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INTRODUCTION
- These Terms and Conditions apply to all clearing sales conducted by Nutrien Ag Solutions Limited ACN 008 743 217, its agents or assigns
or any of its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth)) (together Nutrien) as auctioneer and/or agent.
- The Vendor and Purchaser acknowledge and agree that Nutrien is acting as an agent for the Vendor and:
- that the sale contract for the purchase of any Lot is made directly between the Vendor and the Purchaser; and
- the terms of engagement between Nutrien and the Vendor do not extend to the provision of advice by Nutrien to the Vendor in relation to the safety or otherwise of the sale area and the surrounding environment.
REGISTRATION AND BIDDING
- All intending bidders must register prior to bidding at the Auction. By bidding at Auction each bidder accepts, and is bound by, these Terms and Conditions.
- Subject to a reserve price and the Vendor’s rights under clause 5 of these Terms and Conditions, the highest bidder will be the Purchaser.
- The Vendor reserves the right:
- to make one or more bids at the Auction in respect of a Lot or Lots by Nutrien or its representative;
- without giving any reason, to withdraw any Lot or Lots from sale and without declaring the reserve price; and
- to refuse any bid.
- Nutrien, reserves its rights:
- to refuse any person admission to, or eject them from the Auction site;
- prior to the commencement or during the Auction, to announce further special conditions applying to the Auction or a particular Lot, in which event such further special condition or conditions will be deemed to be incorporated into and form part of these Terms and Conditions;
- to not disclose the existence of and/or quantum of the reserve price (if any) of a Lot prior to the closing of bidding or withdrawal of the Lot;
- to refuse to accept any bid which, in Nutrien’s opinion is not in the best interests of the Vendor;
- if a dispute arises as to a bid, to decide whose bid was the last or, alternatively, to resubmit the Lot for sale;
- to (whether or not a Lot has been knocked down as sold) in its sole discretion resubmit it for sale by Auction at the Auction sale in progress or as soon as possible after the Auction sale;
- to offer and sell a Lot that is not sold at Auction immediately after the Auction has completed, by private agreement. Any such private agreement is also subject to these Terms and Conditions unless otherwise agreed to in writing by Nutrien; and
- to cancel any transaction due to any error whatsoever, even if the Lot has been paid for. Nutrien may exercise this right, right up until the time the Purchaser collects the Lot(s). If Nutrien exercises this right, then it (and the Vendor) will refund any part (or all) of the purchase price that the Purchaser has paid.
- A bidder is taken to be a principal unless, before bidding, the bidder has given to the Auctioneer a copy of a written authority to bid for or on behalf of another person or body corporate.
- Subject to clause 5, the price payable by the Purchaser will be the:
- price at which the hammer falls, and as recorded in the sale book by the Auctioneer at the sale for in person Auctions; or
- price at which the Auction period closes for online Auctions,
and shall be binding on the Purchaser and the Vendor.
PAYMENT TERMS
- Unless otherwise agreed in writing between Nutrien and the Purchaser, the purchase price will be payable in full on the day of the Auction.
- If payment in full is not made pursuant to clause 9, interest will accrue daily on the purchase price at the rate of 18% per annum
(which rate is subject to variation form time to time) until the date payment is made in full or the Vendor elects to resell the Lot
pursuant to clause 13.
- The Vendor or Nutrien may at its discretion extend credit to the Purchaser, provided that such arrangements are approved in writing
prior to the Auction by the Vendor or Nutrien (as the case may be). Where credit is extended to the Purchaser by the Vendor,
Nutrien shall not, unless otherwise agreed to in writing, act as del credere agent on the sale and receipt of the purchase price is
at the sole risk of the Vendor.
- Risk in and security of all Lots shall pass to the Purchaser on the fall of the hammer and for the avoidance of doubt, neither the Vendor
or Nutrien shall be responsible for safeguarding the Lot thereafter and they will not be liable for any loss or damage however caused.
- Property and title in each Lot shall pass to the Purchaser upon payment by the Purchaser of the price and until payment by the Purchaser
the Lot is held by the Purchaser as trustee for the Vendor. If the Purchaser fails to make payment, the Vendor and/or Nutrien will be at
liberty to repossess the Lot and for that purpose without prejudice to any rights or remedies the Vendor and/or Nutrien may have against
the Purchaser under these terms or at law or in equity enter upon the lands or premises of the Purchaser or any other land were the
Lot may be held.
- If a purchased Lot is not collected by the Purchaser or their representative from the premises specified by the Vendor within 14 days
after the date of the Auction, then the Purchaser acknowledges and agrees that the Vendor may (in its absolute discretion) treat the
Lot as abandoned and have the Lot removed and/or disposed of at the Purchaser’s cost.
TITLE AND DESCRIPTION OF LOTS
- The Purchaser acknowledges and agrees that all of the Lots have been made available for inspection prior to the sale. No allowance or refunds will be made, nor shall any bidder or Purchaser be entitled to reject any Lot on the ground that it is not correctly described in the Catalogue, advertisements or other information supplied. The Purchaser agrees that this condition will apply during the COVID-19 pandemic and regardless of any public health restrictions in place at the time or in advance of the Auction.
- The Vendor represents and warrants to the Purchaser and Nutrien that prior to the commencement of the Auction:
- it has good title to the Lot;
- it has proper authority to sell the Lot; and
- subject to these Terms and Conditions, the Lot will be transferred to the Purchaser free of any encumbrances, liens or security interests at the time of delivery of the Lot.
- Nutrien gives no warranty as to the Vendor’s title to the Lot or the Vendor’s right to sell the same and, to the extent permitted at law, Nutrien is not liable in respect of any error, misdescription or omission in any particulars appearing or stated regarding the description of any Lot offered for sale.
- In the case of online clearing sales, the Vendor and Purchaser acknowledge that Nutrien relies entirely on all information provided to it by the Vendor regarding the description and state of the relevant Lots. To the extent permitted by law, Nutrien excludes any and all express and implied warranties relating to the Lots, including but not limited to their description in any Catalogue.
- The Purchaser acknowledges that the consumer guarantees stipulated in sections, 54 to 59 (inclusive) of the Australian Consumer Law do not apply to the sale of goods by Auction, either in person or online Auctions. As a result, the Vendor and Nutrien make no warranties and give no guarantees regarding:
- the goods being of acceptable quality;
- the goods being fit for any disclosed purpose or any purpose for which the Vendor, supplier or manufacturer represents they are fit;
- the goods matching the description or corresponding to any sample or demonstration model;
- the availability of repairs or spare parts for the goods; or
- any express warranties in respect of the goods made by their manufacturer.
Nothing in this clause or within these Terms and Conditions should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer Law.
SAFETY AND USE OF GOODS SOLD
- The parties acknowledge that WH&S Legislation imposes obligations on plant owners in regards to the operation of plant in the workplace
(which expression includes all areas in which plant may be used).
- The Purchaser acknowledges and agrees that:
- unless the Purchaser has been notified otherwise in writing by the Vendor, no warranties or representations are made that any plant the subject of a clearing sale is fit for use in any work place as defined in the WH&S Legislation;
- where relevant information and/or records regarding the design or manufacture of the lot are not readily available, the Purchaser releases the Vendor and Nutrien from any liability associated with its unavailability;
- it is responsible to ensure that the it seeks to ascertain the information and/or records; and
- prior to use of any Lot purchased at Auction, the Purchaser will satisfy itself that the purchased Lots comply with the WH&S Legislation.
- The Vendor acknowledges that WH&S Legislation imposes obligations on the seller of any new or used plant to inspect equipment, identify faults and provide Purchasers with advice on faults and information in relation to the safe use of the items being sold. The Vendor warrants to the Purchaser and Nutrien that:
- it is aware of its obligations under the WH&S Legislation regarding the sale of plant; and
- it has (either itself or through a third party engaged by it) complied with the WH&S Legislation in relation to the safety of the Lots.
- Unless otherwise stated all plant breeders rights seed varieties are sold for stockfeed use only and may not be used by the Purchaser for any other purpose whatsoever.
ELECTRICAL SAFETY
- The Purchaser acknowledges that:
- no electrical items being offered at this Auction have been tested or inspected by a licensed person;
- no warranty can, or will be, given by the Vendor, their agents and/or servants as to whether any electrical item being offered at is in a safe working order;
- they have satisfied themselves in all respects as to the status of those electrical items on offer before bidding.
DISPUTES, RELEASE AND INDEMNITY
- If any dispute arises in relation to a Lot (including but not limited to any misdescription, damage or deficiency of the Lot), the dispute is between the Purchaser and the Vendor.
- The Purchaser acknowledges and agrees that if any dispute arises in relation to any Lot (including but not limited to any misdescription, damage or deficiency of the Lot), the Purchaser must notify the Vendor directly in writing within 3 days following the date of sale of that Lot.
- The Vendor and Purchaser acknowledge and agree that if any dispute is notified to the Vendor in accordance with clause 26 above, then they will use their best endeavours to resolve the dispute without the intervention or involvement of Nutrien.
- The Vendor and Purchaser acknowledge and agree to:
- release Nutrien from any claim, action, tribunal or court proceeding in respect of any dispute contemplated in clauses 25 to 27; and
- jointly and severally indemnify Nutrien, on a full indemnity basis, from all liability, including all costs incurred by it in relation to any such claim.
GST
- Words defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
- Amounts GST exclusive
- The Vendor acknowledges that all bids and other amounts payable in respect of a lot are exclusive of GST and that the Vendor is
- solely responsible for paying any GST payable on the sale from the proceeds of sale.
- GST payable in addition to purchase price
In addition to paying the amount bid by the Purchaser (which is exclusive of GST) the Purchaser must:
- pay to the Vendor an amount equal to any GST payable for any supply by the Vendor under or in connection with these terms and conditions (including, without limitation the sale), without deduction or set-off of any other amount; and
- make that payment as and when the amount bid by the Purchaser or other consideration or part of it must be paid or provided.
- GST on claims
- If a payment to satisfy a claim or a right to claim under or in connection with these terms and conditions (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty of the Vendor or of Nutrien or for indemnity or for reimbursement of any expense) gives rise to a liability to pay GST, the payer must pay, and indemnify the payee against the amount of that GST.
- If a party has a claim under or in connection with these terms and conditions for a cost on which that party must pay GST, the claim is for the cost plus all GST (except any GST for which that party is entitled to an input tax credit).
- If a party has a claim under or in connection with these terms and conditions whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
TAX INVOICES
- Nutrien acknowledges that it will issue a tax invoices on the Vendor’s behalf to the Purchaser.
GENERAL
- Subject to Clause 6, where the Auction is not conducted online, these Terms and Conditions contain the entire agreement between the parties and any preceding representations or documentation are excluded.
- Where the Auction is conducted online, then these Terms and Conditions apply in addition to the terms and conditions of the online Auction website. These Terms and Conditions will override the terms of the online Auction website to the extent there is any inconsistency.
- These terms and conditions shall apply to sales of all Lots whether by Auction or private treaty.
- The Purchaser acknowledges that these Terms and Conditions apply regardless of any public health restrictions and/or directives that are in place, including in relation to the COVID-19 pandemic.
- The proper law governing the interpretation and enforcement of these conditions is the law of the State or Territory in which the Auction took place. If the Auction is an online Auction, then the governing law is the law of Victoria, Australia, unless the parties otherwise agree.
- If any term is to any extent held by any court of competent jurisdiction to be invalid or unenforceable, then those terms are to be severed to the extent they are invalid or unenforceable and the remaining terms will not be affected and will remain in full force an effect.
- All registered parties agree that when registering to this Auction Site that they agree to receive all marketing and promotions relating to any future Clearing Sales or Information.
DEFINITIONS
- In these Terms and Conditions defined terms have the following meaning:
- Auction means the auction of all of the Lots listed in a Catalogue;
- Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
- Catalogue means a list containing some or all of the Lots available for sale at an Auction;
- Lot means any goods available for purchase at an Auction;
- Nutrien has the meaning given to that term in Clause 1;
- Purchaser means the successful bidder for a Lot, as determined by Nutrien;
- Vendor means the owner of a Lot or the person authorising Nutrien to sell that Lot on the owner’s behalf; and
- WH&S Legislation means the applicable State or Territory work health and safety legislation.
The Auction shall be conducted on the following terms and conditions by way of clearing sale: 1 Nutrien Ag Solutions Limited ABN 73 008 743 217 ( Nutrien Ag Solutions) shall have a sole and exclusive selling agency for the Goods described in Item 6 of the Schedule and offered for sale and for all or any Goods unsold at the Auction for a period of one calendar month from the Auction Date. 2 Nutrien Ag Solutions shall receive on the Vendor’s behalf the purchase moneys for the Goods (Proceeds of Sale) and shall, subject to clause 5 pay and apply any or all of the Proceeds of Sale received on behalf of the Vendor firstly in payment of any sums owing to Nutrien Ag Solutions in accordance with clause 3 below and the balance to the Vendor subject to clause 4 below. 3 The Vendor authorises Nutrien Ag Solutions to deduct from the Proceeds of Sale:(a) its commission on the amount realised on the Goods sold at the rate specified in Item 1 of the Schedule together with a fee as specified in Item 3 of the Schedule for those Goods remaining unsold. (b) all sums disbursed by Nutrien Ag Solutions on account of advertising, printing of catalogues, and all other expenses reasonably incurred by Nutrien Ag Solutions in connection with the auction to the maximum sum specified in Item 2 of the Schedule. 4 (a) The Vendor warrants that the Goods offered for sale are not subject to any mortgage, charge, lien or other legal impediment and are the sole property of the Vendor save and except those Goods expressly disclosed in Item 4 of the Schedule. The Vendor warrants that in respect to those items subject to any prior charge the Vendor has obtained from each Chargee referred to in the Schedule consent to offer for sale and dispose of each of the items therein disclosed. The Vendor indemnifies Nutrien Ag Solutions against all claims which may be made against Nutrien Ag Solutions arising out of or in connection with the sale of any Goods pursuant to this Authority including any claims for which Nutrien Ag Solutions may become liable in an action for conversion. (b) In respect to those items disclosed in Item 4 of the Schedule hereto as being subject to a prior charge, in the event of any of those items being sold by Nutrien Ag Solutions then the Vendor hereby authorises Nutrien Ag Solutions to pay and apply the purchase moneys for such items firstly in payment of the amount owing to the Chargee (as to the quantum of which the advice in writing by or on behalf of the Chargee shall be conclusive evidence) and the balance (if any) as provided in clause 2. 5 The Goods remaining unsold after the Auction remain at the risk of the Vendor and Nutrien Ag Solutions its servants and agents shall not be responsible or accountable for any loss or damage unless the same is due to the negligence of Nutrien Ag Solutions, its servants or agents. 6 Prior to the Auction the Vendor may notify Nutrien Ag Solutions in writing of such reserve price as the Vendor may wish to place on any of the Goods to be offered. In the absence of any reserve price being fixed by the Vendor, Nutrien Ag Solutions shall be entitled to sell to the highest bidder. 7 The Vendor acknowledges and agrees that the Auction will be conducted in accordance with the Australian Livestock & Property Agents Association Ltd (ALPA) terms and conditions for Clearing Sales and that the Vendor has read and agrees to be bound by the ALPA terms and conditions. 8 Where the Vendor agrees to offer particular Goods on terms other than cash, the Vendor will advise Nutrien Ag Solutions of the details of these terms and hereby authorises Nutrien Ag Solutions to offer the particular Goods to Purchasers subject to these terms. Where a sale of Goods is affected in this manner, then the Vendor acknowledges and agrees that Nutrien Ag Solutions is not acting as del credere agent in respect to this particular item and further acknowledges that receipt of the price for the Goods is at the sole risk of the Vendor. 9 The Vendor/s acknowledges that he / she is aware of the provisions of the Occupational Health and Safety Regulations applicable in the State where the Auction is held and the obligations those regulations impose on the Vendor to provide to Nutrien Ag Solutions certain information and further the Vendor/s WARRANTS that he / she shall provide Nutrien Ag Solutions at least five (5) days prior to the Auction Date in respect to the items of plant to be sold at the clearing sale other than items of plant which rely exclusively on manual power or are designed to be primarily supported by hand, all information in relation to: 9.1 The purpose for which the plant is designed; 9.2 All hazard and risk identification and assessments associated with the use of the plant; 9.3 Any testing or inspections carried out on the plant; 9.4 Installation, commissioning, decommissioning, use, transport, storage and, if the plant is capable of becoming dismantled, dismantling of the plant; 9.5 The systems of work and competency of operators necessary for the safe use of the plant; 9.6 The emergency procedures (if any) required if there is a malfunction of the plant; 9.7 All Operator Manuals relevant to the plant; and 9.8 Any record or document kept by the previous owner of the plant required under the Occupational Health and Safety Regulations 2007 (Vic) that is in the Vendor’s possession 10 The Vendor hereby agrees to indemnify Nutrien Ag Solutions against any claim for damages, suits, court proceedings or other proceedings whatsoever arising from any award of damages which may be made against Nutrien Ag Solutions arising out of the use of the plant sold by Nutrien Ag Solutions for or on behalf of the Vendor. 11 The Vendor WARRANTS to Nutrien Ag Solutions that the Vendor is not a supplier who hires or leases plant as defined in the Work Health and Safety Regulations. 12 The Vendor acknowledges that any breach of clauses 9 and 11 hereof is a breach of an express warranty for which the Vendor will be liable to Nutrien Ag Solutions in damages. 13 The Vendor acknowledges that Nutrien Ag Solutions is retained solely as an Auctioneer for the purpose of selling the Goods comprised in the lots for the highest Price. The terms of engagement between Nutrien Ag Solutions and the Vendor do not extend to the provision of advice by Nutrien Ag Solutions to the Vendor in relation to the safety or otherwise of machinery, equipment, the sale ring and the surrounding environs. 14 The price payable for any of the Goods sold pursuant to this Clearing Sale shall be adjusted so as to pass on to the Purchaser the impost on the Vendor of any Goods & Services Tax (“GST”) in respect of the supply made. Any commission payable shall be calculated on the unadjusted Price and shall be adjusted so as to pass on to the Vendor the impost on Landmark, if any, of any GST
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