ABOUT THE CLOUD YARDS PLATFORM
1. What we do:
The Cloud Yards Platform provides Users with an online Livestock marketplace that facilitates the formation of Contracts between Vendors and Purchasers of Livestock (including via their Agency), and in accordance with:
1.1. this Agreement; and
1.2. Agency Terms of Sale and Purchase.
2. Contracts formed may arise as a result of an Auction Listing, or a Non-Auction Listing.
3. What we don’t do:
3.1. Not an auctioneer: while we may be referred to as an online Auction platform, neither Cloud Yards or the Cloud Yards Platform are auctioneers under the Auctioneers Act 2013.
3.2. Not a party to Contracts: we are not a party to any Contract arising from use of the Cloud Yards Platform. A Contract is between a Vendor and a Purchaser (including via their Agency), and in accordance with Agency Terms of Sale and Purchase.
3.3. No facilitation of payment and settlement: we do not facilitate payment and settlement of any Contract arising from use of the Cloud Yards Platform. Payment and settlement is dealt with between Vendors and Purchasers (including via their Agency), and in accordance with Agency Terms of Sale and Purchase.
3.4. Exclusions: we do not verify any information provided by a User of the Cloud Yards Platform.
USING THE CLOUD YARDS PLATFORM
4. Acknowledgment of Agreement and Agency Terms of Sale and Purchase: you, and your Agency, acknowledge that you, and your Agency, have read and accepted:
4.1. this Agreement; and
4.2. the Agency Terms of Sale and Purchase.
5. Variations to this Agreement and/or Agency Terms of Sale and Purchase:
5.1. We are entitled to add, change and/or remove clauses in this Agreement and/or the Agency Terms of Sale and Purchase by publishing the varied Agreement and/or Agency Terms of Sale and Purchase on the Website.
5.2. The effective date of the varied Agreement and/or Agency Terms of Sale and Purchase is the date the varied Agreement and/or Agency Terms of Sale and Purchase is/are published on the Cloud Yards Website.
5.3. Use of the Cloud Yards Platform after the date of publication of the varied Agreement and/or Agency Terms of Sale and Purchase will be your, and your Agency’s, consent to the varied Agreement and/or Agency Terms of Sale and Purchase.
5.4. If you, and/or your Agency, do not agree to the changes, then you must close your account and stop using the Cloud Yards Platform.
5.5. The varied Agreement and/or Agency Terms of Sale and Purchase will not apply to any Lot that is current at the effective date of the varied Agreement and/or Agency Terms of Sale and Purchase, and instead the Agreement and/or Agency Terms of Sale and Purchase that applied at the date of publication of the Listing will apply.
6. Provision of Cloud Yards Platform:
6.1. We provide the Cloud Yards Platform on an ‘as is’ and ‘as available’ basis. We make no representations, and give no warranties as to as the provision of the Cloud Yards Platform uninterrupted, timely, securely or error free.
6.2. We are not liable for any system unavailability, denial of service by third party action, or for any corruption of Data or information held by us, or for any consequential loss.
6.3. We may update the Cloud Yards Platform from time to time, but we are not obligated to. You, and your Agency, accept these updates to the Cloud Yards Platform, subject to the Agreement.
6.4. We do not warrant that we will continue to enable and support the Cloud Yards Platform.
7. Authority:
7.1. you represent and warrant that only those with your express and requisite authority (including, but not limited to, your Agency) will:
7.1.1. complete an Application;
7.1.2. keep all account information, arising from your Application, up to date;
7.1.3. have access to your account login details; and/or
7.1.4. act in order to Deal, or act pursuant to any Dealing.
7.2. Liability where someone acts with your authority: You acknowledge that a breach of any of your obligations (under the terms of this Agreement) by anyone acting with your authority is a breach by you.
8. Complete and accurate information:
8.1. You represent and warrant that all information that you provide is complete and accurate, including (but not limited to) information provided in relation to:
8.1.1. your Application; and
8.1.2. your Dealings.
8.2. You represent and warrant that all account information, arising from your Application, is complete, accurate, and will be kept up to date.
9. User status
9.1. We may: at our discretion, and without notice:
9.1.1. refuse to accept an Application to become a User of the Cloud Yards Platform;
9.1.2. suspend or cancel a User’s use of the Cloud Yards Platform;
9.1.3. impose conditions on a User’s use of the Cloud Yards Platform; and/or
9.1.4. take any other action we consider appropriate as it relates to a User’s use of the Cloud Yards Platform, including (without limitation) removing, cancelling, editing, or withdrawing any of a User’s content on the Cloud Yards Platform.
9.2. You may: cancel your registration at any time and for any reason by emailing us at our Address for Service, giving us 30 days written notice of cancellation. Access to the Cloud Yards Platform will stop immediately upon the effective date, which is expiry of the 30 days notice of cancellation period. Cancelling your registration does not affect a User’s liability for anything done or not done prior to the effective date.
10. User Rules
10.1. You must: ensure that any act by you in order to Deal, or act by you pursuant to any Dealing is lawful; and including in accordance with this Agreement and the Agency Terms of Sale and Purchase, and any of our applicable policies.
10.2. You must not:
10.2.1. List anything other than Livestock for sale on the Cloud Yards Platform;
10.2.2. sell, seek to sell, swap or otherwise divest, or invite or receive offers for any Lot Listed on the Cloud Yards Platform, other than:
(a) in the case of an Auction Listing, via the Cloud Yards Platform. This will remain the case until the expiry of 48 hours after a Lot fails to sell at the Listing close, and the timeframe for acceptance of a fixed price offer has expired (without any Contract having formed);
(b) in the case of a Non-Auction Listing, via your Agency and in accordance with standard Non Auction Listing practices;
10.2.3. in the case of Auction Listings, bid on your Lot or bid via multiple or related identities or Related Parties;
10.2.4. manipulate (or attempt to manipulate) any Lot Listed for sale, including but not limited to:
(c) colluding with any person, or entity, in relation to a Lot;
(d) inducing or attempting to induce another person, or entity, to abstain from making an offer on any Lot;
(e) agreeing that another party will be able to take over a Contract as a Purchaser;
(f) doing any other act or thing that might prevent free and open competition in respect of a Lot;
10.2.5. circumvent or bypass any technological protection measures implemented by us relating to the Cloud Yards Website;
10.2.6. disassemble, decompile, mirror or reverse engineer any software or other aspect of the Cloud Yards Website that is included in or accessible through the Cloud Yards Website; and/or
10.2.7. spread any virus, trojan, worm, cookie or other programme.
10.3. You provide representations and warranties:
10.3.1. As a Vendor:
(g) that you are GST registered;
(h) as to the existence, condition, quality, and legality of any Lot Listed by you, or subject to a Contract initiated by you, as Vendor on the Cloud Yards Platform; (i) as to your ability to sell (and pass unencumbered legal title of and beneficial interest in) any Lot Listed by you, or subject to a Contract initiated by you, as a Vendor on the Cloud Yards Platform;
(j) that where Livestock in a Lot is required to be registered under NAIT the Livestock in the Lot are physically located on the property associated with the NAIT number and to the extent that any NAIT number is recorded on the Listing, this is correct.
10.3.2. As a Purchaser: that you:
(k) have undertaken all the necessary searches on the Personal Property Securities Register before entering into any Contract; and
(l) will meet your payment obligations pursuant to any Contract you enter into.
10.3.3. As a Vendor and Purchaser: that you will meet all of your obligations pursuant to any Contract you enter into.
11. Cloud Yards Platform Auction Listing Fees
11.1. All Auction Listings incur the Listing Fee payable to Cloud Yards by the Vendor’s Agency.
11.2. The Vendor’s Agency is liable for the Listing Fee when the Agency publishes the Auction Listing on the Cloud Yards Platform, but the Listing Fee isn’t calculated until, and is payable from, Delivery.
11.3. The Listing Fees are:
11.3.1. Sheep: 1% of the Purchase Price, capped at $1 per head, excluding GST; and
11.3.2. Cattle (Beef and Dairy) and Deer: 1% of the Purchase Price, capped at $10 per head, excluding GST.
LISTING AND AUCTION RULES
12. Listings and Auction bookings on the Cloud Yards Platform
12.1. Listings:
12.1.1. Vendor’s Agency must List: only a Vendor’s Agency can create and manage a Listing for a Lot on behalf of a Vendor. In creating a Listing the Vendor’s Agency represents and warrants that it has the Vendors authority.
12.1.2. Vendor Listings must:
(a) accurately use the categories on the Cloud Yards Platform for all descriptions, and other Data relating to the relevant Lot; and
(b) in the case of an Auction Listing, include a ‘Start Price’ and a ‘Reserve Price’, with the option of also adding a ‘Buy Now’ price. 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 one is used. Once a Lot meets the reserve the buy now price is no longer available.
12.1.3. For any Lots that fail to sell at the close of an Auction Listing: the Vendor, via their Agency, is able to make a fixed price offer to all of the bidders and/or watchlisters on the Lot. This fixed price offer stands for up to 48 hours. The first bidder and/or watchlister to accept the offer completes the trade.
12.2. Auctionbookings:
12.2.1. Auction bookings at Cloud Yards discretion: we will let Agencies know of booking vacancies available for Auction Listings. Acceptance of a Vendor’s Agency’s request to book an Auction will be at our sole discretion.
12.2.2. Vendor’s Agency must book Auction: only a Vendor’s Agency can book and manage an Auction booking for a Lot on behalf of a Vendor. In booking an Auction the Vendor’s Agency represents and warrants that it has the Vendors authority.
12.3. Removal/Cancellation/and Editing – Listings and Auction bookings:
12.3.1. By the Vendor:
(c) once a Listing is live the Listing cannot be removed and Auction booking cannot be cancelled;
(d) details relating to a Auction Listing/Lot and Auction booking cannot be edited by the Vendor other than, via their Agency by reducing the reserve price or making changes to the buy now price. Once an Auction Listing is live, when bidding is beneath the reserve price, the Vendor, via their Agency, 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.
12.3.2. By Cloud Yards: we may, at our sole discretion, and at any time:
(e) remove any Listing;
(f) cancel any Auction booking; and/or
(g) edit any Listing/Lot or Auction booking details.
13. Bidding and entering into Contracts on the Cloud Yards Platform
13.1. Bidding, in the case of an Auction Listing:
13.1.1. Register to bid: prior to commencement of an Auction, you must:
(a) be registered with Cloud Yards to bid on a Lot; and
(b) your Agency must have confirmed with Cloud Yards acceptance of your registration to bid on a Lot.
13.1.2. Inspection: you may arrange with a Vendor, via their Agency, to inspect the Lot before placing a bid through the Cloud Yards Platform.
13.1.3. Bidding increments: bidding increments will be as set by us, unless you elect to specify your own bid value, where permitted by us.
13.1.4. time of bid: a bid is made only when it is recorded in the Cloud Yards Platform bidding log.
13.1.5. 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.
13.1.6. Cloud Yards may refuse bids: we may refuse to accept any bid that in our opinion is not in the best interests of the Vendor or the integrity of the Cloud Yards Platform.
13.1.7. Cloud Yards may withdraw bids: we may, at our sole discretion, or at a User’s request, withdraw a bid where there has been a technical or gross error. Where the withdrawal is at the User’s request, the User must have notified us of the error within 30 minutes of completion of the Auction.
13.2. Contracts:
13.2.1. A Contract , off the back of an Auction Listing, occurs if:
(c) 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;
(d) the Purchaser bid the buy now price; or
(e) the Purchaser accepts the fixed price offer after the Listing close.
13.2.2. A Contract, off the back of a Non Auction Listing, occurs: on 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.
(f) Is completed; and
(g) signed by the Vendor and Purchaser.
13.2.3. Purchase Price and GST and cost of delivery: where a Contract occurs off the back of a Listing, the Purchase Price is exclusive of GST, and the cost of Delivery; as is any bid associated with any Auction Listing, and GST will be added after the conclusion of the Auction to the Purchase Price of those Lots sold at Auction.
13.2.4. Cloud Yards may cancel a Contract: we may, at our sole discretion, or at a User’s request, cancel a Contract, off the back of an Auction Listing, where there has been a technical or gross error. Where the cancellation is at the User’s request, the User must have notified us of the error within 30 minutes of completion of the Auction. In the case of a cancelled Contract, we may, at our sole discretion, re-offer the Lot for sale in a new Auction. A User may not withdraw a bid.
14. LEGAL MATTERS:
14.1. IntellectualProperty
14.1.1. We own all Intellectual Property in Cloud Yards, the Cloud Yards Platform, the Cloud Yards Website; and all content, material, information and Data on the Cloud Yards Website.
14.1.2. You provide a warranty in relation to Data provided by you (whether by way of upload or otherwise) that:
(a) you have the right to provide Data to us; and
(b) your provision of Data does not and will not give rise to an infringement of any person’s Intellectual Property or any other rights of any person.
14.2. Publication and Use of Information: you authorise and acknowledge that:
14.2.1. other Users may access Data relating to you, your Lots and your use of the Cloud Yards Platform;
14.2.2. we may publish any resulting Auction details, including (but not limited to) results of Auctions, and provide that information to third parties; and
14.2.3. we may use and disclose Data as we consider appropriate to perform our role under this Agreement, or otherwise for the operation of the Cloud Yards Platform.
14.3. Privacy and Personal Information: we take your privacy seriously. Where personal information is collected, we comply with the Privacy Act 1993 and our Privacy Policy. In using the Cloud Yards Platform you acknowledge that you have read and accepted our Privacy Policy.
14.4. Force Majeure: we are not liable for any failure or other thing that is not reasonably foreseeable or that is outside our reasonable control including any act of God, strike, lock-out or failure by any party associated with any Dealings on the Cloud Yards Platform. Any epidemic, pandemic, outbreak or spreading of coronavirus (COVID 19) constitutes something not reasonably foreseeable and outside of our reasonable control.
14.5. Consumer Guarantees Act and Fair Trading Act: you acknowledge that you are in trade and you use the Cloud Yards Platform in trade, and:
14.5.1. the Consumer Guarantees Act 1993 does not apply to this Agreement or to any matters, information, representations or circumstances involving the Cloud Yards Platform or Cloud Yards itself;
14.5.2. all other statutory and other implied warranties to be made, given or met by us, including those under Part 3 of the Contract and Commercial Law Act 2017 are negated and excluded to the fullest extent permitted by law; and
14.5.3. it is fair and reasonable that you are bound by this clause.
14.6. No Warranties: to the fullest extent permitted by law, we make no warranties of any kind, express or implied, relating to:
14.6.1. the Cloud Yards Platform, and use of and access to it, including (without limitation) warranties as to accuracy, completeness and fitness for any particular purpose;
14.6.2. Livestock/Vendors/Purchasers, including (without limitation):
(c) the Vendor’s GST registration status;
(d) the existence, condition, quality, and legality of any Lot Listed, or subject to a Contract, arising from use of the Cloud Yards Platform;
(e) a Vendor’s ability to sell (and pass unencumbered legal title of and beneficial interest in) any Lot Listed, or subject to a Contract, arising from use of the Cloud Yards Platform;
(f) a Purchaser’s ability to pay for any Lot Listed, or subject to a Contract, arising from use of the Cloud Yards Platform;
(g) that a Vendor or Purchaser will meet all of their obligations pursuant to any Contract entered into and arising from use of the Cloud Yards Platform;
14.6.3. the actions of any party associated with any Dealings on the Cloud Yards Platform.
14.7. Cloud Yards Liability: we are not liable to anyone, including (without limitation) you or any other person in contract, tort (including negligence), equity or in any other way for any loss, damage or harm arising from or in any way related to:
14.7.1. the Cloud Yards Platform, and use of and access to it, including (without limitation) loss, damage or harm arising from or in any way related to accuracy, completeness and fitness for any particular purpose;
14.7.2. Livestock/Vendors/Purchasers - including (without limitation) loss, damage or harm arising from or in any way related to:
(h) the Vendor’s GST registration status;
(i) the existence, condition, quality, and legality of any Lot Listed, or subject to a Contract, arising from use of the Cloud Yards Platform;
(j) a Vendor’s ability to sell (and pass unencumbered legal title of and beneficial interest in) any Lot Listed, or subject to a Contract, arising from use of the Cloud Yards Platform;
(k) a Purchaser’s ability to pay for any Lot Listed, or subject to a Contract, arising from use of the Cloud Yards Platform;
(l) a Vendor or Purchaser failing to meet all of their obligations pursuant to any Contract entered into and arising from use of the Cloud Yards Platform;
14.7.3. our removal of any Listing, cancelation of any Auction booking, and/or editing of any Listing/Lot or Auction Booking details pursuant to the terms of this Agreement;
14.7.4. our withdrawal of a bid pursuant to the terms of this Agreement;
14.7.5. our cancellation of a Contract pursuant to the terms of this Agreement; and/or
14.7.6. the acts, omissions, errors, default or negligence of any party associated with any Dealings on the Cloud Yards Platform.
14.8. Indemnity: you agree, on demand, to indemnify us (and to keep us indemnified) 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 you of your obligations under this Agreement.
14.9. Miscellaneous
14.9.1. Entire Agreement: this Agreement constitutes the entire Agreement between us and you, and your Agency, concerning use of the Cloud Yards Platform. No person can rely on anything else said or done by us (including any of our representatives).
14.9.2. Severability: if any part of this Agreement is held invalid, unenforceable or illegal, that part will be severed or amended to the minimum extent necessary for the balance of this Agreement to continue in full force and effect.
14.9.3. Jurisdiction: this Agreement and any access to or use of the Cloud Yards Platform will be governed by and construed in accordance with the laws of New Zealand, and any claim made by either party against the other which in any way arises out of this Agreement will be heard in New Zealand and you agree to submit to the jurisdiction of the Courts of New Zealand.
14.9.4. No Waiver: In the event of a delay or failure by us to exercise any of our rights, that delay or failure does not constitute a waiver of our rights.
14.9.5. Assignment: you, and/or your Agency, may not assign or otherwise transfer any of your rights under this Agreement without our prior written consent. We may assign our rights under this Agreement to any party at any time without notice to you.
14.9.6. Joint and several liability: where a User comprises more than one legal person, each person’s liability will be joint and several.
15. DEFINITIONS: the following definitions relate to words used throughout these terms and conditions:
15.1. Address for Service:meansadmin@cloudyards.co.nz
15.2. Agency: means Livestock agency business, nominated by a User in its/their Application to represent it in all Dealings.
15.3. Agency Terms of Sale and Purchase: means the terms published by us on the Website from time to time, setting out the terms that will apply between a Vendor and Purchaser and their Agency pursuant to a Contract arising from use of the Cloud Yards Platform.
15.4. Agreement: means these terms, being the Terms of Cloud Yards Platform Use, published by us on the Website from time to time, setting out the terms that will apply between us and you, and your Agency, regarding use of the Cloud Yards Platform.
15.5. Application: means whatever form we deem appropriate, from time to time, for completion, and execution by you and your Agency, prior to us considering any application to become a User.
15.6. Auction/s: means an auction sale operated by Cloud Yards on the Website.
15.7. Auction Listing: means any page advertising Livestock for sale on the Cloud Yards Platform, and by way of Auction.
15.8. Cloud Yards: means Cloud Yards Limited.
15.9. Cloud Yards Platform: means the online Livestock market place operated on the Website.
15.10. 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:
15.10.1. the particulars (including, but not limited to, the number, description, and Purchase Price and (if applicable) the Purchase Price methodology) of the Lot; and
15.10.2. the Agency Terms of Sale and Purchase.
15.11. Data: means all information of any type and in any format provided by you, collected by us or generated by the operation of the Cloud Yards Platform by you or by others with you, but for the purposes of the Privacy Act 1993 excludes any personal information collected about you.
15.12. Dealing/s: means all dealings on the Cloud Yards Platform, including (but not limited to) any:
15.12.1. Listing;
15.12.2. Lot;
15.12.3. Contract.
15.13 Delivery: means the loading of the Livestock onto the Purchaser’s nominated haulage transport.
15.14. Eligibility Criteria: means you must:
15.14.1. be over the age of 18, if you are a natural person; and
15.14.2. 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.
15.15. 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.
15.16. Livestock: means animals kept for the production of food, wool, and skin on agricultural land and includes their unborn young.
15.17. Lot/s: means Livestock Listed for sale on the Cloud Yards Platform.
15.18. Non-Auction Listing: means any page advertising Livestock for sale on the Cloud Yards Platform, and not by way of Auction.
15.19. Privacy Policy: means the privacy policy published by us on the Website from time to time.
15.20. Purchaser/s: means a User that is a buying a Lot pursuant to a Contract.
15.21. 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 costs of Delivery.
15.22. Related Company: has 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).
15.23. Related Parties: means, in relation to a User:
15.23.1. a spouse (including a De Facto partner, as that term is defined in the Property (Relationships) Act 1976);
15.23.2. a son, daughter, or grandson or granddaughter;
15.23.3. a father, mother, brother or sister;
15.232.4. any director, officer or employee of, or professional adviser to, that User;
15.23.5. any person who directly or indirectly controls, or is controlled by, that User; and
15.23.6. any Related Company of that User.
15.24. User/you/your: means a person, or where there is a legal entity, that legal entity, that:
15.24.1. meets the Eligibility Criteria; and
15.24.2. has had their/its Application to become a User of the Cloud Yards Platform accepted by us.
15.25. Vendor/s: means a User that is selling a Lot pursuant to a Contract.
15.26. We/us/our: means Cloud Yards.
15.27. Website: means https://cloudyards.co.nz.