Terms and conditions
- What we do: We provide a national digital Livestock marketplace that connects farmers, agents and processors equally. We provide the marketplace for users to connect with each other, but we are not an auctioneer, nor are we a party to any Transaction that takes place. The Transaction takes place solely between a Buyer and a Seller.
- Facilitating Transactions: For Transactions on the marketplace, we facilitate a payment and settlement process between the Buyer and Seller. Payments from Buyers are held in our trust account in line with our Trust Account Policy, and released to Sellers (minus our Fee) in accordance with these terms.
- Market Data: We provide access to livestock market price information. This information does not constitute an offer, or recommendation to acquire or dispose of any Livestock. We produce the information with due care and attention, but we accept no liability in relation to the completeness, accuracy or timeliness of the information provided. We will not be liable for any loss associated with the use of this information, including but not limited to the use of it by Users and General Users.
How to become a User
- General Users: Any person may access and view the Website as a General User, without having to register as a User, but the General User may not create a Listing, buy or sell Livestock through the Website.
- How to register as a User: To use our marketplace you must be a registered User. To be eligible to register as a User, you must be at least 18 years of age, provide complete and accurate User information in the registration process, and accept our terms.
- Business Trading Accounts: Once you are set up as a User, you can set up a Business Trading Account for the business you buy or sell livestock through. To be eligible to set up a Listing, or enter into a Transaction as a Buyer or Seller, a User must set up a Business Trading Account. The business the Business Trading Account is set up on behalf of must be validly incorporated in New Zealand and GST registered in New Zealand. You must provide complete and accurate business details as specified in the registration process. Each User must be authorised to trade on our marketplace on behalf of the business the Business Trading Account is opened for and each individual User accepts that they are jointly and severally liable with that business including but not limited to in respect of any Transaction entered into. All information supplied in respect of the business must be correct. These provisions also apply for any additional Users that are invited to access the Business Trading Account by the Owner of that account.
- Information you provide: You represent that all information you provide to us, including on a Listing is complete and accurate, that any person completing an application has the express authority of the User to contract with us, and the Business Trading Account is being used for business purposes.
- Access to accounts: Your access to the Website and use of your User’s account, a Business Trading Account and the Services is your decision alone. You accept any advice, information or recommendation provided by us to you relating to the Website is given in good faith and based on information provided by you.
- Correctness of information: You must ensure that User and Business Trading Account information is kept up to date, complete and accurate.
Account types: There are three main Business Trading Account types on our marketplace:
- farming businesses, used to buy and sell directly between farm businesses and other Business Trading Accounts;
- agency businesses, used when agents are buying or selling on behalf of their business or their farming clients; and
- meat processors, used for meat processors to be able to procure (and sell if they wish) Livestock on the marketplace.
For agencies and meat processors to be set-up on the Website, supplementary terms apply, and can be obtained by contacting us.
- Permission levels: Users are able to be set-up with different access levels and permissions for a Business Trading Account. All Users are responsible for keeping their information including passwords and Business Trading Account information confidential, and for all activity that occurs within the User’s account and a Business Trading Account, including but not limited to if they disclose their login details to another party. For Business Trading Accounts with multiple Users, the Owner of the Business Trading Account is responsible for all User activity on the account.
Being a User
Using the Website: By using the Website, Users and General Users acknowledge that:
- they have read and accepted these terms;
- there is no right to assign or cancel any obligation under the terms;
- we may at any time, without notice and regardless of whether a Default Event has occurred, refuse to register, suspend access to or cancel any User or Business Trading Account, or remove a Listing, or delete a bid, or take any other steps we consider appropriate to ensure the integrity of the Website for our Users. If we suspend access to or cancel your User or Business Trading Account then you must not attempt to re-register either the User or Business Trading Account.
- Indemnity: each General User and User, on demand, indemnifies (and will keep indemnified) us against all losses of any kind which we may incur or pay in connection with or arising out of action taken against us due to a breach by that User of their obligations pursuant to these Terms.
- These terms: We are entitled to add, change or remove clauses in the terms by posting the relevant updated terms on the Website. Use of the Website after the date the change becomes effective, will be your consent to the changed terms. If you do not agree to the changes, then you must close your account and stop using the Website.
- What we require from you: We are committed to providing a website that is fair and transparent to all parties, and that meets the needs of all Users. To help enable this, all Users of the website are required to comply with our Code of Conduct. All Users must also comply with our Animal Welfare Policy in respect of all Livestock.
- Communications: We may communicate with you via your phone, email or postal address, in addition to information stored on and communicated through the Website itself. You may communicate with us during business hours via the email address and 0508 number displayed on the Website.
- may cancel your User registration or a Business Trading Account at any time and for any reason by giving one months’ prior written notice ( cancellation notice) to us at our address for service shown on the Website. Access to the Website stops immediately from expiry of the cancellation notice;
- must pay any Sum Owing to us as at the expiry of the cancellation notice without any deduction; and
- acknowledge that we may permanently delete your content from our servers after 30 days from expiry of the cancellation notice and have no obligation to return any of your content. User content that is deleted may be irretrievable.
- Amendments: We reserve the right, at any time and in our sole discretion to edit, cancel, suspend or remove any Listing on our Website without any liability to you.
- Using the Website: By using the Website, Users and General Users acknowledge that:
Your General Commitments
Your acknowledgements: You acknowledge that:
- computer and telecommunications systems are not fault-free and occasional periods of downtime occur;
- we do not warrant or guarantee that use of the Website will be uninterrupted, timely, secure, or error-free or that content loss will not occur;
- we are not liable for any disruption or loss that any User may suffer as a result of a Website failure, including loss of Listing content;
- we may in our sole discretion, and without consent from or payment to you, display third-party advertisements (including links and references to such advertisements) and Listings from any other User, on any Website page;
we are not:
- an auctioneer (the Transaction is a contract between the Buyer and Seller using the Website);
- a User or an agent of a User;
- a party to any Listing content or Transaction; or
- responsible for or liable for the actions or omissions of any User,
we do not:
- have any obligations to any User in relation to a Transaction, other than as set out in these terms;
- endorse or guarantee the Livestock; or
- give any representations, warranties or any other assurance about the Livestock, or a Listing,
- we reserve the right to review your content for the purpose of enforcing these terms and we may remove any content on the Website that is (in our sole opinion) inappropriate;
- we may ask you to remove content from the Website if it is in breach of these terms or any applicable laws; and
- if you (directly or indirectly) upload to, store on, transmit through, or use on the Website any content that does not comply with these terms, and we incur cost for any consequential restoration of the Website, then you are solely responsible to pay us for all costs incurred arising from restoration of the Website.
The don’ts for our Users: You must not:
- list for sale, or sell, any of the Livestock listed on the Website, other than through the Website;
- enter into a forward sale contract on the Website, being a contract for the sale and purchase of Livestock whereby the delivery of that Livestock is to be 7 days or more after the date of the Transaction;
- list on the Website any product or service other than the Livestock or anything else as determined by us from time to time;
- bid on your Listing, or bid via multiple or related identities or Related Parties, or take any action with the intention of manipulating prices or the desirability of a Listing;
manipulate any Listing in any way, including but not limited to:
- colluding with any person in relation to a Listing;
- inducing or attempting to induce another person to abstain from making an offer on any Listing;
- agreeing that another party will be able to take over a Transaction as Buyer; or
- doing any other act or thing that might prevent free and open competition in respect of a Listing.
- circumvent or bypass any technological protection measures in or relating to the Website;
- disassemble, decompile, mirror or reverse engineer any software or other aspect of the Website that is included in or accessible through the Website;
- spread any virus, trojan, worm, cookie or other programme;
- separate components of the Website for use with any other website;
- publish, copy, rent, lease, or lend the Website;
- transfer the Website, or any rights regarding the Website, except as expressly permitted by these terms;
- further a crime or any other unlawful activity;
- falsely report that a User has violated one of our policies;
- defame any person; or
- infringe any of our intellectual property.
- Your acknowledgements: You acknowledge that:
Listing and Selling
- Creating a Listing: Once a Listing has been created and is live, there is a contractual commitment between the Seller and a Buyer to complete the Transaction, as long as the ‘Reserve Price’ (or ‘Buy Now’ price) of the Listing is met. Once a Listing is live, the Listing details cannot be altered (other than lowering the reserve price or making changes to the buy now price as detailed below), and the Listing cannot be removed. Sellers must ensure the Listing details are complete and accurate before putting a Listing live. We may, in exceptional circumstances, at our sole discretion, remove or edit Listings.
- Accuracy of Listings: When creating a new Listing, Livestock must be accurately described, including the tally, expected weight on delivery and description of the Livestock. No information that might affect whether or not a reasonable Buyer would purchase the Livestock, or how much they would pay, should be left out of any listing. Any pictures of the Livestock that are provided in a Listing must give a fair representation of the Livestock being sold through that Listing, they must depict the Livestock in the Listing and give a fair and true representation of the condition of the Livestock. The Seller, at the Seller’s cost, will maintain the Livestock in an equal or better condition as represented at the time of the Transaction until delivery.
- Female Livestock: on the sale of female Livestock described in the Listing as having been served, mated or running with a bull or ram, there is no express or implied warranty that the animal has actually conceived and the Buyer may not reject the animal on the basis that it has not actually conceived or has aborted. The Seller, nor any other party, will not be liable if Livestock is sold on that basis and fails to give birth.
- Inaccuracy of Listing: While we will encourage the Buyer and Seller to resolve any inaccuracy or discrepancy by a mutually agreeable outcome, the risk of a material inaccurate Listing sits with the Seller, who will be liable for costs involved including costs of maintaining the Livestock in good condition and by good farming practices, and costs to have the Livestock returned if a mutual agreement cannot be found.
- How the pricing works: As well as the Listing details, Sellers must enter a ‘Start Price’ and ‘Reserve Price’, with the option of also adding a ‘Buy Now’ price. Once a Listing meets reserve the ‘Buy Now’ price is no longer available. The start price must be lower or equal to the reserve price, and the reserve price must be lower or equal to the ‘Buy Now’ price if a ‘Buy Now’ price is used.
- Changing the price once a Listing is live: Once a Listing is live, when bidding is beneath the ‘Reserve Price’, the Seller can add or remove the ‘Buy Now’ price, or lower the reserve price as long as it remains above the highest bid that has been placed.
- Fixed price offers: For any Listings that fail to sell at the Listing close, the Seller is able to make a fixed price offer to all of the bidders or watchlisters on the Listing. This fixed price offer stands for up to 48 hours – the first respondent to accept the offer completes the trade.
Seller warranties: The Seller warrants to us and the Buyer that as at Settlement that:
- Livestock as described in the Listing will on Settlement pass to the Buyer free from all encumbrances, including any security interest under the PPSA;
- the Seller has full legal and beneficial ownership of all of the Livestock, or if the Seller is an agency, or there are multiple owners of the Livestock, the Seller has been duly authorised by all legal and beneficial owners of all of the Livestock to sell the Livestock;
- where the Livestock is required to be registered under NAIT the Livestock is physically located on the property associated with the NAIT number and to the extent any NAIT number is recorded on the Listing, this is correct; and
- the Livestock are as described in the Listing.
- Removal of security interests: A Seller must, at the request of the Buyer or us, provide written confirmation of the release of any PPSA security interest in respect of Livestock sold by the Seller.
Bidding and Buying
- Inspection: A User may arrange with you to inspect the Livestock before placing a bid through the Website.
- Placing bids: You can only place a bid for Livestock by bidding through the Website. No offline bidding is allowed for Listings on the Website, and you must not attempt to complete a transaction other than through the Website, or otherwise attempt to avoid paying our fee.
- A contract is formed: When you place a bid on a Listing, a Transaction occurs between you and a Seller if you are the highest bidder on a Listing at the time of the Listing close, and the bid is equal to or above the ‘Reserve Price’, if you bid the ‘Buy Now’ price, or if you accept the fixed price offer after the Listing close. You cannot cancel a Transaction if you are the winning bidder on a Listing. We may, in exceptional circumstances, at our sole discretion, remove bids, but this will not automatically make the next highest bidder liable to complete the Transaction.
- Last minute bids: Any bids placed within the last 2 minutes of a Listing closing will extend the Listing closing time by a further 20 seconds, until there is a 20 second period without a bid being placed, after which the Listing will close.
Payment and settlement
Settlement steps: Following a successful Transaction, our payment and settlement process set out below will apply:
1.Trade ConfirmedWe will provide trade confirmation to both the Buyer and Seller, and request payment from the Buyer into our trust account, of the Price and any Fees payable as determined by us based on the Listing details. The Buyer must then pay the amount requested into our trust account within 24 hours of our request. We will not pay interest on this amount.2.Money DepositWe will provide confirmation to both the Buyer and Seller, confirming receipt of the payment into our trust account. Once payment has been confirmed, the Seller and Buyer are responsible for arranging Livestock transport. The Seller must provide the Buyer with completed declarations and notices that are required for the transport and sale of Livestock prior to Delivery.3.Stock DeliveryWhen Received the Seller and Buyer must immediately provide us with documentation to confirm the Livestock tally and weight. On receipt of the trucking documents from either the Buyer, Seller or the carrier, we will confirm receipt of the documents and update the status to delivered.4.Value ConfirmationWe will then provide confirmation to the Buyer and Seller of the Final Sale Value. This will lead to either a refund payment to the Buyer if the Final Sale Value is less than the Price, or a request for final payment from the Buyer if the Final Sale Value is greater than the Price. We will confirm the receipt of any final payment once it is received.5.SettlementOnce all funds have been received from the Buyer, we will provide a settlement statement and an invoice, confirming the Final Sale Value, the amount to be paid to the Seller after deducting our Fee, and the date the payment will be made to the Seller. Payment will then be made to the account details that have been provided as part of the Business Trading Account.
- Transaction records: You must print or save a copy of each Transaction document and retain a copy for your records.
- Payment: You must pay all Sums Owing to our trust account in full in cleared funds without deduction, set-off, counterclaim or any other legal or equitable claim by the due date. Payments must be made by bank transfer from a registered bank in New Zealand.
- Late Payment: If the Price, or the Final Sale Value, is not received by the due date the Buyer must pay us interest at the rate of 1.5% per month (calculated daily) on the outstanding balance until payment, and all costs we may incur to collect money not paid by the due date. These costs must include (but are not limited to) all administration costs, lawyer fees incurred, and any other fees, disbursements, court costs and collection commissions. Any interest paid will follow the principal amount. We may also suspend or cancel access to the Website for non-payment. Suspension or cancellation of access to the Website could result in a loss of access to some or all of your content stored on the Website. User content that is deleted may be irretrievable.
- Application of payments and deductions: We may apply any payment received for a Transaction, in any order of priority that we see fit to a Sum Owing. You irrevocably authorise us to deduct our Fee from the Final Sale Value, or any other amounts we hold in our trust account.
Tolerances: When Received:
the tally of Livestock must be within 5% of the tally set out in the Listing. If the tally of Livestock:
- is more than 5% greater than the tally set out in the Listing, any excess Livestock selected by the Buyer can be rejected by the Buyer by notice in writing by the Buyer to us and the Seller by 5pm the next working day after being Received; or
- is 5% or more less than the tally set out in the Listing, the Buyer may reject all of the Livestock that have been Received by notice in writing by the Buyer to the Seller and us by 5pm the next working day after being Received.
- if the Livestock have been sold on a dollar per kilogram basis and the average weight of the Livestock is not within 5% of the average weight set out in the Listing, the Buyer may reject all of the Livestock that have been Received by notice in writing by the Buyer to the Seller and us by 5pm the next working day after being Received,
- the tally of Livestock must be within 5% of the tally set out in the Listing. If the tally of Livestock:
Incorrect Descriptions: If on being Received:
- for any reason the Livestock are materially not as described in the Listing (including but in no way limited to in respect of weight but not with respect to tally);
- any of the Livestock is blind or maimed, unless disclosed in the Listing;
- any of the livestock has had its production value compromised for any reason without prior disclosure to the Buyer, including because of disease; or
- any of the Livestock is unfit to travel, or does not meet the Livestock movement or health requirements of any relevant legislation,
the Buyer may, by 5pm the next working day after being Received, notify us and the Seller, in writing, that the Buyer wishes to reject the Livestock and the reasons for such rejection (this, or any rejection received in accordance with clause 7.6, being a Rejection Notice). After receipt of a Rejection Notice we will then work with the parties to assist in finding an equitable solution.
- Rejection Notice: If 3 working days after receipt of a Rejection Notice we have not been able to find an equitable solution, either we, or a party appointed by us, may inspect the Livestock and provide a recommendation to the Buyer and Seller. We, or the party appointed by us, shall be able to charge a reasonable amount for this service and we shall in our absolute discretion and without any liability determine whether the cost shall be borne by the Buyer or the Seller. If the recommendation is not accepted by both the Buyer and the Seller the matter shall be referred to arbitration in accordance with clause 10.2 of these Terms.
- Rejection Period: If no Rejection Notice is received by us by 5pm the next working day after the Livestock is Received, the Buyer is deemed to have accepted the Livestock.
- Maintenance of Livestock: If a Rejection Notice is received, all Livestock must continue to be held on the Buyer’s property and the Buyer must maintain the Livestock in at least the condition they were when Received, including by providing water and reasonably good feed. If it is agreed or determined that the Livestock be returned to the Seller in accordance with the processes set out at clauses 7.7 to 7.9, the Seller shall be liable to account to the Buyer for the costs of such maintenance, including any grazing costs. If for any reason it is not safe to hold the Livestock at the Buyer’s property, the Buyer must comply with any reasonable directions from us on how to handle the Livestock.
- Collection of Livestock: If in accordance with the processes set out at clauses 7.7 to 7.9 it is agreed or determined that the Livestock shall be returned to the Seller, the Seller must arrange for collection of the Livestock, at the Seller’s cost, from the Buyer within 24 hours of such agreement or determination. When we are advised that the Livestock has been collected from the Buyer we will refund the Price to the Buyer and the Seller will be liable to pay our Fee within 24 hours of invoice by us.
- Partial release of funds: After the Final Sale Value has been confirmed we may in our absolute discretion choose to release funds to the Seller, even if the final payment reflecting the Final Sale Value has not yet been received. If we choose to do this the Buyer remains liable to pay the final payment.
- Standards for Livestock: Livestock described on a Listing must be cared for and maintained in accordance with good farming practice until Delivery, and available for delivery by the Delivery Date. All Livestock that are legally required to comply with identification standards, for example through a form of tagging, must comply with those requirements.
Transportation of Livestock: The Seller and Buyer are responsible between them for:
- the transport of Livestock by the Delivery Date;
- compliance with all applicable standards imposed for the transport and sale of Livestock;
- agreement on the weighbridge location to finalise the weight of Livestock;
- ensuring that a carrier provides waybill and weighbridge documents that record accurate Livestock tallies and weights; and
- immediately providing carrier waybill and weighbridge documents to us for the calculation of the Final Sale Value and invoice.
- Stand down of Livestock and documentation: The Seller must ensure that the Livestock are transported in accordance with the ‘Code of Welfare: Transport within New Zealand’, including (but without limitation) that any ruminant Livestock are to be held off pasture, with water provided, for a minimum of four hours and a maximum of twelve hours before travel (taking into account the condition of the Livestock). Unless otherwise agreed between the Buyer and the Seller, the Buyer is responsible for the cost of the carrier and weighbridge use. The party responsible for the transport must procure that transport company provide us with copies of the waybill and weighbridge documents. You authorise us to obtain the carrier waybill and weighbridge documents directly from the carrier if required.
- Delivery: If the Buyer is unable to procure transport for the Livestock, or is unable to take delivery of the Livestock, by the Delivery Date, the Livestock will be at the Buyer’s risk on and from the last day of the Delivery Date and the Seller may charge the Buyer reasonable grazing costs. The Buyer indemnifies the Seller against any loss or damage suffered by the Seller in connection with the Livestock on and from the last day of the Delivery Date (including the costs of maintaining the Livestock during that period).
- Settlement steps: Following a successful Transaction, our payment and settlement process set out below will apply:
Ownership of Livestock
When ownership of the Livestock transfers: Risk on the Livestock passes to the Buyer on Delivery. The Buyer owns the Livestock only once Settlement occurs. The Buyer grants to the Seller a security interest in the Livestock, as security for payment of the Livestock, and for any other amounts that may be owing by the Buyer to the Seller in respect of a Transaction. While the Buyer holds the Livestock, but does not yet own them, the Buyer:
- holds the Livestock on trust for the Seller;
- must advise the Seller immediately if a Default Event occurs or of any other action by third parties which could affect the Livestock; and
- grants the Seller an irrevocable license to take any reasonable action it considers necessary to protect the Livestock or its security interest in the Livestock.
- If the Buyer sells the Livestock before payment: If the Buyer resells, breeds from or uses the Livestock before ownership has passed to the Buyer, the proceeds of such sale or use must be received and held by the Buyer (in whatever form) on trust for the Seller. The interest of the Seller as beneficiary under that trust must be equal to the Sum Owing. The balance proceeds (if any) shall be the Buyer’s beneficial interest under that trust.
Waiver of PPSR rights: The Buyer:
- waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing charge statement relating to the security interest under these terms;
- must not (without the prior written consent of the Seller) allow any security interest to arise over the Livestock until payment of the Final Sale Value;
- waives, contracts out of and agrees that nothing in sections 114, 116, 117, 120, 121, 125, 127, 129, 131, 133 and 134 of PPSA shall apply to these terms; and
- must pay all costs, expenses and other charges incurred by the Seller in relation to the filing of a financing statement or financing change statement, any disputes or negotiations with third parties claiming an interest in the Livestock and any reasonable action taken by the Seller to protect the Livestock or its security interest.
Default Events: If a Default Event occurs (without prejudice to other rights and remedies):
- we may suspend or terminate your Business Trading Account or User access to the Website, delete your content from the Website (content that is deleted may be irretrievable) and/or require you to pay for any Fee;
- the Sum Owing will be payable immediately notwithstanding that the date it is due has not arrived;
- the Buyer must pay interest on the Sum Owing at the rate of 1.5% per month (or such other rate as we notify from time to time) calculated on a daily basis from the date it is due until payment in full; and
- the Buyer must pay to the Seller any fee, legal costs (as between solicitor and client) or collection costs incurred by the Seller as a consequence of a Default Event.
- When ownership of the Livestock transfers: Risk on the Livestock passes to the Buyer on Delivery. The Buyer owns the Livestock only once Settlement occurs. The Buyer grants to the Seller a security interest in the Livestock, as security for payment of the Livestock, and for any other amounts that may be owing by the Buyer to the Seller in respect of a Transaction. While the Buyer holds the Livestock, but does not yet own them, the Buyer:
- Our Fee: You must pay us all applicable fees as set out in our Fee Schedule, displayed on our website.
- Obligation to pay: Your obligation to pay any Fee is not contingent on any representation about delivery of our Services or any future Website functionality or feature.
- Changes to our Fee: We may change our Fees at any time by updating our Fee Schedule. We will notify you of any increase in our Fees, which may be through an alert when you log into the Website as a User. If you do not agree to the Fee change, then you must close your account, including any Business Trading Account, and stop using the Website before the Fee change takes effect.
Mediation: If there is a dispute between any of the parties in respect of these Terms or a Transaction (
Dispute), any of the parties involved in that Dispute (
Disputing Parties) may, subject to any other provisions set out in these Terms, by written notice to the other Disputing Party or Disputing Parties, require that the Dispute be dealt with by mediation under the following terms:
- the mediation shall be conducted in accordance with the Resolution Institute’s standard mediation agreement;
- the mediation shall be conducted by a mediator and at a fee agreed in writing by the Disputing Parties. Failing agreement between the Disputing Parties within 5 working days of the giving of the notice requiring mediation, the mediator will be selected and his or her fee determined by the chairperson for the time being of the New Zealand branch of the Resolution Institute (or his or her nominee);
- the mediation shall take place in Auckland, New Zealand at such address as determined by the mediator, provided that any Disputing Party may, if permitted by the mediator, attend via telephone conference, video conference or any similar means of electronic, audio or audio-visual communication;
- if the Dispute is settled at or following mediation under this clause 10.1, such settlement shall be recorded in writing and be signed by the Disputing Parties, whereupon it shall be final and binding on them;
- the costs of the mediation, excluding the Disputing Parties’ own legal and preparation costs, will be shared equally by the Disputing Parties; and
- each party shall co-operate in good faith to expedite, to the maximum extent practicable, the conduct of any mediation commenced under this clause 10.1.
Arbitration: If the Dispute is not resolved within 15 working days of the completion of the mediation procedure set out at clause 10.1 above, or if provided for in these Terms, a Disputing Party may require the Dispute to be resolved by arbitration by giving notice to this effect to the other Disputing Party or Disputing Parties. The arbitration shall be conducted as follows:
- by a single arbitrator, who shall be agreed in writing by the Disputing Parties. Failing agreement between the Disputing Parties within 5 working days of the giving of the notice requiring arbitration, the arbitrator shall be appointed by the then President of the Arbitrators and Mediators Institute of New Zealand Incorporated (registered number 379524) (or his or her nominee) on the written request of any of the Disputing Parties;
- the arbitration shall be held in Auckland, New Zealand at such address as determined by the arbitrator;
- the arbitration shall be governed by the Arbitration Act 1996 (including schedules one and two of that Act) and conducted in accordance with the 2017 AMINZ Arbitration Rules;
- the decision of the arbitrator shall be recorded in writing and be final and binding on the Disputing Parties (except in the case of manifest error or fraud);
- the costs of arbitration, excluding the Disputing Parties’ own legal and preparation costs, will be shared equally by the Disputing Parties; and
- each party shall co-operate in good faith to expedite, to the maximum extent practicable, the conduct of any arbitral proceedings commenced under this clause 10.2.
Court proceedings: No Disputing Party may initiate or commence court proceedings relating to a Dispute unless it has complied with the procedure set out in this clause 10, provided that application may still be made to the courts:
- for interlocutory relief;
- to recover or enforce a debt payable;
- to enforce a settlement agreed to by the Disputing Parties under clause 10.1 or 10.2;
- to enforce the decision of the arbitrator under clause 10.2; or
- to overturn the decision of the arbitrator under clause 10.2 on the basis that there was manifest error or fraud by the arbitrator.
- Mediation: If there is a dispute between any of the parties in respect of these Terms or a Transaction ( Dispute), any of the parties involved in that Dispute ( Disputing Parties) may, subject to any other provisions set out in these Terms, by written notice to the other Disputing Party or Disputing Parties, require that the Dispute be dealt with by mediation under the following terms:
- Purpose: These terms govern the relationship between us and you, including any business which has a Business Trading Account, as well as between any Users that are party to a Transaction.
- Consumer Guarantees Act and Fair Trading Act: Where a User is “in trade” within the meaning of the Fair Trading Act 1986 or the Consumer Guarantees Act 1993 ( Acts) (as the case may be), we contract out of the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14 of the Fair Trading Act 1986 with the User. Where a User is “in trade”, the User acknowledges that the effectiveness of contracting out of the Acts is subject to compliance with the statutory tests including that it is fair and reasonable that the User be bound by those terms. Where we are supplying services to a User that is not “in trade” the provisions of this clause will have no effect and the provisions of the Acts will apply.
- GST: All prices, costs and fees advertised on the Website are, unless otherwise stated, exclusive of goods and services tax.
- No Warranties: We make no warranties express or implied, or guarantees with respect to the Website, or representation about any Listing, Livestock, Services, the Website, or other advertising on the Website.
Exclusions: To the extent permitted by law, we:
- exclude all recommendations, warranties, descriptions, representations and conditions in relation to the Website whether expressed or implied by law, trade, custom or otherwise and whether relating to fitness, merchantability, suitability for purpose, or otherwise and all specific conditions even though such conditions may be known to us;
- are not be responsible for any loss or liability where the Website is unable to be used or contains links to other sites and resources provided by third parties; and
are not in any circumstance liable to anyone, including but not limited to Users and General Users, in contract, tort, (including negligence), equity or in otherwise, for any loss or damage of any kind arising from:
- the use of commentary and other materials posted on Website and you indemnify us against any such claim; or
- the use of or inability to use the Website, whether direct, indirect, special or consequential and you indemnify us against any such claim.
- Inconsistency: If there is any inconsistency between these terms and other communication between you and us, these terms will prevail.
- Assignment of Sum Owing: We may assign to any other legal entity all or part of any Sum Owing and the assignee shall be entitled to claim all or part of the Sum Owing and shall have the same rights of recovery as us.
- No waiver: If at any time we do not enforce these terms, or grant you time or other indulgence, we will not be construed as having waived these terms or our right to later enforce these terms.
- Each term is separate: Each term of these terms is separately binding. Where any clause is void, unenforceable or otherwise ineffective by operation of law, the enforceability or effectiveness of the remaining clauses shall not be affected.
- Intellectual property: We hold all rights to and ownership of the Website, are the owner or the licensee of all copyright and intellectual property rights in the Website and the material published on the Website, and are granted by every User a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Website any suggestion, enhancement requests, recommendation, correction or other feedback provided by the User relating to the operation of the Website.
- Website updates: We may make Website updates available from time to time which shall be accepted by the User and any General User, subject to these terms. We are not obliged to make any Website updates available and do not warrant or guarantee that we will continue to enable and support the Website. We may stop providing portions of the Website, including (without limitation) if it’s no longer feasible for us to provide them, or the technology advances, or User feedback indicates a change is needed, or external issues arise that make it imprudent or impractical to continue.
These terms have Definitions throughout them to help with ease of reading.
MeaningBusiness Trading Accountmeans an account set up with us by a User in the name of a business.Buyermeans a User in a Transaction buying Livestock.Default Eventmeans an event where:
- a User fails or in our opinion is likely to fail to comply with these terms or our instructions in relation to them;
- if a User makes an offer to buy or sell Livestock or complete a Transaction without using the Website, or otherwise in any way attempts to avoid paying our Fee;
- a User commits an act of bankruptcy;
- a User is insolvent;
- a User enters into any composition or arrangement with its creditors; or
- anything occurs which in our reasonable opinion adversely affects the User's ability to pay any money owing; or
- a User is a company and is placed into receivership or does anything that would make it liable to be put into liquidation.
Delivery Datemeans the date agreed between the Buyer and Seller for delivery of Livestock or if no date is specified shall be five working days after the date of the Transaction.Feemeans any amount payable to us as set out in the Fee Policy.Final Sale Valuemeans the Price less/plus any agreed adjustments for Livestock tally and / or weight.General Userany person accessing or viewing the Website, other than a User.Listingmeans any page advertising livestock for sale on the Website.Livestockmeans animals kept for production of food, wool, and skin on agricultural land and includes their unborn young, the natural increase of such livestock, all horns, antlers, hair and wool (whether removed from the livestock or not), and all other produce and meat of such livestock.NAITmeans the National Animal Identification and Tracing system.Ownermeans, in the case where an account has multiple Users, the User that set up the account or the person or entity assigned the role of Owner.PPSAmeans the Personal Property Securities Act 1999.Pricemeans the price agreed in a Transaction.Receivedmeans when the Livestock enter onto the Buyer’s property, or the property designated by the Buyer.Rejection Noticemeans as defined in clause 7.7.Related Companyhas the meaning given to that term in section 2(3) of the Companies Act, but with that meaning extended by reading section 2(3) of the Companies Act as if "company" included any body corporate (wherever incorporated or formed).Related Partymeans, in relation to a User:
- the collection by the Buyer or the Buyer’s representative of the Livestock from the property specified by the Seller;
- if leaving on hoof, immediately on the Livestock crossing the boundary of the Seller’s property;
- if being delivered by the Seller, when the Livestock passes over the tailgate of the transportation vehicle (on exiting the vehicle) which has transported the Livestock to the Buyer; or
- as otherwise agreed in respect of a Transaction.
Sellermeans a User in a Transaction selling Livestock.Servicesmeans all or any other services provided by us to enable a Transaction to be completed, including but not limited to the ability to put a Listing on our Website and the assistance we give with Settlement.Settlementmeans completion of a Transaction, being once the Livestock has been Delivered and the Final Sale Value has been paid to us in full and in cleared funds.Sum Owingmeans any amount owing, including but not limited to the Price, the Final Sale Value or the Fee, notified by us to the User.Transactionmeans a contract for the sale and purchase of Livestock through the Website.User / youmeans the person, or where the is a legal entity, that legal entity, completing or described in the application.we / us / ourmeans StockX Systems Limited, StockX Limited, and its related entity StockX Nominees Limited.Websitemeans the website and Services enabled by us for the User.Working Daymeans a day other than a Saturday, Sunday or a public holiday in each of the places in which an act needs to occur or, if used in a context where no act needs to occur, in Auckland, New Zealand.
- a spouse (which includes any person with whom the relevant person is living in a relationship in the nature of marriage);
- a son, daughter, or grandson or granddaughter;
- a father, mother, brother or sister;
- any director, officer or employee of, or professional adviser to, that User;
- a Business Trading Account associated with a User;
- any person who directly or indirectly controls, or is controlled by, that User; and
- any Related Company of that User or a Business Trading Account of that User.