Incorporating Terms and Conditions of Sale and Purchase
1.2 We may, at any time and at our sole discretion, vary this Agreement by publishing the varied terms on FarmGate Auctions. We recommend you check FarmGate Auctions regularly to ensure you are aware of our current Agreement. If you do not agree to our varied terms, you may terminate this Agreement in accordance with clause 23. Continuing to use FarmGate Auctions will be confirmation of your agreement to the varied Agreement.
2. FarmGate Auctions summary
2.1 FarmGate Auctions provides an introductory platform for Vendor's Agents to offer for sale Livestock to Bidders through online live Auctions.
2.2 To sell Livestock on FarmGate Auctions, a Vendor must appoint an experienced livestock agent approved by us or a licensed livestock agent (NSW and QLD) to act as its agent (herein called "Vendor's Agent" for the sale of its Livestock.
2.3 Vendor's Agents must complete the Lot Assessment Form available on FarmGate Auctions prior to listing the Livestock for sale.
2.4 Vendor's Agents must complete the Listing on behalf of the Vendor on FarmGate Auctions and submit the Lot for sale.
2.5 Bidders may bid for Livestock and the Bidder with the highest bid at the end of the Auction purchases the Livestock and becomes a Purchaser.
2.6 A Bidder is deemed to be bidding on their own account as principal. Where a purchase is made by a Purchaser's Agent, they will be deemed the Purchaser and will be referred to as the Purchaser in the sale confirmation notice detailing the terms of the sale provided to the Vendor and Purchaser.
3.1 You will be required to create an account (Account) to access and use FarmGate Auctions. There is no fee to create an Account.
3.2 If you are an individual, to be issued with an Account, you must:
(a) be eighteen (18) years or older; and
(b) not be subject to an Insolvency Event.
3.3 If you are a company, to be issued with an Account, you must not be subject to an Insolvency Event.
3.4 We will request certain information from you when you create an Account, including, an appropriate, name, email address, business and ABN (if applicable), proof of stock and station agent licence, or proof of carrying on a livestock agents business (if applicable), Property Identification Code (PIC), contact number and location. We will review your request for an Account before approving the request. We may at our sole discretion refuse to provide you with an Account if you do not meet the requirements for an Account. We may also impose conditions on your Account as we see fit, from time to time. If we accept your request for an Account, you may choose a username and password and we will issue you with a User Identification Code. You must provide accurate, up-to-date and complete information during the registration process and you must update such information to keep it accurate, up-to-date and complete.
3.5 To register an Account as a Vendor's Agent, you must if you operate a livestock agents business in NSW or QLD, be an appropriately licensed stock and station agent, which permits you to deal with the sale and purchase of Livestock. In other states and territories of Australia, you must provide evidence that you operate a livestock agent business and have done so for a reasonable period and also provide to us, two satisfactory industry referees. In addition you must provide evidence of professional indemnity insurance for no less than $5 million dollars.
3.6 You are responsible for all activity on your Account and you must keep your User Identification Code, username and password details confidential and secure from unauthorised use. You will immediately notify us of any unauthorised use on your Account and you must take immediate steps to re-secure your Account in the event of unauthorised use. We may refer fraudulent or abusive or illegal activity to the relevant authorities.
We own or licence all right, title and interest in FarmGate Auctions. We grant you a non-exclusive, royalty-free, revocable, Australia-wide, non-transferrable licence to use FarmGate Auctions in accordance with this Agreement. All other uses are strictly prohibited without our prior written consent.
6.1 By accessing and/or using FarmGate Auctions, you represent and warrant that:
(a) you are not subject to an Insolvency Event;
(b) (if you are a Vendor) you will deliver to the Purchaser clear title to the Lot sold unless the Purchaser fails to meet the Contract of Sale conditions;
(c) (if you are a Vendor) you will give your Vendor's Agent sole agency until five (5) days post sale of the Livestock;
(d) (if you are a Vendor's Agent) if you operate in NSW and QLD, you are appropriately licensed and where you operate in other states and territories, you are an experienced and reputable livestock agent, in the state or territory in which you are dealing to sell Livestock on FarmGate Auctions on behalf of the Vendor;
(e) (if you are a Vendor's Agent) you have and will maintain while a User, professional indemnity insurance of at least $5,000,000. You will maintain all such insurance policies while a User of FarmGate Auctions and if required by us, provide a Certificate of Currency;
(f) (if you are a Vendor or Vendor's Agent) you will provide accurate, up-to-date and complete information when completing the Lot Assessment Form;
(g) (if you are a Purchaser) you will pay for any Lot or Livestock purchased unless the Vendor cannot meet the Contract of Sale conditions;
(h) (if you are a Vendor's Agent or Purchaser's Agent) you have lawful authority to act on behalf and represent each Vendor and Purchaser you purport to represent;
(i) you will not interfere with any Auction, the sale process, the price of any Lot being Auctioned, Listings or any data on FarmGate Auctions;
(j) you will not copy or use, in whole or in part, any of the content on FarmGate Auctions; and
(k) your use FarmGate Auctions will be in accordance with the licence granted in clause 5.
7. Prohibited acts
7.1 When accessing and/or using FarmGate Auctions, you must not:
(a) reproduce, retransmit, reverse engineer, distribute, disseminate, sell, publish, broadcast or circulate FarmGate Auctions, or any part of it, to any third-party;
(b) post false, misleading, deceptive, inaccurate, unlawful or offensive content and/or information on FarmGate Auctions;
(c) hack or distribute viruses or do anything to undermine the stability, functionality, reputation or integrity of FarmGate Auctions and FarmGate; and
(d) facilitate or assist any third party to do any of the above acts.
8. Fees and payment
8.1 There is no fee for a Bidder or Purchaser to use FarmGate Auctions.
8.2 We charge Vendor's Agents the fee set out on FarmGate Auctions on a per head basis for each head of Livestock listed (Listing Fee).
8.3 We reserve the right to change the Listing Fee by written notice on FarmGate Auctions and such changes will apply to all Listings uploaded after seven (7) days’ notice on FarmGate Auctions. If you do not accept our amended Listing Fee, you may terminate this Agreement in accordance with clause 23.
8.4 The Vendor's Agents must pay the Listing Fee within seven (7) Business Days from the invoice date.
8.5 Where a Vendor's Agent fails to pay the invoice by the due date, we are entitled to, at our sole discretion:
(a) refuse to Auction any unsold Lots and/or to accept any new Listings from the Vendor and/or the Vendor's Agent;
(b) suspend or cancel the Vendor and/or Vendor's Agent's Account;
(c) charge the Vendor's Agent interest on the outstanding sum at the rate of 1.5% per month, calculated daily; and/or
(d) engage debt collection services for the collection of unpaid Listing Fees and/or commence legal proceedings for any outstanding amounts owing to us.
9. Processing and technological issues
9.1 We use third-party service providers to host FarmGate Auctions. We cannot guarantee the continuous and uninterrupted operation of FarmGate Auctions and we will not be liable for any interruption, unavailability or outage to FarmGate Auctions as a result of such third-party service providers.
9.2 You agree that if there are any technological, processing or other issues during an Auction, we may, at our sole discretion:
(a) close the Auction and re-open the Auction at a later time;
(b) extend the conclusion time of the Auction; or
(c) cancel the Auction and conduct the Auction again.
9.3 When exercising our rights under clause 9.2, to the extent permitted by law, we will not be responsible or liable for any loss, expense, cost, claim or damage arising from any bids which are:
(a) not processed due to a technical error;
(b) not received after the close of the Auction; or
(c) not received at all due to cancelation of the Auction.
9.4 To the extent permitted by law, you agree that we are not liable to you for any loss, expense, cost, claim or damage of whatsoever nature due to any malfunction, interruption, security breach or breakdown of FarmGate Auctions contributed to or caused by factors outside of our reasonable control.
10.1 We provide an online platform to enable Livestock to be promoted for sale to potential Purchasers. We take no active part or responsibility in the Listing or the subsequent Contract of Sale arising from a successful Auction, particularly the delivery of, and payment for, Livestock.
10.2 We do not know or represent any of the following:
(a) the existence, merchantability, condition or quality of any Lot or Livestock advertised on FarmGate Auctions;
(b) the truth, accuracy, completeness, content or information of any Listing published on FarmGate Auctions. All Users should make their own enquiries and satisfy themselves as to the truth and accuracy of any such information and should seek independent expert advice regarding the Livestock sought to be purchased or sold; and
(c) the capacity of a Purchaser or Vendor's Agent to enter into a Contract of Sale, or deliver and/or pay for a Lot or any Livestock within a Lot.
10.3 We are not a party to any Contract of Sale entered into between the Purchaser and Vendor's Agent as a result of a successful Auction.
10.4 We are not liable to you for any loss or damage howsoever incurred by you or any other person as a result of your reliance on, or any other person’s reliance on the information and data contained in a Listing or on FarmGate Auctions.
10.5 We have no control over the conduct of Users on FarmGate Auctions.
10.6 We do not accept responsibility or liability for any User or any other person for any computer virus attacks, hacking, interference or damage to any User’s computer or communication system or network which arises in connection with any use of FarmGate Auctions or any linked website and the User is responsible for taking their own precautions to ensure that their use of FarmGate Auctions does not expose them or other persons to the risk of viruses, hacking, bugs, file corruption or other forms of interference.
10.7 Each User accepts sole responsibility and liability for their acts, errors and omissions and the legality, completeness and accuracy of any information, content or data which a User uploads or references, directly or indirectly on or through FarmGate Auctions.
10.8 Each User accepts that there are inherent risks when trading online and using FarmGate Auctions, including the possibility of relying on inaccurate and incomplete information, persons who will not collect or pay for Livestock and dealing with fraudulent persons. We are not liable to you for any information on or referenced through FarmGate Auctions or the acts, errors, omissions or negligence of any User or other party. You use FarmGate Auctions at your own risk.
10.9 Each User is solely responsible for ensuring that its Listing, bidding and selling and all other activities conducted on FarmGate Auctions are lawful.
11. Consumer law rights
The Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and other similar consumer protection laws and regulations may imply certain rights, consumer guarantees, warranties and remedies relating to FarmGate Auctions which cannot be excluded, restricted, qualified or modified by us (Non-Excludable Rights). Nothing in this Agreement excludes or attempts to exclude your Non-Excludable Rights as a consumer under the ACL.
12.1 To the extent permitted by law, we exclude all implied warranties, terms and conditions and limit our liability for a breach of any Non-Excludable Rights to the supply of the services again or the payment of the cost of having the services supplied again.
12.2 We are not liable for any loss including indirect loss or economic loss of whatever nature incurred by any User or third party in connection with use or reliance on any information, content or data in connection with FarmGate Auctions.
12.3 If any User has a dispute with another User, each User releases us and our servants, agents and contractors from all claims, demands and losses of whatever kind or nature arising out of or in any way connected with such dispute.
12.4 Each User agrees to indemnify us against all loss, including any indirect and economic loss of whatever kind or nature and from any other damage, liability, claims, costs and expenses incurred or made against FarmGate by any person in connection with their use of FarmGate Auctions.
12.5 The Vendor's Agent is engaged by and is acting for and on behalf of a Vendor. Vendors and Vendor's Agents agree to indemnify us against any loss arising out of any act, error, omission, default or negligence of the Vendor or the Vendor's Agent.
12.6 Each User acknowledges that FarmGate is not liable for any loss, claim, cost, expense or damage resulting from the acts, negligence, omissions or default of any User of FarmGate Auctions.
13. Lot Assessment Forms
13.1 The Vendor's Agent is responsible for carrying out an assessment of the Livestock being offered and completing the Lot Assessment Form designated by FarmGate, no more than ten (10) days before the Auction date.
13.2 It is the sole responsibility of the Vendor's Agent and the Vendor to ensure that the information provided in the Lot Assessment Form is complete, accurate, complies with all applicable laws, is not misleading and does not omit material information that the Purchaser would reasonably expect to be disclosed.
13.3 The Vendor's Agent and Vendor agree to accept full responsibility for any material or information uploaded by them to FarmGate Auctions.
13.4 The Vendor's Agent and Vendor must not make any false, misleading, incomplete or deceitful representations or statements concerning the Lot or Livestock. The Vendor's Agent and the Vendor remain liable for the accuracy, content and legality of the Lot and Livestock listed and the Lot Assessment.
13.5 A Lot Assessment Form must be signed by the Vendor and the Vendor's Agent before the Lot can be listed for sale. This may be done by signing your digital signature on our mobile application or at the time of uploading the Lot Assessment Form via your desktop to our system, certifying that you hold a complete original Lot Assessment Form and that the Vendor’s Declaration and the Vendor's Agent's Declaration, set out within each Lot Assessment Form have been fully and correctly signed.
13.6 By signing the Lot Assessment Form, the Vendor's Agent and the Vendor warrant the accuracy, completeness and legality of the Lot.
13.7 The Vendor's Agent must clearly specify in the Lot Assessment Form if there are any special conditions or restrictions on the sale of the Lot, for example, if the Lot comes from a tick area, in which case it becomes the Purchaser's responsibility to ensure that such purchased Livestock can be transported to their chosen destination. If the Lot Assessment Form does not advise that the Lot comes from a tick area, the Vendor warrants that it does not come from a tick area.
13.8 Any photographs, graphics, videos or other material provided to us and/or uploaded by a Vendor's Agent must be dated and provide an accurate and unaltered representation of the Lot. Photographs, graphics or videos which are not related to the Lot to be offered, are not permitted to be used.
13.9 All Lots listed must comply with the Listing requirements specified by FarmGate Auctions, from time to time. We may delist any Lot which in our view does not comply with such requirements.
14.1 A Vendor's Agent may list Livestock for sale at the next scheduled Auction as displayed on FarmGate Auctions or may book a specific date and time for the Auction through FarmGate Auctions.
14.2 Each Auction will have a set commencement time. Auction times will be in Australian Eastern Standard Time or Australian Eastern Daylight Time.
14.3 We will determine, at our sole discretion, the order of sale in which Lots will be submitted for Auction.
14.4 A Vendor or Vendor's Agent must nominate a minimum reserve sale price. The Vendor and Vendor's Agent agree that once bidding meets or exceeds the minimum reserve sale price, the Vendor will sell the Livestock to the highest Bidder.
14.5 The minimum reserve sale price of a Lot may be modified by the Vendor's Agent up until one (1) hour before the commencement of the Auction.
14.6 A Vendor or Vendor's Agent may withdraw a Lot up to one (1) hour prior to the commencement of the Auction by contacting the number set out in the FAQs. Lots that do not have a start price and minimum reserve sale price set when the Auction commences will automatically be withdrawn from that Auction and can be re-offered at a subsequent Auction within a period of (7) seven days from the Auction. Charges may apply when re-offering withdrawn Lots, as set out in the FAQs.
14.7 A User may bid by placing a single bid one at a time or through our auto bid system on FarmGate Auctions. A User may also limit the maximum bids that will be placed by them during the Auction.
14.8 A bid is only made when it is recorded on our FarmGate Auctions system bidding records.
14.9 A Bidder may only advance their bidding by the increments set out on FarmGate Auctions, as determined by the Vendor's Agent prior to Auction.
14.10 Auction sales will either be on:
(a) a per head basis, where the price is in dollars and cents per head for all Livestock in a Lot; or
(b) on a live weight basis, where the price is in cents per kilogram for the aggregate live weight ascertained by certified scales for all Livestock in a Lot.
14.11 Where the Vendor's Agent selects on the Listing that the sale is on a live weight basis, the Vendor's Agent must detail the certified scales where the Livestock are to be weighed in the Lot Assessment Form. The Vendor will bear the cost of weighing the Lot and providing a certified weights certificate to the Purchaser, unless the Vendor and Purchaser agree otherwise.
14.12 You agree that we have the right to close, cancel or suspend an Auction before and during the scheduled time including in circumstances in which we suspect or become aware of any of the following:
(a) there is fraudulent or malicious bidding;
(b) there are processing errors, technological errors or failures; or
(c) the content or information provided regarding the Lot or Livestock is inaccurate or misleading.
14.13 If the highest bid equals or exceeds the reserve price then immediately on the conclusion of an Auction a Contract of Sale is formed between the highest Bidder (as Purchaser) and the Vendor's Agent (as agent for the Vendor) at the price determined by the Auction and governed by these terms.
14.14 We may refuse to accept any bid that in our opinion is not in the best interest of the Vendor.
14.15 A Bidder may not withdraw a bid. Where a bid is mistakenly placed by a Bidder, we may, at our sole discretion, permit it to be withdrawn. If we permit such withdrawal, it will be subject to such terms and conditions as we might reasonably impose, from time to time.
14.16 A Vendor's Agent or Vendor has the right to bid for their Lot through FarmGate Auctions, only where such bid(s) is/are publicly disclosed on FarmGate Auctions, such as via the Lot Assessment Forms. The Vendor or Vendor's Agent is restricted to the number of bids noted on the Lot Assessment Form.
14.17 If there is any dispute regarding bidding, we are the sole arbitrator and our decision is final and binding.
14.18 A Lot will be passed in if at the completion of the Auction for the Lot, the highest bid is less than the reserve price.
14.19 Where a Lot is passed in, the Bidder who makes the highest underbid may, within the time period specified by us, increase their bid to a price equal to the reserve price, in which case the Lot will be deemed sold at that price.
14.20 Where a Lot offered for Auction does not reach the nominated reserve price, the Vendor's Agent will be entitled to re-offer the Lot at a further online Auction, without further charge, provided that any Lots must be re-offered for Auction within the following time frames set out below:
(a) Cattle – seven (7) days;
(b) Lambs – seven (7) days; or
(c) Sheep – seven (7) days,
otherwise a new Lot Assessment must be conducted and the Livestock relisted with up-to-date assessment information.
14.21 All bidding is in Australian dollars.
14.22 All Auctions will be conducted on the basis that the bid and sale price are exclusive of GST, where applicable. GST is added to the price of the Lots sold following the Auction. GST is payable by the Purchaser who in return will receive a tax invoice from the Vendor's Agent or Vendor.
14.23 Purchasers acknowledge that they purchase any Lot and Livestock on a caveat emptor basis.
15. Sale and purchase of Livestock
15.1 The Vendor's Agent on behalf of the Vendor confirms and warrants that the Vendor is the beneficial owner of the Lot, free from all mortgages, charges, liens, encumbrances and adverse interests and is entitled to sell, deliver and transfer unencumbered title to the Purchaser. Where the Lot or Livestock are subject to a charge or encumbrance, the Vendor and Vendor's Agent must ensure that such charge or encumbrance is discharged on or prior to payment.
15.2 The Vendor and Vendor's Agent acknowledge and agree that all Livestock as at Listing and completion of a sale must have either an internal or an external National Livestock Identification System (NLIS) device and must otherwise comply with all applicable laws and regulations regarding tagging and identification. Where Livestock have an internal NLIS device, the Vendor and Vendor's Agent must clearly disclose this information on the Lot Assessment Form and Listing.
15.3 Vendors and Purchasers must comply with all state and/or national regulations applicable to Livestock traceability, including the transferring of Livestock through a new PIC.
15.4 The Purchaser must complete the NLIS transfer.
15.5 The Vendor and/or the Vendor's Agent is/are responsible for any adjustments to the sale price offered to be paid by Purchaser due to misdescription, misrepresentation, inaccuracy or incompleteness of information in the Lot Assessment Forms and/or Listing. The Vendor's Agent is responsible for adjusting the sale price with the Purchaser.
16. Condition of Livestock upon delivery
16.1 The Vendor warrants that as at delivery, the Lot will be delivered in accordance with the condition described in the Lot Assessment Form and in the Listing, subject to being within the acceptable tolerances set out in this Agreement.
16.2 The Purchaser is responsible for inspecting the Livestock prior to delivery and raising any issues with the Vendor and/or the Vendor's Agent.
16.3 If the Purchaser notifies the Vendor that it wishes to inspect the Livestock, the Vendor and/or Vendor's Agent must make available the Livestock for inspection by the Purchaser prior to delivery, at the date, time and location agreed between the parties acting reasonably.
17. Payment and delivery of Livestock
17.1 The Purchaser must pay for the Livestock in cleared funds within seven (7) days from the Auction date, failing which the Purchaser will have committed a fundamental breach of the Contract of Sale.
17.2 The Vendor will deliver and the Purchaser will collect the Livestock at the time and place as agreed between the Purchaser and Vendor.
17.3 The Purchaser must collect the Livestock within seven (7) days from the Auction date but not prior to paying for the Livestock. A failure by the Purchaser to comply with this clause 17.3 will constitute a fundamental breach of the Contract of Sale.
17.4 Notwithstanding clauses 17.1 to 17.3, the Vendor and Purchaser may after the Auction date make their own arrangements regarding payment of the purchase price, the date and method of transport, unless otherwise stated in the Listing.
17.5 If prior to collection, there is any loss of Livestock for whatever reason or Livestock become lame, blind or diseased, then the Vendor or Vendor's Agent must disclose same to the Purchaser and Purchaser's Agent as soon as possible. The agreed price for the Lot will be adjusted by deducting the value of each animal which cannot be supplied in its advertised condition (unless the condition is disclosed in the Listing).
17.6 Within forty-eight (48) hours from delivery of the Livestock, a Purchaser, acting in good faith, may reject some or all of the Livestock if the Purchaser identifies undisclosed latent defects (other than minor defects) in the Livestock or there is a gross misdescription in the Listing or other manifest or obvious error(s).
17.7 Where the Purchaser rejects the Livestock in accordance with clause 17.6, the Vendor is responsible for all costs associated with returning the defective or misdescribed Livestock. Such costs will be adjusted on a pro rata basis based on the quantity of defective or misdescribed Livestock.
18. Disease, quarantine and movement restrictions
18.1 The Vendor will indemnify the Purchaser against any loss resulting from the Vendor's violation of quarantine restrictions or movement restrictions on any Livestock, unless such restrictions were disclosed in the Lot Assessment Form or otherwise in the Listing.
18.2 The Vendor agrees to refund the sale price of any animal comprised within a Lot sold where the Purchaser presents a condemnation certificate specifying one or more of the diseases set out below within seven (7) days of delivery of the Lot:
actinobacillosis, actinomycosis, anthrax, arthritis, buckshot, cancer, icterus, illegal residues, lymphadenitis, multiple abscesses, peritonitis, pyaemia, red water, tick fever and uraemia.
18.3 The Purchaser of Livestock from a tick area must ensure that such Livestock can be transported to the Purchaser's proposed destination.
19. Risk and title
19.1 The title to the Livestock sold at Auction will not pass to the Purchaser until the full purchase price for the Lot has been paid by the Purchaser to the Vendor.
19.2 Risk will pass to the Purchaser at the time and place of collection or upon loading the Livestock to the Purchaser's transport vehicle.
19.3 If, prior to payment of the full purchase price, the Purchaser takes possession of the Lot or any Livestock within the Lot, then risk will pass to the Purchaser at the time set out in clause 19.2. However, the Purchaser must not dispose of or deal with the Lot or any of the Livestock in any manner inconsistent with the Vendor's title and ownership.
20. Statutory charges
The Vendor is responsible for payment of any Cattle Transaction Levy or any other applicable tax (including GST) or other levy imposed by any competent authority on the sale of the Lot.
21. Purchaser’s default
Subject to the terms of this Agreement, if collection of Livestock has occurred and the purchase price has not been paid by a Purchaser, the Purchaser authorises the Vendor and its servants and agents to enter onto any premises occupied by the Purchaser or its agents where such Livestock is located, at any time and without notice, to take possession of the Livestock sold at Auction and the Purchaser agrees to indemnify the Vendor for any loss, costs or expenses incurred as a result of such action.
Dispute between Users
22.1 Subject to the Contract of Sale, if there is a dispute between Users with respect to any Livestock, including a dispute regarding the Livestock not matching the advertised description, being deceased, lame or any other dispute, the party claiming a dispute must give written notice to the other party, sufficiently detailing the grounds for the dispute, within forty-eight (48) hours after receiving the Livestock.
22.2 Without limiting the application of clause 22.1, the Purchaser is entitled to raise a dispute in the following circumstances:
(a) the breed, age or gender of the livestockis materially different to the specification in the Listing;
(b) cattle described in a Listing as calves, vealers, weaners or yearlings (of any gender) do not have milk teeth;
(c) cattle described in the catalogue as milk or two teeth, any sex, must be delivered as such and no tolerance outside that is acceptable;
(d) sheep described in the Listing as new season lambs or lambs (of any gender) do not have milk teeth;
(e) sheep described in a Listing as hoggets (of any gender) do not have two (2) teeth;
(f) with respect to cattle, the average live weight at delivery exceeds the permitted tolerance of + or – 3%;
(g) with respect to sheep, the average live weight at delivery exceeds the permitted tolerance of + or – 5%; and
(h) Livestock of any sex described as having 4 + teeth have a 10% tolerance into the next age group.
22.3 Notwithstanding clause 22.2, if there is a misdescription of the unborn offspring of purchased Livestock, a tolerance level of 10% of the total offspring purchased applies. A claimed misdescription of 10% or less of the total offspring purchased is not deemed a dispute for the purposes of this clause 22.
22.4 Unless otherwise agreed between the Vendor and Purchaser, the Vendor is permitted to deliver Livestock between 95% and 105% of the number of head listed in the Lot Assessment Form.
22.5 Within ten (10) Business Days after the party receives written notice of the dispute in accordance with clause 22.1, the parties will arrange and attend a meeting in person or by telephone, at least once (or agree on another method), in an attempt to resolve the dispute in good faith.
22.6 Where the parties are unable to resolve the dispute in accordance with clause 22.5, the dispute will be referred to a panel of three (3) licensed stock and station agents appointed by us (Arbitration Panel).
22.7 Where a dispute is referred to an Arbitration Panel in accordance with clause 22.6, each party to the dispute must:
(a) complete the FarmGate Auctions Arbitration Form and provide it to us;
(b) pay us a service fee of $750 (ex GST) or such other amount as notified by us for the Arbitration Panel; and
(c) outline in writing to us the nature of the dispute and all matters the parties reasonably consider relevant to the dispute. The parties must provide us with evidence as reasonably requested by us or the Arbitration Panel for a decision to be made regarding the dispute.
22.8 To the extent permitted by law, we may determine, at our absolute discretion, which stock and station agent or agents are appointed to resolve the dispute and the rules applying to the arbitration and the awarding of costs. Where no such rules have been determined by us, the arbitration will be conducted in accordance with the Commercial Arbitration Legislation of New South Wales.
22.9 To the extent permitted by law, the decision of the Arbitration Panel is final and binding.
Dispute between FarmGate and Users
22.10 In the event of a dispute arising from, or in connection with, this Agreement between FarmGate and a User, the User must give written notice to FarmGate detailing the dispute and proposed resolution. Within seven (7) Business Days after FarmGate's receipt of the notice, the parties will arrange and attend a meeting in person or by telephone, at least once (or agree on another method), in an attempt to resolve the dispute in good faith prior to commencing litigation or dispute resolution proceedings.
23.1 You may cancel your Account at any time by sending us an email to firstname.lastname@example.org. If a Vendor's Agent cancels or deactivates their Account, any Listing associated with the Account will be removed.
23.2 We may terminate this Agreement for convenience by giving you thirty (30) days' written notice via FarmGate Auctions or an email to the email address associated with your Account.
23.3 At our sole discretion, we may suspend your Account or terminate this Agreement immediately without notice if:
(a) we have received complaints about you from other Users;
(b) you suffer an Insolvency Event;
(c) you fail to meet the eligibility criteria to use FarmGate Auctions; and/or
(d) you are in breach of this Agreement, regulations, applicable laws or third-party rights.
24.1 Jurisdiction: This Agreement is governed by the laws of New South Wales and the parties hereby agree to submit to the non-exclusive jurisdiction of the courts in New South Wales and its appellate courts.
24.2 The Contract of Sale is governed by the laws of the state or territory from which the Lot is offered for sale by the Vendor to the Purchaser, unless otherwise agreed between the parties to the Contract of Sale.
24.3 Severability: If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
24.4 Waiver: A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
24.5 Assignment: You may not assign, transfer or delegate this Agreement and your rights and obligations under this Agreement without our prior written consent. We may without restriction assign, transfer or delegate this Agreement and any rights and obligations under this Agreement, at our sole discretion, with thirty (30) days prior written notice.
24.6 Force Majeure: If performance of this Agreement or any obligation under this Agreement is prevented, restricted or interfered with by reasons of Force Majeure and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision will be suspended to the extent necessary by such event. The affected party will use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the Force Majeure is removed.
25.1 Unless the contrary intention appears, a reference in this Agreement to:
(a) (singular includes plural) the singular includes the plural and vice versa;
(b) (person) the word "person" includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association;
(c) (administrators, successors, substitutes) a particular person includes reference to the person's administrators, successors and substitutes (including, persons taking by novation) and assigns;
(d) (meaning not limited) the words "include", "including", "for example" or "such as" are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(e) (headings) headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Agreement; and
(f) (dollars) a reference to dollars is a reference to the lawful currency of Australia.
In this Agreement, unless the context otherwise requires:
Account is defined at clause 3.1;
Agreement means these FarmGate Auctions Terms and Conditions of Use Incorporating Terms and Conditions of the Contract of Sale;
Agent means either a Purchaser's Agent or a Vendor's Agent, as applicable;
Arbitration Panel is defined in clause 22.6;
Auction means a sale via FarmGate Auctions in which a Lot is sold to the highest Bidder where the bid equals or exceeds the Vendor's minimum sale reserve price;
Bidder means a User making a bid using FarmGate Auctions;
Business Days means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in New South Wales;
Cattle Transaction Levy has the meaning given to it in the Cattle Transactions Levy Act 1997 (Cth);
Commercial Arbitration Legislation of New South Wales means the Commercial Arbitration Act 2010 (NSW) and the equivalent legislation in each other state and territory of Australia;
Contract of Sale means the contract between the Vendor's Agent as Agent for the Vendor and Purchaser for the sale and purchase of the Vendor's Lot;
FarmGate Auctions means the FarmGate online platform accessible by downloading our mobile application "FarmGate Auctions" from the App Store or by visiting www.farmgateauctions.com.au;
FarmGate Auctions Arbitration Form means the form to be completed by the Vendor's Agent and/or Vendor and Purchaser to appoint an Arbitration Panel to resolve the dispute;
Force Majeure means any event or circumstances beyond the reasonable control of a party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent that it results in a party being unable to perform an obligation under this Agreement;
Goods and Services Tax has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Insolvency Event means any of the following:
(a) (company) an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the company;
(b) (company)an administrator, provisional liquidator, liquidator or person having a similar function under the laws of any relevant jurisdiction is appointed in respect of the company or any action is taken to appoint such a person and the action is not stayed, dismissed or withdrawn within ten (10) Business Days;
(c) (company) the company is deregistered under the Corporations Act 2001 (Cth) or other legislation or notice of its proposed deregistration is given to it;
(d) (individual) a person is or states that the person is unable to pay from the person's own money all the person's debts as and when they become due;
(e) (individual) a person is taken or must be presumed to be insolvent or unable to pay the person's debts under any applicable legislation; and
(f) (individual) petition for the making of a sequestration order against the estate of a person is presented and not stayed, dismissed or withdrawn within (10) Business Days, or a person presents a petition against himself or herself; or
(g) anything analogous to or of a similar effect to anything described above under the laws of any relevant jurisdiction in respect to individual or company.
Listing means any Lot listed for Auction on FarmGate Auctions by a Vendor's Agent and part of which comprises the Lot Assessment Form;
Listing Fee is defined at clause 8.2;
Livestock mean cattle and sheep;
Lot means the Livestock listed for sale in a Listing on FarmGate Auctions;
Lot Assessment Form means the forms which the Vendor's Agent and Vendor must complete and sign at the time of Listing a Lot for Auction and which principally forms the information contained in the Listing;
National Livestock Identification System is defined in clause 15.2;
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth);
Property Identification Code is defined in clause 3.4;
Purchaser means a purchaser of a Lot on FarmGate Auctions and includes the Purchaser's Agent, where applicable;
Purchaser's Agent means a person authorised by the Purchaser to act as their agent for the purchase of the Lot;
User means a person who is a registered Account holder of FarmGate Auctions;
User Identification Code means the unique identification code issued to each User by FarmGate Auctions as part of the Account details;
Vendor means the vendor of a Lot specified in the Lot Assessment Form; and
Vendor's Agent means an agent who: (a) if operating in NSW and/or QLD, is licensed as a stock and station agent in the state or territory in which they operate to buy and sell Livestock. Where the Vendors Agent operates in other states (excluding NSW and QLD, such agent must be a reputable and experienced livestock agent approved by us, (b) completes the Lot Assessment and Listing on behalf of the Vendor, (c) represents they are acting as agent for the Vendor and (d) provides evidence to us of professional indemnity insurance for no less than $5 million.
FarmGate Auctions is Australia’s newest livestock auction mobile app. With just a few clicks, Livestock Agents can assess, market and sell their livestock without leaving the paddock, creating a better experience for the animals, and helping sellers to save money and time.
Also available on desktop, FarmGate Auctions provides a streamlined process for buyers and sellers to watch the progress of upcoming and live auctions across Australia, add and manage lots for sale as well as bid for and purchase livestock from the office or on the go.