia pseudoacacia Frisia R. pseudoacacia Lace Lady R. pseudoacacia Purple Robe Magenta flowers SALIX - Willow Salix babylonica Weeping Willow SORBUS - Mountain Ash Sorbus aucuparia SOPHORA (Styphnolobium) Sophora japonica Princeton Upright SYRINGA - Lilac S. x hyacinthiflora Alice Eastwood Dbl.pink/mauve S. x hyacinthiflora Cora Brandt Double white S. vulgaris Charles Joly Double purple S. vulgaris Katherine Havemeyer Double mauve S. vulgaris Mme. Lemoine Double white S. vulgaris Sensation Purple S. vulgaris Sweetheart Double pink S. vulgaris Wedgwood Blue Lavender/blue S. vulgaris Yankee Doodle Deep purple TILIA Quercus coccinea Scarlet Oak Q. palustris Pin Oak Q. palustris Early Fall Tilia americana T. cordata Greenspire T. cordata Winter Orange Extra large

8 Ornamental & Standard Trees A to Z 8 ORNAMENTALS REG QTY ADV QTY ULMUS - Elm Ulmus glabra Lutescens Golden Elm STANDARD ORNAMENTALS Short standards grafted at 1.2metres () Tall standards grafted at 1.8metres () ACER QTY U. parvifolia Emer II -Allee Acer palmatum Shaina U. parvifolia Reflection A A. palmatum Shishigashira U. parvifolia Todd A VIBURNUM Viburnum plicatum Newport V. plicatum f. tomentosum Shasta V. plicatum Trizam Triumph ZELKOVA - Japanese Elm Zelkova serrata Green Vase Extra large A. platanoides Globosum CATALPA Catalpa bignonioides Nana FRAXINUS - Ash Fraxinus ornus Meczek Hardy LAGERSTROEMIA Lagerstroemia indica New Orleans Purplish-pink MALUS Z. serrata Mushashino Malus ioensis Plena Z. serrata Goldenflame A M. Royal Raindrops Z. serrata Wireless M. Tom Matthews M. x astrosanguinea Gorgeous PRUNUS - Cherry Prunus fruticosa Globosa ROBINIA Robinia Umbraculifera Mop Head Acacia R. pseudoacacia Lace Lady 1m Std FLEMING S ESSENTIAL TREE GUIDES... include Fleming s Fruit and Ornamental Tree Guide and Fleming s Urban Tree Guide. These guides outline many of the plants and trees Flemings grows and knows, and provides detailed information based on our expansive production experience. Order yours on page 10 of this form.

9 Weeping Trees A to Z 9 WEEPING ORNAMENTALS QTY WEEPING ORNAMENTALS QTY Short standards grafted at 1.2metres () Tall standards grafted at 1.8metres () ACER - Japanese Maple MORUS - Mulberry Morus alba Chaparral Fruitless Acer palmatum Dissectum Atropurpurem A. palmatum Dissectum Sekimori A.palmatum Dissectum Shojo Shidare Acer palmatum Dissectum Variegatum A. palmatum Dissectum Viridis BETULA - Birch Betula nigra Summer Cascade A Cascading B. pendula Youngii CERCIS Cercis canadensis Lavender Twist MALUS - Weeping Crab Apple Malus domestica Echtermayer A. palmatum Dissectum Bronze A. palmatum Dissectum Emerald Lace A. palmatum Dissectum Inaba Shidare A. palmatum Dissectum Orangeola A. palmatum Dissectum Atropurpureum Ornatum A. palmatum Dissectum Red Filigree Lace M. domestica Ellerslie M. Wandin Pride (Apple) M. alba Pendula PRUNUS - Weeping Cherry Prunus Snow Fountains Cascading P. Pink Snow Showers A P. Cheal s Weeping P. x subhirtella Pendula Rubra P. x subhirtella Pendula White PRUNUS - Semi-upright Cherry Prunus Mt. Fuji (syn. P. Shirotae ) QUARANTINE RESTRICTIONS: Subject to change by government authorities at any time. I WOULD LIKE MY ORDER BAGGED Yes No For information and pricing call: (03) or sales@flemings.com.au NOTE: Please refer to the bagged price list for bagged prices. flemings.com.au

10 Retail Marketing Products 10 CORFLUTE SIGNAGE SIZE PRICE QTY Find your Fleming s Trees Here Fleming s Top 10 Ornamental Trees Fleming s Pick of the Crop Fruit Trees A4 A2 A4 A2 A4 A2 VINYL BANNERS PRICE QTY Find your Fleming s Trees Here Fleming s Top 10 Ornamental Trees Fleming s Pick of the Crop Fruit Trees 1800mm x 900mm 1800mm x 900mm 1800mm x 900mm Each vinyl banner comes with metal eyelets for extra strength. Delivery time for vinyl banners and pull up banners is approximately 2 weeks from order date. (Our design service can tailormake any corflute signs or banners if you require. Charges and terms and conditions apply). PULL UP BANNERS PRICE QTY Find your Fleming s Trees Here 2100mm x 860mm Fleming s Top 10 Ornamental Trees Fleming s Pick of the Crop Fruit Trees 2100mm x 860mm 2100mm x 860mm BROCHURES & BOOKS (Brochures & booklets bundled in 25 s) PRICE QTY * DL Brochure Promo Pack contains 25 of the following brochures: Ballerina Columnar Apples, Trixzie Miniature Fruit Trees, Lipstick Maple Trees, Indian Summer Crepe myrtles, Plant a Duo/Trio. *For bare root tree orders greater than 500 trees. DL Brochure Promo Pack for orders under 100 bare root trees * Booklet Promo Pack contains 25 of the following booklets: Pick of the Crop Fruit Trees, Top10 Ornamental Trees (Both 24pp) Booklet Promo Pack for orders under 100 bare root trees Fleming s Fruit and Ornamental Tree Guide (272pp Book) Fleming s Urban Tree Guide (300pp Book) Complete Tree Bagging Service Fleming s offers a complete bagging service or a merchandised bin option #. For information and pricing call: (03) or or sales@flemings.com.au # Conditions apply. flemings.com.au

11 Fleming s Nurseries Pty Ltd TERMS AND CONDITIONS OF SALE 1 DEFINITIONS For the purpose of these Terms and Conditions of Sale ( Terms ): 1.1 Customer means the purchaser of the goods from Fleming s. 1.1 effective control means the ability to control the composition of the board of directors or having more than 50% of the shares giving the right to vote at general meetings. 1.2 Fleming s means Fleming s Nurseries Pty Ltd ACN Fleming s Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant breeders rights, business and domain names, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields owned or licensed to Fleming s. 1.4 goods means botanical plant material including but not limited to trees, cultivars, shrubs, rootstock, propagating material and any other goods supplied by Fleming s to the Customer. 1.5 deposit means an amount paid by the Customer to Fleming s when placing an order for the purpose of securing that order. 1.6 GST Act means A Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended). 1.1 Insolvency Event means any of the following events: in respect of a Customer that is a corporation, (a) a receiver, receiver and manager, trustee, other controller as defined in section 9 of the Corporations Act 2001 (Cth) or similar official is appointed over any of the assets or undertaking of the Customer; (b) the Customer suspends payment of its debts generally; (c) the Customer is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act 2001 (Cth); or (d) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator; (e) an application or order is made for the winding up or dissolution of the Customer or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Customer, otherwise than for the purpose of an amalgamation or reconstruction that has the prior written consent of Fleming s; or (f) the Customer ceases to carry on business or threatens to cease to carry on business, in respect of a Customer who is an individual, the party becomes bankrupt or enters into any arrangement or composition with his or her creditors or proposes to do so. 1.2 PPS Act means the Personal Property Securities Act 2009 (Cth). 2 APPLICATION OF TERMS 2.1 These Terms apply to the sale of goods from Fleming s to the Customer and to the entire exclusion of any other terms or conditions which may be proffered by the Customer (including the Customer s order) which are in any way inconsistent with these Terms and notwithstanding that but for this provision Fleming s would or might otherwise be regarded as having accepted or agreed to be bound by such other terms and conditions. 2.2 By ordering goods from Fleming s after receipt of these Terms, a Customer is taken to have accepted these Terms. 2.3 The Terms will be governed by the laws of Victoria and only the Courts of Victoria will have jurisdiction over any dispute arising under these Terms. 2.4 None of Fleming s agents, representatives. licensees or associates are authorised to make any representations, statements, conditions or agreements not confirmed in writing by us and we will not be bound by any such unauthorised statements. 3 ORDERS 3.1 The Customer s order, if accepted, will be on these Terms. Any variations suggested by the Customer will be excluded. 3.2 The Customer is not entitled, as of right to cancel any order placed with Fleming s. 3.3 Fleming s may allow the Customer to cancel an order but this will be entirely at Fleming s discretion with such conditions as Fleming s may impose. If, however, the Customer does cancel an order without Fleming s written permission or fails or refuses to take delivery of any of goods, Fleming s will be entitled to resell those goods if possible, without prejudice to any other rights or remedies available to Fleming s. Any deficiency on resale will be a debt due by the Customer to Fleming s payable on demand. 3.4 Fleming s may require the Customer to pay a deposit as part payment for the purchase price of the goods. Fleming s acceptance of the deposit will not constitute an acceptance of any offer made by the Customer and will not bring into force any binding legal agreement for Fleming s to supply the Customer with the goods ordered. Where a Customer who has paid a holding deposit cancels an order without Fleming s written permission or fails or refuses to take delivery of any of the goods then the deposit will be forfeited to Fleming s. The Customer acknowledges that the deposit represents a genuine pre-estimate of Fleming s minimum probable loss in such circumstances. 4 PAYMENT TERMS 4.1 Except where some other arrangement has been made (e.g. cash on delivery or cash in advance), Fleming s terms of payment are net 30 days from date of delivery, or, if the Customer fails or refuses to take delivery, 30 days from such failure or refusal. 4.2 Interest will be charged on overdue accounts at the rate being 2.00% more than the rate set pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic). 5 GST All prices for goods are exclusive of GST, unless otherwise stated. In addition to the price for the goods, the Customer must pay GST at the prevailing GST rate on those amounts, if applicable. Fleming s tax invoice will include details of GST charged. 6 DELIVERY OF GOODS 6.1 Fleming s will use all reasonable endeavours to ensure that the goods are available for delivery by the date or dates (if any) specified in any of Fleming s documents but will not be liable if they are unable to have those goods available for delivery by the specified date or dates. 6.2 The Customer must notify Fleming s of any alleged shortages or damage to the goods within 48 hours of delivery and confirm in writing within 14 days otherwise claims will not be recognised. Fleming s require the opportunity to inspect any of the goods relative to any form of claim following delivery if the Customer believes that there are any shortages or the goods are defective in any way. 6.3 Fleming s are not liable for any damage to goods or loss of goods while the goods are in transit unless otherwise agreed to in writing. 6.4 Fleming s will arrange delivery at the Customer s cost. 7 ACKNOWLEDGEMENTS 7.1 The Customer acknowledges and agrees that where goods are plant material, growth and performance is dependent on a wide range of conditions beyond Fleming s control and Fleming s make no guarantee as to the suitability of any of the goods for any specific use. Fleming s do not recommend any one particular type of goods in preference to any other, or claim to be an authority on any one of our goods. 7.2 The Customer acknowledges that the propagation of goods is subject to many influences, some of which are not within Fleming s control and some of which are within Fleming s control. Any of these influences may affect Fleming s ability to deliver the goods that have been ordered. Fleming s will not be liable to the Customer if their ability to deliver the number of goods ordered is affected by any of these influences. 8 INFORMATION All information is believed to be correct and is given in good faith. Fleming s disclaims all liability for loss suffered as a result of reliance on any information provided. The Customer accepts responsibility for their own choices of goods, irrespective of any recommendations, advice or information provided by Fleming s. 9 RISK AND RETENTION OF TITLE 9.1 Property in the goods will not pass to the Customer until the Customer has paid for them in full but the risk in the goods will be the Customer s from the time at which Fleming s have made them available for delivery. 9.2 The Customer understands that they are a bailee or custodian of the goods on Fleming s behalf until such time as the goods have been paid for in full. As custodian the Customer is not allowed to sell them or alter the goods in any manner and the Customer must insure the goods for their full insurable value until they have been paid for in full. If however the Customer does sell the goods then the proceeds of such sale will be deemed to be held on trust for Fleming s until they and each of them have been paid for in full and if the Customer alters them in any way prior to them being paid for in full then they do so at their risk. 10 SECURITY INTEREST 10.1 Expressions used in this clause 10 and in the PPS Act have the same meanings as when used in the PPS Act If Fleming s already has a perfected security interest in goods previously supplied to the Customer together with their proceeds, that security interest continues in relation to those goods and the goods supplied or to be supplied under these Terms. Otherwise, the Customer grants to Fleming s a security interest in the goods supplied on credit and any proceeds in the goods supplied on credit and all the Customer s present and future rights in those goods and any proceeds as security for payment of all amounts the Customer owes Fleming s, and: Fleming s may register this security interest with the Registrar of Personal Property Securities pursuant to the PPS Act in order to perfect its security interest; the Customer agrees that the security interest granted to Fleming s pursuant to these Terms may be registered as a purchase money security interest in relation to the goods and the proceeds of the goods; if requested, the Customer must pay or reimburse the costs of registering the security interest, and provide Flemng s with all assistance reasonably required in order for Fleming s to register the security interest; and for the purpose of section 115 of the PPS Act, the following sections of the Act do not apply to these Terms: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and Where goods that Fleming s has supplied to the Customer become mixed with other similar goods supplied by other persons or converted, the Customer grants Fleming s a security interest in the mixed or converted goods to the value of the goods that Fleming s has supplied to the Customer but which have not yet been paid for together with their proceeds The Customer consents to Fleming s searching the Personal Property Securities Register at any time for any information about the Customer The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest granted under these Terms In the event that a third party has registered a security interest that has priority over the goods, the Customer must procure that the third party enters into a deed of priority with Fleming s to ensure that Fleming s security interest in the goods has first priority. 11 INTELLECTUAL PROPERTY RIGHTS 11.1 Nothing in these Terms affects the right, title or interest in Fleming s Intellectual Property Rights and Fleming s retains their full, right title and interest in Fleming s Intellectual Property Rights to the exclusion of the Customer The Customer must not claim ownership of or any interest in Fleming s Intellectual Property Rights Certain goods may be subject to plant breeder s rights under the Plant Breeder s Rights Act 1994 and the Customer must not exploit any goods which are subject to these rights except in accordance with that Act Unless otherwise agreed to in writing, the Customer is not permitted to use any of the Fleming s Intellectual Property Rights. 12 DEFAULT 12.1 Events of default If: the Customer defaults in payment of any amount owed by the Customer to Fleming s; the Customer fails to comply with any provision of these Terms; without Fleming s written consent the Customer, being a corporation, has a different person in effective control of the Customer as a result of changes in: (a) membership of the company or its holding company, (b) beneficial ownership of the shares in the company or its holding company, or (c) beneficial ownership of the business or assets of the company, unless the Customer is a public company listed on the Australian Stock Exchange, or a subsidiary of one; the Customer, being an individual, dies or becomes of unsound mind; or an Insolvency Event occurs in relation to the Customer; then, except as otherwise provided by law, the Customer is in default Effect of default Upon an Event of default occurring under clause 12.1 of these Terms: Fleming s or its duly authorised agents or both may, without affecting any of its other rights or remedies and without notice to the Customer, enter the Customer s premises or any other premises where goods being the subject of a retention of title under clause 9 are situated for the purpose of recovering possession of the goods (without liability for trespass or any resulting damage) and recover possession of and retain or resell the goods; if the Customer has sold the goods or utilised, mixed, built into any other products or disposed of or stored the goods in such a manner as to render the goods irrecoverable or unidentifiable, the cost of the goods will immediately be a debt due by the Customer and recoverable by an action in law; and the Customer appoints Fleming s as its attorney, in connection with Fleming s rights and remedies pursuant to these Terms and any other rights or remedies which may accrue to Fleming s, to do all things, execute all documents and otherwise act in place of the Customer for the purposes of giving effect to these Terms. Without limiting this provision, the attorney may recover possession of the goods and recover the proceeds of the sale of the goods which may at any time be received or receivable by the Customer Rights of Fleming s not affected The rights of Fleming s under this clause 12 are in addition to any other rights or remedies that Fleming s may have at law or otherwise. 13 FLEMING S WARRANTIES AND LIMITATION OF LIABILITY 13.1 Fleming s will take reasonable care to ensure that where labels are affixed to the goods, that the goods will be correctly labelled Any warranty in relation to any defect concerning the goods will not apply and is expressly excluded if the defect is due to or caused by: abnormal or extreme temperatures; other abnormal weather conditions; tampering with goods, other than by Fleming s; unauthorised modification of goods; damage during transportation of goods without fault on the part of Fleming s; or the Customers failure to ensure proper storage and maintenance of goods To the extent permitted by law, Fleming s are not liable and the Customer must indemnify Fleming s in respect of all claims for physical or financial injury, loss or damage, or for consequential loss or damage of any kind arising out of the supply of the goods or arising out of the Customers negligence or in any way whatsoever All other express or implied conditions and warranties under statute, general law or trade usage including, in particular, any related to identity, quality, description, trueness to type, merchantability or fitness of the goods for any particular purpose are hereby expressly excluded Subject to clause 13.6, and with the exception of any warranties expressly provided in the Fleming s product catalogue, to the maximum extent permitted by law, Fleming s makes no warranties or representation and the Customer releases Fleming s from all liability for any loss, claim, damage or injury suffered in connection with the supply of the goods Fleming s liability to the Customer in respect of any non-excludable warranty or condition shall be limited to the maximum extent possible to either of the following (as Fleming s may decide): the replacement of the goods or the supply of equivalent goods; or the payment of the cost of replacing the goods or of acquiring equivalent goods Whilst Fleming s will use all reasonable endeavours to ensure that the goods sold to the Customer are propagated using the best available propagation material available at the time of propagation, Fleming s will not be responsible for any loss or damage caused by pests, diseases and/or viruses latent or patent. Any liability in this regard will be limited on the same basis as set out in clause CUSTOMER WARRANTIES The Customer warrants and represents to Fleming s that: 14.1 all information provided by the Customer to Fleming s is true and correct, and not misleading in any way; 14.2 the Customer has full power and lawful authority to execute and deliver these Terms and to perform or cause to be performed its obligations under these Terms; 14.3 these Terms constitutes a binding obligation of the Customer enforceable in accordance with its terms by appropriate legal remedy; and 14.4 the entry into and performance of these Terms does not breach: any obligation (including any statutory, contractual or fiduciary obligation) of the Customer; any law; or the constitution (or any trust deed of the Customer). 15 GUARANTEE If the Customer is a company or partnership Fleming s may require a Guarantee & Indemnity be signed by each of the Customers directors or partners. 16 GENERAL 16.1 The Customer authorises Fleming s to obtain credit reports from credit reporting agencies and trading information from references supplied, and to disclose trading information to other suppliers and credit agencies The Customer undertakes to provide Fleming s with not less than twenty one (21) days prior written notice of any proposed change in the Customers business name and or any changes in the Customers details (including but not limited to, changes in the Customers address, telephone and facsimile numbers, or business practice) The Customers agrees and undertakes to fully indemnify Fleming s in regard to any breach of the provisions of these Terms by the Customer or by its agents, employees, or representatives If the Customer is a trustee, the Customer is bound both personally and in the Customer s capacity as trustee Fleming s may vary or replace these Terms from time to time on 30 days notice to the Customer. If the Customer continues to order goods after receipt of the notice of variation, the Customer is deemed to have agreed to the variations No rule of contract interpretation must be applied in the interpretation of these Terms to the disadvantage of one party on the basis that it prepared or put forward these Terms or any document comprising part of these Terms. Terms and Conditions of Sale 1/11/2012