Conditions of Use Show more
CONDITIONS OF USE OF EMERALD GRAIN MATE
IMPORTANT: Please read these Conditions of Use carefully.
Welcome to the Emerald Grain Mate website (Grain Mate or Website). In these Conditions of Use a reference to:
Agent means any person that the Grower has appointed to act as Agent or that the Grower has represented to Emerald by words or conduct to be the Grower’s Agent; or that the Grower has armed or clothed with the indicia of an agent.
Grower Representative means an Agent, including a consultant or grower broker, or wholesale broker (being a Broker under the GTA Trade Rules) authorised by a Grower to access that Grower’s information and perform transactions on behalf of the Grower.
Authorised Party means any employee of a Grower Representative who is authorised in accordance with Emerald’s Authority to Act processes to access and use this Website and act on behalf of, and/or receive information about a Grower.
Emerald is a reference to Emerald Grain Pty Ltd (ACN 109 203 054) (Emerald, Us, We) and its related bodies corporate from time to time.
Grower means a grower or seller of grain who has entered into or will be subject to Emerald’s Cash Contract General Terms and Conditions.
You and Your means you in your capacity as a Grower, Grower Representative or an Authorised Party, as the case may be.
1. Access to Website
The Grower has access to and is able to use the Website once the Grower registers in accordance with Grain Mate’s registration process.
Emerald also allows access to and use of the Website by:
- a Grower Representative;
- where the Grower Representative is a company, partnership or other incorporation or unincorporated entity, by an Authorised Party of that Grower Representative,
provided that any individual must be 18 years of age or older.
If the Grower wishes to nominate a Grower Representative to access and use the Website on the Grower’s behalf, the Grower must first arrange for the Authority to Act form to be completed by the Grower Representative and submitted in accordance with Emerald’s Authority to Act processes.
If the Grower Representative wishes to nominate an Authorised Party to access and use the Website on its behalf, the Grower Representative must then arrange for a Notice of Authorised Parties to be completed and submitted.
The forms are available here https://emeraldgrain.com/contract-terms-conditions/.
Once the Authority to Act is submitted, Emerald will then update Your account to record the Authority to Act instructions and grant access to Your account to that Grower Representative.
If You require assistance with any part of the process, please contact the Grower Services team on 1300 880 432.
2. Acceptance of Website Conditions
By signing into the Website You agree and acknowledge that:
- You have unencumbered title to the relevant parcel of commodity in relation to any online contract submitted by You or on Your behalf;
- You consent to information that You have provided to us concerning a transfer of Commodity to be disclosed to Your nominated third party purchaser for that transfer;
- You will be bound by these Conditions of Use each time You sign into this Website or return at a later date;
- You will be bound by the Cash Contract General Terms and Conditions in relation to any online contract submitted by You or on Your behalf;
- if You have appointed a Grower Representative in accordance with section 1 above, the Grower Representative and any Authorised Party is authorised to act on Your behalf and has the authority to access Your information on Grain Mate and to perform and execute transactions on Your behalf and there has been no condition, restriction, limitation or exclusion that has been placed on the appointment;
- You will be bound by all actions on the Website conducted by You;
- You will be bound by all actions on the Website conducted by the Grower Representative and its Authorised Party.
If You do not accept these terms and conditions, You must refrain, and procure any Grower Representative or Authorised Party to refrain, from using the Website.
By signing into the Website You agree and acknowledge that:
- You will be bound by these Conditions of Use each time You sign into this Website or return at a later date;
- You are authorised to act on behalf of the Grower and the Authorised Party is authorised to act on Your behalf and has the authority to access the Grower’s information on Grain Mate and to perform and execute transactions on Your behalf including selling grain and conducting title transfers of the commodity and there has been no condition, restriction, limitation or exclusion that has been placed on the appointment;
- You will be bound by all actions on the Website conducted by You or Your Authorised Representative; and
- You are responsible for and will procure that Your Authorised Party understands and complies with these terms and conditions.
If You do not accept these terms and conditions, You must refrain, and procure any Grower Representative or Authorised Party to refrain, from using the Website.
By signing into the Website as an Authorised Party, You agree and acknowledge that:
- the Grower and the Grower Representative has appointed You and authorised You to act as their Authorised Party;
- You will be bound by these terms and conditions and all actions on the Website conducted by You; and
- You will use all reasonable endeavours to ensure that the Grower Representative for which You are an Authorised Party complies with these terms and conditions.
If You do not accept these terms and conditions, You must refrain from using the Website.
If You are a Grower, as a registered user of the Website, You establish an account (Account).
You agree to provide accurate and complete information when You register with, and as You use this Website (Account Information), and You agree to update Your Account Information to keep it accurate and complete.
If You are a Grower Representative or an Authorised Party You agree to provide accurate and complete information upon registration as a Grower Representative or an Authorised Party and at all times during the use of the Website.
It is Your responsibility to and You must inform Emerald immediately of any new Grower Representative or any change in details or address by completing the Authority to Act form and selecting “Add / Revoke Authority to ActYou are solely responsible for maintaining the confidentiality and security of Your Account or Your Grower’s Account and for all activities that occur on or through Your Account or Your Grower’s Account, and You agree to immediately notify Emerald of any security breach of Your Account or Your Grower’s Account.
Emerald shall not be responsible for any losses arising out of the unauthorised use of Your Account or Your Grower’s Account.
In consideration for You agreeing to these terms and conditions, we agree to provide You with certain non-exclusive rights to access and use this Website in accordance with the level of authority designated to You including to:
- view and access material contained on the Website;
- update information or conduct business transactions such as contracts and title transfers; and
- otherwise use the Website in accordance with these terms and conditions
In order to use this Website, You will need internet access, devices and systems which are compatible with this Website. It is Your responsibility to ensure that You meet the relevant requirements (which may change from time to time).
Emerald has no obligation to make this Website available on any particular device or system, whether or not such device or system can currently, or has in the past been able to, access this Website.
5. Cash Contract General Terms and Conditions
The sale of commodity to Emerald is governed by Emerald’s Cash Contract General Terms and Conditions.
For the Cash Contract General Terms and Conditions visit www.emeraldgrain.com or click here https://emeraldgrain.com/contract-terms-conditions/. https://emeraldgrain.com/contract-terms-conditions/.
Each time an online contract is submitted You will be bound by the Cash Contract General Terms and Conditions. Each online contract that is submitted will be a separate contract between the Grower or Grower Representative and Emerald for the commodity purchase.
Please read the Cash Contract Terms and Conditions carefully before submitting any online contracts as they contain important details about terms and conditions for the commodity purchase including shipment and payment terms.
6. Electronic Contracting and Communications
Your use of the Website includes the ability to enter into contracts and/or to make transactions electronically. You acknowledge that Your electronic submissions constitute Your agreement and intention to be bound by such agreement and transactions. Your agreement and intention to be bound by electronic submissions applies to all records relating to all transactions You enter into on this site, including but not limited to contracts, transfers, orders and applications.
When You use the Website or send e-mails, text messages, and other communications from Your desktop or mobile device to Emerald, You are communicating with Emerald electronically. You consent to receive communications from Emerald electronically. We will communicate with You in a variety of ways, such as by e-mail, text, in-app push notices, or by posting notices and messages on this Website. You agree that all agreements, notices, disclosures, and other communications that Emerald provides to You electronically satisfy any legal requirement that such communications be in writing.
Emerald may suspend or restrict Your access to the Website with or without notice for any reason in its sole and absolute discretion. Should Emerald exercise its right to terminate Your access to the Website, it does so without any liability to You.
You can terminate Your Grower Representative access to the Website by completing the Authority to Act form and selecting “Revoke Authority to Act”.
You can terminate Your Authorised Party access to the Website by completing the Notice of Authorised Parties form and selecting “Revoke”.
8. Procedure for Notification of Website Issues
If You find content on this Website which You think there is an error in the information submitted to the Website or there has been a breach of these Conditions of Use, please notify Emerald via email at firstname.lastname@example.org. In the email please specify the following information:
- Your name;
- Your phone number;
- Your email address; and
- a description of the item or items that You believe is in error is in breach of or these Conditions of Use, and the reasons for this.
Emerald will respond to Your email within 7 days of receiving Your email. If further investigation is required, we will notify You and may request further information from You which You agree to provide in order to assist Emerald to undertake its investigation. Emerald will then investigate the matter and will within 30 days advise You in writing of the outcome of our investigation.
You must take Your own precautions to ensure that the process which You employ for accessing this Website does not expose You to the risk of viruses, malicious computer code or other forms of interference which may damage Your computer system or those of other parties. Except to the extent otherwise required by law, Emerald will not be liable to You, or any other person, for any losses, liabilities, damages, costs, charges or inconvenience incurred, paid or suffered as a result of viruses, malicious computer code or other forms of interference, or damage to Your computer system or those of any person which arise in connection with Your use of this Website.
9. Intellectual Property
Third Party Software
Grain Mate uses third party software. You agree that You use any third party software at Your own risk. The third party software will be subject to the licensing terms imposed by the owner of the software.
To the full extent permitted by law, Emerald excludes all liability in relation to using or downloading the software (third party or otherwise) that may be accessed from the Website. Emerald excludes all liability for any damage (including, without limitation, loss of data, interruption to business, loss of profits and any diminution in value) resulting from viruses or any other consequence of using or downloading the Grain Mate Platform or any other software (third party or otherwise) accessible via the Website.
This Website and its contents are subject to copyright. The copyright is owned by Emerald, or in the case of some material, third parties.
You may view this Website and its contents using Your web browser and electronically copy and print hard copies of parts of this Website and its contents including these Conditions of Use, the Cash Contract General Terms and Conditions, contract confirmation notes, payment advices and in some instances reports relating to stock holding, accumulated charges and other functionalities, to manage Your account.
Except as permitted under the Copyright Act 1968 (Cth) or similar statutes that apply in Your location, any other use (including any adaptation, reproduction, broadcast, decompiling, disassembling, downloading, copying, storage, distribution, transmission, printing, display, publication or creation of derivative works) of any part of this Website is prohibited.
Nothing contained in this Website shall be construed as granting any licence or right to use any trade mark displayed on this Website.
Third Party Websites
This Website may contain links to third party websites. Those links are provided for convenience only and may not remain current or be maintained. Emerald is not responsible for the content or privacy practices associated with linked websites. It is Your responsibility to read and understand the terms and conditions applicable to any such websites. Emerald will not be liable to You, or any other person, for any loss, damage, cost, expense, liability or inconvenience incurred, paid or suffered as a result of Your use of such websites.
You agree that Emerald may store and use Account Information for:
- establishing production trends;
- establishing growers’ marketing intentions;
- improving customer service;
- distributing grain market information;
- distributing pricing information;
- distributing advertising for any products, promotions, events or service offerings;
- payment history; and
- contract history.
No right under these Terms and Conditions shall be deemed to be waived except by notice in writing from Emerald to You.
If any provision of these Conditions of Use is deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable from the other provisions of these Conditions of Use and shall not affect the validity and enforceability of any other provision of these Conditions of Use.
These Conditions of Use are governed by the laws of Victoria, Australia. Any disputes arising in connection with these Conditions of Use are subject to the exclusive jurisdiction of the courts of Victoria, Australia. Emerald makes no representation or warranty that the content of this Website complies with the laws of any country outside Australia. If You access this site from outside Australia, You do so at Your own risk and are responsible for complying with the laws in the place where You access this Website.
Emerald reserves the right to, at any time:
- amend, update, change or remove any part of this Website;
- amend, update, change these Conditions of Use and the Cash Contract General Terms and Conditions;
- stop or suspend the operation of this Website.
You acknowledge and agree that:
- this Website and its contents are provided to You on an "as is" basis; and
- information on this Website may contain typographical errors, technical inaccuracies or other errors and may not be complete or current.
Except to the extent required by law, Emerald:
- makes no representations or warranties of any kind as to the operation or availability of this Website or the information, content or materials included on this Website, and all implied representations or warranties in relation to the operation or availability of this Website or the information, content or materials included on this Website are excluded; and
- is not liable for any loss suffered by You in connection with the unavailability of this Website and/or the use of this Website or any linked Website, including any indirect, consequential or special damages and any loss or revenue, loss of profits, loss of goodwill, loss of business opportunity, loss of reputation, business interruption or loss of data or information.
Cash Contract General T&Cs Show more
2020/2021 CASH CONTRACT GENERAL TERMS AND CONDITIONS
Emerald Grain Pty Ltd (ABN 82 109 203 054) (Us or We or Our) acts as agent on behalf of Emerald Grain Australia Pty Ltd as trustee of the Emerald Grain Trust ABN 46 861 707 683 (Purchaser) and where relevant references to Purchaser include references to Us.
Please read these terms and conditions carefully. These terms and conditions will apply in relation to the sale of the Commodity between you (as the Seller) and the Purchaser. We recommend that you print a copy of these terms and conditions for future reference.
TERMS: The terms and conditions for the cash purchase of Commodity by the Purchaser (whether the delivery is spot or forward and/or the price fixed or ascertained in the future) are comprised of the following documents and in the event of inconsistency must be interpreted in the following descending order of priority:
- the terms evidenced by Our Contract Confirmation, (where issued);
- the product description set out in our Product Sheet for the relevant cash product and Commodity;
- these General Terms and Conditions current at the date of the contract; and
- the Trade Rules of Grain Trade Australia Limited, (“GTA”) and GTA’s Dispute Resolution Rules in force at the date of the Contract (for a copy see www.graintrade.org.au). Together these documents evidence the terms of the contract between us (the “Contract”).
- COMPETING TERMS: The Purchaser does not accept and to the extent permissible at law will not be bound by any other terms, express or implied, that purport to govern the purchase of Commodity by the Purchaser from the Seller, whether brought to the attention of the Purchaser before or after an agreement to purchase, unless expressly agreed to by the Purchaser and evidenced in the Contract Confirmation.
FORMATION OF AGREEMENT: Agreements for future deliveries of Commodity are usually made verbally, between Us and the Seller, or, if applicable, Us and a Broker. The Seller and the Purchaser are bound from the time this verbal agreement is made and the verbal agreement constitutes a legally binding agreement and incorporates the terms of this Contract
- If a verbal agreement is reached between Us and a Broker, the Broker’s confirmation of trade once received by Us will constitute prima facie evidence of the verbal agreement.
- Following verbal agreement, or upon receipt of the Broker’s confirmation, if applicable, We will then provide the Seller with Our Contract Confirmation.
- Upon receipt of a Contract Confirmation, the Seller must carefully check all terms and specifications and, if the Seller finds any discrepancies, the Seller must immediately notify Us of the discrepancies by e-mail or by facsimile within two (2) business days of receipt. If so, We will investigate the discrepancy. If not, the Seller will be taken to have agreed that the Contact Confirmation is an accurate record of the terms of the Contract.
- In the case of:
(i) spot contracts, the agreement for sale will be entered into at the time when the Commodity is delivered by the Seller to the Purchaser for sale at the spot cash price, in which case evidence of agreement will be the weighbridge ticket; or
(ii) in the case of an in-store transfer to the Purchaser, the agreement for sale will be entered into at the time when transfer to the Purchaser is completed in the bulk store system, and the transfer receipt subsequently provided to the Seller will be evidence of the agreement,
and the Seller will be taken to be aware of and have agreed to be bound by the terms of the Contract. The applicable price to any spot contract or in-store transfer is the Emerald spot cash price set at the revelant Participating Emerald Grain Site at the time that the agreement for the Commodity is entered into in accordance with either (i) or (ii) above.
- ONLINE CONTRACTING: In the case where the Seller uses Emerald Grain Mate for the cash sale of Commodity then the Seller agrees to be bound by these terms and conditions each time the Seller submits an online Contract. Each online Contract the Seller places will be a separate contract between the Seller and Purchaser for the purchase of the Commodity.
- TIME: Time is of the essence in relation to the performance of the Contract, except in relation to the payment of money.
- HVNL: The Seller will, and ensure that its agents, contractors, subcontractors and any other party in the supply chain who owes obligations under the Heavy Vehicle National Law (HVNL), complies with the HVNL in force at the relevant time, including in relation to driver speed, fatigue and mass management. Emerald is a party to the Victorian Grain Harvest Management Scheme and the NSW Grain Harvest Management Scheme. The Seller agrees that any breaches by the Seller or its agents of the Heavy Vehicle National Law in connection with any of the Purchaser’s facilities may be recorded by Emerald and may be reported to the relevant state or national regulator at Emerald’s sole discretion.
- QUANTITY: Unless otherwise stated in the contract confirmation, all quantities shall be expressed metrically and to the nearest one/one-hundredth [1/100] of a metric tonne.
- QUANTITY TOLERANCE: Unless specifically agreed and recorded in the Contract Confirmation, the quantity required to be delivered under the Contract is the minimum and the maximum; there is zero tolerance.
- WEIGHTS: Unless specifically agreed and recorded in the Contract Confirmation, destination weights, which shall be determined by qualified personnel, shall be the basis of trade. If these are not available, government or registered weighbridge weights shall be accepted. Errors in weighbridge tickets in all cases shall be excepted.
- QUALITY GRADES: Unless specifically agreed otherwise, destination quality grades shall be assessed on the basis of trade and shall be determined by qualified personnel according to sampling, analysis and assessment procedures of the destination bulk store if applicable, or for any other destination, based on GTA procedures and standards. will be based on binned grade.
- VARIETY: The Seller warrants that all Commodity Variety information provided to Us (whether at time of contracting or delivery) is true and correct and able to be proven through the provision of appropriate records, if requested by Us. The Seller is responsible for any loss caused as a result of the Commodity not being the declared Variety and indemnifies the Purchaser for loss it suffers due to the Commodity not being the declared Variety. The Seller consents to the release by the Purchaser of the Seller's varietal information to owners and managers of the variety, or their agents.
- STANDARDS: In respect to Canola, standards applicable to the Contract are in accordance with AOF technical and trading standards & terms which shall apply at the time of title transfer(s) and the Seller declares that the Commodity sold is of the declared variety/varieties, and as such, is not known to contain any unapproved genetically modified material nor any approved genetically modified material in excess of the allowed adventitious presence of approved events as per state or federal legislation.
- CHEMICAL AND PESTICIDES RESIDUES: The Seller warrants that the Commodity complies with all State and Federal Laws and requirements relating to chemical and pesticide residues, pickling compounds and specified government designated maximum residue levels. The Seller is responsible for any loss caused as a result of pesticide levels exceeding maximum residue levels and indemnifies the Purchaser for loss it suffers due to maximum residue levels being exceeded.
- If the Contract Commodity is designated to be Pesticide Residue Free the Seller warrants that the Commodity is Pesticide Residue Free. The Seller is responsible for any loss caused as a result of the Commodity not being Pesticide Residue Free at the time of delivery and indemnifies the Purchaser for loss it suffers due to the Commodity not being Pesticide Residue Free. We reserve the right to conduct sampling and testing of the Commodity to determine whether the Commodity is Pesticide Residue Free and such sampling and testing will be binding on the Seller.
- FORWARD CONTRACTING: Emerald cannot guarantee that the contracted Delivery Point will have the available segregation for the contracted Grade of Commodity and that the Commodity will therefore be able to be delivered into that site. In the case where the contracted Delivery Point does not have the available segregation, We will advise the Seller (with reasonable notice) prior to the Delivery Period an alternative Delivery Point that has the available segregation for the Grade of Commodity which shall be the nearest geographical site that accepts that Grade. The Seller agrees that it will deliver the contracted Grade of Commodity to the nearest geographical site that accepts that Grade. The Seller’s price will be adjusted for the difference in GTA freight differential at the new site.
- to conduct sampling and testing of the Commodity to determine whether the Commodity is Pesticide Residue Free and such sampling testing will be binding on the Seller.
- DELIVERY, RISK AND TITLE: Unless the Contract Confirmation provides otherwise, and subject to meeting minimum requirements of the Contract, delivery and therefore the transfer to the Purchaser of risk of physical loss and title to the Commodity occurs when:
- Delivery Bulk Store - the Seller has presented Commodity to a bulk handler engaged by the Purchaser and has signed a weigh note nominating the Purchaser as the acquirer; or
- Delivery In-Store - the bulk handler signs or otherwise authorises on the Seller’s behalf a title transfer in-store to the Purchaser;
- SELLER'S RISK: The Seller acknowledges that it enters onto the land of any Delivery Point listed on the Contract Confirmation at its own risk. To the extent permitted by law:
- The Purchaser and Us will not be liable for any property loss or personal injury the Seller or its agents, subcontractors or employees suffers while at a Delivery Point; and
- The Seller indemnifies Us and the Purchaser for any loss the Seller suffers under clause (a).
- RETENTION OF TITLE: If indicated on the Contract Confirmation, property or title in the Commodity remains with the Seller until all amounts payable under this Contract have been received in cleared funds in specified bank account. Where retention of title is applicable (as indicated in the Contract Confirmation), in the period after delivery but before passing of property, the Purchaser (including servants and agents) hold the Commodity as bailees only. If in the ordinary course of Our business, the Purchaser on-sell the Commodity prior to passing of title, the Purchaser sells as the Seller’s agent. Any associated costs are for the Purchaser’s account. This clause creates a Purchase Money Security Interest for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). Where permitted by the PPSA, the parties contract out of the provisions listed in sub-clauses 115(1)(a)-(r) of the PPSA. The parties agree and undertake (including for the purposes of section 275(6) of the PPSA) that the terms of this contract shall be kept confidential to the parties at all times. Neither party may disclose any information pertaining to this contract except as otherwise required by law.
- LIENS: The Seller agrees to sell the Commodity free of all liens and encumbrances, or must notify the Purchaser of any liens or encumbrances prior to contracting or spot delivery, as the case may be.
and for other designated points of conveyance (as per our Contract Confirmation) in accordance with the GTA Trade Rules. It is the responsibility of the Seller to arrange delivery in accordance with the Contract, including initiating in-store (warehouse) transfers if required.
- ADVANCES: The Seller agrees that if the Seller has received an advance of payment ahead of fixing a price for the purchase of a quantity of Commodity, the Seller must on demand refund to the Purchaser any shortfall to the extent that the price fixed for the quantity is less than the advance, unless the Purchaser has expressly agreed to underwrite the shortfall.
PAYMENT TERMS: Purchaser will make payment to the Seller on terms indicated in the Contract Confirmation. Where the Seller delivers into a Participating Emerald Grain Site, the Seller may be eligible for Fast Pay payment terms, being payment to Seller within two business days from the date of Transfer of the grain. The Purchaser’s ability to process Fast Pay is conditional on correct delivery by the Seller against the Contract or against the advertised spot cash price and the availability of the Participating Emerald Grain Site. Purchaser reserves its rights, and in its absolute discretion, may revert to standard payment terms or decline to process the Fast Pay payment at any time for any reason including without limitation:
- tickets not matching the Contract;
- wrong delivery against the Contract;
- delays in delivery information from third parties; and
- unavailability of the Participating Emerald Grain Site.
The term “Transfer” when used in relation to Fast Pay means either the Seller:
- entering into a pre harvest contract with Us for delivery into a Participating Emerald Grain Site and fulfilling the Seller’s obligations under the pre harvest contract; or
- selling Commodity to Us for a spot cash price at a Participating Emerald Grain Site; or
- transferring current or previous season Commodity from the “Warehouse” option at a Participating Emerald Grain Site to Us for a spot cash price.
- PRICE SETTING: Where, under the terms of a Product Sheet, the Purchaser is required to set or provide a purchase price in the future on a particular date or time in the future or over a particular period, a certificate of the Purchaser setting out such price will be deemed to be final and conclusive of its correctness, in the absence of manifest error.
- LEVIES AND STATUTORY CHARGES: Any industry, statutory or government levies which are not included in the price shall be deducted as required by law, which may also include liabilities for End Point Royalties (EPRs) and/or Plant Breeders Rights (PBR).
- SET-OFF AND ENCUMBRANCES: The Purchaser may set-off against any payments due to the Seller any amounts owing to the Purchaser or its Related Bodies Corporate by the Seller on any account whatsoever. The Purchaser may deduct amounts required to satisfy liens and encumbrances granted by the Seller over the Commodity it has delivered under the Contract, together with the Purchaser’s standard administration fees.
- DEFAULT: Failure to deliver the Commodity in accordance with the Contract is a default by the Seller. If the Seller is in default and after the Purchaser has given written notice to the Seller of such default, the Purchaser may recover damages from the Seller as a result of failure to deliver in accordance with the Contract based on the true replacement cost on the day the Seller or merchant contacts the trader for a washout. If the Seller suffers an Insolvency Event, the Seller shall be deemed to be in Default.
- INDEMNITY: The Seller indemnifies Us and the Purchaser against any claim by any person claiming an interest in any Commodity delivered by the Seller or the proceeds of sale of such Commodity, and against all costs or expenses incurred by the Purchaser in enforcing the Contract. The Seller authorises the Purchaser to pay out of the Seller's proceeds any liens or encumbrances in respect of the Commodity notified to Us or the Purchaser and the Seller also authorises the Purchaser to deduct its reasonable administration fees associated with doing so. The Seller indemnifies Us and the Purchaser against all losses arising directly or indirectly from or in connection with any non-compliance by the Seller and/or its agents of the HVNL or other similar and applicable legislation in force at the relevant time.
WARRANTY: The Seller warrants to Us and the Purchaser that:
- all information provided by the Seller to Us and the Purchaser is true and correct and that the Seller has disclosed to the Us and the Purchaser all information which a reasonable person would consider relevant to the Us and the Purchaser’s decision to enter into a Contract with the Seller;
- the Seller has read and understood all of the terms of the Contract and the Seller has not relied on any statement, representation or warranty in relation to the Contract other that as set out in these T&Cs, Our Contract Confirmation or otherwise as advised by Us and the Purchaser by written notice to the Seller.
EXCLUSION OF LIABILITY:
- The Purchaser excludes all liability for any indirect or consequential loss suffered by the Seller, including loss of bargain and loss of profit, loss of expected savings, loss of opportunity, loss of business, damage to reputation (regardless of whether any of or all of these things are considered to be indirect or consequential losses or damage) whether arising in contract, tort (including negligence) or otherwise at law; and
- The Purchaser’s liability under the Contract will be limited to the contract price of the Commodity under that Contract.
- NOTICES: All notices given under the Contract shall be given by written letter delivered by hand on the day of writing, or by facsimile, or by email (and no email failure notice is received by the sender), or by other method of rapid written communication to the last address the Seller has notified to Us. Any notices received after 1700 hours local time on a business day shall be deemed to have been received on the business day following. A notice to a party’s Agent shall be deemed a notice to the party. In case of resales, all notices shall be passed on without delay. A notice to Us shall be deemed a notice to the Purchaser.
- FORCE MAJEURE: The loss of a commodity due to production risks or crop failure does not constitute a condition of Force Majeure. The failure of the Seller to deliver Commodity, due to the unavailability of nearby bulk storage or the relevant segregation at a nearby bulk store, is not a condition of Force Majeure.
- DISPUTE RESOLUTION: If any dispute arises out of or relates to this Contract or the breach, termination or subject matter thereof, the dispute shall be submitted to and settled in accordance with GTA Dispute Resolution Rules in the edition current at the date of the Contract. Neither party to a dispute, nor any persons claiming under either of them, shall bring any action or other legal proceedings against the other in respect to any such dispute until dealt with in accordance with GTA Dispute Resolution Rules.
- APPLICABLE LAW: This Contract and the GTA Trade Rules are governed by and shall be construed to be in accordance with the law in Victoria, save that in the event of a dispute the governing law specified by the GTA Dispute Resolution Rules are inconsistent the GTA Governing Law shall prevail.
- TAX: The Purchaser and the Seller declare that this agreement applies to supplies under the contract: the Purchaser can issue Recipient Created Tax Invoices (RCTI) in respect of the supplies. The Seller will not issue tax invoices in respect of the supplies. Both parties acknowledge that they are registered for GST and are parties to an RCTI agreement. They will notify the other party if they cease to be registered. Acceptance of this contract constitutes acceptance of the terms of this RCTI agreement. The Seller agrees to notify Us if it does not wish to accept the proposed RCTI agreement within 21 days of receiving this document.
- WAIVER: If the Purchaser elects not to exercise any of its rights arising from a breach of the Contract, it shall not constitute a waiver of any rights relating to any other or subsequent breaches that may occur.
- INTERPRETATION: In this Contract, headings are inserted for convenience only and do not affect the interpretation of this Agreement, and no provision of this Agreement will be interpreted against a party just because that party prepared that provision.
- SEVERABILITY: If any provision of this Agreement is: void; voidable by a party; unenforceable; or illegal, it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from this Contract without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of this Contract.
“Agent” means any person that:
- the Seller has appointed to act as agent for the Seller;
- the Seller has represented to Us or the Purchaser by words or conduct to be the Seller’s agent; or
- the Seller has armed or clothed with the indicia of an agent (for example by giving the agent electronic passwords or bulk store delivery cards).
“Broker” has the strict meaning given to that term in the GTA Trade Rules and does not include any person acting as the Agent of the Seller, even though such Agent calls or represents itself to be a broker.
“Commodity” means wheat, barley, canola, sorghum, oilseed or any other commodity that is the subject of a Contract and the Purchaser may acquire from time to time.
"Insolvency Event" means when a party is unable to pay its debts as they fall due or is or states that it is insolvent or is treated as insolvent by any applicable legislation; or a receiver, receiver manager, administrator or liquidator is appointed over any or all of the assets or undertaking of the party; or the party takes any step to obtain protection or is granted protection from its creditors under any applicable legislation.
“Participating Emerald Grain Sites” means the Purchaser’s sites where Fast Pay is available and that are located in New South Wales at Goolgowi, Ardlethan, Coolamon, Tocumwal and The Rock, or in Victoria at Nullawil, Woorinen, Melbourne Port Terminal and Elmore as amended from time to time.
"Pesticide Residue Free" the Commodity is free of any detectable chemical residues from treatments that are applied directly to the grain as grain protectants for storage purposes.
“Force Majeure” has the meaning given to that term in the GTA Trade Rules.
“Related Bodies Corporate” has the meaning given to that term by the Corporations Act 2001 (Cth).
“Seller” in these General Terms and Conditions includes the Seller’s business partners, subcontractors and any company, trust or association on whose behalf the Seller is purporting to act. The Seller acknowledges that the Seller is to be bound by the acts of its Agent, whether the Agent is acting within or outside authority, except to the extent that Us or the Purchaser are actually aware of any lack of authority.
“Variety” means the variety of the seed of the Commodity set out in the Contract.
- The interpretation of these General Terms and Conditions must not be construed against the Purchaser simply because the Purchaser drafted them.
- Headings are for convenience and are not intended to affect interpretation.