Current as at March 2013
Emerald GrainPty Ltd(ABN 82 109 203 054) (“Us” or “We”)”) acts on behalf of the Emerald Grain Trust (ABN 46 861 707 683) (“Emerald”) and where relevant references to Emerald include references to Us.
THE CONTRACT: The terms and conditions of the agreement between You and Emerald in respect of a sale by You of Commodity to Emerald under the 3-Windows fixed price contract (“the Contract”) are evidenced by the following documents and in the event of inconsistency must be interpreted in following descending order of priority:
- The contract confirmation provided to You.
- The 3 Windows Solution Sheet (“Solution Sheet”).
- These General Terms and Conditions.
- The GTA Trade Rules and Dispute Resolution Rules in force at the time of the Contract which form an integral part of the Contract (for a copy visit www.graintrade.org.au).
- (a) Agreements for future deliveries of Commodity are normally made verbally. You and Emerald are bound from the time the verbal deal is made and the verbal deal constitutes a legally binding agreement.
- (b) We will then provide you with a contract confirmation setting out the details of the contract. The contract confirmation sets out Emerald’s understanding of the contract which came into existence at the time of the verbal deal.
- (c) Upon receipt of a contract confirmation, you must carefully check all terms and specifications and, if you find any discrepancies, you must immediately notify Us by telephone, e-mail or by facsimile and confirm them in writing. If you don’t, you will be taken to have agreed that the contact confirmation is an accurate record of the key terms of the Contract.
- (d) For good order, we ask that You sign and return to Us a copy of the contract confirmation. If you don’t, you are still bound by the Contract.
TIME: All stipulations set forth in the Contract as to “TIME” are of the essence, except for payment of money. QUANTITY: Unless otherwise stated, all quantities shall be expressed metrically and to the nearest one/one-hundredth [1/100] of a metric tonne.
Quantity Tolerance: Unless specifically agreed otherwise and set out in the contract confirmation, the quantity required to be delivered under the contract is the minimum and the maximum; there is zero tolerance.
WEIGHTS: Unless specifically agreed otherwise, bulk store receival weights, which shall be determined by qualified personnel, shall be the basis of trade. If these are not available, government or Registered Weighbridge weights shall be accepted. Errors in weighbridge tickets in all cases shall be accepted.
QUALITY GRADES: Unless specifically agreed otherwise, Quality Grades shall be assessed on the basis of trade, which shall be determined by qualified personnel according to sampling and analyses procedures established by GTA or the bulk store as applicable during the relevant Delivery Period. Payment will be made based upon binned grade.
MULTI GRADE CONTRACTS: All multi-grade 3-Windows wheat contracts are for APW with a premium and discount schedule devised by Emerald to establish the fixed price for grades other than APW. If You transfer to Emerald against Your Contract a quality grade other than APW, your payment will be adjusted based on Emerald’s grade spreads applicable either on the date of contracting, the date of transfer to Emerald, or on May 1, 2014, depending on which of the three delivery periods You have nominated (or deemed to have nominated) and whether You have fixed your grade spreads or left them floating (refer to Solution Sheet).
LOCATION DIFFERENTIALS: Unless set out in the contract confirmation, the GTA location differentials will apply for up country deliveries. Location differentials can be located on GTA website.
Delivery PERIOD AND PRICING: As set out in the Solution Sheet, there are three Delivery Periods (windows) under the contract which can be nominated by You. Each Delivery Period has a port bid price specified that will be multiplied by the quantity as the basis for calculating Your payment, less spreads, location differentials and any levies or charges that are required to be deducted in accordance with the Contract. You must nominate and notify Us by the date specified in the Solution Sheet if you will be delivering in Delivery Period 2 or 3, and your nomination will be recorded in a contract confirmation. If Emerald does not receive a nomination by the due date for nominating, you will be deemed to have nominated Delivery Period 1 and You must deliver Your wheat accordingly.
Delivery and Title transFer: Subject to meeting minimum quality and quantity requirements, delivery and transfer of both title and risk of physical loss occur, when You or Your agent has presented Commodity to a bulk store and signed a weigh note nominating Emerald as the acquirer (physical delivery); or if delivery is by way of in-store transfer of Commodity stored on Your behalf by a bulk storer, when the bulk storer advises or confirms a title transfer from You to Emerald. The term “transfer to Emerald” wherever used in any of the Contract documents means delivery of the relevant Commodity to Emerald by either physical delivery or in-store transfer. You agree to sell the Commodity free of all liens and encumbrances, and must notify Emerald of any liens or encumbrances prior to delivery.
Standards: You declare that the Commodity sold is of the declared variety/varieties, and as such, is not know to contain any unapproved genetically modified material nor any approved genetically modified material in excess of the allowed adventitious presence of approved events as per state or federal legislation.
Levies and Statutory Charges: Any industry, statutory or government levies which are not included in the price shall be deducted as required by law, which may also include liabilities for End Point Royalties (EPRs) and/or Plant Breeders Rights (PBR). You agree to provide to Emerald any varietal information requested and consent to the release of Your information by Emerald to owners and managers of the variety, or their agents.
CHEMICAL AND PESTICIDES RESIDUES: You warrant that the commodity complies with all State and Federal Laws and requirements relating to chemical and pesticide residues and specified government designated maximum residue levels. You are responsible for any loss caused as a result of pesticide levels exceeding maximum residue levels and indemnify Emerald for loss it suffers due to maximum residue levels being exceeded.
WAIVER: If Emerald elects not to exercise any of its rights arising from a breach of the Contract, it shall not constitute a waiver of any rights relating to any other or subsequent breaches that may occur.
DEFAULT: Failure to deliver the Commodity in accordance with the Contract is a default by You. If You are in default, and after Emerald has given written notice to You of such default, Emerald may recover damages from You as a result of failure to deliver in accordance with the Contact based on either Emerald’s bid rate for the grade nominated by you for delivery, or if you have not so nominated, based on Emerald’s bid rate for APW, in either case as applying on the last day of the Delivery Period nominated (or deemed by these Terms and Conditions to have been nominated) by You..
If You suspend payment of debts, or convene or hold a meeting of creditors, or commit an act of bankruptcy, or being a company have a receiver appointed, or hold a meeting for the purpose of considering a resolution that the company be wound up or go into liquidation, You shall be deemed to be in Default.
NOTICES: All notices given under these Terms and Conditions shall be given by written letter delivered by hand on the day of writing, or by facsimile, or by email (with read receipt), or by other method of rapid written communication to the last address you have notified to Emerald. Any notices received after 1700 hours local time on a business day shall be deemed to have been received on the business day following. A notice to a party’s Brokers or Agent shall be deemed a notice under these GTA Trading Rules. In case of resales, all notices shall be passed on without delay.
FORCE MAJEURE: The loss of a commodity due to production risks or crop failure does not constitute a condition of Force Majeure.
ARBITRATION: Any dispute, controversy or claim arising out of, or relating to, or in connection with the Contract including any question regarding its existence, validity, breach or termination or subject matter thereof, shall be resolved by arbitration in accordance with GTA Dispute Resolution Rules (“GTA Rules”) in force at the time of the Contract, such rules forming an integral part of the Contract and of which both parties hereto shall be deemed to be cognisant.
Neither party to a dispute, nor any persons claiming under either of them, shall bring any action or other legal proceedings against the other in respect to any such dispute until arbitrated in accordance with GTA Rules.
APPLICABLE LAW: The Contract, the GTA Trade Rules and GTA Rules are governed by and shall be construed to be in accordance with the law for the time being enforced in Victoria.
TAX: Emerald and You declare that this agreement applies to supplies under the contract. Emerald can issue Recipient Created Tax Invoices (RCTI) in respect of these supplies. You will not issue tax invoices in respect of these supplies. Both parties acknowledge that they are registered for GST and are parties to an RCTI agreement. They will notify the other party if they cease to be registered. Acceptance of a Contract constitutes acceptance of the terms of this RCTI agreement. You agree to notify Emerald if You do not wish to accept the proposed RCTI within 21 days of receiving this document.
SET-OFF AND ENCUMBRANCES: Emerald may set-off against any payments due to You any amounts owing to Emerald by You on any account whatsoever.
RELATIONSHIP: You agree that neither Emerald or Us are in an agency or fiduciary relationship with You.
INDEMNITY: You indemnify Us and Emerald against any claim by any person claiming an interest in any Commodity delivered by You or the proceeds of sale of such Commodity, and against all costs or expenses incurred by Emerald in enforcing the Contract. You authorise Emerald to pay out of your proceeds any liens or encumbrances in respect of the Commodity notified to Us or Emerald and to deduct Emerald’s administration fees.
‘YOU’ includes your business partners and any company, trust or association on whose behalf you are purporting to act and ‘YOUR’ shall have a corresponding meaning. You acknowledge that unless you notify Emerald to the contrary prior to the formation of the Contract, your nominated agents for selling and/or delivery and any person in possession of your bulk store delivery card or Your passwords for activating web-based in-store transfers shall be assumed to have the authority to bind You.