PARTIES
These Member Terms and Conditions (Terms) are agreed between:
- The Member named in Item 1 of the Schedule (Member or you or yours);
- Every other Member who from time to time agrees to the Terms (Member or you or yours); and
- The Farm Trader Pty Ltd (ACN 142 666 831) trading as Farm Tender, of 107-117 Railway Place, Elmore Victoria 3558 (Farm Tender or we, us or ours) -
INTRODUCTION
You may buy Products from, or sell Products to, another Member from time to time. These Terms set out your rights and obligations in your role as seller (Seller) when you sell Products and in your role as buyer (Buyer) when you buy Products. It also sets out our rights and obligations in providing services to the Seller and, if applicable, as the Escrow Agent of the Buyer and the Seller.
The Terms have the effect of a contract:
- between us and each Member; and
- between each Member and each other Member.
1 AGREEMENT
1.1 The Seller will supply, and the Buyer will purchase, Products from time to time.
1.2 Farm Tender will provide the following services to the Seller:
(a) Advertising.
(b) Issuing invoices to the Buyer in the Seller’s name, on behalf of the Seller.
(c) Receiving payments from the Buyer on behalf of the Seller and disbursing those payments to the Seller after deducting its fees.
1.3 Farm Tender does not provide any guarantee to the Seller that the Seller will be paid by the Buyer.
1.4 Farm Tender is not liable to the Buyer in any way in respect of the Buyer’s purchase of Products from the Seller.
1.5 Farm Tender may act as the Escrow Agent of both the Buyer and Seller in connection with handling the purchase price for the Products. The terms of that arrangement are set out in clause 9.
2 APPLICATION OF TERMS
2.1 Each supply of Products by the Seller to the Buyer will be on the terms set out in these Terms and in the Sale Contract relating to the Products being supplied.
2.2 Unless Farm Tender, the Seller and the Buyer expressly agree in writing, these Terms override all terms proposed by the Seller or the Buyer for the sale of Products. For example, any terms set out on any terms of trade or other document issued by the Seller or the Buyer are overridden by these Terms.
2.3 If we agree in writing with the Seller and the Buyer that any other agreement exists between the Seller, the Buyer and us (Other Agreement) but we do not expressly agree that the Other Agreement overrides these Terms, these Terms will prevail over the Other Agreement to the extent of any inconsistency.
2.4 If there is any inconsistency between these Terms and a Sale Contract, these Terms will prevail to the extent of that inconsistency.
3 PRICE AND COMMISSION
3.1 The price payable by the Buyer to the Seller for Products will be the price set out on the Sale Contract in relation to those Products.
3.2 The Price excludes GST but includes all other taxes or duties levied or assess in connection with the supply of the Product, unless otherwise expressly stated in a Sale Contract.
3.3 The fees that Farm Tender charges a Seller are as set out on Farm Tender’s website from time to time. Those fees are subject to change.
3.4 Farm Tender generally charges fees to the Seller only, not the Buyer. However, the Buyer and the Seller both acknowledge and agree that if Farm Tender receives a fee from the Buyer for any services that Farm Tender may provide to the Buyer, they both consent to Farm Tender providing services to both of them, even though a conflict may arise.
4 INVOICING AND PAYMENT
4.1 Requirement to submit information for invoice: The Seller and Buyer must both submit to us complete, up-to-date and accurate information (including their GST status and Australian Business Number) so that we may generate Invoices – naming the Seller as supplier – and issue those Invoices to the Buyer on behalf of the Seller.
4.2 Payment: The Buyer must pay the Price for the Product supplied in accordance with the payment terms specified in the Sale Contract.
4.3 Deductions: We may deduct or withhold from any amount that we hold for the Seller (whether in relation to a Sale Contract or otherwise) any amount payable by the Seller to us, or any amount claimed by us from the Seller, under or in connection with these Terms or any other agreement or arrangement.
Levies: Livestock that are produced in Australia and are sold or transferred between production and processing stages, or that are delivered for export by a producer, will be subject to the livestock transaction levy in accordance to the Primary Industries (Excise) Levies Act 1999;. Furthermore, where a vendor is selling livestock on their own behalf, they must pay the livestock duty via a statement directly to the State Reveune Office. If livestock is sold through an approved agent, the approved agent pays the livestock duty to the State Revenue Office but may pass on or recover the cost.
5 SALE CONTRACT
Any purchase of Products by the Buyer from the Seller will be documented in a Sale Contract.
6 DELIVERY
6.1 Delivery to Buyer’s Site: If a Sale Contract provides that the Delivery Point is the Buyer’s address, the Seller must deliver, or arrange delivery of the Product, to the Buyer’s address, and pay any associated transportation costs.
6.2 Delivery at Seller’s Site: If a Sale Contract provides that the Delivery Point is the Seller’s address, delivery shall take place at the time when the Product is removed by the Buyer from the Seller’s address.
6.3 Unloading: Where delivery is to the Buyer’s address in accordance with a Sale Contract, it is the Seller’s responsibility to immediately unload the Product, or to arrange for a suitable means of unloading of the Product, from the relevant delivery vehicle at the Seller’s cost.
7 RISK AND OWNERSHIP
7.1 Risk: The Buyer will bear the risk of loss or damage to any Products after the Seller has delivered (and, if required under clause 6.3, unloaded) those Products to the Delivery Point, except for loss or damage caused by the manufacturing, processing, packaging or quality of any Products or arising out of breach of the Warranties, to which extent the Seller solely will bear the risk of loss or damage to those Products.
7.2 Ownership: Legal and beneficial ownership (ownership) in the Product will remain with the Seller until such time as full payment and buyer (or a representative) has accepted goods, to which then Ownership will pass to the Buyer.
8 SELLER AND BUYER WARRANTIES AND ACKNOWLEDGMENTS
8.1 Seller warranties and acknowledgments: With respect to each of the Products supplied to the Buyer under an Agreement, Seller warrants and acknowledges to the Buyer and to Farm Tender that:
(a) property in the Product, free from all liens, charges, encumbrances or other security interests will vest in the Buyer on delivery of the Product;
(b) the raw materials used to manufacture the Products (if applicable) will be merchantable, of good quality and fit for the purpose intended;
(c) the Product is merchantable, of good quality and fit for the purposes made known by the Buyer or Farm Tender to the Seller (expressly or by implication);
(d) if it is selling farm machinery or equipment, it will provide the Buyer with as much information as is necessary for the Buyer to use that machinery or equipment safely and without creating health risks to anyone exposed to the machinery or equipment, including by providing the Buyer with the manufacturer’s operating manual, all maintenance and service records, all relevant details about known hazards and any and all other information relevant to the safe use of that machinery or equipment); and
(e) any Intellectual Property Rights or other proprietary rights of any other person will not be infringed by the Seller’s supply or the Buyer’s use of the Products.
(f) Livestock Specific: you have examined the Stock have made all reasonable actions that the condition and health is suitable for sale and Stock are as described;
Disease and injury free; the Livestock are free from serious illness, disease, injury or disability and you have employed best farming practice (including taking proper precautions) to ensure that they remain free from serious illness, disease, injury or disability.
National Livestock Identification System Traceability Standards; you are in compliance with The Act.
Compliance with laws; you will maintain any Authorisation which at any time is necessary in connection with the Livestock, including their breeding, pasturing, slaughter or maintenance.
8.2 Buyer warranties and acknowledgments: With respect to each of the Products purchased from the Seller under an Agreement, Buyer warrants and acknowledges to Farm Tender that:
(a) the Buyer will conduct all necessary checks (including Personal Property Securities Register searches) to confirm that the Product is free from all liens, charges, encumbrances or other security interests;
(b) nothing in these Terms will make Farm Tender liable in any way to the Buyer as seller nor entitle the Buyer to set up against Farm Tender any right the Buyer may have against the Seller, under these Terms or otherwise;
(c) without limiting clause 8.2(b), Farm Tender will not be responsible for any breach of warranty by the Seller, gives no warranty as to the Seller’s title to the Products or the Seller’s right to sell the Product, nor is Farm Tender liable in respect of any error, mis-description or omission in any particulars appearing or stated regarding the Products.
(d) Livestock Specific: you have examined the Stock have made all reasonable enquiries in relation to the Stock, including their condition, health and suitability for the purpose of purchase.
National Livestock Identification System Traceability Standards; you are in compliance with The Act.
Compliance with laws; you will maintain any Authorisation which at any time is necessary in connection with the Livestock, including their breeding, pasturing, slaughter or maintenance;
8.3 Product Specifications: Without limiting the effect of any other provision in this clause 8 or otherwise, if any Product Specifications are specified in a Sale Contract, the Seller warrants that all Product supplied under that Sale Contract will comply in all respects with those Product Specifications. No substitute or equivalent product will be supplied without the Buyer’s prior written consent or negotiation between the Buyer and Seller.
8.4 Compliance with law: The Buyer and the Seller must comply with all relevant Laws and the requirements of any regulatory body that relate to the Product or their performance of their obligations under a Sale Contract.
9 ESCROW ARRANGEMENTS
9.1 Appointment under Sale Contract: If the escrow option is selected by the Seller and Buyer when they complete a Sale Contract, they appoint Farm Tender as escrow agent on the terms set out in these Terms. Farm Tender accepts its appointment as escrow agent and agrees to hold and disburse the Escrow Amount in accordance with these Terms.
9.2 Appointment of Representatives: The Seller appoints the Seller’s Representative to give a Payment Direction and take any other actions on its behalf for the purposes of these Terms and acknowledges and agrees that each other party is entitled to treat any notice given or action taken by the Seller’s Representative in relation to these Terms as having been given or taken by the Seller. The Buyer appoints the Buyer’s Representative to give a Payment Direction and take any other actions on its behalf for the purposes of these Terms and acknowledges and agrees that each other party is entitled to treat any notice given or action taken by the Buyer’s Representative in relation to these Terms as having been given or taken by the Buyer.
9.3 Payment of Escrow Amount: The Buyer must pay the Escrow Amount into the Escrow Account. Farm Tender confirms, and the Seller and Buyer accept, that the Escrow Account is maintained by Farm Tender for the purpose of holding the Escrow Amount and other escrow amounts that it may hold for other sellers and buyers.
9.4 Farm Tender’s reliance: Farm Tender is entitled to rely on any notification given by a Seller’s Representative or a Buyer’s Representative or any other notification which Farm Tender in good faith believes to be genuine. Without limiting the foregoing, Farm Tender is entitled to make a payment in accordance with a Payment Direction that appears to Farm Tender, acting reasonably, to have been executed by the Seller’s Representative.
9.5 Veracity of Payment Directions: Without limiting clause 9.4, Farm Tender is not required to conduct any due diligence or investigation into the veracity of any Payment Direction.
9.6 Farm Tender’s responsibilities in relation to Escrow Amount: Farm Tender’s duties and responsibilities in relation to the Escrow Amount are limited to those set out in these Terms. Without limiting the generality of this clause 9.6, Farm Tender:
(a) acts as a depository only and is not responsible or liable for the sufficiency or validity of any funds deposited with it, nor is it required to use or advance its own funds or incur any liability in performance of its duties or the exercise of its rights under these Terms;
(b) is not under any duty to inquire into the terms and provisions of any agreement or instruction other than as set out in these Terms;
(c) in not required to procure that interest is paid on the Escrow Amount or otherwise manage the Escrow Amount; and
(d) will have no further duties or responsibilities under these Terms following payment of the Escrow Amount in accordance with clause 9.4.
9.7 Debits from Escrow Amount: Farm Tender:(a) is entitled to be reimbursed by the Seller for all fees and expenses Farm Tender charges or incurs in connection with these Terms; and
(b) may deduct those fees and expenses from the Escrow Amount.
9.8 Release of Escrow Amount:(a) If and when all or any part of the Escrow Amount is required under a Sale Contract to be paid to the Seller, the Seller agrees that they will promptly give a Payment Direction to Farm Tender directing Farm Tender to make the required payment. If the total amount of the Payment Direction exceeds the Escrow Account Balance, Farm Tender must only pay the Escrow Account Balance in accordance with the Payment Direction.
(b) If a dispute arises between the parties with respect to the escrow arrangements provided for in these Terms, Farm Tender may pay the Escrow Amount into a court of competent jurisdiction and will then be relieved fully from any liability or obligation with respect to that Escrow Amount. The Seller and the Buyer must pursue any legal redress or recourse in connection with any dispute relating to the escrow arrangements contained in these Terms without making Farm Tender a party.
10 LIABILITY AND INDEMNITY
10.1 If you are a consumer (as that term is defined in the Competition and Consumer Act 2010 (Cth) or any similar legislation), nothing in these Terms is intended to exclude, restrict, or modify any statutory obligation on us if it cannot be lawfully effected. Without limiting the generality of this clause 10.1, nothing in these Terms (including in this clause 10) is intended to have the effect of excluding, restricting or modifying:
(a) the application of all or any of the provisions of Part 5-4 of Schedule 2 of the Competition and Consumer Act 2010 (the ACL);
(b) the exercise of a right conferred by such a provision;
(c) any liability we have in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
10.2 To the extent permitted by law, except as expressly set out in these Terms, we exclude all express and implied representations, conditions, warranties and guarantees arising from or in connection with these Terms or their subject matter. This is so whether they are based in statute, regulation, common law or otherwise. If the condition, warranty or guarantee cannot be excluded by law, our liability is limited, at our option, to supplying our services again or paying the cost of the re-supply of those services.
10.3 Subject to non-excludable statutory obligations such as those specified in this clause 10, we will not be responsible for, and we exclude, all liability for loss or damage (including any indirect or consequential loss or damage) that you may suffer by reason of or in connection with your use of our services (or, where you are the Buyer, the Seller’s use of our services) or any act or omission by us. This clause 10.3 does not apply to the extent that our own wilful or negligent acts or omissions causes your loss or damage.
10.4 To the extent permitted by law, you indemnify us fully against any liability, loss or damage suffered or incurred by us, however arising and by whomsoever caused, whether arising directly or indirectly from your use of our services (or, where you are the Buyer, the Seller’s use of our services), including any loss, liability or damage related to or arising out of any erroneous or fraudulent act or omission by you or any act or omission of you in breach of these Terms. This clause 10.4 does not apply to the extent that our own wilful or negligent acts or omissions causes your loss or damage.
11 TERMINATION
11.1 General rights of termination: Without prejudice to any other right or remedy you may have, whether under an agreement, under a statute or otherwise, either the Buyer or Seller may terminate a Sale Contract by written notice to the other party if:
(a) the other party breaches any material obligation of that party under the Sale Contract; and
(i) the breach is not capable of being remedied; or
(ii) the breach is capable of being remedied and the defaulting party fails to remedy the breach to the non-defaulting party’s satisfaction within 14 days after notice in writing has been given to the defaulting party requiring such breach to be remedied; or
(b) an Insolvency Event occurs in respect of the other party.
11.2 Effect of termination: Termination of a Sale Contract under this clause 11 shall:
(a) have the effect of automatically terminating every Sale Contract between the non-defaulting party and the defaulting party referenced in clause 11.1 in existence at the time of termination, unless otherwise specified by the non-defaulting party in the relevant notice; and
(b) not affect any provisions of a Sale Contract which are intended to continue after termination and shall also be without prejudice to any claim by either party against the other party arising out of any breach or non-performance by that party of any obligations assumed by or imposed on that party under a Sale Contract at any time prior to termination.
12 NO ASSIGNMENT
2.1 No assignment: You may not assign or sub-contract any of your rights or obligations under a Sale Contract, except with the prior written consent of Farm Tender and the other party to the Sale Contract. Any change in control of you is taken to be an assignment which requires written consent.
2.2 We may assign: We may assign or novate any of our rights or obligations under these Terms to a Related Body Corporate (or to a third party purchaser of all or any part of our business and assets whom we reasonably believe will be able to honour those rights or obligations, including under a change in control of us), without your consent. You agree to sign any documents and do all things we reasonably ask in relation to an assignment, novation or change of control.
13 GENERAL
13.1 Waiver: No waiver of any breach of, or failure to enforce any provision of, a Sale Contract at any time by a party to it shall in any way limit the non-defaulting party’s right thereafter to enforce and compel strict compliance with the provisions of that Sale Contract or any other Sale Contract.
13.2 Variations: We can at any time and from time vary these Terms prospectively by posting the updated Terms on our website and specifying an effective date of the update that is no earlier than the date on which we post the update. Those updates will not affect your rights and obligations under Sale Contracts you enter into before the effective date of the updates. Your rights and obligations under any Sale Contract will be governed by the Terms as they appear on our website as of the date of that Sale Contract. It is your responsibility to check those Terms before you enter into any Sale Contract.
13.3 Invalidity: If any term of these Terms or a Sale Agreement is, or becomes, unenforceable, illegal or invalid for any reason, the relevant term is to be considered to be modified to the extent necessary to remedy the unenforceability, illegality or invalidity. If this is not possible, the provision is to be severed from the document, without affecting the enforceability, legality or invalidity of any other term of the document.
13.4 Effect as a deed: these Terms are intended to take effect as a deed executed by Farm Tender and each Member. However, if the required formalities for these Terms to take effect as a deed in relation to any particular Member are not satisfied, the Terms will take effect as an agreement in relation to that Member. Each Member acknowledges and agrees that it has received good consideration for the promises it makes in these Terms, including, amongst other things, the reciprocal promises from the other parties to these Terms.
13.5 Governing law and jurisdiction: Each Agreement shall be governed by and construed in accordance with the laws in force in Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.
13.6 Notices:
(a) A notice or demand from us to you can be signed by us, one of our officers, any lawyer acting for us or any person authorised to act on our behalf. It may be served by giving it to you, by sending it to the e-mail address you have nominated in item 2 of the Schedule or any other email address of you, your employee or your officer, in each case last known to us, or by posting it to your registered office or your address specified in item 2 of the Schedule or other address last known to us.
(b) If we send you a notice by email, is to be treated as having been received 24 hours after it was sent, unless we have, in the meantime, received a message indicating that it has not been received.
(c) If we sent you a notice by post it is to be treated as having been received the third Business Day after posting. Anything in connection with legal process (such as court documents) can be served in those ways if the law permits this.
(d) Nothing in this clause 13.6 affects our right to serve in any other way permitted by law.
14 DEFINITIONS AND INTERPRETATION
14.1 Definitions
Business Day means a day (other than Saturday or Sunday) on which registered banks are open for business in Victoria and in the place specified by you as your address for service or notices.
Buyer means you in your role as buyer of Products under these Terms.
Buyer’s Representative, in relation to a Sale Contract, means the individual specified as its representative in that Sale Contract, or such other person whose details are notified to Farm Tender and the Seller in writing by the Buyer. This is the individual who is authorised to act on behalf of the Buyer.
Delivery Point means the place for delivery of the Product(s) specified in a Sale Contract.
Escrow Account, in relation to a Sale Contract, means the bank account details for Farm Tender which are specified in that Sale Contract and noted within the Invoice provided.
scrow Account Balance means, at any time, the total credit balance of the Escrow Account that is attributable to payments by the Buyer under clause 9.3, less any amount that Farm Tender is entitled to retain, whether under these Terms or otherwise.
Escrow Amount, in relation to a Sale Contract, means the amount specified as the escrow amount in that Sale Contract.
GST means goods and services tax payable under the GST Law. All prices quoted are exclusive of any GST.
GST Law has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999.
Insolvency Event, in relation to a party, means that:
(a) the party is insolvent, commit an act of bankruptcy, is unable to pay its debts as and when they fall due; or
(b) an order is made, an application for an order is lodged with a court regarding the party or a meeting is convened for the appointment of an administrator, receiver, manager or a liquidator to the party, other than for the purposes of a solvent reconstruction or amalgamation.
Intellectual Property Rights means all industrial and intellectual property rights of whatever nature throughout the world conferred under statute, common law or equity, whether existing now or at any time in the future, and includes rights in respect of or in connection with copyright, inventions (including patents), formulae, databases, business processes and methods, trade marks, service marks, business names, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial and intellectual property rights, whether or not registered or registrable and includes the right to apply for or renew the registration of such rights.
Law includes any rule of common law, principle of equity, statute, regulation, proclamation, by-law, ordnance, constitutional provision, treaty, decree or convention which applies in any State and Territory in Australia or any other jurisdiction in which you or your employees or agents perform obligations under an Agreement.
Payment Direction means a direction to Farm Tender at any time in the form set out in Schedule 3, or a direction in such other form as Farm Tender may specify from time to time.
Price means the price for the Product specified in a Sale Contract.
Product means the product(s) specified in any Sale Contract and shall include (where relevant) any services to be performed by or on behalf of the Supplier in providing the Product or otherwise in relation to the fulfilment of the Supplier’s obligations under this Agreement.
Product Specifications means any specifications set out in any Sale Contract.
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
Sale Contract means a sale contract between the Seller and Buyer for the purchase of Products, formed on the terms in these Terms and a specific sale contract in the form set out in Schedule 2, or a specific sale contract any other form as Farm Tender may specify from time to time. That sale contract will be signed by a representative of the Seller and a representative of the Buyer.
Seller means you in your role as seller of Products under these Terms.
Seller’s Representative, in relation to a Sale Contract, means the individual specified as its representative in that Sale Contract, or such other person whose details are notified to Farm Tender and the Buyer in writing by the Seller. This is the individual who is authorised to sign a Payment Direction to Farm Tender on behalf of the Seller.
Warranties mean the warranties set out in clause 8.
14.2 Interpretation
GST Law: Words and expressions defined in the GST Law have the same meaning where used in this Agreement.
