These Agency Terms of Sale and Purchase apply to all Contracts arising from use of the Cloud Yards Platform.
By completing an Application and becoming a User of the Cloud Yards Platform you as an Agency, and/or a Purchaser, and/or a Vendor accept these Agency Terms of Sale and Purchase (as between Agency, and/or Purchaser, and or Vendor); and agree that these Agency Terms of Sale and Purchase shall apply to all Contracts arising from use of the Cloud Yards Platform.
1. Definitions
1.1 “Agency” means Livestock agency business, nominated by a User in its/their Application to represent it in all Dealings.
1.2 “Animal Welfare Policy” means the animal welfare policy published by Cloud Yards on the Website from time to time.
1.3 “Application” means whatever form Cloud Yards deems appropriate, from time to time, for completion, and execution by you and your Agency, prior to Cloud Yards considering any application to become a User.
1.4 “Auction/s” means an auction sale operated by Cloud Yards on the Website.
1.5 “Auction Listing” means any page advertising Livestock for sale on the Cloud Yards Platform, and by way of Auction.
1.6 “Auction Listing Fees” means listing fees payable by the Vendor’s Agency to Cloud Yards, pursuant to the Terms of Cloud Yards Platform Use, including for:
1.6.1 Sheep: at 1% of the Purchase Price, capped at $1 per head, excluding GST; and
1.6.2 Cattle (Beef and Dairy) and Deer: at 1% of the Purchase Price, capped at $10 per head, excluding GST.
1.7 “Cloud Yards” means Cloud Yards Limited.
1.8 “Cloud Yards Platform” means the online Livestock market place operated on the Website.
1.9 “Commission” means the headage or percentage of the Purchase Price that the Agency is entitled to be paid for acting as agent in the Contract at the rates specified by the Agency from time to time.
1.10 “Contract/s” means a contract for the sale and purchase of a Lot, arising from use of the Cloud Yards Platform; and whether by way of Auction Listing, or Non-Auction Listing; and pursuant to:
1.10.1 the particulars (including, but not limited to, the number, description, and Purchase Price and (if applicable) the Purchase Price methodology) of the Lot; and
1.10.2 these Agency Terms of Sale and Purchase.
1.11 “Date of the Contract” means the date that:
1.11.1 In the case of an Auction Listing:
(a) the Purchaser is the highest bidder on a Lot at the time of the Listing close, and the bid is equal to or above the reserve price; or
(b) the Purchaser bid the buy now price; or
(c) the Purchaser accepts the fixed price offer after the Listing close; and
1.11.2 In the case of a Non-Auction Listing, the date that the vendor’s and purchaser’s Agents confirm the agreement for the sale and purchase of a Lot; and which date it is accepted is confirmed by the Vendor’s Agent and is final and binding.
1.12 “Dealing/s” means all dealings on the Cloud Yards Platform, including (but not limited to) any:
1.12.1 Listing;
1.12.2 Lot;
1.12.3 Contract.
1.13 “Delivery Date” means the date agreed for the delivery of the Livestock by the Vendor to the Purchaser.
1.14 “Delivery/Deliver” means the loading of the Livestock onto the Purchaser’s nominated haulage transport.
1.15 “Eligibility Criteria” means you must:
1.15.1 be over the age of 18, if you are a natural person; and
1.15.2 have completed an Application, to a standard satisfactory to Cloud Yards. Such Application must include the nomination of an Agency, and the acceptance of that nomination by that Agency.
1.16 “Listing/Listed/List” means any page advertising Livestock for sale on the Cloud Yards Platform; and whether by way of Auction Listing or Non-Auction Listing.
1.17 “Livestock” means animals kept for the production of food, wool, and skin on agricultural land and includes their unborn young.
1.18 “Lot/s” means Livestock Listed for sale on the Cloud Yards Platform.
1.19 “Non-Auction Listing” means any page advertising Livestock for sale on the Cloud Yards Platform, and not by way of Auction.
1.20 “PPSA” means the Personal Property Securities Act 1999.
1.21 “PPSR” means the Personal Property Securities Register.
1.22 “Purchaser/s” means a User that is a buying a Lot pursuant to a Contract.
1.23 “Purchase Price” means the total price in New Zealand dollars agreed to be paid by the Purchaser for the Lot, pursuant to the Contract, and excluding GST and the cost of Delivery.
1.24 “User/you/your” means a person, or where there is a legal entity, that legal entity, that:
1.24.1 meets the Eligibility Criteria; and
1.24.2 has had their/its Application to become a User of the Cloud Yards Platform accepted by Cloud Yards.
1.25 “Vendor/s” means a User that is selling a Lot pursuant to a Contract.
1.26 “Website” means https://cloudyards.co.nz.
2. Agency
2.1 An Agency may act as agent for the Vendor and/or Purchaser of any Dealing.
2.2 Where an Agency acts for a Vendor pursuant to any Dealing they will use their best endeavours to satisfy themselves of the bona fides of the Purchaser, but they do not warrant the financial position of the Purchaser or their ability to perform the Contract.
2.3 Where an Agency acts for a Purchaser pursuant to any Dealing they will use their best endeavours to satisfy themselves that the Livestock is available for Delivery as intended by the Contract but they do not warrant the quality or characteristics of the Livestock.
2.4 When an Agency is agent for a Purchaser that is a meat processing company the Agency shall have no responsibility to the Vendor for payment of the Purchase Price plus GST and the Vendor’s right of recovery shall be direct from the meat processing company.
2.5 An Agency will use their best endeavours to ensure that there is:
2.5.1 no loss of or damage to the Livestock between the Date of the Contract and Delivery, and that there is no failure to Deliver or unreasonable delay in Delivery;
2.5.2 no failure to pay the Purchase Price plus GST as agreed in the Contract; but they give no warranty or accept any liability for any such loss or damage or failure occurring.
3. Payments and Delivery
3.1 Where an Agency acts for the Vendor, you as Vendor agree:
3.1.1 to ensure the Livestock sold is available for Delivery on the Delivery Date;
3.1.2 to ensure that between the Date of the Contract and Delivery, the Livestock will be properly fed and managed in a manner consistent with good animal husbandry, and always in accordance with the Animal Welfare Policy, so as to ensure the Livestock are Delivered in the same condition as inspected at or around the Date of the Contract;
3.1.3 that upon Delivery you are passing over unencumbered Livestock, the title in which will pass to the Purchaser on payment of the Purchase Price plus GST;
3.1.4 that risk in the Livestock remains with you until Delivery;
3.1.5 that your Agency’s role is limited as appears in clause 2;
3.1.6 that your Agency’s obligation will be to use their best endeavours to collect the Purchase Price plus GST from the Purchaser or the Purchaser’s Agency and account to you for that Purchase Price less Commission and, in the case of an Auction Listing – less the Auction Listing Fees, within 14 days after Deliver or Delivery Date (whichever is the earlier);
3.1.7 your Agency is not obliged to pay or credit you with any part of the Purchase Price until your Agency has received the full amount of the Purchase Price from the Purchaser and where relevant, all NAIT recording obligations in respect of the Livestock have been completed;
3.1.8 that if your Agency elects to pay you the Purchase Price before your Agency receives payment from the Purchaser, you thereupon assign to your Agency all your rights in Contract to recover that Purchase Price from the Purchaser as if your Agency were the Vendor of the Livestock in the Contract and you agree to provide your Agency with all assistance in that recovery.
3.2 Where an Agency acts for the Purchaser, you as Purchaser agree:
3.2.1 to pay the Purchase Price of the Livestock in the Contract plus GST in cleared and irreversible funds to your Agency no later than 14 days after Delivery or Delivery Date (whichever is the earlier);
3.2.2 that payment of the Purchase Price plus GST is to be made free of any deduction, set-off, counterclaim, legal or equitable claim, or any other claim whatsoever;
3.2.3 to uplift and transport the Livestock on Delivery at the your expense in all things;
3.2.4 that risk in the Livestock passes to you on Delivery;
3.2.5 that your Agency’s role is limited as appears in clause 2;
3.2.6 that title in the Livestock (as opposed to risk and possession) shall not pass to you until you pay the Purchase Price plus GST in full. Despite this, the Vendor may sue the Purchaser for the Purchase Price plus GST even though ownership of the Livestock has not passed to the Purchaser;
3.2.7 that if your Agency elects on your behalf to pay the Vendor the Purchase Price plus GST for the Livestock before receipt of the Purchase Price plus GST from you, at any time on or after 14 days after Delivery or Delivery Date (whichever is the earlier) then the Purchase Price plus GST shall be a debt due from you to your Agency and shall be payable to your Agency upon demand together with interest (assessed as provided in subclause (3.2.8)) from the 14th day after Delivery or Delivery Date (whichever is the earlier) to the date of payment (including after Judgment), and any solicitor and client costs incurred in any recovery action necessary;
3.2.8 if any amount due to be paid is not paid by you on due date, then interest will accrue on that sum at your Agency’s overdraft interest rate with its principal banker plus 7% and you will pay such interest on demand by your Agency or the Vendor;
3.2.9 from the Date of the Contract until payment of Purchase Price plus GST in full, you will keep the Livestock separate from any other livestock so that it remains identifiable, and will not grant any security or charge over that Livestock which might have priority over the interest of the Purchaser;
3.2.10 until such time as payment in full of the Purchase Price plus GST is made you agree to grant to the appropriate party, whether that be the Vendor or your Agency, a security interest in the Livestock to secure payment by you of the Purchase Price plus GST and for that purpose you agree:
(i) to do all things necessary to enable the registration of a financing statement on the PPSR to provide the appropriate party, whether that be the Vendor or your Agency, with a first ranking perfected security over the Livestock;
(ii) to waive your right to receive a copy of any verification statement in respect of any financing statement or financing change statement relating to the security interest granted. You waive your rights as debtor under ss116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA (to the extent that these rights may be waived under s107(2) of the PPSA and agree that nothing in s 114(1)(a), 120(1), 122, 133 or 134 of the PPSA will apply).
4. General Provisions Applying to Vendors and Purchasers
4.1 You authorise your Agency to collect and use any information (including personal information) about you for the purposes of any Dealing and for such purpose to carry out due diligence, credit checks and debtor enquiries. You authorise your Agency to provide such information about you to any third party for the purposes of that party carrying out credit checks, obtaining credit reports and for the purposes of debt collection if there is default in your obligations.
4.2 You agree that Livestock is supplied and acquired in trade and, therefore, that the Consumer Guarantees Act 1993 does not apply.
4.3 You authorise your Agency to enter upon any land where the Livestock are depastured to inspect the Livestock and/or take possession of the Livestock in the performance of either the Vendors or the Purchasers rights or obligations in the Dealing and you agree to indemnify your Agency for any cost or expense or liability occasioned thereby.