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TERMS AND CONDITIONS OF TRADE - COMMERCIAL GROWERS
DEFINITIONS
1. In these Terms and Conditions and any ancillary documentation referred to in them, unless the context or subject matter otherwise require:
Agreed Delivery Date means the date stipulated as the delivery date on the Order Confirmation Form or such other date as is agreed to by us and you;
Agreed Terms means terms agreed between us and you from time to time with respect to when payment is required to be made for our Goods/Services. If no terms are agreed or there is a dispute as to the Agreed Terms, then the Agreed Terms will default to:
(a) prior to Delivery; or if Delivery has already occurred,
(b) within seven days of Delivery.
Birdwood (we/us/our) means Jayciel Pty Limited ACN 010 123 323 trading as Birdwood Nursery ABN 69 117 915 091;
Delivery means delivery of Goods to the location/s agreed between Birdwood and you or such other location as Birdwood may at its sole discretion consider reasonable;
Goods means the plant/s (and any plants propagated from them) in the number and variety listed on an Order Confirmation Form and/or any other plants that are ordered by the Purchaser from time to time;
Grafting means the process by which Birdwood unite growing plants with detached shoots or buds to propagate further plants of the same variety;
Non-Propagation Agreement means a separate but related agreement that must be executed by a Purchaser who orders Goods that are not of a Public Variety;
Order Confirmation Form means a form entitled ‘Birdwood Nursery Order Confirmation Form' that is provided by Birdwood to a Purchaser after a request for Goods is made;
Overdue Amount means any amount of money that remains unpaid outside of Agreed Terms;
Personal Information has the definition attributed to it under the Privacy Act 1988 (Cth);
Plant Breeder's Rights or PBR has the definition attributed to PBR under the Plant Breeder's Rights Act 1994 (Cth);
Premises means the nursery located at 71-83 Blackall Range Road, Woombye Queensland 4559;
Public Variety means any plant variety not protected by PBR;
Purchaser (you/your) means:
(a) if an Order Confirmation Form is submitted by Birdwood, the person or entity identified as purchaser on the Order Confirmation Form; or
(b) if an Order Confirmation Form is not used in any particular request for our Goods/Services, then the person or entity who has requested our Goods/Services and/or the person or entity on behalf of whom the request for our Goods/Services is made;
Services means the growth, propagation and Grafting of the Goods by Birdwood for the Purchaser; and
Terms and Conditions means the terms and conditions set out in this document.
GENERAL
2. When you enter into any transaction with Birdwood, whether conditional or unconditional, you acknowledge that:
(a) you have read and agree to be bound by these Terms and Conditions;
(b) you have read and agree to be bound by the terms of any ancillary documents referred to in these Terms and Conditions that you may be required to execute in accordance with these Terms and Conditions; and
(c) Birdwood is transacting with you on the express basis that these Terms and Conditions will apply in full to the transaction.
NON-PROPAGATION AGREEMENT
3. If you order Goods that are subject to Plant Breeder's Rights, you will need to execute a Non-Propagation Agreement and pay prescribed royalties before such time as Delivery will be made.
4. If you fail or decline to execute a Non-Propagation Agreement when required:
(a) your obligations including, without limitation, the obligation to make full payment of our invoice, under these Terms and Conditions will continue;
(b) our obligations under these Terms and Conditions will not be enforceable by you with respect to an order for Goods subject to Plant Breeder's Rights.
ORDERING
5. Upon requesting our Goods/Services, we will send you an Order Confirmation Form in accordance with your request and this will constitute an offer from Birdwood to the Purchaser.
6. Birdwood's offer contained in an Order Confirmation Form may be provided to you by any method including, without limitation, ordinary post, facsimile, email or hand delivery.
7. You may accept an offer from Birdwood contained in an Order Confirmation Form by any of the following:
(a) written acceptance;
(b) verbal acceptance;
(c) part or full payment; or
(d) continuing to communicate with Birdwood after the offer has been made in a manner that would reasonably imply acceptance.
8. Once you perform an act of acceptance under clause 7 of these Terms and Conditions, Birdwood is entitled to:
(a) rely on this acceptance as forming a contract to perform/provide the agreed Goods/Services; and
(b) receive payment in accordance clause 9 of these Terms and Conditions.
PAYMENT / NON-PAYMENT
9. Payment for Goods/Services in the form of a forward order must be made in the following manner:
(a) 20% non-refundable cash deposit (on certain products) upon acceptance of an Order Confirmation Form;
(b) 30% upon commencement of Grafting or budding; and
(c) 50% before Delivery.
Payment for Goods/Services in the form of existing stock must be made in the following manner:
(a) 20% upon acceptance of an Order Confirmation Form; and
(b) 80% prior to Delivery.
10. Payment of an invoice must be made in accordance with Agreed Terms and only by the methods provided on the invoice.
11. If payment is not received pursuant to Agreed Terms, this constitutes an event of default and the invoiced amount becomes an Overdue Amount.
12. In the event of default, Birdwood may:
(a) charge interest on the Overdue Amount; at the rate of 4% per month whilst any of the amount remains overdue, which interest will immediately form part of the Overdue Amount; and/or
(b) receive a monthly plant maintenance fee for all Goods held beyond the Agreed Delivery Date. The monthly maintenance fee will be 3% of final cost price of the Goods held, which fee will immediately form part of the Overdue Amount; and/or
(c) seek indemnity for any and all costs incurred by Birdwood in taking any action under this clause.
13. To secure the due and punctual payment of our invoices, you charge in favour of us all right, title and interest in, to, under or derived from any property of any form owned by you until such time as any and all Overdue Amounts are paid.
BIRDWOOD'S WARRANTY
14. Birdwood may accept responsibility (limited to the extent set out in clause 15 of these Terms and Conditions) for damage caused during Delivery, if we are notified within three days after the date of Delivery.
15. Birdwood's obligation with respect to damage or destruction of Goods during Delivery is limited to a refund of the cost of the damaged Goods or replacement of the damaged Goods at Birdwood's discretion.
16. If you request replacement of damaged Goods you must bear the costs of Delivery of the replacement Goods.
17. Birdwood may, in certain circumstances, replace Goods or refund the cost of those Goods that fail to grow in an acceptable manner to be determined at the sole discretion of Birdwood.
18. If you wish for Birdwood to consider a replacement or refund of any Goods that are failing to grow in an acceptable manner you should notify Birdwood within 3 months after Delivery. Birdwood will then consider the merits of your claim and at its sole discretion either:
(a) replace the Goods;
(b) refund part or all of the amount paid for the Goods; or
(c) decline to replace the Goods or to issue a refund for the amount paid for the Goods.
19. Birdwood expressly disclaims, to the fullest extent permitted by law, all express, implied and statutory warranties. Where any statutory terms may not be excluded, liability in respect of
them is limited to:
(a) replacement of the Goods; or
(b) refund of the cost of the Goods,
that are the subject of the statutory warranty.
INDEMNITY
20. Birdwood makes no guarantee that Goods will not be damaged during delivery and whilst we invite you to notify us of any damaged Goods, you acknowledge that Delivery breaks the chain of causation and Birdwood is not liable for any losses incurred outside of refund or replacement of the Goods.
21. Despite its best intentions, Birdwood can make no guarantee that any Goods will grow, produce fruit or be fit for any specific purpose and you fully indemnify and hold harmless Birdwood from any claims, by you or a third party, arising from a failure of any Goods to grow.
22. Birdwood makes no representation as to the suitability of any Goods and the Purchaser has made no reliance on any information provided by Birdwood or its agents or employees in its selection of Goods.
23. You agree to indemnify and hold harmless Birdwood from any action or recovery arising from Birdwood's termination of any agreement with you governed by these Terms and Conditions.
24. You warrant that you will not claim any causal link between the provision of Goods/Services from Birdwood and any agreement you may enter into with another party to sell to, supply to or otherwise contract with another party.
INTELLECTUAL PROPERTY
25. Your purchase of Goods protected by PBRs in no way transfers any rights in the intellectual property of the Goods.
26. Any intellectual property vested in the Goods including, without limitation, PBRs remains vested in the rightful owner of the intellectual property in those Goods.
27. Any use of Goods that are protected by PBRs must be in accordance with the terms of the relevant Non-Propagation Agreement and any breach of those terms gives both the true owner of the intellectual property and/or Birdwood the entitlement to sue you for infringement and/or breach of contract.
TERMINATION
Termination by Birdwood
28. Birdwood may terminate any transaction arising out of the provision of its Goods/Services to you immediately upon notice to you in any form at any time.
29. Birdwood's only liability to you upon termination by Birdwood is limited to a refund of the amount of payments made in advance of a stage of the Goods/Services which Birdwood has yet to
perform, after deduction of any moneys that are owing to Birdwood.
Termination by the Purchaser
30. You may terminate any agreement arising out of the provision of Birdwood's Goods/Services to you upon written notice to Birdwood sent by registered post to 71-83 Blackall Range Road,
WOOMBYE QLD 4559.
31. Even if you terminate a transaction with Birdwood in accordance with clause 30 of these Terms and Conditions, you are still liable to pay the full amount or balance thereof that would have been payable upon completion of the transaction provided that Birdwood have commenced any part of the process
involved in completing the transaction agreed, including, without limitation, any administrative function.
32. Upon receipt of your written termination, Birdwood will issue you an invoice for any amounts payable upon completion of the transaction that have not yet been paid. The amount of this invoice will become an Overdue Amount if not paid within seven days of the date of the invoice.
PRIVACY
33. Without limiting any other clause in these Terms and Conditions, Birdwood will not, without your consent, use your Personal Information in a way that breaches the National Privacy Principles set out in the Privacy Act 1988 (Cth).
RETENTION OF TITLE
34. Subject to the limited warranties contained in clauses 14 to 19 of these Terms and Conditions, the risk and all attached liability to damage in the Goods passes to the Purchaser at the point of
departure of the Goods from Birdwood's Premises, even if Birdwood delivers the Goods itself.
35. Ownership of the Goods does not pass to the Purchaser until the Purchaser has paid in full for the Goods the subject of any specific Order Confirmation Form and the Purchaser is obliged to keep the Goods in substantially the same (and no worse) form and condition as at the time they were provided to the Purchaser until such time as payment is made.
36. If the Purchaser deals with the Goods in a manner that renders it incapable of complying with clause 35 of these Terms and Conditions, then Birdwood is entitled to claim the amount of
$5,000 as liquidated damages in addition to any amount still owing under the Order Confirmation Form.
DISPUTE RESOLUTION
37. If you consider there is a legitimate dispute between us and you (the Parties) as to any part of a transaction governed by these Terms and Conditions or any ancillary agreement, you must first
go through the following dispute resolution process before the commencement of any arbitration or other legal proceedings.
38. You must give us notice in writing setting out full details of the dispute (Dispute Notice).
39. To resolve the dispute:
(a) for a period of 14 days after a Dispute Notice is given (or a longer period if the Parties agree in writing), the Parties will engage in negotiations and discussions in order to seek to resolve the dispute.
(b) the Parties must participate in the negotiations and discussions referred to in clause 39(a) in good faith and will use all reasonable endeavours to resolve the
dispute. The Parties may also appoint third party consultants to assist in the resolution of the dispute.
(c) if the Parties cannot resolve the dispute within the period set out in clause 39(a), you may request that the dispute be referred to mediation upon providing a written undertaking to bear all costs involved in the mediation.
(d) if you do not undertake to pay all costs involved in the mediation, then Birdwood is not obliged to attend any mediation.
40. If the Parties to the dispute cannot agree on a mediator within seven days after a request under clause 39(c), upon the request of either Party the president of the Queensland Law Society Inc or that president's nominee may appoint a mediator.
41. Unless agreed by the mediator and the Parties, the mediation must be held within 15 days of a request for the dispute to be referred to mediation being made under clause 39(c) and must
occur on the Sunshine Coast unless otherwise agreed.
42. If a Party to a dispute fails to comply with any aspect of clauses 37-41, the other Party does not have to comply with those clauses in relation to the dispute.
43. Nothing in these Terms and Conditions obliges Birdwood to attempt the dispute resolution process outlined in clauses 37-42 before it can take action against a Purchaser.
ILLEGALITY AND SEVERABILITY
44. The provisions of this Agreement will so far as possible be construed so as not to be invalid, illegal or unenforceable in any respect but if any provision on its true interpretation is illegal,
invalid or unenforceable:
(a) that provision will so far as possible be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be
reasonable in all the circumstances so as to give it a valid operation of a partial character; or
(b) if the provision or part of it cannot be read down the provision or part will be deemed to be void and severable and the remaining provisions of this instrument will not in any way be affected or impaired.
JURISDICTION
45. You irrevocably acknowledge that despite:
(a) your business/residential location;
(b) the delivery place of the Goods; or
(c) any other geographical indicia,
any transaction entered into between you and Birdwood is entered into under the laws of Queensland.
46. Any dispute that is not resolved in accordance with the process outlined in clauses 37 to 42 must be resolved in a court of competent jurisdiction in Queensland.
TERMS AND CONDITIONS OF TRADE - RETAIL NURSERIES
DEFINITIONS
1. In these Terms and Conditions and any ancillary documentation referred to in them, unless the context or subject matter otherwise require:
Agreed Delivery Date means the date stipulated as the delivery date on a Returned Availability Sheet or such other date as is agreed to by us and you;
Agreed Terms means terms agreed between us and you from time to time stipulating when payment is required to be made for our Goods/Services. If no terms are agreed or there is a dispute as to the Agreed Terms, then the Agreed Terms will default to:
(a) prior to Delivery; or if Delivery has already occurred,
(b) within seven days of Delivery.
Availability Sheet means a sheet facsimiled to you weekly listing the type and number of plants available to be purchased;
Birdwood (we/us/our) means Jayciel Pty Limited ACN 010 123 323 trading as Birdwood Nursery ABN 69 117 915 091;
Credit Account means a credit system maintained in any form that Birdwood desires from time to time to record and allow you to obtain Goods before full payment is made;
Delivery means delivery of Goods to the location/s agreed between Birdwood and you or such other location as Birdwood may at its sole discretion consider reasonable;
Goods means the plant/s (and any plants propagated from them) in the number and variety listed on a Returned Availability Sheet and/or any other plants that are ordered by the Purchaser from time to time;
Grafting means the process by which Birdwood unite growing plants with detached shoots or buds to propagate further plants of the same variety;
Overdue Amount means any amount of money that remains unpaid outside of Agreed Terms.
Personal Information has the definition attributed to it under the Privacy Act 1988 (Cth);
Plant Breeder's Rights or PBR has the definition attributed to PBR under the Plant Breeder's Rights Act 1994 (Cth);
Premises means the nursery located at 71-83 Blackall Range Road, Woombye Queensland 4559;
Public Variety means any plant variety that is not protected by PBR;
Purchaser (you/your) means:
(a) if a Returned Availability Sheet is submitted to Birdwood, the person or entity identified as purchaser on the Returned Availability Sheet; or
(b) if a Returned Availability Sheet is not used in any particular request for our Goods/Services, then the person or entity who has requested our Goods/Services and/or the person or entity on behalf of whom the request for our Goods/Services is made;
Returned Availability Sheet (RAS) is an Availability Sheet returned by you to Birdwood noting which plants you wish to purchase;
Services means the growth, propagation and Grafting of the Goods by Birdwood for the Purchaser; and
Terms and Conditions means the terms and conditions set out in this document.
GENERAL
2. When you enter into any transaction with Birdwood, whether conditional or unconditional, you acknowledge that:
(a) you have read and agree to be bound by these Terms and Conditions;
(b) you have read and agree to be bound by the terms of any ancillary documents referred to in these Terms and Conditions that you may be required to execute in accordance with these Terms and Conditions; and
(c) Birdwood is transacting with you on the express basis that these Terms and Conditions will apply in full to the transaction.
PLANT BREEDER'S RIGHTS
3. If you order Goods that are subject to Plant Breeder's Rights, you must ensure that the appropriate PBR label is attached to the plant at the point of re-sale.
4. Failure to comply with clause 3 is a breach of these Terms and Conditions and may also be a breach of Commonwealth law.
AVAILABILITY SHEETS
5. Upon providing an RAS to us, Birdwood may:
(a) rely on this as forming a contract to perform/provide the agreed Goods/Services; and
(b) receive payment in accordance clause 7 of these Terms and Conditions.
6. Clause 5 is for the benefit of Birdwood and whilst we are entitled to treat an RAS as a formed contract we are not obliged to do so.
PAYMENT / NON-PAYMENT
7. If you wish to place a forward order, payment for Goods/Services must be made in the following manner:
(a) 20% non-refundable cash deposit (on certain products) upon making the order;
(b) 30% upon commencement of Grafting or budding; and
(c) 50% before Delivery.
8. For orders made by an RAS, payment is made in accordance with the Agreed Terms of your existing Credit Account.
9. If payment is not received pursuant to Agreed Terms, this constitutes an event of default and the invoiced amount becomes an Overdue Amount.
10. In the event of default, Birdwood may:
(a) charge interest on the Overdue Amount; at the rate of 4% per month whilst any of the amount remains overdue, which interest will immediately form part of the Overdue Amount; and/or
(b) receive a monthly plant maintenance fee for all Goods held beyond the Agreed Delivery Date. The monthly maintenance fee will be 3% of final cost price of the Goods held, which fee will immediately form part of the Overdue Amount; and/or
(c) seek indemnity for any and all costs incurred by Birdwood in taking any action under this clause.
11. To secure the due and punctual payment of our invoices, you charge in favour of us all right, title and interest in, to, under or derived from any property of any form owned by you until such time as any and all Overdue Amounts are paid.
CREDIT
12. You may apply to Birdwood for a Credit Account by means of a form entitled ‘Application for Credit Account' available upon request.
13. Birdwood has complete discretion to consider, accept or reject an application and is not obliged to provide reasons for rejection of any application.
14. If you provide Birdwood with an Application for Credit Account, you agree that Birdwood may use Personal Information provided by you for the following purposes and for other purposes as may be reasonable or required by law from time to time:
(a) to assess an application by you:
(b) to obtain from a credit-reporting agency a credit report containing personal credit information about you. You agree that Birdwood may exchange information about you with those credit providers named in a consumer credit report issued by a reporting agency;
(c) to notify other credit providers of a default by you;
(d) to exchange information with credit providers as to the status of any Credit Account, where you are in default with other credit providers; and
(e) to assess your credit worthiness.
15. Any Application for Credit Account completed on behalf of a corporation, must also bind its directors personally for all obligations contained within the form and these Terms and
Conditions.
16. Birdwood is entitled to pursue the corporation's directors personally for any Overdue Amount without any requirement to pursue the corporation first.
17. You acknowledge that:
(a) Birdwood has absolute discretion in deciding whether or not to grant you a Credit Account or to terminate or revoke a Credit Account;
(b) there is no appeal process upon rejection of an application for a Credit Account or termination of an existing Credit Account;
(c) Birdwood is not liable for any consequences arising from denying you a Credit Account or terminating an existing Credit Account; and
(d) any Credit Account can be terminated at any time upon notice from Birdwood to you in any form at which time all money payable under the Credit Account:
(i) becomes immediately payable; and
(ii) may be treated as an Overdue Amount if not paid within seven days of termination of the Credit Account.
BIRDWOOD'S WARRANTY
18. Birdwood may accept responsibility (limited to the extent set out in clause 19 of these Terms and Conditions) for damage caused during Delivery, if we are notified within three days after the date of Delivery.
19. Birdwood's obligation with respect to damage or destruction of Goods during Delivery is limited to a refund of the cost of the damaged Goods or replacement of the damaged Goods at Birdwood's discretion.
20. If you request replacement of damaged Goods you must bear the costs of Delivery of the replacement Goods.
21. Birdwood may, in certain circumstances, replace Goods or refund the cost of those Goods that fail to grow in an acceptable manner to be determined at the sole discretion of Birdwood.
22. If you wish for Birdwood to consider a replacement or refund of any Goods that are failing to grow in an acceptable manner you should notify Birdwood within 3 months after Delivery. Birdwood will then consider the merits of your claim and at its sole discretion either:
(a) replace the Goods;
(b) refund part or all of the amount paid for the Goods; or
(c) decline to replace the Goods or to issue a refund for the amount paid for the Goods.
23. Birdwood expressly disclaims, to the fullest extent permitted by law, all express, implied and statutory warranties. Where any statutory terms may not be excluded, liability in respect of
them is limited to:
(a) replacement of the Goods; or
(b) refund of the cost of the Goods,
that are the subject of the statutory warranty.
INDEMNITY
24. Birdwood makes no guarantee that Goods will not be damaged during Delivery and whilst we invite you to notify us of any damaged Goods, you acknowledge that Delivery breaks the chain of causation and Birdwood is not liable for any losses incurred outside of refund or replacement of the Goods.
25. Despite its best intentions, Birdwood can make no guarantee that any Goods will grow, produce fruit or be fit for any specific purpose and you fully indemnify and hold harmless Birdwood from any claims, by you or a third party, arising from a failure of any Goods to grow.
26. Birdwood makes no representation as to the suitability of any Goods and the Purchaser has made no reliance on any information provided by Birdwood or its agents or employees in its selection of Goods.
27. You agree to indemnify and hold harmless Birdwood from any action or recovery arising from Birdwood's termination of any agreement with you governed by these Terms and Conditions.
28. You warrant that you will not claim any causal link between the provision of Goods/Services from Birdwood and any agreement you may enter into with another party to sell to, supply to or otherwise contract with another party.
INTELLECTUAL PROPERTY
29. Your purchase of Goods protected by PBRs in no way transfers any rights in the intellectual property of the Goods.
30. Any intellectual property vested in the Goods including, without limitation, PBRs remains vested in the rightful owner of the intellectual property in those Goods.
31. Any use of Goods that are protected by PBRs must be in accordance with the terms of the relevant Commonwealth law.
TERMINATION
Termination by Birdwood
32. Birdwood may terminate any transaction arising out of the provision of its Goods/Services to you immediately upon notice to you in any form at any time.
33. Birdwood's only liability to you upon termination by Birdwood is limited to a refund of the amount of payments made in advance of a stage of the Goods/Services which Birdwood has yet to
perform, after deduction of any moneys that are owing to Birdwood.
Termination by the Purchaser
34. You may terminate any agreement arising out of the provision of Birdwood's Goods/Services to you upon written notice to Birdwood sent by registered post to 71-83 Blackall Range Road, WOOMBYE QLD 4559.
35. Even if you terminate a transaction with Birdwood in accordance with clause 34 of these Terms and Conditions, you are still liable to pay the full amount or balance thereof that would have been payable upon completion of the transaction provided that Birdwood have commenced any part of the process
involved in completing the transaction agreed, including, without limitation, any administrative function.
36. Upon receipt of your written termination, Birdwood will issue you an invoice for any amounts payable upon completion of the transaction that have not yet been paid. The amount of this
invoice will become an Overdue Amount if not paid within seven days of the date of the invoice.
PRIVACY
37. Without limiting any other clause in these Terms and Conditions, Birdwood will not, without your consent, use your Personal Information in a way that breaches the National Privacy Principles set out in the Privacy Act 1988 (Cth).
RETENTION OF TITLE
38. Subject to the limited warranties contained in clauses 18 to 23 of these Terms and Conditions, the risk and all attached liability to damage in the Goods passes to the Purchaser at the point of
departure of the Goods from Birdwood's Premises, even if Birdwood delivers the Goods itself.
39. Ownership of the Goods does not pass to the Purchaser until the Purchaser has paid in full for the Goods the subject of any specific RSA and the Purchaser is obliged to keep the
Goods in substantially the same (and no worse) form and condition as at the time they were provided to the Purchaser until such time as payment is made.
40. If the Purchaser deals with the Goods in a manner that renders it incapable of complying with clause 39 of these Terms and Conditions, then Birdwood is entitled to claim the amount of
$5,000 as liquidated damages in addition to any amount still owing under the RSA.
DISPUTE RESOLUTION
41. If you consider there is a legitimate dispute between us and you (the Parties) as to any part of a transaction governed by these Terms and Conditions or any ancillary agreement, you must first
go through the following dispute resolution process before the commencement of any arbitration
or other legal proceedings.
42. You must give us notice in writing setting out full details of the dispute (Dispute Notice).
43. To resolve the dispute:
(a) for a period of 14 days after a Dispute Notice is given (or a longer period if the Parties agree in writing), the Parties will engage in negotiations and discussions in order to seek to resolve the dispute.
(b) the Parties must participate in the negotiations and discussions referred to in clause 45(a) in good faith and will use all reasonable endeavours to resolve the dispute. The Parties may also appoint third party consultants to assist in the resolution of the dispute.
(c) if the Parties cannot resolve the dispute within the period set out in clause 45(a), you may request that the dispute be referred to mediation upon providing a written undertaking to bear all costs involved in the mediation.
(d) if you do not undertake to pay all costs involved in the mediation, then Birdwood is not obliged to attend any mediation.
44. If the Parties to the dispute cannot agree on a mediator within seven days after a request under clause 43(c), upon the request of either Party the president of the Queensland Law Society Inc or that president's nominee may appoint a mediator.
45. Unless agreed by the mediator and the Parties, the mediation must be held within 15 days of a request for the dispute to be referred to mediation being made under clause 43(c) and must
occur on the Sunshine Coast unless otherwise agreed.
46. If a Party to a dispute fails to comply with any aspect of clauses 41-45, the other Party does not have to comply with those clauses in relation to the dispute.
47. Nothing in these Terms and Conditions obliges Birdwood to attempt the dispute resolution process outlined in clauses 41-46 before it can take action against a Purchaser.
ILLEGALITY AND SEVERABILITY
48. The provisions of this Agreement will so far as possible be construed so as not to be invalid, illegal or unenforceable in any respect but if any provision on its true interpretation is illegal,
invalid or unenforceable:
(a) that provision will so far as possible be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be
reasonable in all the circumstances so as to give it a valid operation of a partial character; or
(b) if the provision or part of it cannot be read down the provision or part will be deemed to be void and severable and the remaining provisions of this instrument will not in any way be affected or impaired.
JURISDICTION
49. You irrevocably acknowledge that despite:
(a) your business/residential location;
(b) the delivery place of the Goods; or
(c) any other geographical indicia,
any transaction entered into between you and Birdwood is entered into under the laws of Queensland.
50. Any dispute that is not resolved in accordance with the process outlined in clauses 41 to 46 must be resolved in a court of competent jurisdiction in Queensland.
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